Counter-Terrorism and Security Bill

Baroness Deech Excerpts

Wednesday 4th February 2015 Lords Chamber

[Lord Morgan (Lab)]

My Lords, this has been a long and fascinating debate and, like other speakers, I pay tribute to the Minister for his rationality, willingness to conciliate and awareness of the seriousness of these issues. Like my noble friends who have spoken, I wish that we were able to go further and to have a government amendment which expressed terms such as “statutory duty” and “the role of university personnel” with much greater clarity. As on previous occasions, I wish our Front Bench had not been less than wholehearted on this matter and taken a view, which many of us knew nothing about, which apparently has guaranteed academic freedom—so that is all right then. It is not a satisfactory position.

I speak not as a party person but as someone who has spent his entire career in the university world. I was a university teacher—I am a university teacher now in my retirement in King’s College—and I was a vice-chancellor for seven years. Universities are a unique marketplace for ideas—that is their ultimate purpose. They may additionally assist with creating wealth and giving local employment but their main function is to be uninhibitedly and courageously involved in ideas, particularly language. If we are talking about terms such as “terrorism” or elements which are conducive or similar to terrorism, you need extreme clarity, including the capacity to debate these matters.

I was concerned when we had a helpful meeting the other day that the reasonableness of the Minister was not paralleled by his government colleague, who talked not about terrorism but about pathways to terrorism. It seems that if you produce a concept which is in the mind of terrorists you are automatically creating a pathway. However, pathways cover many things. They can emerge in an unexpected way and can lead nowhere or everywhere. My friend, the noble Lord, Lord Elystan-Morgan, referred to the University of Wales, where he knows I had the pleasure of working with him, and how a pathway, when we were talking about the theme of nationalism, led to one or two misguided people blowing up buildings. That was not a necessary consequence of that debate. The effect of opening up the theme of what nationalism was—its different political and cultural expressions and so on—had a civilising effect and nationalism resulted not in bombs but in devolution being debated in this House and on the statute book. Pathway is a dangerous concept. Non-violent extremism has been dismissed as nonsensical by other noble Lords and I need not stress that again.

I wish to make two more points: this duty is unworkable and it is wrong. It is unworkable because I can say that as a vice-chancellor—perhaps other vice-chancellors will disagree—it would not have been possible to carry out this role, this statutory duty: we would be obliged by the nature of our professional role not to apply it. As I say, the purpose is for universities to be free to debate ideas. You would be forced to discuss with student societies who they were going to invite, whether alternative views would be presented and what the general tone would be. You would, in effect, be censoring or monitoring the interchange of ideas in a way which is not compatible with being the head of or a senior figure in a university.

The nature and the force of the statutory duty and the way in which it would be exercised are still not clear in the Bill. It appears to have satisfied our Front Bench but it has not satisfied me or people such as my noble friends who have first-hand experience of working in universities. So, first, it is completely unworkable. It would destroy the very essence of collegial collaboration within a university institution and the element of trust which is absolutely essential to the way in which a university operates.

Finally, this duty is wrong. It is trying to undermine precious, unique and special institutions in this country which are honoured all over the world. These institutions do different things: they are impressive for their intellectual standards, which are widely acknowledged and admired, and for their internationalism. The whole point of being in a university is that everyone is equal there; you do not identify or marginalise any particular minority groups. To even suggest that universities should do anything other than what they do and act as a kind of thought police is deeply damaging to something which has been a pride of the history of this country for many centuries.

I hope that the Minister, with the tolerance, rationality and courtesy that he has shown, will feel able to go further and pursue the path suggested by other noble Lords of removing universities from the Bill.

[Baroness Deech (CB)]

My Lords, I declare an interest as the former Independent Adjudicator for Higher Education, in which role I received complaints from students from every university. So I have that experience in addition to having spent decades at Oxford.

I take the unusual position that whether or not these amendments are passed it will make absolutely no difference to the law. They are tautologous. They say that one has to have regard to freedom of speech within the law. However, if the Bill is passed, freedom of speech within the law will mean that the law in this Bill is incorporated, so it will not take you any further.

Sadly, over the past 30 years academic freedom, which is one thing, and freedom of speech in the universities, which is another, have been savaged. I wish I could share the rosy view of academic freedom put forward by the noble Lords, Lord Morgan and Lord Elystan-Morgan. Some noble Lords may recall that in 1988 all university statutes were arbitrarily removed and new ones imposed without consent which removed academic tenure. The House must know that the selection of students is controlled, one way and another, by the state to the nth degree, as is the direction of research. I do not have the time to go into it but academic freedom has been greatly undermined.

As to freedom of speech, again, sadly, there are umpteen laws that reduce it in the university. I do not have time to go into all of them but they include protection against harassment and racial and religious hatred. Can your Lordships imagine what would happen if someone turned up as a lecturer or as a visitor to say that one race was inferior to another? They would not get to the end of their lecture, I can assure you. There are some things that ought not to be said—and, indeed, are not said—but there is no absolute freedom of speech. The Equality Act 2010 put special duties on universities to promote racial harmony between different groups on campus and the Terrorism Acts of 2000 and 2006 likewise curbed freedom of speech. I am sorry to shatter the illusion but it is not there any more, not as we would wish it to be. To say that in promoting the objects of this Act, as it will be, the universities will have to have regard to freedom of speech within the law simply means that they will have to have regard, whatever that means, to freedom of speech as already curtailed as I have described, plus as it will be curtailed, for good or ill, by this Act. So I do not mind whether or not the amendments are accepted because they do not mean much legally.

I remind the House that it is not in the academic arena where the trouble, if any, arises; it is with the visiting speakers and the societies. Under the Education Act 1986 universities already have onerous duties in regard to risk assessment, stopping speeches if necessary and checking on visiting speakers. They have codes of practice on this which, I have to say, are very often ignored. There is nothing new about this. They chafe, but it has been the law for 20 or 30 years that there have to be checks on visiting speakers.

However, this has not stopped some speakers from being howled down. Again, I have not the time to give examples, but I can assure noble Lords that visiting ambassadors sometimes get howled down; that other speakers get hassled and jostled; that there are meetings where cries go up of “Kill the Jews” and that sort of thing, when the Middle East is debated. It is not a happy situation. I wish it were better, but it is not. Basically, I am saying that this will not make much difference. We should also recall that some 30% of those convicted of offence—

[Lord Butler of Brockwell (CB)]

I am very grateful to the noble Baroness for giving way. Will she accept that this Bill does make a difference, even with these provisions in it? Universities will now be under a legal obligation to follow directions imposed by the Government, which goes beyond the legislation to which she has already referred.

[Baroness Deech]

It is the amendments which I do not think will make any difference. Whether the noble Lord’s dire predictions will be the case remains to be seen but I am very worried about the situation that already exists with interference. I have a list—again I will not trouble your Lordships with it. There are lists of convicted terrorists who sadly went through our universities—the underpants bomber on the plane, the man who drove his car into Glasgow airport, and so on. I only wish it were as some noble Lords remember in their youth, but it is not. Because of the umpteen laws that we already have about circumscribing freedom of speech, whether or not we pass these amendments will not, in my view, make any difference, sadly.

[Lord Deben (Con)]

My Lords, we ought to realise that we are talking not just about the problems of terrorism but about something which has been much wider than that. I am very concerned about the situation in which we now find ourselves.

It is 55 years since my right honourable friend Kenneth Clarke and I debated with Sir Oswald Mosley in front of 2,000 students at Cambridge University. There were many who wanted him banned, but we said that if there was to be a new generation of students who understood the threat of fascism, they had to hear the arguments and we had to respond to them. We had the response because the Jewish Society went to huge trouble to give us all the evidence from Sir Oswald Mosley’s activities before the war. Noble Lords may remember that that would have been a time when we were a generation who knew nothing of this, but I venture to say that a whole group of people went away from university knowing how to argue the case and understanding what this very emollient, brilliant speaker was really like. It was from that moment that I became an even more enthusiastic supporter of the concept of the freedom of speech as a mechanism against extremism.

I want to say to my noble friend that we are at this moment in a very dangerous position. A close friend of mine, an Anglican priest—a man whom I would vouch for in any circumstances—has just been sacked as the episcopal chaplain to Yale because he dared to write a letter in response to others in the New York Times. It was a very moderate and reasonable letter in which he talked about the activities in Gaza of Prime Minister Netanyahu. No one in this House would have thought that an unsuitable letter to write, but he was sacked.

In the past few years, there have been many occasions in universities when people who hold unpopular views have been unplatformed in one way or another—for example, people who want to argue the case against abortion. I think that is an argument that it is proper to have on whatever side you stand. However, there are universities where it is almost impossible to have that debate.

One of the problems that we are faced with is that my noble friend has a real difficulty. We have a terrorist threat which is greater than we have had certainly in our lifetimes. It is a threat which is particularly difficult because it is associated not only in the popular mind but, because of certain facts, with a section of the community. Therefore, those of us who seek racial integration have to be extremely careful in the way in which we handle this threat, but we also have to recognise that it is a threat. It is not acceptable just to say, “Well, you know, we will just have to put up with it”. That is not where we are today.

I understand my noble friend’s problem, but I remind him that down the ages the threat of terrorism has been used to restrict the freedoms which the terrorists wish to remove. That is the fundamental problem. I worry immediately when we ask universities to inform upon and to investigate, and to assess what is a proper debate and what is not a proper debate, because I happen to believe that there are no improper debates in universities. There are improper actions as a result of debates; there are improper actions during debates; but to put a case and to argue the case is an essential part of university education.

I thank my noble friend for his amendment. If he had not tabled this amendment, I think I would have found myself very hard put to support any of this part of the Bill. However, I hope that he will have listened carefully to what others have said. I do not want universities to be able to use this as an excuse for interfering not only in these subjects but in others. That is my worry. It is not the worry as put forward in the excellent speech of the introducer of the lead amendment. My worry is that, by analogy, people will say, “Just as we have to think about terrorism in this way, so we have to think about this or that unpopular view”, whether it is an issue of left or right, an issue of morality or an issue of politics. I hope that my noble friend will give me an assurance that, if he feels that he cannot say that his amendment covers that, he will go away and think again to ensure that the narrowness which he hoped to apply to this matter is sufficiently safeguarded. I do not want to have a world in which today’s version of those students cannot have that debate with today’s Sir Oswald Mosley—with today’s fascists, communists, or extremists of any kind. If that were true, we would have sold out on a central British value.

Queen’s Speech

Baroness Deech Excerpts

Monday 9th June 2014 Lords Chamber

[Baroness Deech (CB)]

My Lords, I am concerned at how some of the legislation promised in the gracious Speech, particularly the Serious Crime Bill and the held-over Criminal Justice and Courts Bill, once enacted, will ever be enforced. In the final months of the previous Session, many of our debates were taken up with concerns over the cutting of legal aid, the reduction of fees paid to advocates and litigators, and the obstacles being placed in the way of ordinary consumers trying to access justice and legal advice. I have no doubt that the concerns are well founded, and the recent delays to serious fraud cases demonstrate the damage that is being caused to the legal system and to the expectations of citizens that crime will be properly prosecuted and defended. Our troubles are by no means over; indeed, they are set to increase as more young law students realise that their pathway to a decent career is closed and as more skilled advocates leave the independent criminal bar and practise elsewhere, to the detriment of the diversity and talent of our judiciary and barristers.

However, the intricacies of those arguments are not my main concern today as I speak. I am here to offer a solution, at least for that part of the law that I know best from my teaching days—the division of assets on divorce. A major reason why legal aid has proved expensive is that the law about financial provision on divorce is so uncertain, so tailor-made, so different in outcome judge by judge and so emotionally charged. Therefore husbands and wives spend more than they or the state can afford on just getting to some principles along which they may divide their assets on divorce. One of the worst effects of the cuts in legal aid is that divorcing couples who formerly qualified for legal aid and therefore could be legally represented are no longer able to be so. They appear in court at the worst moment in their lives representing themselves. They do not know what a fair outcome might be, they are overwrought in any case and they need a barrier—a barrister—between themselves and their former spouse while they negotiate life-changing settlements affecting them and their children. But they have no one, and the judges, to their annoyance, and with consequent delays, are having to conduct the litigation for them. The judiciary has complained about this. It is not its job to represent the clients or, in an even worse scenario, to try to achieve fair play when one of the couple has a lawyer and the other does not. The media are replete with accounts of couples who spend more than half their assets on fighting about their ownership after divorce.

My Bill, the Divorce (Financial Provision) Bill, will not only help mitigate the results of the removal of legal aid by giving certainty and greatly reducing the need for legal representation in court but assist judges by giving them an easier role. Above all, it will introduce broad-brush fairness into a system which has not been discussed in Parliament for more than 30 years. In a nutshell, it will make prenuptial agreements about financial provision in the event of divorce binding, with very few qualifications, and it will introduce a new simple regime for the division of matrimonial assets on divorce. It is unashamedly modelled on the law appertaining in New Zealand, Scotland, many US states and some European ones. It synthesises the recommendations made over many years by the Centre for Social Justice, the Law Commission and the Government themselves. My Bill provides that on divorce the post-marital assets should be divided equally: that is, everything acquired by the couple after their marriage is to be divided, but not any inheritance or gift or anything owned before marriage. Thus, the model who marries a rock star for a few years will share only in what he earned after it, unless this is dealt with by a prenup, while the long-married couple who started with nothing and worked together to reach a reasonable lifestyle will share practically everything.

The division of assets on divorce is a delicate issue on which opinion is divided. Society has different views about the roles of men and women, and I quite understand that political parties are reluctant to take it up. It is therefore very suitable for a Private Member’s Bill. If we cannot afford to extend legal aid to family and criminal litigation, as in the past, then the obvious answer is to reform the law in a way that obviates the need for expense, or at least reduces it.

Queen’s Speech

Baroness Deech Excerpts

Thursday 9th May 2013 Lords Chamber

[Baroness Deech]

My Lords, we heard an interesting legislative programme from Her Majesty the Queen, with particular implications for our constitution and legal system. The noble Lord, Lord McNally, emphasised the Government’s focus on the criminal law, but all legislation of the past and the laws to come depend on enforceability and the rule of law. They in turn depend on fair access to the courts and to legal advice from independent lawyers. The fascinating speech by the noble Lord, Lord Phillips, has shown just how necessary that is. For decades, British citizens have had the advantage of assistance through legal aid and the pro bono services of lawyers, volunteers and citizens advice bureaux. The new proposals, however, will damage our system, the best justice system in the world and one that attracts billions from foreign clients.

I declare an interest as chairman of the Bar Standards Board, which regulates barristers, but I must clarify that I am not speaking for the professional interests or the income of barristers but in support of a legal objective that the previous Government set up for the legal profession and its regulation in the Legal Services Act 2007, to which I will revert. The regulation that my board does is carried out entirely in the public interest.

Nevertheless, I support what the noble Lord, Lord Thomas, said not long ago, although I come to it from a different perspective. It is self-evident that there cannot be a bottomless fund for legal aid but the wrong impression has been given in the media in relation to the sums and how they are allocated. The large sums said to be spent on legal representation do not take into account the overheads of the self-employed or that the fees may represent several years work. Only a very small number of cases dealing with the most serious crimes—terrorism and the like—command large resources. Many young barristers practising publicly funded criminal law are earning around £25,000 a year or less. Not only will they abandon it, depriving the courts of good judges in future years, but the way in which the legal system is now being treated is putting an end to the goal of social mobility and diversity in the profession that the Government alleged was so important.

I would feel hypocritical going to visit schools, or encouraging other lawyers to go to schools, to encourage children from underprivileged backgrounds, where no one in the family has ever qualified as a lawyer, to take up criminal law or family law, which is also largely publicly funded. It is misleading to draw a picture of possibilities when not only will they incur debt at university but will find after qualification that there are no jobs open to them at the starting line of the criminal Bar, in the magistrates’ courts and so on, where formerly a newly qualified young barrister could expect to earn a modest amount.

In addition to the cuts in legal aid already brought in under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the Ministry of Justice is now consulting, as we have heard, on making savings of £220 million a year by 2018 by cutting prices. This it can do without the opportunity to debate the impact in this House. The ministry is proposing competition in the provision of criminal representation. Where no competition is proposed for now—that is, in Crown Court advocacy and very high-cost cases—a new fee framework is proposed that will encourage early pleas of guilty, for the longer a case lasts the less the daily fee will be. There must be a case to fear undue pressure to plead guilty caused by the new fee structure proposed. Solicitor representation fees in family cases will be reduced by 10%.

Price-competitive tendering may sound reasonable in criminal representation but it will not be genuine under the proposals, as the market is not to be left to itself: a new price cap will be set at 17.5% below current fees. The new system seems to favour tendering only by new commercial outfits and large firms, as the noble Lord, Lord Thomas, said, leaving high street solicitors to go to the wall. The client will not be able to choose who represents them and the relationship built up by advocates and their clients over the years will count for naught. There will be a two-tier system: a choice of good advocates for those who pay themselves and take what comes for those who need to be funded.

What will be the effect? One must put to one side the picture drawn by the media of money being wasted on representing undeserving criminals. This is about everyone who is ever in court, rightly or wrongly, and all are innocent until proven guilty. Legal aid is about ensuring that right is done. If anyone is familiar with “The Winslow Boy”, they will know graphically the emotional stigma of the wrongly made accusation and how one must strive to do justice, even for the most unappealing—a very topical issue. Parents need legal advice for their children. All of us need to be able to challenge the state when officials may have overstepped the mark. The person accused of wrongdoing ought to be able to take advice from a lawyer he knows and trusts, and who can act expeditiously to prove his innocence. Cuts in family law will bear especially hard on women, who are more likely to be carers of children and have less knowledge of the law and details of ownership of the family assets. Mediation is not the answer. If it were, we would not need a legal system at all.

Already, litigants excluded from legal aid have to resort to self-representation. While the Bar Council has, one might say contrary to its own interests, put out a booklet to help self-representing litigants, judges will have their time wasted, the court system will slow down, and more money will be lost in the long run. Very recently, the damage being caused was commented on by Lord Justice Ward, who said in a judgment that,

“the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person ... Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved … saving expenditure in one public department in this instance simply increases it in the courts … justice will be ill served by this emasculation of legal aid”.

Cutting legal aid to save costs carries the risk of becoming a classic example of false economy, and there will be no parity of justice when one party is represented and the other is not. The Government must be close to finding themselves in breach of Article 6 of the European Convention on Human Rights, which says that everyone facing a criminal charge is entitled to a fair and public hearing and has the minimum rights of,

“adequate time and facilities for the preparation of his defence; to defend himself in person or through legal assistance of his own choosing”.

The cuts in aid and in fees are such as to endanger the future of the profession. They also offend against each and every one of the objectives of Section 1 of the Legal Services Act 2007, which include,

“improving access to justice … protecting the interests of consumers … encouraging an independent, strong, diverse and effective legal profession”,

and supporting “the rule of law”.

Given that there will be no assistance for most divorcees, it is urgent that the law on financial provision on divorce be reformed to make it user-friendly. The sums involved amount to £220 million a year. One could make savings by reforming the law of financial provision on divorce. It is now so complicated, uncertain and unfair that it is almost impossible to predict the outcome of litigation about dividing family assets on divorce. There are cases where almost as much is spent on fighting as the assets themselves are worth. There have even been cases where the entire assets are spent on costs. That is because the law is unjust and based on old-fashioned principles without regard to today’s high breakdown rates, women’s equality and independent earning power. The Law Commission has recently put forward for consideration proposals to replace the current unsatisfactory statutory provisions on financial provision in divorce with new ones that might rely on a formulaic calculation. While this is a blunt instrument, there is much to be said for having a law that enables separating parties to calculate for themselves how their assets should be divided. An alternative, which I am minded to put forward for your Lordships’ consideration in a Private Member’s Bill, is to replace the English law on financial provision on divorce with the Scots law. That law by and large provides for the equal sharing of family property and limited ongoing financial support. It works well in Scotland, there are few reported cases and there is no reason why it should not be imported here.

Of course, agreements between spouses and cohabitants about sharing property on separation should be respected and not subjected to dissection by the courts. In other words, we should recognise pre-nups and do away with expensive litigation over their validity and the substance of the issues. Our justice system need not be as costly as it is if, in family law at least, the parties are treated as adults and given clear guidelines about the division of their assets.

Finally, one should get the extent of legal aid savings into perspective. Great damage is about to be done to the court system, litigants, the legal profession, diversity and the rule of law to effect a saving of £220 million a year. We have just spent £10 billion on the Olympics, with so far not much legacy. The Government have recently committed to spending £60 million on converting the Olympic stadium into a football ground for West Ham. We have lost our moral compass if we think that it is preferable to spend on the Olympic stadium rather than on legal aid, to give tax relief on wind turbines rather than spend sums on access to justice, and when we send overseas aid to Argentina rather than supporting the rule of law at home. The requisite savings could be made if alleged criminals’ assets were unfrozen and used to fund their legal representation as the litigation unfolds. I am sure that everyone in this House has a taxpayer-funded project in mind that is unnecessary and less significant than cutting access to justice. If the legal system and the citizen’s ability to use it are damaged, then the fine words of a new legislative programme will never be any more than that.

Crime and Courts Bill [HL]

Baroness Deech Excerpts

Wednesday 12th December 2012 Lords Chamber

Moved by

[Baroness Deech]

122AA: Clause 33, page 33, line 16, at end insert—
“( ) section (Appeals relating to regulation of the Bar);”

Criminal Records Bureau

Baroness Deech Excerpts

Wednesday 21st March 2012 Lords Chamber

[Lord Henley]

My Lords, my noble friend is right to draw attention to the importance of trust. He is also right to draw attention to the very high number of certificates that have been issued. This is a matter that we have been addressing in the course of the Protection of Freedoms Bill. I refer my noble friend to the impact assessment of last year on that Bill, which estimated that there would be a reduction of some 50 per cent in the number of such certificates being issued, dropping from about 3.7 million a year to something like 1.7 million. I think that is a step in the right direction.

[Baroness Deech]

Will the Minister be good enough to give the House his opinion of the effect that the following scenario will have on the outreach work carried out by this House? I invite a small group of A-level students to visit this House, as I have done before, to sit in the Chamber, to have tea and to take a small tour, and the teacher writes asking me please to confirm that I have had a CRB check.

[Lord Henley]

Obviously, the noble Baroness is a most tremendous risk to the public and to children and I hope that she will consider these matters very carefully. No—that is what we want to address and it is the point of some of the changes we are making as a result of the Protection of Freedoms Bill. It is why we will keep these matters under review and it is why my right honourable friend the Home Secretary launched her initial review into these matters last year. I go back to the supplementary question of my noble friend Lord Vinson when he talked about trust being important. We think it is vital that people take a common-sense approach in these matters.

Universities: Anti-Semitism

Baroness Deech Excerpts

Tuesday 6th March 2012 Lords Chamber

Asked by

[Baroness Deech]

To ask Her Majesty’s Government whether they will clarify the laws applying to universities and student unions when an anti-Semitic incident has taken place on campus.

[Baroness Verma]

My Lords, the law is clear: there is absolutely no place in our universities for racism, including anti-Semitism. As independent bodies, universities and student unions are responsible for undertaking their own legal obligations. They have the tools to tackle anti-Semitism. They have access to a very strong legislative framework and practical guidance to provide protection and deal with any anti-Semitic incident. We expect universities to act swiftly to investigate and address any anti-Semitic incidents reported to them. We have seen a fall in the number of incidents in higher education, from 44 in 2010 to 27 in 2011, according the Community Security Trust, but I accept that that is still too many and we must not be complacent in our resolve.

[Baroness Deech]

I thank the Minister for her Answer. However, I wonder if she is aware of just how often these anti-Semitic incidents occur, reported or not. Sometimes it is other students’ Nazi-themed activities, coupled with assaults, and sometimes it is hate speakers who are invited on to campuses which indeed they target. Recent events include speakers who blame 9/11 on Israel or who equate all Jews with Nazis, and worse. Universities tend to take refuge behind the doctrine of freedom of speech and do very little. They do not seem to realise the limits of freedom of speech as constrained by recent legislation largely from the previous Labour Government. The Public Order Act—

[Noble Lords]

Question!

[Baroness Deech]

Will the Minister ensure that universities bring up to date their codes of practice on visiting speakers to take account of legislation and make sure that they apply to student unions as well?

[Baroness Verma]

My Lords, the Education (No. 2) Act 1986 requires university governing bodies to ensure as far as possible and practicable that freedom of speech within the law is secured for members, students, employees and visiting speakers. Institutions have to issue and keep updated a code of practice on the organisation of meetings and other activities taking place on their premises. These codes often include the right to refuse permission for an event. However, universities have to balance freedom of speech with their legal obligations, for instance in the Equality Act 2010. Only institutions themselves can make decisions about speakers. No other body could make judgments about each and every case. They are subject to the courts in this, as with other laws. The 1986 Act does not apply directly to student unions but indirectly through the universities’ codes of practice.

Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011

Baroness Deech Excerpts

Thursday 15th December 2011 Lords Chamber

[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.

[Baroness Deech]

Given the protection for religious freedom that the noble Lord, Lord Pannick, has just described, why did the Equality Act and the Human Rights Act not permit a Jewish school to continue its religious freedom in maintaining the definition of Judaism that had prevailed in the Jewish religion for thousands of years?

[Lord Pannick]

As the noble Baroness knows very well, that case raised completely different issues. No specific provision in the Equality Act addressed that question. I have to declare an interest. As the noble Baroness well knows, I was the counsel who acted for the JFS, the Jewish Free School, in that litigation, and the problem was that there was no specific provision. By contrast, the Equality Act addresses this very question and it does so in the clearest possible terms.

Equality Act 2010 (Specific Duties) Regulations 2011

Baroness Deech Excerpts

Tuesday 6th September 2011 Lords Chamber

[Baroness Verma]

My Lords, I will deal with the points raised by my noble friend Lord Waddington and the noble Lord, Lord Low, separately, but I will begin by dealing with my noble friend’s amendment. I recognise that he speaks with passion and that he has been consistent in his arguments. I stand here as somebody who may not be absolutely in tune with everything on the subject of equality, but I do know the outcomes of discrimination and inequality. I think, therefore, that what we are doing here today is helping to address those issues. While there may be Members among my noble friends behind me who think that we have gone too far, I say to them: ask the people who do not have access to those opportunities and you may get responses that are difficult to take if you have never had to undergo such discrimination yourselves.

My noble friend has made clear his concerns about the issue of religious freedom.

[Baroness Deech]

In her description of access, has the Minister taken into account the fact that the Government’s own cuts in legal aid will prevent people with those protected characteristics from enforcing their rights? They represent a savage onslaught on protected characteristics and access to justice.

[Baroness Verma]

My Lords, I will continue with my notes. My noble friend has made clear his concerns about the issue of religious freedom and its relationship with equality law. The Government are committed to striking a fair balance between religious freedom of expression and the rights of people not to be discriminated against whether at work or at school and when buying goods or using services. A fair balance is what the Equality Act 2010, and the legislation it replaced, achieves. I know that my noble friends and others would agree with that. The Act provides protection from discrimination because of religion or belief. It is drafted carefully to ensure that people are protected from being discriminated against but different treatment is permitted where this is justified—for example, because it is necessary to protect religious freedom of expression.

In addition, in service delivery, non-commercial religious organisations are permitted to restrict the provision of services because of religion or belief, or because of sexual orientation in some circumstances, but discrimination because of sexual orientation is not permitted when a religious organisation is providing services on behalf of a public authority. Where a policy or practice has an adverse effect on people of a particular religion, it is permitted only where it can be objectively justified. As you can see, the legislation has been framed carefully to ensure that religious organisations can act in line with their doctrine while ensuring that people are protected from being subjected to discrimination and harassment because of their sex or sexual orientation, for example. However, for commercial businesses the position is different. In practice, this means that someone who runs a business or provides a service to the public can of course hold and express their religious beliefs, whatever those may be. However, the right to manifest religion or belief may properly be limited in certain circumstances, including where it interferes with the rights of others. The Government are clear that these measures strike a fair balance between religious freedom of expression and the rights of people not to be discriminated against. Thus the Equality Act 2010 delivers a level playing field rather than a hierarchy of rights.

The equality duty covers the protected characteristic of religion or belief. This is only right. Had it not been included, there would have been a hierarchy of discrimination whereby discrimination and disadvantage suffered because of religious beliefs would effectively have been deemed less important than discrimination and disadvantage because of gender or race, for example. Indeed, it would have been more complex than that, as Jews and Sikhs would have been covered—as they are covered by the race aspect of the duty—but Christians, Muslims and Humanists would not.

Indeed, the equality duty now covers all the protected characteristics and provides the legal framework for considering how decisions affect all groups and, where necessary, how different needs can be balanced. The specific duties which we are discussing today will help to ensure that public bodies do that balancing correctly.