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21 Feb 2007 : Column 118WH—continued

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Mr. Brazier: Yes, but that is not what we are debating now. The hon. Gentleman touched on what we are debating a moment ago: whether the interests of the child—I prefer the word “interests” to the word “rights”, because the rights dialogue gets us further into a muddle—conflict with those of the prospective parents. The practical fact is that only one gay couple has ever approached the Catholic Adoption Society, while hundreds of children have been through its hands. If the regulations go through, thousands of children will be unable to have that opportunity in future. There is therefore a direct conflict between the interests of the children and those of a small group of prospective adopters.

Dr. Harris: I understand what the hon. Gentleman says, but that is not the only “if”. This is a question not only of whether the sexual orientation regulations go through, but of whether, as a result of the regulations, certain adoption agencies, such as those that he mentioned, choose not to do the valuable work that I accept that they do. That is their decision. It is a question not of whether the law is the law, but of whether people decide—I do not want to use a pejorative term—to take their toys home in response to the House having voted for the regulations. I would urge people not to do that.

I also hope that we can find a way through this problem that does not breach the fundamental principle of non-discrimination in the delivery of public functions on the grounds of sexual orientation. We already accept that principle for other innate human characteristics, such as race and gender, and I shall carefully draw analogies between those forms of discrimination in a moment.

I have mentioned the rights of the child and the rights of parents to be considered fairly and without unreasonable discrimination, but I recognise that people also have the right to hold and express a religious view. That is clearly a right, or an interest, to use the hon. Gentleman’s language. There is, therefore, a balance to be struck between how far people can and cannot express their profound religious beliefs—of course, they might have other, political beliefs—through actions that affect others.

The Joint Committee on Human Rights has not yet produced a report on the issue, but it is in the process of doing so, although I have not seen the legal advice or the draft report, so I can give hon. Members only my view. I believe that the Committee will find that the right, under article 14 of the European convention on human rights, not to be discriminated against in the enjoyment of one’s rights, including the right to privacy and family life, will, on balance, carry more weight, not in respect of people’s right to hold a belief or believe what they believe, but in respect of their right to express that belief outside the strictly religious area in the public sphere and in the delivery of public functions.

No one is arguing for religious people to be forced to do blessings or something else of a religious nature in respect of gay civil partnerships, which is why the Northern Ireland regulations contain exemptions, and we would expect to see such exemptions in the Great Britain regulations. People will not be forced to do such things by law, because such functions are recognised to be directly religious matters and, therefore, direct expressions of people’s beliefs. However, as soon as one
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becomes a doctor, and is therefore not acting in a religious way, one is not allowed to discriminate against gay people, even if one’s religious views lead one to think that such people are not deserving of the treatment that one might otherwise give. Nor do the regulations allow one, thank goodness, to discriminate against pupils—at least when they are in school—on the basis of their being gay. That is right and proper.

Mr. Brazier: The hon. Gentleman is trying to find a gap where there is none. The bulk of the funding for the Catholic Children’s Society—I said earlier how underfunded voluntary organisations are—comes from collections such as those held at last Sunday’s mass and from leaflets distributed in churches. Under the regulations, there would be a requirement to include a commitment to treat homosexual couples on a par with heterosexual couples, and that intrudes directly and specifically into the religious sphere.

The hon. Gentleman, like a number of other people, may choose to go down the route of saying that there are simply conflicting sets of rights, but there is a direct clash. That is why it would be better to go back to the original point about the interests of the child and to say that the practical fact is that the present arrangement is good for children, while the future arrangement will not be.

Dr. Harris: I have conceded that there is a balance to be found between the two interests or rights, but I think that case law will show and that it is right in principle that the right not to be unfairly discriminated against in the enjoyment of public functions, whether in the health care system or the adoption service, carries more weight, not in respect of people’s right to hold their belief and to practise it in a religious setting, but in respect of their public function.

The hon. Gentleman raises an important point about whether such public authorities and agencies perform a public function, and there is a lot of case law on that in relation to Leonard Cheshire. However, carrying out a public function does not require bodies to be 100 per cent. publicly funded, and they may carry out such a function without being funded by the state. If that were not the case, bodies could exempt themselves from the race discrimination provisions in the Human Rights Act 1998 by buying their way into being a service provider and not being paid to provide a service.

One cannot base one’s view on how bodies are funded. My view is that adoption is clearly a public function, because it is a welfare function and we are dealing with vulnerable people. That would also apply to voluntary agencies—whether or not they were publicly funded—that provided social services or welfare services co-ordinated by local authorities or the Government. One can therefore draw a line around such provision. Catholic adoption agencies clearly carry out a public function and are therefore constrained by the provisions.

The other good point that has been raised is that Church schools and other faith schools are allowed to discriminate. I do not think that they should be allowed to do that, so I am being 100 per cent. consistent. It is for the Government to tell us why, under section 60 of the Schools Standards and Framework Act 1998, against which my party voted on two occasions,
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Church schools are, astonishingly, allowed not to employ teachers or to sack them on the basis of their sexual orientation. That has not been tested under Human Rights Act law, although I think that it will be at some point.

The Government gave a concession that, if a teacher does not go to the right church or building on a Sunday or happens to live with someone of the wrong gender, their employer—even if a state school—is allowed not to promote or appoint them. That is disgusting, and it is for the Government to tell us how they can tolerate that, while arguing against the discrimination that we are discussing. That point has been raised by my hon. Friend the Member for Teignbridge (Richard Younger-Ross) and others, and it is fair, but only in so far as the Government are inconsistent on this matter.

Other hon. Members have argued in the debate that deeply held beliefs are at stake, and I do not doubt that. However, there cannot be any more deeply held belief than that people have the right not to be discriminated against on the basis of sexual orientation, because that is humiliating. If the deeply held beliefs to which hon. Members have referred were misogynist or racist, we would not tolerate such discrimination, although we cannot stop people holding their beliefs. The same should apply here.

It is said that not many gay people might approach Catholic agencies, but there is a principle at stake. I served on the Committee that considered the Equality Bill, and part 2 made it clear that gay people would not be allowed to discriminate against Catholics. Religious organisations grabbed that right to non-discrimination, cherished it and said “hurray”, and rightly so. We are just saying that things should be the other way round.

As the hon. Member for Wallasey (Angela Eagle) brilliantly pointed out, saying that people are allowed to discriminate as long as they are allowed to refer someone to another provider is like telling Rosa Parks, when she tried to get on a whites-only bus in the deep south, “You can’t get on this bus, because it’s for whites only. But a mixed bus is coming along, and you’ll be able to get on that.” The humiliation still exists, and it is wrong. We should not turn down anyone on the basis that they are gay.

I am conscious of the time, and I just want to make one more general point. The Labour party has done a good job at keeping the Government on the straight and narrow, and I congratulate those in the Labour party who have lobbied so strongly, but the Government need to sort this out. They could easily say, for the avoidance of doubt, that voluntary agencies, whose work is valuable and valued, are entitled to carry out public functions as long as they do not discriminate against their employees or service users on the basis of sexual orientation or the other strands of discrimination and, indeed, as long as they do not proselytise in the process. On that basis, let them come and help; let them get public funding to do it; but they will do it on the basis of non-discrimination.

3.20 pm

Mr. William Cash (Stone) (Con): I strongly support the arguments that have been put forward by my hon. Friend the Member for Canterbury (Mr. Brazier), as
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well as the Archbishops of Canterbury and York, Cardinal Murphy-O’Connor and Archbishop Nichols, who is the archbishop of the Birmingham diocese—my diocese, as a Roman Catholic. I am not entirely convinced that we can avoid the question of rights, because the matter is one of law, and is driven by the universal application by the courts of the rights in question. Therefore, first, the question is raised of incompatibility with the European convention, about which a declaration will have to be made on the introduction of any legislation; secondly, the courts will adjudicate.

I suppose I could say, because I happened to be speaking in the human rights debate on Monday, and raised the question then, that we should legislate at Westminster on our own terms, without regard to the European convention or, indeed, the Human Rights Act 1998, identifying in our own Parliament exactly what we as elected representatives want. That is a more general question. By the way, it is open to us to accept, following the adjudication of Lord Hoffmann in the case of Simms and O’Brien, that when legislation that has been passed is express and unambiguous, even if it is inconsistent with the Human Rights Act, it is good law and there is no disputing it; Lord Steyn and many other law lords would agree. However, I am profoundly concerned about the question, which the hon. Member for Oxford, West and Abingdon (Dr. Harris) rather glossed over, of the inconsistency that arises when principles compete and a legal presumption is established, on the tipping point, in favour of one of them.

The way in which the measures were introduced under the Equality Act 2006 gives severe grounds for believing that something not far short of legal or legislative sharp practice by the Government went on. The issue that we are considering now was not raised until a letter was received—there may have been discussions of which I am unaware—from Stonewall. That came shortly before Third Reading in the House of Lords. It was in response to that that the Government, without a Division, or any amendment, put forward the proposals in their own name. When the matter came to the House of Commons—and anyone can read this—although there had been discussion in both the Lords and the Commons, there was no Division and, as far as I am aware, no amendment either. Thus for practical purposes the question has not been tested in the way I should have thought its importance warranted. The problem, as I see it, is that it will not be possible to amend the regulations when they are brought in. Furthermore, section 81 of the Equality Act specifically provides for exceptions without any limitation, so that it would have been entirely possible to make exceptions, although none, as far as we know, is anticipated.

Mr. Brazier: My hon. Friend is making a powerful point from his much more detailed understanding of the legal background, but it seems to me that his point about parliamentary process is at the heart of the matter. As he said, in relation to European law we had the option to go another way, as some of our European partners chose to do. The powerful point that he made was that the matter was not debated in either House of Parliament. It was introduced at the very end of proceedings in the House of Lords and then bounced back here. There has been virtually no discussion.

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Mr. Cash: That worries me enormously, as does the fact that the nature of the regulations means that we shall not effectively be able to amend them. As I mentioned in the debate on the Human Rights Act on Monday there are specific requirements imposed on parliamentary draftsmen, including through the review of human rights by the Government, that, in a nutshell, all our legislation must be drafted to be compatible with the European convention on human rights. I do not believe that it is possible in this context to come up with a declaration as to compatibility when there are competing rights as in this case.

In addition, adoption agencies were not mentioned at all in any discussion of the measure that I know of, except when my hon. Friend the Member for Buckingham (John Bercow) raised it—I invite him to respond, but I presume that he did not just invent the point, and that someone may have suggested to him that it was an important question that needed to be raised. He specified the cases of general practitioners and adoption agencies. I have travailed and trawled through the debates, and I think that last November was the first time the matter was ever raised. In effect, the Government have created a legal presumption in favour of a particular principle, which, by virtue of the Equality Act itself, should be condemned, because there is no such thing as complete equality between any one of the principles concerned. However, the Government have chosen to go down that route—I think against the advice of the Prime Minister and one or two others, including the Secretary of State for Communities and Local Government.

John Bercow: It is true, indeed, although I do not remember the precise date, that I raised the matter with the Minister for Women and Equality during questions in the House at the back end of last year—on my own initiative, as my hon. Friend will understand. Although my hon. Friend is right that there was no Division on the Second Reading of the Equality Bill, it was open to him or any other Member to force a Division. I simply worked on the basis that an Equality Bill should mean equality—not equality on the whole, except in so far as we provided for inequality.

Mr. Cash: My hon. Friend has raised an important point, because it was not a matter that could have arisen under the Equality Act unless someone had what I should describe as a pretty galactic view of the universality of possibilities. The question of goods and services would not necessarily include adoption agencies. Because of the nature of goods and services and the matters that were encompassed by the Bill as it then was, it was almost impossible to work out what might come out of the woodwork. However, when it came to the specific question that could have been put after Third Reading I was disappointed, on studying the discussion that took place in the House of Commons, that the matters were not given the kind of consideration, by way of amendments, that they could have been given.

That is in the nature of things, but the Government have now specifically, following a Cabinet revolt, decided to create a legal presumption in favour of one principle as compared with another. That is not consistent with the principles of the Equality Bill. That is where I find the internal contradiction; and it is
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unanswerable. It will raise questions of incompatibility, and it would be far better if we legislated on our own terms to decide such matters. In a pragmatic and practical way we would have arrived at a solution, if we were not bound hand and foot by the application of universal principles that sound very good, like motherhood and apple pie, but which, as I said on Monday, when they are resolved by reference to specific circumstances, give rise to impossible situations. That is pretty well where the Government are now. I shall take all steps necessary to oppose the regulations when they appear, but we have not even seen them yet.

3.29 pm

Annette Brooke (Mid-Dorset and North Poole) (LD): I congratulate the hon. Member for Canterbury (Mr. Brazier) on bringing this timely debate to the Chamber. I think we would all agree with the hon. Member for Stone (Mr. Cash), who said that there has been insufficient scrutiny of this subject. I might disagree with his conclusions, but it is right that the issues should be fully debated.

I shall take a stance that is slightly different from that of previous speakers, because I want to concentrate on the interests of the child and adoption in the broadest sense. I also congratulate the hon. Member for Canterbury on the immense contribution that he has made to the all-party group on adoption and fostering. He will know that although I may differ with him on some things, we broadly agree on most of them.

I start from the premise that every child should be entitled to live in a stable, loving family relationship. It is a tragedy in many ways that 60,000 children are fostered at present, and I welcome the Government’s Green Paper on how we can improve the outcome of looked-after children.

Perhaps one of the worst aspects of the current situation is that many children experience multiple placements, which are so damaging. Several of us have become very interested in attachment theory, which focuses on the importance of vulnerable children—all children—having a strong attachment with one adult figure as early in life as possible. With multiple placements, there is never a chance to unravel the problems of a damaged and vulnerable child.

I also want to think about children’s views on adoption. The November 2006 document on adoption, “Your Rights, Your Say”, included a report on children’s views. Children—of an appropriate age, of course—were asked what was the best thing about being adopted and said that it was joining a new or a real family. They said that the worst thing about being adopted was leaving their old family, that it took too long and that there was too much waiting. Children’s top views on how things could be improved included making the process quicker, involving and supporting them more, and keeping them in touch with what was happening. We certainly should listen to their views.

In 2005, adoption agencies placed 3,100 children for adoption. As we know, the number of adoptions fell last year, so we have to ask some serious questions about the process. I praise the voluntary adoption agencies, which placed a total of 708 children—about 40 per cent.—in 2004-05. That is significant; what is also significant is the quality of those placements. That came out clearly in the Commission for Social Care
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Inspection report that was published in November 2006, after all 150 local councils and the then 33 voluntary agencies in England were inspected. It stated:

In fact, the detailed statistics show that the minimum standards were met by about 54 per cent. of local authorities but by nearly 90 per cent. of voluntary adoption agencies when it came to the all-important post-adoption support. Many lessons could be learned if the two sectors worked closely together.

The report also stated:

Again, a better statistical performance. It went on to say:

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