Marriage (Same Sex Couples) Bill
Baroness Thornton Excerpts(10 years, 10 months ago)
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Baroness Brinton
Very briefly, I shall build on the comments of the noble Lord, Lord Pannick. We are often obsessed with a view of what is normal, as if in every classroom in the land all children come from a traditional, normal background. I know from the children whom I come across daily in schools that they know from their own experience that their friends come from single-parent families, whether through bereavement, divorce, separation, kinship carers, foster parents and, yes, children of civil partnerships. Some children know that they were born by IVF and have more than two parents. The father of one child I know married the woman who had first been his mother-in-law, and later she became his step-sister-in-law before becoming his wife. That is something to do with family values in the 21st century.
The point made by the noble Lord, Lord Pannick, about the value of a stable relationship is absolutely key—and that is what the research should be looking at. The research quoted from Cambridge already demonstrates that there is really strong evidence in that sort of same-sex relationship.
Baroness Thornton
My Lords, I am building again on the wise words of the noble Baroness, Lady Brinton, and the noble Lord, Lord Pannick. There is no need to attach this amendment to this Bill. The Secretary of State is already bound to provide guidance to teachers under all circumstances, and will do so with regard to this Bill in the right and appropriate manner. This is not the way to do it. The amendment is not appropriate, as noble Lords can see if they read it themselves that the research is commissioned in this Bill.
Lord Norton of Louth
My Lords, perhaps I may deal briefly with this in bullet form. The point that has just been made about parenting is totally irrelevant to what this Bill seeks to achieve, and it is certainly irrelevant in terms of the amendment before us, to which the noble Lord, Lord Singh, did not really speak. When he does, I think we would be interested to hear why, under subsection (9), on those who would vote in the referendum, he would exclude Members of your Lordships’ House.
We keep hearing about public opinion as if somehow it is divided—no, it is not. Every poll that has put the question in a neutral way has produced a very clear result. What is remarkable about opinion is not that it is divided but how consistent it has been. As Lewis Baston has written in the latest issue of Total Politics:
“A typical result for a neutrally worded question is support somewhere in the low- to mid-50 per cent range and opposition in the mid-30 per cent range”,
before concluding:
“While there may be some legislative twists and turns in the House of Lords, the battle for public opinion has been won by supporters of SSM”.
With that consistency, there is really no need to consult. The position is quite clear.
In terms of holding a referendum anyway, as the noble Lord, Lord Pannick, pointed out, at the end of the previous Parliament the Constitution Committee produced a very thorough report on referendums, weighing the arguments for and against, and concluded that if they were going to be held, they should be not only on constitutional issues but fundamental constitutional issues. Not only is this not really a constitutional issue; it certainly does not qualify as a fundamental constitutional matter.
It is essentially a matter of social policy. Parliament has legislated on significant social policy before. This would be on a par with abortion and divorce, which, as I recall, were not manifesto commitments and not issues on which anybody was really suggesting that there should be referendums. So if we are going to start saying that we should have referendums on social issues, there are wider implications. We would need to consider it very thoroughly before we went down that route. There is absolutely no merit in the amendment before us and I hope that we do not pursue it.
Baroness Thornton
My Lords, you have to hand it to the people who do not like this Bill. They really do not like this Bill and they are fighting it right to the very end, and that is what this is about. They are perfectly within their rights to do that, and I particularly enjoyed the heartfelt plea of the noble Lord, Lord Waddington, in this debate.
I am not going to repeat all the arguments that have been made. I simply refer your Lordships to the noble Lords, Lord Fowler, Lord Pannick and Lord Norton, my noble friend Lord Alli and my other noble friends who have spoken in this debate. They are absolutely right.
I say to the noble Lord, Lord Martin, that actually the votes were free votes. This was not a question of the Government and the Labour Opposition. They were free votes. There were Members on all sides—
Baroness O'Loan
I would just like to ask the noble Baroness whether the Labour Party votes on Monday were all free votes. There was an understanding that some of them were whipped.
Baroness Thornton
The noble Baroness knows very well the answer to that question. All the votes about the principle of this Bill were free votes in both Houses. We in the Labour Party made it completely clear that we would whip on two issues only, which were issues of public policy to do with teachers and registrars, and that is what we did. We have been completely clear, open and honest about what we were going to do.
As the noble Lord, Lord Fowler, said, the fundamental issue here and particularly in the Commons—the democratic House—is that all those MPs have to go back and face their constituents about this issue. They will have to face them every week about this issue. So they would not have voted on a free vote for this Bill had they not felt it was the right thing to do. That is exactly what they should do.
Frankly, the idea that noble Lords in this House are somehow pushovers or sheep to be led through the Division Lobbies is completely absurd, as this debate shows. If I might repeat what I said in Committee, this amendment is a nonsense and the House needs to reject it.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, Amendments 96 and 134 seek to provide in the Bill for a referendum on marriage of same-sex couples, to be held on or after 24 October 2013. I recognise that the date has been brought forward somewhat from the amendment that we discussed in Committee; otherwise, it is very nearly identical to that amendment, tabled by the noble Lord, Lord Anderson of Swansea, supported by my noble friend Lord Cormack and the noble Lord, Lord Singh.
It will come as no surprise to the House that the Government are unable to accept these amendments. We do not believe it is a sensible course of action, nor is it required. I listened carefully to what the noble Lord, Lord Singh, said in moving his amendment, and I recognise his strength of feeling on this issue. As he knows, he and I do not agree on the principle of the Bill. Nevertheless, I profoundly respect not only his view but the depth of feeling with which he holds it.
There are one or two points that I wish to take up on this matter. There was one practical matter to start with. The noble Lord almost suggested that it was a conspiracy that the Government could put my noble friend Lady Stowell’s letter into the Library, but somehow his could not be. That is just the way the House operates. However, what I can say is that the Government can place documents in the House Library and if the noble Lord would like me to, I am happy to place a copy of his reply to my noble friend Lady Stowell in the Library, and would be pleased to do so if he feels it would be helpful to the debate.
Baroness Northover
My Lords, Amendment 123A replaces government Amendment 123, which, as I explained to the House on Monday, the Government were considering withdrawing and have just done so.
To give a little background, the Delegated Powers and Regulatory Reform Committee reported on this Bill in its fourth report of the Session. We are most grateful to the committee for its comments and recommendations, to which we responded in a series of amendments that the House debated on Monday. One of the recommendations of the committee was that regulations made under Clause 9, which deals with the conversion of civil partnerships, should be made by the Secretary of State rather than the Registrar-General and should be subject to the affirmative procedure on first use because it was not clear that all such provisions would be purely administrative in nature.
We were happy to accede to this recommendation but were also conscious that, in the future, the Registrar-General may need to update her administrative procedures. To require regulations to be made by the Secretary of State regarding such matters would be overly bureaucratic and break with the convention that the Registrar-General makes regulations relating to her functions that are purely administrative. For example, the Registrar-General already makes regulations, without any parliamentary procedure, prescribing the detail of marriage and civil partnership registration, the duties of those responsible for registration and the forms to be used.
We therefore proposed through Amendment 123, which has now been withdrawn, that the Secretary of State or the Lord Chancellor could make enabling provision for the Registrar-General to make regulations relating to administrative matters. We continue to believe that such sub-delegation is the appropriate way of dealing with these administrative details. However, as the chairman of the committee, my noble friend Lady Thomas of Winchester, helpfully highlighted to us before Monday’s debate, the amendment had been drafted in a way that would allow the Secretary of State or the Lord Chancellor to sub-delegate in respect of any of their order-making or regulation-making powers in the Bill.
While it was never the Government’s intention to use the proposed power in such a far-reaching way, and the use of the power was limited in any event only to where it was in connection with administrative matters relating to functions of the Registrar-General, superintendent registrars or registrars, we accept that it would not have been appropriate to move the amendment with such concerns outstanding. That is why we have tabled Amendment 123A, which is more restrictive as to the circumstances in which the Secretary of State may sub-delegate regulation-making powers to the Registrar-General. Its effect is that there are just two provisions where the Secretary of State can now exercise such a power.
The amendment states explicitly that sub-delegation may occur only where the Secretary of State considers that it is necessary in connection with the administrative functions of the Registrar-General, superintendent registrars and registrars under Clause 9, concerning conversion of civil partnerships to marriages, and Amendment 90, concerning marriage by belief organisations—if the Government in future decide to allow such marriage. We consider that the sub-delegation of regulation-making powers to the Registrar-General is necessary and appropriate in these two contexts, but it must be subject to clear restrictions. In particular, there is no power for the Secretary of State to sub-delegate provision as to fees.
Amendment 123A also makes it clear that the default position is that any delegated regulations made by the Registrar-General would attract the negative procedure, unless varied by the Secretary of State in the event that she felt that this was justified because of the nature of the particular regulations. I can assure noble Lords that any regulations of the Secretary of State’s sub-delegating powers to the Registrar-General will be put before Parliament for scrutiny.
The chairman of the committee has written today to confirm that the committee is content with the revised amendment; I am pleased about that. I hope that noble Lords will agree that this amendment is a measured and appropriate response to the committee’s concerns, which delivers our policy intention while ensuring that there can be no inappropriate use of the powers. It is extremely nice to end Report on what I hope is a constructive and consensual basis; I note that many noble Lords left the Chamber as I started. I commend Amendment 123A to the House.
Baroness Thornton
My Lords, I thank the noble Baroness for that very clear exposition of this very sensible amendment. I am pleased to say that we will, of course, support it.
Marriage (Same Sex Couples) Bill
Baroness Thornton Excerpts(10 years, 10 months ago)
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Baroness Thornton
My Lords, I join other noble Lords in congratulating everybody, really. This is one of those occasions. I congratulate the noble Baroness, Lady Meacher, the noble Lord, Lord Garel-Jones, who I hope will be back with us soon, my noble friends Lord Harrison, Lady Massey and Lord Alli, the noble Lord, Lord Lester, and the noble Baroness, Lady Brinton. Of course, I also sincerely congratulate the Minister and the very talented team who worked with her on this. Late on Thursday, when we were trying to get the amendment down, get my name on it and do all the clearances, I was in an LSE governors’ meeting. I texted the Minister to say that I thought we both needed a gin and tonic. I did not get one, but I hope she did.
I also congratulate the British Humanist Association, Andrew Copson its chief executive and his team who consistently jumped through hoops that had been set for them all the way through this process. They have sought all along the line to accommodate all the questions that have been asked. Noble Lords may remember that I said that my children would not be able to be married by a humanist celebrant in this country. I will now have to tell them that if they intend to get married they will probably have to have quite a long engagement. However, this is the House doing its job by doing good.
Baroness Stowell of Beeston
My Lords, I am very grateful to the noble Baroness, Lady Thornton, for reminding the House that I am part of a team. While I am very taken by the kind tributes made by the noble Lord, Lord Harrison, in particular, and the noble Lord, Lord Alli, it is important to stress that we have worked as a team in Government to be able to come forward with this amendment. We are very pleased to do so. I echo all the tributes just made by the noble Baroness, Lady Thornton. If it were possible in Lords-speak, I would say “Right back atcha”, as they might say somewhere else.
If I may, I will respond to some of the serious points that have been made. My noble friend, Lord Lester, is right that we are amending the Long Title of the Bill to ensure that this amendment is properly reflected in what will become an Act. I note his points about that. I also note his point about there being belief organisations and belief organisations, and the need for safeguards. I note the questions of the noble Lord, Lord Anderson, about what people call, in shorthand, sham marriages. I also note what the right reverend Prelate the Bishop of Chester said about various points of detail. All of these contributions have emphasised why this is important, and why we think it is the right approach to have this review and consultation and make sure that all of these matters are properly considered. That is what we will do. As I said earlier to the noble Baroness, Lady Meacher, it is in the Bill that we have to do that before 1 January 2015, so we will certainly make sure that it happens.
Baroness Thornton
My Lords, I know that my noble friend is very concerned because cultural change is always difficult and sometimes painful, and I understand that. We have discussed these issues in some detail in Committee. I say to my noble friend that although the safeguards to protect people’s freedom of speech exist, we also have the safeguards under the Equality Act, which is a carefully considered piece of legislation. They set the boundaries and characteristics that allow religion and belief as a protected characteristic, so we have the safeguards that ensure that this amendment is not necessary. As several noble Lords have already said during this debate and in Committee, one cannot legislate against idiots taking silly cases. Although in some of the cases that my noble friends have mentioned people won those vexatious, silly cases, that does not mean that you change the fundamental laws and freedoms that we already have. We will be opposing my noble friend’s amendment.
Baroness Stowell of Beeston
My Lords, I will begin by saying a couple of things to the noble Lord, Lord Anderson. He is absolutely right that we feel very strongly about the need to protect the freedom of speech, which is what we are doing through this legislation. He also talked about this being a serious amendment, and that he wishes the Government to take it seriously. I can assure him that not only do we take this amendment seriously but that we have taken seriously all amendments that have been tabled, both in Committee and on Report, and will continue to do so.
The noble Lord mentioned various examples to illustrate his argument that employees need additional protection. I responded to all of them at various stages of the Bill, so I will not do so again now. However, he said that people feel concerned that once the Bill becomes an Act—and we hope that it will become an Act—they will not be able to maintain what he described as a mainstream view. I understand that concern; however, not only will it be possible for people to maintain and express their belief, we recognise that that belief is a mainstream opinion. We are not trying to say that it is a sidelined opinion—it is an important belief that many people hold, and we would not want to say anything to undermine people who hold that belief, as we respect them.
On the noble Lord’s amendment and its proposal to amend the Employment Act 1996, we are not convinced that it is necessary, or desirable, to provide additional protection for employees in this way who express a belief that marriage should be only between a man and a woman. Discriminating against an employee because of this belief would already be unlawful under the Equality Act, as the noble Baroness, Lady Thornton, said. That existing protection strikes the right balance in providing protection for the employee, while also protecting other employees and customers from discrimination and harassment. It is important to understand that the Equality Act is there to strike a balance. Employers must have the right to ask their staff to do what is necessary to run their business, provided that it is reasonable and lawful. Therefore, if an employer does not think it right that an employee should express personal views on this or any other subject to customers, for example in a restaurant or hotel, he should be able to ensure that his employees perform their jobs in the appropriate way. To be clear, that does not mean that an employee has no right to hold the opinion or belief that they do.
Furthermore, if we are to pick out this particular belief for protection in the Employment Rights Act, what is the justification for stopping there? Other beliefs are equally worthy of protection, including the belief that marriage can be enjoyed equally by same-sex couples. The principle applies to an enormous range of beliefs which are entirely legitimate, although the expression of them might impede the performance of the job in question.
Employees are already protected under discrimination law. The Equality Act already provides comprehensive protection against unlawful discrimination—both direct and indirect—harassment and victimisation. It would be a matter of fact whether conduct of an employer constitutes a detriment and whether it is imposed because of the employee’s belief that marriage should be of one man with one woman. If there is direct discrimination, it would not be capable of justification and would be unlawful.
We believe that these amendments are unnecessary and potentially damaging to the balanced way in which the Equality Act protects people from discrimination and harassment. There is no need for further protection to be added to the Employment Rights Act. I hope, therefore, that the noble Lord feels able to withdraw his amendment.
Lord Deben
My Lords, we have complained about many people suing, but this is an absolute opening for anybody to sue. I find it incredibly peculiar to say that an employer should organise his business so that somebody who objects to same-sex marriages could say that it was unreasonable to drive two people from one place to another. There is a limit to what can be reasonably considered a conscientious objection.
I voted for the case of registrars because I felt it was one end of the limit. I have to say that this really is ridiculous. It will open up the opportunity for people to sue the other way round on the basis of the most trivial issues. If a cook was able to say, “I am afraid that my petit fours cannot be used for the reception at a same-sex marriage”, we are making a laughing stock of the law. This is not just a bridge too far, it is a whole highway beyond where we should go.
Baroness Thornton
My Lords, the noble Lords, Lord Deben and Lord Lester, have put this very well indeed. I would add just one other matter. I find my noble friend’s view of the future rather depressing. I do not believe that people will argue and fight with each other about the existence of same-sex marriage. I simply do not believe that this is what will happen. Apart from the fact that in most cases this is a private matter between two people of the same sex or opposite sex, it is not the kind of issue that will raise the problems that my noble friend has suggested. I hope that, as the Bill moves forward in the next year, my noble friend will start to take a more optimistic view of it.
Baroness Stowell of Beeston
My Lords, I am grateful to all noble Lords who have contributed to this debate. I shall try to avoid repeating myself, because a lot of this amendment would lead me to do so. I will avoid doing that, if the noble Lord, Lord Anderson, will forgive me, and go directly to the central point of his amendment.
My first point is that an employer should have the right to ask his employees to do their job. Equally, he may not impose a requirement on them that would discriminate against them because of their religion or belief. Of course, it is open to private sector employers to make any adjustment they wish for their staff. It is quite possible, and perfectly lawful, for an employer to allow staff not to be involved in any activity that is objectionable to them—if the employer wishes. In this regard, private sector employers are not in the same position as public sector employers. As the noble Lord made clear, he does not include the likes of registrars in this debate in any case.
However, imposing a duty on employers to provide reasonable accommodation in respect of religion or belief would be a new concept in English law, as the noble Lord has already acknowledged, although he mentioned that it was common practice in the US. We would need to consider in detail how that duty would work in conjunction with the rules on indirect discrimination, and whether all other religious and philosophical beliefs should be equally protected—not just the belief that marriage should be of one man with one woman. That is not a task to be undertaken in this Bill, and I note the comments from my noble friends Lord Lester and Lord Deben about their view of this concept.
To pass this amendment would add a new burden on employers, who would have to work out what it means in their own particular context. It is probably worth pointing out that in his evidence to the Joint Committee on Human Rights, Robin Allen QC, on behalf of the Equality and Human Rights Commission, made clear that the existing legal protections contained within employment and equality law would be suitable to deal with any issues that may arise. He advised against including additional safeguards, such as a reasonable accommodation provision in this Bill.
So the current provision in legislation, which prohibits discrimination because of religion or belief, is fit for purpose. To impose a whole new duty of reasonable accommodation in this Bill is unnecessary. It could also be damaging to the balanced way in which the Equality Act operates, create uncertainty and add a new burden on employers who would have to make sense of it. I therefore ask the noble Lord to consider withdrawing his amendment.
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 Thornton Excerpts(10 years, 11 months ago)
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Baroness Thornton
My Lords, I congratulate the Government on meeting two out of the three issues that the Bill has raised for transgender people, and doing so in a sensible and calm fashion. The only outstanding issue left is the proposal being tested here—that same-sex marriage legislation gives spouses the power of veto over whether a transgender partner can have legal recognition of a change of gender. The noble Baroness, Lady Barker, my noble friend Lady Gould and the noble and learned Baroness, Lady Butler-Sloss, have explained the issues perfectly well. I do not think they are complex; they are very straightforward. This is an unfairness and injustice that needs to be balanced out and dealt with in the Bill.
It is an irony and a great shame that, when enacted, the Bill will affect the human rights of transgender people and take them backwards in the UK. I do not think that is the Government’s intention, and I am sure that it is not the intention of the Minister. From these Benches, we think it is important to resolve this issue, which affects a minority of people but, as the noble and learned Baroness, Lady Butler-Sloss, said, can have a very painful and lifelong effect. The Government need to address it. I hope that between now and Report, we will be able to resolve the issue.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble friend Lady Barker for introducing this group of amendments and also to all who have spoken in the debate today. It is an incredibly sensitive issue, and I am mindful of that in responding. The noble Baroness, Lady Gould, made a powerful speech and I want her to know that I was listening carefully to her arguments. The Gender Recognition Panel has been consulted throughout as we have been drafting the Bill and it has not raised any concerns or matter that we have not been able to address.
Before I get to the detail of the amendments, let me be clear from the start—in a way it is a response to a point made by the noble Baroness, Lady Thornton—that our concern in the Bill has been to ensure that as many couples as possible are able to stay married if they wish to do so following one or both spouses obtaining gender recognition. We are proud to make that possible in the Bill and it is something that we very much support.
The provisions in the Bill allow the spouse of a transperson to agree and consent to their marriage continuing as a same-sex marriage after gender recognition. It is not a block or a veto; they cannot prevent their spouse obtaining gender recognition. It is important that I make that point. I will explain in a little bit more detail, but nobody is able to stop anybody getting their gender recognition certificate—of that I can be very clear.
The Bill seeks to strike a fair balance between the Article 8 rights to respect for the private and family life of both spouses. The trans spouse has a right to be granted their gender recognition without unnecessary delay, but the non-trans spouse also has a right to have a say in the future of their marriage following their spouse gaining gender recognition. We have, during the passage of the Bill, listened carefully to interested stakeholders from the trans community. I have been glad to meet some representatives with my honourable friend Helen Grant, the Minister from another place. I am grateful to those who have been involved in the preparation of these amendments, and for the time and effort that have gone into them because I know that has been considerable.
I will turn specifically to what the amendments seek to do. The first aspect is the limit of six months in proposed new subsection (3A), relating to both spouses’ power to initiate annulment proceedings following the issue of an interim gender recognition certificate. The point is that there should be a limit of six months for annulment proceedings to start. In response to a point made by my noble friend Lady Barker and the noble and learned Baroness, Lady Butler-Sloss, I want to make it clear that if a spouse refused to commence annulment proceedings, the trans spouse would be able to do so. In the Bill as it stands, either spouse in the marriage is able to start annulment proceedings. It is not just in the hands of one spouse.
In terms of the second time limit of 12 months in proposed new subsection (3A), once annulment proceedings have been commenced, it is for the court to bring the marriage to an end and, upon that occurring, to issue a full gender recognition certificate to the applicant. To require the Gender Recognition Panel to issue a gender recognition certificate while court proceedings are ongoing would be to require the panel to usurp the functions of a superior court. Where one spouse is deliberately delaying the annulment process, the courts already have the power to deal with this. I will be absolutely clear: either spouse is able to bring forward annulment proceedings and once they start, they are in the hands of the court. Most annulment proceedings take three months—or, from the very outset, six months I think—but it is the court that will ensure that they continue in line with the proper process.
There is another element to the amendments, which I am not sure my noble friend covered in her introductory remarks, but to which I will respond. Proposed new subsection (3B) relates to civil partnerships. The Government do not believe that removing the right of spouses to have a say in the future of their marriage following conversion and gender recognition strikes the proper balance between the rights of both spouses. The agreement of a non-trans civil partner to the conversion of their civil partnership to a same-sex marriage is one thing—it is not the same as their agreement to the resulting marriage continuing as an opposite-sex marriage following their spouse’s gender recognition.
That covers the situation where a couple are already in a civil partnership and one of them has gender reassignment. If the non-trans spouse agrees to transfer the civil partnership to a marriage, to allow their certificate to continue, that is not the same as the non-trans spouse agreeing at the same time that they want to continue to be married to somebody who would then be of the opposite sex but who was of the same sex when they first entered into a civil partnership.
The Government and I are always prepared to listen and to take great care in responding to points raised in debate. It is probably worth mentioning that we have already made an amendment to the Bill to protect the pension rights of transpeople who receive a gender recognition certificate and are then in a same-sex marriage, so that they retain the same rights as if they were married to somebody of the opposite sex. Following the debate in the other place on the fast-track procedure, we have been considering this carefully, and I hope very much to bring forward something positive in that area on Report.
The noble and learned Baroness, Lady Butler-Sloss, and other noble Lords asked whether a spouse is currently notified at the point of application. Under current rules, a spouse is not notified of her trans partner’s gender recognition application. This is because the marriage must be annulled before a full gender recognition certificate can be issued. The process, as it stands, requires somebody to have annulled their marriage before it is possible to get a full gender recognition certificate. However, I have only just been made aware of that issue and would like to follow up with a letter to the noble and learned Baroness, to my noble friend and to other noble Lords to explain the point in more detail.
I regret that I am not able to accept the amendment, but I hope I was able to give noble Lords the assurance they quite rightly seek. This is not about anybody having more control than the other person over the future of their marriage; it is about ensuring that there is an equal share and balance of rights between the two parties, and that it certainly is not just one spouse who has the right to annul the marriage.
Baroness Thornton
I do not think the noble Baroness has actually addressed the issue of one spouse having the right of veto. I think that is very important. Spousal vetoes are spousal consents, which we got rid of in this country many years ago. A husband actually had to consent to his wife divorcing him, for example. I ask the noble Baroness to look at this most carefully. At the moment the Bill is in danger of reintroducing into British law a new matter—the right of one spouse to veto the actions of another—which we got rid of many years ago.
Baroness Stowell of Beeston
I hoped that I had responded to that, because we are clear that one spouse is not vetoing somebody else’s rights. If the transperson in the marriage wants to go for full gender recognition and receive the certificate, they are absolutely entitled to do that. However, if the person to whom they are married does not want to remain married to them, then they have to make a decision about the future of their marriage. We argue that for the non-transperson, whether they wish to remain married to somebody who has gone through gender reassignment is quite a fundamental thing to have to consider. This is not saying that somebody who wants to reassign their gender is not able to do so. The issue is whether they are able to remain in the same marriage. The person to whom they are married also has some right to decide whether they want to remain married to somebody after that person has changed their gender.
Baroness Thornton
The point here is whether the effect of this is that the transperson cannot complete their transition. That is the point the Minister is not answering.
Baroness Stowell of Beeston
Forgive me, but I think I am. I am saying that if someone wants to go ahead with gender reassignment and their spouse does not agree to remain married to them, then it is open to them to start annulment proceedings, as indeed it is to the spouse who no longer wishes to remain married to them. Both of them have the right to start an annulment proceeding, and the person who wishes to change their gender and receive a full certificate can do that. It is not about them being unable to change their gender. They have the right to do that, and nobody is stopping them doing that. However, if the person to whom they are married does not wish to remain married, sadly they have to make a choice. They have to decide, and it must be their choice. It is not a choice that the state can make for them.
This is an incredibly difficult situation, as has been made clear in the course of this debate. Fundamentally, it concerns the decision of two people about their future. Each person has equal rights in the future of their marriage, but they must decide for themselves. These amendments seek to institute a time limit after which the state decides for them. It is not for the state to decide who people should be married to.
Baroness Thornton
We are talking here about a balance of rights. I think that I would like guidance, which I would be happy to take in writing or in a meeting. The objections of either spouse might be based on religious conviction, for example, although other objections are possible, too. Equalities cases such as those of Ladele have shown that Article 9 rights need to be balanced with other rights. In this scenario, are the Government explicitly placing someone’s Article 9 rights above their partner’s Article 8 rights? I am not asking the Minister to respond to that question now, but I would like that to be part of this discussion.
Baroness Stowell of Beeston
I certainly accept the noble Baroness’s invitation to respond to her on that point either in a meeting or in writing. However, I can say quite clearly that the rights at issue here are only Article 8 rights; that is, each party’s right to a private family life. I shall of course respond in detail to that.
On the point raised by the noble and learned Baroness, Lady Butler-Sloss, under current rules a spouse is not notified of her trans spouse’s gender recognition application because the marriage must be annulled before a full gender recognition certificate can be issued. In order for somebody to obtain the certificate, they would already have had to deal with the issue of their own marriage, because it is not possible in current law for two people of the same sex to be married.
I take the point that the noble and learned Baroness made about there being a need for spouses to be notified of changes sooner rather than later. Clearly, if the relationship still exists, there will in most cases be a physical awareness of the change. However, since the noble and learned Baroness has raised a serious point, as has my noble friend, I should like to consult my colleagues on it and follow it up in writing.
Baroness Farrington of Ribbleton
My Lords, I had not intended to speak and I am still absorbing the last comment of the noble Lord, Lord Pearson of Rannoch. Like all those who have spoken, I believe that, through the taxation system and regulations on caring, we discriminate against people who devote their lives to caring for others. Personally, I would not want to wait for a review of this nature, unrelated as I see it to be to the issue. We have much to do about reviewing the needs of people who are carers. Legislation is desperately needed; the Government assure us that they are looking at the issue, and to me that is the vehicle.
I cannot see how, in a same-sex marriage Bill or in a civil partnership as it stands now, something that the churches have opposed since time immemorial—incest—can be validated. As noble Lords have said, this issue concerns many relationships that would be ruled out of marriage by law, let alone by the churches, because they would be deemed too close and thus to be incestuous. In saying that, I do not in any way disparage the importance of the issue that needs to be raised. Like other people in this Chamber, I have relied in my lifetime on other siblings helping me to care for elderly parents, and I think that the time is right to deal with the issue.
Saving the presence of the noble Lord, Lord Pearson of Rannoch, we are talking about chalk and cheese in relation to the relationships that would have been supported in the case of the debate that I remember so well having been present for, and what we are doing in this Bill. I ask those who care so strongly about this issue to ensure that it is dealt with expeditiously as part of a review of the circumstances of carers. I hope that when it comes to Report, people will take that very seriously on board because I know carers who cannot wait any longer because their own future is uncertain. As has been said, some changes could be brought in without any loss of benefit to the Treasury; it is merely a question of delay.
Baroness Thornton
My Lords, we have had a very interesting and passionate debate about extending civil partnerships to unpaid carers and family members who share a house. I, too, was present at the debate we had during the passage of the Civil Partnership Bill. I said then that I thought my noble friend Lord Alli was right; that was not the Bill. He is right now that this is not the Bill. That is not to say that this is not an important issue. Of course it is a most important issue.
I just wonder why—or maybe I have missed this and a noble Lord can tell me—this issue has not been raised in the passage of the many Bills that we have had before us in which it could have been raised in the intervening period. We have had Bills about carers. I put down an unsuccessful Bill about free support for people at home. There have been many times when this House could have taken on board these issues and made its views clear in appropriate Bills to do with income support and carers. Yet, again we find ourselves discussing this important issue during the passage of a Bill to do with, in this case, equal marriage. That does not do service to both the importance of the issue of carers and the fate of people who care for their relatives, or the issue before us, which is the same-sex marriage Bill. That is a shame.
On these Benches we do not think this is the right Bill. We think this a good issue and an important issue but we suggest that this is not an appropriate amendment. Will the Minister clarify the Government’s review of civil partnerships—which we understand because we helped the Government to put forward the amendment from these Benches in the other place? How far does he believe that review will go and where will it end up? Our understanding is that it is a review looking at whether one would have opposite-sex civil partnerships and, if so, how that would work.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, this has been a very good debate and the issues have been thoroughly explored. I congratulate the noble Baroness, Lady Deech, on introducing it in the way that she did. I do not think any of your Lordships who have spoken in the debate in any way question the validity—or the value, rather—of the relationships that exist between siblings or other family members where they have mutual duties or care obligations. Indeed, the noble and learned Lord, Lord Lloyd of Berwick, mentioned a particular case of a young man who helped someone who was injured in a riding accident. Certainly, our society, country and communities benefit enormously from the caring relationships that exist the length and breadth of the country. I imagine that many noble Lords can think within their own families of relationships of mutual support between a brother and sister, between sisters or brothers, or intergenerational support.
The amendment moved by the noble Baroness would amend the duty in Clause 14 requiring the Secretary of State to arrange for the review of the operation and future of the Civil Partnership Act so that the scope of the matters to be reviewed includes consideration of the possibility of extending civil partnerships to,
“carers and those they care for”,
and to,
“family members … who have cohabited for 5 years or more and are over the age of eighteen”.
The terms of reference for the review of civil partnerships required by Clause 14 were published on 13 June and a copy has been placed in the House Library. The review will look at the operation and future of civil partnerships in England and Wales. It may help your Lordships if I note what the scope is, according to the published terms of reference. They say that the review,
“will cover England and Wales and will … Examine evidence about how well the current arrangements for civil partnerships are working, drawing on views from the public and organisations with an interest and international comparisons … Assess the need and demand for civil partnerships when marriage is available to all, and whether any changes to civil partnership arrangements are necessary … Identify all the implications of and issues raised by the identified options (including risks and devolution issues) … Assess the costs and benefits of the options … Make recommendations for any changes to the operation and future of the CPA”.
In response to my noble friend Lord Lester, it is not the Government’s understanding that that would extend to issues of cohabitation. In a Written Ministerial Statement on 6 September 2011, the Government said:
“The findings of the research into the Scottish legislation do not provide us with a sufficient basis for a change in the law. Furthermore, the family justice system is in a transitional period, with major reforms already on the horizon. We do not therefore intend to take forward the Law Commission’s recommendations for reform of cohabitation law in this parliamentary term”.—[Official Report, Commons, 6/9/11; col. 16WS.]
Marriage (Same Sex Couples) Bill
Baroness Thornton Excerpts(10 years, 11 months ago)
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The Lord Bishop of Guildford
My Lords, I greatly appreciate both the humour of the noble Lord, Lord Garel-Jones, and the courtesy of the noble Lord, Lord Harrison, and the noble Baroness, Lady Massey. Conversations have just been referred to. There has indeed been a conversation, as the noble Lord, Lord Harrison, said, but it was only a few days ago and it was just with officials. There is not yet, I think, a formal Church of England view on this matter. Your Lordships should take account of that in hearing what I have to say.
Personally, I am open to this proposal. Nevertheless, I have a serious question as to whether it is right—to use the phraseology of the noble Lord, Lord Garel-Jones—to slipstream this into this Bill, which is about same-sex marriage. I have three reasons for seeking to avoid confusion at this point.
First, as has been recognised already, this amendment would intrude a celebrant-based recognition, or at least a partly celebrant-based recognition, into the marriage law of England and Wales. I declare an interest: according to the law of England and Wales, I am one of the persons in this Chamber who can and do solemnise marriages in the Church of England, in parish churches and, with the most reverend Primate the Archbishop of Canterbury’s special licence, anywhere at any time, which is more than civil marriage allows; that is an aside. There is nothing wrong with the celebrant system—
Baroness Thornton
I thank the right reverend Prelate for allowing me to interject on the subject of the celebrant-based system. This amendment is not about introducing a celebrant-based system into the arrangements for humanist marriages. It is quite important that the right reverend Prelate does not develop an argument about the celebrant-based system when actually this amendment does not seek to do that. It seeks to follow the Scottish arrangements for humanist weddings.
The Lord Bishop of Guildford
I am grateful for that point of information and I accept that clarification.
The other issue I was going to put before the House is the professional quality of our registrars, and a very significant change in breaking what is a monopoly of either clergy of religious faith communities or our registrars. That sort of change needs more consultation than has taken place thus far on this issue. I repeat that I am actually open to the issue in principle but I do not think it is right to put it into this Bill.
I must confess some confusion—even Church of England bishops can be confused sometimes—at the way in which many humanists wish to have what seems to be a non-religious church. I see that the noble Lord, Lord Garel-Jones, is assenting. For me, that is, in the words of Alice, “curiouser and curiouser”, but it will be for the House to decide whether or not to slipstream this in. There is a question mark on this Bench.
Baroness Thornton
Does the noble Lord think that the humanists need to wait another 19 years for another Bill to come passing by?
Lord Eden of Winton
I am afraid that that is not the immediate problem. The problem is the impact on this legislation and whether this legislation is the right vehicle for the sort of amendment that is being proposed. That is certainly not the case; we are talking about same-sex couples getting married and the opportunities that the Bill would provide for that to take place both in a civil setting and, if the Church of England later agrees, in a Church of England setting.
Since it is indicated by the quotation that I have offered to the Committee that the Government are prepared to give consideration to the claims of the British Humanist Association, I hope that the Minister will give a clear indication of just what the Government have in mind when they say they will give consideration to these propositions.
Baroness Thornton
My Lords, this has been an excellent debate. I say to the noble Lords, Lord Lester and Lord Eden, that the amendments that were tabled in the other place and those that have been tabled here have been accepted as being within the scope of the Bill, so we are perfectly entitled to discuss them as being legitimate within this piece of legislation.
We on these Benches support Amendments 19A, 22A and 27A. I am a humanist. I am not a lapsed one, though I have veered between being a member of the National Secular Society and a member of the British Humanist Association all my life.
I also need to declare an interest in that one of my sisters is a British Humanist Association-accredited celebrant. One of the things that I would like to say to the right reverend Prelate, who has made very generous remarks during this debate, is that the ceremonies that my sister conducts are in every way as professional, carefully constructed, personal and beautiful as any other funeral, marriage or naming celebration that you could wish for. The standard of training and accreditation that the BHA undertakes is exceptional, and it has a commitment to ensuring that, were this to become part of our legislative framework for marriage, its celebrants would of course match the very best of the registrars. So that is not an issue here. I am very proud of my sister and her calling, and I think she has every right to conduct marriage ceremonies.
If either of my children wanted to be married at a humanist wedding service, at the moment they would have to go to Scotland, Australia, the United States, Sweden or, more recently, Ireland. In England and Wales they would have to have a civic ceremony and then a ceremony organised by a humanist celebrant with all the spirituality and commitment that they will have chosen to have in that ceremony. Their choice is restricted by—I have to say this although it might seem a slightly odd expression coming from this side of the House—the closed shop that we find in the old-fashioned rules on marriage in this country, to say nothing of the fact that they would have to pay twice for the pleasure of getting married.
This is an issue that the Government should embrace. The Red Tape Challenge, a commitment to competition and, indeed, the Minister’s commitment to equality should lead one to the view that this is an area where there is injustice and unfairness and it needs a remedy. I hope that she will accept the principle behind the amendment or, even better, accept the amendment itself, or that the Government will come forward with an amendment at a later stage that will achieve the objective of remedying this injustice. Bearing in mind, as noble Lords have already said, that it is 19 years since the previous marriage Bill, one cannot blame the humanists for thinking it reasonable not to have to wait another 19 years before this anachronism is addressed. Indeed, legal recognition for humanist marriages was given in Scotland in 2005.
Given that legal recognition for humanist marriages is the party policy of the Liberal Democrats, is supported by the Labour Party on this side of the House and by our shadow Cabinet, and was supported in the Commons by MPs on all sides, the amendment to recognise humanist weddings as legal marriages was one of the first to be tabled when the Bill received its Second Reading in the Commons. In Committee, the amendment to give legal recognition to marriages conducted by humanists and religious charities, meeting certain conditions, was introduced but fell after a 7-7 tie on the voting Committee, which was resolved against by the casting vote of the chairman—as it would be, and I accept that those are the rules. However, that shows that there is significant support for this issue.
The redrafted amendment on Report addressed all the concerns raised in Committee as well as further concerns raised afterwards by government officials, and was debated. Again there was strong support from all sides, but the amendment was withdrawn after the Attorney-General and the Secretary of State stated that the measure would not be compatible with the Human Rights Act and that passing the amendment could lead to a declaration from the Government to that effect. The Government published their legal arguments as to why that was so and specifically asked that the legal arguments should represent the comprehensive statement of the Government’s concerns.
The British Humanist Association has taken all of this on board and the amendment before us now addresses all the matters raised in the Government’s document. Written advice from Professor Aileen McColgan of Matrix Chambers has confirmed that the revised amendment addresses all the points of law that were raised in objection to the Government. I will not go through all the proposals now because I think that the House fully understands the issues.
It is time to stop giving reasons for not allowing humanist weddings and to give reasons why they should happen and to give proposals on how we can find a way through this. I finish with a quote from something circulated in the evidence that the British Humanist Association gave.
Lord Lester of Herne Hill
I wonder if the noble Baroness can explain the position on Long Titles, because it may well be that her party will form part or the whole of a future Government. On the question of Long Titles, I realise that the pass was sold in the other place, and that therefore it is quite okay for us to debate this. However, in terms of House of Lords procedure, how can the matter possibly be within this Long Title? Is not the better point that there should be a Private Member’s Bill, with government support, that deals with this as a discrete issue and that can get through speedily?
Baroness Thornton
The point that I was making at the outset of my remarks—the noble Lord is an expert at getting legislation through this House—is that if it has been accepted by the clerks at both ends of this building, in the Commons and in the Lords, then it is within the scope of the Bill. We can have discussions about Long Titles and their meanings, and indeed we occasionally do, but it seems to me that this is fairly straightforward. It is accepted by the clerks in the Commons and in the Lords. It is therefore before us and is a legitimate thing for us to discuss.
Lord Mackay of Clashfern
My Lords, I think that I am right in saying that it is not without precedent for a Long Title to be amended in this House.
Baroness Thornton
I thank the noble and learned Lord for that remark. That is indeed the case.
I conclude my remarks by quoting from somebody who got married. He said:
“I got married twice in a week. My first marriage was conducted by someone who had interviewed my wife and me twice, at length, before the wedding; who spent hours (and several emails) exploring the key elements of the connection we wished to celebrate during the ceremony; and offered her guidance when we requested it, based on her knowledge of us as individuals and as a couple”.
Actually, that is exactly what a vicar would do—of course it is. He went on to say:
“My second wedding–to the same woman, I should hasten to add–happened two days later. It was conducted by an official who had met us for the first time minutes before, and was conducted with the polite efficiency of a market research interview. My first wedding was conducted by a Humanist Celebrant; my second by a registrar. Needless to say, when I think of my wedding, and the vows I committed to, the second set I gave that week rarely cross my mind. Yet it is this exchange currently recognised in UK law”.
The question that I put to your Lordships’ House is: which date do you think that couple celebrate when they celebrate their wedding anniversary?
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Lord, Lord Harrison, for introducing the amendment and for explaining how important it is to humanists that they be allowed to conduct their own marriage solemnisations, according to their beliefs, by someone who shares their beliefs and in any place of their choosing, which could include the outdoors. I have no doubt that a celebration conducted by the sister of the noble Baroness, Lady Thornton, in the way that she described is one that would be enjoyed by those involved.
I am grateful to all noble Lords who have contributed to this debate and talked about the importance of humanist weddings being able to take place. I feel that this issue warrants a careful reply from me. I want to cover quite a bit of ground in my reply, so I hope that the House will indulge me if I am not as speedy as noble Lords might like me to be, but I think this is important.
First, it is important for me to remind noble Lords about the purpose of this Bill. It is about allowing people to marry who currently cannot marry, and the only people who cannot marry at this time are gay and lesbian couples. When we decided as a Government to bring forward legislation to allow that to happen, we decided to do so by making as little change as possible to existing marriage law. The noble Baroness, Lady Thornton, has described quite clearly how different humanists might celebrate their weddings, so I will not go through all the details. However, it is important to make the point that humanists can marry in England and Wales. They might not be able to have at this time the wedding celebration that they would like but, even if they do not want to follow the route that the noble Baroness suggested, where some people go first to a register office and then have a separate celebration, because humanists are non-religious, they have the option, within a civil marriage at a register office, of being able to adapt that service to include vows and readings that reflect their humanist beliefs and values. Although that might not be ideal, they are not alone in sometimes having to adapt their arrangements.
Baroness Thornton
The noble Baroness needs to acknowledge that humanism is a system of belief. It is quite wrong to suggest that, because humanists do not want to have a religious wedding, somehow it is all right for them to have an adapted civil service. That is not the point here. The point is that humanists want to have a ceremony that is a humanist ceremony, based on their beliefs and their value system.
Baroness Stowell of Beeston
I accept that point. Forgive me if I was suggesting anything that was not respectful of what humanists are seeking to achieve. I absolutely understand the point that the noble Baroness is making. I was trying to explain that some people who follow a religious faith might argue that because humanists, although belonging to a belief organisation, are not religious, they have some opportunity to adapt a civil ceremony in a way that a religious person would not be able to.
Baroness Stowell of Beeston
I was trying to make the simple point that the concern that the Attorney-General raised at that time has been addressed. That amendment was very narrowly defined around humanist belief. This amendment is much broader in scope because it is not narrowly restricted just to the British Humanist Association. However, that does not remove from what is at issue for the Government: that by introducing a change this amendment would have wider implications for marriage law in England and Wales. I intend to explain this to noble Lords.
As we have acknowledged throughout our debates on the Bill, marriage is clearly an important institution and a legal recognition through which the state confers rights and obligations. We therefore need to regulate carefully the process by which we allow this important legal status to be established.
Baroness Thornton
I am very puzzled by what the noble Baroness is saying. She is now saying that there are other grounds. In the Commons—and it is on the record in Hansard—the Minister specifically said that the letter that she would send to the British Humanist Association would be comprehensive and would cover all the Government’s concerns. This amendment and the discussions that the British Humanist Association has had since then, in good faith, have met all those points. I am very puzzled as to why the noble Baroness is now leading us into what sounds like the answer, “The Government have concerns about other matters”. It seems like we will never reach the end of this.
Baroness Stowell of Beeston
I do not have the copy of Hansard in front of me for the debates that took place in the other place. However, I am confident that my right honourable friend the Secretary of State, Maria Miller, made it clear in those debates that there were other concerns about this proposal that went beyond those raised by the Attorney-General on that specific amendment at that time. In the letter that my right honourable friend sent to Kate Green, she was also clear that there were issues of principle which went beyond the narrow point that the Attorney-General raised in those debates.
Beyond civil marriages, which now form the majority of marriages, where we give other organisations—that is, other religious faiths—this power to marry, the authorisation is subject to specific safeguards that are well established and embedded in current law. In the case of religious ceremonies—though I absolutely understand that the British Humanist Association is not a religion but a belief organisation—registration is generally linked to a particular building or, in the case of Quakers and the Jewish religion, by a longstanding arrangement that took account of the particular position of those religious organisations. Historians in this House will know that the Marriage Act 1753 recognised the Jewish faith and Quakers as having a special status, which they have retained since that time.
For every other religion except the Church of England and the Church in Wales, a building must first be registered as a place of worship, then a place of marriage. If that is agreed to, the supervising registrar attends all marriages for a year to ensure that compliance with all regulations takes place, including safekeeping of duplicate marriage registers in the relevant premises to accurately register marriages. Religious faiths have very little freedom because the integrity of marriage in England and Wales relies on this system to ensure that marriages are not registered that should not be, and that status is accurately recorded.
The amendment of the noble Lord, Lord Harrison, would mean that eligible non-religious belief organisations could hold marriages wherever they wished and have greater freedom to appoint those who conduct and register marriages. As the noble Lord says, the amendment does not specifically define the British Humanist Association but goes wider in order to address the concerns that were raised by the Attorney-General.
I will be absolutely clear on the point that the noble Baroness was pressing me on earlier. Our concerns are not about entry to the system of marriage, but spring from opening a new route to marriage and a new system of regulation. In the course of this debate, noble Lords have expressed views on religious groups who can marry now. However, the key point is that they must all comply with the existing system in terms of their being approved. I do not suggest for one moment that there is any concern about any of the groups we may be discussing. However, the reason why the system we have is so important, and why we consider that there would be wider implications if we were to change the way in which we authorise people to marry, is because that could have an impact on things such as, for example, the way we are able to police sham marriages conducted by criminal wedding arrangers.
The noble Lord is shaking his head. I stress that I understand the reason why the amendment is drafted as it is, but because it would allow for other organisations there are implications that we need to consider.
Baroness Thornton
Are these implications deal breakers or are they administrative and technical details that could be cleared up? Is the noble Baroness going to say anything positive here?
Marriage (Same Sex Couples) Bill
Baroness Thornton Excerpts(10 years, 11 months ago)
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Lord Elton
The noble Lord has not, as far as I know, addressed his second amendment at all. I do not think that there is any time for it tonight but, very briefly, I give notice that will we need a debate on the legal opinions that have been expressed on whether the Bill will affect the right of parents to withdraw their children from sex education. We may have an opportunity to do that at the next stage. I put it on record that if the noble Lord does not address it, I will table an amendment to give such an opportunity.
Baroness Thornton
I will address both Amendment 23 and Amendment 24, as the noble Lord, Lord Dear, himself said—
Lord Dear
I am so sorry. Perhaps I may directly address the Front Bench. We agreed that we would try to hurry this through—and of course we have failed in that. I certainly do want to speak to Amendment 24, having moved Amendment 23. I thought that we agreed that I would then go straight on to Amendment 24 and take that as well. I want to discuss it. However, I am also conscious of the time. It is fast coming up to half past 10. I am in the hands of the Committee as to how we handle this.
Lord Dear
If it is the will of the Committee I will move on to Amendment 24. Yes, the Front Bench is nodding.
Amendment 24 stands in my name as well and I will try to be fairly brief; I can certainly be briefer than I was before. Because of their religious or other convictions, many parents will not want their children to learn about same-sex marriage before a certain age, fearing that they will find it confusing. Others may be concerned that teaching on the subject will not be balanced or might not respect their own convictions on the matter.
Parents, as we all know, have the right to withdraw their children from sex education. However, same-sex marriage could be included in a range of other subjects, across the curriculum, to which the right of withdrawal does not apply. For example, there is no right of withdrawal from history lessons and there has been a growth of schools taking part in LGBT History Month lessons within the last few months.
Stonewall, the leading gay rights group, promotes an extensive list of materials on same-sex marriage for use in primary schools. These resources cover subjects much wider than just sex education. A teacher training guide, also produced by Stonewall, suggests that primary school children could perform some of Stonewall’s recommended story books as school plays. An accompanying teacher training DVD, which was produced with the support of the Training and Development Agency for Schools, suggests that pupils must become “resilient”—and that word is lifted directly from its literature—to the values of their parents and grandparents. This is quite clearly an indirect reference to some parents and grandparents who may have objections to issues such as gay marriage.
There is a danger that without an extension of the right of withdrawal, the deeply held beliefs of parents will be undermined, as will their ability to have their children educated in accordance with their own convictions. Article 2, as some of us know, of the first protocol of the European Convention on Human Rights will be weakened. I could give a number of examples where this sort of thing has happened—I am conscious of the time and of the fact that the House wants to progress—but suffice it to say that there are already examples in this country, and abroad, where children have sought to be removed from school because of this sort of thing, and the council has told the parents that action would be taken against them unless the children were returned to school. It has happened in Waltham Forest in east London and it has happened abroad in Massachusetts.
I am galloping through very fast, and I would have liked to develop the argument to greater effect, but Amendment 24 gives a parent the right to withdraw a child from any lesson that includes teaching about same-sex marriage. It also requires the school to notify the parent a week in advance of those lessons, because being informed in that way is obviously crucial to the effective operation of the right of withdrawal.
Baroness Thornton
My Lords, third time lucky. Amendments 23 and 24 in the name of the noble Lord, Lord Dear, address various aspects concerning teaching in schools. I recognise that this is a sensitive issue and of importance to many people. However, we believe that both these amendments go too far.
The obligations of schools, particularly faith schools, in relation to teaching about same-sex marriage were extensively debated in the other place. I will repeat what I said at Second Reading: I think that the Secretary of State, Michael Gove, got it just about right when he gave his evidence to the committee in the Commons. These are not new issues. Current requirements on faith schools around the teaching of PSHE and subjects such as abortion have required schools and DFE guidance to forge a sensitive path between teaching pupils about the facts of life and the law of this country, while still informing them of their faith’s views on these issues.
Noble Lords need to understand that teachers have succeeded in navigating these sensitive issues. We understand the concern of faith schools that they will be required to advocate to their pupils something that their faith does not endorse. However, there is a fundamental difference between teaching and advocacy, which is why the noble Lord’s Amendment 23 is confusing. By providing for an explicit protection for teachers who refuse to “endorse” same-sex marriage, the amendment misconceives the nature of teaching. The noble Lord, Lord Pannick, explained that extremely well and I will not repeat those arguments.
The Education Act 1996 requires that pupils,
“learn the nature of marriage and its importance for family life and the bringing up of children”.
It is not the job of teachers to endorse or not endorse a particular opinion, no more than teaching about a subject amounts to their personal endorsement of it. Just as currently all schools are required to teach about the importance of marriage for family life—while being sensitive,
“so as not to stigmatise children on the basis of their home circumstances,
which is what the statutory guidance says on this issue—I put it to those who are concerned about this that schools have already found a way to navigate the sensitive path of teaching children about the importance of marriage without implying that children who come from other arrangements or set-ups, be they single, same-sex or unmarried parent homes, have any less important a family life.
Amendment 24 would allow parents to remove their children from any lesson in addition to PSHE, where they already have such a right, which might involve teaching about same-sex marriage, and would require teachers to give advance notice to parents of any lessons in which this may be of relevance. Disregarding for a moment the complete impracticality of a teacher having to inform parents before any likelihood of a discussion on same-sex marriage—my noble friend Lady Farrington made that point completely clear: you cannot predict what a teacher will be asked by a pupil—will the teacher be forced not to answer that question?
I suggest that the amendment comes close to wishful thinking on the part of the noble Lord, Lord Dear, in hoping that some individuals might go through their entire young lives without ever knowing that same-sex marriage was the law of this country and that it would be wrong to go down such a path.
Baroness Butler-Sloss
My Lords, I find this part of the Bill quite extraordinary. I have the greatest possible sympathy with the amendment of the noble Lord, Lord Alli, and indeed with that of the noble Duke, the Duke of Montrose. If one took the analogy of English law, a marriage which is celebrated in another country according to the law of that country is generally recognised in English family law. I have tried endless cases involving a dispute as to whether or not a marriage is valid in the country where it was carried out. There will be issues of whether or not the two parties were capable of marrying in that country, whether they are domiciled or resident in that country and so on.
However, if those particular points are dealt with, then it is a matter for English law to say whether we will recognise a marriage. Why are we legislating for what Scotland or Northern Ireland will do if in fact it is a perfectly lawful marriage in England and Wales? Is it not for Scotland or Northern Ireland to say, “Yes, we accept it”, or, “No, we do not”? I find it absolutely astonishing that we are dealing with this. As for the suggestion that a marriage lawfully carried out in England is to be called something completely different in Scotland and Northern Ireland, as I say, I find the whole thing quite astonishing.
Baroness Thornton
My Lords, Amendment 26A in the name of my noble friend Lord Alli would remove the special arrangements made in the Bill to require the legal recognition of marriages of same-sex couples as civil partnerships in Scotland and Northern Ireland. I sympathise with the sentiment behind these amendments. British same-sex couples who get married in England or Wales but choose to live in Scotland or Northern Ireland will not have their status legally recognised for what it is. However, it is the nature of devolution that we cannot impose the will of Westminster on devolved Administrations in areas where it has ceded authority.
Marriage law is devolved to both Northern Ireland and Scotland, meaning that any desire by Westminster to legislate in this area for the whole of the UK requires the consent of these Administrations. I know that Scotland is in the process of looking at same-sex marriages at the moment, so I hope that we shall shortly see same-sex marriage introduced in Scotland and therefore this issue will become somewhat less relevant.
In Northern Ireland, civil partnerships have been available since 2005. However, Northern Ireland has chosen not to consider extending marriage to same-sex couples at this time. A Motion calling on the Northern Ireland Executive to legislate to allow for same-sex marriage was narrowly defeated in its Assembly last month. I recognise my noble friend’s frustration at this. However, I ask the Minister, what are the implications if the legislative consent Motion is not agreed to by the Northern Ireland Assembly? Does it mean that married couples of the same sex living in Northern Ireland may be left in a worse position, having no legal recognition of their status whatever? What might be the implications for children and pensions? I am concerned about the legal implications of such a disparity of recognition and hope that the Minister will be able to answer the questions I have around this issue.
Couples in a civil partnership are prohibited from adopting children in Northern Ireland—a situation which is currently being challenged in the High Court. For those couples who have been married and adopted children in England and Wales and who move to Northern Ireland, what will be the status of their adopted children? Will the couple be recognised as the legal parents where they are living?
In relation to pension rights and accrued survivor benefits, if a married same-sex couple have been living in England for 10 years and then move to Northern Ireland, will they lose the right to those accrued benefits, or will they be carried over to their civil partnership status?
Lord Wallace of Tankerness
My Lords, I welcome the opportunity to clarify how the Bill, which makes provision for marriage of same-sex couples under the law of England and Wales, affects Scotland and Northern Ireland. I assure your Lordships that the Government have had lengthy and considered discussions with Scotland and Northern Ireland Ministers and officials to ensure that where the Bill touches on devolved matters, it does so appropriately. I understand where the noble Lord, Lord Alli, is coming from on this but it is not possible for us to accept his amendment or, indeed, those spoken to by my noble friend the Duke of Montrose, which would cut across the approach that we have been discussing with the devolved Administrations.
Indeed, the effect of the amendment of the noble Lord, Lord Alli, would be to remove the relevant part of Schedule 2 to the Bill. It might be helpful if I explain the effect, and importance, of Schedule 2. Without the provisions in Schedule 2, if a same-sex couple married in England or Wales, their relationship would not have legal status if they subsequently travelled or moved to Belfast or Glasgow. It is not that their marriage in England or Wales would become a civil partnership; it would have no status whatever under the law of Scotland or Northern Ireland.
Lord Trefgarne
This is in essence a probing amendment. However, like all good probing amendments, it has the merit of being properly drafted, and could readily form a useful part of the Bill if the probing is not particularly successful or satisfactory. I must say that my research into the legal basis for marriages at sea has been difficult and tortuous, and I am still not entirely clear what the statutory basis is. No doubt the Minister will be able to tell me in a moment. Neither the Public Bill Office nor the Library could identify the particular legislation that apparently authorises marriage at sea. Is there such a thing as a common-law marriage? Oh dear, I am getting into deep water.
Seriously, as everybody knows, captains of ships often carry out marriages. Indeed, one noble Lord—who shall remain nameless—was telling me earlier today that he had indeed been married at sea by the captain. Unfortunately, some years later, when he sought a divorce from his wife, some doubt was cast on the validity of his marriage, which could apparently have been a good thing in simplifying the divorce. None the less, that was a complication that was not looked for.
It is important that, if we are to pass this Bill into law—doubtless we are, even to the regret of many of us, including me—it must be as rational and sensible as possible. If there are to be single-sex marriages in England and Wales at least, marriages at sea—which I believe have formed part of English law for a great many years—should be included in that arrangement. That is the purpose of the amendment that I have tabled.
I have drafted it in a way that I think is sensible; namely, so that it should apply outside British territorial waters. If it were to operate inside our territorial waters, I believe that would create complications. Further, I would suggest that we can extend our legislation only to British-registered ships, although I may be wrong about that. However, that seems both sensible and appropriate. On that basis, I beg to move.
Baroness Thornton
My Lords, I recommend that the noble Lord, Lord Trefgarne, should google marriages at sea. It says that captains can perform marriages, but they need a licence to do so, just like anyone else. There are no laws that automatically grant captains the right to marry, although you would not know that from watching the television. Apparently this possibly originates from the days of sail when Europeans would have to travel by ship for months at a time to reach far-flung colonies. A couple might meet, court and marry while en route to their destination.
The same Google search threw up a quote. I am a great fan of “Star Trek” and the Starship “Enterprise”. Apparently, Captain James T Kirk said:
“Since the days of the first wooden vessels, all shipmasters have had one happy privilege, that of uniting two people in the bonds of matrimony”.
Captain Kirk’s successor, Captain Jean-Luc Picard, played by Patrick Stewart, a fellow Yorkshireman and great Labour supporter, said, “Make it so”.
Baroness Northover
My Lords, my noble friend’s amendment would enable marriages of same-sex couples to be conducted by the master of a British-registered vessel on the authority of a superintendent registrar’s certificate outside the territorial waters of England and Wales. However, this is not a right possessed by opposite-sex couples, so this would in fact be out of line. I am absolutely delighted to fill in my noble friend on marriage at sea, and I have learnt a great deal about it as well.
At present, the validity of a marriage on board a British merchant vessel is governed by the law of the country in which that vessel is registered. In the law of England and Wales, the Marriage Act 1949 does not provide for marriages to take place on board UK registered vessels at sea, and the Foreign Marriage Act 1892 applies only to marriages outside UK jurisdiction. Neither is it clear that the common law of England and Wales provides authority for the validity of marriages that are celebrated on merchant vessels at sea, although there are historic authorities which suggest that a marriage could be formed under the common law only if it was not possible to wait until the ship reached port. It is unclear whether those authorities still apply, given that there is now statutory marriage law covering both domestic and foreign marriages. However, in any event, such a scenario is extremely unlikely to arise in current times. Therefore, at present, we do not believe that it is possible for a heterosexual couple to have their marriage formally solemnised by the master of a British ship.
I can fill my noble friend in on some additional material, but probably not tonight. The purpose of the Bill is to enable same-sex couples in England and Wales to marry in a civil ceremony, or in a religious ceremony if the religious organisation opts in. It is not intended that marriage for opposite-sex couples should be altered, even if everybody does want them to get married at sea, or that the Bill should bring about wider changes to marriage law. I hope, therefore, that although he is no doubt disappointed, my noble friend will be happy to withdraw his amendment. Lastly, I will supply him with more information than either Google or his own investigations have produced.
Baroness Barker
My Lords, I want to thank the right reverend Prelate for the speech that he just gave. I thought that he addressed some very difficult issues in the most sensitive way. I also think that it is important that we hold this debate, however late it is, not least to put on record the fact that very many gay couples think very seriously about parenthood. It is not something into which they enter lightly at all. Perhaps some of the most distressing of the accusations which have flown around this Bill are that people who are in support of it take the issues of children’s stability and parental responsibility less seriously than those who oppose it. That is absolutely not true. I happen to believe very strongly in marriage and one of the reasons is that I believe that it provides stability for children. That is why I want to see it extended to gay people because I believe that the children of those relationships deserve that stability.
I want to take the opportunity to flag up one thing. I am a veteran of the Human Fertilisation and Embryology Act and the question of registration of birth is one which is becoming increasingly complex. It has been very complex ever since we had planned donor-assisted conception. There is a small group of people who will never be able to find out what their identity is because they were born prior to the legislative changes that require there to be a registration of their biological parentage, and that has done enormous damage to those individuals.
There is a small group of people working in this area who have thought long and hard for some considerable time about the way in which the birth registration system of this country needs to be updated and changed. I do not want to go into it in great detail now, but the right reverend Prelate has flagged up an issue that is not for this Bill or indeed just for gay people. It goes much more widely than that, and it is something that the Government will need to return to. There was a report on this a couple of months ago which I thought might be from the Joseph Rowntree Foundation but was actually by the Nuffield Trust. It is one part of the issue that the right reverend Prelate has raised, and it is one that the Government should return to at some length and in more detail than will be possible within the scope of this Bill.
Baroness Thornton
My Lords, my noble friend Lady Royall and I came to the same conclusion as the right reverend Prelate the Bishop of Guildford that we needed to probe this issue, and for exactly the same reasons. It is not clear from reading the Bill exactly what is meant, whether it is satisfactory, whether it covers the point about those children and whether it is adequate in giving those children the stability that they deserve and require. The only way to do that was to put down an amendment to delete this provision, but we have no intention of doing so and merely wish to know that there is no legal uncertainty around the parentage of children of a married couple of the same sex.
All the other points that I was going to make about IVF and the embryology Act have been made. All that remains is for the Minister to reassure us that this point is covered or needs further consideration.
Baroness Thornton
My Lords, I will merely say that my noble friend Lord Alli has put his finger on the point. This discussion is not about biology but—as the right reverend Prelate said—fidelity. I suspect that the Government have been round this course. I know from reading the record in the Commons that they had these discussions and settled where they did. At the moment I cannot see any way of moving from that point. I do not accept the biological descriptions and solutions suggested by the noble and learned Baroness, Lady Butler-Sloss. The Government have probably ended up in the right place.
Baroness Stowell of Beeston
My Lords, I was wondering earlier how BBC Parliament would cope if this group of amendments came up before the 9 pm watershed. However, we are clearly okay.
Baroness Stowell of Beeston
At least we are not going to be subject to an inquiry by Ofcom.
The effect of the amendment of the noble and learned Baroness would be that the question of how adultery and non-consummation would apply to same-sex marriages would have to be determined over time by case law. The Government believe that such an approach would leave the law uncertain in respect of divorce and nullity, and would not give people adequate protection. The noble and learned Baroness will know better than I that the definition of adultery has developed in case law over many years. In order for a definition to be determined for same-sex couples, it would have to go through a similar process. That would provide uncertainty for same-sex couples, which is not what any of us want.
The Bill provides greater clarity by confirming that only sexual intercourse with a member of the opposite sex outside marriage will constitute adultery for all couples, both opposite sex or same sex. The noble Lord, Lord Alli, rightly said that the Government had taken the approach, in designing all parts of the Bill, of trying to avoid disrupting existing marriage law as far as possible. This provision confirms that the current case law definition of adultery applies to the marriages of same-sex couples. I make it clear that at the moment, if a married man has an affair with another man, his wife would not be able to divorce him on the grounds of adultery. However, she would be able to cite unreasonable behaviour, so she would not be denied the right to divorce; only the grounds that she relied on would be different.
Equally, for same-sex married couples, sexual activity with a member of the same sex will support an application for divorce, since it will be open to someone in a same-sex marriage to cite unreasonable behaviour. This will not mean that same-sex couples have any reduced right to divorce or will suffer any delay in applying for it, because the same procedures apply to divorces on the grounds of adultery and those on the grounds of unreasonable behaviour. If a woman in a same-sex marriage has an affair with a man, her wife would still be able to apply for a divorce on the grounds of adultery. If she has sex with another woman outside the marriage, her wife could not seek a divorce on grounds of adultery but would do so on the grounds of unreasonable behaviour. That is what currently happens. As we know, it is not that unusual for someone in an opposite-sex marriage to have an affair outside the marriage with somebody of the same sex.
The noble and learned Baroness, Lady Butler-Sloss, and the right reverend Prelate argued that these provisions in the Bill mean that there is no requirement for same-sex married couples to be faithful, because adultery is not available to them in the way I have just talked about. The right reverend Prelate used a particular word that I cannot remember; I think he talked about “standards”. I think it is worth making the point that we need to avoid assuming that in order to be faithful people need to know they can divorce someone on the grounds of adultery. It is not the possibility of divorcing someone on the grounds of adultery that leads someone to be faithful to the person they are in a relationship with. What makes people faithful is far more complicated than that. The issues around fidelity, the reasons why people stay together, and their trust and commitment to each other are very complex. Even so, in terms of the law, marriage does not require the fidelity of couples. It is open to each couple to decide for themselves on the importance of fidelity within their own relationship. The law does not lay down requirements about the consensual sexual activity which should or should not take place for married couples.
Similarly, the Government believe that not applying provisions on non-consummation as a ground for the nullity of the marriage of a same-sex couple is the correct approach. There has been a lot of discussion of procreation, not so much tonight but certainly at earlier stages of our debates. Historically, consummation was linked to procreation, although now in law it is not. I want to make it clear that there is no requirement in law that a couple should consummate their marriage in order for it to be a valid marriage. We do not consider that there is a need to extend non-consummation as a ground for annulment to same-sex marriage. This also ensures that the law is clear for same-sex couples, as I already noted.
I think the point made by the noble Lord, Lord Alli, in response to the proposal of the noble and learned Baroness, Lady Butler-Sloss, to transfer the definition of penetration from that of an opposite-sex couple to that of a same-sex couple, but focusing only on men, serves to demonstrate that we have not addressed what penetration means for a lesbian couple. That is why, as I say, it would take a long time to develop this in case law in a meaningful way. The Government do not believe that the Bill’s approach to adultery and non-consummation for same-sex couples represents an inequality with opposite-sex couples. We believe the Bill makes appropriate provision for same-sex couples, while ensuring that the law for opposite-sex couples remains exactly as it is now.
However, I thank the noble and learned Baroness for bringing forward her amendments because, as she rightly says, this is a very sensitive topic. It is not one that people find easy to debate. I never thought I would stand at a Dispatch Box talking about these kinds of things. She serves the Committee well by raising this matter, but I hope I have been able at least to clarify that by not changing what now exists in law we are not actually creating an inequality. I think the desire of same-sex couples to have a successful relationship through marriage does not require the possibility of adultery for them to remain faithful to each other, if of course that is what they intended when they first married. I hope the noble and learned Baroness feels able to withdraw her amendments.
Marriage (Same Sex Couples) Bill
Baroness Thornton Excerpts(10 years, 11 months ago)
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Lord Waddington
My Lords, I agree entirely with my noble friend Lord Phillips. We are talking about two types of union which are entirely different: different in the way in which the union is manifested, in the obligations that flow from that union, and in the sanctions that can be obtained if one party defaults.
At Second Reading my noble friend Lord Jenkin missed the point entirely, which is very rare for him. He did not think that lumping together these two unions was redefining marriage, and said that it was not going to redefine his marriage. With respect to my noble friend, that is not the point. What about those coming up to marriageable age who are contemplating whether to marry? Might not this mishmash of traditional marriage and the union of two people of the same sex, with the accent no longer on family, make some people wonder whether to go ahead? What will they feel when denied the opportunity to have a traditional marriage?
One of the strangest assertions I have heard during this debate is that marriage will be strengthened if we go ahead with this Bill. There is not a jot of evidence to support that proposition; in fact, all the evidence is to the contrary. Some of us may have heard Dr Patricia Morgan when she—
Baroness Thornton
Since the noble Lord thinks there is not a jot of evidence that marriage will be strengthened by this Bill, what evidence does he have—apart from his assertion—that this Bill will put people off getting married?
Lord Waddington
I was just getting to the experience of other countries, and it does seem that some people have been put off. Dr Patricia Morgan produced evidence to show that since gay marriage was introduced in Spain in 2005, the decline in heterosexual marriage has been precipitous. It has been just the same in Holland since 2001, and also in Scandinavia. There is not one example of this change going ahead and marriage increasing. The result has been exactly the opposite.
Baroness Butler-Sloss
My Lords, I, too, am a trustee of the Marriage Foundation, which I should say is totally neutral on this subject. In any case, I am speaking personally.
To pick up a point made by the noble Baroness, Lady Williams, about children, when I was a family judge I tried cases where I placed children with gay couples, male or female. I had the utmost confidence that those children would be extremely well brought up. Nothing that we are discussing today, or indeed in this Bill, leads me to believe that whatever a same-sex couple’s relationship is called would have anything to do with the excellent way in which very many children are brought up by lesbian and homosexual couples. That is my own personal experience, sitting as a judge.
I did not speak at Second Reading; I thought that 90 speakers were enough. Like others, I have received more than 100 letters which my secretary has so far replied to, and many more e-mails. It might interest the House to know that 98% were opposed to this Bill, but the 2% in favour were also extremely persuasive. Listening to the earlier speakers, it seems clear to me that the word “union” will not be treated by those seeking marriage as the equivalent of “marriage”, for the reasons that have already been given. Since it is clear that this Bill is going through, it is time for us to try to find the best way forward.
Those who support the Bill are—to use the colloquialism—hooked on the word “marriage”. That we have to accept, but the Government need to recognise the strength of feeling of those who are opposed to the use of the word “marriage” simpliciter as recognising the marriage of couples of the same sex. We must find a middle way. I strongly support the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern, because this House urgently needs to seek reconciliation and find a compromise, as the noble Lord, Lord Phillips of Sudbury, said earlier. Somehow we have to allow the word “marriage” and somehow we have to distinguish between different sorts of marriage.
As the noble and learned Lord, Lord Mackay of Clashfern, has pointed out—and I aim to say in later amendments to this Bill—this is a question of equality but it is not a question of uniformity. You cannot have uniformity in this Bill together with what you get in the marriage of opposite-sex couples. One only has to look at Part 4 of the Bill, as the noble and learned Lord, Lord Mackay of Clashfern, has done, to see that there are differences. There is nothing wrong with differences in equality. As the most reverend Primate the Archbishop of Canterbury said at Second Reading, there is a danger of equating equality and uniformity in this Bill.
I cannot see how Amendment 2 can be objectionable to people. The “marriage” word is used and those who are in any marriage are equal, but the amendment recognises that there are differences. You cannot say that marriage for same-sex couples has in any way a lower status than marriage for heterosexual couples has. For goodness’ sake, at the end of the day we are legislators, if I might respectfully remind the House, legislating for what people on the ground will actually be doing. As the noble Baroness, Lady Shackleton, pointed out, there are all sorts of marriages: those who wish to marry; those who are already married—I have to confess that I have been married for very nearly 55 years, and to the same man; and marriages for the second or third time. We have to recognise this, but we also have to recognise that there is a difference, and although the noble Baroness, Lady Noakes, talked about different sorts of marriage, the different sorts of marriage that she mentioned were actually between male and female, because in those days they could be nothing else; they were all male-female.
This amendment would be a compromise in an otherwise deeply divisive Bill. I have to say to those who have been talking about the children, particularly the noble Lord, Lord Carlile, that perhaps most important of all—
Baroness Thornton
I should like to ask the noble and learned Baroness a question. I have wanted to ask this of other members of your Lordships’ House who were speaking about the matter of calling a same-sex marriage a same-sex marriage rather than distinguishing it from what people are calling a traditional marriage. What is the noble and learned Baroness’s view about the fact that anyone who has a same-sex marriage would have to identify their sexuality by definition? Why should they have to do that?
Baroness Butler-Sloss
You have to recognise the truth of it. The most reverend Primate pointed out the importance of truth. It is different. We have to look at some stage, as the noble and learned Lord, Lord Mackay, pointed out, at how we deal with the children of a couple who cannot have their own children as a couple.
Baroness Thornton
I beg the noble and learned Baroness’s pardon, but in other parts of our legislation—in our equalities law—we protect people from having to declare their sexuality, because we think that that is the right thing to do. It is not a question of the truth or not the truth.
Lord Aberdare
My Lords, I had not intended to intervene in this debate, but I will make two brief points. First, I am very uncomfortable with the references we have heard to a new definition of marriage. As I understand it, the aim of the Bill is to enable same-sex couples to share in the existing understanding and status of marriage. My understanding of my marriage is not primarily gender-based; it is based on the fact that I love my wife and wish to stay with her for the rest of my life. That has nothing to do with gender.
Secondly, I would love to find a compromise—I am a compromising sort of person, and I very much welcome the recognition of my noble and learned friend Lady Butler-Sloss that the word “marriage” is essential in whatever we end up with—but I find it extremely hard to imagine any compromise that would not formalise the idea that there are two different forms of marriage. Therefore, I tend to agree with the noble Lord, Lord Alli, that it is either one thing or the other.
Baroness Thornton
My Lords, we have had a long and interesting debate about the definition of marriage and about this group of amendments. I accept fully that noble Lords are, with the best of intentions, trying to find a way through. However, we on these Benches think that the effect of all the amendments in this group would be the same. All, in different ways, seek to enshrine in law a distinction between what is referred to as “traditional marriage” or “matrimonial marriage” and the new, statutory definition of marriage that will be created under the Bill, which encompasses the union of both opposite-sex and same-sex couples. Whether those who tabled the amendments intended to or not, they were in effect making two classes of marriage. Trying to find different definitions—and in some cases, I fear, jealously guarding the word “marriage” for heterosexual couples—suggests that one form of marriage is inferior to another and that flies in the face of the Bill.
The noble and learned Lord, Lord Brown of Eaton-under-Heywood, was quite right in his remarks, as were other noble Lords, including the noble Lords, Lord Dobbs and Lord Black, the noble Baroness, Lady Richardson, my noble friend Lady Turner, the noble Baroness, Lady Shackleton, in her excellent speech, the noble Baroness, Lady Noakes, and the noble Lord, Lord Carlile. They all appreciated that while those who tabled the amendments have a strong personal belief about marriage, in some cases rooted in their religious faith, their amendments would undermine the purpose of the Bill.
It is important to make a distinction between something that has the effect of undermining a belief or an idea and something that undermines an individual’s ability to hold such a belief. I find it difficult to believe that, when the Bill becomes an Act and same-sex marriages are a routine matter, as they will be, the noble Lords who have been so nervous today will feel that something important or precious has been removed from their faith or their strong belief in marriage.
Article 9 of the Convention on Human Rights clearly enshrines an individual’s right to freedom of thought, conscience and religion. We must be absolutely clear in our protection of these rights. The Bill seeks to do that. The Bill does not in any way undermine those rights for individuals in relation to their belief about the appropriate nature of marriage. As the noble Baroness, Lady Richardson, said, its purpose is to provide for the state to recognise equally the relationships of couples, regardless of whether they are between members of the same sex or of opposite sexes, who wish to make a loving and lifelong commitment to each other.
By inserting a distinction between same-sex and opposite-sex marriage back into statute, whether by describing one as a “union”, as Amendment 1 would do, or as matrimonial marriage requiring special privileges, as Amendments 46 and 57 do, or by setting up a separate register, we would undermine the purpose of the Act, which is to remove the distinction in law between same-sex and opposite-sex relationships. Therefore, we on these Benches have no sympathy with, and do not support, any of the amendments in this group. I ask noble Lords not to be seduced by what I regard as the lethal combination of the noble and learned Lord, Lord Mackay of Clashfern, and the most reverend Primate the Archbishop of York. The way they described what they wish to achieve was seductive, but it would have the same effect on the Bill.
Lord Mawhinney
I think that the noble Baroness suggested that my amendment was designed to undermine the Bill, although I explicitly made clear that it was not. What would she think about giving ordinary members of the public the assurance that they can use certain phrases, by putting them in the Bill, to protect themselves against undue political correctness? My amendment has nothing to do with the substance that she has addressed so far in her speech.
Baroness Thornton
I think that noble Lords’ concerns about free speech will be addressed at a later stage in Committee, in the next group of amendments but one. I am certainly happy to address those concerns. This group of amendments is about the substance and purpose of this Bill. The Government have addressed the freedom of speech issues; indeed, they are covered in this legislation and in the legislation that is already in existence.
Baroness Thornton
Is the noble Lord aware that the Equality Act 2010 does all of this? I recommend that he reads the guidance that accompanies that Act. The legislation received cross-party support in this House. It is a carefully balanced Act that already offers all the protections that the noble Lord mentioned.
Lord Dear
The point I would make is that the Equality Act is shot through—I am sorry, I shall retract that. The Equality Act attracts a mass of legislation in which actions are taken against individuals who are said to be in breach of the Act. These amendments will put into statutory form the words,
“worthy of respect in a democratic society”.
I suggest that they will cap off a large number of those actions. Putting it in simple terms, the Equality Act is not proving to be as watertight as it was first imagined to be.
Baroness Thornton
Would the noble Lord care to tell the House what he thinks is a reasonable limit to the view that that gentleman should express? For example, if one substituted the word “black”, would that view then be reasonable? The policeman is publicly expressing his feelings about something. What does the noble Lord think is a reasonable way to do that? What would he think if, for example, he had used “black” instead of “same-sex marriage”? It seems to me that there must be a limit to what our public servants can express and cannot express. I would be interested to know from the noble Lord where he thinks that limit sits.
Lord Singh of Wimbledon
I am happy to answer that point. Any freedom of speech should be open. It should be there, but it should not be the freedom to denigrate anyone. That is the boundary. You can express an opinion, but if you denigrate other people that is wrong.
Lord Stoddart of Swindon
My Lords, it is absolutely necessary that some of these amendments should be on the Marshalled List. They have been discussed at length today and will be discussed further. But the fact remains that there is a perception that people will be restrained from expressing their views about marriage as a result of this Bill. The correspondence that I and many others have received show that there is a very considerable concern that people will be denied the freedom to criticise same-sex marriage when this Bill goes through—I say “when this Bill goes through” because it quite clearly will go through. Therefore, it is right and proper that this House should ensure that there are proper provisions to ensure free speech. There have been instances where free speech has been guaranteed by Ministers but not carried out by people in other walks of life and other areas of employment.
People are also concerned at the speed with which this Bill was introduced and is being rushed through Parliament. They feel that there has been insufficient public discussion of this very important Bill, which alters parts of our constitution, and that it is being rushed through and their views are not being properly taken into account. After all, we must recognise that the percentage of gay couples is 1.5% and therefore 98.5% of the population has to be taken into consideration as well. If people disagree with this Bill, they must be able to express their opposition after the Bill has been passed without fear of being dismissed or otherwise harmed by their employers or having a policeman knock at the door because they have made some off-the-cuff remark.
Baroness Thornton
My Lords, we have had another interesting and informative discussion.
I wonder how much confusion there is about the fact that when we disagree with each other, that is okay; that it is okay to disagree with each other quite vehemently; and that it is all right to express those vehement disagreements. Our view on these Benches is that the law recognises that that is exactly right. It took me back to the passage of the Equality Act 2010, when the interventions of the noble Lord, Lord Lester, made precisely the point that needed to be made about the protections that existed. Those protections do exist. The fact that they are tested from time to time, and that people on both sides do silly things with them from time to time, does not mean that they are not valid protections; they are very valid protections indeed.
We believe—and the Commons agreed in its debates—that there is no need for additional protection under the Equality Act 2010. It is not necessary. There is already protection for people’s religious beliefs in law, which encompasses views about marriage. It would also be invidious, because it would make the only specific belief that has protection under this part of the Equality Act one that defines marriage as being between a man and a woman. I will return to that.
It is worth saying that Amendment 19 would make a particular viewpoint on marriage, which could be held by people with or without religious beliefs, the only belief that was expressly protected from discrimination on the grounds of religion or belief, elevating it above any other belief. This could have exactly the opposite effect to that intended by the noble Lord, Lord Singh, since a person who believes that the definition of marriage as being between a man and a woman is wrong would also be protected. Therefore, it may do exactly what the noble Lord does not want it to do.
As I said during the debate, the Equality Act 2010 is a carefully considered piece of legislation, which balances the rights of one protected group against those of another. Sexual orientation and religion or belief are both protected characteristics under the Equality Act, meaning that it is illegal to discriminate against someone on the grounds of their sexual orientation or their religion.
The Equality Act already takes care to provide protections for the beliefs of those with a religious faith, including on issues of sexual orientation and marriage. For example, guidance accompanying the Equality Bill, states:
“In the case of Ministers of Religion and other jobs which exist to promote and represent religion, the Bill recognises that a church may need to impose requirements regarding sexual orientation, sex, marriage and civil partnership or gender reassignment if it is necessary to comply with its teachings or the strongly held beliefs of its followers”.
It is completely clear that the law already exists to protect those views and their expression. Religion and belief are protected characteristics under the Act. It means that we cannot be discriminated against for holding or expressing those beliefs. On these Benches, we did not think that the government amendment was necessary, as my noble friend Lord Alli mentioned, but we understand that the Government are acting in good faith on a commitment made by a Minister in another place. Therefore, we accept that the Government are bringing the amendment forward with the best of intentions and that it certainly does no harm. If it gives people peace of mind, that is only to be welcomed.
I will not go through the rest of the amendments because I suspect the Minister will do that extremely well—and it is nearly dinner time.
Baroness Stowell of Beeston
My Lords, I am grateful to all noble Lords who have spoken in this very important and helpful debate. May I say first that I am grateful to the noble Lord, Lord Alli, for repeating what I said at Second Reading? The Bill absolutely makes it lawful, and continues to make it lawful, for people to believe that marriage should be only between a man and a woman. It is their right to express that belief and the Bill does nothing to change that. I am also grateful to the noble Baroness, Lady Thornton, and my noble friend Lord Lester for what they said about the Equality Act protecting people who have a range of religions beliefs but in this context hold the belief that marriage should be between a man and a woman and are free to express that belief. It is important that I continue to make that clear.
I also recognise, however, that people are looking for reassurance and want to know that it is perfectly legitimate to continue to hold the beliefs that they have always held, and that they will not be in any way disadvantaged because of these beliefs—or, indeed, that it would be unfair for people to criticise them in any way, although clearly it is free for anybody to express an opinion that is contrary to that view.
As the noble Baroness, Lady Thornton, mentioned, the Government are bringing forward an amendment to the Public Order Act. I will speak to that in a little more detail when I take the amendments in turn. We felt that it was important for us to do this as we recognised the need for assurance and because it was possible to make that amendment to the Public Order Act without causing any detriment to anybody. We really do understand that people are looking to us for assurance.
The amendments have clearly enabled us to explore issues of conscience in relation to the Bill, and it is right that we should do so. Let me start with Amendment 5, which was moved by my noble and learned friend Lord Mackay of Clashfern. He seeks to explore how the Bill could impact on those seeking appointment to a public office—such as appointment to the board of a non-departmental body. The amendment seems to be based on the premise that, should the Bill be enacted, anyone expressing a belief that marriage should only be between a man and a woman might somehow be excluded from appointment to public offices.
I can reassure noble Lords that this is certainly not the case. This Bill is not about forcing people of faith to change their religious views, practices or teachings about marriage. The belief that marriage should be between a man and a woman is, and will continue to be, mainstream and entirely lawful. Indeed, the Bill explicitly makes clear that such a belief is legitimate and mainstream through the specific protections it provides to ensure that religious organisations and their representatives who do not want to participate in same-sex marriage ceremonies cannot be compelled to do so.
Public appointees, like anyone else, are and will remain free to express their religious or philosophical beliefs as long as this does not affect their ability to do their job.
Marriage (Same Sex Couples) Bill
Baroness Thornton Excerpts(10 years, 11 months ago)
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Baroness Thornton
My Lords, I am pleased to be here and that I heard the noble Lord, Lord Forsyth, coming over the hill as cavalry in aid of the noble Lord, Lord Dear. It is an honour to give the opposition winding speech on this Second Reading debate in your Lordships’ House. I am not envious of the task that the Minister has in answering the substantial and passionate debate that we have had for the past two days. My noble friend Lady Royall outlined most eloquently in her opening remarks the reasons why Labour is supporting this Bill and the Government, but as in the Commons there will be a free vote. I shall not repeat all of her arguments.
When we are contemplating something new, I always think that international comparisons are helpful. Last month this House supported making caste discrimination part of our legislative equality framework. In doing this, and persuading the Government and the Commons that it was the right thing to do, we were blazing an international trail of which we should be proud. Today, we are not being so adventurous, because we are proposing that the UK will soon join those countries that have now signed same-sex marriage into law. They are Argentina, Belgium, Canada, Denmark, Iceland, the Netherlands, Portugal, Norway, Spain, South Africa, Sweden, Uruguay and now France.
I offer my congratulations to Vincent Autin and Bruno Boileau on their marriage last week. It was historic for being the first same-sex marriage to take place in France following President Hollande’s signing of the legislation into law. First and foremost, it was a momentous day for this couple, who on that day made a loving and lifelong commitment to one another before their friends and family, just as I and many in this House have done over the years.
The objections to the Bill to bring same-sex marriage on to the statute book seem to fall into two or three categories. There are noble Lords who are uncertain that freedom of religion will be respected by the Bill. To them I say that the Government have built huge safeguards into the Bill, which, it is widely agreed, will do the job. The most reverend Primate and the right reverend Prelates who have spoken have woven brilliant theology and arguments against the principle of same-sex marriage, but as the noble Baroness, Lady Neuberger, my noble friend Lady Mallalieu and others have said, the state’s concept of marriage has been ever-evolving. It has long since diverged from religious teaching. They have not managed to unpick the locks, so to speak.
While lawyers can always find something to disagree about, I would encourage those noble Lords to read back the speeches of the noble Lord, Lord Pannick, and my noble friend Lady Kennedy of The Shaws, who have explained the strong assurances that legal security is provided by the Bill. Some concerns have been raised by noble Lords about the position of teachers and faith schools in reconciling their views of marriage with the new reality. My party is confident that the current law achieves the right balance in securing the right of faith schools to educate pupils in a way that is sensitive to the law of the land and also to students, some of whom may be gay or have parents of the same sex. I may never use these words again, but I agree with the evidence that Michael Gove gave to the scrutiny Committee stage in the Commons. However, it is right that these issues will be tested and scrutinised by this House in Committee, because it is right that these questions and concerns are allayed.
There are those who say that the Bill is in some ways anti-democratic, that it was not in manifestos, that there was no Green Paper—and, they add, let us rubbish the consultation—and they ask why it was not a Private Member’s Bill. The noble Lords, Lord Norton and Lord Kerr, covered the constitutional points, and I agree with their analysis. We have to look at the strength of feeling in favour of the Bill in the Commons. It is remarkable that the majorities at Second Reading and Third Reading were so large. It may serve the opponents’ purpose to suggest that some kind of secret Whip was applied, but I am with the noble Lords, Lord Cope and Lord Bates, about the whippability of such an issue.
Many MPs thought very hard about the Bill and had serious discussions with constituents before deciding how to vote, but each MP made a decision alone about whether to support it, and so must we. Rarely as parliamentarians do we have the opportunity, by the words that we use and the votes that we cast today, to affirm the equal respect that we have for our fellow citizens regardless of their sexuality and the equal respect that we have for their long-term and loving relationships.
We have also had a bit of scaremongering. Scaremongering to further an argument in which you passionately believe is a legitimate debating ploy, but noble Lords are wise and experienced enough to recognise scaremongering when they see it. We can safely say that the noble Lord, Lord Tebbit, won the award for this one. In a short and sharp intervention, he managed with his usual skill to provide a scare for almost everything, including compulsory promotion of homosexual marriage and artificial insemination of the heir to the throne.
Lord Tebbit
Clearly, the noble Baroness has the answer to all questions and is going to tell me the answer to the question that I asked about the heir to the throne.
Baroness Thornton
Yes, goal. I am happy to say that it is the Minister who answers the questions here.
The noble Lord, Lord Dear, also did quite well in the old scaremongering field when he said that some 8,000 amendments might be required by this legislation. I thought that that was remarkable and checked whether it is true. I am pleased to reassure the House that this seems not to be the case. The noble Lord seems to have confused the fact that there are indeed 8,000 references to marriage within the total library of legislation, without the need to amend them all. Furthermore, it is clear from discussion with the Bill team and reading the Bill that Clause 11 and Schedule 4 deal more than adequately with his concerns. I am sure that the Bill team will be happy to explain this to the noble Lord in due course.
Other noble Lords feel uncomfortable with what they see as a departure from traditional marriage. I do not doubt that this is how they feel, but I ask them to reflect a little deeper on those feelings. Is it habit and familiarity that make change uncomfortable and unsettling? This was referred to by the noble Baroness, Lady Jenkin. The Minister noted that we all move at a different pace when faced with change. As the noble Lord, Lord Deben, put it so eloquently, major social changes do not happen when the majority align themselves; they have almost always happened when a minority has stood up for what it believes to be right, put it to the public and in the end proved that it is right.
Unfortunately, some who profess to believe in equal rights for everyone, regardless of gender, race and sexual orientation, find it difficult fully to escape prejudices ingrained over many years when homosexuality was said to be at worst an abomination, or at least something to be very quiet and discreet about because it bordered on the shameful. To noble Lords who are finding the idea of same-sex marriage difficult to come to terms with, I make a plea that they should listen to their heart and indulge their generosity of spirit. Having heard the deeply personal speeches of the noble Lords, Lord Browne and Lord Smith, my noble friends Lord Alli and Lord Collins, the noble Lord, Lord Black of Brentwood, the noble Baroness, Lady Barker, and the noble Lord, Lord Carlile, it would be hard not to be moved—and it would be very hard-hearted not to support same-sex marriage.
The noble Lord, Lord Faulks, asked me a direct question: would my Government have brought in this legislation? Given that we brought forward all the equalities legislation between 1997 and 2010, and given the presence of my noble friend Lord Alli over my shoulder, how could I say otherwise? It is the personal testimony not just of noble Lords who have faced discrimination and struggle because of their same-sex relationships, but of all noble Lords who have spoken of the love and strength they have found through their partners, civil partners, husbands and wives, that should secure our resolve to reject the amendment of the noble Lord, Lord Dear, and proceed with the Bill. I speak of my noble friends Lady Royall, Lord Brooke of Alverthorpe, Lord Young of Norwood Green and many others.
For many, marriage is the glue—my noble friend Lady Mallalieu called it the superglue—that binds together relationships and gives those in them the strength to face life’s challenges. To have the opportunity to extend this privilege to all couples who want to make that commitment is something that we must now embrace and celebrate as a means to a stronger and more loving society.
I look forward to the Bill receiving a Second Reading today and to getting on with the Committee stage, where I hope we will make progress with many of the issues raised by my colleagues and by noble Lords across the House. We on these Benches will look at pension rights, transgender couples, about which my noble friend Lady Gould spoke so passionately, and humanist marriages, which were referred to by the noble Lord, Lord Birt, and which we are keen to see introduced. Therefore, I urge the House to vote against the amendment of the noble Lord, Lord Dear, and to see the Bill through to its next stage. For the sake of clarity, if noble Lords support the continued passage of the Bill, the Lobby to go into is the Not-Content, and I look forward to seeing many of them there.
Enterprise and Regulatory Reform Bill
Baroness Thornton Excerpts(11 years ago)
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Baroness Thornton
My Lords, I will make some very short remarks because the noble Baroness, Lady Campbell, and the noble Lord, Lord Low, have more than adequately explained why we find ourselves in this rather unfortunate position—I agree with the noble Baroness, Lady Campbell—of asking the Government to look again and asking another place to take this back.
It is important also to say that one thing has changed since we discussed this in Committee and on Report. That is that the EHRC has given this matter some further reflection. I congratulate the noble Baroness, Lady O’Neill, because it is a sign of the maturity of the organisation that it has changed its view on this matter at least a small amount. I will read out a statement that was issued, and that is about the only thing I will say. The statement about the repeal of Section 3 on its website says:
“However, the debate in the Lords and commentary by parties have underlined the importance which is attached to the general duty. Many people clearly believe that, both in terms of the perceived mission and role of the Commission, and the coherence of the legislation, it is valuable to retain the general duty. Unless the government can provide additional robust reasons for removing the general duty in the current situation, our analysis suggests the case for removing the Lords’ amendment in the Commons has not been made. The Commission therefore continues to support retention of the general duty and maintaining the position established by the Lords”.
We know from the previous debates and from listening very carefully to what the Ministers in this place and in the other place have said that there is actually no robust case for the repeal of the general duty. Your Lordships’ House took that view by a majority of over 50 when this was discussed on Report. I put it to your Lordships’ House that the one thing that has changed is in favour of the retention of the general duty, and I hope that the Minister will now weigh this issue in the balance and agree to leave Section 3 in place. Indeed, if the Government wish to review Section 3 or any other part of the equalities legislation then that should be done with prior consultation and the involvement of the Joint Committee on Human Rights. We on these Benches do not believe that that is desirable or necessary, but if it were to be done it should be done in a proper way, not as part of a Bill that addresses regulatory burdens on business and enterprise.
Lord Lloyd of Berwick
My Lords, the Minister has not advanced this evening any of the arguments that she advanced at the beginning of January for repealing Section 3 of the 2006 Act. I will therefore leave those arguments on one side.
Instead I will turn to the arguments advanced by the Minister in the other place. He asserted boldly that Section 3 of the 2006 Act should be repealed because it was not a core purpose of that Act. With great respect, that is exactly what it was. Section 3 was in a sense the core purpose of the 2006 Act, that purpose being to bring together for the first time in legislation equality rights with other fundamental human rights. The specific duties under Sections 8 and 9 were to be the means of bringing about that core purpose. That was the very point made by Professor Sir Bob Hepple in his report. He said that Section 3 is important because it states for the first time what he called the “unifying principle”. It is most unfortunate that the Minister in the other place, when he came to his reply, did not reply to that argument or to any of the arguments advanced in the other place; sound arguments and convincing arguments, they were all, unfortunately, left aside because there was no time to deal with them.
There is a hint, elsewhere in what the Minister said, that Section 3 is undesirable because it would, as it were, take the commission’s eye off the ball to the exclusion of the important duties under Sections 8 and 9. There was never much danger of that. In any event, the commission has now made it clear, if I am right, that it would now welcome the retention of Section 3. If that be so, surely we should leave it at that.
It is not often on these occasions that we should resist the view of the House of Commons at this stage of ping-pong. However, the Government have not given one single solid reason why we should repeal a provision that both Houses were in agreement on as recently as 2006. As I have said, the Minister did not deal with any of these arguments in his reply. We should give him another opportunity of doing so, and another opportunity to the other place to see if they agree with those arguments or not. For that reason, I will vote for the amendment in the name of the noble Baroness, Lady Campbell.
Baroness Thornton
My Lords, do I sense that the House would like to move on? I think that is probably the right thing to do.
Baroness Flather
I would like to speak, and the noble Lord, Lord Dholakia, wants to speak. We have been waiting for our chance.
Baroness Thornton
My Lords, I thank the noble Baroness, Lady Flather, for her remarks and I would not for a moment dare to have stopped her contribution to this debate.
The principle that we are discussing remains as simple and straightforward as it was when it was debated in 2010, in Committee on the Bill and on Report. The question is: how do we give legal protection to the victims of caste discrimination? That was reflected throughout the debates in the Commons and this House. It is the case that there is a lacuna in our equality legislation, and surely it is our responsibility to ensure that this form of discrimination, however few the cases are—even if there were only one—has redress under UK law. We do not need any more research to tell us that there is caste discrimination and that it needs a legal remedy.
On these Benches we have been doing what the Government until very recently had signally failed to do over the past two to three years. We have discussed the matter with and made ourselves available to all the groups that have an interest, including those who have reservations and are opposed. I remind the House that it is only because the noble and right reverend Lord, Lord Harries, raised this matter in Committee that the Minister agreed to meet the anti-caste-discrimination groups after refusing to do so for more than two years.
We accept that the Government have some ground to catch up on in the implementation of this legislation and, in the spirit of the cross-party support for this cause, we would like to help them to do so. I am particularly grateful for the constructive dialogue that I and my colleagues in the House of Commons have had with the Alliance of Hindu Organisations, the ACLC, the Sikh Council and the British Sikh Consultative Forum, among others, as well as the Anti Caste Discrimination Alliance and the Dalit Solidarity Network.
I know the House will agree that it is important to put on the record that this is not about vilifying an entire community. Caste discrimination is not specific to any one religion but to residual social and cultural practice, and I hope that the Minister will agree with that. We believe that it is vital that this amendment is carried today and sent back to the House of Commons, because if we do so I am sure that the next stage will be one of negotiation about how, not whether, we deal with caste discrimination.
There are two reasons for that. First, only if we pass this amendment again will the Government realise that the serious matter of caste discrimination has strong cross-party support led by distinguished parliamentarians from all parts of this House and the Commons. Secondly, there is evidence, as the Minister’s remarks revealed, that the Government are considering their position again. We believe that the House of Lords reaffirming its view on this matter will help in that process and permit a discussion on how to move forward. This is the invaluable role that the Lords can play in such matters.
Since the House last discussed this matter, we in the Labour Party have been addressing the matter of implementation with the wide range of different groups that I have already mentioned. We wrote to the Minister over the weekend with our views and offered support, help and co-operation in the implementation of this legislation.
Coming from Bradford, I know that the south Asian communities are among the most enterprising and fair-minded in the UK, and that those community leaders who first arrived in Britain in the 1960s and 1970s do not need any lectures from us on the evils of discrimination. Yet, just because discrimination is perpetrated by a very small number of individuals, that is no reason not to have legislation.
Although I start from a different position in relation to legislation from some of the organisations that I have mentioned, I believe that we are all united in the view that if legislation goes ahead, and we hope it does, we must ensure that the process of implementation is right so as to prevent the entrenchment, rather than the eradication, of caste distinctions in British society.
As soon as this legislation is passed, we think that before the clause is enacted the Government need to commit to conducting a consultation on the interpretation of the term “caste”, which should be set out in guidance or secondary legislation. This would allow time and space to deal with the genuine concerns that have been raised, such as ensuring that this is not interpreted as religion-specific.
The Government should commit to setting out guidance or secondary legislation that employers or public bodies should not seek information about caste identification, nor must there be any requirement on individuals to disclose their caste. We know that this is possible with sexual orientation and we suggest that that holds the way forward. The goal must be to eliminate, not increase, the number of people being identified by caste. Therefore, if the legislation proceeds, we ask that Ministers seek to underpin the guidance with that principle.
This consultation detail and guidance needs to be in place before the new law is enacted. We are therefore happy to support community suggestions that there should be a delay in the implementation of the new clause for perhaps one year, possibly two, after the Bill receives Royal Assent.
We have suggested that the Government should consider a timetable for a statutory review of the clause. There is a clear consensus and commitment across all communities to work to eliminate caste divisions in the UK and ensure that the UK remains, as one individual put it, “the great leveller that it is”. If it comes to a point where caste distinction has become a non-issue in the UK, we should recognise that legislation may not be needed any more, so perhaps there should be a review in 10 to 15 years from commencement.
I think the Government have not thought through their Talk for a Change education programme. It must not be a project that aims to better inform individuals about caste in a way that increases the awareness and use of caste as an identifier and divider. Will the noble Baroness clarify that the Government’s purpose is to facilitate initiatives within communities to address existing residual discriminatory practices?
The Minister will argue that the Government want to consult first on whether to provide legal protection, which I think is the point of her remarks. The Government have come a long way in thinking about this, but we part company from them because we believe that we need to pass this amendment now, to get the legislation on the statute book, and then to resolve the issues that flow from that. That is why we again support the noble and right reverend Lord, Lord Harries, from these Benches.
I regret that the noble Lord, Lord Deben, has, as it were, decided to cave on this matter, although I accept that he has made great threats to the Government, which I am sure they are taking on board. He is right that this is a question of trust. The Government have had two years, almost three, to deal with this issue and have done nothing at all until this moment. I wonder what guarantee can be given by the Minister, other than legal protection, about taking this issue forward; her remarks leave it open to doubt whether the Government are prepared to do so. If this House does not keep the Government’s feet to the flame on caste discrimination, we must fear that it will be kicked into the long grass again and that nothing will happen. I hope that the Minister will agree to this amendment today. If not, I hope that the House will again support the noble and right reverend Lord, Lord Harries, and a move to discuss implementation in a way that achieves the goal of eliminating caste-based discrimination.
Baroness Stowell of Beeston
My Lords, I am very grateful to all noble Lords who have contributed to this debate. There have been some important and powerful speeches tonight, as there have been at all stages of the passage of this Bill. I will do my best to respond to most of the points that have been raised but will try not to take too much time, so forgive me if I do not go into great detail.
First, in response to the noble and right reverend Lord, Lord Harries, I will just clarify something that I said which he picked up on. The Government are not suggesting that we should replace the word “caste” with the word “descent”. That is not something that we are proposing; I raised it purely to highlight that it that had been raised by others in the course of this debate.
Several views have been expressed in the Chamber this evening. The noble and right reverend Lord, Lord Harries, questioned a comment I made that some people do not want to be defined by caste. He argued that that should not lead to a decision that we should not recognise caste in law in order to protect against discrimination. I will make a couple of points in response to that. First, over the past couple of weeks in the discussions that the Government have had with different bodies, it has been made very clear to me while attending those meetings that some people do not want to be defined by caste and are worried that caste legislation would allow that. In response to the noble Baroness, Lady Flather, the person who made that point most forcefully to me was a woman from the Hindu community.
It was interesting and illustrative that the noble Lord, Lord Singh, made the point that caste is absolutely not a feature at all in the Sikh religion. The noble Lord, Lord Parekh, said that caste is something that can be recognised across a wide range of different faiths. Indeed, the noble and right reverend Lord, Lord Harries, talked about this being something that can be found in the Christian faith. There are clearly, just in the debate that we have had this evening, several views being expressed in this regard.
International Women’s Day
Baroness Thornton Excerpts(11 years, 2 months ago)
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Baroness Pitkeathley
My Lords, it is always a huge pleasure to take part in this debate. I, too, am grateful to the Minister. As ever, I am in awe of the amount of experience, passion and expertise which Members of your Lordships’ House bring to the subject. This far down the batting order—we have had quite a few sporting metaphors today—it is difficult to think of anything new to say, but I just want to say a bit about public service.
All my working life has been in public service. I have never worked in the private sector. I have worked for local authorities, for the NHS or in the voluntary sector. Because I know what a hugely fulfilling experience this has been, I am concerned, even appalled, by recent reports about the fact that the number of women in British public life is plummeting; that there are fewer women now in senior positions in the judiciary, the arts, education, finance, the Civil Service and government than 10 years ago. Nearly 40 years after the Sex Discrimination Act and despite a huge influx of women into professions such as law and medicine at the lower end, as we have heard today, the glass ceiling for senior positions remains very firmly uncracked.
I count myself extremely fortunate to be able to sit in a legislature without standing for election, because of the peculiar institution that is the House of Lords. I know that it is ironic that I am saying that we should have more representation of women when I sit in a House that has only 21% women and, although we have many bishops, no women bishops, as the marvellous maiden speech of the right reverend Prelate has reminded us. It is of concern to me, and should be to all women, that we are 51% of the population, but only 22% of the House of Commons and a bit over 21% here.
A high point came in 2008 when Gordon Brown appointed Jacqui Smith as the first female Home Secretary. Before the Labour Government in 1997, only 40 female MPs had ever held ministerial office. By the time that Government ended, that had risen to 80; indeed, at that time women held a third of all ministerial posts. Currently, I am sad to say, many departments have no women Ministers at all, in spite of the ambition of the Prime Minister, which we have heard about several times.
Of course, many of the institutions that have promoted women have been abolished: the Equalities Office, the Women’s National Commission, to name two; and of course the Equalities and Human Rights Commission has been amalgamated with other institutions.
It bothers me greatly, as I know it does other noble Lords, that there is a perception that the battle for equality was won a while ago—by my generation, perhaps—but it is simply not true. Some people might say that it does not matter but I contend that having an 80/20 split rather than a 50/50 split has a damaging effect on our political life and on our social and cultural life as well.
Why do we find ourselves going backwards? One reason might be lack of leadership from the top. We still have a female Home Secretary, and other women do very well in some branches of industry, but the fact that there are so few sends a message to other women. Is the treatment by the media of women in public life harsher than it is for men? I contend that it is and that may also put women off.
The hours here and in the other place are not family-friendly, as we know. They are better than they were, especially in the House of Commons. The House of Lords is notorious for starting a debate on family-friendly hours at 10.30 pm. In fact, I think that the noble Baroness, Lady Thornton, was due to make her maiden speech in that debate.
Baroness Pitkeathley
We do a little better than that now, but perhaps not all that much better. Perhaps the image that politics is an inherently sexist arena—recent events may have reinforced that image—is also not welcoming to women.
We have also heard that it is hard to give up power. Power largely resides in the hands of men, who understandably want to retain it. Inadequate childcare is certainly a factor. A recent survey shows that two out of three local authorities are failing to fulfil their statutory obligation to provide childcare, despite the progress that the Minister mentioned. If the lack of support in the childcare area is a factor, how much more this is true of women who have caring responsibilities for older or disabled relatives.
It is in all our interests to enable those women, many of them over 50, to remain in the workforce. We need them to provide care but also to be able to continue to combine caring with paid employment. Their contribution to the economy is vital in both roles but we must also ensure that the caring role does not of itself lead them to live in poverty or build up poverty for the future because of a lack of pension contributions or savings. I am pleased to say that, yesterday, Carers UK launched an inquiry into caring and family finances, examining the costs of caring and the impact that caring has on the ability to work, with the aim of influencing policy in this area.
So far as public service goes, we must ask: what can we do about it? We can get better leadership from the top. We can stop rubbishing the idea of public service. Too often we hear that civil servants are interested only in bureaucracy. We must talk up public service.
We must have parity on interview panels, because we tend to appoint or choose people in our own image. Having appointed dozens, probably hundreds, of people in my time, I know that men tend to oversell themselves while women go the other way and undersell themselves. In that regard, increasing the self-confidence of women is all-important. Those of us who have been reasonably successful in public life owe a duty to our daughters and granddaughters to build that confidence so that the whole of society can benefit.
Baroness Thornton
My Lords, I congratulate the noble Baroness, Lady Stowell, on initiating this debate, and particularly congratulate the right reverend Prelate the Bishop of Coventry on his great maiden speech. We look forward to more speeches from him as time goes on. My maiden speech was referred to in this debate. I have to say, it happened not just to me but to the noble Baronesses, Lady Uddin and Lady Miller of Chilthorne Domer. We all made our maiden speeches about family-friendly working hours at 10 o’clock at night. Indeed, my children were in the gallery in their pyjamas watching me at the time.
We have had some brilliant speeches today. I am particularly drawn to the comments by the noble Baroness, Lady Heyhoe-Flint, about barriers to women in sports and clubs, being stuck in the car park, and so on. It reminded me of an experience I had about 30 years ago when I decided to throw my hat in the ring for selection for a by-election in Bradford, which is where I am from. I turned up to one of the selection meetings at a working men’s club. I was the only woman who was being seen. All the men walked in to take part in the meeting, but I was not allowed to walk in—I had to be signed in by the secretary of the club, because women were not allowed to be members. I am happy to say that I doubt whether that goes on in working men’s clubs these days.
International Women’s Day is a day for celebration, there is no doubt of that, and I am sure that noble Lords and the Minister will all be joining women across the world in singing “One Woman”, the International Women’s Day song which will be launched tomorrow. It is a musical celebration of women world wide, featuring more than 20 artists from across the world. Unlike the Minister, when the first International Women’s Day was launched by the United Nations in 1975, I was at the London School of Economics and the women’s group there had a party to celebrate it. However, I do not remember much about it.
As the Minister said, thousands of events will take place not only tomorrow but throughout the month of March to mark the economic, political and social achievements of women. As has already been mentioned by noble Lords, the theme which has been declared by the United Nations for 2013 is, “A promise is a promise: time for action to end violence against women”. In 2012 the theme was, “Empower rural women: end hunger and poverty”. In fact, every year since 1975 there has been a different theme. Parliaments and countries can choose their own theme for International Women’s Day, of course. In 2012, the European Parliament used a theme around equal pay for work of equal value. We can be proud of the 400 events in the United Kingdom. As my noble friend said, the United Nations website indicates that the UK is the most active country in the world in terms of celebrating International Women’s Day. It could be that other countries have not bothered to send in what activities are taking place, and certainly I am in favour of a few flowers being presented.
We can be proud of the role played by the UK on the international stage, and particularly of our role in the creation of UN Women, the United Nations entity for gender equality and the empowerment of women. When it was founded, the United Nations took an historic step in accelerating the organisation’s goals on gender equality and the empowerment of women. I am particularly proud that during the time I was in government with Harriet Harman and as part of the equalities team, we were key to the promotion and establishment of UN Women. In fact, on one occasion I had a tiny part to play. I was sent to an international women’s event and my job was to lobby some of the leading women from around the world to persuade them to persuade the United Nations to cough up the money to establish UN Women. That lobby included Ellen Johnson Sirleaf, the president of Liberia. I have to say that she was one of the most impressive people that I have ever met in my life—and of course she was completely solid on the objectives we had in mind. I also congratulate the Government on the fact that they have continued to support and fund UN Women; indeed, according to the annual report which I read recently, they have increased their contribution.
It is certainly true that the United Nations has made significant progress over many decades in advancing gender equality through landmark agreements such as the Beijing Declaration and Platform for Action and the Convention on the Elimination of Discrimination Against Women—CEDAW—which was referred to by the noble Baroness, Lady O’Neill. It is also true to say that the United Kingdom is represented at all these bodies by cross-party groups of women. It is to the credit of this country that whichever Government are in power, they have undertaken to take representative groups of women to all of these events. I know that many of my noble friends have taken part in them over the years, particularly my noble friend Lady Gould.
In the Labour Party we are proud of the historic role we have played in supporting gender equality over the years. That support goes right back to the days of supporting the family allowance being paid to women. Moreover, Votes for Women was part of our original platform when we were founded as a party. We have supported all the equality legislation since the Second World War: the Sex Discrimination Act 1975, the Equal Pay Act 1970, maternity rights and domestic violence legislation, the Equality Acts 2006 and 2010; and support for women at work and parents with children. As my noble friends Lady Nye and Lady Pitkeathley mentioned, we have the best record of any UK political party in terms of women’s representation with more women MPs than all the other political parties put together. We have near-equal representation of women and men in the devolved bodies, and many women representing their local communities on councils up and down the country.
I have absolutely no doubt that the two Ministers seated opposite me are totally committed to the representation of women in their parties and that, along with their colleagues, they have worked and endeavoured over the years to try to increase the representation of women. Indeed, I know they have done that because I have spoken about this to women in other political parties over many years. But the fact remains that if our political parties are left to their own devices in their selection processes—I include my own in this—predominantly, they are going to select men. That is why the Labour Party went down the road of all-women shortlists, and that is why in our target of 80 seats for the next general election—this is set out in a document that we published last week or the week before—half of the selections will be made from all-women shortlists. That is because we are determined that we should have a Parliament that represents the electorate and is at least 50% women. However, we cannot do that on our own. We need the other political parties to take positive action. I do not enjoy the fact that we force our constituency Labour parties to pick women candidates, but the reality is just as I have said: if left to their own devices, all but the most progressive will select men as their candidates, whether consciously or unconsciously.
Do we really believe that women are any less capable than men as politicians? I will just point to the fact that our all-women shortlist system has delivered a more representative and stronger Parliamentary Labour Party with a new generation of talented women MPs. I mention Rachel Reeves, Gloria De Piero, Stella Creasy, Bridget Phillipson and Luciana Berger. All of them were selected on all-women shortlists and I would dare anybody to suggest that they are second-class candidates or second-class representatives of their communities; of course they are not. It shows that positive action works. The challenge I would like to pose to the other political parties is that they have to take action if we are going to hit the target of 50% women in our Parliament.
I should like to raise two other matters because although this is a time for celebration, there are a couple of things that we need to look at. The first concerns older women—and I include myself in the group. We are a generation of active older women who have led very different lives from those of our mothers. We are the first generation, if you like, who have been doing it all. We have had jobs and we have brought up families. Some 71% of women aged between 45 and 64—I am towards the upper end of that group—think that employers offer too few opportunities to older women when recruiting staff. In 1983, only 13% of older women thought that. We live longer and we are in better health than our mothers were at our age. However, this group is losing out the most from the Government’s pension changes because they will have to continue working longer than they expected. This generation is angry about being regarded as “past it”, being overlooked for responsibility and promotion, and being prioritised for redundancy. Some of us are very annoyed that the wisdom and experience of older women are not valued in the same way as they are for older men. That is exemplified by the portrayal of older women on television, as we all know.
These women—I include myself—are holding families and communities together, a point made by the right reverend Prelate. We pick up the pieces. We look after the grandchildren because childcare costs are going up. We care for our elderly relatives as social care services are shredded. We are the ones being stretched in every direction. It is time that public policy caught up with this generation of older women. In the Labour Party we have launched the Commission on Older Women, chaired by Harriet Harman MP, to investigate the policy implications for women in their fifties and sixties and what they are facing, and to look for longer-term policy solutions. The commission will focus on older women in the workplace, older women and their caring responsibilities, and older women in public life. All I can say is: watch this space, because I think that the commission is going to produce some interesting results.
I turn now to the earlier end of women’s lives and the position of younger mothers. The noble Baroness, Lady Stowell, said that the Government have helped women, are positive about them, and are doing a great deal for them. In some senses they are, but I think we need to look at the objective evidence because some of it points in the opposite direction, particularly for young mothers. David Cameron promised to lead the most family-friendly Government ever, but since this coalition Government came to power, new mums have been among the hardest hit by the coalition’s tax and benefit changes. From April this year, the Government will restrict maternity pay to a 1% annual increase and by 2015, in real terms, this cut in maternity pay will effectively be a £180 “mummy tax” on working women, on top of the additional cuts being faced by new mums. Nationally, up to 1.2 million people, including previous children and dads alongside mums, will be affected by the mummy tax each year. We estimate—this is from the House of Commons Library so is almost certainly true—that 210,000 new mums will be hardest hit by this cap. That is why the Labour Party is launching a campaign for this International Women’s Day and for Mothering Sunday called “mums not millionaires”. At the same time as the Government are cutting taxes for people earning over £1 million, the figures compiled by the House of Commons Library confirm that the lowest-paid new mums will lose £1,300 during pregnancy and the baby’s first year, and a further £422 from cuts to child benefit over the same period. This is not a women-friendly agenda. As we celebrate this day, we should be looking at the facts and figures and not just the words and exhortations.
In conclusion, I join with everyone in the House in this celebration of women, their achievements and the progress they have made. However, as my noble friends Lady Massey and Lady Crawley said, this is a long road that we tread. As the noble Baroness, Lady Afshar, my noble friend Lord Mitchell and the noble Lord, Lord Black, said, this is a very tough road indeed for millions of women across the world. We should not forget that it was through political activity—sometimes militant political activity—that women won the vote and have made possible the progress that we celebrate today.
I make no apology for the political nature of my speech. If women do not push hard in every area, we will not make progress. Progress may sometimes be noisy and many millions of women have had to be very brave over the centuries. On International Women’s Day, we should remember with gratitude all those women to whom we owe so much.
Enterprise and Regulatory Reform Bill
Baroness Thornton Excerpts(11 years, 2 months ago)
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Baroness O'Neill of Bengarve
My Lords, I begin by declaring an interest as the chair of the Equality and Human Rights Commission. I have appreciated the arguments made on this by many noble Lords, including many noble friends. I can say only a limited amount from the position that I occupy, but I should at least remind your Lordships of the position that the commission has taken on the removal of Section 3. This is not a new position since I became chair, but one that was already taken when my predecessor Trevor Phillips chaired the commission. It is summarised in one sentence. It is not a sentence of high enthusiasm, but it states the balance of the issues. It says,
“on balance, the Commission concludes that the changes currently proposed are unlikely to have a significant adverse impact on its work”.
That is partly because other sections still preserve the wider duties, but it is also because the very task of an equality and human rights body is, by its nature, aspirational. That is to say, nobody goes into this domain without profound aspirations for respecting the human rights of each and every one of us in this country and their equal treatment.
Baroness Thornton
My Lords, I am greatly honoured to follow the lead offered by the noble Baroness, Lady Campbell, and all the speeches that have been made today. When you are on the Front Bench, it is always easy to put your name to amendments but on this occasion I felt that it was very important that the Government heard the voices of the Back Benches of your Lordships’ House. I felt—as has been proved to be the case—that people would feel passionately that the Government are in the wrong place and that Section 3 should not be removed.
I have two questions for the Minister. The first partly follows the remarks made by the noble Baroness, Lady O’Neill. It concerns the recent briefing from the EHRC, which states that, on the one hand,
“that the inclusion in its founding legislation of a unifying principle to bridge equality and human rights is important”,
but that, on the other hand, perhaps the answer to the dilemma of Section 3 would be a simpler purpose clause which described the commission,
“as the national expert on equality and human rights”,
and the strategic regulator for equality. It is not quite the poetic and aspirational language in the current legislation. Do the Government regard this intervention at this stage of the Bill as helpful or not?
I think that it muddies the water quite considerably. It adds force to the argument put by the noble Baroness, Lady Campbell. Let us be clear, the Government started by wanting to delete the section completely for reasons which the noble and learned Lord, Lord Lloyd, has demolished. However, if they want to change it and if the EHRC is suggesting that it should be changed, this is surely not the place to do so. This has to be a matter of great consideration and discussion among all the different organisations and across both Houses of Parliament. That was the import we gave Section 3 at the beginning in 2006. I suggest that the latest intervention by the EHRC on this matter serves only to underline the case that we should not go down the route proposed by the Government.
My second question is why does not one single stakeholder organisation—I apologise for that phrase, but I cannot find a better one—agree with the noble Baroness and her Government? Why does she think that Sir Bob Hepple has given the advice that he has about Section 3? Has she had discussions in the past month with the bodies which care about this matter? If so, what is the outcome of those discussions? Given that the Government are in absolutely no doubt that all these organisations are concerned about this and do not want this change to happen, have the Government had discussions with them? Have any discussions influenced their position? I hope that their position will be that they will accept this amendment. Certainly, from these Benches, we are adamantly opposed to the deletion of Section 3. If the noble Baroness, Lady Campbell, decides to test the opinion of the House, we will be with her.
Baroness Stowell of Beeston
My Lords, this has been an important debate and I am grateful to all noble Lords who have contributed. We have covered an important matter about which we all feel strongly. We all want a society based on equality of opportunity which respects human rights. I pay tribute, as I did in Committee, to all noble Lords who have worked hard in this arena over many years. I especially pay tribute to the noble Baroness, Lady Campbell, not just for everything that she has done but for the very open and straightforward manner in which she and I have discussed her amendments at various stages of the passage of this Bill. I really am grateful to her for that.
A lot has been achieved since we last debated this issue. We have appointed new commissioners and the commission’s budget has been announced. I will come back to these points later today when we debate the accountability of the commission in the final group of amendments. First, I shall be absolutely clear about what this Government seek to achieve via this Bill. We want a strong and independent Equality and Human Rights Commission which promotes and protects equality and human rights. We want it to be recognised and respected as the national expert in these areas as well as for being a strategic enforcer of equality law.
Under the leadership of the noble Baroness, Lady O’Neill, who is respected and renowned the world over for her evidence-based approach, we are confident that the commission’s work will be respected, but in order for her, her board and its successors to determine their priorities and agree a coherent strategy, we must first be clear on the purpose of the commission.
The commission has done some good work since it was established in 2007—most recently, the inquiry into the home care of elderly people and the disability harassment inquiry, among other things, which were referred to by the noble Baroness, Lady Hollins. Let me be clear: removing the general duty would not prevent this kind of work taking place in the future. I will explain in a moment why that is the case. However, we also have to acknowledge that the commission has not been universally acclaimed as a national institution. Indeed, it has been criticised for the way that it has been run. Poor financial management resulting in qualified accounts was the most serious evidence of its failures.
In the past couple of years things have started to improve. Indeed, the past two sets of accounts have been clean and substantial savings have been made. I pay tribute to all those who played their part in that, which includes several Members of this House. However, when an organisation seriously underperforms, it would be negligent not to understand what caused those problems and take steps to put things right. As most successful leaders, whether they are in business or politics, will testify, when things go wrong in an organisation it is often because the organisation lacks clarity of purpose. Indeed, they will argue that for any organisation to be successful, it needs clarity of purpose.
The general duty is not a core purpose. It is a statement with which we all agree, but it is not a purpose. As I said in Committee, that statement for the general duty includes the requirement that:
“We must encourage and support the development of a society in which: People's ability to achieve their potential is not limited by prejudice or discrimination. There is respect for and protection of each individual's human rights”,
and goes on. If the statement were enshrined exclusively in statute and described as the commission’s general duty, that would imply that the commission is responsible for encouraging and supporting the development of such a society on its own.
I know that the noble and learned Lord, Lord Lloyd of Berwick, questioned my reasoning, but I stand by it. The Government’s argument remains that several institutions—Parliament, the Government, other public sector organisations, business and everyone—are collectively responsible for achieving the kind of society that that general duty sets out. Having such a wide-ranging and unrealistic general duty would make it harder than it should be for the commission to prioritise its work. That would be the case for any organisation given that general duty.
The noble Baroness, Lady O’Neill of Bengarve, made clear in her contribution the commission’s view of what the Government are proposing, and I am grateful to her for that. She said that while the commission lacks enthusiasm in the language that uses for the Government’s proposals to remove the general duty, it none the less acknowledges that it would not impact significantly on its work. She also agreed that that general duty is aspirational, the nature of the Equality Human Rights Commission is for it to be aspirational and that that is not required to be set out in statute.
The noble Baroness, Lady Campbell, the noble and learned Lord, Lord Lloyd of Berwick, and other noble Lords referred to the memo from Sir Bob Hepple and questioned the unifying link that Section 3 provides between equality and human rights. The commission can perform its functions under its duties in respect of equality under Section 8 and of human rights under Section 9, so that any unifying link between these two concepts provided by the duty is not essential. As the commission made clear in the briefing distributed at the end of last week, it sees the general duty as symbolic rather than practical.
The Government are clear that the commission’s core purpose is to promote equality and to protect human rights. These duties are set out in Sections 8 and 9 of the 2006 Act. They are supported by a suite of enforcement powers in that Act, such as conducting inquiries and investigations, issuing compliance notices or entering into agreements with organisations and instigating or intervening in judicial reviews or other legal proceedings.
Lord Cormack
My Lords, I strongly support what has been said. As my noble friend Lord Deben, with whom I do not always agree, made his powerful and convincing speech, I could not help but remember a conversation I had with my father—who loved India and travelled there often before the Second World War—in 1947, 66 years ago when India became independent. I thought of that conversation, too, when the noble Baroness, Lady Flather, was addressing us a few moments ago. My father said, “India will have its independence, and I hope that that will mean the end of the caste system”.
As a young boy of seven, I had not a clue what he was talking about. He sat me down and explained the plight of the untouchables, which had moved him many times in his visits to India. Here we are, 66 years on, and there are people not only in India but in our own land who do not have the protections for which my noble friend Lord Deben and others have argued so articulately this afternoon.
A few months ago, we had a fine debate introduced by my noble friend Lord Popat, who is sitting on the Front Bench now. It was to commemorate the 40th anniversary of the admission of the Uganda Asians. From all sides of the House, people spoke with passion, conviction and affection for the way in which that community adapted and adopted itself and enriched us all in the process. It was right that we should pay our tributes. But is it not sad that there are still 400,000 in this country who do not enjoy the full protection of the law in the way in which the Ugandan Asians rightly do?
I very much hope this afternoon that the House will not need to divide. I hope that it will carry this amendment by acclamation. If there is any chance at all of the Government not being able to accept the amendment, I hope—and here I repeat what I said in an earlier debate and echo what the noble Lord, Lord Alton, said—that at the very least, my noble friend the Minister will think again and come back at Third Reading. If she cannot do that and does not feel that she can discuss with senior colleagues in the Government the need to do that, the House has a duty incumbent on it to strike a blow—brief but effective.
If we wanted to be convinced of the need for that, we need only reflect on the words of the noble Lord, Lord Lester, a few moments ago when he talked about the expense of going to law. Do we wish to create a situation where the only way of seeking redress of the basic grievance of not being treated equal is to go to law? No, we do not. If the amendment cannot be accepted and if there cannot be a promise to come back at Third Reading, I hope that it will be carried.
Baroness Thornton
My Lords, it was with enormous pleasure and humility that I put my name to this amendment on behalf of these Benches. It is true what the noble Lord, Lord Lester said. In 2009-10, I attended a meeting of hundreds of Dalits and their organisations and found myself completely convinced that there was a gap in the law. Our equality legislation did not cater for this group and it was something that we needed to resolve. That is all that is before us today.
I thank the movers of the amendment and I particularly want to thank the noble Lord, Lord Deben, because I thought his speech was extraordinary. All we want and all that we need to do is to add “caste” to,
“colour, nationality or ethnic or national origins”,
under the race characteristic of the equality legislation. It is not actually a very big thing to do, but it is a very important thing that we have to do today.
Lord Sheikh
My Lords, I am grateful for the opportunity to contribute to the debate and thankful to the Government for introducing this Bill, which will support British businesses in cutting unnecessary costs and red tape, boost consumer confidence and help to create more jobs.
I wanted to speak briefly on the amendment of the noble and right reverend Lord, Lord Harries, relating to the inclusion of caste when considering cases of discrimination. This is not a new debate; indeed, when the Equality Act was published in 2010, a specific provision was included to allow for caste to be added as an aspect of race at a later date. Later that year, the National Institute of Economic and Social Research undertook an extensive government-commissioned study into the prevalence and severity of caste discrimination in the United Kingdom and concluded that it does in fact occur in many of the areas covered by the Equality Act, such as education and the workplace. That led me to conclude that government action is indeed required as a matter of some urgency.
As a man with Indian ancestry, I am all too aware of the deep-rooted prejudice and unfair treatment that results from allowing the caste-based system to persevere. The Minister may be aware of the religious concept of untouchability, whereby certain individuals are declared untouchables due to their perceived association with impurity and pollution. As a result, they are ostracised and isolated from the rest of society in order to protect and preserve the quality of the majority.
In particular, across much of south Asia, the Dalit community has suffered greatly from this deep, ingrained form of discrimination. Dalits are a community considered so lowly in the social hierarchy that in some circles they are in fact excluded from the caste system altogether and completely segregated by social customs.
Historically, in countries such as India, Dalits have also been physically separated from the rest of society, housed outside the main villages and entitled to perform only the most menial of jobs. This horrendous social mentality still prevails in some rural communities, although thankfully it is becoming less common. Today, the Indian constitution outlaws discrimination based on caste and provides for the reservation of seats in the House of the People and the states’ legislative assemblies for those who have been historically disadvantaged due to the caste system. There are also programmes to promote and provide educational and employment opportunities for those such as Dalits. Many people in this country will be completely unaware of the existence of such a caste system and its history in suppressing minorities here. This is why it is particularly important that we acknowledge the potential extent of the problem in the United Kingdom.
I was instinctively drawn to support this amendment. Following further reading and a highly reassuring discussion with the Minister this morning, I am now very much aware of how seriously the Government are taking this matter. They have been very clear that nobody should suffer prejudice because of their caste, and as such have developed the Talk for a Change programme to work with the communities affected by this discrimination. As with so many of the most deep-rooted cultural ills, education and awareness is the key to prevention and this is exactly the approach this programme will take. I also appreciate that there will be a political focus on the Hindu and Sikh communities where the problem is most prevalent. Such assertive action is extremely welcome and is necessary both in the name of protecting vulnerable individuals and in maintaining our reputation as a country that embraces progressive and tolerant attitudes.
The Government have also been clear that they have no plans to remove the provision contained within the Equality Act which allows for caste to be included at a later date. This again reassures me that they are maintaining a flexible approach to tackling this problem and were we to enforce the type of legislation called for in this amendment we would simply be pushing against an open door.
We must realise that, as a nation which has so proudly and successfully championed the fusion of a diverse range of minority communities with modern-day Britain, we have inevitable responsibilities. These responsibilities should be seen as challenges to relish; ways in which we can assist our new communities and help them to integrate better into what many see as the mainstream of British life.
Our Prime Minister has made the point that Britain is open for business, and I believe that furthering our commitment to fairness and equality in our boardrooms, offices and factories can only serve to make us an even more attractive nation to do business with. I believe that the Government share this sentiment and I look forward to following the progress of the Talk for a Change programme.
If a Division is called, I shall certainly vote not-content.
Baroness Turner of Camden
My Lords, I have no desire to add to the two very detailed contributions that have just been made to this debate. However, I fully support the amendment. I am opposed to the abolition of the questionnaire procedure. I cannot understand why the Government are proceeding down this path. As has already been indicated, the questionnaire procedure saves money by deterring ill founded litigation. Most of the consultees, including the British Chambers of Commerce, were opposed to it while surveys have shown that none of the businesses questioned raised concerns about the questionnaire procedure. Quite honestly, there is no evidence at all that the questionnaire procedure is a burden on business. As far as the trade union movement is concerned, the TUC is totally opposed to the abolition of the questionnaire. I hope that the Government, having listened to the two previous noble Lords, will agree that this is not the path to go down and will not proceed with the abolition.
Baroness Thornton
My Lords, I was very happy to put my name to this amendment from the noble Lord, Lord Lester. He spoke with great passion and authority about this issue at Second Reading and has done so again to explain why this amendment is so important. In terms of practical equalities on an everyday basis, this is probably the most important amendment we are going to discuss today because it is about how ordinary people can start to challenge whether they have been discriminated against.
As the noble Lord, Lord Lester, and my noble friend Lady Turner have just said, there is no evidence that this procedure is being used as a fishing exercise. Case law makes clear that businesses and other respondents are not required to answer questions which are disproportionate and that a poor response would not automatically lead to a finding of discrimination. Indeed, the Government’s impact assessment fails to provide any empirical support for removing this so-called regulatory burden on businesses. The questionnaire procedure facilitates access to justice. It helps both parties to assess where a claim lies and enables them to reach an early settlement where appropriate. It is therefore crucial that the Government should not repeal Section 138 of the Equality Act 2010.
Baroness Stowell of Beeston
My Lords, I am grateful to all noble Lords for their contributions today on this matter. I start by repeating what I said in Committee on this measure: our proposal does not impact on the substantive rights of those who believe that they have encountered discrimination. It does not deny people access to justice or reduce the remedies available to those who have experienced discrimination. It simply replaces an out-of-date system with a simpler and fairer approach for all. Let me be clear: we want a process that commands confidence from all the parties likely to be involved in discrimination cases.
Before I go any further, I will respond to a point made by the noble Lord, Lord Ouseley, about legal aid. He suggested that it was being denied, making it harder for people to bring claims. Legal aid continues to be available in discrimination cases.
Our concerns are with the nature of the statutory mechanism around Section 138 of the Act, and the particular combination of features—an unlimited scope for request of detail concerning a possible complaint, a short deadline for response and the tribunal’s power to draw pejorative inference from the response or lack of it—which employers and businesses feel really back them into a corner. This process started off, as my noble friend Lord Lester said, over 40 years ago with the intention of a straightforward question and answer procedure. In 1975, the then Minister described it as a way of enabling the complainant to obtain simple, basic information on which to decide whether to start a case. Noble Lords might compare that sentiment to actual, although, of course, anonymised, examples of the sort of questions that are nowadays put to employers. Here are a couple: “Please specify the number of employees who have requested, applied for or been invited to transfer to another department within the 18 month calendar period prior to” whatever date; “Please explain how many of those transferred had raised grievances whether formal or informal, prior to their transfer.”
At times the number of supplementary questions runs to 40, 50 or even 100, all of which employers, including small employers, often feel required to answer within eight weeks or face a tribunal case where they are already handicapped by the inferences which the tribunal may draw under the statute. It is, therefore, not surprising that many businesses feel that the balance has shifted too far in favour of the claimant. The repeal that we propose will address this and, together with the non-statutory arrangements that we are working on, will make for a fairer and simpler process, as I said before, for all involved.
My noble friend Lord Lester said that no court, tribunal or legal practitioner had ever suggested that the procedure is abused. I am happy to write to my noble friend about this because we believe some legal practitioners would certainly disagree with his statement that no abuse occurs. I hope he will not mind if I follow up on that in writing rather than trying to respond today on the Floor of the House.
When we debated this in Committee, some noble Lords doubted my contention that,
“not one single employer or business organisation told us that they saw value in the questionnaires”.—[Official Report, 14/1/13; col. GC 136.]
Indeed, that has been challenged again today by my noble friend Lord Lester and the noble Baronesses, Lady Turner of Camden and Lady Thornton. I find that a bit surprising because I thought that the letter I sent to the noble Baroness, Lady Thornton, on 8 February provided the evidence for that statement. Indeed, I noted in that letter the alienation of employers and other companies from the view expressed frequently in debates on this clause that the obtaining information process benefits business as well as individuals by weeding out unmeritorious claims. In support of this, I refer to one particular response which sums up the employer view: “The information we send in response is rarely if ever used subsequently in the case, but does require us to undertake a considerable amount of work obtaining and collating the requested information.” It is a matter of concern that what is seen in Parliament as a major benefit of the procedure—its usefulness, on occasion, to both parties as a prevention mechanism—is in reality simply not shared, or even recognised, by respondents to the questionnaires.
Despite this, I emphasise that we are not trying to do away with the concept of pre-claim disclosure. We do indeed note the claim of those arguing in favour of retaining these provisions that pre-claim disclosure can on occasion be helpful to all concerned. That brings me to what we propose to put in place of Section 138 of the Equality Act. I underline what I said in Committee about the value we see in encouraging a pre-claim dialogue and exchange of information. Our early conciliation provisions in the Bill are intended to achieve just that and will provide the right sort of platform to help establish the basic facts to determine if discrimination has occurred. However, even if parties do not in the end agree to conciliation taking place, a conversation with ACAS will give them a better understanding—
Baroness Thornton
“Equality Act 2010: Equality Impact Assessment
(1) The Equality Act 2010 is amended as follows.
(2) In section 149 (public sector equality duty), after subsection (6) insert—
“(6A) A public authority shall make the following arrangements for compliance with the duties under this section—
(a) assessing and consulting on the likely impact of its proposed policies on the promotion of its duties under this section;(b) monitoring its policies for any adverse impact on the fulfilment of its duties under this section;(c) publishing the results of such assessments and consultations as are mentioned in paragraph (a) and of such monitoring as is mentioned in paragraph (b); (d) ensuring public access to information and services which it provides; and(e) training staff in connection with the duties imposed by this section.””
Baroness Thornton
My Lords, Amendment 76 concerns equality impact assessments and would reinstate statutory requirements to undertake them as part of the public sector equality duty. An equality impact assessment involves assessing the likely or actual effects of policies or services on people in respect of disability, gender and racial equality. While equality impact assessments are not legally required, they have been widely adopted as an effective and efficient means for public authorities to undertake proper consideration of equal opportunities. They are described by the authorities that use them as,
“a positive force for the delivery of real equality”.
Moreover, case law suggests that these assessments provide robust evidence documenting how decisions were reached. Indeed, case law has confirmed that to have due regard to equality, a public authority needs to gather sufficient information about the impact on equality, give such information proper consideration at a formative stage of decision-making and consider whether any negative impact can be eliminated, mitigated or justified. Authorities are also advised to have some kind of audit trail to show that the actions they took comply with the duty. Therefore, while it is true that the courts have never held that there is a requirement to complete a written equality impact assessment or that having an equality impact assessment itself is sufficient to show compliance with a duty—especially if it has been completed with a purely tick-box or form-filling mentality—the main components of a good-quality, substantive equality impact assessment process are what the courts have held to be necessary in order to have due regard to equality.
It does not help to ensure public authorities’ compliance with their duty to have the Prime Minister and other government Ministers simply dismissing equality impact assessments as wasteful, bureaucratic and unnecessary exercises. Rather than calling time on equality impact assessments, as the Prime Minister did at the CBI conference in November 2012, we believe that these vital assessments should be enshrined in legislation. We therefore call for an additional amendment to be made to the Enterprise and Regulatory Reform Bill that would require public authorities to assess, consult, publish and monitor the likely impact of proposed policies.
This becomes even more important when, days after the announcement of a review of the public sector equality duty by the Secretary of State, Maria Miller, the Prime Minister announced that public sector organisations will no longer be required to undertake equality impact assessments as a means of fulfilling their obligations outlined in the public sector equality duty. Instead, these important assessments have been dismissed as unnecessary.
Repeated government announcements about equality law being burdensome red tape, the declaration of the Prime Minister at the CBI conference, and the dismissal of equality monitoring by the Communities Secretary Eric Pickles as unnecessary, intrusive and a waste of taxpayers’ money, fuel our concerns about the removal of these assessments. Indeed, I was reflecting that it would be nice if this Government actually made some positive announcements about equality impact assessments and how they are necessary to judge the impact of how public money is spent and used. Just saying, as the Prime Minister did, that,
“We have smart people in Whitehall who consider equalities issues while they’re making the policy. We don’t need all this extra tick-box stuff … so I can tell you today, we are calling time on equality impact assessments”,
seems to me to be a somewhat facile assessment of what is a useful public sector tool.
It is notable that the review of the public sector equality duty comes after the Government were criticised by the EHRC for failing to abide by the requirements within it. Furthermore, despite its membership including four Conservatives, not one Labour politician has been appointed to the steering committee that is reviewing this. Will the Minister tell us when the steering group looking at the public sector equality duty is due to report? My understanding is that it has been further delayed and that it will not now report until the summer. How is the steering group conducting its inquiry and who is it inviting to talk to it about the public sector equality duty?
Will the Minister also comment on a recent blog for Liberal Democrat Voice by the BIS and Equality Minister Jo Swinson? She seemed to imply that the duty has actually held policymakers back from properly considering equality. She said:
“As Liberal Democrats, we do not think equalities should be about ticking boxes and regulatory hoops—it’s too important to be relegated to an administrative duty. Advancing LGBT, gender, disability and race equality will only be achieved by putting equalities at the heart of every department”.
She is right about that, but you also need to see the effects of the policies you are pursuing.
The Minister needs to address two issues. First, if you do not have an equality impact assessment, how will you assess the effect of the work of public authorities? Secondly, if the body that is reviewing the public sector equality duty reports back that it does not think it is necessary, what will the Government do with that information? Are we going to find ourselves at the end of the summer in a situation in which the Government completely stop looking at the impact of any of their policies, spending commitments and decisions on factors such as age or gender, or on any of the different groups, such as LGBT people, covered by equality legislation? I am at a loss to know what direction the Government think they are taking with this so-called regulatory reform. I beg to move.
Baroness Hussein-Ece
My Lords, I, too, support this amendment, to which I have added my name, as it seems to me there is an awful lot of misinformation regarding the benefits of having an equality impact assessment as part of the public sector equality duty. The noble Baroness has just mentioned tick-box exercises and bureaucracy, and described how this provision can be seen as a burden. However, it is an important tool and has been successfully used to assess the impact of public services and of government policy on vulnerable people. For many decades this was not the case. I cite my experience of working in a health authority before the public sector equality duty came into force, when it was very much up to the relevant health authority to assess whether different sections of the community or different groups received the same level of service, whether they could access that service and, indeed, whether the service was even appropriate. The public sector equality duty has gone some way to ensuring that vulnerable people, who are not always able to articulate the fact that they are not accessing a service or not benefiting from public services, are catered for and is an important way of ensuring that services are tailored to the local community. As I say, it has achieved some success.
I am not going to defend in your Lordships’ House every aspect of the way that this provision has been implemented. Of course, there is always room for improvement and greater accountability, and the amendment tries to address that. However, we must ensure that equality and the right of access to services is open to all, regardless of who they are or their background. Concerns have been raised about the way in which the steering group that has been mentioned has been established to review this issue. There does not seem to be a lot of transparency in the way that the review will conducted. There is also a lot of concern about the independence of the group given that everybody on it seems to be from a political party. I know that there is somebody from the Liberal Democrats on it but I have had no contact with that person. I would like to know how the group will take evidence and evaluate whether equality impact assessments should be changed or, indeed, removed. I, too, would like more information about this steering group which has been charged with this very important task.
As I say, the duty encourages proactive action to close equality gaps in health provision for different ethnic and other groups, and to ensure that services meet the needs of those who use them. It provides an important evidence base to support provision that is effective and efficient and ensures that services provide value for money, so it has served an important purpose. I hope that the Minister will accommodate some sections of this amendment and will look at equality impact assessments as a way of assisting the provision of services as opposed to being detrimental to them. I declare an interest as a commissioner of the Equality and Human Rights Commission when it instigated a review of the Treasury’s compliance with the duty as regards the 2010 spending review. The public sector equality duty can make a huge difference if applied purposefully, and was seen by people in the Treasury and, indeed, by people in government as a helpful thing to do. Aspects of that spending review, such as its impact on women and minority groups, might not have been considered, so the duty was seen as a positive and helpful measure. I hope that the Minister will say how she thinks we may continue on a positive note by rolling this out.
Baroness Stowell of Beeston
I am grateful to the noble Baroness for her clarification, and I am sorry if I misrepresented her position on the steering group.
The noble Baroness, Lady Thornton, and my noble friend Lady Hussein-Ece referred to the membership of the steering group. I say clearly that its members have been selected because of their experience and knowledge around these issues, and it is not intended at all to be a politically representative body. The steering group represents the main delivery public sectors of policing, education, health, local and central government. It can use their expertise to shape the scope of the evidence-gathering and develop the final recommendations. As the noble Baroness, Lady Thornton, said, we have extended the timetable to June from the previous announced date of the end of April at the request of the chair and the steering group to help to ensure that the review and its recommendations are robust.
The evidence-gathering for the review began in January and includes a series of round tables, involving a wide variety of experts, to gather evidence on how the duty is operating. The first round table involved voluntary and community sector organisations such as the Equality and Diversity Forum, the Stephen Lawrence Trust and Age UK. The second involved lawyers from across the public sector. A further six round tables are planned, including with inspectorates, private sector contractors and senior decision-makers. The work will include site visits to public bodies, for example to a police force or a school, to examine the experiences of different individuals within an organisation. The work will also include the commissioning of qualitative research, which will be conducted independently—as is always the case in these matters—through a series of in-depth interviews with public bodies. We will be inviting evidence from organisations and individuals about the operation of the duty, which should provide insight about public bodies’ experiences of working with the duty. We are also analysing written evidence in the form of existing literature, case law and international comparisons. We are therefore approaching this review with an open mind and gathering evidence from numerous sources to get a comprehensive picture of how the duty operates in practice.
The noble Baroness, Lady Thornton, asked how we would respond once the work is complete and the steering group produces its report. As I am sure she would expect me to say, it is far too early for me to speculate on how we will respond. However, given that we have set up the review and given it the remit to roam and consult as widely as it is doing, we will clearly take the report seriously and are looking forward to receiving it.
The equality duty and supporting regulations provide sufficient safeguards for holding public bodies to account, and introducing a further legal requirement for an equality impact assessment will not add anything material. Furthermore, the timing is not right when we are taking stock of how the current legislation is operating in practice. As I have said before and to make absolutely clear, this is a review of how that responsibility is operating, not whether public bodies should have due regard for equality. I hope that I have been able to give the noble Baroness more information about the review, and I am grateful for that opportunity.
Baroness Thornton
My Lords, I thank my noble friends Lord Harrison and Lady Prosser, and the noble Baroness, Lady Hussein-Ece, for their comments. I also thank the noble Lord, Lord Deben, who, as ever, made pertinent comments.
The response from the Minister was actually very helpful. We do not agree and I would obviously much prefer that the equality impact assessments were mandatory. There is no question that that would work better. However, while the Minister may not have given much comfort to her noble friend Lord Deben in what she said about the way she sees the public sector equality duty and impact assessments working, I found the Minister’s response useful and helpful, and I will read her comments in greater detail.
As to the public sector equality duty review, it was useful and reassuring to know that the review is ranging far and wide and taking evidence from a range of bodies. The Government would have been wise to make the review more balanced, given that politicians from different councils are taking part. It would have been useful to have had a Labour person on the steering group, but that does not mean that the outcome will not be useful. I am also reassured that the review is taking time to get this right.
Given the information that the noble Baroness has provided to the House, I am happy, at this stage, to beg leave to withdraw the amendment.
Baroness Hussein-Ece
My Lords, I shall not keep the House too long as the noble Baroness, Lady Prosser, has given such a comprehensive introduction to this group of amendments, to which I have added my name. There are just a few points that I should like to add.
The steps outlined in the amendments are, as I see it, enabling. They enable the commission to fulfil its mandate more effectively and to achieve more balance between independence, accountability and transparency. They build on recent developments such as the first pre-appointment hearing of the commission’s chair, as was mentioned.
I declare an interest as a commissioner of the Equality and Human Rights Commission until last December. I am all too well aware that the commission is very keen to advance its relationship with Parliament and to have the ability to work across government departments. As has been said, the current arrangement has acted as a hindrance and has not oiled the wheels, so to speak, to enable the commission to work more effectively with other government departments—something that it should be doing. It has the responsibility to work with all departments across government, given its wide-ranging remit. The current arrangement of going through the Government Equalities Office has limited this to an extent. I see the commission’s responsibility for assessing how the Government comply with, for example, domestic and international equality rights obligations as a positive development and a strengthening of its relationship with Parliament.
At Second Reading, I said that setting the budget is so important that it needs to be done in a more timely, transparent and effective way. I was at the budget-setting process last year. I remember being at a board meeting in February when the commissioners still had no idea what their budget would be from 1 April. That is not satisfactory or acceptable, and it needs to be addressed. Taking these amendments on board would go some way to addressing this and making sure that the commission becomes more transparent and accountable and is allowed to function. We talk about a red tape challenge, but it goes both ways. There has been a lot of red tape attached to this commission from its inception. It has almost been bound and gagged at birth and has not been allowed to function properly. This is a way of releasing it to an extent, while keeping some important checks and balances in place.
Baroness Thornton
My Lords, I agree completely with the noble Baroness, Lady Hussein-Ece. I have written down “micromanagement by the Government Equalities Office is a bit of a red tape challenge that the Government could probably do well to look at”, so our thoughts were heading in the same direction. I see this group of amendments as continuing the positive discussion that we had in Grand Committee, where the Minister started to explain where the Government were going and what the direction of travel was. I see this group of amendments as part of that process and discussion, and I congratulate my noble friend Lady Prosser on her introduction.
What we are essentially addressing here is how the EHRC can deliver its statutory responsibility to assess how the Government comply with their domestic and international equality and human rights obligations, how it can best do that and how it can be independent in doing so. It seems to us that parliamentary accountability would provide the commission with that appropriate independence from Government to fulfil its role impartially. I hope that the Minister will accept something that I said in Grand Committee: this is not a means of stopping the Government setting the overall policy direction on equality matters. Everybody accepts that that is the Government’s job. However, it means that our Commission for Equality and Human Rights, apart from anything else, has the necessary independence to from time to time be critical of the Government and hold them properly to account.
Baroness Stowell of Beeston
My Lords, as I said in response to the first debate this afternoon, the Government want a strong, independent Equality and Human Rights Commission that promotes and protects equality and human rights. We want it to be recognised and respected as the national expert in these areas as well as a strategic enforcer of the law. Clearly, we also value its “A” status and want it to retain it. We are committed to strengthening its accountability to Parliament and, in responding to this debate, I hope I can demonstrate what progress we are making.
I start with the appointments. As already acknowledged by the noble Baroness, Lady Prosser, and others who have contributed to the debate, the appointment of the new chair of the commission, the noble Baroness, Lady O’Neill, was for the first time subject to pre-appointment scrutiny by the Joint Committee on Human Rights. That is a move that the Government welcome. In January, we appointed six new commissioners and, with the appointment of the new chair, we believe that the new board marks the start of a new era for the commission steering it in a new strategic direction. We want to see the commission go from strength to strength. We are open to discussing with the Joint Committee on Human Rights how it can be involved in future appointments.
Since the debate in Committee, the Joint Committee on Human Rights has been in touch with my honourable friend the Minister for Women and Equalities, Helen Grant, who is the Minister responsible for the commission. The JCHR has set out its plans to work with the commission to strengthen the commission’s accountability to, and co-operation with, Parliament and, in particular, with the JCHR itself. I am aware that the JCHR seeks to work with the EHRC to develop a protocol of collaborative working strategies to improve accountability. I certainly echo the sentiment expressed in my honourable friend Helen Grant’s reply to the letter from the chair of the committee. We welcome the non-legislative approach taken by the JCHR, and following this exchange of correspondence, which was circulated to noble Lords before today’s debate, I understand that at the request of the chair of the Joint Committee on Human Rights a meeting will take place soon. To reiterate: there is ongoing dialogue between the commission and the JCHR to the effect that the noble Baroness, Lady Prosser, has argued for in her amendment.
I reassure the House that the commission’s annual report and accounts are already laid before Parliament, as well as its strategic plan and its reports on progress. With respect to the commission’s budget, since Committee, and as I referred to earlier today, we have published the outcome of the comprehensive budget review. This review, conducted in partnership with the commission, sets out the agreed level of funding adequate for the commission to fulfil its functions. As the noble Baroness, Lady O’Neill, said, the review agrees a budget that will allow the commission to,
“continue as an effective organisation in all our roles”.
Furthermore, as my noble friend Lord Lester mentioned in Committee, the commission’s founding legislation includes an obligation for Ministers to make sure that it receives reasonably sufficient funding to fulfil its functions. That will continue. As such, we do not believe that it is necessary for Parliament to set directly the commission’s budget.
The vast majority of public bodies are set up in a similar way to the Equality and Human Rights Commission, and that is because it is not practical as a general rule for Parliament to provide the level of day-to-day support often required. To agree a budget with an organisation requires quite a lot of ongoing detailed discussion to reach an agreed amount. That is not something which usually lends itself to the work of a Select Committee. My noble friend Lord Deben, who has a good deal of experience with this, made that argument during Committee. It is worth pointing out that, unlike most other such bodies, there is no power for Ministers to compel the commission to do anything, so in terms of the process by which it agrees its budget, it does not set a budget to ensure it fulfils something that it does not want to do.
Moving on to the framework document, officials are working with the commission to put in place a new, improved framework by the end of this month. While I cannot go into the detail as this work is ongoing, I can assure noble Lords that officials are working to ensure the commission’s independence is not compromised by the need for it to be accountable. The noble Baroness, Lady Prosser, and others referred to the ICC’s view of the commission’s accountability to Parliament. It is quite right that in 2010 the ICC, as part of its special review, suggested that it might be sensible for the Government to consider increasing the level of the commission’s accountability to Parliament. Our view is that this is being achieved through the steps we are taking, some of which I have just outlined. I should also make clear that the commission was accredited as an “A”-rated institution without any change in its reporting arrangements. My point is that its “A” status was conferred on it as it is currently constituted, so it already exists in the way that it is constructed. I am aware that the commission will be considered at the next meeting of the ICC’s sub-committee on accreditation in May. As I stated in Committee, we have a constructive dialogue with the chair of the ICC and this will continue.