HC Deb 02 July 1998 vol 315 cc563-72

'—(1) If a court's determination of any question arising under this Act concerns an issue of discrimination, it must have particular regard to the guarantee in Article 14 of the Convention that the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground. (2)In this section, "court" includes a tribunal.'. — [Mr.Maclennan.]

Brought up, and read the First time.

Mr. Robert Maclennan (Caithness, Sutherland and Easter Ross)

I beg to move, That the clause be read a Second time.

The Bill does not seek to introduce new human rights into our domestic law. It seeks merely to bring home the rights guaranteed by the European convention. New clause 10 is closely modelled on new clause 13, and on the earlier new clause tabled by the Government at the behest of the Churches, which were concerned about possible interpretations of convention rights. It is intended to help to guide our courts in their interpretation of article 14. It may be asked whether that is necessary, given considerable jurisprudence over the years on article 14, but it has not been conclusively determined whether that article should be interpreted as setting out rights that are exhaustively covered by the phrase "such as", or whether that phrase is merely a preliminary—I submit that that was what was intended—to an illustration of the rights protected by the convention.

The point is limited in some respects. By passing my new clause, the Committee would not widen the ambit of protection to categories of people who are not specifically mentioned in article 14 of the convention for such matters as, for example, employment, which is not covered. Article 14 is, in a sense, a parasitic prohibition against discrimination, in that it derives from other protected fundamental rights and freedoms. A number of people are concerned that it would be possible to interpret the article restrictively and to treat categories of persons as exhaustive.

That would be undesirable, and it would be out of line with much jurisprudence. It would also be out of line with how courts in Ireland have interpreted comparable provisions in the Irish constitution, in which grounds of discrimination are enumerated. It would be out of line with the Canadian charter of rights and freedoms. In the Egan case in 1992, Canada's superior courts decided that such rights should be interpreted as not exclusively determined by lists of rights.

The areas of potential discrimination about which some anxiety might exist include disability, age and sexual orientation. As to the policy of the Government and western European countries generally, it is entirely clear that members of the European Union at least are determined that we should take action to combat discrimination based on disability, age and sexual orientation. It is so set out in article 6A of the Amsterdam treaty, to which this Government are party. I hope that my proposal is entirely in line with the Government's thinking about how best to approach the implementation of that treaty obligation. The new clause seems a straightforward way to put beyond doubt the convention's intention to ensure that the protections of our citizens—their fundamental rights and freedoms—are not limited by reference to some status other than those mentioned in article 14.

6.30 pm

The matter has come before the European Court of Human Rights, but not conclusively. For example, the Dudgeon case dealt with sexual orientation and the law in Northern Ireland. The matter was resolved by reference not to the status of the individual, but to the article 8 rights on respect for private and family life. Perhaps the matter has been taken rather further in the Sutherland case more recently, in which it could be argued that the court leant more clearly towards regarding homosexuality as another status protected against discrimination.

The new clause is entirely in line with the policy of our Government and our international treaty obligations. Its purpose is to spell out the matter beyond doubt.

Mr. Clappison

I listened carefully to the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) putting forward his arguments for the new clause. I pay tribute to him for his characteristic care and courtesy in advancing his arguments.

I am somewhat enlightened now about the new clause, but, when I first considered it, it sprang to mind that it expressed a perfectly worthy sentiment, which might have unintended consequences in practice. I agree with the right hon. Gentleman, as I am sure many others, if not all hon. Members, would do, that individuals have access to rights free from discrimination. I know that the right hon. Gentleman did not serve on the Committee on the Crime and Disorder Bill, where we moved similar amendments to protect individuals from discrimination under some of its new provisions. I am sure that the Under-Secretary will remember that. I cannot remember whether he responded at the time, but there was common ground in the Committee on that issue, and the Government were keen to reassure us.

I have some doubts about how the new clause would work in practice. I suspect that the right hon. Gentleman is trying to deal with the problem of interpretation. When I read article 14 in conjunction with the right hon. Gentleman's arguments, I thought that the wording of the article was clear and did not need further elaboration. It is clearly set out that the rights and freedoms set forth in this Convention shall be secured without discrimination". The right hon. Gentleman gave examples of people who might be discriminated against and, clearly, he has gone into far more detailed legal research than I have had the opportunity to do. The wording of the article at face value and first glance suggests that it is not intended to be an exhaustive list. The characteristics that might give rise to discrimination, such as sex, race, colour, language, religion, political or other opinion, and national or social origin, are set out in the article as examples of the sort of characteristics that should not be discriminated against or lead to a loss of enjoyment of rights under the convention. If I may have my penn'orth on the interpretation of the article, I would think that disability, age and sexual orientation should not give rise to discrimination, but sit alongside the other matters spelt out in the article. They fall broadly into the same category and certainly should not give rise to somebody losing any enjoyment of their rights.

I am not sure whether that agreement with the right hon. Gentleman leads me to accept the need for the new clause to be incorporated in the Bill. He described the right in article 14 as a parasitic right. I was not going to describe the new clause in that way, but it is his description. He is correct that the right set out in article 14 is different in its nature from many of the other rights contained in the convention that are free-standing rights—the rights to freedom of expression, freedom of religion, to a fair trial and to family life. They are all rights in themselves. Article 14 deals with the access to those rights across the board, but is not a free-standing right in itself.

Mr. Maclennan

indicated assent.

Mr. Clappison

I am grateful to the right hon. Gentleman for nodding.

The right hon. Gentleman's argument continued that new clause 10 was similar in nature to new clause 13, which we have just debated, and new clause 9, which we debated on an earlier occasion, which invite the courts to pay particular regard to the right to freedom of religion, thought and conscience in the case of new clause 9 and the right to freedom of expression in the case of new clause 13.

I would submit that there is a difference because new clause 10 does not relate to a free-standing right. For that reason, the two new clauses are perfectly workable and should not give rise to problems for the courts. However, I wonder whether this new clause might give rise to problems for the courts, because it is not a free-standing right, but a right of enjoyment that applies across the board.

As I have already said, the words of article 14 are clear enough in themselves. I wonder how a court would try to apply new clause 10. Indeed, I wonder about the type of case that might arise in practice. So, although I am perfectly happy with the sentiments behind the new clause, I should be happier if the right hon. Gentleman could give us more practical examples of how it might operate in practice.

I am concerned that new clause 10 would make it difficult for the courts to give effect to the convention. As I have said, the courts are already enjoined to give people access without discrimination to the rights under article 14, but how would the new clause work in practice and how would the courts approach it if, in the enjoyment of any right, the issue of discrimination arose? Would not the matter be weighted in favour of the applicant and would it not be difficult for the courts to give effect to such a measure?

The right hon. Gentleman has clearly done some research into the cases. He described the Dudgeon case from Northern Ireland, which he said was resolved by reference to rights rather than the status of the individual. It is always slightly dangerous to venture an opinion on a case without knowing all the facts, but, on the right hon. Gentleman's brief description of it, I was rather inclined to agree with the judgment of the court. The court got it right by resolving that by reference to rights rather than the status of the individual. I suspect that new clause 10 may not be needed and that it might have some unintended consequences. Moreover, it would be difficult for the courts to give effect to it in practice.

The Minister appears eager to respond, and I am interested in hearing what he has to say. Earlier, my hon. Friend the Member for Beaconsfield (Mr. Grieve) wisely advised us against tinkering with the Bill. New clause 10 may, although with the best of intentions, be a piece of such tinkering, which we might come to regret. I would not go as far as the Minister did in replying to the previous debate, when he described this as a splendid piece of legislation without any blot or blemish and a tribute to the draftsmanship of the Lord Chancellor—the Lord Chancellor is certainly proud of the Bill as a piece of work—but if we were to accept the new clause, we would be at risk of tinkering. I look forward to hearing the Minister's response because I suspect that he will tell us that, although worthy, the new clause is not needed.

Mr. Mike O'Brien

The hon. Member for Hertsmere (Mr. Clappison) is right, but the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) has raised a series of important points, and I hope that I shall be able to deal with some of them.

New clause 10 requires a court or tribunal, when determining any question arising under the Human Rights Act that concerns an issue of discrimination, to have particular regard to article 14—that the rights and freedoms set forth in the convention shall be secured without discrimination on any ground.

I am ready to join the right hon. Gentleman in emphasising the importance of article 14 and the position that it occupies in the convention, and to express the Government's hope and confidence that it will be given full weight in our courts in the same way as the other articles in the convention. I acknowledge, too, that the words "on any ground" are important. Article 14 contains a list of grounds on which discrimination in securing other convention rights is prohibited, but it is important not to overlook the crucial words "or other status" which appear at the end. The list is not an exhaustive one, and should not be treated as such.

I share the concerns of the hon. Member for Hertsmere that we may be at risk of tinkering with the Bill in a way that might have some unintended consequences. I cannot advise the Committee to accept the new clause. My reason, in a nutshell, is that the new clause is either empty of substance because it merely states the obvious, or it represents an attempt to gloss the convention rights, however slightly, in a way that we have so far avoided doing in our proceedings. We have been careful to avoid doing so, particularly in the clauses that have been added to the Bill in recent months.

There is no disguising the fact that article 14 and the way in which it has been applied are not regarded as fully satisfactory by a number of commentators who have a particular interest in, for example, race equality issues. Its most obvious limitation in their eyes is that it is not a free-standing anti-discrimination provision, but, as the hon. Gentleman said, is parasitic. I do not like that phrase, but essentially it is tied to the other convention rights.

It is no secret that discussions are under way in Strasbourg on the possibility of a new protocol to the convention to introduce a free-standing anti-discrimination provision. That is the right way of dealing with that question—if, indeed, it needs to be dealt with.

Mr. Clappison

I am grateful to the Minister for agreeing with my description of the provision as a parasitic right which would affect other free-standing rights. Does he share my concern that, given that it would affect all the other free-standing rights in the convention, it would create an incentive for individuals who are seeking to take advantage of their alleged entitlement to those rights to plead discrimination, and that we would see a welter of cases involving free-standing rights, in which individuals were pleading discrimination, thus making it difficult for courts to give effect to the convention?

6.45 pm
Mr. O'Brien

We shall have to consider that situation in due course. No doubt those who are considering whether there should be a new free-standing provision will have to consider its effect not only on domestic problems in our courts but on the Strasbourg court and the sorts of cases that are brought before it. Clearly, such issues will need to be discussed and probably the best way is to ensure that the UK delegation, which is playing an active in the Strasbourg deliberations on any protocol, bears in mind the impact that it would have on our courts and on the Strasbourg court in deciding whether a free-standing anti-discrimination provision should be forthcoming. Therefore, we should not prejudge the situation that may develop; in a sense, that is what the new clause does.

Mr. Maclennan

I should be grateful if the debate did not go off at a tangent. The new clause is not intended to pre-empt the discussion about the free-standing rights against discrimination. I am aware of those discussions, and I hope that the Government will be supportive of establishing a free-standing anti-discrimination provision. The new clause is designed simply to ensure that the fundamental rights and freedoms that the convention seeks to safeguard are available not just to the limited number of categories of people who are mentioned in article 14, but to those of other status. I am delighted to hear the Minister say that he regards it as common sense that the categories are not closed by these illustrative examples. I agree. I am simply seeking to put the matter beyond argument and doubt.

Mr. O'Brien

But the new clause essentially puts a gloss on the convention and, throughout the Bill, we have tried not to do that. We have tried to grant access rather than create a new gloss on those convention rights. Even in new clause 13, we were careful about that. Our concern is that, with the best of intentions, new clause 10 would not continue that level of care.

I understand the view that may be expressed that, despite, for example, the Sutherland case, the European Court of Human Rights has been somewhat conservative in its judgments concerning article 14, and perhaps too ready to find in favour of states on the ground that there was objective justification for some action which, on its face, might be considered discriminatory. However, whether or not that is so, it is not something we can influence by an amendment to the Bill. Nor do the Government wish to suggest that, in general, our courts should take a different view on the issue from that taken by the European Court.

The Bill is based firmly on the proposition that it is about access to the convention rights, not their substance, and that our courts must take into account the Strasbourg jurisprudence. We cannot honourably pick and choose which rights should be subject to those propositions and which should be open to more generous treatment from the point of view of applicants to our courts.

New clause 10 is an attempt to go some way down that road. It might be seen as an attempt to gloss the convention, encouraging our courts to interpret article 14 more widely than can be justified by reference to Strasbourg jurisprudence. If it does not do that, I fail to see what it does do.

It has been pointed out that, in many ways, new clause 10 merely tries to do for various minorities what other new clauses that the Committee has accepted do for the Churches and the press. I do not think that the parallel is appropriate. Our provision on the Churches emphasises to the UK courts how the Strasbourg institutions have consistently interpreted article 9 rights. It directs the courts' attention to Strasbourg case law, which is to the effect that a Church body or other association with religious objects is capable of possessing and exercising rights contained in article 9 in its capacity as a representative of its members.

Similarly, the provision on freedom of the press is grounded firmly on Strasbourg case law, which encourages the particular importance of the article 10 right to freedom of expression. Moreover, those changes, as well as being wholly in accord with the principles of the Bill and the convention, address concerns of the Churches and the media that the Bill might worsen their position. That consideration does not apply to article 14.

Our reservations about new clause 10 do not imply any lessening of our commitment to combat discrimination. I do not think that anyone has suggested that. We recognise the importance of judges being able to deal with minority groups in a way in which those groups can have confidence. The Judicial Studies Board carries out extensive training involving members of ethnic minorities, for example, in talking to judges to ensure that discrimination does not occur. We think that that is a better way forward. We do not think that adding glosses to the convention at this stage is appropriate or desirable.

I agree with many of the points raised by the hon. Member for Hertsmere, and I will not repeat them. However, the new clause would do something that we have been trying to avoid. It would be a change in the way that we have handled the Bill which should not be acceptable to the Committee. I accordingly invite the right hon. Member for Caithness, Sutherland and Easter Ross to withdraw his new clause, in the interests of a Bill which is about granting access to the rights that people should have access to in our courts—but for which, at present, they have to go Strasbourg—rather than about changing the substance of those rights.

Mr. Maclennan

The Minister's reply was rather disappointing, on more than one count. First, he sought to distinguish between the Government's approach in respect of the clauses that dealt with the Churches and the press. Those undoubtedly put a gloss on convention rights and how they were to be enforced in this country, to secure a greater clarity where some powerful interests in the land felt that their interests were at risk.

The Churches had loud voices. The people whom I am seeking to protect in new clause 10, which is modelled on the Government's new clause, do not have such loud voices. They are the disabled, the aged and minorities with differences of sexual orientation. They are not powerful interests. Their interests need the clarity that the Government have been eager to bring in for the Churches and the press.

Secondly, the argument is that this is not an attempt to widen the protections for these groups in any way other than already provided for by the European convention. As I made plain in my initial remarks, it is not to provide a new protection against discrimination at work because that is not covered by the convention. It is designed simply to ensure that access to the protections that the Government claim are in their mind is not debarred because the status of those groups is not specifically mentioned in article 14.

I was glad that the Minister said that it was common sense that the categories were not closed. If we could rely entirely on the jurisprudence of the European Court of Human Rights and the European Commission of Human Rights on this matter, I should be happy to accept his invitation to let it go at that. However, in all the cases that have been considered, the matter has not been concluded. Our courts are not assisted by being pointed to the European courts. They will have to make up their own minds if the matter arises.

Mr. Mike O'Brien

The right hon. Gentleman makes my point. He seeks to change the substance of the convention rather than merely clarify things. He is dissatisfied with the way in which the courts proceed and, therefore, seeks to change the substance. He is going beyond anything that we have agreed to do in the Bill so far.

Mr. Maclennan

That is a misinterpretation of what I said. What I am saying is that the courts in Strasbourg have not found it necessary to reach a conclusion on these matters. In several cases, they have decided the issue under another article, although the article 14 rights have been raised. The matter has not been concluded.

The Government claim to be anxious—I do not dispute it—to protect these categories of people against discrimination. As they have subscribed to the Amsterdam treaty provisions, which explicitly mention the appropriateness of European Union member countries offering the protection of our law to those who are disabled or elderly or who might be discriminated against on grounds of sexual orientation, it is perverse not to take this opportunity to put the matter beyond doubt. For that reason, I shall seek to divide the Committee.

Question put, That the clause be read a Second time:—

The Committee divided: Ayes 18, Noes 234.

Division No. 326] [6.57 pm
Allan, Richard Livsey, Richard
Ballard, Jackie Maclennan, Rt Hon Robert
Brand, Dr Peter Öpik, Lembit
Burnett, John Rendel, David
Cable, Dr Vincent Russell, Bob (Colchester)
Chidgey, David Smith, Sir Robert (W Ab'd'ns)
Corbyn, Jeremy Tonge, Dr Jenny
Harris, Dr Evan
Harvey, Nick Tellers for the Ayes:
Hughes, Simon (Southwark N) Mr. Andrew Stunell and
Jones, Nigel (Cheltenham) Mr. David Heath.
Ainger, Nick Clarke, Charles (Norwich S)
Alexander, Douglas Clwyd, Ann
Allen, Graham Coffey, Ms Ann
Anderson, Donald (Swansea E) Coleman, Iain
Anderson, Janet (Rossendale) Connarty, Michael
Armstrong, Ms Hilary Corbett, Robin
Ashton, Joe Cousins, Jim
Atkins, Charlotte Cranston, Ross
Austin, John Crausby, David
Banks, Tony Cummings, John
Battle, John Cunliffe, Lawrence
Beard, Nigel Cunningham, Jim (Cov'try S)
Bennett, Andrew F Dalyell, Tam
Bermingham, Gerald Davey, Valerie (Bristol W)
Berry, Roger Davies, Rt Hon Denzil (Llanelli)
Betts, Clive Davis, Terry (B'ham Hodge H)
Blears, Ms Hazel Dawson, Hilton
Blizzard, Bob Dean, Mrs Janet
Boateng, Paul Dobbin, Jim
Bradley, Peter (The Wrekin) Doran, Frank
Bradshaw, Ben Dowd, Jim
Brinton, Mrs Helen Drew, David
Brown, Rt Hon Nick (Newcastle E) Dunwoody, Mrs Gwyneth
Brown, Russell (Dumfries) Eagle, Angela (Wallasey)
Buck, Ms Karen Eagle, Maria (L'pool Garston)
Burden, Richard Ennis, Jeff
Burgon, Colin Field, Rt Hon Frank
Campbell, Alan (Tynemouth) Fisher, Mark
Campbell, Mrs Anne (C'bridge) Fitzsimons, Lorna
Campbell, Ronnie (Blyth V) Flint, Caroline
Cann, Jamie Flynn, Paul
Casale, Roger Follett, Barbara
Cawsey, Ian Foster, Rt Hon Derek
Chapman, Ben (Wirral S) Foster, Michael Jabez (Hastings)
Chaytor, David Foster, Michael J (Worcester)
Chisholm, Malcolm Gapes, Mike
Clapham, Michael Gibson, Dr Ian
Clark, Dr Lynda (Edinburgh Pentlands) Gilroy, Mrs Linda
Godman, Dr Norman A
Clark, Paul (Gillingham) Goggins, Paul
Gordon, Mrs Eileen Marshall, David (Shettleston)
Griffiths, Jane (Reading E) Martlew, Eric
Griffiths, Nigel (Edinburgh S) Meacher, Rt Hon Michael
Griffiths, Win (Bridgend) Meale, Alan
Grocott, Bruce Merron, Gillian
Grogan, John Milburn, Alan
Hain, Peter Miller, Andrew
Hall, Mike (Weaver Vale) Mitchell, Austin
Hall, Patrick (Bedford) Moffatt, Laura
Hanson, David Moran, Ms Margaret
Heal, Mrs Sylvia Morgan, Rhodri (Cardiff W)
Henderson, Ivan (Harwich) Mullin, Chris
Hepburn, Stephen Murphy, Jim (Eastwood)
Heppell, John O'Brien, Bill (Normanton)
Hewitt, Ms Patricia O'Brien, Mike (N Warks)
Hill, Keith Olner, Bill
Hinchliffe, David Palmer, Dr Nick
Hoey, Kate Pearson, Ian
Hoon, Geoffrey Pendry, Tom
Hope, Phil Pickthall, Colin
Howarth, Alan (Newport E) Pike, Peter L
Howarth, George (Knowsley N) Plaskitt, James
Hoyle, Lindsay Pollard, Kerry
Hughes, Ms Beverley (Stretford) Pope, Greg
Hughes, Kevin (Doncaster N) Powell, Sir Raymond
Hutton, John Prentice, Ms Bridget (Lewisham E)
Iddon, Dr Brian Prentice, Gordon (Pendle)
Illsley, Eric Prosser, Gwyn
Jackson, Ms Glenda (Hampstead) Purchase, Ken
Jackson, Helen (Hillsborough) Quin, Ms Joyce
Jamieson, David Quinn, Lawrie
Jenkins, Brian Rammell, Bill
Johnson, Miss Melanie (Welwyn Hatfield) Rapson, Syd
Reed, Andrew (Loughborough)
Jones, Mrs Fiona (Newark) Reid, Dr John (Hamilton N)
Jones, Ms Jenny (Wolverh'ton SW) Rooker, Jeff
Ross, Ernie (Dundee w)
Jones, Jon Owen (Cardiff C) Roy, Frank
Jones, Dr Lynne (Selly Oak) Ruddock, Ms Joan
Jowell, Ms Tessa Russell, Ms Christine (Chester)
Keeble, Ms Sally Ryan, Ms Joan
Keen, Ann (Brentford & Isleworth) Salter, Martin
Kemp, Fraser Sawford, Phil
Kennedy, Jane (Wavertree) Sedgemore, Brian
Khabra, Piara S Sheerman, Barry
Kilfoyle, Peter Sheldon, Rt Hon Robert
King, Andy (Rugby & Kenilworth) Simpson, Alan (Nottingham S)
King, Ms Oona (Bethnal Green) Skinner, Dennis
Kumar, Dr Ashok Smith, Angela (Basildon)
Ladyman, Dr Stephen Smith, Llew (Blaenau Gwent)
Lawrence, Ms Jackie Southworth, Ms Helen
Laxton, Bob Spellar, John
Lepper, David Squire, Ms Rachel
Leslie, Christopher Stewart, Ian (Eccles)
Lewis, Terry (Worsley) Stinchcombe, Paul
Liddell, Mrs Helen Stoate, Dr Howard
Linton, Martin Strang, Rt Hon Dr Gavin
Livingstone, Ken Stuart, Ms Gisela
Lloyd, Tony (Manchester C) Sutcliffe, Gerry
Lock, David Taylor, Rt Hon Mrs Ann (Dewsbury)
Love, Andrew
McAllion, John Taylor, Ms Dari (Stockton S)
McAvoy, Thomas Taylor, David (NW Leics)
McCabe, Steve Thomas, Gareth R (Harrow W)
McCafferty, Ms Chris Timms, Stephen
McDonagh, Siobhain Touhig, Don
McDonnell, John Truswell, Paul
McFall, John Turner, Dr Desmond (Kemptown)
McGuire, Mrs Anne Turner, Dr George (NW Norfolk)
McKenna, Mrs Rosemary Vis, Dr Rudi
Mackinlay, Andrew Wareing, Robert N
McNulty, Tony White, Brian
MacShane, Denis Whitehead, Dr Alan
Mactaggart, Fiona Wicks, Malcolm
Mallaber, Judy Williams, Rt Hon Alan (Swansea W)
Marsden, Paul (Shrewsbury)
Williams, Alan W (E Carmarthen) Wright, Dr Tony (Cannock)
Wills, Michael
Winnick, David Tellers for the Noes:
Wood, Mike Mr. David Clelland and
Worthington, Tony Mr. Robert Ainsworth.
Wright, Anthony D (Gt Yarmouth)

Question accordingly negatived.

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