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Lord Campbell of Alloway moved Amendment No. 121:
- After Clause 82, insert the following new clause--
(".--(1) Subject to provision made by or under any enactment, a local authority shall not cause or permit discrimination as regards the provision of facilities or services, which are not generally available, for the exclusive benefit of any group of persons.
(2) Subject to subsection (4), in any proceedings in connection with the application of this section a court shall draw such inferences as to the intention of the local authority as may reasonably be drawn from the evidence before it.
(3) The Secretary of State may make and, from time to time revise, a code of practice on the discharge by local authorities of the duty under subsection (1).
(4) Any provision of a code of practice under subsection (3) which appears to a court or tribunal to be relevant to any question arising in any proceedings in connection with the application of the duty under subsection (1) shall be taken into account in determining that question.
(5) A code of practice or a revised code of practice under this section shall be contained in a statutory instrument which shall be laid before, and subject to approval by resolution of, each House of Parliament.").
The noble Lord said: My Lords, this amendment has been spoken to in principle on more than one occasion. It has been redrafted in the light of debate on Report. It is concerned with the prohibition of expenditure of public funds by local authorities. It is free-standing in the sense that if Clause 82 were to be rejected by another place, which is on the cards, it would be complementary to the provisions of the Learning and Skills Bill and assuredly not in conflict with such provisions. It would also afford substitute prohibition on the local authority in place of Clause 82. That, if not now but looking ahead, is the way forward. It is of crucial consequence, and that is one reason why I move the amendment.
I must say at once that it does not have the support of my noble friend Lady Young or my party, but that is of no great consequence to me. I am convinced that it provides the way forward for a substitute
The amendment provides an entirely new approach to an old problem. That problem manifested itself when certain urban local authorities made provision for facilities and services from public expenditure at the behest of the pro-gay and lesbian lobby for the exclusive benefit of such persons. It was a problem which led in part to Section 28 of the 1988 Act which has been effected to contain such conduct and expenditure for some 12 years. Whatever may be provided in any other amendment, surely it is essential that some prohibition should remain and be made in the Local Government Bill, such as perhaps proposed by this amendment.
As matters stand, under Clause 2 of this Bill a local authority may again make the type of discriminatory provision which led to Section 28, unopposed in another place, if it is considered likely to improve the social well-being of the area. What kind of protection or prohibition is that? None. It is a massive delegation of power under Clause 2 which would not be amenable to judicial review, save in wholly exceptional circumstances. All of us recognise that under our domestic law, and having assimilated the European Convention on Human Rights, homosexuals are entitled to respect for their private life and quality of treatment without any form of discrimination against them.
The noble Lord, Lord Whitty, said on Report that this amendment would cut across the whole activity of a local authority so that it would not be able to discriminate in favour of the elderly, the disabled and (he mentioned it) the gay and lesbian lobby. That is not the case. Facilities or services for the elderly are generally available; for the disabled, they are under statute. However, as the noble Lord, Lord Whitty, said, it is true that provision for the gay and lesbian community would be prohibited--and why not?--as, indeed, would any provision for the exclusive benefit of any other group of persons. I beg to move.
7.45 p.m.
Baroness Farrington of Ribbleton: My Lords, we had a full debate on similar amendments during the Report stage of the Bill. Amendment No. 121 seeks to prevent local authorities from causing or permitting discrimination in the provision of their facilities or services which are not generally available for the exclusive benefit of any group of persons. It is not clear what that means in practice or how it would be interpreted by the courts. Even if I accept that it means what the noble Lord says, which I believe is debatable, the Government would be opposed to it on principle.
As I said on Report, the services that local authorities provide depend on their being able to discriminate legitimately between the different needs of different sections of their community. It is important that they should be able to tailor services to meet the particular needs of different groups and to devise specific interventions to improve the quality of life of different sections of their community, whether that be the young, the elderly, the social excluded or the gay and lesbian community. This amendment would seriously curtail their ability to do that. The Government are opposed to it in principle and I hope that the noble Lord will now be persuaded not to move it.
As I believe I made clear at Report stage, Amendment No. 122 singularly fails to acknowledge the respective legal responsibilities of school governing bodies and LEAs. It seeks to ensure that a local authority does not cause or permit material of a sexually explicit nature to be made freely available in schools, except with the approval of the board of governors. It seeks to prevent local authorities from doing something that, in fact, they cannot do. I repeat what was said on Report. As a result of the Education Reform Act 1988, it is a matter for school governors and schools to decide what material is used.
An authority could produce material with the intention of it being used in schools, as could any other person. However, since the Education Reform Act 1988, it is for teachers and governors to decide whether that material should be available in the school and used as a teaching resource.
Lord Campbell of Alloway: My Lords, the noble Baroness has moved on to the next amendment. I am speaking only to Amendment No. 121. I shall move Amendment No. 122 separately, as is my entitlement according to the list.
Baroness Farrington of Ribbleton: My Lords, I apologise. I understood that the noble Lord had not challenged the grouping and therefore I assumed that he was relying on his earlier references to the matters contained in Amendment No. 122.
With regard to Amendment No. 121, perhaps I should place on record an imminent potential personal interest in this matter. When I reach my birthday later this year, I shall be favourably discriminated in relation to public transport in London.
Lord Campbell of Alloway: My Lords, this is neither the occasion to reason nor to argue. I am grateful to the noble Baroness for dealing with this issue. But I must say, with the greatest respect, she has not begun to take the essence of the argument on the amendment as revised. She has gone back to Report and Committee stages and rehearsed the same arguments, although those arguments have been met by the amendment.
I make no complaint but I merely place on record that this is not a reasoned refutation of the argument which I have advanced for this amendment. In view of the hour and the attendance of the House, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Campbell of Alloway moved Amendment No. 122:
- After Clause 82, insert the following new clause--
(".--(1) After section 2A of the Local Government Act 1986 insert--
"Sexually explicit material in maintained schools.
2B.--(1) A local authority shall not cause or permit material, which in the opinion of the Board of Governors of a maintained school is of a sexually explicit nature such as ought not to be made freely available in such schools, to be made so available unless it has consulted and gained the approval of the Board of Governors.
(2) The Board of Governors may delegate their functions under subsection (1) to any member of the Board.
(3) In any proceedings in connection with the application of this section a court shall draw such inferences as to the intention of the local authority as may reasonably be drawn from the evidence before it.
(4) In subsection (1) "maintained school" means a maintained school or maintained nursery school within the meaning of the School Standards and Framework Act 1998."
(2) In section 12(3) of that Act, after "Part II" there is inserted "(other than section 2A)".").
The noble Lord said: My Lords, this amendment was spoken to in principle and has been redrafted in the light of the debate on Report. I beg the noble Baroness to take on board that it recognises that it is for the board of governors to decide which material is sexually explicit and whether, if so, it should be made available in the schools. That is for the board of governors.
A duty is imposed upon the local authority not to make such material available in the schools--such as, for example, all the junk that we have seen in that exhibition--without having consulted the board of governors and having obtained their approval. I take the point made by the noble Baroness, Lady Hamwee, that the board of governors may delegate that function to any member or members of the board.
Again, this is a new approach. It is complementary to the Bill as accepted by the Table. It is free-standing to Clause 82 and complementary to such amendments as may be made to the education Acts under the Learning and Skills Bill which, in Committee, I have already accepted.
The noble Lord, Lord Whitty, took the point that this amendment was not appropriate for a local government Bill. That was an entirely bad point and I propose to show why. As my noble friend Lady Park of Monmouth said,
Also in this context, for some 12 years the prohibition under Section 28 served its purpose. I do not pretend that it did not cause confusion nor that it was perfectly drafted. But it served a purpose. There is now a case for the continuance of some prohibition. That is the principle which the Government will not accept. Such a prohibition is provided by the amendment. In view of the massive delegation of power afforded under Clause 2, to which I have already referred, I suggest to the House that such a prohibition is absolutely essential. I should be grateful if the noble Baroness would deal with the amendment on the basis on which it has been redrafted. I beg to move.
"we are discussing initiatives which might be taken by local authorities. I understand that that has happened on many occasions in the past, they have produced material, spent money on producing it and then presented it to the schools".
My noble friend ended by saying:
"It seems to me that this is a local government issue, not an educational issue".--[Official Report, 2/3/2000; col. 738.]
I suggest that my noble friend Lady Park of Monmouth is wholly right on this issue, as indeed I maintained in my reply.
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