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Lord Peyton of Yeovil: I have two amendments down to this clauseAmendments Nos. 61 and 62. I think that it would be for the convenience of the Committeeand brevity would be the rewardif I were just to deal with the points which have been raised by my noble friend on the Front Bench. Those two amendments would then fall into place very easily in what I have to say.
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I would like to start by saying that I thought in the speech which my noble friend Lady Miller made from the Front Bench she made the point with eloquence, conviction and force. I very much hope that the noble Baroness on the government Front Bench will take this point really seriously. First, so far as concerns commissions, it is no exaggeration to say that the landscape is literally littered with them now. We have too many of them and there is no way in which Parliament or Ministers have effective control of them. I could give a number of instances in which powers have been given and powers have been abused. Therefore, I am fearful of going down that way again.
I just want to say this to the noble Baroness: commissions are not made in heaven, they are human and they are fallible and we have no business to assume that they will be otherwise. Secondly, we have a deplorable modern habit in this country nowand your Lordships' House has been one of the victimsof sprinkling cosmetic words all over Bills without necessarily adding to the meaning by one ounce. In fact, I strongly suspect that some of the words that are to be found in this particular clause, and in its paragraphs, are really sprinkled there by the authors of the Bill to glorify themselves and to say what fine people they are rather than to do anything to help those who are meant to be the beneficiaries of the Bill. I think this kind of cosmetic is quite intolerable and I very much hope that the Government will pay attention to the words of my noble friend, to which I see the noble Baroness has no answer possibly except that she will take this away and think deeply upon it. Otherwise I very much hope that on Report there will be further and much more warlike activity than there has been today.
Lord Hylton: I suggest that the language of Clause 3 on page 1 of the Bill is completely hyperbolic, or, to put it in plainer language, totally over the top. For that reason I strongly support Amendments Nos. 57 and 58 which have been spoken to. Of the two, I prefer Amendment No. 57 because I think it is very important that we should write in "laws passed by Parliament".
Lord Lester of Herne Hill: I thank the noble Baroness, Lady Miller of Hendon, for writing to me and for the compliment that she paid to my Private Member's Bill. I look forward to the speeches that she will make in due course when we have the single equality Bill in a couple of years' time. I am sure that the noble Baroness and her colleagues will support that Bill, as will noble Lords on these Benches. I agree with her that that is the Bill that we should have had at this stage.
I believe that there is a genuine misunderstanding regarding this clause. Leaving aside questions of hyperbole and phrasing, I wish to address the allegation that has been made that somehow the measure is unconstitutional or places the commission beyond the rule of law. I hope that I did not offend the noble Lord, Lord De Mauley, by what I said. If I did, I am very sorry about that. Maybe my language was unparliamentary for this House, although it would be perfectly proper in another place or elsewhere.
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I took exception when it was said in that debate that this clause would mean that the courts found it almost impossible for any action of the commission to be deemed ultra vires, placing it above the law. I said that I thought that was not the case, and I asked whether there was any basis for it. The noble Baroness, Lady Miller, at my request, kindly produced a copy of an opinion that had been obtained from the Christian Institute, by Neil Addison of counsel, which I have looked at. It may well be that the origin of the difference between us lies in that opinion. He said that Clause 3 is unique in British legislation. It has both legal and philosophical difficulties. From a practical, legal point of view it will make the commission almost immune to a judicial review base on ultra vires. Almost any action could be justified as being part of the creation of a society.
I emphasise that nothing in Clause 3, including its preamble, in any way restricts the power of the courts to review any abuse of power by the commission, whether on grounds of irrationality, or legality, or unfairness. I have written as much to the noble Baroness, Lady Miller. The words that cause such difficulty with those who support the amendment are:
The words, "with a view to", and "shall exercise its functions" create no new power of any unconstitutional kind. All that they say is that the aims that the commission should have in exercising its powers and performing its duties should be those that are then set out in the rest of the provision. Judicial review would lie if in exercising any powers or performing any duties the commission were to act in breach of administrative principles. I put down a Question about that for Written Answer, and the Minister helpfully confirmed that the body is fully subject to judicial review.
What Clause 3 first refers to as an aim to be taken into account by the commission is that people's ability to achieve their potential should not be limited by prejudice or discrimination. I would be astonished if that were considered these days to be controversial. Secondly, it says that there is respect for and protection of each individual's human rights. Again, that cannot be controversial. Thirdly, it says that there is respect for the dignity and worth of each individual. Again, I cannot understand how that could be controversial. Then there is equal opportunity to participate in society. Those are impeccable Conservative principles that Lord Boyle of Handsworth or Lord Hailsham of Saint Marylebone were famous for articulating during their great period in public office.
Lord Monson: I am grateful to the noble Lord for giving way. He said that it is right to respect the dignity and worth of each individual. Does that mean that we are under some sort of moral obligation to respect the dignity and worth of murderers, rapists, muggers, vandals and almost anyone you care to name? That is what the phrase means literally.
Lord Lester of Herne Hill: It means that one respects, as an ancient Judeo-Christian principle, that
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every individual human being is entitled to respect because of their common humanity. It does not mean that someone who behaves in a criminal way is entitled to the same respect as someone who does not.
The desire to promote human dignity underlies many of the rights under post-World War Two international human rights instrumentsit is not the invention of this Government. The Preamble to the UN Charter in 1945 explains that the peoples of the United Nations reaffirm faith in fundamental human rights and in the dignity and worth of the human person. The Preamble to the Universal Declaration of Human Rights of 1948 refers to the dignity and worth of the human person. There is similar language in the International Covenant on Civil and Political Rights and in the International Covenant on Economic, Social and Cultural Rights. They include declarations that,
Similarly, the dignity of the human person is relied on frequently before the European Commission and European Court of Human Rights in their case law. I shall not mention the European Union Charter of Fundamental Rights, since there may be some here who would regard that as a fatal reference.
The Joint Committee on Human Rights in its 16th report on the Bill refers specifically to Clause 3, welcoming its terms with its echoes of the Universal Declaration of Human Rights. The committee said that it would serve in practice as a unifying factor in the commission's efforts to undertake its duties under Clauses 8 to 11. That report was unanimous. The committee included three powerful Conservative members; the noble Lords, Lord Bowness and Lord Campbell of Alloway, and Richard Shepherd MP of the other place. I was not on the committee, but I agree with what was said.
The clause does not in any way constitute an unconstitutional threat to the rule of law. It does not place the commission in any way beyond judicial review. It does echo all the values in the code of international human rights.
I have sympathy with one of the later amendments proposed by the noble Earl, Lord Ferrers, to which he has not yet spoken, Amendment No. 102. We shall not be debating that amendment this evening, but I shall mention it because it goes with this one. I find the way that Clause 13(1) on "Monitoring progress" is expressed to be, to say the least, a bit heavy-handed. What is then done is to give the commission the task of identifying changes in society in a rather unattractively worded way. When we come to that, I shall be interested to see what is said about it. As far as Clause 3 is concerned
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