Abortion

Debate between Lord Wallace of Tankerness and Baroness Knight of Collingtree

Thursday 10th October 2013 Lords Chamber

[Baroness Knight of Collingtree]

To ask Her Majesty’s Government what steps they intend to take to ensure that medical professionals offering to perform abortions on the grounds of gender are prosecuted.

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

My Lords, where it is suspected that abortions are being authorised in circumstances which do not comply with the Abortion Act 1967 and the matter is referred to the police, a full investigation will be carried out. The Crown Prosecution Service will review any cases referred to it by the police in accordance with the two-stage test set out in The Code for Crown Prosecutors. Where there is sufficient evidence for a realistic prospect of conviction and it is in the public interest, such cases will be prosecuted.

[Baroness Knight of Collingtree (Con)]

My Lords, is it not the case that, whatever else can be denied, secondary reasons may come into the decision? However, when the main reason for the terminations about which I am questioning the Government is that the coming child is a female, it seems to me as a human being and a female, as it does to millions of others, that that cannot possibly be right. Does my noble and learned friend accept that those of us who took part in the debates on the Abortion Bill in 1967 did not dream for one moment that it was necessary to put down an amendment to protect girl babies? Had we done so, I do not think that the Bill could ever possibly have been passed. Finally, is it not extremely dangerous that the law of the land should allow killing on gender grounds at any stage?

[Lord Wallace of Tankerness]

My Lords, I know of the long-standing interest that my noble friend has had in this issue, going back, as she indicated, to the passage of the initial legislation. Given the reporting, people might well think that this case was about medical practitioners offering abortion on the basis of the gender of the child. In those circumstances, it would seem incomprehensible that the full force of the criminal law was not being brought to bear on a practice which most of us would consider abhorrent. However, if one reads the full note provided by the Director of Public Prosecutions earlier this week, which I will make available in the Library, one will see that on the facts of the case it would not have been possible to prove that either doctor authorised an abortion on gender-specific grounds alone. It is a far more complex case than that. Indeed, the criteria used were those set out in Section 1 of the Abortion Act 1967.

Marriage (Same Sex Couples) Bill

Debate between Lord Wallace of Tankerness and Baroness Knight of Collingtree

Wednesday 19th June 2013 Lords Chamber

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

My Lords, I will start by thanking the noble Baroness, Lady O’Loan, my noble friend Lady Berridge, and the noble Lords, Lord Singh and Lord Hylton, for bringing the amendments before your Lordships’ House in Committee. It has given us an opportunity for a very useful debate, which has been conducted in a very courteous fashion. It was clear that genuine concerns were being expressed. What is interesting is that there is no distinction anywhere in the debate between the objectives of what noble Lords wish to see. It is very clear that religious freedom, including the rights of religious organisations that do not wish to opt in, should be secured.

I will take the advice proffered by my noble friend Lord Lester and not reply to every point. However, it is important that I reply to some of them. My noble friend referred to Pepper v Hart, but we cannot get to that stage if we do not in fact say anything. I will also take up his suggestion, echoed by my noble friend Lord Deben, of putting in written form the points that were raised and my responses.

Amendment 13 seeks to ensure that no religious organisation or individual is penalised by a public authority simply because it has exercised its rights under the Bill to not offer or facilitate same-sex marriages, or because it has expressed the view that marriage should be only between a man and a woman. My noble friend Lady Berridge indicated that there was an anxiety that other religious denominations wished to have the same kind of safeguard and security as has been afforded to the Church of England and the Church in Wales. As I indicated to my noble friend Lord Cormack when he moved an amendment on Monday, there is a historic reason for the distinction for the Church of England and the Church in Wales: namely, the duty on priests in these churches to marry people in their parish. This duty is not incumbent on priests, ministers or imams in other religions and faiths.

The specific context of this amendment is Section 149 of the Equality Act 2010, which places a duty on public authorities to,

“have due regard to the need to … eliminate discrimination … advance equality of opportunity … and … foster good relations between persons who”,

hold or do not hold a particular protected characteristic.

It is absolutely right—I think that this has been echoed on all sides of your Lordships’ House—that religious organisations and individuals should be free to express their beliefs about same-sex marriage, and to make the decisions protected by this Bill about whether to conduct or participate in same-sex marriages, without fear of repercussion or penalty of any kind. I hope I can clarify for your Lordships that, as the law stands, a public authority would in fact be acting unlawfully if it attempted to rely on the public sector equality duty to treat a religious organisation adversely simply because that organisation did not wish to conduct same-sex marriages, as is explicitly allowed under this Bill.

A policy of penalising people or organisations which have religious or philosophical beliefs with which a public authority disagrees would in itself be discriminatory. One element of the duty is to have due regard to the need to eliminate unlawful discrimination. It is not meant to be itself an instrument to discriminate unlawfully. For a local authority, for example, to withdraw meeting facilities from a church because it decided not to offer same-sex marriage would be likely to be unlawful direct discrimination because of religion or belief. We believe that it would be subject to successful legal challenge, a point made by the noble Lord, Lord Pannick.

The noble Baroness, Lady O’Loan, commented that there is nothing in the Bill which states that it would be unlawful for a public authority to punish a religious organisation which had not opted in. The courts have considered the question of whether a local authority can use equality legislation to punish an organisation with views of which it disapproves. In the case of Wheeler v Leicester City Council, the council banned a rugby club from using its ground after some of its members attended a tour of South Africa. It used the then Race Relations Act to justify its decision. The case went to the House of Lords, which held that the decision was irrational and that it was an improper purpose, because the members of the rugby club were legally entitled to go on a tour, just as an organisation is entitled not to opt in. I believe that the reasoning in that case to have a clear read-over in this particular case. 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—

[Baroness Knight of Collingtree]

On that very point, why is it that registrars who from conscience, from their heart and beliefs, will not conduct this kind of marriage have been sacked?

[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—