Marriage (Same Sex Couples) Bill

Baroness O'Loan Excerpts

Wednesday 10th July 2013 Lords Chamber

[Baroness Thornton]

My Lords, you have to hand it to the people who do not like this Bill. They really do not like this Bill and they are fighting it right to the very end, and that is what this is about. They are perfectly within their rights to do that, and I particularly enjoyed the heartfelt plea of the noble Lord, Lord Waddington, in this debate.

I am not going to repeat all the arguments that have been made. I simply refer your Lordships to the noble Lords, Lord Fowler, Lord Pannick and Lord Norton, my noble friend Lord Alli and my other noble friends who have spoken in this debate. They are absolutely right.

I say to the noble Lord, Lord Martin, that actually the votes were free votes. This was not a question of the Government and the Labour Opposition. They were free votes. There were Members on all sides—

[Baroness O'Loan]

I would just like to ask the noble Baroness whether the Labour Party votes on Monday were all free votes. There was an understanding that some of them were whipped.

[Baroness Thornton]

The noble Baroness knows very well the answer to that question. All the votes about the principle of this Bill were free votes in both Houses. We in the Labour Party made it completely clear that we would whip on two issues only, which were issues of public policy to do with teachers and registrars, and that is what we did. We have been completely clear, open and honest about what we were going to do.

As the noble Lord, Lord Fowler, said, the fundamental issue here and particularly in the Commons—the democratic House—is that all those MPs have to go back and face their constituents about this issue. They will have to face them every week about this issue. So they would not have voted on a free vote for this Bill had they not felt it was the right thing to do. That is exactly what they should do.

Frankly, the idea that noble Lords in this House are somehow pushovers or sheep to be led through the Division Lobbies is completely absurd, as this debate shows. If I might repeat what I said in Committee, this amendment is a nonsense and the House needs to reject it.

Marriage (Same Sex Couples) Bill

Baroness O'Loan Excerpts

Monday 8th July 2013 Lords Chamber

[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.

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[Lord Wallace of Tankerness]

My Lords, it is very dangerous to try to draft guidance on the hoof, as it were. I think that I have expressed, both today and in Committee stage, in response to the amendments tabled by the noble Baroness—and, indeed, in a very detailed letter that I sent to those who had taken part in a similar debate in Committee and which is in the Library—the points that the Government believe are important and which provide the necessary protections. As my noble friend, Lord Lester, said in Committee, there is always the possibility of someone acting in an idiotic way. What we seek to do with the guidance most fundamentally is to try to eliminate—or to reduce to an absolute minimum—the number of times that anyone would act in an idiotic way.

I have one further point. I think that the noble Baroness, Lady O’Loan, raised the issue of the judgment in the case of Hans-Christian Raabe. I will quote from the High Court decision of Mr Justice Stadlen in order to allay, again, concerns that the duty is being misused.

In paragraph 256 of the judgment, his Lordship said:

“As I have said, there is in my judgment nothing to suggest that if Dr Raabe had expressed his opposition to same sex marriage and set out any religious basis for that opposition, that would have been considered by the Defendant or Mr Brokenshire to be a reason for revoking his appointment. In fact he did not set out any religious basis for the views expressed in the 2005 Paper and there is no reason to suppose that the revocation of his appointment would inhibit or deter any person who opposes same sex marriage on religious grounds from publicly expressing such views for fear of being rejected for a similar appointment in the future. Mr de la Mare pointed out the most obviously offensive features of the Paper did not form part of any religious belief”.

Therefore, it is very clear from his Lordship’s judgment that the concern which has been expressed did not form any part of that decision. In those circumstances, I again commend the government amendments to the House and hope that the noble Baroness, Lady O’Loan, will not pursue her amendments.

[Baroness O'Loan]

My Lords, I want to say something about the nature of the debate on the Bill in the House today and on previous occasions, as it is has been very acrimonious.

[Baroness Stowell of Beeston]

I am sorry to interrupt the noble Baroness. We are discussing government Amendment 9. Indeed, we have concluded our debate on it.

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Moved by

[Baroness O'Loan]

18: Clause 2, page 4, line 11, at end insert—
“( ) For the purposes of section 149 of the Equality Act 2010, no regard may be had by any public authority to the expression by a person of the opinion or belief that marriage is the union of one man with one woman.”

[Baroness O'Loan]

I thank the Minister and the noble Baroness for all that they have said and done and for their work in creating these comprehensive amendments. I will not move these amendments which do not seek to wreck the Bill or cause homophobia but are simply designed to reassure a huge range of churches beyond the established church in England and Wales. I hope that the Government will continue to keep your Lordships’ House informed about their work with the Equality and Human Rights Commission on guidance, as that is clearly vital. On that basis, Amendments 18, 19, 22 and 23 are not moved.

[The Deputy Speaker (Lord Skelmersdale)]

I am afraid that the rules do not allow me to do that. Is it your Lordships’ pleasure that Amendment 18 be withdrawn?

Marriage (Same Sex Couples) Bill

Baroness O'Loan Excerpts

Monday 24th June 2013 Lords Chamber

[Baroness Cumberlege]

My Lords, the reason is that without this amendment, the Bill changes those particular elements in those Acts. That is the advice that I have been given. I am very anxious that we ensure that these schools that have a religious designation are protected. I am not convinced that that is the case in the Bill as it stands, for the reasons that I have put before your Lordships.

I do not think that a Minister’s words in the House, however well meaning, stand the good test. They evaporate. We know that they are open to challenge, whereas amendments carried in the Bill, when it becomes an Act, are much less open to challenge. I urge my noble friend to have the welcomed assurances that she has given incorporated into the Bill.

[Baroness O'Loan]

My Lords, I support this amendment, to which I have put my name.

It has already been said that the purpose of this clause is very simple and narrow: to amend Section 403 of the Education Act in order to provide statutory protection for schools of religious character by creating an obligation that any guidance issued under the Act must provide for such schools to deliver education about marriage, its importance for family life and the bringing up of children, in accordance with the tenets of the relevant religion or religious denomination. The noble Lord, Lord Lester, asked why we could not just read the legislation in the context of the existing jurisprudence of the European court and be satisfied that everything was protected. The reality is that the jurisprudence of the European court in this context is quite complicated and there are a number of senior QCs who have provided advice to various organisations in connection with this legislation who do not share in totality the noble Lord’s views.

The reason that this amendment is necessary is that Section 403 imposes on schools a twofold duty. Pupils must,

“learn the nature of marriage”

and they must learn,

“its importance for family life and the bringing up of children”.

That is the law as it stands at the present time. Teachers in all schools must do what the law says. They must ensure that the children for whom they are responsible learn about the nature of marriage. That includes both the legal and the relational definition of marriage; that it is the union of one man and one woman for life to the exclusion of all others. In this situation, teachers will be teaching classes composed of children who, by virtue of circumstances, will sometimes have no experience of marriage or not of marriage in its traditional sense, but of other stable relationships or sometimes of relationships that are totally unstable. All those children must be sensitively provided for.

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[Baroness O'Loan]

It provides an accommodation of competing rights, no more, no less. I apologise to the noble Lord, Lord Phillips, but I was two words from the end.

[Lord Phillips of Sudbury]

I was anxious that the noble Baroness should not get to the end before I could ask this question. I am sorry if it is a bit technical, but it seems to be relevant. The wording of the amendment, with which I have sympathy, is that the guidance must be,

“in accordance with the tenets of the relevant religion or religious denomination”.

It not abundantly clear to me how one would determine what the tenets of a religion are. If the relevant religion were Christianity, different denominations of Christianity take a different view on these matters. Does the amendment in fact cover all the circumstances that the noble Baroness and her co-movers are concerned about? To make it clear, one can imagine some debate over quite what the tenets of Christianity are as time progresses. An extreme Christian sect might take a very untypical view. A Quaker school, for example, might be well ahead of the Christian pack. Does the noble Baroness think that the amendment covers that potential tension?

[Baroness O'Loan]

My Lords, I thank the noble Lord for the question. Having read the previous guidance, most recently this morning, I would not anticipate that the guidance would actually specify the tenets of the individual religion. What I would anticipate is that it would have the provision that education must be provided in accordance with the tenets and that there would be, as the right reverend Prelate has provided, a structure of registration and designation of schools, so that there would be a quality assurance process underlying it. If the amendment is not sufficiently concise, I am sure that it will be possible—unless it is pressed to a Division at this stage—to encourage the Minister to respond with a government amendment, which would provide precisely for what is required.

[Baroness Richardson of Calow]

My Lords—

[Lord Phillips of Sudbury]

If I might just elucidate, I said that it was not always clear what the tenets of the religion are, quite apart from the denomination.

[Baroness O'Loan]

The current guidance provides that schools are entitled to take their religious beliefs into account in providing sex and religious education, so there is a tradition for this and it may be taken forward from that perspective.

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[Lord Lester of Herne Hill]

My Lords, as I said before, the Human Rights Act 1998 expressly incorporates into our legal system freedom of conscience, religion and belief, and expression. It requires all legislation—old, new and future—to be read and given effect in accordance with those fundamental rights. When the Joint Committee on Human Rights, on which I serve, was presented with an opinion by Mr Aidan O’Neill QC, one of the scenarios that he suggested might occur in legislation of this kind involved teachers. He speculated that a primary schoolteacher is told to teach using a book about a prince who marries a man, and is asked to help the children to perform the story as a play; she says that it goes against her religious beliefs and disciplinary proceedings are taken against her. He said that this is an example of a problem.

The department in charge of the Bill gave an extremely helpful answer to that kind of speculative scenario. As the noble Baroness, Lady Knight, rightly said, our proceedings may be read in future so I will briefly explain what the department said, which in my view completely complies with the Human Rights Act and the European Convention on Human Rights. This is what the department told the committee:

“Teachers will continue to have the clear right to express their own beliefs, or that of their faith—such as that marriage should be between a man and a woman—as long as it is done in an appropriate way and a suitable context. No teacher will be required to promote or endorse views which go against their beliefs. Teachers will of course be expected to explain the world as it is, in a way which is appropriate to the age, stage and level of understanding of their pupils and within the context of the school’s curriculum, policies and ethos. This may include the factual position that under the law marriage can be between opposite sex couples and same sex couples. There are many areas within teaching, particularly within faith schools, where teachers and schools already deal with areas relating to religious conscience, such as homosexuality and divorce, with professionalism and sensitivity. The guidance governing these issues is the same guidance that will govern how same sex marriage in the classroom will be approached. No teacher can be compelled to promote or endorse views which go against their conscience. We expect heads, governors and teachers will come to sensible arrangements about any teaching that includes discussion of same sex marriage as they currently do in all other areas of the curriculum”.

To this I say, “Amen”.

[Baroness O'Loan]

My Lords, I wish to address a point made by the noble Lord, Lord Lester. In the debate in the House of Commons on 20 May, the Government committed to consider this issue further in the Lords. As a consequence of that, and of all the evidence that was received, the Joint Committee stated:

“In particular, we encourage the Government to consider whether specific protections are required for faith schools and for individual teachers who hold a religious belief about same sex marriage”.

I do not think the situation is quite as clear as might have been suggested.

[Lord Pannick]

My Lords, I, too, think that this amendment is unnecessary and inappropriate. The amendment is concerned with the guidance under Section 403 of the Education Act. That guidance is concerned solely with sex education. There are three consequences of this.

First, the reference to marriage and family life in Section 403, which has excited the concern in this amendment, is designed simply to ensure that when pupils learn about sexual relationships, they should learn about sex in the context of marriage, families and commitment; in other words, they should not learn about sex as a mere physical act. In my view, it would be most unfortunate that if and when pupils learn in sex education classes—as they do—about gay sex, such discussion is not also in the context of relationships, commitment and the developments that this Bill will introduce. That is the first point.

The second point is that Section 403, which deals with guidance, already states that when sex education is provided, children must be,

“protected from teaching and materials which are inappropriate having regard to the age and the religious and cultural background of the pupils concerned”—

and rightly so. So there is already considerable protection.

The third point is the point made by the noble Lord, Lord Lester of Herne Hill, with which I entirely agree. It is a point that we have returned to over and again in the debates in Committee, but it is nevertheless true: there is nothing in this Bill that allows—far less requires—a teacher to promote same-sex marriage, and even less so in the context that we are now discussing, Section 403 of the Education Act, which is concerned only with sex education.

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[Baroness Farrington of Ribbleton]

I accept that, but it is on the back of a general reference to teachers being afraid of coercion. The noble Baroness, Lady Knight, referred to teachers writing to her because they are afraid. I do not accuse the noble Lord, Lord Cormack, but I think I can rest my case on that.

Looking round, I see a whole lot of people who have gone through education systems of different sorts. I have no evidence and I cannot recall any evidence of anyone seeking to subvert the views of teachers. In my experience, the teaching profession will be professional in its interpretation of this. There may be the odd rumpus somewhere but, as the noble Lord, Lord Baker, knows, you occasionally get an odd situation, whether it is in the police service or whatever service. I believe the legislation is sound and will protect teachers. We should allow teachers to be professional.

[Baroness O'Loan]

My Lords, to take the point that the noble Baroness just raised, I do not know whether she suggested that Members of this House are causing fear and consternation but I very much hope not. The reality is that the correspondence that came into the House did so long before there was any debate on this, and certainly long before I made any comment in public about it. It is profoundly important that we understand that there is a body of people out there, spread right across the country, who write to Members of the House of Lords in letters that are not template letters. These people have sat down and thought this through. They are teachers, chaplains and all sorts of people, and they are afraid. They have had previous experience of how life has changed for them, and possibly they have had to come to terms with teaching abortion—which they may believe to be truly wrong—but they must do these things. I do not think that is a reason to suggest that Members of the House are causing fear and consternation.

[Lord Elton]

Can I raise a point which I think is relevant to my noble friend’s reply and also to what the noble Lord, Lord Lester, in particular, and the noble Lord, Lord Pannick, have said? They find themselves—too often, perhaps, in their view—called upon to remind your Lordships that some ill from which we are trying to protect people is already covered by European law. Too often in our experience, that protection is available only when a case has gone before the European Court. In the mean time there have been many, many people who have not been able to go to the European Court, and they have not been protected.

Marriage (Same Sex Couples) Bill

Baroness O'Loan Excerpts

Wednesday 19th June 2013 Lords Chamber

Moved by

[Baroness O'Loan]

13: Clause 2, page 4, line 9, at end insert—
“( ) For the purposes of section 149 of the Equality Act 2010, no regard may be had by any public authority to—
(a) any decision by a person whether or not to opt-in, conduct, be present at, carry out, participate in, or consent to the taking place of, relevant marriages; or(b) the expression by a person of the opinion or belief that marriage is the union of one man with one woman.”

[Baroness O'Loan]

My Lords, I reiterate my membership of the Joint Committee on Human Rights, whose report on the issues on which I will speak is before your Lordships’ House today.

Amendment 13 provides for amendment to Clause 2(5) of the Bill. Despite all that was said on Monday in respect of the Equality Act, and I listened very carefully to all the contributions, there is a significant risk that religious organisations and individuals could be treated less favourably by a public authority in the exercise of its functions, for example, as regards funding, as a result of the public sector equality duty under Section 149 of the Equality Act 2010. This could occur in two rather different situations: first, following a decision by a religious organisation,

“not to opt-in … be present at, carry out, participate in, or consent to the taking place of”,

same-sex marriages; and, secondly, following the expression by an individual or organisation of an opinion or belief that marriage is,

“the union of one man with one woman”.

This amendment would protect religious organisations and individuals from unfavourable treatment in both these circumstances.

Under Section 149 of the Equality Act, public authorities such as local authorities are under a duty to have due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it. In particular, public authorities must have due regard to the need to remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic. Since the enactment of the first public sector duty in 2001, there has been extensive litigation and an expansion of the discretion of public authorities in this context. The courts have consistently interpreted the duty of due regard as a duty to further equality of opportunity and not just a duty to avoid discrimination.

Public authorities have in practice used this discretion to pursue broad equality aims and the courts have been reluctant to second-guess the discretion of public authorities. Public authorities have, for example, denied public contracts to organisations which they regarded as unsuitable—for example, on race equality grounds, and the courts appear to have deemed this entirely lawful. As noble Lords will already be aware, the public sector equality duty now imposes duties on multiple grounds, which include sexual orientation and religion. This means that public authorities now have significant discretion in deciding how best to balance these grounds if they clash, and they will clash.

In relation to the first scenario—unfavourable treatment of a person following a decision not to opt in—the amendment is needed for three reasons. First, the Bill does not expressly state that a public authority will act ultra vires if it penalises a person following any of those decisions. Clause 2 protects from compulsion; it does not appear to protect religious organisations from being treated less favourably by public authorities under Section 149. The Government appear to think that less favourable treatment should be ultra vires. In the Secretary of State’s response to the Catholic Bishops’ Conference of England and Wales, she said:

“In all circumstances a person who has suffered detriment for the reason that they have not done one of the acts specified in Clause 2, will be able to rely on the protection in Clause 2 to show that such conduct is unlawful”.

During the Public Bill Committee, the Minister stated,

“as the law stands, a public authority would in fact be acting unlawfully … if it attempted to treat a religious organisation adversely simply because that organisation refused, as is explicitly allowed in the Bill, to conduct same-sex marriages. If, for example, a local authority withdrew meeting facilities from a Church only because it did not offer same-sex marriage, that would be likely”—

likely, my Lords—

“to be unlawful direct religious or belief discrimination”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 5/3/13; col. 349.]

This is not clear in the Bill because an ordinary dictionary definition of “compelled” does not include treating someone less favourably. Nor is it at all clear, for example, that it would be unlawful direct religious discrimination for a local authority to withdraw meeting facilities from a church on the ground that it does not offer same-sex marriage. At most, it is likely to amount to prima facie unlawful indirect discrimination and that would then be subject to the justification defence. We know that the results which flow from judicial scrutiny of such defences are uncertain.

Secondly, Clause 2(5) and Clause 2(6) of the Bill provide explicit protection from Sections 29 and 110 of the Equality Act, despite the comprehensive protection from compulsion which Clause 2 is supposed to provide. The presence of these extra exemptions in Clause 2(5) and 2(6) casts serious doubt on the scope of the protection from compulsion. If it is necessary to have exemptions for these sections, it is also necessary to have a separate exemption for Section 149, to give the protection provided for in this new clause.

Thirdly, even if it were established that the actions of the public authority were ultra vires in the scenario described, such a clarification would come only as a result of a judicial review being taken by religious organisations, which would be time-consuming and expensive. What is more, domestic courts have been reluctant to second-guess the discretion of public authorities, where allegations have been made that more weight should be given to a particular ground of equality. The Secretary of State has been careful not to state that a judicial review of a public authority that engaged in this less favourable treatment would be successful. The Secretary of State has said only that the decision would be vulnerable to challenge. This amendment will provide the necessary clarification, and thus protect persons from unfavourable treatment, by making it explicitly clear in the Bill that public authorities cannot have regard to decisions by persons not to opt-in, conduct, be present at, carry out, participate in or consent to the taking place of same-sex marriages.

In relation to the second scenario, in which persons may be treated unfavourably under Section 149 following an expression of the opinion that marriage is the union of one man and one woman, the amendment is necessary for two reasons. First, the Government have repeatedly stated that teachers will not be required to promote or endorse views which go against their beliefs. The Minister stated at the Public Bill Committee:

“It is therefore perfectly lawful for a teacher in any school to express personal views on sexual orientation or same-sex marriage, provided that it is done … in an appropriate manner and context”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 28/2/13; col. 305.]

However it is not clear from the Bill that a teacher would be able to teach that marriage should be only between a man and a woman, because some parents, pupils or other teachers could find such teaching deeply offensive. The public sector equality duty could force a school to review, for example, its anti-bullying strategy to ensure that such expressions of opinion are not given. A teacher could thus be disciplined for expressing such an opinion to his or her pupils.

Secondly, if a school’s curriculum positively presents only opposite-sex marriage, there is a danger that the school could fall foul of the Section 149 positive duty on schools to advance equality of opportunity and to foster good relations between people with different protected characteristics. The public sector equality duty could consequently compel schools to endorse same-sex marriages, not just to teach the fact that they exist.

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[Baroness O’Loan]

My Lords, for the sake of clarification, I did not speak on behalf of the committee but declared my membership, as I thought appropriate.

[Baroness Royall of Blaisdon]

I beg the noble Baroness’s pardon. It is interesting that both noble Baronesses, and the noble Lord, are members of the committee.

We are clear that Amendments 13 and 18 are unnecessary. We believe that they would add confusion to the law. As the noble Baroness said, the public sector equality duty is a duty to have “due regard”, not a duty to act. The due regard must balance discrimination on the grounds of sexual orientation equally with discrimination on the grounds of religious belief. It would not permit a public body, even with the intention of eliminating discrimination on grounds of sexual orientation, lawfully to treat a religious organisation less favourably on account of its beliefs about same-sex marriage. Furthermore, the authority would be in breach of the clear protections in the Bill that will permit religious organisations to remain outside the system of same-sex marriages.

As the noble Lord, Lord Lester, said, the Equality Act 2010 is a carefully crafted piece of legislation, thanks to many noble Lords present in the Chamber today. It established a balance between protection against discrimination on grounds of religion or belief and protection against discrimination on grounds of sexual orientation. To single out one belief—that marriage should be between a man and a woman—risks undermining the protection afforded to religion as a whole, with its entirety of beliefs and practices, because it sets up this one belief as requiring explicit protection. Therefore, Amendment 13—and Amendment 18, which seeks to achieve a similar effect—would prove unhelpful and unnecessary.

--- Later in debate ---

[Lord Wallace of Tankerness]

My noble friend has taken part in the debate and I usually make it a matter of practice to send a copy to everyone who has taken part. The noble Baroness, Lady Royall, makes a constructive suggestion. I will make sure that it is put in the Library and if, on the basis of the letter and follow-up, it is thought that a discussion would be necessary or wanted, I would certainly be happy to accommodate that. In the light of these comments and the reassurances that we have sought to give, I hope that the noble Baroness will feel able to withdraw her amendment.

[Baroness O'Loan]

My Lords, I thank noble Lords who took part in this debate. The noble Lords, Lord Lester and Lord Alli, and various other noble Lords have emphasised the need for clarity in legislation. The Bill, as drafted in the House of Commons, is already subject to amendment by the Government. It is clear that there are situations in which law which is drafted in the first instance by draftsmen requires clarification. That is why the House exists.

This particular piece of legislation falls at the interface of a number of different human rights—rights of religion and other rights. That is why it is so difficult for the House. The Bill seems to be based on the assumption that the act of marrying is separate from the act of registering a marriage, and the noble Baroness, Lady Berridge, demonstrated quite clearly that that is not the case. It is one single act. It is that which raises the whole spectre of public function. I raised this issue and specifically asked the Minister at Second Reading about the risk attached to the public function obligations of religious organisations that are in that hybrid position—those other than the Church of England and the Church in Wales. I did not get any answer to that question.

In the context of the Bill, we are looking not only at the acts of marriage but at the unintended consequences of the legislation before your Lordships’ House. They go much further than the act of conducting or permitting the conducting and so on of a marriage. They go to the whole remit of public authorities in funding, enabling and resourcing organisations such as youth clubs and schools, and in teachers’ ability to speak freely. We have a number of amendments still to come before the Committee in this context. My amendments would have dealt with some elements of these issues but there are other amendments that relate to them. I put it to the Committee that the issues are not quite as clear as some noble Lords would wish to state.

The fact is that there is a clear distinction in the legislation between the Church of England, the Church in Wales and other churches that solemnise marriage, which is that the Church of England and the Church in Wales are not in a position in which they will decide whether to opt in or out without further legislative process outwith this Parliament. That is what makes the difference and it is why we have the quadruple lock for the Church of England, which is not a sufficient lock for other churches. That is why I have tabled these amendments.

I do not wish to be in any way contentious or to delay the House but I cannot help remembering that the Catholic adoption agencies that have now closed as a consequence of legislation were also argued for on the basis of religious freedom. That argument was lost and there is no religious freedom there in the provision of services. It is profoundly important that we ensure that we do not further create very difficult situations. I will therefore, for the moment, withdraw and not move my amendments but reserve the right, having heard what the Minister had to say, to come back to the House on Report. I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

Marriage (Same Sex Couples) Bill

Baroness O'Loan Excerpts

Tuesday 4th June 2013 Lords Chamber

[Baroness O'Loan]

My Lords, this has been a difficult and challenging debate—on occasions even an emotional one—for many of us as we have listened to all the speeches. To take a position that is not in support of this Bill is not to be homophobic, although some might accuse us of it. We have a duty to do all we can to further equal treatment, to challenge homophobic behaviour and to celebrate difference and diversity. This Bill is a very uncertain instrument, but one thing is clear: it will change the definition and understanding of marriage, converting it into two different institutions.

As has been said previously, it is not the outcome of a manifesto commitment, of a referendum, of a Green Paper, of a White Paper and of normal consultation. In the 126 letters in my postbag yesterday, 120 were against this Bill and six were for it. One thing that was articulated repeatedly in those letters—they were not standard form letters; people had sat down and thought this out—was that the Government had not gone through the normal processes in approaching this matter. They simply issued a consultation on how marriage could be opened up to same-sex couples.

As we come to the end of this debate, we need to remind ourselves why we have legislative provision for marriage at all and why the state intervenes in people’s sexual relations. Bertrand Russell said:

“But for children, there would be no need of any institution concerned with sex”.

Let us think a minute about English law, under which a valid marriage is one man one woman, is a lifelong commitment, has an exclusive sexual aspect and has a presumption that the husband is the father of the wife’s child and that the partners will remain loyal to one another. Normally, marriage involves being open to bringing children into the world and provides a legal context within which stability, care and protection can be provided for them. Marriage has been protected in law for that reason and, as others have said, it provides the basis for our complex inheritance laws.

It is not just a matter of domestic law. Article 12 of the European convention protects the right of a man and woman to marry. Article 23 on the International Covenant on Civil and Political Rights recognises the family as,

“the natural and fundamental group unit of society … entitled to protection by society and the State”,

involving,

“The right of men and women of marriageable age to marry and to found a family”,

and implying, in principle, the possibility to procreate and live together. If Parliament enacts this Bill, the content must be clear and unequivocal. It must leave no uncertainties capable of resolution only through the courts, often at great expense and distress to those involved.

The Government stated in December that:

“At its heart, marriage is about two people who love each other making a formal commitment to each other”.

Under English law, marriage is rather more complex than this. What is proposed will result in two different types of union that will bear the same name: marriage. The first will involve traditional legal marriage between a man and a woman. The second, legal marriage between same-sex partners, will be significantly different from opposite-sex marriage. Non-consummation will not be a ground on which such a marriage can be declared void. There will be no presumption that a child born to the family is a child of the family, and sexual infidelity with another same-sex partner will not constitute adultery. The formal proposed legal relationships of married same-sex couples cannot therefore be construed as being identical to those of married opposite-sex couples. There will be different consequences, not only for the couple but for any child who may be born to such a relationship.

It is not unequal, unfair or discriminatory to treat those in different circumstances differently. European law gives state authorities a wide margin of appreciation in deciding where to strike the balance between convention rights. In 2012, the European Court stated that there is no discrimination in excluding same-sex couples from marriage.

I want to move on to a number of questions for the Minister. Can she advise whether a member of a same-sex marriage whose partner has a sexual relationship with a member of the opposite sex will be able to divorce that partner for adultery, which goes to the heart of the commitment to faithfulness, as is the case for those in opposite-sex marriages? Can she also advise why the two types of marriage proposed are treated differently in the Bill, something that surely might ultimately give rise to action in the courts? If a wife in a same-sex marriage does not have the advantage of a presumption—we understand why—that a child whom she bears is a child of the marriage, what protections will exist for that child in law?

If a same-sex marriage does not have to be consummated, surely a partner in an opposite-sex marriage who wishes to remain married to his or her partner despite the fact that the marriage has never been consummated would have the right to bring a challenge in the European Court against the Government for discrimination in not according to them the protections afforded to those in same-sex marriages. There might be significant financial implications for a party married to someone who declines to consummate the marriage but is in all other respects a model spouse.

Under English law, religious marriages conducted in accordance with the law are also civil marriages. There are not two kinds of marriage. Rather, marriage may be contracted either through a religious ceremony, without the requirement that exists in other European countries for a separate civil marriage, or a civil ceremony. A number of churches, including representatives of the Church of England, have articulated uncertainties about attempts at compulsion that may be brought to bear if the Bill is enacted. Might some churches, reluctant to face the uncertainties and costs inherent in the possibility of third-party action against the United Kingdom in the European courts, simply decide that they will no longer act as registrars of marriages, so that couples will have to have a civil wedding as well as a religious wedding to have a legally valid marriage? What assessments have been made of the potential costs of any consequential necessity to employ additional registrars of marriage? It has been argued that a religious marriage involves a civil element that incorporates the provision of a public function. Where a church has stated that it will not marry same-sex couples, could it therefore be argued in the European Court that the UK is in breach of the non-discrimination laws applicable here and in Europe?

There has been significant concern in many quarters about the effectiveness of the so-called quadruple lock. There are those who also object to the fact that there is no discretion for the Church of England to determine whether it wishes to marry same-sex couples. Questions also arise about what might happen where an institution determines that it will not conduct same-sex marriages but a minister of that institution decides that, in conscience, he wishes to do so. The fact that the minister has conducted the marriage in defiance of his institution’s determination might be a disciplinary matter for the institution, but will the marriage be valid for the couple concerned, and how will they know? Clause 2(2) allows individuals to refuse to conduct a same-sex marriage even though organisations have opted in. There is no corresponding protection, as has been said, for many others who provide services in the context of marriage.

The Government consulted on whether civil partnerships should be extended to opposite-sex couples. Of those who responded, 61% thought they should. It has been said that a requirement to declare a civil partnership is in effect a requirement to declare sexual orientation. Opening civil partnerships to opposite-sex couples would remove this automatic interpretation of sexual orientation. Will the Minister explain why the Government have decided to maintain this discriminatory situation and provide assurances that the European Court will uphold the right of the state to retain gender inequality in civil partnerships when they have legislated for equal marriage?

Statutory guidance requires that children learn about the nature of marriage and its importance for family and the bringing up of children. In the widened definition of marriage provided for in this Bill, there would be no exception for conscientious or religious belief: rather, there will be a duty on a teacher to promote positively marriage as newly defined. A teacher could be disciplined for conveying a belief against same-sex marriage in a way that a pupil might regard as discriminatory.

Finally, marriage receives modest support from government in the form, for example, of assistance for marriage counselling. Excluding same-sex couples from marriage counselling would be discrimination on the grounds of sexual orientation. The exceptions under the Equality Act 2010 do not apply to an organisation whose purpose is to provide services to a wider public constituency. Such organisations could be unable to access ongoing funding and might have to close. There is significant difficulty in accessing marriage counselling across England and Wales, given the long waiting lists. How do the Government propose to protect the ongoing provision of such services?

I was much impressed by the words of the most reverend Primate the Archbishop of Canterbury when he suggested yesterday that the better way would be to create a new and valued institution alongside marriage to strengthen us all. We have a duty to legislate in a way that gives certainty. Despite the Government’s intention, the Bill cannot, as drafted, provide equality. It also appears to have been the subject of hasty drafting that does not deal comprehensively with far too many issues.

International Women’s Day

Baroness O'Loan Excerpts

Thursday 7th March 2013 Lords Chamber

[Baroness O'Loan]

My Lords, I thank the noble Baroness, Lady Stowell, for her introduction to this debate on International Women’s Day. I also pay tribute to the right reverend Prelate the Bishop of Coventry for his fine maiden speech and look forward to the erudition, eloquence and compassion that he will bring to debates in this Chamber.

The UN theme for International Women’s Day is, “A promise is a promise: time for action to end violence against women”. Women come to their experience of violence through many routes. Predominantly, they will be victims, either of domestic or war-zone violence. In places such as Northern Ireland, where the Troubles have dominated our lives for so long, that still takes a toll on those who suffered: on the relatives of the dead, the maimed and the families of the disappeared. There will also be those women who decide to take an active part in conflict as combatants: up to 40% of some groups are female. Those women combatants may ultimately be peacemakers. No matter what role they play or position they hold in relation to the conflict, the range of potential effects of violence is similar. It is important to acknowledge that, to acknowledge that violence has so many facets, and to identify what must be done to address them.

I want to address some of those facets. First, there is physical and sexual abuse, and the lack of mechanisms, structures and the necessary determination to prosecute such crimes. Reparations for rape, real property theft and lost educational opportunities when children are taken for camp slaves have to be dealt with quickly and effectively. In many conflicts, the warlords openly acknowledge that they will rape whole villages as a clear statement of the threat that they represent and to force people into compliance. We have seen the abduction of children from their families to be used as child soldiers, including girls. In some conflicts, tens of thousands—some 50% of all child soldiers—are girls. We probably all know the pressures to which children are subject in organisations such as the Lord’s Resistance Army: pressures to murder members of their family and each other as the combatants seek to take total control of them. We have seen the abduction of women and girls to be used as camp slaves.

Each state has a responsibility—as does the international community—to put an end to impunity and to prosecute those responsible for such crimes. That does not happen very often. The consequential exposure to sexually transmitted infection and trauma-related illness give rise to huge medical and PTSD treatment needs That can have an enormous impact on people’s ability to deal with the ordinary challenges of life. They will have higher levels of mental and physical illness, injury and suicide. That is what we have experienced in Northern Ireland.

Displacement from and the loss of their homes is a major problem. These women often end up in IDP and refugee camps for years. Even when the conflict has been resolved to the extent that it is possible for them to go home, they may be reluctant to do so even where there is funding available for them because they have access to health services, education and maybe some protection and security. It has often seemed so terrible yet so understandable to me that they can prefer living in UNHCR tents for years, without electricity or running water, to going home where the impact of the destruction of a local community in terms of unsettled scores, suspicion and resentment may linger for years and where people see the perpetrators of violence walking the streets and even in government, occupying influential and highly paid jobs.

That is part of the price of peace. It can be very hard for those who still seek reparations and the recovery of the disappeared. In Northern Ireland we still have seven families grieving people who were abducted and murdered, and whose bodies lie in unmarked graves that may never be found. For each family this is a daily agony as it remembers the young man or boy who went out one day and never came back.

In conflicted societies one of the biggest barriers to equality for women is often the existence of traditional laws and justice procedures. Women are often not allowed to own property. That will have to change and be a priority in each conflict zone. Where huge numbers of men have died the widows and children risk homelessness and destitution unless change is made. Returning combatants, often traumatised themselves, often bring higher levels of domestic violence.

Issues around demobilisation, decommissioning and resettlement must be dealt with. Women have to fight for their share of funds, as money is normally paid principally to men, who have had front-line posts, leaving a disproportionate amount of the very scarce funds that are available in the hands of men only. There is also the new phenomenon of the vulnerability of some women to fundamentalism and the honour that is perceived as coming to families when one of their number becomes a suicide bomber.

Loss of the opportunity to be educated, because of war, because teachers go to war, or because it is not safe to go to school, impacts on women’s ability to participate in society at all levels. Often they cannot drive, even where motorbikes are about. That means that their capacity to engage in commercial initiatives is limited. Women need, above all, security so that they can access water, food and fuel. In countries where there has been conflict and in others where there is great poverty women will suffer not only violence but all the problems associated with the daily trek for water and fuel, and with the grind to grow food. In those circumstances men may resist attempts to bring water to the community, because their women will then have free time which they may not use as the men would wish.

In times of violence there is also difficulty for women in accessing health and other services, because of costs of travel, time, and the fear and insecurity around travel. Often there is no hospital because of a war, or they cannot afford the fare, they have no access to transport and they are afraid. When you are about to have a baby this can be a time of great need. I lived in Kenya when I was expecting my third child. The rains were coming. It was a 40-kilometre drive up a dirt road to the nearest mission hospital that had no electricity or running water. Yet we knew that we had to go before the rains came. I had that option. The other women in the community did not, because they had no access to a car.

The international community must urgently address the needs of the “UN babies”, born as a consequence of a relationship, prostitution or rape involving UN personnel. These babies may be rejected by their fathers and the societies in which their mothers live simply because they are visibly of a race different from the community in which they live.

These things will involve not just policy change, and planning, training and development, but also changing the hearts and minds of many of those who were the perpetrators of violence and who have lived often for years in abnormal circumstances. There will inevitably be unsettled scores, old hatreds, and a desire for punishment and vengeance that may well have the capacity to destroy an embryonic state. Old combatants will have to come to terms with living at peace with each other. It will take time and energy. Many women have great skills that can be utilised for the benefit of an emerging nation in those matters that require mediation, such as prisoner release, disarmament, resettlement and reintegration.

Gender-responsive policy-making can be life-changing. Gender-responsive changes in the mandates, practices and cultures of states and international institutions are occurring. On International Women’s Day we applaud the courage and determination of women who have emerged to take their rightful place in local and national politics across the world. We meet many of them at Westminster as they travel here to learn more of our practices and procedures, and to be affirmed and encouraged in their role as parliamentarians in situations infinitely more complex and dangerous than those in which we operate. Those women will bring the gender perspective to the debates and law-making of those assemblies, so that each society and state can function to maximum effect, benefiting from the talents of all its members.

Enterprise and Regulatory Reform Bill

Baroness O'Loan Excerpts

Monday 4th March 2013 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, I was dealing only with the arguments which the noble Lord advanced in Committee. I thought he might be advancing them again. He has not, but at any rate I have given my answers to those arguments and the House will in due course decide.

I turn now to the reasons—and I am sorry to take so long—given by the noble Baroness, Lady Stowell, for repealing Section 3 as it stands. She gave two reasons and it is as well that the House should actually have them in mind. The first reason is as follows:

“But the problem with Section 3 is that it implies that the commission, uniquely, is responsible for encouraging and supporting the development of such a society. This is patently wrong and arguably insults the efforts that we all make in support of these goals, whether through the work of Parliament, government, the wider public sector, business or the community. We are collectively responsible. We might need the commission’s help, but it cannot achieve an equal society on its own”.

Section 3 provides that the object of the commission is to encourage and support the goals of which we are all aware. But there is nothing that I can find in the words of Section 3 which suggests or implies that the commission is to be solely or uniquely responsible for encouraging and supporting those goals. I fear that, in adding those words, the noble Baroness was reading words into Section 3 which are simply not there and for which there is not the slightest reason.

I fail to see how it can be argued, as the noble Baroness does, that Section 3 is an insult to the work done by Parliament or government or to the public in general. Of course, the commission cannot achieve an equal society on its own. Whoever suggested that it could? So I am puzzled by the first reason given. There is no insult involved. But I am equally puzzled by her second reason, which is as follows:

“We are seeking to repeal the general duty on the commission because it creates unrealistic expectations, positive and negative, about what it on its own can achieve”.—[Official Report, 9/1/13: cols. GC 60-61.]

I repeat, the commission’s job is to encourage and support. How does that create any expectations, positive or negative, that the commission can do the job on its own? What is the evidence that there is any such unlikely expectation and, if there is, that it is due to Section 3?

We are being asked today to repeal a very recent piece of legislation which was regarded as of some importance at the time and was well considered. We should not do so unless good reasons are given. The reasons so far given on behalf of the Government are, to my mind, wholly unconvincing. I therefore support the amendment.

[Baroness O'Loan]

My Lords, in putting my name to the amendment, I would like to endorse the comments made by the noble Baroness, Lady Lister, in relation to the magnificent contribution made by my noble friend Lady Campbell in the context of human rights.

The general duty created by Parliament in Section 3 of the Equality Act 2006 is a profoundly important obligation. It is not vague. Its terms are absolutely clear and quite brief. As Liberty has said, the fact that the commission has not yet fulfilled its potential —and despite its early failings to deliver on its mandate—should not mean that its crucial powers and functions are compromised or circumscribed.

We have heard a description of what Section 3 actually does. It asks the commission to exercise its functions to encourage and support the development of an inclusive society that encourages people to achieve their potential, values diversity, respects the dignity and worth of every citizen, and respects, promotes and protects human rights. It does not, as the noble and learned Lord, Lord Lloyd, said, require the Equality and Human Rights Commission to establish a fair and equal society. That would be vague and impossible of performance. Rather it provides the vision that is necessary to guide the operation of equality and human rights law in this country. It is not uncommon for such a purposive section to be included in legislation. It provides a very necessary statutory underpinning to the operation of equality and human rights law.

When one seeks to work legislation of this type in a day-to-day context, provisions such as this are profoundly important. The legislation that applied to me as Police Ombudsman for Northern Ireland required me to carry out my functions in the way that I thought was best calculated to secure the confidence of the people and the police in the police complaints system. If you were so minded, you could argue that that was similarly vague, but it was not vague at all; it was very precise.

Section 3 provides the principles that are absent from the Equality Act 2010 and which are necessary for the interpretation of that Act. Without it, there would be gaps and deficiencies and, ultimately, Parliament would be required to legislate further on this issue. There is widespread unease and concern, articulated not only in this House this afternoon, at the proposal to remove Section 3—the lobbying has come from wide sectors of society.

I refer to the response of Justice to the Home Office consultation in 2011 on this issue. Justice pointed out that the objectives set out in the general duty were,

“agreed by all political parties in Parliament following amendments proposed by Conservative MPs”.

Justice also stated:

“The General Duty provides a clear mandate which the EHRC must have regard to when deciding how to act. By repealing the General Duty, the mission and very purpose of the EHRC would be altered, and the UK’s commitment to the Paris Principles would be fatally undermined”.

The commission achieved its fundamentally important United Nations “A” status only three years ago. It had to demonstrate compliance with the Paris principles in order to do that. The achievement of “A” status gave it full participatory rights at the UN Human Rights Council and access to other UN bodies. The Northern Ireland Human Rights Commission had had such a status three years previously. That status, with the opportunity for influence and engagement, is important in the context of the international credibility of this country.

Reference has been made by the noble Baroness, Lady Lister, to Professor Sir Bob Hepple’s statements. He has stated that repeal will remove the unifying principle to which both the Lord Chancellor and the noble Lord, Lord Lester, referred when promoting the Equality Act 2006—the link between equality and other fundamental human rights. At the core of the commission’s general duty, and implicitly underlying the specific rights against discrimination, harassment, victimisation and the positive duty to advance equality, is respect for and protection of each person’s human rights.

This is not merely a political statement. It is the difference between the commission pursuing a society in which everyone is treated well and one in which law can be complied with simply because everyone is treated equally badly. When the Commission for Racial Equality investigated ill treatment of black prisoners prior to the creation of this commission, the defence given by the prisons was that white prisoners were treated equally badly. That was a legally sound defence. However, the operation of Section 3 ensured that a use-of-force policy against young men in detention had to be abandoned when the commission intervened. Had Section 3 not existed, the Home Secretary could have simply reconsidered the matter and reissued the policy.

I have seen no evidence that Section 3 has been in any way a hindrance to the operation of the commission, equality law or business. It is a necessary framework within which our equality and human rights law operates. The commission is facing the harsh reality of trying to maintain its UN “A” status while suffering from 76% budgetary cuts and 62% staffing cuts. It will struggle. If Section 3 is lost, the commission will be reduced in status and clarity of mission and purpose. That would be detrimental to the governance of our society.

[Baroness Hollins]

My Lords, I, too, support these amendments, and I congratulate my noble friend Lady Campbell of Surbiton on her perseverance in this matter.

The lack of respect shown to patients at Winterbourne View and at Mid Staffordshire shocked all of us. Laws must start with values and principles and not rely solely on regulation; nor should they assume, for example, that all public servants automatically hold and understand those values. The Government say that legislation is no place for declaring a mission but I disagree, and there are many people in the Chamber today who also disagree. For example, the Care and Support Bill includes principles which are perhaps individually unenforceable but they are critical because they remind us all that the primary purpose of care and support is ultimately to support the well-being of people. If we want to know how well our care and support system is doing, the well-being of older and disabled people and their families is our litmus test. Section 3 serves the same purpose. It imports these enduring values and principles into the duties of the EHRC and reminds it and us that, above all else, its role is to ensure that, as a society, we are upholding them.

A much celebrated initiative of the EHRC has been its inquiry into the human rights of elderly people receiving care in their own homes. The inquiry uncovered how the human rights of some older people were being placed at risk by care providers who required their staff to carry out tasks such as helping people to wash, dress or eat in time slots of 15 minutes or less. The dignity of older people was not being respected by a system which most assumed to exist principally for that purpose. It also highlighted how, as a consequence of outsourcing home care to private and voluntary sector providers, coupled with a narrow judicial interpretation of the meaning of “public authority” under the Human Rights Act, the majority of older people receiving care in their own homes could not rely on the Act to protect them.

That inquiry looked beyond existing law. It identified anecdotal evidence of an emerging situation, investigated it and made recommendations, including for law reform but equally for practice. It involved a particular constituency—older people—in circumstances where the values and principles of dignity and respect were being placed at risk but in which there were not at that time any legal cases to claim that human rights had been breached. This is not the sort of work that can be undertaken by charities. Charities are not the experts in equality and human rights. They can provide evidence but not leadership. They look to the EHRC to lead and promote.

Welfare Reform Bill

Baroness O'Loan Excerpts

Wednesday 16th November 2011 Grand Committee

[Baroness Lister of Burtersett]

My Lords, I wish to speak briefly in support of the hobby horse of the noble Baroness, Lady Campbell of Surbiton, which we should take seriously. I was struck by what she said about how a trial period in which disabled people’s organisations were involved could do a lot to restore confidence in the system. I am sure that I am not the only noble Lord who has been struck by the e-mails, letters and faxes that I have received, which demonstrate that that confidence is at rock bottom. There has been a catastrophic loss of confidence. The noble Baroness is offering the Government perhaps not an olive branch, because that suggests that a war is going on, but an opportunity—I suggest that the Government would do well to grasp it—to listen to what is being said, accept this amendment with its trial period and involve disabled people’s organisations. That could go a long way to restore confidence in this system.

[Baroness O'Loan]

My Lords, I apologise to the Committee that I was unable to be here at the beginning of the proceedings. The amendment tabled by the noble Baroness, Lady Campbell, to Clause 78 has to be considered in the light of the UN Convention on the Rights of Persons with Disabilities. I draw particularly to the Committee’s attention the fact that paragraph o of the preamble to that convention provides that,

“persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them”.

The proposal for a trial period and the involvement of disabled people’s organisations in the assessment process will undoubtedly enhance that process, but it will also put the United Kingdom in a position in which we are in compliance with our obligations under the convention. I am sure the Minister will be aware that it will be most important to have a review in terms of having confidence in the Government’s new system, and to ensure that injustice is not done and that people do not lose the right to benefit simply because of a flawed assessment process, particularly one that is not conducted by those with the necessary expertise, as was referred to by a number of noble Lords.

I refer the Committee to Articles 19 and 20 of the UN Convention on the Rights of Persons with Disabilities, which are particularly relevant in terms of the opportunities that disabled people need in the context of this amendment. It is also cost-effective; more importantly, it is respectful of the rights and dignity of people with disability. As the noble Baroness, Lady Grey-Thompson, was saying, when they are unlikely to experience any change in the health impairments from which they suffer and which result in significant costs, they should not be required to be assessed more than once every five years. It is a human rights issue. The assessment process itself, as we have been told, will take a toll on such people and it would be disproportionate, unnecessary and unproductive to require more regular assessment.

Welfare Reform Bill

Baroness O'Loan Excerpts

Monday 14th November 2011 Grand Committee

[Baroness O'Loan]

My Lords, I support the noble Baroness, Lady Campbell. The proposal to amend Clause 75 by changing the name “personal independence payment” to “disability living costs allowance” is intended to clarify the purpose of the payment. However, it does not reflect the way in which understanding of that issue has been developed. “Personal independence payment” has come to suggest that the disabled person is or will become independent as a consequence of the payment. That will not happen. What will happen is that the person will be able to finance the inevitable additional costs that are consequential on their disability or disabilities and the various barriers which hinder full participation.

Independence is about not being reliant on others. The reality for those with disabilities is that they will always need assistance for a range of activities. The cost of that assistance is an additional resource which the disabled person needs. The DLA provides for those costs, and under these arrangements the payment of these additional costs will be enabled, not independence itself.

We are acutely aware of the extent to which people entitled to benefits are unable to claim because of lack of knowledge and understanding of their rights. That is a proven fact, despite the coverage to the contrary. It is most important that the name of this benefit does not have the capacity to add further confusion for the beneficiary. It has been recognised by government that people do not fully understand what DLA is for. It has also been recognised that disability benefit entitlement should be easier for people to understand. I therefore believe that the term “personal independence payment” is not adequate or appropriate.

The aim of the DLA was always to enable a disabled person to experience as full a life as possible and to provide for the additional costs. That approach recognised the reality that independence as others experience it is never going to be a reality for a person with a range of disabilities unless additional funding is made available to enable the access to education, to social and political life, to employment or, indeed, to membership of this House if that is what the person aspires to.

I travel regularly by plane, train, underground, bus and all forms of transport which are profoundly difficult and sometimes inaccessible for those with disabilities. Access to transport continues to be at a very low level, and therefore the use of taxis or cars involving significant additional costs is the only option available in many circumstances. Access to some buildings is still impossible for people with mobility problems. I share an office with someone who has a disability and so I am aware of the endless conversations that ensue on an invitation. Those questions include, “Can I get access to the building? Can I get into the event? How will I get up the steps?”. Other problems arise for those who suffer from deafness and learning disabilities in terms of access to the content of material. That has to be provided for and it costs money. Surely we should recognise this and make quite clear what the allowance is intended to enable: simply, the payment of additional costs.

[Lord Wigley]

I rise with some humility to follow the noble Baronesses who have moved and spoken to these amendments. Reference has been made to the battles that took place in the 1970s, the 1980s and the 1990s to try to make progress on this issue. A number of noble Lords here today were involved in the various stages. I look across the Committee Room and see the noble Lord, Lord Newton, who was very much involved from the Government’s point of view and was there when progress was made. The battles were partly with regard to the substance and content of the legislation to ensure that resources were available for those in need. However, alongside that, there was a battle to ensure that the terminology was appropriate. We know that in so many areas of disability there have been changes in the conventional acceptance of terminology. To a very large extent that has been driven by those with disabilities themselves. Many of us have had to adapt to that terminology, coming to realise what it means. The terminology is important not only to disabled people themselves but to the rest of society because of the perception society has of the challenges of disability. One therefore wants to make sure not just that the terminology is neutral but that it works positively to help those most affected by it.

The noble Baroness, Lady Lister, referred a moment ago to the fact that the amendment is not asking the Government to make an expensive provision. We have heard from the Minister speaking to many, many amendments in this Committee that the cost has to be a factor and we all understand that. In this instance, it does not appear that the cost has to be a factor and if the Minister can find some way to accommodate the terms of these amendments, I believe it would do an awful lot of good at very little cost.

Welfare Reform Bill

Baroness O'Loan Excerpts

Tuesday 4th October 2011 Grand Committee

[Baroness Grey-Thompson]

I was asked yesterday morning to come into this room and check for accessibility. I came in at 2.15 pm to check that there was enough room and we are fortunate that a huge amount of work had gone on to make sure that there was enough space for wheelchair users who might come to speak or to deal with various colleagues’ needs. On the point about voting, my personal view is that it is incredibly important that if I take part in a vote, I actually walk, or push, through the Lobby. As much as being able to see my name in a list, it is important to me that Members of your Lordships’ House see which way I push. If there is a Division—I hope not today—I will be going to vote and that is something important that we should all have the opportunity to do.

I know that not all my fellow Peers feel as strongly about walking down one of the Lobbies as I do, but it is very important in terms of democracy.

[Baroness O'Loan]

I have a brief point in support of the noble Baroness, Lady Campbell. As we later consider the disability living allowance and the PIP which will replace it, we need to bear in mind that our understanding of the consequences of living with disability is limited. We demonstrate that by the way in which we conduct our business. People will judge the extent of our understanding in the discussion we have about social security arrangements for them. It is a hugely important issue.

[Baroness Meacher]

I support that strongly. If one of our Members is actually at risk, maybe the usual channels need to reconsider whether this Committee can be held in this Room. I do not believe that any work can be done by this House if a Member is at risk and feels that they may not be able to breathe. I urge the usual channels to revisit that issue.

Could I ask the Minister three quick questions. One is strongly in support of the point made by the noble Baroness, Lady Hollis, that risk is more important than the idea of getting an additional 24p in the pound—or whatever it is—for every pound one might earn in employment. I know the Minister is as conscious as I am about the special needs of people with mental health problems in relation to risk.

This is a group who may desperately want to work, but who are locked out of employment because of the understandable concerns of employers about taking them on. I know this is much in the Minister’s mind. Has a real assessment been made about the impact of this Bill, geared to economic incentives, on that large group of claimants, particularly on ESA, in terms of the risk that they face? I have been talking about this Bill to a lot of service users, patients, in east London and they all refer to being terrified. Understandably, this might not have been fully taken on board by the drafters of the Bill, the Bill team and all the other people involved. Is the Minister satisfied that the depth of that issue and its importance to a very large group, something like a third or more of claimants in the employment service, on ESA, has been taken on board? That is the first question.

The second one concerns the point raised by the noble Lord behind me about the IT system. We all know about the NHS IT system: it was all going to be wonderful and we were looking forward to it. It was about integrating databases, computers and suchlike. It failed and failed and failed and cost billions. Does the Minister have an estimate of the timeframe for the integration of the Inland Revenue and DWP computer systems? I think that that is the project: obviously he will correct me if I am wrong. Also, what confidence does he have in that estimated timeframe and what is the evidence for his confidence if he has it?

My third point concerns DWP staff training. Can the Minister, again at this early stage of the Bill, give some assurance to the Committee about the level of funding going into the training of DWP and other relevant staff to ensure that they can understand the complex issues around capacity to get into employment? I have mentioned this story before. In conversation with a Jobcentre Plus manager, I asked how they dealt with people with mental health problems. The answer was: “We don’t”. I asked what happened and the answer was: “They become homeless and go back into hospital”. As somebody responsible for a mental health trust, I would be interested to know whether the Minister is satisfied that in future DWP staff and others will be adequately trained. Our trust and others will not be able to finance large numbers of people coming into hospital who at the moment do not do so.