Children’s Wellbeing and Schools Bill

Baroness Berridge Excerpts

Tuesday 16th September 2025 Lords Chamber

This amendment would be innovative and evidence-driven, with broad drivers of well-being such as physical activity, nutrition and access to arts and culture. These are all important components for building resilience and purpose, and this proposal ensures that data is shared meaningfully with schools and public bodies, leading to action and not analysis. If we want healthier and happier children, we need this national framework, and this amendment would deliver it, so I hope we can make some progress on driving this initiative forward today.

[Baroness Berridge (Con)]

My Lords, I will speak to Amendment 502YG and pass on the apologies of the noble Baroness, Lady Morgan of Cotes, who has had to go but had agreed to introduce the amendment on behalf of the noble and learned Baroness, Lady Prentis, who cannot take part on the Bill. In summary, the amendment is to improve allergy safety in schools, but it marks the culmination of a long campaign in conjunction with the inspirational Helen Blythe, following the tragic death of her son Benedict in 2021, when he was only five. An inquest last month concluded that Benedict’s death was avoidable and caused by the accidental ingestion of cows’ milk after his school failed to follow the processes and procedures in place to protect him.

As the noble Baroness, Lady Ramsey, outlined, almost 20% of all allergic reactions take place in schools and, sadly, we now know that not only do they not necessarily have the EpiPens but they do not necessarily have a plan or training in place. Only putting these protective measures on a statutory footing will ensure that adequate protections are there for the two children in every classroom with allergies. Helen has worked tirelessly to establish the safety measures necessary to ensure that no child is ever lost again in such a tragic and avoidable way. I also pay tribute to the work of Alicia Kearns in the other place, MP for Rutland and Stamford, with which I am connected. Helen Blythe is her constituent.

The current government guidelines do not even mention allergies. There is only one line on food and one link to an anaphylaxis charity. The key aim is of course spare EpiPens, trained staff and a proper policy. The Government would prefer any change to be by way of guidance, but that just does not give the guarantees necessary—hence tonight’s amendment.

Between 1998 and 2018, 66 children died from allergic reactions. There are 680,000 pupils in England’s schools who have allergies—that is one or two per classroom, according to the Benedict Blythe Foundation’s REACT report of March 2024. At a time when the Department for Education is rightly focused on the attendance crisis, children miss half a million days of education due to allergy each year. These adrenaline auto-injections are life-savers, and the Benedict Blythe Foundation estimates that it would cost only £5 million for the rollout in English schools, plus the training. I remember a similar campaign to put defibrillators into every school; that was done, so why not put these EpiPens, and proper training and policy, in place? I welcome the department’s engagement, but the time for action is now.

[Lord Meston (CB)]

My Lords, I want to underline, in respect of Amendment 462, the importance of the point made by the noble Baroness, Lady Tyler, about reducing the pressures on CAMHS. The family courts are being frustrated, as I know from recent experience, and impeded in reaching necessary long-term decisions about the future for children. They are told, week by week, that they are waiting for an appointment with CAMHS and then that they are waiting for an assessment report from CAMHS—and then that they are waiting for the recommended treatment to take place. If Amendment 462 serves to help with those tasks, children, their parents and the courts will benefit. The courts are being criticised for the delays in reaching decisions, and certainly the problems with CAMHS contribute to those delays.

Children’s Wellbeing and Schools Bill

Baroness Berridge Excerpts

Wednesday 10th September 2025 Lords Chamber

[Baroness Morgan of Cotes (Non-Afl)]

My Lords, before we were so rudely interrupted for lunch, I was going to speak to Amendments 430 and 436 in this group. Amendment 436 is the substantive amendment relating to the Independent Schools Inspectorate and Amendment 430 is the consequential amendment. Before I begin, I thank the noble Baronesses, Lady Berridge and Lady Spielman, for their support for these amendments.

The amendments are very much probing amendments to test the department’s thinking on the work and performance of the Independent Schools Inspectorate. The ISI is accountable to the Department for Education. If anybody—a parent, a pupil or school—were to have a complaint about the work of the ISI, they would, having exhausted other mechanisms, be able to go to the Department for Education and ask it to look into the way that an inspection has taken place, and potentially, I suppose, seek some findings or ask any other questions that they might have about the work of the Independent Schools Inspectorate.

I would be grateful to hear from the Minister, if she is able, in summing up or perhaps by writing to me, how confident the Department for Education is in the work and performance of the Independent Schools Inspectorate, and how involved the Department for Education gets on an annual basis, particularly in relation to complaints about the ISI. I would be interested to know how many complaints are made and how the department handles them.

School inspection, as we are going to debate in this group and the next, is extremely important and often very contentious. I am grateful, as I say, for the support of both noble Baronesses, but particularly that of the noble Baroness, Lady Spielman. As a former Ofsted chief inspector, she has experience unequalled by many in this Chamber in relation to school inspection. We have to look only at the headlines generated this week by the Government’s proposed new Ofsted handbook to see how strongly everybody involved in education feels about school inspection.

Accountability is essential for parents, to know how their children’s school and education setting is doing, for pupils and for the schools themselves. School accountability is absolutely critical—I say this having been in the Department for Education, and former Ministers such as the noble Baroness, Lady Berridge, may agree with me—for Ministers and for officials in the department. If there is an issue—particularly in relation to safeguarding or the way a school is being run—the answer, correctly, is to send in Ofsted, in the case of maintained schools or academies, to check what is going on. The department and Ministers will then accept the reports that they are given. The strength of our accountability mechanism is a reason why we have such good schools in England.

For me, the particular focus, and the reason I wanted to table this amendment, is that I am interested in the ISI’s inspection in relation to the role of governors and the quality of governance of our schools, which is of critical importance. Governance is not necessarily the same as leadership and management, and yet those phrases are often run together throughout standards and the relevant handbooks.

Had I had to rush my speech, I would not have referred to this, but given that we had a break for lunch, I will. I have checked the two frameworks and the handbooks. The Independent Schools Inspectorate handbook talks about inspectors covering a range of sources of evidence, including evidence of how those with governance responsibility assure themselves that leaders and managers are fulfilling their responsibility to ensure that standards are met. In November 2025, the proposed Ofsted handbook, which will come into force in two months’ time—I appreciate there is much debate around that—talked about a number of relevant factors. There are many, but I want to draw noble Lords’ attention to leaders and those responsible for governance understanding their respective roles and their performance in these roles in a way that enhances the school’s effectiveness. The point is that the Ofsted framework is tougher and stronger, and rightly so. It is not just asking governors and those charged with governance to look at how leaders and managers are doing—in this case we are probably talking about heads or those with senior management roles; it is asking the governors to reflect on their own performance. That is essential.

When I looked at the groupings, I thought perhaps I should ask for this amendment to be put into the next group, but, frankly, I think we have more than enough degrouping. We are about to talk in the next group about the inspection of multi-academy trusts. That is right and I will speak in support; it is probably something that many people have been calling for. The point about inspection of governance—it does not matter whether we are talking about schools, businesses or other organisations—is that, when you are inspecting something, you have to second-guess and work out who is calling the shots. In many cases, we are finding that, above the schools, there will be some kind of other body. In the case of the ISI inspection that I encountered, there was a foundation sitting above the four schools, one of which the foundation has since decided to close.

In the end, the inspectors decided to look at the performance of the individual school governing body and not the foundation governing body. It was the foundation governing body that was calling the shots and that had, I believe, overseen a woeful appointments process for one of the new head teachers. Personal experience is not necessarily the best thing to talk about in Committee when we are looking at amendments, but I could not miss this opportunity to probe the department’s thinking on this.

As I said, I believe that Ofsted does a better job, and the new framework is stronger. I would be very interested to know, in her summing up on this group, what the Minister and her department think about this. Is there any appetite for the Independent Schools Inspectorate to be brought under or for Ofsted to take on its responsibilities, so that all our young people in all our schools in this country are inspected, and that their education and the way they are governed and led are inspected to the same standard? Parents have the right to expect the same standards in all schools. If the Minister is unable to answer all my questions today, I would be very grateful if she or a colleague would be prepared to meet me.

[Baroness Berridge (Con)]

My Lords, I will speak to Amendments 430 and 436, to which I have added my name. I am grateful to my noble friend Lady Morgan for raising this issue at Second Reading, as I have been concerned about the ISI—previously the SIS—and former inspectorates of independent schools.

There are a number of queries about function, which I will probably theme as “visibility” and “responsibility” —in particular, building on what my noble friend Lady Morgan said, visibility for the Department for Education. While there is accountability, for the department itself there is a question about regulatory function. By that, I mean: do independent schools comply with the independent schools standards? The evidence on which the department is relying to perform its regulatory role, and then its potential enforcement action, in relation to schools is dependent on the information usually obtained through the ISI, which I believe my noble friend Lady Spielman will more ably outline as something that is more akin to a peer review system than to what we know through Ofsted.

With the independent sector, there is less visibility. State schools and numerically half of the independent sector—I would say the trickier half that are not in the association—sit with Ofsted. Therefore, the visibility at the centre in England is Ofsted, directors of children’s services, local authorities because of maintained schools and the DfE itself. Because of the academy system, there is an excellent team of regional school staff who know what is happening on the ground in their area. They are usually incredibly well informed; they are in close contact with the local authority, particularly on safeguarding; and they often liaise with the regional Ofsted teams. They really have a feel. As you sit there at the centre, you know you have an arm reaching out across England.

They know whether a school is struggling, particularly a secondary school. They know, “Oh, this one’s doing really well. This one’s probably going to get into good” —they just have that feel. You sit at the centre and think about the independent sector. As my noble friend Lady Morgan outlined, parents can call in. but you do not sit there with the same confidence, particularly with regard to safeguarding. We have had all kinds of serious historic problems—which I hope are a matter of the past—in both the state and independent sectors. So you have much less knowledge of and feel for what is happening and you are there as the regulator for independent schools, in a slightly different way from the state sector.

Therefore, there is more risk to having a Minister as the regulator, particularly because there is that lack of knowledge. I will give an example of where Ofsted has been really good over the past few years: in highlighting the issue of off-rolling. What applicability can that have to the independent sector? Let me give noble Lords some form of a situation. Consider a troublesome child in an independent school who has maybe been a bit violent. You call the parents in, you have the discussion and, because nobody wants to prejudice the child’s education or the reputation of the school, the child just disappears. However, they pop up again at another independent school, and the same thing happens.

I have read enough ISI inspections to know that it is unlike Ofsted, which can look at the data: “Where are the children? Where have they gone to? They have popped up at AP. They’ll be somewhere else in the system”. I accept that the unique reference number may help, but have we really got the rigour within the ISI system to spot a child like this, who probably needs much more significant intervention before they get to their teenage years, whose propensity not just for behaviour but maybe for serious behavioural issues has not been caught? How do you check, as DfE, whether what I have outlined is in fact the case—really, with an ISI peer review system?

Also, there is the fact that ISI is funded from within the schools it inspects, but says it maintains its independence from the ISC. It may be formally independent, but is it relationally independent? This is a network of individuals. It is a means to train as a head teacher of an association school or to become associate inspector. Does DfE have any role in the appointment of board members of ISI, whose inspections they rely on as regulator? It seems odd if it does not. Entry to ISI for a new school has usually been on the basis of a good Ofsted inspection, but, with the new Ofsted framework, do you need to be expected strong or of an expected standard to be eligible to join ISI? Who is going to determine that? DfE? ISI? ISC? It just seems unusual to have this system of entry that is not really managed by the department.

Sadly, I think that this is a failed market, and it is now a monopoly. It is a historical accident—I do not think there is malevolence in it—but we would not allow BUPA or private hospitals to operate like this; they are all inspected by CQC. Is it the case that, as the smaller inspectorate of this market that failed did not work, they were put straight into ISI without any of that entry criteria of going via Ofsted for a good inspection? I honestly do not know, because there is not the visibility.

So, whether or not ISI is transferred to Ofsted, as the amendment suggests, I think there needs to be greater quality control of the inspections by ISI, and those entrance criteria, and some sort of calibration of ISI inspections, particularly in relation to safeguarding. The harm done to children by failures of safeguarding is no respecter of social class, so ensuring the visibility of the rigour or otherwise of ISI inspections in this regard is vital. I have wondered and still wonder whether children in the independent system could, ironically, be more vulnerable due to this historical accident of an inspectorate ISI.

[Lord Black of Brentwood (Con)]

My Lords, I shall speak to Amendments 429 and 433 in the name of my noble friend Lord Lexden, to which I have added my own. It is a pleasure to see my noble friend back in his place. In Bills such as this, his authoritative and powerful voice on issues related to independent education is extremely important, and we should heed his advice. I declare my interest as chairman of governors at Brentwood School, and honorary president of the Boarding Schools’ Association and Institute of Boarding.

As my noble friend said, these two straightforward amendments do not in any way strike at the integrity of the Bill or seek to undermine what it is setting out to achieve. They are simply practical amendments designed to ensure that, as far as independent schools, which are a vital part of the education sector, are concerned, the legislation works as effectively as possible. As it stands, under the Bill the Secretary of State has the power unilaterally to require independent schools to have regard to guidance issued by the department. This is not an onerous requirement and, like my noble friend Lord Lexden, I have no problem with the principle. Indeed, I see much merit in it. Where I have a problem, and this is at the heart of the amendment, is the tendency of guidance, over time, to acquire statutory force, particularly if the courts become involved at any point. It is therefore vital that any guidance issued has proper scrutiny and that those affected have a chance to make their views known through Parliament.

As a veteran of years of legislation impacting on the media, I know only too well that seemingly innocuous guidance can sometimes have the most profound unintended consequences, especially where regulatory creep sets in. Without being unduly bureaucratic or slowing the process down in any way, this straightforward amendment simply seeks to ensure that in three key areas of vital operational independence for schools in the sector—curriculum, admissions and examinations—there will be proper scrutiny of any guidance to ensure that it is practical, does not add unnecessary burdens on schools or encroach on their independence, and above all is future-proofed. That is what noble Lords are here to do—to scrutinise—and this amendment ensures we have a chance to do it properly.

Again, Amendment 433 is about practicalities. As I know from my own experience, it is not uncommon for people joining a school or moving into specialist provision for the first time, with one diagnosis requiring special support, rapidly to be diagnosed with another underlying condition, identified by experts at the school. As it stands, this Bill will make it well-nigh impossible for schools properly and effectively to deal with that without either placing themselves in legal jeopardy or, worse still, having to remove the child from the school until the material change process is completed in order to comply with these regulations. That cannot be what we want for children in a highly vulnerable position, and it is causing great concern among independent special school experts.

Children’s Wellbeing and Schools Bill

Baroness Berridge Excerpts

Wednesday 10th September 2025 Lords Chamber

[Baroness Hoey (Non-Afl)]

I strongly support Amendment 427C and pay tribute to the noble Lord, Lord Glasman, and the right reverend Prelate the Bishop of Manchester, who made the two opening speeches. All the speeches today have shone a light on what many people in the country are not aware of.

I was a councillor in Hackney many years ago and I knew this community. What was most interesting to me in the speech of the noble Lord, Lord Glasman, was that he was able to explain how much effort has gone into improving the whole question of safeguarding. That must be something that we are all concerned about in any school.

For me, this is very clearly about the fact that the yeshivas are not schools. They are no more a school than the Sunday school that I went to for many years as a youngster. That was nothing to do with the church—it was a separate Sunday school, set up by some very nice people in the countryside, and I went every Sunday afternoon for many years. It was not a school in the sense of education; it was about religion and understanding the history of Christianity and all those kinds of things. I can see exactly what the yeshivas are doing.

We might think that Governments cannot possibly be misled, but it seems that, under Clause 35 of the Bill, yeshivas will be regulated as if they are schools. That is wrong. We have heard about what goes on there. We know that it is a place for young men to engage with their heritage and build their spiritual and ethical character. The noble Baroness, Lady Morris, mentioned some of the young men she had spoken to who were unhappy about what is happening. I am sure that if we went around many of our schools and spoke to young men about what was going on in their school, we would always find somebody who has a real problem, but that does not mean that there is anything wrong with what is happening overall.

It seems to me—maybe the Minister can tell me I am wrong—that there has been very little engagement prior to the drafting of the Bill with the community about the central role that the yeshivas play in the communities. Was there any real discussion? It seems to me, having listened to what people are saying, that we have underlying support for safeguarding. Surely, if the department had spent time talking to the community to know what was going on in those schools, and talking to the local authority, this could have been solved without such an amendment and without having to go through this whole debate. It could have been solved by a bit of common sense and good will, with people sitting around a table.

I hope that that might still happen, and we can find a sensible and practical solution that would allow the yeshiva schools to stay open. I am calling them schools but I am not implying that they are schools; as I said earlier, they are not schools in the sense that we all know what a school is. We could then address remaining concerns about safeguarding and the links between home education and yeshivas. We must try to settle this; otherwise, we will see them all closing and we will be left with a much more difficult situation to handle.

Recognising just how many people feel strongly about this, I urge the Minister to look at this again and come back on Report with wording that may be slightly different and more satisfactory to the department. This really needs to be looked at.

[Baroness Berridge (Con)]

My Lords, I had not anticipated speaking until the next group. I declare an interest as a senior research fellow at Regent’s Park College, Oxford, which is researching freedom of religion or belief in the UK. A number of Peers have entered into talking about this human right without, I think, fully appreciating its impact.

In relation to the “institution”, as it is referred to in the amendment, if this amendment were accepted, can the Minister outline where it would sit with the other out-of-school settings work that is going on, because I think it would sit as an out-of-school setting? I do not think that they are charities, otherwise they would already have safeguarding responsibilities. Could there, in some respects, be good unintended consequences of the amendment, in that we take an out-of-school setting and bring it into the safeguarding world, with DBS checks, et cetera?

Freedom of religion or belief is not an absolute right. It is sometimes put into a debate as if it cannot be curtailed. It is important to remember that the children to whom we have been referring also have the right to freedom of religion or belief. Parents have the right to bring up their children in the faith that they wish them to have, but that does not mean an immersive experience that does not allow a child to exercise their right to know, through a broad and balanced curriculum, about the world and nation that they are growing up in and about other faiths and humanist and other belief systems. This is a very difficult world—not just in the Jewish context but in the context of Christianity, other faiths and some atheistic traditions—in which to try to shield a child from knowledge so that they never choose a different type of Jewishness or a different religion for themselves.

I hope that, whatever situation we end up in with regard to these schools, we bear in mind that these children have freedom of religion or belief and should have an education that enables them to exercise that right fully. I hope that that will be part of the considerations and the engagement with the community, as we come to a position on these institutions. It is accepted in the amendment that they are institutions of some category, not some kind of faith space.

[Lord Storey (LD)]

My Lords, I was head of a Church of England primary school and my daughter went to a Jewish school. I am conscious that, in my home city of Liverpool, one-third of the schools are faith schools. I want to reflect on what various noble Lords have said, and I want to speak very carefully because I am still considering everything that has been said. I have found it, at times, quite challenging.

Let me deal with an issue that I do not find challenging, which is my Amendment 451. Children who are suspended from school are the responsibility of the school, while pupils who are permanently excluded from school are the responsibility of the local authority. Secondary schools that have pupil referral units, called PRUs, are often able to put suspended students into the referral unit. I have visited many of them and been astounded and impressed by how they have supported students. Instances of expulsion—permanent exclusions, as we now say—are very limited.

Let us remember that young people who are permanently excluded from school often have severe behavioural issues, which perhaps could have been picked up when they were younger and perhaps could have been supported in a different way. Many of them have severe behavioural problems.

Many—quite a high percentage, I think, and certainly over 80%—have special needs. They are the very young people who should not be excluded from school; they should be in school but, clearly, schools have a right to teach, and pupils have a right to learn. When they are excluded from school, local authorities may put them into what we call alternative provision. There are two types of alternative provision. There is alternative provision that is registered, which means that it is inspected from time to time by Ofsted. I have visited two alternative providers and been incredibly impressed by what I have seen. Many local authorities choose to put permanently excluded pupils not into a registered provider but into an unregistered one. Why? Because it is much, much cheaper. That is no way to treat a young person, no way at all.

Some of those unregistered providers do not keep a register. The young person comes and goes. There are no proper qualifications among the so-called teaching staff, et cetera, et cetera. As I have mentioned in debates in this Chamber, that is not to say that some unregistered providers are not very good, but it is still no way to treat a young person. This amendment is very simple. All it says is that any alternative provider—those schools or units, because when we talk about a school, we are probably talking about a school of 20 pupils—should be registered. We should know that there are qualified staff, qualified support and quality learning for those pupils. We should know that all the things we expect take place and that there will be, from time to time, Ofsted reports on those schools. I have looked at many of those Ofsted reports and been incredibly impressed by the work those alternative providers do. That is the simple request: that we should not allow the most vulnerable children and young people in our society to be treated in this way. They have the right to go to a proper institution—a proper school.

I now come to the other amendments. I agree with the noble Baroness, Lady Morris—it used to be “I agree with Nick.” I am sorry, I am not comparing the noble Baroness with Nick Clegg. I want children—young people—to have an education, whether in a school or, in some cases, at home, which is broad and balanced, which equips them for life, which they enjoy and which brings out their best qualities. I hope that the noble Baroness, Lady Berridge, does not mind me mentioning this, but I remember that several years ago, she came to me in a discussion about a particular faith school—a Christian school, actually—where the pupils were treated in quite a challenging way. One boy, for example, happened to tell the school that he was gay, so he was pushed into a cupboard and locked in there until he came out and announced that he was not gay. I am not going to mention the school, but I think it employed its own inspection regimes. Because it was in charge of its own inspection regimes, that company—

[Baroness Berridge (Con)]

I am not sure that the noble Lord is remembering the situation accurately, so it would be best in future to consult before referring to something that I think was many years ago. I say that with no disrespect to the noble Lord’s comments.

Women’s State Pension Age: PHSO Report

Baroness Berridge Excerpts

Monday 28th October 2024 Lords Chamber

[Baroness Sherlock (Lab)]

My Lords, I am grateful to my noble friend for raising that last point. To be absolutely clear, because there has been no response to the report, there is no compensation scheme. Anyone claiming to offer it is scamming and nobody should touch it—please can that message go out loud and clear. I understand my noble friend’s general point, and I know he will understand the position that this Government are in. At the risk of boring myself, never mind the House, all I can do is repeat that the Government are looking very closely at the findings of the ombudsman and will respond as soon as is practicable.

[Baroness Berridge (Con)]

My Lords, the Minister has outlined that she cannot currently give a date, but is she certain that this group of women is clearly defined in the department? There are representative groups, but when a decision is made, does the DWP know exactly whom they need to communicate with?

[Baroness Sherlock (Lab)]

My Lords, just to be clear, I am not making any assumptions about anything. In a sense, this is about when people were born. For example, we know that around 3.5 million 1950s-born women were impacted by state pension changes, as were a group of men. Most of those people have now reached state pension age, but I think there are 790,000 people born in the 1950s who have not yet reached that age. I am not saying that anything in this area is straightforward—it is not—but I understand the noble Baroness’s warning that any attempt to communicate with groups of people will need to be done carefully and with precision.

Child Support Collection (Domestic Abuse) Bill

Baroness Berridge Excerpts

2nd reading
Friday 21st April 2023 Lords Chamber

[Baroness Berridge (Con)]

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

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

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

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

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

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

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

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

--- Later in debate ---

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Baroness Berridge (Con)]

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

[Viscount Younger of Leckie (Con)]

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

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

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

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

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

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

Universal Credit: Benefit Cap and Two Child Limit

Baroness Berridge Excerpts

Tuesday 24th January 2023 Lords Chamber

[Viscount Younger of Leckie (Con)]

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

[Baroness Berridge (Con)]

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

[Viscount Younger of Leckie (Con)]

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

Syria

Baroness Berridge Excerpts

Wednesday 30th October 2013 Lords Chamber

[Baroness Berridge (Con)]

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

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

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

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

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

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

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

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

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

Marriage (Same Sex Couples) Bill

Baroness Berridge Excerpts

Wednesday 10th July 2013 Lords Chamber

[Lord Dear]

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

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

[Baroness Berridge]

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

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

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

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

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

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

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

[Baroness Kennedy of The Shaws]

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

Marriage (Same Sex Couples) Bill

Baroness Berridge Excerpts

Monday 8th July 2013 Lords Chamber

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

[Baroness Berridge]

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

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

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

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

[Baroness O’Loan]

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

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

My amendment uses the words,

“the imposition of any criminal or civil penalty”.

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

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

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

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[Baroness Berridge]

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

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

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

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

[Baroness Thornton]

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

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

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

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

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

Marriage (Same Sex Couples) Bill

Baroness Berridge Excerpts

Wednesday 19th June 2013 Lords Chamber

[Lord Lester of Herne Hill]

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

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

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

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

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

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

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

[Baroness Berridge]

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

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

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

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

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

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

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

“as to whether religious organisations”—

or people—

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

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

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

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

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

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

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

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

[Baroness Knight of Collingtree]

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

[Baroness Berridge]

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[Lord Alli]

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

[Baroness Berridge]

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

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

[Lord Alli]

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

[Baroness Berridge]

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

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

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

[Lord Deben]

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

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

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

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

--- Later in debate ---

[Lord Alli]

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

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

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

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

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

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

[Baroness Berridge]

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

[Lord Pannick]

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

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

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

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

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

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