Mesothelioma Bill [HL]

Lord Lester of Herne Hill Excerpts

Wednesday 17th July 2013 Lords Chamber

[Lord Wigley]

My Lords, I support the amendment. I shall address in a moment the points made by the noble Lord, Lord Howarth, but I want to signal my support for Amendment 2 and the associated amendments, which will allow a very small percentage, some 1%, of the levy on active insurers to go towards a supplement for further research into mesothelioma. As we heard from the noble Lord, Lord Alton, a few moments ago, any way of encouraging new people to come into this area of research must be worth while, and that is something that the noble Lord, Lord Howarth, did not address in his remarks. At present the mechanisms are not generating enough research and the research that is currently being undertaken is in danger of being eroded, if not ended. I am also glad that Amendment 24 specifies that the Secretary of State must consult insurers, medical charities and research foundations before making regulations in this respect. I congratulate the noble Lord, Lord Alton, on his perseverance on the matter.

As has been mentioned, in 2011 the British Lung Foundation invested £850,000 in research into mesothelioma, and £400,000 was invested by other charities. In Committee the indications were that it did not appear that much money was coming from the Government. Now, if I understand it correctly, the Medical Research Council has found some rabbits to come out of the hat, and that is all to the good. However, more work clearly needs to be done. If we give due credence to the figures that have been quoted and requoted about the 56,000 people who are in danger of dying from this, if any progress can be made by way of research to reduce the likelihood of those people dying, that is something that we as a House have a duty to undertake. Whether or not this is the appropriate vehicle to do so, it is the vehicle that we have to hand at the moment and we should not lose this opportunity.

The agreement brokered by the British Lung Foundation has meant that over the past three years four large insurance firms have collectively invested £1 million a year into research in this area. I warmly welcome that initiative. It has seen concrete results, as has been mentioned, such as the creation of Europe’s first mesothelioma tissue bank. However, that funding will soon be coming to an end and we need to ensure that the research goes on. The firms that were involved in the initial agreement have indicated that the industry as a whole should be involved in funding future research—that idea comes from them—and that a voluntary agreement would be unworkable. If we are to secure the breakthrough that we need in this area, funding must be made available for research. If that needs legislative underpinning, so be it. Perhaps the Minister can indicate that if the amendment passes, or if he finds another way to reach the same objective when the debate goes on to another place, he will consider including the possibility of a short annual statement on the amount of funding going into mesothelioma research from all sources and the progress that is being made.

[Lord Lester of Herne Hill]

My Lords, I greatly look forward to the Minister’s reply. I just want to say one sentence. The very first thing I had to do when I came to the Bar in 1964 was to act in relation to the Industrial Training Act 1964, which, as I recall, imposed a levy on the building industry in order to subsidise training within the industry, and it worked perfectly well.

[The Lord Bishop of Norwich]

My Lords, I support this group of amendments and I thank the Minister for his work, which was well illustrated at the beginning of this debate. I knew very little about mesothelioma until I saw its debilitating effects on friends, including the former Bishop of Peterborough, Ian Cundy, who some Members may recall died in 2009. The knowledge that the cause of this cancer has been lurking in one’s body for 20 years or more of active life may suggest in itself that more research into detection and treatment may prove valuable. There is nothing that can be done to rewrite someone’s life history, which may include often unwitting exposure to asbestos while young, but much can be done to promote research into a disease that will kill 2,400 people in the UK this year—the equivalent of wiping out one of Norfolk’s smaller market towns within 12 months. If that sort of tragedy happened it would be front page news but this passes us by too easily.

I am not sure that even now I fully understand why mesothelioma is such a Cinderella of cancer research but this amendment provides a practical way of providing a corrective. The levy proposed is practical and proportionate and it might even stimulate more high-quality researchers to think that this is a worthwhile and reliable area in which to have a sustained work programme over many years. I recognise too that it may even stimulate more voluntary contributions to such research, quite apart from what the Government may give. I also understand that it has some support within the insurance industry. Although I have no expertise in this area, from all that I have read—I am very grateful for the way in which the proposers of this amendment have circulated material to the House—I hope the Minister will look on this proposal or something like it sympathetically.

Marriage (Same Sex Couples) Bill

Lord Lester of Herne Hill Excerpts

Monday 15th July 2013 Lords Chamber

[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.

[Lord Lester of Herne Hill]

My Lords, I am glad that I put my name to these amendments. I add my support to the Minister for the wisdom of the amendments. It is an open-ended consultation that is not prejudged, it is time-limited so there will not be undue delay, and if there are changes it will be subject to affirmative procedure, which means that Parliament will be able to be properly consulted, as the public and all the interested groups will have been.

To add a further point, if change is brought about it will avoid the need for further litigation that could finish up in the European Court of Human Rights, as I read its case law, because if there is to be change it will remove a source of discrimination that, it could be strongly argued, is not compatible with convention rights. For all those reasons, I am very glad to support this.

The noble Lord, Lord Alli, has described me in the past as a lone ranger, but I was not sure that that was a compliment. I sit among my Liberal Democrat tribe not as a lone ranger; we are full of support for that team. I should say, though others will also say it from these Benches, that we are very proud of the fact that we were the first to think of civil partnership, to do civil partnership in a Private Member’s Bill and then to support the admirable Equality Act, so I do not think that I am a lone ranger. Anyhow, I do not watch cowboy films because I am too frightened of what will happen to the horses of the Indians.

I join in the tributes to the Minister and her extremely skilled team. Part of that team was responsible for the Equality Act 2010, which I have described as the best civil rights legislation in the world, and that I believe to be the case. The Minister has had to deal with the Bill in difficult circumstances; there are some in the House who are strongly opposed to it. However, the way in which amendments have been considered and debated across the House honestly and transparently has been extremely important, and I have learnt a great deal from listening to those debates.

I joined the House 20 years ago and I can tell those who are a bit younger that it would have been quite inconceivable for the House to have been able to approve this measure then. It would have been fairly impossible 15 years ago. What has changed for the better has been the modernisation of this House through appointments, and I pay tribute to the previous Government for the appointments that they made that I think have secured a House that is truly countermajoritarian and truly concerned with individual rights and with protecting minorities against the abuse of powers by the tyranny of the majority.

[Lord Rowlands]

My Lords, I rise to make a brief contribution—my one and only contribution to the Bill—because listening to the debates and reading the correspondence has brought vivid memories back to me of voting at 4.27 am, 46 years ago this month, by 99 votes to 14 for Mr Leo Abse’s Sexual Offences Act decriminalising homosexuality. I was a 27 year-old Member of Parliament who had only been elected the year before, totally unexpectedly so because I was not expected to win a Conservative stronghold. That brief political experience did not prepare me for the vehemence of the reaction to my stance in that year. I have never since come across anything quite like the level of abuse and vehemence that I received in certain quarters of the constituency because of my support for that Bill. How could I possibly legitimise such horrid, heinous and sinful practices? The church, at that time, took rather a curious position on the Bill. It kind of supported it because it could help in the mission to save the sinful souls of homosexuals. The Bishop of London of the time said that it would allow,

“the reformation and recovery … of those who have become the victims of homosexual practices”.—[Official Report, 13/7/67; col. 1291.]

I do not know how well that mission has succeeded since.

Marriage (Same Sex Couples) Bill

Lord Lester of Herne Hill Excerpts

Wednesday 10th July 2013 Lords Chamber

[Baroness Howe of Idlicote]

My Lords, as in Committee, I am pleased to support the amendment moved by the noble Lord, Lord Alli. As he has pointed out, the amendment represents a crucial opportunity to ensure that the introduction of same-sex marriage in this country is achieved with exactly the same basic benefits and insurance rights for male/male and female/female as for male/female. If we do not address this final discriminatory hurdle now, it will be several decades before all gay couples achieve equality. For gay men and women, it will mean decades of waiting as they continue to live with the reality that their loved ones may not be provided for when they die; decades in which individuals who have worked and contributed to their pensions, planned and been prudent, are subject to the whim of employers and pension providers, who may choose to pay a pittance in survivor benefits for no other reason than the gender of their spouses. If we do not remove this last remnant of historical injustice, the “second tier” of marriage will continue in contradiction of all the calls for exactly equal treatment that we have heard again and again over the past few days in your Lordships’ Chamber.

A brief look across the Atlantic may help to illustrate the point. Two weeks ago, in the landmark case of United States v Windsor, the Supreme Court considered the case of Edith Windsor and her spouse and partner of 44 years, Thea. They lived together in New York, a state which recognises same-sex marriages, and when Thea died in 2009 she left her entire estate to Edith. Had they been a heterosexual couple, Edith would have inherited the entire estate tax free. However, US federal law prevents their marriage being recognised for the purpose of inheritance tax and Edith was hit with a bill for $363,053. The Supreme Court found the law to be unconstitutional. A key plank in its reasoning was that the treatment of Edith and others like her had the effect of creating a separate sub-set of legal marriages that were treated less favourably. To use the words of Justice Kennedy,

“it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition”,

and,

“the principal purpose and the necessary effect of this law are to demean those persons who are in lawful same-sex marriage”.

The effect of this judgment was to grant legally married same-sex couples access to the same federal entitlement available to heterosexual married couples including tax, health and pension rights.

Questions of taxes and pensions may seem mundane to some, but I can confidently say that this change in the law would mean the world to those people whom it affects. Among them is a client of Liberty, John Walker. I mentioned him when your Lordships debated this issue in Committee. John and his partner have been in a loving, committed relationship for more than 20 years, and they registered for a civil partnership at the earliest opportunity. Yet John’s partner is currently entitled to a fraction of the survivor benefits which would be available to a female spouse, even one John met and married today.

It cannot be right to continue a two-tier discriminatory marriage system. Surely John deserves the peace of mind of knowing that his partner will be equally provided for. Is that not exactly what the Government’s commitment to securing real equality for gay couples really means?

[Lord Lester of Herne Hill]

My Lords, I too have put my name to this amendment. After two such full speeches by the noble Lord, Lord Alli, and the noble Baroness, Lady Howe of Idlicote, it would be a waste of your Lordships’ time for me to say anything more than that I agree with both of them, but I also believe in the art of the possible. That is why I very much hope that manuscript Amendment 84A, or some form of it, will be agreed by the Government, because in that way we will have some hope of getting real change.

[The Lord Bishop of Guildford]

My Lords, the noble Lord, Lord Alli, has already spoken of some support from these Benches for his amendment. I will not repeat what I said at an earlier stage, but I wish to support him again, and also, as the noble Lord, Lord Lester, has just said, to support the device of regulation as a practical way forward.

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While I understand the concern that as regards pension benefits same-sex married couples will be placed in a different position from opposite-sex married couples, this demonstrates the need to consider very carefully whether any departure from the established approach is appropriate and what the costs and legal implications of any change would be. It would be irresponsible of any Government to commit themselves to potentially imposing significant costs on businesses and the taxpayer without undertaking an assessment of the full scale of those costs. While it has taken me quite some time to read this out, and it is very much the Government’s position, just the fact that it is very complicated and hard to understand justifies me in saying that this is not easy to solve in one fell swoop.

[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.

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We offer this amendment to improve the Bill, not to weaken, dilute or frustrate its purposes. It is completely even-handed, neither expressing nor implying any value judgment between the two forms of marriage within the single institution of marriage. It cannot be interpreted as implying that one form of marriage is superior or inferior to the other. I commend the amendment to your Lordships as a strictly limited, practical, realistic, sensible and undogmatic proposal for dealing with problems that are likely to arise in relation to the application of legislation to the institution of marriage as it will be once the Bill has been enacted. I beg to move.

[Lord Lester of Herne Hill]

My Lords, some of the amendments moved in the course of our debates have been eccentric. However, respectfully, I should say that Amendment 85 is among the most eccentric, not least because of its very distinguished authors—a former Cabinet Secretary, a Lord Chancellor and my noble friend Lady Williams of Crosby, whose deeply held religious convictions as a Catholic I fully respect.

Leaving aside its extraordinary length and detail, Amendment 85 is moved in the face of the overwhelming and decisive decisions made by the House on Monday to reject similar attempts to classify and separate opposite-sex and same-sex marriages. In paragraph (a), the amendment declares that,

“there shall no difference or distinction be made between lawful marriage of same sex couples and lawful marriage between a man and a woman, save as provided for in this Act”.

If the amendment stopped there, it would be completely unobjectionable although also completely unnecessary, but it does not stop there. It continues by making an exception,

“as required to give effect to any difference or distinction which is made necessary by reason of physiological or biological differences of gender or consequences thereof”.

It is probably my fault, but I do not understand what that is meant to mean. Most men and most women are biologically different and sexual intercourse between a man and woman, a man and a man and a woman and a woman may reflect those differences of biology and anatomy, but how do those differences require future or existing law regulating or relating to marriage to treat traditional, conjugal and new consensual marriage differently? We are beyond the watershed for children, and I shall be grateful for an explanation of what this has to do with the law rather than the Kama Sutra.

Paragraph (b) seeks to separate the two forms of marriage using about 100 words instead of a bracket. We have already firmly rejected that attempt; I respectfully ask what the point is of rehearsing the arguments again and again.

Paragraph (c) is unnecessary because it goes, or should go, without saying, that existing legislation will continue in effect in relation to opposite-sex marriages except as amended by the Bill. As to paragraph (d), given the vague obscurity of the earlier parts of the amendment, its meaning and effect would puzzle Henry VIII and his Lord Chancellor as well as the current holder of that high office. If the noble Lord tests the opinion of the House, I hope that the amendment will be rejected.

[Lord Pannick]

My Lords, I agree with the noble Lord, Lord Lester of Herne Hill, though possibly not in relation to the Kama Sutra. The point being made by the noble Lord, Lord Armstrong of Ilminster, as I understood it, was that provision should be made in this Bill to confer power to address problems that may arise in consequence of this Bill when enacted. Of course, Clause 15(2) already does that. It says:

“The Secretary of State or Lord Chancellor may, by order, make such provision as the Secretary of State or Lord Chancellor considers appropriate in consequence of this Act”.

For the avoidance of doubt, Clause 15(3) states that any such provision that may be made,

“includes provision amending UK legislation”.

That would seem to me amply to address any concerns.

Marriage (Same Sex Couples) Bill

Lord Lester of Herne Hill Excerpts

Monday 8th July 2013 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I just wish to add that the process here has been admirable. Had we simply stuck with forcing through an amendment to do the trick, it would not have held in the other place. There would have been ping pong and no public consultation. Including sexual orientation discrimination in the 2006 Act and caste discrimination in the 2010 Act by regulation and consultation seemed to be the best way forward. I am extremely glad that that approach, which is in the amendment of the noble Baroness, Lady Meacher, and now reflected in the government amendment, does the trick.

The Minister has not mentioned Amendment 135, grouped here, which amends the Long Title. Although this sounds like me being a lawyer, I am very glad that it is there because I raised the point in the previous debate that, on the face of it, this was out of order. Once we amend the Long Title, it is in order and it means, in Amendment 135, that the Bill will also be for,

“permitting marriages according to the usages of belief organisations”,

and so on. I have one—not exactly caveat—point, which is that there are belief organisations and belief organisations. A line has to be drawn because there are some belief organisations that have no proper structure and may be in favour of witchcraft, paganism or matters of that kind. It will be necessary using the test of the European human rights convention or the Human Rights Act to make sure that the Government draw the line properly. A consultation is important to be sure of that. However, I congratulate the Government on doing this and the way in which it has been done. I think we will remember it in the future.

[Lord Birt]

My Lords, I, too, thank the Government for bringing forward the amendment, and all those who worked on all sides to make that possible. The amendment offers the possibility but—as the noble Baroness, Lady Meacher, makes clear—not yet a guarantee that humanists, and perhaps in due course other groups, will be able to conduct lawful marriages. As we have heard, that already happens in a fast-growing number of countries. Humanism is a movement. It is not bound together by belief in a supreme being or a formal body of doctrine, but by ethical conviction, a belief in rationality and the virtues of science, respect for nature and a commitment to optimise the sum total of human happiness here on earth.

The noble Baroness, Lady Meacher, mentioned this. Anyone who has ever attended a humanist ceremony of any kind will attest to its spiritual power, to the sense that it viscerally captures and conveys a strong sense of community feeling and the wonder of human existence. The noble Lord, Lord Norton, who I see in his place, spoke most eloquently—in one of the most powerful of many powerful speeches at Second Reading—explaining why overall he supported the Marriage (Same Sex Couples) Bill, emphasising that it extended freedom, the freedom of gays to marry. This amendment, it is hoped, paves the way for a further extension of freedom for humanists to marry as they would wish. Like everyone else, I congratulate the Government, and I look forward to the first gay humanist wedding.

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[Lord Brennan]

My Lords, the purpose of the legislature in this particular legislation is to achieve clarity, in so far as it can, so that its application in public life in this country will not produce dissension or disturbance. Therefore, when we look at the provisions of the Act, we should have in mind a saying of the American Supreme Court: “It is not for the courts to protect the people from the consequences of their political choices. It is for Parliament to legislate with clarity”.

I took part at Second Reading but not in Committee. That was to achieve two objectives. The first was some professional self-discipline; there is nothing less productive than lawyers telling the House what they think the law is or should be. Reserve is the order of the day when interpretation arises. Secondly, Committee was an opportunity for the Government to take the time that they said they would to consider concerns and produce remedies that they thought to be reasonable, in so far as remedies were required.

Government Amendments 9 and 10, I commend. They deal with the word “compel” and the concern about public function, and they deal with those matters comprehensively. I do not invite correction from my professional colleagues, but personally 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.

The phrase “by any means” is followed by some words in brackets. My noble friend Lord Alli has consigned the bracket to statutory ignominy. I prefer a comma; it is just as good. A comma relates to the effect of the legislation on compulsion on ordinary people in their everyday employment, and I invite the Minister to confirm that it is an example, not a definitive, sole exception. Therefore, Amendments 22 and 23, to which I put my name, I no longer consider to be necessary.

This generosity of spirit and this legislative wisdom should not stop here. The Government’s amendment to Schedule 7, dealing with the Public Order Act, remedies the concerns that those who express a public disagreement with same-sex marriage might be prosecuted under the Public Order Act, allowing for the expression of their views to be reasonable and not contrary to the Act. The amendments thus far have not involved the Equality Act, and the concern of many is not just Speakers’ Corner—homosexuality is a sin and so is adultery between opposite-sex people, or whatever it might be. The concern is that, when in the workplace, the expression of a genuine belief, whatever it might be—and let us not be distracted by the homosexual context of this—should not result in detriment to that person in their workplace or their ordinary life.

The Government said that the existing law can address these concerns. Indeed, on the third day of Committee on 24 June, the noble Baroness, Lady Stowell, said that, to avoid misapplication or misinterpretation of the equality law in this area, the Government, with the co-operation of the Equality and Human Rights Commission—I underline “and Human Rights”—will provide guidance to,

“provide adequate protections for religious organisations and individuals”,

and to say,

“why the equality duty cannot be used to penalise those who do not agree with same-sex marriage”.—[Official Report, 24/6/13; col. 603.]

I welcome that.

The Minister said that she would write to the noble Baroness, Lady O’Loan, which she has done, but without detail. There is time yet; Third Reading is next Monday. This topic must have been considered at some length. It is not complicated because the law appears to be straightforward, and so does the Government’s view, so let us have this guidance, at least in outline, in public by Third Reading. That will achieve two things. The outline will prevent further debate on this issue and will reassure all of us that the Equality Act will not be a secondary vehicle for public dissatisfaction and dissent on either side. I encourage the Government to take that action.

I have said nothing about the principle of this Bill. I have been talking about freedoms which we share: the homosexual right to freedom of certain kinds and the religious believer’s right to freedoms of certain kinds. This is a question of balance. I invite the Government to ensure that this Bill becomes law very soon with democratic balance, at least in the area of freedoms.

[Lord Lester of Herne Hill]

My Lords, like the noble Baronesses, Lady O’Loan and Lady Berridge, I am a member of the Joint Committee on Human Rights. Unlike them, I took the view, and take the view today, that the Bill is perfectly clear, even clearer with Amendments 9 and 10 for anyone who doubted it.

The Government responded to the Joint Committee on Human Rights report today. I do not know whether either noble Baroness has read the response but it has not been referred to so far. I have read it, and I am satisfied that it deals quite sufficiently with the doubts that were raised by the Catholic church through Aidan O’Neill QC and Professor Chris McCrudden, who is a member of my Chambers. I felt that the view expressed by the other side—by Robin Allen QC on behalf of the Equality and Human Rights Commission—was correct, but it became apparent that nothing would satisfy the noble Baronesses, Lady O’Loan and Lady Berridge, that there might not be issues that would still be raised. That is their view, and I respect it. I think the views that have been expressed raise fears that cannot be satisfied by language because, whatever we say in the Bill, I am sure that Members of the House will still raise question after question.

I entirely agree with the Government’s legal advice as expressed in the response to the Joint Committee on Human Rights, and I suggest that that response is placed in the Library so that people other than the Joint Committee on Human Rights can see what is said before Third Reading. No doubt it will also be repeated by the Minister in reply today, but it is helpful to have it as a matter of record.

I have been on that Joint Committee for 10 years and I am the last person standing out of the original members. In those 10 years, I have never known a situation like the one we were confronted with. We were deeply split and the only way in which we could produce a report was either by taking votes, as we used to do, which would have shown the differences, or by papering over the differences, which is what we did. Your Lordships should know that we were deeply split. The views expressed in the Chamber today reflect the ways in which we were split. I see that the noble Lord, Lord Faulks, is in his place. He, too, took an active part in those debates.

The Government have responded, and I congratulate them on the speed with which they have done so. I believe that what they have said is correct and that their citing of the law is also perfectly correct. I am glad that Amendments 9 and 10 have been moved. They are a bit verbose. I would have just said “by any means” without having to put words in brackets, but that is because I believe that at this time of night one should speak briefly and write briefly, if possible.

[Baroness Butler-Sloss]

My Lords, I have also put my name to the amendments in the name of the noble Baroness, Lady O’Loan. I share her view and the view of others and join in the congratulation of the Government on Amendments 9 and 10, which go a very long way and certainly meet Amendments 22 and 23. However, there is potentially a gap, shown by Amendments 18 and 19. I share the view of the noble Lord, Lord Brennan, and support his proposal that the guidance offered by the Government should be available. The gap that the noble Baroness, Lady O’Loan, has identified in Amendments 18 and 19 may well be met by that guidance, so it would be helpful for the Government to do that. I personally would wait to see that guidance before wishing to take Amendments 18 and 19 any further, although it is clearly not a matter for me but for the mover. However, the Government need to recognise that something needs to be said on paper to be sure that these points are met. To that extent, I differ from the noble Lord, Lord Lester.

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Reasonable accommodation has a long pedigree in other parts of the world. There is much case law on this in the United States. Title VII of the American Civil Rights Act 1964 requires that employers reasonably accommodate the sincerely held religious belief of employees unless doing so would impose an undue hardship on the operation of the employer’s business. This protection extends to manifestations of those beliefs. That is the interpretation of “accommodation” in the US. Are we to be less protective in this case than the US, which is also a common law jurisdiction? Without the protection contained in the amendment, employees will be faced with a stark choice of being forced to act against their conscience or losing their job. Surely, in a free and democratic society we would not want to see anyone placed in this position simply on account of their conscientious belief that only a man and a woman can contract to a marriage. This, after all, is a view of marriage which until very recently was the orthodox mainstream view held almost universally by Members of your Lordships’ House and by the population at large, and is still embraced by most other countries. If there is a chance of reasonable accommodation, it is surely not unreasonable to ask an employer in those circumstances to take fully into account the views of individual employees and, so far as is practicable in all the circumstances, to make provision for that employee. I beg to move.

[Lord Lester of Herne Hill]

My Lords, in my judgment this amendment suffers from the following problems among others. First, it imposes completely unnecessary burdens on employers; secondly, the burdens it imposes are unworkable; and, thirdly, it is discriminatory.

[Lord Deben]

My Lords, we have complained about many people suing, but this is an absolute opening for anybody to sue. I find it incredibly peculiar to say that an employer should organise his business so that somebody who objects to same-sex marriages could say that it was unreasonable to drive two people from one place to another. There is a limit to what can be reasonably considered a conscientious objection.

I voted for the case of registrars because I felt it was one end of the limit. I have to say that this really is ridiculous. It will open up the opportunity for people to sue the other way round on the basis of the most trivial issues. If a cook was able to say, “I am afraid that my petit fours cannot be used for the reception at a same-sex marriage”, we are making a laughing stock of the law. This is not just a bridge too far, it is a whole highway beyond where we should go.

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[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.

[Lord Lester of Herne Hill]

The Equality Act 2010 is the best civil rights legislation in the world and is vastly superior to United States civil rights legislation.

[Lord Anderson of Swansea]

The noble Lord cites US precedent when it happens to suit his case. He is less ready to cite it when it does not, such as when considering the effect of the Civil Rights Act. However, I hear what has been said. Clearly, the proof of the pudding will be in the eating. We shall see how the Bill will affect others but I still think it is not unreasonable to ask employers to seek such a reasonable accommodation, wherever practicable. However, this time, I beg leave to withdraw the amendment.

Marriage (Same Sex Couples) Bill

Lord Lester of Herne Hill Excerpts

Monday 24th June 2013 Lords Chamber

[Lord Elystan-Morgan]

My Lords, I have always felt discomfort if not, indeed, some element of contempt for what is called the vehicular defence. Too often, it has been said in a case where there is every merit in a proposed amendment, “Ah, yes, but that is not the correct vehicle to use at this stage”. More often than not, in the years that I have spent in this House and in another place, I have felt that it was a path of craven retreat used by many Governments in many situations but in a wholly unworthy cause. Indeed, that is my reaction in the first instance when it is pleaded that this measure may not be the proper vehicle. However, I suggest that for once that argument may well be true—not only that it is not the appropriate vehicle but that it may not be the lawful vehicle.

I have total respect and regard for all the arguments that have been advanced in favour of changing the law in this area. The arguments advanced are noble, honourable and just and there is no way, it seems to me, that they can properly be countered. However, if one looks at the preamble to the Bill, it seems to me that there may be some dubiety. I put it no higher than that, certainly not in the presence of persons far better able than me to judge this matter. It could be argued that this issue does not fall within the Bill’s Long Title, which refers to,

“the review of civil partnership, and for connected purposes”.

It may well be argued that civil partnership deals with a sexual relationship. If that is so, the relationships that we have been talking about this afternoon go beyond that. They elongate civil partnership but are not of the essence of civil partnership.

Indeed, even if I am wrong, we should remember that what is asked for is inclusion in a review. There will be immense discretion as to what the conclusion should ultimately be. Whatever the rights and wrongs of this debate may be, and they are all one way, in my respectful submission one dilutes the possibilities by including the issue in a review where there may be dubiety as to whether that is the correct vehicle. Therefore, in the circumstances, I respectfully suggest that the amendment is aimed at the wrong Act. It is not the 2004 Act that causes injustice in this regard, but the 19th century Partnership Act, as amended. In other words, if the relationships that one speaks about could by statute be deemed to be a certain type of partnership with a certain type of fiscal consequence leading therefrom that would be just, equitable and proper, then the proposal would be aimed at a correct target. If that could be done quickly not by way of review but by direct legislation, I would, indeed, consider that we had done something very worth while in a very simple, understandable way without cluttering up the argument with all manner of other considerations that may be less than relevant in the two circumstances of the case.

[Lord Lester of Herne Hill]

My Lords, I shall not detain the Committee by repeating what I said nine years ago when we debated this issue, and the controversy between those who focused on sexual relations and those who focused on tax and inheritance tax.

I have two points to make. Clause 14 seems to me not to require any amendment because it states:

“The Secretary of State must arrange … for the operation and future of the Civil Partnership Act 2004 in England and Wales to be reviewed, and … for a report on the outcome of the review to be produced and published”.

The clause goes on to say that that,

“does not prevent the review from also dealing with other matters relating to civil partnership”.

One of the other matters relating to civil partnership that has been mentioned by my noble friend Lord Marks, in particular, was referred to by the Joint Committee on Human Rights in paragraph 95 of our report. We said:

“We are not convinced by the Government’s reasons not to extend civil partnerships to opposite sex couples, and we welcome the Government’s announcement that it will review this matter. In doing so, the Government should take into account the potential discrimination that may arise between cohabiting opposite sex couples and civil partners”.

I very much welcome the fact that the Government have made it clear that there will be a review of the operation of the Civil Partnership Act to look at that aspect of the existing discrimination. That point has already been made by several noble Lords and it is important to deal with it. I have always disagreed with the noble Baroness, Lady Deech, as she knows, because I am strongly in favour of cohabitation rights for unmarried opposite-sex couples, and she is firmly opposed to that. That will clearly be a matter that the review will need to take into account to see whether the Government decide to give some protection to so-called common law marriages or not.

I continue to believe in that, as I did nine years ago. I am delighted by the speech of the noble Baroness, Lady Hollis, because she has taught me aspects of social security and welfare that I was not aware of. For all the reasons given, I do not think that one should now fetter Clause 14 by requiring that the review should deal with matters that are truly beyond the scope of the Bill and ought not to be part of the review.

[Lord Mackay of Clashfern]

My Lords, I think that I should indicate that some aspects of this discussion will arise under my Amendment 55. It is important to remember that this Bill is not about gay marriage but same-sex marriage. As I pointed out, and I invited correction—so far I have not been corrected—it includes platonic relations between people of the same sex. Therefore, the idea that sexual relationships are fundamental to it is a mistake. That may or may not matter to this issue, but it matters considerably to the issue that I shall raise under Amendment 55.

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[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, this has been a very good debate and the issues have been thoroughly explored. I congratulate the noble Baroness, Lady Deech, on introducing it in the way that she did. I do not think any of your Lordships who have spoken in the debate in any way question the validity—or the value, rather—of the relationships that exist between siblings or other family members where they have mutual duties or care obligations. Indeed, the noble and learned Lord, Lord Lloyd of Berwick, mentioned a particular case of a young man who helped someone who was injured in a riding accident. Certainly, our society, country and communities benefit enormously from the caring relationships that exist the length and breadth of the country. I imagine that many noble Lords can think within their own families of relationships of mutual support between a brother and sister, between sisters or brothers, or intergenerational support.

The amendment moved by the noble Baroness would amend the duty in Clause 14 requiring the Secretary of State to arrange for the review of the operation and future of the Civil Partnership Act so that the scope of the matters to be reviewed includes consideration of the possibility of extending civil partnerships to,

“carers and those they care for”,

and to,

“family members … who have cohabited for 5 years or more and are over the age of eighteen”.

The terms of reference for the review of civil partnerships required by Clause 14 were published on 13 June and a copy has been placed in the House Library. The review will look at the operation and future of civil partnerships in England and Wales. It may help your Lordships if I note what the scope is, according to the published terms of reference. They say that the review,

“will cover England and Wales and will … Examine evidence about how well the current arrangements for civil partnerships are working, drawing on views from the public and organisations with an interest and international comparisons … Assess the need and demand for civil partnerships when marriage is available to all, and whether any changes to civil partnership arrangements are necessary … Identify all the implications of and issues raised by the identified options (including risks and devolution issues) … Assess the costs and benefits of the options … Make recommendations for any changes to the operation and future of the CPA”.

In response to my noble friend Lord Lester, it is not the Government’s understanding that that would extend to issues of cohabitation. In a Written Ministerial Statement on 6 September 2011, the Government said:

“The findings of the research into the Scottish legislation do not provide us with a sufficient basis for a change in the law. Furthermore, the family justice system is in a transitional period, with major reforms already on the horizon. We do not therefore intend to take forward the Law Commission’s recommendations for reform of cohabitation law in this parliamentary term”.—[Official Report, Commons, 6/9/11; col. 16WS.]

[Lord Lester of Herne Hill]

I think that my noble and learned friend may have misunderstood me. I quite realise that the Government have set their face against doing for England and Wales what has happened in Scotland. However, I was asking whether the Government are rejecting the recommendation of the Joint Committee on Human Rights, which welcomed the idea of consultation to take account of the potential discrimination that may arise between cohabiting opposite-sex couples and civil partners. I thought that was the forceful point that really led to the public consultation.

[Lord Wallace of Tankerness]

I apologise if I misunderstood the point being made by my noble friend. As I indicated last week, clearly we are giving consideration to all the recommendations of that report. No one has told me anything to the contrary since then and I think it is still our ambition to have that report available for your Lordships before consideration of this Bill on Report. The matter will obviously be dealt with there.

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[Lord Lester of Herne Hill]

I am sorry but what I am really asking the Minister is whether the Government are saying that this review will—or will not—cover the point that I have just made. It is important to know.

Lord Wallace of Tankerness: Given how specific the question is, I hope that there will be an answer for my noble friend before I sit down. I am sure those listening will have understood how specific the question is.

The point that I was going on to make is that the amendment simply appears to extend the review. However, our concern is that the extension proposed would undermine a core principle of civil partnerships. As the noble Lord, Lord Alli, said, this is about civil partnerships as they are currently understood, have developed and have been used in the years since they were established. It is important that we are talking about the nature and relationship of civil partnerships as understood, because this is a very different type of relationship.

The noble Baroness, Lady Deech, and the noble Lord, Lord Anderson, were quite candid. The noble Baroness, Lady Deech, quite properly said there would be no compulsion. Of course there would be no compulsion. She went on to say that couples would sit down and work it out. The noble Lord, Lord Anderson, said that they would take professional advice on whether the tax or social security arrangements were in their interests. We are talking about marriages which, in a religious context, would involve the engagement of a priest. I now hear that people wanting to take them on would probably have to engage the services of an accountant. These are very materially different kinds of arrangements. One is meant to be an expression of commitment and a desire to live together to the exclusion of others for life, and one is really tantamount to a tax arrangement. I do not think I am doing an injustice to the way it was actually phrased. That in no way diminishes the quality of care that exists. That was indeed the basis of the argument. My noble friend Lord Marks said that it could very well undermine the current civil partnerships as understood.

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To conclude, our amendment merely puts the Government’s assurances in the Bill. It will protect schools with a designated religious character. It will provide explicitly for teaching in accordance with the tenets of the relevant religion in the guidance. It will protect schools from any compulsion, through either current or future guidance, to commend or advocate same-sex marriage.

[Lord Lester of Herne Hill]

Can I ask the noble Baroness why she is not sufficiently reassured by the fact that the Education Act, like all other past and future legislation, must be read and given effect in accordance with freedom of religion and freedom of speech, as guaranteed by Articles 9 and 10 of the human rights convention? Reading those, and the case law on them, it seems to me quite clear that the schools and their teachers will be completely protected.

[Baroness Cumberlege]

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

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

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[Lord Lester of Herne Hill]

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

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

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

To this I say, “Amen”.

[Baroness O'Loan]

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

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

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

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[Lord Elton]

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

[Lord Lester of Herne Hill]

My Lords it is not a question of European law but of UK law. The Human Rights Act requires our judges to read and give effect to all legislation, old and new, so that it is compatible with the European Convention on Human Rights that it embodies. So although one can ultimately go to the European Court, the prime responsibility is on Scottish, Welsh, Northern Irish and English courts.

[Lord Elton]

My Lords, in that case they still have to go to the Supreme Court. They have to go to the top of the Matterhorn instead of the top of Everest. In the mean time, while they are on the way up there, others suffer. I hope my noble friend will realise that what the right reverend Prelate and allies are seeking here is to introduce a security of protection at a lower level. If it is in the guidance that the Secretary of State under statute has to give, then it is available at county council level and not up at the top.

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[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?

Marriage (Same Sex Couples) Bill

Lord Lester of Herne Hill Excerpts

Wednesday 19th June 2013 Lords Chamber

[Lord Lester of Herne Hill]

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

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

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

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

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

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

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

[Baroness Berridge]

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

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

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

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

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

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

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

“as to whether religious organisations”—

or people—

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

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

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

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

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

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

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

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

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[Lord Cormack]

My Lords, I courteously recognise the forensic skills and deep legal knowledge of the noble Lord, Lord Pannick, and of my noble friend Lord Lester. However, my noble friend Lord Deben mentioned times in the past when assurances were given, in good faith, from Dispatch Boxes in both Houses, but have not measured up. Therefore, the recognition of the noble Lord, Lord Pannick, of the validity of the concern of the noble Baroness, Lady O’Loan, and my noble friend Lady Berridge should be taken a step further. I should like to make a suggestion that builds upon what the noble Lord, Lord Deben, said. He and I do not agree on the fundamentals of the Bill, but he made a conciliatory and helpful speech this afternoon and we should thank him for that.

I inferred, from the speeches of the noble Baroness, Lady O’Loan, and my noble friend Lady Berridge that neither is likely to push this to a Division today. I hope that is the case. As I said on Monday, this House is at its best when it has long debates in Committee and votes on Report, when there has been proper opportunity to reflect on what has been said. I shall not be able to be present later today, for which I apologise. I hope that after this, when my noble friend Lady Stowell responds to this debate, she will undertake not only to reflect most carefully on what has been said by the noble Baroness, Lady O’Loan, and my noble friend Lady Berridge, but to call them in, with others who share their concerns, to ensure that on Report we will be able to make it plain in the Bill, beyond any shadow of a doubt, that the assurances that have been given will not only be honoured but be capable of being honoured.

I withdrew an amendment on Monday night following assurances from the noble Baroness, Lady Royall, and my noble friend Lady Stowell, when I sought to add Roman Catholic priests to the definition of the clergy. I did so for many of the same reasons advanced by my noble friend Lady Berridge. There is concern—real worry and anxiety—in this House and in the country. The Bill will make its way to the statute book; of that I have no doubt. I regret that but, as a good democrat, I accept it. However, I want it to give the strongest possible protection to those who in all conscience cannot accept the fundamental statement that same-sex marriage is the same as marriage between a man and a woman. I urge my noble friend, when she comes to wind up this debate—

[Lord Lester of Herne Hill]

I hope I am not interrupting at the wrong moment, but will my noble friend agree that we have to think carefully about the role of judges and the role of the legislature? It is the legislature’s role to make the law and the judges’ role to interpret it. Having heard, for example, the noble Lord, Lord Pannick, with whom I entirely agree, I cannot imagine—I do not know what these breaches of faith in the past amount to; no one has explained what they are talking about—that the independent judiciary would not interpret the legislation as it is now drafted in accordance with its object and purpose. Were there to be any breach of assurances by Ministers, under the Pepper v Hart regime that could, if necessary, be brought to the attention of the courts and they would take that into account. Should we not, when we are making laws, try to make them clear, but at the same time recognise that in the end they are to be interpreted by a wise, independent, enlightened judiciary?

[Lord Cormack]

Of course, but it is not unknown for a wise, enlightened, independent judiciary, which I strongly defend, to conclude that Parliament has not indeed been clear, and therefore it is very important that Parliament should be clear. We talked about locks, triple locks and quadruple locks. I think that there are very few locks that my noble friend Lord Lester and the noble Lord, Lord Pannick, are not capable of unpicking. We want to bear that in mind. It is very important indeed that this Bill, when it passes on to the statute book, has the full guarantees which I am sure my noble friend, in all honesty, wishes it to have.

To return to the point that I was making when my noble friend Lord Lester so courteously interrupted me, I hope that my noble friend, when she comes to wind up, will not only reflect on the concerns, and undertake further to reflect after this debate, but that she will give an opportunity for the noble Baroness, Lady O’Loan, my noble friend Lady Berridge and others to meet her and her officials to discuss these points in detail.

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[Lord Wallace of Tankerness]

My Lords, obviously they cannot yet have been sacked because of this legislation, because it is not yet an Act. As my noble friend may recall, we debated the position of registrars at some length on Monday evening. The explanation given then was that registrars perform a public function. As was pointed out by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, judges, who also exercise a public function, are not allowed to pick and choose which cases come before them. Similarly, a local authority could not have a policy of refusing to promote staff who have expressed a belief that marriage should only be between a man and a woman. This would be unlawful direct discrimination, and the equality duty requires public authorities to have due regard to the need to eliminate such discrimination. The equality duty cannot make lawful an otherwise unlawful or oppressive act.

My noble friend Lady Berridge quoted the impact assessment regarding the threat of litigation. It is of course not possible completely to rule out any possibility of somebody bringing legal proceedings. I think it was the noble Lord, Lord Alli, who pointed out—and as my noble friend Lord Lester quoted on Monday—some authorities do idiotic things. No legislation can provide for every eventuality. However, we believe that the Bill minimises this possibility as far as possible by making it absolutely explicit that those relying on Clause 2 are permitted to refuse to be involved in solemnising same-sex marriages. There would indeed be no cause of action. We believe that an application for strike-out could be made early in any proceedings, as there would be no reasonable prospect of success in such claims. The noble Baroness, Lady O’Loan, said that the inclusion of Clause 2(5) and (6) and the protection they provide undermine the protection which we believe is already in place with regard to Section 149 of the Equality Act 2010.

The amendments to the Equality Act 2010 in Clause 2 provide that it is not unlawful discrimination to refuse to carry out acts specified in Clause 2(2). These specific exceptions are provided to ensure that the Equality Act is not in conflict with the protection provided in Clause 2, so that the law is clear and consistent. This aspect of the Equality Act is the only area of legislation which requires this explicit treatment, as otherwise it would conflict with Clause 2.

We should also remember, as the noble Lord, Lord Pannick, indicated, that the equality duty is a duty only to have regard. It is not in itself a duty to act, but rather a duty to think. It does not require that particular action is taken or that any specific objective or outcome is achieved. As the noble Lord said, “having regard” also means that we have to have regard to primary legislation, such as what would be in this Act if the Bill is enacted. I hear what my noble friend Lady Knight says about concerns that sometimes guarantees do not always seem to follow through many years later. However, what we are dealing with here—I think that the noble Lord, Lord Pannick, made this point—is a fundamental part of the architecture of this legislation: namely, that there should be religious freedom not to opt in. Therefore, it would be unthinkable for a court not to have regard to a fundamental piece of the legislation we are passing. I certainly hear what the noble Baroness—

[Lord Lester of Herne Hill]

Does my noble and learned friend also agree that the Human Rights Act compels this legislation to be construed compatibly with religious freedom as defined in the European convention?

[Lord Wallace of Tankerness]

Indeed, my noble friend is right. Article 9 of the European Convention on Human Rights gives that right to freedom of religious belief and expression. The noble Baroness, Lady O’Loan, said that sometimes the courts are reluctant to second-guess public authorities. It is highly unlikely that the court would do something which is in direct contradiction of what Parliament has clearly expressed and intended not just in the Bill but in all the statements that have been made by Ministers and, indeed, by almost everyone who has participated in these debates.

It is also important to note—again, this point was made by my noble friend Lord Lester and picked up by my noble friend Lord Deben—that amendments can sometimes have unintended and adverse consequences. I know that is certainly not the intention of the noble Baroness who moved this amendment, but the equality duty applies to and protects equally various protected characteristics, including religion or belief so a public authority has to bear in mind the impact of its policies on people holding different religious or philosophical beliefs, such as the belief that marriage should be only between a man and a woman. If, as the amendment proposes, a public authority is prevented from having any regard to individuals’ or organisations’ beliefs about same-sex marriage, it would be unable to consider how its own decisions could potentially discriminate against, or otherwise disadvantage, people who believe that marriage should be only between a man and a woman. That would remove an important protection for people who hold such a belief. I know that this is not what the noble Baroness intends but it illustrates the fact that when you try to solve one problem you can create another.

As I say, I recognise the concerns that some public bodies might be overzealous or mistaken in their exercise of the equality duty or misuse it to the detriment of those who do not agree with same-sex marriage. As I have indicated, no Government can give a copper-bottomed guarantee that some public authorities will not act irrationally. It is important that we ensure that public authorities understand their responsibilities under the Equality Act 2010 correctly, and how these relate to beliefs about marriage. With that in mind, the Equality and Human Rights Commission has undertaken to review its guidance for public authorities to ensure that the position is as clear as possible. As I have said, while I appreciate the intention behind this amendment, it is unnecessary and could have adverse consequences quite at odds with its intention.

I turn to Amendment 17. The concept of compulsion is readily understood in its natural meaning, and to subject anyone to any type of detriment or unfavourable treatment because they refuse to participate in any way in religious solemnization of same-sex marriages would clearly be understood as a violation of their legal right under this Bill not to participate. We are therefore confident that Clause 2 provides strong and effective protection to ensure that religious organisations and their representatives cannot be forced to participate in same-sex marriages against their belief. The Explanatory Notes to the Bill set out the position, as quoted by my noble friend Lady Berridge: the concept of compulsion is a broad one, which would include, but not be limited to, attempts to use criminal or civil law, contractual provisions or the imposition of any detriment to force a person to carry out the activities protected in Clause 2. The clause provides no specific remedy, but makes clear that no attempt at such compulsion would be upheld.

Less favourable treatment by a public authority of a person or organisation who does something which the Bill makes clear they are legally entitled to do would, in itself, clearly be unlawful and open to judicial review. The imposition of any penalties—civil or criminal —on a religious organisation or representative in order to compel them to opt in, or to participate in, religious solemnisation of same-sex marriages is clearly unlawful under the Bill.

Clause 2 will clearly prevent criminal or civil action being taken against any religious organisation or representatives merely for refusing to undertake acts protected under this clause. This includes, but is not limited to, disciplinary or other action taken in the employment context. In all circumstances a person who has suffered a detriment simply because they have not done one of the acts specified in Clause 2 will be able to rely on the protections in that clause to show that such conduct is unlawful and to obtain a remedy within the context of the particular claim.

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[Baroness Northover]

I am not sure if my noble friend was in his place for the earlier debate, but we had quite an extensive discussion. He may be interested in reading the letter that will be put together by my noble and learned friend.

[Lord Lester of Herne Hill]

My Lords—

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[Baroness Northover]

Yes, I can confirm that.

[Lord Lester of Herne Hill]

My Lords—

[Lord Carlile of Berriew]

My noble friend is able to offer free advice on this.

[Lord Lester of Herne Hill]

Yes, it comes free. When the noble Baroness replied to the noble Lord, Lord Tebbit, she may have had in mind not only what was said in the previous debate but the fact that at common law, as was said in that debate, it is quite clear that for a public authority to misuse its powers punitively is itself a public law wrong. The case quoted was that of Wheeler, but there have been others such as, for example, when Rupert Murdoch was penalised by a public authority so far as advertising was concerned. It was also when Shell was penalised because of a boycott. They were cases where public authorities were doing public law wrongs, and in my opinion that would apply equally at common law so far as this is concerned.

[Baroness Northover]

I find it amazing that my noble friend Lord Lester knows what is inside my head when I myself do not necessarily know what is inside it, and I appreciate his understanding. Coming back to the amendment that we are addressing here, I hope that the noble and right reverend Lord is reassured by what I have said, and by what other noble Lords have said in addition, and that he will be willing to withdraw his amendment.

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[Lord Lester of Herne Hill]

My Lords, I am a lapsed humanist. When I was at Cambridge I was a member of the most privileged club which was the Cambridge Humanists and I lapsed because it was too religious. My most memorable experience was asking EM Forster to give a lecture. He said he would give a lecture on whether Jesus had a sense of humour. I said, “That is a splendid subject”. I was just thinking that now you could not give a lecture like that. You could give one on whether God had a sense of humour. I am not sure you could give one on whether the Prophet had a sense of humour. But certainly the proposition at the time was very interesting in Cambridge.

I completely agree with the speeches in favour of these amendments for all the reasons that have been given. One further reason why I am in favour is because both the Equality Act and Article 9 of the European Convention on Human Rights recognise the rights not only of those of religious belief but also of those of no belief, and the Strasbourg Court has repeatedly explained that in a plural society agnostics, atheists and non-believers have as much right as believers of all kinds to equality of treatment. I have no doubt that there is inequality of treatment at the moment between humanists as a belief system and others. If you look at those registered as religions, they include, for example, theosophists. It is very difficult to distinguish between a theosophist and a humanist except that one believes in God and the other does not. And Buddhists and Jainists are registered but they are not theistic religions. I believe that, in terms of equality and common sense, we must move on this, and not only because my party thinks so.

My noble friend Lord Deben said that unlike the United States we have orderly systems in this country when we legislate and I am a bit concerned that in the other place they do not seem to take Long Titles seriously. I cannot imagine that these amendments would have slipped through if this legislation had been introduced into this House because, as the Long Title says, the Bill is to make provision,

“for the marriage of same sex couples in England and Wales, about gender change by married persons”,

et cetera. It says nothing at all about the rights of humanists or anybody else. Therefore, being boring about it, this falls completely outside the purpose of this Bill. I do not want to do anything to jeopardise the coming into force of this Bill but the poor old British Humanist Association has already gone through hoops to get to the position we are in. Originally, it tabled amendments just for humanists and then the Attorney-General said, “That is discriminatory”. It quite rightly changed the amendments to include all belief systems and now I am saying that this is not an appropriate vehicle for doing so.

It seems to me that there must be movement on this and if this Bill is not to be the vehicle, then either there has to be a Private Member’s Bill with government support on this separate issue to comply with Article 9 and 14 rights or some kind of inquiry leading to action. Noble Lords—the noble Lord, Lord Alli, in particular—will recall that we had similar problems when we introduced the concept of religious discrimination but did not include discrimination based on sexual orientation. He, with my support, found an ingenious way round that with a regulation power which enabled us to deal with homosexuality as well as with religion. Although that may not be the right way forward here, the Government need to be imaginative and think of ways of giving effect to the object of these amendments without being able to support them in this Bill.

[Lord Alli]

My Lords, I am not a humanist; I am afraid I am a closet believer in God. But I wanted to add my support to the legislation for humanist marriage and the inclusion of this amendment in the Bill. The Bill is about equal marriage, and allowing fellow citizens to conduct their own legally recognised weddings within their own framework of humanist beliefs seems to me to be a proposal that we should support.

I also believe that there is popular support for this proposal. I suspect the other place was minded to move forward with this but the Attorney-General’s advice at the last minute that the amendments as drafted would breach the European convention and put the quadruple lock at risk meant that there was insufficient time to deal with this. As with so many other issues, the ball is now in our court. I understand that these amendments have been changed to address the issues raised by the Attorney-General and I have seen and even read the advice from Matrix Chambers to support that case. There is huge support for this in my own party, in the Liberal Democrats and on the Cross Benches. I think that this House is minded to pass this and would like the Government to find a way to make this happen. The Government should put their best minds together to see whether we can get these amendments through. On behalf of those who have worked in this area for many years, waiting for a Bill to come along that will allow this to happen, I ask the Minister to look carefully at this.

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[Baroness Thornton]

My Lords, this has been an excellent debate. I say to the noble Lords, Lord Lester and Lord Eden, that the amendments that were tabled in the other place and those that have been tabled here have been accepted as being within the scope of the Bill, so we are perfectly entitled to discuss them as being legitimate within this piece of legislation.

We on these Benches support Amendments 19A, 22A and 27A. I am a humanist. I am not a lapsed one, though I have veered between being a member of the National Secular Society and a member of the British Humanist Association all my life.

I also need to declare an interest in that one of my sisters is a British Humanist Association-accredited celebrant. One of the things that I would like to say to the right reverend Prelate, who has made very generous remarks during this debate, is that the ceremonies that my sister conducts are in every way as professional, carefully constructed, personal and beautiful as any other funeral, marriage or naming celebration that you could wish for. The standard of training and accreditation that the BHA undertakes is exceptional, and it has a commitment to ensuring that, were this to become part of our legislative framework for marriage, its celebrants would of course match the very best of the registrars. So that is not an issue here. I am very proud of my sister and her calling, and I think she has every right to conduct marriage ceremonies.

If either of my children wanted to be married at a humanist wedding service, at the moment they would have to go to Scotland, Australia, the United States, Sweden or, more recently, Ireland. In England and Wales they would have to have a civic ceremony and then a ceremony organised by a humanist celebrant with all the spirituality and commitment that they will have chosen to have in that ceremony. Their choice is restricted by—I have to say this although it might seem a slightly odd expression coming from this side of the House—the closed shop that we find in the old-fashioned rules on marriage in this country, to say nothing of the fact that they would have to pay twice for the pleasure of getting married.

This is an issue that the Government should embrace. The Red Tape Challenge, a commitment to competition and, indeed, the Minister’s commitment to equality should lead one to the view that this is an area where there is injustice and unfairness and it needs a remedy. I hope that she will accept the principle behind the amendment or, even better, accept the amendment itself, or that the Government will come forward with an amendment at a later stage that will achieve the objective of remedying this injustice. Bearing in mind, as noble Lords have already said, that it is 19 years since the previous marriage Bill, one cannot blame the humanists for thinking it reasonable not to have to wait another 19 years before this anachronism is addressed. Indeed, legal recognition for humanist marriages was given in Scotland in 2005.

Given that legal recognition for humanist marriages is the party policy of the Liberal Democrats, is supported by the Labour Party on this side of the House and by our shadow Cabinet, and was supported in the Commons by MPs on all sides, the amendment to recognise humanist weddings as legal marriages was one of the first to be tabled when the Bill received its Second Reading in the Commons. In Committee, the amendment to give legal recognition to marriages conducted by humanists and religious charities, meeting certain conditions, was introduced but fell after a 7-7 tie on the voting Committee, which was resolved against by the casting vote of the chairman—as it would be, and I accept that those are the rules. However, that shows that there is significant support for this issue.

The redrafted amendment on Report addressed all the concerns raised in Committee as well as further concerns raised afterwards by government officials, and was debated. Again there was strong support from all sides, but the amendment was withdrawn after the Attorney-General and the Secretary of State stated that the measure would not be compatible with the Human Rights Act and that passing the amendment could lead to a declaration from the Government to that effect. The Government published their legal arguments as to why that was so and specifically asked that the legal arguments should represent the comprehensive statement of the Government’s concerns.

The British Humanist Association has taken all of this on board and the amendment before us now addresses all the matters raised in the Government’s document. Written advice from Professor Aileen McColgan of Matrix Chambers has confirmed that the revised amendment addresses all the points of law that were raised in objection to the Government. I will not go through all the proposals now because I think that the House fully understands the issues.

It is time to stop giving reasons for not allowing humanist weddings and to give reasons why they should happen and to give proposals on how we can find a way through this. I finish with a quote from something circulated in the evidence that the British Humanist Association gave.

[Lord Lester of Herne Hill]

I wonder if the noble Baroness can explain the position on Long Titles, because it may well be that her party will form part or the whole of a future Government. On the question of Long Titles, I realise that the pass was sold in the other place, and that therefore it is quite okay for us to debate this. However, in terms of House of Lords procedure, how can the matter possibly be within this Long Title? Is not the better point that there should be a Private Member’s Bill, with government support, that deals with this as a discrete issue and that can get through speedily?

[Baroness Thornton]

The point that I was making at the outset of my remarks—the noble Lord is an expert at getting legislation through this House—is that if it has been accepted by the clerks at both ends of this building, in the Commons and in the Lords, then it is within the scope of the Bill. We can have discussions about Long Titles and their meanings, and indeed we occasionally do, but it seems to me that this is fairly straightforward. It is accepted by the clerks in the Commons and in the Lords. It is therefore before us and is a legitimate thing for us to discuss.

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[Baroness Stowell of Beeston]

I will cover that point in the course of my response.

The point still stands—I will explain why in a moment—that in order to allow organisations to marry in the way that is covered in this amendment, although it seems like a small change, it requires a change in existing marriage law that has wider implications for our system of regulation of marriage law in England and Wales. The noble Lord, Lord Harrison, and other noble Lords have referred to the contribution that my right honourable friend the Attorney-General made during the debate on Report in the other place when he made it clear that if the amendment that was being debated at that time was passed, it would make the Bill incompatible with the European Convention on Human Rights. The amendment in the name of the noble Lord, Lord Harrison, is broader in scope and therefore does not raise the concern that the Attorney-General raised during the debate in the other place. However, at that time and consistently, the Government have been clear that the proposals put forward by the British Humanist Association have wider implications for marriage law. The Government are concerned because of those wider implications. There has been a lot of focus on the Attorney-General’s response to that specific amendment put forward on Report, and how that would have made the Bill at that time incompatible with the European Convention on Human Rights. However, that was not the only issue that the Government have raised, and continue to raise, about this proposal. I will explain all this in the course of my response.

[Lord Lester of Herne Hill]

I am sorry to interrupt and I hope I am not being a nuisance by doing so. Is not one reason in favour of these amendments that they would make our law compatible with Articles 9 and 14 of the convention by removing a discrimination which needs to be removed?

[Baroness Stowell of Beeston]

I was trying to make the simple point that the concern that the Attorney-General raised at that time has been addressed. That amendment was very narrowly defined around humanist belief. This amendment is much broader in scope because it is not narrowly restricted just to the British Humanist Association. However, that does not remove from what is at issue for the Government: that by introducing a change this amendment would have wider implications for marriage law in England and Wales. I intend to explain this to noble Lords.

As we have acknowledged throughout our debates on the Bill, marriage is clearly an important institution and a legal recognition through which the state confers rights and obligations. We therefore need to regulate carefully the process by which we allow this important legal status to be established.

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[Lord Lester of Herne Hill]

I am trying to helpful. Why can the Government not adopt the same approach as the previous Government on sexual orientation discrimination, or that of the present Government on caste discrimination, and say that there should be a proper consultation and then have a power included in the Bill to deal with this by regulations with the affirmative resolution procedure, with proper exceptions put in for things such as sham marriages?

[Baroness Stowell of Beeston]

I am not in a position to offer to noble Lords today the kind of specific response that my noble friend has suggested.

Marriage (Same Sex Couples) Bill

Lord Lester of Herne Hill Excerpts

Monday 17th June 2013 Lords Chamber

[Lord Elystan-Morgan]

That is absolutely true. That is the assumption made in the Book of Common Prayer, which, as I understand it—I am a Welsh Presbyterian—says that there are three justifications for marriage. The first is the procreation of children, the second is the avoidance of the temptations of fornication and adultery, and the third is that there should be a lifelong relationship based on love, affection and respect. The first justification has been dealt with very properly by the noble Lord, Lord Phillips of Sudbury. Many people who are young and capable of procreating children now get married on the understanding that there will be no children in their relationship. Does one say that their union is less than a union of marriage? On the third point, about the creation of a lifelong union based on love, affection, respect and mutual dedication, is there a fundamental difference between that and the institution of marriage, as we say now? Nothing that I have said can prove the matter one way or the other. However, I make the obvious point that marriage is not an immutable institution. It has become elongated and greatly changed over the years, and will be changed again. Is it not possible to accommodate within that change the term “marriage” for people of the same sex?

I make one last point with regard to union. The noble Lord, Lord Hylton, said that there was a union of Scotland, England and Wales. It was never a union in relation to Wales, as I am the noble Lord, Lord Elis-Thomas, will agree. The preface to the Act of Union says the country, dominion and principality of Wales is now and always has been annexed, incorporated and included. It was a rape—certainly not a union.

[Lord Lester of Herne Hill]

My Lords, I was not at the Second Reading debate but I have read the 90 speeches since then. I am glad I was not there because I would have added even more to the length of the debates. I declare an interest: I am neither a believing Christian nor a believing Jew, and that no doubt colours the way in which I approach these matters. Many of those who have spoken already come from a strong religious tradition, which I fully respect, and which drives many of their views. As the noble and learned Lord, Lord Brown, has said, the main purpose of the Bill is to enable same-sex couples to marry, either in a civil ceremony or, provided that the religious organisation concerned is in agreement, on religious premises with the marriage being solemnised through a religious ceremony.

I promise to speak only once in relation to Amendments 7, 8, 9, 34 and 46. All are based on the idea that there is something called “traditional marriage”, defined as the union of one man and one woman for life to the exclusion of all others. What they mean by “traditional marriage”—as the noble Lord, Lord Elystan-Morgan, indicated in referring to the Book of Common Prayer—is a form of marriage that is biblically ordained in the Judeo-Christian tradition, which is a theistic tradition, although it does not represent the thinking of many Christians or Jews or many of those of no religious belief who are not affronted by the notion of same-sex marriage. Under the Bill, Christian churches, Orthodox Jews, Sikhs and Muslims are well protected from the risk of liability. However, that does not satisfy the movers of these amendments, who seek to write into the statute book a lesser status for same-sex marriage than for opposite-sex marriage by calling it “civil union” or some other term.

[Lord Gordon of Strathblane]

Will the noble Lord, on reconsideration, delete “lower status” and just say “different status”?

[Lord Lester of Herne Hill]

No, I will not, because I think all noble Lords in this Chamber regard marriage as the crowning of our relationships. As a man who has been married for 41 years, I certainly do, as do many gay people who are religious, or not religious but who regard marriage as the highest status they can aspire to. Therefore if you call it something less, such as civil partnership or civil union, it has a lesser status—not just a different status but a lesser one.

[Baroness Butler-Sloss]

Will the noble Lord at some stage address the amendment of the noble and learned Lord, Lord Mackay of Clashfern? It is difficult to believe that his proposal for “marriage (same-sex couples)” could import a lower standard, because it includes the word “marriage”.

[Lord Lester of Herne Hill]

I may not be able to do that because I still have to deal with these amendments, so I will reflect on that.

[Baroness Butler-Sloss]

It is in the same group of amendments.

[Lord Lester of Herne Hill]

I will do my best. As the noble Lord, Lord Elystan-Morgan, has said, concepts of marriage have not been static in England or elsewhere. During the past three centuries, Parliament has made changes to the status of marriage. What was once traditional and discriminatory is no longer enshrined in English marriage law. The Bill is a further step in removing unjustifiable discrimination, not against Catholics, Protestant dissenters or Jews, but against homosexuals.

I think my noble friend Lady Williams will concede that gay and lesbian couples are just as able as heterosexual couples to love each other in long, enduring relationships. They are just as able to bring up children in the way good parents do, in lifelong relationships. Some noble Lords will have personal experience of their children in gay and lesbian relationships doing precisely that.

Traditionally, the law governing the registration of marriages was piecemeal, restrictive and discriminatory, beginning with the Act of Uniformity 1662 and Lord Hardwicke’s Marriage Act 1753, which abolished common-law marriages. In the 19th century, Parliament created exceptions, one by one, to that discrimination. Most recently, exceptions were made under the Places of Worship Registration Act 1855, not only for Protestant and Jewish dissenters but for other denominations and bodies, theistic and non-theistic, including Buddhists, Jains and Muslims, whose premises are registered for religious worship and the solemnisation of marriages.

Under Scots law, as the noble and learned Lord, Lord Mackay, knows well, marriages by cohabitation and repute could be contracted in Scotland until as recently as 2006. They were still regarded as marriages, even though they were irregular. A traditional marriage could also include a marriage between first cousins, an arranged marriage or a strange thing called a levirate marriage.

Until the Civil Partnership Act 2004, loving gay and lesbian couples could not get legal recognition for their enduring relationship. Now, they may do so. The Act has worked very well, even though it was strongly opposed at the time. However, even though the Civil Partnership Act gives them equivalent rights and duties to those of married couples, it forbids them from marrying and the words “civil union” add nothing to the notion of civil partnership. That is why it is a lesser concept.

A year before the Civil Partnership Act became law, there was an important case—which many of your Lordships will have heard of—Goodridge v Department of Public Health, in which the chief justice of the Supreme Judicial Court of Massachusetts, Margaret Marshall, presided. That court upheld the right to gay and lesbian marriage, rejecting the argument that some of your Lordships have made today and elsewhere, that civil union or civil partnership was good enough. The chief justice explained why, on grounds of due process and equal protection, the state did not have a rational basis for denying same-sex couples marriage. A majority of that court agreed that same-sex couples must not be assigned second-class status, which is what I suggest would be accomplished if any of these amendments were accepted.

The other place has formed a similar view about the need for same-sex couples to marry, as have the Government. I know of no judgment of our courts or of the European Court of Justice that suggests the need for amendments of this character. They would suffer from the serious vice of encouraging a belief in a need for a second-class status for same-sex couples to be enshrined in English law. If the House divides now or hereafter, I will have to vote against any of them.

[Lord Phillips of Sudbury]

Perhaps my noble friend might refer back to what the noble and learned Baroness, Lady Butler-Sloss, asked him, which was whether he objects to Amendment 46, in the name of the noble Lord, Lord Armstrong of Ilminster, which would give the term “matrimony” to a marriage between a man and a woman but would allow marriage to same-sex couples.

[Lord Lester of Herne Hill]

I have already explained my position, which is the same as the judgment I just referred to: that when it comes to marriage, gay and lesbian couples are entitled to total equality to that of opposite-sex couples.

[Lord Black of Brentwood]

My Lords, I strongly support what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said. He crystallised exactly what the debate about this group of amendments is about. The rationale behind this Bill, the philosophy that underpins it, is the concept of equality of marriage. Without wishing to go over the same old ground that to a large degree we went over at Second Reading, the point is that gay people simply want the right to share in the same institutions, not the same institutions that are qualified in some way or another. With due respect to those who say that there is not much in it, there is a great deal in a name and it is much more than a matter of nomenclature, which I think is the phrase the noble Lord, Lord Phillips of Sudbury, referred to.

Words such as “union” and “espousal” will themselves turn rapidly into divisive terms. If I fill out one of those forms at a bank or somewhere else and they say: “Are you married?”, and I have to say: “No, I am espoused”, I shall feel in exactly the same state I was in under the existing law of civil partnerships. Therefore we do not want simply to replace one second-division label with another. I think that the noble Lord, Lord Phillips, was the first to raise the issue of esteem. I have to tell noble Lords that the issue of esteem and the use of the word “marriage”, unqualified by anything else, are inextricably linked.

I spoke in the debate two weeks ago. Other noble Lords talked about the postbags that they had had since then. I have had a very substantial postbag—more so than when I have talked here on other matters—from people who looked at the House and thought very well of our proceedings. A number of people wrote to say that we gave them the courage to come out. That is a remarkable thing. However, this amendment flies in the face of all that. It is a wolf of an amendment in sheep’s clothing. It strikes at the heart of the Bill and would go against the entire philosophy on which it is rightly based, which is full, unqualified equality for gay people.

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[Lord Mawhinney]

I think not, because “ancient” and “modern” carry with them designations which are likely to complicate an already pretty complicated set of circumstances. I am just a simple Belfast boy and “traditional” and “same sex” seem to me to be a fair reflection. However, in the same spirit as that shown by the noble Lord, Lord Hylton, and my noble friend Lord Cormack, if somebody can find a better way to put in the Bill simple phrases that ordinary people can use to protect themselves against being charged with some sort of hatred, I would be very happy to consider that.

[Lord Lester of Herne Hill]

Is the noble Lord aware that the Government have tabled an amendment to deal with his precise point about free speech to make it clear that criticising same-sex marriage or otherwise will not in any way constitute a criminal offence? That is clearly spelt out in a later amendment.

[Lord Mawhinney]

My Lords, I am grateful to the noble Lord for his intervention. He knows, perhaps better than most in the House, that I have a fairly strong commitment to freedom of expression. That commitment to freedom of expression and the Government’s commitment to freedom of expression have been there for years. However, that has not stopped people being accused of hate crimes, race crimes and religious crimes. I do not believe that simply using the term “freedom of expression”, or repeating it, will be any more effective than it has been over the past 30 years. Something simple needs to be put in the Bill that everybody can understand and behind which everybody, whatever their view of the issue, can take refuge, if necessary.

--- Later in debate ---

[Baroness Butler-Sloss]

The declaration of sexuality would be relevant only at the moment of marriage. It would not be relevant to everybody else who meets them or knows it. They will be married. Perhaps the most important point made by the noble Lord, Lord Carlile, was about children. If we have marriage and same-sex marriage, so far as the children are concerned, it is marriage. They will say, “My parents are married”. It seems to me that the noble and learned Lord, Lord Mackay of Clashfern—

[Lord Lester of Herne Hill]

I apologise to the noble and learned Baroness, but I never answered her question when I was on my feet. She asked what I thought of Amendment 2. What I do not understand, either in Amendment 2 or in the speeches in support of it, is why it is necessary. The Bill begins by saying in Clause 1(1):

“Marriage of same sex couples is lawful”.

Subsection (2) refers to:

“The marriage of a same sex couple”.

We do not need to have sarcastic remarks about Lewis Carroll and Humpty Dumpty. The words could not be clearer. I do not understand why one needs to add anything. The Bill is about the marriage of same-sex couples and nothing else.

[Baroness Butler-Sloss]

I am grateful to the noble Lord for being prepared to answer the question that I asked him some considerable time ago. The House needs to recognise the deep division that exists both in this House and in the country. From the quantity of e-mails and letters that I have received, I know that there are a number of people out there who are bitterly upset, bitterly distressed and angry at what has happened with this Bill. I support the noble and learned Lord, Lord Mackay of Clashfern, because the amendment is a compromise—it is an attempt at reconciliation. I do not support the word “union” for the very sensible reasons that have been given. I think that there has to be the word “marriage”—I am, with regret, converted to that now—but I believe that we have to seek a middle way. If we do not, there will be many people out there listening who will be even more upset than people in this House.

--- Later in debate ---

[Lord Lester of Herne Hill]

Is that quite right? The amendment of the noble Lord, Lord Dear, states:

“Nothing in this Act takes away the right of a man and woman to enter a traditional marriage”.

Nothing in the Bill takes away that right. It is not a question of one right trumping another. The rights of the traditionalists are protected completely under the Bill, and the rights of gay people are also protected.

[Lord Alli]

Amendment 9, tabled by the noble Lord, Lord Dear, would create a separate register—so there is a difference in the noble Lord’s amendment, which would create a new category of marriage. More broadly on the noble Lord’s point, I contend that we have to consider the emotional response of the communities involved. The issue cannot be gauged simply by the words in the Act. I argue very strongly that it is not acceptable to have a differentiation in wording or name between different types of marriage. That would be exacerbated outside this Chamber the moment the legislation went through.

--- Later in debate ---

[Lord Lester of Herne Hill]

I am grateful to the Minister for giving way. Will she ask her advisers why the separate but equal doctrine that is being propounded in some parts of the House was struck down by the American Supreme Court in Brown v Board of Education as being inherently discriminatory?

[Baroness Stowell of Beeston]

I shall certainly seek advice on that, but I have a feeling that my noble friend would be able to help me answer the question he has posed. I will certainly endeavour to respond to that point while I remain on my feet.

Amendments 33 and 34 give us an opportunity to discuss Clause 11. It may be helpful if I explain briefly what Clause 11 does. It is a significant clause to ensure that existing and future legislation in England and Wales will be interpreted so that all references to marriage and related terms will be read as applying equally to same-sex married couples unless specifically provided otherwise. This is right and necessary to ensure that all married couples are treated generally in the same way. The clause also gives effect to Schedule 3, which makes further provision for the interpretation of references to marriage in both new and existing legislation in England and Wales. It also gives effect to Schedule 4, which sets out particular instances where the effect of Clause 11 would give the wrong result.

I turn to Amendment 33—

--- Later in debate ---

[Lord Singh of Wimbledon]

The amendment is not as clear as it should be. I want it to be very precise in protecting these sorts of abuses. We will come to discuss that more fully, but I personally believe that it is right and proper to air concerns at this stage.

[Lord Lester of Herne Hill]

Does the noble Lord know that under the Human Rights Act 1998 every part of this Bill must be construed, read and given effect in conformity with the European Convention on Human Rights? The convention fully protects freedom of religion, conscience, belief and expression. Does he also know that the noble Lord, Lord Waddington, had a great victory in this House in writing in free speech guarantees when we debated incitement to religious hatred? Therefore, so far as the law is concerned, there is no lack of clarity. It is not a question of majorities or minorities, and nor is it a question of opinion polls. Every individual is fully entitled to free speech, including the expression of views that I would deplore. I stand to be corrected if I am wrong, but I gather that Mr Clegg did not himself put out that highly obnoxious statement. It was put out by others and was withdrawn as soon as he saw it.

[Lord Singh of Wimbledon]

I thank the noble Lord for that intervention. I will not go too far into the Deputy Prime Minister’s views, because he then went on to say that everyone knows his views. That was a little ambiguous, and did not clarify things. It is true that many of the laws of the land in theory protect us all. In reality, those laws are not very clear. The more clarification that can be brought, the better, because many ordinary people suffer. Many ignorant people abuse those laws, or are ignorant of those laws and harass people. The more clarity we can have, the better.

To give another example, when housing associations and publicly owned venues such as the Queen Elizabeth II Conference Centre deal with people with traditional beliefs about marriage, they should treat them with respect. Yet they were excluded. If they do not treat such people with respect, they should be open to legal challenge for discrimination. When police, schools and hospitals are dealing with staff and service users, their approach to equality should include respecting those with mainstream views.

We should amend this Bill to ensure that people who, in good conscience and without a trace of malice, believe that marriage can be only between two people of opposite sexes are not disadvantaged for those beliefs, which may become minority beliefs, as has been said. They should still be allowed to have those beliefs. Amendment 19 is necessary to safeguard freedom of both belief and speech.

[Lord Lester of Herne Hill]

My Lords, to amplify briefly what I said before, Amendment 19 is completely unnecessary because the part of the Equality Act that it is seeking to amend defines protected characteristics in order to deal with discrimination, harassment and victimisation. In relation to those protected characteristics, it is clear beyond argument that if A is treated worse than B because of his or her opinions about sexuality, sex, marriage, communism, Sikhism, Judaism or anything under the sun, they are fully protected by the amendment that the noble Lord, Lord Waddington, made to the criminal law, and by the Human Rights Act and Articles 9 and 10 of the European Convention on Human Rights.

I am sorry that the noble Lord thinks that a Bill designed to prevent people becoming victims of unfair treatment is creating victims of unfair treatment. The fact that idiots in the public sector or private sector misunderstand it is no reason for us to have to amend this Bill to deal with such idiots. With respect, the state of the law is plain and obvious. It does not require this amendment. Were this amendment to be accepted, it would muddle up the entire concept of the Equality Act, which we took so long to get right.

[Lord Singh of Wimbledon]

If I may briefly respond to that, it is true that the law covers a lot of things. It does not combat ignorance. The law provides equality for Sikhs, Muslims and everyone else. When an outrage by an Islamic fundamentalist takes place, very often the target is a Sikh gurdwara or a Sikh individual. You cannot combat ignorance in that way. The more clarity we put into the law and the more determination we put into upholding the law, the better it will be for everyone.

--- Later in debate ---

[Baroness Stowell of Beeston]

Yes, I can confirm that it relates only to criminal law.

Returning to Amendment 54 from my noble friend Lady Berridge—

[Lord Lester of Herne Hill]

Can my noble friend confirm, so far as the civil law is concerned, that what I said about the Human Rights Act, freedom of speech and freedom of religion applies equally to the civil law?

[Baroness Stowell of Beeston]

Absolutely. I am grateful to my noble friend for making that clear and glad to confirm that he is right.

I cannot accept Amendment 54 because the drafting could give the impression that the law is not to be applied even-handedly, which I know is not what my noble friend intended. It also goes further than we believe is necessary. I hope she will agree with me that our own amendment meets the need.

I therefore ask my noble and learned friend Lord Mackay of Clashfern to consider withdrawing his amendment.

--- Later in debate ---

[Baroness Stowell of Beeston]

We are now getting into so many different hypothetical scenarios—

[Lord Lester of Herne Hill]

Before the Minister answers that question, I wonder if I can give some free advice. The answer to that question is fact-sensitive. It all depends on the terms of engagement. There are cases that uphold freedom of conscience in certain situations but no one can give a categorical answer without knowing the facts of the particular case. There are plenty of former judges here to nod their disagreement if what I have just said is wrong.

[Baroness Stowell of Beeston]

I think I will take my noble friend’s free legal advice and refer the noble Lord, Lord Anderson, to it. On that basis, I hope that I will be able to convince my noble and learned friend, who is also a very experienced lawyer, to withdraw his amendment.

Enterprise and Regulatory Reform Bill

Lord Lester of Herne Hill Excerpts

Monday 4th March 2013 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, I cannot begin to emulate the eloquence of the speech that we have just heard. I too regret that I was not present when this matter was discussed in Committee on 9 January but, after reading Hansard, it is clear to me that the debate was of an exceptionally high standard, particularly the contributions of my noble friends Lady Campbell of Surbiton and Lord Low of Dalston. Unfortunately, my noble friend Lord Low cannot be here today; I cannot begin to take his place, but I agree with everything he said in that debate.

There is another person who cannot be here today for a different reason. He was mentioned by the noble Lord, Lord Wigley, as one of those who led the way in this area of the law in the 1990s and long before that. I refer, of course, to the late Lord Morris of Manchester. It is not difficult for me—or I suspect, anybody else in the House today—to imagine what Lord Morris’s reaction to the proposed repeal of Section 3 would have been. I do not doubt for one moment that he would have regarded it as a serious backwards step, and he would have said so in his usual trenchant terms.

I want to deal first with the argument of the noble Lord, Lord Lester, as a lawyer—I am sure that his heart was not really in it—that if we leave out Section 3 we are losing nothing. Secondly, I want to comment on the reasons given by the noble Baroness, Lady Stowell, at the end of her reply for the Government’s decision to repeal Section 3. The noble Lord, Lord Lester, gave two reasons for his view. The first was that Section 3 was purely aspirational, so it would make no difference if it were repealed. It contained nothing, he said, that could be enforced in a court of law.

However, if that argument were correct, it surely proves too much. If Section 3 is purely aspirational, so, surely, are Sections 8 and 9. How would the noble Lord enforce in a court of law the duty under Section 8 to promote understanding of the importance of equality and diversity? How would he enforce in a court of law the commission’s duty under Section 9 to promote understanding of the importance of human rights? If the legal argument of the noble Lord, Lord Lester, were correct, it would surely mean that we should repeal not only Section 3 but Sections 8 and 9, which would leave us with absolutely nothing. Of course, the truth is that the argument is misconceived. Recent legislation is littered with examples of duties which cannot be enforced in a court of law but serve, nevertheless, a very useful purpose. For example, Section 1 of the Constitutional Reform Act 2005 provides that:

“This Act does not … affect … the existing constitutional principle of the rule of law”.

How is that to be enforced in a court of law? However, it serves an extremely useful purpose.

Another example that occurred to me is Section 1 of the Climate Change Act, which provides that:

“It is the duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline”.

How—perhaps I should say, when—is that duty, clearly stated by Parliament, to become enforceable: in 2048, 2049, or when? Therefore, with respect, that argument carries very little weight. For all those reasons, I suggest, with the utmost delicacy, that the legal argument of the noble Lord, Lord Lester, should not deter us in any way from supporting this amendment.

However, the noble Lord had a second argument. He said that there is nothing in Section 3 which is not also contained in Sections 8 and 9, so Section 3 is in effect otiose. I suggest that he is wrong, but suppose for a moment that he is right: if Section 3 adds nothing to Sections 8 and 9, how is that consistent with the Government’s argument all along that Section 3 is too broad? As the noble Lord, Lord Low, pointed out, the Government simply cannot have it both ways. I suggest that he was right. In truth, Section 3 does indeed add something which is not in Sections 8 or 9, and something of the very greatest importance. It provides for the first time in legislation the unifying link between equality and other fundamental human rights. This was the point made by Sir Bob Hepple in his memorandum, which I hope the noble Baroness has read, and which has already been referred to by the noble Baroness, Lady Lister. That deserves an answer and I hope that it will get one. Indeed, the assertion of a unifying principle in Section 3 was surely one of the main objectives of the 2006 Act, as the noble Lord, Lord Lester, himself pointed out when he was promoting the Bill. Therefore, I again suggest, as delicately as I can, that the noble Lord might in this instance have done better to follow his heart than his head.

[Lord Lester of Herne Hill]

My Lords, I was not intending to speak and it is a misfortune for the House that I now do so, with extraordinary brevity. When I joined this House almost 20 years ago, Lord Alexander of Weedon said to me, “Remember, Anthony, that the House of Lords is not a court of appeal, it is a jury. Try, if you can, to speak to a jury”. I totally disagree with almost everything that the noble and learned Lord, Lord Lloyd of Berwick, has said today, and would do so in a court of appeal. However, when we are dealing with a jury whose sentiment has already been powerfully expressed, I do not think that it would do the slightest good if I were to explain exactly why I continue to hold the view that I did previously.

By the way, I did not promote the 2006 Act, but I certainly took part in debates on it and I did not oppose Section 3. However, being a practical person—I am no philosopher—I shall concentrate in these debates on three practical things: one is caste discrimination, the second is the abolition of the questionnaire procedure, and the third is the relationship between the Joint Committee on Human Rights and the commission. I hope that I shall not speak on anything else.

--- Later in debate ---

[The Lord Bishop of Hereford]

My Lords, I pay tribute to the noble and right reverend Lord, Lord Harries, and others proposing this amendment, to which I give my full support. I do not want to delay this debate too much because it is quite clear what many of your Lordships think. However, I will make three brief points. First, I go back to the theme touched on by the noble and right reverend Lord, Lord Harries, and others about the Government’s plans to address this underlying issue by way of education. We have just been reminded about dictionary definitions. Education is from “educere” to lead us out; to lead us out, surely, into greater truth and the fullness of that truth; for us to flourish as human beings; and to become the best human beings we can be. Within that, I believe, the spirit of God leads us into the fullness of that truth of all being valued in the sight of God.

Secondly, we need consistency in how we approach these issues. Yes, there should be education but not only education. As we have been reminded by the noble Lord, Lord Deben, where does that lead? If it does not lead to the possibility of those who are being educated to treat others equally, to have the law support that as well, we let them down and fail them. Surely, our law is but the right ordering of our society. As we have been reminded by the noble and right reverend Lord, Lord Harries, this issue is about the public arena.

Thirdly, and to which the noble Lord, Lord Alton, has drawn our attention, having had this debate, if we should turn away and not support this amendment, we are giving a worse signal than if we had never had the debate. We need the debate and we need it to be in the open. Having got to this point, we cannot let ourselves turn away. That would cause more harm, more damage and more discrimination. I hope very much that the Minister will accept this amendment and, if not, that it will have the support of all the Benches.

[Lord Lester of Herne Hill]

Perhaps I may follow especially what was said by the noble and learned Lord, Lord Mackay of Clashfern, with which I agree. However, first, I recall that the previous Government, led by the noble Baronesses, Lady Royall and Lady Thornton, met with a large group of Dalits, introduced by my noble friend Lord Avebury and the noble and right reverend Lord, Lord Harries of Pentregarth. As I recall, they listened to them for the best part of three or four hours and were deeply affected by what they learnt from them. It was decided to include a power in the 2010 Act precisely to deal with the problem about which they had heard and to get the necessary research, which they did, and then to deal with the problem of legal uncertainty. As I understand it, the whole reason for the power was because it was necessary to deal with the problem of legal uncertainty if the Government were satisfied that there was evidence of discrimination.

During the debates that then took place, the noble Baroness, Lady Warsi, played a conspicuous role. I was looking back to some of the things that she said. She referred to a study, Hidden Apartheid—Voice of the Community—Caste and Caste Discrimination in the UK. She said that the study,

“illustrates that there is a real and widespread problem, whereas that does not appear to come back from the Government's consultations”.—[Official Report, 11/1/10; col. 340.]

She also referred to a “serious problem”. I pay tribute to her for that.

The noble and learned Lord, Lord Mackay, rightly suggested that it is strongly arguable that the concept of race, notably of ethnic origins, might be capable of being extended to cover caste. I agree with him that that might be possible, especially when one considers the position of Jews and Sikhs. In the Jewish free school case, the Supreme Court had to deal with a dispute between orthodox Jews and Jews outside the United Synagogue. The Supreme Court interpreted the notion of ethnicity to include descent and held on the fact that a school was discriminating on the basis of descent as part of race.

Many years before, in the Sikh Mandla v Lee case—in which representation was made by an extremely able young advocate, now the noble and learned Lord, Lord Irvine of Lairg—a school refused to allow a Sikh boy to be a member of the school if he wore a turban. The House of Lords decided that the word “descent” as part of ethnic origins was capable of being construed to treat Sikhs as being protected by the Racial Discrimination Act.

We are in the position in which some 300,000 Jews—as the noble Lord, Lord Deben, indicated in his extraordinarily powerful speech—and 300,000 Sikhs in this country are protected against race discrimination as ethnic groups, but Dalits are not yet protected. It would take a case all the way to the Supreme Court to try to prevail in the way that Sikhs and Jews have done.

Noble Lords will have read in the newspapers that there was indeed a test case brought in an employment tribunal by Vijay and Amardeep Begraj. After a 36-day hearing, the judge recused herself on the application of the defendant after a visit from two West Midlands Police officers. As a result, there is no determination of their complaints of caste-based discrimination, caste-based victimisation and caste-based harassment. They ran out of money, and I cannot imagine how it would be possible for anyone in the Dalit community to be able now to bring a case that could go before a tribunal, the Employment Appeal Tribunal, the Court of Appeal and the Supreme Court. It would cost hundreds of thousands of pounds for the costs of both sides.

Therefore, one of the overwhelmingly strong reasons for supporting this amendment is not, as was suggested by the noble Lord, Lord Alton, that it is declaratory. The whole point is that it is not declaratory: it would bring the Dalits within legal protection. They would at last have effective remedies.

[Lord Alton of Liverpool]

I was trying to say—and perhaps my voice was not particularly helping—that it was more that we had made a declaratory statement in the earlier amendment and I felt that it would be a negative declaratory statement if we were not to pass this amendment because of the message that it would send, not just to the 400,000 Dalits in this country but to those living in India.

[Lord Lester of Herne Hill]

I am most grateful. Contrary to the impression that I might create, I am not simply a cold-hearted lawyer: I value symbols very much indeed.

I finish with this about education and legislation. It is almost 50 years since, in 1967, in its first annual report, the Race Relations Board summarised the role of legislation in this way: First:

“A law is an unequivocal declaration of public policy”.

Secondly:

“A law gives support to those who do not wish to discriminate, but who feel compelled to do so by social pressure”.

Thirdly:

“A law gives protection and redress to minority groups”.

Fourthly:

“A law thus provides for the peaceful and orderly adjustment of grievances and the release of tensions” ,

and fifthly:

“A law reduces prejudice by discouraging the behavior in which prejudice finds expression”.

Gandhiji is no longer alive, but I have no doubt that his spirit would guide us in a vote if it is decided to divide the House.

[Lord Cormack]

My Lords, I strongly support what has been said. As my noble friend Lord Deben, with whom I do not always agree, made his powerful and convincing speech, I could not help but remember a conversation I had with my father—who loved India and travelled there often before the Second World War—in 1947, 66 years ago when India became independent. I thought of that conversation, too, when the noble Baroness, Lady Flather, was addressing us a few moments ago. My father said, “India will have its independence, and I hope that that will mean the end of the caste system”.

As a young boy of seven, I had not a clue what he was talking about. He sat me down and explained the plight of the untouchables, which had moved him many times in his visits to India. Here we are, 66 years on, and there are people not only in India but in our own land who do not have the protections for which my noble friend Lord Deben and others have argued so articulately this afternoon.

A few months ago, we had a fine debate introduced by my noble friend Lord Popat, who is sitting on the Front Bench now. It was to commemorate the 40th anniversary of the admission of the Uganda Asians. From all sides of the House, people spoke with passion, conviction and affection for the way in which that community adapted and adopted itself and enriched us all in the process. It was right that we should pay our tributes. But is it not sad that there are still 400,000 in this country who do not enjoy the full protection of the law in the way in which the Ugandan Asians rightly do?

I very much hope this afternoon that the House will not need to divide. I hope that it will carry this amendment by acclamation. If there is any chance at all of the Government not being able to accept the amendment, I hope—and here I repeat what I said in an earlier debate and echo what the noble Lord, Lord Alton, said—that at the very least, my noble friend the Minister will think again and come back at Third Reading. If she cannot do that and does not feel that she can discuss with senior colleagues in the Government the need to do that, the House has a duty incumbent on it to strike a blow—brief but effective.

If we wanted to be convinced of the need for that, we need only reflect on the words of the noble Lord, Lord Lester, a few moments ago when he talked about the expense of going to law. Do we wish to create a situation where the only way of seeking redress of the basic grievance of not being treated equal is to go to law? No, we do not. If the amendment cannot be accepted and if there cannot be a promise to come back at Third Reading, I hope that it will be carried.

--- Later in debate ---

[Baroness Stowell of Beeston]

I hope that, as I continue my remarks, I will be able to answer the points made by my noble friend and the noble Baroness. My noble friend Lord Avebury talked about business only needing to familiarise itself with caste legislation when a case of discrimination occurs. I would argue that that is not the case. Employers and service providers have to familiarise themselves with the law in order to avoid being faced with claims for discrimination. The noble and right reverend Lord, Lord Harries, asked about the cost of the education initiative. I can inform him that the estimated cost is around £20,000. I should also say that I thought that the contribution made by the noble Lord, Lord Singh, on the history behind caste was very illustrative because it demonstrated the point I have just made in response to my noble friend Lord Avebury about the need, if we were to introduce a law, to educate business in just how complex an issue this is and therefore how much education will be necessary.

The joint initiative between the Department for Communities and Local Government and the Government Equalities Office has already appointed a body called Talk for a Change to take this work forward in partnership with any organisation that wishes to become involved in finding practical, community-based solutions to the problems and harm that caste-based prejudice can cause. Over the next few months, the programme will see Talk for a Change running a series of regional workshops that will engage with individuals and organisations from local communities to explore the nature and sensitivities of the caste system and the emotional harm that caste prejudice and discrimination can cause. In response to a point made by my noble friend Lord Deben, I say that the workshops will also be used to raise awareness within those communities of the channels of redress that are already open to those who feel themselves to have been victims of caste prejudice, discrimination or harassment. The outcomes from these events will be used to provide material that can be made available to local authorities, schools, colleges, employers, the police and any others who may come into contact with caste-related issues. The details of how those who wish to participate in this project can get involved will be available shortly on the Talk for a Change website, and we will also ensure that these projects are widely advertised.

We believe that this education programme, which will explore all the issues, not just those covered by discrimination legislation, is an appropriate and targeted way of dealing with incidents related to caste that are not already susceptible to the criminal law or other remedies such as employment law or informal grievance procedures. However, that is not all we are doing. As has already been referred to, the Equality and Human Rights Commission was mentioned several times during our debate in Committee as an important player in this issue. We have been in discussions with the commission about caste discrimination, and both the Government Equalities Office and the commission have agreed that it would be useful to examine the evidence from existing studies and the extent to which different approaches might address the problem. This work will not duplicate the previous work undertaken in the area, such as the NIESR report.

In response to the noble and right reverend Lord, Lord Harries, and my noble friend Lord Avebury, who I think used the term Groundhog Day when commenting on this issue, let me make it absolutely clear how this is going to be different. NIESR carried out primary research to determine whether caste prejudice and discrimination exists in Great Britain. That research included discussions with a range of organisations and interviews with individuals who have claimed to be the victims of such behaviour. The commission will use the evidence that is currently available as part of its consideration of the nature of caste prejudice and harassment and the extent to which this problem is likely to be addressed by legislative or other solutions. The commission intends to publish its findings later this year, which we will of course consider carefully. My noble friend Lord Avebury asked whether a budget had been set aside for the commission to look at this issue. The commission has not requested a budget for this work because, as we debated at length in the previous debate, it is an independent body that takes its own decisions about its workload and spending within its own overall budget.

My noble and learned friend Lord Mackay of Clashfern raised an important legal matter, and he was supported in doing so by my noble friend Lord Lester. He said that caste is already potentially a subset of race and that perhaps the current existence of the separate power on caste in the Equality Act 2006 detracts from that. It goes without saying that my noble and learned friend knows far more about the law than I could ever begin to know myself, and whenever he intervenes to make a point, I consider it carefully and with great seriousness. However, we are not aware of any case law directly on this point, although I note that my noble friend Lord Lester seemed to suggest that some exists. What I would like to suggest is that, when the commission undertakes its study, this is an area on which it might properly reflect as part of its work. This is precisely the kind of thing that the commission should consider in the work that it is about to do.

[Lord Lester of Herne Hill]

Is the Minister aware that the UN Committee on the Elimination of Racial Discrimination has called on the United Kingdom to legislate in this area?

[Baroness Stowell of Beeston]

My noble friend is familiar with the detail in this area. If that is so, I am not in a position to suggest that he is wrong. However, we do not believe that it is necessary to introduce legislation at this time.

The Government are largely in accord with the aims of this amendment. We all want to see an end to caste-based prejudice and discrimination. We are not closing the door to legislation. We have no plans to remove the power from the Act, and we will leave it there in case new evidence emerges which makes it clear that legislation would help to achieve the aim that we all share. As I have already made clear, we will consider the outcome of the commission’s study when it reports later this year.

--- Later in debate ---

Moved by

[Lord Lester of Herne Hill]

75: Clause 59, leave out Clause 59

[Lord Lester of Herne Hill]

My Lords, I was unable to take part in the debate on this issue on 14 January in Committee because of ill-health. I am grateful to those who spoke at that time. We are dealing here with a procedure invented in 1974, one that has worked very well and is designed to help people without legal aid to know whether they have a good case for discrimination. This procedure concerns not only ethnic minorities, religious minorities, women, the disabled and the elderly, but everybody protected by the Equality Act 2010.

The repeal of the statutory procedure that enables would-be claimants to use a standard form to find out whether they have a good case would greatly diminish and impair the ability of potential claimants to have effective access to justice in pursuing claims of alleged unlawful discrimination. It would be regressive and undermine the practical benefits of the Equality Act for women and girls, ethnic and religious minorities, the disabled, the elderly, and gay and lesbian men and women. I therefore hope that the Minister will be able to accept this amendment so that the procedure may be retained.

The questionnaire procedure was introduced into the Sex Discrimination Act 1975 and the Race Relations Act 1976 when I was special adviser to Home Secretary Roy Jenkins. The White Paper, Racial Discrimination, published in September 1975 explained in paragraph 85 that:

“Help will be given to a person who considers that he may have been discriminated against unlawfully to decide whether to institute proceedings and, if he does so, to formulate and present his case in the most effective manner … In addition to helping the aggrieved person to ascertain the nature of the respondent’s case at an early stage by means of a simple, inexpensive procedure, this provision will also enable complaints which are groundless or based on misunderstandings to be resolved without recourse to legal proceedings”.

The position with discrimination law is that the burden of proof remains, as it has always done, on the claimant to make out a prima facie case before the burden shifts to the employer or service provider. The Explanatory Notes to Section 136 of the Equality Act 2010 explain that,

“the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act”.

That has always been the position and it involves a fair sharing of the burden of proof. As Karon Monaghan QC notes in the leading textbook on equality law in paragraph 14.18:

“The courts have long acknowledged that proving direct discrimination ... is peculiarly problematic. This is reflected in such statistical data as exists, which indicates that discrimination, particularly race discrimination, cases have lower prospects of success than any other comparable claims”.

She reviewed the case law and concluded:

“The outcome of a case will ... usually depend on the inferences which it is proper to draw from the primary facts. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with the questionnaire provisions”.

Abolishing the questionnaire procedure would deprive the tribunal or court of the power to draw such inferences because of the failure by the employer or other respondent to answer the questions or because they did so in an equivocal and shifty way. That would be unfair and unjust. The Minister accepted in Grand Committee that the questionnaire form is “simple and straightforward” but she cited fears expressed by the Opposition in 1975 that the procedure might be abused. That was before the forms were published and used and there is no evidence of which I am aware that the procedure has been abused or indeed criticised by any court, tribunal, legal practitioner or academic during the 35 years it has operated. I invite my noble friend the Minister to indicate whether she agrees, or has even a scintilla of evidence—as opposed to assertion—that any court, tribunal, legal practitioner or academic during the past 35 years has ever suggested that the procedure is abusive. In Grand Committee the Minister referred to the procedure as not being replicated in other areas of employment law. That is because there are special difficulties in proving discrimination cases, as the courts have repeatedly said.

The procedure has proved to be of real practical benefit for potential claimants and respondents and was extended by successive Governments and Parliaments to the other forms of unlawful discrimination in the employment, education, goods and services, and public service provision fields. It applies to alleged discrimination because of religion or belief, sexual orientation, disability, and age, and in relation to equal pay without sex discrimination. It was included in Section 138 of the 2010 Act without controversy or any opposition in either House. It does not require the complainant to use the forms prescribed by the Minister, so there is no micromanagement here.

Complaints of alleged discrimination—whether direct or indirect—are, as I have said, very hard to prove and most of the relevant information is in the possession of the respondent rather than the claimant. For example, in a direct discrimination case the claimant has to choose a comparator to prove less favourable treatment on a ground forbidden by the Act. The burden of proof is on the complainant. Only the respondent is in possession of the relevant facts about whether the comparison is appropriate and whether the facts show less favourable treatment, and, if so, the reason for this. Similarly, in an indirect discrimination case, the claimant has to prove disproportionate adverse impact on forbidden grounds. Again, only the respondent has the facts, including statistical or other material and whether there is an objective justification for the discriminatory barrier.

It is essential that the potential respondent is encouraged to disclose the essential facts at an early stage to help the potential claimant to know whether to proceed and also to encourage conciliation and settlements by encouraging the respondent to take the matter seriously pre-litigation. If the procedure were abused, the employer or service provider could refuse to reply and the tribunal would uphold their position because of the abusive approach of the claimant.

These considerations were not brought out in the Government’s consultation paper, which stated that the Government had seen no evidence that the question and answer procedure reduces litigation. As a result of the consultation, however, evidence did come to light, notably from the Equality and Human Rights Commission, about the practical utility of the procedure. The commission’s position paper was published in August 2012. Its evidence is particularly important. Parliament has made the commission responsible for monitoring the effectiveness of the legislation and the likely effect of a proposed change of law. That is what Parliament has decided. The commission is able to draw on 35 years of experience by the equality agencies it has replaced.

The commission has explained that the procedure has led to cases being resolved or not being pursued and that repealing Section 138 would limit the evidence on which a claimant can rely in proving their case. The commission has found the procedure useful in assessing the strength of a case and has made decisions not to assist a case under Section 28 based on the response to questionnaires. By making it harder for the claimant to seek an effective remedy for discrimination there is an increased risk of a legal challenge to the repeal of Section 138. The commission also rightly points out that claimants will still have the right to pose questions pre-claim but that it is preferable to do so on the basis of the questionnaire.

The Government’s response does not address any of the issues raised by supporters of the procedure—some 83% of respondents—including not only the EHRC, trade unions and the equality NGOs but also the judiciary. The Government dismiss the evidence as not “quantifiable” and state that the question and answer procedure,

“encourages undesirable micro-management of the process by government, including prescribing the nature of the forms to be used, and the time limits involved”.

It is difficult to understand how the procedure can be described as micromanagement, still less as undesirable micromanagement. The Government consider that the more effective approach is to leave,

“businesses free to decide how and whether they respond to enquiries of this sort, with any attendant balance of risk that may be involved”.

I cannot agree. With the existing questionnaires, the tribunal or court can draw a negative inference against an employer who fails to respond to the questionnaire. That is an important incentive for employers, trade unions and services providers to respond. Without that incentive the help given under the Equality Act and its predecessor Acts is taken away and the claimant falls back on the disclosure powers of the courts and tribunals. These are extensive and disclosure orders are far more time consuming than filling out the existing questionnaires.

In its excellent briefing, the Equality and Diversity Forum expressed concern about the proposal to abolish the questionnaire procedure because it saves money by deterring ill-founded litigation, enables the early resolution of disputes, clarifies the issues in contention and facilitates access to justice. Some 83% of consultees oppose the repeal of this provision. Indeed—your Lordships may think this is a killer point—the president and the regional employment judges of the employment tribunals have described it as a retrograde step. There is no credible evidence that I know of that the procedure is a burden on business. I agree and I beg to move.

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[Lord Lester of Herne Hill]

I would like clarification, although I am listening very carefully. Is it contemplated that the conciliation procedure will enable a claimant to do something like serve such a questionnaire in order to try to understand whether they have a good case or not, or is this procedure to be abolished if the Government have their way?

[Baroness Stowell of Beeston]

To be absolutely clear, this is not about abolishing the opportunity for anybody to submit questions to an employer to gather information. All we are removing is the statutory requirement for that employer to have to respond to those questions within a time limit, and, if they were not to do so, providing for their non-response to be considered by the tribunal service.

I will return to what I was saying. If parties do not in the end agree to conciliation taking place, a conversation with ACAS will give them a better understanding of the issue and of the tribunal process. The individual will then still be able to seek information from the employer or service provider, before making any decision on whether to take their claim to the tribunal. Individuals will still be free to seek information from an employer or service provider about alleged discriminatory conduct without the statutory process. Information can be sought informally, in writing or orally.

To help this process, this informal approach will be set out in ACAS-approved guidance. This is being developed with the input of interested parties, including the Equality and Diversity Forum, the Equality and Human Rights Commission, and the CBI. Since we last debated this issue, ACAS has developed draft guidance for consideration by the group of interested parties. The guidance will include advice on how to seek pre-claim information in the employment as well as the goods and services context.

My noble friend Lord Lester referred to the fact that without statutory procedure employers will not help claimants by providing information. My response is that we are removing that statutory requirement for them to respond. When that ceases to exist, courts and tribunals may still take into account a refusal to answer questions or their provision of answers that look evasive when deciding whether a case of discrimination has been made out. The fact that there is no statutory process does not remove the risk to an employer or service provider of deciding not to respond to a claimant; it only removes the unnecessary and prescriptive process around that.

In conclusion I remind noble Lords of what I said in Committee, that we are now in a different climate to 40 years ago when this legislation was introduced. Businesses are more concerned with upholding their reputations and the damage reputational risk may have on their position in their market. There is a greater trend towards transparency around information held by business. Clearly that is progress and something that we support.

I hope that noble Lords can agree that the statutory process is no longer the right approach and that our alternative arrangements will continue to enable the kind of pre-claim dialogue that business and the Government are fully committed to supporting, with a lighter-touch process which benefits all equally. I hope that in responding I have given my noble friend at least some assurance that might lead him to withdraw his amendment.

[Lord Lester of Herne Hill]

I am grateful to the Minister and to others who have taken part in the debate. I wish that there had been some assurance that I could rely upon, because I very much hoped that it would not be necessary to test the opinion of the House. However, as the noble Baroness, Lady Thornton, said, this is probably—in fact it is—the most important amendment that the House is considering, because it seeks to help the vulnerable, who are more than half the population. If you add together women, elderly people, the disabled, black people, brown people, religious minorities, and the gay and lesbian community, it comes to more than half the population. Therefore, to take away a simple procedure that has worked well in the estimation of all the judges and experts whom I have ever known—and I can claim a bit of expertise, since I have been arguing cases in this area for about 30 years, God help me, and perhaps I have a little more practical experience than some others who are advising the Government—will make it very hard to bring a discrimination claim.

It is all very well to say, “Oh well, you don’t need the statutory thing—you can just go and write a letter”. To write a letter that will lead to any kind of result probably means going to a solicitor or a trade union representative, if you are lucky enough to have one in the real world. In the real world, without this procedure, and without legal aid for employment tribunals, the applicant will bring cases that are misconceived, the conciliation process will not work well because of a lack of information, and the whole situation will be worse for victims. I do not know whether the Conservative part of the coalition wishes to go into the next election with credit for having dismantled one piece of valuable assistance to claimants. If it does, so be it. That, however, would be foolish. I speak only for the Liberal Democrats, but I do not believe that the Conservative part of the Government wishes to undo the valuable work done by previous Conservative Governments over the past 30 or 40 years in supporting this measure and others like it.

We put this on the statute book only two years ago in the 2010 Act, with all-party support. What has changed since then? The Red Tape Challenge. The original notion of that was to dismantle the whole of the equality legislation, and this is one part that has survived. It is foolish of the Government to continue to do this, and therefore I must reluctantly beg leave to test the opinion of the House.

Leveson Inquiry

Lord Lester of Herne Hill Excerpts

Friday 11th January 2013 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, in view of the attack by the noble Lord, Lord Donoughue, on Rupert Murdoch, I suppose that I should declare an interest, in that I have represented the Times and the Sunday Times in both Rupert Murdoch’s reign and that of Harold Evans.

Sir Brian Leveson is a very senior and experienced criminal judge. His careful evaluation of the evidence has demonstrated, in his words, that there have been far too many occasions when parts of the press have acted,

“as if its own code … did not exist. This has caused real hardship and, on occasion, wreaked havoc with the lives of innocent people whose rights and liberties have been disdained. This is not just the famous but ordinary members of the public, caught up in events (many of them, truly tragic) far larger than they could cope with but made much, much worse by press behaviour that, at times, can only be described as outrageous”.

I strongly agree with that conclusion and the central recommendation for a new self-regulation body, independent in respect of appointments and funding, with a standards code, an arbitration service and a speedy complaint-handling mechanism. I also agree that it is essential that there is legislation to underpin and facilitate its recognition in legal processes. I have sought to do so in the little Bill that I introduced last month.

I strongly support self-regulation with statutory underpinning, not state regulation, under a new system that commands widespread public confidence. A contract or a royal charter should contain the machinery and details of self-regulation, including professional codes, arbitration and dealing with complaints. However, there needs to be statutory underpinning to guarantee independence from government interference—I do not share the apparent trust of the noble Lord, Lord Donoughue, in politicians other than the noble Baroness, Lady Thatcher—to create incentives for joining the scheme and complying with professional standards, and to make sure that the new regulator is able to secure compliance and provide effective remedies.

The overriding and pressing need is for the industry to agree on a new, independent, well resourced and powerful regulator of professional standards and conduct. Statutory underpinning should avoid legislative overreach bordering on state regulation. However, Sir Brian’s proposals include extending the law on punitive damages and data protection. That, in my opinion, would be counterproductive and would seriously hamper investigative journalism in breach of the freedom of expression of the public and the media as public watchdogs, and purveyors of information and ideas to the public on matters of legitimate public interest and concern.

Lord Justice Leveson recommends extending the law on exemplary damages by Act of Parliament so that if a newspaper publisher chooses not to subscribe to the proposed regulatory body and is found to have infringed the civil law rights of a claimant, the publisher could be considered on that basis to have shown wilful disregard of standards and be liable to exemplary or punitive damages. This potentially draconian penalty would apply to any newspaper publisher, including a small regional newspaper or Private Eye. I disagree with that recommendation. Exemplary damages are punitive and, in essence, criminal penalties, not intended to compensate the claimant for any loss. In 1997, the Law Commission recommended that there should be an extension of exemplary damages, but there was no consideration of whether that would conform to the constitutional right to free speech.

Sir Brian relies on that 1997 report and explains that he has,

“no doubt that the court should be able to award exemplary damages in privacy cases and ... breach of confidence and similar media tort”.

However, in 1999, when the noble and learned Lord, Lord Irvine of Lairg, was Lord Chancellor, the Labour Government announced for good reason that it had decided not to take that Law Commission recommendation on exemplary damages. The Labour Government reiterated that position eight years later, when the noble and learned Lord, Lord Falconer of Thoroton, was Lord Chancellor, in their 2007 consultation. Lord Justice Leveson’s report does not mention these continued rejections of that proposal. Nor does it consider the serious risk that to extend the law on exemplary damages in that way would be incompatible with free speech.

It goes further. The report refers to Mr Justice Eady’s ruling in the Mosley case, but fails to quote the passage from the judgment in that case that is at odds with Leveson’s recommendation. Mr Justice Eady sets out in detail why it would be wrong in principle and a violation of free speech to extend exemplary damages in the way that is suggested. Mr Justice Eady’s statement is important because the tests of necessity and proportionality that he sets out have to be satisfied if a penalty on free speech were to pass muster under our constitutional right to free expression. I very much hope that that proposal will not be taken forward by the Government or anyone else.

I also disagree with the recommendation to tighten the law on data protection. The proposed amendments would result in restrictions on investigative journalism that could defeat the very object of the protection afforded by Section 32 of the Data Protection Act and tilt the balance unfairly against press freedom and free speech. I am quoted by Sir Brian Leveson in his report as being “prescient” in having, in a debate a dozen years ago, queried whether what the Government were doing on data protection made sense. Sir Brian describes me as prescient, but I was never asked to give evidence to the inquiry and, if I had been, I would have said that I did not share the view that I had been prescient. The past 12 years have not demonstrated that anything like the changes made to data protection proposed would now be justifiable. It is therefore welcome that the Government are going to consult on that crucial question.

Statutory underpinning is needed to compel Ministers and others to uphold freedom of speech, freedom of the press and the independence and effectiveness of the new regulator. Those aims cannot be achieved by contract alone because a contract does not bind third parties or affect the role of the courts. Another reason why an Act of Parliament is needed is to provide a powerful incentive for publishers to join the new system and abide by high professional standards. That incentive is contained in my little Bill by widening the public interest defence in claims of libel and media intrusion on personal privacy where the newspaper, its editor or staff can show—it is for them to do so—that they have acted responsibly in news gathering and publishing, in accordance with the standards and practices prescribed by the new regulator. The courts would take that into account, making it much less likely that the publisher would be found liable for alleged wrongdoing. I hope something along these lines will be accepted by the press and the politicians to overcome what I regard as irrational opposition to any statutory underpinning.

Enterprise and Regulatory Reform Bill

Lord Lester of Herne Hill Excerpts

Wednesday 9th January 2013 Grand Committee

[Lord Wigley]

My Lords, I am very glad of the opportunity to intervene briefly in this debate and should declare an interest in regard to my involvement with Mencap Wales, Autism Cymru and a number of other disability organisations. I congratulate warmly the noble Baroness, Lady Campbell, on introducing this important amendment. I agree with what she said, as I did with the noble Lord, Lord Low.

I recall the battles in the 1990s to establish disability rights. Those battles were led by Lord Ashley, Lord Morris, John Hannam and others, across party boundaries, because of the importance of enshrining in law the principles of rights. My fear is that we are in danger of a movement backwards today.

The general duty is necessary to avoid regulatory gaps or the effect of overlaps. Rather than being repealed, it should, if anything, be amended to establish more clearly the EHRC’s overriding purpose, powers and duties and to support the focus on being an equality regulator and a general human rights institution.

I have concern also about the proposal to move from a three-year to a five-year progress report cycle. There is a real danger here that if the cycle were to start coinciding with the electoral cycle, we could find many of these issues becoming politicised, which is in nobody’s interest. I have further reservations about the repeal of the conciliation powers, which would amount to the loss of the EHRC’s wide-ranging, background role in monitoring the effects of legislation.

The Government need to make a very strong case for repealing Section 3 as the Bill proposes, and I doubt that they can do so. If they are not prepared to think again between now and Report, we should support similar amendments at that stage in the Chamber in order to give the EHRC and all involved in disability the strongest possible messages.

[Lord Lester of Herne Hill]

My Lords, I apologise to the mover of the amendment that I was not present when she spoke. I shall be extremely brief, because I explained at Second Reading that nothing in this clause would remove any of the commission’s powers or functions and why I regarded what was being deleted as not harming, but improving, the performance of the commission.

The general duty arose not in the 2010 Act but in the 2006 Act, and the 2006 Act unfortunately put the cart before the horse, as some will remember. Instead of doing what was done in the 2010 Act, which was to reform the underlying discrimination law and bring it all together, the then Government instead put the cart before the horse by setting up a commission without having reformed the underlying law. They put into the 2006 Act this general duty, which is unenforceable and purely aspirational—for those who pull faces when I say that, I remind them of the aspirational language, which is very fine but not capable of being enforced in any court of law. What they did in addition to that, and which is unaffected by the Bill now before the Committee, was to put in Section 8:

“The Commission shall, by exercising the powers conferred by this Part … promote understanding of the importance of equality and diversity … encourage good practice in relation to equality and diversity … promote equality of opportunity … promote awareness and understanding of rights under the equality enactments … enforce the equality enactments … work towards the elimination of unlawful discrimination, and … work towards the elimination of unlawful harassment”.

That is in Section 8 and is unaffected by anything in this present Bill. They then went on in Section 9, also unaffected by this Bill, to provide that:

“The Commission shall, by exercising the powers conferred by this Part … promote understanding of the importance of human rights … encourage good practice in relation to human rights … promote awareness, understanding and protection of human rights, and … encourage public authorities to comply with section 6 of the Human Rights Act 1998”.

Those are completely intact, as are all the enforcement powers given to the commission under the 2010 Act. Rather like the socio-economic disadvantage rhetoric that the Government have rightly not sought to rely on, all that has been taken away in the general duty is the following:

“The Commission shall exercise its functions under this Part with a view to encouraging and supporting the development of a society in which … people’s ability to achieve their potential is not limited by prejudice or discrimination ... there is respect for and protection of each individual’s human rights … there is respect for the dignity and worth of each individual … each individual has an equal opportunity to participate in society, and there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights”.

Everybody in the Committee would agree with those sentiments, but the point that I make as a lawyer, for which I do not apologise, is that none of that is capable of being enforceable in any way. A duty that is written in water—it is clearly aspirational—may make us all feel joyful but it is not sensible to have it in legislation for a commission that in the past, as many in this Room will know, has been distracted by an overbroad and vague mandate. It is time that the new commission, as it were, concentrated on what it is meant to do, which is strategic law enforcement and everything else associated with that. I know that I am in a minority in this Committee but I for one consider that it is perfectly legitimate to get rid of Section 3, while retaining intact all the commission’s powers and statutory functions.

--- Later in debate ---

[Lord Lester of Herne Hill]

My difficulty is that I cannot see what is added in Section 3 to what is mentioned in the other sections. Can it be explained why stating general aspirations of the kind that one finds in international conventions on human rights adds anything to the work of the commission? I am talking not about perception but reality; I realise that perception matters but in reality the Committee should face the fact that nothing in this Bill is taking away any of the commission’s functions. The commission itself has rightly said that it does not regard the removal of Section 3 as damaging to its work.

[Baroness Howe of Idlicote]

My Lords, it is very seldom indeed that I disagree with my noble friend Lord Lester. I call him my noble friend because he has been a friend for so many years. However, on this occasion I must disagree with him, and my reason for that goes right back to the Equal Pay Act and the Sex Discrimination Act 1975. How long ago was that? It is a considerable number of years. Are we entirely happy with how equal opportunities have proceeded? Has it all been achieved? I would certainly argue not yet. There is a heck of a lot to catch up on and to have accepted.

That is exactly why I recommend very strongly the amendment that has been moved, and spoken to so brilliantly by the noble Baroness, Lady Campbell, and others. The noble Lord, Lord Lester, may well say that it is all written out there, but there is a section that can help the commission to talk to the different groups, get them together, and take them through the processes that might make their advancement as individual groups or as part of the community much more acceptable. That is a strong reason why we should retain this section. I will spend no more time than that on it but I feel very strongly that we need to retain this section.

--- Later in debate ---

[Baroness Stowell of Beeston]

I add that I hope that very soon—indeed, imminently—we will publish the budget that the Government have agreed with the commission. It is important for me to make the point that the setting of the budget is informed by the commission’s core function, its responsibilities and what it is required to do. We are confident from the conversations and discussions that we have had with the commission that the budget that we have agreed with it will properly allow it to fulfil its responsibilities.

During this debate, the noble Baroness, Lady Thornton, and other noble Lords raised the issue of the public sector equality duty. We will come to later amendments where I expect the debate to focus very much around that issue. However, the public sector equality duty review is just that—a review of the public sector equality duty. When noble Lords refer to the general duty in the public sector equality duty, I think that it is worth my responding that that is very different from the general duty that we have discussed today. The two things are very different. Our proposal to repeal Section 3 is not related to the public sector equality duty.

Bearing in mind that there are other amendments where we will be able to continue the debate about accountability and, as I said at the start, the commission’s relationship with government and Parliament, I would conclude at this point and say to all noble Lords who have spoken today—not just those who have put their names to the amendments—with the exception of my noble friend Lord Lester and the noble Baroness, Lady Greengross, to whom I am grateful for their support, that I hope that I have given some assurance which goes some way to giving the Committee the clarity that it is seeking from me as far as what the Government intend in their proposals in this Bill.

[Lord Lester of Herne Hill]

Since the Minister has been kind enough to refer to me, perhaps I may say to her that I hope it is absolutely clear that my position in supporting the removal of the general duty under Section 3 of the 2006 Act is predicated on there being no regression whatever in weakening the legal powers and functions of the commission. She has already stated that in an Answer to a Written Question from me, which is the basis on which I can support the Government.

--- Later in debate ---

[The Deputy Chairman of Committees (Lord Geddes)]

My Lords, before putting the Question for withdrawal, it may be helpful to the Grand Committee if I say that I have received advice that in order to take part in discussion on an amendment, a noble Lord must be in his place throughout debate on an amendment, most particularly while the proposer of the amendment is making his or her speech. Thus, with great respect to the noble Lord, Lord Lester, his intervention, although out of order, is, nevertheless, on the record and will remain on the record.

[Lord Lester of Herne Hill]

I thank the Deputy Chairman of Committees for that, but perhaps I may also say that advice was taken from his predecessor before I spoke, and we received a different view.

[The Deputy Chairman of Committees]

Indeed, so my predecessor told me, but since then we have had the great advantage of electronic checking and back came the reply just as I have given it. That may be for the assistance of future proceedings of Grand Committee.

--- Later in debate ---

[Baroness Hussein-Ece]

My Lords, I, too, have put my name to this amendment to move towards greater direct parliamentary accountability for the Equality and Human Rights Commission. As the noble Baroness, Lady Thornton, said, this could be advantageous as a tidying-up exercise. It needs to be done. Given all the criticisms that the commission has faced from individuals and others, some of which have been about its accountability to Parliament, I am slightly disappointed that the Government, in drafting these various changes, did not take the opportunity to look at making the commission better able to fulfil its mandate as Britain’s equality regulator and national human rights institution in accordance with the Paris principles, as the noble Lord, Lord Low, said.

Unfortunately, the commission has come under sustained attack. Some of that has been quite intense and some of it has been justifiable, but a lot of it has been rooted in the past and has not recognised the work that the commission has done, how much progress has been made and how much the commission has moved on from those early years when the three organisations came together.

In terms of greater accountability, I think that what is proposed would be desirable. It would ensure greater transparency and openness. It would assist the commission in its statutory responsibility to assess how the Government comply with their domestic and international equality and human rights obligations. Parliamentary accountability would provide the commission with more independence from the Government in order to fulfil this role rather more impartially. At the moment, we do not have the best of both worlds. The commission is partly accountable to the Joint Committee on Human Rights and it is partly accountable to the Minister through the Government Equalities Office. As the noble Baroness, Lady Thornton, said, that relationship has not always been positive; it cannot be deemed to have been a successful relationship.

There has been turbulence as a result of reorganisation. With each reshuffle—every couple of years, it seems—the equalities unit and, by virtue of that, the commission have been shunted about. I think that it is on its fourth or fifth government department. As was said, it was initially under the Department of Trade and Industry, then the Department for Communities and Local Government and then the Department for Work and Pensions; then it was standalone and now it is with the Department for Culture, Media and Sport. That does not provide the organisation with the stability and continuity that are needed. These constant changes have in some respects been detrimental to the commission’s work and some of the blame for that has to lie at the door of the last Government, as has been acknowledged.

There have also been problems with the sponsoring department. The commission has never had, certainly in the three years when I served there—others may bear me out on this—the independence to act as other non-departmental public bodies have been able to. For example, permanent senior appointments have always been at the behest of Ministers giving the go-ahead. I found myself in the situation when, after the Daily Mail, the Daily Telegraph and other newspapers criticised how much was being spent on consultants for temporary positions, we advertised at great expense for a permanent chief executive. That was then stopped because, for whatever reason, it was not deemed to be the right time. That meant that there was another delay. The acting chief executive continued and it was a couple of years before we had a permanent chief executive in place. The same has happened with other senior appointments when the commission was not given permission by the Government Equalities Office, through the Minister, to appoint a permanent director for various positions. It was quite unfairly pilloried in the media for wasting public money when it did not have the independence to make such appointments. If we are going to have an organisation which we want to be independent and robust, it has to have freedom in that regard.

In order to retain the commission’s “A” status as a UN accredited national human rights institution, it needs to be assured and shored up. On occasion, there have been letters threatening to remove the “A” status of the commission purely because of activities from government departments that have been outside its control. It is time to allow the commission to have the consistency, the stability and the independence that it needs but also to be robustly accountable to Parliament. Models for other regulators and national human rights institutions have already been mentioned. There are others, including Her Majesty’s Inspectorate of Constabulary, the Parliamentary and Health Service Ombudsman, and the Electoral Commission, which we could look at and which work perfectly well.

Accountability to government would allow the commission to work across government bodies. That has been a problem, particularly when the commission has wanted to look at issues which do not come under the remit of the sponsoring committee or department. There have been problems about working cross-department as well. This proposal would give it the freedom to do that and would satisfy the Cabinet Office test for independence and accountability against which all public bodies are reviewed every three years. It would also allow the commission to formalise relationships and fulfil its mandate as a regulator, which it has not been able to do. I strongly recommend that the Government look at this and I will be very interested in what the Minister says in reply as to whether the Government will look positively at this.

I know that in previous discussions—I am grateful that the Minister has made herself available for discussions and briefings—the Government have not felt that this is an issue and that it should not be touched. It is interesting that for other things legislation is needed, whereas, so far, something that would make this organisation far more accountable is not deemed to be needed, although I am hoping to hear a more positive reaction today. The appointment of the chief executive and of commissioners would be subject to parliamentary ratification. For those who have followed some of these things in the media recently, the last tranche of appointments of commissioners has not been exactly exemplary and probably would not have been tolerated at other organisations.

In terms of the commission being directly responsible, it could respond directly to parliamentary questions rather than the Government responding on the commission’s behalf, which is the problem at the moment. The commission’s budget also could be set by Parliament, rather than the arcane situation that exists. I seem to remember that as late as the end of February/the beginning of March of this year, the commission still did not know its budget for the coming financial year, which would be unheard of at any other organisation. I strongly endorse this amendment and believe that it could strengthen the independent requirement in Schedule 42 to the Equality Act 2006.

[Lord Lester of Herne Hill]

My Lords, I am sympathetic to the object of the amendment. I just want to supplement that great summary of the history given by the noble Lord, Lord Low, by adding one or two aspects.

When the previous Government introduced the 2006 Act, I was was pressing for something on exactly these lines and I was concerned about the Paris principles. Thanks to the creativity of the noble Baroness, Lady Ashton, in particular, we were able to write into that Act some guarantees of the independence of the commission which are still there and I am delighted to see will remain. We removed all the bossy, ministerial interference provisions that were originally in the 2006 Act and that would have given powers to Ministers to intervene all over the place in the commission’s work. All those were wisely removed by the previous Government. We then introduced an express provision stating that Ministers were not allowed unnecessarily to interfere with the commission—that is still in the 2006 Act. We also introduced an obligation on the Minister to make sure that enough funds were available to ensure that the commission could carry out its work effectively in accordance with its statutory duties. We also introduced a merit requirement for appointments. All those are still there.

One of the great problems, however—it has been referred to by my noble friend just now—is that the commission when it was set up became the orphan of Whitehall; that is, no major government department was willing to take responsibility for or ownership of it to give it the backing that it really needed. I can say as someone who was the unpaid independent adviser to the previous Government’s Minister of Justice and Lord Chancellor, Jack Straw, that I was unsuccessful in persuading the previous Government that the Ministry of Justice should take charge of this area, because, frankly, the civil servants at the time did not want to know. And so, a strange floating kidney was set up instead. It was not a proper department and it did not have any of the power and influence of a major government department. That led to all kinds of managerial and other failings from the beginning through lack of proper back-up within the Administration. This was not just the fault of Ministers; it was more a fault of senior civil servants, including a Permanent Secretary whom I went to, who said that they would rather not want to know, thank you very much, because it was too difficult or too hot a potato.

That is part of the background. As the noble Lord, Lord Low, has indicated, the Joint Committee on Human Rights on which I serve has several times advocated that there be proper parliamentary accountability, not only because of the Paris principles but because it is healthy in a parliamentary democracy with a body of this kind for there to be a proper relationship.

One thing to have changed since we on the JCHR made those reports is the appointment of the new chair, whom I am delighted to see in her place, the noble Baroness, Lady O’Neill. Her appointment was made only after the Joint Committee on Human Rights interviewed her and came to the conclusion that she would be admirably well qualified for the post. Another change is that the Joint Committee will now have the main responsibility for the work of the commission; it will not be split, I think, with the House of Commons committee. We are a Joint Committee of both Houses comprising six Peers and six MPs; we cannot be controlled by Government because one of us is a Cross-Bencher—we are the only parliamentary committee of which that is true—and we are not tribal or party-political in the way in which we conduct ourselves. We have real expertise going back for more than a decade.

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[Baroness Hussein-Ece]

I want to come back on one point, if I may. In 2003 the Joint Human Rights Committee had three reports, and one of the clauses said that,

“as a guarantee of independence … Parliament should be directly involved in setting the budget of the commission”.

Can the noble Lord clarify that he said he could not see the point in that? He seems to be contradicting what the report said.

[Lord Lester of Herne Hill]

I was talking about an idea that I thought was being suggested—not that there be some kind of consultation but that Parliament itself, or a parliamentary committee, should agree and set the budget, rather than that being done by the Treasury and the responsible government department. Of course, it is possible to have consultation by a parliamentary committee on the size of a budget and how it is to be spent, but under our system of parliamentary government, it seems to me that the ultimate responsibility for deciding on the budget and ensuring proper accountability is through the accounting officer—normally a Permanent Secretary in charge of the department, who is then accountable to Her Majesty’s Treasury and to Parliament. We tried all of that when we looked at the Judicial Appointments Commission; we tried to ring-fence the budget of the Judicial Appointments Commission and of the judiciary as a whole, but failed to do so for similar reasons.

I am sympathetic to the idea of parliamentary involvement and accountability. All that I am suggesting is that the way forward is to encourage the Joint Committee on Human Rights, if it is willing to do so, with the consent of the Government, if they are willing to do so, to develop new protocols that will allow this kind of accountability to occur. I am sympathetic with the object, but I do not think that the amendment is the best way forward. Similarly with regard to annual reports, there is no reason why there should not be a report that is then scrutinised and discussed with the commission by the Joint Committee on Human Rights. It seems to me to be better to have an existing piece of expert machinery than to create a new Joint Committee of both Houses without purpose.

I say all this with no authority; I do not speak for the Joint Committee on Human Rights. It has not considered that; nor do I have any idea of whether the Government is be sympathetic. I am a member of the committee suggesting that as one way forward.

[Lord Deben]

My Lords, as somebody who is also very sympathetic to the purpose of the amendments, I follow my noble friend’s thoughts. I declare an interest as chairman of the Climate Change Committee. We have a very independent situation—more independent than any of those mentioned earlier by my noble friend. The whole question of budgeting is very delicate and difficult.

If you insist that the budget should be discussed in detail in a nitty-gritty way, it makes it almost impossible to be independent, because independence is about how you use the resources that you have. It is bad enough being at the behest of Government as to how much money you may have—there are always arguments about that. You say, “If I am going to do this job, I need this amount”, and the Government will always want you to do it for less. Those arguments go on, inevitably, because the paymaster is always, in the end, the public purse. I think that my noble friend Lord Lester is right to say that the amendment would add to that yet another inappropriate level. However high-minded a committee may be, it is difficult to understand the balances that have to be made. It is like any business, it is difficult.

I hope that the Government will take on board the concerns which the amendments evince. I hope that they will understand that the proposals added by my noble friend Lord Lester: not only that the role of the Joint Committee will be seen by the Government as useful but that the Joint Committee will turn out to have the same view of its purpose. That seems a sensible way forward. I hope that the amendments, which are a good probing way into the issues, will not be pressed. I have to say how hard it is to be independent and run the system in the best way in the public good and still have to answer to five different sets of people who feel that they have, at least, advice to give. I hope that we will not go too far down this route.

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[Baroness Stowell of Beeston]

The simplest response that I can offer the noble Lord, Lord Low, is that we are in active dialogue with the ICC. My right honourable friend the Minister for Women and Equalities, Maria Miller, has exchanged correspondence with the ICC, as I know has the noble Baroness, Lady O’Neill. This dialogue has been very productive. As I said at the beginning, the commission has a status under its existing arrangements. Its reporting to Parliament has not been questioned when it was given its status. We are retaining its reporting to Parliament via the Minister but we are seeking to strengthen the transparency of its roles and to ensure greater scrutiny of its work, if that is something that the Joint Committee on Human Rights would like to carry out. I think that the combination of both those things will safeguard its status. I am not aware, from the correspondence with the ICC, that that is in doubt.

[Lord Lester of Herne Hill]

I was the one who above all raised the issue of the Paris principles in relation to the setting up of the commission in the 2006 Act and beyond. I have sat on the JCHR ever since. I have no doubt that it is not the function of the UN Paris principles procedure to prescribe precisely to each member state the nature of each relationship in order to satisfy the requirements of the principles. I suggest that the commission would not be treated in the same way as other public authorities, because it would have a continuous role through its chair and, if necessary, otherwise with a standing committee of both Houses that was expert in human rights and had an oversight function, in addition to its relationship with Whitehall. I would be amazed—although I will ask; we will see whether I am right or wrong—if the JCHR, having considered this, came back and said that it thought that that relationship was inadequate to satisfy the Paris principles. I would say that this is premature at the moment, but perhaps the right thing to do is to put it on the agenda of the Joint Committee on Human Rights next week.

[Baroness Thornton]

I thank the Minister and my supporters, the noble Lord, Lord Low, and the noble Baroness, Lady Hussein-Ece. I also thank the noble Lords, Lord Lester and Lord Deben. I think that we have made some progress with this discussion, which is what we intended to do.

The noble Baroness, Lady Hussein-Ece, gave us a very useful description of the practicalities and symptoms of the dysfunctionality in the relationship between the Government Equalities Office and the EHRC, and of the way in which it has impacted on the commission’s work and on its ability to do its job properly. It seems likely that the Government Equalities Office and the EHRC share the same budget source. That would be quite wrong, because they are probably fighting for the same resources. I ask that as a question that does not need to be answered now but which is pertinent.

It possibly answers the point raised by the noble Lord, Lord Deben, which I completely accept: that the reason that there were serious management problems was because the two organisations share the same budget line. Despite the assurances put into the 2006 legislation—the noble Lord, Lord Lester, was quite right about them—the relationship simply has not worked in some respects. That has been very important and a source of genuine regret. The discussion is about how we make these things work better and how we make sure that accountability works better.

I hope that the Joint Committee on Human Rights will have this discussion before the next stage of the Bill, because that will help us. If we need to discuss this at the next stage of the Bill, I hope that the discussion will be about what will happen in future and that we will get the discussion on the record.

[Baroness Stowell of Beeston]

I am grateful to the noble Baroness for allowing me to come back to her in writing on the question of budgets. There was one point on which I was not as clear as I ought to have been. I was reminded of something that my noble friend Lady Hussein-Ece said. I said repeatedly that the commission had “A” status under the current arrangements. As has been made evident in the debate, clearly there were problems in the past in the way in which the commission related to the Government Equalities Office. The relationship did not work as well as it needed to. However, what I sought to say on behalf of the Government was that the relationship had improved and continues to improve. We are in danger of shooting ourselves in the foot. We have “A” status under the current arrangements. We are improving what is wrong. We will continue to improve and put things right, so let us not put ourselves in a situation where we improve everything and then the ICC turns around and says, “We will remove your ‘A’ status because you keep telling us that the arrangements do not work”, when we have been able to show that recently they have started to improve and that we know how to improve them further—which is what we will do.

[Lord Lester of Herne Hill]

Perhaps I may add that the independence requirements that we wrote in were used by some at staff level on the commission to justify not being properly financially accountable. I was blamed by officials for having introduced the independence requirements on the ground that there was not proper accountability. Therefore, those at the UN who are considering the Paris principles will also consider that independence does not mean a lack of proper accountability. I make that point because that is something for which we all wish—I refer to financial accountability for the way that money is spent.

[Baroness Thornton]

I was not making that point at all but I absolutely agree with the noble Lord. The remarks of the Minister were helpful. I beg leave to withdraw the amendment.