Child Support Collection (Domestic Abuse) Bill

Baroness Berridge Excerpts

2nd reading
Friday 21st April 2023 Lords Chamber

[Baroness Berridge (Con)]

My Lords, I am grateful to my noble friend Lord Farmer for bringing this small but important Bill forward. I am also grateful to Dr Samantha Callan for her work as the author of the Independent Review of the Child Maintenance Service. Noble Lords will remember the tragic circumstances that led to that review: the murder of Emma Day on 25 May 2017 after she had made claims under the CMS.

In a cost of living crisis, child maintenance payments can be a crucial part of income. It is perhaps not surprising that, in some domestic abuse situations, the coercive and controlling behaviour continues when the caring parent and the non-resident parent are using the direct pay mechanism of the Child Maintenance Service, as outlined so ably by my noble friend. The non-resident parent may, or instance, pay 90% or 95% of the assessment amount, or payments may be made a few days late, causing much distress and perhaps even debt. Let us imagine if an employer changed pay day by a few days without any notice.

This behaviour would require the caring parent, who may have been abused, to chase the missing money and potentially be exposed again to the controlling and manipulative behaviour of the non-resident parent whom they fled. Opening up the collect and pay system in these situations means that the Commons, not the caring parent, would do the chasing. Hopefully, these examples of dilatory payment behaviour would then reduce, if not end, as they would no longer achieve their purpose of getting contact with the abused person.

I recognise that there is much to be worked out in secondary legislation concerning the level of evidence needed to establish the need to use the collect and pay system and the use of charges and deductions, but I believe that the principle of the legislation is sound.

I also want today to ask my noble friend the Minister to provide an update on the Government’s progress in implementing the changes that were provided in the Domestic Abuse Act 2021. In the context of family separation, with which your Lordships are concerned today, His Majesty’s Government announced last month that there will be a review of the Matrimonial Causes Act, which governs financial matters on the divorce or annulment of a marriage or civil partnership.

The grounds for divorce are now, of course, on a no-fault basis, so considerations of domestic abuse are, thankfully, not relevant to that matter—but should they be relevant on a claim for financial relief on divorce? It seems that under current case law, for conduct to be considered under the Matrimonial Causes Act, Section 25(2)(g), the domestic abuse would have to be of a “gasp” not a “gulp” order of magnitude. Is that high threshold consistent with the policy aims and objectives that sit behind the Domestic Abuse Act—or what an ordinary member of the public would think just and equitable when a court is dividing up matrimonial property on the breakdown of a marriage or civil partnership that has been blighted by domestic abuse, as now defined and understood by the norms set out in the Domestic Abuse Act? Can my noble friend the Minister confirm that the question of the role of domestic abuse when granting financial relief on divorce will be considered under the Law Commission’s Matrimonial Causes Act review?

There are multiple other examples where domestic abuse could be relevant but is not obvious at first sight. Financial advisers have to have an FCA-recognised qualification to operate, but does this now include teaching on economic control and coercion?

His Majesty’s Government are now aided by the independent domestic abuse commissioner, so I hope there will be an overall strategy to assess existing laws and public service procedures for any other changes that are needed to implement the Domestic Abuse Act. Such a strategy would enable changes to be dealt with more swiftly than in this case. It will be over five years since Emma Day’s murder before the CMS is changed to protect other victims; I believe, sadly, that that is too long.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department for Work and Pensions (Viscount Younger of Leckie) (Con)]

My Lords, I congratulate my noble friend Lord Farmer on his excellent introduction to the Bill. As my noble friend has stated, the Bill will create an additional layer of protection for domestic abuse victims and their children when using the Child Maintenance Service—the CMS. It has the full backing of His Majesty’s Government and it gives me great pleasure to speak in full support of it today.

I start off by saying a few words about Emma Day, because her death was a truly shocking and distressing event. The CMS took action immediately to review its processes and procedures, to ensure that it is doing everything it can to support victims and survivors of domestic abuse and to make maintenance arrangements safely, and to reduce the risk of CMS customers being subject to further domestic abuse. I wanted to say that at the outset because it has been raised as a very important and tragic theme this morning.

I was very pleased to be given ministerial responsibility for child maintenance in January and to continue the excellent work in this area of my noble friend Lady Stedman-Scott. Child maintenance provides a vital service for separated families and their children, through both private and CMS arrangements. It is estimated that separated families received £2.6 billion annually in maintenance payments between 2020 and 2022. This roughly equates to lifting around 160,000 children out of poverty each year, on an after housing costs basis. I will be raising the issue of children as a central theme during my speech.

I would also like to give some context to the Bill by talking about the current CMS service. I am aware of a number of questions that have been raised about this, notably from the noble Baronesses, Lady Burt and Lady Sherlock, and I will attempt to answer them. My noble friend Lord Farmer spoke eloquently about the service, so I will not go into too much more detail for fear of repetition, but the purpose of the CMS is to facilitate the payment of child maintenance between separated parents who are unable to reach their own agreement following separation. This is a very challenging job, undertaken in extremely difficult circumstances, and the CMS must operate in an unbiased manner. Separation is an extraordinarily difficult time for parents and, more importantly, the children, who are the CMS’s primary focus, as I said earlier. The CMS works incredibly hard to collect maintenance, so that children receive the financial support they are entitled to. In the past 12 months, the CMS has arranged over £1 billion in child maintenance payments.

Before moving on to the details of the Bill, I will say a few words about how the CMS operates for victims of domestic abuse. This Government take the issue of domestic abuse extremely seriously, and the department is committed to ensuring that victims of abuse get the help and support they need to use the CMS safely. Abuse may occur at either side, against paying or receiving parents, and at any point during the life of a case. My noble friend Lady Berridge gave some examples in her remarks.

The noble Baroness, Lady Burt, asked about guaranteeing payments, particularly when paying parents do not pay their maintenance liability, which is an important point. Operating a scheme where the Government guarantees child maintenance payments if the paying parent does not pay is not the intent of CMS policy. The role of the CMS, as I alluded to earlier, is to encourage parents to take financial responsibility for their children. The scheme is designed to encourage parents to agree their own family-based arrangements, wherever possible, as this tends to be in the best interests of the children. The statutory scheme exists as a fall-back if they are unable to do so. The Government do not believe that the state covering the shortfall in unpaid maintenance is the right or appropriate way to target additional funding, given that there is no means test for receiving parents.

The application fee, which I will say more about later on, is waived for applicants who have experienced domestic abuse. CMS caseworkers will signpost where needed to suitable domestic abuse support organisations. For parents using the direct pay service, the CMS can act as an intermediary to facilitate the exchange of bank details to ensure there is no unwanted contact between parents and that no personal information is shared. CMS caseworkers also provide information on how to set up bank accounts with a centralised sort code, which reduces the risk of a parent’s location being traced.

We continuously review our processes to ensure that domestic abuse victims are appropriately supported when using the CMS. I should therefore mention the excellent recently completed review concerning the CMS. I was very pleased to be able to publish this independent review of the ways in which the CMS supports victims of domestic abuse when I took ministerial responsibility for child maintenance.

As my noble friend Lord Farmer said, the review was published on 17 January this year and was conducted by Dr Samantha Callan, a leading expert on domestic abuse. The review finds that the CMS is an agency that has worked hard to develop and improve its domestic abuse practices. However, as the review also points out, there are further steps we can take to improve the CMS for victims of domestic abuse. We have accepted eight of the 10 recommendations in the review, and I am strongly committed to implementing these as soon as possible. I applaud the review, the findings of which are informed by extensive engagement with victims and survivors of domestic abuse and, of course, the domestic abuse sector. Your Lordships will have seen that Dr Callan’s report includes a recommendation to enable cases to be moved to collect and pay where there is evidence of domestic abuse—precisely what this Bill aims to do.

I turn to the important subject of training, raised by the noble Baroness, Lady Burt, and, in particular, by the noble Baroness, Lady Sherlock. The review also recommends that the CMS review its domestic abuse training. The CMS provides domestic abuse training for all caseworkers. It recognises that domestic abuse can take various forms, as the noble Baronesses will know, which include physical, psychological, coercive, overbearing, emotional and financial abuse. I stress that this can be against either parent involved.

As the noble Baronesses will know, the CMS reviewed its domestic abuse training in 2021 to ensure that caseworkers are equipped to support parents in vulnerable situations. To give a bit more detail, the training includes how to recognise the various forms of domestic abuse, checking for previous reports of abuse and appropriate signposting to domestic abuse support groups.

Following Dr Callan’s independent review of the ways in which the CMS supports survivors of domestic abuse, we will undertake a comprehensive review of training—I repeat myself, as this is a very important point—to ensure that it remains up to date. We will engage with external organisations where appropriate to ensure that the training reflects the needs of domestic abuse survivors when they use the CMS. The CMS also has a complex needs toolkit for its caseworkers, which includes clear steps to follow in order to support customers experiencing abuse. This toolkit is regularly reviewed and strengthened, particularly on the basis of customer insight.

Coercive control has been raised in this debate, in other debates and in the other place. The CMS is recognising this. The Domestic Abuse Act 2021, which was debated through both Houses, has brought in important changes for those who have experienced abuse. It has made coercive control a criminal offence, including in relation to ex-partners. The Home Office published new statutory guidance on controlling and coercive behaviour earlier this month. Although CMS domestic abuse training recognises that domestic abuse can take many forms, we are reviewing the guidance to determine the impact on CMS procedures.

This leads me to attempting to answer quite a technical question from my noble friend Lady Berridge in relation to matters raised by the Domestic Abuse Act. She touched on the review of the Matrimonial Causes Act. As she will know, our Domestic Abuse Act became law in April 2021. This truly game-changing piece of legislation transforms our response to victims in every region of England and Wales and ensures that perpetrators are brought to justice. It helps millions affected by these awful crimes by strengthening the response across all agencies, from the police and courts to local authorities and service providers. For the first time in history, there is a general-purpose legal definition of domestic abuse, which incorporates a range of abuses beyond physical violence, including emotional, controlling or coercive and economic abuse.

I note the question raised by my noble friend concerning the Matrimonial Causes Act, although divorce is a separate issue to child maintenance and not one dealt with by my department. The Child Maintenance Service exists to ensure that children receive the financial support they are entitled to. The welfare of the child, to mention it again, is at the heart of everything we do. This Government take domestic abuse very seriously. I will raise my noble friend’s question with ministerial colleagues and can assure her that she will receive a letter on this subject. I can assure her that Ministers in the department and across government regularly meet the Domestic Abuse Commissioner to discuss issues including the Child Maintenance Service. That also gives an answer to the question about cross-government support.

The Bill will amend primary legislation and allow either parent, or a child in Scotland, to request the collect and pay service on the grounds of domestic abuse, where there is evidence of abuse against them or children in their household by the other parent in the case. We recognise that abuse can be suffered by either parent or by children. A child in Scotland can apply for these provisions if they are the CMS applicant and either parent was the victim of domestic abuse, or if they themselves were.

To ensure that the Bill targets parents appropriately, the types of domestic abuse evidence that will be required will be set out in secondary legislation. To develop the secondary legislation, we will consult widely and engage with stakeholder groups, as well as other government departments, such as the Ministry of Justice and the Home Office, and with the devolved Administrations where appropriate, to ensure that parents are suitably supported. This will ensure that appropriate processes are established for verifying evidence requirements for domestic abuse.

A number of points were raised by the noble Baronesses, Lady Burt and Lady Sherlock, about the sort of questions they wish to propose. These questions will need to be discussed, debated thoroughly and drawn out as the secondary legislation is rolled out. The secondary legislation will follow the affirmative procedure so that your Lordships will have the opportunity to vote on proposals put forward. We will also consult widely to ensure that we get the proposals right, as mentioned earlier. We will aim to produce robust evidence requirements that are fully sensitive to the needs of those who have experienced domestic abuse and where all relevant data and insights have been thoroughly considered.

My noble friend Lady Berridge asked why there was a delay in publishing the independent review response. I was not particularly aware of that, but the review completed in spring 2022 and the Government received the report during the summer. It was important to get all the aspects right, so the full findings and 10 recommendations were published on 17 January 2023.

[Baroness Berridge (Con)]

Can I just correct that and make sure the record is clear? If I recollect my own contribution correctly, I was just commenting on the overall time it has taken from the 2017 murder to getting this rectified. If I said anything other than that, it was not what I intended to do.

[Viscount Younger of Leckie (Con)]

I note my noble friend’s point. Although I cannot answer on the particular delay after the tragic circumstances in 2017, I will certainly come back to her and perhaps add to the letter I am writing to her on that.

I go back to the secondary legislation and the questions raised on evidence of domestic abuse and on working across government. I can say—I have my noble and learned friend Lord Bellamy beside me—that we are working ever more closely across government on matters of domestic abuse and on supporting families, however they may be defined nowadays. As I said earlier, the focus across government is on children and their welfare.

On the timing of secondary legislation, which was raised by the noble Baroness, Lady Sherlock, I am afraid I cannot give her any timescale. In relation to all aspects of the Callan review, we want to move at pace. I think it is good news that this Private Member’s Bill and the next one, which is coming on 19 May, are both moving at pace.

The noble Baroness, Lady Sherlock, asked about domestic abuse training being developed with input from Women’s Aid. I assure her that the CMS domestic abuse training was shared with Women’s Aid for the review in May 2021. Women’s Aid’s concerns were mainly around the knowledge levels of DWP trainers with respect to domestic abuse and related to the content and design of the training itself. The CMS took Women’s Aid’s comments into account and updated the training, alongside using a new facilitator guide to better support the trainers. As she may know, this was published in November 2021—which seems quite a long time ago.

The noble Baroness, Lady Sherlock, also raised an important point about non-compliance. The percentage of parents who paid some maintenance on the collect and pay service has increased from 60% in the quarter ending in March 2018 to 65% in the quarter ending December 2022—these are the latest figures we have. In 2021, a new internal payment-compliance measure and approach was introduced to support customer expectations across its full case load, including CMS and CSA arrears-only cases. The measure requires 90% or more of the liability and any schedules arrears to be paid. This is measured monthly and on a rolling quarterly basis, including a measure to address cases not paying on time.

I am aware of the time and I should quickly conclude. I think I have answered most of the questions. I reiterate that I strongly believe that victims of domestic abuse and their children should feel as safe as possible when using the CMS. The Bill will provide an extra layer of legislative protection so that they can decide which service type is most appropriate for them, their circumstances and, most importantly, the welfare of their children, while also providing a fair service to both the receiving and the paying parent. I hope that the House recognises the importance of the Bill and supports my noble friend Lord Farmer in its passage today.

Universal Credit: Benefit Cap and Two Child Limit

Baroness Berridge Excerpts

Tuesday 24th January 2023 Lords Chamber

[Viscount Younger of Leckie (Con)]

This is another important subject. The child maintenance system supports separated parents to agree their own family-based arrangements where it is possible. Where it is not possible, the child maintenance system steps in. It is incredibly important that the paying parent pays, and this is where the system is dealing with some extremely challenging issues in order that the receiving parent receives what they are due.

[Baroness Berridge (Con)]

My Lords, all noble Lords will be pleased that it is a small number of families that are affected. Can the Minister inform us whether any of those families are also being affected by having to pay back money, such as aged debts, when they are on such limited income? It has always struck me as rather odd since when you get fined in a court, very careful consideration is given to your means to pay, and if you borrow money from the Government for your education, you are not asked to repay it until you are earning a fair sum of money. The poorest in our society are being asked to pay money back to the Government, so can the Minister provide us with information on that?

[Viscount Younger of Leckie (Con)]

I will need to write to my noble friend about that issue. I am certain that this system allows for payback whenever possible, but I will certainly look into that.

Syria

Baroness Berridge Excerpts

Wednesday 30th October 2013 Lords Chamber

[Baroness Berridge (Con)]

My Lords, a polio outbreak in north-east Syria was the latest headline this morning on the “Today” programme. I am sure that your Lordships, like me, long for the day when nothing newsworthy is happening in that country. I, too, thank the right reverend Prelate the Bishop of Coventry for securing this debate, and of course, with Coventry’s long association with peace and reconciliation, it was apt for him to do so.

I pay tribute to the Governments of surrounding nations such as Turkey, Iraq, Jordan and Lebanon, who have kept their borders open and welcomed unprecedented numbers of refugees. I hope that if this country were ever in a similar situation, it would have the same response. On the figures that I have seen, the UN has now registered nearly 700,000 refugees in Lebanon and nearly 550,000 in Jordan. The level of the crisis is heartbreaking and the finances needed for the humanitarian response of £3 billion are eye-watering.

I, too, am proud of the generosity of Her Majesty’s Government on behalf of the UK taxpayer with their contribution of half a billion pounds worth of aid. I believe this is the largest ever UK response to a single humanitarian crisis. Of course, in addition to the DfID funds, funds have been raised by many UK charities. Again, I was impressed by the generosity of support for the Tearfund appeal for Syria, which raised more than £1 million. The UK has not been found wanting with the depth of its response. However, there have been disappointing responses from fellow G20 members, notably France, South Korea, Japan, China and, as already mentioned, Russia. I hope my noble friend the Minister can update the House on the progress in ensuring that the UN response is properly financed and can perhaps explain the reasons for the reluctance from other nations.

As the noble Baroness, Lady Symons, outlined, there are more than 2 million refugees—75% are women and children, and half of them are children. They are traumatised and already very vulnerable and can be easy prey for trafficking gangs. We should not underestimate the tactics of those who run the second largest illegal trade in the world, that of people. There are already anecdotal reports of girls being sold and of labour exploitation. Can my noble friend confirm that, although this can be a chaotic situation, there are now proper child protection and security measures in place in the refugee camps? Has my noble friend any independent confirmation of the reports that men who are looking to purchase young women are seeking out Syrian refugees and that criminal gangs are being paid to traffic people including, apparently, to the UK? As the Syrian uprising and conflict has been going on now for two and a half years one can understand the desperation of people trying to escape this intractable situation, but we need to try to protect them from making dangerous crisis-driven decisions.

The difficulties in ensuring that aid is reaching those still in Syria was discussed in your Lordships’ House only last week. I was particularly struck by the comments of the noble Baroness, Lady Kinnock, that the UN inspectors looking for chemical weapons are gaining access to areas of Syria that aid convoys are not allowed to get to. In the past 24 hours, Reuters has been reporting that starvation of the civilian population is being used as a weapon of war. The UN states that 1 million people in Syria still cannot access aid. Can my noble friend the Minister outline whether the trajectory of aid reaching those in need is improving or deteriorating? Only a political solution will end this war but are Her Majesty’s Government looking at proposing at Geneva II a temporary ceasefire to allow humanitarian aid into these areas of Syria?

Only an hour ago, it was covered on Al-Jazeera Twitter that a temporary ceasefire had been brokered by the Red Cross in one of the suburbs of Damascus, which allowed a number of people to flee. Is there not perhaps an appropriate Muslim holiday such as the Day of Ashura on 24 November which, if honoured by the Syrian Government and opposition, would bring some brief respite to the fighting?

Although matters are obviously still desperate for so many refugees I want to look forward to peace in Syria for a moment when a political settlement has been achieved. Whether all its communities can return will depend on what that new Syria looks like. In this vein, on 15 October Margaret Ritchie MP asked whether Her Majesty’s Government will be establishing a resettlement programme in the UK for Syrian refugees. In response, Her Majesty’s Government said they have no plans to do so, but there are reports in the Lebanese press that Germany, through the International Organization for Migration, has accepted 5,000 refugees. Can my noble friend please outline what discussions we are having with our EU partners about responses to this refugee crisis and why the UK is not able to accommodate some refugees as Germany has?

I had the pleasure of hearing the Melkite Greek Catholic Patriarch Gregorios III on his recent trip to the UK when he was appealing for reconciliation. He estimates that about 450,000 of the pre-war Syrian population of 1.75 million Christians have either fled Syria or are internally displaced. The patriarch was resolute in his view that the church in Syria would survive but the plight of religious minorities in any future Syria is uncertain. It is clear from the comments of the noble Baroness, Lady Symons, that the region may not be able to accommodate all of these people. Are discussions being held at EU and UN level about an appropriate response if, at the end of the war, it is not safe for some communities—whether Shia, Alawite, Muslim or Christian—to return home? Surely it is better to be prepared for this eventuality than being caught on the hop and seeing people fleeing into boats across the Mediterranean Sea or being vulnerable prey for the people-traffickers I have already mentioned.

In any event, there will need to be a huge process of reconciliation, akin to that which was undertaken in Rwanda. Just under a tenth of Syria’s pre-war population are in neighbouring countries and many, of course, are accommodated by the UNHCR. I have never visited a refugee camp, but I have looked closely at the images on the internet. One can see that there are satellite dishes and TV aerials on some of the tents and containers in which people are living. Arab culture is oral, which is one reason why TV is so popular even when people have barely enough to live on. Is this small opportunity being taken by the UN to ensure that the programming into these camps includes messages on reconciliation, on remembering the Syria where Sunni, Alawite and Christians lived side by side, and on how to forgive your neighbour? I know that some will consider this a premature drop in the ocean. However, it is never too soon to try to bring about reconciliation.

Marriage (Same Sex Couples) Bill

Baroness Berridge Excerpts

Wednesday 10th July 2013 Lords Chamber

[Lord Dear]

My Lords, as somebody who once drove teams of horses with wagons behind them at a competitive level, may I be allowed to make a very small interjection? Although my name is not on the Marshalled List, as there was no room for it, I support my noble friend Lady Deech. I cannot add anything to the power of her argument or to the impeccable logic that she showed when she advanced the amendment.

The words “equity” and “decency” have already been used in support of this amendment. I would add “generosity”, “compassion” and certainly “appropriateness”. As she has already said, this amendment seeks to correct a prior-acknowledged discrimination. It asks the Government only to consider this within the terms of a review—not to change the Bill but simply to cause the review panel, the review body, to look at this issue. I was not in your Lordships’ House when the matter was debated eight or nine years ago. However, I have been told by many noble Lords whom I respect that there have been many attempts to try to couple this issue on to the appropriate wagon or stagecoach, and it has not been found. Here is an opportunity for us to do that. It will not get in the way of the current Bill. I certainly do not intend to do that, and I am quite sure that my noble friend does not, either. The time is right for a review, and if my noble friend presses her amendment, I will vote in favour of it.

[Baroness Berridge]

My Lords, when discussing previous amendments in Committee and on Report, much was said about teachers being required to teach the law of the land. I do not envy their task, as the law regarding different personal relationships has become rather complex. That was best exhibited by the exchange just now between the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Alli, about whether civil partnerships are a sexual union. I have friends in civil partnerships who, when they went to the register office, were separated and asked questions to ensure that their relationship was sexual. Although these matters need clarifying, I shall state my understanding of the situation.

Opposite-sex marriage is understood to be a sexual relationship because it can be ended by annulment and by divorce on the grounds of adultery with a member of the opposite sex. Civil partnerships are same-sex and, for the reason I outlined, treated as sexual, but there is no annulment. Platonic friends can marry if they are of opposite sexes or of the same sex, but the lack of annulment for same-sex marriage may lead the institution to develop very differently. I agree with the right reverend Prelate, who stated what the position is in modern Britain. The demographics of our country are changing rapidly. In the 2011 census, 29% of UK households were single-person—not single-parent—households. The fact that two people can live more cheaply than one is becoming increasingly important with rising living costs, poor returns on private pensions, and high housing costs.

We could end up seeing someone who wants to say to their best friend, with whom they share a house, “You can depend on me. I am your first port of call”. The commitment would be not merely financial, or about inheritance tax, or being one household for the purpose of benefits. With an ageing population, the Government should be pleased if this kind of development occurred under the same-sex marriage Bill.

Of course, that analysis means that carers, as outlined in the amendment, can already marry and gain the financial benefits outlined. If we were to see such a cultural development, the injustice to family members would be even more apparent. One might even see deeply religious people of the same sex who currently oppose the Bill getting married, if same-sex marriage develops in our culture in the way I outlined. That kind of development might even make it easier for marriage to be used mischievously for immigration purposes. We just do not know.

The amendment would give clarity and direction to this review. The review would give the Government time, which they have not had with such a speedy legislative process, to look at the whole legal relationship landscape.

I noted the comment of the noble Lord, Lord Alli, that it feels wrong to him. It was a very subjective, post-modern comment. It feels wrong to me to close down the area of discussion that a review would enable. If it was so wrong to put this wagon or coach on these horses, the amendment would not have been allowed on to the Marshalled List.

I support the amendment, because it would be unjust if everyone—and I mean everyone—except family members would be able under our law to promise a lifelong, non-sexual commitment or dependency.

[Baroness Kennedy of The Shaws]

My Lords, I oppose the amendments in this group. It is disingenuous of those who tabled and support them to suggest that those who do not see the purpose of them are being hard-hearted. I was shocked to hear lawyers who have spent their lives in the law not recognising the implications of extending a law that is essentially about marriage, or a commitment to a sexual relationship—that is what it is about—and imagining that a civil partnership between a father and daughter, or a brother and a sister, should be blessed, as was even suggested, and that it may come to that because of the great multiplicity of relationships that there are. I cannot believe that I heard senior lawyers endorse this. I can only believe that they did so because they want to dilute the purposes of civil partnerships.

Marriage (Same Sex Couples) Bill

Baroness Berridge Excerpts

Monday 8th July 2013 Lords Chamber

I hope the noble Baroness, Lady O’Loan, will agree that the Government’s amendments serve the same purpose as her own Amendment 23. We believe that our amendments provide a little more clarity and I hope she will feel able to accept them. Other amendments are grouped here, but I will respond to those when I wind up the debate in the light of what is said in response to the government amendments and to those others. I beg to move.

[Baroness Berridge]

My Lords, I speak to Amendments 15, 16, 17, 21 and 22, in my name. I thank the Minister for tabling government Amendments 9 and 10. I thank the Government and the Bill team for listening to the concerns raised in Committee. Amendments 9 and 10 clarify the protections given to religious groups under the Bill. The groups, whose concerns had previously not been allayed, were some of those that perform marriages recognised under UK law, where their religious official also performs the function of the registrar. Unlike weddings that noble Lords may have attended at hotels where the registrar comes to do the ceremony, no registrar goes, for instance, to the Catholic Church: the priest is known as the authorised person and so relieves the local registrar from the need to officiate.

There are tens of thousands of authorised people in England and Wales, within many religious organisations, some of whom felt vulnerable to challenge under judicial review, the Equality Act and the Human Rights Act, such that they might have considered handing back their registration as authorised persons if the Bill had not been amended in the manner that the Government outlined this evening. This would of course have been unfortunate and a further financial challenge to local authorities, which would have had to employ more registrars to officiate at such weddings.

I am very grateful to the Government for the amendments, which mean that authorised persons are protected from the risk of challenge and that I will be able to assure those who have contacted me that, as far as is possible in legislation—there can be no cast-iron guarantee—their and their organisations’ decision whether or not to opt in is not amenable to challenge.

I am grateful for this clever amendment, which not only deals with the definition of compulsion but covers issues relating to the public function that is arguably exercised by authorised persons. In the light of my noble friend’s assurances, I will be pleased not to pursue my amendments.

[Baroness O’Loan]

My Lords, I shall speak to Amendments 22 and 23 and 19 and 18—I shall take them in reverse order in the light of the comments made by the Minister. First, I express my gratitude to the Government for tabling Amendments 9 and 10 on the meaning of the word “compel”. They make it clear that compulsion by any means will not be allowed under the Bill. Therefore, any detrimental or unfavourable treatment of a person—whether an individual or an organisation—because that person has not performed, has decided not to perform or has refused to perform, a Clause 2(1) or (2) activity will be absolutely prohibited. That is in line with the Minister’s statement during Committee on 19 June at col. 281, and I am content that the protection that was promised is now provided by those amendments.

Another of our concerns was that the word “compelled” did not make it clear that less favourable treatment by a public authority of a person who does not perform, decides not to perform or refuses to perform, a Clause 2(1) or (2) activity would be prohibited. A public authority could, for example, have used Section 149 of the Equality Act to treat a person less fairly. The amendments, however, again in line with the Minister’s assurances during Committee on 19 June, make it clear that such treatment would be unlawful.

My amendment uses the words,

“the imposition of any criminal or civil penalty”.

However, I am satisfied that the government amendments make it clear as expressed that any criminal or civil penalty—or indeed, any civil or legal action—against a person in those circumstances will be prohibited. A person is protected, therefore, when deciding not to perform or refusing to perform a Clause 2(1) or (2) activity from challenges under the Human Rights Act or the Equality Act, by way of judicial review or by any other legal challenge. That is made apparent in the government amendments.

Although I recognise that the Government never considered, and still do not consider, that the decision of whether to opt in under Clause 2(1) is a public function, I am content that the wording of the amendment alleviates the risk as I perceived it for the purposes of the Human Rights Act, the Equality Act and judicial review. The bracketed wording,

“including by the enforcement of a contract or a statutory or other legal requirement”,

which provides a non-exhaustive list of examples, is helpful in that regard. Again, the protection is in line with the Minister’s assurance during Committee, and we are content that that assurance is covered by the wording of the Government’s amendments.

I am most grateful to the Government for listening to our concerns and for allaying them so effectively. We are now satisfied that the Government’s lock is comprehensive and will protect persons, whether they be individuals or organisations, in the context of Clause 2(1) and (2).

I move to Amendments 18 and 19. Amendment 18 is designed to protect persons as designated in the Bill from unfavourable treatment following an expression of opinion or belief about same-sex marriage. I am aware that this issue has been debated to some extent under other amendments. Under Section 149 of the Equality Act, a public authority must always have regard to the need to provide all persons with equal opportunities, whether they be black, white, male, female, gay, lesbian, straight or whatever. In particular, public authorities must also be mindful of any disadvantage that is or could be suffered by any person with a protected characteristic, and the need to remove or minimise that disadvantage. Those protected characteristics have been well rehearsed in this House during this debate. They include age, sex, sexual orientation, religious or other belief and pregnancy.

Section 149 gives public authorities a lot of discretion in deciding whether to pursue a course of action. A public authority could decide to use its powers, for example, to try to eliminate or minimise disadvantages suffered by those in the LGBT community. That is a laudable aim but it could do so in a way which unnecessarily disadvantages those with religious or other beliefs about marriage. Section 149 does not force them to do so but it allows them to do so by giving them discretion. That discretion has expanded significantly over the years and the courts have interpreted it as a duty to further equality of opportunity, rather than a duty to avoid discrimination. The positive rather than negative duty has encouraged public authorities to pursue broad equality aims. Public authorities have, for example, denied public contracts to organisations which the public authority regarded as unsuitable to be associated with, for example on grounds of race, and the courts appear to have deemed this entirely lawful.

If a public authority decides to pursue equality of opportunity for the LGBT community, and if this is done in a way which unnecessarily disadvantages those of religious or other beliefs, the courts are unlikely to overturn such an action because of their general reluctance to second-guess public authorities in exercising their discretion. The protection from compulsion under Clause 2 gives protections only from actions arising or relating to the solemnisation of same-sex marriages. It is not at all clear from the Bill whether individuals employed by public authorities will be protected if they express an opinion or belief that marriage should only be between a man and a woman. At this point, I should say that I heard the noble and learned Lord, Lord Wallace of Tankerness, refer to something in relation to disciplinary authority. He was speaking quite quickly but it was something about disciplinary proceedings. Perhaps he could reassure me on that point when he sums up.

At the moment, it is unclear whether a teacher would be able to teach that marriage should only be between a man and woman, if that is their belief, because some pupils, parents and other teachers could find such teaching grossly offensive. It is not clear whether a school would be able positively to promote opposite-sex marriage unless it promoted same-sex marriage equally. It could be argued that such an expression would be contrary to the duty on public authorities to further equality of opportunity for the LGBT community and to foster good relations between people with different protected characteristics.

This is not based on hypothesis alone. A judgment was handed down just two weeks ago in which the public sector equality duty was one of the reasons used to dismiss Dr Hans-Christian Raabe from a position on the Advisory Council on the Misuse of Drugs, which he had been given some 17 days earlier by the Home department. He received a letter from the Parliamentary Under-Secretary of State for Crime Prevention, Mr James Brokenshire, telling him that his authority was being revoked because it had been discovered that some eight years ago, he had co-authored an article, Gay Marriage and Homosexuality: Some Medical Comments. He lost that judicial review; the judgment was in June 2013. That case shows very clearly that public authorities, MPs and Treasury solicitors are already relying upon the public sector equality duty to protect the LGBT community in a way which noble Lords stated during Committee it would be wrong for public authorities to do.

The Minister and others have relied on Article 9 and the fact that religion and belief is also a protected characteristic for the purpose of the public sector equality duty. They do that in order to suggest that this amendment is not necessary but it is in fact unclear whether expression of belief would be protected as a manifestation of religion or belief, following the case of Dr Raabe. It was asserted in that case that Article 9 of the European Convention guarantees only absolute entitlement to hold religious views. It does not guarantee absolute protection for their manifestation.

It was also asserted that there is a difference between acts that are a manifestation of religious belief and acts that are motivated by it. Again, if an expression or a belief is protected as a manifestation of religion or belief—for example, when someone reasonably expresses a view in favour of traditional marriage—it will not necessarily protect individuals because the public authority has to strike a balance somewhere between that characteristic and the other protective characteristic, which is sexual orientation. Effectively, the public authority has to choose between religion and sexual orientation.

It is not clear that the court would strike down a decision arrived at by a public authority in those circumstances that ranked the need to ensure equality of opportunity with regard to sexual orientation more highly than the rights of religion. The case of Ms Ladele is an example of that.

--- Later in debate ---

[Baroness Berridge]

My Lords, I, too, wish to speak to this amendment. While the law retains adultery as a ground for divorce, I believe that it should be applied equally. I think that I am right in recalling that perhaps this could have been short-circuited, as I believe there remains on our statute books, although it is not in force, a whole provision in relation to no-fault divorce. However, until we are in the position where people do not use fault as a ground for divorce, it is my submission that it should be applied to all situations.

There is inequality here. It is as unjust to gay couples as it is to heterosexual couples, as neither of them can ask for divorce on the grounds of adultery with someone of the same sex. Although I appreciate any humour that we can inject into this debate, as my noble friend Lord Deben just did, this is a serious point. One has only to look at some of the support group websites that exist. The one that I have come across is for wives who subsequently discover that their husband is in a relationship with a man. The support group website that I looked at this evening talks about pain, loss, betrayal, confusion, loss of self-esteem and feelings of isolation. To be told that if your husband leaves you for another man it is just unreasonable behaviour, but if he were to leave you for another woman you could petition for divorce on the grounds of adultery, is, I believe, unjust.

Bizarrely, that means that the only couples in either of our marriages—heterosexual or same-sex—who are in a just situation are those to whom my noble and learned friend Lord Mackay referred: platonic friends who take advantage of this legislation. After all, as a sexual relationship was not the basis of their marriage, they cannot complain that adultery is not available to them. I think that we have left the law in not just a muddled state but an unjust one, and it is important to recognise that.

I accept that the noble Lord, Lord Pannick, says that this is the existing law, but if we are saying that culture is changing and we are changing the law on marriage, surely the same argument exists in relation to the grounds for divorce—that we must change. However difficult the definition of problems can be, there is a good case for saying that we have to change these grounds at the same time as we change marriage law.

[Baroness Thornton]

My Lords, I confess that I had trouble with the wording of this amendment, along the same sort of lines as the noble Lord, Lord Deben. It says,

“or a sexual act with a person of the same sex similar to adultery”.

I was wondering how similar and at what proximity, and whether you would want a judge to take that sort of decision. We can probably agree that the amendment does not serve even the purpose that the noble and learned Baroness wishes it to. We agree with the Government that it is unnecessary to replicate the requirement.

There have been several times in the course of today when noble Lords have referred to platonic relationships. Actually, there is no requirement to consummate a marriage; you can have a platonic marriage as a same-sex marriage or an opposite-sex marriage, so I am not quite sure what point noble Lords have been making there.

We also believe that it is unnecessary to legislate for dissolution on the grounds of adultery. It is sufficiently provided for, and I think that the Government got it right in consultation that the grounds of unreasonable behaviour exist. Indeed, since the commencement of the Civil Partnership Act in 2005, this has proved to be entirely unproblematic and I think we should just leave it as it is.

Marriage (Same Sex Couples) Bill

Baroness Berridge Excerpts

Wednesday 19th June 2013 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I declare an interest because I, too, was a member of the Joint Committee on Human Rights and had the great misfortune to find myself in a completely opposite place from the noble Baroness, Lady O’Loan, as she knows. During the 10 years I have been on that committee, I have never before had such an experience, where we were totally unable to secure a totally common position. Unlike previous committees, we decided not to take a vote, but to produce a compromise document. I did so in the spirit of conciliation and compromise, but I have to say that I do not agree with the views expressed by the committee in some of its parts.

I also do not agree with the very detailed speech made by the noble Baroness, Lady O’Loan. That would be quite impossible in a debate of this kind, before a body of people who have the great fortune not to be lawyers, judges, experts on the Equality Act or experts on the Marriage Act 1949, and who do not really understand the argument that the Catholic Church deployed and which has been deployed before us today.

I do not propose to answer that with the seriousness that it requires and I advise my noble and learned friend who is replying also, perhaps, not to answer every single point today. A sensible outcome of this might be to give a rebuttal in writing before Report stage on some of the detail. In my view, none of the amendments is necessary; all would create uncertainty and obscurity. The approach adopted by the church reminds me of a curious kind of person who goes around wearing trousers with not just one belt, not just two belts, not just—as in the case of this Bill—four belts, but also with a pair of braces. It is completely unnecessary.

I totally agree with the Government’s legal analysis, as expressed by the Minister in her evidence to us and in writing. On these issues, the Equality Act is quite clear. Of course, you can never prevent people bringing challenges in courts on any basis whatever; that is true of all legislation. I think that if these amendments were carried, it would create great uncertainty.

The document that is being discussed in the dinner hour, produced by the Office of the Parliamentary Counsel, When Laws Become too Complex, states:

“Good law is necessary, effective, clear, coherent and accessible. It is about the content of law, its architecture, its language, and its accessibility—and about the links between those things”.

That is all there in the architecture, language, content and accessibility of the Equality Act—this is a tribute to the Opposition, whose Act it was, with our support—and in the Explanatory Notes to the Bill. Quite honestly, if these amendments were accepted, it would create great uncertainty and damage the object of the Bill.

[Baroness Berridge]

My Lords, I rise to speak to Amendments 17 and 18, which are in my name. Although they have both been given the heading, “Meaning of ‘compelled’”, each raises distinct points. First, I wish to state my appreciation that the Government are keen to listen to concerns over the current drafting of the religious freedom protections in the Bill. The Secretary of State said in the other place that she,

“would never introduce a Bill that encroaches or threatens religious freedoms”.—[Official Report, Commons, 11/12/12; col. 157.]

The Government’s impact assessment helpfully outlined that the Bill should,

“ensure that protections are in place for religious bodies who do not want to perform same-sex marriages, not just from successful legal claims, but from the threat of litigation”.

I am grateful for the Government’s stated intentions but put my name to both these amendments as I believe that the Bill may encroach on such freedoms and that there is a threat of litigation.

I will deal first with Amendment 17. The Government have widely publicised the quadruple locks that supposedly protect religious individuals and organisations. One of those so-called locks is the protection from compulsion, which is supposed to ensure that religious individuals and organisations will not be required, under any circumstances, to conduct same-sex marriages if they object to them. This protection from compulsion is given for two different situations. First, in Clause 2(1), there is a prohibition against compelling any organisation to take the necessary procedural step of opting in, which would enable them to go on to conduct the actual ceremonies. Secondly, in Clause 2(2), there is a prohibition against compelling any person to “conduct” or “participate in” the same-sex marriage ceremony. At first sight, the lock appears comprehensive and wide-ranging, and the Government would have us believe that this is so. However, in reality, the lock is very narrow in scope because there is absolutely no definition in the Bill of “compelled”. That omission creates uncertainty and possibly limits the scope of protection offered by the clause.

This concern was recognised by the Joint Committee on Human Rights, of which I am a member, in its recent report on the Bill. The report is perhaps interesting in that it is unanimous, despite members of the committee holding different views on the principle of the Bill. Paragraph 69 recommends that the Government reconsider the issue,

“as to whether religious organisations”—

or people—

“may suffer some form of detriment as a result of their position on same sex marriage in a number of contexts which fall outside the scope of the Bill”.

Such reconsideration would, in my view, include considering whether to bring forward amendments such as those that we see today.

The new clause proposed in Amendment 17 would clarify the meaning of “compelled” for the purposes of Clause 2 and thus ensure that the lock provides the breadth of intended protection. The need for clarification was made more evident by the Minister during the Public Bill Committee, when he said that the meaning of “compelled” was,

“absolutely not borrowed from the Matrimonial Causes Act”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 28/2/13; col. 280.]

This statement makes it unclear where, if anywhere, the word “compelled” has a legislative precedent. In the limited case law that is available in other contexts, protection from compulsion essentially provides protection only from the imposition of a criminal penalty.

For example, individuals are protected from being compelled to incriminate themselves when giving evidence in court. Clause 2 is therefore likely to protect individuals and organisations from criminal punishment but it is unclear what else individuals and organisations are protected from. The Explanatory Notes state that compulsion,

“would include, but not be limited to, attempts to use criminal or civil law, contractual clauses, or the imposition of any detriment to force a person to carry out such an activity.”

However, Clause 2 as currently drafted does not reflect the Explanatory Notes and may not prevent public bodies treating religious organisations less favourably if they decide not to opt in to the same-sex marriage provisions.

[Baroness Knight of Collingtree]

I just want to ask my noble friend to look at history and recall the number of times—as I made clear in the earlier debate—promises have been broken with regard to the conscience. Time and again, from the Abortion Act onwards, people have been promised that they would be protected and that their right to a conscience would not be taken away. However, we have watched that happen for the past 50 years. We must look not just at the Bill when it comes to promises, but at this road full of broken promises that has led up to it.

[Baroness Berridge]

I am grateful to my noble friend for her intervention and I will look back—I am afraid as a newer member of your Lordships’ House—at the history to which she refers.

The decisions where an organisation can be treated less favourably can be in situations where they are refused contracts, denied the use of public halls or denied funding. The Minister reiterated the narrowness of the behaviour covered in the Bill in the Public Bill Committee when he said that Clause 2 would have,

“the effect of preventing any type of conduct that would have the effect of forcing a person to do something protected under that clause”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 28/2/13; col. 280.]

Therefore, as long as the local authority is merely registering disapproval of the organisation’s views, or penalising the organisation, but is not attempting to compel it to opt-in to provide same-sex marriage, then the religious organisation has no protection under the Bill as currently drafted.

However, the Government’s response is that the religious group need not worry as such detrimental behaviour falling short of forcing it to do anything would be unlawful discrimination by the local authority and the charity would have a remedy for this under the Equality Act. As I mentioned at Second Reading, expecting a charity to swap money, potentially from food banks, to legal fees to fight legal claims is not consistent with the state’s duty, performed in this instance by the local authority, to promote a plural civic square. Such funding reallocation is not, of course, in line with any growth in the big society and is diametrically opposed to the impact assessment of the Government which is the aim of removing the threat of litigation. The impact assessment means that the Government do not want religious groups being defendants in proceedings, so why are they advising the same religious groups to be the claimants in discrimination proceedings?

Just on a straightforward dictionary definition of compulsion, such unfavourable treatment as I have outlined is not, despite the Minister’s comments, covered. It is vital that the meaning of “compelled” is clarified in the Bill because the concept of compulsion is central to the Bill’s religious freedom protections and is not as readily understood as the Government assert.

In Committee on Monday there were many assertions about the effectiveness of the Equality Act, ranging from “foolproof” by the noble Lord, Lord Lester, to “shot through” by the noble and right reverend Lord, Lord Carey. This amendment would remove the need for a small charity to incur the expense of legal proceedings to establish that such detrimental behaviour is discrimination under the Equality Act. Surely the avoidance of litigation is a good thing.

This new clause will provide the necessary clarification and thus protect religious organisations from all legal penalties, criminal and civil, if they decide not to opt-in. It will ensure that religious organisations do not suffer at the hands of public authorities by making it clear that public authorities will be acting ultra vires if they penalise religious organisations for not opting-in. The onus is properly placed on the state not to act to the religious group’s detriment and not on the religious group to take action against the state. The new clause enshrines in statute the Government’s assurance that religious organisations will not be penalised in any circumstances for deciding not to opt-in to providing same-sex marriages if they object to them. Without further clarification in the Bill, the lock may not turn out to be much of a lock at all.

In relation to Amendment 18, it may be helpful if I turn from locks to keys. The key to a claim under the Human Rights Act, the Equality Act or judicial review is that the decision or action carried out by the religious organisation is clarified as a public function. Amendment 18 is necessary because, without it, religious organisations will be at risk of legal action on the ground that the decision to opt-in may be held to constitute a public function. As the noble Baroness, Lady O’Loan, has already explained, ministers in religious organisations outside of the established church can be authorised persons and thus conduct marriage ceremonies that are both religious and legally recognised. Such ministers, therefore, perform a public function. As the noble Baroness, Lady O’Loan, outlined, that was the understanding of the right honourable Jack Straw when he introduced the Human Rights Act and spoke in the other place. However, in the context of the established church, this was also the view obiter of four Supreme Court judges in the case of Aston Cantlow v Wallbank. In delivering his judgment, Lord Hobhouse said:

“Thus the priest ministering in the parish may have responsibilities that are certainly not public, such as the supervision of the liturgies used or advising about doctrine, but may have other responsibilities which are of a public nature, such as a responsibility for marriages and burials and the keeping of registers”.

--- Later in debate ---

[Lord Alli]

I am a little confused again. Is the noble Baroness saying that the quadruple lock is not secure? Unless I am absolutely wrong, I understood the position of the Church of England to be that the quadruple lock is robust and secure. I am not sure what she is arguing.

[Baroness Berridge]

I thank the noble Lord for that helpful intervention. That has been the Government’s position looking at the established church but there is a different situation for those who are authorised people. Generally in our law, you can get married at the registry office, or at the hotel with the registrar there, or you can marry without any intervention of the state when the banns are read in the Anglican Church. In addition, there is a whole group of people and religious organisations—for example, the Catholic Church and Pentecostal churches—which do those marriages as authorised people. They can decide whether to opt in to do this. First, that places them in a different legal context for conducting marriages. Secondly, the Anglican Church can make no decision at all to opt in; in the Bill it is not allowed to. These groups in the middle, many of which are in the ethnic minority community, are in a very different legal position from the Anglican Church.

The risk that religious organisations face when they move from conducting only heterosexual marriages to also conducting same-sex marriages as a public function is exacerbated by the fact that the decision to opt in is not like a decision by a private members’ club where you can look at the rule book and say that the decision was made based on the rules. The discretion to make a decision is in this statute which lends to the argument that it is a public discretion that these organisations would be acting on. The Joint Committee on Human Rights did not come to a firm conclusion on this matter because of a divergence of opinion. However, I believe that helps the case for this amendment. The divergence of opinion makes this amendment necessary because the basis of litigation is a divergence of legal opinion. The Government need to give some reassurance to these religious organisations because without this amendment the lock provided in Clause 1 could be ineffective.

[Lord Alli]

I apologise again to the noble Baroness. I am trying to get to the core of the mischief here and I am just not getting there. Is she saying that Church of England registrars are not covered by this and that this is for the general pool of registrars who are conducting the registration?

[Baroness Berridge]

If you attend a Catholic church, the authorised person is the registrar. No one comes from the local authority’s office. That person performs that public function and the registry office is not involved. It is the obligation of the priest to fill out the register and to return it quarterly to the local authority’s office. No local authority official is present at all. Interestingly, the Catholic Church expressed concern to the Joint Committee on Human Rights—I have heard this concern from other religious organisations—that unless we get clarity in the Bill religious organisations may consider not conducting these marriages at all because they believe the only way to protect themselves is to not be the registrar. That, of course, would have resource implications for the Government.

I am asking the Government to throw away the public function key—the key to actions under the Equality Act, the Human Rights Act and judicial review—and avoid this threat of litigation which would discriminate against some of the nation’s smallest charities. The Joint Committee on Human Rights has urged the Government to consider formulating a new clause to provide additional reassurance to any religious ministers or office holders who perform the dual function of officiating at a marriage in a spiritual capacity as well as performing the public function of the registrar under the Marriage Act 1949.

We have ended up in a situation, by responding quite rightly to the concerns of the established Church, whereby other Christian denominations and other faith groups believe that they do not now have the same level of protection as the Church of England and the Church of Wales. It is important that other religious organisations and individual ministers of other faith groups have the same level of protection as the Government have now afforded in this Bill to the Church of England and the Church of Wales.

[Lord Deben]

I want to try to bring two sides together on this issue. I hope people will recognise that I am entirely in favour of this legislation and I am a practising Catholic, so I understand exactly what has been said. I have great sympathy with what my noble friend Lord Lester has said about how this might be approached by the Government. Let me say two things to the Minister. First, there is a history here of promises made and broken, as my noble friend made clear. So even if this is absolutely okay, there is a feeling that it might not be okay and we have to recognise that fear.

Secondly, there is also a history of campaigning people who seek all the time to push their point further than is reasonable. For example, campaigners have recently argued that we should withdraw aid from youth clubs run by organisations that take a strong view about homosexual practice. That is a campaign that people have suggested—that if you take that view you should not get any help from the state for your youth club. I say to my noble friend that I understand the fears that people have on this issue.

The position of the Catholic Church is particularly difficult because we have a very odd and rather noble system in Britain that has come out of our history: to ensure that it was no longer true that only Anglicans could marry, we extended it to other people via the mechanism of enabling approved persons to act as registrars. There may be an issue here and it may be that the fears that people have are correct. However, I also recognise what my noble friend Lord Lester has said: sometimes, when we try to correct this, those of us who are not lawyers—and I am proud not to be a lawyer—add things that make it worse. That is the danger here. If we are not careful we will have a sort of argument of the deaf, with one side saying, “We want to do what you want, but if we do it that way we will actually make it more difficult for you”, and the other side saying, “You may say that but we’re still worried about it”.

I ask my noble friend to recognise that even those of us who are not just marginally but very much in favour of this legislation are concerned that we should be very careful about the nature of toleration. Unfortunately, “toleration” has become a very curious word. People talk about toleration as if it means tolerating views that you happen to agree with. One of the things that we have to do is produce legislation that enables a tolerant society to accept that some people have very different views. That is not helped, if I may say so, by some of the language used by people opposed to the Bill. Some disgraceful statements have been made by people who have really not come to terms with the fact that we live in a society that should be inclusive and accepting. The churches have sometimes spoken intolerably and intolerantly. However, the truth is that there is intolerableness and intolerance on the other side as well. I will give way to my noble friend .

--- Later in debate ---

[Lord Alli]

I apologise to the noble Baroness for taking more than my usual length of time to understand the issue. I think I now understand where the issue arises. What worries me is the nature of what the noble Baroness seeks. It seems to me that she wants cast-iron guarantees and, although I am not a lawyer, I assume that we cannot give those in law. Certainly no government Minister, no Member of this House and no Member of the other place can give cast-iron guarantees that any religious organisation will not be subject to vexatious legal actions.

I agree with the noble Lord, Lord Deben, that there is a whole range of people thinking of ways to progress their own politics through the courts, and when they have not succeeded either at the ballot box or in Parliament, they continue to do so. I can put it no better than the noble Lord, Lord Lester, in Monday’s Committee in his rather complex and detailed legal argument. He said:

“The fact that idiots in the public sector or private sector misunderstand it is no reason for us to have to amend this Bill to deal with such idiots”.—[Official Report, 17/6/13; col. 69.]

The question is not whether these people will take up a nuisance case; that is a matter for them in a democratic society. They must have the right to take up that nuisance case. I like it no more than anyone else, but they have that right in a democracy. The clear intention of this House and of the other place can be in no doubt. We have specifically created a process to opt in so as to protect religious organisations. The Minister in the Commons made it quite clear during the Commons Committee stage when he said:

“The imposition of any penalties on or subsequent unfavourable treatment of a religious organisation or individual in order to compel that organisation to opt in to same-sex marriage is already unlawful under the Bill”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee; 28/2/13; col. 280.]

The locks in this Bill are strong and robust. The intention of this House has to be beyond question. I believe those locks are secure, and I am not sure that we can help the noble Baroness with an assurance that there will be no legal action over these cases.

[Baroness Berridge]

I will respond to the noble Lord, Lord Alli. I am not seeking a cast-iron guarantee. I have previously been a lawyer, so I know how people can look at us, but there seems to be a case for some sensible, straightforward language in the Bill that could avoid—as we have put it—a situation in which small charities have to take discrimination claims to deal with that kind of behaviour, and it would provide that reassurance.

[Lord Pannick]

My Lords, I entirely understand the concerns that have been expressed by the noble Baronesses, Lady Berridge and Lady O’Loan, and others. My view is that those concerns are unwarranted. As I understand it, three issues have been raised. The first is the public sector equality duty, under Section 149 of the Equality Act, which requires:

“A public authority must, in the exercise of its functions, have due regard”,

to equality considerations. “Due regard” must require primary consideration to be given to other legislation—in particular, the legislation before us. I regard it as unlikely in the extreme that this public sector equality duty could impose a duty or even confer a power on a public authority to penalise a person or a body for declining to be involved in same-sex marriage, when the whole point of this legislation, and a fundamental feature of it, is that a person should not be compelled to do so for religious reasons. It would be extraordinary for a court to rely on a public sector equality duty.

The second concern was about Clause 2(6) and the exclusion of public functions, and that this does not cover the decision whether to opt in. There is a good reason for that. In very simple terms, marrying a person may well be a public function, as Clause 2(6) recognises. However, a decision to opt in or not is not the exercise of a public function. It is not, of itself, a service to the public but a decision whether to rely upon and maintain a statutory immunity given by this legislation. Any argument to the contrary would conflict with the content and purposes of this legislation, and so is extremely unlikely to be accepted.

The third concern that we are dealing with in this group of amendments is the suggestion that the legislation should clarify the meaning of “compulsion” in Clause 2(1). For a public authority to impose a detriment on a person for refusing to undertake an opt-in activity or to refrain from undertaking an opt-out activity would plainly amount to compulsion in this context. The reason for that is very simple: it would impose legal pressure on that person when one of the central purposes of this legislation is to protect religious freedom.

I entirely understand—I hope courteously—noble Lords’ concerns. The noble Lord, Lord Deben, rightly reminds us that we should be courteous about this, but let us be not just courteous but realistic about the risks and concerns that have been expressed.

Marriage (Same Sex Couples) Bill

Baroness Berridge Excerpts

Monday 17th June 2013 Lords Chamber

[Baroness Stowell of Beeston]

Again, amendments on adultery are coming up. I do not know whether we will get to them today. I am really looking forward to that debate. It is going to be great. I urge noble Lords to come back on it. We should be selling tickets for it. I will be able to cover that issue in detail at that time.

[Baroness Berridge]

Will my noble friend the Minister clarify the position on annulment? This matter appeared in a letter written to Peers. My understanding of annulment is that it is not connected to procreation. You can have an annulment of a marriage even if you get married at 65. It is not directly related to procreation.

--- Later in debate ---

[Lord Waddington]

My Lords, first, I apologise to the noble Lord, Lord Alli, and others on the other side of the House. My hearing aid, or my hearing, or both, gave way last time and I could not hear a word that was said. I was very fortunate to have a prompter near me. I do not think that anything I say now will provoke a large number of interventions but if that happens, I am now in better shape to deal with them.

The amendment deals with discrimination against someone because he expresses the view that marriage is the union of a man and a woman. I want to take this opportunity to mention something which has been very much on my mind. This sort of discrimination may become prevalent because it has got about the place that even before the Bill has become law, it is plain wrong to express support for traditional marriage. I hope others were as concerned as I was to read how the Law Society and the Queen Elizabeth II Conference Centre cancelled conferences to be held on their premises by Christian Concern to make the case for traditional marriage, with a very distinguished body of speakers. Each of those bodies had the nerve to say in its notification of cancellation that the nature of the event was,

“contrary to our diversity policy, espousing as it does an ethos which is opposed to same-sex marriage”.

It never seems to have occurred to the writers of those letters that they were quite deliberately interfering with the right of free speech in a country where free speech is greatly treasured as the hallmark of a free society. I hope that a clear message goes out from the Government today that the behaviour of those bodies was clearly unacceptable. We must safeguard free speech, whatever we do tonight.

[Baroness Berridge]

My Lords, I wish to speak briefly to Amendment 54, which is in my name, and, obviously, to government Amendment 53. Much has been said in your Lordships’ House of the need to preserve free speech but, as I outlined in my Second Reading speech, the role of the state goes beyond that. To ensure free speech, there has to be an encouragement and a protection of dissent in the public space. I am grateful to my noble friend the Minister for bringing forward Amendment 53, which was promised in the other place on Report, and was a concern outlined in the recent report of the Joint Committee on Human Rights that was published last Friday. I am a member of that committee, and there were very divergent opinions on the principle of the Bill, but we managed to come up with a report of the whole committee about the concerns that remain about the Bill.

I am grateful that the Government have brought forward this amendment to deal with some of the concerns around free speech. It is particularly important when on our statute book there are crimes that can be committed, with the force of criminal law being brought to bear on them, when there is hate speech with a particular mens rea of intending to stir up hatred against, for instance, somebody on the grounds of sexual orientation. I draw attention to what the noble and learned Baroness, Lady Butler-Sloss, outlined: this is a necessary safeguard when we look at what people on the ground are actually doing. Members of the other place have already referred to an incident a few weeks ago, when the police were called to a heated exchange around the matters that we are considering. We have to bear in mind that the effect of this legislation, and the potential effect on free speech, has to be policed on our streets by ordinary police constables. Amendment 53 ensures that they have clear guidance around what is and is not a criminal offence. It specifically states the caveat that it is not just about stating your belief that marriage is between one man and one woman. It is allowing that criticism to take place and thereby not breaching criminal law once the criticism is made. That dissent in the public space is to be welcomed.

In my speech at Second Reading I drew attention to the exchanges that took place between David Lammy MP and David Burrowes MP on these issues. One of the things that are becoming very difficult in speaking on this issue is the analogy, which was the cause of the dispute in the other place, around sexual orientation, same-sex marriage and racism. I am surprised to see the nature of the exchanges we are having today. If that is what ends up taking place in this debating Chamber, what will be happening on our streets when passions get inflamed around this issue? I welcome the Government’s amendment and believe that it brings in an important safeguard.

[Lord Dear]

I shall speak to Amendments 7 and 8, which stand in my name in this grouping. I ask noble Lords to consider the words which case law has held to be paramount in this, that beliefs must be,

“worthy of respect in a democratic society and not incompatible with human dignity”.

They are words protected by the European Convention on Human Rights, and they cover both religious and philosophical beliefs. There are a clutch of cases which I could quote here, but I will refer briefly to only two of them.

The first is Grainger plc & Others v Nicholson in 2009. The court held that strong philosophical belief about climate change, for example, affected how the claimant lived. It went beyond mere opinion. It was setting out that opinion is one thing, which is not protected by the law, but that serious beliefs which stand above that should be so protected. That case really became the bedrock of this particular set of cases. In a 2005 case in the House of Lords, Regina v Secretary of State for Education and Employment and others ex parte Williamson, the noble and learned Baroness, Lady Hale, said that:

“A free and plural society must expect to tolerate all sorts of views which many, even most, find completely unacceptable”.

Agreeing with that judgment, the noble and learned Lord, Lord Walker, in accepting pacifism, vegetarianism, and teetotalism as beliefs, went on to say that they are not just religious beliefs,

“but equally … may be based on ethical convictions which are not religious but humanist”.

I galloped through that just to say that the words,

“worthy of respect in a democratic society”,

have a solid bedrock in both European law and the law of this country.

The reason for tabling these two amendments is to focus on the fact that the Government have repeatedly insisted that this legislation before us will not penalise those who believe that marriage is only between a man and a woman. As the noble Baroness, Lady Cumberlege, has already said, the obvious case to cite at that juncture is that of Adrian Smith and the housing trust. That has been mentioned several times in previous debates on this subject. I will not go into it again but that case, and others, indicate the fragility of the position of those who seek to express a firmly held view, without any intent of causing any disruption beyond—

Disability Services

Baroness Berridge Excerpts

Thursday 10th January 2013 Lords Chamber

[Baroness Berridge]

I, too, wish to thank the noble Lord, Lord Boateng, for securing this debate. I agree with the noble Lord that the Government’s response to the serious issues in this report should be seen as part of the legacy of the Paralympics. It was so wonderful, day after day during the Paralympics, to see the achievements of the athletes and also to see disabled TV presenters such as Ade Adepitan. However, one should not overestimate the effect on our country. In my view, the programming has virtually returned to what it was before. Most notable in this regard was the hugely popular “BBC Sports Personality of the Year” programme, in which Paralympians were nominated for the award but all three presenters were from the Olympics coverage. However, during the Christmas holidays, I was impressed to stumble across the actor Christopher Slater, who has cerebral palsy and appears in “Tracy Beaker Returns”. I assure noble Lords that this was the Christmas choice of television viewing of my niece, not me.

This is, of course, a report about not only disabled people but also those from black and minority ethnic backgrounds. As I mentioned in my maiden speech, I have had the privilege of getting to know many within the British black community. Therefore, I am not surprised by stories such as that yesterday about Stuart Lawrence, Stephen Lawrence’s brother, who has been stopped by the police more than 25 times. However, I am surprised by the legacy in this area. Often when I talk about these issues I am met with the comment, “You sound rather like the Labour Party”. The legacy here has been the overpoliticisation of the issues around black and minority ethnic communities and racial equality. It is important that these issues are not seen as a matter of left or right, or Labour or Conservative.

It is vital that politicians show national leadership in this area. These issues are complex and nuanced. Leadership is vital so that everyone has the confidence to contribute to the debate. I have also often met people who talk to me about these issues but suddenly clap their hand over their mouth and say, “Was that the wrong word to use? Have I just been racist?”. Usually, I cannot for the life of me identify the word they have just used to which they are referring. Although language is important and racism still exists, this oversensitisation, which we also saw in a discussion on immigration, is helpful neither to free speech nor to resolving the serious matters outlined in the report.

Of course, I have to admit that, in the past, the understanding of my party on these issues has not been exemplary. However, things have changed and continue to do so. Your Lordships have only to wander down the Corridor to the other place to see the number of black and minority ethnic MPs sitting on the Conservative Benches.

Important decisions and actions have also been taken, notably the Mental Health (Discrimination) Bill of Gavin Barwell MP, the removal of innocent people from the DNA database and the emphasis on the need for adoption and fostering of black and minority ethnic children. These are changes to key areas where black and minority ethnic communities have been disproportionately affected for too long. However, these should not be party political issues. I say cautiously to noble Lords that as a Parliament we may have some reflecting to do on accessibility to parliamentary employment and experience. What if you were to lay out the photos, without any further identifying information, of all those who have a security pass issued by a Member of either House? How would we score on ethnic minority inclusion and disability? I am not overly confident in that regard. If lobby journalists have begun to be self-analytical and concerned, as an article in the New Statesman last year indicated, we as parliamentarians should be as well.

I turn to the specific issues in the report. First, it is important to note that the report was issued before the 2011 census results regarding this community were produced. We have seen a rise in the relevant statistic from 8.7% of the people we are discussing in England and Wales having a black and minority ethnic background to a figure of 14% now, so I think it is correct to say that the 1 million BME disabled people mentioned in the report may well be a case of underreporting.

As regards underclaiming of benefits and access to services, much in the report reflects what was reported by the Department for Work and Pensions back in 2010. It is very worrying to read that there is a reversal of the normal maxim that the very poorest are the most likely to claim. Black and minority ethnic disabled people are often in poverty but are not claiming what they need. I wonder whether the Government have thought about trying to enlist the assistance of religious institutions that understand these issues in promoting benefit and service take-up.

An intriguing finding in the report is that there is a lower prevalence of impairments among black and minority ethnic disabled people of working age, but that over the age of 40 prevalence increases dramatically. What are the reasons, rather than hypotheses, for this increase in impairment among members of the BME disabled community who are over 40? I would be grateful to my noble friend the Minister if she would commit to look at the reasons as we could then look at prevention.

As other noble Lords have mentioned, issues arise around language barriers. The report highlights a further legacy: namely, the effects of having placed insufficient emphasis on the need to be proficient in English. Lack of language hampers the ability not only to access services and benefits but to take up many of the opportunities that are available in the UK. Whatever one’s views might be on spending public money on translation, I hope it is not contentious to say that in the future older people who are less proficient in English, and often therefore less well integrated, will require residential care. The report clearly highlights the increased needs of disabled people in black and minority ethnic communities as they age. Can we suddenly expect every person over the age of 55 who has little or no English to learn a new language at that stage? I doubt that. How will residential care homes adapt, given this ageing demographic of the black and minority ethnic disabled population? As schools cater for children with English as a second language, will we need residential care homes that cater for people who speak English as a second language? Have the Government anticipated this matter and what is their response to this ageing demographic issue? We are in the midst of the assessments for PIP, the replacement for the disability living allowance. Are the Government ensuring that language issues are not a barrier here? Will my noble friend the Minister outline the guidance that has been given to Capita and Atos, the head contractors?

It is easy to forget how difficult it can be for people who feel stigmatised, have language problems and are then faced with the language of bureaucracy and end up not claiming what they need. Before Christmas, I had the privilege of meeting a disability rights campaigner, Jane Young, who I think could give any adviser, even my noble friend Lord Freud, a run for his money as regards knowledge of the changes that we have introduced to welfare legislation. However, what struck me most was how upset she was when her disability meant that she was no longer fit for work, after having always worked up to that point. She exemplified a principle that I think rings true for most people—there are times when you give into the pot and times when you receive. It is a privilege to have paid into a system that supports people such as Jane Young.

Welfare Reform Bill

Baroness Berridge Excerpts

Wednesday 25th January 2012 Lords Chamber

[Baroness Berridge]

My Lords, I have not spoken previously in your Lordships’ House on this Bill, but I briefly practised as a family barrister and as such I hold the noble and learned Lord, Lord Mackay, in the greatest esteem. However, what initially looked attractive when I received his letter has given me pause for thought.

As a barrister, I witnessed how unresolved issues concerning the breakdown of a relationship get played out in matters concerning money as well as children. Although much has been said on behalf of mothers, who are in the majority in this situation, of course it is not as simple to say that just because the mother has the care of the children she is not sometimes at fault for the fact that maintenance is not paid. I would like to put on record before your Lordships the perspective of fathers, which I think is best described in the lyrics of Professor Green’s “Read All About It”, one of the most popular downloads last year. He was referring to his mother when he said:

“After all, you were never kin to me.

Family is something you have never been to me.

In fact making it harder for me to see my father

Was the only thing you ever did for me”.

It is a heart-rending rap about a child caught in the animosity of a break-up. As I am sure your Lordships will agree, avoiding conflict in the courts or in any other forum helps to limit such animosity, greatly to the benefit of the children.

Will there be rare cases where the lack of payment is entirely the mother’s fault? Yes. Will there be cases where the lack of payment is entirely the father’s fault? Yes. However, in the majority of cases it will be to some extent both people’s fault. If I were convinced that this amendment would address only the concerns outlined by the noble and learned Baroness, Lady Butler-Sloss, I would support it. Unfortunately, I believe that the unintended consequence of this amendment would result in the adjudication of matters that would not assist or encourage amicable ongoing relationships between the parents, which are of the greatest value to the children at the end of the day.

I am afraid it is not as simple as just catching the cases outlined; nor unfortunately are parents always able, in my experience as a barrister, to separate their role as a parent from the issues of the breakdown of the relationship. I would be grateful if my noble and learned friend could please outline how there will be a determination as to whether or not someone has taken reasonable steps without some kind of judicial process, and how introducing any form of fault-based assessment of the parties’ conduct in relation to the payment of money is possible without inadvertently—and I accept it is inadvertently—providing a forum in many cases for the outstanding relationship issues to be unhelpfully vented. I am afraid I am not convinced by the noble and learned Lord’s amendment.

[Lord Kirkwood of Kirkhope]

My Lords, I will just take two minutes to deal with that, if I may.

First, I have encountered the break-up of marriage at a variety of levels. I was involved in consistorial legal work before I was elected in 1983, and I spent most of my time in the House of Commons as a spokesman for my parliamentary group and then as a chairman of a Select Committee which endlessly looked at the 1991 Act and all the bits and pieces that flowed from it. It has been quite clear to me as a result of all that experience that if anybody tries to take some lessons and principles from the cases that are conducted in the High Court of the land, dealing with many thousands of pounds at a very high level, where things are fought over and the big silk hanky brigade of the legal establishment makes lots of money, they are a million miles away from ordinary people whose families break up week in, week out. I do not think it is safe to start contemplating the amendment tabled by the noble and learned Lord, Lord Mackay, and its consequences, when seen from that perspective. That is not what this is about.

I mentioned Select Committees. I just want to draw noble Lords’ attention to the fact that the current Select Committee in the other place recently produced a report on this which recommended that where parents with care had taken all reasonable steps to investigate a private arrangement but that was not possible or appropriate, no charges should be made. In my view, there has never been an established case made for charging either parents with care or non-resident parents.

The Henshaw report was an extremely scrappy piece of work. The noble and learned Lord, Lord Mackay, rightly pointed to the fact that even the Henshaw committee, upon which most of the Government’s case is made, clearly said that it did not want any disincentive effect to be imposed as a result of charging. It made a different case altogether. Incidentally, the Henshaw committee report was as clever as to say that we should close down the CSA and have a residual body to chase debts. That is about how sensible some of the recommendations in the Henshaw committee report were. As far as I am concerned, it is true that it was discredited before the ink was dry and it went for ministerial consideration.

This issue is about whether charging will assist collaboration and co-operation between separating parties. I can see no understandable circumstances that charges would make it easier for people to stay together longer. I do not see how that case can be made or that it has been made.

The system we are setting up for 2014 will be much cheaper for a variety of reasons. From an administrative point of view, there is no need to put money into the system because the assessment process, the computer systems and so on will make the whole administration of this, if it all works, a lot easier. It is entirely affordable. The way in which some Ministers have been rubbishing the system is disgraceful. It is not a perfect system but it supports 870,000 children—I repeat, 870,000 children. This is not an insignificant institution which could be done without. Nudging 50 per cent of single parents with care get something like only £20 a week. That is the extent of the money that they derive from the system, but it is essential for those who use it.

Quite simply, collaboration between the parents who are separating will not be assisted by charging. It would inevitably result in less money flowing to the children in the charge of the parent with care. There is no case whatever for charging, so I am compromising greatly in supporting the entirely reasonable amendment moved by my noble and learned friend Lord Mackay. Speaking for myself, I would scrap the whole idea and not give it house room. I hope that the House will come quickly to a resolution and I encourage noble Lords to support the amendment in the name of the noble and learned Lord.