Protection of Freedoms Act 2012 (Code of Practice for Surveillance Camera Systems and Specification of Relevant Authorities) Order 2013
Baroness Stowell of Beeston Excerpts(10 years, 9 months ago)
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Baroness Stowell of Beeston
That the draft orders laid before the House on 10 June be approved.
Relevant documents: 4th Report from the Joint Committee on Statutory Instruments, 6th Report from the Secondary Legislation Scrutiny Committee, considered in Grand Committee on 17 July.
Baroness Stowell of Beeston
My Lords, I beg to move the Motion standing in the name of my noble friend on the Order Paper. Although this Motion was debated extensively in Grand Committee on 7 July, the noble Baroness, Lady Basildon, has given notice that she wishes to debate this order again today, so it may be helpful if I briefly remind the House of the order’s intention.
This is a code which will for the first time place a regulatory framework around the deployment and use of CCTVs. It will also for the first time ensure that the public have a say in the deployment of these cameras. Through the 12 guiding principles encapsulated in the code, what we are putting in place will ensure that the rights of the public are balanced against the need for CCTV cameras.
This is not about increasing or decreasing the number of CCTV cameras in use. It is about ensuring that the police, local authorities and other designated authorities consider deploying CCTV cameras only where they have identified a pressing need; that the public are consulted in those considerations; and that the purpose of the use of CCTVs is set out clearly for the public. The purpose of CCTVs is to assist in the prevention, detection and conviction of crime, and the purpose of the code is also to drive greater consistency and quality of the images taken from those cameras to ensure that their use by the police is more efficient and effective in cutting crime. I beg to move.
Baroness Smith of Basildon
My Lords, I am grateful to the noble Baroness for her explanation. I should point out that I am only “Lady Basildon” on Twitter; it is usually Smith, but I am pleased to have the Minister as a follower on Twitter. There are two orders before us today, but she has rightly addressed the one that I raised concerns about. We raised and discussed the other one, about the national security determinations relating to DNA and biometric information, in Committee.
The Minister is quite right that the order which I am speaking about, the Protection of Freedoms Act 2012 (Code of Practice for Surveillance Camera Systems and Specification of Relevant Authorities) Order 2013, was debated in Committee. I am sorry—I say this with regret and not as a criticism—that the noble Lord, Lord Taylor of Holbeach, is not here today; not because we are not pleased to see the noble Baroness, but because we discussed this in Committee. I said to him on 7 July that if I remained dissatisfied with the answers to our queries and concerns, then we would look to debate it on the Floor of the House. The noble Lord helpfully wrote to me, seeking to address those concerns, but some remain, which is why we are debating this again today,
As pleased as we are to see the noble Baroness, we therefore regret that the noble Lord is not able to be here today. However, no doubt the noble Baroness will have read the debate, will have seen the letter that the noble Lord, Lord Taylor of Holbeach, sent me, and will be aware of the concerns that I raised. She sought to air them today, but I regret that in her short comments she was unable to do so. I do not want to repeat the Committee debate—that would be unwelcome at this time on the last day of term—but I will summarise the concerns and explain why we remain concerned. I hope that the noble Baroness will be able to give further information and might seek to address some of the points that have been raised and not fully answered.
The Secondary Legislation Scrutiny Committee made the point that the Government needed to justify how the benefits offset additional bureaucracy, and the wider application of the code. Those two issues stand together. There is significant increased bureaucracy and cost for local authorities and the police, as I outlined previously. This is addressed in the impact assessment. In Committee and in his letter to me, the noble Lord addressed this. He said in his letter that the Local Government Association agreed that it was difficult to assess the costs involved. He then added that it was around £1.6 million each and every year, although given the information on the impact assessment, this is a conservative estimate and could be much higher. The impact assessment suggests that is the best estimate and that it could be as high as £3 million each and every year, and that the best estimate for the one-off transition costs is over £14 million and could be as high as £29 million.
In his letter the noble Lord also stated that the best estimate values had been shared between 350 local authorities and 46 police authorities. However, as both the letter of the noble Lord, Lord Taylor, and the impact assessment make clear, the impact assessment assumes that,
“many of the local authorities and police forces … are already operating broadly within its”—
that is, the code’s—
“guiding principles where they relate to existing obligations. Thus the additional burdens and bureaucracy are likely to fall where systems and the accountability for decision-making need to be strengthened to protect the public”.
That implies to me that the conservative estimate of £1.6 million annually and the additional £14 million transition costs are not being shared across all local authorities and police forces because when the costs in the impact assessment were estimated it was done on the basis that many—I think it was 25% to 50%—would not incur any additional costs.
A further difficulty which was raised in Committee but has not been addressed is that this order applies only to the public and not the private sector. The Explanatory Memorandum quotes the policy background and refers to the advantages of CCTV. It also refers to the disadvantages, including,
“the extent to which private lives are exposed to ever greater scrutiny by other individuals, organisations or the State, leading in some instances to a potential exposure to criminality, or more generally, to an erosion of personal privacy”.
The order is therefore being promoted as a protection of civil liberties against the power of individuals, organisations and the state. However, it does not apply to individuals, organisations and the state; it applies only to the state and public institutions. So if these guidelines are so essential to protect civil liberties, why does the policy giving effect to the Government’s principles outlined so boldly in the Explanatory Memorandum only apply to the public sector? Can the noble Baroness tell me what percentage of CCTV cameras the order covers? I know that previously the Minister said that this was because they were in a public place, but so are shopping centres; shop and office cameras look onto the street. Do the same principles apply to those CCTV cameras as to the ones that police and local authorities use? If I am to believe what I see on “Law and Order UK” and other detective programmes on TV, the police often ask for access to the information on these private CCTV cameras to collate evidence of criminal activities. So, in many cases, the use of those cameras and the people they film are identical.
The Government have made much of leaner, slimmer government and fewer regulations—they want to cut quangos—and yet here we have not only a new commissioner but significant additional regulations for local government and the police. I understood that the Government policy was that for each new regulation that was brought in, two would be jettisoned as the overall burden, as the Government call it, of regulation was reduced. I think that is a poor way to make policy. There are serious issues around regulation; it is not a numbers game. In his comments to the Committee, the Minister said that, in terms of bureaucracy and regulations, the rule of “one in and two out” does not apply to the public sector, only to business. That is a new one on me. I had not realised that the Government’s commitment to reducing bureaucracy, as they call it, was qualified. Given that this involves taxpayers’ and council taxpayers’ money, can the Minister tell me why the Government exclude the public sector in this regard?
A second point I have raised before and on which I am still not clear—perhaps the noble Baroness can help me—is that when I raised the issue of compliance with the principles the Minister’s response was that the legislation to establish the new Surveillance Camera Commissioner limited the commissioner’s role to encouraging compliance and that the legislation provided no enforcement powers even though it was the Government’s legislation. At an annual cost of £250,000, the Government are therefore setting up a commissioner to encourage local authorities and the police to comply with the new regulations, which will not apply to the private sector. However, although there is a statutory duty, there is no way that this commissioner, at a cost of £250,000—a quarter of a million—can enforce the regulations.
When I raised this in Grand Committee, the Minister sought to give me some assurances, but his answers gave me more cause for concern. To my question about enforcement he responded:
“Local authorities and the police will be under a duty to have regard to the code when exercising their functions…When a local authority or police force fails to do so, it will be vulnerable to judicial review for a breach of that statutory duty. The possibility of being subject to such a legal challenge will incentivise local authorities and the police to adhere to that statutory duty”.—[Official Report, 17/7/13; col. GC293.]
There are 12 guiding principles within the code, seven of which are considered not to have any cost. Each one of those places an additional bureaucratic obligation on the police and local authority. Therefore, non-compliance with any of those 12 criteria or principles opens up the possibility of a judicial review, and judicial reviews do not come cheap. This statutory instrument allows for any public sector CCTV installation to be subject to a judicial review. I am not sure if the noble Baroness is aware of this, but local authorities are understandably becoming more risk-averse whenever there is a possibility of legal action or judicial review because they fear the costs. Experience tells us that the threat of a judicial review can lead local authorities to avoid decisions that can lead to a JR, even when they are likely to win, just because of the huge costs that are involved.
The Government themselves recognise this problem. They say they want to reduce the number of judicial reviews. The Justice Secretary, Chris Grayling, claimed that:
“The system is becoming mired in large numbers of applications, many of which are weak or ill-founded, and they are taking up large amounts of judicial time, costing the court system money and can be hugely frustrating for the bodies involved in them”.
The Government’s policy is to reduce the number of judicial reviews, but the Home Office policy is to give 12 grounds on which any CCTV application can be challenged by judicial review. I am really not comfortable with the threat of a JR being the only effective means of enforcement. I fear that the policy may well have the opposite effect to that which the Government intend by reducing the number of CCTV cameras, as councils seek to avoid risk.
We come back to the basic question that was asked in Committee, and I am still not clear on the answer: is this necessary? The impact assessment states that many of these bodies—local authorities and police—are already employing and using those guiding principles. The point was made by the noble Earl, Lord Erroll, who is in his place today, when he said in Committee that,
“many of the issues that do matter in this are covered by the Data Protection Act, for instance accurate databases and things like that. So they are already covered elsewhere. Will having an extra commissioner really make a difference?”.—[Official Report, 17/7/13; col. GC286.]
The noble Lord’s letter to me also refers to the Information Commissioner’s role in CCTV. There is a lack of clarity here. The judicial review only refers to the 12 principles; if there is a role for the Information Commissioner and for judicial review, which could be from either the camera commissioner or a member of the public, could there be a case where there are two actions against the local authority or the police, one via judicial review and one via the Information Commissioner?
I am certainly not against oversight. We support oversight, but I come back to the first point I made, and the point made by ourselves and the noble Earl, Lord Erroll, in Committee, and by the Secondary Legislation Scrutiny Committee: do the benefits justify the costs, or are there other ways in which this can be achieved?
I urge the noble Baroness to take this back and please think again. I am sure that we all want to avoid unnecessary burdens and unintended consequences, but I fear that this order could achieve both.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Baroness, Lady Smith of Basildon. My apologies for using her Twitter moniker in the Chamber; I will avoid doing that again.
During the passage of the Protection of Freedoms Act, Parliament debated and agreed the function of the commissioner and the scope and nature of the CCTV code of practice in so far as it applies only to the police, local authorities and other designated bodies. As we made clear then, the Government believe that the CCTV code will ensure that CCTV is deployed and used transparently, proportionately, and effectively. We want the police and local authorities to use CCTV to help cut crime. During our consultation, we received widespread support for it: 80% of respondents supported it. The Information Commissioner was also positive in his response, as was ACPO.
It might be worth me reading out a brief quote from ACPO’s response to the consultation on this code. ACPO said that the code,
“will help to bring in a consistent approach to dealing with the use of surveillance cameras. The use of twelve guiding principles sets out the Code in a straightforward way, which can be easily understood and implemented. The focus on transparency, access to and the security of images, as well as operational, technical and competency standards, making systems available to the police and the encouragement of the use of surveillance cameras as a forensic process, are all important facets of the proposed Code”.
The Government believe that it is an important step in ensuring the right balance between the rights of the public and the pressing need to fight crime.
The noble Baroness asked why the code covers only public authorities such as the police and local authorities, and some other enforcement agencies that are listed in the order. The list of relevant authorities is set out in the Protection of Freedoms Act, which was debated and approved by Parliament. Therefore, Parliament agreed that the project should begin on a limited basis, effectively covering local authorities and the police. The fact that it is limited in this way does not arise out of this order or the code of practice, but was in the original Act that was passed by Parliament. The code will be mandatory for only a relatively small proportion of CCTV cameras but we believe that it is right and proportionate for others to be encouraged to adopt the code because it is in their interests rather than to be obliged to at this stage.
The noble Baroness asked what proportion of CCTV cameras will be covered by the code. Although it will be small to start with, because it will be limited to the police and local authorities, the Government believe that all cameras operating in the public space owned by public bodies should be used openly, transparently and effectively, in line with the code. The Surveillance Camera Commissioner will review the implementation of the code, including its take-up by private bodies, and report to the Home Secretary and Parliament in 2015. Indeed, we expect the police and local authorities to be able to demonstrate the benefits of the code and to help raise awareness of it among those who would voluntarily adopt it.
The noble Baroness asked about costs. The Government believe that the costs of implementing the code are minimal. As she said, the costs cited in the impact assessment are estimated at £1.6 million per year across 350 local authorities; in other words, about £20,000 per year per local authority and £23,000 per year per police force. These costs are minimal in comparison to the budgets of these bodies. They are also average costs and will vary depending on the size and nature of the locality. The noble Baroness asked about how costs might vary from force to force and authority to authority. I do not have those details at this time but, as the impact assessment makes clear, we have based the costs per authority and per force on an average that has been acknowledged by the LGA.
We think that these modest costs are worth while in terms of the expected benefits that they will bring of better quality images to help investigate crime and bring criminals to justice, and greater public confidence. It might be worth me referring to a recent incident to do with the use of automatic number plate recognition in Royston in order to illustrate the benefits of the code and how the relationship between the Information Commissioner and the new Surveillance Camera Commissioner might work. Earlier this month, the Information Commissioner issued an enforcement notice against Hertfordshire Constabulary and its use of automatic number plate recognition. The ICO has ordered the force to review its use of ANPR cameras around Royston. It says that it has created a ring of steel that means no one can drive their car in or out without a record being kept. Although this predates this code, the Surveillance Camera Code of Practice will provide guidance for the police and others and enable the public to hold them directly to account for the proportionality and effectiveness of ANPR and CCTV. We understand that in this example Hertfordshire Constabulary will be working closely with the ICO to ensure that any future deployment of ANPR in and around Royston is proportionate in meeting a clearly stated and justified purpose.
Baroness Smith of Basildon
The Minister has raised a very interesting point, but I think she clarified herself when she said what is happening in a relationship between the Information Commissioner and the police. That is happening now, before this order comes into force, so is the order necessary?
Baroness Stowell of Beeston
Yes, the order is necessary. The reason I used that example to illustrate the point is that the Information Commissioner retains all his enforcement responsibilities regarding the Data Protection Act, both in respect of ANPR and CCTV. The point I was going to make is that the relationship between the Surveillance Camera Commissioner and the Information Commissioner has been set out in a memorandum of understanding. If there were any issue around enforcement in the use of data protection, which was the example that I gave from Royston, then enforcement would remain the responsibility of the ICO.
The purpose of this code is to go further than enforcement. It is about ensuring that CCTV cameras, which make an important contribution to helping to cut crime, are used in the most effective way. It is about ensuring that the public can have confidence in the way in which cameras are deployed and can see that, in times of reduced budgets and competing priorities, each police force uses this very expensive equipment in the most effective way that it can.
The noble Baroness raised points about enforcement and judicial review. In terms of enforcement, the Information Commissioner retains his responsibility. The code itself is self-regulating. We did not want to bring in this code and introduce additional burdens unnecessarily on local authorities or on police forces. We wanted the code to ensure good practice and that the best use possible was made of CCTV. The Surveillance Camera Commissioner will be required to provide an annual report to the Home Office and that will be laid before Parliament. He will be able, through his transparent way of monitoring performance, to report to the public on how this equipment is being used.
Judicial review will operate in the same way as in any other context. A judicial review can be brought only by an individual who is directly affected by the public authority’s actions or decisions in relation to CCTV or by an interest group representing such individuals. The Protection of Freedoms Act makes no reference to the commissioner initiating legal challenges against public authorities and therefore this will not form part of the commissioner’s function or role.
As I said at the beginning, the purpose of this code is to strike the right balance between protecting the public and upholding civil liberties. We believe that it will help to ensure that the purpose of CCTV is clear to the public and that it will help to deliver the results that they have every right to expect.
Atheists and Humanists: Contribution to Society
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Lord Harrison
That this House takes note of the contribution of atheists and humanists to United Kingdom society.
Baroness Stowell of Beeston
My Lords, as other noble Lords are leaving the Chamber while the handover is going on, it is timely for me to remind your Lordships that the next debate, in the name of the noble Lord, Lord Harrison, is also time-limited. The same number of speakers is listed on this debate as well, so with the exception of the noble Lord, Lord Harrison, the noble Baroness, Lady Royall, and my noble friend Lord Ahmad, all Back-Bench contributions are limited to seven minutes.
Lord Harrison
My Lords, today we speak up on behalf of the silent majority, for those of us who do not attend any place of worship, whether church, mosque or synagogue. It is a silent majority, whose full contribution to British society has perhaps been unsung for too long. In contrast, we find that religious voices are ever more present, and sometimes shrill, in the public square. However, because atheism is a philosophical viewpoint, arrived at individually and personally, we are not given to marching in the street chanting, “What do we want? Atheism! When do we want it? Now!”. As a humanist who senses that religion has neither rhyme nor reason, I believe that we should ensure that our needs and concerns are met and satisfied in that public square, as they are in the private armchair. For too long we have been silent, contemplative hermits in terms of our own cause.
Humanism is a non-religious ethical life stance based on reason, humanity, and a naturalistic view of the universe. As the non-religious proportion of the UK population increases, the contribution of humanists to British society also increases. While not all of those who are atheists would necessarily describe themselves as humanist, nevertheless a great many of those who are non-religious are essentially humanist in outlook. The increase in the proportion of the population which is non-religious is demonstrated not only by the 2011 census results, in which the non-religious element rose from 15% in the 2001 census to 25% in 2011, but also in the more recent British Social Attitudes survey published last year, which found that as many as 46% say that they do not belong to any religion.
Humanism is perhaps the default philosophical position for millions of people in the UK today, and millions of humanists in one way or another in their daily lives improve society by strengthening our democratic freedoms, involving themselves assiduously in charity work, increasing our body of scientific knowledge and enhancing the cultural and creative life of the United Kingdom.
The British Humanist Association is the national charity which works on behalf of non-religious people. Founded in 1896, it has more than 28,000 members and supporters and more than 90 local and special interest affiliates. The BHA campaigns for a secular state and on a range of ethical issues, puts forward the humanist viewpoint in public debate and lobbies the Government and parliamentarians. I am very pleased to see the noble Baroness, Lady Stowell, in her place today, because she will recall that we managed to have a humanist amendment added to the same-sex marriage Bill.
The BHA also has a network of celebrants who conduct non-religious ceremonies which are attended by more than 250,000 people every year. Some BHA members also give up their time to provide pastoral support to non-religious people in hospitals, prisons and universities alongside the chaplaincy teams of those organisations. In my own borough of Camden that silent service of humanists has not percolated through to the NHS, which still believes that those of the non-faith tradition should be served by chaplains of all kinds of faiths.
The BHA campaigns for secularism, the separation of church and state and an end to all religious privileges. The work of humanists and atheists in campaigning for secularism has helped to make the UK a more tolerant, free and equal society. In a secular society, the state does not favour any particular belief system. Members of all religious faiths, as well as those who do not have a religious faith, stand equal before the law. A society in which everyone has equal rights and minorities do not suffer from discrimination is a tolerant and democratic one.
Humanists spent decades campaigning for the abolition of the blasphemy laws, which was finally achieved in 2008. Blasphemy laws place religiously-motivated restrictions on freedom of speech and should have no place in a democratic society. Humanists have had to campaign for personal freedoms in modern society that we now take for granted such as the legalisation of homosexuality, the ability to access contraception and women’s right to access safe abortion facilities. We wish the Church of England well in its ambition finally to have women represented on the Bishops’ Benches.
We campaign for a fully secular state, for the disestablishment of the Church of England and the removal of the Bishops from the House of Lords. We know that there are stirrings within the Anglican Church from people who take the same view. Perhaps it would be helpful to have a more equal distribution of those who profess religious faiths and those who do not—as with the BHA or the National Secular Society—on your Lordships’ Benches.
The BHA also campaigns to end discrimination on the grounds of religion and belief, and it welcomes, in particular, the recent decision by the Girl Guides to drop the reference to God in their membership oath. The BHA also campaigns on ethical issues, such as the right to an assisted death for the permanently incapacitated and incurably suffering. Humanists try to achieve a more cohesive society by campaigning against social division in the education system and, indeed, the social engineering of church schools. We believe that children and young people should be free of religious indoctrination and have the space to develop their own beliefs. We would welcome the church intervening in the clearly odd matter of parents who apply to church schools when they are clearly doing so simply to have access to those schools and not as a profession of faith.
Humanists and atheists are sometimes accused of being intolerant of religious believers and being unwilling to work with them to build a better society; however, we support the Fair Admissions Campaign, which calls for an end to religious discrimination in admissions to state-funded faith schools, and the Accord Coalition. We work with the Christian think tank, Ekklesia, British Muslims for Secular Democracy, the Hindu Academy and Rabbi Jonathan Romain MBE. The BHA also campaigns against the teaching of creationism and in favour of the teaching of evolution. We call for an improved sex and relationships education. Humanists also call for an end to the requirement for collective worship in schools and for the reform of religious education, so that pupils are given the opportunity to explore different religions and non-religious world views, including, of course, humanism. Some BHA members are already working with the Standing Advisory Council on Religious Education and local authorities.
It is often claimed that the religious are more generous and socially engaged than the non-religious. However, research by the Government, published in 2011, shows that the non-religious are just as likely as religious people to participate in civil society. The Citizenship Survey of April 2010 to March 2011 was published by the Department for Communities and Local Government. It looked at civic engagement and formal volunteering in that period and found that there was no statistically significant difference in participation between those with no religion, at 56%, and Christians, at 58%.
Among the BHA’s most significant supporters from the world of science are its president, the physicist, broadcaster and author, Professor Jim Al-Khalili; the biologist and author of The God Delusion, Professor Richard Dawkins, a vice-president; physicist, Professor Brian Cox; geneticist Steve Jones; the former scientific officer to the Government, Professor Sir David King; and science writers such as Simon Singh and Doctor Adam Rutherford. We are all familiar with Francis Crick and the contributions of Bertrand Russell and the novelist EM Forster.
Humanist ceremonies, including weddings, funerals and naming ceremonies, are becoming more and more popular, and the BHA’s trained and accredited celebrants conduct ceremonies that are attended by more than 250,000 people each year. Humanist ceremonies are tailored to the lives of the people involved and are based on shared human values, but with no religious elements. This aspect of the BHA’s work is very important in a society in which a growing proportion of the population is non-religious.
I shall make some closing comments on a number of areas where I believe we humanists can aid society and improve its general workings. We could contribute, for instance, on “Thought for the Day”, on the “Today” programme, from which we are currently excluded. I think that this is an error; we are able, as others are, to provide thoughts for the day. We are told that all other broadcasting is sufficient to absorb that which we may want to say. There are, however, true problems for atheists and humanists that should be properly addressed, knotty problems that we have to confront. I believe that, in fairness, that should happen. I also point to religious broadcasting that is of a better nature, such as the “Sunday” programme, which my wife and I listen to regularly, especially when chaired by the excellent Edward Stourton, who never allows his Roman Catholicism to stand in the way of his forensic journalistic instincts. I was heartened to hear the noble Baroness, Lady Berridge, in a recent “Sunday” appearance, speak up against the persecution of atheists in Indonesia and Pakistan. I was grateful to her for doing so. The noble Baroness has gone further by changing the name of her all-party parliamentary group to reflect beliefs as well as religion.
There are also other ways in which humanists can contribute to the general weal, some of which will help our religious colleagues directly. The chair of the Historic Churches All-Party Group, Frank Dobson, is an avowed atheist. In 2004, I led a debate in your Lordships’ House asking Her Majesty’s Government what contribution they had made to the maintenance of the architectural heritage of England’s churches and their view on combining the function of churches as places of worship with other ways of serving local communities. I give one recent example from Chester, where we in the Labour Party recently selected our prospective parliamentary candidate for the general election in our local arts and craft Church of England, whose bells my wife and I listen to every Sunday and practice Thursday. We may be atheists but we do not see why the church should have all the best buildings. I note that today the most reverend Primate the Archbishop of Canterbury has said that he wants to use the church estate to promote credit unions in churches to oppose payday loans.
I conclude on a sad note and I ask the Minister if he will take this back. The Armed Forces Humanist Association is being prevented from attending the Cenotaph ceremony in November, and I and others have been campaigning for this for a long time. Last week, I received a reply from the noble Lord, Lord Gardiner of Kimble, which tells us that we cannot be represented there. We do not want to lay a wreath or anything like that; we simply want to be there. The noble Lord wrote that there is a very real issue of available space for accommodating any extra participants at the designated place where the ceremony takes place, which could impact on the precision with which the ceremony must successfully operate, despite the fact that the Zoroastrians are represented at that ceremony. Thus spake Zorathustra, but thus quaked the Government when they were asked to represent the whole of British society. I think, hope and believe that this debate illustrates that we, the humanists and atheists, have a very real contribution to make.
Occupational and Personal Pension Schemes (Automatic Enrolment) (Amendment) Regulations 2013
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Baroness Stowell of Beeston
That the Grand Committee do report to the House that it has considered the Occupational and Personal Pension Schemes (Automatic Enrolment) (Amendment) Regulations 2013
Relevant document: 7th Report from the Joint Committee on Statutory Instruments
Baroness Stowell of Beeston
My Lords, I am pleased to introduce this draft instrument which was laid before the House on 1 July. I am satisfied that it is compatible with the European Convention on Human Rights.
Automatic enrolment introduces the biggest change to private pension saving that this country has seen for 100 years. It will result in up to 11 million people starting to save, or saving more, for their retirement, with a contribution from their employer. In fact, data published last week by the Pensions Regulator show that since last July more than 1 million people have been automatically enrolled. Automatic enrolment is transforming our savings culture by encouraging and supporting people to take personal responsibility and save for their future, helping to ensure that they have a more comfortable lifestyle in retirement. It is of vital importance, therefore, that we ensure that people have confidence in the pensions that they are automatically enrolled into and are protected from excessive or inappropriate charges.
The draft regulations before us will introduce a new condition that a scheme providing money purchase benefits must meet to be an automatic enrolment scheme. The condition specifies that the scheme cannot allow an employer to make an agreement with a third party under which that third party is paid from the members’ pension pots. This will effectively ban consultancy charges from schemes used to comply with automatic enrolment. In doing this, we do not want to prevent the normal day-to-day running of pension schemes. Trustees and managers of occupational pension schemes and pension providers have therefore been excluded from the definition of third party. This will mean that they can continue to pay for important services for the efficient running of schemes.
We recognise that a small number of schemes which include consultancy charges were put in place before the Minister for Pensions announced the Government’s intention to legislate on 10 May. Therefore, these regulations will not affect pension schemes where there was a legally enforceable agreement in place between an employer and a third party before 10 May 2013. We intend to consult in the autumn on widening the ban on consultancy charges so that it covers all qualifying schemes. Clause 35 of the Pensions Bill currently before Parliament—it is in the other place at the moment—will enable us to do this. Our direction of travel is clear: consultancy charges do not have a place in qualifying schemes.
The concept of consultancy charges was introduced as part of the Retail Distribution Review carried out by the then Financial Services Authority. The review banned the practice of providers paying commission to advisers for recommending their products. Consultancy charging enables employers to pass on the costs of advice provided to an employer to the members who join the pension scheme. While some of the services to employers can improve the outcome for some members, the primary aim in many situations is to support employer compliance with their automatic enrolment duty. Fundamentally, therefore, there is a misalignment between the interests of the employer and the member. The employer chooses the service and the price is agreed between the employer and the adviser, but the fee is paid by the individual member. That fee is paid regardless of whether they receive any particular benefit other than being automatically enrolled into a workplace pension scheme. There is no one in this arrangement who has the incentive to and is capable of driving down costs and ensuring value for money. The member’s only choice is to accept that they have to pay the consultancy charge to the adviser out of their pension or to opt out of pension saving and forgo the employer contribution. That is why we are bringing forward these regulations today.
Between November 2012 and May of this year, the DWP conducted a thorough review of the emerging interaction between consultancy charging and automatic enrolment. This involved the full range of organisations with an interest in the issue, including pension providers, advice firms, employer representatives, consumer groups and pensions experts. The review found that consultancy charges were likely to be used to pay employer compliance with the automatic enrolment obligation.
Baroness Stowell of Beeston
My Lords, I had just finished explaining why we were bringing forward the regulations and had started to explain the review that the department undertook between November last year and May this year.
The review found that consultancy charges were likely to be used to pay for employer compliance with the automatic enrolment obligation. This has been likened to expecting workers to pay for the steps that their employer takes to ensure compliance with health and safety law.
Over the course of the review, a broad consensus emerged that there was a significant risk of consumer detriment with consultancy charges; that is, individuals paying for a service from which they receive no individual benefit. With this risk came a wider risk to the reputation of pensions more generally at a critical stage in the rollout of automatic enrolment.
The review also found that consultancy charges can have a disproportionately negative impact on people who move jobs regularly, because they might repeatedly have to pay higher “initial” scheme set-up charges. In April, the Work and Pensions Select Committee raised concerns about consultancy charges and the ultimate impact on individuals’ income in retirement. The committee recommended that the Government ban consultancy charges in automatic enrolment schemes without delay.
A number of options were considered during the review, including restricting the use of consultancy charges through setting a cap, imposing decency limits and providing statutory guidelines. Our conclusion was that none of these options would protect consumers sufficiently or quickly enough. Even a low consultancy charge will have a detrimental effect on a member if they do not receive any tangible benefit from the advice that they are paying for. Our approach is the simplest rule to understand and enforce, and sends a clear message that we are protecting consumers.
While employers are free to get advice if they want it, the Government do not believe that the cost of seeking such advice should be passed on to the members of the pension scheme. Let us not forget that the Government have established NEST, a low-cost and simple scheme designed for automatic enrolment compliance, and joining that scheme requires no consultancy advice.
Banning consultancy charges in automatic enrolment schemes, which is essentially the effect of the draft regulations, will increase competition in the advice market. Advisers will compete on a more transparent fee basis and deliver value for money for employers. I therefore commend the regulations to the Committee and beg to move.
Baroness Drake
My Lords, the decision to prohibit consultancy charging for any scheme used for auto-enrolment and charges which arise from an amount paid to a third party under an agreement between a third party and an employer is very welcome, and I am pleased that the Government have taken this decision. The decision recognises the vulnerability of pension savers where they have not chosen the pension product but are automatically enrolled in the employer’s choice of scheme and where who has responsibility for protecting the best interests of the saver in contract-based pension provision is at best uncertain.
It is also welcome that the Government have called for evidence on standards of governance and quality in defined-contribution pension schemes. I hope that this decision on consultancy charging is the first of many by the Government which put the interests of the pension saver centre stage.
It is also important to reflect that consultancy charging was initially allowed by the FCA—previously the FSA—and its subsequent abolition, because it is quite clearly not in the saver’s interest, is compelling confirmation of the need for the two pensions regulators, the Pensions Regulator and the FCA, to co-ordinate very clearly on what is the appropriate framework of protection for pension savers in an auto-enrolment world where one has a mix of both trustee and contract-based pension provision and where, increasingly, the future looks as though it is contract based.
It is important to reiterate a point to which the Minister referred: Parliament having secured broad popular support for automatic enrolment—which is certainly manifest in the preliminary evidence of people not opting out from being auto-enrolled into a pension scheme—cannot afford to fail those millions of people who are allowing themselves to be auto-enrolled by not having a framework of protection that ensures that the interests of the saver are centre stage in any regulatory framework. Public confidence on this issue, once lost, will not be easily regained. This is a framework for auto-enrolment. I suspect that we have one chance at securing a rebuild of private pension saving in this country and we cannot afford to get too much of it wrong. I therefore welcome regulations but encourage the Government to be even bolder in forthcoming challenges.
Lord McKenzie of Luton
My Lords, in thanking the Minister for introducing these regulations, let me make it clear that they have our strong support, as the Committee will have gathered from my noble friend Lady Drake.
At the start of her presentation, the Minister made reference to the progress that has been made with auto-enrolment. That is indeed heartening. I think the figure was more than 1 million people already enrolled—I was not quite sure whether that was gross or net of opt-outs. I understand from my noble friend that, thankfully, the level of opt-outs has been quite small.
It was a particular delight to hear from my noble friend Lady Drake in this short debate because she was there at the heart of the creation of auto-enrolment as one of the three members of the Turner commission. We always endeavour to follow her wise words.
We particularly endorse the analysis which points up the misalignment, which the Minister referred to, between the interests of the primary consumer—the employer—and the end customer—that is, the member. As my honourable friend the shadow Pensions Minister Gregg McClymont has made clear, the workplace pensions market is not made up of fully informed consumers. The inertia that this phenomenon fostered is, in part, to be addressed by auto-enrolment. A lack of informed consumers is not sufficiently balanced by good governance arrangements, particularly for contract-based DC schemes.
We see the issue of the complexity of charging as inextricably tied up with the wider issues of governance, especially for defined contribution schemes. My honourable friend has gone further and challenged whether the Financial Conduct Authority’s regulation offers sufficient safeguards for the workplace pensions market, and has proposed an extension of trust-based governance, a widening of fiduciary obligations and bigger schemes to improve the bargaining power of members. He argues that full disclosure of costs and charges is not a sufficient improvement to the current situation but it is a necessary one. We welcome the call for evidence around some of these matters.
As we have heard, in April 2013 the Work and Pensions Committee covered a number of these issues and made the point, with which we agree, that auto-enrolment will mean that many more people in the UK will be saving for their retirement. But given that most will be auto-enrolled into DC schemes, hence bearing most pension-saving risks themselves, the issue of good governance is of heightened importance. The committee says:
“Decisions made by contract-based scheme providers, and the employers who enrol their employees into them, may not always be made in the best interests of the scheme member. Trust-based schemes generally offer members greater protection, as scheme trustees have a fiduciary responsibility to act in the interests of scheme members”.
The committee also pointed out that:
“A confusing array of costs and charges is applied to pension pots by pension providers … and these costs and charges can have a serious negative impact on an individual’s retirement income”.
My noble friend’s comments about the need to maintain and build on the broad popular support for pensions saving that auto-enrolment has thus far engendered are very important.
Like the Minister, the Work and Pensions Committee was particularly concerned about members bearing consultancy charges. As the committee sets out:
“The provision of pensions advice to employers is currently an unregulated activity”,
and it would seem that the Government have no plans to change this, so tackling consultancy charges, which end up being paid by scheme members, has to be seen in this context. We consider that the Government are right to ban these arrangements rather than seek to ameliorate them by capping or strictures from the regulator. As the Minister has explained, such charges can have a particularly pernicious impact on the low-paid and transitory job holders, as the Explanatory Note makes clear.
I have a few brief questions. In fact, I think the Minister has pre-empted two of them. I am not sure whether that is foresight or I am getting predictable. Have the Government considered the risk of trading down in circumstances where employer contributions would be above the statutory threshold but could be reduced to the statutory threshold, with the savings covering the consultancy charges that would otherwise be on-charged to scheme members? I was going to ask what assessment has been made of the ramifications of the cut-off point where an employer has entered into an agreement before 10 May 2013. Those agreements presumably will run for some time in the future. Can the Minister say something about the nature of these contracts and whether they tend to be short or long term? If they can be terminated by notice, there does not seem to be an obligation on an employer to do that under these arrangements. However, the Minister in her opening remarks said that there seem to be just a few of them, so it does not seem to be a particularly big issue.
The Minister has covered my final question, which was to get an update on auto-enrolment. That is encouraging news. We are thoroughly supportive of the impact of these regulations.
Baroness Stowell of Beeston
My Lords, I first thank the noble Baroness, Lady Drake, and the noble Lord, Lord McKenzie, for their support for these regulations. I am grateful to them for that.
In response to the comments of the noble Baroness, Lady Drake, in particular, I will say a little more about the market study into workplace pensions that the Office of Fair Trading launched in January. The aim of the study is to examine whether DC pensions are set up to deliver the best value for money for savers and to take a forward look at the impact of auto-enrolment. On 11 July, the OFT published an update on its progress. This included several areas it wishes to explore further, including the current level of governance over the performance of some schemes, which the noble Lord, Lord McKenzie, raised; schemes with two-tier charging structures in which deferred members pay higher charges; and schemes that do not have a realistic prospect of reaching sufficient scale to generate value for their members. The OFT is also concerned about the way that charges are currently presented and about charges in older schemes that may not represent value for money.
The Government intend to publish a consultation in the autumn, following the publication of the OFT’s report and recommendations. Our consultation will cover a number of issues including a charge cap, active member discounts and extending the prohibition on consultancy charges to all qualifying schemes. These regulations are a first step in a wider move towards addressing the whole area of consultancy charges and their potential effect.
The noble Baroness, Lady Drake, stressed the importance of the FCA and TPR working together. The regulators have already set out how they will co-ordinate and exchange information. The FCA and TPR will jointly publish a document which sets out how regulation of work-based pensions operates in the autumn. This will better articulate the existing regulatory framework. The FCA is updating its pensions strategy and this will inform its business plan, to be published in the spring of 2014.
The Deputy Chairman of Committees
My feeling is that the noble Baroness wishes to go on a bit longer. If she could finish in 60 seconds—
Baroness Stowell of Beeston
My Lords, I had just completed my response to the points made by the noble Baroness, Lady Drake, about the importance of the FCA and TPR working together.
Perhaps I may turn now to the points made by the noble Lord, Lord McKenzie, about the importance of good governance in automatic enrolment, with which of course I agree. There are various provisions to ensure this. In occupational schemes, the trustee already has a fiduciary duty to act impartially and in the best interests of scheme beneficiaries. There are also some requirements in place for people running personal pension schemes. In particular, the Financial Conduct Authority’s Treating Customers Fairly programme says that customers’ interests should be at the heart of how firms do business. The FCA’s “client’s best interests rule” states that,
“a firm must act honestly, fairly and professionally in accordance with the best interests of its client”.
However, there may not be a body within a personal pension scheme with an identified ongoing responsibility for considering whether the scheme is being run in the members’ interests.
As I mentioned earlier in response to the question put by the noble Baroness, Lady Drake, on prioritising savings, DWP’s call for evidence seeks views on the minimum standard that all schemes must be overseen by a governance body with a duty to act in the members’ interests. We are interested in how this could work in practice, including the decision-making powers that such a body would have, how it would fit into existing government arrangements and the resources that it would need to act effectively in members’ interests.
The noble Lord, Lord McKenzie, asked whether the Government will legislate for greater transparency on charges. We have published guidance on default funds for automatic enrolment schemes, which sets out that a breakdown of charges should be provided, illustrating their effect on outcomes. We welcome the steps taken by the industry to improve transparency and disclosure of charges, and we have powers to legislate for greater disclosure to members, employers or the regulator if necessary. Prior to any further action, consideration should be given to balancing the burden of any further requirements on the industry against their effectiveness in protecting consumers. There are a number of areas which may cause concern in this market, including complexity and charging, financial capability among consumers, and principal-agent issues.
The noble Lord, Lord McKenzie, asked about schemes already in place before 10 May and those that are not captured by these regulations. It is not possible to know with certainty how many were in place then, but as I said earlier, we understand that it is a limited number. Pension providers were reluctant to make new agreements for business when they knew that we were reviewing in this area. We will consult on extending the ban to qualifying schemes in our consultation on charges this autumn.
The noble Lord also asked for further information on the updated numbers of those who are now members of the automatic enrolment scheme. The figure of 1 million that I cited is the gross figure for all those automatically enrolled before any opt-outs. The opt-out seems to be running at a low rate, which is good news.
We have considered these regulations carefully this afternoon. As I have said, I am grateful for the support from noble Lords today. The regulations will provide important protection to millions of new pension savers as automatic enrolment continues to roll out.
Police: Neighbourhood Policing
Baroness Stowell of Beeston Excerpts(10 years, 9 months ago)
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Baroness Smith of Basildon
To ask Her Majesty’s Government what assessment they have made of the finding by Her Majesty’s Inspectorate of Constabulary that neighbourhood policing is at risk of being eroded by budget cuts.
Baroness Stowell of Beeston
My Lords, the Government welcome HMIC’s report, which finds that police forces are rising to the challenge of reduced budgets. Crime is down by more than 10%, victim satisfaction is up and the proportion of police officers on the front line has increased. This Government have introduced a range of new measures to tackle community crimes and have empowered forces to respond to the needs and priorities of local communities. Decisions on how neighbourhood policing teams are resourced and deployed are now for each chief constable and their PCC.
Baroness Smith of Basildon
My Lords, that slightly complacent Answer does not really address the Question I asked. The HMIC said that neighbourhood policing is the cornerstone of British policing, not something that it is simply nice to have. As police forces struggle with a further £2.4 billion of cuts, the remaining police are spending more time on paperwork and investigations and less in the community. The Police Federation fears that this leads to crimes not being prevented or reported. Do the Government value neighbourhood policing? If they do, how will they deal with this problem?
Baroness Stowell of Beeston
My Lords, as I said, neighbourhood policing is indeed very important but it is right that police chiefs, in consultation with their elected PCCs, decide on the priorities for their area. Crime is down and satisfaction is up. Another thing that this Government have done to ensure that the public are able to hold their police forces to account is to give them greater information about the performance of their local police forces so that they can properly assess that performance and hold those police chiefs to account.
Baroness Hamwee
My Lords, does the Minister welcome, as I do, another item in the report—namely, that forces are making greater efforts, as they have been doing over the years, but with variable success, to reduce the amount of patrolling in pairs? Patrols by single officers are more successful, not least because the public are not deterred from approaching an officer, rather than thinking that if there are two officers, they are interrupting a private conversation.
Baroness Stowell of Beeston
My noble friend highlights an important example of how police chiefs are now in a position to prioritise and make decisions in the way that they see best in order to meet the Home Secretary’s strategic goal of cutting crime. The survey shows that the public support some PCSOs patrolling on their own because it leads them to think that they are more approachable than when they are in pairs.
Lord Campbell-Savours
The Minister said that satisfaction is up. Who is saying that?
Baroness Stowell of Beeston
The HMIC report includes a survey of the public, and victim satisfaction is up from 82% in 2010 to 85% in March of this year.
Lord Avebury
My Lords, what increase in the volume of neighbourhood crime does my noble friend think would be attributable to the failure of the Government to implement minimum unit pricing of alcohol?
Baroness Stowell of Beeston
One measure that this Government have introduced is the late-night levy, which comes into force when pubs and clubs decide to stay open beyond midnight. We have taken real steps to address this kind of activity by ensuring that people take responsibility for the decisions they make in their local area that might lead to an increase in consumption and local crime.
Baroness Scotland of Asthal
My Lords, the Minister said that the performance to date has been satisfactory. Indeed, the police and others should be complimented. But will the noble Baroness address the Question she was asked in relation to the future cuts that are anticipated and the fears that have been expressed in the report that the police will not be able to maintain that level of performance in the future?
Baroness Stowell of Beeston
The report identifies neighbourhood policing as an area which needs to be monitored in order to ensure that its importance is maintained. It is important to police forces; there is no suggestion that it is not. The police college is already looking at new and innovative ways to modernise local policing. It is there to ensure that best practice is spread around from force to force. We want to see them using new technology in order to maintain standards in a modern world.
Lord Naseby
Are the Government not to be congratulated on their success so far? For the past 10 to 15 years, all we have heard about is more and more crime requiring more and more policemen. Furthermore, now that we have elected police commissioners working alongside chief constables, is this not an opportunity to make further progress in this challenging area?
Baroness Stowell of Beeston
My noble friend is right. It is worth quoting Her Majesty’s Chief Inspector of Constabulary, who said:
“In these times of austerity and considerable financial challenges, it is to the credit of the police service that so many forces have shown themselves able to protect the front line and make the necessary savings.”
As I said, crime is down.
Lord West of Spithead
My Lords, does the noble Baroness not agree that crime has actually been falling fairly consistently for about the past 14 years? It is a slight conundrum, because one feels that if we had no policemen there would be no crime. Is it not true that there has been this fall?
Baroness Stowell of Beeston
The noble Lord is right. Crime has been falling for several years, but I believe that it was his party which suggested that crime would increase, because of the cuts that were necessary. We have clearly proven the Opposition wrong on that count.
Lord Alderdice
My Lords, there has been some suggestion that one of the reasons for these figures is that increased crime on the internet has not necessarily been detected. Are there any indications from my noble friend that internet crime is being monitored and included in these figures?
Baroness Stowell of Beeston
There is a range of crimes that are coming down, but one of the crimes that is increasing is fraud; my noble friend is right about that. That must be a priority and we must ensure that it is addressed.
Marriage (Same Sex Couples) Bill
Baroness Stowell of Beeston Excerpts(10 years, 10 months ago)
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“Survivor benefits under occupational pension schemes
(1) The Secretary of State must arrange for a review of the following matters relating to occupational pension schemes—
(a) relevant differences in survivor benefits;(b) the costs, and other effects, of securing that relevant differences in survivor benefits are eliminated by the equalisation of survivor benefits.(2) For the purposes of this section, each of the following are relevant differences in survivor benefits—
(a) differences between—(i) same sex survivor benefits, and(ii) opposite sex survivor benefits provided to widows; (b) differences between—(i) same sex survivor benefits, and(ii) opposite sex survivor benefits provided to widowers;(c) differences between—(i) opposite sex survivor benefits provided to widows, and(ii) opposite sex survivor benefits provided to widowers.(3) The review must, in particular, consider these issues—
(a) the extent to which same sex survivor benefits are provided in reliance on paragraph 18 of Schedule 9 to the Equality Act 2010;(b) the extent to which—(i) same sex survivor benefits, and(ii) opposite sex survivor benefits,are calculated by reference to different periods of pensionable service.(4) The arrangements made by the Secretary of State must provide for the person or persons conducting the review to consult such other persons as the Secretary of State considers appropriate.
(5) The Secretary of State must arrange for a report on the outcome of the review to be produced and published before 1 July 2014.
(6) If the Secretary of State, having considered the outcome of the review, thinks that the law of England and Wales and Scotland should be changed for the purpose of eliminating or reducing relevant differences in survivor benefits, the Secretary of State may, by order, make such provision as the Secretary of State considers appropriate for that purpose.
(7) An order under subsection (6) may amend—
(a) England and Wales legislation;(b) Scottish legislation.(8) In this section—
“occupational pension scheme” has the same meaning as in the Pension Schemes Act 1993 (see section 1 of that Act);
“opposite sex survivor benefits” means survivor benefits provided to surviving spouses of marriages of opposite sex couples;
“same sex survivor benefits” means survivor benefits provided to—
(a) surviving civil partners, and(b) surviving spouses of marriages of same sex couples;“survivor benefits” means survivor benefits provided under occupational pension schemes.”
Baroness Stowell of Beeston
My Lords, I will speak also to Amendments 2 to 5, on the subject of occupational pension benefits. I am grateful to my noble friend Lord Lester, the noble Lord, Lord Alli, and the noble Baroness, Lady Royall, for adding their names to this group of amendments.
The Government have listened carefully and understand the concern that has been expressed that same-sex married couples will be in a different position from opposite-sex married couples as regards occupational pension benefits. The effect of the difference in treatment, which is permitted under the exception in Schedule 9 to the Equality Act 2010, is that currently civil partners and, by virtue of the provision made in Schedule 4 to this Bill, people married to someone of the same sex may not benefit from their civil partner or spouse’s pensionable service prior to 2005 in respect of any survivor benefit payable on the death of their civil partner or spouse.
We discussed this issue at some length in Committee and on Report, when we had a full debate on Amendments 84 and 84A, tabled by the noble Lord, Lord Alli. I am grateful to him and other noble Lords for highlighting this important issue and for engaging in constructive discussions during the passage of the Bill, which have led us to bring forward this group of amendments.
I will begin by making clear that we are talking here about which period during which contributions were actually made to a pension scheme will be taken into account when calculating survivor benefits on the death of the pension scheme member. Therefore, this issue does not affect people whose pensionable service began in 2005 or later. For those whose pensionable service began prior to 2005, the concern is that contributions that they have made will not benefit their partner on their death. I should also make clear that if the Government were confident that equalising these benefits was straightforward and sustainable, we would be happy to support a move towards equalisation. But as a matter of principle, and as I have explained previously, successive Governments have avoided imposing retrospective costs on pension schemes, particularly private sector pension schemes, which have not been taken into consideration in their funding assumptions.
It would be irresponsible of any Government to commit themselves to imposing potentially significant costs on businesses and the taxpayer without first undertaking an assessment of all the implications and knock-on effects, and assessing the scale of the costs involved. This group of amendments therefore requires the Government to arrange a review of the differences in survivor benefits in occupational pension schemes between opposite-sex couples and same-sex couples in legal relationships, both marriage and civil partnership. It will look at the issue in the round and will include looking specifically at the effect of eliminating differences in treatment because of sexual orientation in terms of survivor benefits between people married to someone of the opposite sex and people married to someone of the same sex. I can therefore assure the House that the review will include an exploration of the issue which is the focus of the concern of the noble Lord, Lord Alli.
As I have said, we must also look at the full costs and implications of any change. This means looking at the effect of equalisation across the board, because any changes made for one group could have significant wider implications. The review will therefore also consider the differences in treatment between widows and widowers of marriages of opposite-sex couples and the impact of removing the current exception permitting these gender-based differences of treatment provided by Section 67 of the Equality Act. It is important to emphasise, however, that these existing gender-based differences in treatment for widows and widowers in relation to survivor benefits arise from changes that have been made over time as a result of societal change. These longstanding differences reflect the historical fact that in the past many women were not economically active and relied on their husbands for their pension. These differences are therefore not consequences of the measures in the Bill, but it is important that the review considers all the interdependencies between the arrangements for different groups in occupational pension schemes in the round.
It is also important that interested parties are consulted and that all relevant voices are heard. The review will also therefore include consultation with those interested parties that the Secretary of State considers appropriate. This point was raised by my noble friend Lord Higgins. I can assure him and the House that consultation will include, for example, pension scheme trustees and industry bodies, as well as organisations representing the interests of lesbian and gay employees.
Following this comprehensive review, the amendments require the Secretary of State to publish a report of the outcome before 1 July 2014. The amendment also includes an order-making power. This ensures that if on consideration of the outcome of the review the Secretary of State thinks that the law needs to be changed in order to reduce or eliminate differences between survivor benefits, this can be achieved through secondary legislation, subject to the affirmative procedure.
I hope that these amendments reassure the House that we have listened to the strength of feeling on this issue and have responded in good faith with a sensible and measured way forward. The Government’s amendments will ensure that if we were to make any changes to the existing arrangements for differences in survivor benefits we would do so with an understanding of the full implications of such changes and of the potential costs both to schemes and to the taxpayer. I beg to move.
Lord Alli
My Lords, I thank the Minister and my noble friend Lady Royall of Blaisdon for making this amendment possible. I am glad that the Government will re-look at this issue and that if they can they will change the law.
This is also my last opportunity to speak on the Bill. I want to say thank you not just to the Front Benches on both sides of the House but to the House. I have been truly humbled to have been part of the Bill in this place. This week will mark the 15th anniversary of my entry into your Lordships’ House. As a gay man, over those 15 years you have changed my life. You have given me dignity where there was sometimes fear, you have given me hope where there was often darkness and you have given me equality where there was sometimes prejudice. Those who want radically to reform this place come with their plans. Let me say this to them: witness this day; witness this Bill; judge us on the creation of the liberties that we protect and extend.
This is a special place and I am proud to have figured in it. My life and the lives of many others will be better today than they were yesterday, and I thank the House for that.
Baroness Stowell of Beeston
My Lords, I am very grateful to all noble Lords who have spoken in this debate and for their support for these amendments. I will respond to some of the questions that were put by my noble friend Lord Higgins. He asked whether those who are currently excluded from a defined benefit scheme would not get access to such a scheme to a greater advancement than anyone else as a result of this review. I can assure him that that is not the case. The purpose of the review is purely to look at the contributions that people made before 2005. The noble Lord asked about the composition of the review. We will publish terms of reference in due course, and at that time we will be able to offer a little more detail.
As to the role of Her Majesty the Queen and the comments of my noble friend Lady Anelay before I moved Third Reading, I do not have a comprehensive response to that question except to say that that was just a formality that is sometimes necessary on the government Chief Whip’s part before a Bill passes on to the Commons. It is all to do with various, specific interests that Her Majesty may have in a piece of legislation. In no way does it pre-empt proper process or the granting of Royal Assent. It is a pure formality and there is nothing unusual in it.
I will respond more broadly to this debate and to those that we have had on the Bill in your Lordships’ House over the past few weeks. At Second Reading, I urged the House to ensure that the protections that allow the church and other faiths to maintain their legitimate belief that marriage is only between a man and a woman should work properly. I also said that this House should debate and scrutinise whether the Bill protects freedom of speech. Your Lordships have done that, and I am grateful to all who have contributed. Those of us who have supported the Bill in principle, and those who have been concerned about protections for those who did not, have together made this an even better Bill.
While the amendments we have made were all tabled by the Government, they have all been inspired by your Lordships and by the debates we have had in this House or through the work done in its committees, particularly the Delegated Powers and Regulatory Reform Committee. During the passage of the Bill through both Houses, the Government have made 23 substantial amendments, 17 of them while the Bill has been in this House. The most significant include the reviews to which we are committed—on civil partnerships, humanist marriages and the equalisation of survivor benefits for same-sex and opposite-sex married couples—as well as the amendment to the Public Order Act, which is a significant protection for freedom of speech.
We have also made amendments on religious protections, in particular one that clarifies the word “compel” in Clause 2. Religious faiths, notably the Catholic Church and others who are neither the Church of England nor the Church in Wales, and who did not wish to opt in to marrying same-sex couples, wanted us to strengthen further the clause in the Bill that states that a person may not be compelled to conduct a marriage of a same-sex couple. This matter was also debated in the Commons and the movers of the amendment there were defeated by 321 votes to 163. Even though the will of the Commons was clear on this point, the Government said that they remained open-minded and would continue to listen. We did so, and were persuaded to come forward with our own amendment on Report. The Bill is now clearer, and says:
“A person may not be compelled by any means (including by the enforcement of a contract or a statutory or other legal requirement)”.
I was pleased that the noble Lord, Lord Brennan, whom noble Lords will remember was critical of the Bill at Second Reading, commended the amendment, saying that it dealt with concerns about public functions comprehensively. He said:
“I cannot remember seeing in a statute—certainly not in one of this kind—the words ‘by any means’. That is an all-embracing, protective phrase and I commend the Government doubly for such a courageous use of language to achieve one of the protections that they said they wanted to achieve: institutional independence”.—[Official Report, 8/7/13; col. 105.]
Lord Higgins
I am sorry to interrupt, but is it not the case that registrars will effectively be compelled, even if they have conscientious objections, to marry same-sex couples?
Baroness Stowell of Beeston
The amendments to which I am referring concern religious protection. The point that was made during our debate on registrars was that they are public servants, carrying out a public function, and are therefore not in the same position as people of faith as to the requirements if they are conducting a marriage in their own church. They are employed to do a job as public servants.
Our debates have provided evidence to support something else I said at Second Reading. It is possible for us to allow in law something that not everyone agrees with, and to respect our differences of view. In particular, I note the comments of the noble Lord, Lord Rowlands, about the contrast between our debates and those of the past on previous gay rights legislation. I note, too, what the right reverend Prelate the Bishop of Norwich said when he paid tribute to the way in which we have debated the Bill in your Lordships’ House.
“( ) an order under section (Survivor benefits under occupational pension schemes);”
Lord Cormack
I understand that this is the time that one would make a brief contribution on this Motion. I am very sorry to be doing it now in a sense because my noble friend the Minister in effect wound up the proceedings on the Bill when she was answering the amendments. However, I was not to know that she was going to do that. I want to make a very brief speech and congratulate all those who have campaigned for this measure on their success. However, in doing that, I ask them to bear in mind that although this may be a day of unqualified rejoicing for them, many in our country, who by no stretch of the imagination could be called either homophobic or bigoted, are unhappy about this Bill. They are unhappy about it because it changes the structure of society by changing the definition of marriage.
I hope that all those who enter into marriage under its new definition will, indeed, live happily every after, but the sincerity of that wish in no sense prevents my saying to them, “I understand that you feel euphoric today but please have a thought for those who have different views and for the many, not just thousands but millions of people in this country, for whom marriage will always be equated with what remains in this Bill the Christian definition of marriage”. I hope that in recognising that, they will also remember the great Churchillian motto: magnanimity in victory.
Those who support the Bill have won; there is no doubt about that. It would be churlish and ridiculous to pretend otherwise and I, for one, would never do so. I hope that the divisions in our society which I fear will not come to pass. For my part, I will do my best, in whatever way I can, to ensure that they do not. However, if we are to have a society that is not embittered, and bitterness is the most corrosive of all emotions, it is important that both sides of this argument recognise the validity of the other side. The noble Lord, Lord Alli, for whom I have developed a very real regard during these debates, is, indeed, a doughty campaigner and has every right to feel pleased with the result of his campaign. However, I say to him, and through him, “Please remember the millions of decent people for whom this is not a day of rejoicing”.
Lord Framlingham
My Lords, I, too, wanted to make a brief contribution, having sat through all the remaining stages and the Motion that the Bill do now pass. I am one who does not think that it should.
Today has the potential to be deeply sad for this House and for millions of people—children, parents, families, teachers, clergymen—indeed, anyone who believes in the traditional family unit and its fundamental role in the life and cohesion of our country. If this Bill in its present form becomes law, a large number of people with understandable aspirations will be given new freedoms and be made very happy. But surely it must be right and only fair that your Lordships’ House should give some consideration to a much larger number of people, running into millions, whose lives will be less happy and whose concerns and problems will be increased by this legislation.
Have we got the balance right? I think not, particularly as the opportunity to adjust the balance was spurned by the Government’s complete rejection of any meaningful amendments. Happiness won at the expense of other people’s happiness is rarely trouble-free in the long term.
The questions that many are asking are: why now and why the haste? The simple truth is that the coalition Government have colluded with equal love campaigners and the European Court of Human Rights in bringing a case—an appeal—against our country’s long-established and settled position on marriage. There was a suggestion—some would call it a threat—that if legislation were not brought forward by June this year then changes would be forced on us. The House of Lords Library tells me that as legislation is proceeding the case in the European Court of Human Rights will probably not now be pursued. What outrageous, behind-the-scenes arm twisting.
The result is that not one meaningful amendment has been accepted, not because none has been worth while but for the sake of entirely contrived deadlines, which suit campaigners in a hurry and a Government who want it off their plate well before the next general election. How cynical and how dangerous. Given the huge effect the Bill, if passed, will have on millions of people, what an abuse of the parliamentary system to put speed before truth. So many important issues causing great concern have been left unresolved and hanging in the air, such as the effect on teachers, faith schools, the issue of adultery, consummation, the effect on registrars, which has already been referred to, and the use of premises—issues touching the lives of thousands every day, not to mention the effect on marriage itself.
Those of us who have sat through all the stages of the Bill and have watched the Government knock down amendment after amendment have despaired at their intransigence. This House prides itself on being a revising Chamber. On this Bill it has been a bulldozer. We are being used to bulldoze through an ill thought through Bill, the ramifications of which the people have not begun to understand. All great issues are essentially very simple. We make them complicated when we do not want to face them or when we are anxious to hide their true meaning and purpose. This Bill is built entirely on pretence. It pretends that there is no difference between a man and a woman. From this deceit have sprung all the problems we have been wrestling with—problems we have failed to resolve and which will bedevil generations to come. How can we possibly give our blessing to legislation built on pretence?
To those noble Lords who simply voted for this Bill at Second Reading for constitutional reasons, to those who have come to understand during our scrutiny its far-reaching measures, to those who are dismayed at the lack of concern for the worries of millions of people by the rejection of all the amendments, to those who believe that rushed, ill-thought-through legislation is dangerous, and to those noble Lords who prefer scrutiny to bulldozing—I realise that I am asking too much at this late stage—I was going to plead with your Lordships to vote against this Third Reading to defend this House’s integrity and to grant adequate time for Parliament and the people fully to understand what is going on and, I believe, to receive the thanks of millions of people.
Baroness Stowell of Beeston
My Lords, I am very grateful to the noble Baroness, Lady Thornton, for ensuring that everybody got a fair mention in tributes. Having spoken at some length at the end of the previous debate, I shall keep my remarks brief. I am sorry if my remarks then seemed to pre-empt a debate on Bill do now pass, but I was not sure whether there would be a debate on that and felt that there were some important things that I wanted to get on record, which is why I took the opportunity when I did.
I said at Second Reading, and have done so a couple of times since, that we all move at different paces when faced with change. I most certainly respect anyone who has a different view about whether couples of the same sex should be able to marry, and I would never seek to criticise anyone who disagrees with me on this point. I have been pleased to say repeatedly that the belief that marriage should be between only a man and a woman is legitimate; people are free to express that view; and the protections in the Bill ensure that religious freedoms cannot be called into question. That is so important. I am grateful to my noble friends for making the points that they did and for giving me the opportunity to restate that, because I cannot say it too often.
The amendments on which the House divided during the time that the Bill was in this House were not agreed, but I do not agree with my noble friends that no meaningful amendments have been made to the Bill while it has been here. I spoke at some length in responding to the previous debate about the changes that we have made, so I shall not go through them all again in detail. However, as I said, 23 substantial amendments have been made to the Bill—that does not include any consequential amendments. Seventeen of them have been made while the Bill has been in your Lordships’ House. Even though amendments brought by other Peers have not been accepted by this House, the Government have brought forward amendments to the Public Order Act to ensure the protection of freedom of speech. As I have said previously, we have clarified issues around the word “compel”, because we thought that it was possible to do that without introducing any other uncertainty in the Bill or diluting its principle. I am pleased that we were able to do that, and that it was received and accepted so graciously by those who sought those changes.
It is so important to say how much I respect all noble Lords and their views on this Bill. I believe that we have brought forward a Bill that is a force for good and that the change it brings about is right and reflects the change in society. However, there is no question whatever that anybody who disagrees with it should in any way feel that their views have not been properly taken into account during our debates. I said before that I wanted to see that it was possible to put something into law that not everyone agrees with, while respecting our differences of view. I think that this is what we have achieved. On that note, there is probably little more to say, except how grateful I am to all noble Lords for their contribution to the passage of this Bill.
Marriage (Same Sex Couples) Bill
Baroness Stowell of Beeston Excerpts(10 years, 10 months ago)
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Baroness Royall of Blaisdon
My Lords, I have added my name to manuscript Amendment 84A, tabled by my noble friend Lord Alli, because we believe that this is the most sensible course of action at this stage. Like my noble friend, we want to ensure that there is no discrimination in the Bill and that there are not two tiers of marriage. I, too, am extremely grateful to the Minister for managing to arrange a meeting with the Pensions Minister yesterday.
We have always accepted that there would be some direct cost to private pension schemes. However, £18 million, which is the figure often quoted, is a drop in the ocean for schemes worth an estimated £76.4 billion. The Government have asserted that equalising pensions benefits for civil partners and married couples of the same sex after this Bill could leave the public sector liable for costs of up to £3 billion to £4 billion. However, they have been far more reluctant to explain where those costs might come from.
As my noble friend said, the Government have already acted to equalise survivor benefit entitlements for civil partners with those of widowers for public sector and contracted-out schemes. The £3 billion to £4 billion estimate is based on the assumption that the removal of the legal exemption for civil partners will leave the Government being forced to equalise the entitlements of widowers with widows, thus levelling everyone back to 1978. But why they believe this to be a significant risk remains unclear.
The 1978/1988 distinction between widowers and widows was based on the historic position of women as being largely dependent on their husbands for income. Indeed, the courts have only recently upheld this distinction in the case of R v Iain Cockburn and Secretary of State for Health, where the judge ruled that there was an “objective and reasonable justification” for this because there had been, as the Government argued, a progressive realisation of gender equality and the initial rules had been set up to recognise the weaker economic position of widows.
Without the provision within this Bill, female spouses of same-sex marriages would, we presume, simply be treated as widows for the purposes of survivor benefits and male survivors as widowers. But nothing in my noble friend’s Amendment 84 would affect the historic male/female distinction that the courts have so recently upheld. To argue against this on the basis of retrospectivity is also flawed as the Government violated this principle themselves when levelling civil partners back to the entitlements of widowers, as they quite rightly did for public service pensions and contracted-out schemes.
In some sense, it could be said that by creating a different entitlement for widows and widowers of same-sex marriages from those of opposite-sex couples the Government are actually weakening their case against future challenges to widow/widower distinction. However, despite agreeing with my noble friend that the Government’s argument here is extremely tenuous, we want to offer the Government an opportunity to remove this inequality in the most appropriate way, as noble Lords on the Benches opposite have also said, and that is why I have added my name to the manuscript amendment today.
By voting for Amendment 84A, noble Lords will be saying, “We are not happy about the provisions within the Bill as it stands so we are leaving them there in parenthesis, as it were, for now until the Government have come forward with firm proposals for how to deal with this clear inequality”. It is quite clear to us that, one way or another, the Government will have to sort this out. It is better to do this through a process that they can own rather than be forced by the courts to do it later, as undoubtedly they would have to do.
I urge the Minister to accept Amendment 84A. I realise that the Government may well have to come back with tweaks at Third Reading but we want to right this inequality and this is a very fine way forward. It gives the Government some space to reflect, to look, to review and then come back, using the order-making power, to get rid of this inequality. I trust that the Minister will be able to accept this amendment.
Baroness Stowell of Beeston
My Lords, I must first say to my noble friend Lord Elton that I am in charge of many things at the moment, but one thing I am not in charge of is flooding. I would rather not add that to my portfolio for now. Before I respond in detail to the debate, I need to make a correction to the figures previously used by the Government in debates on this issue, about the number of schemes using the Equality Act exception relating to civil partners. The Government had stated that two-thirds of private occupational pension schemes already go further than the 2005 exception. This is incorrect. The correct figure is one-third. However, this does not change the estimated £18 million increase in liabilities that would arise from removing this exception, as that was already based on one-third of schemes.
The pensions system as a whole is full of differences in treatment as a result of changes in society and social attitudes. Such changes are introduced prospectively, so as not to place new unfunded burdens on pension schemes which could not have been taken into consideration in their funding assumptions. The current Equality Act exception, which this Bill also applies to people in same-sex marriages, recognises that pension outcomes in the present always reflect different accruals in the past, and that changes should be forward looking, rather than be retrospective.
Governments of all parties have sought to equalise pensions over time. What they have not done is try to equalise pension outcomes in the present, thereby breaking the link between past accruals and present outcomes. The standard approach is based on the principle that it is not right to impose costs on schemes, meaning they would have to pay out new amounts that were not promised in the past, whatever the exact scale of those costs.
Avoiding imposing retrospective costs on pension schemes is the standard principled approach which has been taken by successive Governments. That is the approach the previous Government took when civil partnerships were introduced in 2005, and when they brought forward the Equality Act in 2010. That is the approach we have taken in this Bill, by aligning the pension position of same-sex married couples with that of civil partners.
This approach means that pension schemes take time to catch up with societal changes, but over time the anomalies reduce and eventually disappear. Making any change to the position set out in the Bill would mean placing retrospective costs on the schemes. The Government understand that the current position is not perfect, but it is based on the principle that we should not seek to impose retrospective costs on private pension schemes—costs that were not planned for when benefits were being accrued.
The noble Lord, Lord Alli, seemed to try to dismiss the arguments that I was going to put forward before I had even had the opportunity to do so, but the Government’s case is quite clear. It is a strong one and I shall go through it properly. The two amendments in this group have different effects, as we have already established. Amendment 84, moved by the noble Lord, Lord Alli, would mean employers having to pay survivor benefits to civil partners in respect of their deceased spouse’s service prior to 2005, when civil partnerships first became possible. This amendment does not meet what I believe the noble Lord is trying to achieve, which is to give parity in provision of survivor benefits between same-sex married couples and opposite-sex married couples.
As well as going against the standard principled approach of avoiding imposing retrospective unfunded burdens, removing the current exception in the Equality Act would potentially lead to a much wider range of discrimination claims against pension schemes. There would be a significant risk of a domino effect, leading to full equalisation of survivor benefits at a significant cost to schemes and the taxpayer. The noble Lord, Lord Alli, said that no public money would be required to make this change. I disagree.
In addition to its impact on private sector schemes, the amendment would also impose a direct cost on public service schemes which would, at least, have to pay survivor benefits to surviving female civil partners based on pre-1988 service. This is because if the amendment were passed, not paying benefits to surviving female civil partners based on pre-1988 service would be discrimination on the basis of sexual orientation. To remove any such discrimination, public sector schemes would have to equalise pension benefits for surviving female civil partners and same-sex married couples with those for widows which are based on accruals from 1978. At the moment, benefits for those female survivors are currently based on accruals from 1988. Therefore, there is an immediate cost to the taxpayer.
Lord Lester of Herne Hill
I may be wrong but is it not the case that there was retrospectivity to give effect to the EU principle of equal pay for equal work?
Baroness Stowell of Beeston
My noble friend introduces a new, very complicated matter and I am struggling with the complicated matters in front of me.
Baroness Stowell of Beeston
I am going to conclude very soon. Would my noble friend allow me to make some final remarks?
Lord Higgins
This seems to be the appropriate point to interrupt the very clear exposition my noble friend is making. I put this case to her: there is a company that had a final salary scheme for existing members and then, later in time, introduced a defined contribution scheme. The people in the defined contribution scheme cannot get all the benefits in the original scheme. None the less, the people under this retrospective legislation would be able to do so. They would be more privileged than the people in the existing defined contribution scheme.
Baroness Stowell of Beeston
That is an interesting point. My understanding of Amendment 84 is that its proposals would only apply to those who are currently in a defined benefit scheme. This is not about introducing the benefits of a defined benefits scheme to those who are only in a defined contribution scheme. I do not think that what my noble friend is suggesting is what is proposed in the noble Lord’s amendment.
As I have tried to explain, any change to the arrangements set out in the Bill would impose costs on the public purse, which would be considerable. The House should therefore be aware that any change to the position set out in the Bill would have a cost to the public purse, so an amendment to the Bill on this issue would infringe the House of Commons’ financial privilege.
Lord Alli
I was with the noble Baroness up to that point. I really think that the Government cannot say that there is a public cost, money coming out of the Treasury, for a section of the Bill marked “Part 6: Occupational Pensions and Survivor Benefits”, at page 36, which is limited to occupational pension schemes only. There is no public money, and the Government cannot say that there is. It is so clear that the House should not be put in a position of believing that public money is being spent on this.
Baroness Stowell of Beeston
I hope that I have been able to explain through my answer so far that there is a cost to the public purse in Amendment 84. Therefore, the amendment would infringe the House of Commons’ financial privilege. I have explained to the House why the Government believe that that is so.
Given the potential uncertainty and scale of these costs, we should be clear about what the implications and costs of the change might be before we make any legislative commitment in this area. I think that we can agree that this debate demonstrates the need for us all to be much better informed about the wider implications of equalising entitlement to survivors’ rights. Some of the points made by my noble friends Lord Higgins and Lady Noakes demonstrate that there are issues which need proper and careful consideration.
All that said, I can see the sense in what the noble Lord, Lord Alli, is trying to achieve via manuscript Amendment 84A that he has tabled today, which includes a review and order-making powers. I am grateful to him for reflecting further following the meeting we had yesterday with the Pensions Minister, my honourable friend Steve Webb.
I am conscious of the strength of feeling that has been expressed in this debate, and have considered the points that have been made very carefully. While I cannot accept the noble Lord’s amendment in its form today, I am willing to take it away and discuss it further with my ministerial colleagues with the firm intention of bringing back a government amendment at Third Reading. I therefore hope that the noble Lord, Lord Alli, will feel that he need not move Amendment 84A today.
Lord Alli
My Lords, I thank the Minister for that answer. Before I move on, I will add a few things. It took eight minutes before all five of my responses were used. I mention that because this is a very complex area—I accept that. However, there is a lot of smoke here. The issue that most concerns me, and the reason why I intervened, is that there is no public money. I say that having looked very deeply into this issue. To those in Committee, I said that I had the honour at the beginning of my career to be the publisher of Pensions magazine, Savings Market and Insurance Age. Therefore, I have spent time understanding the pensions market. The £2 billion to £3 billion to which the Government refer is about taking out the gender discrimination between widows and widowers. Recent judgments have upheld that principle. It has nothing to do with occupational pension schemes.
The second correction that I wanted to make was on the issue about the Civil Partnership Act and why it was put in place. Under the Civil Partnership Act, there is no corresponding civil partnership for straight people, so the read-across between opposite-sex couples and same-sex couples did not apply with civil partnerships. In this instance there is a read-across of a prejudicial treatment of two types of married spouses. That is my concern.
The final issue is that the cost is so minimal—£18 million at the low end and £80 million at the high end. The actuarial assumptions are so hard to make. Actuaries, in my experience, do not build the cost of gay people into their schemes. They do not look at whether someone is straight or gay and discount the rate. Historically, they do not go back and say, “Some gay people will have married because history allowed them to do so or society forced them to do so”. I am fairly sure that the actuarial calculations will remain pretty static. Those are the issues involved.
I thank all noble Lords who have contributed to this debate and given support. In particular, I thank the noble Baroness, Lady Howe of Idlicote, and the noble Lord, Lord Lester of Herne Hill, for adding their support to Amendment 84. I also thank my noble friend Lady Royall of Blaisdon for adding her name and support to Amendment 84A. Of course, I also thank the Minister. We have all been on a huge educational process on pensions; I fear that there may be another week of pensions mania, for which I deeply apologise. I thank her for her response; it is what the House had hoped to hear and I am very pleased with it. On that basis, I beg leave to withdraw Amendment 84.
Baroness Stowell of Beeston
My Lords, in moving Amendment 86, I will speak also to the other government amendments in this group. I am pleased to have this opportunity to talk about a group affected by the Bill who are often overlooked in our debates—that is, those men and women who are transgender. I would like to put on record my thanks to all those who have sent me many e-mails over the past few days.
This Bill will, for the first time, enable couples who wish to remain married when one spouse obtains gender recognition to do so. This is a welcome development for transpeople who have in the past been faced with the difficult choice between obtaining gender recognition or staying in their marriage. Although the Government do not believe that it is justified, I none the less understand that there is a real fear among some transpeople that the Bill will allow their spouse to veto their attempt to get a full gender recognition certificate, if they do not wish to remain married.
I have listened very carefully to the views that have been expressed in Committee and in meetings with noble Lords about this issue. Indeed, I am very grateful to the noble Baronesses, Lady Thornton and Lady Gould, and to my noble friend Lady Barker, who made time to discuss their concerns with me in some depth. Having done so, I am grateful for the opportunity, through Amendments 87 and 88, to make clear that all the non-trans spouse is being asked to give their consent to is whether they wish to remain married if their spouse changes their legal gender.
It is important to explain why this consent is needed, because some people have questioned why the consent of a non-trans spouse is needed in these circumstances. The reason is this: a party to a marriage obtaining gender recognition is a life-changing decision for the applicant and their spouse. The marriage will no longer be contracted between a husband and a wife of the opposite legal gender, which is why it is right that both spouses have the right to agree to a proposal to change the terms of their marriage before the change takes place.
Regardless of the non-trans spouse's view about the future of the marriage, the applicant is still able to get their gender recognition. Transpeople whose spouses do not give their consent to remaining in the marriage will be in the same position as they are now: it will be open to either spouse to commence proceedings to end the marriage before the full gender recognition certificate is issued. I am very pleased to table these amendments, which I hope will put it beyond any doubt that a spouse will never be able to veto a trans applicant’s ability to obtain gender recognition. I hope that these amendments, which make it clear what both parties to the marriage are agreeing to, will allay the concerns that have been expressed. I commend these amendments to the House.
As to Amendments 86, 89 and 133, I said in Committee that the Government have been considering carefully what can be achieved within the scope of this Bill to assist transpeople who made their transition to their acquired gender a long time ago but have not applied for gender recognition up to now because they would have had to end their marriage. The Bill now gives such people the opportunity to obtain gender recognition while remaining married, if their spouse is content for the marriage to continue. However, applicants who made their transition a long time ago may find it difficult to obtain the required medical reports from gender dysphoria specialists.
These amendments will assist such applicants by making the new fast-track procedure available to transpeople who are or were in protected marriages or civil partnerships and who transitioned six years prior to the commencement of these provisions and by reducing the amount of medical evidence they will be required to submit to the gender recognition panel. Such applicants for gender recognition will be required to submit one medical report, either from any medical practitioner, including a GP, or from a registered psychologist who practises in the field of gender dysphoria.
I can assure the House that a great deal of time and consideration has gone into developing these amendments and I hope that they further demonstrate the positive changes the Bill is seeking to make to the lives of married transpeople. I therefore commend them to the House.
Baroness Gould of Potternewton
My Lords, I begin by thanking the Minister for her tolerance and forbearance throughout our discussions on this very complex issue and for taking the time to meet me and the noble Baronesses, Lady Thornton and Lady Barker, to see if it was possible to arrive at a common view. Before looking at how successful our talks were, I want to say, on behalf of the trans community, how much we appreciate the inclusion in the Bill of the clauses that remove anomalies in respect of married transpeople who wish to apply for recognition by removing the requirement for them to be single at the point of gender recognition and so removing the obligation to dissolve their existing marriage or civil partnership. Equally important to the community is the concession on spouses’ survivor pensions, ensuring that no ongoing financial penalties will be incurred should a transperson in an existing marriage gain gender recognition. The Minister has just referred to the fast-track procedure, which is also very much appreciated.
However, there came a little disappointment because we have been unable to resolve the concerns over spousal consent. We appreciate that the amendments that the Minister has outlined clarify the position in respect of married couples and the definition of a statutory declaration of consent. However, in reality, it makes little difference in terms of that consent; the divorced would probably not be en route to registering a civil partnership. It makes little difference for the transperson. It does not really matter if the spouse is going to consent to the marriage or give consent for recognition. The principle thrust of opposition to the schedule remains unchanged.
There was a temptation to try to arrive at a further amendment that might resolve the differences between us, but that would have required a lot of detailed discussion and deliberation. Although I am not wholly happy with what we have in front of us, I suppose that it is, in some ways, a step in the right direction, which I acknowledge. I hope that there may be another opportunity for that discussion to take place and, when it does, I hope that the Minister will again be co-operative, as she has been, in trying to resolve our differences.
This is almost certainly the unfinished business of the Bill. There is no doubt that the transgender community is angry and will continue to be angry until we manage to achieve some resolution of the problem because its members remain concerned that the Bill provides a spousal veto. Therefore, at this stage, I seek the Minister’s assurance that after the Bill becomes law this issue will be considered in post-legislative scrutiny.
Baroness Thornton
My Lords, government Amendments 86, 87, 88, 89 and 133 will provide a fast-track procedure for gender recognition where individuals have been living in the acquired gender for a long period and clarify that the consent of a spouse means consent to the marriage continuing, not consent to gender recognition. There is no doubt that we wholeheartedly welcome these amendments; we would like to put on record our thanks to the Minister and her team for the amount of work that they have put in on this issue.
This is an issue that colleagues in both Houses have been pushing throughout the Bill’s passage, and we have made progress with the Government on pensions and the fast-track procedure. However, as my noble friend Lady Gould has said, consent is a very sensitive issue, and the transgender community has reacted with outrage at the idea that their final recognition through gender recognition certificates should or possibly could be vetoed by their spouse, particularly if they were estranged or if the relationship had broken down.
Like the noble Baroness, Lady Barker, and my noble friend Lady Gould, we think we have made great progress, but this issue is unresolved and a community that has faced enormous discrimination and prejudice is very concerned about it. We need to keep a watching brief on this issue, and we will need to return to it, certainly in post-legislative scrutiny, if not in another Bill that comes along in which we can find some other way of doing it.
Baroness Stowell of Beeston
My Lords, I am grateful to all noble Baronesses who have contributed to this debate, who are the same noble Baronesses who I have met to discuss these matters.
I will be very brief in responding to the points that have been made. The noble Baroness, Lady Gould, raised the question of post-legislative scrutiny. I certainly expect the Bill’s impact to be considered and that the issue of spousal content will be part of that process. That would be a matter of form, so I can give some reassurance in that regard at least.
My noble friend Lady Barker mentioned the fast-track procedure and the length of time. The fast-track procedure reduces the amount of evidence that a transperson must submit to the gender recognition panel. Therefore it saves them from having to obtain new, additional evidence, which may be difficult and time-consuming. It does not affect the length of time from application to the issue of the gender recognition certificate; it is about the process prior to that point.
In concluding, I want to say how grateful I am for the generous remarks that have been made and to remind all noble Lords that the Bill is about allowing same-sex couples to marry. We have allowed transpeople who are already married to stay married. That is an enormously positive step forward, and we should not lose sight of that. However, it is worth pointing out also that because those transpeople are already married, it is essential that both spouses confirm that they want to remain married because their marriage is a legal contract that will change. When we get married—although, as we all know, I am not married. I have been to weddings, even if I have not had one of my own—on our wedding day we take somebody to be either our lawfully wedded wife or our lawfully wedded husband. That is a legal contract between two people. This Bill has enabled us to ensure that if one of those people is transgender and wants to have transgender recognition, they are able to do that and to remain married to the person who they fell in love with and married some years before. That is an important thing that we have been able to make happen. I take on board the points that have been made in the debate, but I am pleased that we are at least able to acknowledge the big step forward that this Bill will allow us to take.
“Marriage according to the usages of belief organisations
(1) The Secretary of State must arrange for a review of—
(a) whether an order under subsection (4) should be made permitting marriages according to the usages of belief organisations to be solemnized on the authority of certificates of a superintendent registrar, and(b) if so, what provision should be included in the order.(2) The arrangements made by the Secretary of State under subsection (1) must provide for the review to include a full public consultation.
(3) The Secretary of State must arrange for a report on the outcome of the review to be produced and published before 1 January 2015.
(4) The Secretary of State may by order make provision for and in connection with permitting marriages according to the usages of belief organisations to be solemnized on the authority of certificates of a superintendent registrar.
(5) An order under subsection (4) may—
(a) amend any England and Wales legislation;(b) make provision for the charging of fees.(6) An order under subsection (4) must provide that no religious service may be used at a marriage which is solemnized in pursuance of the order.
(7) In this section “belief organisation” means an organisation whose principal or sole purpose is the advancement of a system of non-religious beliefs which relate to morality or ethics.”
The Lord Bishop of Chester
My Lords, I did not want to speak again, but given the way in which—
Baroness Stowell of Beeston
As my noble friend pointed out earlier in the day, we are on Report, so the only basis on which we are allowed to speak twice is if we are asking a specific question of the person who is speaking. The right reverend Prelate has already spoken.
The Lord Bishop of Chester
The guideline is that a Member is allowed to explain himself on an important point. That is what the guidelines say, and that is all I wish to do. I want to make it clear that I do not wish to extend civil partnerships as they are now to the sorts of relationships that are in the amendment. Clearly, if family relationships and carer relationships came into civil partnership, it could change the nature of civil partnership. I understand that that would be within the terms of the review.
Marriage (Same Sex Couples) Bill
Baroness Stowell of Beeston Excerpts(10 years, 10 months ago)
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Baroness Royall of Blaisdon
My Lords, I, too, pay huge tribute to the most reverend Primate the Archbishop of Canterbury for what he said in his first speech to the General Synod as head of the church and the Anglican communion about the changing attitude towards gays, the need to fight prejudice against homosexuals and the fact that the church looks, in his words, “out of step”. I am also grateful to him, and the right reverend Prelates the Bishop of Leicester and the Bishop of Ripon and Leeds, for the way in which they have considered the Bill. I have absolutely no doubt that they will ensure that Church of England schools will teach about same-sex marriages in a factual way, without any prejudice, and that they will naturally also teach about their own views of marriage, as is right and proper. I also know that they are absolutely against any opt-outs. I wholeheartedly agree that marriage is a very good thing for society and that it should be celebrated.
I understand the concerns that have been expressed about the pace of change by both the Church of England and the Catholic Church, with which I had an excellent meeting last week, for which I am grateful. It is true that it will take a while for some people to get their heads around same-sex marriage, but they will, and they will be comfortable with it. I have had several conversations over the weekend with people who have in the past expressed concern but have already changed their views. Both the vote and the debates in this House and the speech by the most reverend Primate have had a real impact on those people.
On the issue at hand, we have said throughout our deliberations on the Bill that, in our view, amendments pertaining to teaching and faith schools are not necessary. Teachers are already able to teach according to their religious tenets. That will not change, nor will the ability of faith schools to operate within the tenets of their faith. Some people, while generally accepting that point, say, “Why not give comfort to those who are concerned by putting something in the Bill?”. I understand that the right reverend Prelate is making a legal point. Others, including those on the Bishops’ Bench, want to ensure that the legal and religious definitions of marriage can be taught alongside one another in an appropriate way. I am well aware and grateful that the Bishops do not agree with those who are seeking “protections”.
I also know that the reasoning behind the amendment is to give space for schools of a religious character to stay within the terms of the statutory framework and to reduce the risk of them declining to teach about the changed legal nature of marriage at all. I warmly welcome the fact that the Church of England is clearly determined to pursue this inclusive approach for its own schools and to commend it to others. Indeed, that is exactly what should happen under the Bill as drafted, when it becomes law.
I realise that the Church of England and many in the Catholic Church would not wish to see any return to those dreadful days of prejudice but, as has been said many times, prejudice still exists. I know strong professional men and women who are still hesitant, even unwilling, to come out at work. As we do not believe that this amendment is necessary, and because we do not want to risk the way in which it could be interpreted by those who are intolerant or homophobic, I regret that we cannot support it. However, as other noble Lords have said, I hope that the Minister, while not accepting the amendment, will be able to give the necessary reassurance and clarity to the Bishops—and all Members of this House—and to those of other faiths.
Baroness Stowell of Beeston
My Lords, I, too, pay tribute to the most reverend Primate the Archbishop of Canterbury and to the right reverend Prelate the Bishop of Leicester. I am grateful to the right reverend Prelate for the important statement that he issued after Second Reading and to which he referred.
During the past few months, the Secretary of State, my right honourable friend Maria Miller, and I have enjoyed some very constructive, productive and valuable discussions with both the most reverend Primate and the right reverend Prelate and their officials on a range of matters. Something I valued greatly was having the opportunity to get to know Members on the Bishops’ Benches better than I had done up to that point. Our discussions included their concerns about religious freedom for faith schools, which the right reverend Prelate talked about in moving his amendment, and I am grateful to him for the very careful way that he did so.
In responding to the right reverend Prelate and to all noble Lords who have contributed to this debate, I start by stressing that schools with a religious character provide an excellent education for their pupils, while reflecting their beliefs across the curriculum, including in sex and relationship education. We really value the work that faith schools do and I would like to make it clear that there is absolutely nothing in this Bill that affects the ability of faith schools to continue to do this in the future.
The right reverend Prelate the Bishop of Leicester has explained that there is a specific concern—echoed by other noble Lords who have contributed tonight—that without this amendment a potential conflict could arise between a school’s duty to teach its faith ethos and its responsibilities under Section 403 of the Education Act. I understand the importance of this issue and I can assure noble Lords that the Government have considered it very carefully. Noble Lords will have heard me say on many occasions during the passage of this Bill that we are considering this area, and we have done so with great care. However, we believe that this provision is unnecessary. Clearly, I need to reassure the House on why we have come to that view.
In schools of a religious character, teachers deal admirably with teaching about marriages that may not be recognised as such according to the tenets of the relevant faith—for example, marriages of divorcees or, for some religions, mixed-faith marriages. In order to take account of this distinction, they already interpret their duties under Section 403 of the Education Act according to their religious tenets. Faith schools must take the guidance into account when developing their policy on sex and relationship education and, in doing so, can also take into account other matters, including in particular relevant religious tenets. This is already recognised by the current legal framework.
I will expand a little on this and I will respond specifically to the question put to me by the right reverend Prelate the Bishop of Guildford. “Have regard to” means just that. Having regard to a provision does not mean that it must be followed assiduously should there be a good reason for not doing so. This was made clear in the decision of the Privy Council in Barber v Minister of the Environment in 1997. Faith schools must take the guidance into account when developing their policy on sex and relationship education and, in doing so, can also take into account other matters, including in particular relevant religious tenets. A relevant faith tenet is a perfectly sensible reason in this context and one that the current legal framework recognises.
Baroness Stowell of Beeston
My Lords, I am very grateful to the noble Earl, Lord Listowel, for moving this amendment and for taking the time and trouble to come to have a discussion with me, which I enjoyed very much. I echo what my noble friend Lady Barker said about his commitment to the interests of children and his dedication to that—and how he makes contributions to all our work in the House with that specific goal in mind.
In answering the debate, I wanted to make some specific points to assist all noble Lords and the noble Earl, Lord Listowel, in particular. I wanted to emphasise that the Bill does not change the position for children in families of same-sex couples. The Government believe that the principles of long-term commitment and responsibility, which underpin marriage, are a good basis for providing children with the support and protection that they need throughout their childhood. As the noble Lord, Lord Pannick, has said—and we very much agree with him—extending marriage to same-sex couples will mean that children of those couples will be able to benefit from the stability of a family founded on marriage in the way in which other children benefit. We think that that is a good thing.
The noble Earl, Lord Listowel, and other noble Lords referred to comments that the noble Lord, Lord Winston, made in the debate on Monday on concerns about the ability of same-sex parents to bring up children. Those concerns are effectively not supported by the available evidence; the noble Lord made the point that there was no evidence to support the concern that some might have. Research has shown that there is no negative impact on children’s self-esteem, psychological well-being or social adjustment if they are brought up by same-sex parents. This includes lesbian couples—the noble Earl, Lord Listowel, raised the point about there being no father figure in the family.
It is an obvious point, but important none the less, that when gay couples decide to have a child or children the decision has to be a conscious one. Therefore, it is safe to assume that, having made that decision, they will be very conscious of the needs of that child and would address of all of them. No doubt two lesbian women would ensure there were male role models to play a part in the children’s lives. The noble Earl and I discussed this when we met privately. As I said in the previous debate, I am aware that some people respond to change in different ways. However, it is important to be clear that same-sex couples will approach their decision to become parents as seriously as any other couple; perhaps more so because they have had to make that decision very consciously. The Golombok report, Growing up in a Lesbian Family, which has been referred to, supports this view. There are other reports—all of which seem to have very interesting names—and I am sure if I start trying to say them I will mispronounce them so I will not. However, there are other studies coming out of the US.
The noble Earl referred to a report by Loren Marks in the USA and quoted quite extensively from it. The American Psychological Association took great interest in that paper. It issued a statement saying that, on the basis of a remarkably consistent body of research on lesbian and gay parents and their children, it and other health professional and scientific organisations had concluded that there is no scientific evidence that parenting effectiveness is related to sexual orientation. Lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for their children.
I understand the noble Earl’s request for me to provide some analysis of the available research. I hope he will forgive me but I will be happy to write to him because I do not think that this debate justifies the use of resources to carry out the kind of analysis he has called for. I will ensure that letter is in the Library and I will copy it to my noble friend Lord Elton. I will obviously be interested to receive the letter my noble friend said he will send to me about another issue related to this debate. I hope the noble Earl feels able to withdraw his amendment.
The Earl of Listowel
My Lords, I am grateful to the Minister and to those who have spoken in this debate. I am mindful of the hour so I will be very brief. I still suggest it is very early days in this phenomenon—the noble Baroness, Lady Barker, referred to the difficulties at present with the small number of families in this position. I am very grateful for the care with which the Minister made her response and I look forward to receiving her letter. I beg leave to withdraw the amendment.
“(ab) after the definition of “ecclesiastical district” insert—““England and Wales legislation” has the same meaning as in the Marriage (Same Sex Couples) Act 2013;”.”
““superintendent registrar” means a superintendent registrar of births, deaths and marriages.”
Marriage (Same Sex Couples) Bill
Baroness Stowell of Beeston Excerpts(10 years, 10 months ago)
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Baroness Stowell of Beeston
With the leave of the House, perhaps noble Lords will allow me to speak to my amendment now for the convenience of this debate and respond to any questions raised at the end.
The noble Lords, Lord Lester, Lord Pannick, and the noble Baroness, Lady Thornton, have also put their names to Government’s amendment. I welcome back the noble Baroness, Lady Meacher. I am sorry that she was unable to be here for the debates in Committee. I echo her good wishes for a speedy recovery to my noble friend Lord Garel-Jones who we are sad to be missing this evening.
When I responded to the debate on this issue in Committee, I undertook to have further discussions with colleagues about what the Government could do about the proposals put forward by the noble Lord, Lord Harrison. I recognised the strength of feeling in that debate and am pleased to bring forward on behalf of the Government amendments that provide for a statutory review, including a full public consultation, on whether belief organisations should solemnise marriage and, if so, what such a provision would look like. Crucially, the new clause provides the means to make any future changes by providing an order-making power that may amend any England and Wales legislation, both primary and secondary. In taking this approach, the Government’s amendment reflects the solution proposed by my noble friend Lord Lester in Committee, supported by the noble Lord, Lord Alli, among others. Since then, I have had the opportunity to speak to some Members of your Lordships’ House with an interest in this matter. My officials have also met the British Humanist Association and the noble Baroness, Lady Meacher. I am grateful to all noble Lords who have given up some of their time to engage in discussion with the Government, and to the British Humanist Association for its constructive approach to finding a way forward on this matter.
Perhaps I may say a little more about the government amendments and why they offer the best way forward in resolving this important issue. The arrangements for the review, which will be a statutory requirement, must provide for a full public consultation, and the Secretary of State must arrange for a report on the outcome of the review to be published by 1 January 2015. The new clause gives the Secretary of State power to make provision by order permitting marriages according to the usages of belief organisations. Our amendment defines a belief organisation as an organisation whose principal or sole purpose is the advancement of a system of non-religious beliefs which relate to morality and ethics. I note what the noble Baroness, Lady Meacher, said about the importance of belief organisations and their purpose.
Such an order may amend any England and Wales legislation, both primary and secondary, and may make provision for the charging of fees. The point about fees is a technical one: it merely enables the Registrar General to charge a fee, as she does currently, to cover her costs in administering the service.
An order must provide that no religious service may be used at any marriage solemnised under the provisions of the order. This is because it has been a principle since their introduction that civil marriage ceremonies should be clearly distinct from religious marriage ceremonies. We do not want this review to open up the system by which religious organisations carry out marriages which has been in place for years, and this Bill has been drafted on those foundations. The intention is to maintain the distinction so that no religious elements should be used in a marriage according to the usages of belief organisations. Any order made under this clause will be subject to the affirmative procedure. So, were the Secretary of State to take advantage of the order-making clause, both Houses of Parliament would have an opportunity to debate it and the order would be subject to the affirmative procedure.
Although the Government maintain that this Bill is not the right place to make broader changes to marriage law, as I have said already, it would be wrong not to recognise the strength of feeling in support of the humanists. A statutory consultation as a means to effect any change is the right way forward in responding to the support for humanists, ensuring that the wider public are able to contribute to the debate, and securing that arrangements for belief-based marriages are made on a sound footing and that any implications of them are fully understood.
The noble Baroness, Lady Meacher, referred to what is already in place in Ireland and Scotland. There the law has been changed to allow for humanist and other belief marriages, but they operate a different system to what we have in England and Wales. None the less, in both those countries the changes were subject to extensive dialogue over a period of time with interested parties to develop a solution that fits with their marriage law. It must be right that, if we are to change the law in England and Wales, we should do so only after proper consideration, as it has already been given in Scotland and Ireland, and therefore after a proper public consultation.
In addition to a public consultation, we also need to give consideration to the impact of the changes on the voluntary, private and local government sectors and on religious organisations, although, as the noble Baroness, Lady Meacher, said, we have not received any suggestion from the churches that they object to the amendment we are bringing forward in order to achieve proper consideration. Likewise, consideration must be given to what safeguards may be required and how these should be established and, in particular, how we ensure that the significant legal commitment made through marriage is properly regulated and recorded. Such fundamental public policy changes would normally be subject to these considerations and a review and consultation will allow us to do this.
Furthermore, we need to consider whether there are other belief organisations in addition to humanists which may wish to solemnise marriage, and therefore draw up criteria accordingly. I note what the noble Baroness said about the criteria in the amendment in her name. While we will, of course, have due regard to the proposals put forward by the BHA, we need to make sure that the criteria are set in a way that would allow belief organisations other than the BHA to conduct marriages should they wish to do so.
Let me now respond to some of the specific questions put to me by the noble Baroness. She asked me about commercial organisations. I can confirm that it is not our intention to allow commercial organisations to solemnise marriage. Marriage is an important institution and marriage for profit risks undermining key safeguards—for example, it could increase the instances of forced and sham marriages—if the emphasis is simply on increasing the numbers of couples going down the aisle, as it were, as opposed to undertaking proper checks on the couples. I hope I am able to reassure her on that point. She asked me about taking account of the expertise and experience of the British Humanist Association. I can certainly give her an assurance that we would want to give due weight to the expertise of humanist celebrants during the design of the review and consultation. We will also look carefully at the criteria set out in the amendment tabled by the noble Baroness as part of our work on this.
The noble Baroness sought further assurance about future timings. As I have said already, the clause states that the outcome of the review must be published by 1 January 2015. I stress that this is a final date for publication. I am confident that we will be able to provide a response before that time. Over and above that, it would be premature at this time to give a commitment to implementing the regulations. We must consult openly. Ministers will consider the results of the consultation and will, of course, have regard to the debates in both Houses during the passage of the Bill. It is clear that Ministers will have the power to make these changes. That is power that they do not have now, so the power will be there to make the change.
I am very grateful for the constructive approach that has been taken by all noble Lords with an interest in this matter. I believe that the Government’s proposed approach offers the best way to address this issue. When it comes to the right point on the Marshalled List, I hope to move the amendments then, and I shall commend them to the House. As I say, I will be happy to respond to any further points that are made in debate.
Lord Alli
My Lords, I have added my name to Amendment 7. I have made my strong support for the legalisation of humanist marriages clear and said in Committee that the ball is well and truly in our court. In our discussions in Committee, the noble Lord, Lord Lester of Herne Hill, like the lone ranger, and not for the first time in this Bill, rode over the hill to our rescue and gave us this formulation. I am more than delighted that the Government have tabled the amendment, bearing the names of the noble Lord, Lord Lester of Herne Hill, and my noble friend Lady Thornton. I pay tribute to the noble Baroness, Lady Stowell, for all her efforts in securing the change in policy. I know that she spent many hours negotiating with many different interests, and it is to her credit that we have this amendment.
I also pay tribute to my noble friend on the Front Bench, Lady Thornton. I know that it is a personal mission for her and I believe that many of us in Committee were moved by her interventions on this subject. I hope that my noble friend’s sister is as proud of her today as we are on these Benches. I urge all those who support humanist marriage to support the amendment.
Baroness Thornton
My Lords, I join other noble Lords in congratulating everybody, really. This is one of those occasions. I congratulate the noble Baroness, Lady Meacher, the noble Lord, Lord Garel-Jones, who I hope will be back with us soon, my noble friends Lord Harrison, Lady Massey and Lord Alli, the noble Lord, Lord Lester, and the noble Baroness, Lady Brinton. Of course, I also sincerely congratulate the Minister and the very talented team who worked with her on this. Late on Thursday, when we were trying to get the amendment down, get my name on it and do all the clearances, I was in an LSE governors’ meeting. I texted the Minister to say that I thought we both needed a gin and tonic. I did not get one, but I hope she did.
I also congratulate the British Humanist Association, Andrew Copson its chief executive and his team who consistently jumped through hoops that had been set for them all the way through this process. They have sought all along the line to accommodate all the questions that have been asked. Noble Lords may remember that I said that my children would not be able to be married by a humanist celebrant in this country. I will now have to tell them that if they intend to get married they will probably have to have quite a long engagement. However, this is the House doing its job by doing good.
Baroness Stowell of Beeston
My Lords, I am very grateful to the noble Baroness, Lady Thornton, for reminding the House that I am part of a team. While I am very taken by the kind tributes made by the noble Lord, Lord Harrison, in particular, and the noble Lord, Lord Alli, it is important to stress that we have worked as a team in Government to be able to come forward with this amendment. We are very pleased to do so. I echo all the tributes just made by the noble Baroness, Lady Thornton. If it were possible in Lords-speak, I would say “Right back atcha”, as they might say somewhere else.
If I may, I will respond to some of the serious points that have been made. My noble friend, Lord Lester, is right that we are amending the Long Title of the Bill to ensure that this amendment is properly reflected in what will become an Act. I note his points about that. I also note his point about there being belief organisations and belief organisations, and the need for safeguards. I note the questions of the noble Lord, Lord Anderson, about what people call, in shorthand, sham marriages. I also note what the right reverend Prelate the Bishop of Chester said about various points of detail. All of these contributions have emphasised why this is important, and why we think it is the right approach to have this review and consultation and make sure that all of these matters are properly considered. That is what we will do. As I said earlier to the noble Baroness, Lady Meacher, it is in the Bill that we have to do that before 1 January 2015, so we will certainly make sure that it happens.
Baroness Meacher
My Lords, I must apologise to the House. I should have welcomed the noble Lords, Lord Lester and Lord Pannick, and the noble Baroness, Lady Thornton, for having their names on the Government amendment. I am very grateful to all those who have spoken in this short debate. They have been very coherent and succinct, and quite excellent. I am perhaps particularly grateful to the right reverend Prelate the Bishop of Chester for clarifying the position of the Church of England, and also giving his personal support to the principle behind this amendment. That is very valuable to all of us. I am very grateful to the Minister for her helpful remarks and the assurances that she was able to give us.
I was obviously disappointed that the Minister could not reassure us about the timing of the laying of regulations. I am not at all surprised, but of course it is a disappointment. The Minister will know that all of us, including the noble Lord, Lord Garel-Jones, will be on her tail to ensure that the strength of feeling in this House and the other place is followed through to regulations after the consultation, to ensure that in future humanist marriages will have legal recognition. I say a last thank you to the British Humanist Association, without which I could not have done this. I arrived back from elsewhere and its support for me has been fantastic. I am very willing and happy to withdraw the amendment.
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.
(1) The Secretary of State may by statutory instrument make regulations about—
(a) registration applications relating to other shared places of worship;(b) cancellation applications relating to other shared places of worship;(c) the sharing churches’ use of other shared places of worship (in cases where those places are registered under section 43A) for the solemnization of marriages of same sex couples.(2) The provision that may be made under subsection (1)(a) or (b) includes provision about the procedures to be followed on registration applications or cancellation applications.
(3) In this section “other shared place of worship” means a shared building—
(a) which has been certified as required by law as a place of religious worship, but(b) to which sections 44A and 44B do not apply because the building is neither—(i) subject to a sharing agreement, nor(ii) used as mentioned in section 6(4) of the 1969 Act.”
Baroness Stowell of Beeston
I am grateful to the noble Lord, Lord Dear, for moving Amendment 46. This amendment obviously reflects the concerns he expressed about the potential effect of the Bill on teachers’ ability to express personal views about marriage, their employment rights and how they are expected to approach this topic in class. Noble Lords who have followed the passage of the Bill will know that these issues have been discussed at length in Committee, not only in this House but also in another place.
Before I respond to those three separate issues, I make the point that the way in which some contributions have been made to the debate this evening suggests that we are starting to confuse these three issues. I think it is important to see them as separate points. I start by addressing the point about freedom of expression generally. On this point I can be absolutely clear in response to my noble friend Baroness Barker, who asked about whether anything had changed in this Bill. Teachers are and will continue to be free to express a personal view about marriage or any other matter, provided they do so in a balanced and sensitive way. There is nothing in the Bill which will restrict anyone’s right to express the view that marriage should be between a man and a woman.
Amendment 46, put forward by the noble Lord, Lord Dear, aims to offer additional protections in this regard. This is unnecessary for exactly the same reasons that I spelled out in response to debates earlier this evening. I will not repeat them, but I just signpost for noble Lords Article 9 of the European Convention on Human Rights and the Equality Act 2010. Everything I have said previously applies here. People, including teachers, have the right to believe whatever they wish to believe, and nothing about this is changed.
The noble Lord, Lord Dear, referred to the specific case of a teacher whom he said had been told that it is homophobic to disagree with the belief that same-sex couples should be able to marry. Obviously I do not know the details of that case, but I can be absolutely clear, because of everything that is in the Bill and what we are legislating to bring about, that it is absolutely legitimate to have a belief that marriage should only be between a man and a woman. I can say categorically that, if somebody holds that belief, it is not homophobic.
I move on to how the Bill affects teachers’ employment rights. Like any other employee, teachers are protected from being discriminated against or harassed because of their religion or belief. Discriminating against someone because they hold or express a belief about marriage is unlawful under the Equality Act. I add that the noble Lord’s amendment risks casting doubt on that existing protection by discriminating against a teacher applying for a job in a non-faith school, because his or her belief about marriage would already be unlawful under the Equality Act. The point, which I have made in other debates, is that, if we start being specific on the face of the Bill about such things, we dilute the protections to which teachers, as indeed any other employee, have the right, and we put them at risk.
Subsection (2) of the noble Lord’s amendment would also cast doubt on the ability of teachers in faith schools who are not covered by this provision to express their personal views about marriage in an appropriate way. I am sure that he would agree that such an outcome would be undesirable, and harmful to the ability of teachers in faith schools to present their own views in an appropriate manner and in the broader context of that school’s faith ethos.
The noble Lord, Lord Curry of Kirkharle, referred to the Government’s response to the Joint Committee on Human Rights, and the point it makes about considering an amendment which relates directly to faith schools. I point out to the noble Lord that that is very different to the amendments we are discussing right now. That particular amendment, which the Government refer to in their response to the Joint Committee on Human Rights, is a very specific one, which we will debate on Wednesday. It is not this amendment.
Then we move on to the issue of the requirements and demands on teachers in the classroom and the content of their lessons. First, I must remind the House again that, although I know that this is not just related specifically to sex and relationship education, none the less sex and relationship education is not compulsory for primary schools. It is compulsory only for secondary schools. When the noble Lord referred to particular materials and the effect they may have on younger children, there is no demand or requirement on primary schools to teach sex and relationship education.
No teacher is under any obligation to endorse a particular view of marriage, or would be as a result of the Bill once it is in force. The noble Lord, Lord Dear, quoted me from earlier stages of the Bill. I will repeat myself briefly again because I am afraid there is no other way for me to make this point. I said:
“There is a significant difference between expecting a teacher to explain something and expecting them to endorse it”.
Those are two separate things, and by expecting a teacher to explain something, there is no requirement for them to say that what is the law of the land is something they personally support. They are at liberty to have their own personal views. As I said—and as the noble Baroness, Lady Farrington, made clear in her contribution in Committee and as my noble friend Lord Deben said in his contribution tonight—teachers,
“are required to explain the world around them in a way that is appropriate to the age and level of understanding of their pupils. This includes explaining some things which may be controversial and with which they may not necessarily agree”—
such as divorce and contraception. Teachers,
“are already very experienced in dealing with such issues and do so admirably and professionally”.—[Official Report, 19/6/13; col. 351.]
We would expect them to be able to handle this kind of change in the law as they already have done in the past with changes, for instance, that allowed civil partnerships.
The noble Lord, Lord Dear, referred to some specific material. I make the point to him that the Government do not specify the materials that any school should use to support teaching. The main point I make is that schools are required to maintain a policy on their approach to sex and relationship education and to make that available to parents because it is important that they consult with parents about their approach to education in this context.
The noble Lord, Lord Dear, and my noble friend Lord Eden asked about guidance. The Equality and Human Rights Commission guidance that we have talked about in the context of other debates includes technical guidance for schools in England dealing with the areas of the Equality Act 2010 which deal with the provision of education in schools. That will be reviewed as part of the work that the EHRC has committed to do to review its guidance in the context of this Bill when enacted. We are working with the EHRC to agree the plans and timetable for this work.
I understand the concerns behind the noble Lord’s amendment and the strength of his feeling in this area. I can only reassure him as clearly as I can that the protections are there for teachers in the context of their own employment rights, their own personal beliefs and their ability to express them, and also the requirement for them to teach the law of the land: they are under no obligation to promote or endorse anything that they do not agree with. As we have said at earlier stages in the passage of the Bill, to achieve the kind of tolerance, courtesy and generosity that we all talk about as being so important, it is incumbent upon teachers to be able to explain very clearly that there are many types of families and that same-sex couples will be able to marry in future. We want our children to be able to learn about the whole difference of views that there are in this country so that they can themselves ensure that we have the kind of society that we all feel strongly and passionately about. I hope that on that basis, the noble Lord feels able to withdraw his amendment. If he decides to press it to a Division, I will of course be voting not-Content.
Lord Dear
My Lords, first, I thank the Members of your Lordships' House who have spoken in favour of the amendment. I must say that I am a little confused by the statements made by the Minister.
I beg your Lordships’ indulgence to read very quickly what the amendment sets out. It states that,
“nothing under or in consequence of this Act shall … affect the right of teachers to express their personal views about marriage … or … mean that any teacher will be under any obligation to endorse a particular view of marriage”.
That sets out exactly what the Minister said in Committee. She also said:
“Teachers are and will continue to be free to express their personal views”.—[Official Report, 19/6/13; col. 351.]
That is fine, but 40,000 of them—more than 10% in the ComRes poll, when extrapolated, means 40,000 teachers in this country—have said that they would probably refuse to teach children about same-sex marriage, and 56% have said that they fear that this will lead to teachers being disciplined if they find themselves in that position.
I also beg the indulgence of the House in drawing attention to the fact that I have quoted extensively from John Bowers QC, leading counsel. I repeat:
“If the Marriage Bill becomes law, schools could lawfully discipline a teacher who refused to teach materials endorsing same sex marriage”.
That is from leading counsel eminent in this field. His view has not been challenged by either of the noble Lords, Lord Lester of Herne Hill or Lord Pannick, so I take it—
Baroness Thornton
My Lords, I know that my noble friend is very concerned because cultural change is always difficult and sometimes painful, and I understand that. We have discussed these issues in some detail in Committee. I say to my noble friend that although the safeguards to protect people’s freedom of speech exist, we also have the safeguards under the Equality Act, which is a carefully considered piece of legislation. They set the boundaries and characteristics that allow religion and belief as a protected characteristic, so we have the safeguards that ensure that this amendment is not necessary. As several noble Lords have already said during this debate and in Committee, one cannot legislate against idiots taking silly cases. Although in some of the cases that my noble friends have mentioned people won those vexatious, silly cases, that does not mean that you change the fundamental laws and freedoms that we already have. We will be opposing my noble friend’s amendment.
Baroness Stowell of Beeston
My Lords, I will begin by saying a couple of things to the noble Lord, Lord Anderson. He is absolutely right that we feel very strongly about the need to protect the freedom of speech, which is what we are doing through this legislation. He also talked about this being a serious amendment, and that he wishes the Government to take it seriously. I can assure him that not only do we take this amendment seriously but that we have taken seriously all amendments that have been tabled, both in Committee and on Report, and will continue to do so.
The noble Lord mentioned various examples to illustrate his argument that employees need additional protection. I responded to all of them at various stages of the Bill, so I will not do so again now. However, he said that people feel concerned that once the Bill becomes an Act—and we hope that it will become an Act—they will not be able to maintain what he described as a mainstream view. I understand that concern; however, not only will it be possible for people to maintain and express their belief, we recognise that that belief is a mainstream opinion. We are not trying to say that it is a sidelined opinion—it is an important belief that many people hold, and we would not want to say anything to undermine people who hold that belief, as we respect them.
On the noble Lord’s amendment and its proposal to amend the Employment Act 1996, we are not convinced that it is necessary, or desirable, to provide additional protection for employees in this way who express a belief that marriage should be only between a man and a woman. Discriminating against an employee because of this belief would already be unlawful under the Equality Act, as the noble Baroness, Lady Thornton, said. That existing protection strikes the right balance in providing protection for the employee, while also protecting other employees and customers from discrimination and harassment. It is important to understand that the Equality Act is there to strike a balance. Employers must have the right to ask their staff to do what is necessary to run their business, provided that it is reasonable and lawful. Therefore, if an employer does not think it right that an employee should express personal views on this or any other subject to customers, for example in a restaurant or hotel, he should be able to ensure that his employees perform their jobs in the appropriate way. To be clear, that does not mean that an employee has no right to hold the opinion or belief that they do.
Furthermore, if we are to pick out this particular belief for protection in the Employment Rights Act, what is the justification for stopping there? Other beliefs are equally worthy of protection, including the belief that marriage can be enjoyed equally by same-sex couples. The principle applies to an enormous range of beliefs which are entirely legitimate, although the expression of them might impede the performance of the job in question.
Employees are already protected under discrimination law. The Equality Act already provides comprehensive protection against unlawful discrimination—both direct and indirect—harassment and victimisation. It would be a matter of fact whether conduct of an employer constitutes a detriment and whether it is imposed because of the employee’s belief that marriage should be of one man with one woman. If there is direct discrimination, it would not be capable of justification and would be unlawful.
We believe that these amendments are unnecessary and potentially damaging to the balanced way in which the Equality Act protects people from discrimination and harassment. There is no need for further protection to be added to the Employment Rights Act. I hope, therefore, that the noble Lord feels able to withdraw his amendment.
Lord Anderson of Swansea
I hear the Minister and my noble friend Lady Thornton. I remind them that the law is not being introduced into a vacuum, but into an atmosphere where there is already active hostility to those who hold a traditional view of marriage. There is a very active lobby that would seek to take to court, or bring pressure upon, employers in that respect: that is a fact of life.
My noble friend says that we cannot legislate against idiots—I think that that was her phrase—and, of course, we cannot do that. However, the problem is that if points are raised by individuals against employees or if employers act in a way of which we do not approve, that still raises fears and is still expensive for those who are the object of that.
My noble friend also said that some of those cases have been won. For example, Mr Adrian Smith won a contract action against his employers, thanks to some good legal advice. However, that was a Pyrrhic victory, given that he lost his job. As a result he had minimal compensation; so it is not quite as simple as the Minister has said. I hear her, though I am not wholly convinced by her assurances. In the circumstances, I think that it is appropriate to withdraw the proposed amendment.
Baroness Thornton
My Lords, the noble Lords, Lord Deben and Lord Lester, have put this very well indeed. I would add just one other matter. I find my noble friend’s view of the future rather depressing. I do not believe that people will argue and fight with each other about the existence of same-sex marriage. I simply do not believe that this is what will happen. Apart from the fact that in most cases this is a private matter between two people of the same sex or opposite sex, it is not the kind of issue that will raise the problems that my noble friend has suggested. I hope that, as the Bill moves forward in the next year, my noble friend will start to take a more optimistic view of it.
Baroness Stowell of Beeston
My Lords, I am grateful to all noble Lords who have contributed to this debate. I shall try to avoid repeating myself, because a lot of this amendment would lead me to do so. I will avoid doing that, if the noble Lord, Lord Anderson, will forgive me, and go directly to the central point of his amendment.
My first point is that an employer should have the right to ask his employees to do their job. Equally, he may not impose a requirement on them that would discriminate against them because of their religion or belief. Of course, it is open to private sector employers to make any adjustment they wish for their staff. It is quite possible, and perfectly lawful, for an employer to allow staff not to be involved in any activity that is objectionable to them—if the employer wishes. In this regard, private sector employers are not in the same position as public sector employers. As the noble Lord made clear, he does not include the likes of registrars in this debate in any case.
However, imposing a duty on employers to provide reasonable accommodation in respect of religion or belief would be a new concept in English law, as the noble Lord has already acknowledged, although he mentioned that it was common practice in the US. We would need to consider in detail how that duty would work in conjunction with the rules on indirect discrimination, and whether all other religious and philosophical beliefs should be equally protected—not just the belief that marriage should be of one man with one woman. That is not a task to be undertaken in this Bill, and I note the comments from my noble friends Lord Lester and Lord Deben about their view of this concept.
To pass this amendment would add a new burden on employers, who would have to work out what it means in their own particular context. It is probably worth pointing out that in his evidence to the Joint Committee on Human Rights, Robin Allen QC, on behalf of the Equality and Human Rights Commission, made clear that the existing legal protections contained within employment and equality law would be suitable to deal with any issues that may arise. He advised against including additional safeguards, such as a reasonable accommodation provision in this Bill.
So the current provision in legislation, which prohibits discrimination because of religion or belief, is fit for purpose. To impose a whole new duty of reasonable accommodation in this Bill is unnecessary. It could also be damaging to the balanced way in which the Equality Act operates, create uncertainty and add a new burden on employers who would have to make sense of it. I therefore ask the noble Lord to consider withdrawing his amendment.
Lord Anderson of Swansea
My Lords, if we truly believe in liberty of conscience, we can hardly be against an attempt to ensure that an employer seeks to accommodate, wherever reasonable, the views of an employee. I hear the noble Lord, Lord Deben, who tried to reduce to an absurdity the point that I was trying to make, but does he or does he not believe in the principle of seeking to accommodate, wherever practicable? Clearly, in many firms such an accommodation would not be practicable because of the number of individuals concerned but in the example of a car firm with perhaps 10 drivers, it is surely not unreasonable to ask an employer to ensure that the individual who has expressed such a view is not the one called upon to drive.
The noble Lord, Lord Lester, prayed in aid US precedence during a number of earlier debates on this matter. He quoted Brown v the Board of Education of Topeka. He or someone else mentioned Plessy v Ferguson, the separate but equal case in relation to the railroad. There were a number of other cases to the same effect but the noble Lord is less willing to quote US precedent when it does not happen to suit his purpose. Under the 1964 Civil Rights Act in the US, there is such a provision for reasonable accommodation. It has worked there successfully since that time and I have no reason to doubt that if we were to put such a measure into law today, it would work equally effectively in England and Wales and other common-law jurisdictions.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble and learned Baroness, Lady Butler-Sloss, for introducing her amendment and for ensuring that we are, again, post-watershed. I did not design it this way but, as someone who used to work at the BBC, I am always so much happier when I know that we are compliant with broadcasting regulations.
I will start by addressing one angle that underpins this amendment and the debate associated with it, and that is about fidelity. It was something to which my noble and learned friend Lord Mackay referred. I want to be absolutely clear that the Government recognise the importance that couples, whether opposite-sex or same-sex, attach to fidelity in their relationships. The seriousness and the intention of same-sex couples wishing to make a commitment to each other are no less serious than that of opposite-sex couples. There is no difference in the intensity of the commitment and fidelity is every bit as important for same-sex couples who wish to marry as it is for opposite-sex couples.
The provisions in the Bill do not, in any way, imply that fidelity will be less important in marriages of same-sex couples than it is in marriages of opposite-sex couples. It is important to make that point, not so much in relation to what the noble and learned Baroness said today, but certainly following up on the debate that we had in Committee, and the comments of my noble and learned friend Lord Mackay, lead me to make that clear.
It is important to remember that betrayal in close relationships can, unfortunately, take many forms. A partner can be unfaithful by sharing confidences and not necessarily by sharing a bed. I make that point because I think that the noble and learned Baroness, Lady Butler-Sloss, said in Committee, when she was moving her amendment, that for her the opposite of fidelity was adultery. However, I would argue that the opposite of fidelity is infidelity, and infidelity takes many forms; it is not necessarily about adultery via a sexual act. Her amendment, as we have heard, seeks to create a new fact for divorce to sit alongside the current fact of adultery in the Matrimonial Causes Act 1973. This new fact would apply to sexual activity, similar to adultery, of a married person with someone of the same sex outside the marriage, and it would apply to all marriages, whether of same-sex or opposite-sex couples.
The effect of this definition is not clear as we do not know what sexual acts would be covered by the amendment. That point was made by the noble Lord, Lord Pannick. It is worth reminding ourselves that the definition of adultery that exists in law now took decades to be defined through case law; it was not something that was established overnight. If we are to introduce something called “similar to adultery”, as the noble Lord, Lord Pannick, has said, this lack of clarity would mean that all married couples, whether same-sex or opposite-sex, would not be clear about the grounds on which they could obtain a divorce. Neither same-sex nor opposite-sex couples would benefit from the extended facts to constitute adultery inserted by this amendment.
The provisions of the Bill on adultery provide that the same long-standing definition of adultery, set out in case law, will apply to both opposite-sex and same-sex married couples. I would argue against what my noble friend Lady Berridge and others said, that actually the Bill creates some inequality by keeping the definition as it is. We are not introducing a new inequality; we are continuing as we are now.
Without getting too graphic, the definition of adultery is very specific and relates to a sexual act between a man and a woman which is not physically possible between two men or two women. That act has been established by case law over decades, and because of that, it is not something that can apply to relations between people of the same sex.
I was going to offer some explanation as to how the law on adultery works. Noble Lords have covered this very well in the contributions that have already been made, but if the House will indulge me, I think it is worth being specific about this because after we had the previous debate I talked to one of the policemen as I was leaving the building. He had been very amused by our debate that evening and seemed to think that off the back of it adultery would not necessarily apply any more and that people would not be able to divorce each other on those grounds. I explained to him how adultery works. As he found that so interesting, I thought I might do it for the benefit of noble Lords.
As the law stands, if I was married to George Clooney and he was to have a sexual affair with, say, the noble Baroness, Lady Thornton, that would be adultery. If I was married to George Clooney and Mr Clooney had sexual relations with the noble Lord, Lord Alli, that would not be adultery because he would not be able to do the sexual act which is very specifically defined in law. Should I wish to divorce Mr Clooney on those grounds, I would do so on the grounds of unreasonable behaviour. In future, if the noble Lord, Lord Alli, was to marry Mr Clooney, and Mr Clooney was to have an affair with me—and who would blame him in those circumstances?—that would be adultery and the noble Lord, Lord Alli, should he choose to, would be able to divorce Mr Clooney on those grounds. If the noble Lord, Lord Alli, were married to Mr Clooney and Mr Clooney had an affair with, say, my noble friend Lord Black of Brentwood—
Baroness Stowell of Beeston
That would not be adultery, but the noble Lord, Lord Alli, would be able to divorce Mr Clooney, should he choose to, on the grounds of unreasonable behaviour. The point I am making is that the arrangements relating to how adultery works will remain the same in the future as they are now.
When a marriage breaks down, it is a very serious matter and of huge regret. The number of divorces on the grounds of adultery is falling. The latest figures show that 18% of divorces are on the grounds of adultery. The figure has fallen quite rapidly over the past 10 years. Adultery is not the grounds on which most people seek to divorce one another. We hope that all marriages, whether they are between a couple of opposite sexes or the same sex will continue, and that they will be faithful and remain happy and contented. If that is not the case, we believe that the existing provisions are perfectly adequate for divorce to take place, and I therefore hope that the noble and learned Baroness will feel able to withdraw her amendment.
Baroness Butler-Sloss
I thank all noble Lords for their contributions, particularly the noble Baroness, Lady Berridge, who put very well indeed the points that I put previously and did not put today. The particular point she made was about injustice. As the noble and learned Lord, Lord Mackay of Clashfern, said, inequality comes from this Bill. That is perhaps the most important reason for raising it.
I say to the noble Lord, Lord Deben, that it is not a funny matter, whatever his mother might think. I am talking about a really serious issue, although it was very attractively put by the Minister in her excellent exposition of the existing law, which I could not fault. The fact is that everyone thinks it is rather funny. There is the policeman saying it is rather funny, but we are dealing with a truly serious matter. One of the causes of the breakdown of marriages is the way in which one of the spouses goes off and prefers another person, male or female, to the person to whom he or she is married. That is the basis of the reason that I raised it.
Despite what the Minister and the noble Lord, Lord Pannick, said, no one is ever going to challenge this. All these divorces are undefended. They all go through in three months because almost never is there a defended divorce. I would be astonished if there was a line of case law on this unless somebody took it up, although that is very unlikely.
However, the alternative, which the Minister might just take back, even to the Law Commission, is to ask: as marriage is now for everyone, is it appropriate that we have adultery at all? Would it perhaps be better to have an equality whereby adultery was removed, and all relationships, whatever they may be, were dealt with by irretrievable breakdown of marriage and unreasonable behaviour? However, if adultery is to remain, it remains an inequality and an injustice. Like other noble Lords, I have received the most heartrending letters by e-mail from women who describe how they have been treated by a man who has gone off with somebody—with another man. The purpose of this amendment was to broaden the issue beyond same-sex marriage to heterosexual marriages in which one partner goes away with another man or another woman.
However, it is perfectly obvious, at 12.25 am, on the last amendment of the evening, that I would not put noble Lords through the burden of having an ineffective vote which I could not win, so I beg leave to withdraw the amendment.
Marriage (Same Sex Couples) Bill
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Baroness Stowell of Beeston
That the amendments for the Report stage be marshalled and considered in the following order:
Clauses 1 to 4, Schedule 1, Clauses 5 to 10, Schedule 2, Clause 11, Schedules 3 and 4, Clause 12, Schedule 5, Clause 13, Schedule 6, Clauses 14 and 15, Schedule 7, Clauses 16 to 19.
Marriage (Same Sex Couples) Bill
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Baroness Royall of Blaisdon
My Lords, as my noble friend said, pensions might sound boring but, as the noble Baroness, Lady Barker, said, pensions are extremely important to individuals. They do affect quality of life, so this is a very important amendment.
Liberty, to which I am grateful for its excellent briefing on this issue, is surely right in saying:
“This is an unnecessary and counterproductive anomaly in a Bill which otherwise makes landmark progress in equally respecting the rights of gay people”.
The same has been said from all Benches today.
Naturally, I recognise the anomaly that exists between the treatment of pension rights for married and same-sex civil partners. However, this Bill not only continues that discrimination but it takes forward the same distinction to same-sex married couples: in terms of these pension rights, they would be treated differently from opposite-sex married couples. This uneven treatment would, therefore, be continued. As my noble friend cogently argued, this should be an opportunity to get rid of the current anomaly rather than to extend the discrimination.
I was struck by what I thought was an extraordinary answer from the Secretary of State to the Joint Committee on Human Rights in relation to compatibility with Article 14 of the European Convention on Human Rights on this issue. She said that the reason for treating same-sex-marriage couples as civil partners is that they could have the option either of getting married or of forming a civil partnership—and that the legislation therefore treats them equally.
This is sort of true but it goes against the whole ethos of this Bill. As my noble friend said, arguments which are made against this on the principle of retrospection are misplaced. It is clear that actuaries base forecasts on a wide range of assumptions which are not necessarily proved to be correct. In its report on the Bill, the JCHR also noted: that,
“Depending on the provisions of the scheme, pension rights of same sex spouses may not be the same as pension rights of opposite sex spouses, which may give rise to an issue as to whether this is compatible with Article 14 of the ECHR in conjunction with Article 1 Protocol 1”.
It has already been noted that the Government are currently fighting an appeal against the decision to uphold this view in the case of John Walker. However, if legislation is not amended to take account of the Walker judgment and the reliance on the European Court findings, it is likely that further action will be taken by same-sex married partners. One cannot blame them. They will seek similar redress in the courts to ensure that they, too, can access pension rights in an equal way. That would be regrettable.
Of course, I recognise that resolving this anomaly is not without cost but the real frustration is that we do not have the requisite information to debate the issue with knowledge of its full consequences. When responding to a similar amendment moved in the other place, the Minister, Helen Grant, said that,
“we do not believe that it would be right to put on schemes the significant additional and retrospective financial burdens that would arise from removing the Equality Act exception”.—[Official Report, Commons, 21/5/13; col. 1144.]
However, how significant those burdens are is unclear. The House of Commons Library estimated that the potential additional cost to private contracted-in schemes would be £18 million. That is a significant figure by anyone’s estimates, but when compared with the total value of assets under management in the pensions industry it amounts to just 0.006%—as was pointed out by Mr Mike Freer on Report in the Commons. I accept that for a handful of small employers or charitable schemes this may have a disproportionate impact. However, the Government have accepted that around two-thirds of schemes already treat opposite-sex marriages and civil partnerships equally. I pay tribute to all those organisations, including the Church of England, which do the right thing.
In evidence submitted to the JCHR, the Minister for Sport and Tourism, Hugh Robertson, stated that,
“We estimate that in total the impact on both contracted-in and contracted-out private sector schemes could amount to as much as £90 million. There would be very substantial costs for public service schemes”.
Will the Minister confirm to the House the costs, additional to the £18 million identified and widely accepted, on which £90 million figure is based, and the costs for public service schemes to which the Secretary of State was referring given the 2005 regulations identified by the Commons Library? On these Benches, we believe that the financial impact of the amendment would be relatively insignificant. However, the Secretary of State is quite clear that there would be a cost. Therefore, I echo the calls from around the Chamber and from the JCHR for the Minister to publish the full evidence on which the Government based their assessment as soon as possible so that we might approach Report armed with the fullest possible view of the consequences of this amendment—an amendment which I fully support.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Lord, Lord Alli, and all others who contributed to this debate. I understand the strength of feeling behind this amendment and the speeches that have been made. Anticipating this debate, I decided to speak directly to the Pensions Ministers today and so was able to come properly armed with full information.
First, and as I have said in other contexts and in our other debates on the Bill, in making it possible for same-sex couples to marry we have sought to build on existing legislation and not amend the structure of marriage law. The point is that we focused on allowing same-sex couples to marry. In the context of pensions, we are following what already exists for civil partnerships, as has been referred to by several noble Lords in the debate. The introduction of civil partnerships was, as we have acknowledged several times over the last few weeks, a fundamental change in our society. It was a huge step forward. The Act was complex and covered a wide range of different issues. The Labour Government at the time decided to provide this exception for defined benefit pension schemes which are not contracted-out of the state second pension. They clearly did so for a principled reason: Governments do not generally make changes to pension schemes retrospectively. That is the general approach that is taken. That decision was made in 2005 during the passage of that Bill. The noble Lord, Lord Alli, referred to the Equality Act 2010 and suggested that it had then been open to this Government to remove the exception. It is worth reminding the noble Lord and the House that the Equality Act was passed under the previous Government. It was not a Bill that we were still debating and deciding after the election—it predated this Government.
Baroness Thornton
My Lords, I congratulate the Government on meeting two out of the three issues that the Bill has raised for transgender people, and doing so in a sensible and calm fashion. The only outstanding issue left is the proposal being tested here—that same-sex marriage legislation gives spouses the power of veto over whether a transgender partner can have legal recognition of a change of gender. The noble Baroness, Lady Barker, my noble friend Lady Gould and the noble and learned Baroness, Lady Butler-Sloss, have explained the issues perfectly well. I do not think they are complex; they are very straightforward. This is an unfairness and injustice that needs to be balanced out and dealt with in the Bill.
It is an irony and a great shame that, when enacted, the Bill will affect the human rights of transgender people and take them backwards in the UK. I do not think that is the Government’s intention, and I am sure that it is not the intention of the Minister. From these Benches, we think it is important to resolve this issue, which affects a minority of people but, as the noble and learned Baroness, Lady Butler-Sloss, said, can have a very painful and lifelong effect. The Government need to address it. I hope that between now and Report, we will be able to resolve the issue.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble friend Lady Barker for introducing this group of amendments and also to all who have spoken in the debate today. It is an incredibly sensitive issue, and I am mindful of that in responding. The noble Baroness, Lady Gould, made a powerful speech and I want her to know that I was listening carefully to her arguments. The Gender Recognition Panel has been consulted throughout as we have been drafting the Bill and it has not raised any concerns or matter that we have not been able to address.
Before I get to the detail of the amendments, let me be clear from the start—in a way it is a response to a point made by the noble Baroness, Lady Thornton—that our concern in the Bill has been to ensure that as many couples as possible are able to stay married if they wish to do so following one or both spouses obtaining gender recognition. We are proud to make that possible in the Bill and it is something that we very much support.
The provisions in the Bill allow the spouse of a transperson to agree and consent to their marriage continuing as a same-sex marriage after gender recognition. It is not a block or a veto; they cannot prevent their spouse obtaining gender recognition. It is important that I make that point. I will explain in a little bit more detail, but nobody is able to stop anybody getting their gender recognition certificate—of that I can be very clear.
The Bill seeks to strike a fair balance between the Article 8 rights to respect for the private and family life of both spouses. The trans spouse has a right to be granted their gender recognition without unnecessary delay, but the non-trans spouse also has a right to have a say in the future of their marriage following their spouse gaining gender recognition. We have, during the passage of the Bill, listened carefully to interested stakeholders from the trans community. I have been glad to meet some representatives with my honourable friend Helen Grant, the Minister from another place. I am grateful to those who have been involved in the preparation of these amendments, and for the time and effort that have gone into them because I know that has been considerable.
I will turn specifically to what the amendments seek to do. The first aspect is the limit of six months in proposed new subsection (3A), relating to both spouses’ power to initiate annulment proceedings following the issue of an interim gender recognition certificate. The point is that there should be a limit of six months for annulment proceedings to start. In response to a point made by my noble friend Lady Barker and the noble and learned Baroness, Lady Butler-Sloss, I want to make it clear that if a spouse refused to commence annulment proceedings, the trans spouse would be able to do so. In the Bill as it stands, either spouse in the marriage is able to start annulment proceedings. It is not just in the hands of one spouse.
In terms of the second time limit of 12 months in proposed new subsection (3A), once annulment proceedings have been commenced, it is for the court to bring the marriage to an end and, upon that occurring, to issue a full gender recognition certificate to the applicant. To require the Gender Recognition Panel to issue a gender recognition certificate while court proceedings are ongoing would be to require the panel to usurp the functions of a superior court. Where one spouse is deliberately delaying the annulment process, the courts already have the power to deal with this. I will be absolutely clear: either spouse is able to bring forward annulment proceedings and once they start, they are in the hands of the court. Most annulment proceedings take three months—or, from the very outset, six months I think—but it is the court that will ensure that they continue in line with the proper process.
There is another element to the amendments, which I am not sure my noble friend covered in her introductory remarks, but to which I will respond. Proposed new subsection (3B) relates to civil partnerships. The Government do not believe that removing the right of spouses to have a say in the future of their marriage following conversion and gender recognition strikes the proper balance between the rights of both spouses. The agreement of a non-trans civil partner to the conversion of their civil partnership to a same-sex marriage is one thing—it is not the same as their agreement to the resulting marriage continuing as an opposite-sex marriage following their spouse’s gender recognition.
That covers the situation where a couple are already in a civil partnership and one of them has gender reassignment. If the non-trans spouse agrees to transfer the civil partnership to a marriage, to allow their certificate to continue, that is not the same as the non-trans spouse agreeing at the same time that they want to continue to be married to somebody who would then be of the opposite sex but who was of the same sex when they first entered into a civil partnership.
The Government and I are always prepared to listen and to take great care in responding to points raised in debate. It is probably worth mentioning that we have already made an amendment to the Bill to protect the pension rights of transpeople who receive a gender recognition certificate and are then in a same-sex marriage, so that they retain the same rights as if they were married to somebody of the opposite sex. Following the debate in the other place on the fast-track procedure, we have been considering this carefully, and I hope very much to bring forward something positive in that area on Report.
The noble and learned Baroness, Lady Butler-Sloss, and other noble Lords asked whether a spouse is currently notified at the point of application. Under current rules, a spouse is not notified of her trans partner’s gender recognition application. This is because the marriage must be annulled before a full gender recognition certificate can be issued. The process, as it stands, requires somebody to have annulled their marriage before it is possible to get a full gender recognition certificate. However, I have only just been made aware of that issue and would like to follow up with a letter to the noble and learned Baroness, to my noble friend and to other noble Lords to explain the point in more detail.
I regret that I am not able to accept the amendment, but I hope I was able to give noble Lords the assurance they quite rightly seek. This is not about anybody having more control than the other person over the future of their marriage; it is about ensuring that there is an equal share and balance of rights between the two parties, and that it certainly is not just one spouse who has the right to annul the marriage.
Baroness Thornton
I do not think the noble Baroness has actually addressed the issue of one spouse having the right of veto. I think that is very important. Spousal vetoes are spousal consents, which we got rid of in this country many years ago. A husband actually had to consent to his wife divorcing him, for example. I ask the noble Baroness to look at this most carefully. At the moment the Bill is in danger of reintroducing into British law a new matter—the right of one spouse to veto the actions of another—which we got rid of many years ago.
Baroness Stowell of Beeston
I hoped that I had responded to that, because we are clear that one spouse is not vetoing somebody else’s rights. If the transperson in the marriage wants to go for full gender recognition and receive the certificate, they are absolutely entitled to do that. However, if the person to whom they are married does not want to remain married to them, then they have to make a decision about the future of their marriage. We argue that for the non-transperson, whether they wish to remain married to somebody who has gone through gender reassignment is quite a fundamental thing to have to consider. This is not saying that somebody who wants to reassign their gender is not able to do so. The issue is whether they are able to remain in the same marriage. The person to whom they are married also has some right to decide whether they want to remain married to somebody after that person has changed their gender.
Baroness Thornton
The point here is whether the effect of this is that the transperson cannot complete their transition. That is the point the Minister is not answering.
Baroness Stowell of Beeston
Forgive me, but I think I am. I am saying that if someone wants to go ahead with gender reassignment and their spouse does not agree to remain married to them, then it is open to them to start annulment proceedings, as indeed it is to the spouse who no longer wishes to remain married to them. Both of them have the right to start an annulment proceeding, and the person who wishes to change their gender and receive a full certificate can do that. It is not about them being unable to change their gender. They have the right to do that, and nobody is stopping them doing that. However, if the person to whom they are married does not wish to remain married, sadly they have to make a choice. They have to decide, and it must be their choice. It is not a choice that the state can make for them.
This is an incredibly difficult situation, as has been made clear in the course of this debate. Fundamentally, it concerns the decision of two people about their future. Each person has equal rights in the future of their marriage, but they must decide for themselves. These amendments seek to institute a time limit after which the state decides for them. It is not for the state to decide who people should be married to.
Baroness Butler-Sloss
I would like to ask the Minister about notification. Clearly, nothing can happen until the interim certificate is provided. I understand that at the moment it is possible for the spouse not to know anything about the gender reassignment application. The sooner the other spouse knows about it the better, because mediation may be required. One does not want the parties to be in dispute, if possible. The shock to the person who finds that, for instance, her husband is no longer going to be her husband is enormous. The quicker she knows about it the better, in order to help finish the marriage decently and quietly. I understood the Minister to say that this could not be done because other proceedings had to come first. I am asking only for notification at the earliest possible stage that an application is being made. There can be nothing wrong with that, because it will do nothing other than make it certain that both spouses know what is going on.
Baroness Thornton
We are talking here about a balance of rights. I think that I would like guidance, which I would be happy to take in writing or in a meeting. The objections of either spouse might be based on religious conviction, for example, although other objections are possible, too. Equalities cases such as those of Ladele have shown that Article 9 rights need to be balanced with other rights. In this scenario, are the Government explicitly placing someone’s Article 9 rights above their partner’s Article 8 rights? I am not asking the Minister to respond to that question now, but I would like that to be part of this discussion.
Baroness Stowell of Beeston
I certainly accept the noble Baroness’s invitation to respond to her on that point either in a meeting or in writing. However, I can say quite clearly that the rights at issue here are only Article 8 rights; that is, each party’s right to a private family life. I shall of course respond in detail to that.
On the point raised by the noble and learned Baroness, Lady Butler-Sloss, under current rules a spouse is not notified of her trans spouse’s gender recognition application because the marriage must be annulled before a full gender recognition certificate can be issued. In order for somebody to obtain the certificate, they would already have had to deal with the issue of their own marriage, because it is not possible in current law for two people of the same sex to be married.
I take the point that the noble and learned Baroness made about there being a need for spouses to be notified of changes sooner rather than later. Clearly, if the relationship still exists, there will in most cases be a physical awareness of the change. However, since the noble and learned Baroness has raised a serious point, as has my noble friend, I should like to consult my colleagues on it and follow it up in writing.
Baroness Barker
My Lords, I thank everybody who has taken part in what has appeared at times to be a very technical debate. There are veterans in this Chamber of the Gender Recognition Act and they will understand that, although this is a technical subject, it is also a very human one. I thank the Minister for the way in which she answered the questions which were put to her, for she deserves enormous credit.
I did not take part in debates on the Gender Recognition Act, but I know that the rights of the person making the transition were very much to the fore at the time. Therefore, matters such as notification of their spouse were perhaps not as problematic as they seem now. I absolutely take the point made by the noble Baroness, Lady Stowell, that this not about preventing anybody making a transition but about trying to add to the tools that a couple has at its disposal to sort out their relationship. It is about enabling people to address issues at an earlier stage than they have done in the past. It is also about not allowing proceedings to drag on.
We are now several years on from the passage of the Gender Recognition Act, so we are now beginning to see people coming to us with experience of it, including some who have found themselves in this position. At the end of the day, these are families, quite often with children involved, and it is important that when there is a bitter and difficult situation it can be addressed as swiftly as possible. Perhaps these are situations in which it is never possible for everybody to be happy, but enabling matters to be resolved more quickly is beneficial for all in the end. I beg leave to withdraw the amendment.
Baroness Royall of Blaisdon
My Lords, I am here as somebody who celebrates marriage and values the ethos of church schools, but I am also a very strong supporter of same-sex marriage. I have listened carefully to noble Lords’ concerns but I am not persuaded of the need for this amendment. Like the Secretary of State, I would not support a Bill that encroached on religious freedom or on freedom of speech, but this Bill does not do that.
I apologise for not having been here last Wednesday evening. However, of course I read Hansard, and many points similar to those made in the debate last week were made today about teachers. As was said on Wednesday it is clear that teachers will be under a legal duty to teach the fact of the law of the land—that yes, gay couples will be able to get married. However, those selfsame teachers in faith schools will also be able to express their personal views or those of their faith about marriage. Noble Lords have cited the present guidance, which is extremely well balanced.
I was very struck by a speech given by the right reverend Prelate the Bishop of Norwich in the Public Bill Committee on 12 February. I will quote a section of what he said:
“Our own view is that the promotion of marriage is part of sex and relationship education. What Church of England schools are good at doing, because the vast majority of them are community schools, is integrating the convictions of the Church of England with a recognition that the Christian opinions held in that school are not totally recognised within the whole of wider society … There is a balance to be struck, and I think that the Secretary of State for Education was right to say that in teaching there will need to be a recognition that we have a society in which same-sex marriages—assuming the Bill goes through—are possible, and of course the teacher would also indicate why it is that within the majority of Christian traditions such marriages are not celebrated”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 12/2/13; col. 26.]
That right reverend Prelate had it about right.
I noted, as did the noble Baroness, Lady O’Loan, that in the other place the Minister, Mr Hugh Robertson, undertook to take this issue away and discuss it further with religious groups. I very much look forward to hearing what he will have to say.
Baroness Stowell of Beeston
My Lords, this has been a wide-ranging debate. I am very grateful to the right reverend Prelate the Bishop of Ripon and Leeds, for his introduction of his amendment and for quoting what I said on Second Reading about this Bill being as much about promoting religious freedom as it is about allowing same-sex couples to marry. He was absolutely right about that. I am pleased that he was clear that his amendment is about religious freedom of faith schools. He sought to explain that this particular issue is quite different from the earlier education matters we discussed last week, which focused on the general freedom of any teacher to express a personal view rather than on the teaching of sex and relationship education in religious schools specifically. In responding to this debate, I will repeat several points that I made last week, not least because as the debate has unfolded it has become clear that the way in which the House considers this issue is very much to do with education in a wider context than just about the very narrow issue of religious freedom.
Noble Lords and others have expressed a concern that schools’ freedom to teach their beliefs about marriage according to their religious tenets will be threatened by the effect that Clause 11 will have on the meaning of “marriage” in Section 403 of the Education Act 1996 and guidance made under it by the Secretary of State, to which schools must have regard. As has already been noted, the Government have received representations from religious groups, in particular the Church of England and the Catholic Bishops’ Conference of England and Wales, expressing concern that Clause 11 might affect the ability of faith schools to continue to teach about the importance of marriage for family life and the bringing up of children in line with their religious tenets. This concern was echoed by Muslim leaders in their public letter of 18 May.
The noble Lord, Lord Alli, was the first to raise a point about the origination of Section 403. It is worth saying that it was not in a piece of legislation originally in the 1996 Act. Section 403(1A) was inserted by the Learning and Skills Act 2000. I will begin by explaining that schools with a religious character provide an excellent education for their pupils while reflecting their beliefs across the curriculum, including in sex and relationship education. There is absolutely nothing in this legislation that affects schools’ ability to continue to do this in future.
In schools of a religious character, teachers already deal admirably with teaching about marriages which may not be recognised as such according to the tenets of the relevant faith—for example, marriages of divorcees, or mixed-faith marriages. Last week the noble Baroness, Lady Farrington, gave us a great example of how teachers deal with sensitive matters. The noble Baroness, Lady Richardson of Calow, reminded us that it is important that teachers must be conscious of pupils whose parents are of the same sex and married when teaching about marriage in the context of sex and relationship education. My noble friend Lord Baker also made a similar point. However, my noble friend Lord Eden reminded us of the rights of parents who are concerned about sex education and its content. I responded to his concern last week in the debate about the policies that are in place to ensure that schools properly consult parents on the content of sex and relationship education.
Last week I forgot to make a point, which is worth making in the context of this debate, that sex and relationship education is compulsory in maintained secondary schools. Primary schools are not required to teach sex and relationship education, further than anything specific in the curriculum for science. It is important that I make that point, because it is sometimes forgotten.
In order for teachers to handle the very sensitive situations in which they often find themselves, they already interpret the Secretary of State’s guidance according to their religious tenets. This will be no different when marriage is extended to same-sex couples by this Bill. If the tenets of a particular religion do not recognise same-sex marriage, they will be able to approach teaching about marriage in exactly the same professional way that they do now. Although teaching will of course need to cover the factual position that marriage under the law of England and Wales can be between both opposite-sex and same-sex couples, faith schools will also be able to explain the relevant tenets of their religion on this matter.
I think it was the exchange between the noble Baroness, Lady O’Loan, and my noble friends Lord Phillips of Sudbury and Lord Elton, about the Secretary of State ensuring that teaching about marriage is given in accordance with religious tenets. It is important for me to make the point that I fully understand the intentions of the right reverend Prelate in the amendment that he has put forward, but I am sure that he and other noble Lords will agree that it is not appropriate for the Secretary of State to issue guidance to secure adherence to religious doctrine in teaching. This would amount to inappropriate interference by the state in matters properly for the relevant religious denomination. How faith schools approach such teaching is quite rightly a matter for the schools and faiths themselves.
While I think it is broadly acknowledged that the Secretary of State’s current guidance does not impinge on faith schools’ ability to teach in line with their doctrines, concern has also been expressed that the duty on the Secretary of State might allow future versions of the guidance to preclude religious schools from teaching in accordance with their beliefs. This was a point that my noble friend Lady Cumberlege raised—when the noble Baroness, Lady Farrington, referred to my noble friend Lady Knight, my noble friend Lady Cumberlege expressed this point. However, the noble Baroness, Lady Farrington, made my response for me by saying that it is clearly not the intention behind this legislation to envisage circumstances in which any Secretary of State might seek to interfere with matters of religious doctrine in the future. We are framing this legislation as things stand at the moment, and there is no way in which we are suggesting that a future Secretary of State might do anything different, but nor can I say from this Dispatch Box that things may not change in the future.
The noble Lord, Lord Pannick, noted that the second part of the duty in question, which is Section 403 (1A)(b), specifies that the Secretary of State’s guidance must ensure that pupils are,
“protected from teaching and materials which are inappropriate having regard to the age and the religious and cultural background of the pupils concerned”.
Therefore, the existing legislation already makes clear that it is absolutely inappropriate for material to be used that would not have regard for religious faiths. For the Secretary of State to issue guidance specifying that a particular version of marriage be endorsed counter to a school’s ethos, and by extension the religious background of many of its pupils, would not meet this criterion that already exists in legislation. I emphasise that point in response to my noble friend Lady Cumberlege, who expressed concern that the new legislation would somehow remove some protection from schools that are against promoting same-sex couples being able to marry. I want to emphasise that that is absolutely not the case.
This country has a strong tradition of schools with a religious character; they are a valued part of our education system. It would be pointless to maintain a system of designation if such schools were unable to teach in accordance with the tenets of their religion. For this designation to have significance, the school has to deliver what it was set up for. The inherent right of schools to deliver their curriculum and to interpret guidance according to their ethos is evident in their existence as such schools. As I have described previously, such schools do already teach about topics that may be considered sensitive, such as divorce, and they do so without issue.
While the Government are clear that this Bill will not impinge on faith schools’ ability to continue to teach about marriage in line with their religious tenets, I do of course understand that the effect of Clause 11 on Section 403 of the Education Act has led to some concern about this. While we are not convinced that there is a need to change the legislation to clarify the position, we are continuing to discuss this with the churches. As the noble Baronesses, Lady O’Loan and Lady Royall, said, the Government undertook to consider this issue in another place. I can assure noble Lords that I and my colleagues are continuing to examine it in detail.
Lord Lester of Herne Hill
Will the Minister confirm whether the Government agree with my view about the Human Rights Act and the convention giving absolutely clear legal protection?
Baroness Stowell of Beeston
I think that I have been clear in my response. I have just said that we are not convinced of a need to change the legislation to clarify the position because we believe that the protections exist. However, as I have just said, we committed to consider this further. We are discussing it with the churches, and we will honour that commitment to continue to consider it and to discuss it further. However, I was about to say that clearly, in the course of doing that, one of the things that we will want to do is to take account of all the contributions that have been made to today’s debate. The process of scrutiny of legislation suggests that it is proper for us to make sure that we take account of debates in this House, and indeed in the other place, in framing legislation.
That leads me on nicely to conclude by addressing the noble Lord, Lord Anderson of Swansea, as he suggested that the Government have not been minded to listen to debate through the passage of this Bill and make amendments. To give him some comfort and to remind the House that that is not the case, I will point out that in the Bill so far the Government have agreed to an amendment which includes a review of civil partnership. We have included an amendment to the Public Order Act and we have some amendments which clarify things around ecclesiastical law which has been requested by the churches. We have made an amendment to protect the spouses of transpeople so that if they continue in those marriages they retain the pension rights from the terms when they were originally married. We have further protected employed chaplains, we have made some changes for the Church in Wales, and we have dealt with void marriages. We are listening to the debates that are taking place in your Lordships’ House, as we did in the other House through the passage of this Bill. If we think that it is necessary to clarify the legislation in order to ensure the proper outcomes that we are seeking, which is to allow same-sex couples to marry and for religious freedoms to be protected, that is what we will do.
That is the commitment that the Secretary of State has made and I am happy to repeat it from the Dispatch Box. However, it is important that we do so only where it is necessary and only where it clarifies and helps us in the passage of the Bill, and provides the outcomes that we are all seeking to achieve. I hope that the right reverend Prelate is able to withdraw his amendment.