Ministerial and other Maternity Allowances Bill

Baroness Noakes Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 22nd February 2021 Lords Chamber

Moved by

[Baroness Noakes]

At end insert “but that this House regrets that the bill is drafted in a way which does not respect the fact that only women can be pregnant.”

[Baroness Noakes (Con)]

My Lords, I beg to move the amendment standing in my name on the Order Paper. This regrets that the drafting of the Bill does not respect the fact that only women can be pregnant. Before speaking to my amendment, I would like to assure my noble friend the Minister that, while I deplore the language of the Bill, I fully support its proximate aim, which is to allow my right honourable friend the Attorney-General to take paid maternity leave. I join my noble friend Lord True in wishing the Attorney-General well and that her baby is safely delivered.

I had expected to be given an advisory speaking time of more than six minutes in view of my regret Motion, but this is not a time-limited debate, so I shall be taking a little extra time anyway. I shall, of course, comply with the Companion. My noble friend Lady Scott need not bother to do that Whip thing of head swivelling and jumping up and down when I do go over six minutes.

My Motion is about the drafting of this Bill, but it is set within a broader context of the erasure of women in society. Those of us who care about the position of women have been increasingly concerned about the dilution of the 2010 Equality Act with its protected characteristic of sex, not gender, which should protect women. Some organisations, deliberately or carelessly, conflate sex and gender. The Office for National Statistics, for example, has dug itself into this hole for the upcoming census, with the likely result that inaccurate statistical data about women will come from that.

The Equality and Human Rights Commission, which should have been vigilant in guarding all the protected characteristics of the 2010 Act, has itself caused problems, and its guidance has led directly to a loss of single-sex spaces. The NHS, which in the past had to be forced to abandon mixed-sex wards, now routinely admits to women’s wards on the basis of self-identification, regardless of the needs or wishes of women. Prisons operate like this, too. And do not get me started on so-called gender-neutral toilets.

There is an increasing use of language that eliminates women, such as the ludicrous use by the World Health Organization of “people who menstruate”. Only two weeks ago, the Brighton and Sussex University Hospitals NHS Trust declared that “breastfeeding” was to be replaced with “chestfeeding”, and “mother” with “birthing parent.” That might go down well in woke Brighton, but it will appal men and women in mainstream Britain.

People who challenge this in public are often labelled transphobic, as JK Rowling discovered when she poked fun at the WHO and its use of “people who menstruate” and was then publicly vilified. There is no malice in wishing to maintain the biological facts of womanhood and the lived experience of women, which includes menstruation, childbirth and menopause. That view happily coexists with respect and concern for transgender people. I am proud of my own record on LGBT issues, both in your Lordships' House and in the organisations with which I have been involved, but I am not prepared to be erased as a woman.

Let me turn now to the drafting of this Bill. Clause 1(3) uses the language of “the person is pregnant” and

“the person has given birth to a child”.

It is a biological fact that only women can be pregnant and give birth. That is why laws that relate to maternity issues have in the past routinely been drafted using the words “woman”, “she” and “her”. It is not good enough to just say that we have gender-neutral drafting now. When Jack Straw, as Lord Chancellor, announced in 2007 that the Government would use gender-neutral drafting, the context was the long-standing interpretation rule that words referring to the masculine gender include the feminine. This was thought to be demeaning to women, although I personally never felt demeaned by it. The Statement made it clear that this was not intended to outlaw the use of particular genders where only one is involved. It was not intended to prevent women from being mothers. It is ironic that Jack Straw’s generous gesture towards equality has now been turned against women.

Just three years after the 2007 Statement, the Equality Act 2010 was passed. That clearly uses female terminology to define the protected characteristics of sex and pregnancy. On 12 December 2013, your Lordships' House had a debate on gender-neutral drafting. The Minister, my noble friend Lord Gardiner of Kimble, said: “The guidance”— that is, the guidance from parliamentary counsel—

“also recognises that there must be some flexibility and that there will be some Acts where only gender-specific drafting can be usefully applied. In a case where a person has to be of a particular gender—male or female—gender-neutral drafting does not require drafters to avoid referring to the gender. I think your Lordships would agree that that would be the case for legislation about maternity.”—[Official Report, 12/12/13; col. 1014.]

I say “hear, hear” to that.

As far as I can tell, there has not been a ministerial Statement since 2013 that reversed the clear understanding of what gender-neutral drafting was about. The Minister may well cite some more recent primary and secondary legislation that has departed from that clear understanding, but, as far as I am concerned, that has slipped through below the radar. We have to put a stop to the practice. If this Bill passes unamended, there will be yet another precedent on the statute book for the elimination of women.

When this Bill was considered in the other place, the Minister asserted:

“It is not the case that we could legally and correctly use the word “woman” in this piece of legislation”.—[Official Report, 11/2/21; col. 594.]


I respectfully say to the Minister that this is garbage. There is nothing illegal or incorrect about using the word “women’ in relation to pregnancy. The only thing that appears to prevent the use of the word “woman” is a reinterpretation, by stealth, of the gender-neutral drafting guidance. In my view, it would be entirely legal and certainly correct to use the word “woman” in this Bill. Parliamentary counsel should be reminded that at the end of the day it is Parliament, and not civil servants, that decides how our laws are written.

I have spoken before about your Lordships' House being seen from the outside as a metropolitan bubble. This Bill speaks the language of a metropolitan elite who is unconcerned about its impact on the majority of our society, who are women, or about the view of the overwhelming majority of our citizens that women exist.

This is not a party-political issue, but it grieves me that a Conservative Government, who are bravely standing against all sorts of nonsense that has infested our public life, are abandoning women.

I beg to move.

--- Later in debate ---

[Baroness Noakes (Con)]

My Lords, I thank all noble Lords who have supported my amendment. There have been some wonderful, strong speeches today, far too many for me to refer to individually. The Minister has been left in no doubt as to the strength of feeling on the matters raised by my amendment.

The vast majority of those taking part today supported my amendment, and I have had a number of messages during the course of this debate from other noble Lords offering their support. The Minister has absorbed the fact that many of us who have spoken have risked being targeted by activists as a result. It is not easy to support women nowadays.

We had 34 speakers on the list today, but I am sure that more would have spoken had they been aware of the issues. The plain fact is that the expedited process, coupled with the recess, meant that the majority of the House was not even aware that I had tabled my amendment, let alone seen the content of it, until well after the speakers’ list had closed. That is not good for the health of debate in your Lordships’ House, and I hope that the usual channels will look carefully at this going forward.

The Minister responded to the debate with his customary dignity, but I was disappointed on two counts. First, he did not agree to bring forward Government amendments to Committee on Thursday; I cannot say that I was surprised at that, but I was disappointed. Secondly, he did not agree to ensure that the recent gender-neutral drafting guidance, which has caused this problem, would be reviewed by Ministers and then by Parliament. We can do nothing in this House about revising the drafting guidance, although I am sure that we will be seeking to debate that further in due course, and my noble friend Lady Nicholson of Winterbourne raised that specifically.

So far as the Bill is concerned, we do have Committee on Thursday, and noble Lords across the House will want to speak to amendments which have already been tabled. Very little change to the Bill is required, and it would only add a day or so to the timetable for getting Royal Assent if that course were pursued. I have not given up hope that the Government will work with us, and I look forward to meeting the Minister with other noble Lords later this week.

If the Government will not work with us to amend the Bill—as I said, I hope they will—there is another potential obstacle to our ability to change the Bill in your Lordships’ House, namely the question of whether any vote would be whipped by our Front Benches. I cannot speak for other parties, but my party, in the other place, was given a free vote on this Bill, which is right and proper for an issue such as this. I very much hope that our Chief Whip will see the good sense of this on Thursday. With that, I will not seek the opinion of the House today and I beg leave to withdraw the amendment.

Amendment withdrawn.