Dominic Lawson: What fearful hypocrites ministers are when it comes to applying the rule of law

When I inquired about exemptions I was told that they were made on 'grounds of national security'
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The Independent Online

You can see why the Government feels that the House of Lords, in its current form, should be abolished. It does its job of revising legislation much too thoroughly for this executive's liking.

On Monday, the Upper House produced its most recent improvement of a sub-standard Bill by amending "corporate manslaughter" measures to remove the exemption for deaths in police and prison cells. The Home Secretary, John Reid, whose resemblance to a sitcom prison warder has been remarked upon rather too often for his liking, warned the peers that if they passed this amendment, then the Government would scrap the entire Bill. This clumsy attempt at blackmail had the obvious effect: the Government was overwhelmingly defeated.

The Lower House has an irritating habit of living down to its name. On Wednesday, one of its committees approved a two-clause Bill which would prevent the public from using the Freedom of Information Act to secure information contained in correspondence and e-mails sent to public bodies by MPs on behalf of their constituents. The Lords have already indicated their disquiet at this peculiarly self-serving exemption.

During the recent fracas over the Catholic Church's attempt to gain an exemption from aspects of the Equality Bill which would otherwise prevent Catholic adoption agencies from rejecting applicants from same-sex couples, ministers were adamant that any exception would be most improper. Harriet Harman, the Constitutional Affairs Minister, declared that: "You can either be against discrimination or you can allow for it. You can't be a little bit against discrimination."

Mr Peter Hain, like Ms Harman a candidate for the deputy leadership of the Labour Party, also criticised the Catholics' attempts to gain an exemption from a specific aspect of the anti-discrimination legislation. This was "a fundamental principle", he said, which should allow for no organisation to be exempt. Charles Falconer, Ms Harman's immediate superior, stated definitively that: "the law applies to everybody".

Only, it doesn't. This is clear from Section 54 of the Equality Bill, which is headed "Public Authorities". Subsection 1 states that: "It is unlawful for a public authority exercising a function to do any act which constitutes discrimination or harassment"; but Subsection 3 immediately declares that: "The prohibition in Subsection 1 shall not apply to the House of Commons, the House of Lords, the authorities of either House of Parliament, the Security Service, the Secret Intelligence Service, the Government Communications Headquarters or a part of the armed forces of the Crown which is, in accordance with a requirement of the Secretary of State, assisting the Government Communications Headquarters."

When I inquired about these exemptions I was told by a government official that, at least in respect of MI5, MI6 and GCHQ, they were made "on grounds of national security". The official wasn't immediately able to explain why the Houses of Parliament were exempt. The point is, however, that if this law, as Falconer states, "applies to everybody" then "everybody" cannot mean "everybody except us and the spooks". It is also not clear, to me at least, why it is perfectly proper for national security to be used as a reason for special treatment, but outrageous for religious conscience to be put forward as an argument.

As a matter of fact, I do agree with Lord Falconer's general proposition that laws should apply to everyone without exception. The very idea of the rule of law carries within it such a presumption. That is why, while having great sympathy for the Catholic adoption agencies, I wrote in this column last month that "Cardinal Murphy-O'Connor is wrong when he argues that this legislation is 'unjust discrimination against Catholics': what he is, in fact, objecting to is that Catholics are being treated just like everybody else."

Unfortunately, the Cardinal Archbishop of Westminster and his colleagues did not mount a public campaign against the Equality Bill when it was before Parliament. They waited until it was already law and then declared their right to be exempt from some of its provisions.

There is an obvious reason why they took this ill-advised approach. The Catholic Church, with some reason, is extremely anxious not to appear reactionary or fuddy-duddy. So it wanted to say that it welcomed the Equality Bill in general and that it set its face against what it called "unjust discrimination". Indeed, the Shadow Cabinet under David Cameron has a very similar desire to appear enlightened, and therefore has welcomed the Equality Bill in its entirety.

No one, it seems, is willing to argue the fundamental point that the entire Bill may be misconceived. There are, after all, already laws on the statute book which ban discrimination on grounds of sex and race. The Equality Bill - as Cardinal Murphy-O'Connor will doubtless be aware - introduces the idea of banning harassment on grounds of religion.

This was not, however, a sop to the Catholics, but came out of a pre-election pledge by Blair, designed to appease British Muslims furious about the war in Iraq. The measure is entirely otiose. There are already laws against harassment, which, especially in the workplace, exist to protect people from being bullied in the manner envisaged by this highly political piece of legislation.

The Equality Act seems designed not so much to stamp out practices which are causing great public disquiet - I am not aware, for example, that gay couples claim to be suffering greatly because a handful of Catholic adoption agencies insist on referring them to other organisations which do not share those religious scruples. No, the Act, in the words of its supporters, is designed to "send a message". Laws, however, are not suited to sending messages. Indeed, those that do are usually very bad laws. If politicians wish to "send a message" then they should use their powers of persuasion - such as they have - not brute legislative force.

This point was expressed most clearly by the barrister Neil Addison at a seminar organised last week by Civitas. Addison, the author of a standard textbook, The Religious Discrimination and Hatred Law, remarked that the proponents of the Equality Bill were "intense, well meaning-people" who wanted to use the law to change the way people think. He likened them, provocatively in the circumstances, to the Inquisition of the Catholic Church, which was led, not by sadists, but men who wanted to save as many people as possible from damnation.

To pursue that analogy further, we can see that New Labour appears to believe that they are not just "the Elect" politically, but also in the religious sense: they are excused from the burdens which the rest of us must overcome in order to be judged fit for the kingdom of heaven. What unholy hypocrites they are.

d.lawson@independent.co.uk

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