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Baroness Miller of Hendon moved Amendment No. 57:

The noble Baroness said: Amendment No. 57 would delete the words "creation of a society" and replace them with words more consistent with a parliamentary democracy. The first 20 words of the clause contain a provision which has major constitutional and legal implications, caused by the unnecessarily rhetorical terms in which it is couched. It says:

It is not the function of any unelected government-controlled quango to create any form of society, however worthy. It is for Parliament and for Parliament alone—perhaps especially the House of Commons—to do any form of social engineering for which the electorate has given it a mandate. The power that the Government, in the extravagant language of this clause, are prepared to take away from Parliament and to give to their own creature, the super-quango, is in our view unprecedented. Members of the Committee should not agree to a concept whereby the Government casually hand over a function of
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Parliament to some outside body not directly answerable either to the electors or even to Parliament. This outside body will consist of 10 to 15 commissioners whom the Government will appoint, whom the Government will pay, and who will possibly effectively hold office at the Government's pleasure, but who, as I said, will not be directly answerable to Parliament.

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I emphasise unequivocally that Amendment No. 57 does not—I repeat, does not—seek to detract from objectives (a) to (d) as set out in the clause, which we broadly welcome as my noble friends made clear when the Bill was introduced in the other place. But we do have a view on objective (e), to which I shall refer shortly when I deal with that amendment.

Apart from the major constitutional problem to which I have just referred, I believe there are also serious legal implications. But before I explain that I should remind your Lordships that when my noble friend Lord De Mauley referred to this matter in winding up the Second Reading debate, the noble Lord, Lord Lester of Herne Hill, intervened to describe my noble friend's point as "baseless and legally illiterate".

I have to say that I was much aggrieved on behalf of my noble friend. I should hope that as a newcomer to the Front Bench he would be treated with the courtesy that usually prevails in your Lordships' House, rather than being assailed by such a vehement intervention. I wrote to the noble Lord, Lord Lester, to extend to him the usual courtesy of telling him that I would be referring to his intervention today. I am glad to see that he is in his place.

The noble Lord did reply to my letter, insisting that the problems that we see do not in his opinion exist, even though I made him aware that we had three separate legal opinions to support the view we took and which we still hold. In addition, I should tell the Committee that the noble and learned Lord, Lord Ackner, who was not able to stay so long this evening, has authorised me to say that he certainly concurs with our view.

I have to apologise to the noble Lord, Lord Lester, and to the Committee for answering in advance the arguments that he has not yet formally made to the Committee, but I have to do so because of the order of debate. I say to the noble Lord, with the greatest possible respect, that we believe that he is mistaken.

I emphasise again that we are not condemning the whole clause; we simply object to those words about the "creation of a society". It does not merely empower this new super-quango to create a new form of society; it actually instructs it to do so, telling it that it has a "fundamental duty". That has a very serious legal implication as well as a constitutional one. Practically nothing that the commission might conceive of doing—so long as in good faith it believed, or claimed it believed, it was in performance of that fundamental duty—would, on the basis of the advice we have received, be ultra vires.
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The CEHR has under this clause virtual carte blanche to do almost anything; so it can, with its hand on the commissioners' respective hearts, claim to be fulfilling in good faith its "fundamental duty". That will in turn mean that, short of a decision which the courts rule was so totally irrational that no reasonable person could have made it, the courts would be powerless to intervene.

Those of your Lordships who do not have the advantage of the vast legal knowledge of the noble Lord, Lord Lester, should understand that it is not enough for the court merely to say that it would not have done the same thing. The act or decision has to be totally irrational.

In February 2003, the noble Lord, Lord Lester, introduced his excellent Equality Bill. That Bill received support from all parts of your Lordships' House but foundered, as do so many Bills which emanate from here, because the Government did not give it sufficient time in the other place. That is a pity because it would have met the noble Lord's objection that setting up this new commission before a comprehensive single equality Act would be, in the noble Lord's own words, "putting the cart before the horse".

The reason why I am referring to the past history of the Bill promoted by the noble Lord, Lord Lester, is to draw attention to the language—the moderate language—of his opening clause, which I should like to quote. It says:

What a contrast with the flamboyant language of the present Bill. There is nothing there about "creating a new society". It is those words to which we object. The reason why we do so is that we believe that the commission could do anything it chose to do in furtherance of that so-called "fundamental duty" without recourse being available to anyone who is aggrieved.

Even if—like the noble Lord, Lord Lester—your Lordships do not entirely agree that the clause is a virtual blank cheque to the CEHR, I believe that this Committee should not take the risk that the commission may come to believe that it does have one, or that when some act or other of its is challenged in the courts the judge will rule that it has such a wide mandate that he cannot intervene.

I should like to pray in aid of my argument the authoritative opinion of none less than your Lordships' Constitution Select Committee, which, in a letter to the Lord Chancellor dated 21 June, commented on Clause 3 as follows:

There you have it.
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The Constitution Select Committee has sounded the same strong warning as I do on the undesirably wide powers that the clause grants to the commission and the difficulties there would be to hold it to account. The moderate amendment that I propose to the preamble to the clause to rectify this defect does not, as I said in opening, detract from the principles of the clause. All the amendment does is to alter the commission's fundamental duty from "creating a society" to one of implementing the will of Parliament. I seriously doubt whether anyone can object to that basic concept. I beg to move.

The Deputy Chairman of Committees (Lord Geddes): I must advise the Committee that if Amendment No. 57 is agreed to, I cannot call Amendment No. 58 due to pre-emption.

Earl Ferrers: It may be of convenience to the Committee if we discuss my amendment at the same time as it covers virtually the same point.

I agree with my noble friend Lady Miller; I am deeply worried about the wording used in Clause 3. The wording is,

Those are huge powers—to create a society in which various things are going to happen. As my noble friend said, it is not for quangos to make society and not for the Government to create a society. She said that it was for Parliament to create a society. Actually, I do not think that it is. It is people who make society.

When you create a society, you mould people into a various shape. As I suggested at Second Reading, you mould people like dough and create a certain shape—the shape that the Government want, or that this body wants. I believe this is very dangerous stuff. History is littered with people who wanted to create various societies. One has only to consider Hitler. Before anyone jumps down my throat I am not suggesting for one moment that the Government are behaving in the same way as Hitler did. I am merely saying that, like many other people, Hitler tried to create various societies. As I say, this is a very dangerous measure.

We are all individuals. We all have different perceptions, abilities and outlooks. Some people are good, some are bad, some are indifferent, some are clever, some are stupid, some are kind, some are arrogant and some are offensive. We all make up society. I do not think that we want to be moulded into a society of someone else's choice. At Second Reading I expressed concern about this matter. The noble Baroness was kind enough to write to me. However, I am bound to tell her that her letter did not allay my fears at all. She wrote:

I return to the point made by my noble friend; namely, that I do not think it is right for governments or quangos to create societies. You can have ideas and you can encourage the carrying out of those ideas, but in my view you cannot create a society.
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I do not like the words "fundamental duty". I wanted to table an amendment to remove those words as they constitute a very strong expression. However, I was told that I could not do that. I thought that was very odd. I thought that if someone had written something into a Bill, someone else could take it out. Nevertheless I was told that that was not possible. I received a letter from the Public Bill Office that states:

Will the noble Baroness be good enough to consider that matter and perhaps have a word with the draftsman because it is one thing to say that there is a duty for the commission to take certain action, but it is another thing to say that there is a fundamental duty to do so. That goes very much deeper than just the word "duty".

Clause 3 seeks to create a society in which various measures will be put in place. Those measures may constitute fine aspirations and I understand them as aspirations. However, they will become law and the commission will be told by law to create a society in which various measures will be put in place. I am concerned not merely about the intention of the Bill—that may be perfectly acceptable—but about the effect of it. Civil servants will read the law and will act according to what the law says and not according to what Ministers intend. I believe that they may come to very wrong conclusions.

At Second Reading I referred to Barnabas House, a hostel in Norfolk which was threatened with having a grant of £150,000 withdrawn because there were bibles in patients' rooms and grace was said before meals. An official said that people were being proselytised and that therefore the grant ought to be withdrawn. If a church cannot follow religious practices and encourage people to go down the path that that church considers is right, that is a great pity. However, the situation is much worse when officials threaten to withdraw grants from bodies that engage in religious practices. In fact, that did not happen at Barnabas House as, apparently, an accommodation has been reached. Religion will be kept low key. Bibles will be permitted in patients' rooms but they must not say grace before meals. That kind of measure is very dangerous. I regret to tell the noble Baroness that I consider that these words ought to be looked at again.

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