Equality Act (Sexual Orientation) Regulations 2007

– in the House of Lords at 7:30 pm on 21st March 2007.

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Photo of Baroness Andrews Baroness Andrews Parliamentary Under-Secretary, Department for Communities and Local Government, Parliamentary Under-Secretary (Department for Communities and Local Government) 7:30 pm, 21st March 2007

rose to move, That the draft regulations laid before the House on 13 March be approved. 12th Report from the Statutory Instruments Committee and 14th Report from the Merits Committee.

Photo of Baroness Andrews Baroness Andrews Parliamentary Under-Secretary, Department for Communities and Local Government, Parliamentary Under-Secretary (Department for Communities and Local Government)

My Lords, these regulations are the final stage in a journey which began in December 2005, when the Government accepted an amendment in this House to include a power in the Equality Act enabling regulations to be made to outlaw discrimination in the provision of goods and services—for example, in shops and hotels—in the exercise of public functions—for example, in the delivery of health services—in education and the rental and sale of premises.

We have, therefore, reached a final chapter in a process which has been inspired by a determination to create a society which is fair in all respects and to all members of society. That means, quite simply, that no one will be denied the right to be themselves and to be treated fairly. And much of this debate centres on the right to dignity and equal treatment—the right not to be humiliated. It cannot be right, in the body of evidence that we have seen on discrimination against gay and lesbian people, that same-sex couples may be asked to leave a restaurant for holding hands, or that a school can turn a blind eye to homophobic bullying, or that young, homeless people can be asked to leave sheltered accommodation on grounds of their sexual orientation, or that an elderly gay couple in residential accommodation is denied the right to be together.

This House certainly did not think that was right, which is why the Equality Act 2006 legislated for new protections on the grounds of sexual orientation.

The regulations are certainly not without controversy. They reflect deep and sincere beliefs. They cover complex ethical issues. But we are confident that, having listened and having had an inclusive and thoughtful debate over issues of faith, conscience and the law, we have achieved a balance. That approach, significantly, has been endorsed by the Joint Committee on Human Rights.

I appreciate that the nature of some of the concerns raised are expressed in the amendment tabled by the noble Baroness, Lady O'Cathain, and I want to try to anticipate and address some of the concerns that she may raise about religious liberty, classroom teaching and the situation in Northern Ireland. But I also want to try to reassure the House on the scope of the debate, its seriousness and the process that has been followed, and to lay to rest some of the misunderstandings and, indeed, some of the myths that have overtaken and sometimes confused the debate itself.

I need to start by addressing some procedural concerns with regard to the passage of the new protections, before explaining the substance of the Great Britain approach, which broadly follows the Northern Ireland approach, albeit differing in five important respects.

Perhaps I may explain the timetable under which these regulations have been laid and the extent to which it was determined by the consultative process and its outcomes. The case for new protections on grounds of sexual orientation and the process by which those protections would be brought into force was agreed upon in this House during the passage of the Equality Bill in 2006. The reason why this House decided on the inclusion of a regulation-making power, rather than including provisions on the face of the Equality Act, was to acknowledge the depth and range of sensitivities evoked, and precisely to allow time for extensive consultation on the scope and shape of the new protections.

We were right to do so. Our consultation has been extensive. We launched Getting Equal last March, to which there were 3,000 responses. We were right to take extra time to consider those responses and the range of opinion that they reflected; but we also committed ourselves on 19 October to bringing the regulations into force this April, alongside similar provisions on grounds of religion or belief.

The sensitivity of the issues raised by this legislation, particularly the nature of the debate on the role of faith-based adoption societies, meant that 7 March was the earliest possible date for the introduction of the regulations. We published our response to the consultative document on the same date. The regulations were subsequently re-laid to take on board the technical drafting comments from counsel to the Joint Committee on Statutory Instruments, but there was no impact on the policy or substance of the regulations.

The JCSI has now completed its scrutiny of the regulations and has approved them. The Joint Committee on Human Rights has reviewed the principles on which the Northern Ireland regulations were constructed—principles which are identical to the GB regulations—and endorsed the approach in its report. Those regulations were extensively debated and carried in this House on 9 January.

In terms of the parliamentary process, there was a debate on the voluntary adoption sector on 21 February in the other place in Westminster Hall, and the decision that the regulations should be taken appropriately in Committee was also agreed between the three main parties. Perhaps I may suggest that few regulations have been subject to more intense or inclusive public scrutiny, while observing due parliamentary process. This debate will, I hope, also enable me to clarify and reassure noble Lords about what has been achieved—and I am grateful for that opportunity.

The GB regulations broadly follow the progressive approach set out in the Northern Ireland regulations. It is gratifying that the principle of legislating in this area was supported by almost 97 per cent of responses to the consultation. However, opinion was predictably divided on how to safeguard the right to freedom of conscience and expression. We are confident that our regulations strike the right balance.

We have already created protections on the grounds of race, gender, disability, and religion or belief. These regulations provide for the same protections in relation to sexual orientation. It is salutary, in considering these regulations, to reflect on whether we would be raising the same issues and questions in relation to other groups which are already protected.

Equally, many of the representations received have confirmed the need for a religious organisation exemption to provide people with the necessary space and freedom to act in accordance with the basic doctrines of their faith. Of course that must be so. Of course we agree. It is for that reason that the Government have provided an exemption for religion or belief organisations, and those acting under their auspices, where that is necessary to avoid conflicting either with the doctrine of the organisation or the strongly held beliefs of a significant number of a religion's followers.

But where religious organisations choose to step into the public realm and provide services to the community, either on a commercial basis or on behalf of and under contract with a public authority, that surely brings with it a widersocial responsibility to provide those services for the public as they are, in all their diversity, and not to pick and choose who will benefit or who will be served.

The principles on which this approach is constructed are the same as those that underpin the Northern Ireland regulations, which have received the positive endorsement of the Joint Committee on Human Rights. Perhaps I may quote from that report. It states:

"Nobody is required by the Regulations not to have beliefs about the morality of different sexual orientations, or its compatibility with the tenets of one's religion, or punished or subjected to any other disadvantage for having such beliefs. In our view, the prohibitions on discrimination in the Regulations limit the manifestation of those religious beliefs and that limitation is justifiable in a democratic society for the protection of the right of gay people not to be discriminated against in the provision of goods, facilities and services".

That is precisely the balance that has been struck in the regulations.

Throughout this process, the Government have fully recognised what a difficult and complex journey it is to steer a path between the demands of religious conscience and those of individual rights. To take issue with the first part of the noble Baroness's amendment, the regulations do not compromise religious liberty.

Let me be clear about a number of points around the application of the regulations, particularly with regard to their impact on religious liberty and try to lay to rest, I hope, some of the worries that were raised in the Northern Ireland debate and were rooted in misunderstandings. The freedom of a person to observe the teachings of their religion is not impaired, nor is their religious liberty compromised as a result of these regulations.

The regulations will not make it unlawful for a church, a mosque or a temple to refuse membership of its congregation to a lesbian, gay or bisexual in accordance with its religious doctrine. Regulations will not force a priest to bless a same-sex couple. A minister of religion will not be open to litigation should he explain to a lesbian, gay or bisexual person, in the appropriate terms, why he cannot admit a practising homosexual to his congregation. It is untrue, despite what the Lawyers' Christian Fellowship has suggested, that the regulations adopt the approach in law that the right to a homosexual lifestyle should take precedence over the right to live a Christian lifestyle. Our regulations uphold the rights of all. Perhaps I may take this opportunity to remind the House that parallel protections on grounds of religion and belief will be brought into force on 30 April. Nor will providers have to tailor their services to appeal to lesbian, gay or bisexual people. All the regulations require is equality of access to existing services with regards to sexual orientation.

The regulations do not affect fundamental freedoms. They maintain the longstanding liberty enjoyed by all faiths to observe and practise their faith. They do not provide special treatment for any group in society, but they provide protection from discrimination for individuals when accessing basic goods and services—something which the rest of us can take for granted.

The regulations will be applicable to a wide range of activities and will have positive effects on the day-to-day life of lesbian, gay and bisexual people. For example, it will be unlawful to refuse a same-sex couple a double room in a hotel because this might cause offence to other customers; to refuse to provide a gift registration service for couples planning a civil partnership where such a service was offered to couples planning a wedding; to refuse admission to a bar because someone was gay; and to refuse a child's admission to a school on the grounds of either their or their parents' sexual orientation. These are significant new rights which will make a difference to people who are full members of society and whose right it is to be treated as such.

The issues of religious liberty have been conflated also with issues of educational freedom. The noble Baroness, Lady O'Cathain, argues that the regulations will result in litigation over the content of classroom teaching. I have to disagree with her. I make it clear that the regulations will not impact on the subject matter that is taught in schools. The curriculum is a matter for the Department for Education and Skills. In the most extreme parody of the reality, it has been argued that the regulations will require schools to promote gay rights or homosexuality to children. I thought that we had got rid of that debate when we removed Section 38.

It has been suggested that the regulations will expose schools to legal challenge if they do not use specific books to teach pupils about issues related to sexual orientation. That simply is not, and could not, be the case. Faith groups are content with the current arrangements for how the curriculum is formulated. The regulations will have no impact upon that. Rather, they will apply to what happens in the classroom and will therefore reinforce the principles that are reflected in the existing statutory and non-statutory guidelines. There is no ambiguity. As now, a teacher in any school will still be able to express their personal religious or ethical views on sexual orientation, provided that it is done, as the guidance would express it, in an appropriate manner and within a suitable context. For instance, a teacher will be able to say, "As a Christian, I believe that homosexual practice is wrong" or "The Koran teaches..."

What is unacceptable, however, and caught by these regulations is for a teacher to turn a blind eye to homophobic bullying, to single out a lesbian, gay or bisexual pupil for criticism on the grounds of their sexual orientation, to make a child feel that the school is not a place for them or that they will not succeed because they are being judged unfairly. That is the detriment to which Regulation 7(4) refers. The regulations will therefore impact upon how education is delivered to ensure that a classroom becomes a place where learning and not prejudice can flourish.

The fundamental point is that all schools should already be complying with these guidelines, which govern the curriculum and require that teaching in this area must be delivered in an appropriate way, bearing in mind that schools should promote respect between pupils by safeguarding and promoting the welfare of all of them. The sex and relationship guidelines state that children must be taught in such a way as to be helped,

"to understand difference and respect themselves and others and for the purpose of preventing and removing prejudice".

I make it clear that schools will not be vulnerable to legal challenge if they simply continue to comply with the existing guidelines. The regulations should make no material difference to classroom teaching. That is why we do not believe that vexatious litigation will result from them. We do not believe that a sustainable case for litigation could be made on the grounds that a school promotes marriage in accordance with its religious ethos and does not actively promote civil partnership.

I shall take the House through the comparisons with the Northern Ireland regulations. In broadly following the Northern Ireland approach, the Great Britain regulations have as their foundation principles that received support from a wide body of opinion. However, in light of specific differences in the legal framework and social fabric of Great Britain, these regulations contain certain necessary differences from those that were laid in Northern Ireland, which I shall explain.

As this House knows, specific concerns were raised during the consultation period about the impact of the regulations on the work of faith-based adoption and fostering societies. Adoption law is different in Northern Ireland from that in England and Wales, where, since 2002, with the passage of adoption Act, same-sex couples in enduring relationships have been able to adopt children jointly.

On 29 January, after a thorough and inclusive discussion with leaders of the Roman Catholic and Anglican Churches, gay rights groups and Jack McConnell, who represented the Scottish perspective, the Prime Minister and Secretary of State for Communities and Local Government made it clear that the Government could offer no specific exemption for faith-based adoption and fostering agencies offering publicly funded services. At the same time, it was also recognised that placing a child for adoption is a uniquely serious undertaking. Adoption is a service for children. The best interests of children must be paramount. No one has the right to adopt; it is a long and rigorous process. We have to be sure that it is the right course for each child and for each adoptive and prospective parent. The decision was therefore absolutely right.

However, the Government were deeply aware also of the value and experience of the faith-based adoption agencies, particularly in placing children who are hard to place. On the grounds of principle and pragmatism, we sought to achieve a way forward which maintains the focus on the needs of the child and prevents any disruption to services currently being provided to adoptive parents and children, while requiring, as we must, those publicly funded agencies to operate within the law. It was therefore agreed that a transition period of 20 months would be granted to faith-based adoption and fostering agencies until the end of 2008 to enable them, with help, to plan for and achieve the best possible outcome, whether that might come from partnership arrangements or from using their expertise in other ways.

In the interim, any faith-based adoption or fostering agency wishing to take advantage of the transition period will have to refer same-sex couples to other agencies which they believe are able to assist. We know that this is challenging, which is why, to assist the process, the Prime Minister announced that he would commission an ongoing, independent assessment of the issues that agencies would need to address in the transition period We want those services to continue. They are much valued, and we want them to be retained and developed as best they can.

The assessment process will be conducted by an independent adoption expert, supported by a panel with expertise in child welfare and adoption. The team will be asked to monitor, support and report on progress towards adapting to the new regulatory regime in the context of wider reforms to adoption services that are already under discussion.

It is heartening that the British Association for Adoption & Fostering has stated that,

"we are pleased the government has carefully considered the intricacies of this sensitive issue... and believe this package should lead to a sensible solution".

We recognise that this is a complex debate, which exposes the deepest feelings, but, at all times, we have regarded the interests of the child as paramount. In this, we have the recognition of Cardinal Cormac Murphy-O'Connor, who noted and welcomed,

"the Government's expressed desire that the experience and excellent work of our agencies is not lost, especially for the benefit of needy children".

The other differences from the Northern Ireland regulations are for clarity and efficacy. The Great Britain regulations make it clear that a civil partner may bring a discrimination claim on grounds of sexual orientation against a provider of goods and services who denied them access to a benefit or service available to a married person in a similar situation. This was felt to be of particular importance in Great Britain where, within the first nine months of civil partnerships coming into force, more than 31,000 people had registered as civil partners as opposed to just over 200 in Northern Ireland.

We have also provided a specific exemption, on the advice of the DH, for the National Blood Service. The exemption allows for the National Blood Service to exclude donations by certain groups, including gay men, on the basis of close and regular analysis of the epidemiology of confirmed HIV and Hepatitis B positive tests among blood samples from people donating blood in the UK.

Likewise, we have provided an exemption in relation to insurance, which will enable insurance companies to offer tailored policies where they can be linked to sound actuarial evidence. That is consistent with the requirements in the Sex Discrimination Act and regulations made under the Disability Discrimination Act. It is intended that this particular exemption will not apply beyond the end of 2008. Current best practice guidance from the Association of British Insurers makes it clear that insurers should not ask about sexual orientation or any HIV negative tests, but instead base their assessment of risk on answers provided about actual behavior, regardless of sexual orientation. We will continue to work closely with the ABI and others on this and legislate accordingly.

The final substantive difference between the Great Britain regulations and those that apply to Northern Ireland is the decision not to include harassment within the Great Britain regulations. This House has debated long and hard on the difficulty of establishing a threshold for harassment in the goods and services context, and as a result we were clear in our consultation document that this cross-cutting issue would be looked at in the broader context of the Discrimination Law Review.

I turn finally and briefly to the third part of the amendment of the noble Baroness. Noble Lords will be aware that the Northern Ireland regulations are in the process of being judicially reviewed. They were made under a separate order-making power and sit within a distinct equality framework. The outcome of the judicial review will be seen against that context. We are supportive of the Northern Ireland approach, which has been endorsed by the Joint Committee on Human Rights, and we are confident that the balance we have struck is right for Great Britain. The Government's extensive consultation revealed widespread evidence of discrimination, and we do not believe that delaying important legislation until a decision has been taken on a judicial review of separate regulations in a different jurisdiction is justifiable.

To sum up, these regulations have achieved the right balance between protecting religious liberty and human rights under the law. They have been the subject of long, complex and inclusive discussion. They have received the support of the JCHR for the balance that has been achieved. They take us forward in what has been a long journey towards recognising the rights of people irrespective of sexual orientation. It is a historic step forward towards dignity respect and fairness for all. I commend the regulations to the House and I beg to move.

Moved, That the draft regulations laid before the House on 13 March be approved. 12th Report from the Statutory Instruments Committee and 14th Report from the Merits Committee.—(Baroness Andrews.)

Photo of Baroness O'Cathain Baroness O'Cathain Conservative 7:52 pm, 21st March 2007

rose to move, as an amendment to the above Motion, to leave out all the words after "that" and insert "this House, having regard to the widespread concerns that the draft regulations compromise religious liberty and will result in litigation over the content of classroom teaching, and having regard to the legality of the equivalent regulations for Northern Ireland, declines to approve the Equality Act (Sexual Orientation) Regulations 2007".

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, the Government first issued the regulations dealing with sexual orientation under the Equality Act on 7 March. They were then withdrawn and, after that, twice re-tabled. They are before us today and I believe they are seriously flawed. Furthermore the other place has had no opportunity to debate them other than in a hastily arranged committee off the Floor of the House. Surely that is not acceptable.

In the regulations, the Government are rushing headlong into the incredibly sensitive area of a clash between gay rights and religious freedom, and doing so by secondary legislation which does not allow for amendments and permits only very limited debate. I believe this circumscribing of people's fundamental freedoms is outrageous. Parallel discrimination laws covering religion are in primary legislation. They were debated at length and substantially amended in their passage through Parliament. Why has such a procedure not been adopted in this case?

Some noble Lords may be concerned about the principle of voting down secondary legislation, but if we vote down these regulations tonight it will not be the first time that regulations have been negated. For example, the House supported the Conservative Front Bench Motions to vote down the Food Supplements (England) Regulations 2003 and the Greater London Authority Election Rules 2000. I note that the Joint Committee on Conventions issued a report on 31 October last year which upheld the right of the House to vote down secondary legislation, when the occasion demanded particularly when, as in this case, the Lords Merits Committee has drawn the special attention of the House to the regulations in question.

I turn to the fundamental issues raised by the regulations and how they impinge on people's religious beliefs. I venture to suggest that most religious believers hold that sex is only for marriage. That rules out adultery, sex before marriage and homosexual practice. Churches have believed that for thousands of years. It is profoundly dangerous of the Government to decide to use the law to force religious believers to change their beliefs.

The Christian churches are deeply fearful of what these regulations will mean for them. In the main, churchgoers are sensible, kind, devout people who subscribe to the Second Great Commandment that you should love your neighbour, but believe that love sometimes means saying no. The religious view means a Christian old people's home must say no to two civil partners who want married quarters, just as they would refuse cohabiting heterosexuals. They believe love means not helping people to do things that are morally harmful and against Biblical teaching, from the Old and New Testaments. That is their belief. It may not be the belief of all noble Lords, or of Government Ministers, but it is their religious belief. Are we to ride roughshod over it because we think we know better? Is it right to say, "You must do business our way or not at all"? There is not much tolerance or diversity in that. Surely tolerance means freedom to disagree.

At the end of January, we had the unsightly spectacle of the Prime Minister effectively announcing that it is government policy to close down Catholic adoption agencies for not organising gay adoptions. His idea of a compromise on the issue is that the death sentence will not be carried out until the end of December next year. It is not just the Roman Catholics who will be affected. Many Christian denominations have protested about the regulations. It is not just adoption agencies that are affected. Countless Christian welfare projects will be affected, including old people's homes, residential drug rehab centres and community centres, to name just three.

At another level, businesses run by Christians would be affected, including wedding photographers, who could be sued for refusing to attend civil partnership ceremonies, which, as I have warned previously, are now commonly called "weddings". In these areas, the Government are effectively putting up a sign saying, "No Christians allowed".

The Merits Committee of our House has drawn special attention to the regulations, making specific reference to the concerns expressed by religious groups that they will infringe on their religious freedom. Of course, in many areas the laws will make little difference; there is no problem in most business contexts. It is only where religious people are asked to endorse or promote a lifestyle which is counter to their beliefs that there is a problem. That does not mean that homosexuals are deprived of any service; they have the choice of many businesses which do not operate on strictly Christian principles. Some people of strong religious beliefs are simply saying there are some things that would involve them in moral compromise or in acting against their conscience.

A Christian printer would be quite content to print materials for people who happen to be gay, but would not want to print the Gay Times, or leaflets promoting gay marriage. That is a crucial distinction which Christians make, but which the regulations will not permit. Others are allowed to carry on in business and keep their freedom of conscience intact: a staunch socialist can refuse to print a Tory election leaflet; a vegetarian printer can refuse to print flyers for his local butcher; and a pacifist can refuse to print a sales brochure for an arms manufacturer.

The Government have taken the view that gay rights trump religious rights, as the right reverend Prelate the Bishop of Winchester said this morning on Radio 4. Of course, the Government deny that, but the Joint Committee on Human Rights exposed that denial when it published a report on 28 February declaring at paragraph 44 and elsewhere that that is precisely what the regulations do. A citizen's right to manifest sexual orientation is absolute, but the right to manifest religious belief is not.

The human rights committee also says that the regulations could result in litigation against a school if a teacher says homosexual practice is wrong. If a priest is asked a direct question in an RE lesson, there could be litigation if he divulged what he really believes.

The Government and the Minister graciously made the same point; they deny the curriculum is covered by these regulations. In that case, why do equivalent religious discrimination laws have exemptions in the curriculum? The Government may be the only ones who believe the curriculum is not covered. Others who believe to the contrary are the Joint Committee on Human Rights, the Church of England's lawyers, the counsel to the Joint Committee on Statutory Instruments, the seven denominations suing the Government in Northern Ireland and a pro-gay group called No Outsiders. That group is already going around the country telling schools that the regulations mean they have to "normalise" homosexuality to seven year-olds and read gay fairy tales in the classroom.

There are, of course, as the noble Baroness has pointed out, exemptions to the regulations. Parliament is exempt; the insurance industry is exempt until the end of next year; and gay welfare groups have an exemption so they can turn away heterosexuals. Noble Lords might like to note that they can put up a sign saying "No heterosexuals" and Regulation 13 will protect their right to do so. I do not criticise that, I only note that on this point it rather puts into perspective the somewhat overemotive arguments that we heard when we considered the equivalent regulations for Northern Ireland in this House on 9 January.

Can it be right to introduce these laws for Great Britain when there is a real prospect that the Northern Ireland regulations may be struck down by the judicial review currently being undertaken? Surely it would have been better to have awaited the outcome of that review?

Regulation 14 provides some exceptions to organisations with religious purposes so long they are not publicly funded or commercial. But where a religious body has a contract with the state, Regulation 14(8) blocks the religious exception. It is extraordinarily wide. Regulation 14(8)(a) is so ambiguous that it appears to mean that any contract with a public authority by a denomination may result in the whole denomination losing its religious protections from the regulations. If a Christian organisation receives public funding for carrying out a project for asylum seekers, the organisation loses its religious exceptions, its membership policy is no longer protected and it could be sued. A Christian old people's home run as a charity could be sued by a homosexual couple whose accommodation is funded by the local authority.

Under Regulation 14(8)(b) religious bodies deemed to be public authorities lose all their exceptions under the regulations. The Minister said that the organisations had the choice whether to receive funding, but it really is well known that the Government want all old people's homes to be considered as public authorities and to overturn the Leonard Cheshire judgment. If that happens, a Christian old people's home run as a charity will be forced to offer double rooms to homosexual couples for all its places, not just those which are publicly funded.

Regulation 11 makes it unlawful for a person to,

"instruct ... cause or attempt to cause ... or ... induce or attempt to induce another to discriminate unlawfully".

If a church minister preaching on homosexuality in orthodox terms, instructed the congregation not to take part in activities inconsistent with this teaching, and concluded his sermon with an exhortation to act consistently with Christian beliefs, under Regulation 11 the Commission for Equality and Human Rights could launch a legal action against him. It could argue that he was attempting to cause or induce discrimination on the part of his congregation should any of them be put in the relevant circumstances. The Minister may say that the commission would never do that. But should it even be possible to do it? Must we rely on the tender mercies of commission officials? That is a major oversight in these regulations.

The Government have placed this House in a very difficult position. They have chosen a legislative procedure that means that none of us is in a position to propose amendments. Although the Government claim that they have protected the rights of religious groups in these regulations, I do not believe that that is so. It may have been possible to draft the religious exceptions in Regulation 14 on a broader basis, but there is neither the time nor the means tonight of finding a solution. Therefore, as we cannot accept the regulations in their present form, the only option available to us is to reject them. Surely this House cannot permit the passage of secondary legislation which strips away fundamental religious freedoms. I ask the Government to think again. I beg to move.

Moved, as an amendment to the Motion, to leave out all the words after "that" and insert "this House, having regard to the widespread concerns that the draft regulations compromise religious liberty and will result in litigation over the content of classroom teaching, and having regard to the legality of the equivalent regulations for Northern Ireland, declines to approve the Equality Act (Sexual Orientation) Regulations 2007".—(Baroness O'Cathain.)

Photo of Baroness Massey of Darwen Baroness Massey of Darwen Labour 8:05 pm, 21st March 2007

My Lords, I wish to focus on education this evening. I am surprised that the noble Baroness, Lady O'Cathain, did not focus very much on it.

Let me first focus on children and their general needs. The seminal document Every Child Matters set out desirable outcomes for children, three of which were being healthy, staying safe and enjoying and achieving. That cannot happen in isolation—children must have support from family, schools and children's services. This amendment is no way to go about—in relation to education at least—supporting children.

Today I have a strange sense of having gone through the educational issues around this before. Sexual orientation was debated in your Lordships' House during the Section 28 issue some years ago. I well remember during those debates on Section 28, the fear that homosexuality would be promoted in schools. I would like for a minute to consider what dire consequences have happened since Section 28 was eliminated seven years ago—none. What are we afraid of here? The noble Baroness, Lady O'Cathain, fears litigation over the content of classroom teaching. We have been here before. If that were going to happen, it would surely have happened already.

Every child does matter, and some children are being discriminated against because of their own sexual orientation or that of a family member. There is evidence, for example, of children being denied access to schools. That is surely wrong, whether the school is maintained, independent or a faith school. These regulations would put that right. Discrimination against a pupil because of his or her sexual orientation has been noted—for example, a girl was not allowed to be head girl at a school, despite being elected, because she was openly gay.

Anyone who has had to deal with any kind of bullying in schools knows how terrifying it is for a child. Bullying can result in poor academic performance, family problems because the young person is scared to tell, and even, in some awful circumstances, suicide. Two-thirds of young lesbian and gay pupils report being bullied; that is a horrendous statistic. These regulations would help to address that.

What about the "gay sex lessons" that we see paraded in the media and on placards outside your Lordships' House today—yet again, I might add?

There are strict regulations and safeguards about sex education in schools. The Minister mentioned them herself. The regulations will not require schools to change what they teach. They will not make schools vulnerable to legal challenge if they do not use specific books about sexual orientation. Nor will the regulations affect existing guidance allowing schools to choose materials or prevent parents withdrawing their child from sex education if they wish.

I am a school governor in a multi-faith school. I cannot foresee any problems with the content of classroom teaching. Has the noble Baroness, Lady O'Cathain, forgotten the powers of school governors to oversee the curriculum? The vast majority of teachers are utterly responsible in areas such as sex education. The vast majority of schools take their duty to educate young people about sexual relationships very seriously. School governors, who include parent governors, who give their time freely to contribute to a school's progress and ethos, would not risk litigation over the content of classroom teaching.

The amendment, as it refers to classroom teaching, is an insult to teachers, an insult to schools and an insult to governors. It will achieve nothing and could put children and young people at risk of discrimination and bullying. I hope that the amendment will be withdrawn or rejected.

Photo of The Bishop of Southwell and Nottingham The Bishop of Southwell and Nottingham Bishop 8:11 pm, 21st March 2007

My Lords, there is much in the regulations that is both sensible and uncontentious. The Church of England will certainly support the use of law to tackle discrimination and basic injustice. We also very much welcome the Government's decision to consult further before attempting to formulate harassment provisions in relation to sexual orientation. As the Joint Committee on Human Rights noted, the harassment provisions included in the Northern Ireland regulations were drawn too widely and too vaguely.

However, as we have heard already this evening, we are once again faced with regulations that give widespread concern to Christian people and other people of faith because they fail to strike the balance between competing rights. The balancing of competing rights requires that any restriction imposed on the exercise of one person's rights to protect the rights of another should be both necessary and proportionate. We do not believe that the regulations meet that requirement, especially in relation to religious adoption agencies.

For Parliament to require our Roman Catholic friends, after a brief stay of execution, to choose between acting in a way that conflicts with their religious convictions and closing down work that is manifestly for the common good reflects a new kind of secular dogmatism. It is a development entirely at variance with our well rooted tradition of religious tolerance and liberty. Especially when homosexual people are not only able but almost certain to seek the services of other agencies anyway, what is remotely proportionate about forcing the closure of the Catholic agencies?

It is hard to escape the conclusion that the right to freedom of religion is being treated as of lesser weight than other human rights. The sixth report of the Joint Committee on Human Rights appears to suggest precisely that, on the grounds that religion and belief are matters of choice and therefore less deserving of protection than sexual orientation, race or sex. If that is indeed the committee's analysis, it is certainly not one that we share.

Of course, discrimination on those grounds requires justification, but it does not follow that when the right not to be discriminated against comes into conflict with the right to freedom of religion, the right not to be discriminated against must automatically trump the right to freedom of religion. Indeed, under our domestic law, the importance of the right to freedom of religion where rights conflict is emphasised in Section 13 of the Human Rights Act, a provision to which absolutely no reference is made at any point in the Joint Committee's report. There are also concerns about schools, but I shall leave that to my friend the right reverend Prelate the Bishop of Winchester to deal with, if he wishes.

Turning to religious organisations generally, we welcome the inclusion of special provisions for churches and other religious bodies in Regulation 14. They will enable those bodies established for a religious purpose to apply religiously based principles of conduct in sexual matters to those seeking membership or who wish to take part in their activities or otherwise use their facilities. The intention behind Regulation 14 is, therefore, helpful.

It is therefore a pity that there are, in our view, a number of unnecessary obscurities in the drafting which could be the cause of wholly avoidable and undesirable litigation. I referred to those in the debate in your Lordships' House on the Northern Ireland regulations and the same is true of other concerns that have been brought to the attention of officials. Time, and time alone, will tell whether the Government's confidence in the adequacy of the drafting is well placed. What is abundantly clear is that the risks could have been much reduced if the provisions were enacted by way of primary legislation and subjected to the normal processes of legislative scrutiny. To make new law in this very sensitive area on a take-it-or-leave-it basis when the regulations were not even published for comment in draft is not, I argue, a sensible way to try to build consensus or, indeed, social cohesion.

In conclusion, although there is much in the regulations that is uncontentious and a very proper protection against injustice, they have failed overall to strike the careful balance that is needed in an area where conflicting and important rights are engaged. They have all the hallmarks of haste and insufficient engagement with representatives of the churches and other bodies in the detail of the drafting.

I hope the Minister will be able to give an assurance that in their approach to the forthcoming equality law review, the Government will give renewed weight to Section 13 of the Human Rights Act. For now, it gives me no satisfaction to say that the present regulations represent a disturbing erosion of religious liberty.

Photo of Lord Pilkington of Oxenford Lord Pilkington of Oxenford Conservative 8:17 pm, 21st March 2007

My Lords, I want to concentrate on what has been the subject of intensive argument during the past 200 years: the rights of churches, voluntary societies and other groups, such as trade unions, to have their rights respected apart from the state. Cavour, in the middle of the 19th century, coined the phrase:

"A free Church in a free State".

That phrase includes all other voluntary societies. What we who support the amendment are saying is that the regulations question the right of a small or large voluntary society to exist with its own rules, doctrines and ways of behaving without observing the state. The state has tried in Germany and France at various times to assert its rights over such bodies but, in general, those rules have been rejected. Even the Church of England, established by law, having some of its finances from the state, has had the right to observe its own principles.

The order destroys that agreement which has existed in English society. To my knowledge, during the past 150 years—200 years, almost—the state has given grants to church and other voluntary societies. It has never said that because it pays them money, it should be able to alter the rules. But it is doing that in this measure. That is a very dangerous step to take. Once the state dictates morality, it is conflicting with the views of churches, trade unions and so much more.

Why is that happening? Why is the custom of so many years being broken? There is an ideology of secularism and there is no doubt that it is being applied in this order. As we know, the Prime Minister tried to find a compromise but it was resisted by a large number of his Cabinet. In other words, they knew there was a fight coming and they went on to provoke it.

I shall be brief. The order undermines a long-observed rule regarding churches and smaller societies. Noble Lords should remember that these rules, as the right reverend Prelate has said, apply only to believers. There are plenty of opportunities for same-sex couples to go to adoption societies that do not apply these rules. However, the regulations say that the church can no longer apply them. This could be extended to a whole variety of things. In the past, the Members opposite were very keen to emphasise the rights of trade unions, and I have a lot of respect for the line that those Members took over those rights. Yet the same Members are denying rights to the churches. To my mind, the regulations are both unnecessary and wrong. They assert individual human rights against the rights of voluntary societies, and in so doing affect democracy. It is absolutely wrong for a democratic state to assert that the churches and their voluntary societies cannot follow their doctrine merely because the state pays the money. In this, as I say, they break 200 years of tradition. I therefore appeal to noble Lords to reject the regulations and to support the amendment.

Photo of Lord Anderson of Swansea Lord Anderson of Swansea Labour 8:21 pm, 21st March 2007

My Lords, my long-standing habit in more than 36 years in Parliament has been to support my party. I shall not do so tonight, and therefore I need to explain my vote. I accept that non-discrimination is a vital principle, and I have in the past—consistently, I believe—supported legislation to remove hurtful, unjustified discrimination against homosexuals. Indeed, I believe that many of the regulations are acceptable, and I found what the Minister said about education particularly persuasive. However, the regulations are unamendable and must therefore be considered in their entirety. For me to support them would be a vote too far.

Briefly, the job of government in these cases is to balance several principles that may sometimes conflict and compete with each other and not to pursue one principle to the extent that it creates injustice, unjustifiably restricts basic freedoms and overrides deeply held religious beliefs. Here, the Government have given greater weight to the demands of gay rights than to the concerns of mainstream religious bodies. Let me give some examples of what would happen under the regulations. A Muslim couple whose children have left their home have three spare bedrooms and decide, perhaps in their retirement, to supplement their income by operating bed-and-breakfast accommodation. If they refuse a homosexual couple, they will be subject to civil liabilities under Regulation 6(2). A young Christian professional is posted abroad, perhaps for six months. He wishes to let his flat over that period but refuses to let it to a homosexual couple. Again, he will be liable to a fine under Regulation 5. A Jewish printer or web designer refuses to print literature that promotes homosexuality perhaps by detailing a gay dating agency. Under Regulation 4, he could not refuse to print it, even though he believes that to print it would make him complicit in the promotion of homosexuality.

On Regulation 15 and adoption agencies, I believe we all accept that Roman Catholic adoption agencies in particular have a splendid record in placing difficult children for adoption. The regulations give them until December next year to conform. My understanding is that there has been only one case so far of a homosexual couple being refused. In that case, the Roman Catholic agency passed the couple very sensitively to an agency that was prepared to deal with them. Why cannot that continue? Surely that is a reasonable answer to that position. It does not hurt, and it meets the proper religious concerns.

The Government have offered a stay of execution until December next year, but why should Roman Catholic agencies and others have been put in this position in the first place? Surely with a modicum of good will and common sense, that could have been avoided. In short, the Government are prepared to countenance the closure of bona fide agencies that provide a valuable service because the Government give priority to the interests of gay people. The reality is that the regulations are a one-way ratchet, and zealots will certainly push them as far as possible.

There are, of course, a number of ambiguities in the regulations. Regulation 15(4)(a), for example, permits a restriction,

"if it is necessary to comply with the doctrine of the organisation".

Wonderful legal arguments will follow from that. In practice, the churches will seek legal advice when they are challenged, perhaps by individual zealots, and will be advised that litigation inevitably carries risks and that a test case can be extremely expensive. They may have to incur substantial costs to defend their rights against often very well resourced lobbies. Naturally, they will be inclined to take the safer course in such circumstances. The regulations are all or nothing. They are, as I said, unamendable. The Government have not shown any readiness to rebalance. They have drawn the line in the wrong place. They have been too ready to listen and to yield to well organised and intolerant lobbies, and too unready to listen to the proper concerns of faith groups, whether Christian, Muslim or Jewish. I certainly cannot support the regulations.

Photo of Baroness Morris of Bolton Baroness Morris of Bolton Deputy Chief Whip, Whips, Shadow Minister, Education 8:27 pm, 21st March 2007

My Lords, no part of what I intend to say discriminates against any person whatever on the ground of their sexual orientation or to pass judgment on them. Nor, I believe, do any of your Lordships. That is why I support civil partnerships in principle. I agree with much of what the Minister said in her opening remarks, but I wish to limit my comments to Catholic adoption agencies. In my heart tonight are children. The regulations will place such intolerable pressure on Catholic adoption agencies that their crucial and devoted work will be placed in jeopardy. These agencies have a deserved reputation for placing some of the most damaged children from complex backgrounds. They also have a record that is second to none for their post-placement and post-adoption support, which is provided as a direct result of voluntary income generated through fund-raising activities throughout individual dioceses.

As we have already heard—this has happened only once—the Catholic adoption agencies have an informal commitment to pass same-sex couples on to one of the other adoption agencies, all of which have an open policy. However, the regulations will require all agencies to put in writing in their statement of purpose that they will help all couples, regardless of marital status or sexual orientation. This is a clear breach of Catholic family teaching, and these agencies will close unless some accommodation can be found. Of course, many will disagree with the stance of the Catholic Church. All I would say to them is: beware falling into a trap by defending one perceived form of discrimination and so discriminating against the countless volunteers who do extraordinary work both with and for children.

The Catholic Church is not homophobic. It teaches that people who are gay and lesbian should be treated with every respect and condemns all forms of unjust discrimination. That is why the church recognised much in the Northern Ireland regulations. But, as Cardinal Cormac Murphy-O'Connor said this morning on the "Today" programme, this is not about goods and services, it is about children. The welfare of the child is paramount and it would be criminal to deny some children who have not enjoyed the best start the chance of a better life because the Catholic adoption agencies on which they rely cannot continue under this legislation. It is for that reason, and to mark my concern, that I shall be supporting my noble friend Lady O'Cathain tonight.

Photo of Lord Browne of Belmont Lord Browne of Belmont DUP 8:30 pm, 21st March 2007

My Lords, whether you support the intention of these regulations or not, the particular version of them being put forward tonight is controversial, ambiguous and, worse still, it is being rushed through. I am sure that noble Lords would agree that Christians and other faiths across the country have a gracious and loving attitude towards their neighbours, regardless of their orientation. There is no reason or justification for discriminating against someone simply because of their sexual orientation.

The potential for a Bill that legally requires a Christian adoption agency to abandon its beliefs and the best interest of the child, a Bill that forces that hire of church halls to groups that conflict with Christian principles, or one that could lead to the removal of literature against homosexuality from a Christian bookshop is something about which many of us have grave reservations. Indeed, only a few months ago in this Chamber my noble friend Lord Morrow set out his objections to the legislation for Northern Ireland, which was rushed through in haste. Indeed, it is conspicuous that unlike the Northern Ireland regulations which, as I have said, were rushed through, these regulations do not contain a harassment provision. Once again Northern Ireland is being used as a testing ground for policies that are deemed too controversial for the rest of the United Kingdom. That is one of the many reasons that a judicial review of those regulations is to be heard in Belfast in June. It would have been wise for this House to have waited until the result of that review.

I note also that there is a difference of treatment over adoption. Regulation 15 contains special provision for religious adoption agencies. Again, that was not the case in Northern Ireland, where the provisions were rushed through in haste. I understand that if there is not a devolved Government in Northern Ireland by the end of the year—I sincerely hope that there is a devolved Government in Northern Ireland during the next few days—it is the intention of the Government to legalise joint adoption by homosexual couples in Northern Ireland this year. Combined with these regulations, it would mean the end of faith-based adoption agencies in the Province.

I admit that giving adoption agencies until 2009 to change their fundamental religious convictions is not much of a compromise, but it is more than they are giving to us in Northern Ireland. I put this to the Minister: I hope that any amendments made here would automatically apply to Northern Ireland. As I have said, the Northern Ireland regulations were rushed through in haste. There is a lot more that I could say, but I know that we are anxious to proceed so that many noble Lords can express their views on these regulations. For my part, and I know along with my party colleagues, my noble friends Lord Morrow and Lady Paisley, I will support the amendment.

Photo of Baroness Gould of Potternewton Baroness Gould of Potternewton Labour 8:33 pm, 21st March 2007

My Lords, I support these regulations, because I believe that they are the final stage in the process of removing discrimination on the grounds of sexual orientation and follow on the lines of the employment regulations passed in 2003. As the Minister made clear, the Equality Act 2006 provides for the extension of equality in respect of sexual orientation to the provision of goods, facilities and services, and the exercise of public functions. It was during the Third Reading of the Bill that noble Lords accepted an amendment to allow the Secretary of State to make regulations that prohibit discrimination on the grounds of sexual orientation. Since then, a number of inflammatory, inaccurate and sometimes distressing claims have been made about the regulations by some people who I believe firmly are opposed to gay people and are against equality for them.

It has been suggested that there is a contradiction between support for equality and freedom of religious conscience. But as my noble friend set out in some detail, there is no question that the regulations contravene in any way people's freedom of religious conscience. They explicitly contain a doctrinal exemption for churches and other religious organisations, which is not only appropriate but also very robust. It reflects the approach taken to the Northern Ireland regulations which were approved by the House in January this year by 199 votes to 68, a majority of 131.

Surely it must be right, and a right, that there is protection for individuals from unfair treatment because of their sexual orientation, whether it be in staying in a hotel, treatment or delivering a health service or in the provision of education. My noble friend Lady Massey referred to Section 28 and the discussions we had about that. Ultimately, this House agreed that Section 28 should be no more. Is it right that there should be unfair treatment in the rental or sale of premises or on the question of adoption agencies? It is on the question of adoption that I wish to concentrate my brief remarks.

On 16 October 2002, during proceedings on the Adoption and Children Bill, we discussed the question of adoption by gay couples. I shall not rehearse the arguments of the time, but I shall repeat one point that I made then. We have to do everything in our power to ensure that children can find loving, caring homes as quickly as possible. I do not believe that anything in these regulations undermines that objective. The approach taken strikes a positive balance between eliminating discrimination and recognising the need for a practical approach to ensure that the most vulnerable children are found loving homes. That balance is based on two fundamentals: first, that discrimination in all its forms must be eliminated; and secondly, that we retain the excellent adoption expertise that is to be found in all our adoption agencies, including of course the Catholic agencies. Alongside that, however, it is necessary to add that when offering a service to the public, especially when it is funded by taxpayers' money—a subsidy from the public purse—access to that service must be available to all sections of the community on equal terms. We would not find it acceptable if adoption agencies refused couples because they were black. Why should it be acceptable for them to refuse prospective foster or adoptive homes on the grounds of sexual orientation?

The transition period under Regulation 15(2) will give adoption agencies until the end of 2008 to address how they will adapt to meet the new legal requirements. I know this has been scorned by many, but I believe that there is a possibility—an absolute probability, I am sure of it—that the differences will be resolved. During that period, agencies will have an opportunity to work alongside an assessment panel of experts in child welfare, the aim being to ensure that the high quality expertise that exists is not lost, that no agencies will have to close, and that the full range of post-adoption services are retained and developed. Arriving at this solution has entailed long debate and deliberation, but, as I said, by providing a further period of deliberation for faith-based adoption agencies, we will ensure that workable solutions are found.

There are many examples of successful adoptions by single gay and lesbian people. Enabling gay and lesbian couples to adopt jointly has contributed to increasing the number of adoptive families, allowing more children to be raised in loving, stable homes. That has been recognised by the British Association for Adoption and Fostering. BAAF, which has campaigned to widen the pool of prospective adopters to ensure that as many children as possible have the opportunity to be placed in loving homes, also makes the point that it is concerned to ensure that the expertise of Catholic agencies is maintained. It goes on to say that it welcomes the Prime Minister's proposals for the transition period that he announced on 29 January. BAAF believes that the transition period will lead to a sensible solution.

As others have said, the key to ensuring that this all happens successfully, as I believe it will, has to be the welfare and the interests of the child. These regulations still make that possible.

Photo of The Archbishop of York The Archbishop of York Bishop 8:40 pm, 21st March 2007

My Lords, the German poet Goethe wrote:

"What you have inherited from your forefathers, you must first win for yourself if you are to possess it".

I fear that we are in danger of losing the formative Christian inheritance and foundation of this great nation, a foundation upon which our laws, society and culture have been built, but which is in danger of being undermined—a foundation of meeting the other person halfway. I, like William Wilberforce, fear that:

"The time is fast approaching when Christianity will be almost as openly disavowed in the language as in fact it is already supposed to have disappeared from the conduct of men ... and to believe will be deemed the indication of a feeble mind and a contracted understanding".

In the legislation before us, the Government are venturing down an unconsidered path through the establishment of a new hierarchy of rights. Through the most laudable aims, which I want to support, of removing discrimination against those who rightly deserve protection, the Government will in effect enshrine in legislation a new sub-category of those whom it will be legal to discriminate against. Rather than levelling the playing field for those who suffer discrimination, an aim I fully support, this legislation effects a rearrangement of discriminatory attitudes and bias to overcompensate and skew the field the other way.

In my maiden speech in this House I expressed the fear that we run the danger of spinning a legal spider's web from which institutions, groups of civil society and members of local communities stood little chance of escaping. It now seems that a legal sausage machine is being creating by the regulations, requiring all of us to go through it and come out the other end, sanitised and with our consciences surgically removed. The freedom of a good and magnanimous conscience and the voluntary association for the common good cannot be made subject to legislation, however well meaning—a point the most reverend Primate the Archbishop of Canterbury and I raised in our letter to the Prime Minister. Incidentally, the Archbishop unavoidably could not be here, and he sends his apologies.

I have previously referred in this House to Bracton's point that the King or Queen,

"must not be under man but under God and the law, for the law makes the king".

The civil freedom we enjoy in Britain stems from his words, which have regulated all our public servants. That principle meant that it was no longer the case that what pleased the King had the force of law. However, it seems increasingly that we are in danger of reaching the situation that what pleases the Government has the force of law.

The Government have proposed to carry out a discrimination law review in relation to previous equality regulations. Those regulations, like the Northern Ireland regulations, seem to have anticipated the outcome of that review.

As your Lordships know, the sexual orientation regulations arose from a European directive calling for a framework of equal treatment in employment and occupation and outlawing discrimination based on religion or belief, disability, age or sexual orientation. I say amen to that. The directive also states that the EU,

"respects and does not prejudice the status under national law of churches and religious associations".

The proposed legislation from our Government has included the work of adoption agencies, which was not specified in other EU countries. In doing so, it has breached the conscience provision already established in law through which, for example, doctors on grounds of conscience may opt not to perform abortions. The right of a woman to an abortion does not give her the right to choose a particular doctor to carry it out. That doctor can opt out.

The Employment Equality (Religion and Beliefs) Regulations 2003 provide an opt-out to religious beliefs and a similar opt-out was also granted in the Employment Equality (Sexual Orientation) Regulations in 2003. In each of these cases it was recognised that religious organisations, as well as their individual members, were entitled to protection for their individual and collective conscience, recognising that a civilized society should make room for dissenters. Why, in the present regulations, has a similar balanced approach not been taken as in those previous two sets of regulations? Should we not all learn to live magnanimously with difference and learn attentively to listen?

Other speakers have made the point that we are seeing the emergence of a new kind of secular dogmatism which seeks to limit the proper sphere of religion to the internal activities of religious organisations We must remember that Article 9 of the European Convention on Human Rights protects not only the holding of beliefs, but also the manifestation of those beliefs in worship, in teaching, in practice and in observance. But we must be clear that "practice and observance" does not mean simply the narrow context of corporate worship.

As the noble and learned Lord, Lord Nicholls, noted in the recent decision of the House of Lords in Regina v Secretary of State for Education and Employment and others ex parte Williamson,

"the tenets of a religion may affect the entirety of a believer's way of life".

He said there were perceived obligations to act in a certain way arising from that belief and that doing so was itself a manifestation of that belief in practice. In the same case, the noble and learned Lord, Lord Walker, said that,

"the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or respectful of the law ... In matters of human rights the court should not show liberal tolerance only to tolerant liberals".

We must keep in mind the epigram of Montesquieu, that great, great jurist, who said that if mankind was of one mind, and only one man was of the contrary opinion, mankind would be no more justified to silence him than he, if he had the power, to silence mankind.

But how are we to approach the question of conflicting human rights? Professor Raphael Loewe says in his essay Imitatio and Ethics in Judaism and Christianity:

"The whole concept of human rights is one that is alien to rabbinic jurisprudence ... All humankind are the reciprocal beneficiaries of the duties which each individual owes to God. It is mercy, loving kindness and reciprocal solidarity which binds together, at the level of both individual and group, superior to inferior, advantaged to disadvantaged, man to God and God to man. It prevents either self-discipline or social responsibility from being ignored. It is walking in all God's ways, deeds of mutual charity. It is the cultivation of submissiveness to the divine will, and praying: "Subdue thou our self-assertive drive to enslave itself to thee." For the Torah is a golfing umbrella, not an infinitely extensible bus shelter".

This freedom of thought may help us to get out of the quagmire of the human rights debate. These are the core values of true citizenship, values which were the building blocks that gave nationhood to this nation through the medicine of the Gospel. Reinventing the wheel is not the problem; it is reinventing the flat tyre that is the killer.

Will the Minister give us some assurance on how Regulation 7 will be handled if it proves problematic in relation to the school curriculum and collective worship? It may prove problematic. Secondly, I see drafting difficulties in the otherwise very helpful Regulation 14 in relation to religious organisations. How does the Minister intend to iron out these apparent drafting difficulties, problems that could have been sorted out had these regulations been subjected to normal parliamentary scrutiny? That is really my point: if they are not subject to that, it is possible that we will have anomalies throughout the regulations. Time does not allow me to quote any further from my notes. I shall send the Minister a copy of them if she wants me to.

Sadly, I have come to the conclusion that the regulations should be sent back to the drafting board to enable Her Majesty's Government to carry out the necessary balancing of competing rights, as found in the 2003 regulations. There they succeeded in balancing them out; here I do not think they have succeeded. For that reason I shall be voting with those who are not content with the regulations.

A

I fully support the Archbishop of York.

Submitted by Alan Myers

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench 8:49 pm, 21st March 2007

My Lords, I speak without a prepared speech but with a heavy heart. As a Christian woman, I find this an extraordinarily difficult and distressing debate. It is distressing because we are not really prepared to face the fundamental issue. I have listened to speeches in which noble Lords have said, "We respect gay people, but...". The issue is not about rights; if it were, we would not be having this debate. It is about whether noble Lords accept gay people as equal human beings.

Two hundred years ago, William Wilberforce made a speech in Parliament that freed black people to be equal human beings. I hope that this evening your Lordships will vote for these regulations. I have some quarrel with the way in which the regulations have been brought forward, but I hope that noble Lords will vote to underline that gay people are equal human beings with others. I say this as a Christian woman. I have listened to the most reverend Primate the Archbishop of York, and I listened to the Catholic archbishop on the radio this morning, a very dear and wonderful man. He was struggling because he was trying hard not to appear prejudiced, but he was saying two things. Those noble Lords who are this evening saying two things are breaking their principles. If a Catholic organisation says, "Our principles do not allow us to place a child with a homosexual couple, but we are prepared to send it somewhere else for someone else to do it", where is the underlying principle? Why will that organisation not do it but allow someone else to if it believes that that child will not have an appropriate home?

I have spent most of my life working in social care, a good deal of it worrying about the protection of children. In adoption, there is one principle and one principle only: the needs of the child are paramount. Whatever the family, whatever their colour, creed or sexual orientation, they have no right to the child. The child has the right to the home. Any good adoption agency will spend its time making that assessment. However, an adoption agency may decide that it will not place some children because it does not like the placement that it has found. For example, I know two male nurses in Scotland who are both gay. They were working with a youngster in a wheelchair who is extraordinarily disabled and extraordinarily difficult. Had they not given that child a home, he would have spent his life in an institution. That is true of many of the children to whom gay couples give homes. These are not easy children. We are not talking about handing babies to a couple of gay men—not that I think that there is anything wrong with that. I know gay male couples who have given extraordinarily good homes to children. But any adoption agency is likely to place a child with a family where there is a mother and a father. If there is not such a family and there is a good homosexual couple available who can give the child a home—the alternative being an institution—I would hope that the agency would place the child with them.

For many years, I was the chief executive of Childline. During the time of Section 28, not because I had any interest in it, I looked at some of the issues around bullying. We talked to teachers about homophobic bullying. Since the removal of Section 28, I have found no problems of schools being told that they have to give education about gay rights. My experience was of teachers terrified of intervening on behalf of children who were being seriously bullied for being gay, because they thought that Section 28 meant that they would be in deep trouble. The converse is true: removing these kinds of statutes helps children. I do not for a moment think that governors—never mind the noble Lord, Lord Adonis, and his department—will allow the curriculum to be changed in order to accommodate issues that most are very careful about. I am talking about the whole spectrum of sexual education, which the noble Baroness, Lady Massey, knows so well.

As a Christian, I am deeply concerned. Christ told the story of the good Samaritan, who was an outcast; many gay people feel outcast. Returning to the beginning of my speech—which, I suppose, is not a speech—I say that this issue is about believing that homosexual people are equal. They are not remote sinners doing something that you may find difficult to face, but real people, who are prepared to contribute to society, to give good homes to children, to teach in our school and to live, on the whole, discreetly and kindly, and who deserve access to goods and services. Of course, children are not goods, but we are talking, in legislation, about access to services. Gay people deserve that as much as any of us, just as Wilberforce said that every black person deserved equal treatment. I commend the regulations to the House.

Photo of Earl Ferrers Earl Ferrers Conservative 8:56 pm, 21st March 2007

My Lords, we have heard a most impressive speech from the noble Baroness. I will not follow her down those lines because I realise that she feels very strongly about this, as do we all. My concern about these regulations comes from a slightly different point of view. When the Minister said that we have come to the final chapter of having a fair society and have got the balance right, I thought to myself, "What is the balance?". It is 20 pages of regulations that need lawyers to make you understand what is right and what is not right, and what you are entitled to do and what you are not entitled to do. I agree with the right reverend Prelate the Bishop of Southwell and Nottingham and the most reverend Primate the Archbishop of York that these matters are deeply sensitive and ought to be dealt with in primary legislation, where they can be argued, teased out and considered. They should not be put in 20 pages of regulations, which cannot be amended and to which we have to say either yes or no.

I find it extraordinary that ministers of religion and vicars cannot say in the pulpit certain things, which their beliefs entitle them to say, for fear of being prosecuted. The noble Baroness may say that this is unlikely to happen, but can she give an undertaking that it will not happen and that they will not be prosecuted? The trouble is that if that is possible—and, certainly, the regulations raise that concern—people will believe that they had better not say something, for fear of being prosecuted. In other words, freedom of speech and freedom of thought will be curtailed by these regulations. That is quite unacceptable.

My other concern is with the way in which these regulations have gone through Parliament, which was mentioned by my noble friend Lady O'Cathain. The regulations were withdrawn and relaid three times in a week. The delegated legislation committee of another place sat one morning from 8.55 for an hour and a half. Apart from the three Front-Bench spokesmen, only one Back-Bencher participated. When the regulations were taken on the Floor of the House, there was no debate at all; they were just voted on. I simply do not believe that that is the right way in which to put through detailed, sensitive legislation that deals with people's rights, thoughts and religion. It must be given better consideration than that. That is why I hope that your Lordships will agree with my noble friend Lady O'Cathain and not agree to these regulations.

But that brings in another funny problem. A week ago, we discussed how the Government thought that the House of Lords ought to be reformed. Yet these regulations could not be reformed or even discussed in the House of Commons. If we are to reform Chambers of Parliament, one really wonders whether we should not start down the other end.

It would be odd if your Lordships were to reject these regulations, which have not been considered or voted on in another place. But, for all that, they ought to be rejected in order to give the Government time to think again. That is not being obstinate, because there is real difficulty and anxiety on this issue. These problems must be resolved and at least discussed.

Photo of Lord Smith of Finsbury Lord Smith of Finsbury Labour 9:01 pm, 21st March 2007

My Lords, I support the regulations and oppose the noble Baroness's amendment. This debate and the debate outside this House have, I fear, been subject to considerable misconception. In a very telling point in her speech, the noble Baroness said that the regulations would force religious believers to change their beliefs. That point is echoed in the briefing that we all received from the Lawyers' Christian Fellowship, which is deeply inaccurate in a number of respects. That briefing states:

"These regulations affect fundamental freedoms and will remove the longstanding liberty enjoyed by Christians to live according to their religious beliefs".

That is untrue. No one is trying to stop anyone believing or living according to their beliefs. But where a service is offered to the public, especially where that service is sold to the public, where something is offered to be used or purchased by all, or where something is offered that is funded on behalf of the public by the Government, these regulations say, "You shall not discriminate". That is all that these regulations are saying. It seems to me that it is a very sensible set of regulations.

I make four brief points. First, discrimination is discrimination irrespective of the supposed reason or belief that lies behind it. I am puzzled by the argument that goes something along the following lines: "Because I deeply believe that I should discriminate against someone, because it is part of my religious faith, I should be allowed to exercise discrimination". I still believe that that is discrimination. It is an argument that is perhaps most elegantly put by those who say that people of faith should be able—as they put it—to manifest their belief in the actions that they take. I do not have any problem with people believing something. I do not have any problem with people expressing that belief. However, I have a problem when they put that belief into action in a way that harms or discriminates against other people in society.

I have enormous respect for the most reverend Primate the Archbishop of York. I worked with him in his previous inner-city incarnation on many occasions and I was delighted by his appointment as Archbishop of York. However, I have to say that on this I think that he is wrong. I say that with regret, because I believe that he knows a thing or two about discrimination and the importance of ensuring that we do not give house room to discrimination in our society.

Secondly, some people listening to the discussion tonight might be forgiven for thinking that the point of view expressed by the noble Baroness, Lady O'Cathain, is the point of view of all people of faith and all people who take Jesus Christ as their Lord. That is not true, either. For me and many Christians, the Christ whom we look to is someone who talked about love and inclusion, who accepted and drew in the people who did not fit into the mainstream of society and did not seek to exclude them.

Thirdly, in the debate about the adoption of children—this has been well said by several speakers tonight—what should be paramount are not the needs of the organisation, but the needs of the child. If the needs of the child mean that that child is best placed in a same-sex household, then that is where the child should go.

Fourthly, there is a real issue of actual discrimination and detriment to people who happen to be lesbian or gay; such discrimination happens here and now, in our society. These regulations seek to tackle that. Gay partners are turned away from bed-and-breakfast accommodation and they are deeply humiliated if that happens. People are struck off GP lists because they are lesbian or gay. Pupils face bullying in schools either because of their own sexuality or because of the sexuality of their parents. People are too often refused equal treatment. That, to me, is wrong. Tonight, we have a chance, quite simply, to put it right.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, I think I can claim with justification and with pride that in every issue that has come before your Lordships' House before, I have consistently supported the position of the gay community in the face of quite a lot of opposition from people like the noble Earl, Lord Ferrers, who based their opposition on the totally honest belief that homosexuality was wrong and was contrary to religious teaching. I respected their views on that, but it did not seem to be right that they should prevail, because I did not believe it was for the criminal law to impose the morality of the majority on the minority. That has been my consistent point throughout debates on this topic.

While I am convinced that there is much in the regulations that, if this were primary legislation, we would wish to see preserved—several points have been made about bullying and so on, which undoubtedly should not happen—there is no doubt that in them there is much that seeks to impose the morality and views of those who disapprove of any form of discrimination against gays on people who hold genuine views the other way—namely, that they cannot forward an adoption by two men living in an active homosexual relationship. Now we have come to a position that is precisely the opposite to where we were on all previous regulations, where the gay lobby, if I can so describe it, is seeking to impose its morality on the religious communities and saying, "You cannot do this under the sanction of criminal law because we do not approve". If it was sauce for the goose—probably not a very good phrase to use in this context—if it was right to say that we would not persecute, discriminate against or criminalise homosexuals because of the moral views of the majority, it must also be right to say that we will not criminalise the acts of the church and religious believers who genuinely believe that it would not be right for them to take part in adoption of this kind or in other such matters.

I urge your Lordships' House to see that this now shows the wrong side of the coin and that the argument and the beliefs that led us to repeal Section 28 and to remove discrimination and lower the age of consent and so on is now against much of the content of the regulations.

Photo of Lord Alli Lord Alli Labour

My Lords, I intend to speak only briefly tonight; after all, we have been here before. I argued passionately for these regulations during the passage of the Equality Bill two years ago, and I say to the noble Lord, Lord Browne of Belmont, that it does not feel like the regulations are coming in in haste for those of us who argued for them at Second Reading on 15 June 2005, or in Committee, for which the amendments were tabled on 13 July 2005, or in the discussion that we had on Report on the Equality Bill on 19 October 2005, or at Third Reading of the Equality Bill on 9 November 2005, or in the consideration of the Northern Ireland regulations on 9 January 2007. They were extensive, full and detailed discussions about the provisions that we are debating now. The arguments remain the same. The regulations are essential and long overdue. We have heard many examples in this Chamber that support their introduction. My noble friend Lord Smith of Finsbury outlined some of the needs and put the case better than I could.

Regrettably, the need for the regulations has been overshadowed again by far-fetched claims made in part by the noble Baroness, by some of her supporters and by some—I repeat "some"—in the Catholic church. The regulations are fair and balanced, and they are the same regulations that religious organisations argued that they needed for themselves. It is slightly hypocritical of some organisations to say that measures that are good for them are not good for the rest of us. I concur with my noble friend Lord Smith of Finsbury, who said that to start your argument by saying that you support anti-discrimination and then to spend the balance of your time arguing for discrimination seems slightly hypocritical.

I will say one thing about children: the sight, at lunchtime today, of six, seven and eight year-old children holding homophobic placards outside your Lordships' House seemed to me to be the best argument for the regulations. The regulations only seek to give lesbian and gay people throughout Great Britain the same protection that others enjoy and which we have the right to expect. In Northern Ireland, the regulations have been in place for three months without the negative consequences that some predicted. The regulations will come into force at the same time as the religion and belief regulations.

I pay tribute to the Government for bringing the regulations forward and to the Minister for her eloquent explanation of them at the beginning of the debate. There has been more than ample consultation on this provision. The noble Baroness, Lady O'Cathain, suggested that the Government had not listened. I think that the noble Baroness is confusing not listening with not agreeing. The Government have listened, but they disagree with the noble Baroness's argument. They also disagree with some of the arguments put forward by Cardinal Murphy-O'Connor, some of which were plain inconsistent. He remarked that the Catholic adoption agencies were prepared to allow adoption to single gay men and lesbians but not prepared to adopt to gay couples. That cannot be a principled position; it is irrational, ill thought-through and highly prejudicial.

Let me take on the argument of our religious colleagues and friends. As the noble Lord, Lord Smith, said, they say, "If I believe it strongly enough, you should allow me to keep that belief and exempt me from provisions and laws that discriminate against me". I rarely talk about my religious upbringing, but my father is a Muslim. When I read the Koran, it tells me in some passages that I must kill Jews. If I believe strongly enough that I must kill Jews, does that mean that I have the right to say, "Exempt me from legislation because I believe it strongly enough. Let me discriminate against Jews, at least, because I believe it strongly enough and it is written in the Koran"? That is not an acceptable argument. The decency, honesty and goodness in people must be the basis of arguments for the way we legislate, not dogma—that would be clearly wrong.

On several similar occasions, I have urged the noble Baroness not to move her Motion against this important equality legislation. I make that plea to her again tonight. I remind the House of the enormous difference which the regulations will make to people's lives. I do not accuse her of this, but the noble Baroness is in danger of her actions being perceived as a personal crusade against the gay and lesbian community. If the noble Baroness chooses to press ahead with her Motion—again, I hope that she will not—I ask the House to do what it has done on a number of occasions, which is to vote against it. Fundamentally, it is wrong. This House has built its reputation on fairness, justice and, more recently, equality.

Photo of The Bishop of Winchester The Bishop of Winchester Bishop 9:15 pm, 21st March 2007

My Lords, before turning to the question of education, about which there is more to be said this evening, I want to make four brief observations. Noble Lords must forgive my voice; there is a cold around. First, it is important that the House notes what the noble Lord, Lord Pilkington, said earlier, part of which was picked up at the beginning of the speech by the most reverend Primate the Archbishop of York. It may be best summarised by a sentence spoken by the most reverend Primate the Archbishop of Canterbury from 24 January this year:

"I think that we've reached a point where certain things need to be clarified about the rights, liberties and dignities of independent bodies within the state".

I hope that the House can come back to that question as an issue for a major debate.

Secondly, it has been said once or twice in the debate that what X or Y has said could not be said if it were being said to somebody who was black or of a particular gender. It may be helpful for me to remind those who say that that there are a number of us, not only from within the faiths and including to my knowledge a number of gay people—I know because I have read their work—who would be quick to say that sexual orientation was not an absolute characteristic in the same way that ethnicity and gender are.

Thirdly, it is not for me to speak for my Roman Catholic brothers and sisters, but at the heart of the Roman Catholic Church's position is something that it would put alongside the question of the welfare of children. It should not be asked or, indeed, forced to collude with what it, I and many others perceive as the Government's programme to equate other relations with marriage. That may be the answer to what the noble Lord, Lord Alli, in his impressive speech, said about an inconsistency in the cardinal's position.

Fourthly, the equally impressive speech by the noble Lord, Lord Smith, had a set of echoing theses, but I want to put another echoing thesis alongside them. It is that discrimination is discrimination, against whomsoever it is directed. Part of the difficulty that many of us have with the regulations—not with their main thrust, but with the particular form of certain parts of them—is that the Government seem to have fallen away from the necessity to work with the tension between competing rights.

I turn to education, because there is more to be said. I warmly welcome, as others do on these Benches and, I anticipate, in all parts of the House, Regulation 7(1)(a) and (b), as there must be no discrimination in admissions, whether of gay young people or those parented by gay people. Still more important, there must be no bullying of people in that position, and there is manifestly the same duty of care for the welfare of every pupil. However, the four subdivisions of Regulation 7(1)(c) urgently require the kind of line-by-line scrutiny to establish their range of meaning, intended or not, that a Bill receives in your Lordships' House. As they stand, the scope of their application appears very wide. That is especially so when the Government have explicitly refused—I have seen the correspondence and submissions asking them to consider their inclusion—to include any reference at all in the regulations to the legal position and responsibilities of faith schools, let alone the kind of exemption that appears in Part 2 of the Equality Act itself in relation to discrimination on grounds of religion or belief. Nor is there any reference in the regulations to a document that the Minister referred to—the DfES's Sex and Relationship Education Guidance of2000—passed, if I remember rightly, in the context of the debates on Section 28. Paragraphs 1.7 and 2.14 of it specifically allow faith schools to teach sex education in a manner consistent with the school's "religious ethos". The noble Baroness's assurances that the regulations would not touch the curriculum or collective worship would be stronger if they referred to those important points.

The Joint Committee on Human Rights report of 28 February has been referred to. Some of its authors are in their places this evening, I am glad to say. Its paragraphs 65 and 67 explicitly and, in my mind, illiberally advise that the regulations should be firmly applied to the curriculum in every kind of school, and that there should be no teaching of a,

"particular religion's doctrinal beliefs as if they were objectively true".

So what are Her Majesty's Government—I use the language advisedly—saying and doing through the regulations to a Church of England school, to a teacher who is a member of the Church of England teaching at any kind of school, or to one of the many Church of England clergy, bishops among them, who are regularly in the schools? We should remember that the House of Bishops of the Church of England's 1999 paper, Marriage: A Teaching Document—simply restating, as has been noted this evening, the teaching of every Christian church—said on page 8:

"Sexual intercourse, as an expression of faithful intimacy, properly belongs within marriage exclusively".

The Government could have found ways and in my view the JCHR would have been wise to advise them to find ways of respecting the human rights of all concerned. Respecting the human rights of gay people is critical, as is the importance of seeking to respect the human rights of others and to find ways in which, I am advised by distinguished lawyers, it could have been possible to hold these rights in tension. I greatly regret the fact that the Government chose not to do so, but, rather, chose to legislate to coerce the churches and others to accept as the norm for this society—the regulations ask us to accept this and to collude in the Government's promotion—alternative patterns of living and of family life that many people conscientiously believe are less than the best, less than the most healthy, and less than God's will for humankind.

For those reasons, which I have limited to the sections of the regulations that I have mentioned, I shall vote with the noble Baroness.

Noble Lords:

Cross Benches!

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench 9:25 pm, 21st March 2007

My Lords, I shall be brief. I had not intended to intervene in this debate, but I have been impelled to do so by the suggestion that it is hypocritical to support gay relationships and I wish to criticise these regulations. I strongly support gay relationships and have lectured up and down the country in support of the civil partnership legislation and all that goes with it. I strongly support same-sex adoptions in suitable cases. Indeed, as a judge, I have been responsible for placing children with same-sex couples.

But these regulations, in my view, are ill-drafted, have not been properly scrutinised, and give the major religious and faith groups concern. Their views should not be ignored. The regulations are good in part. Much of the regulations should be supported, but they should be reconsidered, re-written and should not be passed in their present form.

Photo of Lord Blackwell Lord Blackwell Conservative 9:27 pm, 21st March 2007

My Lords, much of the debate, in fact all of it, has focused on the objections from those with strong religious convictions. Before the House proceeds, we should note that it is entirely legitimate to have concerns about the drafting of these regulations that do not depend on those religious convictions. As a number of speakers have said, those concerns come back specifically to the interests of children in adoption.

You do not have to be prejudiced, or, I suspect, do you have to be heterosexual, to believe that it is in the interests of children, if possible, to be in a family with a parent of each sex. That is why it is generally accepted that two-parent families are, ideally, better than one-parent families. Children benefit from having the role models of both a male and a female parent. That is not to deny that many single-sex couples can provide stable, loving and caring homes, and I would not wish to deny them that opportunity. However, we should allow adoption agencies to have, as one of the criteria that they use in selecting parents, the preference, if that can be achieved, for having two parents of opposite sex.

Unfortunately, my reading of the regulations is that stating that as a preference would count as discrimination. We cannot, without debate, pass regulations that would make it discriminatory to regard it as preferable to put a child with a two-parent family, rather than with a one-parent family.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour 9:30 pm, 21st March 2007

My Lords, I hope that your Lordships will not agree to the amendment and will pass the regulations. Similar regulations came into operation in Northern Ireland, as we have heard, and the House then voted decisively for them by 199 votes to 68.

The regulations aim simply to put gay and lesbian people on the same equality footing as others who may not be discriminated against on grounds of race, religion, belief or gender. This protection against discrimination is highly necessary. Why should people seeking goods or services be refused what would otherwise be available to them simply because of their sexual orientation?

The reasons normally given for this outrageous discrimination are religious—we have heard some of them this evening—but it is quite untrue that the regulations contravene people's freedom of religious conscience. I am a secularist, a member of the National Secular Society and a vice-president of the Humanist Association, but I have always believed that everyone has a right to believe whatever they wish and to have the freedom to practise their religion. The equality legislation, which I have always supported, is meant to guarantee those freedoms, but it does not give adherents of religion the right to impose their beliefs on others who may not share them, nor does it give them the right to take away rights from others simply because they do not appreciate their lifestyle.

These much needed regulations will protect lesbian and gay people from discrimination in a whole range of areas, both in the private sector—from hotels to banking—and in the public sector, including health care, education and housing. There are many examples of discrimination still being practised in these areas. Frankly, if a religious organisation undertakes commercial activity or receives a subsidy from the public purse, it has no right to discriminate against lesbian and gay people, just as it would have no right to discriminate against the disabled or on grounds of race.

The Government have confirmed that there will be no exemption for religious adoption agencies, but that they will be given until the end of 2008 to adapt their services. We have heard from the Minister details of the transitional arrangements. Surely where such services are publicly funded, they should be available on equal terms to all sections of the community, but the first consideration must be the welfare of the child, which has been emphasised by a number of speakers this evening. The Government have endeavoured to meet any genuine religious objections to the regulations, but they rightly believe that a prohibition on discrimination must be inclusive and that there are no grounds for general exemptions.

I urge the House to agree the regulations and to reject the amendment. No genuine objection on religious grounds is possible. Those who claim that there is should recall that many gay and lesbian people are religious. I know a number who are proud to be devout Christians. They have the right to be treated with humanity by their fellow Christians. I ask the House to support the regulations and to oppose the amendment.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Women & Equality, Cross-Portfolio and Non-Portfolio Responsibilities 9:33 pm, 21st March 2007

My Lords, we on these Benches support the approval of these regulations. We oppose the fatal amendment advocated by the noble Baroness, Lady O'Cathain. We hope and expect that the current and much delayed work on a single equality Bill will yield legislation that is fit for its important purpose of achieving coherence, consistency and clarity in promoting equality and combating discrimination effectively.

We agree with many noble Lords that it is unfortunate the law has to be reformed by secondary legislation, since, as has been said, this reduces the scope for scrutiny of the detail of the regulations, and that the reason for this is that the Home Office unwisely included religious discrimination in the Equality Act without providing also for sexual orientation discrimination. I remember the noble Lord, Lord Alli, and I both complaining strongly about this during the passage of that Act. The regulations are needed because, when the Equality Act is brought into force, both types of invidious discrimination are made unlawful.

The noble Baroness's amendment gives three grounds for blocking the regulations. None of them, even if they were substantiated, could justify that move. The amendment would mean that the Equality Act would forbid religious, but not sexual orientation, discrimination.

As the Minister so clearly explained at the outset, the regulations do not compromise religious liberty. There is no restriction in them on the right to believe and restrictions on the right to manifest one's religion or belief may be justified by the need to protect the rights of others. The regulations must strike, and do strike, a fair balance between the competing rights and interests.

Misleading homophobic and sometimes scurrilous attacks have been made outside Parliament by those who believe that there is no moral equivalence between homosexual and heterosexual children or adults and they believe that homosexuality is sinful. They are perfectly entitled to their beliefs; they are perfectly entitled to express their views; they are perfectly entitled to seek to persuade Parliament to agree with them; but it is the responsibility of the elected Chamber and this House to strike a balance between the competing rights and freedoms.

I shall give one example of the perfectly disgraceful propaganda that has been levelled against the Bill and which has caused me to put down Questions that were clearly answered by the noble Lord, Lord Rooker. An advertisement was taken out by a clearly very well funded lobby, calling itself Coherent and Cohesive Voice; a network, it said, of hundreds of Christian leaders in the United Kingdom, representing hundreds of thousands of voters. I asked the noble Lord, Lord Rooker, whether that great organisation had bothered to seek the views of the Government and he answered that it had not troubled to do so.

The organisation made allegations that were completely untrue. One allegation was that the regulations would force all schools actively to promote homosexual civil partnerships to children from primary school age onwards to the same degree that they teach the importance of marriage. That is untrue. It was alleged that the regulations would force a printing shop, run by a Christian, to print flyers promoting gay sex. That is untrue. It was alleged that they would force a family-run B&B to let out a double room to a transsexual couple, even if the family thought it in the best interests of their children to refuse to allow such a situation in their own home. That is untrue. It was alleged that they would make it illegal for a heterosexual policeman, fireman or a member of the Armed Forces to refuse to join a Gay Pride event promoting the homosexual way of life. That too is entirely untrue. I do not know where they get their funds from—they must have a lot of them—but that is an example of the kind of scurrilous propaganda that deliberately or inadvertently seeks to mislead the public about these regulations.

During the passage of the Human Rights Bill, the churches campaigned for complete immunity from the European Human Rights Convention. They were completely misguided in doing so. Instead, Parliament wisely enacted Section 13, which has been referred to by the right reverend Prelate the Bishop of Southwell and Nottingham. Section 13 requires the courts to have particular regard to the importance of the convention right to freedom of thought, conscience and religion when determining questions under the Act that might affect the exercise by religious organisations or their members of that right. That is an important safeguard and I am very glad that it is included in the Human Rights Act, but only the right reverend Prelate has drawn attention to it.

It is not the case, as the noble Baroness suggested, that the regulations compromise religious liberty; nor is there an abuse of democracy, as Cardinal Murphy-O'Connor claimed today, in Parliament approving the regulations to include the transitional compromise period for Catholic adoption agencies receiving public funding and providing a public service, a service which is most valuable and which we hope will continue. I say to the noble Baroness, Lady Morris of Bolton, that that is about the provision of a service to the public, where the interests of children are paramount.

I agree with every word of the compassionate and well informed speeches of the noble Baronesses, Lady Gould of Potternewton and Lady Howarth of Breckland, of the noble Lord, Lord Smith of Finsbury, and above all of the noble Lord, Lord Alli, who has been so conspicuous in combating some of the misconceptions that have arisen.

I have to say to the most reverend Primate the Archbishop of York that it is not correct to say that the regulations suggest a hierarchy of rights; nor is there any spider's web or a legal sausage machine. Furthermore—and I speak as a Jew—I am astonished to hear the suggestion that the principles of human rights are somehow incompatible with the Judaic religious code. I had thought—although I cannot claim to be as well informed as my noble friend Lady Neuberger, who is not here to tell us this evening—that the principles of human rights are universal, that they derive not only from the secular Enlightenment but from all the great religious traditions, including the Judaeo-Christian tradition, and that they all recognise the need for a fair balance between competing rights and freedoms.

The regulations—and no one has made this point—are to be read together with the provisions on discrimination in the Equality Act, which contain exceptions rightly considered to be necessary to protect the broad-based secular curriculum. That is why the exceptions are there. If the present regulations compromised religious liberty, they would need to be read and given effect under Section 3 of the Human Rights Act in a way that would be compatible with the convention rights, including the right in Article 9 of the convention to,

"freedom of thought, conscience and religion", and to manifest one's,

"religion or belief, in worship, teaching, practice and observance".

If a public official or authority, whether a Minister, a state-maintained school or anybody else, were to act in breach of Article 9 of the convention, a claim could be brought under the Human Rights Act for a breach of the Section 6 duty on the public authority seeking to ensure compatibility with a convention right, and these regulations would have to be read in that way—see Section 3 of the Act.

The right to religious freedom is not absolute. Article 9 makes it clear that it may be subject to,

"such limitations as are prescribed by law"— as they are in these regulations—

"and are necessary in a democratic society ... for the protection of the rights ... of others".

In this case, the rights of others are the right of homosexual people, including pupils and students, to respect for their personal privacy and their right not to be discriminated against on the ground of their sexual orientation in the enjoyment of other rights, such as the right to education.

It is the task of the legislature, and, if challenged in legal proceedings, of the courts to strike and maintain a fair balance between these rights and freedoms. The regulations are concerned not with what happens in the bedroom, but with the adverse and unfair treatment of the individual on the ground of that person's sexual orientation as a gay or lesbian individual. As has been said, it is as unfair and unjustifiable to treat a human being less favourably because he is gay as it is because he is a Jew, a Catholic, a man or of Asian origin, or because he or she is old or disabled.

The Government have wisely omitted harassment from the regulations for Great Britain and left that for consideration by the Discrimination Law Review. We have made it clear that we would oppose any attempt to reintroduce the concept of religious harassment, which was firmly rejected by this House during the passage of the Equality Bill, because of the threat to freedom of expression and religious freedom. We hope that the Government will heed that view.

Finally, the Joint Committee on Human Rights, on which I serve, has been accused this evening by no less than the right reverend Prelate the Bishop of Winchester of being illiberal. The Joint Committee welcomed the introduction of the regulations on sexual orientation discrimination as,

"a significant human rights enhancing measure".

We also welcomed the Government's acceptance that the prohibition of discrimination on grounds of sexual orientation should apply to schools without any exemption for particular types of schools, such as faith schools. In view of what has been said, I should give our explanation. We said:

"We do not consider that the right to freedom of conscience and religion requires the school curriculum to be exempted from the scope of the sexual orientation regulations. In our view the Regulations prohibiting sexual orientation discrimination should clearly apply to the curriculum, so that homosexual pupils are not subjected to teaching, as part of the religious education or other curriculum, that their sexual orientation is sinful or morally wrong".

Just pausing there, surely it is not illiberal to resist that kind of most objectionable propaganda against a pupil. We continued:

"Applying the Regulations to the curriculum would not"—

Noble Lords:

Oh!

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Women & Equality, Cross-Portfolio and Non-Portfolio Responsibilities

My Lords, I am sure that noble Lords will be patient, because I, too, have to exercise some freedom of speech. We continued:

"Applying the Regulations to the curriculum would not prevent pupils from being taught as part of their religious education the fact that certain religions view homosexuality as sinful. In our view there is an important difference between this factual information being imparted in a descriptive way as part of a wide-ranging syllabus about different religions, and a curriculum which teaches a particular religion's doctrinal beliefs as if they were objectively true. The latter is likely to lead to unjustifiable discrimination against homosexual pupils".

I suggest that there is nothing illiberal in that.

As we understand it, the Government share our values and consider that the regulations would have that effect. I hope that the Minister will confirm that that is the Government's position. As for the curriculum, which has been mentioned several times, if it were to be unlawfully discriminatory, which it is not, that could be the subject of judicial review proceedings.

Lastly—

Noble Lords:

Oh!

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Women & Equality, Cross-Portfolio and Non-Portfolio Responsibilities

My Lords, there is only one speaker from these Benches and it is important that I deal with all the points. I will not be intimidated by moans and groans.

As regards the risk of litigation, which has been mentioned, or the fact that judicial review proceedings are pending in Northern Ireland, it is the fundamental right of everyone to have access to the courts. Great, rich, powerful, political organisations such as SPUC use that right all the time to challenge regulations, as is their right; to challenge primary legislation, as is their right. The fact that they do so is no reason for blocking the regulations. The fact that judicial review proceedings are pending in Northern Ireland is, again, no reason to do so.

It was suggested by the noble Earl, Lord Ferrers, and the noble Viscount, Lord Bledisloe, that there is a risk of prosecution under the regulations. That is not right. They create civil rights and obligations; they are not criminal.

For all those reasons, I commend the regulations.

Photo of Baroness Hanham Baroness Hanham Deputy Chief Whip, Whips, Shadow Minister, Scotland, Shadow Minister, Transport, Shadow Minister, Communities and Local Government 9:47 pm, 21st March 2007

My Lords, given the controversy that has been evident tonight and which has surrounded the regulations since they were published, I am not sure that the Minister will be entirely happy that equalities are now the responsibility of her department. The irony is that the legislation that dealt with all other areas of discrimination and has been mentioned so often tonight was the Equality Act 2006. Had these provisions been dealt with then rather than as a later add-on, much of the debate and controversy which they have generated both here and in the Northern Ireland regulations would have been dealt with then under primary legislation and in a manner that would have ensured that there could be time for proper parliamentary scrutiny, including the tabling and discussion of amendments. The noble Earl, Lord Ferrers, made that point quite clearly.

Arguably, that could still have been achieved if the Secretary of State, Ruth Kelly, had been able to respond positively to a proposal put to her by my honourable friend the shadow Secretary of State, Mrs Caroline Spelman. In her letter of 5 March, she suggested that the Government should consider proceeding by way of a statutory instrument to amend the original Act. That would have ensured that there could have been full discussion on all aspects of the sexual orientation provisions. That would have given them much more detailed and satisfactory consideration than the House of Commons was able to do last Thursday and that we have been able to do this evening.

Perhaps the Minister can tell the House why my honourable friend did not receive a reply to her proposal, which was accompanied by an undertaking that the Official Opposition would co-operate to ensure that as little time as possible was taken over the regulations on the Floor of the House. In view of the fact that the regulations have been re-laid several times since 5 March because of poor drafting, as has been said, it would have been quite possible for this sensible suggestion to have been implemented and for amendments to be tabled that might have reconciled the objectives of all parties. As it is, considerable concerns have been expressed tonight by the mover of the Motion, the noble Baroness, Lady O'Cathain, and others who have supported her.

These are not trivial matters. They are fundamentally matters of conscience, tolerance and values, particularly in relation to adoption and fostering, as many speakers tonight have said, and to the role of teachers in religious and sexual education. There has been a feeling that there has been an assault on Christian values and beliefs. There has been ample evidence of this both in the correspondence that we have all received and the demonstration that has been taking place all day outside Parliament. The regulations are about reducing discrimination, but it is evident that where they rightly and properly address that issue, they also give rise to the question whether those with Christian religious beliefs will now perceive themselves as the ones who are open to being discriminated against. The right reverend Prelate made that point very clearly.

It will be a terrible outcome if the coin only turns from one side to the other. Had there been more time, the relationship between the regulations and the provisions in the Act on protection on grounds of religion and belief could have been teased out. However, there are discrepancies between them, which is difficult, because these provisions were inserted in this House at a late stage in the Equality Bill, as has been said, so they do not necessarily match the provisions on religion and belief. One of the most serious concerns that has been expressed and that has been well rehearsed again this evening is the impact on faith-based adoption agencies. I appreciate that the Government have tried to find ways to address this, but they have only half done so by providing a transitional period until the end of 2008. It might have been in the general interest of the vulnerable children for whom these agencies provide such an excellent service if the arrangements whereby they must refer same-sex and bisexual people to other agencies were made permanent. I see no dichotomy between the agencies being able to do that and the fact that they do not approve of same-sex adoption.

It would be a very odd outcome for anti-discrimination legislation if agencies, which have for decades provided one of the most highly respected adoption services, will, as the noble Lord, Lord Anderson, bravely pointed out, be forced out of business, not because they are useless but because there appears to be no way in which they can be allowed to continue to provide a contracted service if they cannot sign up to agreeing to same-sex adoption. Many other agencies that do not have the same outlook could fulfil this requirement without the church agencies, which do such invaluable work with some of the most vulnerable children in our society, having to be put out of business.

Will the Minister say whether the churches will be consulted further to see whether there can be accommodation before the transitional period expires? Will she also say what is implied by the Secretary of State's response to the consultation in which she said that there would be "an ongoing independent assessment" of the issues undertaken within the transitional period? The Minister referred to that in her opening remarks and I was a little concerned at the way this is going. What the Government need to do now is to find a way out of this which leaves the agencies—the church agencies, the faith agencies—able to continue with their work. If we are all talking about the interests of the child, surely it is not in the interests of the child that valuable and what in many cases are voluntary agencies, a point made by my noble friend Lord Pilkington, should be driven from business.

I want to make it clear that, these reservations aside, I support much of the general thrust of these regulations. But I recognise and sympathise with the deeply held views that have been expressed, and I am concerned about the procedures which have landed us in this discussion tonight. Tolerance and understanding in our society need to embrace those who agree with the Government's views and those who do not, and who now may feel threatened by them. I believe that my noble friend has made a case which has to be answered, and I look forward to hearing the Minister's response to this important debate. Before I finish, I want to stress that tonight my party has a free vote on this matter.

Photo of Baroness Andrews Baroness Andrews Parliamentary Under-Secretary, Department for Communities and Local Government, Parliamentary Under-Secretary (Department for Communities and Local Government) 9:56 pm, 21st March 2007

My Lords, I am grateful to all noble Lords who have spoken. It has, predictably, been a passionate, personal and thoughtful debate. I should say to the noble Baroness that I am delighted that we in the Department for Communities and Local Government are responsible for equalities and I am proud to stand here and present these regulations. As I said in my opening speech, they represent the end of a long and important journey. We have heard some exceptional speeches, among them those of the noble Baroness, Lady Howarth, and my noble friend Lord Smith. It has been inspiring to listen to the reconciliation of religion and ethics. The House will be grateful to them that there is no polarity between Christianity and our joint commitment to put an end to discrimination.

In response to the right reverend Prelate the Bishop of Southwell and Nottingham, I took to heart his comment about the need to have loving attitudes towards all our neighbours, and the injunction of the most reverend Primate that we need to live magnanimously with difference. Those words confirm absolutely my conviction that these regulations are right because that is what they do: they enable us to live magnanimously with difference and to love our neighbours. Further, they are being introduced against the background of a consistent focus on tackling discrimination since 1997. We overturned Section 28, passed legislation to permit adoption by same-sex couples, created civil partnerships and have been uncompromising in our work to tackle homophobic bullying.

I will not repeat the detailed chronology I set out in my opening speech of the process. I have listened intently to noble Lords, but I will say that if we had not brought forward regulations and this provision had been in the Bill, it is unlikely that it would have had the extensive public consultation and attracted the 3,000 responses we have received. Those have enabled us to understand the scope and intensity of the debate on this issue. That was a good thing to do and I share the frustration of my noble friend Lord Alli that it has taken a long time, particularly for him and others who have been on the journey so intensively.

Tonight we are taking a modest step by acting on the commitment we gave in the Equality Act to introduce regulations that provide protection from sexual-orientation discrimination in the provision of goods and services on a par with the protection already provided on the grounds of disability, sex and race, and which will shortly be provided for religion and belief. It is a modest step, one that is logical and humane, and it is the right thing to do. Many noble Lords have spoken more eloquently than I about the implications of that and why, in their experience, this is the right thing to do.

In line with the Human Rights Act, the Government have sought to ensure that in protecting the rights of one group—lesbian, gay and bisexual people—we also uphold the right of individuals to freedom of thought, conscience and belief. That has been confirmed in many different ways around this House tonight.

I was disappointed when the noble Baroness, Lady O'Cathain, talked about the measure forcing believers to change belief and even about an assault on Christian values. It is not. Nothing in these regulations prevents people holding beliefs. These regulations are designed to capture, as my noble friend Lord Smith said, where that belief is manifested to discriminate against people. Holding belief does not justify behaving in a discriminatory fashion.

The most reverend Primate the Archbishop of York said that we had not moved halfway in this meeting of minds, with these competing rights. We did, and we have drawn the line in the right place. I am sorry, but I have to disagree with my noble friend Lord Anderson about this, although he and I are usually in agreement about everything: in the Government's opinion—and in the opinion of the JCHR, which we value immensely—we have achieved the balance between competing rights. It is not an issue of freedom of conscience, but of moderating our actions to accommodate difference within society. If these regulations promote anything, it is tolerance, respect and the principle of fairness, which must run throughout all the services and facilities covered by these regulations.

The noble Baroness, Lady O'Cathain, asked, as did the right reverend Prelate the Bishop of Winchester and other noble Lords, such as the noble Baroness, Lady Hanham, why there was an exemption in education for religion or belief, but not on the grounds of sexual orientation. Issues that arise in the context of religion or belief have no counterpart with regard to sexual orientation. The exemption we provided was for all schools for anything done in connection with the curriculum, to prevent claims being brought against schools—for example, for using computers in school, which discriminates against the Plymouth Brethren, who are forbidden to use such technology; or for the choice of songs in music lessons, which discriminates against the children of Jehovah's Witnesses. That was the reason for that particular exemption.

We have had a debate today about where the church belongs. The church belongs in the world. These regulations will not interfere with people's right to hold a religious belief or observe religious practice. There is of course a place for religious organisations in providing invaluable public services; we are in their debt. But when any organisation offers a service on behalf of, or under contract with, a public authority, it must take the public as they are. For too long, gay and lesbian people have been able to be turned away. They have been offered inferior services simply on the basis of their sexual orientation, and it is time that that stopped.

These regulations do not force people to act against their conscience—they require them simply to live within the law and offer equal access to goods. They do not compel religious organisations to hire out their premises if they can provide evidence that that would conflict with the strongly held beliefs of a significant number of the religion's followers. We believe that the regulations are robust and that we have the balance right.

I shall say a few words about adoption and fostering. We all seem to have been listening to the radio this morning. I heard a very moving interview with a young man who is being cared for by two lesbians. He said how much better it was to be loved, and to have a home with two mums who cared for him, rather than being with people who did not care. That expresses more than anything I could say why it is so important that gay and lesbian people should have the freedom to adopt jointly.

Noble Lords have claimed that adoption agencies will close; that the rights of gay couples will take precedence of those of children. The term "forcing closure" was used by the right reverend Prelate the Bishop of Southwell and Nottingham. No, we are not forcing closure. We are seeking, in all the ways we know how, to find an accommodation with the religious adoption societies. We do not give priority to gay people. As I said earlier, there is no right to adopt; there is a process that is humane, but also very rigorous. I say to the noble Baroness, Lady Morris, who spoke of intolerable pressure on the Catholic agencies, that that is precisely why we have allowed such a long time to find an accommodation.

I say to the noble Baroness, Lady Hanham, that I am sure that the dialogue with the churches will continue. Cardinal Cormac Murphy-O'Connor said that it is an,

"important part of our Catholic tradition to work constructively with the Government in mutually respectful cooperation in which we can act with confidence and integrity in the service of the common good".

That is exactly how we want to work with the churches, not just with adoption agencies but with the whole raft of public activity with which they are engaged. Having set up the independent assessment panel, we believe that we will be able to work out an accommodation with the adoption agencies.

Before I close, let me say just a few words on education. The curriculum issues that I described in my opening speech will, I hope, enable me to answer the question raised by the noble Lord, Lord Lester. He asked me to agree that there was no need to exempt the curriculum, and I can do so. As I explained, the curriculum is not liable to be detrimental in itself, and so the concept of exemption would not apply. Where discrimination really hurts children is in how the curriculum is taught, and that is caught by the regulations. I reiterate that there should be no issue where guidelines are followed by schools, because the guidelines provide for the teaching of sexual relationships in a manner which is designed to be non-stigmatising and to promote respect. I hope that answers some of the points that the right reverend Prelate the Bishop of Winchester raised. In answer to his second point, if we agreed that a public authority mandated a curriculum that requires teachers to act in a discriminatory way in breach of regulations, it could be subject to judicial review. But considering the care that goes into the making of the curriculum, I think that that is unlikely.

Many other things have been said, much of which have been somewhat misinformed but I feel fairly confident that this issue has been addressed by many different people. For example noble Lords have raised issues such as the Christian printer who provides a service. I think we have had a very full debate on the way in which the regulations will work. Many noble Lords have stressed that, like the vast majority of people who replied to the consultation process, they are against discrimination on the grounds of sexual orientation. I respect and applaud that but I would argue that if that is the case, they must act against discrimination and support these regulations. The Prime Minister has said that there is no room in our society for discrimination. He is right and I am sure that this House will demonstrate that tonight.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative 10:08 pm, 21st March 2007

My Lords, I thank the Minister for her very thoughtful opening speech and the wind-up. I would also like to thank every noble Lord who has spoken tonight. I think we have moved on a lot in understanding. There is simply not time to respond to so many detailed concerns at this late hour but it is clear that this is an issue of immense importance which bothers many people here and many more outside. We have just not had a chance to do our job properly; namely, to scrutinise. Therefore, I wish to test the opinion of the House.

On Question, Whether the said amendment shall be agreed to?

Their Lordships divided: Contents, 122; Not-Contents, 168.

Division number 1 Equality Act (Sexual Orientation) Regulations 2007

Aye: 118 Members of the House of Lords

No: 164 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Absent: 458 Members of the House of Lords

Absents: A-Z by last name

Resolved in the negative, and amendment disagreed to accordingly.

Motion agreed to.

House adjourned at 10.22 pm.