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At one stage, my husband and I very nearly adopted from the Catholic adoption agencies. In the end, we decided not to, and I became pregnant. There was a young boy who did not want full-time adoption. He just wanted a family that would have him at the weekend because he wanted a ferret. A ferret was all he wanted in life. We considered long and hard whether we could give him a home at the weekend and give him a ferret. In the end, we decided not to. I have often thought long and hard about that young man. I hope he did get his ferret and I hope he got it in a loving Catholic home.
Baroness Murphy: My Lords, I shall speak briefly to urge the Government not to accept these amendments. I find them quite shocking. Essentially, I would defend to the death the rights of religious groups and organisations to believe what they want to believe but, when it comes to how those religious groups behave in relation to the rest of society, they cannot exercise a right that so diminishes the rights of other groups. I do not doubt that that is not the intention of my noble and learned friend Lady Butler-Sloss, but these amendments are deeply, offensively, homophobic. The Government must resist them at all costs.
Lord Low of Dalston: My Lords, I did not intend to speak in this debate, but I have listened carefully to what has been said and it has prompted one or two reflections that I would like to give voice to briefly, particularly in the light of the remarks by my noble friend Lady Murphy.
I am not a religious person, but people of all faiths and none should be concerned about the value of tolerance. It is a value that we should not lightly undermine. What leads people to support provisions that seem to have the effect of undermining free speech and conscience and creating the oppressive majoritarian regime of which my noble friend Lord Alton spoke? I think that it arises from concern over the exercise of free speech and conscience operating as a sword for the oppression of minority groups. That may not be the intention, but the exercise of rights of free speech and conscience can operate in that way, which is the mischief to which my noble friend Lady Murphy referred.
We should be concerned in our zeal to prevent such provisions from operating as a sword not to prevent them from operating as a shield in the hands of people who are simply concerned to protect their private
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That word "reasonably" leads me to make a suggestion. If the Government are minded to stand pat on the provisions of the Bill and to resist the amendments, it occurs to me that they might like to reflect a little more on what has been said and come back at Third Reading, as was suggested, with their own amendment that glosses these amendments, upholds their spirit and enables people to exercise their conscience, so long as that does not cause any harm to others or have any disproportionately adverse effect. We have heard a lot of testimony in this debate to suggest that the operation of the provisions that are maintained in the Bill has had a disproportionately adverse effect. If exercising the right of conscience were not to have a disproportionately adverse effect, that is the basis on which we could reasonably support amendments of this kind in the interests of upholding the value of tolerance.
5.45 pm
Baroness Royall of Blaisdon: My Lords, Amendment 20, moved by the noble and learned Baroness, Lady Butler-Sloss, is similar to an amendment moved in Committee by the noble and learned Lord, Lord Mackay of Clashfern. During that debate, my noble friend Lady Thornton made it clear that, where it is operationally feasible for service providers to make allowances for the views of their staff, they are free to do so. However, if this amendment were accepted, we would be going even further by requiring service providers, so far as possible, to make reasonable adjustments for the views of their staff in the light of their beliefs on sexual orientation.
It is our view that no one offering goods or services to the public on a commercial basis should be able to discriminate on any grounds. While we understand that individuals may have strong views, in this modern world those views cannot be used as a reason for prejudice or discrimination. As an employer, a service provider can already, when reasonably able, take practical measures to respect the private views of staff.
The noble and learned Baroness and other noble Lords raised the recent case of the registrar. In that case, the Appeal Court handed down its judgment, which confirms that, while everybody is, of course, free to hold personal opinions about sexual orientation, those who are employed in providing a service to the public are legally obliged to treat their gay, lesbian and bisexual customers in the same way as they treat their heterosexual customers. In the case of registrars, that demonstrates that, if an individual registrar does not want to conduct a civil partnership ceremony because of his or her religious beliefs, a local authority could arrange for a different registrar to conduct the ceremony, if there is one available. However, if there is no other registrar available, the local authority can and should require the registrar to carry out the ceremony. That is precisely what happened in the case in question.
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The amendment tabled by the noble and learned Baroness would go further by imposing an undefined and burdensome new duty on service providers to accommodate the views of their employees relating to sexual orientation. This would upset the balance that the Bill currently strikes where there are potentially conflicting rights. In this case, that balance is appropriately struck by the prohibition of indirect discrimination, which protects employees against an employer's failure to accommodate their beliefs. This means that, where an employer's policy or practice puts a group of employees sharing a protected characteristic at a disadvantage, that policy has to be objectively justified. In addition, we think that this amendment is not only unnecessary but would introduce uncertainty and confusion in what is expected of service providers, when the main focus should be on ensuring that they provide services to the public without discrimination in accordance with their legal obligations.
Amendment 21 would turn back the clock for adoption and fostering agencies. The proposed new paragraph in Schedule 3 would provide an open-ended, block exemption, allowing faith-based adoption and fostering agencies, for religious reasons, to refuse their services to a person because of his or her sexual orientation, provided that they referred that person to another agency. This Government are committed to adoption for children where this is in their best interests and we have made it clear that we are also committed to ensuring that people are treated fairly, no matter what their sexual orientation. That is why the Adoption and Children Act 2002, and its Scottish equivalent, focused strongly on the needs of children awaiting adoption and widened the pool of prospective adopters to include same-sex and unmarried heterosexual couples. It is also why the Equality Act (Sexual Orientation) Regulations 2007 introduced the right for same-sex couples and single, homosexual or bisexual people to be treated the same as other prospective adopters by adoption agencies. Under the regulations, adoption agencies must offer the same service to all couples or individuals who wish to adopt. Since that time, I have witnessed real joy, as I am sure many noble Lords have, for gay and lesbian couples who have adopted children and who have made a profound difference to the lives of those children.
Children's best interests must remain paramount. All prospective adopters undergo the same thorough and rigorous assessment process, irrespective of their sexual orientation, to ensure that children are matched with families who can best meet their needs. Like the noble Lord, Lord Patten, I pay tribute to the excellent work of all adoption agencies but, unlike him, I see no anomaly between the gentleman that he mentioned being bestowed with an honour for his work with adoption agencies and children and the law as it stands.
The Government made it clear at the time of introducing the 2007 sexual orientation regulations that there could be no exemptions from the regulations for faith-based adoption agencies offering publicly funded services. This was debated at length. We recognise the valuable services that these agencies provide and the vital role that they play in improving outcomes for some of our most vulnerable children.
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The noble Lord, Lord Patten asked why, given that the Government were warned that agencies would close, they did not find a way through. We provided a transition period until 31 December 2008 to allow those agencies time to prepare for, and adjust to, the new requirements. We commissioned an independent review to assess the implications and we provided an additional £500,000 to support faith-based adoption agencies in England and Wales to help them to understand the implications of the new regulations.
We have listened to the viewpoints of all groups and carefully considered the views and needs of the sector. When the regulations were introduced in 2007, it was predicted that Catholic adoption agencies would close. I have heard many things around the House today but I believe that the predictions, in the main, were wrong. According to the latest independent assessment panel's reports, the regulations have not led to any significant loss of capacity in the sector. I noted the statistics about adoption agencies mentioned by various noble Lords but, according to the figures that I have, only one Catholic adoption agency closed and all others are operating within the law.
Lord Patten: There is obviously a huge gulf between us, which I regret. The obvious discrimination that is coming across against Catholics and other faith-based groups I regret even more. However, on a matter of fact, two Roman Catholic agencies have closed. The noble Lord, Lord Alton, and I have named them both: the Westminster Catholic Children's Society and the Catholic Children's Rescue Society of Salford-both gone. Unless the High Court helps Leeds, that agency will go as well. Maybe those who advise the Minster should look at those statistics again.
Baroness Royall of Blaisdon: My Lords, I accept what the noble Lord says and I will look into this again. However, there are still Catholic adoption agencies and they continue to provide an excellent service to those couples who wish to adopt through a faith-based agency. The right reverend Prelate the Bishop of Bradford said that there must be space for Catholic couples to choose to adopt from a Catholic adoption agency. I agree with that, as long as those agencies comply with the law.
The noble Lord, Lord Patten, asked why the rights of those seeking to adopt in the context of a Catholic ethos are thought less important than same-sex couples. This is not about creating a hierarchy of rights. The Equality Bill has to strike a fair balance between religious freedom and the rights of people who are lesbian, gay or bisexual. There is nothing to prevent Catholic agencies from treating heterosexual couples consistently with their beliefs. All that they are prevented from doing is treating people less favourably because of their sexual orientation.
The noble Lord raised the question of the debating time given to the existing regulations. That point was also mentioned by the noble and learned Baroness. The Equality Act (Sexual Orientation) Regulations 2007
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In the Ladele case, it was not that there was no registrar available but rather that the local authority in question had a dignity and respect policy that required all registrars to conduct both civil marriages and civil partnership ceremonies. The court decided that the application of the policy was legitimate and the means of achieving it proportionate. I apologise if earlier I misled the House when I referred to that case.
The noble Lord, Lord Low, suggested accepting the spirit of the amendment in the interests of tolerance. We would never allow a person to have a conscientious objection on the grounds of race or disability, so why is sexual orientation different? I believe that we are a tolerant Government and a tolerant Parliament and that the law as it stands is a tolerant law. I believe that the new paragraph proposed in the amendment tabled by the noble and learned Baroness, Lady Butler-Sloss, would allow discrimination to embed itself where it has no place and I do not believe that that would be right in a tolerant society. Therefore, I urge the noble and learned Baroness to withdraw her amendment.
6 pm
Baroness Butler-Sloss: My Lords, I thank noble Lords very much for their support-it seemed that I had the support of 95 per cent of the House for what I had to say. I strongly support gay rights-I have said so on numerous occasions-and I am a great supporter of Stonewall. However, I believe in tolerance. I was deeply shocked by what the noble Baroness, Lady Murphy, said. I do not think that she attributed homophobia to me-at least, I sincerely hope not-because, if she did, she was wrong. She certainly attributed it to the two amendments that I am putting forward. I am shocked that she should see them as deeply homophobic. I certainly do not see them that way and I do not think that other noble Lords do, either. I put forward two amendments in good faith and I am saddened and, I have to say, upset for that to be accused of being deeply homophobic.
It is quite true that nine out of the 12 Catholic agencies in this country continue to act as adoption agencies, but they are no longer connected with the Catholic Church. I have the names of every one of those agencies; they are no longer Catholic agencies. The absence of discrimination against one group creates discrimination against another group. The balance is not right. I heard what the noble Lord, Lord Low, had to say, with his customary common sense and wisdom, and I had hoped, because it was what I was going to ask them to do, that the Government would take account of what had been said. It seems clear that the Leader of the House is shutting the door. Consequently, I should reflect on what the position should be. I shall ask advice and I may bring back the two amendments at Third Reading. I give that warning to the Leader, but, for the moment, I beg leave to withdraw the amendment.
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Schedule 2 : Services and public functions: reasonable adjustments
Schedule 3 : Services and public functions: exceptions
22: Schedule 3, page 148, line 15, at end insert-
"(3) Sub-paragraph (4) applies to a person (A) who may, in a case that comes within the Marriage Act 1949 (other than the case mentioned in sub-paragraph (1)), solemnise marriages according to a form, rite or ceremony of a body of persons who meet for religious worship.
(4) A does not contravene section 29, so far as relating to gender reassignment discrimination, by refusing to solemnise, in accordance with a form, rite or ceremony as described in sub-paragraph (3), the marriage of a person (B) if A reasonably believes that B's gender has become the acquired gender under the Gender Recognition Act 2004."
Baroness Thornton: My Lords, in Committee, amendments were put forward by the right reverend Prelate the Bishop of Winchester and the noble Baroness, Lady Gould of Potternewton, regarding gender reassignment and marriage. These were accepted by the Government, as they made it clear that the Equality Bill would preserve the current position in discrimination law and would not interfere with the changes made to the Marriage Act 1949 by the Gender Recognition Act 2004 or the position regarding other faiths using registered buildings. The amendments now make up Part 6 of Schedule 3.
Paragraph 24 of Schedule 3 covers the majority of legally recognised religious marriages in England and Wales. It covers those who solemnise marriages according to the rites of the Church of England and the Church in Wales, and those persons who give consent to solemnisation in a registered building. However, paragraph 24 does not cover those who solemnise religious marriages under the Marriage Act 1949 but who are either members of a faith not required to marry in registered buildings or clergy or ministers of a faith with registered buildings but not the persons consenting to its use. By contrast, paragraph 25, relating to Scotland, covers all those persons solemnising legally recognised religious marriages.
We consider that those persons who solemnise religious marriages under the Marriage Act 1949 but who are not currently covered may also have personal religious concerns about conducting marriages of persons who have undergone gender reassignment. Under current discrimination law, they may refuse to solemnise marriages of such persons without the risk of a claim for unlawful discrimination.
It is only fair, therefore, that persons solemnising marriages from all faith groups are covered by Schedule 3. They should not be put in a position of having to choose between facing a claim for discrimination and their personal religious conviction, and they should be
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Again, this is a permissive amendment that does not place any obligation on those who solemnise religious marriages and it maintains the status quo. I beg to move.
Baroness Morris of Bolton: We understand from the letter of the Minister that the amendments are further drafting corrections and clarifications. We welcome the changes.
23: After Clause 77, insert the following new Clause-
"Equal pay audit following contravention by employer
(1) In the event that a court or employment tribunal finds that an employer has contravened the provisions of this Act relating to equal pay, the employer shall be required to undertake an audit, to be known as an equal pay audit, and to make the results of this audit available in the prescribed manner.
(2) In this section "prescribed" means prescribed in regulations made by the Secretary of State."
Baroness Morris of Bolton: My Lords, we have retabled our amendments from Committee because we feel that it is important to emphasise our concerns about the Government's proposals, which will not produce workable or effective solutions to the problem of the gender pay gap. We wish also to facilitate a debate on the metrics of the pay audit, which were unfortunately not available in Committee. We have therefore tabled amendments which would remove Clause 78 and insert our new provision applying a mandatory pay audit to any company found guilty at a tribunal. I shall listen with interest to the Liberal Democrats speaking to their amendments, but I am sure that they will not be too surprised if we disagree with them.
We are at one with the Government and most people in the wider world who wish to reduce the gender pay gap. This is a shared ambition. The difference is in the method and how we approach it. It is shameful in the 21st century that, as of 12 November 2009, the Office for National Statistics was showing that the mean pay gap between men's and women's average hourly wage for full-time work was still 12.2 per cent. All are in agreement that this situation must change.
We on these Benches feel, however, that the Government's proposals will not achieve this, but, more worryingly, will place onerous burdens on businesses at a time when many are already struggling to stay afloat. The difficulties of producing the relevant data and the resources that will be required to do it place an unfair burden on many employers. Moreover, it is inappropriate for the burden to be shouldered equally by good employers. Under the Government's proposals, fair employers will suffer just as much as unfair ones. This does not seem just.
Moreover, I am not sure that I understand the reasoning behind the Government's limiting the proposals to companies which employ more than 250 people, or, as we will hear proposed in the amendment tabled in
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That the EHRC took such an unaccountably long time to come up with the metrics underlines the fact that this is not as simple an audit as has been suggested. This surely illustrates to the Government that the burden will be greater than anticipated, and that the exercise will be more complicated to complete than might first have been imagined. The very process of creating the metrics also managed to alienate business groups which were involved in the process.
We heard that an agreement was almost reached when, suddenly, an amended draft of the report was sent out in January, with changes that forced business groups to reject it. The Government had therefore lost the consensual engagement of these crucial business organisations. After all, consensus is exactly what is needed in order to achieve the result we are all seeking. Can the Leader of the House tell us what has been done to ensure that business communities and employers are satisfied with the proposals? As they are representative of groups which will be carrying out the audits, it is presumably vital that their input is considered fully and that their agreement is found.
I would like to raise two major problems that we see with the metrics. First, they concentrate almost solely on pay. Obviously they are about equal pay, and while a focus on pay is important, do the Government also accept that a real culture change is required if any progress is to be made? For this reason, there may be other metrics which are important indicators, such as the percentage of women who return after maternity leave, or the amount of available flexible working time that a company provides.
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