This is not a personal matter. My complaint is not that it happens to be Mr Clegg in his present role but that there is a single Minister at all. A Bill of this nature and this importance should not be brought into force, bit by bit, at the request of a single Minister, however senior and distinguished. That is the essence of my complaint, so I propose that it should be brought into force by statutory instrument, subject to the approval of both Houses of Parliament. I hope your Lordships will agree, and I beg to move.

Lord Wallace of Tankerness: My Lords, my noble friend very succinctly makes his point about the commencement of the Bill. I fully accept that this has nothing to do with the personality of the Lord President. As I explained earlier, it happens that he has ministerial responsibility for constitutional and elections law.

There is absolutely nothing unusual in a Bill including a power for a Minister to commence provisions in an Act on a date and at a time to be specified by order and without that order being subject to any particular parliamentary procedure, negative or affirmative. Parliament will already have given its approval and the Act that is brought into force will be unamended; it will remain unchanged. Therefore, there is no reason for it to return to Parliament so that Parliament can confirm what it has already agreed.

6 pm

We have always been clear that we will commence legislation only when we are satisfied that each realm has taken the necessary steps to give effect to the changes. It is paramount that each realm should have the same rules of succession to the Crown, otherwise we risk bifurcation. We have agreed with the realms that the United Kingdom will be the first to legislate in order to provide a framework for the rest. We have always been clear that the agreed legislation, as introduced in Parliament, could be amended as the Bill progresses through its parliamentary stages.

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The Government have taken pains to ensure that each realm is content with the Bill. It is for this reason that the Bill contains flexibility as to the time of commencement in order to allow for simultaneous commencement across time zones and for all realms to take any necessary steps to give effect to the changes. However, I note the interest of the House in how the changes will be given effect to in different Commonwealth realms. I will say more about this in connection with Amendment 8. In the context of this amendment, I give an undertaking that the Government will lay a Statement before Parliament ahead of the commencement order to indicate how the realms have given effect to the Perth agreement. The aim is to maintain flexibility on the commencement order of the Bill that will have passed through both Houses and received Royal Assent. What is brought into force will be unamended. Therefore, what is proposed by the Bill is the proper way forward, and I invite my noble friend to withdraw his amendment.

Lord Trefgarne: My Lords, my noble and learned friend has gone further than he went in Committee, which is reasonable and acceptable. I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

Amendment 6

Moved by Lord James of Blackheath

6: Clause 5, page 2, line 31, at end insert—

“( ) An order made under subsection (2) shall not have authority in Scotland unless a draft has previously been approved by the Scottish Parliament.”

Lord James of Blackheath: My Lords, I came to Second Reading with one major concern in my mind. By Committee I had two and now I have three. Perhaps I should stop coming to these debates because my list will only grow. It leads me to wonder whether we are here with unreasonable haste on something that should not have great haste: namely, an important and challenging constitutional issue.

We all know that there will be a happy event around midsummer this year. I hope that we are not being overinfluenced by that, because it is not the gender of the unborn baby that should guide us at this moment but the continuity of the lady on the Throne, whom we should not seek to embarrass or put in any predicament that could be adverse to the continuity into the future of her glorious 60 years. It is possible that in time, having made a full recovery now, she will exceed her mother’s years—and may she reign for all of those years, too. In that case, what is the haste that we are looking at? We have had many instances in our history when the succession has fallen on an individual who has been born long before they came to the throne. Whatever happens in June or July this year, we do not need to make any commitment.

By the way, I can assure the House emphatically that the Duchess of Cambridge did not intend to use the “d” word and say that she was going to have a daughter. It is a very important point. In my earlier career I was the recipient of a great deal of training in

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lip-reading. It is one of the few things at which I can claim to be an expert, so I ask noble Lords not to mock me. I have watched the five-second clip of the incident many times. The Duchess never had her tongue out of the roof of her mouth. That enabled her to say the “d” very emphatically. From there she could have gone either to an “au” sound for “daughter”, a “u” for “duke”—but she would not use twee language and say, “I will give it to my duke”—or to an “o” sound to say that she would give it to her dog. She brought herself up on the spot because she realised how hurtful that would be to the kindly donor of the little dog. She had to change direction, and in order to avoid one brick she stubbed her toe on another. Unless the Deputy Prime Minister has plans to so overhaul our constitution that we have a dog on the throne, I cannot see that there is anything here about which we should be concerned. The more we look at constitutional issues, the more it appears that Mr Clegg may have misidentified them and that he is in fact Mr Baldrick Clegg, creator of some very cunning plans.

As I said, I have three major concerns. The first is the one that I began with: namely, that we are putting the Crown in an impossible position. We expect to receive a delegation of the prerogative of consent, which I do not believe the Crown is entitled to delegate to us. Secondly, because of those factors, we should look very closely at the issues of entrenchment and the laws that are being changed. We have heard that one Parliament cannot bind another, but this occurs frequently and in this case it is emphatically there. The third factor is that without any doubt the Bill, in particular Clause 4, virtually wipes out the Act of Settlement with Scotland and renders unnecessary a referendum. If this Bill were passed, Scotland would float off towards the Arctic and a very cold economic future. We should be very concerned not to create these appalling outcomes.

The matter of entrenchment is something that we need to think about very hard. When my noble friend Lord Marks and I had our dialogue in the debate at Second Reading, we were misleading each other and were both under a very big misapprehension. We were talking about alterations to the declaration of rights. In the half hour the Minister was kind enough to give me last week to discuss this, he and his team made the same mistake. The declaration of rights is not the issue here; it is the Bill of Rights. We are confusing them because of the interregnum. There was no monarch at the time. Therefore, there was no way that there could be a Bill leading to an Act, as happens at the moment. There was a declaration of the complaints of the citizens of this country, which was answered by a Bill that eventually became an Act. The Bill of Rights that was presented to William and Mary repeated word for word the declaration of rights. However, it ended at the word “accordingly”, whereupon Joe Browne, the Clerk of the Parliaments, signed his name. A space was left for William to sign, but in fact he signed a separate piece of vellum that was stitched into the Bill. This was perhaps the first instance in England of a political stitch-up.

The document sets out the suggested oaths that could be sworn by future monarchs. However, they are only suggestions and not part of the Bill. As such, my noble friend Lord Marks was wrong, and the Minister

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remains wrong, because the alterations to the oaths that occurred in the past do not constitute a precedent by which one can alter the Bill; one cannot. I will read two phrases that sum up how far the entrenchment goes. First, the two Houses of Parliament should,

“with royal concurrence make effectual provision for the settlement of the religion, laws and liberties of this Kingdom, so that the same for the future might not be in danger again of being subverted, to which the said Lords Spiritual and Temporal and Commons did agree, and proceed to act accordingly … to the same in all times to come”.

There is not much wiggle room there.

Towards the end, the document states that the provisions are,

“enacted and established by authority of this present Parliament, and shall stand, remain and be the law of this realm for ever”.

That is what we are asking to pass back to Her Majesty, with the request that she should forgo her coronation oath by altering something that was put into the laws of this land for ever and is, I submit, incapable of being changed. I return to my objection on Second Reading. We do not have the authority to accept delegation of the prerogative to this House, and any noble Lord who voted for it would be in breach of their oath on joining your Lordships’ House. I have raised this with many Members on these Benches. No one will give me an answer. They all say: “I’m sure it’s all right but I don’t know why”. I want to know why. I cannot vote for this and I suggest that no noble Lord should vote for it unless we are assured that we are not forcing Her Majesty into an impossible predicament by so doing.

The situation is very straightforward. We have a constitutional monarchy that is committed, first, by its commitment to the oaths of proclamation. There is a very different wording for England and for Scotland, whereby it is much tougher for Scotland. Then we have the coronation oaths, which bind the Crown to abide by what is in effect the entrenched law of the land, which we are now proposing significantly to change. The legal bounds of the Crown’s authority of governance are breached if the Crown’s constitutional limitation is exceeded. This defines the point at which a constitutionally limited monarchy has a duty arising from the commands of the law and constitution to refuse assent to a measure. If a measure is demonstrated to require removal of the constitutional law defining the duty to enforce, it is a breach of that duty, and constitutionally must be disallowed. We in this House can have no authority to pass a measure that collides headlong with the existing rules of our constitution. The limitations of the Crown would need to be breached to remove those duties, and this is an impossible and intolerable situation to place the Crown within.

In allowing the Bill, we would violate principles emanating from these enactments, which limit the Crown and the constraints imposed by the oath of office. At that moment, we would place the Crown in breach of its solemn and sworn duty, a duty undertaken as a reign-long obligation by Her Majesty. We cannot do that. Furthermore, we can hold no authority whatever to seek to do it.

I want to hear the answers to these points. I am very happy at what this Bill tries to achieve and would oppose none of it, but I am wholly opposed to the

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process by which we seek to do it. The advice that we have had on our legal position is undercooked, and I want to know a great deal more.

Lord Wallace of Tankerness: My Lords, I thank my noble friend for setting out his concerns. I was grateful to him for taking the time to elaborate on the rationale for his concerns at a meeting to which he referred, which we had last week. As I understand it, he has two particular concerns. The first relates to the coronation oath, which the sovereign is required to make to maintain the established Protestant religion. He is concerned that there might in this Bill be something inconsistent with the coronation oath that Her Majesty swore. I disagree and I make it clear that we are not amending the provisions of the Bill of Rights or the Act of Settlement, which say that the sovereign has to be a Protestant. That was debated under an earlier amendment. One could conceivably argue that as a result of the Bill more people might come out of the line of succession, because one of their parents was a Catholic and the parents intended to bring up the child as a Catholic, but that is simply not the same thing. Given that the prohibition on the sovereign being a Catholic remains, there is no conflict between the Bill and the coronation and accession declaration oaths. Therefore, I believe that my noble friend’s opening premise is wrong.

I also disagree with his assertion that the Bill is inconsistent with the oath that the sovereign has to swear with regard to maintaining Presbyterian church government in Scotland. I declare an interest as an elder of the Church of Scotland. As a young student during Her Majesty’s Silver Jubilee Year in 1977, I sat in the gallery of the General Assembly when Her Majesty opened it and reaffirmed her coronation oath with regard to the Church of Scotland. Again, nothing in this Bill in any way conflicts with the oath that Her Majesty took on her accession, which she has subsequently reaffirmed.

My noble friend also made reference to Scotland, and his amendments very much relate to the position of Scotland. He seemed to imply that the Bill would somehow lead to the break-up of the union. In our view there is nothing in this Bill that conflicts with requirements set out in the Act of Union. Given that my noble friend’s amendments focus on the territorial extent of the Bill, it would be helpful to consider that matter as well. The Crowns of England and Wales, Scotland and Northern Ireland are united by the various Acts of Union. Any changes that the United Kingdom Parliament makes to the laws of succession will apply automatically across our United Kingdom. The succession to the Crown is a reserved matter, as is clearly stated in the Scotland Act 1998, and the Scottish Parliament would have no competence to pass a resolution in relation to succession. At least, it would have no legal effect, as proposed in my noble friend’s amendment. However, the devolved Administrations were provided with drafts of the Bill ahead of introduction. Similarly, the Bill applies not only to the UK but to the Crown dependencies and overseas territories by necessary implication, following the precedent set by other Acts concerning the sovereign. Again, Crown dependencies and overseas territories were also consulted.

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I seek to reassure my noble friend, who I know is deeply concerned about these matters, that there is nothing inconsistent with the provisions in the Bill before your Lordships’ House and the coronation oaths sworn by Her Majesty. I hope I can allay his concerns and persuade him that this is a perfectly proper matter that we deal with in this Bill.

6.15 pm

Lord James of Blackheath: I thank the noble and learned Lord for that response. The first of my two amendments is, I agree, improper because it anticipates a resolution that the Scottish Government cannot pass. The second amendment was intended to provide an alternative and a way around the problem if it was still seen to be a problem. In that context, I wonder whether another meeting between myself and the noble and learned Lord might be helpful.

The other issue missing from all this at the moment is any reference to the regency, which was created first of all in 1936 but was not actually used. One wonders whether, if there is a problem, one could wait for an interregnum and then have a regency for long enough to pass a Bill. There would not then be a problem. I would like to discuss that with the noble and learned Lord at another time. Otherwise, I am happy at this moment to withdraw my amendment. The second amendment was intended only to provide an easier route than the first.

Amendment 6 withdrawn.

Amendment 7 not moved.

Amendment 8

Moved by Lord Trefgarne

8: Clause 5, leave out Clause 5 and insert the following new Clause—


This Act shall come into force when all the relevant Commonwealth Parliaments have given their assent to all of its provisions.”

Lord Trefgarne: My Lords, I am concerned—I think that there was reference to this in the letter that my noble and learned friend very kindly wrote to me the other day—about the possibility of different parts of the Bill coming into force at different times in different parts of the Commonwealth. For example, it seems possible for one nation to agree that the eldest child of the sovereign became its head of state and for another nation not to agree, or at least to delay agreeing—and therefore it might be the second child of the sovereign who became its head of state. That seems to be a confusion and complication that we would not wish to see. My amendment proposes that we should wait until all the nations that want to agree have agreed, so we avoid that difficulty. My amendment proposes that the Act will come into force when all the relevant Commonwealth Parliaments have given their consent to all its provisions. The word “relevant” relates, of course, to the fact that some Commonwealth nations do not have our Queen as their head of state. Therefore, their consent is irrelevant.

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I hope that my noble and learned friend will be persuaded as to the point that I have made. I beg to move.

Lord Wallace of Tankerness: My Lords, my noble friend makes an important point about the simultaneous implementation of these provisions in all the realms of which Her Majesty is Queen—and clearly for the right reason, as he gives it. It would not be helpful, nor would it be the policy intent of any of the realms that have agreed to this, that there should be divergence between different realms as to the head of state. Indeed, it is the intention that the effect will be given once all the realms have done what is necessary before the Bill is brought into force, as indicated in response to Amendment 5. I noted the interest that the House has taken as to how changes will be given effect in the different Commonwealth realms, and I have given an undertaking that the Government will lay a Statement before Parliament ahead of the commencement order to indicate how the realms have given effect to the Perth agreement.

It may help the House if I give an update on how the other realms are taking forward these changes. I have referred before to the preamble to the Statute of Westminster 1931. It states:

“And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom”.

This being part of a preamble and not being in the body of the Act, these words impose no legal obligations. However, the Government recognise that they carry considerable political weight and as such have undertaken to agree these changes with other realms’ Governments and to seek their consent to the legislation before introducing it into Parliament.

The New Zealand Government have co-ordinated this discussion, which culminated in all realms giving their written consent to the introduction of this Bill and their assurance that, based on the Bill as drafted, they were in a position to give the policy the same effect in their country. In doing so, some realms decided that legislation or parliamentary consent was required. Others have been clear that no further steps are necessary and that the changes will be brought about by the changes effected by the United Kingdom Government. In our view, it is in accord with the principle of the Statute of Westminster that it should be for each realm to decide what, if anything, is necessary or desirable to give effect to the agreement. Thus, although the preamble refers to the assent of the Parliaments of the dominions, we do not believe that it is for the United Kingdom to insist that parliamentary approval is obtained. I can confirm that in the case of some realms a referendum is necessary before changes to their constitution are made. However, we are not aware that any realm intends to amend its constitution, so the question of its undertaking a referendum on this issue does not at present arise.

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As regards the detail of each realm, the Pacific realms of Papua New Guinea, Tuvalu and the Solomon Islands are all content that because of the wording of their constitutions no changes to their laws will be required to implement the changes to the law of succession in their respective countries. We do not believe that they intend to consult their Parliaments further on this matter.

As regards Australia, on 7 December 2012, in a meeting of the Council of Australian Governments, the Prime Minister, state premiers and territory chief ministers reiterated the support of all Australian Governments for the changes to the rules of royal succession proposed by the United Kingdom. Australia has not yet reached agreement with all states and territories on the specific method of implementation in Australia but legislation will be required, probably at both Commonwealth and state levels. Indeed, Queensland has already introduced its own Succession to the Crown Bill.

The New Zealand Bill was introduced on 18 February and its provisions mirror those of the United Kingdom Bill, although it additionally amends, where necessary, New Zealand specific legislation: for example, the Imperial Laws Application Act 1988.

The Canadian Bill has now been introduced into the Canadian senate. The Canadian Government’s view is that the laws of succession are UK law and not Canadian law. The Canadian Bill therefore does not seek amendments to the rules of succession. Instead, the Bill states that Parliament has assented to the changes set out in the United Kingdom Bill. The Canadian Bill will come into force on a date set by an Order in Council.

Jamaica and Belize have stated that, based on the nature of their constitutions, no legislative change will be required to give the changes effect domestically. We do not believe that they intend to consult their Parliaments further on this matter. The relevant oaths under the constitutions of Jamaica and Belize make reference to:

“Her Majesty Queen Elizabeth II, Her Heirs and Successors, according to law”.

The constitutions do not contain any express provisions defining “Her Majesty” or setting out the rules of succession, but we understand that Jamaica and Belize take the view that the reference in the oath to the heirs and successors of Her Majesty is to the heirs and successors under UK law—or, in other words, that it is implicit in their constitutions that the question of succession to the Crown in right of Belize and Jamaica is resolved by the law of the United Kingdom.

We believe that it would be open to the other Caribbean realms to take a similar view, but it is, of course, for them to decide how best to give the changes effect. The United Kingdom and New Zealand are in ongoing discussions with each realm to support the work they are doing.

I thought it would be useful to put that on the record because I know that in earlier debates interest was shown in that matter. I reiterate that it is intended that these measures will come into effect at the same time when all the realms of which Her Majesty is head of state have concluded their appropriate arrangements. In responding to an earlier debate, I indicated that the

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Government would make a Statement to Parliament prior to introducing the commencement order, indicating what has happened in each realm. Indeed, the reason why there is flexibility in the commencement order is to achieve that very purpose. In light of those comments, I hope that my noble friend will feel able to withdraw his amendment.

Lord Lexden: Before my noble and learned friend sits down, has he any view as to the earliest possible point when the realms will have completed their work and the measure can be implemented?

Lord Wallace of Tankerness: No, my Lords, I do not, and I do not think that I would help the House if I tried to speculate.

Lord Trefgarne: My Lords, I am most grateful to my noble and learned friend. He has gone further than he did at the previous stage of the Bill and I am grateful to him for that. I am also grateful to him for his letter—five pages, no less—which he wrote to me since the previous stage, which has likewise been very helpful. He has said that he will lay a Statement before Parliament as each step is reached. If I may assume that that Statement will be a situation report and will perhaps describe the other nations where progress has not yet been achieved, I am content. On that basis, I am happy to withdraw my amendment.

Lord Wallace of Tankerness: Just so there is no ambiguity or misunderstanding, I think I said that before introducing the commencement order, we will make a Statement—it will not be a sort of running commentary—indicating what has been done in each realm to give effect to these changes.

Lord Trefgarne: My Lords, that is all right. I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

Schedule : Consequential amendments

Amendment 9 not moved.

Groceries Code Adjudicator Bill

Groceries Code Adjudicator Bill

Commons Amendments

6.27 pm

Relevant document: 16th Report from the Delegated Powers Committee.

Motion on Amendments 1 to 9

Moved by Lord De Mauley

That the House do agree with the Commons in their Amendments 1 to 9.

1: Clause 9, page 3, line 17, leave out subsection (1)

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2: Page 3, line 20, leave out from “to” to end of line 21 and insert “enforce through imposing financial penalties, that means imposing a penalty on the large retailer of an amount not exceeding the amount of the permitted maximum (see subsection (7)).”

3: Page 3, line 25, leave out “and”

4: Page 3, line 26, at end insert “; and

(d) how it must be paid.”

5: Page 3, line 34, at end insert—

“(7) The Secretary of State must make an order—

(a) specifying the amount of the permitted maximum, or

(b) specifying how that amount is to be determined.

(8) The Adjudicator must, within 6 months beginning with the day on which section 1 comes into force, make a recommendation as to the amount that should be specified in the first order under subsection (7) or the method for determining the amount.

(9) Before making a recommendation the Adjudicator must consult any person he or she thinks appropriate.

(10) The Secretary of State—

(a) must have regard to the Adjudicator’s recommendation when making the first order under subsection (7);

(b) may amend or replace an order under subsection (7) only if the Secretary of State has considered whether to do so as part of a review under section 15.

(11) The Adjudicator may not impose a financial penalty in respect of a breach of the Groceries Code that occurs before the first order under subsection (7) comes into force.”

6: Clause 12, page 4, line 20, leave out “and”

7: Page 4, line 22, at end insert “; and

(d) the criteria that the Adjudicator intends to adopt in deciding the amount of any financial penalty under section 9.”

8: Page 4, line 31, leave out subsection (4)

9: Page 4, line 39, leave out “and (c)” and insert “, (c) and (d)”

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley): My Lords, I beg to move that your Lordships do agree with another place in their Amendments 1 to 9. I shall speak also to Commons Amendments 11, 14, 16 and government Amendment 14A to Commons Amendment 14.

Commons Amendments 1 to 9, 11, 14 and 16 all together resolve what has been the most hotly debated topic of this Bill: whether the adjudicator should have the power to fine written on to the face of the Bill. As the Government have said throughout, and as the BIS Select Committee has also acknowledged, this is an issue that is finely balanced. However, at Second Reading in another place there was an overwhelming consensus that fines were necessary. This echoed sentiments expressed in your Lordships’ House. Accordingly, the Government have listened to the clearly expressed voice of Parliament and have tabled amendments to give the adjudicator the power to fine from the outset.

I would like to make clear that I expect fines to be used as a last resort, only for the most egregious or repeated offences. However, the very fact that the adjudicator has the power to impose them will send a strong message to retailers that compliance with the code is not optional. I am confident that these changes will mean that the adjudicator is able to ensure fair play in the food supply chain and keep the industry growing.

This will also benefit the farming industry. While many farmers are unlikely to be direct suppliers to retailers, and thus formally out of scope of the groceries supply code of practice, they will still benefit from increased trust and transparency in the supply chain.

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It is important to note that the adjudicator’s functions will not be a panacea for all the difficulties of the farming industry. She cannot set prices or address pay and conditions, but improved relationships between direct suppliers and retailers will have beneficial effects along the entire supply chain.

There have been suggestions that the power to impose fines from the outset would make Britain a less attractive place to do business. I would respond by saying that, other than retailers, almost all business groups, including the Federation of Small Businesses, the Food and Drink Federation and the National Farmers’ Union, support this amendment. I would further say that for retailers who comply with the code, an existing legal obligation, there will be absolutely no additional burden, as fines could only ever be imposed for a breach of the code. Retailers will also have a full right of appeal on the merits against the imposition of a fine or its amount.

6.30 pm

One further aspect of these amendments is that they set out the process for specifying the maximum penalty. This is clearly a critical part of the power and I consider that it is important that the basis of determination of the maximum penalty be set out in legislation. Equally however, simply to insert a maximum into the Bill without consultation with stakeholders would not be appropriate, and most people would agree that we would not wish to delay the Bill to allow that consultation to be carried out. It is our intention that the adjudicator will set out in her guidance the criteria that she intends to adopt in deciding the amount of any financial penalty.

The guidance will be published in draft form shortly after commencement for a 12-week consultation period. This will allow stakeholders to express their views regarding the maximum level of the fine and will allow the adjudicator to reflect those views in her final recommendation to the Secretary of State. It would be more appropriate for the adjudicator to take the lead in recommending the maximum penalty based on the evidence from the consultation, subject of course to the Secretary of State making the final decision and to parliamentary oversight.

It is therefore essential that consultation be carried out on this matter. Stakeholders, both retailers and suppliers, deserve to have an input into this process. Accordingly, the government Commons Amendments 6 to 9 to Clause 12 require the adjudicator, alongside the initial consultation on guidance, also to consult on what the maximum penalty should be or how the maximum penalty should be calculated and then, via Commons Amendment 5 to Clause 9, to make a recommendation to the Secretary of State. The Secretary of State will then be required to establish this maximum by order. This will ensure that fines can be imposed as soon as possible.

I should like to inform your Lordships that in Committee in another place the Minister, my honourable friend Jo Swinson, gave a personal commitment that, barring extreme matters outside the control of the Government, the order establishing the amount of the maximum fine or how that amount will be determined would be laid within three months of the adjudicator’s recommendation to the Secretary of State.

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I also draw your Lordships’ attention to the fact that Commons Amendment 11 to Clause 15 allows the Secretary of State to alter by order the maximum penalty or how the maximum penalty is to be calculated as a result of the findings of a triennial review. To clarify, the wording relating to the maximum penalty or how the maximum penalty is to be determined is used because we envisage that the Secretary of State could set a maximum either as a specific amount—X pounds, which would apply as the same fixed maximum for each retailer—or by reference to a formula, such as X% of a retailer’s groceries turnover, or the value of relevant supply agreements. This approach is set out in paragraph 92 of the Explanatory Notes.

Finally on this topic, I turn to Amendment 14A on the marshalled list, the new government amendment to Commons Amendment 14. Amendment 14A has been tabled in response to a recommendation from your Lordships’ Delegated Powers and Regulatory Reform Committee in their 16th report of this Session. It recommends that the order with which the Secretary of State will set the maximum level of the fine, or the basis upon which it should be determined, should be subject to an affirmative parliamentary resolution rather than through the negative procedure as currently stated in the Bill.

There are already safeguards on the use of the power; it can be exercised only after a recommendation from the adjudicator who must first consult about it. The Delegated Powers and Regulatory Reform Committee recognised that this would usefully serve to inform the Secretary of State’s exercise of the power. However, the committee has advised that because the upper limit of the penalty is not in the Bill the power to fix the limits should be subject to a significant level of parliamentary scrutiny. Amendment 14A will therefore ensure that the order will be subject to the affirmative resolution procedure, thereby ensuring that Parliament will be able to scrutinise and positively approve the order. I beg to move.

Viscount Eccles: My Lords, Members of the House who are present will not be surprised to hear that I regret these amendments made at the other end of the Corridor. I will be brief.

I am speaking as the only member of Her Majesty’s opposition. There is always cause for pausing to think about legislation per se, but when all three Front Benches agree, we can be pretty certain that they have not really thought the matter through—there is no need to and it goes on to automatic pilot. You can also be pretty certain that there will be one or two unintended consequences. My starting position would be, despite my noble friend’s clear and completely comprehensible explanation—the only sign of grace in it being the affirmative procedure—that there are already far too many circumstances in which state functionaries can raise administrative fines. In this case, the groceries code is working. There are 10 supermarkets in hot competition with each other, and they report on complaints and how they have been dealt with. So far, there has been no problem with the speed and accuracy with which these arguments have been settled.

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However, that is not why we have these fines. It is because it is said that what is going on now is only the tip of the iceberg due to a climate of fear, which means that many other things go on that do not get attended to, and we therefore need a third party to create a triangular relationship—the adjudicator, who now needs the power to fine. My problem with that is that I very much doubt whether the climate of fear, if it exists, will disappear. If it does, and fines are imposed, one has to question whether it is sensible to put in a state-funded and mediated procedure involving 10 highly competitive supermarkets and their suppliers. When we get into that argument, everyone says, “We understand. We are talking not about Nestlé or Kellogg but the small and medium-sized suppliers. We are also”—this is where we come to the heart of the matter—“talking about the dairy industry”. I fully accept that that industry has significant problems. This is not the time to analyse them but I hope that we would have the opportunity to discuss this issue in much greater depth in this House at an early date. I hope that my noble friend on the Front Bench will promote the suggestion that we discuss the dairy industry in some depth and detail. The supermarkets want to sell as much milk, cheese and other products containing milk as they can. That is their interest. It is not in their gift to solve the dairy industry’s problems. It is wrong for us, as a Parliament, to put it about to a certain extent that if you have a grocery code adjudicator it will be a cure-all for some of the undoubted problems that exist, not least in the dairy industry.

My view is that because the code works pretty well, the investigations that come outside the present practices under the code and arrive with the adjudicator will prove to be intractable or unnecessary. I am pleased that I am not looking for the adjudicator to be busy. It is a misapprehension to think that a lot of the things going on out there will give the adjudicator the opportunity for fruitful investigation and fining. I am pleased that the order that is to come is to be affirmative. I guess from what my noble friend said that it should be with us for debate in about nine months. I hope that we debate it seriously.

Finally, if investigations and fines were to become the practice, grocery prices would rise. That would surely be an unintended consequence.

Lord Myners: My Lords, I support the Bill and the amendments the Minister has presented today. However, I am left pondering that if we have a situation here where we are concerned about a customer abusing a supplier, should we also not be alert to the issue in banking where we have suppliers potentially abusing customers? Should there not be a similar mechanism in place in which customers of banks, and I think here particularly of small businesses, have the right to appeal to an independent adjudicator about the treatment they are receiving from the banks? It is right that we should be concerned about a situation of customer abuse but the potential for supplier abuse in the banking industry, which is even more concentrated than the supermarket industry, is clearly higher.

I know this goes beyond the Minister’s brief and I do not for one minute expect him to give a detailed reply, but I suggest to your Lordships’ House that if

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we are seized by the importance of this Bill and believe that it is the right and proper thing to do, most of the arguments on which we have drawn apply with even greater force to the banking industry.

Lord Knight of Weymouth: My Lords, my noble friend Lord Myners made a similar very interesting point at Second Reading. It was interesting then and it is interesting now, but it is not a point I am going to dwell on and he will understand that. I am very sorry to disappoint the noble Viscount, Lord Eccles, that as the lead for Her Majesty’s Opposition I am not opposing more on this Bill but the Government have found the right way of doing things. They have taken a policy that was developed by the previous Labour Government and have bought it forward in legislation. As the Bill has gone through Parliament, they have listened to voices, including from Her Majesty’s Opposition, pressing for the adjudicator to have teeth from day one with the right to fine. I am delighted that they have given concessions. Even before the introduction in the House of Lords, following the BIS Select Committee and pressure from my own party, they removed the restriction on third parties, such as the National Farmers Union, from submitting evidence. Then we had a concession from the Government on powers to fine. We had argued that right from the outset.

I am absolutely delighted and I pay tribute to the Minister, Jo Swinson, and her colleagues, including the Minister, for listening to the arguments made in both Houses. I also pay tribute to my colleagues Ian Murray and Huw Irranca-Davies in the other place for the work they did on this Bill and take this opportunity to thank the noble Baroness, Lady Wilcox, for listening to our arguments on accountability when we were debating this Bill in the Lords. She most graciously conceded the points so that there will now be an annual report before Parliament. A final concession with an amendment in the Marshalled List today will see a move from a negative to an affirmative procedure around the level of fines. That, too, is extremely welcome.

I am delighted with the Government’s approach. I would like to see that repeated in many other ways across legislation. We are looking forward to the Queen’s Speech. Perhaps in that we can look forward to the Government having listened to Labour policy and brought it forward in legislation, and then listening to the Labour Party and changing things as they go through. We have not got everything we wanted—we believe that the code needs to remain a live document. The noble Viscount, Lord Eccles, made a good point about the possible abuse of power in the supply chain by Nestlé, Kellogg and other intermediaries. We have concerns about that. Commercial pressure and bullying in the supply chain that can drive down food standards and health and safety remain a concern, even with the code and this adjudicator. Recent scandals around horse meat, pressures from the horticulture industry to abolish the Agricultural Wages Board and ease immigration rules to drive down the cost of wages to meet the demands of supermarkets are all evidence that this is an extremely competitive industry where competition can at times lead to abusive behaviour.

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On balance, we are very happy with this Bill. We support the amendments made in the other place and those before us this evening and we look forward to its speedy implementation.

6.45 pm

The Earl of Sandwich: Having played a very small part in the early stages of the Bill, I want to congratulate the Government on listening. I am not in agreement with the noble Viscount, Lord Eccles. He knows that. I have listened to many NGOs in the farming community and I think he underestimates the feeling out there. It is important that the adjudicator is able to hear from anyone now. It is important that they can initiate investigations based on their own assessment as to whether there has been a breach, and it is also important they have a full set of tools to be able to change retailers’ behaviour. Retailers can be fined and required to take out a newspaper advertisement saying they breached the code. The GCA can provide clarification on how to interpret the code and can recommend changes in its scope. That is roughly the gist of it. I concur with the noble Lord, Lord Knight, that the Commons amendments have been just what was wanted.

Lord De Mauley: My Lords, I am grateful to all noble Lords for their contributions, particularly the noble Earl, Lord Sandwich, and the noble Lord, Lord Knight, although I warn the noble Lord, Lord Knight, that he should manage his expectations for the future.

The issue of whether to give the adjudicator the power to impose fines from the outset has always been, as I have said, a finely balanced policy decision. The BIS Select Committee acknowledged this in its 2011 report. We continue to believe that the sanction of requiring a retailer to publish information—the so-called name and shame—will be a powerful one and will suffice in the great majority of breaches. However, the Government have listened carefully to the arguments made in your Lordships’ House, at Second Reading in another place and by third parties that the ability to fine from the outset would help to give the adjudicator more teeth.

Turning to the questions raised by noble Lords, my noble friend Lord Eccles effectively asked why we need an adjudicator at all. He may not have said it in those words but that was the gist of it. I accept that he feels very strongly about this and he has argued his point eloquently here, as he has at previous stages in the passage of the Bill. I hope he will accept that the weight of opinion in both Houses, as well as that of the Competition Commission and the BIS Select Committee, is strongly in favour of the establishment of an adjudicator.

We recognise that supermarkets are a vital part of our economy and that they do much good through increased employment, consumer choice and their own commitment to corporate social responsibility. We also recognise that the groceries sector is generally very competitive.

My noble friend talked a bit about the suggestion that there is a climate of fear. Currently, complaints must be made to the supermarket involved and, given the purported climate of fear to which he refers and which has been indentified among suppliers, this could indeed limit complaints. Very few suppliers would be

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willing to challenge a retailer on which they are likely to be highly financially dependent. An independent adjudicator to whom suppliers can complain confidentially is therefore essential to enforcing the code.

He asked about how it could help farmers. The adjudicator has a very tightly defined remit. She will enforce the Groceries Supply Code of Practice based strictly on the Competition Commission’s findings that retailers were transferring excessive risk to their direct suppliers. She will therefore not be able to set prices for produce. Similarly, issues arising between farmers and processors will be out of scope. She can only consider interactions between retailers and their direct suppliers. It is important to note that most farmers are not direct suppliers to retailers. Most farm produce tends to be sold to wholesalers, processors or other intermediaries. However, we are confident that by reducing the pressure on direct suppliers the adjudicator will allow them to make longer-term decisions and to increase innovation and investment, which will benefit the entire supply chain including farmers.

My noble friend was also naturally concerned about the prices paid by shoppers when they go to supermarkets, and he said that he would not wish to see the adjudicator’s work leading to increased costs for hard-pressed consumers. I reassure him that the retailers themselves, when giving evidence to the BIS Select Committee, said that the cost of compliance with the code had not led them to raise the prices paid by consumers. Ultimately, this is a pro-consumer measure. The Competition Commission’s 2008 report clearly identified that the supermarket practices that the adjudicator will confront could have a detrimental effect on consumers if left unchecked.

The noble Lord, Lord Myners, raised a question about the financial sector. It was an interesting point, if I may say so. I have a feeling that the financial ombudsman has an important role to play, and I am sure that the noble Lord will make his point again on a perhaps more relevant occasion.

The noble Lord, Lord Knight, essentially raised the issue of a living code. If the adjudicator considers that the code should be changed, then he or she is required by the Bill to make a recommendation to that effect to the Office of Fair Trading. It should be emphasised that this is a narrow duty on the part of the adjudicator. Under the existing provisions of the Enterprise Act, it would then be for the OFT to decide whether to advise the Competition Commission that a variation of the code was appropriate by reason of a change of circumstances. However, these provisions allow for the code to be adapted to changing circumstances in the groceries market to ensure that suppliers are treated fairly.

I hope that that addresses most of the issues raised and I recommend these amendments.

Motion agreed.

Motion on Amendment 10

Moved by Lord De Mauley

That the House do agree with the Commons in their Amendment 10.

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10: Clause 15, page 5, line 37, leave out subsection (5) and insert—

“(5) The review must also consider whether it would be desirable—

(a) for an order to be made under subsection (10A) (if no order under that subsection is in force), or

(b) for any order under that subsection to be revoked.”

Lord De Mauley: My Lords, I beg to move that your Lordships do agree with the Commons in their Amendments 10, 12 and 13. New subsection (10A) enables the Secretary to State to restrict the sources of information that the adjudicator can consider when deciding whether to carry out an investigation. This is a reserved power, and it can be exercised only after a triennial review has been completed.

This is a contingency measure and it was introduced in case the adjudicator becomes overwhelmed by a high volume of complaints of variable quality. She will have only a small office. This provision will enable her office to focus on enforcing the code effectively in the event that there is a flood of complaints. It also acts as a reminder to trade associations to use the adjudicator responsibly and to ensure that they ask the adjudicator to consider only issues that are likely to fall within the scope of the Groceries Supply Code of Practice. We do not think it is likely that trade associations will behave irresponsibly, but it provides an incentive for them to behave well and not to swamp her office.

As set out by my honourable friend the Minister for Employment Relations and Consumer Affairs, we think it is very unlikely that this power will ever be used, and we hope that it will never be necessary. The power could also be invoked only after a triennial review, as I said, and only if that review revealed that poor-quality or irrelevant complaints were affecting the adjudicator’s ability effectively to carry out her functions.

Concerns were none the less raised in the other place about the scope of this power. Government Amendments 10, 12 and 13 were therefore introduced to respond to those concerns by putting additional safeguards in place regarding when the power can be exercised.

Amendment 10 provides that the ability to restrict sources of information should be reversible. The amendment means that if circumstances change so that, for example, it is beneficial to the adjudicator to again allow wider input from trade associations and others, the Secretary of State can revisit his decision at each subsequent triennial review.

Amendment 12 provides that the power can be exercised only if it will make the adjudicator more effective. It cannot be used on a whim.

Amendment 13 makes the power subject to the affirmative rather than the negative procedure. This gives Parliament the opportunity to scrutinise and positively approve the exercise of the power.

I hope your Lordships will agree that these additional safeguards make it clear that sources of information will be restricted by the Secretary of State only if it is felt absolutely necessary to do so.

Motion agreed.

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Motion on Amendments 11 to 13

Moved by Lord De Mauley

That the House do agree with the Commons in their Amendments 11 to 13.

11: Clause 15, page 5, line 38, at end insert—

“( ) A review may consider whether it would be desirable to amend or replace the order for the time being in force under section 9(7).”

12: Clause 15, page 6, line 18, leave out lines 18 to 20 and insert—

“(10A) The Secretary of State may by order provide that this Act has effect as if the section set out in subsection (11) below were inserted after section 4.

(10B) An order under subsection (10A)—

(a) may be made only if, as a result of the findings of a review, the Secretary of State thinks that making the order would enable the Adjudicator to be more effective;

(b) may be revoked only if, as a result of the findings of a review, the Secretary of State thinks that revoking the order would not impair the Adjudicator’s effectiveness.

(11) This is the section referred to in subsection (10A)—”

13: Clause 23, page 10, line 21, after “section” insert “15(10A) or”

Motion agreed.

Motion on Amendment 14

Moved by Lord De Mauley

That the House do agree with the Commons in their Amendment 14.

14: Clause 23, page 10, line 21, leave out “9(1) or”

Amendment to the Motion

Moved by Lord De Mauley

14A: At end insert “and insert “section 9(7) or section””

Amendment to the Motion agreed.

Motion, as amended, agreed.

Motion on Amendment 15

Moved by Lord De Mauley

That the House do agree with the Commons in their Amendment 15.

15: Clause 26, page 11, line 3, leave out subsection (2)

Lord De Mauley: My Lords, Amendment 15 removes the privilege amendment passed in your Lordships’ House at Third Reading. I beg to move that the House do agree with the Commons in their Amendment 15.

Motion agreed.

Motion on Amendment 16

Moved by Lord De Mauley

That the House do agree with the Commons in their Amendment 16.

16: Schedule 3, page 15, line 36, leave out Schedule 3

Motion agreed.

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HIV/AIDS: Commonwealth Countries

Question for Short Debate

6.56 pm

Tabled By Lord Black of Brentwood

To ask Her Majesty’s Government what assessment they have made of the impact of discrimination against gay men and women in Commonwealth countries on global efforts to halt the spread of HIV/AIDS, and what steps they are taking to tackle such discrimination.

Lord Black of Brentwood: My Lords, it is a privilege to lead this debate. I am indebted for the support of the organisations that work tirelessly in this area, including the Human Dignity Trust, the HIV/AIDS Alliance, the Kaleidoscope Trust and the Terrence Higgins Trust.

It is a while since this House debated the issue of HIV/AIDS, so let us first remind ourselves of the scale of the problem. While in the developed world, where HIV is now a chronic condition, not a death sentence, we sometimes become blasé about the subject, in much of the world HIV and AIDS remains a catastrophe. In three decades, AIDS has claimed 30 million souls. Last year, 1.8 million died. More than 34 million people are living with HIV and many of them will perish. Although new infections have declined by 21% in the past decade, still 7,400 people are infected each day.

HIV and AIDS remains a global health catastrophe—the worst pandemic in modern history. The good news is the enormous advance in treatment. Today, there is no reason why anyone receiving it should live any shorter a life than someone without HIV. Crucially, we also have the tools radically to slow new infections through education and prevention measures. However, that ability to prevent the spread of HIV is being seriously compromised. The Global Commission on HIV and the Law concluded that,

“punitive laws, discriminatory and brutal policing and denial of access to justice for people with and at risk of acquiring HIV are fuelling the epidemic”.

At the heart of international efforts to deal with this pandemic is a crisis of human rights law, not medicine. There is now overwhelming evidence of the link between criminalisation of homosexuality and the rate of HIV infection.

Why does criminalisation matter? What is the link between bad law and this public health disaster? The UN Development Programme’s Global Commission on HIV concluded that criminalisation of homosexuality “both causes and boosts” the rate of HIV among men who have sex with men, or MSM. Evidence is incontrovertible. In Caribbean countries where homosexuality is criminalised, almost one in four MSM are infected with HIV. In the absence of such laws, the prevalence is one in 15—a shocking disparity. A report in The Lancet in 2012 reaffirmed:

“The odds of HIV infection in black MSM relative to general populations were nearly two times higher in African … countries that criminalise homosexual activity than for those living in countries where [it] is legal”.

Why is that?

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Criminalisation breeds stigma and marginalisation. Where this exists, homosexual behaviour is driven underground. Those at risk do not want to talk about their sexuality, receive information about prevention or, crucially, get tested, for to do so may mean prosecution and severe punishment. That has a terrible impact on homosexual behaviour. As The Lancet report I just mentioned concluded, where it is impossible for gay men to found lasting, loving relationships because the law prohibits it, they adopt non-monogamous, anonymous, unsafe sexual practices that fuel infection. There is nothing to warn them not to do so. It is after all almost impossible to mount HIV prevention campaigns where homosexuality is outlawed. A study in 2010 commissioned by the UNDP focusing on Asia and the Pacific found that such laws are regularly used by police to prohibit HIV prevention activities, confiscate condoms and censor educational material on HIV. Yet as studies in Cameroon, Senegal and Kenya have found, there is a strong correlation between the lack of these programmes and the likelihood of MSM having unprotected sex, simply out of ignorance of the basic facts.

Then there is the impact on the care of those infected. The threat of criminal sanction is an overwhelming disincentive to seeking access to HIV services—if, of course, they are available. In a recent case in Kenya where the penalty for,

“carnal knowledge of any person against the order of nature”,

is 21 years in prison, the Medical Research Institute had its HIV work disrupted after church leaders claimed that it was providing “counselling services to criminals”. There are similar horror stories from Uganda, Cameroon and Singapore, where health providers, who are key to preventing the spread of HIV, refuse to do so because of the threat of dreadful criminal sanctions.

The issue is not one that impacts just on gay men. HIV does not respect sexual orientation and statute in a neat and tidy manner. Because of these laws, many homosexuals inevitably maintain heterosexual relationships alongside a relationship with a man. The result is that innocent wives and children, often blissfully unaware of the fate that awaits them, also die as a result of criminalisation. So let us be very clear: criminalisation of homosexuality kills. It kills gay men. It kills women and children, and it kills them needlessly in their tens of thousands, with no end to this in sight. It begets a grotesque waste of human life on an unimaginable scale. Of course, criminalisation is an issue of fundamental human rights—one that I, as a gay man, feel profoundly. But it is also, overwhelmingly, an issue of public health. In the name of saving lives, it has to end.

To our shame, many Commonwealth countries stand in the dock. As we heard last October in a debate led by my noble friend Lord Lexden, their record on criminalising homosexual behaviour is shameful: 42 out of 54 Commonwealth countries criminalise same-sex relations. Punishments range from life in Sierra Leone to 20 years in prison, with flogging, in Malaysia. The record of the Commonwealth on HIV and AIDS is a pitch perfect underlining of my argument. While the Commonwealth represents 30% of the world’s population, it contains more than 60% of people living with HIV globally. That is a damning statistic. We will

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never be able to tackle the global AIDS epidemic until Commonwealth countries take action to dismantle cruel, degrading, outdated laws criminalising homosexuality.

That point was rightly recognised by the Commonwealth Eminent Persons Group, which in 2011 concluded that decriminalisation had been successful in reducing cases of HIV infection and recommended that steps be taken to procure repeal of these laws. But, in the interest of saving human lives, words need to be met with action. Let me suggest some. There are some things that this House can do. Our committees can play a vital role by providing oversight of Commonwealth institutions and scrutinising progress made by the UK in delivering its LGBT rights strategy. There are things that the Church of England, which has great sway in the Commonwealth, can do by condemning criminalisation specifically because of the way it squanders human life. I am delighted to see the right reverend Prelate here this evening.

There are challenges for the Government. I recognise that they have already done a great deal and I applaud the work of DfID and the leadership of the Prime Minister. I also recognise the enormous personal commitment of my noble friend Lady Northover, but there is more. The UK needs actively to support legal reform across the Commonwealth—an issue that should also be a high priority for CHOGM later this year. I ask my noble friend for an assurance that we will press to make this happen. I hope that the Government might also make decriminalisation and HIV prevention, which is crucial to it, a policy commitment for the FCO and DfID.

The Government should also press the Commonwealth Secretariat and the Commonwealth Foundation for action in this area. It is very worrying, given the sheer number of people at risk across the Commonwealth, that the secretariat has not included LGBT rights, legal reform or HIV in its new strategy. I would ask my noble friend to take this up with these institutions, which could play a vital role here. I also hope that the Government will look at introducing a specific funding mechanism for LGBT organisations working for legal or social reform within their own countries, or delivering services to LGBT people.

All these are important steps in beginning to tackle the tragedy—it is a tragedy—of criminalisation. It is an affront to human rights, an affront to human dignity and a legacy of 19th century colonialism that is killing tens of thousands of people in the 21st century. It is an extraordinary monument to man’s inhumanity to man. I shall listen with huge interest to our debate. We discuss many important issues in this House but it is not often that we get the chance to talk about a subject which, over time, could make the difference between life and death for many who are alive now but sick or at risk, and many yet to be born. This is one of those occasions and I am sure that we will rise to it.

7.07 pm

Baroness Gould of Potternewton: My Lords, I thank the noble Lord, Lord Black, for introducing such an important debate. As he says, it is the sort of issue that

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we do not discuss very often. I should declare an interest as co-chair of the Sexual Health Forum and a patron of the parliamentary group on transgender issues.

Part of the British Empire legacy to Commonwealth states 150 years ago was our then legal system, which we passed on and which regrettably included the old colonial draconian laws on homosexuality. These laws were not repealed when the former colonies won their independence, and they continued to ban gay sex between consenting adults. A consequence has been that the Commonwealth countries make up 30% of the world’s population but 60% of the level of HIV. It is interesting that the countries that were colonised by France under the Napoleonic code, which does not concern itself with homosexuality, do not have anti-gay laws or high levels of HIV. In the Commonwealth countries, however, laws are myriad, and with them come violence, murder, fear, stigma, rejection, impunity, the criminalisation of identity and persecutions. As the noble Lord, Lord Black, says, of the Commonwealth countries, 42 still criminalise same-sex relationships for men, women or both, with dire penalties. I find it unbelievable that the situation is getting no better. In fact, in some countries, it is getting worse.

If I may, I shall repeat some of the horror stories because the more often they are told the more people might listen. In Uganda, the anti-homosexuality Bill is repeatedly brought forward to impose the death penalty for men living with HIV. In Zambia, the maximum penalty has been increased from 10 years to 15 years in prison. Penalties in Trinidad and Tobago include 25 years in jail, and there is legislation to ban the entry into the country of known homosexuals. In Malaysia, the penalty is 20 years and flogging. In Malawi, there are prison terms of up to 14 years’ hard labour. And there is life imprisonment in Sierra Leone, Tanzania, Bangladesh, and Pakistan, which also imposes imprisonment for private same-sex intimacy.

These so-called civilised countries defend these criminal sanctions as an authentic expression of indigenous national culture and tradition: that they are breaches of public morality, public health issues and sexual normality. But those conditions do not apply to the 12 Commonwealth countries that currently do not criminalise same-sex acts. It is encouraging that some of those countries also have laws that protect LGBT people from hate crimes and prohibit discrimination against them. Botswana, for instance, amended its Employment Act in 2010 to prohibit discrimination on the grounds of sexual orientation. There is no question that legal penalties for homosexuality encourage public persecution. In Jamaica, gay men are so hideously and violently socially persecuted that many countries now accept gay asylum seekers from Jamaica into their own countries.

Again, in Uganda, tabloid newspapers have conducted witch hunts naming gay men and encouraging violence against them. In both those countries, the result was gay men being killed. All this shows that obstructive legislation contributes to the inability of HIV sufferers to claim their rights and increases the level of HIV stigma and discrimination. HIV sufferers face persecution and violence from employers, hospitals and community

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organisations. These draconian laws drive gay people underground, away from effective HIV prevention, treatment, care and support. As the noble Lord, Lord Black, said, it must follow that if you have to hide being gay, HIV-prevention agencies cannot give appropriate advice and may find it hard to reach you at all.

Additionally, where men or women have acquired HIV through gay sex, they are less willing to go for testing, so they pass the virus on. This situation is not helped by the continual harassment of HIV outreach workers by police who prohibit HIV-prevention activities on the grounds that they aid and abet criminal activities. Government agencies may be forbidden from working with illegal minorities. The situation, therefore, is that gay people face a double whammy: first, the risk of acquiring HIV, but at the same time being unable to ask for advice or support because they would have to admit to committing an illegal act.

Last year, the Ugandan authorities shut down a workshop bringing together advocates for the rights of LGBT people and providing information on how to avoid HIV transmission. In Cameroon, armed police broke up a planned three-day meeting on HIV/Aids and sexual minorities, organised by the Association for Adolescents Health against HIV/Aids. All that support and help therefore is not going to the people who need it.

Tackling homophobia can encourage gay men to be tested for HIV and other sexually transmitted diseases. There is no question that homophobia continues to be a major barrier to ending the global HIV and AIDS epidemic. The Commonwealth Heads of Government say that the fight against HIV is a high priority, adding:

“we are committed to accelerating action to implement the objectives outlined in the 2011 UN Political Declaration on HIV/AIDS“.

Nevertheless, only this week, when discussing the future Commonwealth Heads meeting, there was talk about the theme being democracy and human rights. If their goals on HIV/AIDS are really genuine, they have to tackle this situation. At the same time, the Commonwealth Secretariat—again, as the noble Lord, Lord Black, said—has not included LGBT rights, legal reform or HIV in its new strategy. The Commonwealth Foundation’s new strategy does not include any plans to support LGBT organisations or others working towards law reform.

Gay men and women are not the only people who suffer because of their sexuality. Illegality is also likely to be extended to transgender people and sex workers, who are similarly marginalised, hard to reach and often subject to legal sanctions. For instance, the high prevalence of HIV in Africa is driven by cultural, religious and political unwillingness to accept LGBT people, so the prejudice, harassment and isolation means lack of access to HIV prevention, including the availability of condoms.

This is a particular problem for transgender women because their identity as women is not recognised in many Commonwealth countries. Denial of their gender identity in law exacerbates the discrimination and marginalisation that transgender people experience. They often are the targets of violent hate crimes, are denied healthcare and education and struggle to find employment, so they are forced into sex work, all of which increases their HIV risk.

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Finally, I follow the same theme as the noble Lord, Lord Black. How should the UK exert its influence? What should we be doing? The UK should actively support legal reform that decriminalised consensual sex between adults of the same sex and prohibited discrimination on the basis of sexual orientation and gender identity. We should be calling for targets on law reform and equality in the post-2015 development framework as a means to ensuring access to health and other services for LGBT people and other excluded groups. The Government can play a vital role by providing a more critical oversight of the Commonwealth institutions and by scrutinising progress made in delivering on their LGBT rights strategy, thereby reducing the level and the spread of HIV and AIDS.

Assumptions that criminalising sexual minorities will prevent the spread of HIV and AIDS are ill-founded, based purely on ignorance and long-standing prejudice. The global evidence is clear that public health is best served by removing discrimination and prejudice against all LGBT persons, giving them—the people who need it most—access to HIV prevention and treatment. Removing stigma through the decriminalisation of private, adult, consensual, same-sex sexual relations is the first step in promoting health and tolerant societies.

7.16 pm

Baroness Brinton: My Lords, I start with an apology. I am afraid that the speed of the previous business meant that I arrived just after the beginning of the speech by my noble friend Lord Black of Brentwood. I realise that was a discourtesy to the House and I hope noble Lords will allow me to continue. I also thank my noble friend Lord Black for instigating this debate, which is very important. We have already heard from both him and the noble Baroness, Lady Gould, the important strategic reasons.

The continued spread of HIV and AIDS in the Commonwealth of Nations has had devastating effects on the lives of the ill and their families, and on the nation as a whole, which suffers the loss of a young population. Although many nations have been able to minimise transmission of the disease through education and public health initiatives, cultural barriers persist that make containment of the disease particularly challenging. We have all followed the progress of the Anti-Homosexuality Bill in Uganda, which, in criminalising homosexuality and all educational content regarding homosexual behaviour, makes it nearly impossible to educate the Ugandan LGBT community about safe sex practices.

As we have heard already, this problem is not isolated to a single nation, but is part of a widespread culture of homophobia that bars education and marginalises gay men and women around the world. Although it might be awkward to acknowledge, we recognise that the homophobic attitudes that exist in statute today in parts of the Commonwealth originated in whole or in part from a legacy of colonial British prejudices. Over the past half-century, we have taken steps to change our own culture to one of tolerance and support for all people, regardless of sexual orientation or gender identity. Today, we must take those lessons that we ourselves have learnt to encourage and support

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some of our Commonwealth family to make similar strides towards the equal protection of all people, regardless of sexual orientation or HIV status, and towards a culture that encourages education and public health awareness.

While the spread of HIV and AIDS in the LGBT community has devastated lives around the world, this evening I would like to focus on Zambia, which is an interesting case study in the ways in which HIV and AIDS prevention can be effective, but also the ways in which it can fail. Zambia is one of the nations hit hardest by the HIV and AIDS epidemics and currently suffers the sixth highest rate of HIV in the world. Today, more than one in seven adults live with HIV. As a result, average life expectancy has dropped to a mere 49 years. Although hit hard by this disease, the Zambians rallied to become one of the most willing African nations to confront the epidemics by the start of the millennium. In 2004, President Mwanawasa declared HIV and AIDS a national emergency, promising to provide antiretroviral drugs to 10,000 people by the end of the year. Not only did the President meet this goal, but he exceeded it, and promised to provide the drugs for an additional 10,000 people by the end of 2005. Former President Kaunda, who in the 1980s attempted to cover up the magnitude of the AIDS epidemic, is now one of Zambia’s foremost AIDS activists. In 2008, UNAIDS reported that the epidemic in the region was stabilising.

Political attitudes towards the virus are changing now that politicians in Zambia are willing to talk about it. In light of International Women’s Day, it is important to congratulate Zambia on the steps taken to protect women and children against the disease by educating women about healthy relationships and safe sex practices, and leading a national campaign to dispel the “virgin cure” myth. Condom use is increasing, and with it the negative stigma associated with condoms is slowly waning. Heterosexual couples are learning through many education initiatives about abstinence and marital fidelity as means of stopping the spread of AIDS and HIV.

However, despite these positive steps forward, the LGBT community in Zambia remains marginalised, unable to access education and abused. As the noble Baroness, Lady Gould, has already told your Lordships’ House, homosexuality is a crime in Zambia, punishable now by up to 15 years in prison. Cultural attitudes express widespread disapproval of homosexuality. In a 2008 survey by the Pew Research Center, the number of respondents who indicated that they felt homosexuality was morally wrong was the highest in any country in Africa, at 98%. American journalist Linda Villarosa described her experiences in Zambia on the Huffington Post blog last summer after travelling with the Global Fund to report on HIV and AIDS. While in Zambia, she wrote, she met Lundu, an openly gay man and an HIV and AIDS activist. When he told his family he was gay, they turned to medicine men to try to cure him. Lundu told Linda that:

“The first day, they cut my skin in 200 places and rubbed herbs and ash in the cuts. The second day they tied me to a tree in the bush and left me there overnight. On the third day, they put me in a shallow grave wrapped in a white shroud”.

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Despite the hellish experience that Lundu suffered at the hand of his own family, he recognises the cultural barriers and widely held beliefs that feed into homophobia and consequently contribute to the spread of HIV and AIDS. The criminalisation of homosexuality in Zambia makes it difficult for public health organisations to disseminate information about safe sex and almost impossible for homosexual Zambians to seek access to these materials and to support networks. Many people in Zambia, both heterosexual and homosexual, do not know their HIV status for fear of stigmatisation because of the virus.

The UK Government have come forward in the past and asked the Zambians to protect the LGBT community and legalise homosexuality, but we know that this was met with resistance. In 2011, we expressed our disapproval for these policies by channelling aid directly to the people rather than through the Government. However, the policies remain unchanged and, sadly, so does the state of the virus. Although Zambia continues to receive millions of pounds in international aid, the prevalence of the virus has not dropped significantly since it stabilised in 2008. If through this debate your Lordships’ House continues to take the view, which I hope our Government will continue to take, that one of our foremost priorities in the world is to stop the spread of HIV and AIDS, in Zambia in this instance, we must consider other means of helping to change the culture of homophobia in Zambia through channels other than purely by increasing or changing international funding. There is still a lot that we can do.

We can continue to support online resources, such as Rainka in Zambia and Behind the Mask in South Africa, which use blogs to disseminate information about sexuality and safe sex for homosexual couples in nations where the Governments are not willing to support this type of education. We can continue to engage in a dialogue with the nations most affected by the AIDS epidemic about the public health reasons to decriminalise homosexuality. We can set an example by continuing to stand for equal rights regardless of sexual orientation or gender identity. Perhaps most importantly, we can be the voice that connects health with respect for all people, promoting a new cultural attitude that will help nations like Zambia continue efforts to conquer HIV and AIDS.

7.25 pm

The Lord Bishop of Newcastle: My Lords, I am very grateful to the noble Lord, Lord Black, for his powerful, moving and, indeed, sometimes bleak speech, which spelt out so strongly and persuasively the link between the criminalisation of homosexuality and the rate of HIV infection and death from AIDS. This timely debate is taking place in the week when the charter has been agreed and signed up to by all the Commonwealth nations. It expresses that it is,

“implacably opposed to all forms of discrimination, whether rooted in gender, race, colour, creed, political belief or other grounds”.

I take “other grounds” to mean also on grounds of sexuality, although the charter does not spell that out, which suggests there is still a very great deal of work to be done.

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Noble Lords may remember that it was almost 50 years ago now, in 1967, that the then Archbishop of Canterbury, Michael Ramsey, spoke in this House to support the decriminalisation of homosexuality in this country. We sometimes underestimate how brave a stance that was from him at that time. By doing so, he made the distinction in British law between a moral and a criminal matter. One of the problems today is that no such distinction has been made in many parts of the Commonwealth and, as a result of criminalisation, people continue to suffer terrible abuse—sometimes death—and the scourge of HIV/AIDS continues unchecked. Indeed, as the noble Baroness, Lady Gould, said, in recent years in some countries there has been an increase in stigmatisation, discrimination and criminalisation, which of course threatens to undermine all the good work that has been done with HIV/AIDS.

It is very well known that on matters to do with homosexuality the churches in general, and the Anglican communion in particular, are deeply divided. However, there are not, and cannot be, any grounds for denying the equality before the law of every single human being, whether they are homosexual or heterosexual. Many of us in this country value and indeed treasure our links with particular dioceses around the Anglican communion. In my case, over the past dozen years or more, that has been with the diocese of Botswana. HIV/AIDS was a disaster for that country, although things are now improving significantly. The Botswana Government have been actively providing public health education and public healthcare and the HIV/AIDS rate is in decline. There has been a much more positive response in Botswana than in some other neighbouring African countries.

Few have spoken out of southern Africa as clearly as Archbishop Desmond Tutu, who said to a United Nations panel in 2010:

“All over the world, lesbian, gay, bisexual and transgender people are persecuted. They face violence, torture and criminal sanctions of how they live and who they love. We make them doubt that they too are children of God—and this must be nearly the ultimate blasphemy … Our lesbian and gay brothers and sisters across Africa … are living in fear. And they are living in hiding—away from care, away from the protection the State should offer to every citizen and away from health care, when all of us … need access to essential HIV services”.

The noble Lord, Lord Black, issued a challenge to me in his opening speech. He believes, he says, that the Church of England has got great sway within the Commonwealth. If only that were so. Much more importantly than that, he challenged me to condemn criminalisation specifically because of the way in which it endangers and squanders human life. I will say as clearly as I can that criminalisation is wrong. I know when I say that that I speak not just for myself but for other members of this Bench, and I want to say it as clearly as the right reverend Prelate the Bishop of Leicester did in a previous debate a few months ago. If criminalisation leads, as it evidently does, to gay people concealing their identity, that is wrong. If criminalisation leads to many living in fear, that is wrong. If criminalisation leads to the prospect of persecution, arrest, detention and death, that is wrong. If criminalisation means that LGBT people dare not turn to the state when facing

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violence and hate crimes, that is wrong. If criminalisation hinders the treatment of people with HIV/AIDS, that is wrong.

It is within the lifetime of most of us in this House that the law in this country was changed to decriminalise homosexual acts. We need to seek to bring change and a completely new climate in those many countries of the Commonwealth where same-sex relations are still criminal offences. I very much hope that this debate will assist and serve that cause. Let the last words again come from Africa and Desmond Tutu:

“Exclusion is never the way forward on our shared paths to freedom and justice”.

7.32 pm

Lord Lexden: My Lords, like my noble friend Lady Brinton, I must apologise for not being in the Chamber at the very start of this debate, having lingered outside for too long after the debate on the Succession to the Crown Bill, in which I was involved. After a friendship of some 27 years, I think my noble friend Lord Black will probably forgive me.

As my noble friend reminded us in his powerful speech, this House has debated HIV/AIDS from time to time, most recently on the initiative of our noble friend Lord Fowler, whose continuing interest and commitment took him recently to Uganda. It is a matter of great regret that he cannot be with us this evening. Last October I opened a debate, to which kind reference has already been made, on the criminalisation of homosexuality, which, shockingly, remains widespread in the developing world in general and the Commonwealth in particular, breaching fundamental human rights.

This debate brings those two grave issues together. They are by common consent among the most important challenges confronting the world today. My noble friend Lord Black has shown conclusively that the spread of HIV/AIDS and the retention of harsh criminal punishments for homosexual conduct are inextricably linked. As my noble friend reminded us, after a detailed inquiry the UN Development Programme’s Global Commission on HIV and the Law found that criminalisation of homosexuality “both causes and boosts” HIV among men who engage in sexual activity with other men.

As we have heard, the records of most Commonwealth countries—which in so many respects are our closest associates and most valuable friends—testify with particular bleakness to the malign link between criminalisation and HIV/AIDS. Sadly, the majority of Commonwealth countries defy international human rights obligations by treating homosexuals as criminals; as a result, those countries suffer disproportionately from the incidence of HIV. The Commonwealth contains some 30% of the world’s population; it also contains twice that figure—60%—of all people living with HIV across the globe.

John Wesley once said:

“No circumstances can make it necessary for a man to burst in sunder all the ties of humanity”.

The same goes, perhaps even more strongly, for societies, communities and countries. The heart bleeds at this spectacle of suffering and injustice in countries of the Commonwealth, of which my noble friend Lady Brinton

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has given such a harrowing example. How thankful we should be, therefore, for the sensitive yet determined work of the organisations that have come into existence to combat it: the Terrence Higgins Trust, Kaleidoscope, Stonewall, the Human Dignity Trust and the International HIV/AIDS Alliance prominent among them, all of them working in the name of our common humanity without regard to politics, religion or ideology. They are becoming increasingly well known for their work and that, too, is a cause for thankfulness. They deserve the fullest possible support from all those within the Commonwealth who want to overcome the sundering of the ties of humanity. This great cause must be among the highest priorities of the Commonwealth as a whole—I repeat, as a whole—so that ill intentioned people blind to the ties of humanity cannot decry and belittle it as some neo-colonial plan by Britain and a few others.

In this connection, it was extremely heartening to finds words of the highest wisdom in the report of the Commonwealth Eminent Persons Group two years ago, which recommended:

“Heads of Government should take steps to encourage the repeal of discriminatory laws that impede the effective response of Commonwealth countries to the HIV/AIDS epidemic, and commit to programmes of education that would help a process of repeal of such laws”.

How good it would have been if these fine sentiments had been fully reflected in the new Commonwealth charter, which was described last week by my noble friend Lord Wallace of Saltaire as,

“one of the most important outcomes from the Commonwealth modernisation process. The charter conveys clearly the values that the Commonwealth stands for”.—[

Official Report

, 7/3/13; col. 1674.]

As we have already heard in the extremely moving speech of the right reverend Prelate the Bishop of Newcastle, the charter—of which so much is being made —does not include any specific rejection of discrimination based on sexual orientation or gender identity, nor does it make reference to the decriminalisation of homosexuality. I understand that some officials of the Commonwealth Secretariat interpret the phrase “on other grounds” in the passage of the charter that covers the rejection of discrimination as a condemnation of anti-gay laws. If so, they should be encouraged by our own and other Governments to make this more explicit.

To that end, as my noble friend Lord Black requested, our Government should make decriminalisation a specific policy priority, with the Foreign and Commonwealth Office and the Department for International Development working together with equal resolution and tenacity to promote it. Operating in close association with other countries, our Government should also monitor closely the progress of central Commonwealth institutions in carrying forward agreed plans throughout this unique association of nations.

It is not enough simply to back the general interests of LGBT people throughout the world, as the Government now do; decriminalisation should be made an explicit goal of government policy for the sake of humanity as a whole, and in particular for the thousands of young people—teenagers even—who at the moment

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face great suffering and then death as a result of HIV/AIDS. I ask, too, that the Government review their policy on asylum to provide full and equal protection to those throughout the Commonwealth on whom inhumane laws bear so heavily, destroying their hopes and ambitions in their own countries. In addition, many have asked the Foreign and Commonwealth Office to update its dossier of information and advice, the “toolkit” about promoting the human rights of LGBT people, which I understand has remained unchanged since the previous general election.

Sixty-five years ago, the newly formed United Nations issued its Universal Declaration of Human Rights. Its first article states:

“All human beings are born free and equal in dignity and rights”.

For the good of all its peoples, the Commonwealth today should pledge itself to bring those of LGBT identity fully within the scope of that great promise to mankind made to straight and gay alike.

7.40 pm

Lord Watson of Invergowrie: My Lords, I am grateful to have the opportunity of speaking in the gap, and I apologise to the House, to the Lord Speaker and to the noble Lord, Lord Black, for missing the beginning of the debate due to its unexpectedly early start.

Section II of the Charter of the Commonwealth, signed three months ago, states:

“We are implacably opposed to all forms of discrimination, whether rooted in gender, race, colour, creed, political belief or other grounds”.

I cannot add anything to what the noble Lord, Lord Lexden, has just said in describing how empty those words, “other words”, are.

It is important to note that the Commonwealth Heads of Government adopted the recommendations of the Eminent Persons Group on repealing of laws in 2012, indicating that member Governments should identify which, if any, laws are considered discriminatory and what steps should be taken to address them.

None the less, the Commonwealth Secretariat has not included, as other noble Lords have said, LGBT rights, legal reform or HIV in its new strategy, and the Commonwealth Foundation’s new strategy includes no plans to support LGBT organisations or others working towards law reform. The secretariat should offer technical support to members to revise and amend their legislation, and the foundation should support civil society organisations working to promote LGBT rights. To address these gaps, I hope that the UK Government will continue actively to promote LGBT rights within the Commonwealth, particularly at the upcoming Commonwealth Heads of Government Meeting—if they attend; it is suggested that they may not—and in the work of the Commonwealth Secretariat and Foundation.

It is important that deeds match the words. LGBT people throughout the Commonwealth—indeed, wider, but the Commonwealth contains such a large proportion of those suffering from HIV and AIDS—deserve to see stigma removed through the decriminalisation of private, adult, consensual and same-sex sexual relations. It seems to me self-evident that, if that were done,

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it would be so much easier to treat the many people who are afraid to come forward and seek medical assistance with HIV and AIDS. I hope that that would be seen as a first step towards the tolerant and respectful societies that the Commonwealth should promote.

7.43 pm

Lord Collins of Highbury: My Lords, I, too, thank the noble Lord, Lord Black, for initiating this debate. The level of cross-party support that has been shown in the debate makes me incredibly proud of this House and of our country. During the past 20 years the situation for lesbian, gay and bisexual people in Britain has changed significantly. I am also proud that much of that progress was made under the previous Government. That is not to say that we should be complacent about the problems that remain, in particular the level of homophobia in our schools.

In the same period, remarkable efforts have been made in combating the HIV and AIDS epidemic. No longer a death sentence, HIV is now a long-term chronic condition. Britain can rightly claim to be a beacon to the world of equality for gay people and in the forefront of the fight against HIV and AIDS. However, domestic progress is not enough. If we are serious in our belief in equality we should speak up for those beyond our borders. This country has led and should continue to lead the EU and the wider international community in ensuring that the rights of LGBTI people are recognised and protected. Challenging homophobia, promoting equality and pressing other Governments to introduce measures to ensure equality for LGBTI people should be—as the noble Lord, Lord Lexden, said—a priority for the Foreign and Commonwealth Office.

Sadly, as we have heard in all the examples cited in the debate, progress in our country is not reflected in many parts of the world. Same-sex sexual conduct between consenting adults continues to be criminalised in more than 80 jurisdictions in the world, and 42 of the 54 countries of the Commonwealth of Nations criminalise same-sex relations for men, women or both. A lot of these laws, as we have heard, are a hangover from British colonial rule. While they remain on the statute book, they have a continuing impact of fear, stigma, rejection, violence and, far too often, murder.

However, this systematic persecution and criminalisation of identity can also decimate efforts to halt the spread of HIV. It often results in gay people not being able to access the healthcare, education and employment that they need, preventing access to HIV testing and treatment. A global online survey of 5,000 men who have sex with men found that only 36% were able easily to access treatment and that less than a third had easy access to HIV education materials.

As we have heard, men who have sex with men have a significantly heightened risk of HIV infection. They are 19 times more likely to be infected with HIV than other adult men. Criminalisation of homosexual activities both causes and boosts those numbers. As we heard from the noble Lord, Lord Black, UNAIDS reports that in the Caribbean countries where homosexuality is criminalised, almost one in four men who have sex with men are infected with HIV. In the absence of such

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criminal laws, the prevalence is only 1 in 15 among men who have sex with men. As my noble friend Lady Gould said, Commonwealth countries comprise more than 60% of people living with HIV globally, despite representing about 30% of the world’s population. As we have heard, a recent meeting of the Commonwealth Foreign Affairs Ministers adopted a recommendation proposed by the Eminent Persons Group within the Commonwealth to tackle laws that undermine effective responses to HIV. As the right reverend Prelate said, the signing of the new Commonwealth charter is great news, too, as it underpins the commitment of the Commonwealth to human rights, gender equality and democracy.

However, whether the vague terms of the charter against discrimination based on “other grounds” really include sexual orientation and gender identity, drug use, sex work or HIV status presents a real test for the Commonwealth. It is therefore imperative that the commitment to repeal all discriminatory legislation which hampers the HIV response is honoured in the Commonwealth.

Today’s debate presents a real opportunity for the UK Government to underpin the steady support that they have given to reform and modernisation of the Commonwealth and to ensure that the Commonwealth Secretariat takes a proactive and supportive role in promoting the reform of bad laws across the Commonwealth, starting with those that still criminalise gay men.

As both the noble Lord, Lord Black, and my noble friend Lady Gould stated, the global evidence is clear that public health is best served by removing discrimination and prejudice against LGBTI persons, ensuring that the widest possible information regarding safe sex practices, health services and HIV prevention and treatment measures is accessible to the people who need it most.

There are some Commonwealth countries—for example, India and Pakistan—where, if it were not for the Global Fund to Fight AIDS, Tuberculosis and Malaria, the response to tackle HIV among men who have sex with men would be inadequate. Will DfID stick to the commitment made by the former Secretary of State for International Development substantially to increase the amount of resources given to the fund to ensure that those essential programmes are able to continue? Will the Minister outline how the UK Government will work with other leading countries ahead of the G8 this summer, to harness as much financial support for the fund as possible?

I welcome the way—which the noble Lord, Lord Black, referred to—that the Government are now working closely with organisations such as the Human Dignity Trust, Stonewall and the Kaleidoscope Trust on how we oppose human rights abuses of gay people worldwide. Real progress on gay equality will ultimately come from grass-roots movements, but we need to help create the conditions where those local gay rights movements can emerge. May I ask the Minister what direct assistance the Government will provide, either financially or politically, to support the development

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of lesbian, gay and bisexual movements worldwide, in particular in the Commonwealth countries that we have been talking about?

Finally, we cannot pretend that this does not affect us here. Gay people around the world look to Britain to offer them refuge from this discrimination. I ask the Minister if the Government will ensure that, through the UK Borders Agency, lesbian and gay people are provided with a real safe haven when they flee from persecution? Is it also not time that the existence of these laws should be sufficient to establish persecution?

7.51 pm

Baroness Northover: My Lords, I, too, thank my noble friend Lord Black for introducing so effectively this important debate on the stigma and discrimination facing gay men and women in Commonwealth countries, and the additional stigma of HIV/AIDS. My noble friend Lord Black makes clear that the criminalisation of homosexuality in 42 Commonwealth countries can indeed lead to death, possibly not only of the person in question but of partners and children. We are reminded, both by him and the noble Baroness, Lady Gould, and others that the laws that criminalise are a colonial legacy. We heard a powerful account from my noble friend Lady Brinton about the situation in Zambia, where homosexuality is criminalised and where families and communities take severe measures to “cure” homosexuals of their apparent illness.

Homosexuality is criminalised and homosexuals suffer terrible discrimination. Those with HIV also suffer discrimination. As my noble friend Lord Lexden said, we have here two grave issues—and they can be literally grave. It is appalling that HIV-related stigma and discrimination in the family, community and workplace is still so widespread around the world and in the Commonwealth. Unless stigma and discrimination are addressed, as the noble Baroness, Lady Gould, and others said, we will not meet our global commitment to halt and reverse the spread of HIV. The noble Lord, Lord Collins, outlined the particular risk in the Caribbean and elsewhere. Our response cannot neglect these populations who are most marginalised and today I hope to highlight areas where the UK Government will do more.

Legal barriers create a climate of fear that prevents people accessing the prevention, treatment and care they need. In many countries, including many Commonwealth countries, rather than providing protection, as we have heard, the law—and the law of the street—dehumanises sex workers, men who have sex with men, people who use drugs, transgender people, prisoners and migrants. This drives these key populations underground and hinders their access to information and services, which in turn promotes risky behaviour that makes them even more vulnerable to HIV infection and fuels the epidemic further.

In defiance of international human rights standards, 78 countries, half of them in the Commonwealth, make same-sex sexual activity a criminal offence, as we have heard. When we have specific concerns about a Government's failure to protect their citizens’ rights—for example, through the persecution of lesbian, gay, bisexual

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and transgender people—we raise these directly at the highest levels of the Government concerned. My noble friend Lord Black asked whether the UK Government will make decriminalisation a stated policy commitment for the FCO and DfID. The UK’s LGBT action plan includes an international commitment to advocate changing discriminatory practices and laws that criminalise homosexuality and same-sex behaviour, and to work with international institutions to oppose the introduction of new anti-homosexual legislation. We work with our embassies and high commissions and through international organisations, including the UN, the Council of Europe and the Commonwealth, to promote tolerance and non-discrimination and to address discriminatory laws, in particular those that criminalise homosexuality.

We see the Commonwealth and its networks as a potentially valuable partner in protecting and promoting human rights globally. However, the rights of homosexual men and women remain a very difficult and controversial issue in the Commonwealth. Like the right reverend Prelate the Bishop of Newcastle and others, I am delighted with the positive outcomes from the Commonwealth Foreign Affairs Ministers’ meeting in New York last September, including agreement on the outstanding recommendations of the Eminent Persons Group, now reflected in the Commonwealth charter signed by Her Majesty the Queen on Monday on Commonwealth Day. This sets out the Commonwealth’s core values and aspirations, including that discriminatory laws that impede access to HIV treatment should be addressed. Protecting human rights is a core value of this unique organisation and endorsement of the charter reiterates its commitment to opposing all forms of discrimination on any grounds.

I will read certain elements of the Commonwealth charter. Various noble Lords have referred to this and quoted from it, but it is worth reading again, for the reasons that my noble friend Lord Lexden gave. In the section on human rights, it states:

“We are committed to equality and respect for the protection and promotion of civil, political, economic, social and cultural rights, including the right to development, for all without discrimination on any grounds as the foundations of peaceful, just and stable societies. We note that these rights are universal, indivisible, interdependent and interrelated and cannot be implemented selectively … We are implacably opposed to all forms of discrimination, whether rooted in gender, race, colour, creed, political belief or other grounds”.

If noble Lords read on, they will see under “Tolerance, respect and understanding” the emphasis on,

“the need to promote tolerance, respect, understanding, moderation”;

under “Separation of powers”,

“the promotion and protection of fundamental human rights”;

and under “Access to health”,

“emphasise the importance of promoting health and well-being in combating communicable and non-communicable diseases”.

It is worth emphasising those, because I urge noble Lords to take heart from these words. They are the words that citizens can use to hold their Governments to account; and for countries to hold other countries to account. As my noble friend Lord Lexden will know, international human rights may seem to make slow progress historically, but it is often through these statements that gradually things move forward.

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My noble friend Lord Black asked why the Commonwealth Secretariat has not included LGBT rights, legal reform or HIV in its new strategy. The draft Commonwealth Secretariat’s draft strategic plan is quite high-level and does not go into much detail about proposed activities. It foresees a role in health, human rights and justice, which are all relevant here. We will continue to work with the secretariat and the foundation to see what more they could do in this important area. To address a question from the noble Lord, Lord Watson, we in the UK do not ourselves set the agenda for CHOGM, but we will continue to raise these issues in Commonwealth fora. It is extremely important that countries have signed up to the language that I have just cited.

I hardly need to draw noble Lords’ attention to the fact that policies, programmes and resources for HIV for key populations are grossly inadequate, despite the growing infection rates in the groups that we have talked about. For example, in 2009, only 18% of countries had established HIV prevention goals for reaching men who have sex with men.

That is why, in the Government’s position paper on HIV in the developing world, Towards Zero Infections, published in May 2011, we committed to build on our track record as a voice for a public health approach—as emphasised by the noble Lord, Lord Collins, and the noble Baroness, Lady Gould—to the key populations affected by HIV that respects human rights and addresses stigma and discrimination. The world must work much harder to empower those groups whose life circumstances place them at increased risk of HIV.

I could draw on many examples to demonstrate DfID’s support, which echoes the approach that we have taken in the Department of Health within the United Kingdom. I shall mention three. The Global Network of People Living with HIV has been conducting policy research in South Africa on the criminalisation of LGBT. The Global Forum for Men who Have Sex with Men is engaging in international policy dialogue to promote laws, regulations and policies that improve HIV prevention programmes for men who have sex with men. I hope that my noble friend Lord Black and others will be pleased that, last July, my right honourable friend the Minister of State for International Development, Alan Duncan, announced new resources for the Robert Carr fund to support global and regional networks to improve HIV responses reaching key populations, and this new funding is being disbursed.

My noble friend Lord Black asked whether the UK Government will consider introducing a specific funding mechanism for LGBT organisations working for legal or social reform in those countries. The UK funds a number of programmes in that area. For example,

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21% of the networks that the Robert Carr fund, to which I just referred, is supporting involve work for legal or social reform in those countries, so that is being addressed. My noble friend Lady Brinton made the point that there are new ways of promoting equality, such as through social media. She is surely right about that; there are a number of ways to do that.

My noble friend Lord Lexden asked about the FCO rights toolkit. We are very pleased that NGOs feel that it is a world reference and that the United States has used it as a basis for developing its own toolkit, but we take his point that it is now somewhat dated. We plan to update it this year and will be happy to receive suggestions from anyone on how to strengthen it further.

The noble Lord, Lord Collins, asked about support for the global fund. The United Kingdom remains a strong and reliable supporter of the global fund. I am writing to my noble friend Lord Fowler with an update on the situation because, as the noble Lord will know, the global fund went through something of a difficult time, but the United Kingdom is on track to meet our £1 billion commitment to the fund by 2015. I am happy to copy the noble Lord into my letter to my noble friend Lord Fowler. We are working with others to ensure that there is successful replenishment.

It is clearly critical in all our support for local civil society organisations to empower those most at risk from HIV, so that they understand and can advocate for their rights, and to challenge HIV-related discrimination and criminalisation. Without grass-roots support to tackle legal barriers that hamper the HIV response, and without the ability to hold Governments to account, change will not be sustained. People living with or directly affected by HIV understand their needs better than anyone. Involving those communities is not just their right; it is essential to an effective response to the epidemic that their voices are heard in policy, decision-making and budgeting processes.

This has been a very important debate linking the terrible discrimination against homosexuals in many Commonwealth countries with the terrible discrimination against those who suffer HIV/AIDS. As the noble Lord, Lord Collins, the noble Baroness, Lady Gould, and others said, public health is assisted by promoting the rights of homosexuals, but it is right in itself, as others have said.

I assure noble Lords that we recognise those challenges and how important it is to support the rights of all, especially those who are the most vulnerable around the world.

House adjourned at 8.06 pm.