Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011
Lord Mackay of Clashfern Excerpts(12 years, 4 months ago)
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Baroness Verma
My Lords, perhaps we may hear from someone on the Conservative Benches and then come back to the noble Lord.
That amendment was made by the Equality Act 2010, but it was made to Section 6A of the Civil Partnership Act 2004. If you go along to the Printed Paper Office and ask for a copy of the 2004 Act, you will discover that it contains no Section 6A. That is because Section 6A was put into the Act by a regulation in 2005. That regulation was made under a provision in the Civil Partnership Act allowing statutory amendments to be made in respect of the Acts that were passed before the end of the Session in which the 2004 Act was passed. Therefore, any enactment contained in an Act passed before the end of 2004 can be amended by statutory regulation, using the affirmative procedure.
The point that arises in this case is a short one and I am not going to go into the opinions of the QCs. Noble Lords have had the great advantage of hearing another QC giving an opposite opinion—and it is not infrequent that that happens. I am going to give no opinion at all about the correctness or otherwise of the provision. They are practising QCs. They have signed their opinions, they are genuinely held and they illustrate a doubt—that is all—about the effect of the Equality Act on these regulations.
My point is that the amendment that the noble Lord, Lord Alli, and his colleagues put forward, which was accepted on a free vote in this House and the House of Commons, refers to nothing in this Act, but only to provisions in the 2004 Act. The opinion of these Silks is that the risk arises not from the provisions of the 2004 Act but from the provisions of the Equality Act 2010. To my mind, this issue can be completely set to rest by a simple amendment. Instead of saying “nothing in this Act shall”, the provision would say “nothing in this or any other Act shall”. The Government could do that without difficulty because I am sure we are all agreed that we mean to exclude any attack on the basis of the Equality Act.
Lord Lester of Herne Hill
Leaving aside altogether the argument about the declaratory provision, does the noble and learned Lord accept the opinion given, for example, by the Church of England's lawyers, with which I fully agree, that in any event, under the Equality Act, there could not conceivably be unlawful discrimination in the provision of goods, services and facilities, nor could there be a breach of a public sector duty because no public function is exercised by religious organisations? Therefore, quite apart from the belt-and-braces declaratory provision, there would be no conceivable case of unlawful discrimination.
Lord Mackay of Clashfern
Two QCs have reached the opposite conclusion. I am not sitting as a judge here. I am seeing that that has happened. Those people have raised a doubt. It is for the avoidance of doubt, not for the avoidance of actual provisions that have such and such an effect. The noble Lord, Lord Alli, was careful to understand that people would be very ready to raise doubts in this area if they could. Therefore, he put in a clear provision for the avoidance of doubt. The only problem about it is that his amendment deals with doubts that arise from the Civil Partnership Act. I have not heard anybody say that there is a doubt about this matter arising from that Act. The doubts, if they exist—they have been raised by practising Silks—arise from the Equality Act. I say that that can be simply dealt with by consent, because we are all agreed—so far anyway—that there should be no obligation arising from the Equality Act, or from any other Act for that matter, on any religious organisation to host civil partnerships if it does not want to.
My noble friend Lord Henley sent a letter to us all last night in which he states the Government’s position. He states at the bottom of page 1 that,
“the regulations cannot override primary legislation”.
It is true that these particular regulations cannot, but there is power for a Minister of the Crown, under the relevant section of the Civil Partnership Act, by affirmative resolution to amend an enactment contained in an Act passed before the end of the Session in which the 2004 Act was passed.
This issue has raised a lot of concern among a lot of people. All of your Lordships will have had letters. I have had more letters than I could answer myself without assistance—which I do not have, because I do not wish to charge the taxpayer for helping me. I try to help myself as far as I can. I have had a tremendous number of letters from ordinary people, as well as from a professor and a QC. Of course, another QC of great distinction says that that is all nonsense and that the other QCs are all wrong. People are accustomed to hearing QCs differ, but a difference of opinion between QCs is the sort of thing that causes doubt, which is the very thing that the noble Lord, Lord Alli, had the vision to see should not be allowed to happen.
The only problem is the extent to which that protection was afforded. I see no obstacle to the Government amending the amendment of the noble Lord, Lord Alli, to state “nothing in this or any other Act” shall impose an obligation on any religious organisation to host a civil partnership if it does not want to. I urge the Minister to undertake to do his best—I think that would be the word—to bring forward such an amendment. In that case, I would be happy that the Prayer was not persisted with.
Lord Pannick
My Lords, I very much respect the principled views of the noble Baroness, Lady O'Cathain, but this is not a matter of conscience, it is a matter of legal interpretation. As the noble and learned Lord, Lord Mackay of Clashfern, said, the question is whether there is any real doubt as to what a court would say on the matter. Your Lordships may have found it rather striking that the noble and learned Lord did not give the House any opinion at all as to the answer to this question; he confined himself to saying that views are expressed by QCs on this matter. In my experience of this House, it is rare for the noble and learned Lord not to give the House his very welcome opinion on issues, and I am sorry that he gave the House no opinion on the credence that could be attached to the opinions that have been expressed.
My view, for what it is worth, as a barrister practising in the area of human rights law and administrative law, is that there is no possibility whatever of any court accepting the arguments that have been advanced in those opinions. That is for two reasons. First, the court would focus on Section 202. It would recognise that Parliament has expressed in the clearest possible terms that religious bodies have a power to conduct civil partnership ceremonies but no duty whatever to do so. The regulations faithfully implement what Parliament has decided
The noble Baroness, Lady O'Cathain, expressed a concern that had been expressed by her advisers that that is not good enough because it is the Equality Act that, as she put it, poses the danger. The noble and learned Lord, Lord Mackay, made the same point. My answer to that concern is that it is the very Equality Act that expressly addressed civil partnerships and allowed civil partnerships to be conducted on religious premises for the first time but made it absolutely clear that religious bodies have no duty to conduct such ceremonies.
Lord Mackay of Clashfern
The noble Lord must accept that the operative effect of the provision in the Equality Act is to make an amendment to the Civil Partnership Act 2004, and nothing more.
Lord Pannick
I entirely accept that, but it is the Equality Act that addressed this very question of the circumstances in which religious bodies may, but have no obligation to, conduct civil partnership ceremonies. It therefore seems to me highly unlikely that any court will say that that very legislation, the Equality Act, nevertheless imposes indirectly some duty on religious bodies to do precisely what Section 202 of the same Act states that they do not need to do.
Secondly, if there were any ambiguity in the Equality Act—there is none, but if there were—a court would interpret the Equality Act by reference to the right under the European Convention on Human Rights and by reference to Section 13 of the Human Rights Act, which this Parliament enacted, which states that on any question that might affect the exercise by a religious organisation of the right to freedom of religion, the court must have particular regard to freedom of religion. It is plain beyond argument that the court would therefore say that a religious body has no duty to do what would conflict with the religious rights of the church or other religious body concerned.
Earlier in this debate, the noble Lord, Lord Tebbit, asked for assurances that the European Court would not interfere in this matter. I would be extremely surprised if the European courts would trespass on a fundamental question of religious freedom, but if they did, nothing that we decide today would affect that—it is simply irrelevant to this debate and therefore cannot be used either to support or to argue against the Prayer that the noble Baroness presents to the House.
Lord Pannick
I submit that this Parliament must proceed by what we recognise is the overwhelming probability. We cannot legislate on the basis of something that would be wholly contrary to what Parliament has decided as recently as 2010. I say with great respect to the noble Lord that the attitude of the European Court is completely irrelevant to this debate.
I have to tell noble Lords that if I were asked to advise a client on the prospects of success for someone who wished to compel a religious body to hold a civil partnership ceremony against its will, my advice—and, I am sure, the advice of every other competent lawyer practising in this field—would be that any such application would be completely hopeless and misguided. Therefore, I hope that the noble Baroness will withdraw her Prayer for annulment.
Lord Mackay of Clashfern
The noble Lord took great comfort from the Human Rights Act, which of course dates back some time before the 2004 and 2010 Acts came into being, yet the noble Lord, Lord Alli, and those with him, thought that it was wise to put into the 2004 Act an avoidance of doubt provision. Therefore, they were not prepared to trust the Human Rights Act provision alone to avoid any doubt that might arise. Such a provision does not suggest that there would be a legitimate attack; it simply suggests that doubt is to be put at rest completely, and that is what I should like to see here.
Lord Pannick
My answer to the noble and learned Lord is that in 2010, when the noble Lord, Lord Alli, was seeking to persuade the House to create for the first time, contrary to what had been decided in 2004, a power for religious bodies to conduct civil partnership ceremonies, it was perfectly understandable that it should be made clear that this was a power but not a duty. We had that debate and resolved the matter. There is no ambiguity and we really do not need to revisit it.
Lord Lester of Herne Hill
If there is vexatious litigation, it should be struck out by the court as vexatious and nothing more should be done about it. What I am endeavouring to say—I am not doing very well because I am quoting from a detailed opinion, but I thought the House deserved to have that opinion before it because of the authority that it gives—is that the clarity provision was not necessary because a proper construction of the provisions of the Equality Act makes it absolutely clear that any discrimination claim, either about the provision of services or about the public sector duty, would be doomed to failure.
There is one further point. In the case of Pepper v Hart, the House of Lords in its judicial capacity held that, were there any ambiguity in legislation, one could have regard to the parliamentary record to resolve the ambiguity. Quite apart from Section 13 of the Human Rights Act 1998, which the noble Lord, Lord Pannick, referred to, I have no doubt that, were there any ambiguity—in my view, there is none whatever—then the Supreme Court and the lower courts would have regard to statements made by the noble Baroness, Lady Royall, when she was leading for the previous Government, to the assurances given by the former Solicitor-General Vera Baird QC and to the statements that will be given shortly by my noble friend the Minister today. Those statements will all be one way. They will all indicate the true intention of the legislation. Therefore, were there to be any ambiguity, it would be resolved, if it had to be, judicially.
In my view, which is the same as that of the noble and learned Lord, Lord Falconer, the noble Lord, Lord Pannick, others who have spoken, the Church of England’s legal advisers and others, there is no conceivable doubt that a challenge would be hopeless. If, as a discrimination lawyer with 40 years’ experience, I were asked what my views would be about this, I would say, “You have not got a snowball’s chance in hell”.
Lord Mackay of Clashfern
The noble Lord mentioned the case coming to the Supreme Court. That would cost the church a penny or two.
Lord Lester of Herne Hill
No respectable member of the Bar, properly informed and reading the statute as a whole, if asked whether there was a reasonable chance of success, would be likely to say that there were. Anyone who brought such a challenge would have to find public funds or their own funds to do so and they would fail at first instance, in the Court of Appeal and in the Supreme Court.
Lord Henley
I hope that this debate has brought a considerable degree of clarity to this issue. I think that it is now generally clear—most people understand the legal aspect—that there is no doubt about this matter. However, as the noble Lord has raised this point, which was also raised by the noble and learned Baroness, Lady Butler-Sloss, we will obviously keep all matters under review, and if we saw a problem, we could act. I do not think that that is likely. Particularly after what we have heard in this debate, it would be a very vexatious litigant who tried to bring such an action, and I do not think they would have much chance in the courts.
I hope that I have spoken briefly and with some clarity about what the Government’s intentions are. I repeat again, this measure is entirely permissive; it is not designed to go any further. On that I am at one with the Opposition Front Bench, with the noble Lord, Lord Alli, and with a large number of the legal luminaries who have spoken. I hope that my noble friend will feel able, therefore, to withdraw her amendment.
Lord Mackay of Clashfern
Is my noble friend speaking on behalf of the Government at this Dispatch Box, having regard to the case to which he referred about reference to statements? Is he saying on behalf of the Government that this Act, in Section 202, refers to the 2004 Act and to the Equality Act 2010? Is it the position of the Government that this includes the Act of 2010?
Lord Henley
My Lords, I am making, as my noble and learned friend put it, a considered ministerial Statement from the Dispatch Box, in line with the case he referred to, Pepper v Hart. Yes, I believe that this Act covers both the 2004 Act and the Equality Act 2010. As I said earlier, it would be very odd if the Equality Act was considered to have spoken inconsistently. However, I can give my noble and learned friend the assurance that he seeks.
Interpol
Lord Mackay of Clashfern Excerpts(12 years, 4 months ago)
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Lord Henley
I accept what the noble Lord says, and I will take note of that. He will know that Interpol’s constitution enshrines neutrality, and its Article 3 forbids Interpol’s involvement in political, military, religious and racial matters. The noble Lord will also know that all notices that are issued should be—I stress “should be”—checked by Interpol’s secretariat to ensure that they meet Interpol’s criteria for neutrality. Any that do not should not then be published. The wider point of whether the United Kingdom Government should take this up, or whether it should be taken up by Mr Benny Wenda or his friends, is another matter. However, there are two ways this can be done. First, member Governments can intercede with Interpol, and secondly, there is the procedure by which complaints can be made through the CCF, the Commission for Control of Interpol Files.
Lord Mackay of Clashfern
My Lords, I wonder if my noble friend can say whether there is jurisdiction in courts in the United Kingdom to set aside a red notice on the application of a person on whom it has been served?
Lord Henley
My Lords, I am not aware that there is. I want to make it clear that the United Kingdom Government will not either arrest or extradite a person solely on the basis of a red notice. If we are going to extradite someone, it will go through the usual and proper procedures under the Extradition Act 2003.
Terrorism Prevention and Investigation Measures Bill
Lord Mackay of Clashfern Excerpts(12 years, 5 months ago)
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Lord Judd
My Lords, I, too, support the amendment. Inevitably my argument relates back to what I said on a previous amendment, but it is absolutely crucial that we should have the maximum possible support across all communities for what is being done. If the Secretary of State is to have these great powers, which the House has reaffirmed today, then we must fall over backwards to ensure that justice is nevertheless seen to be done, and not just done. In that sense, it must be very convincing indeed when the Secretary of State acts. The amendment is wise and sensible. The absence of the provisions in the amendment again undermines the battle for the hearts and minds of the impressionable young.
Lord Mackay of Clashfern
My Lords, we have to bear in mind that as the Bill now stands, the initiator of this procedure is the Secretary of State with responsibility for national security. The Secretary of State has available to him or her all the information that the state can provide, including on a secrecy basis, on these matters.
When a court is deciding something, the balance of probabilities is a suitable standard because it is not expected to believe one thing or the other; it is to accept the balance of the evidence one way or the other. Requiring the Secretary of State to believe is a higher standard than the balance of probabilities. I cannot believe that the Secretary of State would be entitled, on a mere balance of probabilities, to come to the belief that this is what happened.
Of course, Secretaries of State might be rather special, and they might be able to come to a faith and belief without much in the way of evidence. However, that is taken care of by the language in the Bill as it stands, that the belief must be reasonable. So it is not only belief but a reasonable belief. In other words, the Secretary of State must have available to him or her information as a result of which he or she comes to be convinced that the person has engaged in the activities that the noble Lord kindly laid out for us. I agree that it is an extremely serious matter but the language in the Bill is suitable to a situation in which a decision has to be made, not by someone who has to review the evidence as an impartial judge but by someone who comes to the evidence with the executive responsibility to take the necessary action. In my view, this requirement that the Secretary of State should reasonably believe that the person in question has been involved in these activities, is a stronger and more reliable basis for going forward than a mere balance of probabilities. It is difficult to see how one could be convinced on the balance of probabilities alone.
Lord Lloyd of Berwick
The noble and learned Lord refers to a “mere” balance of probabilities. He will of course be aware of the many cases decided in the highest courts where what he calls a “mere” balance of probabilities can approach the criminal standard, specifically in cases such as these.
Lord Mackay of Clashfern
I agree with that and am very much aware of it, but it is still a mere balance of probabilities. Although it can go very close to the criminal standard, it is still a balance of probabilities that is being used, and I would say that the criminal standard requires a jury in effect to believe—to be sure—that this is what happened. I regard “reasonable belief” as a very strong and appropriate phrase to use where the person initiating the procedure is the person with the responsibility to have before him or her all the necessary material.
Lord Newton of Braintree
My Lords, having stuck my neck out first one way and then the other in the earlier part of our proceedings, I had decided to keep my head down on this one. I want to say to my noble and learned friend, given the views I expressed in the House earlier in the day, that he has made me feel better. It may be respectable to keep my head down, so I shall continue to keep it down.
Baroness Hayman
My Lords, I have always felt that consistency was a dangerous principle for politicians to invoke. I make a serious point here. Of course there is a virtue in consistency, but there is also a Galbraithian view on thoughtless and mindless consistency. I have always felt that the overwhelming obligation for politicians was to be willing and able to justify their inconsistencies as well as to have underlying consistency of principle. However, this is all by way of an aside and I hope the House will at least feel that I am consistent in my view.
As the noble Lord, Lord Pannick, has said, when we are departing from the normal procedures and principles of the criminal law—and there are reports of various committees, both Joint Committees and committees of your Lordships House about the exceptional nature of the provisions in the Bill—there is an obligation upon us as parliamentarians to keep that under review, and always be willing to reassess what we have done and how we have done it.
In the words of the noble Lord, Lord Faulks, in our debate in Committee—I hope that I am not paraphrasing him—we have got it basically right in the Bill and there is no point in having an annual squabble about it. However, I do not see this as an annual squabble. I see it much more as the noble Lord, Lord Pannick, did, as the opportunity to reassess both the need and the efficacy of what we have put in place. These are difficult balances to strike. We do not get them right and perfect every time. There is a discipline imposed by Ministers having to justify each year the continuation of provisions that all of us recognise as important and exceptional and departing from principles that are equally fundamental to how we conduct ourselves as a society.
I feel very strongly that it is not an overwhelming burden to put on Ministers to ask them to have the respect for Parliament and the recognition of the departure from the norm that the measures in this Bill contain once a year, to reassess and bring before Parliament a renewal order that asks whether we have got it as good as we can get it. Therefore, I hope that the House will support the amendment tonight.
Lord Mackay of Clashfern
My Lords, I would like warmly to support this amendment. It is absolutely clear that this procedure is a very special one, outside the ordinary system of courts of law and the like. It is justified on the basis of need by those familiar with the terrorist threat that our nation faces. In the nature of things, that threat must vary, and it must be right that this Parliament should have an opportunity annually to review such special procedures as these. However satisfied we may be—and, obviously, different people will be satisfied to different levels whether the balance is right—it is an altogether exceptional procedure.
The noble Lord, Lord Judd, said earlier that justice must be seen to be done. This is not a procedure in which that is going to happen; in the nature of the procedure, it does not have that characteristic. Therefore, it is highly important that we have a provision that enables us to review each year whether or not this type of procedure is still necessary and efficacious. I agree with everything that the noble Baroness, Lady Hayman, said about this. I found valuable her exposition of how politicians should be consistent, and if they happen to be inconsistent they should have an explanation for it—not just that they have changed sides.
Lord Henley
My Lords, perhaps I may say how grateful I am to the noble Lord, Lord Pannick, for setting out his amendment and explaining it so carefully. I am also grateful that he set out the arguments I put forward both in Committee and at Second Reading. I will go through them again because I think that the House would like to hear them, and I might be able to persuade noble Lords of the merits of my position. I will not follow the second speaker in the debate, the noble Baroness, Lady Hayman, in her strictures to her own former Front Bench about consistency. I will leave that as an internal family matter that they can sort out among themselves. Consistency is important on some occasions, but that is a matter for the noble Lords, Lord Hunt and Lord Rosser, to consider in due course.
It is important that I set out the Government’s views on why we think it is not necessary to go to an annual review, as opposed to the five-year review that we are proposing. I will set out the argument on three major grounds, more or less as the noble Lord, Lord Pannick did. First—that dread word—we believe that renewal every five years strikes the right balance. It reflects the need to build in effective safeguards to ensure that powers do not remain in force longer than is necessary. It also reflects the competence of Parliament to apply intense scrutiny to legislation—no one can say that this legislation has not had intense scrutiny, and it has not been emergency legislation as on previous occasions—and to arrive at a position that will not need to be reviewed annually. Each new Parliament will have the opportunity to debate this view in the context of the situation at the time and to take its own view. This is in line with the length of Parliaments provided by the Fixed-term Parliaments Act.
Secondly, we believe that annual renewal is unnecessary. The Bill has been subject to full parliamentary scrutiny with the usual timetable allowing for a settled position to be reached. As I stressed earlier, by contrast the control order legislation had to be, necessarily, rushed through with very little opportunity for debate, although there was considerable debate in this House. That made annual renewal an appropriate safeguard for the 2005 Act. Admittedly it was a safeguard that was initially opposed—as the noble Baroness, Lady Hayman, reminded us—by the Government at the time, but it is one that is not necessary in respect of this Bill.
I stress that there are other significant forms of oversight and scrutiny. There will be the annual report by the independent reviewer of terrorism legislation; there will be quarterly reports to Parliament by the Secretary of State—she must report quarterly on the exercise of these powers under the Act—and there will be the usual post-legislative scrutiny which requires a detailed memorandum on the operation of the Act to be submitted to the relevant departmental Select Committee and laid before Parliament. As we discussed when debating many of the earlier amendments and all earlier stages of the Bill, every individual TPIM notice will be carefully scrutinised by the courts.
Thirdly, I stress again—this point was raised by my noble friend Lady Hamwee and others—that there are other means by which the Bill can be amended or repealed. There is an order-making power to repeal the TPIM powers, and if it becomes clear that the powers are no longer needed—we would all welcome that occasion if it should happen—it will be possible at any time during each five-year period for the Home Secretary to repeal the powers by order. If it becomes clear that the powers should be changed, the legislation can be amended by Parliament at any time in the usual way.
We do not, therefore, believe that an annual renewal is necessary. We think a five-year review of these matters strikes the right balance. I appreciate that other noble Lords who have taken part in the debate have strong views on the matter and I understand the concerns of the noble Lord, Lord Pannick. However, I hope—although I doubt very much—that what I have said might persuade him on this occasion to withdraw his amendment.
Lord Mackay of Clashfern
My Lords, first, is it fundamental to the Bill being put before Parliament that the Secretary of State believes, at this moment and in the light of the information that she has, that the Bill is essential? Secondly, if that is the basis of the Bill being put before Parliament, can she say whether in a year’s time, after it passes, the situation will be the same?
Lord Henley
My Lords, the important point is that the Bill is the result of the counterterrorism review that my right honourable friend the Home Secretary initiated and which she reported on earlier this year. Following the review of counterterrorism legislation we came forward with the Bill and other parts of the package that we discussed at earlier stages. My right honourable friend therefore believes, as do I, that the Bill is fundamentally necessary at the moment. However, she has given herself a power, if she feels that the Bill is no longer necessary, to withdraw it. That power is set out in the Bill; I suppose that it is a Henry VIII power which many people would welcome on this occasion, but we would only withdraw the Bill if we felt that it was no longer necessary.
Health: Animal Testing
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Lord Henley
Again, I am grateful to the noble Lord for that question. I am new to the department but in terms of the briefing I have received, I am satisfied that there is appropriate testing and licensing of the place where animal testing goes on, the people who do it and the projects involved. It is important that all three—place, person and project—are tested, examined and licensed appropriately to make sure that there is proper and appropriate use of animals in that case.
Lord Mackay of Clashfern
Does my noble friend consider that the present scope for medical research being undertaken by a single body, as seems to be proposed—I hope that it will ultimately come forward as a proposition—is a suitable occasion for reconsidering the arrangements for embryology involving animal and human embryos?
Lord Henley
My Lords, I would not want to be drawn down into the whole discussion about embryo research at this stage but I note what my noble and learned friend has to say. At the moment, the Home Office licenses research into animals in these matters and it does that job very well. As I made clear in earlier answers, the important thing is that we check up and license the persons, the places and the projects involved.
Equality Act 2010 (Specific Duties) Regulations 2011
Lord Mackay of Clashfern Excerpts(12 years, 7 months ago)
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Lord Davies of Coity
My Lords, it was not my intention to participate in this debate. However, as a result of listening to the comments of many noble Lords, I am driven to say a few things. Recently we had riots on the streets of Britain, and as a result there has been a lot of heart-searching about why people participate in this exercise—some for criminal reasons, some for other reasons. No one really knows why, and there will be some investigation into that. However, it strikes me that the pendulum of secularism and political correctness has swung too far. Consequently, we need to bring it back a bit. The way in which that can be done is by instilling more Christian standards and morality in our society.
These regulations discriminate against religious bodies, as has been said by the noble Lord, Lord Waddington. People who wear necklaces with a cross on, as I do, will be discriminated against, and that is wrong; people are entitled to have religious freedom and should not be discriminated against for that. I shall support the amendment of the noble Lord, Lord Waddington, today if he puts it to a vote.
Lord Mackay of Clashfern
My Lords, my noble friend Lord Waddington’s amendment would not prevent the passing of these regulations. It is an amendment that regrets a certain result from the present situation; that is all. That is well expressed in a press release that the Equalities and Human Rights Commission issued on 11 August. It applied for leave to intervene in the cases to which the noble Lord, Lord Lester, referred. It said then:
“If given leave to intervene, the Commission will argue that the way existing human rights and equality law has been interpreted by judges is insufficient to protect freedom of religion or belief”.
The commission has withdrawn that as a result of representations made to it, which does not entirely increase my confidence in its independence, but that is what it said originally. That is really what my noble friend’s amendment expresses; it seeks not to change what the regulations are proposing but simply to express a concern that may be taken into account in whatever emerges in future.
Baroness Royall of Blaisdon
My Lords, I rise to express concern about the draft regulations being moved by the Minister, to speak against the amendment moved by the noble Lord, Lord Waddington, and to support the amendment tabled by the noble Lord, Lord Low of Dalston.
I say to the noble Lord, Lord Waddington, that I speak as someone who is proudly married—for 31 years today—but who strongly supports the Equality Act and the regulations that flow from it. I am proud of the Act and of the fact that those on all Benches in this House supported it when it was a Bill in this House.
The duties that we are discussing today are critical in delivering the public sector equality duty that is enshrined in the Equality Act 2010 to provide better all-round services to the community and all its diverse members. The purpose of the duties was explained carefully by the noble Lord, Lord Lester. Contrary to the views expressed by the noble Lord, Lord Waddington, and others, I believe that as a result of three rounds of consultation the duties appear to have been watered down and therefore fail to deliver the main objective to ensure the better performance of the general duty by public bodies. It is difficult to understand how a single objective can enable a public authority to meet the range of its equality duties, and I would be grateful if the Minister could explain this point more fully.
As noble Lords will recall, the Equality Act 2010 brought together existing equalities legislation, with its specific equality duties, and added additional equalities-specific protected characteristics, as the Minister explained. Concern was expressed at the time that the new duties would be less robust, and I think this is precisely what has happened. The regulations before us are a step back from the level of specific equality duties that public authorities are currently used to under provisions on race, gender and disabilities. Yet there is evidence that the existing specific duties, which are more specific than those that we are being asked to approve today, have been useful in assisting public bodies to make progress with equality. The noble Lord, Lord Low, has given tangible examples of the ways in which specific equality duties are being used to improve outcomes, both for disabled people and school pupils, and as we have heard, positive outcomes for pupils include better access to facilities, feeling valued, developing higher aspirations, and narrowing gaps in performance and participation in sport.
In the wake of the disturbances this August, I suggest that these outcomes have become more, rather than less, important. The purpose of specific duties is to give proper guidance to public bodies whose main job is often not about equality but rather about healthcare, education, recreation, et cetera, but all these bodies want to improve the delivery of their services in a way that has equal outcomes for all. I must say to the noble Lord that I am not saying sameness for all, but equal outcomes, which is a very different thing. Despite the Minister’s assurances—
Sex Offenders Register
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Baroness Neville-Jones
I am sure that the Government and the House would agree with that sentiment.
Lord Mackay of Clashfern
My Lords, does the noble Baroness agree that it is right that the judge’s ruling should be observed by the Government and that they should take steps to implement such rulings which are in accordance with our present law? There is no question of the judges usurping the responsibilities of Parliament because of the way in which the Human Rights Act is framed, but we have an obligation, as a matter of treaty and convention, to obey the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Baroness Neville-Jones
The Government accept that the convention has to be observed and that the Act has to be interpreted and they will act on their duties under both.
Identity Documents Bill
Lord Mackay of Clashfern Excerpts(13 years, 5 months ago)
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Lord Craig of Radley
My Lords, I am equally concerned that for the sake of a very small amount of money the Government are taking this intransigent attitude. That is assuming that 12,000 people will be seeking £30. I very much doubt whether everybody who has paid their £30 will in fact be doing so, so the sum is probably rather less than the noble Lord, Lord Brett, was talking about. I wondered, as a sort of compromise, whether it would not be possible for those who had paid their £30 to be allowed to offset it against the cost of their next passport so that the cost of their passport is reduced by that amount. That might in some way alleviate this disheartening feeling that everybody seems to have about this rather abrupt and unfair arrangement.
Lord Mackay of Clashfern
What is being done here is to deprive the identity card of value by the main provisions of this Bill. For the people who have paid for the card that is something that we really have to take into account, having regard to the Government’s situation at the time they took out the card. I suggest to my noble friend that this matter should be subject to further consideration. There is an opportunity to do that if my noble friend is willing.
The Earl of Erroll
Before the noble Baroness sits down, will she guarantee to come back with an amendment along the lines of recompensing people? On two occasions the Government have promised to take a proposal of mine away—this Bill has only one more stage—but at Third Reading have weaselled out of it at the last minute. Under the rules governing Third Reading, we are not able to put down anything at that stage to ensure that the Government come back with something, so we need a binding commitment from the Government to come back with an amendment along the lines of this one. If the Government will not give such a commitment, we should not permit the amendment to be withdrawn.
Lord Mackay of Clashfern
I see the position in which my noble friend finds herself. I respectfully submit to the House that it would be perfectly reasonable for her to ask that this matter be postponed to Third Reading so that she has an opportunity of conveying to her colleagues—because the Government as a whole are involved here—the sentiments that have been very clearly expressed in your Lordships' House. She has explained the reasons for the Government's position. However, a great deal has been said here and I submit that the Government have an opportunity to reconsider. If the Opposition are anxious to achieve fairness and justice, I am sure that this is the correct course, rather than seeking to take the matter further at this juncture—if my noble friend is prepared to take this back, to have it considered by her colleagues in government and to return at Third Reading and tell us what the situation is.
Lord Phillips of Sudbury
My Lords, I say to the Minister that her good faith is not at issue at all. The issue is whether it is possible under the rules of the House to bring back at Third Reading an amendment that has been moved on Report. I would like advice from the Clerk because, with great respect to the noble and learned Lord, Lord Mackay of Clashfern, I do not think that that is within the rubric of the House.
Lord Mackay of Clashfern
It is not me to give this advice, except in response to what my noble friend has asked. However, as I understand it, it is certainly within the rules of the House to bring back the matter at Third Reading if it has not been decided before that.