Marriage (Same Sex Couples) Bill

Debate between Baroness Cumberlege and Baroness Williams of Crosby

Monday 8th July 2013 Lords Chamber

[Baroness Cumberlege]

My Lords, in Committee, I introduced an amendment that allowed civic registrars to exercise a right to conscientiously object to conducting same-sex marriages. Although there was some support for that amendment—in fact, there was quite a bit—I sensed there would be much more support for a transitional amendment that would protect only registrars in office now; they would be protected only once the Bill becomes law. These men and women are already in post and were, in effect, exempt when the law on civil partnerships was introduced in 2004. I am very grateful to the noble Lords who have put their names to this much narrower and more focused amendment, and to those who wished to put their names down. They were restricted by the fact that only four names are allowed.

We understand the nervousness about allowing future registrars to object conscientiously, but why not take those who are in office now? Without protection, those registrars will be faced with an impossible position: resign and face possible unemployment, given how difficult it is to find a job in today’s labour market; or stay and act against their conscience. The lack of protection is unfair and inconsistent with other areas of law, and it will unduly limit the freedom of thought, conscience and religion.

We need to be fair to all. We need to ensure that those who wish to can exercise a conscience clause and that those who want a same-sex marriage can marry. Nothing in the amendment would prevent couples of the same sex marrying. In the spirit of tolerance and respect, we have considered and dealt with almost every concern put to us in this House and the other place. The noble Baroness, Lady Thornton, asked whether a previous amendment would open the door to registrars conscientiously to object to other things, such as mixed-race marriages. That was never our intention, and this amendment makes it clear beyond doubt that registrars will be able to object conscientiously only to same-sex marriages. We have done so by making it absolutely clear in proposed new subsection (6) that the conscientious objection applies only to the solemnisation of marriages. That is reinforced by proposed new subsection (8), which states that the religious or other belief on which the conscientious objection must be sincerely held must concern only the marriage of same-sex couples. Any other conscientious objection to marriage will not be covered by our amendment, so it will not allow registrars to object to conducting marriages for any other reasons.

The noble Baroness, Lady Barker, seemed concerned about the scope of our previous amendment. She was under the impression that it would allow registrars conscientiously to object to more than the conducting of marriage. She was concerned that a registrar could, for example, sit in a register office at interview and refuse to assist any same-sex couple. Again, that is not what we intended. Therefore, our amendment has been revised to make it abundantly clear in proposed new subsection (6) that a registrar may conscientiously object only to conducting a same-sex marriage. Proposed new subsection (7) puts that beyond doubt by stating that any other activities will not be covered. Our amendment will not allow registrars to treat same-sex couples differently; it will merely allow them to refrain from solemnising their marriages.

I stress that our amendment is not unprecedented; it is nothing new. My noble friend, replying to the debate in Committee, attempted to draw a distinction between our conscience clause and others found in English law. I drew the attention of the House to numerous other cases, such as a doctor’s right to refuse to give contraceptive advice, a person’s right not to participate in work involving the treatment and development of human embryos, and the right of a Sikh not to wear a motor cycle helmet or a safety helmet.

Although the protection for teachers is not explicitly framed as a conscience clause, such as in our amendment, it operates like one nevertheless, because it also allows atheist teachers to refuse to conduct religious education without suffering any detriment. That operates at voluntary-aided faith schools and, interestingly, at non-faith schools. I am not saying that the registrar scenario is like that of a doctor not giving contraceptive advice or a teacher refusing to teach religious education.

Those conscience clauses and others—of which there are many—are all different, and they all allow a person to refrain from undertaking different activities. The difference did not prevent conscience clauses in those cases, so why does it in this case? What makes registrars so different as to warrant their forcible registration? Is the belief about marriage not as valuable as a belief about contraception? Is the belief about marriage not as worthy of protection as a teacher’s conscientious objection to teaching religious education? It is not, with the greatest respect, an answer to say that they perform a civil or a public function because doctors, medical professionals, teachers and so on, all of whom have the right to object conscientiously to some activities, also perform public functions for civil society. Not only is it therefore not fair to force all registrars currently in employment to conduct same-sex marriages if they conscientiously object to them, it is also unnecessary.

I am grateful to my noble friend for copying to noble Lords a letter from the chairman of the national panel for registration, but it takes us no further. Jacquie Bugeja, with whom I had a very interesting and long conversation, does not tell us in her letter, when referring to three consultation meetings, how many registrars attended each meeting. Only one or two registrars could have turned up, for all we know. Were the registrars who were not present asked for their opinion? For those who were, was there a general discussion or a confidential questionnaire? What was the format? In conversation, Jacquie could not tell me how many registrars were canvassed for their views. She said that it was left to local discretion within a local authority and that there was no follow-up by the panel.

We have not been able to find the minutes of the meeting of 2 June 2012. If there was no confidential questionnaire, registrars could have been reluctant to voice opinions. They could have risked disciplinary action being taken against them or being dismissed, as experienced by the unfortunate Miss Ladele. The second meeting was simply for 10 managers, whom we know are fearful that a conscience clause might cause them managerial inconvenience. Who attended the most recent regional meetings, held last month? Was it again just the managers, and how and where were those meetings held? What was the format and where are the minutes published for such an important issue?

The letter makes a series of unsupported statements, including that for the past 176 years registrars have been carrying out their duties and have never wanted a conscience clause. Of course they have not; they have never needed one. Local authorities up and down the country were able to accommodate their registrars’ conscientious objections. When an authority did not, it was taken to the European Court of Human Rights. The Joint Committee on Human Rights recognised the argument that registrars currently in office would not be free to hold to their beliefs if they were automatically designated as same-sex registrars. I welcome this conclusion and I urge noble Lords to support and accommodate the registrars currently in office. It is the right and the fair thing to do. In the spirit of tolerance and freedom of the individual, which is the hallmark of this House, let us together protect the registrars’ freedom of thought, conscience and religion. With this very modest but important amendment, we seek to do that. I beg to move.

[Baroness Williams of Crosby]

My Lords, I am a signatory to this amendment. I realise that the time is going by and I shall make my remarks in support of my noble friend Lady Cumberlege brief ones. Interestingly, there is a real dilemma here about both equality and liberty. Although the amendment is brief and limits itself to a modest request, it has considerably greater implications than may at first be realised.

A registrar is the first step towards a career in public life for a great many people. It is a job which they do for the community and one in which they reflect their community’s interests and concerns. It is a crucial step on the path towards the integration of different minorities, regardless of religion, language or earlier origin. It is therefore all the more important in communities where a large minority is present—let us say Muslims, or other religious groups—to make it possible for them to become registrars. To my regret, this amendment is limited quite deliberately to those already in office. I personally think that it would be better if it applied to anyone applying for this job, which, I repeat, in my view at least is the very first rung of a professional career in public life.

I shall take this one step further. There are some religions that, for deeply held principles, very strongly cannot accept the idea of single-sex marriage. That includes most of the Muslim faith and those who are supporters of Orthodox Jewry. It seems only right that registrars who hold those faiths, and who have done their job properly and intend to go on doing it well, should not be excluded from entry into that profession or, even worse, forced out of it when they have already been in it for several years and have performed satisfactorily. I can think of almost nothing crueller than to announce that after two or three years a registrar who has been behaving himself or herself in an upright and proper manner should be compelled to leave their job, often at a time when they have children and other responsibilities, because of this legislation. I cannot for the life of me believe that most people in this Chamber who believe in equality and human rights would want to see that happen.

Frankly, I do not understand why this relatively limited change could not be made easily to permit people to make this decision on conscientious grounds— for example, as my noble friend said, in cases of giving advice on contraception or taking part in abortion. This very limited right, linked to one particular thing, would allow their conscience to be exercised.

I have two important points to add on this. The numbers concerned would be relatively small. I have recently looked at the record following the passage of gay rights in Spain, and one is talking of a few score people every year. That means that any decent register office could easily, by dint of rotation or of acceptance, treat this rather in the way that they do, quite properly, in the case of a registrar or an assistant registrar who becomes pregnant, covering for them in their enforced absence. That happens to all of us virtually every day of the week in existing forms of employment. It happens to civil servants, lawyers, teachers and doctors, and there is no reason on earth why it could not happen to registrars.

I have to say to the Minister that I find this insistence on such people not being able to have a conscientious objection puzzling, given that we know in advance that certain religions will find this very hard to accept. On the kinds of grounds that my noble friend has already talked about, it would seem sensible to make this exception in such cases.

I believe that this is genuinely a conflict about equality and liberty. I personally believe very strongly that opening the doors of becoming a registrar to people of all races and religions of this country is an important tool in advancing the integration of our communities. I point particularly to those communities in the Pennines and other parts of the country where there may be a very substantial minority, or even sometimes a majority, of Muslim British citizens, and we should ensure that they, too, are treated in an absolutely equal way.

I strongly commend my noble friend’s amendment. I add one thing to what she said about attempting to discover the opinions of registrars. It is always a mistake to ask the opinions of managers about the views of the people they manage, unless you have a proper method of discovering what they are. Surely we know from the sad history of Mid Staffs that one of the things you should not do if you smell difficulties is to talk to the top management and assume that they truly reflect what the ordinary, everyday workforce thinks, because often they have a very strong in built desire to avoid any problems of managerial difficulty, which they always see as too big an obstacle. I strongly support my noble friend’s amendment.

Health and Social Care Bill

Debate between Baroness Cumberlege and Baroness Williams of Crosby

Wednesday 29th February 2012 Lords Chamber

[Baroness Williams of Crosby]

Let us hope so. I simply wanted to suggest that there is nothing about the status of illegal immigrants in this amendment. Of course I share the view, which is accepted, that people who need treatment—and later we will discuss the amendment on HIV—should have access to emergency care, for example. That has always been true. However, this amendment relates precisely to clinical commissioning groups and therefore attempts to set their responsibility in terms of normal residency in the United Kingdom—not nationality, but residency. That seems appropriate.

Amendment 94 tries to do its very best to ensure that this is an absolutely total requirement. Together, Amendments 75 and 94 relate responsibilities not just to the clinical commissioning groups but, crucially, to the national Commissioning Board itself. Ultimately, it will be for the national Commissioning Board to ensure that anybody who is “resident in England” will be covered by all the services available to a clinical commissioning group. The crucial point of principle is that we are not talking here, as we might in some other countries, about emergency care only as a last resort. We are talking about all the services that clinical commissioning groups provide, and we are indicating that that should cover all residents of England. So this is an important group of amendments.

I will not move on to talk about some of the other amendments in this group, which concern themselves with the structure of governing bodies or CCGs. I am sure that the noble Lord, Lord Hunt, or the noble Baroness, Lady Thornton, will address those issues. In some ways they are slightly different; it is rather surprising that they are in the same group, because they address very different issues.

Because time is always shorter than we need for discussions on the Bill, I will not say a great deal more about this. I think that the whole House will agree that it is right and appropriate that there should be an ultimate duty on the board to ensure that every clinical commissioning group makes available the services that it provides to those who are members of it for everyone who is resident in the area, and that the board ensures that that happens across the whole of the nation. I beg to move.

[Baroness Cumberlege]

My Lords, my two amendments have also been grouped with this one. In our debate on 13 December, I explained why I felt so strongly that the evidence from patients gained by the work of local healthwatch and HealthWatch England should inform local commissioning. I have since had two very helpful meetings with my noble friends Lord Howe and Lady Northover about local healthwatch and its role. I think that we are moving in the right direction, although there seem to be some outstanding concerns.

Among my serious concerns, and the reason why I brought this amendment back, is that I feel we are not making commissioning robust enough. The process must be founded on evidence. Local healthwatch offers independent local evidence gathered through the unique statutory function of enter and view. This is evidence straight from the experience of patients lying in wards or sitting in mental health units, as well as those who can fill in surveys. Surveys are useful but do not necessarily reflect the views of the most vulnerable, people who may not be able to fill them in due to frailty, language difficulties or other reasons.

The amendment also relates to the experience from HealthWatch England. If the local healthwatch has not done work on a particular provider but those in other areas have, that intelligence will be available to a CCG commissioner who is considering giving the contract to a new provider. It has been pointed out to me that Clause 182(6) already requires CCGs to have regard to those reports and recommendations, and that is very valuable. However, this means only that if local healthwatch produces relevant reports and recommendations, the CCG will have to have regard to them.

It could be that those reports and recommendations arrive at the wrong point in the commissioning cycle or do not arrive at all. Then the CCG will not have an opportunity to have due regard to them. They will be commissioning from providers without evidence from patients of their actual experience, which can come only from local healthwatch, with its responsibilities to enter and view. The amendment was laid to ensure that that could not happen. It was redrafted in response to my noble friend Lady Northover’s characterisation in Committee that if local healthwatch had an obligation to feed in such evidence, it would be too burdensome for a small organisation composed of volunteers. I am now suggesting that the responsibility should be with the CCG to take evidence from local healthwatch. It would be helpful if my noble friend could give assurances that CCGs will be guided to seek out from their local healthwatch evidence of the patient experience to inform their commissioning to the standard set out in new Clause 14Q.

We know that local healthwatch will have a seat on health and well-being boards, and that will ensure that the knowledge that local healthwatch has will influence commissioning. Again, I welcome the membership of a lay member. This will have an input into the strategic role of those boards, but how can it give them a say in commissioning when the health and well-being board does not actually commission health services? The board’s function is to explore opportunities to integrate services, and this is not the same as deciding whether the outcome of a good patient experience with provider A is better than with provider B. These decisions rest with the CCG under Clauses 140 to 145.

Health and Social Care Bill

Debate between Baroness Cumberlege and Baroness Williams of Crosby

Tuesday 22nd November 2011 Lords Chamber

[Baroness Williams of Crosby]

My Lords, it would be very helpful if the Minister could say something about the proposals with regard to the accounts and financial statements made by CCGs, which will obviously depend a great deal on the guidance from the board.

I am concerned that a number of clinical commissioning groups without any great knowledge of how to deal with audit and financial problems will emerge. You could quite quickly see a commissioning group getting into difficulties, not because it was not performing well but because it had very little awareness of requirements relating to information on its conduct in relation to assets and finances that was needed to establish its standing as a proper clinical commissioning group. I am concerned because there is already some evidence of clinical commissioning groups seeming rather unclear about the accounting standards that they have to live by. It is important that the board makes very clear indeed what its expectations are and that it involves, as the amendment would require, the National Audit Office, which will become—and in some ways is already—a fundamental arbiter on the quality and standards of accounting practices.

I hope that the Government will consider the amendment carefully and that the Minister will let us know what the Government’s intentions are with regard to setting out the standards that they expect from clinical commissioning groups and that the board should lay down. The Bill is currently uncommunicative on the subject.

The whole process of procuring the pharmaceutical and other products that a commissioning group will need is always problematic. It is crucial that what is required is clearly set out, and that there is an indication under which we can compare one clinical commissioning group with another.

[Baroness Cumberlege]

My Lords, I should like to probe the amendment a little further because I think that it has a lot of merit, especially when one considers the PFI arrangements that have so destroyed the financial situation within the NHS.

I should like to ask the noble Lord, Lord Warner, about the accountability of the body. As I understand it, it is to be independent. I presume that he means independent in its membership as well as the way in which it works. I wonder where that accountability lies, whether there is a relationship with the business plan of the Commissioning Board and how the noble Lord sees the body working. Will the panel run for years and years, or will it exist just to set the standards at the beginning? Perhaps we could have a fuller picture.

Health and Social Care Bill

Debate between Baroness Cumberlege and Baroness Williams of Crosby

Monday 14th November 2011 Lords Chamber

[Baroness Williams of Crosby]

I thank the noble Lord for his typically articulate and thoughtful response. The idea of clusters coming together in what one might call semi-regional groupings is a better way forward than bringing regional senates in as a way to resolve the problem that he rightly talks about of bodies being too small or too large.

[Baroness Cumberlege]

Can I also ask the noble Lord, Lord Hunt, about his amendment, in which he proposes setting up another very strong bureaucracy? It is a corporate body, known as a clinical senate; I presume, because it has a proper officer, that it will have a range of officials. It is suggested that it should revalidate doctors within the area, but I am wondering how that would work with the GMC and others. It will maintain a whole system of clinical governance within clinical commissioning groups and also authorise some of the clinical commissioning groups.

I can understand the noble Lord’s wish for some strategic leadership. I have been a regional chairman—and I have to say that our medical advisory groups were really excellent compared to those of south-east Thames. We had really good ones. But I am anxious about this matter. I sense that this is simply a probing amendment, because the membership of what the noble Lord proposes would be extremely bureaucratic. I understood that these were advisory boards, and that it was to try to get some of the clinical input from the acute centre into the commissioning groups so that they understood perhaps more clearly what they were commissioning in terms of acute services.

I very much look forward to what my noble friend is going to tell us as to how he sees this issue. But I must say to the most right reverend Primate—I think I have got that right—that if he can manage the Anglican Church he really could manage the National Health Service.

Health and Social Care Bill

Debate between Baroness Cumberlege and Baroness Williams of Crosby

Wednesday 9th November 2011 Lords Chamber

[Baroness Williams of Crosby]

My Lords, if the noble Baroness, Lady Cumberlege, will allow a moment’s interruption to her speech, I promise to give way. It is very important to state that a number of us who have tabled amendments to this clause, including those of us who have expressed a desire for it to be omitted, did indeed inquire whether it might not be wise to try to discover more about the precise meaning of the clause. There are some arguments among lawyers about its effect and about whether it should be taken together with Clauses 1 and 10, to which it is clearly very intimately related—a point raised by the noble Baroness, Lady Jay, in her role as chairman of the Constitution Committee. Therefore, we must stand accused of having asked the noble Earl, Lord Howe, whether he would be willing to consider taking this group together, not forgetting the long debate that we had on Clause 1, in order to find out whether there is common ground about their precise meaning, their weight and their relationship with one another. The matter will then of course come back to the Committee for wider consideration.

I hope that the Committee will recognise that, with such a difficult balance of legal opinion, it may be sensible to discuss the issue further before bringing it back to the Chamber for the continuation of the Committee stage. In fact, what I thought the noble Lord, Lord Warner, was most eloquently asking for was that the clause be taken away for reconsideration. He went on to say that that might be a good way to deal with the matter. We are in total accord with the view of the noble Lord, Lord Warner, and I therefore ask him to allow us to continue with that reconsideration.

[Baroness Cumberlege]

I am very grateful to the noble Baroness, Lady Williams, who has put the matter eloquently and correctly. I am very much in favour of my noble friend’s wish to try to get some negotiation. As the noble Baroness said, many of us feel that that is the way forward.

This is a difficult issue. It is trying to get the balance right between, on the one hand, the accountability and responsibilities of the Secretary of State, and, on the other, the freedom of those managing the service to do so without interference. Many of us are trying to achieve that balance.

I should like to refer to the letter that the noble Lord, Lord Warner, mentioned because I want to get it into Hansard. My noble friend urges us to consider three key factors in his letter and I quote the second one. He said that,

“we fulfil the policy intention that the Secretary of State should not be involved in the day to day operations of the NHS. Ministers should set the overall strategy, hold national arms-length bodies rigorously to account for their performance, and have the requisite power to intervene if the system is not operating effectively”.

Those are my views entirely.

I am now going to say something that I know is extremely unpopular in the Palace of Westminster: politicians are really neither loved nor trusted by the public to a great extent and I have to say also that they are seldom admired by those working in the NHS. There have been too many decisions that have been taken without any evidence to support them, resulting in very long delays in things such as reconfigurations. Those delays have jeopardised patient care. Reversals have been made at the last minute, ignoring well founded clinical advice from clinicians saying to us that the service is unsafe, yet the position of an inadequate, unsafe hospital or service continues because of political interference. That undermines the confidence of managers to manage.

I want to mention Kevin Barron, who is the Labour MP for Rother Valley—