5.45 pm

Baroness Farrington of Ribbleton: My Lords, the noble Baroness, Lady Deech, referred to me by name. The issues that various noble Lords have raised, particularly those just raised by the right reverend Prelate, are incredibly important: the diversity of family patterns and the circumstances in which people find themselves. Personally, I would like to debate and look in particular at the role of carers—the relationships they form with other members of the family or, in the example given by the noble and learned Lord, Lord Lloyd, someone for whom they assume a responsibility because of the way they feel about that person. I would be delighted to debate that issue, not even in a review, but now. I have waited for a long time, because during the civil partnerships debate in your Lordships’ Chamber the issue was raised quite frequently. However, I do not believe that this is the vehicle for doing that.

The noble Baroness, Lady Deech, referred to “cohabiting”. If you ask the average person in the street the meaning of that word, you will get a variety of responses. If you ask a councillor, they would think of somebody who is claiming that their benefit in the past has been withdrawn because of the nature of their relationship with somebody in the house. These are complex issues. They need seriously to be developed, in the right way and at the right time. I fear that this is exactly the wrong time. If you ask anyone outside your Lordships’ House, including a boy of 12 to whom I spoke, this is about marriage and for people who wish to get married because they love each other in a particular way. I hope that all noble Lords will resist the temptation to tackle the subject of this amendment at the wrong time and in the wrong place.

Lord Cormack: We are not seeking to determine it this afternoon. We are merely asking that those experts, presumably dispassionate, and in whom we can all have confidence, should look at this and make the review a little more comprehensive than is at present envisaged. That is all we are asking.

Baroness Northover: My Lords, I remind noble Lords that we are on Report. If noble Lords have already spoken, unless with the permission of the House they are asking a question of a noble Lord, they should not speak again.

Baroness Farrington of Ribbleton: My Lords, the noble Lord, in speaking in support of this amendment, has got exactly the right wagon but is seeking to attach it to the wrong train, which is going to the wrong place. I absolutely agree that this issue must be dealt with. However, I do not believe that noble Lords who have spoken are actually saying that they think the Bill is about anything other than same-sex marriage. Therefore, I hope that noble Lords will find another vehicle to attach their wagon to, in which case I, too, as my noble friend Lord Alli said, will be their supporter.

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Lord Dear: My Lords, as somebody who once drove teams of horses with wagons behind them at a competitive level, may I be allowed to make a very small interjection? Although my name is not on the Marshalled List, as there was no room for it, I support my noble friend Lady Deech. I cannot add anything to the power of her argument or to the impeccable logic that she showed when she advanced the amendment.

The words “equity” and “decency” have already been used in support of this amendment. I would add “generosity”, “compassion” and certainly “appropriateness”. As she has already said, this amendment seeks to correct a prior-acknowledged discrimination. It asks the Government only to consider this within the terms of a review—not to change the Bill but simply to cause the review panel, the review body, to look at this issue. I was not in your Lordships’ House when the matter was debated eight or nine years ago. However, I have been told by many noble Lords whom I respect that there have been many attempts to try to couple this issue on to the appropriate wagon or stagecoach, and it has not been found. Here is an opportunity for us to do that. It will not get in the way of the current Bill. I certainly do not intend to do that, and I am quite sure that my noble friend does not, either. The time is right for a review, and if my noble friend presses her amendment, I will vote in favour of it.

Baroness Berridge: My Lords, when discussing previous amendments in Committee and on Report, much was said about teachers being required to teach the law of the land. I do not envy their task, as the law regarding different personal relationships has become rather complex. That was best exhibited by the exchange just now between the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Alli, about whether civil partnerships are a sexual union. I have friends in civil partnerships who, when they went to the register office, were separated and asked questions to ensure that their relationship was sexual. Although these matters need clarifying, I shall state my understanding of the situation.

Opposite-sex marriage is understood to be a sexual relationship because it can be ended by annulment and by divorce on the grounds of adultery with a member of the opposite sex. Civil partnerships are same-sex and, for the reason I outlined, treated as sexual, but there is no annulment. Platonic friends can marry if they are of opposite sexes or of the same sex, but the lack of annulment for same-sex marriage may lead the institution to develop very differently. I agree with the right reverend Prelate, who stated what the position is in modern Britain. The demographics of our country are changing rapidly. In the 2011 census, 29% of UK households were single-person—not single-parent—households. The fact that two people can live more cheaply than one is becoming increasingly important with rising living costs, poor returns on private pensions, and high housing costs.

We could end up seeing someone who wants to say to their best friend, with whom they share a house, “You can depend on me. I am your first port of call”. The commitment would be not merely financial, or about inheritance tax, or being one household for the

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purpose of benefits. With an ageing population, the Government should be pleased if this kind of development occurred under the same-sex marriage Bill.

Of course, that analysis means that carers, as outlined in the amendment, can already marry and gain the financial benefits outlined. If we were to see such a cultural development, the injustice to family members would be even more apparent. One might even see deeply religious people of the same sex who currently oppose the Bill getting married, if same-sex marriage develops in our culture in the way I outlined. That kind of development might even make it easier for marriage to be used mischievously for immigration purposes. We just do not know.

The amendment would give clarity and direction to this review. The review would give the Government time, which they have not had with such a speedy legislative process, to look at the whole legal relationship landscape.

I noted the comment of the noble Lord, Lord Alli, that it feels wrong to him. It was a very subjective, post-modern comment. It feels wrong to me to close down the area of discussion that a review would enable. If it was so wrong to put this wagon or coach on these horses, the amendment would not have been allowed on to the Marshalled List.

I support the amendment, because it would be unjust if everyone—and I mean everyone—except family members would be able under our law to promise a lifelong, non-sexual commitment or dependency.

Baroness Kennedy of The Shaws: My Lords, I oppose the amendments in this group. It is disingenuous of those who tabled and support them to suggest that those who do not see the purpose of them are being hard-hearted. I was shocked to hear lawyers who have spent their lives in the law not recognising the implications of extending a law that is essentially about marriage, or a commitment to a sexual relationship—that is what it is about—and imagining that a civil partnership between a father and daughter, or a brother and a sister, should be blessed, as was even suggested, and that it may come to that because of the great multiplicity of relationships that there are. I cannot believe that I heard senior lawyers endorse this. I can only believe that they did so because they want to dilute the purposes of civil partnerships.

Baroness Deech: My Lords, on a point of order, I do not think that anyone has suggested that fathers and daughters, or brothers and sisters, should get married. This is about asking the Government to include the position of carers in an inquiry. That is all.

Baroness Kennedy of The Shaws: The point of my opposing the suggestion that that should even be considered in the review is that we know that it will continue the debate that has taken place in this House over the past weeks, and because it is intended to undermine the Bill, the purpose of which is to end discrimination against gay people. The Bill is about civil rights. The right reverend Prelate on the Bishops’ Benches suggested that this would all be about recognising important relationships that are somehow on a par

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with a couple who choose to be with each other because of their sexual attraction to each other, their love for each other and their desire to stay together. I cannot imagine that the church would think that that was a good thing.

I cannot imagine it because we know that this is about choosing a partner whom you intend to be with. It is about the yearning among human beings to choose someone as your love, to be with your beloved and to share your life with them. That is very different from the relationships between brothers and sisters, and fathers and daughters. We should think of the implications of a civil partnership being extended to a father and daughter. Are we going to put an age limit on it? Is the father going to be able to enter into such a civil partnership with his 22 year-old daughter, or his 18 year-old daughter? We have to be conscious that this is yet another way of trying to scupper the Bill. The intention is to continue the debate and the argument long after the Bill has passed. Therefore, I urge everybody who cares about making sure that there is an end to discrimination towards gay people in this nation to vote with those who are against the amendment.

The Lord Bishop of Chester: My Lords, I did not want to speak again, but given the way in which—

Baroness Stowell of Beeston: As my noble friend pointed out earlier in the day, we are on Report, so the only basis on which we are allowed to speak twice is if we are asking a specific question of the person who is speaking. The right reverend Prelate has already spoken.

The Lord Bishop of Chester: The guideline is that a Member is allowed to explain himself on an important point. That is what the guidelines say, and that is all I wish to do. I want to make it clear that I do not wish to extend civil partnerships as they are now to the sorts of relationships that are in the amendment. Clearly, if family relationships and carer relationships came into civil partnership, it could change the nature of civil partnership. I understand that that would be within the terms of the review.

Baroness Kennedy of The Shaws: I will respond very briefly to the right reverend Prelate. Over the weeks I have listened to people of strong religious faith saying that extending marriage would undermine a social institution. What could undermine the social institution of committed sexual relationships more than the idea of fathers and daughters entering into a contractual partnership? If we care about social institutions, we should recognise that that would be a good way of undermining them.

6 pm

Lord Anderson of Swansea: My noble friend is coming to the view that a review will come to a certain conclusion. We do not know what conclusion that review will come to. The question is surely that we know that under Clause 13—and this was a fairly late addition by the Government—there will be a review of civil partnership. We also know, under Clause 2, that it

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does not prevent the review also dealing with other matters relating to civil partnership. Are those who are against the amendment suggesting that the review should be stopped from dealing with those matters?

Part of our problem as politicians—or Members of this House, who may not consider themselves politicians —is that we face this disconnect between what we are doing here and public opinion. In my own judgment, having served 30 years in the other place, public opinion would consider this an important matter. When faced with the sort of examples given by the noble and learned Lord, Lord Lloyd, and the noble Baroness, Lady Hooper, they would say that there is a certain injustice in this matter. We remove ourselves from this view of justice coming from public opinion if we say that it cannot be included in the review, which, if it was able to look at this, might say that it was not properly within its terms. I do not know what the Government consider to be the specific terms of the review, or whether they will define what the review can or cannot do. On the face of it, the review will be able to deal with such matters, and may reject them. But public opinion and most of us would say that these are important matters, which deserve to be dealt with and may be dealt with by the review, which may say that it is not properly within its purview or that it is not something that should be dealt with at all.

In my view, it is proper for the review to deal with that matter, under the terms of the clause, and I look to the Minister to say in terms whether the Government recognise that this is a problem. Do the Government recognise that the examples given by the noble and learned Lord, Lord Lloyd, and others refer to something that is considered unjust by a great number of people in this country? If so, even if the Government try to remove this from the review, will they deal with it in some other appropriate way?

Baroness Barker: I have listened to and taken parts in these debates ever since the noble Baroness, Lady O’Cathain, first raised them during her then opposition to civil partnership. There remains one point that is fundamental to this discussion and which has never been answered properly by those people who have advanced them, such as the noble Baroness, Lady Deech.

The rights and responsibilities of adults who voluntarily enter into relationships with other people are wholly different from the rights and responsibilities of family members—people born into the same family. If we were to treat them in the same way, as is achieved in the noble Baroness’s amendment, it is wholly possible that a member of a family could find themselves under an obligation to a family member to enter into a relationship, in particular to preserve the right of the family to property. That sets up some potentially damaging and ugly relationships within families, which is a consequence of what she proposes which she would really not like to see come to pass.

To answer the noble Lord, Lord Cormack, I do not think that that potential should enter into law and I do not think that it should form even part of any review. Therefore, I wish today to make that statement as strongly as I possibly can; I shall vote against this amendment and do so in the knowledge that there are

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people who will support me in supporting carers in a whole variety of different ways, which are wholly appropriate and far better than this.

Lord Pannick: My Lords, I find this a much more difficult issue than all noble Lords who have spoken so far. There are very strong arguments on both sides of the case and I very much hope that noble Lords on each side would recognise that.

My reason for speaking is that I spoke in Committee in favour of this amendment, and I am in a very unusual position in that the debates that we had in Committee on this issue have actually caused me to change my mind. The reason I have changed my mind is because I think that there is a very real injustice done to the people for whom the noble Baroness, Lady Deech, has spoken, but I am not persuaded that this is an appropriate vehicle by which this injustice should be addressed. The noble and learned Lord, Lord Lloyd of Berwick, says, sotto voce, “Why not”—and I will tell him. The purpose of the review is very simple; it is to assess whether the existing civil partnership regime, which is part of the law of the land, continues to serve a useful purpose now that we will have same-sex marriage. That is a very narrow purpose, and I do not think that it is appropriate that a review should consider whether a civil partnership should be used as a means to address a very real injustice which, if it is to be addressed, should be addressed through the taxation system and other means. That is why I have changed my mind and why I much regret that I cannot support the noble Baroness, Lady Deech.

Baroness Thornton: My Lords, this amendment would seek to extend the civil partnership review to include unpaid carers and family members who live together. I am just going to read the amendment, because of the discussion that took place between my noble friend Lady Kennedy and the right reverend Prelate. It refers to,

“unpaid carers and those they care for, and … family members who share a house … provided that they have cohabitated for 5 years or more and are over the age of eighteen”.

If that does not mean fathers, daughters, sisters and brothers, I am not quite sure what it means. So I think that my noble friend had a point in her indignation about that matter.

The problem before the House has been very adequately explained by various noble Lords. This is an issue about legitimate support for carers and the protection of people, sisters and brothers, growing old together and sharing a home, who require a new regime that protects their interests in their home and all the other things. That is to do with carers, tax and inheritance, and it is to do with compassion and the other issues that noble Lords have mentioned. But it is not appropriate to use those words—in terms of pulling up ladders, and so on—in this Bill.

This review is about civil partnerships, as explained by the noble Lord, Lord Pannick. I am not going to read out my note, because he said it much more eloquently than I could.

Lord Anderson of Swansea: It is proposed by the noble Baroness, Lady Deech, that the review should deal with,

“the case for amending the criteria in the Civil Partnership Act 2004”.

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Is my noble friend suggesting that the criteria themselves should not be amended in any way? What would she suggest should be the criteria employed by the review? Will we seek to limit what it can review?

Baroness Thornton: The noble Lord, Lord Pannick, very adequately, concisely and accurately explained exactly what the review is about.

The point is that the claims that the noble Baroness has explained to us are legitimate. As my noble friend Lord Alli said, the last time I heard the noble Baroness speak with such passion about these issues, apart from in Committee on this Bill, was during the passage of the Civil Partnership Bill.

In the mean time I can recall at least two carers Acts put forward by my own Government. There was the free personal care Bill, and there have been numerous discussions about finances and inheritance tax. Although we may not necessarily discuss those matters in this House to conclusion, certainly there are plenty of Members of Parliament in the other place who can and could put down amendments. I would be more sympathetic, perhaps, if I thought those things had happened, but they have not. My noble friend Lady Kennedy is right when she says that you have to question the purpose of this amendment when all those opportunities have been missed. We ask the noble Baroness not to press this amendment but if she does I will be voting against it.

Lord Wallace of Tankerness: My Lords, I thank the noble Baroness, Lady Deech, for moving the amendment and the other noble Lords who have put their names to it. It would amend Clause 14, under which the Secretary of State will arrange for the operation and the future of the Civil Partnership Act 2004 in England and Wales to be reviewed. The amendment requires the terms of the review to be extended to consider first, the case for enabling carers and family members who live together to register civil partnerships and secondly the case for creating a new legal institution to give carers and family members the same benefits as couples in a civil partnership.

I recognise, as we did in Committee, that many views have been expressed very passionately. I listened in particular to my noble friend Lady Hooper, who made an important contribution to this debate arising from her own circumstances. I agree with the noble Baroness, Lady Thornton, that, in many respects, the issues that have been raised about inheritance or the rights to have a say, for example, about funeral arrangements or related matters are issues in their own right. I will say more later about whether there has been a clamour for them, but my principal position is that this is not appropriate for a review of civil partnerships.

First, there is the issue of the nature and purpose of civil partnerships. They were designed to provide rights and responsibilities akin, to use the word of the noble Lord, Lord Alli, to those of marriage for same-sex couples. I note that the right reverend Prelate the Bishop of Chester thought that they possibly mirrored marriage too much. I think he said that was the view when they were brought in. These rights and responsibilities were provided because under the Civil Partnership Act

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people were unable to marry because they were the same sex. As civil partnerships are akin to marriage they have a formal means of entry and exit. They have imported the prohibited degrees of affinity parallel to those in marriage law. They have similar rules governing deathbed civil partnerships and financial and property arrangements.

6.15 pm

I believe that seeking the extension of civil partnerships to family members is tantamount to seeking to allow marriage between close family members within the prohibited degrees of affinity. We have decided as a society that it is undesirable for close family members, such as siblings or a parent and child, to marry. I accept, as the noble and learned Baroness, Lady Butler-Sloss, said, that the issue of procreation does not always arise, such as in a marriage between a man and a woman who are both pensioners. Nevertheless, they can still bring great companionship to each other. No one questions that that devalues that marriage or the concept of marriage in any way. However, we would not think it right for even a brother and sister over the age of 60 to marry as over generations our society has said that is not appropriate and not right. Even where procreation is impossible, that is not something that should happen.

My noble friend Lady Berridge said that she had heard of situations where couples had been separated and questioned about a possible sexual relationship. I suspect that couples being separated before they can marry is in certain cases intended for the prevention of sham civil partnerships. A couple have to have a face-to-face meeting with a registrar where the registrar takes notice of the marriage and needs to assure him or herself that they are indeed a genuine couple who actually know each other and that it is not a sham civil partnership for immigration purposes. It is not to ensure that there is a sexual relationship between them.

Regarding carers and those they care for, there is, as the noble Lord, Lord Alli, pointed out, nothing in general to prevent them marrying or entering into a civil partnership at present. The noble and learned Lord, Lord Lloyd of Berwick, referred again to the man who was paralysed after a riding accident and his younger carer. I am sure that, in personal terms, that is a very real relationship. As I understand it—I think that it was said in an earlier debate—the younger carer was male as well. There is nothing in the law as it stands at present as to why they cannot enter into a civil partnership. It would be wholly wrong and inappropriate to speculate why they have not. There may be many cases of carers up and down the country where a civil partnership has not proceeded because they do not feel that that is right because of the way in which civil partnerships have developed or the origins of them.

As was discussed in Committee, the change would mean that couples would have to dissolve the civil partnership if either party wanted to marry or enter into a civil partnership with someone else from outwith their family whom they loved, with all the financial implications and legal and practical difficulties involved in a dissolution. That is why I believe that shoehorning such relationships into the existing regime of civil partnerships will not work. I listened carefully to the noble Baroness, Lady Deech, and she said that perhaps

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it could be ended by a letter or simply by someone going off and marrying someone else. That fails to understand what Parliament legislated for when it established the institution of civil partnership. It was an institution with a very formal means of entering into it and a very formal means of leaving it. I understand where the noble Baroness was coming from and why she was arguing that case, but what she was actually arguing for was not a civil partnership at all. Again, that is why we do not believe that this should take place in the review of the nature that we propose.

I accept, too, that not as much has been said in this debate about the financial benefits of inheritance tax. I salute those who argued the case for the extension of the review in Committee and quite openly and frankly talked about inheritance tax. It was commendable frankness. However, I do not think that treating civil partnerships as a vehicle for gaining tax or property benefits is appropriate. Indeed, it is disrespectful for those who enter into civil partnerships because of a mutual love, be it sexual or a desire for companionship. The noble Baroness, Lady Kennedy of The Shaws, put it very starkly about fathers and daughters, but as the noble Baroness, Lady Thornton, pointed out in terms of this amendment, that would indeed be possible in civil partnerships. However, there are other possible situations which could arise that underline that civil partnerships are not really intended for families. What do you do with two siblings caring for a mother—which of the two would form a civil partnership with the mother? What about two sisters and a brother living together? Who would form a civil partnership with whom? Imagine the contentiousness of the choice and the sense of rejection if one sibling were preferred to the other. Who would an elderly father living with two sons choose to form a civil partnership with? These examples illustrate that it is not appropriate.

The other issue is whether benefits equivalent to those enjoyed by civil partnerships should be made available to carers and other family members. The noble Lord, Lord Anderson, asked whether there was a clamour for this. There is no correspondence filling up the in-trays of my ministerial colleagues on this issue, and I rather suspect from the comments made by the noble Baroness, Lady Thornton, that the same was true for those who were in ministerial office before the present Administration. Since 2004, as far as we are aware, this issue has been raised only once during debates on the Finance Bill in the other place. I appreciate that in this House we cannot raise amendments to the Finance Bill. However, my information is that there has been only one such amendment, to the 2008-09 Finance Bill, tabled by the right honourable Member for Birkenhead, Mr Frank Field. Other than that, the issue has not been raised in an amendment. Carers UK—in a parliamentary briefing which I understand it did not circulate to parliamentarians but which I am happy to make available and put in the Library—said:

“In 2004 we reviewed an amendment to the Civil Partnerships Act”—

Bill, as it was then—

“as it was passing through the House of Lords, that carers should also be able to form a civil partnership. At that time, we foresaw a number of complex and difficult problems with this approach

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and did not feel it was the right way to solve the challenges that carers face. Our view remains the same in 2013”.

As my noble friend Lady Barker said, there are a host of other issues with regard to carers, some of which we are addressing in the Care Bill currently before your Lordships’ House, but I do not believe the way to tackle them is as proposed in this amendment.

The issue is whether these matters should properly be included in the civil partnership review. The argument was made—I say, prima facie, with some logic—that if we are going to have a review, this matter should be included. However, as I have said before, what is proposed is a fundamental change which is very different from civil partnerships as they were established and as they have developed. That point was well made by the noble Lord, Lord Pannick, who said that the review will examine the consequences of the Bill for the existing civil partnership regime—indeed, whether there is a need for the institution of civil partnerships following this Bill or whether they should be extended to opposite-sex couples. That is the proper remit of the review. I accept that other issues arise which have been very properly aired and which can be followed up in other pieces of legislation with regard to specific rights and responsibilities. However, it is not the purpose of the review to seek to transform civil partnerships from a legal union of a committed and loving couple into something which is very different in nature and has been described as simply a contract which you can get out of by writing a letter or marrying someone else. Therefore, although it was important to have this debate, I ask the noble Baroness to withdraw the amendment.

Baroness Deech: My Lords, the comments made by some noble Lords have revealed misunderstandings on their part. I did not have the privilege of being a Member of this House in 2004, but at that time the House passed an amendment that would have included siblings and carers within civil partnership. Having checked my iPad, I see that I raised the matter in 2008, 2009 and 2012, and in some of those years more than once. However, having studied the Care Bill, I did not see a hook on which to hang it. The amendment that your Lordships passed in 2004 was rejected in the other place and complications arose at that time. That is why an inquiry would be so apt. Civil partnerships were invented in 2004 and another form of union could be invented now.

It is not right to jump to the conclusion, as some noble Lords have, that this means that family members will marry each other or have a civil partnership. That is not the case at all. I seek an inquiry. There is, of course, no question of incest and, anyway, there is no prohibition now on siblings living together. I do not believe that the police go knocking on their door to see whether incest is taking place. Some carers do get married. We have all read of elderly gentlemen marrying much younger ladies who care for them, often to the dismay of family members who are worried about inheritance. Inventing a new covenant or contract would probably be much more acceptable. However, it would, of course, be a question of choice. We are not talking about marriage, civil partnership or incest but about an inquiry given that civil partnership is to be examined. The wording is broad enough to allow for this.

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No matter what hopes may be expressed by the noble Lord, Lord Alli, on religious marriage in the future or on the future of civil partnerships, I cannot find it in my heart to stand in the way of a study of equality. Just because something else may happen in the future, how can we stand in the way of an inquiry into equality? As the noble Lord, Lord Pannick, knows, as he was counsel in the relevant case, the Strasbourg court said that the treatment of the sisters was discriminatory but could be accepted because in this country there was this rigid division between marriage and all other unions, which no longer exists. Therefore, the review is discriminatory. How can we say that this is not the right vehicle in which to examine the issue? That is not the way that this House normally treats questions of equality and justice.

It is not just an issue of finance or of money-grubbing; I listed many of the other advantages of marriage and civil partnership, only a few of which are financial. Moreover, same-sex marriage is likely to come about long before the proposed inquiry reaches any sort of conclusion. Therefore, the two will not impact on each other. We need a debate on this, as the noble Baroness, Lady Farrington, said, and here is the very vehicle for it.

The noble and learned Lord, Lord Wallace, assumed that there would be no choice in the matter and that people would be forced into these unions. That is not the case at all. I keep repeating this because it seems to be misunderstood: I seek an inquiry into an existing discriminatory situation. That is all the amendment calls for. The people I am discussing do not all have to be treated in the same way. One is not suggesting that an inquiry, even if it went the way that I would hope, would end up saying that sisters, fathers and children should be treated as if they were civil partners. That is something to be decided in the future. Although, as I say, this is not just about finance or property, let us not overlook the fact that many a marriage, certainly in the past, was most definitely about property, but I am not suggesting that that is the case today, or that this is about money. As learned Members of this House well know, various other statutes deal with tax and inheritance for people who live together.

I do not think that a matter of justice is ever inappropriate. We have talked about carers for years and years since I have been here. This is a chance to do something for them in an inquiry. I am getting letters from sisters. I do not know what to write back to them if this House rejects this opportunity, which may not come up again for years. How can I write to them and say, “The House was presented with your situation but decided that it was not appropriate even to look into it”? If this House sees discrimination, it should allow it to be looked at in an inquiry. That is all I am asking for. Therefore, I wish to test the opinion of the House.

6.26 pm

Division on Amendment 94

Contents 89; Not-Contents 267.

Amendment 94 disagreed.

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Division No.  1


Allenby of Megiddo, V.

Anderson of Swansea, L.

Armstrong of Ilminster, L.

Berridge, B.

Boothroyd, B.

Brennan, L.

Browne of Belmont, L.

Butler of Brockwell, L.

Butler-Sloss, B.

Byford, B.

Chester, Bp.

Clancarty, E.

Clarke of Hampstead, L.

Cobbold, L.

Cormack, L.

Cox, B.

Crathorne, L.

Cumberlege, B.

Curry of Kirkharle, L.

Dannatt, L.

Davies of Coity, L.

Dear, L. [Teller]

Deech, B.

Eames, L.

Eaton, B.

Eden of Winton, L.

Elton, L.

Empey, L.

Exeter, Bp.

Finlay of Llandaff, B.

Fookes, B.

Framlingham, L.

Freeman, L.

Gardner of Parkes, B.

Geddes, L.

Gordon of Strathblane, L.

Greenway, L.

Hameed, L.

Hooper, B.

Howard of Rising, L.

Hylton, L.

Inglewood, L.

Kilclooney, L.

Kirkhill, L.

Knight of Collingtree, B.

Lindsay, E.

Listowel, E.

Lloyd of Berwick, L.

Lothian, M.

Luce, L.

Lyell, L.

Lytton, E.

McAvoy, L.

McColl of Dulwich, L.

Mackay of Clashfern, L.

Magan of Castletown, L.

Maginnis of Drumglass, L.

Mancroft, L.

Marlesford, L.

Montgomery of Alamein, V.

Neville-Jones, B.

O'Cathain, B. [Teller]

O'Loan, B.

Palmer, L.

Parkinson, L.

Patten, L.

Pearson of Rannoch, L.

Ribeiro, L.

Rowe-Beddoe, L.

St John of Bletso, L.

Sandwich, E.

Scott of Foscote, L.

Seccombe, B.

Selkirk of Douglas, L.

Sheikh, L.

Simon, V.

Singh of Wimbledon, L.

Slim, V.

Stoddart of Swindon, L.

Swinfen, L.

Taylor of Warwick, L.

Tebbit, L.

Tenby, V.

Thomas of Swynnerton, L.

Trefgarne, L.

Ullswater, V.

Waddington, L.

Walpole, L.

Winchester, Bp.


Aberdare, L.

Adams of Craigielea, B.

Addington, L.

Allan of Hallam, L.

Alli, L.

Andrews, B.

Anelay of St Johns, B. [Teller]

Armstrong of Hill Top, B.

Ashdown of Norton-sub-Hamdon, L.

Attlee, E.

Avebury, L.

Bach, L.

Bakewell, B.

Barker, B.

Barnett, L.

Bassam of Brighton, L.

Bates, L.

Beecham, L.

Benjamin, B.

Berkeley, L.

Bew, L.

Bilimoria, L.

Bilston, L.

Birt, L.

Black of Brentwood, L.

Blackstone, B.

Boateng, L.

Bonham-Carter of Yarnbury, B.

Bradley, L.

Bragg, L.

Brinton, B.

Brooke of Alverthorpe, L.

Brooke of Sutton Mandeville, L.

Brookeborough, V.

Brookman, L.

Burnett, L.

Cameron of Dillington, L.

Campbell-Savours, L.

Carlile of Berriew, L.

Chalker of Wallasey, B.

Chandos, V.

Chidgey, L.

Clark of Windermere, L.

Clement-Jones, L.

Clinton-Davis, L.

Cohen of Pimlico, B.

Collins of Highbury, L.

Cope of Berkeley, L.

Corston, B.

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Courtown, E.

Craigavon, V.

Crickhowell, L.

Cunningham of Felling, L.

Davies of Oldham, L.

De Mauley, L.

Denham, L.

Desai, L.

Dholakia, L.

Dixon-Smith, L.

Donaghy, B.

Doocey, B.

Drake, B.

Dubs, L.

Elder, L.

Elis-Thomas, L.

Elystan-Morgan, L.

Evans of Parkside, L.

Evans of Temple Guiting, L.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Faulks, L.

Fellowes of West Stafford, L.

Fink, L.

Flather, B.

Foulkes of Cumnock, L.

Fowler, L.

Freud, L.

Freyberg, L.

Gale, B.

Garden of Frognal, B.

Gardiner of Kimble, L.

German, L.

Gibson of Market Rasen, B.

Giddens, L.

Glendonbrook, L.

Golding, B.

Gould of Potternewton, B.

Grade of Yarmouth, L.

Grantchester, L.

Hamwee, B.

Harris of Haringey, L.

Harris of Richmond, B.

Harrison, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Higgins, L.

Hill of Oareford, L.

Hilton of Eggardon, B.

Hollick, L.

Hollis of Heigham, B.

Howarth of Breckland, B.

Howe of Aberavon, L.

Howe of Idlicote, B.

Howe, E.

Howells of St Davids, B.

Hoyle, L.

Hughes of Stretford, B.

Hunt of Kings Heath, L.

Hunt of Wirral, L.

Hussein-Ece, B.

Janner of Braunstone, L.

Jay of Ewelme, L.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jolly, B.

Jones of Cheltenham, L.

Jones of Whitchurch, B.

Jones, L.

Judd, L.

Kakkar, L.

Kennedy of Southwark, L.

Kennedy of The Shaws, B.

Kidron, B.

King of Bridgwater, L.

Kinnock of Holyhead, B.

Kinnock, L.

Kirkwood of Kirkhope, L.

Knight of Weymouth, L.

Kramer, B.

Laming, L.

Lester of Herne Hill, L.

Lexden, L.

Liddle, L.

Linklater of Butterstone, B.

Lipsey, L.

Lister of Burtersett, B.

Loomba, L.

McDonagh, B.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

McKenzie of Luton, L.

Maclennan of Rogart, L.

McNally, L.

Maddock, B.

Mallalieu, B.

Mandelson, L.

Mar and Kellie, E.

Marks of Henley-on-Thames, L.

Martin of Springburn, L.

Massey of Darwen, B.

Maxton, L.

Meacher, B.

Moonie, L.

Morgan of Drefelin, B.

Morgan, L.

Morris of Bolton, B.

Morris of Handsworth, L.

Morris of Yardley, B.

Nash, L.

Neuberger, B.

Newby, L. [Teller]

Noakes, B.

Noon, L.

Northover, B.

Norton of Louth, L.

Nye, B.

O'Donnell, L.

O'Neill of Clackmannan, L.

Ouseley, L.

Palmer of Childs Hill, L.

Pannick, L.

Parminter, B.

Patel of Bradford, L.

Pitkeathley, B.

Ponsonby of Shulbrede, L.

Popat, L.

Prescott, L.

Prosser, B.

Puttnam, L.

Quin, B.

Radice, L.

Ramsay of Cartvale, B.

Randerson, B.

Rawlings, B.

Razzall, L.

Reid of Cardowan, L.

Rendell of Babergh, B.

Rennard, L.

Richard, L.

Richardson of Calow, B.

Risby, L.

Roberts of Llandudno, L.

Robertson of Port Ellen, L.

Rodgers of Quarry Bank, L.

Roper, L.

Rosser, L.

Rowlands, L.

Royall of Blaisdon, B.

Scott of Needham Market, B.

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Selsdon, L.

Shackleton of Belgravia, B.

Sherlock, B.

Shipley, L.

Shutt of Greetland, L.

Skelmersdale, L.

Smith of Basildon, B.

Smith of Clifton, L.

Smith of Finsbury, L.

Soley, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Stephen, L.

Stern, B.

Stevenson of Balmacara, L.

Stewartby, L.

Stirrup, L.

Stone of Blackheath, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Strasburger, L.

Sutherland of Houndwood, L.

Symons of Vernham Dean, B.

Taverne, L.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Taylor of Goss Moor, L.

Taylor of Holbeach, L.

Teverson, L.

Thomas of Winchester, B.

Thornton, B.

Tomlinson, L.

Tonge, B.

Tope, L.

Tordoff, L.

Trimble, L.

Tugendhat, L.

Tunnicliffe, L.

Turnberg, L.

Turnbull, L.

Turner of Camden, B.

Tyler of Enfield, B.

Tyler, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Warnock, B.

Wasserman, L.

Watson of Invergowrie, L.

Wheatcroft, B.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wigley, L.

Wilkins, B.

Williamson of Horton, L.

Wills, L.

Wilson of Tillyorn, L.

Wood of Anfield, L.

Woolmer of Leeds, L.

Worthington, B.

Young of Norwood Green, L.

Young of Old Scone, B.

Younger of Leckie, V.

6.42 pm

Consideration on Report adjourned until not before 8.12 pm.

Royal Mail


6.43 pm

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie): With your Lordships’ permission, I propose to repeat a Statement made in another place by my right honourable friend the Secretary of State for Business, Innovation and Skills. The Statement is as follows.

“Today, I have laid a report in Parliament announcing that the Government have decided to proceed with a flotation of Royal Mail shares on the London Stock Exchange via an initial public offering.

A sale will initiate the final stage of the Government’s postal sector reforms. The overarching objective of these is to secure the universal postal service—the six-days-a-week service, at uniform and affordable prices to all 29 million addresses in the UK, which is vital to the UK economy.

Over four years ago, the independent review of the postal sector led by Richard Hooper concluded that the universal service was under threat. The previous Government accepted the review’s package of three main recommendations but the Bill to implement them, which would have permitted a minority sale of Royal Mail shares, was withdrawn. In 2010, Richard Hooper’s

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updated report confirmed his initial findings and that a package of measures was needed to secure the universal service. Through the Postal Services Act 2011, we have implemented two elements of that package by establishing Ofcom as the postal regulator and taking on Royal Mail’s historic pension deficit.

As set out in today’s report, we will now implement the third and final element of the Hooper recommendations by selling shares through an IPO in this financial year. We will retain flexibility around the size of stake to be sold, as this will be influenced by market conditions, investor demand and our objective to ensure overall value for money for the taxpayer. It is our intention to dispose of a majority stake, taking into account shares sold and those allocated to employees. The IPO will include a retail offer to enable members of the public to buy shares on the same terms as the big institutional investors.

At the time of the IPO, the Government will allocate 10% of the shares to an employee share scheme. These shares will be free to eligible employees, recognising that many might otherwise find them unaffordable, and I want to strengthen employee engagement by ensuring that employees own a real stake in the business. Employees must retain their shares for at least three years, giving longevity to the scheme. Our scheme will be the biggest employee share scheme of any major privatisation for nearly 30 years. Eligible employees will also receive priority in allocation if they purchase shares in the retail offer. I would like to reassure employees that ownership change does not trigger any change in their terms and conditions. The CWU will continue to be their recognised representative, and employees’ pensions will continue to be governed by the trustees. As part of a three-year agreement, Royal Mail is also prepared to give assurances on the continuation of a predominantly full-time workforce, a commitment to provide and enhance existing services to customers using the current workforce with no change to the current structure of the company in relation to these services, and no additional outsourcing of services

Royal Mail is now profitable and its overall financial position has improved. This is partly due to the Government’s action so far. But considerable credit is due to the management and the workforce who have implemented a modernisation plan. The challenge now is to maintain this positive momentum. In recent history, Royal Mail’s core UK mail business has swung between profit and loss. In the 12 years since 2001, it suffered losses in five of those years and over 50,000 jobs have been lost. Resting on the current level of progress is not enough.

Under public ownership, there is simply not the freedom to raise capital in the markets. A share sale will not only give Royal Mail commercial disciplines, it will also give Royal Mail future access to private capital, enabling the company to continue modernising and to take advantage of market opportunities such as the growth in online shopping, building on its success in parcels and logistics. Recent estimates indicate that this market is worth £76 billion in the UK.

There are various myths that need to be rebutted. Contrary to what is being claimed, Royal Mail, after a sale, will still be the UK’s universal service provider.

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This includes services to urban and rural areas and free services for the blind. Only an affirmative resolution in Parliament can change these minimum requirements. Free services for the Armed Forces are entirely independent of ownership, and Royal Mail is fully reimbursed for these services by the Ministry of Defence.

Ofcom’s primary duty is to secure the provision of the universal service. It also has duties to promote competition where that benefits consumers. However—and let me make this absolutely clear—should the two duties be in conflict, it is the universal service that takes precedence. In March, Ofcom published a statement on its approach to end-to-end competition, making it clear that should a threat to the universal service arise from such competition it has the powers to take any necessary action. While Ofcom is clearly the most appropriate body to assess and react to such threats to the universal service, the Government, as a safeguard, have retained powers to direct Ofcom with respect to certain regulatory levers such as reviewing the financial burden of the universal service and taking mitigating action to ensure that the universal service is maintained.

I confirm also that Post Office Limited will remain publicly owned, although we will continue to explore mutualisation. This Government have made a commitment that there will be no further closure programme. Royal Mail and Post Office Limited signed a 10-year commercial agreement in 2012 to ensure that they continue to be strong business partners.

The Government's decision on a sale is the practical, logical and commercial decision, that is designed to put Royal Mail's future onto a long-term sustainable basis. It is consistent with European developments, where privatised operators in Austria, Germany and Belgium have profit margins far higher than Royal Mail, and have continued to provide high-quality services.

Now the time has come for the Government to step back from Royal Mail and allow its management to focus wholeheartedly on growing the business and planning for the future. It is now time for employees to hold a stake in the company and share in its success. This Government will give Royal Mail the real commercial freedom that it has needed for a long time, and I commend this Statement to the House”.

My Lords, that concludes the Statement.

6.50 pm

Lord Young of Norwood Green: My Lords, I thank the Minister for repeating the Statement. I should declare an interest as a former joint general secretary of the Communication Workers Union and, many moons ago, an apprentice in Royal Mail when it was called the GPO.

We opposed the Government’s privatisation of Royal Mail during the passage of the Postal Services Act 2011, and we oppose it today. Maintaining Royal Mail in public ownership gives the taxpayer an ongoing direct interest in the maintenance of universal postal services in this country; helps to safeguard Royal Mail’s vital link with the Post Office; and ensures that the taxpayer can share in the upside of modernisation and the

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increased profits that Royal Mail delivers. Despite that, the Government have pressed on regardless with this sale and they have failed adequately to justify why they must sell now.

On one side, there is an unusual coalition against this move: the Opposition; the Conservative-supporting Bow Group, which described this move as “poisonous”; the Royal Mail's employees, who are represented by the CWU; and the National Federation of SubPostmasters. The right honourable Michael Fallon, Member for Sevenoaks and Minister for Business and Enterprise, wrote to a constituent in 2009 saying that he, too, was opposed.

On the other side, there is the Government, which now includes the Minister of State. The Government are ignoring the huge changes that they acknowledge have taken place since the passage of the Act. Chief among them is the more than doubling of Royal Mail's profits to £403 million and the significant progress on the modernisation programme, which calls into question the assertions that there is no prospect of Royal Mail being self-financing in the future.

I noted carefully the Minister’s reference to the package that Hooper recommended; it is true that Ofcom and the pensions arrangements were part of that package. However, he did not recommend full-scale privatisation, but an injection of private capital.

We have a number of concerns. The Government are rushing to sell the business without making the case as to why the sale of shares in Royal Mail, through an initial public offering, must be carried out now; nor have they illustrated how a sale will deliver maximum value for the taxpayer. They have failed to show that the climate for an IPO now is a good one or how much capital would be injected into the Royal Mail business as a result. Instead, they are pressing ahead with a fire sale this financial year in a desperate attempt to cover the gaping hole in George Osborne’s failed economic plans.

There are further points that the Government have failed to address. First, there is the timing of the sale. No evidence has been provided to demonstrate that the Government will secure best value for money for the taxpayer from a sale at this point in the Parliament. Additional years of profitability may well increase the sale value in future years.

Secondly, there are unresolved competition issues. Legitimate questions regarding the fairness of competition posed to Royal Mail by other postal operators—given that other postal service operators are not subject by the regulator to the same high performance and service quality standards as the Royal Mail—have not been resolved. The different services required of Royal Mail by the regulator arguably put Royal Mail at a disadvantage compared to its competitors.

Thirdly, there are the funding needs of the business. To what extent will Royal Mail be able to raise capital from other sources to meet its funding needs if it enters into private ownership?

Fourthly, there is the impact on the Post Office network. In January 2012, a 10-year deal was entered into between Royal Mail and the Post Office under which Royal Mail would continue to use the Post

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Office to deliver a range of Royal Mail services. However, there are no guarantees that this arrangement will continue on expiry of the agreement.

Fifthly, there is the impact on consumers and businesses. Royal Mail assets could be sold off, generating large, short-term profits for the private company: for example, high-value urban centres could be sold off to be replaced by distant depots, making it worse for the consumer. What assurances can be given that regulation will be sufficient to protect consumers from being ripped off in the same way that they were after transport and energy privatisations?

Sixthly, there is the issue of postcode access for businesses. As part of the proposed sale, it has been reported that the Royal Mail maintenance of post-office codes is up for sale, with a wider negative impact on business. I would welcome the Minister’s response on that point.

Finally, in relation to employee ownership, we welcome the giving of 10% of the shares in the business to its employees. However, if that is such a good idea, and given that the Government are proposing fully to mutualise the Post Office, why is the share being given to Royal Mail employees not larger?

In conclusion, I have the following questions for the Minister. First, Royal Mail faces competition from other postal service operators which are not, as I have said, subject to the same high performance and service quality standards as Royal Mail, putting it at a competitive disadvantage. How will that not depress the sale price, and what will the Minister do about it?

Secondly, this cannot be allowed to put the Post Office at risk. What guarantees can the Minister give that a privately owned Royal Mail will renew the agreement under which the Post Office provides Royal Mail products, which is essential to the Post Office’s future?

The Minister said that the universal service obligation is fully protected; that it will take precedence; and that if things start to go wrong, Ofcom will renew the financial burden. What exactly does he mean by “renew the financial burden”?

We believe that this is an ill-thought-out process that will not benefit the taxpayer, the consumer or the employees, and believe that the Government should think again.

6.57 pm

Viscount Younger of Leckie: My Lords, I am sorry that the noble Lord, Lord Young of Norwood Green, takes such a negative view of the privatisation programme with Royal Mail. I agreed with hardly any of the points that he made and I will attempt to address them as best I can.

On the rationale for the sale, I reiterate that the Government’s overarching objective is to protect the universal postal service; that is one of the key aims of this privatisation. To do that Royal Mail needs future access to private capital and commercial disciplines to be able to continue its modernisation programme and seize the opportunities for growth. It is important, as I mentioned earlier, to focus on the market for online shopping. For example, it is vital that the Royal Mail is able to upgrade its sorting technology, improve the way in which the tracking of parcels gets through

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the system and update its methods of delivery—there are 40,000 Royal Mail vehicles, for instance. There are many good reasons, therefore, why it is necessary to raise this particular money.

In terms of doing that through a private sale, as opposed to finding funds from public money, if Royal Mail remained in public ownership, there would be competition with the education and health services in fighting for limited resources. There is a good reason for the move to private funds.

On the so-called “fire sale”, as my right honourable friend the Secretary of State for Business, Innovation and Skills said today in the other place, it must be the longest fire sale in history. At this stage, I pay tribute to the previous Government and to the noble Lord, Lord Mandelson, who is in his place, for what he did in the privatisation of Royal Mail. It was a process that he started and we are completing it.

It is not a fire sale; rather, it has been long in the planning. The announcement today follows more than two years of preparation since Parliament passed the Postal Services Act 2011. It is a commercial transaction, and the Government will follow normal commercial practices in setting the share price and delivering value for money. A further point to make is one that I mentioned earlier. Deutsche Post and Österreichische Post have enjoyed good profits as a result of their successful privatisation programmes, and we do not want to be behind the curve. That is another good reason for moving to privatisation.

On employee ownership, I am delighted to confirm once again that employees will be given 10% of the shares for free, while on top of that through the special allocation process they will have the opportunity to purchase further shares. We believe that that is a very good deal for the employees. The objective is to tie employees in and align them to the strategy of the company. Overall, as I have said, I do not agree with the noble Lord, Lord Young, in terms of all his queries. I believe that we are on the right track.

7.01 pm

Lord Fowler: My Lords, my noble friend referred to this as being the biggest employee share scheme following privatisation for almost 30 years. The last one was that of the National Freight Corporation, which I handled myself. Perhaps I may remind my noble friend that the reaction on the Labour Benches and of the unions was exactly the same on the NFC as it is today to the Post Office, although I do not think that anyone would now remotely argue against the NFC.

Although I congratulate the Government on this decision, does my noble friend not feel that it is a great pity that it was not taken 25 or 30 years ago? Does he realise that if it had been, at this point, Royal Mail might have been leading in the international carriage of parcels rather than leaving it to the German post office to take that advantage? It is an enormous lesson for us, so perhaps I urge my noble friend that privatisation should come back on to the Government’s agenda. A number of other companies could be privatised—here I am thinking in particular of BBC Worldwide. That would be to the benefit of the public and of the people who are working for it.

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Viscount Younger of Leckie: I thank my noble friend for that comment. In harking back 25 years, he makes an extremely good point; hindsight is very nice. I cannot remember exactly where we were with Royal Mail 25 years ago, but I am delighted that we are where we are at the moment. I believe that the conditions are right to privatise. The chief executive of Royal Mail has done an excellent job in turning the business around, with profits of over £400 million. The climate and the time are right, and I believe that there is an appetite, but let us see what investors think about it.

Lord O'Neill of Clackmannan: My Lords, some of us on this side of the House who supported a minority shareholding did so because we wanted an improvement in the quality of the management. Frankly, we had despaired of that ever happening. That is because it takes particular skill for a manager to run a monopoly in a capitalist system at a loss, but that is what the managers of the Post Office succeeded in doing for a number of years. Circumstances have changed because the nettle of parcels has been grasped by the Post Office in a quite spectacular way. However, at the same time we now have day-by-day diminution in the volume of postal mail that requires to be delivered. The fact is that the length of the walk, the final mile that postmen have to go, is exactly the same regardless of the number of letters they have to carry. That is the most vulnerable part of the operation. It is not the parcels that will be the problem; it will be the cost of delivering letters. Frankly, the assurance that the Minister has given us this evening does not in any way give us comfort. All we can see is a weakening of the universal postal service when it becomes too expensive to subsidise under the economics of this flawed scheme.

Viscount Younger of Leckie: The noble Lord may not be surprised to hear that I do not agree with his assessment. It is true, however, that since 2006, the fall in letter volumes has been as much as 25%. The market is changing and we need to keep ahead of it. I would remind the House again that Germany and Belgium are ahead of the game. The injection of private capital into Royal Mail will help with the change, but there is a double benefit in that, through legislation, the universal offering remains strong. It is set in stone, which is a very important point to make.

Lord Razzall: My Lords, as the noble Viscount will be aware, we on the Liberal Democrat Benches are very much in support of this. Indeed, the Liberal Democrat element in the coalition, starting with Ed Davey who was the responsible Minister in the early days of the coalition, are absolutely delighted to see this culmination now. As the noble Viscount rightly said, it is very nice to see the noble Lord, Lord Mandelson, in his place because it was he who started this process many years ago despite considerable opposition from his own side, which appears to continue.

Perhaps I may put three questions to the Minister. The noble Lord, Lord Young, raised a perfectly valid point when he asked whether the Government are satisfied—have they had advice from whoever is running the IPO for them, who presumably will have been taking soundings from the institutional shareholders who they are expecting to invest—that those shareholders

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will be prepared to put up the necessary capital to invest in Royal Mail, which was the whole purpose of the privatisation exercise in the first place? Are the Government satisfied that this structure will provide the necessary capital to continue the modernisation process in Royal Mail that we all know lies behind the whole privatisation drive?

Secondly—this is an important point—the Government have chosen to take the IPO route, which I must say was slightly surprising to some of us. We had assumed that the more likely result would be either some form of trade sale or a private sale. Can the Minister confirm that if the IPO was to fail for whatever reason—particularly listening to the noises that are coming from the trade union movement at the moment—the Government will continue the process of selling off shares in Royal Mail? If that happens, it is probable that the buyers would be a private equity group, who are less likely to be sympathetic to the interests of the trade union movement than would be the case under an IPO.

Thirdly, perhaps I may reflect for a moment on the 10% of shares that are going to the employees. As the noble Viscount will know, the Liberal Democrat element of the coalition has pressed for this strongly right from the start. Can he confirm the numbers that have appeared in the newspapers recently of the value of this to the employees of Royal Mail? The numbers that I have seen show that the average Royal Mail employee is being paid approximately £19,500 per annum, and on the likely price of an IPO, every employee will receive shares worth about £1,900 to £2,000. If those numbers are correct, that is clearly a significant sum to be put into the hands of the well deserving employees of Royal Mail.

Viscount Younger of Leckie: In answer to my noble friend’s first question about the appetite of shareholders, the indications are that there is clear interest in purchasing shares in Royal Mail. I would not want to go further, because it is not my role to speak on behalf of investors, but my noble friend makes a very good point. The most important thing for Royal Mail is to have flexible access to capital to allow it to innovate and capture market opportunities, such as the strong growth in the parcel market driven by online shopping, as I mentioned earlier. That is what an IPO will deliver for Royal Mail. It should not have to come cap in hand to Government and compete with schools and hospitals when it needs to innovate or commit to future investment.

The second question concerns the IPO route as opposed to other methods. It is true to say that, having got to this point over a good number of years, the IPO route was clearly the preferred route. I am certain that other options were looked at. My noble friend’s question was, if the IPO route were to fail, would other methods be used? I do not wish to be drawn on that or to speculate, only to say that it is our firm belief that the IPO route is the right route and that is the route that we will be following.

The final question concerned employees. I am delighted to hear that my noble friend is very much in favour of giving 10% of shares free to employees. I will not be drawn on the actual valuation, because a prospectus will be produced in due course, which will set out the terms of the IPO. The valuation will, of course, depend

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on investor demand and market conditions at the time. What my noble friend has read in the papers, as he will probably know, is pure speculation.

Lord Martin of Springburn: My Lords, I think that the Minister will agree that many of those who retired from the Royal Mail worked very hard to get it into the very good shape that it is in just now. Has any consideration been given to allowing those who are in receipt of a Royal Mail pension—in other words, former sorting staff and postmen and postwomen—to buy shares? My thoughts go to the fact that in my previous constituency—although it is known as Glasgow North East, it was known as Springburn at one time—we have a lovely sorting office, which I pass every week when I come to the House of Lords. It is known as the St Rollox sorting facility. Several hundred people work there. They have changed their hours, adjusted to the new situation and worked very hard. I would be deeply saddened if any organisation took over and vacated the site at St Rollox and went somewhere else, which would mean that the loyal men and women—some of whom I am related to—who perhaps get up at four or five in the morning and walk to their work in the Springburn area, would lose their jobs. Some of the newer delivery companies, such as TNT and FedEx, tend to go into great industrial estates, but the only way to get to these facilities is by private transport and not public transport. Has any consideration been given to securing jobs in the communities in which they already exist?

Viscount Younger of Leckie: I thank the noble Lord for those two points. His first question was whether it might be considered that shares be given to those who have worked for a long time for Royal Mail and that their hard work might be rewarded. It is fair to say that the employee share scheme is designed to secure the future success of Royal Mail and the universal service and we therefore consider it appropriate to include only the current workforce, who deliver the universal service and can influence and benefit from the future success of the company. Share awards will be made only to those employees who have been in employment for the relevant qualifying period, which happens to be a number of months. I listened carefully to the noble Lord’s second point; I know Springburn, so it is familiar to me. I am sorry to hear that there has clearly been some disruption to individual lives regarding the transfer of the sorting office. My only response to that is that it is very much up to the Royal Mail management to—

Lord Martin of Springburn: Maybe I have given the wrong impression. Everyone is fine in St Rollox. My worry is that, if some of these new companies come in, they might close the facility and move the machinery somewhere else.

Viscount Younger of Leckie: It is useful to have the clarification from the noble Lord. In that case, my point is still the same. It is very much up to the Royal Mail management to look very sensitively at those personnel issues. I have no doubt that they will do that if there is a particular move in that way. Change, as we know, is always difficult and it affects individuals. The noble Lord makes a very good point.

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The Lord Bishop of Exeter: My Lords, I welcome the affirmation in the Statement—the Minister has repeated the affirmation twice—that the Royal Mail will still be the UK’s universal service provider and that this will include services to urban and rural areas alike. However, may we be assured that not only will there be universal coverage but there will continue to be uniform pricing? Too often the residents of rural areas, especially remote and sparsely populated areas, face higher costs for public services. Can the Minister affirm unequivocally that a privatised Royal Mail will be required to maintain a universal pricing structure and that residents, whether of Westminster or of west Devon, will continue to pay the same price for the service that is offered?

Viscount Younger of Leckie: In answer to the right reverend Prelate, through the Postal Services Act, Ofcom has the primary duty of securing the provision of a universal service. I can confirm that this will be secure in the hands of the privatised Royal Mail. What is protected is not only the six-days-a-week letter service to every address in the UK and free services to the blind, which I mentioned earlier, but also affordable prices, which are monitored by Ofcom. On the specific question, Royal Mail stamp prices for the universal postal service will continue to be regulated by Ofcom, which has a duty to ensure that they remain affordable. For example, Ofcom has put in place a safeguard cap on second-class letters and parcels to ensure that the service remains affordable for all users. I hope that that reassures the right reverend Prelate.

Lord Bates: I am grateful to my noble friend for the Statement, which I very much welcome. Has he had an opportunity to read Richard Hooper’s report, which was commissioned by the previous Government and paves the way for today’s announcement? It identified some major hurdles to Royal Mail achieving its competitive position: the elimination of restrictive labour practices; increased levels of automation; and a culture change towards customers. Will he advise us on what progress has been made towards that? Will he also reflect on the point made by IMRG that parcel deliveries are going to increase by 70% over the next four years due to the growth in online sales, providing a real opportunity for a revitalised Royal Mail in the private sector, if it can sort out those inherent problems?

Viscount Younger of Leckie: My noble friend’s questions allow me to say that there is tremendous market opportunity for Royal Mail when it is privatised. On the automation programme and the changes that the chief executive has brought about with the rest of the board of Royal Mail, there is extremely good progress to report. I am glad that my noble friend has endorsed that. As to the market itself, we know that there is a tremendous opportunity in terms of future online shopping opportunities, but it will be up to the Royal Mail board following privatisation to use the flexibility of private capital to look at the market and to take even greater advantage of the opportunities for the company.

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Lord Grade of Yarmouth: I thank the noble Viscount for the Statement and fully applaud this decision, which is belated in the extreme. It is clear that one of the great rationales for this privatisation is the increasing competition and the threats from technology that the Royal Mail faces. The idea that a state-owned operation of this kind cannot face those challenges in the nimble way that is required in business today seems to be unarguable and I absolutely applaud the decision. However, I have two quick questions. I am not asking the Minister to name it, but is there a price at which the Government would not sell? Secondly, are there any considerations about potential foreign takeovers in due course?

Viscount Younger of Leckie: My noble friend would probably be surprised if I gave an accurate answer to the first question, so I will pass on that one. In terms of the price, as I mentioned, the prospectus will be produced at some point between now and April 2014, which is the period during which we anticipate the sale will take place. Market conditions and investor demand will also be part of that aspect.

Lord Young of Norwood Green: I raised a number of questions that the Minister did not answer and, before he sits down, I request that he addresses those in writing. I do not have time to reiterate them all. I also could not help but observe that the right reverend Prelate did not get an absolutely explicit answer on the uniform tariff and the universal service obligation. Maybe I missed something.

Viscount Younger of Leckie: I will be very happy to write to the noble Lord, Lord Young, on any questions that I have not managed to answer.

Government Archives and Official Histories

Question for Short Debate

7.22 pm

Asked by Lord Rodgers of Quarry Bank

To ask Her Majesty’s Government what is their latest assessment since February 2008 of the arrangements for preserving Government archives and preparing official histories.

Lord Rodgers of Quarry Bank: My Lords, as noble Lords will have recognised, the title, or description, of this debate is a reprise. In a short debate on 5 February 2008, I expressed my concern about two separate but related issues. One was the way in which ministerial and other papers are kept when they leave departments but are not destroyed or sent to the National Archives at Kew. The other was the need to continue the long-standing series of official histories and how best to choose, organise and publish the books.

As I explained in my debate in 2008, my interest in the first issue arose from the fate of government papers when I was seeking documents from my time as Secretary of State for Transport. After six months of

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fruitless exchanges between me and the department, I finally abandoned hope of anything substantial. The departmental records officer where the papers were stored in Hastings apologised for—in his words—“an unsatisfactory situation”. He recognised quite openly how this had arisen. The essential discipline—these are my words—had been lacking to ensure that they were properly catalogued, remained in the correct files or changed their names appropriately and to ensure that they were returned when they had been borrowed.

In the end, I wrote to the then Cabinet Secretary on the general question of government records and their condition. I said that some departments took great care of their archives but others did not, especially when departments were chopped and changed. I understood that his predecessors had reminded Permanent Secretaries that they were obliged to keep accurate records and to keep them in good condition. I received a helpful reply. Eventually, he said that within a year or so he would again remind Permanent Secretaries of their duty in this respect.

Since the previous debate, most, if not all, Permanent Secretaries have retired or gone elsewhere. Some departments have adopted new names and policy areas have been changed. So where are the papers now and has today’s Cabinet Secretary reminded new Permanent Secretaries of their responsibilities in keeping records? Or is it now the head of the Civil Service, Sir Bob Kerslake, who keeps Permanent Secretaries up to the mark? Put simply, can the Minister reassure me that government papers as I have described them are now in good order?

I turn to official histories. On the previous occasion, five years ago, I mentioned Problems of Social Policy by RM Titmuss, published in 1950—a seminal study of poverty and deprivation in wartime—as the first official history I had read. Another I mentioned was SOE in France by MRD Foot, which I was required to read out of ministerial interest at that time. I then referred to Churchill’s Man of Mystery: Desmond Morton and the World of Intelligence, an unusual choice even among the eclectic selection of titles in the current series. It was this book about Desmond Morton that focused my mind on some wider policy questions about the official history programme: the timetable, the shape of the programme, the publisher, the contracts with authors and the marketing of the books. The Desmond Morton book seemed to be a one-off, as it had a well designed jacket and told a fascinating story. It should have sold well, been serialised in newspapers and been considered for a television programme. I asked how many copies had been sold—at £49, about twice the usual price—and whether the book had been reviewed in magazines and journals. In replying to the debate, the Minister was full of good will but no figures or substantial response.

However, after the debate, things began to move. Before the end of that year the Cabinet Office said that it was commissioning “a fundamental review” and that Sir Joe Pilling, a retired civil servant, would undertake it. He took evidence quickly and widely, and his report was completed by April 2009. A second, associated report was written by Bill Hamilton, a literary agent, about the publishing arrangements. These

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were internal classified reports but, two years later, when the noble Lord, Lord Hennessy, intervened with the Cabinet Secretary, it was decided to make them publicly available on the Cabinet Office website. I welcomed this step although I was bothered that some key paragraphs in the Hamilton report had been removed as they were “commercially sensitive”.

The principal terms of reference for the Pilling report were to review the official history programme and consider whether it should continue. Sir Joe Pilling’s recommendation was strongly positive. He said that,

“the overwhelming weight of evidence supported the continuation of the programme”.

He then went on to make detailed suggestions to ensure that the programme was,

“better, stronger and more useful”.

I should say that in 1997, the Prime Minister nominated three Privy Counsellors—the noble Lord, Lord Healey, the noble and learned Lord, Lord Howe of Aberavon, and me—to be asked whether they were content with the subject and the author for each proposed book in advance of the Prime Minister’s formal approval. This led to my interest in the whole official histories programme and how it was put together and published. In this respect, I have much exceeded my proper and limited role.

However, I have kept in touch with the noble and learned Lord, Lord Howe, from time to time. At the beginning of my inquiries he shared my view that the programme appeared to fall “not short of chaos”. Later, he wrote directly to the Cabinet Secretary expressing his concern. Then, in a letter to me on 25 August 2010, copied to the noble and learned Lord, Lord Howe, and the noble Lord, Lord Healey, Sir Gus O’Donnell—now the noble Lord, Lord O’Donnell—said that, since the current programme of official histories was coming to an end:

“Given the current challenging economic climate, I am sure that there is likely to be a hiatus in commissioning new titles”.

That is where things stand. There is now a hiatus and a gap in the official histories. The last volume of the existing programme was commissioned five years ago, so the break in the sequence is already lengthening.

I am grateful to members of the official histories team at the Cabinet Office for their helpful responses to my persistent inquiries over a long period. However, I do not know who decided that there should be a hiatus. Was there a ministerial decision, and, if so, by whom and when? If a new programme either marks time or goes ahead, what are the financial consequences? Is stopping official histories because of the “challenging economic climate” really justified? As I said earlier, given the deletions in the Hamilton report, there are no relevant figures and costs, but they must be peanuts against public expenditure.

I think the latest book published in the existing programme is the second volume of The Official History of Britain and the European Community by Sir Stephen Wall. It is outstanding and wholly relevant to the possibility of a new referendum in the next Parliament. I remain disturbed about the publishing and marketing arrangements for official histories, given that this book is priced at £70—a ridiculous figure.

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History never stops, and the Secretary of State for Education is very anxious that Britain’s own story is recorded and studied. To stop official histories is short-sighted. Although the Minister cannot announce today a reversal of this unhappy situation, I hope that the Government will make an early decision to resume the publishing programme.

7.32 pm

Lord Prescott: My Lords, I congratulate the noble Lord, Lord Rodgers, on raising the matter of government archives and records. I was a bit unsure whether my experience, which I wish to relate to the House, fitted into this, but in his first few words he made clear the kind of chaos that is associated with records and archives. That has been exactly my experience in the past two years, although it does not go back as far as that of the noble Lord, Lord Rodgers.

I need to set the background as to why I needed access to the records. The background came from the dirty tricks department in the Department for Communities and Local Government led by the Secretary of State, Mr Pickles, who decided to go back to my record of expenditures in the department in 2004-06. There was clearly a political reason. He spelt out all the expenditures that were done with government procurement cards in my name. That meant, of course, that the information was given to the press. There were PQs here and in the Commons. There were stories of me running around everywhere, eating in the best restaurants and so on. They were just not true but they were put out, and they were politically inspired. My concern was how to get access to the information and challenge it.

In 2011, I wrote to the then Cabinet Secretary, Sir Gus O’Donnell—now the noble Lord, Lord O’Donnell—saying that I was very concerned about the allegations because they were not true. He wrote two letters to me, which I have here, and I spoke to him about these. In his first letter, dated 18 November, he said that there had been some fraudulent expenditures, that the person had been caught and disciplined and that I should have been told before this information was released—that is supposed to be the normal courtesy, although it normally does not apply to me. Five days later, I received another letter from him contradicting his earlier letter. This one had his name stamped on it but was without a signature. I ended up with two letters from the Cabinet Secretary. The essential difference between the two letters was that both the information about finding the criminal, the person responsible, and the comment about my not being told had been deleted from the second letter. Clearly, I got a little concerned about who signed what where. I then asked Sir Gus O’Donnell, who said that he had signed only one letter and knew nothing about the second one. He was still in that early stage before his retirement. I clearly wanted to know, so I asked the department, but it would not give me the information.

I then applied to the Information Commissioner under the Freedom of Information Act. He looked at the matter and said that he backed the Secretary of State. I went to another appeal but again he backed the Secretary of State. What was he backing? He was

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backing the view, under Section 36 of the Freedom of Information Act, that if it is in the public interest not to tell you, he can deny you access to that information. The Cabinet Secretary and the Information Commissioner made it clear that they knew who the person was who gave the instruction. Since they will not give me the information, I suspect that we are back to the old SPADs—Mr Shapps was the Minister at the time, and Mr Pickles was Secretary of State. Somebody directed the Cabinet Office over the weekend to change the letter. They did not say to Sir Gus O’Donnell, “We’re changing your letter. Is that all right?”. It was a political intervention to take out two important bits of information and therefore certainly relevant to what I was concerned about.

The Information Commissioner confirmed that the information was available but said that it was not in the public interest to tell me because it was a high-profile public case. I am not sure that is a sufficient answer. Why is it a high-profile case? It is because they released the information to the press about my expenditures. That is what has made it high-profile. That then becomes the justification for the Information Commissioner not to tell me why it is not in the public interest. Telling you what is happening could have a “chilling effect” on civil servants. We are talking about political intervention here, not civil servants. One civil servant does not do this. This was a direct intervention on essential information by somebody in the Department for Communities and Local Government and with the Cabinet Office over the weekend.

My concern, therefore, is how do I get that information? I cannot get it through the Information Commission, who confirms the decision by the Secretary of State, Mr Pickles. What can you do about that? I know that it is difficult when you are up against the Information Commissioner who takes that view, but I am still concerned about this political intervention. There are many expenditures in that department and they are all listed. According to the department, I must have eaten myself around the ruddy world, and in all the best restaurants, of course. Therefore, I wonder whether I can get access to my diaries. One expenditure of more than £1,000 was spent in a hotel on Christmas Eve. Your Lordships will not be surprised to learn that I was not in London having a do; I was at home. I need the diary to be able to prove that these allegations against me are just wrong.

I then went to the Cabinet Office to ask for the information, but remember that the Information Commissioner says that I must appeal if I want to go to the final body for appeal, and I have to do it within 28 days. So I wrote to the Cabinet Office and I rang them there. I said that I wanted the information from my diaries. They told me that they were very difficult to find. In the end, I got a letter this morning telling me that they had found them—this is weeks later. The trouble is that the appeal has gone. Is that the normal service that one can expect? I know that if you are a privy counsellor you are supposed to get some privilege. I am not one now, but I was one then, so I should still have access to the information on the fast track—I expect the slow track from now on. However, the circumstances are such that I could not get the diaries.

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I needed the diaries to show where I was on what dates and perhaps throw doubt on all the expenditures involved. To that extent, I am frustrated. I did not think that I could bring the matter up until I heard the noble Lord, Lord Rodgers, talk about delay in access to information, which Ministers have passed. If the Government can get it—and they have, in my case—and so can the Ministers, why not I, the man whom they are attacking? That is what I call political dirty tricks. I hope that they will read this speech. I just felt there was frustration and there was a chance in the debate of the noble Lord, Lord Rodgers, to put my point of view before the eminent people who will follow and who have direct experience of what happens in the Cabinet Office.

7.39 pm

Lord Hennessy of Nympsfield: My Lords, I am left breathless, but I will try. I thank the noble Lord, Lord Rodgers of Quarry Bank, for giving us the opportunity to debate this important theme. I declare an interest as president of the Friends of The National Archives and as a teacher of contemporary British history at Queen Mary, University of London.

I will concentrate on a special oeuvre within the genre of official histories: those dealing with the secret services. Two very fine ones have appeared since the noble Lord, Lord Rodgers, last enabled your Lordships’ House to discuss official histories: first, The Defence of the Realm: the Authorized History of MI5, spanning the years 1909 to 2009, by Professor Christopher Andrew, which was published in 2009; secondly, the following year saw the publication of Professor Keith Jeffery’s MI6: The History of the Secret Intelligence Service 1909 to 1949.

Both books brim with their own special mixtures of analysis, swash and buckle, operations and organisation. Both studies kindle that fascination to which we Brits are so susceptible when reading about the King’s or the Queen’s most secret servants in either fictional or non-fictional form. It is here in that strange, twilit terrain between the facts of Professor Andrew and Professor Jeffery and the imaginations of the spy novelists that one finds the real utility of intelligence history. Spying and counterspying are activities that uniquely lend themselves to fantasy and conspiracy theory. The meticulous, careful reconstructions and assessments filtered through the minds and pens of Chris Andrew and Keith Jeffery are the best antidote we have to what one astute critic called the “snobbery with violence” practised by Commander Bond on both page and screen.

Part of the special utility of secret service official histories and historians is that they possess another virtue, a Heineken lager quality, for they can reach those parts of the secret state that others cannot reach because of the stratospheric classification levels of many of the documents on which they draw and the care needed to avoid blowing both human and technological techniques, the sources and methods of the craft that remain of enduring value.

The paper product of our secret agencies does not flow that easily into the public domain on the tide of the 30-year—soon to be 20-year—rule. But the appearance

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of the official histories of the Security Service and the Secret Intelligence Service has provided a scholarly bonus —a Keynesian multiplier effect—which I had not anticipated. Once the volumes had been published, a proportion of the retained files on which Professors Andrew and Jeffery had drawn could be prepared for declassification at the National Archives, and indeed were.

At Kew last May the Foreign Office, the Cabinet Office and the National Archives mounted what can only be called a cornucopian release, drawing on two of the most secret collections the British state has ever created. The FCO batch covered the Foreign Office’s dealings with the SIS—the province of what the FCO euphemistically calls the Permanent Under-Secretary’s Department—covering the years 1903 to 1951 and shedding much new light on how the secret state coped with successive threats from the Kaiser, Hitler and Stalin. The second tranche flowed from what I call the Cabinet Secretaries’ “too hot to handle” cupboard, formally known as the Cabinet Secretary’s Miscellaneous Papers. This batch covered the years 1936 to 1951 and contained material which, in my judgment, is of continuing value to today’s guardians of national security in the secret agencies and in Whitehall.

I particularly have in mind the report prepared for Mr Attlee and a small group of Ministers in 1951 on The Secret Intelligence and Security Services. Written by that great technician of state, Sir Norman Brook, the Cabinet Secretary to four Prime Ministers, it painted for Ministers a vivid and unsparing portrait of how the secret world had fared and was faring against the toughest target British intelligence had ever faced: Stalin’s Russia.

I hope that the current heads of service and the Cabinet Secretary will read the Brook report. Not only is it an exemplar of concision and penetration and the jargon-free language at which Whitehall excelled before departments sought the assistance of management consultants, it is a model for how such a review might be commissioned today; for example, if the Prime Minister wished to review the workings of the secret world as a whole with now more than three years’ experience available of his National Security Council as the taskmaster and pacemaker of the agencies.

I profoundly hope that the current austerity will not dam the flow of official histories for the foreseeable future, not least those dealing with the secret world. It would be hugely beneficial, for example, if Cheltenham could authorise an official historian to start work on a volume designed for the general reader, embracing as much as can safely be divulged about the Government Communications Headquarters and its predecessor institutions to complete the secret agency set, as it were, and make it three.

I like to think that in this House we have a keen sense of history across all our Benches; in fact, I know we do. I know, for example, that the noble Lord, Lord Cormack, would have added his wisdom to our deliberations this evening had he not been involved with our other business today. I will finish by giving my thanks to all those across the departments and agencies who provide us with such a rich paper trail—although

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regrettably not to the noble Lord, Lord Prescott—and those who care for the documentary product permanently at the National Archives. We are truly in their debt.

7.45 pm

Lord Butler of Brockwell: My Lords, I, too, am grateful to the noble Lord, Lord Rodgers, for initiating this debate—at least I was until I heard the speech of the noble Lord, Lord Prescott. I am tempted to say that things must have gone downhill since my day but actually I think I can solve his problem for him. Unless things have very much changed, he does not have to go to the Information Commissioner to get the papers either about his diary or about his restaurant bills. Certainly it always was the case—I believe it still is—that any former Minister can consult the papers which he himself dealt with. My advice to the noble Lord, Lord Prescott, if he finds himself being traduced again, is to go directly to the department and ask to see them and not to bother with the Information Commissioner.

Lord Prescott: I went to the Cabinet Office.

Lord Butler of Brockwell: I think the noble Lord should have gone to his own department.

I very much endorse what the noble Lords, Lord Hennessy and Lord Rodgers, said about the value of both the official histories and the National Archives, and the importance of good record-keeping in government, not just for the benefit of academic historians but because of their relevance to current decision-making. When the Government make decisions when they are not fully aware of the history of the subjects they are discussing, they are like a driver who goes out into the traffic without having taken the trouble to check in his rear mirror before taking action on the road. In that respect, both the files and the official histories are very valuable.

However, files and official histories are not enough. We need something else to exploit the lessons of history for policy decisions. If, when a crisis arises, there is no official history on the subject—certainly, if there is, it ought to be consulted; but it will be a monumental work that does not cover all areas of government policy—it is too late to go back to the archives. We need to ask what else is needed to exploit the lessons of history when they are necessary for informing policy decisions.

Of course, it would be impossibly expensive to employ enough historians in government to cover the vast span of each department’s responsibilities. But it is not too expensive for each department to have a historical adviser who would not necessarily be able to give advice on all major issues but who would have sufficient tendrils into the academic world to know where such advice could be obtained. It is not sufficient for this advice simply to be fed into the department. A historical adviser must be present at the table when major decisions are taken.

Of course, there were many in the Foreign Office and State Department who were fully aware of the complexities of both Iraq and Afghanistan when policy decisions were being taken on those countries. The

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question is whether they had the opportunity to make themselves fully heard by the decision-makers. In this respect, I admired the practice of Margaret Thatcher as Prime Minister, whose first step when taking a major decision was to hold a seminar of experts. The seminar she held when facing the unification of Germany has become well known. It did not necessarily overcome her prejudices but it was certainly a counterweight to them. It said that under the pressure of economies, all departments, with the notable exception of the Foreign Office, had disbanded their historical sections. If that is so, it is a grave disadvantage to the operation of government.

Will the Minister tell me, either in replying to the debate tonight or by writing to me, whether it is true that all departments except the Foreign Office no longer have historical sections? If that is untrue, which departments still have them? I also invite his comment on whether, even if departments cannot afford historical sections, they should at least have a historical adviser. Without such, government decisions will be taken blindly.

7.50 pm

Lord Liddle: My Lords, I, too, welcome the debate initiated tonight by the noble Lord, Lord Rodgers. I want to make one simple point very strongly in favour of official history and about wanting to make official history more contemporary, not less. I believe that history is vital to people when facing difficult decisions. In the years that I spent as an adviser in government, one thing that struck me a great deal was the lack of institutional memory in government departments. Even in a long-serving Government such as the Labour Government from 1997 to 2010, Ministers changed jobs frequently and, except in one or two cases, it was very unusual to have Ministers who had a long period of office in one department.

Apart from the ministerial merry-go-round, there were frequent changes in the Civil Service. For instance, one of the most striking things in the book by my noble friend Lord Adonis on education is that, in the case of the academy programme, eight different people were in charge of it in the Department for Education in nine years when he was the relevant person at No. 10 and a junior Minister in the department. There is far too much changing around and as a result there is a lack of institutional memory. I remember when my noble friend Lord Mandelson came back from Brussels and went to BERR, I think it was called, and started to think about industrial policy, there was very little available that one could turn to that analysed the strengths and weaknesses, from the perspective of government records, of government policies in the past.

More history and more contemporary history would be good for us. The most recent official history that I have read is Sir Stephen Wall’s excellent book on Britain and the European Community from 1963 to 1975. It made me reassess what was probably a rather too jaundiced view of Harold Wilson. Stephen has given us the benefit of the minute books of the Cabinet Secretaries, so you know what each Minister said in Cabinet meetings, and you come to admire Wilson’s skill in handling questions such as the Common Market

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at Cabinet. The lessons for what we are currently going through—the renegotiation that the current Prime Minister proposes—come out of that book extremely strongly.

Taking the Europe example again, the reason why I would like some more contemporary examination of the records is that many of the issues that will be raised if there is a renegotiation in the next Parliament were raised during the European convention in the period from 2000 to 2003. Many of these issues about competences, repatriation of powers and the legitimacy and accountability of European institutions were thoroughly gone through then, yet I suspect that there has been no proper examination of the lessons of that experience by officials internally and certainly none by historians externally. So let us have more official history, and let us make it more contemporary.

7.55 pm

Lord Bew: My Lords, I, too, thank the noble Lord, Lord Rodgers of Quarry Bank, for securing this debate and, indeed, for opening up this whole question with his debate five years ago. I must declare an interest, as secretary to the All-Party Group on Archives and History and, like my noble friend Lord Hennessy, as a working professor of history in Queen’s University Belfast. One of the effects of the important debate introduced by the noble Lord, Lord Rodgers, five years ago was the production of the Pilling report. The noble Lord referred to it tonight. There is a striking sentence by Sir Joe Pilling at the heart of his report endorsing the project of official histories. He said that he had come to see the work of publishing official histories as,

“the gold standard of accountability to the country from those who have been privileged to hold senior office”.

It is for that reason that Sir Joe Pilling advocates essentially an improvement and an increase in the production of official histories.

I recall that five years ago I referred to the history of MI6—which my noble friend Lord Hennessy mentioned tonight—by my colleague Keith Jeffery. It was then basically something that existed on Keith’s desk, but now it shows how these things can sell. One of the many points that are so important about that book is that it has sold hundreds of thousands of copies across the world. It may be because the Chinese copy actually has a gun smoking on the cover, but none the less it is an indication that no definite economic death follows the production of official histories. It is important to understand that the work of producing official histories is of great significance.

However, there is a darker side to Sir Joe Pilling’s report. If you read between the lines, he was aware as a member of the Dacre committee with Sir David Cannadine that it was likely that we would move from a 30-year rule. Actually, the Dacre committee recommended moving to 15 years, but in practice it is now a 20-year rule. Sir Joe is also clearly aware that this will become an argument for the state to say that it does not need these official histories any longer. He clearly tacitly acknowledges that that argument is just around the corner. It is the argument that is related to the hiatus that has been announced in the context of austerity. I can completely understand it, there is a

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forceful logic to it, but there is another hiatus, if I might put it like this. It would be forcefully true when the 20-year rule comes into effect and will be much truer in five, seven or eight years from now insofar as it has truth today. We still have a pressing need in public areas for a certain type of work in an official history programme.

Let me explain what I mean and take the case of the history of the Northern Ireland Office. If you want to look at the volume of official publications on Northern Ireland on the shelf of our Library, you will find a shelf of official publications including the report on Bloody Sunday and the Finucane report. There are hundreds of thousands of pages, mostly dealing with matters of that sort, occasions when the state has been seen to behave not very well. I have no objection to that; I was the historical adviser to the Bloody Sunday tribunal report. However, it is somewhat ridiculous that there is no account of the work of those officials on the British side who struggled to bring about a peace process. It is astonishing that we are silent on the more creative, positive, though no doubt deeply flawed aspects of the work of our state officials while we are so loud in announcing some of the rather bad things that went on. That seems an astonishing way to proceed.

The same point can be made about how aspects of Foreign and Commonwealth Office history in the 1940s and 1950s have been dealt with in recent times. We now seem to think that the way to educate the public about what happened in the past is to apologise or to have a large and expensive inquiry about something very bad. That may well be necessary, but this is the case for a proper, official history programme. With the hiatus that still now exists, particularly in the Northern Ireland Office, the many arguments there have been about legacy in Northern Ireland, the sense there that the past has not been properly dealt with and the small sums involved, there is a case for the Government to reconsider their approach of austerity.

There is a further point made in Sir Joe Pilling’s report that is worth drawing attention to. He says that the internet now allows you to publish a lengthy set of footnotes and a lengthier text—the full scholarly history—but a 200-page shorter version as the book. That seems another way for government to avoid unnecessary expense. In other words, I am arguing that this can be done quite cheaply. I would like to see the Government reconsider the force of the Pilling report of 2009.

8 pm

Lord Thomas of Swynnerton: Forgive me for speaking in the gap. I agree very strongly with the arguments of my noble friend Lord Butler for a historical adviser to many government departments. I had the privilege of accompanying the noble Lord, Lord Carrington, on a visit he made in 1981 to South America. It was not at all clear what I was doing, but I accompanied him as a historian of the Spanish world. When we got to Brazil, an official of the Brazilian Foreign Minister asked me what my mission was. I said, “I am Lord Carrington’s historical adviser”. He had not appointed me; I appointed myself. The Brazilian official said, “What a good idea —we must have one too”.

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8.02 pm

Lord Stevenson of Balmacara: My Lords, I declare an interest as a board member of the Brown Archive Trust, a Scottish registered charity that owns the personal papers of Gordon Brown MP, which are in the process of being deposited with the Churchill Archives Centre in Cambridge. I congratulate the noble Lord, Lord Rodgers of Quarry Bank, on securing this debate and on his persistence in sponsoring earlier debates on similar themes. He does us all a great service.

This has been a very high-quality debate, which has possibly fallen into three topics. First, there was official histories: the balance of opinion seems clear that they are a very important part of the overall architecture of the responsibilities of governance and accountability. I hope the Minister will be able to give us some thoughts on that when he comes to reply. I certainly find them fascinating. They are important, and we ignore them at our peril. Secondly, there was the question picked up initially by the noble Lord, Lord Rodgers, and graphically explained by my noble friend Lord Prescott: are the papers in good order? I want to come back to that later on. Thirdly, there was the interesting point from the noble Lord, Lord Butler, about historical advisers. I will also be interested to hear the response of the Minister to that.

I will focus on e-mails. I have done some work on the Brown papers—the papers relating to the Administration headed by Gordon Brown. I thank the staff in the Cabinet Office and Treasury for their expertise and support when I had to access the files for various issues in the past year or so. I have had some sense of what my noble friend Lord Prescott was saying but by and large my experience has been good and I have been able to find the papers I needed reasonably in the time. I am grateful to those who supported us in that.

However, Mr Brown’s Administration was the first that was almost entirely digital. Papers, minutes, notes and messages were all exchanged electronically, and the key evidence of meetings and events—which I notice is one of the main foci of the National Archives’ work—were in electronic form, as were the diaries. Of course, there are some traditional papers in the manila files which characterise the way Whitehall keeps its data on Administrations, but they are mostly simply print-outs from the electronic system. I know to my cost, because I spent many hours looking at them, that the paper files contain some very substantial gaps. My main concern is that the e-mails that support and exemplify how policy was decided are not generally incorporated into the paper files. Indeed, the e-mail files are kept separate and no work seems to have been done on them since the end of Mr Brown’s Administration.

Can the Minister explain what the government policy is here? I am assured—and have some evidence to back this up—that e-mails are being kept and that technology is being looked at so that they are progressively kept alive. However, keeping records is not the same as keeping records permanently. If you keep records permanently, it means that somebody has assessed the records and found them to have enduring long-term value, selected them, made them safe and secure and

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can find them when they are required. Keeping records indefinitely means we cannot find a basis to set a retention rule on them.

Although staff in No. 10 were encouraged to file material, we need a lot more than that. The current standard seems to be that e-mail accounts get removed after the Government change or a member of staff leaves. Surely that should happen only after a pre-exit process in which an archivist and an employee go through the e-mail account together and decide how to deal with the e-mails or in a post-exit process where an archivist looks for e-mails that need to be kept and ensures that they are catalogued and tagged for future access. That approach would at least recognise that, in the real world, people cannot be relied on comprehensively and routinely to deal with their individual e-mails by filing or deleting as they go along. E-mail communications are exchanged with such frequency that backlogs quickly scale up to a size that makes patient sifting and sorting virtually impossible.

We also need to recognise that the electronic way of working is intrinsically different from earlier, paper-based systems and our archiving needs to reflect that. E-mails typically deal with several different topics in one chain. How are they to be broken up and filed across those various aspects? Even if an individual never used their work e-mail account for non-work correspondence, their account is still likely to contain personal information of a sensitive nature exchanged with colleagues. That needs to be addressed. E-mails within a ministerial context are often political in nature: issues that perhaps should not reach the permanent archive but should be made available to those parties involved. Also, within e-mails it is hard to establish electronic document management systems that work. Access to e-mail archives is problematic because the information contained in the totality of the archive—virtually accessible if you go straight into an e-mail archive—is so sensitive that the National Archives might well have difficulty in imposing a rule that does not exclude very large amounts of information. That point was made earlier.

Of course, this is a very general area. I am sure that the issues that I have touched on here work in commercial companies as well as in government. A quote from an eminent historian of American higher education, Winton Solberg, is worth recalling at this stage:

“historical research will be absolutely impossible in the future unless”,

archivists find,

“a way to save e-mail”.

We need an approach to e-mail that results in staff leaving behind an e-mail account that their colleagues and successors can routinely access and use, without unduly harming either the account holder or people mentioned in their correspondence. We also need defensible access rules and, importantly, retention rules. I suspect it is beyond the ability of a single organisation to develop such an approach because it involves changes to available tools in the technology, to the way we think of an e-mail account and to how we ask colleagues to treat e-mails. I look forward to hearing from the Minister about what progress has been made in this crucial area.

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8.08 pm

Lord Ahmad of Wimbledon: My Lords, I thank my noble friend Lord Rodgers of Quarry Bank for initiating this debate. I am sure the House is fully aware of his longstanding interest in these matters and the great experience he brings to bear in debates such as these, as demonstrated by his contribution today. I also thank all noble Lords for the valuable contributions they made which raised several important questions. I hope that I am able to address most, if not all, of the issues. I will write on any questions left outstanding.

I also pay tribute to my noble friend for his work within the privy counsellors’ group, the “three wise men” as they are often referred to in this particular area. If debates such as this are about prompting interest, as a Minister in the Government, this was a new area for me. It has certainly prompted my interest, and I am looking forward to my visit to the National Archives in the next couple of weeks or so.

Turning first to official histories, my noble friend Lord Rodgers and the noble Lord, Lord Bew, referred to the reviews commissioned by the then Cabinet Secretary, the noble Lord, Lord O’Donnell, and conducted by Sir Joe Pilling and Mr Bill Hamilton. They recommended that the official history programme should be continued under the auspices of the Cabinet Office under the name “the public history programme”. They proposed substantial changes to raise the profile and relevance of the programme, including an increase in the involvement of sponsor departments and outside bodies, a revamping of the publishing arrangements and an enhancement to its governance procedures.

Several noble Lords referred to the fact that, given the current economic constraints, the Government do not plan to implement the proposed changes at the current time, and I will return to this. However, we are moving forward with the completion of the existing programme, which will conclude with the publication of TheOfficial History of the Joint Intelligence Committee: Volume 2 in 2016. Work on this volume will, we hope, be completed by the end of 2015, after which point the recommendations will be revisited.

My noble friend Lord Rodgers referred to expense. Without incurring disproportionate expense, it is not possible to determine the overall cost of the current series of official histories. However, for the last year for which published costs are available, 2006-07, the net cost was £176,000. This cost includes fees and expenses of historians and research assistants and costs associated with publication, but excludes staff costs of Cabinet Office administrative support and accommodation-related overheads. Noble Lords will understand that until the future shape of any programme has been determined it will not be possible to estimate the likely future costs. I reiterate the words of my noble friend Lord McNally when he previously answered a debate on this subject:

“As for the official history programme, a good deal of work is already in progress, and I hope that we can review future work in happier economic circumstances. I emphasise again my enthusiasm for the programme of official histories. It would be a tragedy if we were to allow them to wither on the vine”.—[Official Report, 17/1/12; col. 547.]

I share his sentiments.

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The noble Lord, Lord Hennessy, in his excellent contribution to today’s debate, referred with his usual aplomb to the histories of MI5 and the Secret Intelligence Service written, respectively, by Professor Christopher Andrew and Professor Keith Jeffery. I should clarify for the House that these were authorised histories, more akin to departmental histories, and were not commissioned under the official history programme. The noble Lord also suggested that an authorised or official history of GCHQ would be a valuable addition to those recent intelligence histories. In fact, nearly all of GCHQ’s records of the period roughly corresponding to that covered by Professor Jeffery’s history of SIS have already been released at the National Archives. I agree with the noble Lord that it is therefore open to any historian—indeed, we have historians in the Chamber—to write their own history of GCHQ. I look forward to such books being written.

Turning to the arrangements for preserving government archives, we have grounds to be optimistic given the progress made in a number of areas since 2008. First, on the responsibility for public record keeping, in line with the Public Records Act 1958, government departments are responsible for their records up to the point that they are transferred to the care of the National Archives. The National Archives provides departments with guidance and supervision, but decisions on which records to select for permanent preservation remain the departments’ own.

On guidance, in June 2009 the Cabinet Office and the National Archives revised the guidance on the management of private office papers. November 2010 saw the revision of the Civil Service Code, which now emphasises the importance of keeping accurate official records and handling information as openly as possible within the legal framework. In December 2010, the Cabinet Manual was issued, and this includes a section on official information and maintaining official records for departments. A question was raised by my noble friend Lord Rodgers about reminding Permanent Secretaries about their accountability for record keeping in their departments. It is from the Cabinet Manual that Permanent Secretaries should draw their guidance.

The noble Lord, Lord Prescott, raised several issues in his contribution, which I am sure we all found entertaining. To save on the high cost of file storage in central London, certain records have been outsourced to secure locations outside London. Regrettably, I am informed that mislabelling of the box containing the diaries of the noble Lord, Lord Prescott, led a more extensive search being required. I am sorry for any delay that that caused. However, I am sure that all noble Lords are delighted to learn that he has now perceived a positive response, and I am sure we are all looking forward to the publication of the noble Lord’s diaries; I am sure that they will make an entertaining read for us all.

Lord Stevenson of Balmacara: I am sure that my noble friend Lord Prescott can speak for himself, but I think his point was that there are points, particularly in today’s world, where it is vital for people to be able to respond quickly and precisely to allegations made,

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for whatever reason, in the press. I accept the Minister’s general point, but I do not think he responded to my noble friend’s point. Can he give us some assurance about how quickly these things can be dealt with in future?

Lord Ahmad of Wimbledon: First, I have apologised for the delay. It has been recognised that that should not have happened. Of course measures have been taken to ensure that the archive records should be labelled properly. I give an assurance that that has been done.

Lord Prescott: The labelling?

Lord Ahmad of Wimbledon: I am sure that the noble Lord will agree with me that labelling matters; it is good to know whose diaries are where.

In response to another point raised by the noble Lord, Lord Prescott, the noble Lord, Lord Butler, is absolutely correct that former Ministers can see their papers within their former departments. I assure the House that this is also outlined in the Cabinet Manual, which is available online. The noble Lord, Lord Butler, also talked about the coverage of historical advisers and sections across Whitehall. The FCO still has a historical section, the head of which is Patrick Salmon. I will write to the noble Lord on the coverage of historical advisers across Whitehall in general and, of course, place a copy of that letter in the Library.

On other initiatives, the National Archives’ information management assessment programme began in 2008. To date, most of the departments of state and several key agencies have been assessed and the remainder will be assessed during 2013-14. The National Archives is also about to begin a series of ongoing reassessments. The published reports of these assessments highlight good practice and make targeted, pragmatic recommendations for improvement. The National Archives works with each department to develop an action plan to address any risks and issues identified in the report.

The noble Lord, Lord Bew, referred to the 20-year rule. As noble Lords will be aware, from 1 January this year central government began its 10-year transition from the previous 30-year rule to the new 20-year rule. To smooth this transition, the National Archives has, with the active participation of departments across government, comprehensively revised its guidance and processes for the selection and transfer of records. The National Archives has been tasked to collect and publish regular reports on departments’ progress in reviewing and selecting records for permanent preservation during the transition period. The most recent report, with returns from 84 departments and agencies, was published on the National Archives’ website on 1 July. This level of transparency around government’s records management is, I suggest, unprecedented. With these reports and the transition itself, we have come a long way from the days, prior to the Freedom of Information Act, when our best hopes for transparent government lay with such excellent initiatives as the one led by the noble Lord, Lord Waldegrave.

The noble Lord, Lord Stevenson, rightly raised digital records. Much work has been carried out to clarify and address the challenges presented by the

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shift from paper to digital records in the business of government. The National Archives now has greater confidence that the much discussed black hole in our history wrought by obsolete digital formats is unlikely to materialise on the scale that had once been feared. However, it is important that in the National Archives programme new technology is fully embraced. Digital continuity is also now taken much more seriously across government than it was five years ago. The programme of training instigated by the noble Lord, Lord O’Donnell, during his time as Cabinet Secretary has certainly aided a better understanding of our digital records and improved usability and accessibility. Of course, there remains the challenge of reviewing large volumes of digital records for sensitivity ahead of their potential release under the 20-year rule, and the National Archives is working with other expert bodies to develop solutions.

I am pressed for time but, in conclusion, we all recognise that there remains much to do to ensure that government records in all forms survive for future researchers and historians; indeed, that was expressed by all noble Lords today. However, I hope that noble Lords will take from today’s debate some reassurance that these issue continue to be explored and addressed and, more importantly, that much more of the Government’s work in this area is open to scrutiny by Members of this House than ever before.

The noble Lord, Lord Butler, said in his contribution that Governments need to look at history. He referred to the late Lady Thatcher and her policy of a panel of experts; I think that we can learn a great deal. The National Archives represents our history. I suppose, as a Minister of the current Government, that it is apt to finish with a quote from Sir Winston Churchill, who said:

“Study history, study history. In history lies all the secrets of statecraft”.

Lord Prescott: And do not forget to label them.

Marriage (Same Sex Couples) Bill

Report (2nd Day) (Continued)

8.20 pm

Amendment 95

Moved by The Lord Bishop of Leicester

95: 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 (1B) insert—

“(1BA) Nothing in subsection (1B) prevents teaching the tenets of the relevant religion or religious denomination concerning marriage and its importance for family life and the bringing up of children to registered pupils at schools which have a religious character.”

(3) After subsection (2) insert—

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

(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 of the School Standards and Framework Act 1998 (“the 1998 Act”); and

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(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.”

The Lord Bishop of Leicester: My Lords, I will speak to Amendment 95, and I am glad to do so after a dinner break which I hope will have had the effect of moving noble Lords to see that this amendment merits the support of all sides of the House, whatever our disagreements may have been in the many days of debate thus far.

This amendment would ensure that there is no conflict between the guidance issued by the Secretary of State on the teaching of sex and relationships education, which includes teaching on the importance of marriage, and the obligation of schools of a religious character to teach in accordance with their trusts. It will ensure that while such schools will continue to have guidance issued by the Secretary of State about the teaching of marriage as it will be defined by the Bill, it does not prevent them, within the context of sex and relationships education, in the words of the amendment, also from,

“teaching the tenets of the relevant religion or religious denomination concerning marriage and its importance for family life and the bringing up of children”.

It is important to stress what this amendment is not about. It is not about seeking opt-outs for teachers, pupils or schools of a religious character from teaching about marriage as the Bill defines it. I, personally, would have no part in proposing that. Nor is it about seeking so-called protections for schools or teachers from the need to promote same-sex marriage. Many in this Chamber and outside, as I know from many conversations, still remain haunted by the ghosts of Section 28. To anyone who is feeling so haunted this evening, I offer the rites of exorcism. Let me be crystal clear: this amendment is categorically not about turning back the clock to those regrettable times. It is about reconciling two principles that have been the cause of many heated debates in this House: the principles of equality in marriage and respect for religious freedom. The focus of the amendment is on schools of a religious character, and how teaching on marriage will and should take place once the Bill becomes law.

An earlier version of the amendment was tabled in Committee by my friend the right reverend Prelate the Bishop of Ripon and Leeds. During the debate on that amendment it was unfortunate that the substance of the proposal was lost amid extended discussions about protections for teachers and schools and freedom from coercion about what to teach. I will address some of those misconceptions shortly but for now I will ask your Lordships not to be distracted by matters that have already been gone over at length and settled. They are not any part of the aim or purpose of this amendment.

This amendment seeks to bring clarity and to resolve a conflict between what schools of a religious character are legally obliged to do on the one hand—to meet the terms of their trusts—and what on the other hand they will be legally obliged to have regard to in terms of statutory guidance from the Secretary of State about the teaching of marriage. The Bill as it is sets both legal obligations on potentially a collision course.

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The substance of my case for the amendment is that without it, governing bodies of schools of a religious character will be left in a dilemma as to how marriage should be taught and may even be encouraged, through their legal obligations, to require teachers, who must teach according to the tenets of the faith, to disregard the Secretary of State’s guidance altogether. No one in this House, not least those on these Benches, would like to see a situation arise in which schools of a religious character are left in any confusion or doubt, or in which they might frame a policy about teaching marriage that ignores the existence of same-sex marriage entirely. I therefore hope that the amendment will command the support of noble Lords on all sides of this debate.

I shall not repeat in detail the points made in Committee by the right reverend Prelate the Bishop of Ripon and Leeds. The situation can be summarised as follows. All schools of a religious character, whether Church of England, Roman Catholic, Methodist, Jewish or other faiths, of which there are several in my own diocese of Leicester, are legally required to ensure that teaching takes place in the school according to the tenets of the respective faith. Church of England schools, for example, are established on trusts that require them to provide education in accordance with the tenets of the Church of England. They are legally obliged to comply with that requirement in their trust deeds, and a failure to do so would result in the governors acting unlawfully.

As far as teaching sex and relationships education goes, all maintained schools are required to “have regard to” guidance issued by the Secretary of State for Education under Section 403 of the Education Act 1996. That guidance says that pupils must,

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

I will clarify the point here, which is the very specific area of sex and relationships education. The principal provision of Section 403 of the Education Act 1996 requires SRE to be,

“given in such a manner as to encourage pupils to have due regard to moral considerations and the value of family life”.

Section 403 then builds on that general requirement by requiring the Secretary of State of State to issue guidance on the nature of marriage, and so on, and requiring heads and governing bodies to have regard to it. We are not talking here about teaching the tenets of the religion in a general sense but in this very specific area of sex and relationships education and moral considerations on the value of family life. That is why this particular area impinges on the tenets of the religion in a way that education generally does not. That is the reason to address this situation specifically.

After the Bill becomes law, the references in the guidance will of course be taken to mean marriage as the Bill defines it, which as anyone observing these debates will surely know by now, is not exactly how the tenets of the great majority of the world faiths define it. This leaves schools of a religious character with two competing legal duties. One says that the teaching has to be according to the tenets of the faith, while the other says that they must have regard to the guidance.

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Why might that be a problem? Some may wonder why schools cannot just teach both alongside each other in a sensible way. That, of course, is certainly the approach we want to see in Church of England schools. However, the crucial point is that there are strong legal grounds to conclude that the obligation to comply with the terms of the trust deeds of a school of a religious character outweighs the duty to have regard to the Secretary of State’s guidance. One is a duty to comply and the other is a duty to have regard. Unless Members of the House accept the amendment and resolve the conflict in the Bill, there is nothing to stop some schools of a religious character making a decision on legal grounds to set aside the guidance altogether. I am sure that noble Lords are aware of the diversification of provision being pursued by the Department for Education and the potential for a wider range of providers to enter the system. I contend that this makes it more necessary than ever to ensure that governing bodies are not tempted to set aside the guidance in this way. The amendment will give necessary space for schools of a religious character to stay within the terms of the statutory framework and significantly reduces the risk of them declining to teach about the changed legal nature of marriage at all.

8.30 pm

In Committee, many noble Lords, including those on the Front Benches, questioned the necessity of the amendment. I hope that I have addressed that point adequately. Others, including the noble Lords, Lord Lester and Lord Pannick, argued against the amendment on the basis that schools will not be compelled to teach against the tenets of the faith, and that adequate protections exist already in domestic law. Those arguments are beside the central point. Although there are protections in the Human Rights Act, it is surely the best course for Parliament to make Section 403 of the Education Act 1996 compliant with that Act, rather than making schools fall back on requiring the courts to make decisions about compliance. While Section 403 also 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”,

that paragraph applies only to the religious and cultural background of the pupils. In a city such as Leicester, many of our schools have pupils from many different religious and cultural backgrounds learning together. The amendment is concerned with the institutional religious character of the schools.

It is clear that schools of a religious character will continue to teach about marriage according to the tenets of their faith once the Bill becomes law. The key question is whether that fact should be addressed within or outside the statutory framework. Not only do we on these Benches think that an inclusive approach is best for Church of England schools, we believe that it is in the best interests of all those who support the principles of the Bill.

The amendment is necessary, moderate and eminently sensible. I repeat that it is not about creating opt-outs and protections for church schools. It will not give licence to schools of a religious character to ignore the

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fact that same-sex marriage exists, or to teach it without due respect and sensitivity. In fact, it will do the opposite. It will not undermine or threaten the Bill in principle or in practice.

The day after the Second Reading debate and vote—in which, incidentally, I abstained—I issued a statement, as Convenor of the Lords Spiritual, in which I said:

“It is now the duty and responsibility of the Bishops who sit in the House of Lords to recognise the implications of this decision and to join with other members in the task of considering how this legislation can be put into better shape”.

That statement came in recognition of the rapid and dramatic swing in the pendulum of social and cultural norms that the passage of the Bill has demonstrated. A wise Parliament and Government will recognise that when the pendulum swings this far and fast, there comes a moment when making concessions designed to create a satisfactory space for adjustment to the rate of change is sound politics. I put it to the House and to the Minister that much clarity and social benefit will arise from the amendment, and that the argument that it is unnecessary does not hold water. A sympathetic response from the Minister would go a long way to dispel the concerns of this Bench. I beg to move.

Baroness Cumberlege: My Lords, I support the amendment of the right reverend Prelate the Bishop of Leicester. We know that parents go to great lengths to get their children into faith schools, which are hugely popular. Some 30% of schools are faith schools. Parents value the ethos, discipline and character of the schools, which teach the importance of marriage for family life and for bringing up children. Of course, that is nothing new. It is built into our existing law. As the right reverend Prelate said, Section 403(1A) of the Education Act 1996 requires the Secretary of State to issue guidance to ensure that pupils,

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

We know that in future the word “marriage” in Section 403 will mean both opposite-sex and same-sex marriage, so when the Bill is enacted it will change the meaning of “marriage”.

As I understand it, the amendment is designed to tackle a problem that will arise by reason of the wording in Section 403(1A) that requires more than ensuring that children learn about the law of the land. The section puts an obligation on the Secretary of State to ensure that children, I repeat,

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

Those words are of concern because they entail more than the teaching of fact or law. They require schools to teach that marriage is valuable and beneficial for family life and the bringing up of children. As the right reverend Prelate said, it could be in conflict with the Secretary of State’s guidance.

In this amendment, we want to ensure that schools with a religious character are able to continue ensuring that pupils learn about the importance of marriage for family life, and that they are not prevented from doing so by the redefinition of marriage in Section 403 caused by the Bill. It is a modest amendment that will alleviate the concerns of many schools about the conflict that could arise, which was outlined by the right reverend Prelate.

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I am sure that noble Lords will say that it is simply not needed. That argument has been used against a lot of the amendments that have been put forward. However, I was reminded of Voltaire, who said:

“Define your terms, you will permit me again to say, or we shall never understand one another”.

It is important that we understand each other, especially as legislators, and are clear about what we consider to be the law of the land.

The Government last Monday saw no harm in redefining some of their terms. Previously, we were told that it was not necessary to clarify parts of the Bill but, in Committee, the Government, generously perhaps, put forward amendments to further clarify the wording around the Public Order Act and the definition of “compel”—amendments which we consider have really improved the Bill. Our aim is not to allow schools with a religious character to avoid teaching the law of the land; as the Minister rightly pointed out,

“such schools do already teach about topics that may be considered sensitive, such as divorce, and they do so without issue”.—[

Official Report

, 24/6/13; col. 567.]

But we think that all schools, including schools with a religious character, should teach the law, and this amendment has been very carefully drafted to ensure that schools will not be enabled to ignore any guidance requiring them to do so. It is not designed to prevent schools educating them about the law. On the contrary, we want schools to teach the law, to ensure that it is taught with clarity, is even-handed and, as they understand it, within the character and ethos of faith schools, without conflicting with the Secretary of State’s guidance.

Lord Pannick: My Lords, I understand the concerns that have moved the right reverend Prelate and the noble Baroness, Lady Cumberlege, but I think that the amendment is inappropriate, for these reasons. Section 403, which the amendment addresses, is concerned with sex education. There are many contexts in which sex education raises religious issues, including homosexuality, contraception, and no doubt many more. I cannot understand why there is a need for a specific statutory provision in Section 403 to address the impact of same-sex marriage on sex education when there is no need for a statutory provision to address other issues that may have a religious dimension.

The right reverend Prelate referred to Section 403(1A), which, as the noble Baroness pointed out, says that the guidance to be issued by the Secretary of State must put sex education in the context of marriage and family life. But there is a very good reason why the guidance requires sex education to be put in the context of family life and marriage. That is because sex education should not be taught simply on the basis of physicality; it should be presented, as I am sure that all noble Lords would agree, in the context of responsibility and the development of relationships. Surely, if and when sex education addresses homosexuality, it should equally be taught in that same context of responsibility and other relationships and, as a result of this Bill, that will include same-sex marriage. For this amendment to be adopted would, I am afraid, run counter to everything else that we are seeking to achieve in this Bill.

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Lord Cormack: My Lords, I rise to give my support, not surprisingly perhaps, to the right reverend Prelate the Bishop of Leicester, who moved this amendment with balance and moderation, even though with a quiet passion. I do not believe that the acceptance of the amendment can do any damage whatever to a Bill that is shortly to complete its passage through your Lordships’ House. We are not debating tonight the rights and wrongs of same-sex marriage as against traditional marriage or rehearsing again the arguments that we specifically add extra definitions to two forms of marriage within the Bill. In this amendment, we seek to give a degree of reassurance to those who are concerned at the enormous social change that the passage of this Bill will bring about in our country. There is no point in anyone denying that there is going to be enormous social change.

Those parents who send their children to faith schools or denominational schools, whether they be Church of England, Roman Catholic or any other faith, have a right to expect two things above all. The first is that their children be brought up and taught to understand the realities of the society in which they live. Of course it is right—and the right reverend Prelate stressed this —for guidance given by the Secretary of State to be not only received but followed. Of course it is necessary that my grandchildren—and many of your Lordships have grandchildren—should be brought up to understand that Parliament has, in its wisdom, decided to effect a major change to the social fabric of our land. But if that change is to come about with a degree of mutual tolerance and understanding —and, yes, good humour—it is important that the second requirement to which parents look should be fulfilled. Their children should be taught the basic tenets of the faith.

There need be nothing incompatible between these two aims. I believe that the manner in which the right reverend Prelate introduced the amendment showed that that is foremost among his aims and objectives and those of his colleagues on the Bishops’ Bench. There are times when we in this House can benefit from the guidance and wisdom of the Lords spiritual. I believe that tonight is one of them. The acceptance of this amendment will show sensitivity and understanding on the part of the Government. It will do nothing to damage the cause of those who believe passionately—and I respect their beliefs—in the essential not just rightness but necessity of the legislation before us. There are many who believe that it is utterly necessary. I do not share that view, but I hope that when we have finished our deliberations on this Bill, either next Monday or whenever we have to re-debate amendments sent back from another place, in all parts of this House there will be a spirit of mutual tolerance and acceptance of what we have enacted. That will call for a degree of charity on the part of us all, whichever side we have taken in this debate. If we can assist in laying the foundation for that spirit of charity tonight, as the Bill approaches its final stages, we should do so.

I warmly commend the amendment and even more warmly commend the spirit in which it was moved and I very much hope that it can be accepted without a Division by your Lordships’ House.

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8.45 pm

Lord Alli: My Lords, I have spent some time trying to understand the issues raised by the right reverend Prelate the Bishop of Leicester in this amendment. As I understand it, the right reverend Prelate is worried about the teaching of marriage in faith schools and academies as part of sex and relationship education. He has explained his concerns and in particular the conflict that he perceives between the guidance issued by the Secretary of State and the teaching of the tenets of the religion as protected in the Bill.

I am sorry that I cannot support the right reverend Prelate on this amendment, for many of the reasons that the noble Lord, Lord Pannick, outlined. I am also afraid that, if we agree to this amendment, which I do not believe is absolutely necessary, it will provide a foothold for those who are opposed to this Bill to reopen old debates and old wounds. I believe that it has the potential to be quite destructive in the hands of those who do not want this Bill to succeed.

While I cannot support the amendment, I want to put on record my growing appreciation of the new direction of travel within the Church of England. I did not know that the most reverend Primate the Archbishop of Canterbury would be in this place, but anybody who heard his presidential address to the General Synod cannot but have been impressed by his thoughts on the matter. He said that, after listening to our Second Reading debate, he could not fail to be struck by the,

“overwhelming change of cultural hinterland”.

He said:

“Predictable attitudes were no longer there”.

He committed the Church of England to work tirelessly against homophobic bullying in the schools that it runs and among the children whom it educates. I want to pay tribute, once again, to him for fuelling this journey which, I believe, can only help society as a whole.

I also pay tribute to the right reverend Prelate the Bishop of Leicester. I know that this Bill is not what the Church of England wanted; it would rather that this Bill had not come about. However, the right reverend Prelate, under difficult circumstances, has navigated very choppy waters with some skill and conviction. It is not the right reverend Prelate’s amendment I fear but those who would use it against us and do the opposite of all that he wants. That is why I cannot support the amendment. I hope that the right reverend Prelate will understand that. I also hope that he will not test the opinion of the House because I, like many in this House, have no appetite to vote against him, for the reasons already given.

Baroness Brinton: My Lords, I support the comments made by the noble Lords, Lord Alli and Lord Pannick, particularly the compliments paid to the right reverend Prelate and the most reverend Primate for their work on this issue. I want to raise a slightly different issue. The right reverend Prelate referred to the difficult balance that faith schools have to strike between complying with the tenets of their trust deeds and having due regard to the directions of the Secretary of State. I absolutely understand that. It may be helpful to quote an Oral Question of Monday 8 July on the new sex and relationships curriculum. I asked about academies,

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but the answer that I was given refers to all schools. I asked about academies not having to provide sex and relationships education. The noble Lord, Lord Nash, replied:

“My noble friend is quite right that academies are not obliged to teach sex education, although, if they do, they have to have regard to the Secretary of State’s guidance on these matters. I repeat the point that Ofsted inspects for all social, moral and cultural provision in schools, and we will be ensuring that it focuses on this point”.—[Official Report, 8/7/2013; col. 6.]

I raise that point because I see a distinct parallel for faith schools with the way that religious education is taught, whereby the schemes of work that the Church of England has for covering a range of other faiths are sensitive and educational but do not promote those faiths. I absolutely see that parallel here, in that faith schools are not required to promote same-sex marriage but merely to educate pupils about it. Often we get bound up in the idea that SRE is taught only in sex and relationship education classes. However, young pupils will ask about this at peculiar times. Therefore, a school needs a policy. I have seen many faith schools’ policies on SRE that recognise that fact and all staff are empowered in that regard. Therefore, I hope that the right reverend Prelate does not press the amendment because I believe that schools of a religious character can find the protections that they need in the existing Education Act.

The Lord Bishop of Guildford: My Lords, this debate has moved into a different manner of speech by virtue of the gracious response of the noble Lord, Lord Alli, to the right reverend Prelate the Bishop of Leicester. Indeed, if I may say so, there was graciousness on both sides. I hope that, irrespective of whether the amendment is pressed, and whatever the result of the Division might be if it is pressed, we can have an assurance from the Front Bench that the possible conflict between trust law and the directions of the Secretary of State, to which schools have to have due regard, will be given further attention. If that happens, I believe that we could have a way forward along which we could all walk. I look to the Front Bench to be given an assurance in that area, if that is possible, given the positive exchanges between the noble Lord, Lord Alli, and the right reverend Prelate the Bishop of Leicester.

Lord Eden of Winton: My Lords, I know that this amendment refers to all faith schools but I hope that I may be forgiven if I concentrate my remarks on the only faith schools about which I know anything at all—the Church of England schools. In doing so, I am encouraged to some extent by the report that I read of what the Prime Minister told the national parliamentary prayer breakfast, which took place recently in Westminster Hall. I wish to quote briefly from the article in the Times of 26 June this year, which reported that the Prime Minister said at that prayer breakfast:

“It is encouraging that Christianity still plays such a vital role in our national life. It has had an immense historic influence in the development of our culture and institutions and it motivates British people to wonderful acts of service and self-sacrifice. We are a country with a Christian heritage and we should not be afraid to say so”.

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