Equality Bill [HL]

My Lords, this is the only amendment about which I feel it necessary to express some dissent. It is what I describe as one of those neuralgic amendments. Perhaps I may explain why that is and why I do not propose to do anything about it. Were I to seek to persuade your Lordships to reject it, we would play ping-pong and thus jeopardise the coming into force of the legislation when the most important thing is to get it through. However, I shall explain briefly why I am sad that the intelligence and security services have persuaded the Government that this amendment is necessary. It does not look good if the intelligence and security services appear to be shielding themselves against allegations of violations of human rights which otherwise would be investigated by the new Commission for Equality and Human Rights in its human rights work. Let us take the vexed question of extraordinary rendition. If the commission decided to look generally at that question in relation to the intelligence and security services, it could not do so on the basis of this amendment. It is true, as the Minister has said, that in a case by an alleged victim it could go before the Investigatory Powers Tribunal by way of judicial review. That is important and it alleviates the problem. However, as a matter of good public relations, as I have said, it does not look attractive to have a provision of this kind, especially given all the other national security exceptions that are already in place both in the European Convention on Human Rights, which more than adequately protects national security, and in the equality legislation. Both are littered with national security exceptions. This provision is therefore in effect a kind of belt-and-braces measure that is neither necessary nor desirable. I am sorry that the intelligence and security services themselves do not have the intelligence to see that this kind of provision does not enhance their public image, but of course they are important bodies that must be entirely effective. I do not think that they would have been hampered in any way if the commission could have carried out general inquiries. There is no question of subpoena powers or anything of that kind and they could have protected their sources completely. The provision is unfortunate. We have to be careful about any kind of immunity, even one affecting the intelligence and security services. Perhaps I may give two examples connected with gender, nationality and religion. In 1980-something, a Minister certified that 39 women in the Royal Ulster Constabulary could not have their sex discrimination claims determined in Belfast for reasons of national security. The case went to the Court of Justice in Luxembourg, which said, ““Rubbish””, and the women finally won against the chief constable. The same thing happened in Northern Ireland in a case of religious discrimination—the case of Tinnelly, which went to Strasbourg. Again the European Court stated that we cannot have immunities of that kind because they are disproportionate. Equality claims come first and must be weighed against issues of national security. Those are two examples where certificates signed by Ministers on grounds of national security were set aside by the European courts. The cases do not apply directly to the amendment, because it is not about a claim of right based on discrimination; it is about something much softer—a general inquiry into whether the intelligence and security services acted in a way incompatible with someone’s human rights. Therefore, although the point that I have just made is of only tangential relevance, I make it to demonstrate the danger of overboard immunities even on the vital ground of national security. However, I do not intend to oppose the amendment except in the grumpy way that I have just set out.