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21 Mar 2007 : Column 1305

The Government have offered a stay of execution until December next year, but why should Roman Catholic agencies and others have been put in this position in the first place? Surely with a modicum of good will and common sense, that could have been avoided. In short, the Government are prepared to countenance the closure of bona fide agencies that provide a valuable service because the Government give priority to the interests of gay people. The reality is that the regulations are a one-way ratchet, and zealots will certainly push them as far as possible.

There are, of course, a number of ambiguities in the regulations. Regulation 15(4)(a), for example, permits a restriction,

Wonderful legal arguments will follow from that. In practice, the churches will seek legal advice when they are challenged, perhaps by individual zealots, and will be advised that litigation inevitably carries risks and that a test case can be extremely expensive. They may have to incur substantial costs to defend their rights against often very well resourced lobbies. Naturally, they will be inclined to take the safer course in such circumstances. The regulations are all or nothing. They are, as I said, unamendable. The Government have not shown any readiness to rebalance. They have drawn the line in the wrong place. They have been too ready to listen and to yield to well organised and intolerant lobbies, and too unready to listen to the proper concerns of faith groups, whether Christian, Muslim or Jewish. I certainly cannot support the regulations.

8.27 pm

Baroness Morris of Bolton: My Lords, no part of what I intend to say discriminates against any person whatever on the ground of their sexual orientation or to pass judgment on them. Nor, I believe, do any of your Lordships. That is why I support civil partnerships in principle. I agree with much of what the Minister said in her opening remarks, but I wish to limit my comments to Catholic adoption agencies. In my heart tonight are children. The regulations will place such intolerable pressure on Catholic adoption agencies that their crucial and devoted work will be placed in jeopardy. These agencies have a deserved reputation for placing some of the most damaged children from complex backgrounds. They also have a record that is second to none for their post-placement and post-adoption support, which is provided as a direct result of voluntary income generated through fund-raising activities throughout individual dioceses.

As we have already heard—this has happened only once—the Catholic adoption agencies have an informal commitment to pass same-sex couples on to one of the other adoption agencies, all of which have an open policy. However, the regulations will require all agencies to put in writing in their statement of purpose that they will help all couples, regardless of marital status or sexual orientation. This is a clear breach of Catholic family teaching, and these agencies will close unless some accommodation can be found. Of course, many will disagree with the

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stance of the Catholic Church. All I would say to them is: beware falling into a trap by defending one perceived form of discrimination and so discriminating against the countless volunteers who do extraordinary work both with and for children.

The Catholic Church is not homophobic. It teaches that people who are gay and lesbian should be treated with every respect and condemns all forms of unjust discrimination. That is why the church recognised much in the Northern Ireland regulations. But, as Cardinal Cormac Murphy-O’Connor said this morning on the “Today” programme, this is not about goods and services, it is about children. The welfare of the child is paramount and it would be criminal to deny some children who have not enjoyed the best start the chance of a better life because the Catholic adoption agencies on which they rely cannot continue under this legislation. It is for that reason, and to mark my concern, that I shall be supporting my noble friend Lady O’Cathain tonight.

8.30 pm

Lord Browne of Belmont: My Lords, whether you support the intention of these regulations or not, the particular version of them being put forward tonight is controversial, ambiguous and, worse still, it is being rushed through. I am sure that noble Lords would agree that Christians and other faiths across the country have a gracious and loving attitude towards their neighbours, regardless of their orientation. There is no reason or justification for discriminating against someone simply because of their sexual orientation.

The potential for a Bill that legally requires a Christian adoption agency to abandon its beliefs and the best interest of the child, a Bill that forces that hire of church halls to groups that conflict with Christian principles, or one that could lead to the removal of literature against homosexuality from a Christian bookshop is something about which many of us have grave reservations. Indeed, only a few months ago in this Chamber my noble friend Lord Morrow set out his objections to the legislation for Northern Ireland, which was rushed through in haste. Indeed, it is conspicuous that unlike the Northern Ireland regulations which, as I have said, were rushed through, these regulations do not contain a harassment provision. Once again Northern Ireland is being used as a testing ground for policies that are deemed too controversial for the rest of the United Kingdom. That is one of the many reasons that a judicial review of those regulations is to be heard in Belfast in June. It would have been wise for this House to have waited until the result of that review.

I note also that there is a difference of treatment over adoption. Regulation 15 contains special provision for religious adoption agencies. Again, that was not the case in Northern Ireland, where the provisions were rushed through in haste. I understand that if there is not a devolved Government in Northern Ireland by the end of the year—I sincerely hope that there is a devolved Government in Northern Ireland during the next few days—it is the intention of the Government to legalise joint

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adoption by homosexual couples in Northern Ireland this year. Combined with these regulations, it would mean the end of faith-based adoption agencies in the Province.

I admit that giving adoption agencies until 2009 to change their fundamental religious convictions is not much of a compromise, but it is more than they are giving to us in Northern Ireland. I put this to the Minister: I hope that any amendments made here would automatically apply to Northern Ireland. As I have said, the Northern Ireland regulations were rushed through in haste. There is a lot more that I could say, but I know that we are anxious to proceed so that many noble Lords can express their views on these regulations. For my part, and I know along with my party colleagues, my noble friends Lord Morrow and Lady Paisley, I will support the amendment.

8.33 pm

Baroness Gould of Potternewton: My Lords, I support these regulations, because I believe that they are the final stage in the process of removing discrimination on the grounds of sexual orientation and follow on the lines of the employment regulations passed in 2003. As the Minister made clear, the Equality Act 2006 provides for the extension of equality in respect of sexual orientation to the provision of goods, facilities and services, and the exercise of public functions. It was during the Third Reading of the Bill that noble Lords accepted an amendment to allow the Secretary of State to make regulations that prohibit discrimination on the grounds of sexual orientation. Since then, a number of inflammatory, inaccurate and sometimes distressing claims have been made about the regulations by some people who I believe firmly are opposed to gay people and are against equality for them.

It has been suggested that there is a contradiction between support for equality and freedom of religious conscience. But as my noble friend set out in some detail, there is no question that the regulations contravene in any way people’s freedom of religious conscience. They explicitly contain a doctrinal exemption for churches and other religious organisations, which is not only appropriate but also very robust. It reflects the approach taken to the Northern Ireland regulations which were approved by the House in January this year by 199 votes to 68, a majority of 131.

Surely it must be right, and a right, that there is protection for individuals from unfair treatment because of their sexual orientation, whether it be in staying in a hotel, treatment or delivering a health service or in the provision of education. My noble friend Lady Massey referred to Section 28 and the discussions we had about that. Ultimately, this House agreed that Section 28 should be no more. Is it right that there should be unfair treatment in the rental or sale of premises or on the question of adoption agencies? It is on the question of adoption that I wish to concentrate my brief remarks.

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On 16 October 2002, during proceedings on the Adoption and Children Bill, we discussed the question of adoption by gay couples. I shall not rehearse the arguments of the time, but I shall repeat one point that I made then. We have to do everything in our power to ensure that children can find loving, caring homes as quickly as possible. I do not believe that anything in these regulations undermines that objective. The approach taken strikes a positive balance between eliminating discrimination and recognising the need for a practical approach to ensure that the most vulnerable children are found loving homes. That balance is based on two fundamentals: first, that discrimination in all its forms must be eliminated; and secondly, that we retain the excellent adoption expertise that is to be found in all our adoption agencies, including of course the Catholic agencies. Alongside that, however, it is necessary to add that when offering a service to the public, especially when it is funded by taxpayers’ money—a subsidy from the public purse—access to that service must be available to all sections of the community on equal terms. We would not find it acceptable if adoption agencies refused couples because they were black. Why should it be acceptable for them to refuse prospective foster or adoptive homes on the grounds of sexual orientation?

The transition period under Regulation 15(2) will give adoption agencies until the end of 2008 to address how they will adapt to meet the new legal requirements. I know this has been scorned by many, but I believe that there is a possibility—an absolute probability, I am sure of it—that the differences will be resolved. During that period, agencies will have an opportunity to work alongside an assessment panel of experts in child welfare, the aim being to ensure that the high quality expertise that exists is not lost, that no agencies will have to close, and that the full range of post-adoption services are retained and developed. Arriving at this solution has entailed long debate and deliberation, but, as I said, by providing a further period of deliberation for faith-based adoption agencies, we will ensure that workable solutions are found.

There are many examples of successful adoptions by single gay and lesbian people. Enabling gay and lesbian couples to adopt jointly has contributed to increasing the number of adoptive families, allowing more children to be raised in loving, stable homes. That has been recognised by the British Association for Adoption and Fostering. BAAF, which has campaigned to widen the pool of prospective adopters to ensure that as many children as possible have the opportunity to be placed in loving homes, also makes the point that it is concerned to ensure that the expertise of Catholic agencies is maintained. It goes on to say that it welcomes the Prime Minister’s proposals for the transition period that he announced on 29 January. BAAF believes that the transition period will lead to a sensible solution.

As others have said, the key to ensuring that this all happens successfully, as I believe it will, has to be the welfare and the interests of the child. These regulations still make that possible.

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8.40 pm

The Archbishop of York: My Lords, the German poet Goethe wrote:

I fear that we are in danger of losing the formative Christian inheritance and foundation of this great nation, a foundation upon which our laws, society and culture have been built, but which is in danger of being undermined—a foundation of meeting the other person halfway. I, like William Wilberforce, fear that:

In the legislation before us, the Government are venturing down an unconsidered path through the establishment of a new hierarchy of rights. Through the most laudable aims, which I want to support, of removing discrimination against those who rightly deserve protection, the Government will in effect enshrine in legislation a new sub-category of those whom it will be legal to discriminate against. Rather than levelling the playing field for those who suffer discrimination, an aim I fully support, this legislation effects a rearrangement of discriminatory attitudes and bias to overcompensate and skew the field the other way.

In my maiden speech in this House I expressed the fear that we run the danger of spinning a legal spider’s web from which institutions, groups of civil society and members of local communities stood little chance of escaping. It now seems that a legal sausage machine is being creating by the regulations, requiring all of us to go through it and come out the other end, sanitised and with our consciences surgically removed. The freedom of a good and magnanimous conscience and the voluntary association for the common good cannot be made subject to legislation, however well meaning—a point the most reverend Primate the Archbishop of Canterbury and I raised in our letter to the Prime Minister. Incidentally, the Archbishop unavoidably could not be here, and he sends his apologies.

I have previously referred in this House to Bracton’s point that the King or Queen,

The civil freedom we enjoy in Britain stems from his words, which have regulated all our public servants. That principle meant that it was no longer the case that what pleased the King had the force of law. However, it seems increasingly that we are in danger of reaching the situation that what pleases the Government has the force of law.

The Government have proposed to carry out a discrimination law review in relation to previous equality regulations. Those regulations, like the Northern Ireland regulations, seem to have anticipated the outcome of that review.

As your Lordships know, the sexual orientation regulations arose from a European directive calling

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for a framework of equal treatment in employment and occupation and outlawing discrimination based on religion or belief, disability, age or sexual orientation. I say amen to that. The directive also states that the EU,

The proposed legislation from our Government has included the work of adoption agencies, which was not specified in other EU countries. In doing so, it has breached the conscience provision already established in law through which, for example, doctors on grounds of conscience may opt not to perform abortions. The right of a woman to an abortion does not give her the right to choose a particular doctor to carry it out. That doctor can opt out.

The Employment Equality (Religion and Beliefs) Regulations 2003 provide an opt-out to religious beliefs and a similar opt-out was also granted in the Employment Equality (Sexual Orientation) Regulations in 2003. In each of these cases it was recognised that religious organisations, as well as their individual members, were entitled to protection for their individual and collective conscience, recognising that a civilized society should make room for dissenters. Why, in the present regulations, has a similar balanced approach not been taken as in those previous two sets of regulations? Should we not all learn to live magnanimously with difference and learn attentively to listen?

Other speakers have made the point that we are seeing the emergence of a new kind of secular dogmatism which seeks to limit the proper sphere of religion to the internal activities of religious organisations We must remember that Article 9 of the European Convention on Human Rights protects not only the holding of beliefs, but also the manifestation of those beliefs in worship, in teaching, in practice and in observance. But we must be clear that “practice and observance” does not mean simply the narrow context of corporate worship.

As the noble and learned Lord, Lord Nicholls, noted in the recent decision of the House of Lords in Regina v Secretary of State for Education and Employment and others ex parte Williamson,

He said there were perceived obligations to act in a certain way arising from that belief and that doing so was itself a manifestation of that belief in practice. In the same case, the noble and learned Lord, Lord Walker, said that,

We must keep in mind the epigram of Montesquieu, that great, great jurist, who said that if mankind was of one mind, and only one man was of the contrary opinion, mankind would be no more justified to silence him than he, if he had the power, to silence mankind.

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But how are we to approach the question of conflicting human rights? Professor Raphael Loewe says in his essay Imitatio and Ethics in Judaism and Christianity:

This freedom of thought may help us to get out of the quagmire of the human rights debate. These are the core values of true citizenship, values which were the building blocks that gave nationhood to this nation through the medicine of the Gospel. Reinventing the wheel is not the problem; it is reinventing the flat tyre that is the killer.

Will the Minister give us some assurance on how Regulation 7 will be handled if it proves problematic in relation to the school curriculum and collective worship? It may prove problematic. Secondly, I see drafting difficulties in the otherwise very helpful Regulation 14 in relation to religious organisations. How does the Minister intend to iron out these apparent drafting difficulties, problems that could have been sorted out had these regulations been subjected to normal parliamentary scrutiny? That is really my point: if they are not subject to that, it is possible that we will have anomalies throughout the regulations. Time does not allow me to quote any further from my notes. I shall send the Minister a copy of them if she wants me to.

Sadly, I have come to the conclusion that the regulations should be sent back to the drafting board to enable Her Majesty’s Government to carry out the necessary balancing of competing rights, as found in the 2003 regulations. There they succeeded in balancing them out; here I do not think they have succeeded. For that reason I shall be voting with those who are not content with the regulations.

8.49 pm

Baroness Howarth of Breckland: My Lords, I speak without a prepared speech but with a heavy heart. As a Christian woman, I find this an extraordinarily difficult and distressing debate. It is distressing because we are not really prepared to face the fundamental issue. I have listened to speeches in which noble Lords have said, “We respect gay people, but...”. The issue is not about rights; if it were, we would not be having this debate. It is about whether noble Lords accept gay people as equal human beings.

Two hundred years ago, William Wilberforce made a speech in Parliament that freed black people to be equal human beings. I hope that this evening your Lordships will vote for these regulations. I have some quarrel with the way in which the regulations have

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been brought forward, but I hope that noble Lords will vote to underline that gay people are equal human beings with others. I say this as a Christian woman. I have listened to the most reverend Primate the Archbishop of York, and I listened to the Catholic archbishop on the radio this morning, a very dear and wonderful man. He was struggling because he was trying hard not to appear prejudiced, but he was saying two things. Those noble Lords who are this evening saying two things are breaking their principles. If a Catholic organisation says, “Our principles do not allow us to place a child with a homosexual couple, but we are prepared to send it somewhere else for someone else to do it”, where is the underlying principle? Why will that organisation not do it but allow someone else to if it believes that that child will not have an appropriate home?

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