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Equality Bill [HL]

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. 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 Commission shall exercise its functions under this Part with a view to the creation of a society””." 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. Then it says that there is mutual respect—