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House of Lords

Wednesday, 19 June 2013.

3 pm

Prayers—read by the Lord Bishop of Liverpool.

Alternative Business Structures


3.06 pm

Asked by Lord Hodgson of Astley Abbotts

To ask Her Majesty’s Government whether they propose to take action to prevent the re-emergence of the payment of referral fees through the use of alternative business structures.

The Minister of State, Ministry of Justice (Lord McNally): My Lords, alternative business structures allow for increased competition and the provision of more cutting-edge services, helping to lower costs while maintaining high standards. However, they are required to comply with the rules of their licensing authority and the law in respect of the ban on referral fees.

Lord Hodgson of Astley Abbotts: My Lords, I am grateful to my noble friend for that Answer. In doing so, I congratulate the Government on the progress made in banning referral fees, which has led to a 5% reduction in motor insurance costs with a planned reduction of as much as 15%—an achievement in no way to be sniffed at. Is the Minister aware of the extent of the current challenge to this new plan of the Government, which may undermine all the good work so far? For example, is he aware that Tesco, through its insurance company Fortis, has set up a new joint venture with a company called New Law, a personal injury claims specialist based in Cardiff? Will my noble friend accept that it is not doing this for its health? Will he have a word with the Legal Services Board and the Solicitors Regulation Authority, the body that authorises new firms, to see what their view is of new firms being established, apparently with the sole purpose of frustrating the will of Parliament?

Lord McNally: My Lords, if they are established with the sole purpose of frustrating the will of Parliament, they will break the law. I will certainly take up my noble friend’s suggestion and talk to the Legal Services Board and the Solicitors Regulation Authority. We have had experience before of putting a law in place and some clever person trying to get around it, but we will take a close look and if they are trying to get around it, we will stop it.

Baroness Deech: Does the Minister agree that referral fees are a bad thing in all areas of the law, not just personal injury? They mean that professionals buy in services that they would not otherwise have and the consumer is deprived of choice. Will the Minister lend his support to the regulators, who are trying hard to maintain a broad ban on referral fees? I declare an interest as a regulator of the Bar.

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Lord McNally: My Lords, referral fees are viewed with a certain suspicion, particularly when, as in the case of motor insurance, they were rising to about £800 a pop. That obviously fed into the cost of the insurance. After the first look, it was decided that the greatest abuse took place in motor insurance, and so we concentrated on that area. However, we will consult the regulators and consumer groups to see whether our experience of the ban should be extended to other areas.

Lord Marks of Henley-on-Thames: My Lords, the Solicitors Regulation Authority has approved licences for a number of alternative business structures, where claims management companies and even legal expenses insurers have joined forces with solicitors’ firms. In this way, solicitors effectively get personal injury cases in return for a commercial benefit—precisely what LASPO sought to avoid. Will the Minister make it clear to the SRA and the profession that if ABSs clearly undermine the referral fee ban, further legislation is an option?

Lord McNally: My Lords, more than that, LASPO already allows us to extend the powers, if necessary. We therefore want to see the evidence that is emerging. If these groupings of separate facilities and companies seem to be using means to bypass the ban on referral fees, we will revisit our powers under LASPO. I understand the concern of the House on this matter.

Lord Beecham: My Lords, is the Minister aware that a solicitor whose practice is a major participant in referral schemes has recently been reported as saying that if a fee is paid for indirect referrals, whereby the client is merely given the name of the solicitor but has not received the name from the referring organisation, it would be outside the scope of the scheme? Is that a correct view?

Lord McNally: I do not think so. However, a lot of examples have sensibly been raised in the House today, some of them hearsay and some from direct experience, which suggest that what we intended to do in LASPO may not exactly be hitting the target, or that, as a result of organisational devices used by companies, the target has been moved. I can tell the House that we will talk to the regulators and look at some of these examples. If necessary, we will look at the powers that we were given under LASPO to make sure that we do what the House intended, which was to stop the practice of referral fees, particularly in the area of motor insurance.

Lord Faulks: My Lords, is the Minister regularly invited, as I am, to commit fraud, by which I mean that telephone calls are made by companies inviting one to sue for accidents that did not occur? Do the Government have any plans to deal with this, and are they aware that this is a frequent problem?

Lord McNally: I have not had direct experience of that particular problem, but within my family I have had direct experience of just how casually the law is treated in this area and how that has had a direct impact on the cost of motor insurance. Parliament tried to address part of this problem through the ban

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on referral fees, but there are many murky practices around this area and the House is right to raise these issues. I will return to the MoJ with the clear message ringing in my ears that we should poke a little further into these murky businesses.

Children: Adult Material Online


3.14 pm

Asked by Baroness Benjamin

To ask Her Majesty’s Government what plans they have to protect children from easily accessing pornography and other adult material online.

The Parliamentary Under-Secretary of State for Schools (Lord Nash): My Lords, through the UK Council for Child Internet Safety, jointly chaired by three government Ministers, the Government have gained commitment from the five main internet service providers actively to encourage new and existing customers to switch on parental internet controls if children are in the household. Public wifi providers are now filtering pornography in public places, and there is work under way with device manufacturers and retailers to encourage greater availability of parental controls.

Baroness Benjamin: I thank my noble friend for his Answer. Unfortunately there are many vulnerable children without parents, or who have uninterested parents, so no amount of awareness education will do anything for these kids. Many are already re-enacting pornographic behaviour on other children, as highlighted by the NSPCC. So will the Minister tell the House, as the service providers are working on filtering for new customers, why the Government do not insist that they offer filtering for their existing customers, and block porn and adult material by default as part of the solution to protect all children before they end up in a moral wasteland?

Lord Nash: We have asked the ISPs actively to encourage people to switch on parental controls if there are children in the household, whether they are new or existing customers. The ISPs regularly contact existing customers through e-mails and on their bills. We also want the ISPs to put in place measures to check that the person setting up the parental controls is over the age of 18. The five main domestic ISPs, which cover 90% of households in the UK, have committed to ensure that these measures are in place for existing as well as new customers by the end of this year.

Lord Hylton: My Lords, does the noble Lord agree with me that we are faced with harm to children, not only in this country but also overseas? For example, in south-east Asia, children can be kidnapped or bought and subjected to horrific abuse for the making of pornographic films. Does he further agree that action is needed on both the making and viewing of such films?

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Lord Nash: I entirely agree. The fact that this happens is shocking, and the fact that it is so easy for our children to access these dreadful images is shocking. Certainly, a step change in attacking images of child abuse on the internet was secured yesterday at a meeting with the Culture Secretary, Maria Miller; companies agreed to increase funding substantially to the Internet Watch Foundation so that it can now actively search, block and remove child abuse images. It will no longer have to wait for illegal material to be reported. Anyone trying to access a page blocked by the Internet Watch Foundation will see a warning message, known as a splash page, saying that they are trying to access illegal material. The industry will commit to sharing technological knowledge to enable all corners of the industry to tackle the availability of these appalling images online.

Baroness Lane-Fox of Soho: I thank the noble Baroness for her Question, which is a fundamental one. While the corporate sector has an immensely important role to play, so does education, and so do schools. I refer the Government to the work that Professor Tanya Byron did on this subject under the previous Government, which is extraordinarily sensible, and a simple way for schools to adapt to the learning that is incredibly important around this issue.

Lord Nash: I agree entirely with the noble Baroness that schools have a big role to play, and I am aware of Tanya Byron’s work. Parents have a big role to play as well. It is quite clear that too many members of our modern generation are exposed to unacceptable sexual images, and they should be taught about the importance of relationships.

Lord Harris of Haringey: My Lords, the Government’s initiatives in this field are clearly welcome. The question is whether they go far enough. Why is so little effort being put into working with the industries to ensure that there is a robust system of age and identity verification available for those who try to access services of all sorts on the internet? Not only could those who use child pornography be identified, it would also protect children from seeing things that they should not see, and it would no doubt solve all sorts of other problems that we might have in respect of material which is available online.

Lord Nash: The noble Lord is quite right. The Government want the industry to develop robust age verification systems to prevent children and young people being able to access these images. ISPs are bringing in closed loop e-mails so that when the filters are changed in a home, an e-mail is sent to the account holder and therefore to the adult. There is a major piece of work going on through UKCISS, but it is true that it will be difficult to ensure that all pornographic sites have robust age verification systems in place as many—indeed, most of them—are hosted outside the UK.

The Lord Bishop of Liverpool: My Lords, in light of yesterday’s question about sex education, and the important Question put by the noble Baroness, Lady Benjamin, can the Minister tell the House whether

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there is interdepartmental working that involves the Department for Education, the Department of Health, the Department for Culture, Media and Sport and the Ministry of Justice?

Lord Nash: There is, on a number of fronts, including work on troubled families, but I think that the right reverend Prelate’s question merits a more detailed answer, so I shall write to him.

Baroness Sharples: Why do parents allow their children to have computers in their rooms, and even encourage them?

Lord Nash: Or televisions, for that matter. I agree. However, it is a fact of life these days, I am afraid, that the internet is the pavement for our children. That is why this is such an important issue, and parents do not understand enough about it.

Baroness Hughes of Stretford: My Lords, schools are also central to safeguarding children in this area. Yesterday the Minister said that teachers should be able to teach internet safety effectively in computing classes. With respect, I doubt that anyone knowledgeable in this area agrees with that view, because it requires teachers trained in addressing these difficult personal and social issues with young people—and that will not happen in a computing class. One of the most compelling arguments for statutory personal, social and health education within the national curriculum is the provision of specially trained teachers. Will the Government now consider making these important child safety issues part of the national curriculum?

Lord Nash: The noble Baroness and I entirely share that view about the importance of teaching children PSHE. We are bringing in e-safety for the first time in both primary and secondary computer science—and we trust teachers to deliver the pastoral care that their children need. Oddly, the Opposition, who are the party of the unions, do not seem to do so. However—I said it twice yesterday and I shall say it again today—we are not going to make PSHE statutory.

Armed Forces: Reserve Forces


3.23 pm

Asked by The Earl of Shrewsbury

To ask Her Majesty’s Government what plans they have for the future of the Army Reserve Forces and in particular for the Royal Mercian and Lancastrian Yeomanry and its component squadrons.

The Earl of Shrewsbury: My Lords, in asking the Question standing in my name on the Order Paper, I declare an interest as a former honorary colonel of A Squadron RMLY.

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever): My Lords, the 2011 independent commission on the Reserve Forces reported that they needed to be brought up to date to meet the needs of the new security environment. The Government

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published a Green Paper followed by a consultation, which generated around 3,000 responses from reservists, their families, regulars, employers, employer organisations and other interested parties. These have helped to shape the way forward, which we shall set out in a White Paper, with a ministerial announcement shortly.

The Earl of Shrewsbury: I am grateful to my noble friend for his Answer. However, is he aware that the Royal Mercian and Lancastrian Yeomanry, which is based in Telford in Shropshire, has a fine recruitment record and currently enjoys a local regimental laydown with its component squadrons? This would be completely lost should the regimental headquarters be moved out of the area. Is he further aware that, bearing in mind the Prime Minister’s recent commitment to expand the role and establishment of the Reserve Forces, there is a simple low-cost solution to this problem? That is, simply do not change the current structure of the yeomanry.

Lord Astor of Hever: My Lords, I pay tribute to my noble friend for the very important work he does as an honorary colonel. To meet the likely scale of the security challenges the nation is likely to face, we are configuring our Armed Forces into a new structure under Future Force 2020. Reserve Forces will be central to this and will in future form a great proportion of the whole force delivering a range of capabilities and skills, some of which will be held only in the reserves. This will involve changes to some units but it is too early to say what those will be.

Viscount Brookeborough: Would the Minister not agree with me that in increasing the number of reserves, one of the most important things is the employer and employer relations? We still have not managed to provide the right recipe for them in every case to support members of their businesses in becoming reserves. I declare an interest in that I was on the National Employers’ Advisory Board and in the Army.

Lord Astor of Hever: My Lords, the noble Viscount makes a very important point and we realise that this is a key area that we must get right. We are grateful to those employers who play a very important role. We recognise that the needs of employers must be understood and respected. That is why we are moving to relationships with employers based on partnering, giving greater predictability and certainty to when reserves will be required for training or, indeed, deployment.

Lord Rosser: My Lords, in the House of Commons on Monday, the Minister for the Armed Forces said:

“I am relatively confident that enough people will come forward to join the reserves and that we can look forward to having a vibrant reserve Army”.—[Official Report, 17/06/13; col. 609.]

Does the Minister share the doubts of his ministerial colleague, betrayed in that answer, that the target figure of 30,000 for our Reserve Forces may not be achieved? Can the Minister give an undertaking that the size of our Regular Army will not be reduced to the intended figure of 82,000 unless and until our Reserve Forces have been increased to 30,000 and have been appropriately trained?

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Lord Astor of Hever: My Lords, we are confident that the reinvigorated reserves will deliver the quality and the number of reservists we require in future, both in training and in operations. Over the next 10 years, we are investing £1.8 billion to revitalise the reserves. We have also appointed a three-star general whose job will be to deliver this transformation, including the engagement that will be required with employers. Unfortunately, I cannot give the noble Lord, Lord Rosser, the undertaking that he asked me to give on the numbers.

Lord Palmer of Childs Hill: My Lords, the policy on this particular regiment highlights the many questions arising about our Reserve Forces as they grow to meet the demands of the Army 2020. Can the Minister say what thought has been given to the proposals to involve those Gurkhas now quite rightly in Britain in our Reserve Forces?

Lord Astor of Hever: My Lords, as my noble friend knows, the Government place great value on the contribution of Gurkhas, both past and present. Gurkhas already serve in the TA and ex-Gurkhas living in the UK can apply to join the reserves. The recent launch of the TA Live campaign encourages ex-regulars, including Gurkhas, to join. While we are not minded to have an exclusive ex-Gurkha reserve unit, the Brigade of Gurkhas is working with recruiters proactively to recruit ex-Gurkhas into the reserves.

Lord Trefgarne: My Lords, in addition to ensuring that our Reserve Forces are sufficiently numerous, is it not also important that they are properly equipped and do not just have to make do with hand-me-downs from the Regular Forces? Can the Minister give that assurance?

Lord Astor of Hever: My Lords, yes, I can. This is central to achieving a fully integrated force. Reserves will train and develop a competence on the weapon and vehicle platforms common to their roles. Some of the most modern equipment currently in use—for example, the amphibious bridging—will only be used by the reserves.

Lord Clark of Windermere: My Lords, can the Minister advise the House what percentage of our doctors serving with our forces in Afghanistan are reservists? Is it envisaged that certain specific roles within the medical services will be designated entirely for reservists?

Lord Astor of Hever: My Lords, this is one of the areas that we are looking at very carefully at the moment. Meetings take place frequently in the Ministry of Defence and I hope to come back with an announcement on this important issue before the Summer Recess.

NHS: Accident and Emergency Units


3.29 pm

Asked by Lord Campbell-Savours

To ask Her Majesty’s Government what assessment they have made of the impact of closures of Accident and Emergency units in Buckinghamshire on

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neighbouring hospitals; and how that compares with the impact of closures of Accident and Emergency units elsewhere in the country.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, we know that there have been increasing pressures in A&E across the country. In October 2012, a GP-led 24/7 minor injuries unit was introduced in Wycombe to deal with cuts, bruises, sprains and other minor injuries and illnesses. A modest increase in the number of patients going to neighbouring A&E units was expected as a result of local changes. Commissioners provided £4 million to these hospitals to address that increase.

Lord Campbell-Savours: My Lords, the minutes of the Heatherwood and Wexham Park National Health Service Trust disclose that the downgrading of A&E and medical emergency departments in neighbouring hospitals led to a fivefold increase in the number of people having to wait more than four hours—the national target—in Wexham Park A&E and a dramatic increase in the number of cancelled operations. Indeed, I am told that that number doubled. What is the point of making this national policy of closing these A&E departments when all it is doing is upsetting people all over the country and making them extremely angry?

Earl Howe: My Lords, I have to emphasise to the noble Lord that, although I understand his concerns in relation to Wexham Park and other hospitals, there is no government policy about the closure of A&E departments. The whole thrust of government policy since we were elected to office has been that there should be no top-down direction of this type of decision. Rather, we are clear that any changes to healthcare services should be locally led, clinically driven and involve the local population in a consultation. All patients have the right to high-quality urgent care at whatever time they use the health service. The key for local commissioners and decision-makers is to ensure that that happens. I am aware that the situation at Wexham Park has improved and money is being invested to ensure that there are enough beds for the future.

Baroness Wall of New Barnet: My Lords, I declare an interest as the chair of Barnet and Chase Farm Hospitals NHS Trust. I was in my A&E department at Barnet Hospital this morning for two hours. In addition to the concerns that my noble friend has expressed, the real issue is that people are turning up at A&E who really should not be there, do not need to be there and ought to be able to get treatment elsewhere. Obviously, government policy is to ensure that we have more services outside, but can we make sure that that happens more quickly than is currently the case?

Earl Howe: My Lords, the noble Baroness is absolutely right. There is no doubt from Sir Bruce Keogh’s urgent and emergency care review, published this month, that attendance at an A&E department often reflects the lack of availability or the lack of awareness of alternative sources of help. Some patients may default to A&E departments when they are unsure about which service is most appropriate to their needs. That has to be addressed and is being addressed in Sir Bruce’s

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review. It will look at the entire system of emergency care and how we can make sure that it provides the right care, in the right place and at the right time.

Baroness Finlay of Llandaff: Will this review include an audit of the number of patients who are in A&E but cannot be sent back to their normal place of residence, whether that is their home or a care home, because of the lack of immediate transport and an absence of immediate referral systems to community services that could monitor and review the patient back in the community?

Earl Howe: My Lords, yes, the whole patient journey should be looked at, including the role of social care in making sure that patients who are not seriously ill but need care can be looked after in their own homes or in a suitable residential setting.

Lord Brooke of Alverthorpe: My Lords, will the Minister be kind enough to enlighten us as to whether Ministers are under instructions these days to blame the NHS and its different levels for failings but to accept no responsibility for putting it right? I watch with increasing fascination the number of Ministers who are now attacking the way that A&E operates, although they are to blame. I heard a Minister the other day attacking GPs for failing to act in the way they should. At the end of the day, I wonder who is responsible for putting this right. The noble Earl said earlier that this is a not a “top-down” operation now. Who, then, is going to accept responsibility for the failings which are now starting to take place within the health service?

Earl Howe: My Lords, Ministers are responsible to Parliament for the provision of the health service so I do not duck that responsibility for a second. Nevertheless, Ministers do not manage the health service day-to-day and have never done so. We are involved day-to-day in the plans to ensure that we have a health service that is properly configured to meet the needs of patients. My right honourable friend the Secretary of State could not be more assiduous in the work that he is doing to make sure that that happens. Responsibilities are not being ducked; nobody is being blamed. The fact is that demand is going up considerably, and has been for a number of years. We need to address that and we need to do it cleverly. It is not always a question of piling more money in; it is looking at how the services are configured and delivering care in the right place.

Baroness Masham of Ilton: My Lords, does the Minister agree that drunken and aggressive people are putting great pressure on A&E departments across the country, especially at weekends? Can he do something about it?

Earl Howe: The noble Baroness is right. Quite a considerable proportion of people who attend A&E do so at weekends after heavy drinking, and in some areas, that has overloaded the system. I am aware of many hospitals that are working with the local police force and others to keep such people out of hospital if they do not need to go, but to make sure that they do not disrupt the work of an A&E department if they do go.

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G8 Summit


3.37 pm

The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford): My Lords, with the leave of the House, I will now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows.

“With permission, Mr Speaker, I would like to make a Statement on the G8. The Government decided to hold the G8 in Northern Ireland to demonstrate the strength of this part of the United Kingdom. We wanted to show the success of the peace process, the openness for business and investment and the potential for tourism and growth.

I want to thank my right honourable friend the Secretary of State for Northern Ireland and the First and Deputy First Ministers for all they did to help with the conference. I want to congratulate the Police Service of Northern Ireland and all those responsible on delivering a safe and successful G8 and to thank everyone in Northern Ireland for giving everyone such a warm welcome. Northern Ireland put on its best face, and the whole world could see what a great place it is.

We set a clear agenda for this summit: to boost jobs and growth with more open trade, fairer taxes and greater transparency—what I have called the three Ts. I also added a fourth T—combating terrorism. We reached important agreements including on support to the Libyan Government and ending ransom payments for kidnap by terrorists. Despite our fundamental differences, we also made good progress agreeing a way forward on working together to help the Syrian people achieve the change that they want. Let me take each of these points in turn.

We started with the issue that matters most to our people—jobs, growth, mending our economies. First, we agreed that each country needs to press on with sorting out its public finances. Dealing with our debts and securing growth are not alternatives. The former is an essential step in achieving the latter. In fact the communiqué that we agreed unanimously reflects all three parts of the plan that we have for growth in Britain: not just fiscal sustainability, but active monetary policy to unlock the finance that businesses and families need, and structural reforms to increase our competitiveness so that our young people can get into work and succeed in the global race.

The UK’s G8 also launched a bold new pro-business agenda to drive a dramatic increase in trade and to get to grips with the problems of tax evasion, aggressive tax avoidance and corporate secrecy. This was a distinctive British agenda, to shape the way the world economy works for the benefit of everyone. We believe in free trade, private enterprise and low taxes as the best route to growth, but that is only sustainable if ambitious trade deals are agreed, the taxes owed are paid and companies play by the rules. This agenda has now, I believe, been written into the DNA of G8 and G20 summits, I hope for many years to come.

On trade, we started the summit with the launch of negotiations on an EU-US trade deal. This could add, as has recently been said, as much as £100 billion to

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the EU economy, £80 billion to the US and as much as £85 billion for the rest of the world. We should be clear what these numbers mean: more jobs, more choice and lower prices in the shops—the biggest bilateral trade deal in history, launched at the G8.

On tax, the Lough Erne declaration that leaders signed yesterday sets out simple, clear commitments. Tax authorities across the world should automatically share information so that those who want to evade taxes will have nowhere to hide. Companies should know who really owns them and tax collectors and law enforcers should be able to obtain this information easily—for example, through central registries—so that people cannot escape taxes by using complicated and fake structures. In a world where business has moved from the offline and the national to the online and the international but the tax system has not caught up, we are commissioning the OECD to develop a new international tax tool that will expose discrepancies between where multinationals earn their profits and where they pay their taxes.

The declaration also makes clear that all this action has to help developing countries too, by sharing tax information and building their capability to collect taxes. Crucially for developing countries, we agreed that oil, gas and mining companies should report what they pay to Governments, and that Governments should publish what they receive, so that natural resources are a blessing, not a curse. Charities and other NGOs have rightly campaigned for years for action on these issues and for the first time they have been raised to the top of the agenda and brought together in one document.

The agreements on tax made at the summit are significant but it is also worth noting what has happened on this front since I put this issue to the top of the agenda. On 1 January there was no single international standard for automatic exchange of information. Now there is such a standard and more than 30 jurisdictions have already signed up, with more to follow. After years of delay, the European Union has agreed to progress the sharing of tax information between member states. The overseas territories and Crown dependencies have signed up to the multilateral convention on information exchange. They have agreed automatic exchange of information with the UK and action plans for beneficial ownership. Taken together, all the actions agreed with the overseas territories and Crown dependencies will provide more than £1 billion of revenue to the Exchequer, helping to keep taxes down for hard-working families here in the UK.

People around the world also wanted to know if the G8 would take action to tackle malnutrition and ensure that there is enough food for everyone. The pledges at our nutrition and hunger summit earlier this month will save 20 million children from stunting by 2020. But crucially at our G8 we also took action on some of the causes of these problems. This is why the work we did on land, extractive industries, tax and transparency is so important.

Turning to the fourth T—terrorism—we agreed a tough, patient and intelligent approach: confronting the terrorists, defeating the poisonous ideology that sustains them and tackling the weak and failing states

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in which they thrive. The G8 leaders reached a ground-breaking agreement on ransom payments for kidnap by terrorists. In the past three years alone, these ransom payments have given al-Qaeda and its allies tens of millions of dollars. These payments have to stop and this G8 agreed that they will.

We also discussed plans to begin direct talks with the Taliban. Britain has long supported a peace process in Afghanistan to work alongside our tough security response, so we welcome this step forward. We also discussed support to Libya. I believe that we should be proud of the role we played to rid Libya of Colonel Gaddafi, but we need to help that country secure its future. So we held a separate meeting with the Libyan Prime Minister, which included President Obama, and European nations have already offered to train 7,000 troops to help Prime Minister Zeidan disarm and integrate the militias and bring security to the whole country. More contributions will follow from others. Let me be clear that the Libyan Government have now asked for this and that they will pay for it.

Finally, let me turn to Syria. It is no secret that there are very different views around the G8 table. I was determined that we should use the opportunity of this summit to overcome some of these differences and agree a way forward to help the Syrian people achieve the change that they want. This did not happen during just one night in Lough Erne. The talks between Secretary Kerry and Foreign Minister Lavrov have been vital. In the weeks before the summit I flew to Sochi and Washington, and I met again with President Putin and President Obama in the hours before the summit began. These conversations were open, honest and frank, but we were all agreed on what must be the core principle of the international approach to this crisis. There is no military victory to be won and all our efforts must be focused on the ultimate goal of a political solution.

Together with our G8 partners we agreed almost $1.5 billion of new money for humanitarian support. This is an unprecedented commitment from Lough Erne for Syria and its neighbours. We agreed to back a Geneva II process that delivers a transitional governing body, crucially with full executive authority. So a core requirement for success that had been called into doubt in recent weeks has now been reasserted unanimously with the full authority of the G8.

We pledged to learn the lessons of Iraq by making sure that the key institutions of the state are maintained through the transition and there is no vacuum. This sends a clear message to those loyalists looking for an alternative to Assad. The G8 also unequivocally condemned any use of chemical weapons, and following an extensive debate, we reached for the first time a united position, including Russia, that the regime must immediately allow unrestricted access for UN inspectors to establish the full facts on the use of chemical weapons by regime forces or indeed by anyone else. All of these agreements are absolutely fundamental to saving lives and securing the political transition that we all want to see.

Let us be clear on what is happening in Syria and what we are trying to achieve. We are faced with a dramatically escalating humanitarian disaster with more

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than 90,000 dead and almost 6 million people having had to flee their homes. There is a radicalisation of terrorists and extremists who will pose a direct threat to the security of the region and the world. There is a growing risk to the peace and stability of Syria’s neighbours, and the long-standing international prohibition on chemical weapons is being breached by a dictator who is brutalising his people.

None of this constitutes an argument for plunging in recklessly. We will not do so, and we will not take any major actions without first coming to this House. But we cannot simply ignore this continuing slaughter. Of course it is right to point out that there are extremists among the opposition. There are, and I am clear: they pose a threat not just to Syria but to all of us. The G8 agreed they should be defeated and expelled from their havens in Syria.

I also understand those who fear that whatever we try to do could make things worse, not better. Of course we must think carefully before any course of action. But we must not accept what President Assad wants us to believe—that the only alternative to his brutal action against Syria is extremism and terrorism. There are millions of ordinary Syrians who want to take control of their own future, a future without Assad. That is why I made sure that the G8 agreed that the way through this crisis is to help Syrians to forge a new Government that is neither Sunni, Alawite nor Shia.

We are committed to using diplomacy to end this war with a political solution. This is not easy, but the essential first step must be to get agreement between the main international powers with influence on Syria. That is what we have done at the G8 in Lough Erne. We must now turn these commitments into action. I commend this Statement to the House”.

3.49 pm

Baroness Royall of Blaisdon: My Lords, I am grateful to the noble Lord the Leader of the House for repeating the Statement given earlier today in the other place by the Prime Minister on this week’s G8 summit.

I commend the Prime Minister and the Government for holding the summit in Northern Ireland. Fifteen years ago, even at the moment when the Good Friday agreement was being signed, holding a G8 summit in Enniskillen would have been unimaginable. Peace has transformed Enniskillen, and the location of this summit alone is testament to what can be achieved through politics and dialogue, and is a credit to the people of Northern Ireland.

I shall take the G8 issues in turn. On hunger and nutrition, it is completely unacceptable that there is enough food in the world for everyone, yet 1 billion people still go hungry and 2.3 million children die every year from malnutrition. We therefore welcome the agreements and commitments made during the hunger summit. The task now must be to ensure that these commitments will be delivered. Does the Leader of the House agree that we are right to stick by our pledge of 0.7% for aid as a proportion of national income? Does he further agree that we should be using all the moral force that we gain from that position to urge others to follow suit?

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On trade, we welcome and support the launch of negotiations on a free trade agreement between Europe and the United States. The prize here is enormous. Can the Leader confirm that the Prime Minister will tell his colleagues that this is a timely reminder of the importance for jobs and prosperity of Britain staying in the European Union?

The Government were right to put tax and transparency on the agenda. The question is now how to translate good intentions into action. On tax havens, the Prime Minister has said that one of his goals was to make sure that there will be public knowledge of who owns companies and trusts. What blocked getting agreement on this at the G8? What progress was made on ensuring that information that is being shared between rich countries is also being shared with developing countries? Does the Leader agree with these Benches that, given the importance of this issue for developing countries, it cannot be justified that rich countries agree to share this information with each other but not with the poorest countries of the world?

I turn to the devastating situation in Syria. According to the UN, more than 93,000 people have now died in this brutal conflict. It was right for the Government to prioritise this and make it the focus of this week’s talks. We welcome the announcements of additional humanitarian aid, particularly the doubling of UK aid. However, the answer to this humanitarian crisis is a political solution. We all recognise the scale of the challenge of bringing together an international community that has been divided for over two years. The Prime Minister said yesterday that the summit’s outcome on this issue was,

“a strong and purposeful statement on Syria”.

The centrepiece of that statement was a commitment to the Geneva II conference. Could the Leader therefore explain why there was no agreement on a starting date for the conference? Indeed, it is being suggested that the conference is now being pushed back from June to July, and now even to August. Based on this week’s talks, when does the Leader expect the conference to take place?

I turn to the substance of that conference. The Prime Minister has spoken today about the importance of the agreement in Enniskillen on a transitional government, including the maintenance of government institutions and an inclusive political settlement for Syria. This we welcome; but do the Government accept that every one of those commitments featured in the Geneva I conference back in June 2012? The Government talk of this providing a moment of clarity on Syria, but how in concrete terms does this communiqué move us closer to that political settlement? Based on discussions at the G8 on securing access for weapons inspectors, securing access for humanitarian agencies and tackling terrorism, can the Leader set out how these laudable and very welcome goals will be achieved?

The Prime Minister went into the summit having allowed speculation to build that Britain was in favour of arming the rebels as a means to encourage diplomatic progress. Given the limited progress achieved, do the Government still maintain that focusing so much time and effort preceding the summit on lifting the arms embargo was the right approach?

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The Prime Minister now says that it is not his policy to arm the rebels. Given that the Geneva conference has already been delayed, can the Leader envisage any circumstances in which the Government would seek to arm the rebels before the conference takes place? The reality is that we did not witness the long hoped-for breakthrough on Syria at the G8 summit, a hope that noble Lords on all Benches share.

None of us should doubt the difficulties of the choices that confront the Government. The Government know that on the steps agreed this week to tackle terrorism and on the issues of Afghanistan and, indeed, Libya in particular, we gave the Government our full support. On these Benches we urge the Government in the months ahead to proceed with the greatest possible clarity as to their strategy, and to seek to build the greatest possible consensus across Parliament. I trust that the noble Lord the Leader will continue to keep the House informed.

3.55 pm

Lord Hill of Oareford: My Lords, first, I associate myself very strongly with the point that the noble Baroness made about holding the G8 in Northern Ireland in the first place. A long time ago, when I worked for one of my former bosses, John Major, he started this whole process in Northern Ireland, which the Labour Government then built on. It shows that if people are brave enough and stick at it, they can achieve great things. It was a tribute to the work of many people to have brought that about. It helped boost the economy, and it was a very powerful message all around the world of what can be achieved.

I agreed with the points that the noble Baroness made about the importance of the hunger summit, which happened the week before the G8 summit in Lough Erne. I was very glad that more funding was provided at the summit and that more ambitious goals were set down on what we might be able to do to tackle the problem of children suffering from malnutrition and, indeed, to prevent the deaths of young children. We believe that there may be 1.7 million children whose lives we may be able to save through that programme.

On our approach generally to international aid, we have kept that pledge. I think that that is right and that it lends us moral authority—which I think was the phrase that the noble Baroness used—and helps us deliver some of the other important policies that we are trying to take forward.

On trade deals, the beginning of a negotiation between the EU and the US on a trade deal was announced. It is only a beginning but if it comes in it will lead to many billions of pounds. The Prime Minister was clear earlier today on the benefits to the UK of being in the single market. I think that it is in the interest of all of us to try to make sure that this deal is concluded.

As for public registries of beneficial ownership, every country at the summit agreed to an action plan. Some have said that they will move straightaway to have these registries. So far as Britain is concerned, we have said that we will consult on the question of whether or not they should be public. We clearly need

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to keep pressing. I think that six of the G8 countries have already published an action plan on this at Lough Erne, and we have moved quite a long way on it.

The noble Baroness is absolutely right about the importance of information sharing applying to developing countries—I agree with her entirely on that. The whole point about this is that it is not just about the developed countries making sure that we all get the proper tax but that if we can deliver that across these countries, those developing countries which need to have their tax revenues paid would benefit as well.

On Syria, I was glad of the welcome that the noble Baroness gave to the increase in humanitarian aid generally and to the UK’s contribution specifically. We need a political solution, as she said. I am not able to give a date for when the Geneva II talks will start. It was discussed at Lough Erne but the decision taken there was to try to get agreement on the substance rather than on a specific date. However, it was clear that there was a sense of urgency, and the G8 called for it to happen as soon as possible.

As for the G8 summit moving us closer to a political settlement in Syria, I think that it is fair to say that before the G8 summit the Russians seemed to be backing away from a transitional authority with full executive powers, but they have now reaffirmed their support for one. We also now have the language, for the first time, on our approach to the use of chemical weapons. That is new and I think that it will help. As for the time and effort spent on lifting the arms embargo, we felt that it was right to do so. We think that it has helped to increase the diplomatic pressure on that.

As the noble Baroness knows, no decision has been taken to arm the rebels at all—the Government have been very clear about that. It is a hypothetical question. However, my right honourable friend the Foreign Secretary has made it clear that, were the Government to make that decision, Parliament would obviously have a say in it. On her final point about whether I would seek to make sure that the House is kept informed on all these developments, the answer is yes, of course, I will seek to do so in the normal way.

4 pm

Lord Brittan of Spennithorne: Will my noble friend agree that the last time a serious attempt was made to reach a wide-ranging trade agreement between the United States and the European Union it foundered on the absolute refusal of the US regulatory agencies to agree to any degree of mutual recognition, let alone harmonisation, and that unless at the very highest level action is taken to deal with that blockage, this attempt will be no more successful than the last? Is it not therefore absolutely necessary that there should be a focus on this issue?

Lord Hill of Oareford: I am sure that that advice from my noble friend is extremely wise. I know how closely involved he has been over the years with many of these negotiations. It is clear that this issue was given a great deal of importance at the highest level, during the conversations between our Prime Minister and the President of the United States at the G8. Obviously we are at the beginning of the negotiations;

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I think the first meeting is due to start next month. However, I am sure that all those charged with the responsibility of trying to bring about this extremely important deal will know of the history. If they do not, they will have been reminded of it by my noble friend and will bear that in mind as they try to secure this important deal.

Lord Lea of Crondall: Does the Minister agree that the question of regime change now bandied around in our newspapers gives people a sense of déjà vu, when at the same time we are looking at a peace conference? The idea on the Arab street that the West can be involved in regime change will possibly only have the result that the dispute between Alawites and Shia and Sunni Muslims will not be left to them but will also become our dispute.

Lord Hill of Oareford: I understand the point the noble Lord makes. It was said at the G8 that if we can get the G8 and other countries working together to bring about a political situation by bringing their different pressures to bear—whether it is the Russians, the Americans, or whoever—that must be worth trying.

Lord Dholakia: My Lords, I thank the noble Lord for the Statement. This was one of the most successful G8 summits of recent times. The Minister was right to point out the three factors: trade, transparency and tax. Does he accept that they would considerably help not only developed but underdeveloped nations, and would make a real difference to the lives of ordinary people? There is a serious concern about our involvement in Syria. We certainly welcome the idea of and the arrangements for a peace conference, whenever it will take place. However, more than 93,000 people have been killed, and extremism has surfaced from both the Assad Government and the opposition. The Minister was slightly hesitant, but does he accept that Parliament will decide whether there is a need for further involvement in relation to the supply of arms, or any further action the Government takes?

Lord Hill of Oareford: On my noble friend’s first points about the importance of trade, tax and transparency for the developing world, he is of course entirely right. We are aiming for more trade and to break down the barriers. Coming out of the G8 we are very keen to make progress at the WTO conference this December. For instance, we will try to break down trade barriers in Africa, where they have a terribly detrimental effect on the ability of people to do business and also affect the tax revenues that flow from that. We aim to make that easier and more straightforward so that tax is paid. We also want to make the system more transparent so that money from industries such as the extractive industries will go into legitimate purposes to help those economies and societies, rather than into a small number of very deep pockets. I agree with him on that.

On Syria, I hope that I gave a clear answer to the noble Baroness, Lady Royall. Both my right honourable friend the Foreign Secretary and the Prime Minister have made clear that, were a decision taken by the Government to arm one side in Syria, which it has not been, that Parliament would certainly have its say.

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Lord Wright of Richmond: My Lords, I have warned many times in the past 15 months, as have many others in both Houses, against the folly of military intervention in Syria and I have no need to repeat that warning this afternoon. However, if there is any substance behind the allegation in the Times today that the West is trying to engineer a coup in Damascus, I hope that the noble Lord’s right honourable friend the Foreign Secretary, distinguished historian as he is, needs no reminding of the disastrous results of some previous attempts by outsiders to change regimes in the Middle East. Not only would such attempts, if successful, almost certainly produce a Government in Damascus of much greater threat to British interests than the present regime, it would directly contradict the Government’s repeated view that any future regime is for the Syrian people to decide. Can the Leader of the House assure us that HMG are playing, and will play, no part in any such attempt at regime change—what the Statement describes as helping Syrians to “forge a new Government”? Finally, I ask the noble Lord for an assurance that if, as we all must hope, a peace conference can be arranged, HMG will not oppose the participation of Iran.

Lord Hill of Oareford: My Lords, the noble Lord, as he said, has been very clear and consistent on his position on this issue for 15 months and, I am sure, longer. I recognise that and I am sure that my right honourable friend the Foreign Secretary will be aware of that. On the noble Lord’s specific questions, I do not think it sensible for me to go any further than the Statement; I am obviously not involved in those negotiations. I know that those who are involved will have heard what he has said and I will make sure that his consistent warnings about this are relayed to them. Clearly, as we have already said, we are seeking a political solution that is acceptable to the Syrian people. That is what we are working for.

The Lord Bishop of Liverpool: My Lords, we on these Benches very much welcome the direction of travel on taxes, trade and transparency. Can the Minister tell us what steps Her Majesty’s Government will take to ensure that these three Ts figure strongly on the agenda of the G20 summit later this year?

Lord Hill of Oareford: That is an extremely good question. I can tell the right reverend Prelate that the hope, expectation and intention coming out of the G8 is very much that some of this detailed work on tackling tax evasion, aggressive tax avoidance and transparency will be taken forward by the G20 and the OECD. Behind the simple, 10-point declaration that summarised the headline points at the summit is a much longer, more detailed communiqué that sets out the much more detailed steps of the sort to which the right reverend Prelate refers.

Lord Davies of Stamford: Does the agreement at the G8 to ban ransom payments to terrorists, which is very welcome, include banning payments to pirates who capture individuals? The noble Lord has probably heard me say several times in the past three years that this problem is of at least equal dimension.

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Lord Hill of Oareford: I will need to come back to the noble Lord on whether the agreement covers such payments. Its intention was to eliminate the scourge of ransom payments, but how they are defined in detail is something that I will have to follow up with him.

Lord King of Bridgwater: Does my noble friend recognise how much I echo what has been said, how much I welcome the fact that the conference has been held successfully in Enniskillen—having been all too close to the outrage and tragedy that took place there—and how I am reflecting on the irony of how the world has moved forward? That outrage was almost certainly committed with Libyan explosives, but the new Prime Minister of Libya was present at the G8. I hope very much that one of the outcomes of the G8 will be a better future for Libya. I echo what the noble Lord said. There must be political discussions about the future of Syria; they must be held by everybody without preconditions, which is one of the lessons of Northern Ireland for making progress; and obviously it would be enormously helpful if Iran were present as well.

Lord Hill of Oareford: I understand the second point made by my noble friend, which echoed that made by the noble Lord, Lord Wright. On the first point about Northern Ireland, the noble Lord knows better than most in the Chamber what the situation was and the extent of the work that had to be done. He was closely involved with that. It is a powerful symbol of what can be achieved if people are prepared to take those brave decisions.

Lord Morris of Aberavon: My Lords, perhaps I may explore the assurance in the Statement that Parliament will have its say on Syria. Do I take it that there will have to be specific parliamentary approval, as the convention has now grown?

Lord Hill of Oareford: Yesterday, at some length, and earlier today, the Prime Minister set out what that means: were the Government to decide that they wanted to arm the rebels—which they have not—it would be subject to a vote.

Lord Kilclooney: My Lords, coming from Northern Ireland, perhaps I may say how delighted I am at the success of the G8 conference in County Fermanagh. It has promoted Northern Ireland as a stable society. It has been good for our tourism. We should pass on from Northern Ireland our appreciation to the Prime Minister for selecting Northern Ireland as the part of the United Kingdom where the G8 conference would be held. Is the Leader of the House aware that this has been not only good publicity for Northern Ireland but also successful economically? In the past 10 days we have had another 1,500 new jobs announced in Northern Ireland. Just this morning, the Japanese Prime Minister, who remained in Northern Ireland following the conclusion of the G8, announced a further investment of 400 new jobs in County Antrim.

Turning to the question of transparency in our banks, we know that new standards will be introduced. Since international companies within the United Kingdom

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have been transferring their corporation tax payments to other countries to avoid tax, and British overseas territories have been fingered as possible places to avoid tax, can the Government guarantee that the five small sovereign states within Europe that use the euro—Monaco, San Marino, the Vatican, Lichtenstein and Andorra—will be subject to the same standards of transparency?

Lord Hill of Oareford: My Lords, I had not heard those latest figures on Northern Ireland, and I am delighted to hear them. They are further evidence of the benefits of holding the G8 there and the wisdom of doing so. I am very grateful for the remarks made by the noble Lord. On his more general point about tax avoidance and so on, this whole approach will clearly only work if it is applied on a level basis across all countries. The aim of much greater transparency is at the heart of this approach. An example is publishing information on where countries pay tax in order to work out where the profits are. Trying to make that approach across a broad front lies at the heart of what was agreed at the G8.

Lord Higgins: My Lords, this has been an usually successful and constructive conference. The proposals being made on taxation regarding transparency and so on should certainly have a pretty rapid and significant effect on tax evasion, but they will have only a relatively limited effect on aggressive tax avoidance. Consulting internationally is certainly welcome, as the Statement says in relation to the OECD. However, at the end of the day, it is a matter for taxation in this country. Multinationals which use these aggressive techniques in this country have said that doing so is within the law. This is true, but it means that our law needs to be changed, which is a very technical subject. The law needs to relate to profits made in this country, and in some way enact a tax on the profits of online transactions which originate in this country. I hope that we will not overlook that side when looking at the international aspect of the matter.

Lord Hill of Oareford: That point is well made. I hope that the drive towards greater transparency will flush out and illustrate some of the problems to which my noble friend refers, solutions to which can then be worked on in the way that he suggests.

Lord McConnell of Glenscorrodale: My Lords, all of us who took part in the debate last Thursday will be delighted that there has been some progress on tax and transparency at the G8 summit. I hope that the steps that were agreed will prove to be significant. I have questions about two of these steps in particular, the first being the agreement made with the UK dependencies and territories last weekend. If they do not fulfil the promises made at that meeting, what further steps will the UK Government take to ensure that they do so? Secondly, I welcome the statement in the communiqué that there will be capacity building in the developing world, to help those countries legislate for and collect taxes under this new system. What will the UK do to help countries build their capacity for tax revenue collection?

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Lord Hill of Oareford: On the second point, concerning the specific detail of what we will do, I will follow that up with the noble Lord. There are some specific steps being taken. We are making available people who understand the detail of how the system works in order to help in precisely the way that the noble Lord says is necessary. We will do so because it is obviously right to help developing countries understand the complexities of the tax system and the kind of behaviour that goes on. It is not only Britain, but also other countries which will help to do that. If I can provide more detail, I will do so.

On the first point, about what do we will do if Crown dependencies or the overseas territories do not live up to their promises, my answer is, “Let us hold their feet to the fire and ensure that they do live up to their promises”. They made that commitment. It came out of the G8 very clearly that not only the United Kingdom but all G8 member countries will hold them and other jurisdictions to account on that, and will want to see progress made.

Lord Soley: I urge the Government not to raise too many expectations on the quick arrival of a Geneva conference. Listening to Mr Putin’s comments in Russia and at the summit, he has made it very clear that he intends not only to continue to arm the present regime but also to, in his words, draw up new contracts for arms with it. That, to me, conveys very clearly Russia’s intention to argue at a Geneva conference for a regime which is in control of as much territory as possible. I am afraid that means continued fighting and refugee problems for the Middle East, and little hope of a successful outcome. We need to face up to the fact that Mr Putin has again managed to take us back to that old system whereby we prop up dictators, whoever is the strong one in power.

Lord Hill of Oareford: Obviously, I hope that the noble Lord’s warnings will turn out to be wrong, and not like Cassandra’s. However, I understand why he makes the point. He is clearly wise to say that one should not set unrealistic timescales and all the rest of it in terms of Geneva II, which was one of the conclusions that the G8 reached. Notwithstanding his points, it is fair to say that progress was made at the summit in terms of Russia making commitments that it had not previously made. We all have to hope that, on the back of that, we will be able to make the progress that I know the noble Lord and the whole House would like to see.

Marriage (Same Sex Couples) Bill

Marriage (Same Sex Couples) Bill 4th Report from the Delegated Powers Committee

Committee (2nd Day)

4.20 pm

Relevant document: 4th Report from the Delegated Powers Committee

Clause 2 : Marriage according to religious rites: no compulsion to solemnize etc

Amendment 13

Moved by Baroness O'Loan

13: Clause 2, page 4, line 9, at end insert—

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“( ) For the purposes of section 149 of the Equality Act 2010, no regard may be had by any public authority to—

(a) any decision by a person whether or not to opt-in, conduct, be present at, carry out, participate in, or consent to the taking place of, relevant marriages; or

(b) the expression by a person of the opinion or belief that marriage is the union of one man with one woman.”

Baroness O'Loan: My Lords, I reiterate my membership of the Joint Committee on Human Rights, whose report on the issues on which I will speak is before your Lordships’ House today.

Amendment 13 provides for amendment to Clause 2(5) of the Bill. Despite all that was said on Monday in respect of the Equality Act, and I listened very carefully to all the contributions, there is a significant risk that religious organisations and individuals could be treated less favourably by a public authority in the exercise of its functions, for example, as regards funding, as a result of the public sector equality duty under Section 149 of the Equality Act 2010. This could occur in two rather different situations: first, following a decision by a religious organisation,

“not to opt-in … be present at, carry out, participate in, or consent to the taking place of”,

same-sex marriages; and, secondly, following the expression by an individual or organisation of an opinion or belief that marriage is,

“the union of one man with one woman”.

This amendment would protect religious organisations and individuals from unfavourable treatment in both these circumstances.

Under Section 149 of the Equality Act, public authorities such as local authorities are under a duty to have due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it. In particular, public authorities must have due regard to the need to remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic. Since the enactment of the first public sector duty in 2001, there has been extensive litigation and an expansion of the discretion of public authorities in this context. The courts have consistently interpreted the duty of due regard as a duty to further equality of opportunity and not just a duty to avoid discrimination.

Public authorities have in practice used this discretion to pursue broad equality aims and the courts have been reluctant to second-guess the discretion of public authorities. Public authorities have, for example, denied public contracts to organisations which they regarded as unsuitable—for example, on race equality grounds, and the courts appear to have deemed this entirely lawful. As noble Lords will already be aware, the public sector equality duty now imposes duties on multiple grounds, which include sexual orientation and religion. This means that public authorities now have significant discretion in deciding how best to balance these grounds if they clash, and they will clash.

In relation to the first scenario—unfavourable treatment of a person following a decision not to opt in—the amendment is needed for three reasons. First, the Bill does not expressly state that a public authority will act

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ultra vires if it penalises a person following any of those decisions. Clause 2 protects from compulsion; it does not appear to protect religious organisations from being treated less favourably by public authorities under Section 149. The Government appear to think that less favourable treatment should be ultra vires. In the Secretary of State’s response to the Catholic Bishops’ Conference of England and Wales, she said:

“In all circumstances a person who has suffered detriment for the reason that they have not done one of the acts specified in Clause 2, will be able to rely on the protection in Clause 2 to show that such conduct is unlawful”.

During the Public Bill Committee, the Minister stated,

“as the law stands, a public authority would in fact be acting unlawfully … if it attempted to treat a religious organisation adversely simply because that organisation refused, as is explicitly allowed in the Bill, to conduct same-sex marriages. If, for example, a local authority withdrew meeting facilities from a Church only because it did not offer same-sex marriage, that would be likely”—

likely, my Lords—

“to be unlawful direct religious or belief discrimination”.—[

Official Report

, Commons, Marriage (Same Sex Couples) Bill Committee, 5/3/13; col. 349.]

This is not clear in the Bill because an ordinary dictionary definition of “compelled” does not include treating someone less favourably. Nor is it at all clear, for example, that it would be unlawful direct religious discrimination for a local authority to withdraw meeting facilities from a church on the ground that it does not offer same-sex marriage. At most, it is likely to amount to prima facie unlawful indirect discrimination and that would then be subject to the justification defence. We know that the results which flow from judicial scrutiny of such defences are uncertain.

Secondly, Clause 2(5) and Clause 2(6) of the Bill provide explicit protection from Sections 29 and 110 of the Equality Act, despite the comprehensive protection from compulsion which Clause 2 is supposed to provide. The presence of these extra exemptions in Clause 2(5) and 2(6) casts serious doubt on the scope of the protection from compulsion. If it is necessary to have exemptions for these sections, it is also necessary to have a separate exemption for Section 149, to give the protection provided for in this new clause.

Thirdly, even if it were established that the actions of the public authority were ultra vires in the scenario described, such a clarification would come only as a result of a judicial review being taken by religious organisations, which would be time-consuming and expensive. What is more, domestic courts have been reluctant to second-guess the discretion of public authorities, where allegations have been made that more weight should be given to a particular ground of equality. The Secretary of State has been careful not to state that a judicial review of a public authority that engaged in this less favourable treatment would be successful. The Secretary of State has said only that the decision would be vulnerable to challenge. This amendment will provide the necessary clarification, and thus protect persons from unfavourable treatment, by making it explicitly clear in the Bill that public authorities cannot have regard to decisions by persons not to opt-in, conduct, be present at, carry out, participate in or consent to the taking place of same-sex marriages.

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In relation to the second scenario, in which persons may be treated unfavourably under Section 149 following an expression of the opinion that marriage is the union of one man and one woman, the amendment is necessary for two reasons. First, the Government have repeatedly stated that teachers will not be required to promote or endorse views which go against their beliefs. The Minister stated at the Public Bill Committee:

“It is therefore perfectly lawful for a teacher in any school to express personal views on sexual orientation or same-sex marriage, provided that it is done … in an appropriate manner and context”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 28/2/13; col. 305.]

However it is not clear from the Bill that a teacher would be able to teach that marriage should be only between a man and a woman, because some parents, pupils or other teachers could find such teaching deeply offensive. The public sector equality duty could force a school to review, for example, its anti-bullying strategy to ensure that such expressions of opinion are not given. A teacher could thus be disciplined for expressing such an opinion to his or her pupils.

Secondly, if a school’s curriculum positively presents only opposite-sex marriage, there is a danger that the school could fall foul of the Section 149 positive duty on schools to advance equality of opportunity and to foster good relations between people with different protected characteristics. The public sector equality duty could consequently compel schools to endorse same-sex marriages, not just to teach the fact that they exist.

4.30 pm

If the Government agree that less favourable treatment should be ultra vires, then the appropriate approach is to make clear this fact in the Bill, thus avoiding unnecessary litigation. It is unclear why the Secretary of State does not think that it would be “helpful to make legislative changes to the public sector equality duty” when a narrowly tailored amendment is possible, which would resolve the problem without adverse consequences for the public sector equality duty more generally. It is better to eliminate this uncertainty now by making this amendment than to leave uncertainty that is likely to be litigated on.

I move now to the issue of public function and Amendment 18. This amendment will introduce a definition in relation to the word “compelled” in Clause 2. It will provide protection for religious organisations when deciding whether or not to undertake an opt-in activity or an opt-out activity for the purposes of Section 29 of the Equality Act, the Equality Act more broadly, the Human Rights Act and judicial review. This amendment is necessary because religious organisations may be held to be exercising a public function when exercising their discretion to decide whether to opt in or out under Clause 2(1).

In relation to Section 29 of the Equality Act 2010 and the Equality Act more broadly, the exemption in Clause 2(5) to Section 29 of that Act constitutes one of the Government’s so-called quadruple locks. Clause 2(5) makes it clear that discrimination claims cannot be brought against religious organisations for refusing to marry same-sex couples, for example. However, the protection is incomplete. Clause 2(5) makes an exception for individuals only if they decide not to conduct a

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relevant marriage, not be present at, carry out or participate in a relevant marriage, or not to consent to a relevant marriage being conducted. This list of activities echoes exactly the activities listed under Clause 2(2). There is no reference to the activities listed under Clause 2(1). There is no protection under the Equality Act for persons, as defined in the Bill, who exercise the discretion given under Clause 2(1) and decide not to opt into providing same-sex marriages. This is an important omission.

Section 29 of the Equality Act covers the provision of services and the performance of public functions. It states:

“A person … concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service”,

and that a person,

“must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination”.

Persons are therefore given this protection when performing Clause 2(2) activities because the Government consider those activities to involve either the provision of a service or the exercise of a public function. The protection from the threat of legal action under Section 29 ensures that persons will be truly free not to perform Clause 2(2) activities if they have a conscientious objection to so doing.

Why are persons not afforded the same protection when performing Clause 2(1) activities? It is entirely possible that a person as defined in the Bill, when deciding whether or not to opt into performing same-sex marriage ceremonies, will be performing a public function. If that is the case, it is imperative that protection is also provided for persons when performing these activities. In short, religious organisations are at risk of successful discrimination claims by virtue of Section 29. This lock will therefore provide very little protection indeed.

The reason why religious organisations are at risk of being held to perform a public function when exercising their discretion under Clause 2(1) is as follows. First, while it seems to be highly unlikely that in general a religious organisation would be regarded as a public authority, bodies that are not generally public authorities may nevertheless be regarded as hybrid authorities if they exercise some public functions. While giving evidence to the Joint Committee on Human Rights, the Secretary of State recognised that in the Church of England, the minister performs the function of a registrar, and thus performs a public function. It is possible she is under the misconception, however, that only the Church of England are in that position, and that in every other religious organisation, the minister performs the religious part of the ceremony, and a separate registrar performs the civil part. That is not true. In the Catholic Church, for example, a religious organisation which is going to have the option of opting in, the priest or another designated person acts as the authorised person performing the civil function. The priest conducts the marriage ceremony—the religious ceremony—and it is usually the priest who is the authorised person who also performs the administrative or civil aspect of the marriage. Therefore, despite the Secretary of State’s assertion, other religious organisations

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such as the Catholic Church also perform a public function when they conduct marriages. I apologise—I should have probably declared an interest as a Catholic.

Does the fact that religious organisations such as the Catholic Church, many minority churches, and many other churches, conduct marriages that are both religious and civil, make the religious organisation a hybrid public authority? The answer to this question may well be “yes”, because religious organisations perform a public function when conducting civil marriages. Jack Straw, when he was Home Secretary and the Minister presenting the Human Rights Bill in 1998, said in the House of Commons:

“There was a time when one could get married only in church but, these days, marriage is a matter of civil law—it is the exercise of a public right. The Churches are standing in the stead of the state in arranging the ceremony of marriage, which is recognised not only in canon law, but in civil law. In that instance, the Church is performing a function not only for itself, but for civil society”.—[Official Report, Commons, 20/5/98; col. 1017-18]

The Joint Committee on Human Rights makes recommendations on these matters at paragraphs 57 and 58, noting the clear disagreement in evidence to the Committee regarding whether this is a public function. The committee states:

“We believe that the solemnisation of legally-binding marriage by any religious organisation under the provisions of the Marriage Act 1949 may be a public function”.

This could render a religious organisation’s decision not to opt in to conducting same-sex marriages challengeable under the Equality Act 2010 on the grounds that the decision constitutes a public function. This argument is strengthened by Clause 11(1), which provides:

“In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples”.

What is more, because the discretion to opt in in Clause 2(1) will be a statutory discretion, the likelihood that the discretion will be regarded as a public function is significantly increased.

The Secretary of State responded to this concern by saying:

“In our view, the decision to opt-in or not is not a public function – it is not a function of a public nature. The fact that it would enable a religious organization subsequently to undertake a function that is arguably of a public nature (ie the legal solemnization of same sex marriages) does not make any conduct prior to that also a public function”.

In the Public Bill Committee the responsible Minister stated that a decision whether to opt in or not is a public function under Section 29 of the Equality Act. He stated that,

“a religious organisation’s decision whether to opt into conducting same-sex marriages is neither a service to the public or a section of the public, nor a public function”.—[

Official Report,

Commons, Marriage (Same Sex Couple) Bill Committee, 5/3/13; col. 348.]

That assurance is welcome. It is not clear on the face of the Bill. Should a dispute arise before a court of law, a ministerial Statement provides no guarantee that a court will not find that a religious organisation has exercised a public function in deciding not to opt in under Clause 2(1); indeed, what the courts may consider to constitute a public function is not altogether certain. Without this amendment, a risk will remain that religious organisations that conduct legally recognised opposite-sex marriages could be regarded as exercising a public function in deciding whether or not to opt in.

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The second reason is that religious organisations will be at risk of legal action under the Human Rights Act and/or by way of judicial review, on the grounds that exercising the discretion not to opt in could involve a public function. If it is genuinely the Government’s intention that religious organisations should not face legal action on the ground that they perform a public function when exercising their discretion under Clause 2(1), why not say so on the face of the Bill?

The Government have argued that making a specific statement on the face of the Bill that religious authorities are not, for these purposes, exercising public functions, would be unhelpfully confusing. The Secretary of State has written to the Roman Catholic Church, saying:

“To make a specific statement of the sort you have requested might … risk creating doubt about whether other decisions made by religious organisations are also public functions”.

With respect, this response is unconvincing. As we have seen, there is already uncertainty about which decisions are public functions. The proposed new clause would introduce a degree of clarity in one area of activity, and that can hardly be regarded as unhelpful. A risk, possibly a significant risk, has been identified. Even if litigation against a religious organisation may ultimately be successfully resisted, that will be so only after the organisation has incurred costs. Religious organisations should not be exposed to such costs, particularly if they are not public bodies, as the Government assert. The explicit protection provided in the amendment is clearly needed. I beg to move.

Lord Singh of Wimbledon: My Lords, I shall speak in favour of Amendment 13. As was mentioned on Monday and has been mentioned today, the public sector equality duty rightly requires public authorities to eliminate discrimination, work for equality of opportunity and foster good relations. It is a welcome measure that makes ours a fairer society.

However, we all know that those in authority can, and often do, misuse their authority to intimidate or bully others in employment or those who approach them for goods and services. As Shakespeare and Dickens observed, office can be intoxicating, particularly if you feel that you are working for the greater good. It can lead to a messianic zeal to convert others to your way of thinking. There is a real danger that if this legislation comes into force, some will use it to try to convert those who believe in traditional marriage to their way of thinking. I believe that the amendment is necessary to draw attention to and protect sincerely held beliefs that harm no one—beliefs that will with hindsight be seen as having important implications for family cohesion and the well-being of children. Clarity of the law benefits everyone; lack of clarity benefits only the lawyers.

Lord Hylton: I shall speak to Amendment 17. I thank the noble Baroness, Lady Berridge, for adding her name to it. I hope that I can be fairly brief. Despite assurances and the amendments made by the Minister in Committee and on Report in the other place, I believe that there is still uncertainty about the meaning of compulsion and the word “compelled”. The amendment is designed to remove that uncertainty. It aims to make things clear, and thus protect religious

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organisations and their members from all legal penalties. It would prevent public authorities treating such organisations less favourably if they decide not to opt in. For example, in some sphere completely unconnected and separate from marriage—such as the provision of a youth club or a night shelter—public authorities would be acting ultra vires if they penalised religious bodies for not opting in, and thus co-operating with the Bill when it becomes law.

It is important that such assurances should be plain in the Bill. My amendment tends to consolidate and reinforce the Government’s quadruple lock. I urge the Minister to take away all three amendments in this group to see whether they can result in improved amendments on Report.

4.45 pm

Lord Lester of Herne Hill: My Lords, I declare an interest because I, too, was a member of the Joint Committee on Human Rights and had the great misfortune to find myself in a completely opposite place from the noble Baroness, Lady O’Loan, as she knows. During the 10 years I have been on that committee, I have never before had such an experience, where we were totally unable to secure a totally common position. Unlike previous committees, we decided not to take a vote, but to produce a compromise document. I did so in the spirit of conciliation and compromise, but I have to say that I do not agree with the views expressed by the committee in some of its parts.

I also do not agree with the very detailed speech made by the noble Baroness, Lady O’Loan. That would be quite impossible in a debate of this kind, before a body of people who have the great fortune not to be lawyers, judges, experts on the Equality Act or experts on the Marriage Act 1949, and who do not really understand the argument that the Catholic Church deployed and which has been deployed before us today.

I do not propose to answer that with the seriousness that it requires and I advise my noble and learned friend who is replying also, perhaps, not to answer every single point today. A sensible outcome of this might be to give a rebuttal in writing before Report stage on some of the detail. In my view, none of the amendments is necessary; all would create uncertainty and obscurity. The approach adopted by the church reminds me of a curious kind of person who goes around wearing trousers with not just one belt, not just two belts, not just—as in the case of this Bill—four belts, but also with a pair of braces. It is completely unnecessary.

I totally agree with the Government’s legal analysis, as expressed by the Minister in her evidence to us and in writing. On these issues, the Equality Act is quite clear. Of course, you can never prevent people bringing challenges in courts on any basis whatever; that is true of all legislation. I think that if these amendments were carried, it would create great uncertainty.

The document that is being discussed in the dinner hour, produced by the Office of the Parliamentary Counsel, When Laws Become too Complex, states:

“Good law is necessary, effective, clear, coherent and accessible. It is about the content of law, its architecture, its language, and its accessibility—and about the links between those things”.

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That is all there in the architecture, language, content and accessibility of the Equality Act—this is a tribute to the Opposition, whose Act it was, with our support—and in the Explanatory Notes to the Bill. Quite honestly, if these amendments were accepted, it would create great uncertainty and damage the object of the Bill.

Baroness Berridge: My Lords, I rise to speak to Amendments 17 and 18, which are in my name. Although they have both been given the heading, “Meaning of ‘compelled’”, each raises distinct points. First, I wish to state my appreciation that the Government are keen to listen to concerns over the current drafting of the religious freedom protections in the Bill. The Secretary of State said in the other place that she,

“would never introduce a Bill that encroaches or threatens religious freedoms”.—[

Official Report

, Commons, 11/12/12; col. 157.]

The Government’s impact assessment helpfully outlined that the Bill should,

“ensure that protections are in place for religious bodies who do not want to perform same-sex marriages, not just from successful legal claims, but from the threat of litigation”.

I am grateful for the Government’s stated intentions but put my name to both these amendments as I believe that the Bill may encroach on such freedoms and that there is a threat of litigation.

I will deal first with Amendment 17. The Government have widely publicised the quadruple locks that supposedly protect religious individuals and organisations. One of those so-called locks is the protection from compulsion, which is supposed to ensure that religious individuals and organisations will not be required, under any circumstances, to conduct same-sex marriages if they object to them. This protection from compulsion is given for two different situations. First, in Clause 2(1), there is a prohibition against compelling any organisation to take the necessary procedural step of opting in, which would enable them to go on to conduct the actual ceremonies. Secondly, in Clause 2(2), there is a prohibition against compelling any person to “conduct” or “participate in” the same-sex marriage ceremony. At first sight, the lock appears comprehensive and wide-ranging, and the Government would have us believe that this is so. However, in reality, the lock is very narrow in scope because there is absolutely no definition in the Bill of “compelled”. That omission creates uncertainty and possibly limits the scope of protection offered by the clause.

This concern was recognised by the Joint Committee on Human Rights, of which I am a member, in its recent report on the Bill. The report is perhaps interesting in that it is unanimous, despite members of the committee holding different views on the principle of the Bill. Paragraph 69 recommends that the Government reconsider the issue,

“as to whether religious organisations”—

or people—

“may suffer some form of detriment as a result of their position on same sex marriage in a number of contexts which fall outside the scope of the Bill”.

Such reconsideration would, in my view, include considering whether to bring forward amendments such as those that we see today.

The new clause proposed in Amendment 17 would clarify the meaning of “compelled” for the purposes of Clause 2 and thus ensure that the lock provides the

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breadth of intended protection. The need for clarification was made more evident by the Minister during the Public Bill Committee, when he said that the meaning of “compelled” was,

“absolutely not borrowed from the Matrimonial Causes Act”.—[

Official Report

, Commons, Marriage (Same Sex Couples) Bill Committee, 28/2/13; col. 280.]

This statement makes it unclear where, if anywhere, the word “compelled” has a legislative precedent. In the limited case law that is available in other contexts, protection from compulsion essentially provides protection only from the imposition of a criminal penalty.

For example, individuals are protected from being compelled to incriminate themselves when giving evidence in court. Clause 2 is therefore likely to protect individuals and organisations from criminal punishment but it is unclear what else individuals and organisations are protected from. The Explanatory Notes state that compulsion,

“would include, but not be limited to, attempts to use criminal or civil law, contractual clauses, or the imposition of any detriment to force a person to carry out such an activity.”

However, Clause 2 as currently drafted does not reflect the Explanatory Notes and may not prevent public bodies treating religious organisations less favourably if they decide not to opt in to the same-sex marriage provisions.

Baroness Knight of Collingtree: I just want to ask my noble friend to look at history and recall the number of times—as I made clear in the earlier debate—promises have been broken with regard to the conscience. Time and again, from the Abortion Act onwards, people have been promised that they would be protected and that their right to a conscience would not be taken away. However, we have watched that happen for the past 50 years. We must look not just at the Bill when it comes to promises, but at this road full of broken promises that has led up to it.

Baroness Berridge: I am grateful to my noble friend for her intervention and I will look back—I am afraid as a newer member of your Lordships’ House—at the history to which she refers.

The decisions where an organisation can be treated less favourably can be in situations where they are refused contracts, denied the use of public halls or denied funding. The Minister reiterated the narrowness of the behaviour covered in the Bill in the Public Bill Committee when he said that Clause 2 would have,

“the effect of preventing any type of conduct that would have the effect of forcing a person to do something protected under that clause”.—[

Official Report

, Commons, Marriage (Same Sex Couples) Bill Committee, 28/2/13; col. 280.]

Therefore, as long as the local authority is merely registering disapproval of the organisation’s views, or penalising the organisation, but is not attempting to compel it to opt-in to provide same-sex marriage, then the religious organisation has no protection under the Bill as currently drafted.

However, the Government’s response is that the religious group need not worry as such detrimental behaviour falling short of forcing it to do anything would be unlawful discrimination by the local authority and the charity would have a remedy for this under

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the Equality Act. As I mentioned at Second Reading, expecting a charity to swap money, potentially from food banks, to legal fees to fight legal claims is not consistent with the state’s duty, performed in this instance by the local authority, to promote a plural civic square. Such funding reallocation is not, of course, in line with any growth in the big society and is diametrically opposed to the impact assessment of the Government which is the aim of removing the threat of litigation. The impact assessment means that the Government do not want religious groups being defendants in proceedings, so why are they advising the same religious groups to be the claimants in discrimination proceedings?

Just on a straightforward dictionary definition of compulsion, such unfavourable treatment as I have outlined is not, despite the Minister’s comments, covered. It is vital that the meaning of “compelled” is clarified in the Bill because the concept of compulsion is central to the Bill’s religious freedom protections and is not as readily understood as the Government assert.

In Committee on Monday there were many assertions about the effectiveness of the Equality Act, ranging from “foolproof” by the noble Lord, Lord Lester, to “shot through” by the noble and right reverend Lord, Lord Carey. This amendment would remove the need for a small charity to incur the expense of legal proceedings to establish that such detrimental behaviour is discrimination under the Equality Act. Surely the avoidance of litigation is a good thing.

This new clause will provide the necessary clarification and thus protect religious organisations from all legal penalties, criminal and civil, if they decide not to opt-in. It will ensure that religious organisations do not suffer at the hands of public authorities by making it clear that public authorities will be acting ultra vires if they penalise religious organisations for not opting-in. The onus is properly placed on the state not to act to the religious group’s detriment and not on the religious group to take action against the state. The new clause enshrines in statute the Government’s assurance that religious organisations will not be penalised in any circumstances for deciding not to opt-in to providing same-sex marriages if they object to them. Without further clarification in the Bill, the lock may not turn out to be much of a lock at all.

In relation to Amendment 18, it may be helpful if I turn from locks to keys. The key to a claim under the Human Rights Act, the Equality Act or judicial review is that the decision or action carried out by the religious organisation is clarified as a public function. Amendment 18 is necessary because, without it, religious organisations will be at risk of legal action on the ground that the decision to opt-in may be held to constitute a public function. As the noble Baroness, Lady O’Loan, has already explained, ministers in religious organisations outside of the established church can be authorised persons and thus conduct marriage ceremonies that are both religious and legally recognised. Such ministers, therefore, perform a public function. As the noble Baroness, Lady O’Loan, outlined, that was the understanding of the right honourable Jack Straw when he introduced the Human Rights Act and spoke in the other place. However, in the context of the established church, this was also the view obiter of

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four Supreme Court judges in the case of Aston Cantlow v Wallbank. In delivering his judgment, Lord Hobhouse said:

“Thus the priest ministering in the parish may have responsibilities that are certainly not public, such as the supervision of the liturgies used or advising about doctrine, but may have other responsibilities which are of a public nature, such as a responsibility for marriages and burials and the keeping of registers”.

5 pm

In a recent letter to the Catholic Bishops’ Conference of England and Wales, the Secretary of State stated that:

“The parish priest, if he is also acting as the authorised person, is only performing a public function when he registers the marriage, not when he is conducting the liturgy. These are separate functions and we do not believe that the courts would have difficulty in finding them to be so”.

With respect, I disagree, and so do the lawyers. I put on record my thanks to Professor Chris McCrudden of Blackstone Chambers, a former professor of human rights law from Oxford, whose advice has been given to the Catholic Bishops’ Conference. I think that two or three comments will highlight the fallacy in the Government’s argument.

Only marriages valid under UK law, not merely religious marriages, should be entered on the register by a priest or an imam as the authorised person. If the priest conducted a marriage recognised under UK law during the liturgy, surely that was also the performance of a public function? Why does government guidance to authorised persons given in December 2012 outline the contracting and declaratory words that must be exchanged in the ceremony? It is because this is not just liturgy; it has to contain certain promises to be a marriage, and the authorised person performs the role for the state when he or she oversees and witnesses that these words are in fact included in the ceremony. Finally, if a spouse were to die after the ceremony but before the signing of the register, they are married under UK law. It is not merely the registering of the marriage which is the public function.

Perhaps the confusion has arisen for the Government in the name “registrar” in this context. When the state registrar registers births and deaths, they record merely the fact that an event has occurred, but their role in the marriage context is different. They witness and oversee the formation of the marriage, then later record the fact that the marriage has happened in the register. It is rather like the school classroom: the register is taken and that is recording merely the reality that you are physically present in the classroom. The religious and civil functions are not as easily separable as the Secretary of State would have us believe. A court is highly likely to find that the religious organisation is a hybrid body when officiating in marriage ceremonies.

In addition, the Joint Committee on Human Rights concluded that,

“the solemnisation of legally-binding marriage by any religious organisation under the provisions of the Marriage Act 1949 may be a public function”.

Given that it is highly likely that a religious minister conducting a legally recognised heterosexual marriage will be held to be exercising a public function, of course conducting same-sex marriages will also be a public function. So it is arguable that when religious

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organisations make the decision to move from performing only heterosexual marriages to performing same-sex marriages as well, that decision could also be a public function.

Lord Alli: I am a little confused again. Is the noble Baroness saying that the quadruple lock is not secure? Unless I am absolutely wrong, I understood the position of the Church of England to be that the quadruple lock is robust and secure. I am not sure what she is arguing.

Baroness Berridge: I thank the noble Lord for that helpful intervention. That has been the Government’s position looking at the established church but there is a different situation for those who are authorised people. Generally in our law, you can get married at the registry office, or at the hotel with the registrar there, or you can marry without any intervention of the state when the banns are read in the Anglican Church. In addition, there is a whole group of people and religious organisations—for example, the Catholic Church and Pentecostal churches—which do those marriages as authorised people. They can decide whether to opt in to do this. First, that places them in a different legal context for conducting marriages. Secondly, the Anglican Church can make no decision at all to opt in; in the Bill it is not allowed to. These groups in the middle, many of which are in the ethnic minority community, are in a very different legal position from the Anglican Church.

The risk that religious organisations face when they move from conducting only heterosexual marriages to also conducting same-sex marriages as a public function is exacerbated by the fact that the decision to opt in is not like a decision by a private members’ club where you can look at the rule book and say that the decision was made based on the rules. The discretion to make a decision is in this statute which lends to the argument that it is a public discretion that these organisations would be acting on. The Joint Committee on Human Rights did not come to a firm conclusion on this matter because of a divergence of opinion. However, I believe that helps the case for this amendment. The divergence of opinion makes this amendment necessary because the basis of litigation is a divergence of legal opinion. The Government need to give some reassurance to these religious organisations because without this amendment the lock provided in Clause 1 could be ineffective.

Lord Alli: I apologise again to the noble Baroness. I am trying to get to the core of the mischief here and I am just not getting there. Is she saying that Church of England registrars are not covered by this and that this is for the general pool of registrars who are conducting the registration?

Baroness Berridge: If you attend a Catholic church, the authorised person is the registrar. No one comes from the local authority’s office. That person performs that public function and the registry office is not involved. It is the obligation of the priest to fill out the register and to return it quarterly to the local authority’s office. No local authority official is present at all. Interestingly, the Catholic Church expressed concern

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to the Joint Committee on Human Rights—I have heard this concern from other religious organisations—that unless we get clarity in the Bill religious organisations may consider not conducting these marriages at all because they believe the only way to protect themselves is to not be the registrar. That, of course, would have resource implications for the Government.

I am asking the Government to throw away the public function key—the key to actions under the Equality Act, the Human Rights Act and judicial review—and avoid this threat of litigation which would discriminate against some of the nation’s smallest charities. The Joint Committee on Human Rights has urged the Government to consider formulating a new clause to provide additional reassurance to any religious ministers or office holders who perform the dual function of officiating at a marriage in a spiritual capacity as well as performing the public function of the registrar under the Marriage Act 1949.

We have ended up in a situation, by responding quite rightly to the concerns of the established Church, whereby other Christian denominations and other faith groups believe that they do not now have the same level of protection as the Church of England and the Church of Wales. It is important that other religious organisations and individual ministers of other faith groups have the same level of protection as the Government have now afforded in this Bill to the Church of England and the Church of Wales.

Lord Deben: I want to try to bring two sides together on this issue. I hope people will recognise that I am entirely in favour of this legislation and I am a practising Catholic, so I understand exactly what has been said. I have great sympathy with what my noble friend Lord Lester has said about how this might be approached by the Government. Let me say two things to the Minister. First, there is a history here of promises made and broken, as my noble friend made clear. So even if this is absolutely okay, there is a feeling that it might not be okay and we have to recognise that fear.

Secondly, there is also a history of campaigning people who seek all the time to push their point further than is reasonable. For example, campaigners have recently argued that we should withdraw aid from youth clubs run by organisations that take a strong view about homosexual practice. That is a campaign that people have suggested—that if you take that view you should not get any help from the state for your youth club. I say to my noble friend that I understand the fears that people have on this issue.

The position of the Catholic Church is particularly difficult because we have a very odd and rather noble system in Britain that has come out of our history: to ensure that it was no longer true that only Anglicans could marry, we extended it to other people via the mechanism of enabling approved persons to act as registrars. There may be an issue here and it may be that the fears that people have are correct. However, I also recognise what my noble friend Lord Lester has said: sometimes, when we try to correct this, those of us who are not lawyers—and I am proud not to be a lawyer—add things that make it worse. That is the danger here. If we are not careful we will have a sort of argument of the deaf, with one side saying, “We want

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to do what you want, but if we do it that way we will actually make it more difficult for you”, and the other side saying, “You may say that but we’re still worried about it”.

I ask my noble friend to recognise that even those of us who are not just marginally but very much in favour of this legislation are concerned that we should be very careful about the nature of toleration. Unfortunately, “toleration” has become a very curious word. People talk about toleration as if it means tolerating views that you happen to agree with. One of the things that we have to do is produce legislation that enables a tolerant society to accept that some people have very different views. That is not helped, if I may say so, by some of the language used by people opposed to the Bill. Some disgraceful statements have been made by people who have really not come to terms with the fact that we live in a society that should be inclusive and accepting. The churches have sometimes spoken intolerably and intolerantly. However, the truth is that there is intolerableness and intolerance on the other side as well. I will give way to my noble friend .

Lord Cormack: I agree very much with my noble friend, whom I thank for giving way, but I hope that he was not suggesting that there has been intolerance in the debates in this House. That is something that he would find very hard to prove.

Lord Deben: I listened to the whole debate almost without exception, and there were one or two sentences that I think ought to have been withdrawn by the people who made them because there was clearly a misunderstanding about the nature of what we are talking about. However, I do not in any way suggest that my noble friend spoke in that way. I am merely saying that there is a great need at this moment to make people relearn what toleration is. Toleration is accepting the views of people with whom you disagree fundamentally and totally. We need to do that in our society.

Let me be clear: I think the amendments are unnecessary, I do not see the legal basis for them and I am not worried about this issue. However, some people are worried about it. There is another word that I would like to bring into this: “courtesy”. There is a great need in our society for courteousness to other people, and there are people here who are legitimately worried. We need to ensure that there is no reason for them to be worried. I wonder if my noble friend might do the following, which is largely to follow what my noble friend Lord Lester said: not to argue this case because, frankly, a legal case of this sort across the Floor would be unhelpful for all of us, but to go back and produce a document that answers specifically the points that the noble Baroness, Lady O’Loan, has made, so that we know exactly where we are.

If there is a concern, the bit that seems to me to have had some truth about it is the nature of the official person—the point that the noble Lord, Lord Alli, was pursuing. I think he would agree that if the official person gets denominated in a particular way, what we all want in terms of a tolerant society could

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easily be overcast. I wonder if my noble friend might take it away in that way, instead of continuing the legal debate, and then come back with a document, which we might all peruse, and see whether we could not, at least on this, come to a common view across the House.

5.15 pm

Lord Alli: I apologise to the noble Baroness for taking more than my usual length of time to understand the issue. I think I now understand where the issue arises. What worries me is the nature of what the noble Baroness seeks. It seems to me that she wants cast-iron guarantees and, although I am not a lawyer, I assume that we cannot give those in law. Certainly no government Minister, no Member of this House and no Member of the other place can give cast-iron guarantees that any religious organisation will not be subject to vexatious legal actions.

I agree with the noble Lord, Lord Deben, that there is a whole range of people thinking of ways to progress their own politics through the courts, and when they have not succeeded either at the ballot box or in Parliament, they continue to do so. I can put it no better than the noble Lord, Lord Lester, in Monday’s Committee in his rather complex and detailed legal argument. He said:

“The fact that idiots in the public sector or private sector misunderstand it is no reason for us to have to amend this Bill to deal with such idiots”.—[Official Report, 17/6/13; col. 69.]

The question is not whether these people will take up a nuisance case; that is a matter for them in a democratic society. They must have the right to take up that nuisance case. I like it no more than anyone else, but they have that right in a democracy. The clear intention of this House and of the other place can be in no doubt. We have specifically created a process to opt in so as to protect religious organisations. The Minister in the Commons made it quite clear during the Commons Committee stage when he said:

“The imposition of any penalties on or subsequent unfavourable treatment of a religious organisation or individual in order to compel that organisation to opt in to same-sex marriage is already unlawful under the Bill”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee; 28/2/13; col. 280.]

The locks in this Bill are strong and robust. The intention of this House has to be beyond question. I believe those locks are secure, and I am not sure that we can help the noble Baroness with an assurance that there will be no legal action over these cases.

Baroness Berridge: I will respond to the noble Lord, Lord Alli. I am not seeking a cast-iron guarantee. I have previously been a lawyer, so I know how people can look at us, but there seems to be a case for some sensible, straightforward language in the Bill that could avoid—as we have put it—a situation in which small charities have to take discrimination claims to deal with that kind of behaviour, and it would provide that reassurance.

Lord Pannick: My Lords, I entirely understand the concerns that have been expressed by the noble Baronesses, Lady Berridge and Lady O’Loan, and others. My view

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is that those concerns are unwarranted. As I understand it, three issues have been raised. The first is the public sector equality duty, under Section 149 of the Equality Act, which requires:

“A public authority must, in the exercise of its functions, have due regard”,

to equality considerations. “Due regard” must require primary consideration to be given to other legislation—in particular, the legislation before us. I regard it as unlikely in the extreme that this public sector equality duty could impose a duty or even confer a power on a public authority to penalise a person or a body for declining to be involved in same-sex marriage, when the whole point of this legislation, and a fundamental feature of it, is that a person should not be compelled to do so for religious reasons. It would be extraordinary for a court to rely on a public sector equality duty.

The second concern was about Clause 2(6) and the exclusion of public functions, and that this does not cover the decision whether to opt in. There is a good reason for that. In very simple terms, marrying a person may well be a public function, as Clause 2(6) recognises. However, a decision to opt in or not is not the exercise of a public function. It is not, of itself, a service to the public but a decision whether to rely upon and maintain a statutory immunity given by this legislation. Any argument to the contrary would conflict with the content and purposes of this legislation, and so is extremely unlikely to be accepted.

The third concern that we are dealing with in this group of amendments is the suggestion that the legislation should clarify the meaning of “compulsion” in Clause 2(1). For a public authority to impose a detriment on a person for refusing to undertake an opt-in activity or to refrain from undertaking an opt-out activity would plainly amount to compulsion in this context. The reason for that is very simple: it would impose legal pressure on that person when one of the central purposes of this legislation is to protect religious freedom.

I entirely understand—I hope courteously—noble Lords’ concerns. The noble Lord, Lord Deben, rightly reminds us that we should be courteous about this, but let us be not just courteous but realistic about the risks and concerns that have been expressed.

Lord Cormack: My Lords, I courteously recognise the forensic skills and deep legal knowledge of the noble Lord, Lord Pannick, and of my noble friend Lord Lester. However, my noble friend Lord Deben mentioned times in the past when assurances were given, in good faith, from Dispatch Boxes in both Houses, but have not measured up. Therefore, the recognition of the noble Lord, Lord Pannick, of the validity of the concern of the noble Baroness, Lady O’Loan, and my noble friend Lady Berridge should be taken a step further. I should like to make a suggestion that builds upon what the noble Lord, Lord Deben, said. He and I do not agree on the fundamentals of the Bill, but he made a conciliatory and helpful speech this afternoon and we should thank him for that.

I inferred, from the speeches of the noble Baroness, Lady O’Loan, and my noble friend Lady Berridge that neither is likely to push this to a Division today. I hope that is the case. As I said on Monday, this House is at

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its best when it has long debates in Committee and votes on Report, when there has been proper opportunity to reflect on what has been said. I shall not be able to be present later today, for which I apologise. I hope that after this, when my noble friend Lady Stowell responds to this debate, she will undertake not only to reflect most carefully on what has been said by the noble Baroness, Lady O’Loan, and my noble friend Lady Berridge, but to call them in, with others who share their concerns, to ensure that on Report we will be able to make it plain in the Bill, beyond any shadow of a doubt, that the assurances that have been given will not only be honoured but be capable of being honoured.

I withdrew an amendment on Monday night following assurances from the noble Baroness, Lady Royall, and my noble friend Lady Stowell, when I sought to add Roman Catholic priests to the definition of the clergy. I did so for many of the same reasons advanced by my noble friend Lady Berridge. There is concern—real worry and anxiety—in this House and in the country. The Bill will make its way to the statute book; of that I have no doubt. I regret that but, as a good democrat, I accept it. However, I want it to give the strongest possible protection to those who in all conscience cannot accept the fundamental statement that same-sex marriage is the same as marriage between a man and a woman. I urge my noble friend, when she comes to wind up this debate—

Lord Lester of Herne Hill: I hope I am not interrupting at the wrong moment, but will my noble friend agree that we have to think carefully about the role of judges and the role of the legislature? It is the legislature’s role to make the law and the judges’ role to interpret it. Having heard, for example, the noble Lord, Lord Pannick, with whom I entirely agree, I cannot imagine—I do not know what these breaches of faith in the past amount to; no one has explained what they are talking about—that the independent judiciary would not interpret the legislation as it is now drafted in accordance with its object and purpose. Were there to be any breach of assurances by Ministers, under the Pepper v Hart regime that could, if necessary, be brought to the attention of the courts and they would take that into account. Should we not, when we are making laws, try to make them clear, but at the same time recognise that in the end they are to be interpreted by a wise, independent, enlightened judiciary?

Lord Cormack: Of course, but it is not unknown for a wise, enlightened, independent judiciary, which I strongly defend, to conclude that Parliament has not indeed been clear, and therefore it is very important that Parliament should be clear. We talked about locks, triple locks and quadruple locks. I think that there are very few locks that my noble friend Lord Lester and the noble Lord, Lord Pannick, are not capable of unpicking. We want to bear that in mind. It is very important indeed that this Bill, when it passes on to the statute book, has the full guarantees which I am sure my noble friend, in all honesty, wishes it to have.

To return to the point that I was making when my noble friend Lord Lester so courteously interrupted me, I hope that my noble friend, when she comes to

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wind up, will not only reflect on the concerns, and undertake further to reflect after this debate, but that she will give an opportunity for the noble Baroness, Lady O’Loan, my noble friend Lady Berridge and others to meet her and her officials to discuss these points in detail.

Baroness Royall of Blaisdon: My Lords, although this has been an immensely courteous debate, I would start by wholeheartedly agreeing with the statement from the noble Lord, Lord Deben, about the need for tolerance and respect for the views of people with whom we fundamentally disagree, both inside and outside this House. It is important that all sides of the House recognise that.

The noble Lord, Lord Cormack, quite rightly said that it is important for Parliament to be clear so that the judges can take a view as regards what happens in the courts. From this side of the House we believe that the Bill as drafted is absolutely clear, including the meaning of the word “compelled” as referred to in Amendment 17. We believe that it would be readily understood and interpreted by the courts as such and that it needs no specific definition in this context. As my noble friend Lord Alli said, the Minister in the other place has given some helpful assurances about the Government’s intention regarding protection against compulsion, which I am sure the noble Lord will reinforce today, as well as clarifying that the definition has not been borrowed from the Matrimonial Causes Act.

Clarity is important but, as I said, there is already clarity in the Bill. That is not to say that I dismiss the concerns expressed around the Committee today. I am sure that the Minister will be able perhaps to assuage those concerns today but, if not, that he will come back on Report and, in the mean time, perhaps put something in writing. The suggestion made by the noble Lord, Lord Lester, that there should be something substantive before Report was a good one.

On Amendments 13 and 18, I say to the noble Baroness, Lady O’Loan, that I was confused about whether she was speaking on behalf of the Joint Committee on Human Rights. It is clear from the exchanges across the Chamber that there were disparities of view in the committee.

5.30 pm

Baroness O’Loan: My Lords, for the sake of clarification, I did not speak on behalf of the committee but declared my membership, as I thought appropriate.

Baroness Royall of Blaisdon: I beg the noble Baroness’s pardon. It is interesting that both noble Baronesses, and the noble Lord, are members of the committee.

We are clear that Amendments 13 and 18 are unnecessary. We believe that they would add confusion to the law. As the noble Baroness said, the public sector equality duty is a duty to have “due regard”, not a duty to act. The due regard must balance discrimination on the grounds of sexual orientation equally with discrimination on the grounds of religious belief. It would not permit a public body, even with the intention of eliminating discrimination on grounds of sexual orientation, lawfully to treat a religious organisation

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less favourably on account of its beliefs about same-sex marriage. Furthermore, the authority would be in breach of the clear protections in the Bill that will permit religious organisations to remain outside the system of same-sex marriages.

As the noble Lord, Lord Lester, said, the Equality Act 2010 is a carefully crafted piece of legislation, thanks to many noble Lords present in the Chamber today. It established a balance between protection against discrimination on grounds of religion or belief and protection against discrimination on grounds of sexual orientation. To single out one belief—that marriage should be between a man and a woman—risks undermining the protection afforded to religion as a whole, with its entirety of beliefs and practices, because it sets up this one belief as requiring explicit protection. Therefore, Amendment 13—and Amendment 18, which seeks to achieve a similar effect—would prove unhelpful and unnecessary.

The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, I will start by thanking the noble Baroness, Lady O’Loan, my noble friend Lady Berridge, and the noble Lords, Lord Singh and Lord Hylton, for bringing the amendments before your Lordships’ House in Committee. It has given us an opportunity for a very useful debate, which has been conducted in a very courteous fashion. It was clear that genuine concerns were being expressed. What is interesting is that there is no distinction anywhere in the debate between the objectives of what noble Lords wish to see. It is very clear that religious freedom, including the rights of religious organisations that do not wish to opt in, should be secured.

I will take the advice proffered by my noble friend Lord Lester and not reply to every point. However, it is important that I reply to some of them. My noble friend referred to Pepper v Hart, but we cannot get to that stage if we do not in fact say anything. I will also take up his suggestion, echoed by my noble friend Lord Deben, of putting in written form the points that were raised and my responses.

Amendment 13 seeks to ensure that no religious organisation or individual is penalised by a public authority simply because it has exercised its rights under the Bill to not offer or facilitate same-sex marriages, or because it has expressed the view that marriage should be only between a man and a woman. My noble friend Lady Berridge indicated that there was an anxiety that other religious denominations wished to have the same kind of safeguard and security as has been afforded to the Church of England and the Church in Wales. As I indicated to my noble friend Lord Cormack when he moved an amendment on Monday, there is a historic reason for the distinction for the Church of England and the Church in Wales: namely, the duty on priests in these churches to marry people in their parish. This duty is not incumbent on priests, ministers or imams in other religions and faiths.

The specific context of this amendment is Section 149 of the Equality Act 2010, which places a duty on public authorities to,

“have due regard to the need to … eliminate discrimination … advance equality of opportunity … and … foster good relations between persons who”,

hold or do not hold a particular protected characteristic.

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It is absolutely right—I think that this has been echoed on all sides of your Lordships’ House—that religious organisations and individuals should be free to express their beliefs about same-sex marriage, and to make the decisions protected by this Bill about whether to conduct or participate in same-sex marriages, without fear of repercussion or penalty of any kind. I hope I can clarify for your Lordships that, as the law stands, a public authority would in fact be acting unlawfully if it attempted to rely on the public sector equality duty to treat a religious organisation adversely simply because that organisation did not wish to conduct same-sex marriages, as is explicitly allowed under this Bill.

A policy of penalising people or organisations which have religious or philosophical beliefs with which a public authority disagrees would in itself be discriminatory. One element of the duty is to have due regard to the need to eliminate unlawful discrimination. It is not meant to be itself an instrument to discriminate unlawfully. For a local authority, for example, to withdraw meeting facilities from a church because it decided not to offer same-sex marriage would be likely to be unlawful direct discrimination because of religion or belief. We believe that it would be subject to successful legal challenge, a point made by the noble Lord, Lord Pannick.

The noble Baroness, Lady O’Loan, commented that there is nothing in the Bill which states that it would be unlawful for a public authority to punish a religious organisation which had not opted in. The courts have considered the question of whether a local authority can use equality legislation to punish an organisation with views of which it disapproves. In the case of Wheeler v Leicester City Council, the council banned a rugby club from using its ground after some of its members attended a tour of South Africa. It used the then Race Relations Act to justify its decision. The case went to the House of Lords, which held that the decision was irrational and that it was an improper purpose, because the members of the rugby club were legally entitled to go on a tour, just as an organisation is entitled not to opt in. I believe that the reasoning in that case to have a clear read-over in this particular case. Similarly, a local authority could not have a policy of refusing to promote staff who have expressed a belief that marriage should only be between—

Baroness Knight of Collingtree: On that very point, why is it that registrars who from conscience, from their heart and beliefs, will not conduct this kind of marriage have been sacked?

Lord Wallace of Tankerness: My Lords, obviously they cannot yet have been sacked because of this legislation, because it is not yet an Act. As my noble friend may recall, we debated the position of registrars at some length on Monday evening. The explanation given then was that registrars perform a public function. As was pointed out by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, judges, who also exercise a public function, are not allowed to pick and choose which cases come before them. Similarly, a local authority could not have a policy of refusing to promote staff who have expressed a belief that marriage should only be between a man and a woman. This would be unlawful direct discrimination, and the equality

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duty requires public authorities to have due regard to the need to eliminate such discrimination. The equality duty cannot make lawful an otherwise unlawful or oppressive act.

My noble friend Lady Berridge quoted the impact assessment regarding the threat of litigation. It is of course not possible completely to rule out any possibility of somebody bringing legal proceedings. I think it was the noble Lord, Lord Alli, who pointed out—and as my noble friend Lord Lester quoted on Monday—some authorities do idiotic things. No legislation can provide for every eventuality. However, we believe that the Bill minimises this possibility as far as possible by making it absolutely explicit that those relying on Clause 2 are permitted to refuse to be involved in solemnising same-sex marriages. There would indeed be no cause of action. We believe that an application for strike-out could be made early in any proceedings, as there would be no reasonable prospect of success in such claims. The noble Baroness, Lady O’Loan, said that the inclusion of Clause 2(5) and (6) and the protection they provide undermine the protection which we believe is already in place with regard to Section 149 of the Equality Act 2010.

The amendments to the Equality Act 2010 in Clause 2 provide that it is not unlawful discrimination to refuse to carry out acts specified in Clause 2(2). These specific exceptions are provided to ensure that the Equality Act is not in conflict with the protection provided in Clause 2, so that the law is clear and consistent. This aspect of the Equality Act is the only area of legislation which requires this explicit treatment, as otherwise it would conflict with Clause 2.

We should also remember, as the noble Lord, Lord Pannick, indicated, that the equality duty is a duty only to have regard. It is not in itself a duty to act, but rather a duty to think. It does not require that particular action is taken or that any specific objective or outcome is achieved. As the noble Lord said, “having regard” also means that we have to have regard to primary legislation, such as what would be in this Act if the Bill is enacted. I hear what my noble friend Lady Knight says about concerns that sometimes guarantees do not always seem to follow through many years later. However, what we are dealing with here—I think that the noble Lord, Lord Pannick, made this point—is a fundamental part of the architecture of this legislation: namely, that there should be religious freedom not to opt in. Therefore, it would be unthinkable for a court not to have regard to a fundamental piece of the legislation we are passing. I certainly hear what the noble Baroness—

Lord Lester of Herne Hill: Does my noble and learned friend also agree that the Human Rights Act compels this legislation to be construed compatibly with religious freedom as defined in the European convention?

Lord Wallace of Tankerness: Indeed, my noble friend is right. Article 9 of the European Convention on Human Rights gives that right to freedom of religious belief and expression. The noble Baroness, Lady O’Loan, said that sometimes the courts are reluctant to second-guess public authorities. It is highly unlikely that the court would do something which is in direct contradiction

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of what Parliament has clearly expressed and intended not just in the Bill but in all the statements that have been made by Ministers and, indeed, by almost everyone who has participated in these debates.

It is also important to note—again, this point was made by my noble friend Lord Lester and picked up by my noble friend Lord Deben—that amendments can sometimes have unintended and adverse consequences. I know that is certainly not the intention of the noble Baroness who moved this amendment, but the equality duty applies to and protects equally various protected characteristics, including religion or belief so a public authority has to bear in mind the impact of its policies on people holding different religious or philosophical beliefs, such as the belief that marriage should be only between a man and a woman. If, as the amendment proposes, a public authority is prevented from having any regard to individuals’ or organisations’ beliefs about same-sex marriage, it would be unable to consider how its own decisions could potentially discriminate against, or otherwise disadvantage, people who believe that marriage should be only between a man and a woman. That would remove an important protection for people who hold such a belief. I know that this is not what the noble Baroness intends but it illustrates the fact that when you try to solve one problem you can create another.

As I say, I recognise the concerns that some public bodies might be overzealous or mistaken in their exercise of the equality duty or misuse it to the detriment of those who do not agree with same-sex marriage. As I have indicated, no Government can give a copper-bottomed guarantee that some public authorities will not act irrationally. It is important that we ensure that public authorities understand their responsibilities under the Equality Act 2010 correctly, and how these relate to beliefs about marriage. With that in mind, the Equality and Human Rights Commission has undertaken to review its guidance for public authorities to ensure that the position is as clear as possible. As I have said, while I appreciate the intention behind this amendment, it is unnecessary and could have adverse consequences quite at odds with its intention.

I turn to Amendment 17. The concept of compulsion is readily understood in its natural meaning, and to subject anyone to any type of detriment or unfavourable treatment because they refuse to participate in any way in religious solemnization of same-sex marriages would clearly be understood as a violation of their legal right under this Bill not to participate. We are therefore confident that Clause 2 provides strong and effective protection to ensure that religious organisations and their representatives cannot be forced to participate in same-sex marriages against their belief. The Explanatory Notes to the Bill set out the position, as quoted by my noble friend Lady Berridge: the concept of compulsion is a broad one, which would include, but not be limited to, attempts to use criminal or civil law, contractual provisions or the imposition of any detriment to force a person to carry out the activities protected in Clause 2. The clause provides no specific remedy, but makes clear that no attempt at such compulsion would be upheld.

Less favourable treatment by a public authority of a person or organisation who does something which the Bill makes clear they are legally entitled to do would,

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in itself, clearly be unlawful and open to judicial review. The imposition of any penalties—civil or criminal —on a religious organisation or representative in order to compel them to opt in, or to participate in, religious solemnisation of same-sex marriages is clearly unlawful under the Bill.

Clause 2 will clearly prevent criminal or civil action being taken against any religious organisation or representatives merely for refusing to undertake acts protected under this clause. This includes, but is not limited to, disciplinary or other action taken in the employment context. In all circumstances a person who has suffered a detriment simply because they have not done one of the acts specified in Clause 2 will be able to rely on the protections in that clause to show that such conduct is unlawful and to obtain a remedy within the context of the particular claim.

5.45 pm

Finally, Amendment 18 is again unnecessary as the Bill already makes clear that the decision to opt in or not is an internal doctrinal decision. It is a matter for the religious organisation involved and—as the noble Lord, Lord Pannick, clearly said—is not a public function. The amendment seems to acknowledge this because, as it says itself, it is drafted for the avoidance of doubt. The activities mentioned Clause 2 (1) are obviously activities which are private in nature, carried out by religious organisations which are of course not public authorities. The Government are confident that no religious organisation or representative could be susceptible to judicial review or challenge under the Human Rights Act 1998 or Equality Act 2010 in this regard.

I know that the noble Baroness, Lady O’Loan, and my noble friend Lady Berridge referred to the Joint Committee on Human Rights. We will give proper consideration to the points raised and respond to the Committee, but we again believe that this is a case where adding words to the Bill might simply increase what there is to argue about, and potentially water down the protection already provided, by casting doubt generally on what functions of a religious organisation are or are not considered to be a public function.

This is made clear if we actually look at the activities which constitute “opt-in activities”. These include decisions by the relevant governing authority of a religious organisation to give written consent for marriages of same-sex couples to take place and an application by such an organisation to the superintendent registrar for the solemnisation of marriages of same-sex couples to take place in a place of worship. These are clearly private functions. If, for example, the Bill were to explain that a decision by a religious organisation to apply to register one of its religious buildings for the solemnisation of same-sex marriages is not a public function, this would raise the question as to whether such an application in respect of opposite-sex marriages is currently a public function. I hope that this again illustrates the law of possible unintended consequences. However, I accept the suggestions that have been helpfully made. We will seek to put together a letter or document to respond to the different points that have been made. If, on receipt of that—

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Lord Cormack: Perhaps I could remind my noble and learned friend of my other suggestion: that detailed conversations should be offered to the noble Baroness, Lady O’Loan, my noble friend Lady Berridge and others on this point.

Lord Wallace of Tankerness: If my noble friend had allowed me to finish the sentence that I had started when he intervened, I would have said that, having received it, those who wish to pursue this matter further in discussion with myself and my noble friend Lady Stowell—

Baroness Royall of Blaisdon: My Lords, I do not wish to be consulted, but I suggest that the document or letter is put into the Library so that it is in the public domain. Otherwise it will not appear in Hansard.

Lord Elton: May I suggest that all those who have taken part in the debate should have a copy sent directly? Could my name be added to that list?

Lord Wallace of Tankerness: My noble friend has taken part in the debate and I usually make it a matter of practice to send a copy to everyone who has taken part. The noble Baroness, Lady Royall, makes a constructive suggestion. I will make sure that it is put in the Library and if, on the basis of the letter and follow-up, it is thought that a discussion would be necessary or wanted, I would certainly be happy to accommodate that. In the light of these comments and the reassurances that we have sought to give, I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness O'Loan: My Lords, I thank noble Lords who took part in this debate. The noble Lords, Lord Lester and Lord Alli, and various other noble Lords have emphasised the need for clarity in legislation. The Bill, as drafted in the House of Commons, is already subject to amendment by the Government. It is clear that there are situations in which law which is drafted in the first instance by draftsmen requires clarification. That is why the House exists.

This particular piece of legislation falls at the interface of a number of different human rights—rights of religion and other rights. That is why it is so difficult for the House. The Bill seems to be based on the assumption that the act of marrying is separate from the act of registering a marriage, and the noble Baroness, Lady Berridge, demonstrated quite clearly that that is not the case. It is one single act. It is that which raises the whole spectre of public function. I raised this issue and specifically asked the Minister at Second Reading about the risk attached to the public function obligations of religious organisations that are in that hybrid position—those other than the Church of England and the Church in Wales. I did not get any answer to that question.

In the context of the Bill, we are looking not only at the acts of marriage but at the unintended consequences of the legislation before your Lordships’ House. They go much further than the act of conducting or permitting the conducting and so on of a marriage. They go to

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the whole remit of public authorities in funding, enabling and resourcing organisations such as youth clubs and schools, and in teachers’ ability to speak freely. We have a number of amendments still to come before the Committee in this context. My amendments would have dealt with some elements of these issues but there are other amendments that relate to them. I put it to the Committee that the issues are not quite as clear as some noble Lords would wish to state.

The fact is that there is a clear distinction in the legislation between the Church of England, the Church in Wales and other churches that solemnise marriage, which is that the Church of England and the Church in Wales are not in a position in which they will decide whether to opt in or out without further legislative process outwith this Parliament. That is what makes the difference and it is why we have the quadruple lock for the Church of England, which is not a sufficient lock for other churches. That is why I have tabled these amendments.

I do not wish to be in any way contentious or to delay the House but I cannot help remembering that the Catholic adoption agencies that have now closed as a consequence of legislation were also argued for on the basis of religious freedom. That argument was lost and there is no religious freedom there in the provision of services. It is profoundly important that we ensure that we do not further create very difficult situations. I will therefore, for the moment, withdraw and not move my amendments but reserve the right, having heard what the Minister had to say, to come back to the House on Report. I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

Amendment 14 not moved.

Amendment 15

Moved by Lord Carey of Clifton

15: Clause 2, page 4, line 20, at end insert—

“( ) A person does not contravene section 29 only because the person—

(a) does not conduct a service of blessing for a relevant marriage, or

(b) is not present at, does not carry out, or does not otherwise participate in, a service of blessing for a relevant marriage, or

(c) does not consent to a service of blessing for a relevant marriage being conducted, for the reason that the marriage is the marriage of a same sex couple.”

Lord Carey of Clifton: My Lords, before I address the amendment, perhaps I may refer to an earlier speech by the noble Baroness, Lady Berridge, in which she referred to me personally, I think in relation to Amendment 9. What she did not know was that I had withdrawn my name from that amendment and I think that the reference should have been to the noble Lord, Lord Dear.