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Mr. Duncan Smith:
I do not want to go down that road, but I will say this as a link to the intervention by the hon. Member for Oxford, West and Abingdon (Dr. Harris): the issue with regard to cohabiting is the scale of break-up. We know from the reports that have been done—we have seen endless reports and we are just beginning to get through some of them—that 50 per cent. of cohabiting relationships are likely to break up. One in two will break up before the child is five. That is an enormously high figure; the highest level of
divorce for married couples with a child is one in 12. There is a particular problem with cohabitation, which brings me neatly to the Bill, because there is no recognition in it of family ties: as long as the people involved are considered to be “stable” or in loving relationships, treatment should be available. That is how the Bill stands, which makes it even more important that we reintroduce the recognition of the need for a father, because we are dealing with the strong likelihood that there are cohabiting couples who will want to undergo such treatment, and such a change would act as a strong reminder to them, much as it will do to lone parents.
The Minister of State, Department of Health (Dawn Primarolo): The right hon. Gentleman is making general points about single parents. Can he tell the Committee what evidence he has that his assertions apply to couples who approach IVF clinics and are in receipt of such treatment? Research shows the contrary of what he is suggesting.
Mr. Duncan Smith: I do not believe that there is such a debate about research. The trends may or may not be ameliorated slightly, but over time I suggest that the level of break-up for cohabiting couples will be higher, even for those receiving IVF, than it will be for married couples. That is the nature of such relationships. I am not going to debate that with the Minister, but it is a fact. I do not think that that will change, regardless of IVF. The right hon. Lady says that I am speaking generally, and I am, because I am making a point about why there is a problem, and why the need for fathers is so important.
Mark Simmonds (Boston and Skegness) (Con): My right hon. Friend is making an articulate and powerful speech. Is he aware that despite the fact that it is necessary for clinics to consider the need for a father, there is no evidence that there has been any discrimination against same-sex couples or single mothers in accessing treatments?
Mr. Duncan Smith: My hon. Friend makes me jump ahead of myself. I shall come back to that point in a second because I do not believe that there is any such evidence; I agree with him on that.
Emily Thornberry (Islington, South and Finsbury) (Lab): Will the right hon. Gentleman give way?
Mr. Duncan Smith: If the hon. Lady wants to intervene on that point, she will be able to so in a moment, because I am coming to it.
To conclude the point about cohabiting parents, I suggest that it is the nature and the break-up of such relationships that put children in such difficulty. Recognising in the Bill that it is important for people to understand the importance of the father in a relationship can only strengthen their thought process as they go through this course of action and will hopefully act as a reference for them in the future. We cannot promise anything, but taking it away will have exactly the opposite effect. It is as though we are saying to couples, especially in the heterosexual world, that fathers are less important than mothers and that, therefore, they do not need to be
considered. There is little research that any of us can claim one way or the other about outcomes for gay and lesbian couples. I draw no inference from that other than that we need more research, and I am sure that that will come in time. I—like everybody else, I hope—would want such relationships to prosper and for any child to benefit in such stable, successful relationships. I believe that the amendment would help and not act against that.
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David Taylor (North-West Leicestershire) (Lab/Co-op): I am pleased to co-sponsor the amendment. Is it not the case that the current legal framework was fashioned two decades ago when child development theory appeared to focus almost entirely on the relationship with the mother? In the past 20 years, so much evidence has emerged of the sort that the right hon. Gentleman adduces in his well argued speech that it would be perverse to write the father out of the script, as the Bill would do if left unamended.
Mr. Duncan Smith: I agree. The Government’s action is unnecessary and they have overreacted—I shall deal with that shortly. Stonewall described the change today as a tidying-up exercise, but my problem is that when one tidies up, one can also tidy out. We need to be conscious of what may be lost, and balance it against what may be gained.
Why do the Government need to make the change? Some in the gay and lesbian community will feel uneasy about the original guidance on the father, and they will have made representations. They will probably feel some unease about the amendment. I am sympathetic to that, but the key point is that unease does not mean that there is discrimination. To what extent is there discrimination? Is there simply a sense of unease that does not change any outcomes? The Government’s position is that they need to remove the original clause, which referred to the father, because they perceived it as discriminating against gay or lesbian couples.
I was struck when reading the debates in the other place by the fact that the Government spokesperson made such an absolute case. He is not a lawyer but he made a case that would brook no opposition because, according to him, the original clause clearly contravened the convention on human rights and that was that. However, I do not believe that even the strongest proponent of the Government’s view would go as far as that here. Even Lord Lester says that there is a strong case, but his published views state that the matter is confusing and fraught with contradictions. We must consider whether the original provision somehow constituted an abuse of rights.
Mr. Duncan Smith: I will give way shortly to the hon. Gentleman, who is easing forward on his seat. He has been active in the past two days and I want to keep him rested because he has further to go. I hope that he recognises that I have his best interests at heart.
I have not heard in our discussions about any couples who have gone to a clinic and been refused on the ground of the existing clause.
Emily Thornberry: The right hon. Gentleman has made that assertion in this place and elsewhere, and I have therefore caused it to be investigated. I do not know whether he is familiar with the Birmingham women’s hospital, where the eligibility criteria for Birmingham-funded treatment and entry on the waiting list for assisted conception include:
“A stable, heterosexual relationship of two years minimum.”
That is direct discrimination against lesbian couples and single women. If the right hon. Gentleman wants an example, there it is.
Mr. Duncan Smith: That was a great try by the hon. Lady, but it does not work. I am debating what is in the Bill. The reality is that clause 14 is an advisory clause. Let me remind her how the Bill is phrased. It requires that account be taken of the welfare of the child,
“including the need...for a father”,
and, if our amendment were passed, a mother. Nowhere does the Bill say that if that situation does not pertain, people will be not be allowed that treatment. Should anybody attempt not to allow such treatment after the Bill is passed, it would be illegal.
Andrew Selous (South-West Bedfordshire) (Con): May I take my right hon. Friend back to his point about human rights law, which was referred to in the other place? Does he agree that it is a little curious that human rights law seems to look purely at the view of the adult? What about the child? Does a child not have the right to be born with a father? Is that not the most fundamental human right that any child in the world could ask for?
Mr. Duncan Smith: I am going to come to that in a second.
Mark Simmonds: I am grateful to my right hon. Friend for giving way again. The hon. Member for Islington, South and Finsbury (Emily Thornberry) made an intriguing intervention, because under Human Fertilisation and Embryology Authority guidelines, discrimination for treatment on the basis of sexual orientation is not allowed. That clinic in Birmingham is therefore breaking HFEA guidelines.
Mr. Duncan Smith: I was coming to that, too. My hon. Friend is quite right. The point is that protection already exists under human rights legislation and is embedded in the Bill.
Mr. Duncan Smith: The hon. Lady will have to wait—she has had her shot and I want to finish this point. The reality is that what has been described cannot happen and should not happen. My answer, therefore, is that we will not see it happen.
Sir Patrick Cormack (South Staffordshire) (Con): Does my right hon. Friend accept that a good many of us wish that the situation were as described by the hon. Member for Islington, South and Finsbury (Emily Thornberry)?
Mr. Duncan Smith: I enjoy my hon. Friend’s interventions, as ever.
Dr. Harris: On the European convention on human rights, the House is advised by the Joint Committee on Human Rights, which includes Members of the right hon. Gentleman’s party. In a unanimous report, the Committee stated that “Without justification, such distinctions”—the distinctions that he wants to put into the Bill—
“may be in breach of the right to respect for private life without discrimination”.
“Similarly, the Convention prohibits unjustified discrimination”—
he has not shown justification for his position—
“between married and unmarried parents for the purposes of recognition of parental responsibility, or wider family law decisions on access and custody.”
The Committee went on to say that that needs to be removed in order for the provisions to comply. If the right hon. Gentleman is relying on people being able to go to the law, rather than having law that does not discriminate, I would suggest that he has got the law the wrong way round.
Mr. Duncan Smith: I am grateful for that intervention, but I simply do not agree, and I am not alone in that—there are human rights lawyers out there who do not agree with those recommendations either. I have a brief here from a human rights QC, who says that lawyers do not believe that that is how the Bill will be seen. In reality, the Government have set themselves on siding wholly with the rights of the adult. The truth, however, is that the rights of the child must also be a paramount consideration. That is the point for those who deal in this area. For instance, the UN convention on human rights and the ECHR both make it clear that the rights of a child to have such parents is the paramount consideration and that no element can override that.
The hon. Gentleman makes his point, but it is worth saying in return that I have some advice on the ECHR recommendations which is about whether it is necessary to override the rights and freedoms of others, and which would prevail. It continues:
“This works both ways in the circumstances of this Bill. The child once born has Art. 8 rights which should not be interfered with for the protection of the rights and freedoms of”
“same sex parents unless...‘necessary’”.
“‘Necessary’ here means something that is clearly required...not...anything that is thought to be socially convenient at any particular time.”
The issue is the well-being of the child, not, in this case, the well-being of the adult concerned.
Mr. Duncan Smith: If hon. Members will allow me, I shall make a couple of minutes’ progress, then I promise that I shall give way generously. I understand that many hon. Members want to get involved. I have some other advice relating to other cases in which this matter has been raised before. For example, a 1990 custody judgment involving a minor featured this statement about the balancing of rights:
“The question was not where”
“would get the better home. The question was: was it demonstrated that the welfare of the child positively demanded the displacement of the parental right.”
That is the key to what we are saying. My view, and I believe that of eminent lawyers, is that this is a balance of rights, and in the end, in the case of human rights, the courts must place as paramount the rights of the child.
Geraldine Smith (Morecambe and Lunesdale) (Lab): To most people outside the House, the right hon. Gentleman is simply talking common sense; they must wonder why we are even having this debate. Is it any wonder that people think politicians are out of touch with ordinary people when we have such debates? It is nonsense to suggest that we should not take into account the need for a father. We are not insisting that single women or lesbians do not have IVF treatment; the only thing we are saying is that there should be a father figure somewhere, who may be a grandfather or another relative. Many single parents depend on father figures, whether they are grandparents or other relatives. It is just pure common sense, and the fact that we are even debating it is ridiculous.
Mr. Duncan Smith: The more I listen to the hon. Lady, the more I am in danger of agreeing with her. I have to say that she is right, because we have to come back to the single point at stake; we should not be dancing on the head of a legal pin, but recognising common sense and what most people say. I shall come back to that point. On the legal debate, I simply say that I recognise that when two lawyers are in a room, there will be five or six opinions at a minimum, and one can take it whichever way one likes. I want to return to the question of where the balance lies. That is what the hon. Lady has just said, and I want to move on to it now.
Emily Thornberry: Is there not a central contradiction in the right hon. Gentleman’s argument? He began by saying that there are many reasons for discriminating against single parents or lesbian couples where no father is in the picture, but went on to say that we should have legislation on which four or five lawyers will come up with different opinions, when the alternative is something straightforward that cannot in any circumstances be seen as discriminatory by him or anyone else.
Mr. Duncan Smith: I do not think it discriminatory to remind people of the importance of the role of the father. Why is that discriminatory? Why does the hon. Lady want to introduce a Bill that is against the idea of fathers in any respect?
Mr. Duncan Smith:
With respect, I am going to finish this. The hon. Lady may not like it, but she is going to get it. I have to say to her that that is utter nonsense. Those who signed up to the amendment and who agree with me are simply saying, “Come on, this is common sense.” All we are saying is that we should take into consideration the need of a child for a father, not, “If
there is no father, you will never get treatment.” We are suggesting only that that be considered. [Interruption.] That is nonsense and the hon. Lady knows it; it is what is in the Bill that counts.
Mr. Duncan Smith: I want to move on to some conclusions, as I recognise that others wish to speak.
John Hemming (Birmingham, Yardley) (LD): I have found some of the evidence rather surprising, given that the Human Rights Act 1998 takes precedence in how legislation is interpreted, which means that the legislation could not be properly interpreted as preventing lesbians or single women from receiving help in conceiving. About two minutes ago, I printed out the frequently asked questions section from the website of the Birmingham Women’s Health Care NHS Trust assisted conception unit. One question is:
“Do you treat single women and lesbian couples?”
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