After section 9

Adoption and Children (Scotland) Bill: Stage 3 – in the Scottish Parliament at 10:00 am on 7th December 2006.

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Photo of Trish Godman Trish Godman Labour 10:00 am, 7th December 2006

Group 4 is on onward referral of prospective adopters. Amendment 86, in the name of Michael McMahon, is the only amendment in the group.

Photo of Michael McMahon Michael McMahon Labour 10:15 am, 7th December 2006

In speaking to my amendment 86, I will be as brief as possible and limit my explanation of its purpose to two points. The first is legislative and the second is practical.

The issue of how faith-based adoption agencies will operate under the new legislation has featured at every stage of deliberation on the bill. In spite of assurances from ministers, those who work in the faith-based agencies remain concerned that they will not be able to continue to operate as they would like to unless legal protection is provided to them.

It is important to note that my amendment would not take away any entitlement that is given to anyone in the bill. It seeks merely to protect the status quo as it relates to the faith-based agencies. Some have argued that the protection that the agencies seek can be provided in regulation, but the reality that they face is that there may be some who, in order to pursue an unreasonable test of the law, will seek to force faith groups to act against their philosophical beliefs.

This might not be the best analogy to use, but the Parliament introduced an act to deal with the fur farming trade not because of what it was doing—in fact, such a trade did not exist in Scotland—but because of what might happen if legislation did not exist to prevent the emergence of an unwanted scenario. That is all that the faith-based adoption agencies are seeking through the amendment—to be protected from what might happen.

There are other, possibly more important, practical considerations. The faith-based agencies do not have to exist, but they do exist, due to a desire to provide a specific form of adoption service. In doing so, they provide a service that is used by the wider community and which supports the public authorities. If, for whatever reason, the agencies are prevented from operating under their own auspices, they might not be able to continue to provide a service at all. The resultant gap in service provision would have to be filled somehow and the funding would have to come entirely from the public purse. The agencies receive financial support from the public purse, but a huge section of their funding comes from charitable donations. The agencies would not be able to continue without either funding stream.

I ask members to support my amendment, because I believe it to be a reasonable amendment that would do no more than enshrine the status quo in the bill, which will be an important piece of legislation.

I move amendment 86.

Photo of Trish Godman Trish Godman Labour

A considerable number of members wish to speak, so I will give members a strict two minutes.

Photo of Elaine Murray Elaine Murray Labour

During the Education Committee's consideration of the bill, we heard evidence from the faith-based agencies and we considered the issue of their not being forced to do things that would be against their conscience. It is important that they are protected and not forced to do anything that is against their conscience and their ethos, but the minister assured us at stages 1 and 2 that nothing in the bill will change the current situation and that the matter could be dealt with in guidance.

I have some concerns about that, and I am also concerned that amendment 86 does not say anything about people's right to exercise their conscience. It states only that adoption agencies must refer people on. I have some anxiety about the wording of the bill, and I would like to hear a little more about the effect that the amendment would have on the faith-based agencies. Could the matter be dealt with less controversially in guidance?

Photo of Margaret Smith Margaret Smith Liberal Democrat

Amendment 86 is unnecessary. Not only does it reflect what happens at the moment, but the matter is already covered in guidance and the national standards, so there appears to be no need for it. Ministers have given the faith-based agencies clear assurances.

I seek guidance from the minister, because it seems to me that the amendment relates at least in part to a reserved matter. The question of whether an adoption agency can turn people away is a matter for anti-discrimination law. The Labour Government's legislation on discrimination in the provision of goods, services and facilities will cover any services that are bought on contract with public money and it will be effective from April next year. An affirmative instrument will be laid early next year. I ask the minister to comment on how amendment 86 would sit with that.

The amendment is illogical, discriminatory, or both. It states:

"Where an adoption agency decides not to assess a person as a prospective adopter ... it must refer that person" elsewhere. However, on what basis would an agency decide not to assess someone? On what basis would it refer the person on? Surely that assumes that some assessment has already taken place.

We know the reason for the amendment, because Mr McMahon was explicit about what he meant at stage 2: the Catholic adoption agencies want to be able to turn away gay couples and unmarried couples without properly assessing their ability to be good parents. An assessment will be performed, but it will be no more than an assessment of whether the couple are unmarried or gay. It will not assess whether the couple can provide a child with a loving family home. Current practice runs counter to the amendment, in that an assessment of sorts would have to be done.

In the end, referring prospective parents elsewhere is simply discrimination once removed. Would the Parliament support the amendment if it was targeted at Catholic couples, Muslim couples, black couples or women? It would not. Neither, then, should it pander to the discrimination against unmarried or gay couples.

Photo of Lord James Selkirk Lord James Selkirk Conservative

I am glad to support Michael McMahon's amendment, which is wise and far-sighted and should be supported by the Parliament. He raises an issue that I raised with the minister during the stage 1 debate. In response to my question, the minister said that it was not necessary for the bill to state explicitly that faith-based adoption agencies would not be compelled to help same-sex couples to adopt. I believe as a matter of conviction that it is right that we should not put people in positions in which they are expected to act against their religious faith or principles, whether their religion is Christianity, Islam, Judaism or any other. It is wrong to think that we are talking only about Catholic-based agencies. We are dealing with a much bigger issue than that.

I made it clear that, although I welcomed the minister's reassurance, it was desirable that this sensitive matter should be clarified in the bill. As Margaret Smith rightly said, other legislation could give rise to legal actions against faith-based agencies. The amendment would send a clear signal to faith-based agencies that their valued work can continue unhindered in a way that is acceptable to everybody concerned.

Photo of Trish Godman Trish Godman Labour

Before I call Fiona Hyslop, I use my power under rule 9.8.4A to extend the debate on the next group by 20 minutes, which must conclude by 1 hour and 25 minutes after the time that proceedings began.

Photo of Fiona Hyslop Fiona Hyslop Scottish National Party

The SNP values the role that faith-based agencies play in adoption, and the Education Committee was extremely impressed at stage 1 by their contribution. All parties—including Lord James, Elaine Murray, Kenneth Macintosh and others—agreed that the bill will not prevent faith-based agencies from referring people on. Why would we include in the bill something that is not necessary? We have an assurance from the minister that the faith-based agencies will continue to be able to refer people on. It is right for them to be able to refer on those people whom they cannot help.

There is another argument about the philosophy and the approach of the bill, which puts the rights of the child first. Indeed, the only rights in the bill are the rights of children. That reflects the history of children's policy and the Children (Scotland) Act 1995, which put the rights of children first. To put the rights of adoption agencies or the rights of adoptees—

Photo of Hugh Henry Hugh Henry Labour

If I could perhaps address the point about the national care standards and why Michael McMahon thinks it is important for the matter to be covered in the bill, there is a slight difference of emphasis, because he is addressing some of the concerns that adoption agencies might not be able to—

Photo of Fiona Hyslop Fiona Hyslop Scottish National Party

I know that there is a difference of opinion within the Executive, but the minister should not use the Opposition to make that point.

It is important that the bill does not give rights to adoption agencies or adoptees. Such rights would be superfluous, because the rights of children are paramount.

Michael McMahon used the Fur Farming (Prohibition) (Scotland) Act 2002 to justify his amendment, but that reveals the flaw in his argument. We want faith-based agencies to be able to refer people on and there is nothing in the bill to prevent that. On those grounds, I reject Michael McMahon's amendment.

Photo of Kate Maclean Kate Maclean Labour

I speak strongly against Michael McMahon's amendment 86. If we insert the provision that it proposes into the bill, we will give a green light to adoption agencies to discriminate. The main priority of any adoption agency, faith-based or otherwise, should be the good of the children with whom they are dealing. If we give any agency the right to discriminate, that will not be the case.

Photo of Karen Gillon Karen Gillon Labour

If the argument against amendment 86 is that it is unnecessary because the matter is already covered in guidance, is the member happy with the guidance containing the exemption that the amendment suggests?

Photo of Kate Maclean Kate Maclean Labour

No, I am not happy with the guidance. Two wrongs do not make a right. The anti-discrimination legislation that will come into force next year will take care of that and will probably make the provision that amendment 86 would insert obsolete anyway. If any organisation feels that for ethical or moral reasons it cannot conduct its business within the law, it should not be in that business. I urge anybody who cares about children and equal opportunities to oppose Michael McMahon's amendment 86.

Photo of Patrick Harvie Patrick Harvie Green

Lord James Douglas-Hamilton told us that amendment 86 is wise and far-sighted, but it is exactly the opposite. If some adoption agencies are going to continue to discriminate, it is a good idea that they refer people on to an agency that will not discriminate. It is a good idea to have that rule. However, it is a bad idea for us to pass an amendment to put that in the bill because, as Kate Maclean says, that will be taken as our sanctioning and explicitly approving of such discrimination in law.

We can have an argument about whether such discrimination is acceptable or unacceptable. What surprises me most is that it was Michael McMahon who lodged amendment 86, given that his party wants Westminster to deal with discrimination issues for us. His party is dealing with such issues at Westminster through legislation and policy.

It strikes me as short-sighted and unwise for members to agree to an amendment that cuts across the anti-discrimination work that is being done, whether they are in the party that is progressing that work or an Opposition party. I ask members not to support amendment 86, not to give discrimination an explicit endorsement and not to cut across the future work on equality that will be done elsewhere.

Photo of Iain Smith Iain Smith Liberal Democrat

Fiona Hyslop highlighted the cross-party support for the position taken at stage 1 that there is no need to insert in the bill the provision that amendment 86 proposes, given that faith-based agencies will be able to continue to operate in the way that they do at present. At stage 1, it was suggested that there was such a legal opt-out in the equivalent legislation in England and Wales, but that is not the case. Neither the Adoption and Children Act 2002 nor the associated subordinate legislation contains any such opt-out. No one has presented evidence to suggest that faith-based adoption agencies in England and Wales have any difficulty operating within that legislative framework, so I do not see why they would have any difficulty working under the proposed Scottish framework. There is no need for amendment 86 to protect the position of faith-based organisations.

We have to address the issue of discrimination. The guiding principles of the Parliament require us to recognise the need to promote equal opportunities for all. If we want to be true to our responsibilities, we must reject amendment 86. Should we put in the bill a provision that says that it is okay to discriminate? Margaret Smith referred to the grounds on which it would be possible to assess a person as a prospective adopter. It would not be acceptable to discriminate on the grounds of race or disability—that would cause an uproar—but, apparently, it is okay to discriminate on the ground of sexual orientation. The proposed provision says, in effect, that the judgment of an adoption agency about who is suitable to adopt can be made on grounds that have nothing to do with whether they would provide a secure, safe and loving home for a child.

The bill will not prevent faith-based adoption agencies from continuing to operate according to their own faith-based criteria, but we should not put in the bill a provision that gives them a specific right to discriminate.

Photo of Susan Deacon Susan Deacon Labour 10:30 am, 7th December 2006

In the discussion on an earlier amendment from my colleague Paul Martin, we were told how important it was that we set the right tone in legislation and that we send out the right messages. That is true, and we should think about that carefully when we vote on amendment 86 and as the day progresses. In all the earlier discussions at stages 1 and 2, we united around the clear message that what mattered was Scotland's children and that what was best for them would be at the heart of our consideration of the bill.

In the light of earlier debates and decisions, we are in danger of sending out a message that, rather than acting in the best interests of all Scotland's children and considering all the evidence and the measured discussions that there have been over many years, at the last minute we are willing to bow to just one voice, one view and one constituency of opinion. That is the wrong message to send out, and we should remind ourselves what the bill is about.

Faith-based adoption agencies are terribly important, which is why the Education Committee considered the matter carefully and why ministers have given firm assurances. That is the right way to deal with the matter. I urge colleagues to reject amendment 86.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

The key issue is how adoption agencies decide not to assess a person as a prospective adopter. Can adoption agencies just turn away anyone whom they want to turn away? Michael McMahon's amendment 86 refers clearly, in effect, to Catholic adoption agencies. However, such agencies—which I have to say do a fantastic job—are specialist adoption agencies; they do not take everybody. The guidance already allows specialist adoption agencies to refer people who do not meet their criteria to other adoption agencies. What is wrong with that? I am happy with the guidance, which seems perfectly fair, logical and reasonable. There is no legal doubt about it.

Photo of Karen Gillon Karen Gillon Labour

Is guidance legally enforceable?

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

Let us not dance on the head of a pin. The guidance is clear. We are talking about enshrining in the law of the land the ability to discriminate, which is completely wrong. If we agree to amendment 86, we will, as many of Karen Gillon's colleagues have said, enshrine discrimination in law, and I will be ashamed of her if she supports it. As others have rightly said, we must not pander to prejudice, but consider the interests of our children first and foremost.

Photo of Trish Godman Trish Godman Labour

Hugh Henry has asked whether he can speak and, given that he will not be the minister summing up, and that it is clear that members are concerned about this issue and wish to have as much dialogue on it as possible, I will call him after Ken Macintosh.

Photo of Kenneth Macintosh Kenneth Macintosh Labour

I am uneasy about some of the debate that we have had about amendment 86. I remind members that the bill is not a gay rights bill or a bill about married or unmarried parents, but a children and families bill. I say without hesitation that I will reject some of Roseanna Cunningham's later amendments, because I regard them as anti-gay.

It is clear that some members also see amendment 86 as discriminatory, which is unfortunate, to say the least. I for one would not vote for something that I saw as discriminatory. It is interesting—and, I hope, reassuring—to note Margaret Smith's comment that not only do we already have strong anti-discrimination legislation in this country, but further measures to reinforce the law are being pursued at Westminster. In other words, the provision proposed in amendment 86 will not be able to be used to discriminate against anyone on the grounds of their sexuality or marital status. On the contrary, the provision is worded in positive rather than negative language. It does not say what an adoption agency cannot do, but what it should do to assist anyone who comes forward as a potential adopter.

Does anyone here seriously question the excellent work carried out by faith-based adoption agencies? As my colleague Wendy Alexander pointed out at stage 2, we do not have enough voluntary sector adoption agencies as it is.

I will finish by drawing parallels. I regard faith-based adoption agencies in a similar way to how I regard denominational schools. It is important for the huge number of people in this country for whom faith is core to their values and upbringing that they have access to an adoption agency that reflects that faith. A parallel approach—this reflects my support for amendment 86—is positive action rather than positive discrimination. The amendment does not discriminate against anyone, but positively supports those who value their religious faith.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

On a point of order, Presiding Officer. What precedent exists for calling a second minister to speak at such a stage? It is understandable that special treatment should be given to a minister who is leading on a bill for the Executive, but another minister should be treated in exactly the same way as an ordinary member is treated. I seek an assurance that if Hugh Henry is called, all members of other parties who seek to speak in such debates will be treated in the same way.

Photo of Trish Godman Trish Godman Labour

I hope that I treat members fairly. I decided to call Hugh Henry as an ordinary member, which is why I made my announcement.

Photo of Hugh Henry Hugh Henry Labour

As Robert Brown said, the Executive is neutral on the issue. However, I hope that I can clarify several matters that have been raised. [ Interruption. ] I will attempt to do so as an ordinary member. Indeed, I have the right to do so.

It has been suggested that the national care standards should not apply. Some people want them to be abolished. However, we must be clear that the debate is not about abolishing the national care standards—they will still exist and will ensure that what Michael McMahon's amendment 86 suggests should be done will be done. A slight difference is involved, however, with respect to the duty to refer people who cannot be assessed to another adoption agency. Michael McMahon has suggested that we should go further than the standards in saying that we should ensure that a person shall be referred to another agency. That addresses the point that Patrick Harvie made about it being right to refer people on.

Photo of Fiona Hyslop Fiona Hyslop Scottish National Party

I have a serious point to make. Does the minister see the amendment having any unintended consequences, not in relation to faith-based agencies but in relation to local authorities, which are defined as adoption agencies?

Photo of Hugh Henry Hugh Henry Labour

I do not see any unintended consequences. Robert Brown gave assurances on the consequences at stage 2. Michael McMahon seeks to clarify matters and to ensure that people shall be referred to another agency—I refer to the point that Patrick Harvie made. The opportunity for an agency to discriminate will be avoided. The question whether discrimination had occurred would depend on the reasons for the referral.

Photo of Karen Gillon Karen Gillon Labour

The debate is developing into a debate on the rights of adults as opposed to the rights of children, but nobody in Scotland has the right to adopt a child.

Like Ken Macintosh, I would not support any form of institutionalised discrimination, but respect cuts both ways. I respect the rights and views of faith-based adoption agencies, including their right to have their views heard in this chamber and to be heard and respected in Scotland. The difficulty with debates such as this one is that respect seems to go in only one direction.

I will support Michael McMahon's amendment 86, because it is right that we should respect faith-based organisations, which make an important contribution to Scotland's public life. It is also right that we should respect the right of people in the gay community and people from every part of society to seek to adopt. That said, no person has the right to adopt.

Photo of Robert Brown Robert Brown Liberal Democrat

Peter Peacock and I made it clear to the Education Committee and the Parliament that the Scottish ministers want faith-based adoption agencies to continue their work, which is a valuable additional service to the services that local authorities and others offer. Indeed, I want faith-based adoption agencies to find more adoptive parents, to provide services to a range of adults and children, and to appeal to their faith-based communities to secure more adoptive parents who can meet all the stringent requirements of the adoption process and can give good homes to children who need them. That is the central point that we should bear in mind.

Ministers have consistently made it clear that nothing in the bill will alter the position or practices of Roman Catholic adoption agencies. In practice, if an adoption agency thinks that it is unable to assist a child or prospective adopter, it should refer them to another adoption agency that could provide the necessary service and support. That is the current practice of adoption agencies.

Photo of Robert Brown Robert Brown Liberal Democrat

No, I will continue.

Standard 20 of the national care standards for adoption agencies includes a power to refer people who cannot be assessed to another agency, so the amendment will make no difference to what happens in practice. I hope that the Roman Catholic adoption agencies will be reassured by the reassurances that have been given at stage 2 and today on that matter.

I will deal briefly with the Westminster equalities legislation, which has been mentioned and is an important backdrop for information. As members are aware, consultation is being carried out on regulations on discriminatory practice in the supply of goods and services under that legislation. The Parliament will want to consider whether including the proposed provision in the bill would be helpful. It would not affect what may happen at Westminster. Equalities legislation is UK legislation, and agencies will be required to comply with it and regulations that are made under it. Peter Peacock and officials have engaged with the UK Government on how agencies will be affected. However, I say again that we do not intend to affect the practices of the Roman Catholic adoption agencies; rather, we want them to continue to do their good work.

The matter must be decided by members: as has been said, the Executive has taken a neutral stance. However, that background information will help members in putting matters in context as they make a decision on amendment 86.

Photo of Michael McMahon Michael McMahon Labour

I will press amendment 86.

It has been made clear to me that faith-based adoption agencies want to operate within the provisions of the bill, but they fear that they will not be able to do so unless they are given the legislative protection that they need. Despite the minister's assurances, they are not reassured that that will be the case.

As Elaine Murray and other members have said, the agencies currently refer people on, and they have been advised that they can continue to do so. If they are referring people, they cannot be being discriminatory, therefore all the arguments about inclusion of the provision in the bill being discriminatory cannot be justified. There is no logic in such an argument. Indeed, the Scotland Act 1998 seeks to protect religious beliefs and compels us to ensure that that is done. Protecting faith-based agencies is not pandering to discrimination and prejudice, but not protecting them could result in prejudicial action being taken against a religious group.

Photo of Iain Smith Iain Smith Liberal Democrat

I said that the legislative framework that the bill proposes already exists in England and Wales, and there is no evidence that faith-based organisations there have any problems operating under it. Does the member have any evidence of problems for organisations that are working under that framework in England and Wales?

Photo of Michael McMahon Michael McMahon Labour

I have been told by the faith-based adoption agencies that they are concerned about what might happen. That is why the amendment was lodged.

I want to respond to what Fiona Hyslop said and to refer to comments that she made at stage 2. I have not used the word "rights". The issue is not that someone's rights will be taken away or that rights will be given; the issue is protection for agencies so that they can operate within the law.

The fear of the faith-based adoption agencies that they will be forced out of business has been confirmed by what members have said. It is clear that some people want faith-based adoption agencies to operate outwith the criteria that they set and to be told by the Parliament how they will operate, despite their religious beliefs and the ethos under which they are delivering a first-class service.

If amendment 86 creates any difficulties, I cannot understand how we can solve them by dealing with matters in guidance or regulations. There is no logic in saying that it is all right to deal with such things in regulations rather than in the legislation. I do not follow how anyone can believe that providing protection to one group for the delivery of a service without taking away anyone's entitlement must be discriminatory and will diminish the service that is being provided.

The reality is that faith-based adoption agencies provide a high-level service. I cannot believe that the Parliament would wish to do anything that would take them out of the sector in which they operate and deliver that high standard of service. I therefore ask members to support amendment 86.

Photo of Trish Godman Trish Godman Labour 10:45 am, 7th December 2006

The question is, that amendment 86 be agreed to. Are we agreed?

Members:

No.

Division number 4

For: Adam, Brian, Aitken, Bill, Alexander, Ms Wendy, Baillie, Jackie, Baker, Richard, Barrie, Scott, Brankin, Rhona, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Cunningham, Roseanna, Curran, Ms Margaret, Davidson, Mr David, Douglas-Hamilton, Lord James, Eadie, Helen, Ferguson, Patricia, Fraser, Murdo, Gallie, Phil, Gillon, Karen, Henry, Hugh, Home Robertson, John, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Johnstone, Alex, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Macdonald, Lewis, Macintosh, Mr Kenneth, Macmillan, Maureen, Martin, Paul, Matheson, Michael, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McGrigor, Mr Jamie, McLetchie, David, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Milne, Mrs Nanette, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Murray, Dr Elaine, Oldfather, Irene, Petrie, Dave, Scott, John, Tosh, Murray, Welsh, Mr Andrew, Wilson, Allan
Against: Arbuckle, Mr Andrew, Baird, Shiona, Ballance, Chris, Ballard, Mark, Brown, Robert, Brownlee, Derek, Byrne, Ms Rosemary, Crawford, Bruce, Curran, Frances, Deacon, Susan, Fabiani, Linda, Finnie, Ross, Fox, Colin, Gibson, Rob, Glen, Marlyn, Gordon, Mr Charlie, Gorrie, Donald, Grahame, Christine, Harper, Robin, Harvie, Patrick, Hughes, Janis, Hyslop, Fiona, Ingram, Mr Adam, Jamieson, Margaret, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Maclean, Kate, Marwick, Tricia, Mather, Jim, Maxwell, Mr Stewart, Morgan, Alasdair, Munro, John Farquhar, Neil, Alex, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robison, Shona, Robson, Euan, Rumbles, Mike, Ruskell, Mr Mark, Scott, Eleanor, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Sturgeon, Nicola, Swinburne, John, Swinney, Mr John, Turner, Dr Jean, Wallace, Mr Jim, Watt, Ms Maureen, White, Ms Sandra, Whitefield, Karen
Abstentions: Boyack, Sarah

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 55, Against 58, Abstentions 1.

Amendment 86 disagreed to.