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Equality Bill [HL]

moved Amendment No. 57:"Page 1, line 11, leave out ““the creation of a society in which”” and insert ““supporting laws passed by Parliament which attempt to ensure that””" 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:"““The Commission shall exercise its . . .  functions with a view to the creation of a society””." 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 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. 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. 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:"““The purpose of this Act is to facilitate both the promotion of equality and the elimination of unfair discrimination””." 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:"““This is a language of generality and depth that is seldom found in Acts of Parliament, and their interpretation will require the making of far-reaching and sensitive decisions that will turn on the commission’s political, social and cultural perceptions. When made by Parliament or by Ministers, such decisions are subject to established forms of democratic accountability. If these decisions are to be made across a broad field by an autonomous or semi-autonomous commission, questions arise as to the commission’s accountability””." There you have it. 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.