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At the end of January, we had the unsightly spectacle of the Prime Minister effectively announcing that it is government policy to close down Catholic adoption agencies for not organising gay adoptions. His idea of a compromise on the issue is that the death sentence will not be carried out until the end of December next year. It is not just the Roman Catholics who will be affected. Many Christian denominations have protested about the regulations. It is not just adoption agencies that are affected. Countless Christian welfare projects will be affected, including old people's homes, residential drug rehab centres and community centres, to name just three.

At another level, businesses run by Christians would be affected, including wedding photographers, who could be sued for refusing to attend civil

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partnership ceremonies, which, as I have warned previously, are now commonly called “weddings”. In these areas, the Government are effectively putting up a sign saying, “No Christians allowed”.

The Merits Committee of our House has drawn special attention to the regulations, making specific reference to the concerns expressed by religious groups that they will infringe on their religious freedom. Of course, in many areas the laws will make little difference; there is no problem in most business contexts. It is only where religious people are asked to endorse or promote a lifestyle which is counter to their beliefs that there is a problem. That does not mean that homosexuals are deprived of any service; they have the choice of many businesses which do not operate on strictly Christian principles. Some people of strong religious beliefs are simply saying there are some things that would involve them in moral compromise or in acting against their conscience.

A Christian printer would be quite content to print materials for people who happen to be gay, but would not want to print the Gay Times, or leaflets promoting gay marriage. That is a crucial distinction which Christians make, but which the regulations will not permit. Others are allowed to carry on in business and keep their freedom of conscience intact: a staunch socialist can refuse to print a Tory election leaflet; a vegetarian printer can refuse to print flyers for his local butcher; and a pacifist can refuse to print a sales brochure for an arms manufacturer.

The Government have taken the view that gay rights trump religious rights, as the right reverend Prelate the Bishop of Winchester said this morning on Radio 4. Of course, the Government deny that, but the Joint Committee on Human Rights exposed that denial when it published a report on 28 February declaring at paragraph 44 and elsewhere that that is precisely what the regulations do. A citizen's right to manifest sexual orientation is absolute, but the right to manifest religious belief is not.

The human rights committee also says that the regulations could result in litigation against a school if a teacher says homosexual practice is wrong. If a priest is asked a direct question in an RE lesson, there could be litigation if he divulged what he really believes.

The Government and the Minister graciously made the same point; they deny the curriculum is covered by these regulations. In that case, why do equivalent religious discrimination laws have exemptions in the curriculum? The Government may be the only ones who believe the curriculum is not covered. Others who believe to the contrary are the Joint Committee on Human Rights, the Church of England's lawyers, the counsel to the Joint Committee on Statutory Instruments, the seven denominations suing the Government in Northern Ireland and a pro-gay group called No Outsiders. That group is already going around the country telling schools that the regulations mean they have to “normalise” homosexuality to seven year-olds and read gay fairy tales in the classroom.

There are, of course, as the noble Baroness has pointed out, exemptions to the regulations.

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Parliament is exempt; the insurance industry is exempt until the end of next year; and gay welfare groups have an exemption so they can turn away heterosexuals. Noble Lords might like to note that they can put up a sign saying “No heterosexuals” and Regulation 13 will protect their right to do so. I do not criticise that, I only note that on this point it rather puts into perspective the somewhat overemotive arguments that we heard when we considered the equivalent regulations for Northern Ireland in this House on 9 January.

Can it be right to introduce these laws for Great Britain when there is a real prospect that the Northern Ireland regulations may be struck down by the judicial review currently being undertaken? Surely it would have been better to have awaited the outcome of that review?

Regulation 14 provides some exceptions to organisations with religious purposes so long they are not publicly funded or commercial. But where a religious body has a contract with the state, Regulation 14(8) blocks the religious exception. It is extraordinarily wide. Regulation 14(8)(a) is so ambiguous that it appears to mean that any contract with a public authority by a denomination may result in the whole denomination losing its religious protections from the regulations. If a Christian organisation receives public funding for carrying out a project for asylum seekers, the organisation loses its religious exceptions, its membership policy is no longer protected and it could be sued. A Christian old people's home run as a charity could be sued by a homosexual couple whose accommodation is funded by the local authority.

Under Regulation 14(8)(b) religious bodies deemed to be public authorities lose all their exceptions under the regulations. The Minister said that the organisations had the choice whether to receive funding, but it really is well known that the Government want all old people's homes to be considered as public authorities and to overturn the Leonard Cheshire judgment. If that happens, a Christian old people's home run as a charity will be forced to offer double rooms to homosexual couples for all its places, not just those which are publicly funded.

Regulation 11 makes it unlawful for a person to,

If a church minister preaching on homosexuality in orthodox terms, instructed the congregation not to take part in activities inconsistent with this teaching, and concluded his sermon with an exhortation to act consistently with Christian beliefs, under Regulation 11 the Commission for Equality and Human Rights could launch a legal action against him. It could argue that he was attempting to cause or induce discrimination on the part of his congregation should any of them be put in the relevant circumstances. The Minister may say that the commission would never do that. But should it even be possible to do it? Must we rely on the tender

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mercies of commission officials? That is a major oversight in these regulations.

The Government have placed this House in a very difficult position. They have chosen a legislative procedure that means that none of us is in a position to propose amendments. Although the Government claim that they have protected the rights of religious groups in these regulations, I do not believe that that is so. It may have been possible to draft the religious exceptions in Regulation 14 on a broader basis, but there is neither the time nor the means tonight of finding a solution. Therefore, as we cannot accept the regulations in their present form, the only option available to us is to reject them. Surely this House cannot permit the passage of secondary legislation which strips away fundamental religious freedoms. I ask the Government to think again. I beg to move.

Moved, as an amendment to the Motion, to leave out all the words after “that” and insert “this House, having regard to the widespread concerns that the draft regulations compromise religious liberty and will result in litigation over the content of classroom teaching, and having regard to the legality of the equivalent regulations for Northern Ireland, declines to approve the Equality Act (Sexual Orientation) Regulations 2007”.—(Baroness O’Cathain.)

8.05 pm

Baroness Massey of Darwen: My Lords, I wish to focus on education this evening. I am surprised that the noble Baroness, Lady O’Cathain, did not focus very much on it.

Let me first focus on children and their general needs. The seminal document Every Child Matters set out desirable outcomes for children, three of which were being healthy, staying safe and enjoying and achieving. That cannot happen in isolation—children must have support from family, schools and children’s services. This amendment is no way to go about—in relation to education at least—supporting children.

Today I have a strange sense of having gone through the educational issues around this before. Sexual orientation was debated in your Lordships’ House during the Section 28 issue some years ago. I well remember during those debates on Section 28, the fear that homosexuality would be promoted in schools. I would like for a minute to consider what dire consequences have happened since Section 28 was eliminated seven years ago—none. What are we afraid of here? The noble Baroness, Lady O’Cathain, fears litigation over the content of classroom teaching. We have been here before. If that were going to happen, it would surely have happened already.

Every child does matter, and some children are being discriminated against because of their own sexual orientation or that of a family member. There is evidence, for example, of children being denied access to schools. That is surely wrong, whether the school is maintained, independent or a faith school. These regulations would put that right. Discrimination against a pupil because of his or her sexual orientation has been noted—for example, a girl was not allowed to be head girl at a school, despite being elected, because she was openly gay.



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Anyone who has had to deal with any kind of bullying in schools knows how terrifying it is for a child. Bullying can result in poor academic performance, family problems because the young person is scared to tell, and even, in some awful circumstances, suicide. Two-thirds of young lesbian and gay pupils report being bullied; that is a horrendous statistic. These regulations would help to address that.

What about the “gay sex lessons” that we see paraded in the media and on placards outside your Lordships’ House today—yet again, I might add?

There are strict regulations and safeguards about sex education in schools. The Minister mentioned them herself. The regulations will not require schools to change what they teach. They will not make schools vulnerable to legal challenge if they do not use specific books about sexual orientation. Nor will the regulations affect existing guidance allowing schools to choose materials or prevent parents withdrawing their child from sex education if they wish.

I am a school governor in a multi-faith school. I cannot foresee any problems with the content of classroom teaching. Has the noble Baroness, Lady O’Cathain, forgotten the powers of school governors to oversee the curriculum? The vast majority of teachers are utterly responsible in areas such as sex education. The vast majority of schools take their duty to educate young people about sexual relationships very seriously. School governors, who include parent governors, who give their time freely to contribute to a school's progress and ethos, would not risk litigation over the content of classroom teaching.

The amendment, as it refers to classroom teaching, is an insult to teachers, an insult to schools and an insult to governors. It will achieve nothing and could put children and young people at risk of discrimination and bullying. I hope that the amendment will be withdrawn or rejected.

8.11 pm

The Lord Bishop of Southwell and Nottingham: My Lords, there is much in the regulations that is both sensible and uncontentious. The Church of England will certainly support the use of law to tackle discrimination and basic injustice. We also very much welcome the Government's decision to consult further before attempting to formulate harassment provisions in relation to sexual orientation. As the Joint Committee on Human Rights noted, the harassment provisions included in the Northern Ireland regulations were drawn too widely and too vaguely.

However, as we have heard already this evening, we are once again faced with regulations that give widespread concern to Christian people and other people of faith because they fail to strike the balance between competing rights. The balancing of competing rights requires that any restriction imposed on the exercise of one person’s rights to protect the rights of another should be both necessary and proportionate. We do not believe that the regulations meet that requirement, especially in relation to religious adoption agencies.



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For Parliament to require our Roman Catholic friends, after a brief stay of execution, to choose between acting in a way that conflicts with their religious convictions and closing down work that is manifestly for the common good reflects a new kind of secular dogmatism. It is a development entirely at variance with our well rooted tradition of religious tolerance and liberty. Especially when homosexual people are not only able but almost certain to seek the services of other agencies anyway, what is remotely proportionate about forcing the closure of the Catholic agencies?

It is hard to escape the conclusion that the right to freedom of religion is being treated as of lesser weight than other human rights. The sixth report of the Joint Committee on Human Rights appears to suggest precisely that, on the grounds that religion and belief are matters of choice and therefore less deserving of protection than sexual orientation, race or sex. If that is indeed the committee's analysis, it is certainly not one that we share.

Of course, discrimination on those grounds requires justification, but it does not follow that when the right not to be discriminated against comes into conflict with the right to freedom of religion, the right not to be discriminated against must automatically trump the right to freedom of religion. Indeed, under our domestic law, the importance of the right to freedom of religion where rights conflict is emphasised in Section 13 of the Human Rights Act, a provision to which absolutely no reference is made at any point in the Joint Committee’s report. There are also concerns about schools, but I shall leave that to my friend the right reverend Prelate the Bishop of Winchester to deal with, if he wishes.

Turning to religious organisations generally, we welcome the inclusion of special provisions for churches and other religious bodies in Regulation 14. They will enable those bodies established for a religious purpose to apply religiously based principles of conduct in sexual matters to those seeking membership or who wish to take part in their activities or otherwise use their facilities. The intention behind Regulation 14 is, therefore, helpful.

It is therefore a pity that there are, in our view, a number of unnecessary obscurities in the drafting which could be the cause of wholly avoidable and undesirable litigation. I referred to those in the debate in your Lordships' House on the Northern Ireland regulations and the same is true of other concerns that have been brought to the attention of officials. Time, and time alone, will tell whether the Government’s confidence in the adequacy of the drafting is well placed. What is abundantly clear is that the risks could have been much reduced if the provisions were enacted by way of primary legislation and subjected to the normal processes of legislative scrutiny. To make new law in this very sensitive area on a take-it-or-leave-it basis when the regulations were not even published for comment in draft is not, I argue, a sensible way to try to build consensus or, indeed, social cohesion.

In conclusion, although there is much in the regulations that is uncontentious and a very proper protection against injustice, they have failed overall to

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strike the careful balance that is needed in an area where conflicting and important rights are engaged. They have all the hallmarks of haste and insufficient engagement with representatives of the churches and other bodies in the detail of the drafting.

I hope the Minister will be able to give an assurance that in their approach to the forthcoming equality law review, the Government will give renewed weight to Section 13 of the Human Rights Act. For now, it gives me no satisfaction to say that the present regulations represent a disturbing erosion of religious liberty.

8.17 pm

Lord Pilkington of Oxenford: My Lords, I want to concentrate on what has been the subject of intensive argument during the past 200 years: the rights of churches, voluntary societies and other groups, such as trade unions, to have their rights respected apart from the state. Cavour, in the middle of the 19th century, coined the phrase:

That phrase includes all other voluntary societies. What we who support the amendment are saying is that the regulations question the right of a small or large voluntary society to exist with its own rules, doctrines and ways of behaving without observing the state. The state has tried in Germany and France at various times to assert its rights over such bodies but, in general, those rules have been rejected. Even the Church of England, established by law, having some of its finances from the state, has had the right to observe its own principles.

The order destroys that agreement which has existed in English society. To my knowledge, during the past 150 years—200 years, almost—the state has given grants to church and other voluntary societies. It has never said that because it pays them money, it should be able to alter the rules. But it is doing that in this measure. That is a very dangerous step to take. Once the state dictates morality, it is conflicting with the views of churches, trade unions and so much more.

Why is that happening? Why is the custom of so many years being broken? There is an ideology of secularism and there is no doubt that it is being applied in this order. As we know, the Prime Minister tried to find a compromise but it was resisted by a large number of his Cabinet. In other words, they knew there was a fight coming and they went on to provoke it.

I shall be brief. The order undermines a long-observed rule regarding churches and smaller societies. Noble Lords should remember that these rules, as the right reverend Prelate has said, apply only to believers. There are plenty of opportunities for same-sex couples to go to adoption societies that do not apply these rules. However, the regulations say that the church can no longer apply them. This could be extended to a whole variety of things. In the past, the Members opposite were very keen to emphasise the rights of trade unions, and I have a lot of respect for the line that those Members took over those

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rights. Yet the same Members are denying rights to the churches. To my mind, the regulations are both unnecessary and wrong. They assert individual human rights against the rights of voluntary societies, and in so doing affect democracy. It is absolutely wrong for a democratic state to assert that the churches and their voluntary societies cannot follow their doctrine merely because the state pays the money. In this, as I say, they break 200 years of tradition. I therefore appeal to noble Lords to reject the regulations and to support the amendment.

8.21 pm

Lord Anderson of Swansea: My Lords, my long-standing habit in more than 36 years in Parliament has been to support my party. I shall not do so tonight, and therefore I need to explain my vote. I accept that non-discrimination is a vital principle, and I have in the past—consistently, I believe—supported legislation to remove hurtful, unjustified discrimination against homosexuals. Indeed, I believe that many of the regulations are acceptable, and I found what the Minister said about education particularly persuasive. However, the regulations are unamendable and must therefore be considered in their entirety. For me to support them would be a vote too far.

Briefly, the job of government in these cases is to balance several principles that may sometimes conflict and compete with each other and not to pursue one principle to the extent that it creates injustice, unjustifiably restricts basic freedoms and overrides deeply held religious beliefs. Here, the Government have given greater weight to the demands of gay rights than to the concerns of mainstream religious bodies. Let me give some examples of what would happen under the regulations. A Muslim couple whose children have left their home have three spare bedrooms and decide, perhaps in their retirement, to supplement their income by operating bed-and-breakfast accommodation. If they refuse a homosexual couple, they will be subject to civil liabilities under Regulation 6(2). A young Christian professional is posted abroad, perhaps for six months. He wishes to let his flat over that period but refuses to let it to a homosexual couple. Again, he will be liable to a fine under Regulation 5. A Jewish printer or web designer refuses to print literature that promotes homosexuality perhaps by detailing a gay dating agency. Under Regulation 4, he could not refuse to print it, even though he believes that to print it would make him complicit in the promotion of homosexuality.

On Regulation 15 and adoption agencies, I believe we all accept that Roman Catholic adoption agencies in particular have a splendid record in placing difficult children for adoption. The regulations give them until December next year to conform. My understanding is that there has been only one case so far of a homosexual couple being refused. In that case, the Roman Catholic agency passed the couple very sensitively to an agency that was prepared to deal with them. Why cannot that continue? Surely that is a reasonable answer to that position. It does not hurt, and it meets the proper religious concerns.


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