The noble Baroness, Lady Hollis, made the point that there is a legal entry but there is also a legal exit. In these circumstances, the idea of a judicially determined divorce—let us not beat about the bush, it would be a divorce—could very well be much more damaging to a previously existing relationship than would otherwise be the case. I think it was the noble Lord, Lord Pannick, who reminded us of Irving Berlin—yes, there was a reason why I hesitated over his name—and his theory of “Lord help the sister who comes between me and my man”. That is probably a very pertinent point. I know the point, but the reason I hesitated was because I was told that the late Isaiah Berlin once sat next to a very prominent politician who could not understand the question about “White Christmas”, so I wanted to make sure that I had actually got the name right.

Lord Pearson of Rannoch: My Lords, the noble and learned Lord has just amused your Lordships about Irving Berlin, but what he said shortly before that is not right either, is it? One cannot generalise too widely on these things, but surely the bitterness that comes with the breakdown of a sexual relationship is likely to be greater than a breakdown in a sibling or family relationship.

Baroness Farrington of Ribbleton: Having sisters of my own, I intervene to suggest that the noble Lord, Lord Pearson, has not seen sisters at war with each other.

Lord Wallace of Tankerness: My Lords, I should perhaps just leave this on the reply of the noble Baroness, Lady Farrington. Turning to the rights and responsibilities of carers, of course they play an invaluable role in our society, caring for people. No one disputes that. The Government strongly value the role and commitment of carers. Indeed, we set out our priorities in November 2010 in a cross-government strategy: Recognised, valued and supported: next steps for the Carers Strategy. The mandate to the NHS Commissioning Board also contains a clear objective on enhancing the quality of life of people with long-term conditions and their carers. Achieving this objective will mean that by 2015, the 5 million carers looking after friends and family members will routinely have access to information and advice about the available support. When it comes to financial support for carers, the Government have announced that carer’s allowance will continue to exist as a separate benefit outside of universal credit, so that carers will continue to enjoy the support of a dedicated benefit.

Baroness Cumberlege: My Lords, I thank the Minister for giving way. I was very intrigued by what he said about the Care Bill, which is now before the House in Committee. I appreciate my noble friend Lady Knight’s

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comment about how we get really fed up when we are told that it is not the appropriate Bill to propose a certain amendment. My noble and learned friend the Minister has said that the Government really appreciate the work of carers and we are grateful for it. However, if the Government are so committed to the work of carers, would it not be possible for the Government to bring forward their own amendment to the Care Bill?

Lord Wallace of Tankerness: That is the responsibility of a different department. I would be very brave to make that kind of commitment here without consulting, but I am sure that my noble friend’s words will be noted. The noble Lord, Lord Elystan-Morgan, made the point that he never liked the arguments about vehicles. I am not really trying to make that argument, because I have argued that there are in fact some very serious differences. The noble Baroness, Lady Hollis, also made the point that the issues being raised are really not appropriate for this Bill. They are relevant perhaps to a finance Bill rather than a partnership Bill, as they relate to the rules of inheritance tax or the terms of benefits.

As the noble Baroness knows, those arguments have been well rehearsed. I was not in your Lordships’ House nine years ago, but my noble friend Lady Northover has said in response to one or two of the comments that have been made, “Oh, I remember that point being made then”. The Government then sought to oppose proposals of this kind, and this Government share the view that civil partnership, as it then was and as it has evolved and developed over time, is not the appropriate place to open up these new, significant policy questions. The review is about civil partnerships. It would be inappropriate to open it up to look at unrelated issues of carers and family law, and particularly the question of tax and benefits. We have also indicated that we do not wish to delay or add to the cost and complexity of a review which the Government have committed to undertake as soon as possible in response to calls that were made in the other place. The other issues that are opened up are vast, as the noble Baroness, Lady Hollis, made clear. I therefore ask the noble Baroness, Lady Deech, to withdraw her amendment.

Baroness Deech: My Lords, before I forget, perhaps I may correct the Minister on the following point: it was Irving Berlin who was invited to the White House to discuss politics and the conduct of a war. It was only much later that it was discovered that the President had called for Isaiah Berlin.

I am grateful to all those who have spoken. Our discussion has caused me to focus on three themes. The first is obvious: there is no time to waste. There are lots of old folk who need help. Every time I have inquired at the Whips’ Office or the clerks’ office when Bills have come forward, I have been told, “Oh, it’s not relevant. This won’t do for siblings”. It is not that the issue has been forgotten, as some have said.

I am focusing also on freedom of choice. Once this Bill has passed, everybody in the country who is over 16 will be able to choose to enter a legal bond with somebody else, except those who are related. That is why I do not support the noble Lord, Lord Lester—as he knows—in relation to cohabitants. They can choose;

24 Jun 2013 : Column 545

they could get married. Maybe in future they could have a civil partnership and make a contract if they have not done so; I would not dump our very unsatisfactory matrimonial law on them without their choice. However, siblings have no choice at all. They are faintly recognised as relatives in some other laws, but there is really very little help for adult siblings.

There has been some talk of my amendment somehow devaluing equal marriage. I say to those who have made that point that this Bill is about equality. Those who are gaining equality should not rest on their laurels. On the contrary, having reached their target, they should hold out their hand to others to give them the same help, despite perhaps the same objections, as is being given in this Bill for same-sex marriages. It is not a religious question. I cannot imagine for a minute that any review would ever expect any religious authority to bless the union of related people. Religion has nothing to do with it—so I did not quite follow the argument of the noble Lord, Lord Alli. What I am thinking of is some union—it need not necessarily be a civil partnership—some formal contract or some recognition that could be extended to siblings, and, believe me, there has been no opportunity to do this in any of the Bills that I have followed during the past few years.

I support the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Hollis, in saying that this need not cost anything in relation to inheritance tax. It could be rolled over; it could be deferred at nil cost to the Government.

I do not agree with those who say that civil partnerships are different. Sex has got nothing to do with it—some chaps here may not agree with that—now that we have changed the definition of marriage. Even at the moment, if two people get married, no one inquires as to whether it is a sexual relationship. As we all know, neither adultery nor consummation will play any part in remedies or definition of marriage in the future. This really has nothing to do with sex. We are not talking about sisters committing incest—that is a crime anyway. We all realise that that is beyond the bounds of possibility; it is nothing to do with that. It is to do with the fact that the whole definition of marriage has changed. My bet is that a new case before the European Court would probably succeed because the law of Europe prohibits discrimination on the grounds of birth, status and sex inter alia. I cannot see a ground for not extending some advantages, as appropriate, to those who are related and therefore unable to take advantage of all the variety of unions that are open to others.

5.45 pm

A strong plank of the new law is equality. We have to cling to that: it is about equality. I do not agree, as the noble Baroness, Lady Hollis, realised, with any notion of forcing people into something like this. Nor am I suggesting that it is all about tax advantage—or maybe it is, because, after all, people of both sexes now get married or can enter a civil partnership in order to gain tax advantage; I vaguely remember, decades ago, that there was a particular date in April that was much favoured for getting married because one got tax relief for the whole of the previous year as

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a married couple. For all we know, people are entering into marriages or civil partnerships for all sorts of financial reasons. It is not for us to inquire. People make their decision based on the range before them; sisters have no range in front of them. If it were to mean that people who entered some new sort of union had to support each other, that is all well and good—that would be altogether excellent. Too often, one reads about people who are abandoned, die on their own or are in hospital on their own and, much later, relatives come out of the woodwork to ask why no one was taking care of them. One thinks, “Well, where were you then?”. Anything that were to reinforce family solidarity seems to me to be a good thing.

It would not have to be a civil partnership. I am worried that the terms of reference, as were cited by the noble and learned Lord, Lord Wallace, will be too narrow.

Lord Alli: I have been reflecting on what the noble Baroness has said about not understanding the civil partnership aspect in terms of religious organisations. We passed a provision in this House allowing civil partnerships to happen in religious buildings. One reason for our doing so was the need for same-sex couples to be able to have their unions blessed with the congregations with whom they had prayed. We saw this as being progress towards marriage being celebrated in churches. It was recognised that there would be two speeds, where we would see religious organisations wanting to bless civil partnerships in their churches and some already doing so. Does the noble Baroness accept that if her plan went through as envisaged, it would drive a coach and horses through the church’s ability to bless civil partnerships, because the nature of those relationships will have been changed from the wish of two people to have a solemn union to a set of arrangements that fall outside that?

Baroness Deech: I am sorry, I say to the noble Lord, Lord Alli, but I really do not get it, because what I envisage is that the review would come up with some sort of partnership, union or contract suitable for siblings. I cannot imagine for a moment that they would want to celebrate that in a church—although anyone, I suppose, can go and get a blessing. The proposal does not impinge in any way on the aims of the noble Lord, Lord Alli.

I am concerned that the terms of reference cited by the noble and learned Lord, Lord Wallace, are too narrow. I would like him to remember that everybody in the country will have a choice, except siblings. They will be the only people who will not have available to them a civil partnership or a marriage of some sort. They will be unable to take advantage of this legislation because there will be no vehicle for them. Men and women can get married; two people of the same sex can get married; there may still be civil partnerships; there may even be civil partnerships for heterosexual couples. The excluded category is those who are related. There is probably little point in keeping the prohibited degrees any longer, save for the point about abuse within the family—but, sadly, we know that abuse within the family goes on anyway, regardless of what the arrangements relating to bonding may be.

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Baroness Farrington of Ribbleton: My Lords, I regret intervening again, but I have seen cases in my life as a domestic abuse counsellor. The noble Baroness talks about two sisters. What about a father and daughter? That has not been raised. There can be abuse within family relationships involving coercion and violence. I am not arguing against what the noble Baroness wants to do in terms of the rights of people who have given up their lives to care, but bonding can bring a whole set of different problems. It could be a brother and sister or a father and daughter, and this worries me.

Baroness Deech: My suggestion was, of course, a free choice and under the definition I have given, they would have been living together for several years anyway. I should remind the noble Baroness and the Committee that our law already provides for contracts to be vitiated if there is duress. Our law already provides that if someone is dragged to the altar in some fashion, that marriage is not valid. It may be hard to enforce and I wish there was more of it, but we already have those provisions.

Because these people are getting old, I therefore ask the Government most urgently to please bring forward their own amendment, or somehow ensure that the terms of reference in reviewing civil partnership are wide enough to look at bonds—or whatever name you wish to give them—of other people who may wish to enter such a bond but are unable to do so at the moment. That way they may enjoy the fiscal and maybe emotional benefits that result from it. Otherwise I will bring forward this issue again on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment 46A withdrawn.

Clause 14 agreed .

Amendment 46B

Moved by The Lord Bishop of Ripon and Leeds

46B: After Clause 14, insert the following new Clause—

“Amendment of Education Act 1996

(1) Section 403 of the Education Act 1996 is amended as follows.

(2) After subsection (1C) insert—

“(1CA) Guidance under subsection (1A) must provide for education about the nature of marriage and its importance for family life and the bringing up of children to be given to registered pupils at schools which have a religious character in accordance with the tenets of the relevant religion or religious denomination.”

(3) After subsection (2) insert—

“(3) For the purposes of subsection (1CA)—

(a) a school has a religious character if it is designated as a school having such a character by an order made by the Secretary of State under section 69(3) of the School Standards and Framework Act 1998 (“the 1998 Act”); and

(b) “the relevant religion or religious denomination” means the religion or denomination specified in relation to the school under section 69(4) of the 1998 Act.

(4) Subsection (5) applies where—

(a) Academy arrangements have been entered into between the Secretary of State and another person;

(b) the terms of the Academy arrangements have the effect of requiring that other person to have regard to guidance issued under subsection (1A) above; and

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(c) the Academy is designated as having a religious character by an order made by the Secretary of State under section 69, as applied by section 124B, of the 1998 Act or is treated as having been so designated by virtue of section 6(8) of the Academies Act 2010.

(5) Where this subsection applies, subsection (1CA), and guidance issued under subsection (1A), are to be construed as if references to schools which have a religious character were references to the Academy.””

The Lord Bishop of Ripon and Leeds: My Lords, this amendment is about education in church schools, mostly owned by the Church of England or the Roman Catholic Church, but also by some other denominations and in schools of faiths other than Christian. Before I describe what the amendment is intended to achieve, I need to explain why it is needed.

Clause 11(2) of this Bill makes wide-ranging changes to the law of England and Wales and its effect is explained in paragraph 55 of the Explanatory Notes. It states that Clause 11(2),

“ensures that the law of England and Wales, including all existing and new England and Wales legislation, is to be interpreted as applying, where marriage is concerned, equally to same sex and opposite sex couples”.

Together with Schedule 3, this sets out the equivalence of all marriages in law. That seems perfectly clear. For legal purposes, the meaning of marriage is changed, so that where an Act of Parliament refers to marriage, it will mean marriage of same-sex couples and of opposite-sex couples.

Section 403 of the Education Act 1996 places a duty on the Secretary of State to issue guidance designed to secure that when sex education is given, pupils,

“learn the nature of marriage and its importance for family life and the bringing up of children”.

Governing bodies and head teachers of maintained schools, including all church schools and academies, are required to have regard to the guidance when formulating their policies for sex education. After the Bill passes, that reference to marriage in Section 403 will, rightly, be read as a reference to marriage as redefined by the Bill. In other words, the nature of marriage to which Section 403 refers will mean the union of any two persons regardless of gender.

This Bill also recognises—indeed declares—in Clause 1(3) that the doctrine of the Church of England remains that marriage is,

“the union of one man with one woman”.

That is also the doctrine of the Roman Catholic Church, most other churches and most other major religions in this country. The trusts of Church of England schools require education to be given in accordance with the tenets of the Church of England. Schools that belong to other denominations are in an equivalent position. As a result of this, church schools are recognised for their distinctive Christian ethos and the impact this has on standards and all-round education.

So far as teaching about the legal nature of marriage is concerned, there is no problem. Church schools, like any other schools, can and must teach their pupils that Parliament has legislated so that, as Clause 1(1) of the Bill states:

“Marriage of same sex couples is lawful”.

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As at present, homophobic bullying must have no place in church or any other schools. Discrimination on grounds of sexual orientation is usually expressly forbidden within a school’s code of conduct and that must remain the case. The Church of England’s established policy is that pupils should have the opportunity to examine the full range of views on same-sex relationships—including different Christian views—and develop their own considered position. Within that atmosphere of open discussion, church schools must nevertheless be in a position to teach the nature of marriage in a way that is in accordance with the tenets of the Church of England.

The distinctive Christian ethos of church schools will be undermined unless that position is accommodated. Exactly the same goes for schools that belong to other religious traditions. The purpose of this amendment is simply to achieve that accommodation. It does not seek an exemption. No one is asking for a provision that would enable schools to operate outside the framework that the Secretary of State’s guidance provides. What I seek is a provision which ensures that the guidance itself expressly recognises the need for schools that have a religious character to teach the nature of marriage in a way that is in accordance with that character.

The meat of the amendment is the new subsection (1CA). The meaning of the provision is quite straightforward. It would require the guidance itself to address this particular issue. It would require it to do so by accommodating the need for schools that have a religious character to teach in a way that is consistent with their religious ethos, while continuing to operate within the statutory framework. Unfortunately the amendment needs to be quite a bit longer than that, to provide definitions that link it to other existing statutory provisions. It also needs to deal with the position of academies in a slightly different way, because of the legal basis on which they are established. In substance, it would put academies that have a religious character in the same position in this regard as other church schools.

When introducing the Bill, the Minister said that she wished to make clear from the outset that this Bill was,

“not just about allowing same-sex couples to marry; it is also about protecting and promoting religious freedom”.—[

Official Report

, 3/6/13; col. 938.]

The Government have very largely delivered on this commitment. Teaching about marriage in schools that have a religious character is one of the few issues of that nature that remain outstanding. I therefore hope that the noble Baroness will respond positively to this amendment, which is concerned with the same principles of religious freedom that she outlined at Second Reading.

Baroness Cumberlege: My Lords, I have also put my name to this amendment. My interests are in the Lords’ register. I am also the chairman of trustees of Chailey Heritage Foundation and a governor of Lancing College, though both are non-maintained schools. I start by thanking the right reverend Prelate for his clear introduction. Noble Lords who are now well-versed in this Bill will know that the House has already debated concerns about its possible effects on teachers. I am very grateful to the noble Lord, Lord

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Dear, and my noble friends Lord Eden of Winton, Lord Elton and Lord Waddington, and others, for addressing those concerns, which are well argued and strongly felt.

6 pm

Our amendment is equally strongly felt, but it is much narrower in its remit. It is more specific and relates to Section 403 of the Education Act 1996. We hope that, because of the narrowness of its focus, it will be acceptable to the Government. I can assure them that they have nothing to lose by accepting it. On the contrary, it strengthens the position of the Secretary of State for Education. Our amendment is intended to provide protection for schools and academies with a designated religious character. The protection is needed because the Bill causes two potential problems for designated schools: first in relation to guidance about marriage that has already been issued; and, secondly, in relation to future guidance yet to be seen.

The Bill presents those problems because Clause 11(1) and (2) change the definition of marriage. Clause 11(1) 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”.

Clause 11(2) provides:

“The law of England and Wales (including all England and Wales legislation whenever passed or made) has effect in accordance with subsection (1)”.

In all circumstances, therefore, marriage will mean both same-sex and opposite-sex marriage.

As the noble Lord, Lord Dear, rightly pointed out during Committee last Wednesday,

“Section 403 of the Education Act 1996 requires … teaching pupils about the importance of marriage in family life”.—[Official Report, 19/06/2013; col. 335.]

It also places a statutory obligation on the Secretary of State to issue guidance that ensures that children learn,

“its importance for family life and the bringing up of children”.

As the right reverend Prelate said, there is no doubt that the meaning of marriage will be altered by virtue of Clause 11. It will mean that children will have to be taught about the nature of opposite-sex and same-sex marriage and its importance for family life and the bringing up of children. In summing up our debate last Wednesday, my noble friend stated:

“My noble friend Lady Barker asked me a direct question about whether the Bill changes anything in respect of the guidance that currently exists for teachers on how to teach sensitive issues under the heading of ‘sex and relationship education’. No, it does not”.—[Official Report, 19/6/13; col. 350.]

I hate to differ with my noble friend, especially as I want her to accept our modest amendment, but our view is that Clause 11 will change the meaning of marriage. Therefore, Section 403 will also change.

The Explanatory Notes published with the Bill made that abundantly clear. They state that, except where contrary provision is made, a reference to a married couple will include a reference to a same-sex married couple. The reason that that change to the definition of marriage will cause problems for some schools is that Section 403(1A)(a) is divided into two parts. The first states that pupils will,

“learn the nature of marriage”,

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and the second is that they learn,

“its importance for family life and the bringing up of children”.

It is the second part of Section 403(1A) that means that our amendment to the Education Act needs to be made. The phrase requiring children to learn,

“its importance for family life and the bringing up of children”,

puts an obligation on schools to teach children more than the fact that the institution of marriage exists; it requires schools to teach that marriage has a value and is beneficial for family life in the bringing up of children. Teaching about the value and benefit of marriage necessarily entails advocating and commending it. That is, the current guidance is altered by Clause 11.

That will be a problem for schools with a designated religious character if promoting or endorsing same-sex marriage runs contrary to the religious belief of that school. That is no small matter; it is not a minority sport. There are more than 7,000 Catholic and Anglican schools in England and Wales, and that number does not account for other faith schools. Those religious schools constitute approximately 30% of all schools in England and Wales and more than 1.8 million pupils attend them. Those schools are very popular. Christian parents and, indeed, parents of other faiths and none, go to great lengths to get their children into those schools. If the Bill is not amended, huge numbers of schools and pupils will be affected. The Government need to be aware of that, because it is not a small or, as I said, unimportant issue.

Ministers have repeatedly stated that the Government do not intend religious schools to be forced to promote or endorse same-sex marriage. During the Second Reading debate in the Commons, the Secretary of State said,

“no teacher will be required to promote or endorse views that go against their beliefs”,

and that the Government,

“never would expect a teacher to … promote something that ran contrary to their beliefs or their religious beliefs”.—[

Official Report

, Commons, 5/2/13; col. 132-33.]

During Committee in the other place, the Minister stated that,

“no teacher is under any duty to promote or endorse a particular view of marriage, and neither would they be as a result of any revised guidance in future”.—[

Official Report

, Commons, Marriage (Same Sex Couples) Bill, 28/2/13; col. 311.]

This point was reiterated by my noble friend during Lords Committee last Wednesday.

Although the intention and assurances are very welcome, they are insufficient for three reasons. The first is that ministerial statements are vulnerable to challenge. It is perfectly possible that Section 403 and the Secretary of State’s guidance might be interpreted in a way which obliges schools to promote and endorse same-sex marriage.

The second reason takes us back to the second potential problem that I highlighted earlier. Nothing in the Bill prevents a future Secretary of State from explicitly requiring schools in guidance to commend and advocate same-sex marriage. A future interpretation of Section 403 may require schools to advocate and commend

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Thirdly, Ministers have frequently relied on the submission of the noble Lord, Lord Pannick, to the Commons Committee. However, the noble Lord, Lord Pannick, did not address that point about schools. He addressed the concern about teachers debated during Committee last Wednesday, not the discrete point about guidance issued under Section 403. His assurances should not have been referred to in response to the amendment to Section 403 put to the Committee.

Of course my noble friend and the Government may be confident that the current Secretary of State will not issue guidance requiring schools to promote same-sex marriage, but they cannot be certain that the next Secretary of State or a Secretary of State in a few years’ time will not do so. A future Secretary of State will not be bound by the Minister’s comments during Committee on the Floor of either House. Our modest amendment, on the other hand, would make it very difficult for a future Secretary of State to flout the Government’s intentions, because he or she would have to amend the legislation before issuing guidance forcing religious schools to promote or endorse same-sex marriage.

Our amendment is clear. It is needed to ensure that schools with a designated religious character are not compelled to commend or advocate an understanding of marriage that runs contrary to their religious ethos under either current or future guidance. Our amendment does so by placing an obligation on the Secretary of State to issue guidance that specifically provides for education about the nature of marriage and its importance for family life and the bringing up children. Pupils will be aware that that is in accordance with the tenets of the religion of the school. It ensures that schools will be able to do that because of, not despite, the guidance. Any guidance requiring religious schools to advocate or commend same-sex marriage would therefore be in conflict with a positive obligation that our amendment would put on the Secretary of State.

I reassure noble Lords that our amendment will not affect any guidance that requires schools to teach children about the legal status of marriage—that it is legally open to both opposite and same-sex couples. All schools, religious or otherwise, will remain under an obligation accurately to teach the law of the land. Put another way, if the Secretary of State issues guidance that requires all schools to teach students that marriage has been extended to same-sex couples and requires the schools to advocate and commend the new meaning of marriage, all schools will be under a duty to teach pupils that marriage has been extended to same-sex couples. They will not, however, be under a duty to commend or advocate same-sex marriage if it is contrary to the designated religious character of the school. This tackles the concern expressed by the Minister at the Public Bill Committee when he asked the honourable Member for East Worthing and Shoreham:

“Does he think that it is reasonable to allow a teacher not to teach something that is the law of the land, if indeed this becomes the law of the land?”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 28/2/13; col. 302.]

The answer is no. It is not reasonable to require a teacher not to teach something that is the law of the land. Our amendment ensures that no teacher will be prevented from doing so.

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To conclude, our amendment merely puts the Government’s assurances in the Bill. It will protect schools with a designated religious character. It will provide explicitly for teaching in accordance with the tenets of the relevant religion in the guidance. It will protect schools from any compulsion, through either current or future guidance, to commend or advocate same-sex marriage.

Lord Lester of Herne Hill: Can I ask the noble Baroness why she is not sufficiently reassured by the fact that the Education Act, like all other past and future legislation, must be read and given effect in accordance with freedom of religion and freedom of speech, as guaranteed by Articles 9 and 10 of the human rights convention? Reading those, and the case law on them, it seems to me quite clear that the schools and their teachers will be completely protected.

Baroness Cumberlege: My Lords, the reason is that without this amendment, the Bill changes those particular elements in those Acts. That is the advice that I have been given. I am very anxious that we ensure that these schools that have a religious designation are protected. I am not convinced that that is the case in the Bill as it stands, for the reasons that I have put before your Lordships.

I do not think that a Minister’s words in the House, however well meaning, stand the good test. They evaporate. We know that they are open to challenge, whereas amendments carried in the Bill, when it becomes an Act, are much less open to challenge. I urge my noble friend to have the welcomed assurances that she has given incorporated into the Bill.

Baroness O'Loan: My Lords, I support this amendment, to which I have put my name.

It has already been said that the purpose of this clause is very simple and narrow: to amend Section 403 of the Education Act in order to provide statutory protection for schools of religious character by creating an obligation that any guidance issued under the Act must provide for such schools to deliver education about marriage, its importance for family life and the bringing up of children, in accordance with the tenets of the relevant religion or religious denomination. The noble Lord, Lord Lester, asked why we could not just read the legislation in the context of the existing jurisprudence of the European court and be satisfied that everything was protected. The reality is that the jurisprudence of the European court in this context is quite complicated and there are a number of senior QCs who have provided advice to various organisations in connection with this legislation who do not share in totality the noble Lord’s views.

The reason that this amendment is necessary is that Section 403 imposes on schools a twofold duty. Pupils must,

“learn the nature of marriage”

and they must learn,

“its importance for family life and the bringing up of children”.

That is the law as it stands at the present time. Teachers in all schools must do what the law says. They must ensure that the children for whom they are responsible learn about the nature of marriage. That includes both

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the legal and the relational definition of marriage; that it is the union of one man and one woman for life to the exclusion of all others. In this situation, teachers will be teaching classes composed of children who, by virtue of circumstances, will sometimes have no experience of marriage or not of marriage in its traditional sense, but of other stable relationships or sometimes of relationships that are totally unstable. All those children must be sensitively provided for.

6.15 pm

I endorse the words of the noble Baroness, Lady Cumberlege, in relation to the impact that the Bill will have. Unless change is made, it will ultimately require schools positively to advocate and commend same-sex marriage. The reason is very simple and has been articulated both by the right reverend Prelate and the noble Baroness. The current guidance is altered by Clause 11 as Clause 11 changes the definition of marriage and hence the content of what must be taught. It is the case, of course, that schools must still teach about the nature of marriage, but that nature has become something different, which is not consistent with the beliefs of a number of Christian denominations and other faiths and some people of no faith.

This amendment could provide the necessary structure within which to protect the right of freedom of religion, thought and conscience and to give effect to the rights of those parents who send their children to faith schools because they believe that their faith will provide their children with a set of values that may inform their lives and, more importantly, because in a faith school they grow up in a context of faith and belief.

This amendment will allow faith schools to teach the newly defined legal nature of marriage. That will of course be proper and in accordance with the school’s obligation to prepare children for life, as required by any future guidance issued by the Secretary of State. However, it will protect schools from having to promote the importance of the newly defined marriage, where the definition is not consistent with the beliefs of the school.

In order to put the matter beyond discussion and to place its repeatedly stated intention on a statutory basis, not just by means of future guidance which can be changed at the discretion of any Minister, it is surely desirable to place this important protection for religious freedom in the legislation. It will not detract from the legal position that marriage will be able in future, if this Bill is passed, to be celebrated by man and woman, man and man or woman and woman. However, it will give some protection against legal uncertainty to those whose belief is that marriage is the union of a man and a woman, and who provide education through a relevant faith school, against any obligation to recommend or advocate same-sex marriage at any stage. It will not enable homophobia. Any such activity is wrong. Instead, it will simply remove any doubt about the ability of schools to teach, and in so doing to promote, a traditional understanding of marriage.

This is a proportionate and necessary amendment to the Bill.

Lord Phillips of Sudbury: My Lords—

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Baroness O'Loan: It provides an accommodation of competing rights, no more, no less. I apologise to the noble Lord, Lord Phillips, but I was two words from the end.

Lord Phillips of Sudbury: I was anxious that the noble Baroness should not get to the end before I could ask this question. I am sorry if it is a bit technical, but it seems to be relevant. The wording of the amendment, with which I have sympathy, is that the guidance must be,

“in accordance with the tenets of the relevant religion or religious denomination”.

It not abundantly clear to me how one would determine what the tenets of a religion are. If the relevant religion were Christianity, different denominations of Christianity take a different view on these matters. Does the amendment in fact cover all the circumstances that the noble Baroness and her co-movers are concerned about? To make it clear, one can imagine some debate over quite what the tenets of Christianity are as time progresses. An extreme Christian sect might take a very untypical view. A Quaker school, for example, might be well ahead of the Christian pack. Does the noble Baroness think that the amendment covers that potential tension?

Baroness O'Loan: My Lords, I thank the noble Lord for the question. Having read the previous guidance, most recently this morning, I would not anticipate that the guidance would actually specify the tenets of the individual religion. What I would anticipate is that it would have the provision that education must be provided in accordance with the tenets and that there would be, as the right reverend Prelate has provided, a structure of registration and designation of schools, so that there would be a quality assurance process underlying it. If the amendment is not sufficiently concise, I am sure that it will be possible—unless it is pressed to a Division at this stage—to encourage the Minister to respond with a government amendment, which would provide precisely for what is required.

Baroness Richardson of Calow: My Lords—

Lord Elton: I am so sorry, but I want to ask the noble Baroness a question relevant to the one she had been asked, because it does not seem to me that there is a problem. My noble friend Lord Phillips of Sudbury asked what happens if different denominations have different views but the amendment requires it to be,

“in accordance with the tenets of the relevant religion or religious denomination”,

so it is merely relevant to the school in question.

Lord Phillips of Sudbury: If I might just elucidate, I said that it was not always clear what the tenets of the religion are, quite apart from the denomination.

Baroness O'Loan: The current guidance provides that schools are entitled to take their religious beliefs into account in providing sex and religious education, so there is a tradition for this and it may be taken forward from that perspective.

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Baroness Richardson of Calow: My Lords, this amendment sounds eminently reasonable until you try to imagine yourself a child within a classroom in a school of a religious foundation. If you are talking about marriage and you know that your parents, who are legally married to each other, are both of the same sex, how would it make you feel if you were told that their union is legal but not moral and not in accordance with Christian teaching? Perhaps I might ask the right reverend Prelate whether there is to be any guidance on the criteria issued for entrance into a school of religious foundation to alert parents of same-sex unions and their children that this may be the case. I am trying to see how it will work out and what it will mean to them if they are told that their parents are legally married but that this is not within the Christian religion, and whether the criteria for selection might need to be changed—or at least for parents to be alerted.

Lord Alli: My Lords—

Baroness Knight of Collingtree: My Lords, I think it is probably the noble Lord’s turn.

Lord Alli: I was just trying to be polite; I know that the noble Baroness likes that. If I recall correctly, it was the Conservative Government in 1996 who wrote the specific conditions into the Act. I suspect that the broader supporters of this amendment would have been the very people who wanted that provision written into the Act in the first place. If I recall the nature of the debate at the time, it was about family life and family values. The term was supposed to refer exclusively to heterosexuals, and the reason for it being in the Act was to allow those who did not approve of alternative family structures to be placated. We are now giving access to civil marriage to those who have been denied it. We therefore need to look at these provisions again in that light.

When I think about the majority of the contributions that we have listened to here in Committee and in the other place, there is general consensus that marriage has an important and very special place to play in family life, and in the bringing up of children. I think that we are all agreed on that. While I have heard no one in this place say that one-parent families or divorced, separated or same-sex parenting are somehow inadequate, we have all recognised that marriage can have a unique and special role to play in bringing up children.

The requirements of the guidance will be the same after this Bill is enacted as they were before. My problem with the amendment is not with what it seeks to do, because it is right and proper that faith schools should be allowed to teach the importance of marriage as they see it in relation to family life. That is the case now, as I am sure that the Minister will say. My opposition is to continually writing into the Bill something that is not necessary and should be a matter for the guidance, not the Bill. It would be equally unnecessary for me to amend the amendment, although the right reverend Prelate might allow me to do so, to add the words, “and in doing so, must pay due regard and respect to other forms of relationship, including but

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not limited to same-sex marriages”. We could keep adding language to the Bill until we are all happy with a whole range of words.

I plead with the right reverend Prelate and the noble Baroness not to reduce this clause to a series of well-meaning words that will not help teachers or children, but may make us all feel a little better that we managed to negotiate it into the Bill. I hope that the right reverend Prelate will reflect on adding any more to the Bill and will withdraw his amendment.

Baroness Knight of Collingtree: My Lords, I want to put another point to the Committee, particularly following what the noble Lord has just said. This Hansard of ours is a record for ever of what is said and considered during the course of Bills passed in both Houses. It is very important indeed to make sure that all the necessary points are brought up. The noble Lord, Lord Alli, mentioned teachers. I am quite sure that I am not alone in the volume of letters that I have received about this Bill. In fact, I can say that never before on any Bill while I have been in either House have Members ever received as many letters as we have. Quite a number have come from teachers who are very worried on this point. It ought to be brought out in the debate that teachers themselves, who know perfectly well what their duties are in accordance with the Bills passed in Parliament, have written to express their deep concern that they are going to be forced to teach something to which they have a basic and very important objection.

In an earlier debate on this Bill, I mentioned how concerned I am that the right of a person’s conscience is being eroded, day after day and Bill by Bill. We have now had some 50 years of promises, made by different Governments at different times, stating very clearly that we all have a right to a conscience and to live by that conscience. That is why so many letters have come to us all, I am sure, from teachers on this very point. It is not a question of adding a few words to make people happy. It is about giving people the right to continue to live by the conscience which is in their heart and soul.

6.30 pm

Lord Lester of Herne Hill: My Lords, as I said before, the Human Rights Act 1998 expressly incorporates into our legal system freedom of conscience, religion and belief, and expression. It requires all legislation—old, new and future—to be read and given effect in accordance with those fundamental rights. When the Joint Committee on Human Rights, on which I serve, was presented with an opinion by Mr Aidan O’Neill QC, one of the scenarios that he suggested might occur in legislation of this kind involved teachers. He speculated that a primary schoolteacher is told to teach using a book about a prince who marries a man, and is asked to help the children to perform the story as a play; she says that it goes against her religious beliefs and disciplinary proceedings are taken against her. He said that this is an example of a problem.

The department in charge of the Bill gave an extremely helpful answer to that kind of speculative scenario. As the noble Baroness, Lady Knight, rightly said, our proceedings may be read in future so I will briefly

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explain what the department said, which in my view completely complies with the Human Rights Act and the European Convention on Human Rights. This is what the department told the committee:

“Teachers will continue to have the clear right to express their own beliefs, or that of their faith—such as that marriage should be between a man and a woman—as long as it is done in an appropriate way and a suitable context. No teacher will be required to promote or endorse views which go against their beliefs. Teachers will of course be expected to explain the world as it is, in a way which is appropriate to the age, stage and level of understanding of their pupils and within the context of the school’s curriculum, policies and ethos. This may include the factual position that under the law marriage can be between opposite sex couples and same sex couples. There are many areas within teaching, particularly within faith schools, where teachers and schools already deal with areas relating to religious conscience, such as homosexuality and divorce, with professionalism and sensitivity. The guidance governing these issues is the same guidance that will govern how same sex marriage in the classroom will be approached. No teacher can be compelled to promote or endorse views which go against their conscience. We expect heads, governors and teachers will come to sensible arrangements about any teaching that includes discussion of same sex marriage as they currently do in all other areas of the curriculum”.

To this I say, “Amen”.

Baroness O'Loan: My Lords, I wish to address a point made by the noble Lord, Lord Lester. In the debate in the House of Commons on 20 May, the Government committed to consider this issue further in the Lords. As a consequence of that, and of all the evidence that was received, the Joint Committee stated:

“In particular, we encourage the Government to consider whether specific protections are required for faith schools and for individual teachers who hold a religious belief about same sex marriage”.

I do not think the situation is quite as clear as might have been suggested.

Lord Pannick: My Lords, I, too, think that this amendment is unnecessary and inappropriate. The amendment is concerned with the guidance under Section 403 of the Education Act. That guidance is concerned solely with sex education. There are three consequences of this.

First, the reference to marriage and family life in Section 403, which has excited the concern in this amendment, is designed simply to ensure that when pupils learn about sexual relationships, they should learn about sex in the context of marriage, families and commitment; in other words, they should not learn about sex as a mere physical act. In my view, it would be most unfortunate that if and when pupils learn in sex education classes—as they do—about gay sex, such discussion is not also in the context of relationships, commitment and the developments that this Bill will introduce. That is the first point.

The second point is that Section 403, which deals with guidance, already states that when sex education is provided, children must be,

“protected from teaching and materials which are inappropriate having regard to the age and the religious and cultural background of the pupils concerned”—

and rightly so. So there is already considerable protection.

The third point is the point made by the noble Lord, Lord Lester of Herne Hill, with which I entirely agree. It is a point that we have returned to over and

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again in the debates in Committee, but it is nevertheless true: there is nothing in this Bill that allows—far less requires—a teacher to promote same-sex marriage, and even less so in the context that we are now discussing, Section 403 of the Education Act, which is concerned only with sex education.

Lord Eden of Winton: My Lords, I want to follow up what the noble Lord, Lord Pannick, has just said and to add just one point, using the amendment so very ably moved and promoted by those who have their names to it as an opportunity to do so. I will be very brief.

The noble Lord, Lord Pannick, is obviously correct in what he says about the context in which the guidance would be given to the class; that is, health education in one form or another. Great emphasis has been given throughout our debates to the need to protect teachers. I accept that. That is correct and right for those teachers who feel strongly on these issues or have particular points of view which they find make it difficult for them to participate in a wider discussion or wider introduction of this subject.

My concern is not so much with teachers as with parents. So many parents—I am sure that the noble Baroness and others will have experienced this—are offended that sex education is taught to their children. I recognise that this has to happen, unfortunately. There was a time when this was left entirely to the parents, but that is no longer the case because so many parents do not in fact teach these matters to their children and do not bring up their children to understand the rights and wrongs on issues of this kind. So it has gone into the classroom and teachers are now required to teach this subject as part of the curriculum.

As I understand it, the position of parents is defended in this legislation in that if a parent is likely to be offended by anything of this kind being taught in a classroom, the parent can exercise the right to withdraw a child. I find that very difficult to accept. I acknowledge that it is done with the best of intentions, but I do not think it is very helpful to the child. Very often a child who is singled out from the rest of her peers in the classroom is made to feel different in some way or another. This is not very helpful to that child in the relationship with the rest of the children in the class. I hope, therefore, that when my noble friend comes to reply to this debate she will be able to take into account not just the position of teachers and those whose views will have been protected as a result of the amendments that are being proposed but the position of parents who might equally be offended by these matters.

Baroness Farrington of Ribbleton: The noble Lord, Lord Pannick, covered the fact that no one in your Lordships’ Chamber would want sex education to be taught other than in the context of relationships, responsibility, caring and consideration for others. That alone makes this particular group of amendments collectively flawed.

I think that the noble Lord, Lord Eden, may have grown up in a different background to mine. On the sex education that parents rely on schools to provide,

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on occasion it was ever thus, particularly in a girls’ school. We got a picture of two rabbits upside-down with no explanation as to what it meant. That was sex education in a girls’ grammar school, together with, “You may, in writing, put in questions and the doctor will answer those that she has time for”. We were told that we might wash our hair while menstruating but nothing about sex and childbirth. This is not new.

Of course, the guidance—I see the noble Lord, Lord Baker, in his place—already refers to responsiveness to religious, cultural and age backgrounds. We have to remember that the Bill deals with nursery, infant, primary and secondary pupils up to the age when those pupils can be married. It would be foolish for us to try to draft, in what would be deemed a large Committee, wording suitable for all those pupils. I hope we will not do that because the law of unintended consequences works very well when committees draft things.

On the previous day of Committee on this Bill I referred to the fact that my experience comes from being a parent and grandmother, and from chairing the education committees of county councils in England and Wales, and, more importantly, in the county of Lancashire for 10 years. In a county such as Lancashire, with a large number of church schools, not all children who go to church schools do so by choice but because of location. Not all parents who want church schools get them in the particular denomination that they want—again, not through choice but because of location. I am not in any way critical of the education given to children in church schools. I remind noble Lords that we are talking about church and religious schools in this amendment. We should not try to draft how those teachers respond in terms of both sex education and the importance of family life. I plead that people allow teachers to respond to the pupils in their classes and to their circumstances.

Same-sex marriage is not the only issue where religious beliefs affect the views and attitudes of parents of children in the class. Think about the schools in Lancashire, some of them church schools, where the majority of children are Muslim. Think about the fact that many churches—not all of them—have a view that divorce is wrong. You cannot avoid the fact that there will be children in the class who live with divorced parents. Think about the issues there are with abortion. Teachers have had to learn to live with their consciences and the guidance from the Department for Education.

I worry when the noble Baroness, Lady Knight, refers to the fact that future Secretaries of State might do this or that. It is no good framing legislation on the basis of who might do something in future. We have seen lots of Secretaries of State. Some have done some things, some have done others. To start trying to draft legislation against a particular view that might come up from a future, as yet unknown Secretary of State is foolish.

6.45 pm

Baroness Knight of Collingtree: I am sorry but I have no recollection of mentioning any Secretary of State whatever. All I am anxious about is that people who have a conscience—I might not agree with their opinions at all—have a right to believe what they

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believe and to live by it. That is all I said. I have also said that history shows us, time and again, that promises made have to be underlined very carefully and carried out faithfully. So far, they have not been. I cited a number of examples of that but I did not mention any future Secretary of State at all.

Baroness Farrington of Ribbleton: I apologise if I gave that impression. I cannot think of any specific, written, recorded examples of the kind that the noble Baroness referred to but I do not doubt that she has them. There is a danger that some teachers in some schools are being frightened by talk of coercion, compulsion and the Government making people do things—I see no evidence of that in this legislation. If one creates fear by things one says, there is always a danger that the people most likely to be frightened will write to the person who expressed that fear.

Lord Cormack: Would the noble Baroness agree that those who moved this amendment are seeking not to instil fear but to provide clarity?

Baroness Farrington of Ribbleton: I accept that, but it is on the back of a general reference to teachers being afraid of coercion. The noble Baroness, Lady Knight, referred to teachers writing to her because they are afraid. I do not accuse the noble Lord, Lord Cormack, but I think I can rest my case on that.

Looking round, I see a whole lot of people who have gone through education systems of different sorts. I have no evidence and I cannot recall any evidence of anyone seeking to subvert the views of teachers. In my experience, the teaching profession will be professional in its interpretation of this. There may be the odd rumpus somewhere but, as the noble Lord, Lord Baker, knows, you occasionally get an odd situation, whether it is in the police service or whatever service. I believe the legislation is sound and will protect teachers. We should allow teachers to be professional.

Baroness O'Loan: My Lords, to take the point that the noble Baroness just raised, I do not know whether she suggested that Members of this House are causing fear and consternation but I very much hope not. The reality is that the correspondence that came into the House did so long before there was any debate on this, and certainly long before I made any comment in public about it. It is profoundly important that we understand that there is a body of people out there, spread right across the country, who write to Members of the House of Lords in letters that are not template letters. These people have sat down and thought this through. They are teachers, chaplains and all sorts of people, and they are afraid. They have had previous experience of how life has changed for them, and possibly they have had to come to terms with teaching abortion—which they may believe to be truly wrong—but they must do these things. I do not think that is a reason to suggest that Members of the House are causing fear and consternation.

Lord Elton: Can I raise a point which I think is relevant to my noble friend’s reply and also to what the noble Lord, Lord Lester, in particular, and the noble Lord, Lord Pannick, have said? They find themselves—too

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often, perhaps, in their view—called upon to remind your Lordships that some ill from which we are trying to protect people is already covered by European law. Too often in our experience, that protection is available only when a case has gone before the European Court. In the mean time there have been many, many people who have not been able to go to the European Court, and they have not been protected.

Lord Lester of Herne Hill: My Lords it is not a question of European law but of UK law. The Human Rights Act requires our judges to read and give effect to all legislation, old and new, so that it is compatible with the European Convention on Human Rights that it embodies. So although one can ultimately go to the European Court, the prime responsibility is on Scottish, Welsh, Northern Irish and English courts.

Lord Elton: My Lords, in that case they still have to go to the Supreme Court. They have to go to the top of the Matterhorn instead of the top of Everest. In the mean time, while they are on the way up there, others suffer. I hope my noble friend will realise that what the right reverend Prelate and allies are seeking here is to introduce a security of protection at a lower level. If it is in the guidance that the Secretary of State under statute has to give, then it is available at county council level and not up at the top.

Lord Anderson of Swansea: My Lords, the purpose of the Committee stage, as I understand it, is to scrutinise draft Bills, to propose amendments and to seek, where possible, the concurrence of the Government with those amendments. It is sad that throughout this Bill the Government have taken the view that they were right from the start and that any amendments which have been proposed are either otiose, excessive or outwith the purpose of the Bill. Here is an occasion where the Government can perhaps show a little magnanimity and say that there is serious concern, as a number of noble colleagues have said. Although one might have some confidence in the guidance issued by the department, it is only guidance. It does not need wild speculation about what future Secretaries of State may or may not do. The wording in the Bill gives some assurance which I believe is proper.

Some of us in this House still consider ourselves to be politicians, even if lapsed ones. Surely one factor we should recognise from the start is that there is a clamour in this country to send children to religious and church schools. It is certainly my experience. Why is this so? The view of the great populace is to favour the discipline and ethos of those church schools for their children. I was interested a few years ago to have a friend who was a headmistress of a Church of England school in the East End and almost 100% of her pupils were Bangladeshi. Why did they choose the church school? Because that community recognised the value of church schools.

I am not a Roman Catholic—in fact I am a nonconformist—but I know from my experience as a constituency Member the quality of the Roman Catholic tradition. Perhaps I might say in passing to the right reverend Prelate, I endorsed all that he said. He spoke well, not only on behalf of the Church of England,

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but also on behalf of the Roman Catholic Church. I was musing to myself as he spoke; would it not be good, from the point of view of the quality of legislation in this House, if we had some senior members of the Roman Catholic faith who could put their own views forward directly and not rely on the good will of someone who is part of a separated brethren?

Be that as it may, we are where we are and have to accept that a vast number of people want to send their children to those schools. They approve of the ethos of those schools. The Government purport throughout that they have provided adequate protections—the quadruple lock in relation to the Church of England and the protections in respect of teachers and parents. If they are so keen to provide those protections, let it be absolutely clear that here on the face of the Bill is the opportunity to do just that. In my judgment it is not otiose. It will have widespread acceptance from those who really value the ethos and values of our church schools. It is a test of how serious the Government are when they talk so much not only about the core principles of this Bill but the counterpart—a readiness to provide adequate protection for those who wish to continue in their own ethos, who accept the new legal basis but wish to continue to put forward the traditional views of marriage.

Lord Baker of Dorking: My Lords, I did not intend to speak in this debate but I have been referred to a few times, due only to the fact that I think I am the only living person in the Chamber who has been Secretary of State for Education.

I feel that this amendment is unnecessary for a variety of reasons. I speak as an Anglican and was rather surprised that my church had taken the view that it has on same-sex marriage. The law of the land will be changed on same-sex marriage, and for the established church to say in effect that it is contracting out of it and not to allow its churches to be used for it is not, I would have thought, in the tradition of Anglicanism—not the Anglicanism that I favour. The history of the Church of England from 1533 onwards shows that it is not so much a question of the tenets or the 39 articles but of what happened with individual vicars in their parish churches. If you look at how English vicars interpreted Anglicanism in the 17thand 18th centuries, there is an infinite variety of activity. I should have thought the Anglican church would have done much better to have followed that practice than the one that it has followed.

That aside, on this particular matter, the position is in fact exceedingly clear. Where the state has provided birth control and various government agencies promote it, teachers in the Catholic Church will make it very clear that this is something which they object to and they think is fundamentally wrong. It is not a tenet of their faith but a practice, and the same is true of divorce. A great deal of discretion is already happening every day in our schools. I think it would happen in this case with the Anglican Church regarding sex education. I went to a primary church school in Lancashire and we did not have any sex education at all. I suppose that sex had not been discovered so much in those days. I even went to a secondary grammar school in

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Lancashire for two years and we did not have any sex education there either. I know we were very repressed sort of people—limited and all that—but it was alien to us.

Today it is clear that when sex education is taught in schools—I promoted it when I was Secretary of State—it is very much in the context of a loving relationship. It was the point that the noble Lord, Lord Pannick, made. It was not just the act of physical gratification—immediate and then finished with. It was to establish a loving relationship and that was a very essential part of all sex education. So when the matter of marriage comes up, it would be quite possible for any teacher, even a clergyman teacher at a Church of England school, to say they believed very strongly that marriage should be between a man and a wife and the purpose is to create a family. Even when he is talking to 12 and 13 year-olds, they will know a lot about other people who do not live like that. It has all changed today. It will not be a matter of teaching but of discussion—that is what it will be more like in actual practice. The teacher will be able to say, without fear of persecution and quite clearly, “This is the view that we believe in the Anglican Church at the moment, and we think that is the position”. So I believe that this amendment is not necessary.

7 pm

Baroness Cumberlege: My Lords, a number of noble Lords have said that this amendment is not necessary. The noble Lord, Lord Pannick, very helpfully mentioned Section 403 of the Education Act 1996, which refers to sex education, and laid out for us subsection (1A)(a) and (b). He did not go on to subsection (1B), which says:

“In discharging their functions under subsection (1) governing bodies and head teachers must have regard to the Secretary of State’s guidance”.

Therefore we already have Secretary of State’s guidance in that Act.

The noble Baroness, Lady Farrington, said that she did not want us to go into great detail in this. However, if she refers again to proposed new subsection (2) in my Amendment 46B, she will see that it sets out very clearly what that guidance will be. That is very necessary. Of course, sex education has very much changed a lot of teaching in schools. However, we are talking about something that is now so fundamental: the nature of marriage and how it is such a foundation for society. If it is important to have the Secretary of State’s guidance for sex education, it is much more important to have it for marriage.

Baroness Royall of Blaisdon: My Lords, I am here as somebody who celebrates marriage and values the ethos of church schools, but I am also a very strong supporter of same-sex marriage. I have listened carefully to noble Lords’ concerns but I am not persuaded of the need for this amendment. Like the Secretary of State, I would not support a Bill that encroached on religious freedom or on freedom of speech, but this Bill does not do that.

I apologise for not having been here last Wednesday evening. However, of course I read Hansard, and many points similar to those made in the debate last

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week were made today about teachers. As was said on Wednesday it is clear that teachers will be under a legal duty to teach the fact of the law of the land—that yes, gay couples will be able to get married. However, those selfsame teachers in faith schools will also be able to express their personal views or those of their faith about marriage. Noble Lords have cited the present guidance, which is extremely well balanced.

I was very struck by a speech given by the right reverend Prelate the Bishop of Norwich in the Public Bill Committee on 12 February. I will quote a section of what he said:

“Our own view is that the promotion of marriage is part of sex and relationship education. What Church of England schools are good at doing, because the vast majority of them are community schools, is integrating the convictions of the Church of England with a recognition that the Christian opinions held in that school are not totally recognised within the whole of wider society … There is a balance to be struck, and I think that the Secretary of State for Education was right to say that in teaching there will need to be a recognition that we have a society in which same-sex marriages—assuming the Bill goes through—are possible, and of course the teacher would also indicate why it is that within the majority of Christian traditions such marriages are not celebrated”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 12/2/13; col. 26.]

That right reverend Prelate had it about right.

I noted, as did the noble Baroness, Lady O’Loan, that in the other place the Minister, Mr Hugh Robertson, undertook to take this issue away and discuss it further with religious groups. I very much look forward to hearing what he will have to say.

Baroness Stowell of Beeston: My Lords, this has been a wide-ranging debate. I am very grateful to the right reverend Prelate the Bishop of Ripon and Leeds, for his introduction of his amendment and for quoting what I said on Second Reading about this Bill being as much about promoting religious freedom as it is about allowing same-sex couples to marry. He was absolutely right about that. I am pleased that he was clear that his amendment is about religious freedom of faith schools. He sought to explain that this particular issue is quite different from the earlier education matters we discussed last week, which focused on the general freedom of any teacher to express a personal view rather than on the teaching of sex and relationship education in religious schools specifically. In responding to this debate, I will repeat several points that I made last week, not least because as the debate has unfolded it has become clear that the way in which the House considers this issue is very much to do with education in a wider context than just about the very narrow issue of religious freedom.

Noble Lords and others have expressed a concern that schools’ freedom to teach their beliefs about marriage according to their religious tenets will be threatened by the effect that Clause 11 will have on the meaning of “marriage” in Section 403 of the Education Act 1996 and guidance made under it by the Secretary of State, to which schools must have regard. As has already been noted, the Government have received representations from religious groups, in particular the Church of England and the Catholic Bishops’ Conference of England and Wales, expressing concern that Clause 11 might affect the ability of faith schools to continue to teach about the importance of marriage

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for family life and the bringing up of children in line with their religious tenets. This concern was echoed by Muslim leaders in their public letter of 18 May.

The noble Lord, Lord Alli, was the first to raise a point about the origination of Section 403. It is worth saying that it was not in a piece of legislation originally in the 1996 Act. Section 403(1A) was inserted by the Learning and Skills Act 2000. I will begin by explaining that schools with a religious character provide an excellent education for their pupils while reflecting their beliefs across the curriculum, including in sex and relationship education. There is absolutely nothing in this legislation that affects schools’ ability to continue to do this in future.

In schools of a religious character, teachers already deal admirably with teaching about marriages which may not be recognised as such according to the tenets of the relevant faith—for example, marriages of divorcees, or mixed-faith marriages. Last week the noble Baroness, Lady Farrington, gave us a great example of how teachers deal with sensitive matters. The noble Baroness, Lady Richardson of Calow, reminded us that it is important that teachers must be conscious of pupils whose parents are of the same sex and married when teaching about marriage in the context of sex and relationship education. My noble friend Lord Baker also made a similar point. However, my noble friend Lord Eden reminded us of the rights of parents who are concerned about sex education and its content. I responded to his concern last week in the debate about the policies that are in place to ensure that schools properly consult parents on the content of sex and relationship education.

Last week I forgot to make a point, which is worth making in the context of this debate, that sex and relationship education is compulsory in maintained secondary schools. Primary schools are not required to teach sex and relationship education, further than anything specific in the curriculum for science. It is important that I make that point, because it is sometimes forgotten.

In order for teachers to handle the very sensitive situations in which they often find themselves, they already interpret the Secretary of State’s guidance according to their religious tenets. This will be no different when marriage is extended to same-sex couples by this Bill. If the tenets of a particular religion do not recognise same-sex marriage, they will be able to approach teaching about marriage in exactly the same professional way that they do now. Although teaching will of course need to cover the factual position that marriage under the law of England and Wales can be between both opposite-sex and same-sex couples, faith schools will also be able to explain the relevant tenets of their religion on this matter.

I think it was the exchange between the noble Baroness, Lady O’Loan, and my noble friends Lord Phillips of Sudbury and Lord Elton, about the Secretary of State ensuring that teaching about marriage is given in accordance with religious tenets. It is important for me to make the point that I fully understand the intentions of the right reverend Prelate in the amendment that he has put forward, but I am sure that he and other noble Lords will agree that it is not appropriate

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for the Secretary of State to issue guidance to secure adherence to religious doctrine in teaching. This would amount to inappropriate interference by the state in matters properly for the relevant religious denomination. How faith schools approach such teaching is quite rightly a matter for the schools and faiths themselves.

While I think it is broadly acknowledged that the Secretary of State’s current guidance does not impinge on faith schools’ ability to teach in line with their doctrines, concern has also been expressed that the duty on the Secretary of State might allow future versions of the guidance to preclude religious schools from teaching in accordance with their beliefs. This was a point that my noble friend Lady Cumberlege raised—when the noble Baroness, Lady Farrington, referred to my noble friend Lady Knight, my noble friend Lady Cumberlege expressed this point. However, the noble Baroness, Lady Farrington, made my response for me by saying that it is clearly not the intention behind this legislation to envisage circumstances in which any Secretary of State might seek to interfere with matters of religious doctrine in the future. We are framing this legislation as things stand at the moment, and there is no way in which we are suggesting that a future Secretary of State might do anything different, but nor can I say from this Dispatch Box that things may not change in the future.

The noble Lord, Lord Pannick, noted that the second part of the duty in question, which is Section 403 (1A)(b), specifies that the Secretary of State’s guidance must ensure that pupils are,

“protected from teaching and materials which are inappropriate having regard to the age and the religious and cultural background of the pupils concerned”.

Therefore, the existing legislation already makes clear that it is absolutely inappropriate for material to be used that would not have regard for religious faiths. For the Secretary of State to issue guidance specifying that a particular version of marriage be endorsed counter to a school’s ethos, and by extension the religious background of many of its pupils, would not meet this criterion that already exists in legislation. I emphasise that point in response to my noble friend Lady Cumberlege, who expressed concern that the new legislation would somehow remove some protection from schools that are against promoting same-sex couples being able to marry. I want to emphasise that that is absolutely not the case.

This country has a strong tradition of schools with a religious character; they are a valued part of our education system. It would be pointless to maintain a system of designation if such schools were unable to teach in accordance with the tenets of their religion. For this designation to have significance, the school has to deliver what it was set up for. The inherent right of schools to deliver their curriculum and to interpret guidance according to their ethos is evident in their existence as such schools. As I have described previously, such schools do already teach about topics that may be considered sensitive, such as divorce, and they do so without issue.

While the Government are clear that this Bill will not impinge on faith schools’ ability to continue to teach about marriage in line with their religious tenets,

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I do of course understand that the effect of Clause 11 on Section 403 of the Education Act has led to some concern about this. While we are not convinced that there is a need to change the legislation to clarify the position, we are continuing to discuss this with the churches. As the noble Baronesses, Lady O’Loan and Lady Royall, said, the Government undertook to consider this issue in another place. I can assure noble Lords that I and my colleagues are continuing to examine it in detail.

Lord Lester of Herne Hill:Will the Minister confirm whether the Government agree with my view about the Human Rights Act and the convention giving absolutely clear legal protection?

7.15 pm

Baroness Stowell of Beeston: I think that I have been clear in my response. I have just said that we are not convinced of a need to change the legislation to clarify the position because we believe that the protections exist. However, as I have just said, we committed to consider this further. We are discussing it with the churches, and we will honour that commitment to continue to consider it and to discuss it further. However, I was about to say that clearly, in the course of doing that, one of the things that we will want to do is to take account of all the contributions that have been made to today’s debate. The process of scrutiny of legislation suggests that it is proper for us to make sure that we take account of debates in this House, and indeed in the other place, in framing legislation.

That leads me on nicely to conclude by addressing the noble Lord, Lord Anderson of Swansea, as he suggested that the Government have not been minded to listen to debate through the passage of this Bill and make amendments. To give him some comfort and to remind the House that that is not the case, I will point out that in the Bill so far the Government have agreed to an amendment which includes a review of civil partnership. We have included an amendment to the Public Order Act and we have some amendments which clarify things around ecclesiastical law which has been requested by the churches. We have made an amendment to protect the spouses of transpeople so that if they continue in those marriages they retain the pension rights from the terms when they were originally married. We have further protected employed chaplains, we have made some changes for the Church in Wales, and we have dealt with void marriages. We are listening to the debates that are taking place in your Lordships’ House, as we did in the other House through the passage of this Bill. If we think that it is necessary to clarify the legislation in order to ensure the proper outcomes that we are seeking, which is to allow same-sex couples to marry and for religious freedoms to be protected, that is what we will do.

That is the commitment that the Secretary of State has made and I am happy to repeat it from the Dispatch Box. However, it is important that we do so only where it is necessary and only where it clarifies and helps us in the passage of the Bill, and provides the outcomes that we are all seeking to achieve. I hope that the right reverend Prelate is able to withdraw his amendment.

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The Lord Bishop of Ripon and Leeds: My Lords, I am grateful to all the noble Lords who have contributed to this debate, which was much wider ranging than I expected it to be, and particularly to the Minister for her careful response to the issues that were being raised. I am also fascinated to see how many of us were brought up in Lancashire and received our sex education, or lack of it, there. I suppose my school was technically in the county borough of Bolton, but it was more or less Lancashire.

This amendment is about the institutional religious character of schools. It is about ensuring that the statutory framework addresses and accommodates the school’s need to provide teaching that is in accordance with its religious tenets when it formulates its policy on teaching about sex and relationships. There is, rightly, guidance from the Secretary of State about that policy, and the school needs to take account of it. It should not have to rely on the Human Rights Act, but should actually have it built into the guidance. Since we have guidance, it ought to address this particular issue, rather than the church schools being left in a position of having to act in a way that is not clear within the guidance. I would hope that that does something to respond to the direct question which I was asked by the noble Baroness, Lady Richardson. I believe that there needs to be guidance to avoid criticism of the family relationships to which she referred. As the Minister said, the current requirement for guidance was inserted in the 1996 Act in 2000. My belief remains that there needs to be guidance on this matter to take note of the changes brought about by the Bill. We need to acknowledge that those are real changes; otherwise, there would be no point having the Bill. We need to respond to the particular needs of schools of a religious character, not least in terms of the tenets of their trust deeds. It is not for the Secretary of State to say what those tenets are; they are declared by the relevant church and school in the trust deeds.

We may need to come back to this matter at a later stage. I still need to be convinced that there is no incompatibility between the Bill and the requirements of the 1996 Act. However, for the moment, I beg leave to withdraw the amendment.

Amendment 46B withdrawn.

House resumed. Committee to begin again not before 8.36 pm.

Undercover Policing


7.21 pm

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach): My Lords, with the leave of the House, I will repeat a Statement made by my right honourable friend Mrs Theresa May in the House of Commons earlier today. The Statement is as follows:

“With permission, Mr Speaker, I would like to make a Statement about the latest allegations concerning the use of undercover officers to smear the reputations of Doreen and Neville Lawrence and Duwayne Brooks. These allegations follow several serious claims about the activities of police officers engaged in undercover

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operations, and I would like to update the House on the several investigations and inquiries into the conduct of these officers. But before I do so, I know the whole House will want to convey their support for the Lawrence family. They experienced an unspeakable tragedy; their pain was compounded by the many years in which justice was not done; and these latest allegations, still coming 20 years after Stephen’s murder, only add to their suffering. I know, too, that the House will agree with me about the seriousness of allegations concerning police corruption and wrongdoing. We must be ruthless in purging such behaviour from their ranks.

As Members of this House will remember, in February I announced that the Commissioner of the Metropolitan Police had agreed that Mick Creedon, the Chief Constable of Derbyshire Constabulary, would investigate allegations of improper practice and misconduct by the Metropolitan Police’s special demonstration squad, which for around 40 years specialised in undercover operations.

Mick Creedon took over a Metropolitan Police investigation called Operation Herne, and in addition to these latest allegations about the Lawrence family, Operation Herne is also looking into claims about the use by police officers of dead children’s identities, the conduct of officers who had infiltrated environmentalist groups and other serious matters. Given the nature of those allegations and the many years the special demonstration squad was in existence, we should not be surprised if further allegations are made, and I want to be clear that all such allegations will be investigated.

Operation Herne is led by Chief Constable Creedon and elements are supervised by the Independent Police Complaints Commission. I can tell the House today that the Metropolitan Police are also referring details of the new set of allegations to the IPCC, meaning that this aspect of the investigation will also be supervised. I know that some Members have suggested that the IPCC should take over Operation Herne completely, and that is an understandable reaction. I spoke to Dame Anne Owers, the chairman of the IPCC, earlier today, and I can tell the House that she does not believe a greater degree of IPCC control would enhance the investigation, but I can confirm that where the Creedon investigation finds evidence of criminal behaviour or misconduct by police officers, the IPCC will investigate and the officers will be brought to justice.

I have also spoken to Mick Creedon today. He told me that the first strand of his work regarding the allegations about the identities of dead children will report before the House rises for Summer Recess. At present, there are 23 police officers working on the case, with a further 10 police staff working in support. In the course of their investigation they have already examined in the region of 55,000 documents and have started to interview witnesses, including police officers who worked in the special demonstration squad.

I want to emphasise that undercover operations are a vital part of protecting the public, but it needs very detailed supervision, and undercover operations need constant reassessment to ensure that what is being done is justified. For obvious reasons, members of the public cannot know the details of the police’s undercover operations, but we need to have the assurance

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that this work is conducted properly, in accordance with a procedure that ensures that ethical lines are respected.

In February last year, Her Majesty’s Inspectorate of Constabulary reported on how forces go about undercover policing. This work was undertaken partly in response to allegations about the conduct of a police officer named Mark Kennedy, who had been tasked to infiltrate an environmental protest group. HMIC’s report made a series of recommendations designed to improve the procedures that police forces have in place for managing and scrutinising the deployment of undercover officers. Among other recommendations, HMIC said that the authorisation arrangements for high-risk undercover deployments should be improved and that additional controls should be put in place where a deployment is intended to gather intelligence rather than evidence.

Since March this year, HMIC has been working on a further report that will check on how the police have implemented its recommendations, and I can tell the House that this report is due to be published on Thursday. I can also tell the House that Tom Winsor, the new chief inspector, plans to undertake a further review of undercover police work later this year.

Last week, my right honourable friend the Minister of State for Policing and Criminal Justice told the Home Affairs Select Committee that the Government intend to bring forward legislation to require law enforcement authorities to obtain the prior approval of the Office of Surveillance Commissioners before renewing the deployment of an undercover officer for a period exceeding 12 months. In future, authorisation should also be sought under the Regulation of Investigatory Powers Act for any activity to develop a cover persona.

I want to turn now to the allegations regarding the Lawrence family. The investigation into Stephen’s murder has cast a long shadow over policing, especially in London. That is why, in July last year, I asked Mark Ellison QC to investigate allegations of deliberate incompetence and corruption on the part of officers involved in the original investigation into the murder. Mr Ellison was the lead barrister in the successful prosecutions of Gary Dobson and David Norris, and he was supported by Alison Morgan, junior counsel from the prosecution.

I have spoken to Mr Ellison today, and I encouraged him to go as far and wide as he would like in his investigation. I have also spoken to Mick Creedon to make sure that Mr Ellison will have access to any relevant material uncovered in the course of Operation Herne. We must await the findings of the Ellison review, which, given the latest allegations, will be published later than originally intended. When the review concludes, a decision will have to be made on whether its findings should lead to any formal police investigations.

I am determined that we should have zero tolerance of police corruption and wrongdoing. That is why the Government are beefing up the IPCC, making the inspectorate more independent, and why we asked the College of Policing to establish a code of ethics for police officers.

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As the House knows, I have also launched a panel inquiry into the murder of Daniel Morgan, and I am determined that we get to the bottom of these latest allegations. We must do so to ensure public confidence in the police and the criminal justice system, not least for the sake of Doreen and Neville Lawrence, and for the memory of their son Stephen. I commend this Statement to the House”.

My Lords, that concludes the Statement.

7.31 pm

Baroness Smith of Basildon: My Lords, I am grateful to the Minister for repeating the Statement. I join in his comments of support for Doreen and Neville Lawrence and their family. I suspect that no words can give comfort in a situation such as this. Having had to cope with the horror and the tragedy of the murder of their son Stephen, they had almost 20 years of campaigning for justice before anyone was brought to book for his murder. They then had to wait for a public inquiry into the Metropolitan Police’s handling of the investigation and the institutionalised racism at that time. We are still awaiting action to address the devastating failures and shocking decisions made by the Metropolitan Police at the time of Stephen’s murder.

Today, we have these disgusting allegations. Officers were tasked to spy on the Lawrence family to find “dirt” on them and their supporters. It is alleged that police officers logged who went in and out of the Lawrence family home, yet at the same time they were failing to gather sufficient evidence to prosecute Gary Dobson and David Norris, and any other suspects at the time. We can only imagine the hurt, distress and anger—and also the deep sadness and sense of betrayal that the Lawrence family and their supporters must continue to feel. With allegations made last year that corruption within the Metropolitan Police contributed to the failure to get justice for the Lawrence family, we called for a wider public inquiry into those allegations of corruption and we also considered it an opportunity to address more widely the progress within the police in addressing racism. Instead, the Home Secretary allowed the Metropolitan Police to review itself and, as the noble Lord has indicated today, asked Mark Ellison QC to review the paperwork on this specific issue.

It would be helpful today for the Minister to update your Lordships’ House on the progress in that case. He said something about it but it would help to have a little bit more information. Does he consider whether there is any overlap in these new allegations? A specific concern is whether police officers providing information to Mr Ellison have withheld relevant information from him. Will the noble Lord comment on that specific point? We have previously endorsed the call of Doreen Lawrence, Stephen’s mother, for the reinstitution of a public inquiry to examine any dereliction of duty by the Metropolitan Police at the time of Stephen’s murder and, more widely, the progress made in implementing the Macpherson report’s 70 recommendations. We continue to support that call.

On the substance of today’s allegations, clearly this links in with wider concerns, as the Minister has addressed, about the use of undercover and covert operations by the police. Noble Lords will be aware that I have previously raised in your Lordships’ House

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concerns over the identities of dead children being used by officers, without the consent or the knowledge of their families. We have had evidence of shocking allegations and instances of inappropriate relationships. I do know whether the Minister had the opportunity to read the


magazine this weekend, but I would recommend the article by Rob Evans and Paul Lewis on the activities of SDS police officers. The impact of their activities on individuals shows how serious and devastating such behaviour can be.

I know that the noble Lord shares our concern about transparency in any investigation on inquiries into these issues. I spoke to him earlier about this and, as he said, the only way to restore public and professional confidence is to have openness in the investigation and openness in the actions taken to address any problems. We have some concerns about the Home Secretary’s approach in wrapping these allegations together with the pre-existing investigation being undertaken by Derbyshire’s Chief Constable Creedon and supervised by the IPPC. That investigation is looking at complex and covert investigations into environmental and animal rights groups that go back many years. In the past month, new allegations have been made about corporate protests and potential undercover police involvement. This is another monster of an inquiry being undertaken by the IPCC. It is already taken 20 months and cost £1.2 million, although no arrests have yet been made. This will take some years. Alongside Hillsborough, the scoping of Orgreave, and many other investigations, it is unclear whether the IPCC will be able to prioritise and deal with all those issues in an appropriate timescale. Rightly, these are all huge issues of concern.

In addition to the undercover element, there is a common theme. It was so powerfully evidenced in relation to Hillsborough, as the noble Lord and I discussed at the time, and is now reinforced in the case of the Lawrence family—namely, that police institutions seek to undermine victims. Police institutions try to smear those seeking justice as being agitators or they even try to find some evidence of their being criminals—trying to smear them in the process. The agony that the Lawrence family has endured since the day Stephen was murdered has also made this case uniquely damaging to British policing and public confidence. Unless that is effectively and properly dealt with, not only will that lack of confidence endure, it will undermine the confidence of the majority of police officers who seek to serve the public honestly and decently.

We now have two different inquiries: the investigation, Operation Herne, and the new Ellison review dealing with very similar things. I have a few questions for the noble Lord. I want to get to the bottom of whether the Government are absolutely confident that these inquiries will, first, be sufficiently focused; and, secondly, have complete co-operation from police officers. They also have to ensure that whistleblowers will be sufficiently empowered and protected to come forward. A number of recent cases show that the actions of whistleblowers have been vital in exposing the allegations of serious corruption within public institutions. Crucially, we seek an assurance that there is no information or evidence that could be lost in a black hole between the different inquiries.

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The Home Secretary has chosen not to institute, as we requested, a swifter IPPC-led investigation that is independently resourced. Will the Minister confirm that the Government will ensure that Chief Constable Creedon reports on the specific allegations before the House of Commons Summer Recess? I think that the Home Secretary indicated this afternoon that that was the case in the comments that she made. It would be helpful if he would confirm that for us.

The Lawrence family and the public need the truth and they need it quickly. They deserve the truth. I shall summarise the points that we wish to raise with the Minister and the Government. First, we need a swift investigation by the IPPC into any allegations of misconduct in relation to spying on the Lawrence family; secondly, an update on the corruption allegations; and a clear need for a wider inquiry as Doreen Lawrence, Stephen’s mother, has called for. We need urgent progress and all those three areas and I hope that the noble Lord can give serious consideration and respond positively to all these issues.

7.40 pm

Lord Taylor of Holbeach: My Lords, there is no doubting the seriousness of these allegations, nor indeed the determination of the Home Office, and the Home Secretary in particular, to expedite investigations and report the conclusions of those investigations to Parliament. I emphasise that elements of the inquiries in Operation Herne, the Creedon investigation, will be reported to the Home Secretary and in turn to Parliament as the sections of those investigations are concluded. A Statement will be made to the House before it rises in the summer on the particular aspects that were mentioned by the noble Baroness.

I think it is true to say that police officers are just as appalled as Members of this House at these latest allegations which, if they are true, suggest a mindset that existed in those days, quite some time ago now, which sought to discredit victims. That is an intolerable thing for policing to accept. The Home Office is determined to pursue these matters.

There has been some criticism. I was in the other place earlier and heard the Opposition there suggest that perhaps what we need is one big investigation. I think that the current investigations are actually making considerable progress. The burden of the new allegations will, of course, add to the work that needs to be done. We will make sure that the work is properly resourced and that Parliament hears about the progress of the reports.

Mark Ellison QC has indicated to the Home Secretary that the inquiry of his team is going much wider than just using Metropolitan Police Service files. Because of that, and because of the allegations that are involved, the inquiry is going to take longer to come to its conclusions, but it hopes to report in the late autumn. The Ellison review is working with other investigations. The allegations made in the media today will form part of Ellison’s task, as well as forming part of Mick Creedon’s own investigations through Operation Herne.

I hope I can reassure the noble Baroness that we understand her determination to get to the bottom of this, but I think that the police as a profession want to

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do so as well, to make sure that we know how these things happened in the past and that there is no risk of them happening in this day and age.

Earl Attlee: My Lords, for the benefit of the House, perhaps I may remind noble Lords that short questions should be put to the Minister in order that my noble friend can answer as many as possible.

7.43 pm

Lord Fowler: My Lords, I was the shadow Home Secretary at the time of the Macpherson report, and like the then Home Secretary, Mr Straw, I did not hear a whisper of this. This is a vastly serious charge to make against the police. Perhaps the assumption is that nothing of this kind would happen today, but I think the Andrew Mitchell case shows that that is not necessarily true. I wonder if the time has come when, in addition to the criminal inquiries that have been set up, there should be one public inquiry to look at the whole question of police ethics. Would not that be to the benefit of the police and the public?

Lord Taylor of Holbeach: My Lords, I can understand the concern of my noble friend, who speaks from considerable experience of these matters. As he will know, the Home Secretary has set up the College of Policing, one of the principal tasks of which is to review police ethics and to establish within the policing profession a code of ethics that will guarantee that within the police force itself there is an acknowledgement of what is proper and what is acceptable in policing terms. I share my noble friend’s concern; it is the reason why we are taking things which happened in the past so seriously. We recognise that if we do not eliminate these issues from policing practice, there is a risk that we could see events similar to the ones that we have to talk about today.

Baroness Howells of St Davids: My Lords, I can tell the House that on the night that Stephen was murdered, I was the community relations officer detailed to keep an eye on what was happening. A week after the murder, I was invited to meet the Minister for race relations in the Home Office, the then Mr Peter Lloyd. I was asked if I could say something about what was happening in Greenwich. I explained to him that the Lawrence family were the epitome of any British family. They were married, they had three children who went to school regularly, and they played tennis. Five Englishmen set upon their eldest son and murdered him in the street. At the time the community, in its grief, was concerned about how the police were reacting to the death of an 18 year-old. On the night of the murder, I went to the hospital and had to drive along the road, but the police had not cordoned off the area where Stephen had been murdered. I have said this many times, but today I can say it publicly: we were all very concerned.

After I had explained in detail what was happening, we were told that Peter Lloyd was so moved that he appointed a Member of this House to visit Greenwich. The Member called into the police station and spent a

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day with the police, and he said in his report that the police were doing everything they could. He did not contact the local council, he did not contact the community relations council and he did not contact the community. He did none of those things. We were outraged because we knew that something was wrong.

I stayed by the Lawrences in their struggle for 10 years, at which point I felt that they were strong enough. I would like to ask whether the Member of this House who spent a day with the police will be questioned during this inquiry. He gave the police confidence that they were doing a good job. The community knew that they were not, the race relations people knew that they were not, and the council knew that they were not.

For the black community, the police perjuring themselves in the way they have done is well known. A lot of young people were disenfranchised because of how the police treated them. They would arrest them, but when they asked, “What have I done?”, they would be charged with obstructing the course of justice. There was a time when the Metropolitan Police made it impossible for a young black person to walk the streets of London. If the Government are taking this seriously, and I am sure that they are, this cannot be a “surface” inquiry. I feel that the House deserves to know how a Member of this place could give the police such a good report while the families were suffering. I thank all noble Lords for listening.

Lord Taylor of Holbeach: My Lords, it has been a privilege to listen to the noble Baroness, who has recreated some of the fears and anxieties which the Macpherson report sought to address. There have been few more damning indictments of an institution than that report. What is currently being alleged is that there may have been some aspects of policing at the time which were not reported to Macpherson, including this particular unit and its activities. These are matters of great concern. I have to be brief because other noble Lords want to come in, but I am pleased to have listened to the noble Baroness.

Lord Dear: My Lords, first, I declare my interest as a senior officer in the police service, and also that in the past 18 months I have given professional advice as part of a small group advising HMIC on the Kennedy case. That should go on the record.

I associate myself absolutely with the comments in the Statement that the noble Lord has read out to us. I share entirely the concern, and the tone of that Statement chimes exactly with my own feelings. I would also like to associate myself with the comments that have been made about the Lawrence family, and I will not go over that again. The whole issue is deeply worrying. I have only one small query in my own mind: why has it taken so long for that undercover officer to come forward? No doubt that will be a matter of record later on.

I will make one point and pose one question. The point I would like to make is that my knowledge of undercover operations at the extreme end is that it is a critical and highly dangerous part of policing. Penetrating officers into organised crime groups is difficult. It is

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critical—as the Front Bench has already acknowledged—and a very dangerous involvement indeed, which was not the case with Lawrence and is not the case with Kennedy either. I hope that the ongoing investigations will bear in mind the important end—the dangerous end—of undercover operations.

The noble Lord, Lord Fowler, has already mentioned the need for ethics and I subscribe to that. He is quite right, but I would take it a stage further. My question to the Minister concerns leadership. Ethics are no good unless the values of the service and the moral and professional compass of the service are there first. It needs leadership to hold it together and move it forward. This is a drum I have beaten here before, as the Minister knows. I would like reassurance from him that the whole question of leadership—not the College of Policing but leadership—is being addressed as a matter of urgency within the Home Office. It is to do with recruiting and training the right people, giving them the space to operate and encouraging leadership rather than management. With good leadership, this sort of thing should not and would not happen. That is the essence of the whole problem that we are looking at.

Lord Taylor of Holbeach: Many senior police officers are aware that there is far too much focus on management and not enough on leadership. It is, after all, the police force that we are talking about. Police forces need leadership and command and a sense of direction and focus. All that the noble Lord has said, from his vast experience, points to the disappearance of some of that focus in modern policing. The Home Office is determined to get it back. I hope that addresses the issues that concern him.

Lord Dholakia: My Lords, this is one of the most positive Statements to have emerged from the Home Office on this episode. Obviously, differences of opinion remain about the nature of the inquiry. I will make three points.

First, we endorse the sentiment expressed with regard to the tragedy and the further agony that the Lawrence family will experience on realising that the undercover operation was actually trying to implicate them—the nasty part of British policing. Two questions arise. The Macpherson inquiry talked about institutional racism. Would that inquiry have stopped talking about institutional racism if it had known that the police were involved in such an undercover operation? Would it not have recommended at that stage the need to criminally investigate police who were involved in this undercover operation? I raise this because there has been botched operation after botched operation in the investigation of this case.

My second point concerns the nature of the investigation, which the noble Baroness from the Opposition spoke about. I have full confidence in the IPCC and how it is supervised. However, public perception is still that the police and others tend to investigate themselves no matter how one supervises them. I do not believe in that. In this case, it is matter of innocent people against whom the police acted wrongfully. We need clear answers and that can come about only through an independent investigation.

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The third point, if the Minister could reply, is that whereas one endorses what he says about covert operations where matters of national security are involved, this is an ordinary family who had lost a family member. What is the matter of national security in relation to this case? The sooner we get to the root of this problem with an independent inquiry, the better for British policing.

Lord Taylor of Holbeach: My noble friend is absolutely right. The Macpherson inquiry was only as good as the information that was made available to it. I said in my earlier response that if the Macpherson inquiry had had knowledge of the allegations that we are now aware of, there would have been a fuller investigation of this particular aspect, which may have changed the tone of that report even further.

I emphasise that the Ellison inquiry is an independent report. It stands outside the police force. However, we know that we need the police to investigate these sorts of matters. They are the vehicle in this country—they have the powers of arrest. They have the power and we need that power if we are going to pursue these allegations fully. Having Mark Ellison working alongside them, investigating the scope of these investigations at the same time, we have that degree of independence, which justifies the parallel passage of these inquiries and investigations.

The Lord Bishop of Ripon and Leeds: My Lords, I express from these Benches the way in which our hearts go out to Doreen and Neville Lawrence at this fresh pressure upon them at this time. In that context, accepting the point made by the Minister that undercover operations are necessary to protect the public, I emphasise that the distinction between undercover operations and dishonest deception is a fine one. Therefore, can he tell us more about the possibility and timescale for a clearer code of conduct for undercover operations? How much—if any—of that could be published?

Lord Taylor of Holbeach: In order to set up proper supervision of undercover operations, primary legislation will probably be required; certainly legislation of some sort will be required, as was indicated by my right honourable friend Damian Green last week. He talked about secondary legislation to raise the level of authorisation for long-term undercover deployments to that of chief constable and to introduce a system of independent approval by the Office of Surveillance Commissioners for all renewals of long-term undercover deployment at 12-month intervals, so that there will be supervision by an independent body, set up by Parliament, to ensure that these operations are properly supervised.

Of course, the right reverend Prelate is absolutely right that we cannot reveal details without blowing the operation. However, the principles under which these operations are conducted will be established by using the Office of Surveillance Commissioners to supervise them.

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Baroness Uddin: My Lords, I echo the sentiment of the House and pledge our support to Doreen Lawrence, whom I have the privilege of knowing personally. It must be devastating to learn, just as she begins to build a relationship with the police, hoping that there will be proper and full justice for her son, that she faces yet another blow. If these despicable allegations are true, were the Home Secretary or the Metropolitan Police Commissioner at the time aware of them? If so, what assurance will the Minister give to the House that there will be zero tolerance for institutional racism, not only within the Metropolitan Police but all across our institutions in this country?

Lord Taylor of Holbeach: There is no tolerance of racial discrimination in this country. It is one of the features that have changed since those times. The Home Secretary became aware of these allegations only on Thursday last week. No Home Secretary that I know of has been aware of these allegations. We know that the noble Lord, Lord Condon, who is not in his place today but who was commissioner at the time, has widely condemned these allegations and had no knowledge of them, as he says in a statement which he issued earlier today.

Lord Elystan-Morgan: My Lords, I most warmly congratulate the Minister on the sincerity and sensitivity with which he has approached these grave allegations. The question has been raised as to exactly how boundaries should be drawn. I respectfully suggest that this House, sitting in its appellate capacity in the Loosely case 13 years ago, laid down very specific and intricate rules. If those can be made a living law—exactly how that is to be done I am not sure—the problem, to a large extent, would be answered.

On the Lawrence question, it is perfectly clear to the House that a small, select, covert and confidential cell was set up to do a very specific job—to besmirch the Lawrence case. That decision could not have been a haphazard one. It must have been arrived at at a fairly senior level of management. The British public will want to know who that person was. Anything short of that would leave a huge gap in credibility.

Noble Lords: Hear, hear.

Lord Elystan-Morgan: Saying that gives me no pleasure, as someone who was Police Minister in the other place 45 years ago and thinks that we still have a most splendid police force, with few exceptions.

Lord Taylor of Holbeach: What the noble Lord says is quite clearly the nub of the issue. That is what the investigation of these allegations is designed to discover. It is not going to be easy. This was quite some time ago and many of those involved have passed on. It will not be easy to get to the truth. The paper trail and the documents may not exist—we do not know. However, I believe that the public demand this sort of scrutiny and transparency and it is right that they do so. We need to pursue the allegations with vigour because we need to show that this cannot be tolerated in retrospect and it certainly cannot be tolerated today.

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Social Security (Disability Living Allowance, Attendance Allowance and Carer’s Allowance) (Amendment) Regulations 2013

Motion of Regret

8.05 pm

Moved by Lord Alton of Liverpool

That this House regrets that the Social Security (Disability Living Allowance, Attendance Allowance and Carer’s Allowance) (Amendment) Regulations 2013, laid before the House on 4 March, will result in the loss of Motability provision for many disabled people; and that this House considers that transitional arrangements should be put in place urgently. (SI 2013/389)

Lord Alton of Liverpool: My Lords, the House will be aware that this Motion of Regret refers to the Social Security (Disability Living Allowance, Attendance Allowance and Carer’s Allowance) (Amendment) Regulations 2013. My three particular concerns, referred to in earlier debates, relate to: first, the way in which the changes in regulations will impact on the support which disabled people need to ensure mobility; secondly, the role of Atos Healthcare in assessing those who will be reassessed for PIP as a consequence of the changes; and, thirdly, the 20/50 metre criteria used for enhanced personal independence payment.

On the latter question, I begin at least with a welcome for the Government’s decision to consult, over the summer, on the 20/50 metre criteria for enhanced PIP. I hope that the Minister will be able to assure the House that this will be a genuine consultation and not simply a paper exercise, going through the motions, to avoid judicial review. In a Written Answer on 13 February, the Minister said:

“Once PIP legislation is in place, any consequence of a failure to meet the entitlement conditions for the enhanced mobility component would not result in a judicial review as long as the legislation was applied fairly to the claimant. We have robust dispute resolution procedures in place to ensure that this is the case”.—[Official Report, 13/2/13; col. WA 157.]

Presumably, the new consultation is a recognition that the earlier announcement was not based on fairness. If this really is to be a genuine consultation this time, and the new regulations applied fairly to each claimant, the Government will need to assure us that they will publish the responses to their consultation and explain the reason for their eventual decision. Will the Minister outline the procedure that will be followed? Until the consultation has been undertaken, how will current claims be assessed? Which rules will apply? What will happen to those claimants if the consultation determines that the rules have to be changed?

There are two other two issues which I want to explore: the impact on disabled people’s mobility and the role of Atos Healthcare. On February 25 last, with the support of my noble friend Lady Grey-Thompson, who has been unable to join us this evening because of pressing family commitments but who wishes to be associated with these remarks, I moved an amendment in Committee to the Welfare Benefits Up-rating Bill.

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My amendment was a plea to the Government to think about providing a transitional arrangement—perhaps at least a two or three-year period of grace—for those who already have vehicles and who risk losing them. Prior to that amendment, on 17 January, 24 January and 13 February, and in a series of Written Questions, I pressed the Government about the impact of their proposals on disabled people.

Subsequently, on 30 April, the Minister for Disabled People and Member of Parliament for Wirral West, Esther McVey, met my noble friend Lady Grey-Thompson and me, along with Jane Young, who has done a great deal of work in ensuring that this issue does not slip from sight. The Minister told us that the DWP would be announcing its own transitional arrangements this month. Can the Minister tell us what has happened to them? Since our meeting, Ms Young has been told that the department’s transitional arrangements would be reworked into joint transitional arrangements with Motability. Can the Minister can tell us whether that is so? How will that assist those who use their higher-rate mobility component on an alternative means of independent mobility other than the Motability scheme? I hope the Minister will be able to tell us.

During those discussions we made the point, which I reiterate tonight, that this is not a trivial issue. According to the noble Lord, Lord Sterling, who does such admirable work chairing Motability, there are 620,000 Motability vehicles on the road, which he says is probably the largest fleet of such vehicles in the world. That figure simply refers to Motability vehicles, not to the significantly larger number of people who rely on other forms of transport to ensure a degree of independent living. The Government have been unable to tell us, throughout these debates, how many people will have their vehicles sequestrated or repatriated and how many people who currently receive help with transport will lose access to that help. My noble and learned friend Lord Hardie has also been attempting to extract information about the numbers of people. Members of your Lordships’ House will have seen his recent Written Questions about this. I suspect that obtaining that information has been rather like drawing teeth.

I for one do not believe that Parliament has any business enacting government policies without knowing what the full effect will be of their proposals. For Parliament to be asked to walk blindfolded into decisions will undoubtedly result in some Motability users having their specially adapted vehicles repossessed. That is simply unconscionable and deeply irresponsible.

Although I am appreciative of the time that Esther McVey spent with my noble friend and me, I freely admit that I am still no wiser about the number of people who will lose their vehicles or be affected by these changes. The detail of the Government’s proposals is still inadequate; we simply do not know. The inadequate consultations match that. The transitional arrangements which are to be put in place by both Government and Motability are simply in the ether. We do not know what they are. It is for that reason that I tabled this Motion of Regret this evening and to ensure that the noble Lord, Lord Freud, who has spent a lot time on

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these questions, has the opportunity to come to your Lordships’ House to explain in more detail and answer some of these questions.

On 17 January I asked:

“Can the Minister confirm the Government's own prediction, made earlier this month, that 27% fewer working-age people will be eligible for the Motability scheme once PIP is fully rolled out? Disability organisations say that the new proposal means that 42% fewer disabled people of working age will be eligible—an average of 200 people in every constituency”.—[Official Report, 17/1/13; col. 818.]

I received no reply on that day but on 13 February the Minister told us:

“Yes, my Lords, there is some churn”.— [Official Report, 13/2/13; col. 742.]

He also said:

“My Lords, we know how many people will get the higher mobility component, a figure that will clearly be fewer under PIP than under DLA. I have provided those figures but, just for the record, the figure of roughly 1 million people on the DLA component in a steady state will reduce to roughly 600,000”.—[Official Report, 13/2/13; col. 741.]

How does that translate into repossessed vehicles and into the loss of Motability support?

Let us be clear. One third of disabled people live in poverty. Some claimants will lose as much as £150 per month if they fail to meet the newly tightened criteria, an annual loss of around £1,800. Their situation will be unbelievably bleak. On the other side of the coin, Oxford Economics estimates that the mobility provided for disabled people contributes to our nation’s economy by the equivalent of £1.3 billion every year, as I pointed out in an earlier debate after being referred to the document by the noble Baroness, Lady Hollis.

The Disability Benefits Consortium, which represents more than 50 disability rights groups, reminds us that it is not just about the positive contribution made by disabled people. Motability vehicles are,

“their means of independence and participation, the lifeline that enables them to get to work, to GP appointments, to the shops or to take their kids to school”.

We simply do not know what is going to happen to people, some of whom have had very expensive adaptations to their vehicles, and who will be left without an adequate method of getting around. We especially do not know what the effect will be on people living in places where public transport is not easily available or accessible. As my noble friend Lady Grey-Thompson told the House in February:

“The short timescale between notifying someone of their car being removed and it being taken away could make life extremely difficult. Without some further protection, it could lead to chaos for many disabled people”.

She continued:

“At the briefing that was held on the PIP regulations on 22 January 2013 with the Minister, the noble Lord, Lord Freud, and the Minister in another place, Esther McVey, it was my understanding that the timescale for someone having to return their car if they were no longer eligible for PIP could be relatively short, perhaps just a matter of a few weeks”.—[Official Report, 25/2/13; col. 937.]

Can we now have further clarity on the timescale? I should be grateful if the Minister would remind the House how much public money is provided to Motability

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each year and tell us what discussions the Government have had with Motability about transitional arrangements and a package of support.

8.15 pm

I was surprised to see that when Norman Baker MP, Parliamentary Under-Secretary for the Department for Transport, was recently questioned by the House of Commons Transport Select Committee, he admitted that his department had,

“not particularly been involved … in any Motability discussions”,

with DWP and that his department should have done more to consider the impact on tens of thousands of disabled people who are set to lose their right to use the Motability car scheme. So much for joined-up government. Norman Baker also said that the department would,

“try to make sure that there are alternatives available through public transport and … that they are as accessible as possible”.

He obviously had little experience of how inaccessible this country is for sick and disabled people, something which the Mayor of London accepts, stating that,

“the reality is that even with complete Mayoral commitment a fully accessible service will take many years to achieve”.

That is why, when referring to the mobility component changes from DLA to PIP, Boris Johnson’s formal response to the DLA reform consultation states:

“The Mayor does not support this change”.

To understand why he and many of us do not support these changes, Mr Baker and the Minister should read my noble friend Lady Grey-Thompson’s account of how she has literally had to crawl on and off trains, or how Kaliya Franklin was left in a tradesman’s office and forgotten about at a main London train station while waiting for help.

For people faced with losing their adapted cars and being forced to rely on public transport, the prospects will indeed be bleak and are made even worse by the lack of clarity about how the policy will be implemented. There has been speculation that users may be allowed to keep their cars for one extra month in order to give them time to find a replacement, and perhaps provided with some financial support to help them make adaptations to their replacement vehicle. Clearly, even if people come out of the process with between £500 and £1,000, that is not the same as still having their vehicle. What figure does the Minister put on the assistance that will be given? Can he tell us how many vehicles will be offered for sale—something he referred to at the briefing that was held in an upstairs committee room? It seems extraordinary to me that disabled people could have their own vehicles offered to them for sale. At what average price does he anticipate that they will be sold? How does he expect disabled people to find the funds for these purchases or for new vehicles and modifications?

I turn to my third point. I would like to hear the Minister’s reaction to a story published last week by Disability News Service and written by John Pring—I have given the Minister prior notice of my raising this. It reflects serious concerns over the Atos Healthcare tender document and how it was awarded the contract to assess disabled people for personal independence

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payment in London and the south of England. Disability News Service suggests that Atos has broken a series of firm pledges that enabled it to win a £184 million disability assessment contract. The story comes as the DWP is rolling out the assessments for PIP across the UK and it surely raises worrying questions about the transparency and management of contracts won by tender and involving millions of pounds of public money.

The tender document stated that Atos had “contractually agreed” with 22 subcontractors for them to provide a network of 750 assessment sites across that area. This has fallen to just eight subcontractors since the contract was signed—22 down to eight. Atos stated:

“Each partner has contractually agreed to providing accommodation to the required specification”—

DWP’s specification. It also said:

“We conducted an evaluation process, including site visits, to select the PIP consultation locations of the highest quality. This has allowed us to identify sufficient, suitable accommodation, ready for go live and available for the length of the contract”.

Atos estimated that its “hyper-local” service would mean that no claimant had to travel more than 60 minutes by public transport to attend an assessment. Atos has now refused to say how many of the 750 assessment sites are left, while a DWP spokeswoman said last week:

“We do not have that information. We really don’t know. We are not sure”.

This is another example of not knowing how policies are going to work out. Perhaps the Minister can tell us tonight.

Why does it matter? It matters because the changes will mean that many disabled people with significant mobility and care needs will face longer journeys—possibly up to 90 minutes by public transport—to reach their assessments, rather than the maximum of 60 minutes promised by Atos when it bid successfully for the contract.

Can the Minister confirm that the award of the two PIP contracts are, together, worth nearly £391 million to Atos over the next four years and say what discussions he is having with it about the failure to honour the tendering commitments? Has he also raised with Atos the earlier complaints made last October by disabled people’s organisations that it had used misleading information about its links with those organisations to help to win two of the contracts?

The article quotes my noble friend Lady Grey-Thompson as remarking:

“There were many assurances given during the debates on PIP … People believed that a significant number of assessment centres would be available, and the geographical location would make travelling much easier. If the number of assessment centres is radically different to the number that were in the tender document then that should be openly explained”.

I entirely agree with her. I would like to know whether the Minister has been in touch with the NHS foundation trusts cited in the article to which I have referred. Cambridge University Hospitals NHS Foundation Trust is quoted as saying:

“We never got that involved at all. They put our name in the tender document, although they shouldn’t have done. I think they emailed us, but we said, ‘No, we are not interested’.”

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North Essex Partnership NHS Foundation Trust, also mentioned in the tender document, said:

“The trust never had an agreement or contract with Atos. We had exploratory discussions as part of a consortium ... which did not go any further”.

Norfolk Community Health and Care NHS Trust said that it became aware that it had been mentioned in the tender only some time after the document was submitted to the Government. A trust spokeswoman said:

“We cannot be responsible for what they have put in, but it wasn’t with our agreement”.

There are similar comments from Norfolk and Norwich University Hospitals NHS Foundation Trust, Mid Essex Hospital Services NHS Trust, and University Hospitals Bristol NHS Foundation Trust, which said that,

“no formal agreements of any sort were reached before discussions were terminated by mutual agreement”.

An Atos spokeswoman was quoted in the article as saying that DWP was,

“fully aware throughout of the fact that contracts were not in place between Atos and its selected suppliers”.

Perhaps the Minister can confirm whether that is true and on what basis the DWP’s spokeswoman was able to tell Disability News Service:

“We have no reason to doubt that Atos and their partners are able to deliver [the contract] successfully”.

At the very minimum, this must reinforce the doubts that so many of us have about Atos and the new arrangements which the Government are putting in hand. Perhaps the central question is why the Government are content to spend taxpayers’ money paying a company that fails to honour its contract to the detriment of disabled people. Do they accept that, by failing to hold Atos to account, they will encourage it to behave in ways that it believes its paymaster will approve rather than providing an objective service to disabled people?

This latest saga also underlines how many health authorities Atos proposed to use. As these are organs of the publicly funded National Health Service, why could the Government not have appointed them to carry out this work, cutting out the Atos middleman and giving much better value for money to the taxpayer? Perhaps some of the money that they saved could be used to prevent the sequestration of disabled people’s specially adapted Motability vehicles in these hard times which we are constantly told drive the Government’s policies.

I hope that some of these well founded concerns—about the lack of clarity about the scale of the impact on disabled people; about the criteria that will be used for assessments; about the arrangements being put in place by Atos to carry out assessments; and about the absence of transitional arrangements—will be properly addressed and that, when these policies are implemented, no one, especially Ministers, will be able to say they had no idea that these would be the regressive consequences of the ill starred measures which the Government have promoted. I beg to move.

Baroness Thomas of Winchester: My Lords, I am extremely grateful to the noble Lord, Lord Alton, for giving us this opportunity to raise again the issue of PIP and the higher rate mobility component. This, of course, is the gateway to the Motability scheme which

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enables so many disabled people—including myself—to get about. I declare that interest.

I shall say a word about PIP in general, but turning to these regulations, I am pleased that Motability has stated that it aims to avoid recovering vehicles from hospital in-patients affected by this change. If the car has been adapted to suit the claimant’s condition, then it could be very expensive for a Motability car to be recovered and for the claimant to apply again when he or she comes out of hospital, and another Motability car has to be adapted in due course. Presumably the payment of the higher rate mobility component of DLA will continue to be paid if a person is in hospital for more than four weeks. Perhaps the Minister could tell me if that is the case.

Turning to other matters, I am very glad that the DWP is reopening the consultation which it failed to do on the final version of the PIP criteria. Even though the amending regulations should make the position clear, none of us who has taken part in these discussions has any confidence that the assessors will properly take the criteria in the amending regulations into account—even though they are mandatory. I hope that the new consultation will not be an empty exercise and that the DWP will take on board what disabled people say and change the original criteria if the consultation makes it clear that this should happen.

One matter which I am very disturbed about is the figure of 600,000 claimants that the Government say will disappear from their books once PIP is introduced. Where did the DWP get this figure from? Is it saying that these people are not disabled enough, or that they are now receiving DLA fraudulently? How closely is it in touch with the Department of Health, which might be able to enlighten it about improvements in treatments for many disabled people, meaning that they are likely to live longer with their disabilities?

The mantra we hear constantly is that PIP is to be targeted at those who need it most. However, although that sounds good and right, it is actually pretty meaningless because DLA and PIP are not to be means-tested. So one is left with a subjective judgment by a DWP decision-maker—heavily influenced by the assessor. Without targets, how will the decision-maker judge one person against another? Outside the Chamber, the noble Lord, Lord Alton, said they would need the judgment of Solomon. Instead, they have the judgment of Atos. I know which I prefer.

Tonight we heard more from the noble Lord about the Atos contracts, so I shall not repeat those facts, which are very disturbing. In general, I supported the move to PIP, because of the inadequacy of the DLA form, but there are too many question marks over the whole process for me to have any confidence in it any more.

Baroness Hollis of Heigham: I want to make three brief points, but first declare an interest. Two members of my extended family have Motability cars and they are their lifeline. I shall make a point about statistics, one about appeals and finally a point about isolation. I shall try to be quick because we are pressed for time.

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On statistics, as I recall when we were doing the Welfare Reform Bill, we were told that something like 600,000 of those getting the higher rate DLA mobility component would drop and about 200,000 of those on a lower rate would go up, leaving a net loss of 400,000 people on DLA mob. As understand it from our debates at the time, something like 27% of those people converted their DLA higher rate mob into a car. Therefore it means we are talking about the loss of potentially 180,000 Motability cars from disabled people who are dependent upon them. These are cars which in many cases have been extremely expensively adapted to them and therefore are of relatively little use for people following after, because they have been customised. This leaves the disabled person without any ability to afford alternative transport, because they too cannot afford those adaptations done by Motability. So on my first point about statistics, I think we are dealing with about 180,000 cars. If the Minister can correct me on this, I should be pleased to know, but it is a huge number.

Secondly, there are appeals. At the moment, between 40% and 50% of all appeals on DLA are successful. One reason is that there is often a considerable time between the DLA assessment and the appeal, by which point someone may have got worse or, possibly, better and, as a result, the evidence is contested. The problem is the length of time taken to hear the appeal. If it takes six months to hear an appeal against Atos, you lose your car after one month, you win your appeal, but then you have to wait for a new car with all the expensive adaptations while 180,000 cars are effectively on the scrapheap, that seems a foolish and unwise use of money.

8.30 pm

How can we overcome that? We have to link the transitional arrangement under which you can hold on to your car to the end of the appeals procedure. That could be three months; it could be six months. I am sure that the Minister will say, “That would encourage everyone to appeal”. Possibly, but we could at least have a decision-maker review in the first place, which would winnow out some and get that information looped back to the person appealing. If the Minister so chose, that would lead to an acceleration of the appeals process, which in all decency would be a good thing in any case. It would allow for better quality judgments, because the appeal would be heard much closer to the original decision and would therefore be based on the same evidence, which is not what is happening at the moment. That would be good for both the department and the disabled person.

Can the Minister give us an assurance that we can link the length of time it takes to have an appeal to the transitional time during which you can hold on to your vehicle? Otherwise, it is really absurd. I know that the Minister can find a way around this if he chooses.

The third point is about isolation. What comes out clearly time and again is that if you take away the Motability car, you turn a disabled person from being independent to being dependent on other people. More than that, you lock the person on whom he depends—I

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say “he”, and it is therefore likely to be his wife—into a shared isolation with him. She has to be permanently his runaround carer as well as his home carer, because he has no capacity to have any independent life apart from her support. That locks them into a shadowy dance into isolation, which is disastrous for them both.

Those are my three points: the number of cars that we are talking about, which I judge to be about 180,000; the problem of the length of time to hear appeals, which mean that more cars will be lost which then have to be restored—unless the Minister can calibrate and bring together the two; and, thirdly, the need to ensure that we do not send disabled people and their carers into isolation. That is particularly marked in rural areas. There, disabled people have few options. They cannot afford taxis, they do not have buses, they cannot walk those distances, and they cannot run scooters because the distances are too far. Without their Motability car, they are locked into their home as well as their isolation, as are their partners. For those three reasons, I very much hope that the Minister can give us more satisfactory reasons this evening than we have had so far.

Lord Hardie: My Lords, I declare an interest as honorary president of Capability Scotland and share noble Lords’ concern about the changes to the regulatory regime. In that regard, I refer noble Lords to my observations of 13 February at cols. 737-78, which I shall not repeat. The present regulations, among other things, affect claimants who have entered into a Motability agreement and are thereafter hospitalised. The noble Baroness, Lady Thomas of Winchester, derived some comfort from the assurance that Motability will not recover those vehicles if a patient is hospitalised, but if one reads paragraph 7.10 of the Explanatory Notes, one sees that that is not what the Government have said. They say that the Motability scheme has stated that it would aim to avoid recovering vehicles from hospital in-patients affected by that change.

That is not the absolute assurance that hospital patients will not lose their vehicles. Without such an assurance, the reality is that if a person is in hospital for a particularly long period, the payments made by the department to Motability on behalf of the patients will not be made and the vehicle—the car, motorised scooter or motorised wheelchair—may well be recovered. Indeed, the Explanatory Notes recognise that if it has to be recovered, Motability will give some allowance, depending on the condition of the vehicle when it is recovered.

These are concerns, because the present system means that payments direct to Motability continue to be made after the hospitalisation of a claimant. That is recognised as an exception to the rule that social security benefits are affected after hospitalisation. In my view there is a good reason for that, because these payments are payments of a capital nature to enable people to have the necessary facilities to give them the independence that they need. They are different from revenue paid direct to the person for their maintenance.

Regulations 10 and 11 remove this exemption for no good reason. It is no answer to say that it is intended to bring Motability users into line with

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other recipients of DLA or PIP. As I have sought to explain, they are in a different position to the other claimants. Moreover, the consequences of this change are draconian. There is a real risk of the repossession of necessary equipment, resulting in the inability of such claimants to lead independent lives after they leave hospital until they are able to renegotiate other Motability contracts. The noble Baroness, Lady Hollis, explained the complexities of that. There will be a delay in obtaining necessary equipment, during which period these people will not be able to live the independent lives that they have enjoyed previously. Can the Minister advise the House what timescale is involved between the order and delivery of a purpose-built powered wheelchair, scooter or modified vehicle?

I also ask the Minister what is the urgency in promoting this change, particularly in view of the announcement by the DWP on 17 June, already mentioned, of a further consultation on the mobility component of PIP? Would it not make sense to have an integrated approach and to leave these changes to form part of the consultation process? Has there been any consultation with interested parties or the public at large about this significant change? If the Government are not willing to await the outcome of the consultation, can the Minister tell the House how many people will be affected by this proposed change?

The loss of a wheelchair or car may have greater implications in different parts of the country. I have been anxious to assess the whole issue of Motability payments and their geographical distribution because I suspect that the impact of the loss of a vehicle might have greater impact in rural areas than in cities where there are probably better—although not ideal—transport facilities for wheelchair users. On 4 June, I tabled four Questions for Written Answer about the Motability scheme and received a reply dated 13 June. I refer noble Lords to Hansard cols. WA 255-56. I commend the Minister and his officials for the speed of the reply but it did not answer all my questions. My Questions HL594 and HL595 sought data for three years—2010, 2011 and 2012—but the answer provided data only for the last year, preventing me from undertaking any effective analysis.

Moreover, in relation to Questions HL596 and HL597 seeking information about participants in the Motability scheme, the Minister replied:

“The Department does not hold information on the numbers of Motability customers in each local authority district or area of Great Britain”. [Official Report, 13/6/13; col. WA 256.]

That reply echoes his statement on 13 February at cols. 741-42.

I have some difficulty with these statements. As I understand the system, if a claimant elects to use the Motability scheme, payments on his or her behalf are made by the department directly to Motability. If my understanding is correct, the department must know how much it is paying to Motability and on whose behalf payments are being made. This information will identify the local authority, district or area of each claimant on whose behalf payments are made. I have written to the Minister seeking a full answer to my Questions and I look forward to receiving that in due course.

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