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9.25 pm

Baroness Butler-Sloss: My Lords, I shall be brief. I had not intended to intervene in this debate, but I have been impelled to do so by the suggestion that it is

21 Mar 2007 : Column 1320

hypocritical to support gay relationships and I wish to criticise these regulations. I strongly support gay relationships and have lectured up and down the country in support of the civil partnership legislation and all that goes with it. I strongly support same-sex adoptions in suitable cases. Indeed, as a judge, I have been responsible for placing children with same-sex couples.

But these regulations, in my view, are ill-drafted, have not been properly scrutinised, and give the major religious and faith groups concern. Their views should not be ignored. The regulations are good in part. Much of the regulations should be supported, but they should be reconsidered, re-written and should not be passed in their present form.

9.27 pm

Lord Blackwell: My Lords, much of the debate, in fact all of it, has focused on the objections from those with strong religious convictions. Before the House proceeds, we should note that it is entirely legitimate to have concerns about the drafting of these regulations that do not depend on those religious convictions. As a number of speakers have said, those concerns come back specifically to the interests of children in adoption.

You do not have to be prejudiced, or, I suspect, do you have to be heterosexual, to believe that it is in the interests of children, if possible, to be in a family with a parent of each sex. That is why it is generally accepted that two-parent families are, ideally, better than one-parent families. Children benefit from having the role models of both a male and a female parent. That is not to deny that many single-sex couples can provide stable, loving and caring homes, and I would not wish to deny them that opportunity. However, we should allow adoption agencies to have, as one of the criteria that they use in selecting parents, the preference, if that can be achieved, for having two parents of opposite sex.

Unfortunately, my reading of the regulations is that stating that as a preference would count as discrimination. We cannot, without debate, pass regulations that would make it discriminatory to regard it as preferable to put a child with a two-parent family, rather than with a one-parent family.

9.30 pm

Baroness Turner of Camden: My Lords, I hope that your Lordships will not agree to the amendment and will pass the regulations. Similar regulations came into operation in Northern Ireland, as we have heard, and the House then voted decisively for them by 199 votes to 68.

The regulations aim simply to put gay and lesbian people on the same equality footing as others who may not be discriminated against on grounds of race, religion, belief or gender. This protection against discrimination is highly necessary. Why should people seeking goods or services be refused what would otherwise be available to them simply because of their sexual orientation?

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The reasons normally given for this outrageous discrimination are religious—we have heard some of them this evening—but it is quite untrue that the regulations contravene people’s freedom of religious conscience. I am a secularist, a member of the National Secular Society and a vice-president of the Humanist Association, but I have always believed that everyone has a right to believe whatever they wish and to have the freedom to practise their religion. The equality legislation, which I have always supported, is meant to guarantee those freedoms, but it does not give adherents of religion the right to impose their beliefs on others who may not share them, nor does it give them the right to take away rights from others simply because they do not appreciate their lifestyle.

These much needed regulations will protect lesbian and gay people from discrimination in a whole range of areas, both in the private sector—from hotels to banking—and in the public sector, including health care, education and housing. There are many examples of discrimination still being practised in these areas. Frankly, if a religious organisation undertakes commercial activity or receives a subsidy from the public purse, it has no right to discriminate against lesbian and gay people, just as it would have no right to discriminate against the disabled or on grounds of race.

The Government have confirmed that there will be no exemption for religious adoption agencies, but that they will be given until the end of 2008 to adapt their services. We have heard from the Minister details of the transitional arrangements. Surely where such services are publicly funded, they should be available on equal terms to all sections of the community, but the first consideration must be the welfare of the child, which has been emphasised by a number of speakers this evening. The Government have endeavoured to meet any genuine religious objections to the regulations, but they rightly believe that a prohibition on discrimination must be inclusive and that there are no grounds for general exemptions.

I urge the House to agree the regulations and to reject the amendment. No genuine objection on religious grounds is possible. Those who claim that there is should recall that many gay and lesbian people are religious. I know a number who are proud to be devout Christians. They have the right to be treated with humanity by their fellow Christians. I ask the House to support the regulations and to oppose the amendment.

9.33 pm

Lord Lester of Herne Hill: My Lords, we on these Benches support the approval of these regulations. We oppose the fatal amendment advocated by the noble Baroness, Lady O’Cathain. We hope and expect that the current and much delayed work on a single equality Bill will yield legislation that is fit for its important purpose of achieving coherence, consistency and clarity in promoting equality and combating discrimination effectively.

We agree with many noble Lords that it is unfortunate the law has to be reformed by secondary legislation, since, as has been said, this reduces the

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scope for scrutiny of the detail of the regulations, and that the reason for this is that the Home Office unwisely included religious discrimination in the Equality Act without providing also for sexual orientation discrimination. I remember the noble Lord, Lord Alli, and I both complaining strongly about this during the passage of that Act. The regulations are needed because, when the Equality Act is brought into force, both types of invidious discrimination are made unlawful.

The noble Baroness’s amendment gives three grounds for blocking the regulations. None of them, even if they were substantiated, could justify that move. The amendment would mean that the Equality Act would forbid religious, but not sexual orientation, discrimination.

As the Minister so clearly explained at the outset, the regulations do not compromise religious liberty. There is no restriction in them on the right to believe and restrictions on the right to manifest one’s religion or belief may be justified by the need to protect the rights of others. The regulations must strike, and do strike, a fair balance between the competing rights and interests.

Misleading homophobic and sometimes scurrilous attacks have been made outside Parliament by those who believe that there is no moral equivalence between homosexual and heterosexual children or adults and they believe that homosexuality is sinful. They are perfectly entitled to their beliefs; they are perfectly entitled to express their views; they are perfectly entitled to seek to persuade Parliament to agree with them; but it is the responsibility of the elected Chamber and this House to strike a balance between the competing rights and freedoms.

I shall give one example of the perfectly disgraceful propaganda that has been levelled against the Bill and which has caused me to put down Questions that were clearly answered by the noble Lord, Lord Rooker. An advertisement was taken out by a clearly very well funded lobby, calling itself Coherent and Cohesive Voice; a network, it said, of hundreds of Christian leaders in the United Kingdom, representing hundreds of thousands of voters. I asked the noble Lord, Lord Rooker, whether that great organisation had bothered to seek the views of the Government and he answered that it had not troubled to do so.

The organisation made allegations that were completely untrue. One allegation was that the regulations would force all schools actively to promote homosexual civil partnerships to children from primary school age onwards to the same degree that they teach the importance of marriage. That is untrue. It was alleged that the regulations would force a printing shop, run by a Christian, to print flyers promoting gay sex. That is untrue. It was alleged that they would force a family-run B&B to let out a double room to a transsexual couple, even if the family thought it in the best interests of their children to refuse to allow such a situation in their own home. That is untrue. It was alleged that they would make it illegal for a heterosexual policeman, fireman or a member of the Armed Forces to refuse to join a Gay Pride event promoting the homosexual way of life.

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That too is entirely untrue. I do not know where they get their funds from—they must have a lot of them—but that is an example of the kind of scurrilous propaganda that deliberately or inadvertently seeks to mislead the public about these regulations.

During the passage of the Human Rights Bill, the churches campaigned for complete immunity from the European Human Rights Convention. They were completely misguided in doing so. Instead, Parliament wisely enacted Section 13, which has been referred to by the right reverend Prelate the Bishop of Southwell and Nottingham. Section 13 requires the courts to have particular regard to the importance of the convention right to freedom of thought, conscience and religion when determining questions under the Act that might affect the exercise by religious organisations or their members of that right. That is an important safeguard and I am very glad that it is included in the Human Rights Act, but only the right reverend Prelate has drawn attention to it.

It is not the case, as the noble Baroness suggested, that the regulations compromise religious liberty; nor is there an abuse of democracy, as Cardinal Murphy-O'Connor claimed today, in Parliament approving the regulations to include the transitional compromise period for Catholic adoption agencies receiving public funding and providing a public service, a service which is most valuable and which we hope will continue. I say to the noble Baroness, Lady Morris of Bolton, that that is about the provision of a service to the public, where the interests of children are paramount.

I agree with every word of the compassionate and well informed speeches of the noble Baronesses, Lady Gould of Potternewton and Lady Howarth of Breckland, of the noble Lord, Lord Smith of Finsbury, and above all of the noble Lord, Lord Alli, who has been so conspicuous in combating some of the misconceptions that have arisen.

I have to say to the most reverend Primate the Archbishop of York that it is not correct to say that the regulations suggest a hierarchy of rights; nor is there any spider’s web or a legal sausage machine. Furthermore—and I speak as a Jew—I am astonished to hear the suggestion that the principles of human rights are somehow incompatible with the Judaic religious code. I had thought—although I cannot claim to be as well informed as my noble friend Lady Neuberger, who is not here to tell us this evening—that the principles of human rights are universal, that they derive not only from the secular Enlightenment but from all the great religious traditions, including the Judaeo-Christian tradition, and that they all recognise the need for a fair balance between competing rights and freedoms.

The regulations—and no one has made this point—are to be read together with the provisions on discrimination in the Equality Act, which contain exceptions rightly considered to be necessary to protect the broad-based secular curriculum. That is why the exceptions are there. If the present regulations compromised religious liberty, they would need to be read and given effect under Section 3 of

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the Human Rights Act in a way that would be compatible with the convention rights, including the right in Article 9 of the convention to,

and to manifest one’s,

If a public official or authority, whether a Minister, a state-maintained school or anybody else, were to act in breach of Article 9 of the convention, a claim could be brought under the Human Rights Act for a breach of the Section 6 duty on the public authority seeking to ensure compatibility with a convention right, and these regulations would have to be read in that way—see Section 3 of the Act.

The right to religious freedom is not absolute. Article 9 makes it clear that it may be subject to,

as they are in these regulations—

In this case, the rights of others are the right of homosexual people, including pupils and students, to respect for their personal privacy and their right not to be discriminated against on the ground of their sexual orientation in the enjoyment of other rights, such as the right to education.

It is the task of the legislature, and, if challenged in legal proceedings, of the courts to strike and maintain a fair balance between these rights and freedoms. The regulations are concerned not with what happens in the bedroom, but with the adverse and unfair treatment of the individual on the ground of that person’s sexual orientation as a gay or lesbian individual. As has been said, it is as unfair and unjustifiable to treat a human being less favourably because he is gay as it is because he is a Jew, a Catholic, a man or of Asian origin, or because he or she is old or disabled.

The Government have wisely omitted harassment from the regulations for Great Britain and left that for consideration by the Discrimination Law Review. We have made it clear that we would oppose any attempt to reintroduce the concept of religious harassment, which was firmly rejected by this House during the passage of the Equality Bill, because of the threat to freedom of expression and religious freedom. We hope that the Government will heed that view.

Finally, the Joint Committee on Human Rights, on which I serve, has been accused this evening by no less than the right reverend Prelate the Bishop of Winchester of being illiberal. The Joint Committee welcomed the introduction of the regulations on sexual orientation discrimination as,

We also welcomed the Government’s acceptance that the prohibition of discrimination on grounds of sexual orientation should apply to schools without any exemption for particular types of schools, such as faith schools. In view of what has been said, I should give our explanation. We said:

Just pausing there, surely it is not illiberal to resist that kind of most objectionable propaganda against a pupil. We continued:

Noble Lords: Oh!

Lord Lester of Herne Hill: My Lords, I am sure that noble Lords will be patient, because I, too, have to exercise some freedom of speech. We continued:

I suggest that there is nothing illiberal in that.

As we understand it, the Government share our values and consider that the regulations would have that effect. I hope that the Minister will confirm that that is the Government's position. As for the curriculum, which has been mentioned several times, if it were to be unlawfully discriminatory, which it is not, that could be the subject of judicial review proceedings.


Noble Lords: Oh!

Lord Lester of Herne Hill: My Lords, there is only one speaker from these Benches and it is important that I deal with all the points. I will not be intimidated by moans and groans.

As regards the risk of litigation, which has been mentioned, or the fact that judicial review proceedings are pending in Northern Ireland, it is the fundamental right of everyone to have access to the courts. Great, rich, powerful, political organisations such as SPUC use that right all the time to challenge regulations, as is their right; to challenge primary legislation, as is their right. The fact that they do so is no reason for blocking the regulations. The fact that judicial review proceedings are pending in Northern Ireland is, again, no reason to do so.

It was suggested by the noble Earl, Lord Ferrers, and the noble Viscount, Lord Bledisloe, that there is a risk of prosecution under the regulations. That is not right. They create civil rights and obligations; they are not criminal.

For all those reasons, I commend the regulations.

9.47 pm

Baroness Hanham: My Lords, given the controversy that has been evident tonight and which has surrounded the regulations since they were published, I am not sure that the Minister will be entirely happy that equalities are now the

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responsibility of her department. The irony is that the legislation that dealt with all other areas of discrimination and has been mentioned so often tonight was the Equality Act 2006. Had these provisions been dealt with then rather than as a later add-on, much of the debate and controversy which they have generated both here and in the Northern Ireland regulations would have been dealt with then under primary legislation and in a manner that would have ensured that there could be time for proper parliamentary scrutiny, including the tabling and discussion of amendments. The noble Earl, Lord Ferrers, made that point quite clearly.

Arguably, that could still have been achieved if the Secretary of State, Ruth Kelly, had been able to respond positively to a proposal put to her by my honourable friend the shadow Secretary of State, Mrs Caroline Spelman. In her letter of 5 March, she suggested that the Government should consider proceeding by way of a statutory instrument to amend the original Act. That would have ensured that there could have been full discussion on all aspects of the sexual orientation provisions. That would have given them much more detailed and satisfactory consideration than the House of Commons was able to do last Thursday and that we have been able to do this evening.

Perhaps the Minister can tell the House why my honourable friend did not receive a reply to her proposal, which was accompanied by an undertaking that the Official Opposition would co-operate to ensure that as little time as possible was taken over the regulations on the Floor of the House. In view of the fact that the regulations have been re-laid several times since 5 March because of poor drafting, as has been said, it would have been quite possible for this sensible suggestion to have been implemented and for amendments to be tabled that might have reconciled the objectives of all parties. As it is, considerable concerns have been expressed tonight by the mover of the Motion, the noble Baroness, Lady O’Cathain, and others who have supported her.

These are not trivial matters. They are fundamentally matters of conscience, tolerance and values, particularly in relation to adoption and fostering, as many speakers tonight have said, and to the role of teachers in religious and sexual education. There has been a feeling that there has been an assault on Christian values and beliefs. There has been ample evidence of this both in the correspondence that we have all received and the demonstration that has been taking place all day outside Parliament. The regulations are about reducing discrimination, but it is evident that where they rightly and properly address that issue, they also give rise to the question whether those with Christian religious beliefs will now perceive themselves as the ones who are open to being discriminated against. The right reverend Prelate made that point very clearly.

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