House of Lords
Thursday, 15 December 2011.
Prayers—read by the Lord Bishop of Oxford.
Economy: Deficit Reduction
My Lords, tackling the deficit is necessary to supporting sustainable economic growth. The Government’s consolidation plan has restored confidence in the UK’s fiscal position, preserving our AAA credit rating and leading Standard & Poor’s to move the UK’s rating from negative outlook to stable. In May 2010, the spread of UK gilts to German bunds was in line with Italy and Spain; since then, UK rates have fallen by over 150 basis points but Italian and Spanish bond yields have risen by over 100 basis points.
In the midst of all that, the noble Lord forgot to answer the Question. As I am sure he will recall, the Prime Minister said that the deficit would be eliminated in 2015 and his own Office for Budget Responsibility has said that it will be 2017. Why was he not willing to say that? Is there something wrong in telling the truth that he has to give me a long, wordy Answer? However, it is even worse than that—and some very respected forecasters are forecasting that it could be even worse. Would he not accept that if the circumstances change, through no particular fault of the Government, changes in policy should take place? For example, we might do something to stop the unemployment figures announced yesterday being even worse. What does he have in mind in the event of some kind of major change in circumstances?
My Lords, the Government are on track to meet the fiscal mandate which was set by my right honourable friend the Chancellor. The mandate requires the Government to bring the cyclically adjusted current balance into balance at the end of five years. The Opposition may not like it but that fiscal rule means that there is an ability for us to be flexible in the face of very difficult economic conditions; it means that we can preserve the infrastructure expenditure, which is so important, to underpin long-term growth; and it means that the automatic stabilisers can operate. If the noble Lord, Lord Barnett, is suggesting that we should abandon all of that, I wonder what his policy would be.
My Lords, does my noble friend accept that the primary reason for our current deficit is the fact that public expenditure as a percentage of GDP grew from less than 40 per cent to close to 50 per cent in the first 10 years of this century? Will he confirm that the Government’s primary focus is therefore to get public expenditure back down below 40 per cent, where it can be supported by an affordable level of taxes?
My Lords, I am sure that the Minister will agree that access to bank credit for smaller microbusinesses will be essential for economic growth and elimination of the deficit. Will the Government therefore take a look at the extraordinary barriers to entry of new potential banks into exactly this field, the FSA having now become so utterly risk-averse that it has lost any sense of balance?
My Lords, it is very important that credit flows to SMEs, which is why we announced a package of £21 billion at the autumn Statement, and it could go higher if the demand is there. I take my noble friend’s point about the importance of diversity and new entrants into our banking system. That is something that both the FSA and the Government keep under review.
My Lords, given that the stability message has failed, is it not time now for a growth strategy? Given the appalling figures on unemployment for both young people and others in the country, is there not hope to be given to people? Given that the Government can borrow, with the low interest rates, at a rate less than the private sector, is it not time to invest in infrastructure projects so that we come out of this recession and not make it a depression?
My Lords, that is exactly what we are doing: we are investing in infrastructure projects. Indeed, as was announced at the autumn Statement, we are targeting an additional £20 billion of private sector money coming into infrastructure from long-term UK investors. As to the policy mix, I can only refer back to the IMF’s latest assessment which said that the case for relatively tight fiscal and relatively loose monetary policy is strong.
My Lords, surely the question for most ordinary people not schooled in economics is whether the Government’s programme for rapid deficit reduction is actually a price worth paying. Could the Minister tell us how the Government propose to quantify the cost of deficit reduction in terms of the impact on people and communities?
The right reverend Prelate is absolutely right. The end objective here is not a balanced budget but sustainable growth, to bring down unemployment and increase employment in this economy. So what is really important, whether it is infrastructure spend, the fundamental reform of the welfare system or our education system, is that in the end we get a better balanced economy with more sustainable employment over the long term.
My Lords, the Minister has made it clear to the House today that the Government’s deficit reduction strategy is based on sand. It is always five years ahead. He has told us today that the target is to balance the budget by 2017; next year it will be 2018, the year after that 2019 and, like old age, it will simply retreat before us. Given that the Government’s strategy has been pushed off track and is failing to meet its deficit targets, why in the autumn Statement did they not cut expenditure more and raise taxes more to put the deficit reduction strategy back on track?
My Lords, did the Minister notice that the credit rating agencies and the American-dominated $16 trillion debt system gave AAA ratings to all the hedge funds and banks that collapsed in the United States and elsewhere in the world just about a week or a few days before they actually did collapse. Are they really so reliable?
My Lords, it is now nearly four years since the Chilcot committee was asked to find a way of making intercept evidence available in court. The preferred approach has always been by what has been called public interest immunity plus, which has many advantages. However, in December 2009, that approach was abandoned in the light of the decision of the fourth section of the European Court of Human Rights in a case from Finland. Since then, we have heard very little. Does the Minister recall that a month ago the Lord Chief Justice and the president of the Supreme Court gave evidence that the courts are following decisions of the European Court of Human Rights too strictly? If that is accepted, would he encourage the Chilcot committee to look again at PII+ and perhaps take further legal advice?
My Lords, I am sure that the group will want to reflect on the implications of the judgment to which the noble and learned Lord referred in the European Court of Human Rights and to reflect on the remarks of the Lord Chief Justice when he said that the United Kingdom courts should give due weight to decisions from the European Court of Human Rights. However, the noble and learned Lord should recognise that experience in other countries, whether they are bound by the European Court of Human Rights or not, is that using intercept as evidence involves significant operational burdens, and that the review is helping to address those issues by trying to find the right balance between advantage, costs and risks.
Will my noble friend the Minister confirm that the Privy Council review has been looking at a very small number of possible models for admissibility and that the key issues, as the noble and learned Lord, Lord Lloyd, said, concern the ECHR, upon which the review might perhaps take note of the recent and very helpful public comments of the noble and learned Lord, Lord Irvine? Will the Minister try to ensure that, given that all the legwork has actually been done now, an announcement is made within weeks rather than months?
My Lords, it is not for me to decide when the Privy Council group should make its decisions. That must be a matter for the group itself. As I stressed at the beginning, there have been changes to the membership of that group, which has complicated matters and slowed things down somewhat. As I said, I am sure that the group will take account of the implications of the judgment in the European Court of Human Rights and of the views expressed by the noble and learned Lord, Lord Irvine.
As a former member of the group that we are talking about, could I press my noble friend a little further on this point? My recollection is that some time ago we were within spitting distance, we were within reach, we were edging fast towards a settlement or compromise that would satisfy both the main parties and points of view in this complicated matter. What has gone wrong since then?
My Lords, it is not for me to pronounce on the problems that the group is having. As my noble friend knows from his distinguished service on this group, the membership has changed not once but twice over the last year or so. There are difficult issues to be addressed. I know that it came forward with one model, and there were problems with that, but I think my noble friend will accept that trying to get the right balance, to which I referred in my first Answer, between advantage, costs and risks is a very great challenge and one that we want that group to get right.
I am not clear from the Minister’s answer whether the Government have a view on this issue or not. In light of the remarks made by the Lord Chief Justice in relation to the ECHR decision to which the noble and learned Lord, Lord Lloyd of Berwick, referred, do the Government take the view that there appears to be no insurmountable obstacle in principle to the use of intercept evidence, or are our intelligence services still voicing significant concerns on this issue?
There are obviously significant concerns about using intercept as evidence. It can be very useful as intelligence, but using it as evidence can create significant problems. We want to address those problems and make sure that we have got it right before we allow intercept to be used as evidence. That is why the previous Government set up the review under Sir John Chilcot and why we are continuing to look at the work that it is doing and looking forward to its report in due course.
I understand that what happened was that the first group of privy councillors under Sir John Chilcot, of which the noble Lord, Lord Hurd, was a member, made a report that was considered. It then went into the next phase, with the privy councillors liaising with an action unit, or something like that, in the Home Office. That activity has hit problem after problem. It is not the fault of the privy councillors that there is a delay in reaching a solution. As the Minister said, it is a very complicated matter.
The noble Baroness is absolutely correct. I was not trying to imply any criticism of the group; I was saying that it has put forward a solution that we have found a number of problems with. We will continue to look at any ideas that it puts forward. If we could use intercept as evidence in a manner that was safe and appropriate, we would, but again I stress that we have to get the right balance between advantage, costs and risks.
My Lords, when I heard the Minister’s original Answer I wondered whether it was a case of changing the membership if you do not like what is being said, and in this case I would welcome that. However, does the Minister accept that the longer this goes on, the less trust and confidence there is among those of us who take an interest in this about whether there is a real determination to reach a good and useful outcome?
My Lords, during my three years as Minister for Security, almost every key plot against this nation was first identified through the auspices of GCHQ and this sort of intelligence. While one has to be sad that things have been delayed, will the Minister confirm that the most important thing to get right is not to lose any of the skills and capabilities that have been lost in the past when people have spoken about them unnecessarily?
My Lords, the noble Lord is absolutely right to underline the importance of intelligence—and I stress the importance very often of intercept as intelligence. Whether it can be used as evidence is always another matter. Frequently, even if it could be used as evidence, it would not be very useful evidence, having been useful intelligence.
Political Party Funding
My Lords, the Government are grateful to the committee for its report and will consider its recommendations before providing a formal response. The Deputy Prime Minister set out the Government’s proposed approach to party funding reform in his Written Ministerial Statement of 23 November.
Can my noble friend give us an assurance that unlike under the previous Administration, the most reluctant and recalcitrant participants in this process will not be allowed to delay everything, and will not be given a complete veto on progress? In particular, may I suggest that we should start with immediate action to stop the arms race in expenditure, both at the constituency level—targeting constituencies as well as national constituencies—and before, as well as during, campaigns? This could achieve some cross-party agreement, and of course would be very popular with the long-suffering public.
My Lords, I welcome those suggestions from my noble friend, which I will pass on to the Deputy Prime Minister. In his Statement that I referred to, he said:
“The Government believe that the case cannot be made for greater state funding of political parties at a time when budgets are being squeezed and economic recovery remains the highest priority. But there is a case for looking carefully at whether existing levels of support could be used more effectively”.—[Official Report, Commons, 23/11/11; col. 25WS.]
I would have thought that some of the suggestions that my noble friend made could be brought into that general consultation with all political parties.
My Lords, will my noble friend indicate whether the advice that has been given will be followed in time to influence elections that are going to be pending quite soon? In particular, having borne in mind that the Government have been speedy in altering the structure of constituencies, will they also take into account the importance of fair dos in spending to affect these forthcoming elections?
My Lords, even this report recommends that nothing that it suggests should come in before 2015, but the Deputy Prime Minister has indicated that all political parties are welcome to have broad discussions with him, and these matters could form part of those discussions.
My Lords, I feel a little light-headed because I think I may agree with the noble Lord, Lord Tyler. Obviously, to make elections fairer it is not just a question of where competing candidates and parties raise their money from, it is also how much they spend. This has long been acknowledged at the level of constituency party campaigning. Surely, whatever else we may disagree on, none of us would want elections to take the form, in terms of expenditure, that is the case in the United States, where the most obscene levels of expenditure are required even to begin to get off the ground. Can the Government focus their attention on looking at the ways in which total expenditure can be minimised, particularly at a national level? At least we could make some progress on that, even if the other side of the equation is more difficult.
My Lords, not only do I feel light-headed, I think I am going to swoon away: I think I agree with the noble Lord, Lord Grocott. Yes, I fully agree with him. As the Deputy Prime Minister has rightly said, this is obviously not the time to try the fundamental reforms that this report, and indeed the Hayden Phillips report before it, recommended. However, there is an opportunity to engage in discussions to see if we can do things within current frameworks to address some of the issues he raised. That would be a very fruitful use of time in this Parliament.
My Lords, while I too agree with a good deal of what has been said, does my noble friend not agree that it would be very dangerous if we were to set maximum levels of expenditure for the parties which were convenient for a party which could attract less than 10 per cent of the electorate, as opposed to major parties which attract somewhere around 40 per cent of the electorate? Perhaps it was a little dangerous for my right honourable friend the Prime Minister to leave this matter in the care of his deputy, who does not seem quite to be on song with the rest of the Government.
For a party that has pretty consistently polled over 20 per cent of the vote in recent general elections, there is certainly no self-interest about the 10 per cent figure. Indeed, we should all wait for the next election, which as we all know, usefully, is in 2015. Four years is a long time in politics.
Given that we are all in agreement, maybe I should say that I agree with Nick.
Given that the Liberal Democrat manifesto promised to get big money out of politics by capping donations at £10,000, would not the best way of ending the big donor culture perhaps be for the Minister’s party to return Michael Brown’s money—money that was not his to give and should never have been accepted?
That was a good growl of approval. It is not for me, as a member of the party of Lloyd George, to lecture anybody on party political funding. However, I have been pressing for party political funding reform all my political life, and I can assure the noble Baroness that this affects all parties. The problem about this culture of forcing our parties to raise big money from big donors, as I have said many times from those Benches and I say now from this Bench, is that the regime is corrupting of our political system, and the sooner we can get rid of it the better.
Crime: Metal Thieves
My Lords, the Government recognise the growing problem of metal theft and are taking urgent steps to address it. Five million pounds has been provided to establish a dedicated national task force to significantly increase enforcement activity to deal with both scrap metal dealers who trade in stolen metal and those who steal metal.
My Lords, that is fine as far as it goes but does the Minister agree with what his Home Office colleague James Brokenshire said in the other place on Monday? Mr Brokenshire estimated that the cost of metal theft may be now as much as £777 million a year and said,
“we have now reached the stage where the only conclusion is that new legislation is needed to tackle metal theft”.—[Official Report, Commons, 12/12/11; col. 508.]
As a vital first step, will the Minister accept my amendment to the Legal Aid, Sentencing and Punishment of Offenders Bill, which would make cash transactions for scrap metal sales illegal, bearing in mind that probably as much as £1 billion out of the £5 billion in this industry is accounted for in cash and is the cause of most of the problems?
First, my Lords, I always agree with everything that my honourable friends say and I agree with absolutely everything that my honourable friend Mr James Brokenshire said on Monday about metal theft. We think that the Scrap Metal Dealers Act 1964 is dead. It is past its sell-by date and we need to look at other measures to properly regulate the scrap metal yards, because that is where the problem is—in dealing with the stolen metal. We will certainly look very carefully at the noble Lord’s amendment, which I have not yet seen, when it comes before us shortly in the legal aid Bill. If we can give it a fair wind or tinker with it, we certainly will because I agree with him that addressing the question of cash in this industry certainly needs looking at.
My Lords, does the Minister agree that the stakes have been significantly raised in this issue, now that it is a question not only of very significant funds but of human lives being put at risk in hospitals, when hospitals have to close and operations have to be postponed because metal has been stolen by thieves? Does that not raise the measure of the issue significantly?
My Lords, the noble Baroness is quite right to raise the issue of the threat to life. Already this year, I think that some six criminals have been killed stealing metal—it is perhaps a higher figure—but in stealing that metal they have caused considerable disruption to power supplies and other things. We know that that has affected not only hospitals but, on other occasions, the emergency services. That is why the Government certainly feel it necessary that we must make moves in the area.
My Lords, the call for tighter regulation of scrap yards, including cashless transactions, is widespread. We know that the industry itself wants to back regulation. I wonder whether the Minister could be a bit more specific on the timescale and when we might expect some real reform of the regulations, including particularly the easy access to cash which supports something causing not only the damage of yesterday that we have heard about but damage in our own case. We have around 10 churches a day losing their roofs. Can we have a timescale?
My Lords, the right reverend Prelate is right to draw attention to the problems that the churches are facing. I recently met his colleague, the right reverend Prelate the Bishop of London, to discuss this issue. He is also right to draw attention to the fact that the industry itself recognises the need for more regulation in this field, which is why we want to go down that route. However, although the industry recognises the need for more regulation, it does not see the advantages of going cashless. I think that going cashless would possibly be the biggest gain to make.
Metal theft has become a really serious epidemic. As the noble Baroness said a moment ago, only about two days ago some copper metal was taken from a hospital in Wales and that resulted in eight operations having to be abandoned. I want to be assured by the Minister that the Government are going to deal with this very urgently and have some plans to deal with these scrap metal dealers as soon as possible.
My Lords, I can give my noble friend that assurance. The important thing to say is that is very difficult to stop the actual theft, given how widely spread all the various metals are. That is why we think the important thing is to deal with the handling, and why we want to deal with the yards. If we could cut off the route for getting money from these stolen metals, we would then cut off the thefts.
My Lords, in view of the danger to life in hospitals and the very possible serious damage to life due to metal theft on the railways, is the Minister satisfied that there are sufficient penalties available once the criminals—either the thieves or the receivers—are caught? I would not normally call for harsh sentences but in view of the salutary sentences given to the rioters, should we make sure that there are salutary sentences for those engaged in this dangerous and life-threatening trade?
My Lords, my memory of the Theft Act is sketchy but, as I remember it, it provides for seven years for theft, something considerably longer for burglary—which most of this would come under—and makes very severe long sentences available for handling. It is the handling we want to get at because it is the fence who deals with the metal who provides the value to it.
Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011
Motion to Annul
That a Humble Address be presented to Her Majesty praying that the regulations, laid before the House on 8 November, be annulled on the grounds that they do not fulfil the Government’s pledge to protect properly faith groups from being compelled to register civil partnerships where it is against their beliefs.
Relevant document: 43rd Report from the Merits Committee.
My Lords, although I am a reluctant rebel today I am very grateful to the Government, and particularly to the Leader of the House, for scheduling the debate and for sticking to the policy of treating this as a matter of conscience. Conservative Back-Bench Peers have a free vote. In fact, all three main parties allowed a free vote when this issue was first voted on in March 2010. At that time the noble Baroness, Lady Royall, said that it raised,
“fundamental issues for religious organisations, and it is therefore right that they are considered as matters of individual conscience”.—[Official Report, 2/3/10; col. 1439.]
I am surprised that the Opposition are now whipping, but that is their decision.
The purpose of my Prayer is to address the widely held concerns that the regulations threaten religious freedom. The Merits Committee has drawn them to the special attention of the House, because of the concerns expressed to it. The House must decide whether we reject them and invite the Government to think again. The regulations are intended to create an entirely voluntary system for places of worship that wish to register civil partnerships. That is the intention and I do not doubt the Government's sincerity, but senior lawyers advise that the interplay between the regulations and equality law could result in legal pressure on churches that do not want to register civil partnerships. That is what I want to address.
In no way am I trying to block these regulations as a means of opposing civil partnerships. I have seen some deeply unpleasant briefing materials and, indeed, have received many obnoxious letters which impugn my motives. I have absolutely no hidden agenda. My sole reason for this Prayer is to attempt to stop churches having their religious freedoms taken away by local authorities or by litigious activists. The House must not pass regulations that fail to fulfil the intention of the Government. The wishes of the noble Lord, Lord Alli, who I am glad to see in his place, should be honoured. He made it clear that he did not wish to see places of worship forced to register civil partnerships against their will.
In the run-up to this debate, there has been so much confusion that I particularly want to make it clear that we must not confuse the registration of civil partnerships in churches with the question of the redefinition of marriage. Marriage remains in law the union of one man and one woman for life, to the exclusion of all others; nothing said or done here today will have any effect on that. The issue is the impact of these regulations as drafted, which seek to allow civil partnerships to be registered—and I underline registered—in places of worship. It is not a question of voting against civil partnerships; it is a question of asking noble Lords to vote for the protection of religious freedoms.
The regulations were laid as a negative instrument on 8 November. Parliament has 40 days from that date to annul them, and that period runs out at the end of this week. Strangely, the coming-into-force date printed on the regulations was 5 December, so technically they are already in force. That date was the Government’s choosing. We still have time to vote them down. If my prayer is agreed today, the regulations will cease to have effect. However, applications by same-sex couples will not be jeopardised, as the local systems have not yet been established. This means that the Government have time to think again about how to implement the proposals, while ensuring that their intention—and I emphasise their intention—of protecting religious freedom is achieved.
The procedure for rejecting delegated legislation which I am invoking today was agreed by the House in July. If the House no longer wanted to have that power, it could have given it away or curbed it. I acknowledge that many noble Lords, especially on these Benches, are reluctant to vote down secondary legislation. According to the Library, we have done so three times in just over a decade—twice in 2000, on the GLA election expenses regulations, and again in 2007, on the casino regulations. I am sure that this is one such situation in which we should act. The regulations are fatally flawed: they put religious freedom in jeopardy. It is always dangerous to take away freedom, but to do so using secondary legislation, which is subject to so little scrutiny, seems especially egregious.
The House of Commons had no opportunity to scrutinise these regulations. As a negative instrument, they did not qualify for the Delegated Legislation Committee. Edward Leigh, the Member for Gainsborough, tabled a Prayer to Annul and tried to persuade the Government to set up a Committee, but this was denied. Thus, the sole responsibility for scrutinising these regulations lies with us. We have no opportunity to amend the regulations; if we had, I would have tabled an amendment. As a revising Chamber, we might have preferred that, but it is not an option. If we think that the Government’s drafting is wrong, we must reject them. This is the only way of asking the Government to think again.
The regulations themselves do not force churches to register civil partnerships on their premises, but offer an opt-in system whereby faith groups wishing to register civil partnerships have the freedom to do so. The regulations contain this statement:
“Nothing in these Regulations places an obligation on a proprietor or trustee of religious premises to make an application for approval of those premises as a place at which two people may register as civil partners”.
But I am afraid that this statement is meaningless, because it only protects against obligations in these regulations. A similar statement was inserted in the Civil Partnership Act by the amendment of the noble Lord, Lord Alli. However, it is not the regulations under the Civil Partnership Act that have the potential to place an obligation. The churches need protection not from the regulation under that Act, but from that under the Equality Act. Having protection under these regulations is like being given protective goggles on a construction site, when what you need is a hard hat—it is protection against the wrong thing.
Professor Mark Hill QC, a leading ecclesiastical lawyer, has produced a written legal opinion which makes the very serious claim that the regulations will result in,
“a curtailment of religious freedom”,
and will compel churches,
“to secure approval for the registration of civil partnerships despite their doctrinal objection”.
This is serious. Professor Hill cites Section 149 of the Equality Act, “Public sector equality duty”, which requires all public bodies to have due regard to the need to eliminate discrimination. This duty applies to local authorities and to the registration officials who are housed and employed by them. These are the people with whom the churches have to deal when they apply for the licence to register marriages.
According to Professor Hill, local authorities could say that the public sector equality duty requires them to oblige churches to register for civil partnerships as a precondition of being able to register for marriage. It is blindingly obvious that a church which performs marriages, but refuses to perform civil partnerships, is discriminating. The church regards this as justified discrimination, simply by being faithful to its religious principles. However, the public sector duty is about eliminating all forms of discrimination. So you can see the problem. Some local authorities would claim that facilitating churches to register marriages, but not civil partnerships, will make them complicit in discrimination.
I know that the Government argue that marriage and civil partnerships are two separate systems, and that the local authority cannot make approval of one dependent on the other. Indeed, the final decision on approving premises for marriages rests with the Registrar General, while the decision over civil partnerships takes place locally. In both cases, however, the application has to be submitted through the registry office, housed at the local authority.
In a separate legal opinion, responding to the Government, Aidan O’Neill QC, a leading human rights lawyer at Matrix Chambers, states that it will be a relevant consideration for, and duty of, the relevant public authority to have regard to how any such approval might impact upon its attempt to eliminate discrimination. He states that although the Marriage Act 1949, which governs registration of churches, allows little discretion, the public authority would still be bound by the public sector equality duty. In order to avoid a conflict between the registration duties under the 1949 Act and the equality duty under the 2010 Act, Mr O’Neill says that a public authority could “read down”—which, as a non-lawyer, I take to mean “re-interpret”—the Marriage Act 1949 to make it compatible with the public authority’s positive obligations under the Equality Act. He suggests that a judicial review might even require it so to do.
It is certainly not difficult to imagine a local authority solicitor advising his chief executive that in all functions, including processing applications for churches for power to register civil partnerships and marriages, the local authority must eliminate discrimination. This would include processing applications only from those churches that also allow the registration of civil partnerships. The application may never be referred to the Registrar General if the local authority applies a filter on the application at the initial stage.
The Church House briefing, which I think everyone has had, argues that because marriages and civil partnerships are different things, the law cannot be used to require a church to provide one just because it provides the other. However, Aidan O’Neill asserts that the equivalence between marriage and civil partnerships is a basic tenet of the Equality Act. The courts are unlikely to view them as two entirely separate services. They have already ruled, in the Ladele case, that being willing to register marriages, but unwilling to register civil partnerships, is discrimination. Mr O’Neill’s opinion, which I have made available to colleagues, shows how churches and denominations could be squeezed by combining the obligations of the Equality Act, the Human Rights Act, the European Convention on Human Rights, and EU law.
We cannot ignore the views of these two QCs. The willingness of Professor Hill and Aidan O’Neill to commit these opinions to writing proves that there are lawyers who are willing to argue these points in court. If there is any risk that these arguments might succeed and that churches could be deprived of the right to register marriage by politically correct local authorities, we must prevent it. We have to get it right first time. Last year the noble Baroness, Lady Royall, actually spoke against the amendment of the noble Lord, Lord Alli, because of the holes in the drafting. She said:
“Our preference would be to get this right from the outset”.—[Official Report, 2/3/2010; col. 1440.]
This is our last chance to get it right. We cannot put the churches in the legal firing line and sort it out later.
I received a copy of the Minister’s letter yesterday, which says that,
“if a successful legal challenge were ever brought, I would like to provide reassurance that the Government would immediately review the relevant legislation”.
I suggest that this is not good enough. We must get it tied down, guaranteed and cast-iron now.
The churches might win out in the end, of course, but why should they face the cost, the fear and the chilling effect of sorting out a legal mess created by Parliament? We know that some people would like to force churches to register civil partnerships. The chief executive of Stonewall said that right now faiths should not be forced to hold civil partnerships, although in 10 or 20 years’ time that might change. Mike Weatherley, the Conservative MP for Hove, has more immediate plans: in a letter to the Prime Minister this year he called for churches that refuse to register civil partnerships to be banned from registering marriages. In a nutshell, this is what would happen if these regulations are not annulled.
We have watched the progress from permission to coercion before now. In 2003 we legalised joint adoption by same-sex couples; that was permissive. However, when the sexual orientation regulations were introduced, even though they were not specifically about adoption, it suddenly became compulsory for Roman Catholic adoption agencies to take part in same-sex adoptions. How permissive is that? As a result of the overlap between the permissive provisions and the obligations of equality law, all but one of the English Catholic agencies have either closed down or been secularised. Holes in the regulations must be plugged or someone somewhere will exploit them.
Officials at Church House are not concerned, of course—the Church of England does not have to apply to registrars to register marriages—but surely they ought to be concerned about other religious denominations and independent churches that rely on the good will of local authorities. I have had so many letters on this subject from churches that I did not even know existed. The secretariat of the Roman Catholic Church prefers the Government’s interpretation of the regulations but admits that there is a risk. It says:
“If, of course, there were an opportunity for the Regulations to be revisited at this stage, then they should include … a statement explicitly to put the matter beyond doubt”.
I reiterate that I am not talking about redefining marriage or about trying to unpick the Civil Partnership Act. I am talking about the particular mechanism that the Government have chosen to legalise civil partnership registration on religious premises. I accept that it is the Government’s intention to introduce a voluntary regime that protects churches. I urge the Minister to agree to my Prayer, withdraw the regulations and go away to think again about whether the Government really have done enough to achieve this voluntary regime.
Aidan O’Neill QC argues that the only way to protect the churches is an amendment to the Equality Act. The Scottish Government, who are considering their own plans to allow religious civil partnership registration, have the same view. If leading QCs are not convinced, the Government have not provided reassurance despite their wish to do so. My Government need to go away and think again. I beg to move.
My Lords, I wanted to start by arguing that this issue has already been debated at length in your Lordships’ House and that the opinion of the House had already been made clear. Then I came to my senses and remembered that I was actually in your Lordships’ House, so I disposed of that line of argument.
I shall move on to the substantive issues and tackle first the intention of the clause to which these regulations apply. Noble Lords may recall the amendment that I originally proposed with the noble Baronesses, Lady Noakes, Lady Neuberger and Lady Campbell, who I am very pleased to see in her place today—I know that she has been very ill recently, and for her to come here was a great kindness. The regulations did not and do not place an obligation on any religious organisation to host civil partnerships if it does not wish to. I shall read once again the actual words in the Act:
“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so”.
How can such a clear statement of intent be twisted into forcing religious organisations to host civil partnerships in their buildings against their will? I shall tell the House how I think it happens. First, you take a spurious argument. You dress it up in legal language; find a senior QC or two, and preferably a professor, and get them to write a lot about very little. Then you throw in a large dose of prejudice, and finally you add that secret ingredient: fear—in this case, fear that people will be coerced into acting against their conscience. It is a heady cocktail and its purpose is simple: to make good people with good intentions do things that otherwise they would not do.
That is how it is done. What has always confused me is why we continue to drink that cocktail when we know what goes into it. It has always confused me that decent, hard-working people continue to listen to extreme views built on half-truths. We know that they are half truths but some kind of politeness stops us from challenging them. That needs to stop. We need to call an untruth an untruth, a lie a lie, an opinion an opinion and a fact a fact. We must not develop the politics of the Right in America, where it does not matter what the actual truth is, whether any prosecution would actually succeed or whether or not it really is a conscience vote. All that matters is how big your microphone is and how controversial your views are—nothing to do with truth, fairness or justice.
I say, with the deepest respect: is it not about time that a Government who know that this is not a conscience vote put a three-line whip on all their Members, not just their Ministers? At this point I normally thank the Minister for his help and support, and indeed I am sure that he knows I do so now. I suspect that thanking him will do neither him nor me any good, but I do so anyway.
Is it not time also that Front-Benchers of all parties, who know that this is not a conscience vote, stand up and say so? Is it not time that those who hold legal opinions admit that no one believes that a legal action would succeed in this context, because of the very conscience clause that is in the Act? We should be better than this. This House is a place where truth should win out and the arguments should be about the big issues—good, evil, right and wrong. It is a place where the facts should be respected and the kind of misinformation that we see peddled in our postbags rubbished for what it is.
In the run-up to this debate, I have asked myself, “What is it that those who seek to annul these regulations hope to achieve?”. It is simple: they do not want same-sex couples to celebrate their partnership in any religious building. They argued against the original amendment. They simply do not care if the religion concerned wants to host these celebrations or not; it is their way or no way at all. That is simply wrong. This provision is all about religious freedom. It is about allowing churches and religious organisations the freedom to decide whether or not they wish to host civil partnerships. It is about removing the civil law from those discussions. It is about allowing each faith to decide for itself what is best for it and its congregation. It is fundamentally about religious freedom.
I know that this is a difficult issue for some churches, but the legal opinions of even the Church of England and the Catholic Church confirm that no church will be forced to approve its premises and that the public duty that the noble Baroness talks of simply does not apply. If you cherish religious freedom, there is a bigger principle at stake—the principle that means allowing the Quakers, the Liberal Jews or the Unitarian Church to make their own decisions on civil partnerships in their own religious buildings.
I shall end by saying a little about what I believe I have learnt that this House can and cannot do. We should not fashion our laws around the convenience or inconvenience of any particular religion. We cannot stop a gay Catholic man from suing the Catholic Church. We cannot stop a gay Anglican from suing the Church of England. For that matter, we cannot stop a straight man or woman from doing the same. We in this House cannot stop people from going to court. The question is not, “Can they make a case?”—in my experience, a good lawyer can always make a case—but, “Will they win?”. On that there can be very little doubt: the answer is no. However, should any in this House feel unconvinced, please draw comfort from where we started and from what is written in the Act:
“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so”.
That is the law that we passed. It is a debate that we have had. This procedure should not seek to frustrate the will of this House or indeed of the other place. We should see off this Prayer to Annul and its bogus claim to seek to protect religious freedom. Should the noble Baroness decide to test the opinion of the House, I hope that noble Lords will join me in the Lobby. I beg to oppose.
My Lords, we complain when primary legislation is not commenced or implemented. The first instinct of the noble Lord, Lord Alli, was absolutely right, though he then extended his arguments. We also complain when legislation is not clear. This is not the case today. The Merits Committee, of which I am a member, did not make a judgment on the merits of the substance of this order. It used its entirely standard language, drawing it to the special attention of the House on the grounds that,
“it gives rise to issues of public policy likely to be of interest to the House”.
That statement is quite uncontentious.
I can see from those already attempting to intervene that we will hear today closely argued analysis of a construction of the words “Act”, “authority” and “services”, and I am always glad to recruit such expertise to the cause. Essentially, however, the issue is, “Does the order do what Section 202 of the Equality Act provides?”. I believe that it does. Or, “Does it require any individual or organisation to do what they do not wish to do?”. I believe that it does not. The order cannot trump primary legislation, nor can it require what the Act itself precludes. As we have been reminded, primary legislation says that nothing places an obligation on religious organisations to host civil partnerships if they do not wish to do so. If there are differing views within an organisation, that is not a matter for government.
The noble Baroness uses in her prayer the word “pledge”. It is not a pledge—or rather, it is more than a pledge—because the words are in Section 202. That section is surely permissive: it is an opt-in, not an opt-out. We know there are objections to it, but that was a matter for 2010. I say that to those who would like to extend that section, as well as to those who would like to see it interpreted restrictively. To attempt now to reverse it, extend it or block it, is inappropriate.
I will be quick because there are so many noble Lords who wish to speak. I find it very difficult to see anxiety engendered among people with a particular view. I do not like to see people fed fear. I realise that something that may seem entirely reasonable to me may seem very prejudicial to you, whoever you and I are—that is, whichever side of the argument one is on. I will end by voicing what others might see as my own prejudices. That 46,000 couples have entered into civil partnerships is wonderful; 92,000 people have been able to give formal, legal expression to their relationship. It is a paradox that some who advocate celebrating marriage within a faith oppose extending it to other stable relationships. I welcome the order and look forward to taking forward Section 202.
My Lords, I speak as a lawyer today. I concede my obligation to the House to set out my genuine view, because this is a legal issue and because I was formerly the Lord Chancellor. The noble Baroness, Lady O’Cathain, and the noble Lord, Lord Alli, agree the basis upon which Parliament—not only this House—passed the amendment to the Civil Partnership Act which abolished the prohibition on civil partnerships being registered in places of religious worship. My noble friend Lord Alli said at the time that there was no disagreement about this.
From the outset I want to make very clear that the amendment does not place any obligation on any religious organisations to host civil partnerships in their buildings. We made that clear by including in the amendment the words:
“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host Civil Partnerships if they do not wish to do so”.
There is no doubt that that was the basis on which the provision was passed. If we have not given effect to that provision, we should not agree to these regulations. The only issue today is therefore whether as a matter of law we have given effect to it. It is for the House to make a decision about this. It is always possible to find a lawyer who says that something is arguable. It is for us to go through the provisions today and form a view about whether or not, contrary to our intention and to that of the House of Commons, we have somehow failed to achieve it.
I will very quickly go through the basic provisions so that we arrive at a clear answer. Section 2 of the Civil Partnership Act makes the moment at which a civil partnership occurs the moment at which the two partners sign the civil partnership document. Section 6 of the Act—this is, before the amendment—says that that signing can take place either at a registry office or at approved premises. It sets out provisions for premises to be approved by somebody called the registration authority. The registration authority is the local authority. The Civil Partnership Act gives the local authority discretion over whether or not they register premises. Section 6 of the Act as originally passed says that civil partnerships cannot be registered at religious premises. Section 2(5) says—and this provision remains—that there should be no religious element in relation to any registration of a civil partnership.
The amendment of the noble Lord, Lord Alli, which was supported by Parliament, did two things. First, it removed the prohibition on religious premises being used for civil partnerships. It retained the approval process, so that local authorities still approve whether premises—including religious premises—can be used for civil partnerships. Secondly, it added to the Civil Partnership Act words to the effect that for the avoidance of doubt, this does not compel any religious organisation to host a civil partnership ceremony if they do not want to.
That is the legal framework that we now have to look at. On the basis of that legal framework, my initial conclusion is that Parliament has made its intention absolutely clear: Parliament does not want to compel anybody to host registration of civil partnerships unless they want to.
I wondered what could conceivably be the argument that we have failed to express our intention clearly. I have read the two opinions that have been provided on this. I will do my best to summarise them fairly and set out why they are plainly wrong, although not lacking in bona fides. The first argument, which was advanced by Professor Mark Hill QC in his opinion dated 8 November, is that because the regulations say that—for the avoidance of doubt—the law does not compel anybody to host a civil partnership if they do not want to, the regulations saying it would not, alone, be enough. I completely agree with that. A regulation saying that hosting is not required would have no effect at all if the position was that the primary Act of Parliament did not get rid of the risk of any discriminatory legislation. However, the primary Act of Parliament does contain the prohibition, so it seems clear that Professor Hill is wrong about that.
I looked through Professor Hill’s opinion to find out what he said about the main provision in the Act, which appeared to be the critical provision. He said that Section 202, in referring to an Act, refers to the Civil Partnership Act and not to the Equality Act. I found that wholly unconvincing because the risk which the noble Baroness, Lady O’Cathain, and the QCs identify is that there are provisions in the Equality Act, except for the purpose of this argument, that might be said to create a risk of some sort of action arising from the fact that you perform civil partnerships but not marriages, or the other way round. It seems to me beyond argument that the intention of Parliament must have been to get rid of that risk by putting in the very same Act the phrase,
“For the avoidance of doubt, nothing in this Act”,
gives rise to the risk of any compulsion. For Professor Hill’s opinion to be correct, you have to assume that this House and the Commons were unaware of the risk that the Equality Act could give rise to litigation when they put into the very same Act a statement that said that allowing churches to host civil partnerships does not lead to any church being compelled to host one. I cannot think of a judge who would give effect to such a nonsensical argument.
8 November was the date on which the advice of Professor Mark Hill was obtained. His advice came under some legal attack. Noble Lords will know that the legal advisers of the Roman Catholic Church, the Church of England, the Home Office and the Equality Commission have all said that there is no legal risk. Reinforcement was obtained from Mr Aidan O’Neill QC. I am very grateful to the noble Baroness, Lady O’Cathain, for providing a copy of his advice. He gives a lot of ground in relation to it, recognising the difficulty that exists.
I apologise. Mr O’Neill says that since Section 3 of the Human Rights Act requires statutes to be interpreted as much as possible in accordance with the European Convention on Human Rights, that section might, arguably, give rise to the possibility that it could be construed away or read down. However Mr O’Neill, who I do not criticise at all, is an honourable man. He rightly sets out the basic law in relation to reading down under Section 3. He says that the only limitation on Section 3 of the Human Rights Act, on interpretive obligation, according to the House of Lords decision in Ghaidan, is that in reading words into the legislation, or in deleting offending words, the courts have to be satisfied that such emendation could not be said to “go against the grain” by overriding some cardinal feature of the legislation in question, or otherwise raise generally policy issues that a court cannot properly seek to resolve by a process of judicial rewriting. That is what Mr O’Neill, the person relied upon by the noble Baroness, Lady O’Cathain, said.
I also quote the words of the noble and learned Lord, Lord Hoffmann, from a leading case on this subject:
“But, with the addition of the Convention as background, the question is still one of interpretation, i.e. the ascertainment of what, taking into account the presumption created by section 3, Parliament would reasonably be understood to have meant by using the actual language of the statute”.
I do not overstate my opinion when I say this about the suggestion that the provision inserted by my noble friend Lord Alli can be interpreted in any way other than as saying that there is no obligation: the argument that it could be read down under Section 3 of the Human Rights Act is hopeless.
The noble and learned Lord has given a splendid exposition of the law of the United Kingdom. Can he assure us that there is no vestige of a chance that European law, either through Brussels law or the law that falls from the European convention, could override the British courts? After all, it, not this House, is now the ultimate authority on our legal affairs.
In general terms I can give no assurance that the European courts cannot override the British courts on this. Indeed, they can override this Parliament. However, with respect to the noble Lord, Lord Tebbit, that is not the issue that this House is addressing today. The House is addressing a simple issue of English law and it has been accurately put by the noble Baroness, Lady O’Cathain: does the legislation that we passed give effect to the intention of this House? That is a question of interpretation of English law. I have no doubt that it gives effect to it because it is so clear. I have read both opinions very carefully and my view is not shifted by them.
I make two further points. First, Professor Hill QC and the noble Baroness, Lady O’Cathain, who accurately reflected this argument, said that there was some risk that local authorities would try to punish churches that did not agree to host civil partnerships by saying that they could not have the authority to conduct marriages. I have absolutely no doubt that there is no foundation for that in even the existing law. Section 41 of the Marriages Act 1949 lays down a process whereby there is no discretion in the local registrar, who is a separate person from the local authority. The person who decides whether a church is entitled to solemnise a marriage is not the local authority but the Registrar-General. He has no discretion in that matter once it has been resolved in terms of the statutory requirements. The legal foundation of that does not exist.
The second point made by the learned professor is that the regulations—not the Act—say that an application can be made by a trustee or a proprietor of the church. He gives rise to the possibility of doctrinal debates in churches about this and one trustee applying when the congregation does not want it and the minister or the priest perhaps does not want it. That is a policy consideration that the state has been concerned about and has made specific provision for. The Government say in relation to their response:
“Following concerns about ensuring that the local congregation is made aware of an application in respect of the premises they use for worship, we will make clear in guidance and on the application form that best practice is for the proprietors or trustees of the premises to make their congregation aware … In addition, each application will be required to be advertised by a local authority and is subject to a period of 21 days’ public consultation, providing further safeguards against applications being made without the knowledge of the relevant congregation”.
I do not think there is any statute in the world that would be able to provide for disagreements within a church about doctrinal issues. What the state has done—and I commend the state for it—is to follow the approach taken in the Marriage Act in relation to the solemnisation of marriage, and this has caused no trouble over hundreds and hundreds of years.
My legal opinion is absolutely clear. Although I completely respect the sincerity of the noble Baroness and completely accept the bona fides of the QCs, there is nothing in what they say and you can be confident that, even though I can give no guarantees that nobody will bring litigation—there is bound to be somebody who will—it only requires one case to deal with it.
Before the noble and learned Lord finishes his extraordinarily useful and helpful speech, could I ask him to come back for a moment to one of the issues raised by hundreds of my correspondents—many noble Lords will probably have similar numbers of correspondents on the subject; I have hardly ever seen so many except for health—which is whether the Equality Act, if approached on the grounds of discrimination, would be able to overcome the specific amendment to which he has referred on both major pieces of legislation? It would be helpful for all of us, in replying to that very powerful public opinion, to know the view of the noble and learned Lord—as the previous Lord Chancellor—on this topic.
My unequivocal view, which I have been trying to express, though rather badly, is that the provision that the noble Lord, Lord Alli, and I have quoted has the effect of making sure that no discrimination proceedings can be brought under the Equality Act or under the convention in English law as a result of a church saying no to civil partnerships being solemnised on their premises. That is the problem and I am absolutely clear that there is no possibility of discrimination legislation, based on the Equality Act, as a result of the drafting of Section 202.
There is also a broader point of principle. We should not, as a House, be knocked off doing what we decided to do by the opinions of two Queen’s Counsels. We should be clear that we achieved our intention. We used simple language. There is no doubt about what it means and I have absolutely no doubt that the courts will give it effect. I have reason to believe that it might be said that it would be quite easy to amend the provisions, using a provision of the Civil Partnerships Act under Section 259. This would take time, but it would be quite easy to do. It is, however, utterly unnecessary because we expressed our views utterly clearly and the courts will give effect to them.
My Lords, I, too, am most grateful to the noble and learned Lord, Lord Falconer, for an extraordinarily erudite narrative. I am also grateful to the noble Baroness for initiating the debate because it gives us the opportunity to look at this very important and sensitive issue of the regulations. I have been much exercised, as I am sure many of you have, by the conflicting opinions I have received. I very much wish the issue were clear-cut, and perhaps it really is. However, for reasons I will explain, I will not be able to join the noble Baroness in the Division Lobbies if she pushes it to a vote.
I say that with real regret, because I entirely share the noble Baroness’s passionate concern for safeguarding religious liberty which is one of the tap-roots for all liberty. Those who hold to the traditional ethical teaching on sexual morality of the Christian churches and many other faiths can too easily be accused of being homophobes. The implication is that, if persuasion does not work, we may have to resort to coercion, which would be a profoundly wrong approach.
The question before us today is whether these regulations do in fact interfere with religious freedom. Having considered the issues carefully and tried my best to understand the conflicting legal opinions of the distinguished lawyers with whom I have also been in touch, I am not persuaded that they do give us that danger. There could, in principle, be two possible arguments for opposing the regulations. The first would be to register opposition to the principle of allowing civil partnerships to be registered in places of worship. The second would be because, although the principle is accepted, these particular regulations were deficient.
On the first point, although it is history, it can be argued that the change in the law agreed by Parliament last year does have its curious features. To say, as the law now does, that civil partnerships can be registered in places of worship but without any religious element taking place in the registration is, on the face of it, quite odd. Moreover, denominations wishing to offer services of blessing following civil registration can already invite people to come to the church or synagogue after the registration and have that element there. Parliament rehearsed these arguments last year and was persuaded that, if people want to register their civil partnership and have a religious ceremony at the same time and in the same location, then legislation should not get in the way of their doing so. That was essentially for religious liberty reasons. The Quakers, the liberal Jews, the Unitarians and anyone else who wanted to host civil partnership registrations should be free to do so, but not forced to do so. I do not, therefore, see a sufficient case for opposing these regulations on the first of those two possible grounds.
For me and, I am sure, for all of us here, everything turns on the second issue which is whether these regulations and, indeed, the Equality Act to which they give effect, are defective. By defective, I mean whether what is meant to be an option would, in fact, become a duty. Will churches and chapels be at risk of litigation? We non-lawyers are in the hands of the experts here. I can muster only a 40 year-old Oxford law degree which is quite inadequate for the task. However, the advice of the legal office of the General Synod is clear that it will be perfectly lawful for churches, chapels and other places of worship to decline to register their places of worship as premises for civil partnerships. That advice has been unequivocally endorsed by the standing counsel to the Synod, Sir Anthony Hammond QC, who was previously Her Majesty’s Procurator General and Treasury Solicitor and Queen’s Proctor. It is also the view of the Government’s lawyers and other senior lawyers not unknown in these erudite precincts, one of whom we have just heard from.
In addition, for the Church of England and certain other denominations, there would have to be a policy decision at the national level from the relevant body—in our case the General Synod—before any church could seek to register. I know that the Christian Institute has commissioned legal opinion from the two separate QCs we have heard about, who take a different view to the lawyers I have mentioned. This is disturbing, and I look to the Minister in responding to this debate to read very carefully into the record his own understanding of the position. In particular, I would like to hear him assure the House that, in the wholly unexpected event of the courts taking a different view from the massed ranks of government lawyers, church lawyers and other lawyers to whom I have referred, we would have either primary or secondary legislation to sort the problem out. I am sure that assurance can be given.
I have the highest regard for the professionalism and integrity of the lawyers of the General Synod, who also advise the House of Bishops. In the light of their advice, it is not clear that there is anything in these regulations or last year’s legislation which needs to be changed. They appear to me to preserve the ability of the Church of England and all other churches and faiths to decide their policy on these matters in the light of their own beliefs and teaching. I regret coming to a different conclusion from the noble Baroness; I would like to have stood with her in support of religious liberty, which is essential to a civilised society, but on the balance of arguments I believe the safeguards are already in place.
Let me say one final word before I conclude. It is hardly a secret that the Church of England along with many other religious traditions continues to wrestle with the underlying ethical issues. We are likely to go on doing so for a considerable time. I have taken part in many of those internal debates and they are at their best when characterised by a spirit of restraint, mutual respect and generosity.
Given the litigious nature of our society, it is only right that we should look at regulations on a sensitive subject such as this with a good deal of care. I am grateful that so many noble Lords and noble Baronesses are here to do that. Nevertheless, I would urge from these Benches that this debate is characterised by that same restraint, mutual respect and generosity that I just mentioned. Those are the qualities by which religious, and indeed all, liberties are best nourished and protected.
My Lords, it is a great pleasure to follow the right reverend Prelate and we should be extremely grateful for the insight and human quality that he has brought to the House. I think that the whole House would wish to dissociate itself from any unpleasant comments and criticism that have been directed at the noble Baroness who has moved this Prayer to Annul. She is rightly held in high regard in this House and no one should doubt the sincerity of her position.
The debate has moved on considerably since I prepared my notes and I shall therefore be brief and summarise my views. I am not a lawyer and I speak in a purely personal capacity. I approach this matter from a more social point of view. Successive Governments deserve great credit for the sensitivity and understanding that they have demonstrated in handling the registration of civil partnerships under the 2004 Act and the way in which they have demonstrated equal sensitivity under the Equality Act 2010. As a result of these pieces of legislation and the regulations that have been provided, it seems to me, from a lay point of view, that the churches have all the necessary freedoms and safeguards that they may wish to have. This is well illustrated by the fact that the churches will have to make their own decisions to opt in to these arrangements. It is certain that there is nothing in this legislation that in any way promotes a particular lifestyle.
I am a member of the Church of England and I have the honour to represent your Lordships on the Ecclesiastical Committee. I am a great admirer of all faiths and therefore find it very difficult to appear to be critical. However, I do so with kindness because I would not be being faithful to my beliefs if I failed to say that it has saddened me, and no doubt many others, that the churches have not been in the vanguard of promoting equality in our society. The way in which the Government have tackled this sensitive area is very worthy and credible and I very much hope that in approaching this matter the churches will follow that example.
We Anglicans like to say that we are part of a broad church. That is true theologically, but it may not be necessarily true socially. I hope that in approaching these matters we will not only be gracious to our fellow human beings but generous and understanding. I hope that this Prayer to Annul will be rejected by the House.
Lord Mackay of Clashfern: My Lords, it is absolutely plain that the noble Lord, Lord Alli, and those who supported him in the amendment moved in the debates on the Equality Act 2010—Section 202—were clearly of the view that no obligation should be placed upon any religious body to host a civil partnership if they did not wish to do so. That is absolutely plain. What is more, they were prepared to put into the amendment a statutory provision that declared that nothing in this Act would place an obligation on religious organisations to do so.
That amendment was made by the Equality Act 2010, but it was made to Section 6A of the Civil Partnership Act 2004. If you go along to the Printed Paper Office and ask for a copy of the 2004 Act, you will discover that it contains no Section 6A. That is because Section 6A was put into the Act by a regulation in 2005. That regulation was made under a provision in the Civil Partnership Act allowing statutory amendments to be made in respect of the Acts that were passed before the end of the Session in which the 2004 Act was passed. Therefore, any enactment contained in an Act passed before the end of 2004 can be amended by statutory regulation, using the affirmative procedure.
The point that arises in this case is a short one and I am not going to go into the opinions of the QCs. Noble Lords have had the great advantage of hearing another QC giving an opposite opinion—and it is not infrequent that that happens. I am going to give no opinion at all about the correctness or otherwise of the provision. They are practising QCs. They have signed their opinions, they are genuinely held and they illustrate a doubt—that is all—about the effect of the Equality Act on these regulations.
My point is that the amendment that the noble Lord, Lord Alli, and his colleagues put forward, which was accepted on a free vote in this House and the House of Commons, refers to nothing in this Act, but only to provisions in the 2004 Act. The opinion of these Silks is that the risk arises not from the provisions of the 2004 Act but from the provisions of the Equality Act 2010. To my mind, this issue can be completely set to rest by a simple amendment. Instead of saying “nothing in this Act shall”, the provision would say “nothing in this or any other Act shall”. The Government could do that without difficulty because I am sure we are all agreed that we mean to exclude any attack on the basis of the Equality Act.
Leaving aside altogether the argument about the declaratory provision, does the noble and learned Lord accept the opinion given, for example, by the Church of England's lawyers, with which I fully agree, that in any event, under the Equality Act, there could not conceivably be unlawful discrimination in the provision of goods, services and facilities, nor could there be a breach of a public sector duty because no public function is exercised by religious organisations? Therefore, quite apart from the belt-and-braces declaratory provision, there would be no conceivable case of unlawful discrimination.
Two QCs have reached the opposite conclusion. I am not sitting as a judge here. I am seeing that that has happened. Those people have raised a doubt. It is for the avoidance of doubt, not for the avoidance of actual provisions that have such and such an effect. The noble Lord, Lord Alli, was careful to understand that people would be very ready to raise doubts in this area if they could. Therefore, he put in a clear provision for the avoidance of doubt. The only problem about it is that his amendment deals with doubts that arise from the Civil Partnership Act. I have not heard anybody say that there is a doubt about this matter arising from that Act. The doubts, if they exist—they have been raised by practising Silks—arise from the Equality Act. I say that that can be simply dealt with by consent, because we are all agreed—so far anyway—that there should be no obligation arising from the Equality Act, or from any other Act for that matter, on any religious organisation to host civil partnerships if it does not want to.
My noble friend Lord Henley sent a letter to us all last night in which he states the Government’s position. He states at the bottom of page 1 that,
“the regulations cannot override primary legislation”.
It is true that these particular regulations cannot, but there is power for a Minister of the Crown, under the relevant section of the Civil Partnership Act, by affirmative resolution to amend an enactment contained in an Act passed before the end of the Session in which the 2004 Act was passed.
This issue has raised a lot of concern among a lot of people. All of your Lordships will have had letters. I have had more letters than I could answer myself without assistance—which I do not have, because I do not wish to charge the taxpayer for helping me. I try to help myself as far as I can. I have had a tremendous number of letters from ordinary people, as well as from a professor and a QC. Of course, another QC of great distinction says that that is all nonsense and that the other QCs are all wrong. People are accustomed to hearing QCs differ, but a difference of opinion between QCs is the sort of thing that causes doubt, which is the very thing that the noble Lord, Lord Alli, had the vision to see should not be allowed to happen.
The only problem is the extent to which that protection was afforded. I see no obstacle to the Government amending the amendment of the noble Lord, Lord Alli, to state “nothing in this or any other Act” shall impose an obligation on any religious organisation to host a civil partnership if it does not want to. I urge the Minister to undertake to do his best—I think that would be the word—to bring forward such an amendment. In that case, I would be happy that the Prayer was not persisted with.
My Lords, I very much respect the principled views of the noble Baroness, Lady O'Cathain, but this is not a matter of conscience, it is a matter of legal interpretation. As the noble and learned Lord, Lord Mackay of Clashfern, said, the question is whether there is any real doubt as to what a court would say on the matter. Your Lordships may have found it rather striking that the noble and learned Lord did not give the House any opinion at all as to the answer to this question; he confined himself to saying that views are expressed by QCs on this matter. In my experience of this House, it is rare for the noble and learned Lord not to give the House his very welcome opinion on issues, and I am sorry that he gave the House no opinion on the credence that could be attached to the opinions that have been expressed.
My view, for what it is worth, as a barrister practising in the area of human rights law and administrative law, is that there is no possibility whatever of any court accepting the arguments that have been advanced in those opinions. That is for two reasons. First, the court would focus on Section 202. It would recognise that Parliament has expressed in the clearest possible terms that religious bodies have a power to conduct civil partnership ceremonies but no duty whatever to do so. The regulations faithfully implement what Parliament has decided
The noble Baroness, Lady O'Cathain, expressed a concern that had been expressed by her advisers that that is not good enough because it is the Equality Act that, as she put it, poses the danger. The noble and learned Lord, Lord Mackay, made the same point. My answer to that concern is that it is the very Equality Act that expressly addressed civil partnerships and allowed civil partnerships to be conducted on religious premises for the first time but made it absolutely clear that religious bodies have no duty to conduct such ceremonies.
I entirely accept that, but it is the Equality Act that addressed this very question of the circumstances in which religious bodies may, but have no obligation to, conduct civil partnership ceremonies. It therefore seems to me highly unlikely that any court will say that that very legislation, the Equality Act, nevertheless imposes indirectly some duty on religious bodies to do precisely what Section 202 of the same Act states that they do not need to do.
Secondly, if there were any ambiguity in the Equality Act—there is none, but if there were—a court would interpret the Equality Act by reference to the right under the European Convention on Human Rights and by reference to Section 13 of the Human Rights Act, which this Parliament enacted, which states that on any question that might affect the exercise by a religious organisation of the right to freedom of religion, the court must have particular regard to freedom of religion. It is plain beyond argument that the court would therefore say that a religious body has no duty to do what would conflict with the religious rights of the church or other religious body concerned.
Earlier in this debate, the noble Lord, Lord Tebbit, asked for assurances that the European Court would not interfere in this matter. I would be extremely surprised if the European courts would trespass on a fundamental question of religious freedom, but if they did, nothing that we decide today would affect that—it is simply irrelevant to this debate and therefore cannot be used either to support or to argue against the Prayer that the noble Baroness presents to the House.
I submit that this Parliament must proceed by what we recognise is the overwhelming probability. We cannot legislate on the basis of something that would be wholly contrary to what Parliament has decided as recently as 2010. I say with great respect to the noble Lord that the attitude of the European Court is completely irrelevant to this debate.
I have to tell noble Lords that if I were asked to advise a client on the prospects of success for someone who wished to compel a religious body to hold a civil partnership ceremony against its will, my advice—and, I am sure, the advice of every other competent lawyer practising in this field—would be that any such application would be completely hopeless and misguided. Therefore, I hope that the noble Baroness will withdraw her Prayer for annulment.
The noble Lord took great comfort from the Human Rights Act, which of course dates back some time before the 2004 and 2010 Acts came into being, yet the noble Lord, Lord Alli, and those with him, thought that it was wise to put into the 2004 Act an avoidance of doubt provision. Therefore, they were not prepared to trust the Human Rights Act provision alone to avoid any doubt that might arise. Such a provision does not suggest that there would be a legitimate attack; it simply suggests that doubt is to be put at rest completely, and that is what I should like to see here.
My answer to the noble and learned Lord is that in 2010, when the noble Lord, Lord Alli, was seeking to persuade the House to create for the first time, contrary to what had been decided in 2004, a power for religious bodies to conduct civil partnership ceremonies, it was perfectly understandable that it should be made clear that this was a power but not a duty. We had that debate and resolved the matter. There is no ambiguity and we really do not need to revisit it.
Given the protection for religious freedom that the noble Lord, Lord Pannick, has just described, why did the Equality Act and the Human Rights Act not permit a Jewish school to continue its religious freedom in maintaining the definition of Judaism that had prevailed in the Jewish religion for thousands of years?
As the noble Baroness knows very well, that case raised completely different issues. No specific provision in the Equality Act addressed that question. I have to declare an interest. As the noble Baroness well knows, I was the counsel who acted for the JFS, the Jewish Free School, in that litigation, and the problem was that there was no specific provision. By contrast, the Equality Act addresses this very question and it does so in the clearest possible terms.
My Lords, of course I share the concerns expressed by others about how these regulations might affect other churches. However, like my brother the right reverend Prelate the Bishop of Oxford, I should like to say how I think these regulations might affect the Church of England, although I shall perhaps be looking through a slightly different part of the lens.
At the moment, the Church of England, through the General Synod, has not expressed any desire at all for its churches to be used for registering civil partnerships. Therefore, it might be thought that I should be very content to rely simply on the provisions of the regulations that would require the consent of the General Synod to be given before any Church of England church could be approved for registering civil partnerships. However, it seems that this provision is not without difficulty. As your Lordships will know, we have special procedures in General Synod for matters that affect the doctrine or liturgy of the church. It could be thought by some that allowing churches to be used for civil partnerships would affect the doctrine or worship of the church. If so, those special procedures would come into play.
The provision in the schedule to the regulations talks simply about requiring the consent in writing of the General Synod without defining how that consent is to be obtained. If at some future date the proper consent of General Synod were obtained, there could still be difficulties for individual clergy. There are, as we have heard, a variety of legal opinions about whether a claim for discrimination against a priest who refused to allow his or her church to be used for registering a civil partnership would succeed. However, at the end of the day, clergy should not be put at risk of having to defend such claims, even if they seem unlikely and their prospect of success seems remote.
It seems clear, however, that an incumbent who refused to allow his or her church to be approved for civil partnerships would gain no protection from Regulation 2B, because the obligation not to discriminate comes not from the regulations but from the Equality Act. Regulation 2B would appear to be nothing more than window-dressing, and it shows how unsatisfactory these regulations are. There may be good intent but the promised conscience clause simply is not there. It cannot be there in regulations; either the Equality Act or the Civil Partnership Act needs to be amended to provide the necessary clause. I would want to see an express statutory conscience clause similar to that contained in Section 8 of the Matrimonial Causes Act 1965, which provides that no priest of the Church of England or the Church in Wales can be compelled to allow their church or chapel to be used for the solemnisation of a marriage of a divorced person whose former spouse is still living.
As the General Synod has not expressed any desire for Church of England churches and chapels to be approved for registering civil partnerships, there is surely no need for the Church of England to be included in these regulations at all. Indeed, it should be expressly excluded from them; otherwise, might it look as though Parliament is breaking what I understand to be the convention that it legislates for the Church of England only when the church has asked it to? If at some future date General Synod decided—
I think that the legal advice given to the Church of England in some areas may be open to question. Let us be honest: we have received various pieces of advice—noble Lords here have said that they have heard from many, many people, including lawyers.
If at some future date General Synod does decide that it wishes to allow its churches to be used for registering civil partnerships, then there is a simple procedure: we pass a Measure and we bring that Measure to Parliament using the established statutory procedure under the enabling Act of 1919 for Measures of the Church of England. Such a Measure could amend existing statutes and regulations as necessary to achieve the desired result, including the essential conscience clause of which I have spoken.
My Lords, I rejoice that many Christians and some churches have acknowledged that for some men and women, a loving, committed, intimate, faithful relationship can happen only within a same-sex partnership. I want to delight in that. I want to celebrate it with ceremony and joy, and I want those couples to be encouraged to take their rightful place in creative responsibility and participation in all society. I also want to learn from them the things that God is saying about His grace being given to human beings who are made in His image in infinite variety.
I am well aware that my theological viewpoint is vehemently opposed by many people, including many in this House, but it is a legitimate viewpoint that I could argue with many people. I hope today that while it is obvious that this legislation for registration of civil partnerships in religious buildings is permissive, I do not want it to be made obligatory but neither do I want it to be prohibited. Many churches have the right through their decision-making processes to determine their own theological position and to be able to follow through with many people what is for them the root celebration of their whole being.
My Lords, this has been a remarkable debate. I only wish that there had been a similar debate in the other place, but there was not. We have heard two former Lord Chancellors taking different views, and two members of the Bishop’s Bench taking opposite views, in the same debate. The remarkable fact is that there has also been substantial common ground in almost all the speeches that have been made. First, this is clearly a highly sensitive issue involving deep matters of principle. Secondly, churches that do not wish to register civil partnerships should not be obliged to do so, but conversely churches that do wish to do so should be allowed to do so. The Government have made a serious attempt in these regulations to put these matters into law. Today’s decision clearly depends on a judgment as to whether, after the proper consultation by the Government, they have succeeded in that aim.
I shall briefly give my own explanation of this. It is clear that, because of the exemption to the Roman Catholic Church, the Church of England and the church in Wales, they have been largely satisfied that the safeguards are sufficient for them. It is also clear that there have been learned and weighty opinions on both sides of the argument. Professor Hill has been mentioned, as have Mr O’Neill and Mr Goulding. The advice of the noble Lord, Lord Henley, in his letter of 13 December, states that the lawyers appear to contradict one another.
For me the question is this: is there a doubt that the regulations have properly put into effect the views of the Government? If there is a doubt, is it a fanciful doubt or is it a serious doubt? Is there at the very least an arguable case that the Government have failed to provide adequate safeguards? The lawyers’ different views and the views expressed today suggest that there is a real, not a fanciful, doubt and the churches should not have to defend themselves against possible well resourced litigants.
I note the undertaking given by the Minister in his letter, which I have cited, that if, contrary to his view, there were to be a successful legal challenge, if one were to be brought, there would be an immediate review by government. That is welcome as far it goes, and I hope that in replying the Minister will put in his speech similar, or perhaps even stronger, undertakings. No Government can bind their successors and it is surely far better for the Government to end any possible doubt by taking these regulations back and by showing that there are amendments that close a possible loophole, thus preventing a serious legal challenge being made to them. The noble and learned Lord, Lord Mackay, has suggested one way in which this should be done. Mr O’Neill has suggested another way. That is the reasonable response which the House should make today.
My Lords, I was pleased to be able to add my name to the amendment tabled by the noble Lord, Lord Alli, in the Equality Act and I am equally pleased to be standing here today supporting my Government in bringing forward the regulations, which will complete what we started. I am proud of the journey that my party has made from opposition to civil partnerships to full acceptance of and delight in seeing these regulations taken forward. I do not understand why, but we have a free vote on these Benches. I do not believe that it is a matter of conscience. I believe, as has been said today, that it is legal interpretation of whether these regulations give effect to what we are clear that Parliament thought that we had to do. We have the luxury of a free vote, and that as it happens is a nice thing, but it means that we must use our free vote wisely or we must be clear that we are using it in the right way.
I do not believe that the majority of my party now opposes civil partnerships. We want to see an end to the discrimination against couples entering civil partnerships whereby they are prohibited from celebrating it on religious premises when the religious body wishes to take part in it. We should do the right thing today and end that discrimination and not take fright at some highly disputed legal argument, especially given the Minister’s undertaking that should there be a legal problem the Government will ultimately deal with it. I hope that my noble friends will join me in supporting the Government if it proves necessary.
My Lords, I spoke in favour of the amendment tabled by the noble Lord, Lord Alli, and in principle I continue to support him. I also agree with the noble Baroness, Lady Noakes, that this is a question of legal interpretation and not an issue of conscience. I am a member of the Merits Committee. I read the two opinions that were sent to us that gave me some concern at the time. I was disposed initially to support the Motion of the noble Baroness, Lady O’Cathain, but since then I have read a considerable number of contradictory opinions. I am reminded of a quotation from The Rubaiyat of Omar Khayyam, which goes something like this:
“Myself when young did eagerly frequent
Doctor and Saint, and heard great argument
About it and about; but evermore
Came out by the same door where in I went”.
I can well understand why this Motion is being debated and why so many people are anxious about the effect of this legislation, and in the light of the legal disagreements about the effect of the regulations and the statutes. I have considerable sympathy with those concerns. I have now worked my way through all the opinions, the seven or eight that I have read, from distinguished lawyers, mainly Queen’s Counsel, and I have come to my own firm conclusions.
First, I do not think that this statutory instrument is well expressed. It has been described to me as sloppy, but it reproduces the protection given in the Equality Act, which puts of course into the Civil Partnership Act, as the noble and learned Lord, Lord Mackay, said. It has been suggested to me that including in Regulation 2B the words “nothing in this regulation or any other statutory enactment” would give adequate protection, but the enactment that might raise risk to religious premises is the Equality Act, not the regulation. As has already been said, this regulation cannot bind primary legislation, and an attempt to do so would be, as lawyers call it, ultra vires.
I am therefore satisfied that a better drafted statutory instrument would not deal with the problem that lies, if it lies at all, in the Equality Act, so my second point is that Sections 29 and 149 of the Equality Act are identified as potentially giving rise to litigation, but that the same Equality Act makes changes that give protection to those who choose to opt out. It gives protection in the Civil Partnership Act, but, my goodness me, it is actually in the Equality Act. Noble Lords have heard the words in Section 202(4) of the Equality Act that are inserted after Section 6(3) of the Civil Partnership Act.
It seems improbable to me that one part of this legislation, Section 202, gives protection to religious establishments and another part creates justiciable issues of discrimination and takes away that protection. Where there appears to be an inconsistency in different parts of the same Act, a court would seek to resolve them or construe the Act to prevent a result that would be absurd, irrational or illogical. One would also expect that a specific section in an Act would take precedence over a general section, particularly if the specific section comes later in the same Act.
The specific protection given in Section 202 of the Equality Act would, in my view, be relied upon in preference to the general anti-discriminatory provisions in Section 29, if they apply. Equally, looking at Section 149 and the duties of public authorities, the specific protection of Section 202 would, in my view, also apply if it can be shown that Section 149 applies in any event. I would therefore expect that each part of the Equality Act would be construed by a court in such a way as to make it compatible with another part of the same Act and that Section 202 would be accepted by a court so as to implement the important protection that it provides.
As we have already been told, the Church of England is satisfied with the proposed change in the law and the protection that it is given. Having listened with interest to the right reverend Prelate the Bishop of Blackburn, I would expect a Church of England priest to rely upon the decision, or the failure to give a decision, in favour of religious establishments and say that he or she cannot allow the church to be used.
The Equality and Human Rights Commission, which, as we all know, has a duty under the Equality Act to be an advocate for equality and human rights, is also satisfied that there is protection for religious establishments. I do not consider there to be a real doubt and prefer the speeches by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Pannick, to those by the right reverend Prelate the Bishop of Blackburn and the noble Lord, Lord Anderson.
I have now seen the helpful letter from the Minister saying that there would be a review if a problem arose as a result of some legal action. It would be even more helpful if the Minister were to say that there should in any event be a review, perhaps at the end of 12 months, to see what difficulties there are or may be, but I see no reason to annul this regulation, which is only carrying into effect the primary legislation put forward by the noble Lord, Lord Alli, and others, and I shall therefore support this regulation and vote against the Motion to Annul.
I shall briefly say a few extra things. I am very conscious of time, and I am tempted to do what a former judge of the High Court used to do. He was famous for saying only “I agree”, and that was his judgment. I promise that I am going to make only a few extra points.
The first extra point that I must make is about the Merits Committee and the Joint Committee on Human Rights. The Joint Committee on Human Rights, on which I serve, is meant to scrutinise mainly primary legislation, not delegated legislation. We have an arrangement with the Merits Committee that if it spots a human rights issue that it thinks should be dealt with by the Joint Committee, it should be alerted to that so that it can consider it. Unfortunately, for whatever reason, that broke down in this case. I am going to ask the Joint Committee on Human Rights to ask the Lord Chancellor, when it sees him next week, whether government departments can take more responsibility and, where they spot issues of human rights in delegated legislation, to help the committee by identifying them. That means that noble Lords do not have the benefit of an opinion from the Joint Committee on Human Rights about compatibility with Article 9 and Article 14 of the convention.
Speaking for myself, I agree with my noble friend Lord Pannick that there is not the faintest chance of any violation of Article 9 or Article 14 by virtue of the Equality Act read with these regulations. On the contrary, I believe that the right view is that these regulations promote religious freedom and do so without discrimination.
Quite apart from the arguments that the noble and learned Lord, Lord Falconer of Thoroton, has fully deployed, with which I wholly agree, the point raised by my noble friend Lady Williams of Crosby was about the discrimination provisions of the Equality Act and whether, leaving aside the declaratory provision, there could conceivably be a discrimination case. In my view, the answer to that is totally correct. During the passage of the Equality Bill, I had responsibility for over a year for dealing with these issues from the Liberal Democrat Front Bench. My view is the same as that of the Church of England legal advisers, which is the further matter that I would like your Lordships to consider.
In the opinion that the Church of England was given, this was dealt with very shortly and very clearly in this way. It said:
“The question has been raised in Parliament and elsewhere of whether a religious denomination, or a local church, which declined to seek to have its premises approved for the registration of civil partnerships could be held to be discriminating in a way which is unlawful under the Equality Act 2010. The clear view of the Legal Office is that it could not. This is also the declared view of the Government’s lawyers. The clear view of the Legal Office is that it could not. This is also the declared view of the Government's lawyers. A key relevant provision is section 29 of the Equality Act which makes it unlawful for ‘a person (a “service-provider”) concerned with the provision of a service to the public or a section of the public’ to discriminate on various grounds, including sexual orientation, ‘against a person requiring the service by not providing the person with the service’. A Church which provides couples with the opportunity to marry (but not to register civil partnerships) is ‘concerned with’ the provision of marriage only; it is simply not ‘concerned with’ the provision of facilities to register civil partnerships. That would be a different ‘service’, marriage and civil partnership being legally distinct concepts. If Parliament were in due course to legislate for same sex marriage, as recently suggested by the Prime Minister, we would of course be in new territory. But that is a separate issue which would have to be addressed in the course of that new legislation”.
Then, for good measure, the opinion deals with the public sector duty:
“The non-discrimination requirement imposed by the Equality Act on service-providers does not include a requirement to undertake the provision of other services that a service-provider is not already concerned with providing just because the services that it currently offers are of such a nature that they tend to benefit only persons of a particular age, sex, sexual orientation etc. Thus, for, example, a gentlemen's outfitter is not required to supply women's clothes. A children's book shop is not required to stock books that are intended for adults. And a Church that provides a facility to marry is not required to provide a facility to same-sex couples for registering civil partnerships. The “public sector equality duty” (contained in section 149 of the Equality Act) also has no implications for a Church’s decision whether to make its premises available for the registration of civil partnerships. A Church is not exercising public functions in making such a decision so the duty is not applicable. The public sector equality duty will not prejudice denominations who conduct marriages (and whose buildings, unlike those of the Church of England, need to be registered for that purpose) but who do not wish to host civil partnerships. The registration of buildings for marriages is a purely administrative act by the registration authorities and does not involve them exercising a discretion or taking a decision. The public sector duty is therefore immaterial to the registration process. The Equality Act contains various exceptions for religious organisations (see Schedule 23). But given what is said above, it is not considered that a Church which solemnized marriages but did not wish to provide facilities for the registration of civil partnerships would need to rely on any of these since it would not be doing anything that even prima facie amounted to unlawful discrimination”.
The noble Lord is kind to give way. I just want to observe that, like many before him and no doubt several after, he is proceeding to tell us what the result of a case would be. Does he not agree that the function of Parliament is to try to see that the law is so clear that no case would be brought? That is what my noble and learned friend’s proposal would provide.
I agree. I am seeking, using the Church of England opinion as a short way of doing so, to refer to the actual provisions in the Act to show that they are quite clear and have no application to anything that could give rise to a possible legal challenge.
I am grateful to the noble and learned Lord. I want to revert to the point that the noble Lord, Lord Elton, just made. The phrase “for the avoidance of doubt” has been thrown around a lot during the course of the proceedings today. It seems there is a lot of common ground in your Lordships’ House on trying to find a sensible way forward. The noble and learned Lord, Lord Mackay of Clashfern, suggested earlier that, if vexatious litigation were to be brought forward in the future, then an amendment to the Equality Act should be brought to your Lordships’ House and enacted. Would the noble and learned Lord commit himself to supporting such an approach if vexatious litigation were to emerge as a result of the decision today, unlikely—I agree with him—though that is?
If there is vexatious litigation, it should be struck out by the court as vexatious and nothing more should be done about it. What I am endeavouring to say—I am not doing very well because I am quoting from a detailed opinion, but I thought the House deserved to have that opinion before it because of the authority that it gives—is that the clarity provision was not necessary because a proper construction of the provisions of the Equality Act makes it absolutely clear that any discrimination claim, either about the provision of services or about the public sector duty, would be doomed to failure.
There is one further point. In the case of Pepper v Hart, the House of Lords in its judicial capacity held that, were there any ambiguity in legislation, one could have regard to the parliamentary record to resolve the ambiguity. Quite apart from Section 13 of the Human Rights Act 1998, which the noble Lord, Lord Pannick, referred to, I have no doubt that, were there any ambiguity—in my view, there is none whatever—then the Supreme Court and the lower courts would have regard to statements made by the noble Baroness, Lady Royall, when she was leading for the previous Government, to the assurances given by the former Solicitor-General Vera Baird QC and to the statements that will be given shortly by my noble friend the Minister today. Those statements will all be one way. They will all indicate the true intention of the legislation. Therefore, were there to be any ambiguity, it would be resolved, if it had to be, judicially.
In my view, which is the same as that of the noble and learned Lord, Lord Falconer, the noble Lord, Lord Pannick, others who have spoken, the Church of England’s legal advisers and others, there is no conceivable doubt that a challenge would be hopeless. If, as a discrimination lawyer with 40 years’ experience, I were asked what my views would be about this, I would say, “You have not got a snowball’s chance in hell”.
No respectable member of the Bar, properly informed and reading the statute as a whole, if asked whether there was a reasonable chance of success, would be likely to say that there were. Anyone who brought such a challenge would have to find public funds or their own funds to do so and they would fail at first instance, in the Court of Appeal and in the Supreme Court.
My Lords, in my maiden speech to this House, my first thanks went to the officials and staff for their warm introduction. Not only did they make me feel extremely welcome, they made my husband Rafael feel extremely welcome, too. My second thanks went to your Lordships, not least for the fact that I was able to say “my husband”. These Benches have helped transform my life and the lives of countless lesbian and gay people in this country. I am immensely pleased that it is no longer just noble friends on one side of this House who applaud progress in this area but Peers on every side of the Chamber. That consensus is a sign of this House at its best.
I am therefore very sad that, despite this strong consensus, we have this Motion before us today—sad because it reflects neither the view of the majority of noble Lords nor the intent of the regulations arising from Section 202 of the Equality Act 2010. It is because I strongly support the principle of religious freedom that I welcomed the adoption of this section in the Act—that is, the freedom that would allow a church to say no to civil partnership ceremonies conducted in their premises or by their priests. Equally, if a religious institution or church does wish to celebrate a civil partnership, it should be able to do so. The unconditional right for lesbian and gay marriage through civil partnership can only be a civil one. That is a responsibility the state must ensure is provided without discrimination, fear or retribution. But just as I believe the Church should not interfere with the rights and responsibilities of civic society, I equally believe that the state should not interfere with the conduct of religion or ceremonies in places of worship.
As we have heard today, Section 202 is, as was always intended by those who supported it across the House, entirely permissive. We have heard clear legal opinion from the Church of England and the Government, and many prominent legal counsel have supported this view. The points made by Professor Hill, on which the noble Baroness relies, have also been considered, as we have heard, by Paul Goulding QC in a detailed written opinion, which I know many noble Lords will have seen. It is clear from Mr Goulding’s opinion that neither the regulations nor any part of the law would compel religious organisations to host civil partnerships against their wishes. In particular, he points to the provisions of the Equality Act which expressly state that. My noble and learned friend Lord Falconer argued this case so well in agreement with Mr Goulding’s opinion.
My hope is that there will be a positive outcome from today’s debate, an outcome in which this House reasserts the consensus which I referred to at the beginning of my contribution. It is a consensus that respects the right of lesbian and gay people to celebrate their relationships and respects the right of churches and synagogues to undertake civil partnerships, reflecting their commitment to the inherent worth of a loving relationship between two people of the same sex. It respects the right of religious freedom but also my right, as a gay man, to celebrate my relationship with my husband on an equal footing in our civic society.
My Lords, had I spoken earlier in this debate, I would have made a lengthy speech, much of which has been overtaken by the course of events, which would have been in support of the noble Baroness, Lady O’Cathain. I maintain my support for her today.
Much legal opinion has been expressed on both sides of the argument and a fair consensus would appear to have emerged, but I am left with a residual feeling of ambiguity. Ambiguity can give rise to unintended consequences, and it is unintended consequences that I am worried about. Those consequences arise from regulations that are not crystal clear and have worried a lot of ordinary decent people up and down this country, who have filled noble Lords’ postbags and mine in the past few days.
The noble Lord, Lord Henley, circulated his letter, which we received yesterday, in which he states—and we have heard it repeated already today—that,
“if a successful legal challenge were ever brought, I would like to provide reassurance that the Government would immediately review the relevant legislation”.
If we think that there is some doubt or ambiguity in this case, and if we think that ambiguity could lead to unintended consequences, there is an obligation on the Minister to activate that sentence in the last paragraph of his letter and, for the avoidance of doubt, to make it crystal clear—an expression that we have heard many times in this Chamber today—to people up and down the country, whoever they are, that they have nothing to fear from these regulations. Until I hear a commitment to the avoidance of doubt, I maintain my support for the noble Baroness, Lady O’Cathain.
My Lords, I have some sympathy with the points just made by the noble Lord, Lord Dannatt, but I should like to focus the House’s attention on one specific point: the particular and peculiar—and I use that word properly—position of the Church of England.
The Church of England is the established church of this land. There is not a town or a village in England that does not have a Church of England parish church. The people in that parish are entitled to the services of the parish priest and of the church. Let us be in no doubt that, if this regulation is passed as it stands, great pressure will be put upon incumbents of parish churches throughout the land, and that pressure will be very difficult for them to withstand, even though, for them, whatever it may be for the noble and learned Baroness, Lady Butler-Sloss, or others, it will be a supreme issue of conscience.
Does my noble friend therefore disagree with the advice from Church House, which states quite categorically that a church,
“would not be doing anything that even prima facie amounted to unlawful discrimination”?
The advice reassures both priests and the church as a whole that this would not happen.
I am not concerned with that legal opinion; I am trying to make a different point, which it is clear I did not do effectively enough. What I am saying is that pressure will be put upon incumbents throughout the Church of England, notwithstanding that legal opinion, which may or not be correct—and there is an element of doubt.
We have a specific provision in this country for the established Church of England, as has been referred to by the right reverend Prelate the Bishop of Blackburn. With the agreement of Parliament, we do not legislate over and above, or directly at, the Church of England; rather, we receive the measures that the church—initially through the Church Assembly but in more recent years through the General Synod—has thought fit to pass. Those measures come before the Ecclesiastical Committee, on which I had the privilege to sit for some 40 years—indeed, I was for 10 years on the General Synod as well—which is one of the few committees comprised of Members of both Houses of Parliament. That committee has one duty and one duty alone: it has to deem the measure expedient or not. If it deems the measure expedient, the measure then comes before the two Houses of Parliament separately, either on the Floors of the Chambers or in Committee, where it can be voted upon. It is very unusual for a measure to be rejected—in my 40 years on the Ecclesiastical Committee I can think of only one such measure, which concerned provisions for churchwardens. I can think of others, such as the prayer book measure and the ordination of women measure, which engendered very real debate in both Houses, but at the end of the day those measures were passed.
It seems to me that there ought to be proper recognition of the position of the Church of England. I am in no sense seeking to make comments about civil partnerships. I listened to the moving speech of the noble Lord, Lord Collins. We all have many friends who have gone through civil partnerships, whatever our views on marriage might be. As the noble Baroness made plain when she introduced this debate today, that is not what we are discussing. It is important that the Church of England should have its special position recognised and there should be exemption for it, so that it is up to the synod to decide whether it wishes to pass a measure.
Since I am not likely to make a speech today, I should like to ask the noble Lord a question in relation to the point that he is making. It relates to the difference between the institution of the church or whichever religious body—the noble Lord is talking about the Church of England, of which I am a rather unusual member—and the teachings of Christ about tolerance, acceptance and inclusion.
Does the noble Lord not agree that one of the problems in the Church of England is that we have numbers of people who cross the threshold—they go down the aisle in their white gowns having lived together for eight years, whatever that means—but never cross the threshold of that church again unless they bring their kids to be christened or arrive for their funeral? That is a real difficulty for the Church of England. Does he not agree that this is a very different position from that of those same-sex couples who are committed Christians and wish to acknowledge that among their congregation, and that very few would want to acknowledge it in a congregation that did not want to acknowledge them, nor with a priest who thought that they were of a different order of human being? Does he not agree that if the churches are really going to come to terms with understanding inclusion, acceptance, love and tolerance, which is what Christianity is about, then they will have to change?
All I will say to the noble Baroness—who made a speech and not an intervention—is that she was airing some of her own views and prejudices, as we all do from time to time. I would not seek to pass comment on the convictions, the commitment and the sincerity of any fellow Christian of any orientation. I am talking today about the regulations before us and the special, specific position of the Church of England— which, let us all remember, still has the ability, if the incumbent wishes, to grant a service of blessing to any couple. Be it a divorced man marrying a woman and they do not go through the traditional marriage ceremony, they can have a blessing—and so can a same-sex couple.
However, there is a special position for the Church of England which should be recognised by your Lordships’ House. The Church of England should not, therefore, be included in the regulations we are debating today—and certainly should not be so included unless the amendment, which was so learnedly described by my noble and learned friend Lord Mackay of Clashfern, is incorporated and an undertaking to that effect given by the Minister when he winds up.
My Lords, perhaps I might at this stage respond to some of the comments made around the House. I know that there is a feeling that we have had a learned and full debate and that, after my noble friend Lord Carlile of Berriew has spoken—I understand he will speak just briefly—at that stage we might invite the Leader of the Opposition to make her winding-up speech.
My Lords, if the opinion of the House is tested on this Motion to annul I shall be voting against the proposition of my noble friend Lady O’Cathain. I want to say at the outset of what I hope will be brief remarks that I am sure she knows that I have enormous respect for her. She and I have stood shoulder to shoulder on issues of conscience in this House and will do so again. However, I am bound to say that, in my view, this is about as far from an issue of conscience as we could get. This is a matter of law, essentially.
We have heard from some much more balletic legal minds than mine during the debate. Indeed, your Lordships may be under the impression that the head of the pin is extremely crowded. As my noble and, in some cases, noble and learned friends—and in the case of the noble Lord, Lord Lester, my noble and very busy friend—dance on the head of that pin, you will have observed that there is barely room for the legal books they are using.
All I will say as one of the QCs in your Lordships’ House is that I think the arguments have been very powerfully put before your Lordships by the noble and learned Lord, Lord Falconer, the noble Lord, Lord Pannick, the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord Lester of Herne Hill, and I agree with them. I hope that your Lordships are not going to fall into the trap of deciding how to vote if there is a Division on the basis that, because some lawyers disagree, we are all going to throw our hands up in the air and leave it to someone else to decide. Let us never forget that we are in the high court of Parliament. With all the knowledge in this Chamber, I venture that your Lordships are well able to reach a decision on the basis of the arguments that have been presented—and the arguments are absolutely overwhelming.
During my 40-odd years at the Bar I have advised on issues and gone into, for example, the Court of Appeal with what I had thought was a very arguable case, and found myself metaphorically blood-spattered on the floor within minutes, if not seconds. The legal analyses that we have heard in your Lordships’ House have plainly left us with the opinion—the only responsible opinion—that there is no realistic possibility whatever of religious organisations or priests being forced in any way to do anything in this context which is against their conscience.
For the lay men and women in your Lordships’ House it may have been as though it is being argued that the use of the words “for the avoidance of doubt” in some way creates a doubt. What could be less logical than that?
Moving on to my next point, when I last spoke on this subject, when we really were debating an issue of conscience in this House, I told the House that in my family I have a daughter who is in a gay relationship. She and her partner have a civil partnership and I am fortunate enough to have two wonderful and very energetic grandsons, who are part of that very nuclear indeed family, if I can be forgiven that phrase. However, it goes further than that. The reason I mention my daughter is that she is also a lawyer. She is a solicitor who, among her work, takes a great deal of interest and has much activity in all aspects of the law that reflect the lives of gay men and lesbian women. Therefore, naturally, I have turned to my daughter Eve to see if she can help with what the view of gay lawyers and the gay community is on this issue. Gay lawyers believe this: “No one is demanding that religious institutions hold civil partnerships; no one is saying that they must honour any gay couple’s request to celebrate their civil partnerships within the traditions of that religion. What this is about is allowing religious civil partnerships if everyone involved is in agreement”. That is the overwhelming view of lawyers who advise gay people, sometimes other gay people, and that is what these provisions say.
The noble Lord will appreciate that the debate today has been legalistic—because this is obviously what this Chamber does—but the ramifications outside the Chamber may not be legalistic. On the point that the noble Lord is making about allowing, will he agree that to allow, although it is not to encourage or force on people, can sometimes have that effect. That is my concern having seen that many Acts of Parliament have had effects that we were not aware of. I believe that if we are not careful, this one will bring the kind of pressure to bear on Church of England priests that the right reverend Prelate the Bishop of Blackburn has indicated.
I respectfully but absolutely reject the contention that has just been made. Indeed, it is somewhat similar to the contention made by my noble friend Lord Cormack, who spent a great number of years as a very distinguished Member of another place. He often had to wrestle between his principles and his interests, as all Members of Parliament do, and I doubt that he found it more difficult than any Church of England or other priest or other religious official would find it to stick to his conscience when his conscience told him what was right, particularly when supported by the institution to which he belongs.
Finally, my noble friend Lord Lester mentioned the decision of the House of Lords as a court in Pepper v Hart. That is the one matter that was omitted earlier and is of very great importance. In the event of somebody being prepared to take the financial risk of bringing what in reality would be a completely hopeless case before the courts, it is beyond peradventure that the statement that we know will be made by my noble friend Lord Henley from the Front Bench today, because we have been given a trail of it, would be cited in court and would be extremely influential in the determination of any ambiguity. I therefore respectfully suggest to your Lordships that we have actually taken a great deal of time today, albeit in a very interesting debate, in discussing something that is really not a problem at all.
My Lords, we have heard today some extraordinarily powerful and important speeches. When we were in government, one measure that we were most proud of, rightly I believe, was the Equality Act 2010, which we managed to pass through Parliament just before the general election. We did so with the support of the Conservative Party and the Liberal Democrats, then both in opposition. The parties opposite were consistent in their support for the legislation; I thanked them for it then and I thank them for it now, although I am concerned about a few aspects of the Act that are being chipped away. But that is not an issue for today.
When my noble friend Lord Alli moved his amendment and it was adopted by this House during the passage of the Bill, I was not able to fully support him. But I am delighted that his amendment was adopted and has resulted in the regulations before us today. The overriding point about the regulations and the legislative clause in the Act to which they refer is that, as so many noble Lords have said, they are permissive. They permit churches and any other religious premises to enable two people to register as civil partners of each other under the terms of Section 6(3A)(a) of the 2004 Act.
I warmly welcome so many speeches today, but especially the contribution from the noble Baroness, Lady Richardson of Calow, who was absolutely right to point out very forcefully that the provisions are permissive. They do not in any way require churches to provide civil partnerships to take place. They do not order them to do so or compel them to do so; they simply make it possible for them to do so should they so wish.
The noble Baroness, Lady O’Cathain, argues that the proposals are not sufficient to protect faith groups from being compelled to register civil partnerships when it is against their beliefs. The noble Baroness is supported by a number of legal opinions. However, we believe that the legislation itself is clear. Section 202(4) of the Equality Act 2010 provides that the following should be inserted after Section 6(3) of the Civil Partnership Act 2004:
“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so”.
That expressly states the point—the wording is clear and the meaning is clear, and we believe that the effect is clear—and so do the regulations in front of us today, which state, in Regulation 2(3), that the following should be inserted into the Marriages and Civil Partnerships (Approved Premises) Regulations 2005:
“Nothing in these Regulations places an obligation on a proprietor or trustee of religious premises to make an application for approval of those premises as a place at which two people may register as civil partners of each other in pursuance of section 6(3A)(a) of the 2004 Act”.
Again, there is clear wording, clear meaning and clear effect.
The noble Baroness, Lady O’Cathain, has deployed legal opinions that support her view, quite properly, primarily those from Professor Mark Hill QC and Aidan O’Neill QC. But many noble Lords from all Benches have cited a number of different opinions today, and the speech from my noble and learned friend Lord Falconer of Thoroton was masterful and gave a very clear opinion. His responsible views were unequivocal and were supported by many noble Lords throughout the Chamber today.
It was useful and heartening to hear the views expressed by the right reverend Prelate the Bishop of Oxford, who confirmed that the necessary safeguards are in place according to the Legal Office of the General Synod of the Church of England. I hear of course the differing views expressed by the right reverend Prelate the Bishop of Blackburn, but I believe that many of the issues raised by the right revered Prelate the Bishop of Blackburn are matters for the General Synod itself, and not for this House or the Houses of Parliament. It is also important to consider a statement from the Catholic Bishops’ Conference of England and Wales, which takes a similar view to the Church of England:
“As the regulations require prior consent, the measure can have no impact on Catholic premises. The church welcomes the fact that the Government has made an explicit statement in the draft regulations that nothing in them creates any obligation to make an application for approval. This will help rebut any attempt to mount spurious cases of unlawful discrimination against churches which do not host civil partnerships”.
The Government’s clear view is set out in their summary of responses to their consultation on civil partnerships on religious premises, published last month, and I agree with the view expressed. The noble Lord, Lord Henley, Minister of State at the Home Office, says in a letter this week to Members of your Lordships’ House:
“I must stress that this provision is entirely permissive. We are entirely confident that faith groups will not be forced to host civil partnership registrations if they do not wish to do so”.
He goes further, by indicating further legislation if necessary. The Government’s clarity and confidence, which we as an Opposition share, is supported by the statutory body on discrimination, the Equality and Human Rights Commission, which states in its response to the consultation:
“The Commission is also pleased that this provision is voluntary, placing no obligation on religious communities to conduct such ceremonies where this would be against their conscience or religious beliefs”.
We have heard a plethora of legal opinions in this debate, but also the important views of many noble Lords who do not have legal experience. Most importantly, we have heard the views of my noble friend Lord Alli. When he moved the original amendment in your Lordships’ House, he could not have been clearer:
He has been equally clear today. These are compelling arguments, and I believe that they are conclusive arguments. There is nothing in the legislation or in these regulations which requires churches to host civil partnerships. The legislation and the regulations associated with it were designed to be permissive and not compulsory; they are written to be permissive and not compulsory; and they are best interpreted as being permissive and not compulsory. Some noble Lords have mentioned fear. Like the right reverend Prelate the Bishop of Oxford, I believe that we must act in a spirit of mutual respect and generosity.
If the noble Baroness, Lady O’Cathain, should test the opinion of the House today, we on these Benches will be opposing the noble Baroness and supporting the regulations. And yes, we have a Whip on, because we believe it is right to do so. I believe the record of my party, the Labour Party, on equality issues, is second to none, and we intend to maintain it in the Lobbies today if this matter does go to a Division.
The provision to allow, if they so wish, churches to host civil partnerships, is a good provision. The regulations are good regulations, and the original legislation—our own—was good legislation. I urge the House to support the regulations, and to sustain legislation of which this House should be proud in having played its part to get on to the statute book of this country.
My Lords, I start by echoing the words of the right reverend Prelate the Bishop of Oxford when he suggested that we needed to conduct debates of this sort with restraint, mutual respect, and generosity. I am very grateful to the House that that has been the case today on a subject that can generate very strong feelings.
To my noble friend Baroness O’Cathain, I say that although, as she knows, I will not be able to support her Motion, and although I very much hope she will not be pressing it to a Division—I do not think it would be wise so to do—I am grateful for the fact that we have had the debate. In my view, it has brought a great deal of clarity to this subject—particularly on the legal aspects of it. I am therefore grateful for the interventions from the noble and learned Lord, Lord Falconer, and from a whole host of other legal luminaries sitting all round the Chamber.
I am also very grateful that a large number of Peers have quoted from the letter that I sent out two days ago. This does at least encourage me to think that it did reach most noble Lords, though I appreciate that one or two noble Lords did not receive it. For that I can only apologise, but I can make copies available, should anyone wish to have one, after this debate. I will be quoting from my letter later on, possibly in response to the request from the noble Lord, Lord Lester of Herne Hill to, as it were, add a Pepper v Hart element to what I have to say.
We recognise that in allowing this expression of religious freedom and advancement for lesbian, gay and bisexual equality, we need to ensure that there are sufficient protections from legal challenge for faith groups who do not wish to host partnerships on their premises. We are confident that faith groups will not be forced to host civil partnership registrations on their premises if they do not wish to do so.
The fundamental point is that Section 202 of the Equality Act inserts into the Civil Partnership Act 2004 the statement:
“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so.”.
As the noble Baroness, Lady Royall, seemed to imply, one does not need to be much of a lawyer to know that that is about as clear as you can get. We need only to repeat those words:
“For the avoidance of doubt”,
again and again to make that quite clear. Therefore we are grateful that the noble Lord, Lord Alli, made it clear as could be when he put in his amendment. I think this was back in March of last year, as we were rushing towards the election. Similarly, the order makes it clear when it says, in proposed new Regulation 2B:
“Nothing in these Regulations places an obligation on a proprietor or trustee of religious premises to make an application for approval of those premises”.
You do not have to be a lawyer to know that that is pretty clear.
It cannot be argued that religious organisations could be at risk of successful legal challenge under other provisions in the Equality Act 2010 when it was that Act which itself put that statement into the Civil Partnership Act. We can, indeed must, assume that Parliament speaks consistently in one Act and, I would hope, in all other Acts. The regulations, similarly, cannot override primary legislation and the primary legislation that enables these regulations makes it clear there is no obligation. To make this abundantly clear, that is reiterated in new Regulation 2B, which is inserted by these regulations and which I read out.
There are further protections for ministers of religion. As the process is to approve premises rather than individuals, it ensures that no ministers will be able to host civil partnerships unless the premises they lead the worship at are approved. Ministers also benefit from the protections in Schedule 23 to the Equality Act, which allows faith groups to restrict the use of their premises on the basis of religious doctrine or the strongly held convictions of the religion’s followers.
Finally, other protections exist in the regulations we are debating. When making an application for religious premises to be approved, the trustee or proprietor of the premises will be required to provide the necessary consent from the governing authority of the faith or faith groups using the premises. Where more than one organisation uses the premises for worship, all will need to provide their consent to an application being made. If one organisation does not consent, the approval would be refused or immediately revoked by the local authority. There will also be a period of 21 days for public consultation on each application, where the local authority will consider the objections. The Government consider that this package of protections is comprehensive and removes the possibility of legal challenge.
I want to keep this brief because I think that the House wants to come to a conclusion. I turn finally to the letter I sent out. What I was trying to get over in that letter to all Members of the House was this important point:
“I must stress that this provision is entirely permissive”.
I also stress that we are entirely confident that faith groups will not be forced to host civil partnerships. We have taken legal advice, and we have listened to a great deal of it today in this Chamber. I am grateful for all those who spoke because it made it absolutely clear.
My noble friend Lady O’Cathain thought that by inserting the last paragraph into my letter, I was expressing that I had some doubts. I assure her that I have no doubts but, in the extraordinarily unlikely event that there was some legal challenge that we had to face, I will repeat what I had to say in that last paragraph. I made it clear that, while we do not believe that this will happen, if a successful legal challenge were ever brought, I would like to provide reassurance—I provide it now, from this Dispatch Box—that the Government would immediately review the relevant legislation. We are absolutely clear that the voluntary nature of this measure must be maintained.
My Lords, before the noble Lord leaves the very important statement that he made, both in his letter and again to the House today, I notice that it says that if a successful legal challenge were brought, the Government would carry out a review. Will he bear in mind what the right reverend Prelate the Bishop of Blackburn said earlier, and the point I raised with the noble Lord, Lord Lester, about vexatious litigation? It might not be successful litigation, but it would nevertheless be litigation, and it could involve people in considerable expenditure, as the noble and learned Lord, Lord Mackay of Clashfern, said earlier. In those circumstances, will the Minister given an undertaking to the House that the issue will be generally kept under review without having to wait for litigation? Will there be, if necessary—although most of us accept that it is highly improbable—an amendment to the Equality Act? That is, if those circumstances were to occur, would legislation be brought forward along the lines suggested by the noble and learned Lord?
I hope that this debate has brought a considerable degree of clarity to this issue. I think that it is now generally clear—most people understand the legal aspect—that there is no doubt about this matter. However, as the noble Lord has raised this point, which was also raised by the noble and learned Baroness, Lady Butler-Sloss, we will obviously keep all matters under review, and if we saw a problem, we could act. I do not think that that is likely. Particularly after what we have heard in this debate, it would be a very vexatious litigant who tried to bring such an action, and I do not think they would have much chance in the courts.
I hope that I have spoken briefly and with some clarity about what the Government’s intentions are. I repeat again, this measure is entirely permissive; it is not designed to go any further. On that I am at one with the Opposition Front Bench, with the noble Lord, Lord Alli, and with a large number of the legal luminaries who have spoken. I hope that my noble friend will feel able, therefore, to withdraw her amendment.
Is my noble friend speaking on behalf of the Government at this Dispatch Box, having regard to the case to which he referred about reference to statements? Is he saying on behalf of the Government that this Act, in Section 202, refers to the 2004 Act and to the Equality Act 2010? Is it the position of the Government that this includes the Act of 2010?
My Lords, I am making, as my noble and learned friend put it, a considered ministerial Statement from the Dispatch Box, in line with the case he referred to, Pepper v Hart. Yes, I believe that this Act covers both the 2004 Act and the Equality Act 2010. As I said earlier, it would be very odd if the Equality Act was considered to have spoken inconsistently. However, I can give my noble and learned friend the assurance that he seeks.
My Lords, I am not sure which European court my noble friend is referring to. If he is referring to the European Court of Human Rights, we discussed that somewhat earlier in the day. I think that it was the noble and learned Lord, Lord Lloyd of Berwick, who referred to a judgment in a Finnish case in the European Court of Human Rights, and then to the later remarks of the Lord Chief Justice that we must give due weight to the decisions of that court but not necessarily be bound by them. If it was the European Court of Justice, obviously we would have to comply with that, as with other matters, but I do not see quite how it would get involved in these matters.
My Lords, I thank everyone who has taken part in this debate. I was very relieved that I was not at the butt-end of accusations of being homophobic, toxic, odious or even old, as I was in some of the letters that I got. I know I am old, but I do not like it to be said pejoratively.
I have listened intently. I remember—this is a flashback to my childhood—that when my parents asked me what I wanted to do, I said I wanted to become a lawyer. Thank goodness I did not, that is all I can say; it is even more confusing than being an economist.
I have listened particularly to the Minister. I just want him to agree once more, so that my noble and learned friend Lord Mackay has satisfaction. In the 2004 Act no one was in any doubt and yet there was protection for the avoidance of doubt, but there is doubt around the 2010 Act—whatever we think about it, there is doubt out there. If the Minister is saying, in a ministerial Statement from the Dispatch Box, that he is convinced that the protection for the avoidance of doubt in the 2004 Act applies to the 2010 Act, then in view of the opinion around the House I will withdraw my Motion. But I want to make sure that the Minister has the chance to say so.
My Lords, I confirm again to my noble friend that that is exactly what I said. Section 202 inserts an amendment into the 2004 Act but it is equally true that it is in the Equality Act; it is a vehicle for this. It is proper to say that it is Parliament’s intention that that is the position. I do not think I can be any clearer than that.
Health and Social Care Bill
Committee (13th Day)
Relevant documents: 19th report from the Delegated Powers Committee, 18th and 22nd reports from the Constitution Committee.
Clause 148 : Governors
296: Clause 148, page 148, line 11, leave out subsection (2) and insert—
“(2) For paragraph 9(3) of that Schedule (requirement for at least one member of council governors to be appointed by PCT) substitute—
“(3) At least one member of the council of governors must be appointed by the NHS Commissioning Board.”.”
With due apologies to my noble friend, it is very difficult to hear her when people are leaving the Chamber. I wonder if we might just wait for people to clear the Chamber as quickly and quietly as they can so that my noble friend may resume with her amendment.
I thank my noble friend Lady Garden very much indeed for intervening. I would like to express the apologies of my noble friend Lord Marks of Henley-on-Thames for being unable to be here on this occasion. Unfortunately he has been taken ill and will probably not be in the House again before the Christmas Recess. He extends his apologies to the House and his deep regrets at being unable to be here to move this amendment. It is therefore my honour to do so on his behalf.
The first amendment amends paragraph 9(3) of Schedule 7 to the National Health Service Act 2006 to remove the requirement for a governor to be appointed by a PCT. The reason for governors being appointed by PCTs, of course, is that they were the key sub-national level of organisation under the previous National Health Service. The Act of 2006 therefore reflects that organisational structure. I submit to the House that in the new structure it is as important that the national Commissioning Board should be able to appoint at least one—and, one hopes, more—governors to the board because of the need for a clear link between the clinical commissioning groups and the boards of the foundation trusts. Our amendment requires that at least one member be appointed by the NHS Commissioning Board in the place of the PCT appointee who will no longer be able to take his place. A substantial number of NHS patients—one hopes a majority—are patients under the foundation trusts. It is therefore important that the concerns of the CCGs and of the board should be represented on foundation trust governing bodies.
I will also briefly speak to Amendments 300, 301, 302 and 303 in the same group. All relate to the decisions to be made about the mergers or dissolutions of foundation trusts. The purpose of the amendments is to add the name of the Secretary of State to those who are required to consent to either a merger or a dissolution. I shall explain very briefly why we believe this to be of great importance. Despite these amendments looking rather petty, they are not.
The Secretary of State is in a unique position to decide on the strategy of the National Health Service over the whole country. He is in an especially good position to be well-informed on the balance between demand and supply across the territory of England. If there is no requirement for him to emerge at this point as the figure who makes the ultimate decision as to whether there should be a dissolution or a merger, there is nobody else able to detect whether the needs of all patients in England are met. As the House will be aware, if a foundation trust merges and perhaps one part of that merger ceases to offer services, that may be very much in the long-term interests of the National Health Service. The noble Lord, Lord Warner, spoke eloquently on this point yesterday. Where a foundation trust is the centre of, for example, pathways in a particular chronic illness, and where it meets the hospital needs of a substantial part of an area of the country, only the Secretary of State is in a position to decide whether that foundation trust merger or dissolution will have a major impact on the health services available in that part of England.
We suggest, once again, that this is not a tactical or micromanagement issue, but a strategic one, given the significance of foundation trusts in many parts of the country. We therefore very strongly urge the Committee to agree to this amendment. We believe it is a crucial part of the strategy of running a National Health Service in England. I beg to move.
My Lords, we have all been precipitated into this debate some 10 minutes earlier than we might have expected. I should like to speak to Amendments 296A and 298A, and to whether Clauses 176 and 177 should stand part.
Amendment 296A provides that foundation governors must,
“be notified and have the right to attend all meetings of the Board and its sub-committees and have access to all relevant documents and papers”,
under a “duty to protect confidentiality”. Amendment 298A provides that the accounts of a foundation trust or other public benefit corporation,
“must identify separately the income and expenditure which relates to any private income business, and the audit of such accounts must include assurance that all costs which relate to private income business have been properly calculated or recorded”.
I accept that the Minister has an amendment that is not totally dissimilar to this, but it does not include the words about the need to audit and have income and expenditure on the public record, which we think are rather important. Clause 176 stand part would leave out the clause that abolishes NHS trusts. Clause 177 stand part objects to the repeal of various provisions in the authorisation of foundation trusts.
We have already touched on aspects of foundation trusts. Our position is that we support the concept of foundation trusts as a model for developing a form of multi-stakeholder or community-based governance, and allowing earned autonomy for NHS providers from direct performance management. As we discussed on Tuesday, we accept the role of Monitor as a regulator of foundation trusts. We agree with my noble friend Lord Warner that the plethora of other roles that Monitor has been asked to play poses risks, and we have set out our objections to and worries about that.
We accept that the foundation trust journey is still being travelled. I suggest that it is probably time for a proper independent study of how the foundation model might be taken forward. We are where are, not where someone might have hoped we would be. We make no great claims for foundation trusts but we would agree that the more trusts that can meet the standard the better. However, some will not meet it, for many different reasons. The rush to force them into hasty mergers and takeovers will bring great risks. I point to the fact that only today the House of Commons Public Accounts Committee has issued the report Achievement of Foundation Trust Status by NHS Hospital Trusts, which I have asked the Printed Paper Office to make available. I said that it is quite possible that other noble Lords might be interested in it in the course of today’s debate.
On the point about how many trusts will make it to foundation status, I quote from the document:
“By 1 October 2011 there were 139 NHS foundation trusts, and 113 NHS trusts at various stages in the 'pipeline' towards foundation trust status. Only 14 trusts have achieved foundation status since the end of 2009 … The Department expects the majority of trusts to achieve foundation trust status by 2014, but recognises that a small number may not do so before 2016”.
The report goes on to say that there is indeed a very serious problem of hospitals not achieving foundation trust status:
“Twenty hospital trusts have declared themselves unviable in their current form”.
It suggests that more than,
“half of all trusts are not yet foundation trusts and more are likely to conclude they are unviable”,
and goes on to say:
“A particular concern is what will happen to trusts that are unable to achieve foundation status but nevertheless provide an essential service to local people”.
This report’s very timely publication needs to be acknowledged in the course of our debates on these matters.
We do not accept that every NHS provider must be a foundation trust. We agree with Sir David Nicholson that there is scope for some NHS trusts to be permitted. This also allows us to say that a foundation trust can be de-authorised in exceptional circumstances. This Committee needs to discuss the issue of the Government’s rush to say that all trusts must have foundation status. That is clearly not going to work and we have no satisfactory answers at the moment about what is intended under those circumstances.
We will discuss the issue of the private patient cap so I will not refer to it now. We do not go the whole way in deregulation and see a continuing role for Monitor, not just in authorising foundation trusts but, as we said in our earlier debate, in retaining oversight and intervention powers. We agree that the authorisation process should be rigorous and demanding, so the question there which the Minister needs to answer is: if the department is determined to push hospital trusts into foundation status, what does it mean for standards—will they be relaxed? We think that they should not be. If further lessons are needed from Mid Staffs then I suspect that this is one that the inquiry will raise.
We share the view expressed by several noble Lords on Tuesday that there may be examples where the cause of a foundation trust’s problem lies with the local health system rather than poor foundation trust management. A more effective approach to reconfiguration and a sensible pre-failure regime is absolutely necessary. We understand and hope that the Minister is looking into this and look forward to being part of those discussions. Our view is that while having a great deal of autonomy, foundation trusts remain within the NHS; they are not to be hived off as quasi-businesses. We believe that in general only the two extremes differ from our view—those who want a fully publicly owned, public-provided NHS with no split, and a small band around the current Secretary of State who want to make foundation trusts into businesses and, like a private provider, free from all scrutiny. The rest of us are probably somewhere in the middle.
I turn to the amendments. We support the idea that foundation trusts must open their governance and must meet in public—which is vital. We support the idea that to be effective in their duty to hold the board, and especially the non-executives, to account, the governors must have the right to access and observe all meetings and to see all papers. The confidentiality issues which this might involve can be resolved through appropriate codes of conduct, but if governors are to be the main lines of defence then they must be able to know what is happening. Sadly, that is not the case in some foundation trusts.
We support the need to separate properly the accounts in respect of non-NHS business. It is important to avoid smoke-and-mirrors accounting, especially on the issue of the private patient cap, which we will discuss later. Transparency on that issue is vital. The bottom line is that NHS resources should not be provided at knock-down prices. We have had an undertaking that foundation trusts will provide information showing how non-NHS income acts for the benefit of NHS patients, but in the absence of detailed regulations about how that is to be done it would be best to maintain a sceptical view.
In line with our view that foundation trusts remain part of the NHS family, we support the amendments that ensure the Secretary of State must approve major transactions such as mergers. We do not support the Government’s amendments which are a further example of layering of bureaucracy and paperwork to try to justify their failure regime, which pretty much got a hammering on Tuesday and must be thought about again.
My Lords, I have amendments in this group to which I shall speak briefly. The noble Baroness, Lady Williams, introduced her amendments clearly and concisely. Some figures from the latest Health Service Journal underpin the reason why these amendments are so important. It has reported that foundation trusts are planning to cut at least 30,500 staff over the coming two years and that at least five acute foundation trusts have forecast a wage-bill cut of 10 per cent or more over the coming two years. According to the Health Service Journal’s analysis, patients in the poorest areas are 63 per cent more likely to find it difficult to see a GP than are patients in the richest locations, and 53 per cent more likely to attend accident and emergency.
I put those figures into the debate now because they demonstrate the pressure there will be on trusts. Changing to foundation trust status will put additional pressure on them. Amendment 304C in my name is a probing amendment. I tabled it to seek reassurance from the Government that the timetable for repealing NHS trust legislation will not revert to the originally proposed date—1 April 2014. I hope that the deadline will be extended to April 2020. I was going to say more but I await the Minister’s reply.
My Lords, I should like briefly to comment on the amendments proposed by my noble friend Lady Williams of Crosby. In one respect, I was sorry that she spoke so briefly because I should have liked to have heard more of her reasoning for Amendment 296. I am not at all clear about what the advantage is to either the Commissioning Board or the hospital if one serves on the board of the other. Is it because that is the only conduit of information? Frankly, I do not think that anyone believes that. If that is actually the argument then the whole NHS is in a much greater state of peril than any of us thought was the case until now. I honestly do not see the importance of or justification for the amendment. It may be a probing amendment, but it would have been helpful if the noble Baroness had given us a bit more of the thinking behind it. As of this moment, pending her winding up, I am not at all convinced that the amendment is either important or necessary.
However, I turn to the noble Baroness’s Amendments 300 to 303, which are also in the name of our noble friend Lord Marks of Henley-on-Thames, who I am sorry to hear is unwell. I very much support what she said about those amendments, even though—to use the word of the noble Baroness, Lady Finlay—she explained them concisely. They take us back to one of the main issues of this legislation: where is the Secretary of State in this brave new world? The Minister knows that a number of us think that the Government are thus far underplaying the role of the Secretary of State.
As my noble friend Lady Williams of Crosby was speaking, I thought of the condition of a number of foundation hospitals that have been the product of a PFI system. That was triggered in my mind by her comment that if there was a coming together of hospitals, or if some element of service was not provided, it may be of a sufficient scale for the Secretary of State to want to take a significant interest. The truth, to the best of my probing, is that a number of hospitals out there—the products of PFI—are in very difficult and probably, without help, unsustainable positions.
I know that the Minister understands that and that it is a matter of concern to the department, so I do not make any comment prejudging the outcome, but my noble friend brought the Secretary of State into this precisely because there could be serious, significant or catastrophic effects on the provision of healthcare in the hospital sector which, by definition, would include the importance of ministerial—that is, Secretary of State—involvement and consideration.
I welcome Amendments 300 to 303, but I say to my noble friend Lady Williams of Crosby and the Minister that I think they are part of the bigger picture of where the Secretary of State will be when the Bill finally reaches the statute book. The Minister has kindly and, I think, genuinely agreed to reconsider all those issues and bring them back for our consideration at Report. Subject to him saying the same about the issues raised by our noble friend Lady Williams, I hope that she in turn, hearing his response, will not feel it necessary to push the amendments to a vote today, although that might become an issue, depending on where we are at, on Report.
Perhaps I may respond briefly to the points raised by the noble Lord, Lord Mawhinney. I apologise if I spoke too briefly, but I am conscious that there are an awful lot of amendments to get through and I do not want to steal the time of other people on other crucial amendments.
On the group of four amendments that the noble Lord is in accord with me about, as he will be well aware, consideration has been given to the material put before us by my noble friend Earl Howe, the Minister of State, about an attempt to bring together discussion within the House and among lawyers about the issue which the noble Lord, Lord Mawhinney, rightly identifies as being central to the Bill: the responsibility and powers of the Secretary of State. Because we are in Committee and the Committee will, we hope, be ending in a few days’ time, the only opportunity we have to table amendments that would bear on the issue of the Secretary of State’s powers is on the Bill as it stands—prior to any changes that may be made. It is in the light of that that we tabled this group of amendments to highlight the areas where, in our view, the responsibility of the Secretary of State is central. That is true of this group of amendments, and I am delighted that the noble Lord, Lord Mawhinney, takes the view that they should be seriously considered by the Minister.
The point of Amendment 296 is to recognise that, in many cases, CCGs have to take account of the services given by foundation trusts—not least in respect of, for example, pathways and networks for people with chronic conditions. We thought, therefore, that it was important that there be not just sharing of information between the two but, rather, a process of interactive education, where the foundation trusts become increasingly aware of the responsibility that CCGs bear, particularly for those clinical conditions that lie beyond the capacity of a single CCG. That is why we suggested that a governor should be named by the national board to set up that communication—which, as the noble Lord, Lord Mawhinney, knows far better than I do, because he is an expert on the subject, sometimes, sadly, does not exist.
My Lords, I will just raise a couple of points about Amendments 300 and 301, tabled by the noble Baroness, Lady Williams, in relation to the Secretary of State's role in mergers. The other day, I tried to express a little about my concerns, which I continue to have, about the speed at which the Government are expecting some of these trusts to become foundation trusts. One thing that I am beginning to see happening in the NHS—this will lead to some questions to the Minister for clarification—is the rush to merge. Mergers can take a number of forms, and a good example is in north-east London, where there is a proposal to merge Barts and The London with Whipps Cross and Newham. These three hospitals have failed to become foundation trusts but it seems to be thought that by some osmotic process, which I am not altogether clear about, such a merger will improve their prospects of doing so.
Discussions are also going on in other parts of the country about merging non-foundation trusts with successful foundation trusts. The evidence here is that there are some very high-risk ideas floating around regarding trusts which so far have not been good enough to become foundation trusts, and causing risks to stable foundation trusts by merging them with trusts which are in some degree of difficulty. However, I can see that the NHS might feel under pressure to try to get people to secure foundation trust status by the deadline that the Government seem to have in mind.
As I said the other day, trusts have had eight years to get themselves ready to become foundation trusts and they have failed to achieve it so far. You have to be one of life’s great optimists to believe that somehow, because the Secretary of State has set a deadline for 2016, it is going to happen. There is a serious question about whether the necessary checks and balances are in the system to stop what I would call silly and fruitless behaviour. Is the Minister confident that the Co-operation and Competition Panel will be a sufficient bulwark to stop what I am calling silly behaviour in relation to mergers, or do we really need the kind of strengthening that I think is implicit, if not explicit, in Amendments 300 and 301? This is a serious issue. We are beginning to see behaviour which may not be in the public interest as people try to get foundation trust status without the necessary skills and competences, or indeed the necessary financial situation in their locality, to achieve this.
My Lords, I echo many of the words of the noble Lord, Lord Warner, although I wish to put a slightly different slant on the issue. It is crucial that we press on with the project to get all trusts to foundation status. There is no doubt in my mind that having this two-tier system, which we have allowed to continue for too long, has led to difficulties in foundation trust hospitals becoming more self-reliant, more seriously entrepreneurial in the way that they think about their services, and more responsive to the local agenda, and so on. They have not had to bother because they have always had Big Brother watching. The de-authorisation process, which threatens to drag them back to the Department of Health, has acted as a sort of brake on their thinking. That has been quite difficult. I seriously think that we should move trusts to foundation status. The noble Baroness, Lady Thornton, is looking puzzled, but I think that it has been a really serious problem.
Some kind of break in the system? I shall continue with my theme: it is crucial that we move all trusts to foundation status. I quite agree that the dates that have been set before have come and gone, but quite often they have come and gone because the strategic health authorities have not provided the necessary support to move trusts to foundation status. In fact, some strategic health authorities were positive blocks in the system to the development of expertise within the foundation trust. I accept that there are some at the moment which, as the noble Lord, Lord Mawhinney, has mentioned, face the PFI problem. Te recharge is too great for them to subsume and the debt is too great. Others have long-standing debts that cannot be written off. Some are not viable because of the populations they serve. Unless we have a definite aim and objective to get them there, they will never get there. We can get there if there is a concentration on the problem. Each hospital is different. I share the concerns of the noble Lord, Lord Warner, about some of the projects to merge one failing hospital with another, or one failing hospital with a less than successful one.
The evidence from NHS trusts’ failing hospitals merging has been that they continue to fail in a bigger way. The Barking, Havering and Redbridge three-trust hospital merger was a striking example of one that did not work and never could. I have that anxiety. If we are going to move away from the process that we have put into this Bill and retain de-authorisation and NHS trusts, we accept that we are continuing with a two-tier system for ever. That would be seriously detrimental to trying to get everyone moved over into a properly regulated system. It is going to be difficult. Certainly, the role of governors needs strengthening. Governors in some places are wonderful. In other trusts, they are mixed-ability classes, let us say. They will need considerable support and development to get there. Nevertheless, it would be catastrophic to have a two-tier system continuing to run after the introduction of the Bill. We need a fixed end point to work to.
I totally support the idea of getting everybody into foundation trusts. I am questioning whether the processes that we have in place will actually deliver that in the time scales that are being set by the Government. I suspect that in practice you can make the kind of progress required to achieve the Government’s objective only if you reconfigure services rather than just pursuing merger mania.
My Lords, this has been an extremely valuable short debate on Part 4. I hope it will be helpful if I explain briefly why I feel that the provisions of this part of the Bill are so important.
They are very much part of our overall vision of modernisation and improvement to meet the needs of changing circumstances: changes in demands, in resources and in innovation. They are about ensuring that foundation trusts are accountable, transparent and autonomous in the way they operate so that they can innovate and provide high-quality and responsive patient care.
Part 4 of the Bill will reform the legal basis of foundation trusts to bring them in line with the new system of sector regulation. Protecting patients’ interests will be at the heart of the system and we will strengthen the governance of foundation trusts to ensure that this happens. We are also taking steps to ensure that all trusts become foundation trusts as soon as they are able. This will mean that all patients can benefit from services provided by organisations that put them first and provide high-quality, accessible care. It will also mean that all NHS providers would be able to take their own decisions on organisational change, such as mergers, acquisitions and separations, based on what is best for patients.
To ensure the best use of taxpayers’ money and the continued delivery of high- quality services, we will make the financing system more transparent and rules-based. Foundation trusts will be required by Monitor to report separately within their accounts their NHS and private-funded income and expenditure, increasing transparency about whether private patient activities are making a profit or a loss. We intend that foundation trusts should decide matters such as which partners they will invite to appoint their governors and how best to equip their governors with the skills they need for their role. Foundation trusts should develop their own good practice to ensure that their governors have the training they need and build up close working relationships with the board of directors so that governors have the information they need to hold the directors to account on behalf of the members whom they represent: the public, staff and patients.
I understand the intention of my noble friend Lady Williams in proposing that the NHS Commissioning Board should appoint a governor to each foundation trust, but I agree with my noble friend Lord Mawhinney because I believe that the right kind of close partnership working between foundation trusts and their commissioners can be achieved in a whole lot of ways and that trusts should be able to develop this relationship in the way that best works for them. To mandate an arrangement such as the one that my noble friend proposes would not be the right way to do it. I also quite agree that it is important for the provision of integrated services that foundation trusts should work closely with their partners in local authorities and other healthcare sectors. However, again, foundation trusts should be free to set up the most effective ways of doing this, including executive and professional collaboration. Similarly, we would not want to prescribe governor attendance at all parts of the directors’ board meetings. It is for foundation trusts themselves to decide how to deal most effectively with discussions and decisions on sensitive and confidential matters so that the trust’s interests are best served.
I also feel strongly that it would not be appropriate for the Secretary of State to become involved in the approval of mergers and separations of foundation trusts. Foundation trusts are themselves best placed to decide what will work well for their patients and staff, and to involve the Secretary of State would be to add an extra layer of bureaucracy for no good purpose, in our view.
The amendments tabled by the noble Baroness, Lady Thornton, seek to preserve the current position where foundation trusts can be subject to terms of authorisation applied by Monitor and, if they fail to meet their principal purpose, they can be de-authorised and returned to central control. The obvious point to make about this idea is that it would be incompatible with our proposal to repeal NHS trust legislation once the foundation trust programme has been delivered. The more deep-seated objection is that these amendments would depend on an infrastructure which we propose to replace with a comprehensive new regulatory system. There would be no obvious body to manage the performance of reverted NHS trusts, including measures for dealing with providers at risk of becoming unsustainable. We have looked at this from a different angle. Our proposed system would shift the emphasis from maintaining the existence of an unsustainable provider, often at great cost to the taxpayer, to ensuring continuity of essential services to local populations. That is surely what matters. It is surely right for the system to be geared towards continuity of service provision.
A further amendment by the noble Baroness, Lady Finlay, proposes that abolition of NHS trust legislation and repeal of Monitor’s authorisation powers should not happen before 2020. We are taking a stronger, more testing and more transparent approach than before to managing the foundation trust pipeline, and we expect the vast majority of NHS trusts to become foundation trusts by 2014. This would give patients a clinically and financially sustainable NHS provider system, by definition, because otherwise the trust would not have been authorised as a foundation trust. I am afraid that the noble Baroness’s amendment would not support the change in momentum and mindset that is now evident within the NHS. I very much agreed with the cogent points raised on that topic by the noble Baroness, Lady Murphy.
The noble Baroness, Lady Finlay, quoted the HSJ saying that some foundation trusts plan to make major reductions in staffing. I have not read my HSJ this week yet but I think that foundation trusts themselves are best placed to make decisions about how to provide services efficiently and effectively, which includes ensuring that they have the right levels of staff. What matters are those services. It is always regrettable if front-line staff posts are reduced, but if the service can be maintained in as good a way or better, that is surely what should matter in the end.
I apologise to the House, having regained my voice. The point I wanted to make was that there is a tension sometimes between changes of administration and management and the pressure to try to maintain the quality of patient service. We have already seen a situation where it went too fast and in the wrong direction without sufficient regard to quality. The Minister has often given us reassurances that quality of patient care lies at the heart of what the Government are trying to do. I just want to have reassurance that there would not be undue pressure. While there is always a need, if you are bringing about change, to have some pressure because organisations have an inherent resistance to change, rather than unduly pressurising an organisation that was not in a fit state to cope with that change, going a little more slowly might allow it to cope better.
I understand that point. That is why we have built additional flexibility into the system. Although we have target dates for each of the NHS trusts that we plan to move to foundation trust status, we understand that nothing can be fixed in stone. There is some latitude here but at the same time it is important to have target dates; otherwise the momentum that the noble Baroness, Lady Murphy, referred to will be lost and that would be very regrettable.
That brings me to the point made by the noble Lord, Lord Warner, that there appears to be a rush to mergers. We agree with the Public Accounts Committee and the noble Lord himself that mergers are only one way of creating more sustainable providers and services. Mergers must be assessed robustly to ensure that they really will deliver the promised benefits. The Co-operation and Competition Panel does that but at present it can only make recommendations. The NHS Trust Development Authority, which we propose to establish, will play an important complementary role in avoiding what one might call silly mergers. The key has to be local ownership and accountability, not oversight by the department. I was interested to see the amendment tabled by the noble Lord, Lord Warner, about the gathering of management accounting data. I am personally a strong advocate for effective financial and management controls. I am sure we all want to see the NHS become more efficient. The problem with the amendment as drafted is that the system it proposes looks a bit clunky and bureaucratic. It goes against the grain to impose an extra layer of accounting and reporting requirements from the centre and it would clearly cut across the responsibilities of the foundation trusts’ governors and directors.
It is right for me to emphasise by way of concluding remarks that these reforms have been developed in discussion with, and informed by, the Foundation Trust Network, the Foundation Trust Governors’ Association, Monitor and individual foundation trusts. They are built on the experience of what foundation trusts know will work. I hope that in itself is a reassuring statement. I have not addressed the point by the noble Baroness, Lady Thornton, about the PAC report, which I am happy to do once she has intervened.
My understanding is that the emphasis that we are placing on continuation of services rather than receivership and failure regimes has been welcomed. There are ways around what some might see as an inevitable conveyor belt to receivership. That should be only a last-ditch resort. We are putting mechanisms in place to ensure that the essential services on which patients depend should continue. That is a better way of looking at things.
I have been thinking about something that my noble friend the Minister said a moment ago. The amendment would require the Secretary of State’s approval, in addition to that of more than half of the members of the council of governors, for an application made under this section. He did not welcome the amendment of the noble Baroness, Lady Williams, on the grounds that the approval of the Secretary of State amounted to an added layer of bureaucracy. It would be helpful to the Committee if we were to know whether the Secretary of State is always considered to be an added layer of bureaucracy and, if not, can he give us a couple of examples of when the Secretary of State is a net plus?
My Lords, since my question to the Minister, before he rises, is in similar territory, I might as well leave him sitting down for the moment and get my question in. As I indicated the other day, I have been involved in what is legalistically an acquisition, although we have always talked of it as a merger, of a foundation trust by its neighbour, due to come to fruition at the turn of the year. The last hurdle that we had to overcome, though it was not much of hurdle, was the need for the Secretary of State to sign off dissolution orders for the existing trust, and at least one other order, to allow this to happen. Is my noble friend saying that, under this Bill, such things could proceed untouched by the Secretary of State? I do not have a strong view one way or the other, but it is quite an important change if that kind of reconfiguration can occur without the Secretary of State even having to agree.
My Lords, I would not dream of putting my right honourable friend the Secretary of State’s nose out of joint by calling him “an added layer of bureaucracy” in all circumstances. If I did so, I retract it immediately before it catches up with me. The answer to my noble friend is that the Secretary of State is not that of course; he has a major role in the structure of accountability and decision-making in the architecture of the Bill.
The issue to which my noble friends Lord Mawhinney and Lord Newton have referred is, however, complicated. I have asked for briefing on the way in which the merger process will work. It is quite extensive. To cut to the chase, an application from an NHS trust to merge with a foundation trust must be supported by the Secretary of State. That reflects current rules. However, the Bill removes the requirement for a foundation trust to consult the local authority on a merger. Section 244 of the Act, as amended by the Bill, would provide powers for regulations to make provision as to matters on which NHS bodies, including foundation trusts, must consult local authorities. We intend that foundation trusts will continue to be required to consult local authorities on particular matters set out in regulations and we will consult on those. That is the local authority bit of it. There will also be a duty of public involvement on foundation trusts in relation to such matters as the planning of service provision, proposals for changes in the way in which services are provided and decisions affecting the operation of services. I would be happy to write to both my noble friends—it would probably be better if I did so—to set out exactly what we envisage in the circumstances that they have raised.
I do not want to delay the Committee unduly, but perhaps I could refer to the PAC report to which the noble Baroness, Lady Thornton, referred. We welcome the report, which says that the NHS is in need of major overhaul. What is interesting about the report is what it shows about the state of the provider sector when the Government took office last year. It had problems such as hidden bail-outs, inadequate leadership and toxic PFI deals. These matters had not been addressed and we have made the firm decision that we cannot continue on that basis. That is why we are proposing independent assessments of trust boards as part of the foundation trust authorisation process.
As regards that process, trust boards will be independently assessed. The point of that is to ensure that they are up to scratch and able to lead their hospitals to foundation status. The underlying issue here is that we want all trusts to be clinically and financially sustainable in the future. The Public Accounts Committee has, very properly, drawn to our attention various issues around the capacity and capability of leadership, among other things, and my noble friend Lord Mawhinney mentioned PFI as another issue. All NHS trust boards will have to identify their strengths and weaknesses before being independently assessed. That is a robust discipline.
As my right honourable friend made clear in October, if, even after receiving support, management teams fail to improve their performance, then action will be taken. This could include their possible removal as a last resort. The Government will provide help to a small number of challenged hospitals to turn themselves around where necessary, but only after they have met the four tough tests that we have laid down. The problems they face must be exceptional and beyond those faced by other organisations; they must be historic; they must have a plan to deal with them in the future; they must demonstrate that they are improving their productivity; and they must deliver high-quality, sustainable services.
Before I conclude, I should like to speak to a number of minor and technical government amendments—for that is indeed what they are—in this group. These make consequential amendments in line with the revised provisions of the Bill; they correct drafting errors to correct references and numbering, or they remove redundant references to repealed legislation. Their purpose is to make the Bill work properly and to ensure that the legislation is up to date.
I beg leave to withdraw my amendment, with the simple comment that I thought the reply of the Minister—which was, as usual, very well argued—strengthened the case for both of my amendments even more than I had thought before, and I am grateful for that. Strong leadership, as the Public Accounts Committee calls for, was exemplified by the Minister but should include the Secretary of State. However, may I now move on to the next group?
If the noble Baroness would indicate what she wishes to do with Amendment 296, that would be helpful.
Amendment 296 withdrawn.
296A: Clause 148, page 148, line 34, at end insert—
“( ) After paragraph 10C of that Schedule insert—
“10D The governors shall be notified of and have the right to attend all meetings of the Board and its sub-committees and have access to all relevant documents and papers.
10E For this purpose, governors will be required to acknowledge their duty to protect confidentiality.”.”
My Lords, I listened with interest to what the Minister had to say and I was surprised that he dismissed, in a rather cavalier fashion, our two very small and modest amendments about access and transparency for foundation trust boards. We had to force foundation trusts to meet in public. They do not have a good record for their transparency or their willingness to be accountable. That is not so across the board—some are absolute models. I looked in vain for something among all the amendments that the Minister has proposed that might address this important issue of accountability.
I am very disappointed with the answers to my Amendments 296A and 298A. They are modest amendments about accountability. I beg to move, and I would like to test the opinion of the House—
If the noble Baroness would like a fuller answer, I would be happy to give her one. I am glad to give the Committee an opportunity to hear a slightly fuller answer to the noble Baroness’s amendments. I apologise that I skirted over them in the need to move on.
On Amendment 296A, the purpose clearly is to ensure that governors of foundation trusts have all the relevant information about their board’s activities and decisions to be able to hold them to account. That is not a controversial idea, but the amendment may have the opposite of the effect that the noble Baroness intends. If boards are forced to have governors present at all meetings, they may instead discuss confidential matters in private to maintain confidentiality and hold robust and frank discussions. If governors are admitted to private board meetings, the directors may be inhibited from discussing those confidential matters. The governors can best be kept informed of directors’ activities by close working relationships with them, regular performance reports, meetings with directors including the chair and chief executive, access to all directors and joint activities with directors. It does not have to be the formula that the noble Baroness has suggested.
The noble Baroness said that we had to force foundation trusts to meet in public. That is not right at all. It was we who made foundation trusts have their meetings in public; the previous Government resisted doing that for the whole of the time when they were in office, or from the whole of the time when foundation trusts were set up in 2003, so I do not think that that criticism is at all fair.
On Amendment 298A, the purpose is to require foundation trusts to account separately for NHS and private activity, to show whether that activity is making a profit or a loss. We agree with the broad principle of separate accounting, as we indicated earlier, but we are concerned that putting a requirement like this in statute would impose high costs on foundation trusts with low levels of private activity. Many foundation trusts have little, if any, private activity. We have given a commitment that to provide assurance and transparency we will require foundation trusts to produce separate accounts for NHS and private funded services where they exist. To support its new regulatory functions, Monitor will require foundation trusts to report separately within their accounts their NHS and private funded income and expenditure. That will increase transparency.
We are onside with the theme of the noble Baroness’s amendment, but we do not think that she is setting about it in the right way. It is too heavy handed, and I hope that she will withdraw it.
It seems rather extreme and extraordinary to be plunged into the possibility of a vote on a matter such as this without further consideration of what the Minister has had to say, particularly with a fairly thin House at the moment, although I have some sympathy with the noble Baroness. But it is obviously up to her to make her own dispositions.
My Lords, the problem with transparency and accountability is that the issues of confidentiality and expense are always used as excuses. I do not deny that my own Government almost certainly used them as reasons for not proceeding with issues of confidentiality and accountability. I am struggling with the idea that we should withdraw this amendment, because I feel that this is a really rather important matter. It may be a very small and minor matter, but it is actually rather important and I would like to test the opinion of the House.
Clause 148 agreed.
Clause 149: Directors
297: Clause 149, page 149, line 20, after “whole” insert “for the purposes of the National Health Service”
My Lords, I shall speak also to Amendments 299A and 299AA.
Before I do so, let me say just a word or two about two other amendments in this group, that is, Amendments 299ZA and 299AZA. I warmly thank the Minister, my noble friend Lord Howe, for having listened with such care to those of us who spoke to him about the issue of foundation trusts, in particular the issue of the private income paid into foundation trusts and the question of how that private income should be used ultimately for the benefit of the health service. He has been very patient, very willing to listen and extremely helpful. On behalf of these Benches and my own party I would like to thank him, and I am sure that others in the House will share that gratitude for the way in which he has responded.
I do not want to go into detail, because the amendments are very clear and have been laid, beyond saying that the first of those amendments, Amendment 299ZA, clearly states the situation with regard to income that comes into a foundation hospital—that is, that that income must be ultimately devoted to the health service. It sets beyond question or ambiguity the Government’s position on this critical issue. I am therefore extremely grateful to the Minister for that.
I also strongly support the proposals about the annual report. I take to heart the Minister’s distinction between the way in which the annual report deals with the funding of National Health Service patients in foundation trusts and with the separate funding of private patients in foundation trusts. On both those issues, it is extremely helpful that the annual report should be clear and open, so that we can all discuss not only the very serious issues that have been raised by the noble Lord, Lord Warner, but also, as pointed out by the noble Baroness, Lady Thornton, the very disturbing report from the Public Accounts Committee, which reiterates over and over again the need for leadership and for a clear statement of where the trusts stand, and the real concerns it has about the difficulties that some of them now confront. It is a dramatic report, and we should commend it to this House as far as we possibly can. Perhaps a separate debate on that issue in the Public Accounts Committee report would be appropriate on some future occasion.
Having said that, I will add only one other thing with regard to the first two amendments I mentioned, which are familiar enough to the noble Earl. In my view, it would be very helpful if there were “belt and braces”, by which I mean a government amendment which would indicate that, in the case of foundation trusts, the majority of patients should be NHS patients. That is, there should be an unquestionable commitment to having a majority of NHS patients. There are two reasons for that. One is simply that, good as the amendment unquestionably is, it is difficult for the general public—I certainly include myself in this—to understand the precise thrust of Amendment 299ZA, which I have quoted. It is helpful in this complicated Bill to have some islands of clarity that those who are not experts in the field—again, I include myself—can understand. People could understand the simple concept that a majority of patients should be from the NHS, not the private sector.
The other reason why I beg him to look at this carefully is that it is also important from the point of view of the complex debate that we have already had in this Committee on the issue of competition policy and EU competition policy. If there is a clear statement that the majority of patients must come from the NHS, that should be immensely helpful in ensuring that we are not then subjected to the rigours of the extreme competition policies defended at present in the EU and, indeed, by our own Competition Commission. My noble friend Lord Clement-Jones, who knows a great deal about the legalisms of competition policy, may have something to add on this point.
I turn briefly—well, fairly briefly; I am now conscious of the disapproval of the noble Lord, Lord Mawhinney, so I shall be a little more detailed—to the three more minor amendments in the group that my name is associated with. The first of those is Amendment 297, where we would like to add the words,
“for the purposes of the National Health Service”.
In order to persuade noble Lords of the importance of this, I will read out the text that the Bill currently inserts:
“The general duty of the board of directors, and of each director individually, is to act with a view to promoting the success of the corporation so as to maximise the benefits for the members of the corporation as a whole and for the public”.
In that wording, the public trail far behind the interests of the members of the corporate body. That is unfortunate and unwise. We are therefore proposing the simple amendment that the words “for the purposes of the NHS”, which, as noble Lords will appreciate, recur in other parts of the Bill on many occasions, should be added to this section about the directors of foundation trusts. It is important to reiterate that foundation trusts work for the interests of the NHS, which is why we have suggested this simple amendment.
On Amendment 299AA, on which my noble friend Lord Clement-Jones will speak in slightly more detail, the point here is quite straightforward. Clause 162(1)(a), which we are suggesting should be left out, removes the existing subsection in the National Health Service Act 2006 that limits the provision of private services. In particular, the 2006 Act permits not the abolition but the restriction of private health services within foundation trusts. Section 44(1) of the 2006 Act provides that,
“An authorisation may restrict the provision, for purposes other than those of the health service in England, of goods and services by an NHS foundation trust”.
In other words, that subsection again sustains the argument that there is a role for the private sector but that there must be restrictions on it if the NHS trusts and foundation trusts are to sustain their fundamental legal obligation to the NHS. It is important that these restrictions should be upheld. Indeed, the authorisations that I have referred to are critical to the concept of maintaining the foundation trusts within the health service system and therefore making it less vulnerable to competition legislation.
The final amendment that I want to refer to is Amendment 299A, where we are simply bearing out what I have already said. I therefore hope the House will now hear additional arguments from my noble friend to show why this group of amendments is very important in order to retain the current status of foundation trusts, which is very welcome, and which will assist in meeting some of the trenchant criticisms of the Public Accounts Committee about this whole sector of the health service. I beg to move.
My Lords, I will come in very briefly. I declare a past interest as former chairman of the Royal Brompton and Harefield NHS Foundation Trust, which probably has as large a private patient income as any in the country. Frankly, that income considerably benefits the two hospitals and their NHS patients.
I welcome the amendments of my noble friend, and hope that the Minister will give them careful consideration. All of us in this House, not least those of us who are former Ministers of health, have been united in our wish to see a successful and flourishing NHS, and in being really dedicated to it. It would be an oddity if a hospital designated as an NHS trust—whether foundation or otherwise—were treating a majority of patients who were not NHS patients. That is quite a simple proposition, and it is the one advocated by my noble friend Baroness Williams.
The amendments already tabled by my noble friend on the cap on income are extremely welcome and sensible. However, I hope that he might think of—dare I say it—embracing the thoughts of my noble friend Lady Williams as well in some further modification of those amendments so that they refer both to income and to numbers. The numbers thing will be more readily understood by many members of the public. Clearly we do not want NHS trust hospitals to gain most of their income from doing non-NHS work or from treating non-NHS patients. That just does not make sense. It would helpful if we could make that clear.
My Lords, my noble friend Lady Williams very clearly set out the approach of these Benches to a number of amendments in this group. I simply want to return to EU competition law for a moment. The noble Earl’s amendment regarding limits on the cap goes quite some way to mitigating one of the elements of risk associated with the greater application of EU competition law. As I outlined on Tuesday, there are some really significant issues in the Bill which will introduce EU competition law to a much greater extent if we are not careful. One of those, clearly, is the uncapping of private patient income of foundation trusts. I am very pleased that the noble Earl has gone some way to dealing with some of those concerns. However, I of course very much share the view of my noble friend Lady Williams that we are not quite there yet, and that it would be belt and braces to have the additional safeguard of a limit on the numbers as well as on the revenue.
Generally, four key issues arise from the changes to Sections 43 and 44 of the 2006 Act, quite apart from that of EU competition law. First, there is the question of limits on the cap—what kind of limit is appropriate? Secondly, there is the question of being absolutely certain that any income from private patients is exclusively devoted to the National Health Service. Thirdly, there is the question of prospective transparency—of being well aware of what the plans of foundation trusts will be. Fourthly, there is the question of transparency after the event, in terms of reporting in an annual report.
As far as the limits on the cap are concerned, as I have mentioned, the noble Earl’s Amendment 299ZA is welcome, but it would be useful if he could consider whether any further qualification of that cap was appropriate. There is also the question of being absolutely certain that we are talking about this income going exclusively to the NHS, which is what my Amendment 299A goes towards—that is why I seek to add the word “exclusive” to the changes to Section 43 of the Act.
On the question of prospective transparency, I very much welcome the Minister’s Amendment 299AZA, but that simply provides for reporting after the fact. It is important to share prospectively with the general public and people in the locality the governors’ process for determining the right balance between private income and the NHS activities in a trust. That is what my amendment seeks to achieve by requiring the situation to be set out in an annual plan.
There are four elements. We are some way down the track towards achieving a number of them. At that point, I think that on at least one of the limbs that I and many others are concerned about—the further introduction of competition law to the NHS—we will be satisfied. We will at least have knocked over one of the green bottles, so to speak, with several more to come.
My Lords, the noble Lord, Lord Clement-Jones, has put his finger exactly on the point here. I absolutely agree that, welcome though the amendments in the Minister’s name are, they do not go far enough. Counting things after the fact will not necessarily provide the kind of protection that is required in this area.
Section 44 of the National Health Service Act 2006 currently provides for a limit on the proportion of income that an NHS foundation trust obtains from private charges. I am familiar with this; I had to deal with it in the Health and Social Care Act 2008. That was the point at which my party agreed that there needed to be a review of the private patient cap. That is absolutely the case and we would agree on that. The restriction was introduced to ensure that NHS foundation trusts continued to focus primarily on NHS patients, as the noble Baroness, Lady Williams, explained. However, as we accepted at the time, the way that the cap was based on the financial year cemented in a widely varying range of restrictions, from zero to a little more than 30 per cent, with the average being around 1.5 per cent.
The Bill lifts the cap completely. The abolition of the cap on the amount of income that foundation trusts can earn from other sources has the potential to act as an incentive for foundation trusts and could earn them income. However, we believe that it is not right for the Bill to lift that cap unconditionally. I would pray in aid of this many organisations. For example, the Royal College of Nursing said in its response to the October 2010 White Paper:
“the RCN cannot support the removal of the private income cap”,
until foundation trusts can credibly demonstrate,
“that private income is not taken at the expense of NHS patients … the current arrangements … should remain in place”.
The Royal College of Midwives similarly said that its,
“chief concern is that this could accelerate the development of a two-tier service within foundation trusts, with resources directed towards developing private patient care service at the expense of NHS patients”.
The King’s Fund, in the consultation on Liberating the NHS, supported reform of the cap. However, it stated that processes need to be in place to ensure that there is no conflict with or compromising of quality of care for NHS patients or efficient use of taxpayers’ money. The question is: have the Government achieved that? I think that there is still a question mark over it. In its briefing on the Bill’s Second Reading, the BMA said that,
“this could lead to a two-tier health service, as foundation trusts invest more resources in non-NHS facilities”,
and could come at the expense of NHS patients’ ability to access facilities.
In fact, the Department of Health’s legislative framework of December 2010 acknowledged that concerns were legitimate, but chose to rely on FTs’ “social ethos and values” rather than impose proper procedures, accountability, transparency and regulation which would ensure the protection of NHS patients. We oppose the Question that the clause stand part of the Bill in order to have this necessary discussion.
I refer briefly to Amendment 299 in the name of my noble friend Lord Beecham, which is a probing amendment. His concern was that the regulator must be satisfied that any application for FT status is able to provide goods and services for the purposes of the National—National—Health Service in England. In parts of the Bill, that is not absolutely clear.
My Lords, I welcome the comments of the noble Baroness, Lady Thornton, that her opposition to the Clause standing part of the Bill is for probing purposes, as are some of the other amendments. We have all welcomed the review of the private patient income cap introduced by the previous Government following the judicial review by Unison of Monitor’s interpretation. The Government’s amendments go a long way to addressing our concerns about the extension of private income diverting NHS hospitals into private activity. I understand and have great sympathy with the amendments tabled by the noble Baroness, Lady Williams, and the noble Lord, Lord Clement-Jones, in that respect.
I ought to say that I have never, as an NHS consultant, practised privately. This is both an ideological and a practical matter. As I mentioned before in Committee, my own professional activity simply could not be done effectively without working in conjunction with social services, housing and the voluntary sector. It would not, therefore, have sat very easily with my activities. I have, of course, seen the very important role that private income plays in swelling the NHS coffers in many foundation trusts. However, it is worth reminding ourselves how dreadfully unfair that private patient cap has been. Hospitals like the Royal Marsden have a cap of 30 per cent, but they manage to do that work without any diversion of activity from their brilliant NHS service. Many acute FTs and all mental health foundation trusts have a cap of zero. For NHS FTs as a whole, the average PPI cap is 1.5 per cent of their income. The overall figure is therefore tiny. Foundation trusts’ private income was less than 2 per cent of their total income across the board. However, this income can be very welcome to individual hospitals. Anything that makes the system fairer for hospitals is extremely important. It is of course worth saying that ordinary NHS trusts do not have a cap and can make as much income as they like.
We need a mechanism to enhance FTs’ commitment to remaining focused on NHS patients. I believe that all existing foundation trusts are focused on that, but if we approve the government amendments—Amendment 299AZA and one other—they will go some way to ensuring that at least the majority of activity remains as it is. In reality, private practice is not likely to extend very much. The provisions will prevent the kind of unfairness and terrible bureaucracies that have been associated with joint ventures and the complexities of the current rules which even the judge in the judicial review of the private patient income cap admitted were real practical difficulties for foundation trusts that needed to be addressed.
The government amendments are strong, but I would not entirely not support some of the stronger amendments tabled by the noble Baroness, Lady Williams.