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Lords Chamber

Volume 744: debated on Wednesday 13 March 2013

House of Lords

Wednesday, 13 March 2013.

Prayers—read by the Lord Bishop of Newcastle.

Marine Conservation Areas


Asked By

To ask Her Majesty’s Government what progress they are making in the designation of sites as marine conservation areas.

My Lords, we are currently holding a public consultation on proposals to designate a first tranche of up to 31 marine conservation zones in 2013. These will complement the large number of existing marine protected areas to contribute to an ecologically coherent network.

My Lords, I first congratulate the Government on carrying this project forward, and especially commend the impetus given to it by the Minister, Richard Benyon. Ought we not now to be pressing ahead much more urgently? Could the Minister say when the next tranche of marine conservation zones will be announced and how many there will be? Is it not the case, if further evidence is required, that existing marine conservation zones demonstrate remarkable replenishment of fishing stock? Does that not give longer-term security to commercial fisheries? Could we not have an early ban on the sort of scallop dredging that has taken place off the coast of Yorkshire, which effectively scalps the seabed?

Finally, I ask for a clear timetable to be given now for an ecologically coherent network of marine protection plans.

My Lords, my noble friend asked first when additional sites will be brought forward in a tranche. We will shortly be in a position to assess how the consultation has gone. I very much hope that we will be in a position to make a further announcement on more sites thereafter.

My noble friend essentially asks whether we do not already have enough evidence. I give him some examples of the type of evidence that we require, which goes a little further than he suggested. We are doing additional habitat and seabed mapping, an in-depth review of the evidence base supporting the recommendations from the regional projects, a study of the value of spatial protection measures for mobile species, and studies to enable the quantification of benefits from the impact assessment.

My Lords, can the Minister confirm that most marine protection areas benefit very much from the original inhabitants living there and helping to look after it, unlike those of the Chagos Islands, whose disgraceful exile means that they can play no part?

My Lords, I would not want to criticise what other countries are doing, but I agree with the noble Baroness about the protection that these zones can give to the species and habitats that we are seeking to protect.

My Lords, I declare an interest as Lord Warden of the Cinque Ports. Taking the second part of the question of the noble Lord, Lord Eden, further, can the Minister say what consideration has been given to the small inshore fishermen whose livelihood depends on fishing in some of these designated areas?

The noble and gallant Lord is absolutely right to raise the issue. These fishermen have been involved as stakeholders in the regional projects and their representations will certainly be taken into account in the consultation.

My Lords, 58 marine areas are said to be seriously threatened and in need of immediate protection. Will the Minister say when the scientific evidence that the Government are commissioning at a cost of £3.5 million will be available, so that decisions about further designations can be made?

Yes, my Lords. First, it is worth saying that a sizeable proportion of the 58 are included in the 31 that are currently out for consultation. As regards the others, there are questions over data certainty and cost to which my noble friend Lord Eden referred earlier. We will have new scientific evidence to use along with responses to our consultation when making our final decisions on which sites should be designated this year. Further evidence will continue to become available thereafter and will be considered when making decisions on future tranches of marine conservation zones to complete the network.

My Lords, the aim of the marine Act was, as the noble Lord, Lord Eden, said, to establish an ecologically coherent network of sustainable conservation zones. The Government’s current suggestion of just 31 falls way short of achieving that aim and ignores the Government’s own science. The environmental and social gains of protecting our marine environment are obvious, but has the Minister seen the analysis showing an economic gain of £10 billion in Scotland alone through this sort of protection? Instead of trading insults with Hugh Fearnley-Whittingstall in the Guardian, should not Richard Benyon, the Minister in the noble Lord’s department, build on what the previous Government established and, as the noble Lord, Lord Eden, has asked, give us a clear timetable—not “shortly”—for further implementation?

My Lords, I cannot accept very much of what the noble Lord has said. Far from what he has said, over the past three years we have been changing the way we manage our seas. We have introduced marine planning, set up new organisations to police our seas, improved marine licensing, reformed domestic fisheries management and, vitally, introduced marine conservation zones.

My Lords, can my noble friend give us a little more detail on the timing that will ensue from the 31 areas that he has out for consultation at the moment? At what point will these receive European recognition as proper conservation areas, and what powers do the Government seek to enable us to control these, when they are outwith our immediate territorial boundaries?

My noble friend is absolutely right to raise that issue. I have done the best I can to address the issue of timing. We will complete the consultation and, as soon as we can, we will announce its results and move on to further tranches. As regards the involvement of the European Union, and indeed individual member states, of course they will be listened to when they make their responses to the consultation.

My Lords, will the Minister confirm that the Government will continue to take a balanced approach when designating these sites, taking into account all interests? Will he also confirm that any site will not inhibit the free passage of international shipping on which we, as an island nation, depend for almost all our needs?

Again, I entirely agree with the noble Lord that all sides of the argument must be listened to. They have been in the process through the regional projects, they will continue to be listened to through the consultations, and similar processes will apply in future tranches.

Children: Care


Asked By

To ask Her Majesty’s Government how they have consulted early years practitioners on their plans to increase the maximum ratio of carers to babies and toddlers under two years old to 4:1, and carers to two year-olds to 6:1, where high-quality carers are available.

My Lords, my honourable friend the Parliamentary Under-Secretary of State for Education and Childcare, and officials at the Department for Education, have consulted a wide range of interested parties on our proposals through a series of meetings and workshops. Officials have also visited a number of early-years providers to discuss the proposals. The Government launched a public consultation on 29 January, seeking views on these proposals from parents, early-years practitioners and others.

My Lords, I thank the Minister for his reply, and for the Government’s consultation on this implementation. However, is the Minister aware of the widespread concern among parents, practitioners and experts, and among organisations such as the Pre-School Learning Alliance, that the Government are even considering reducing the ratio of carers to babies and carers to pre-schoolers? Will the Minister now consult with his colleagues and consider pausing, taking off the table the proposal to reduce ratios, and will he take the advice of those in the sector on how to improve quality and affordability of childcare?

My Lords, our consultation on adult/child ratios will continue until 25 March. We should not pre-empt its outcome. The changes that we have proposed to the ratios are not obligatory. Providers will be under no obligation to change the way in which they operate. Our proposals are about giving freedom to high-quality providers to use their professional judgment to decide for themselves how to deploy their staff to best meet the needs of the children for whom they care.

My Lords, from September, 20% of two year-olds—those from the poorest backgrounds—will become eligible for free early-years education for the first time, which will be so important for their brain development. How will the Government make sure that there are enough new, high-quality nursery places to take those extra children, and enough early-years workers, who will be responsible for their emotional, social and language development as well as their safety?

We are doing a great deal of work with local authorities and other providers to ensure that these spaces are available. The department is allocating funding to local authorities at an average hourly rate of £5.09 for statutory two year-old places. This is a competitive rate that will encourage providers to deliver the places. We know that private and voluntary-sector providers and childminders are already delivering more places for two year-olds, paid for by local authorities. The proposals set out in More Great Childcare will encourage investment in better-qualified staff and in their training, so that more two year-olds can be cared for by professionals who are well equipped to help them develop, learn and prepare for school.

My Lords, will the Minister reassure me that he will correct the inadvertent carelessness here? Taken literally, the Question states that the Government want four carers for each toddler under two and six carers for each toddler over two.

My Lords, will this cause the usual problem of exacerbating the difficulties of those who cannot afford better rates by providing minimal care for second-class citizens whose children will be cared for at this level, while intense, high-quality care will be reserved for those who can pay better rates and employ more people?

The noble Baroness raises a good point. This is something that we will consider carefully in the consultation. It is not our intention, which is to provide higher-quality care by more highly qualified staff. All the evidence is that children from deprived backgrounds in particular, who have a deficit of structure and language in their home lives, need higher-quality staff to care for them.

My Lords, the Government’s proposals will allow childminders, for example, to look after six babies at any one time: two aged six months and another four aged 12 months. Does the Minister think that it is possible for one childminder singlehandedly to provide safe, good-quality care for such a group of babies? If so, what evidence have the Government examined to support this, and to form their view that this will not be detrimental to the development of those children?

As I said, the evidence is clear that high-quality childminders are what we need. The ratios that we propose compare favourably with those of other countries that we have visited. We will take these matters into account in the consultation.

Does the Minister agree that it is quite unrealistic to expect women to take half the seats in boardrooms and half the top jobs if there is no affordable childcare? Does he agree that, while one may quibble about changes in ratios, there is also too much pressure on women these days to stay at home and be perfect mothers? What steps will the Government take to make sure that, as in other European countries, there is ample affordable childcare to allow women who want to go to work to fulfil their potential?

We are taking steps with our two year-old offer. I agree with the noble Baroness, and Polly Toynbee herself points out that British mothers have one of the lowest employment rates in the OECD because we have the third most expensive childcare, often of mediocre quality. We believe that our proposals will go some way to solving this problem.

My Lords, does the Minister remember, or has he read, the report from the noble Baroness, Lady Warnock, on children with special needs, many of whom are concentrated in less advantaged backgrounds? Would he agree with me that those people providing childcare, whether they are carers at home or in provided accommodation, ought to be able to devote time to individual children? I am sure that the noble Lord would not be quite so sanguine had he done the job of bringing up very small children, not even family members, in difficult circumstances.

I have not read the report to which the noble Baroness refers, but I shall now do so, and I thank her for pointing it out to me. I go back to the point about quality. The EYFS is an inclusive framework for all children, which specifically requires that providers implement policies and procedures that promote equality of opportunity for all children, including those with SEN disabilities. Since 2012, the EYFS has included a new progress check for all two year-olds to identify early their specific needs.

Health: Cancer Drugs Fund


Asked By

To ask Her Majesty’s Government whether they plan to replace the cancer drugs fund with a new scheme.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and refer noble Lords to my health interests.

My Lords, we will ensure that there are arrangements in place from 2014 to protect individual patients receiving treatment with drugs funded by the cancer drugs fund. From April 2013, the NHS Commissioning Board will take on oversight of the fund. For the longer term, we are considering ways in which patients can continue to benefit from drugs provided through the fund, at a cost that represents value to the NHS.

My Lords, my understanding is that the Government’s original intention was that the fund would be replaced from January 2014. Can I take it from the Minister’s response that the Government are no longer continuing with the introduction of value-based pricing for drug remuneration in future?

No, my Lords, negotiations are now in train with the pharmaceutical industry with a view to introducing a value-based pricing scheme for medicines licensed after 31 December this year. That is still the Government’s intention.

My Lords, as regards the introduction of value-based pricing, can the Minister confirm whether cancer patients will be consulted about the definition of value within that concept? Can he confirm that the impact on quality of life will be included in the assessment of value?

My Lords, we consulted on our proposals for value-based pricing between December 2010 and March 2011, and as part of that process a number of patient organisations contributed their views, which were reflected in the Government’s response to the consultation, published in July 2011.

My Lords, what will happen to the panels of cancer experts that gave such valuable advice to SHAs about which drugs should be provided?

My Lords, when the arrangements for the cancer drugs fund pass to the NHS Commissioning Board in April, there will be standard operating procedures for the fund, which will provide greater consistency of access across the country while also preserving the right of clinicians to request any drug that they think will help a patient. The standard operating procedures will be published very shortly, and the noble Lord will then receive a fuller answer to his question.

My Lords, can the Minister elaborate on what reports, if any, have been produced from the Chemotherapy Intelligence Unit in Oxford on the efficacy of the cancer drugs fund? What will be done for those patients who have received relief from this fund for their treatment in future?

My Lords, the noble Lord raises a very important point because clinical audit of the drugs in the cancer drugs fund and their use will be extremely important in informing the use of these drugs going forward and, indeed, in determining their price under a value-based pricing scheme. As yet we have not heard from the Oxford Cancer Intelligence Unit although I understand that we will receive a preliminary report quite soon. However, as I mentioned earlier, when the current fund comes to an end we will ensure that those patients who are receiving drugs under it will continue to do so.

My Lords, does the Minister agree with me that the cancer drugs fund has been very helpful? Will he find some way of getting more orphan drugs for the very rare cancers, because that is a problem?

The noble Baroness raises another important point about orphan drugs and indeed ultra-orphan drugs as they are termed—drugs which are efficacious and helpful for patients with very rare conditions. It is likely that we will need to put special arrangements in place for the pricing of those drugs. Overall, however, I agree with the noble Baroness that the cancer drugs fund has been immensely helpful. So far, since October 2010, the funding has helped more than 28,000 patients in England to access the cancer drugs that their clinicians recommended, which they would not have done otherwise.

Will the Minister confirm that whatever new arrangements are put in place will be on the same principle and basis as the current cancer drugs fund?

I cannot confirm that we will replicate the current cancer drugs fund in its entirety—no decision has been taken—but we are clear about the principle behind the fund. The reason for creating it in the first place was to help the thousands of cancer patients and clinicians who were having difficulty accessing some cancer drugs mainly as a result of funding constraints. I assure the noble Lord that we will continue to retain that thought very much at the front of our minds.

My Lords, can the noble Earl assure the House that the introduction of a value-based pricing system will not delay the introduction of new drugs into the UK, given that the current system of remuneration for drug companies provides a clear incentive for early introduction in this country as opposed to other countries in Europe?

The noble Lord is absolutely right. That, again, is a point that we are bearing very closely in mind in our discussions with the industry.

Pesticides: Bees


Asked By

To ask Her Majesty’s Government whether they intend to support European Commission proposals, to be discussed at the Standing Committee on Phytopharmaceuticals on 14 March, to reduce the use of a range of neonicotinoid pesticides hazardous to honey bees.

My Lords, the Government take very seriously the need to protect honey bees and other pollinators. We are completing our scientific assessment of neonicotinoids and have carried out new field trials. We have urged the Commission to base any proposal on a proper assessment of the science and not to make a hasty decision which might have significant knock-on impacts. We have concerns about the Commission’s current proposal as it does not appear to follow this course.

My Lords, given that the European Commission is not proposing an outright ban on neonicotinoids but recommending their suspension, under the precautionary principle of using just three pesticides on crops attractive to honey bees as further research is undertaken, will my noble friend the Minister explain to the House why France, Germany, Italy and other European countries will support the recommendations of the European Food Safety Authority, which has concluded that these insecticides pose “an unacceptable danger” to bees? If we vote against this proposal tomorrow, there is scientific evidence that British bees, already in serious decline, will suffer.

My Lords, I am grateful to my noble friend not only for his Question today but for his long-standing interest and for initiating a recent debate in your Lordships’ House on bees. I assure noble Lords that, contrary to what they may read in the press, we approach this question with an open mind. We are, indeed, doing further analysis on fieldwork we have had carried out specifically to address this issue because it is vital that what we do is proportionate and based on the science.

My Lords, I declare my interest as an arable farmer in Warwickshire. I should like to ask two questions. First, can the noble Lord confirm that there is currently no other valid protection for seeds other than neonicotinoids? Secondly, and perhaps more importantly, will he please follow the recommendations of the Government’s own committee, the Advisory Committee on Pesticides? In July last year, its minutes stated:

“The ACP had reviewed the evidence currently available. It was noted that this evidence did not include any evidence of significant impacts in practice in the UK. Based on the current evidence ACP had concluded that there was no justification for regulatory action at present”.

Can the Government confirm that they will follow the recommendations of that committee?

My Lords, in answer to the noble Lord’s first question about whether there is any other valid form of protection for seeds, neonicotinoids are, as I understand it, the prime seed dressing. Yes, that is the case. However, there are other treatments such as pyrethroids, which can be applied after the crop has been planted, although there is increasing evidence that the pests we are talking about are becoming resistant to pyrethroids. That is a concern. In answer to his other question about taking the advice of the Advisory Committee on Pesticides, that is precisely why we are doing extra fieldwork.

My Lords, what has been the reduction, if any, in the bee population over the past few years? Is there any particular threat to the availability of honey in this country as a result?

My Lords, the whole point of this debate is that it is quite finely balanced. That is why we are doing extra fieldwork. As to whether there is an effect on the honey harvest, it is difficult to say because we do not have categoric evidence that there is an unacceptable level of harm to bees.

My Lords, if I may answer the previous question, this is not about the availability of honey; it is about pollinators. If these chemicals are damaging bees, they are damaging other pollinators at the same time. Is the noble Lord aware of the five principal problems that appear to be arising from the use of these chemicals: fatally late swarming activity, large numbers of virgin queens not returning to the colony after mating, failure of mated queens to continue to lay fertilised eggs, a high proportion of queens producing only unfertilised “male” eggs, and abnormal supersedure?

First, I categorically agree with the noble Lord that we need to talk about all pollinators. Bees are an important pollinator, but there are several other important ones. As regards his other question, those are assertions that have come out of eminently acceptable laboratory trials. Our proposal is that what is needed, and what is lacking, is evidence of what actually happens in the field.

My Lords, given that multiple threats face these important pollinators, do the Government plan to introduce a national bee strategy to reverse the decline in bee numbers?

That is an important question. There is a considerable body of government-funded work that benefits bee species and other important pollinators, but we are open-minded about the introduction of what I might call a holistic strategy. My noble friend will be pleased to hear that I am meeting Friends of the Earth on Tuesday to discuss our current work and to get a better understanding of whether there is added value in bringing it all together in a holistic strategy, such as that organisation’s proposed national bee action plan, or what the noble Lord, Lord Christopher, might like to call a national pollinator action plan.

My Lords, as your Lordships know, bees as pollinators play an essential part in the lifecycle of the fruit and vegetables that we eat. The honey bee is just one of 276 native species of bee, all of which are under threat from the combination of agricultural practice, disease and pesticides. In his department’s negotiations with the EU to reduce hazards to bees, what is the Minister aiming to achieve to protect wild bees, such as the bumble bee that pollinates tomatoes and the long-tongued bees needed to pollinate field beans? As we have heard, with Friends of the Earth calling for a national bee action plan, does he agree that it is finally time for a “plan bee”?

That was suggested to me this morning and I pointed out that it might not be something the Government would want to call it. The noble Lord makes several very interesting points, most of which I have forgotten in the hilarity. I thank him for his points.

My Lords, does the Minister agree that neonicotinoids are applied as a seed dressing and are therefore in the soil? One of the questions the Government need to look at under the precautionary principle is how long they last in the soil as they are lethal not only to bees but to many of the invertebrates that live in that soil.

My Lords, going back to the question from the noble Baroness, Lady Parminter, does the noble Lord agree that among the many things that are important in preserving and developing the health and safety of bees is the increase in domestic beekeeping and encouraging people who have gardens to garden with an eye to what is good for bees? Do the Government have any plans to encourage people in either of those areas?

I am very happy to say that I do encourage people. When we had the debate the other day I said to the noble Lord, Lord Stevenson, who was leading for the Opposition, that I was sorely tempted, when I finished doing my current job, to become a beekeeper myself. The proposed national bee action plan could well be the sort of forum one needs to get a ground swell of opinion behind such an idea.

Global Green Growth Institute (Legal Capacities) Order 2013

Motion to Approve

Moved by

That the draft order laid before the House on 29 January be approved.

Relevant document: 19th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 6 March.

Motion agreed.

Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2013

Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2013

Motions to Approve

Moved by

That the draft regulations laid before the House on 4 February be approved.

Relevant document: 19th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 7 March.

Motions agreed.

Succession to the Crown Bill


Amendment 1

Moved by

1: After Clause 1, insert the following new Clause—

“Royal marriages: heirs of the body

(1) A marriage is a Royal Marriage for the purposes of establishing the claim of any person to succeed to the Crown as heir to the body if that Marriage is a marriage between a man and a woman.

(2) A person is disqualified from succeeding to the Crown as an heir to the body of a Royal Marriage if they are not the offspring of both parties to that Marriage.

(3) This section does not apply in any case where both Houses of Parliament pass a resolution to the effect that it shall not apply.”

My Lords, as this amendment was on the Marshalled List in Committee I can be brief, because I set out the detailed points then. However, I repeat that I do not make these points in relation to the Marriage (Same Sex Couples) Bill and would deplore any attempt to obstruct that Bill by invocation of any issue involving the Crown. I believe that that would be a dereliction of Parliament’s duty.

My concern arises from the security of the 17th century term “heir of the body”, the governing definition for the right to succession, as it might be constructively tested in the courts in modern conditions: namely, the emerging legislation for same-sex marriage and the techniques of surrogate childbirth. On the first, it will clearly be lawful for a monarch or an existing heir of the body to enter into a same-sex marriage when that Act becomes law. After all, one hesitates to imagine the circumstances in which either Clause 3(3) of this Bill were used to frustrate an intended same-sex marriage —a novel interference with rights, as others have pointed out—thereby denying that person succession to the Throne, or indeed where there was no intervention and the marriage was accepted in some of the realms and not others.

In such circumstances, the then Prime Minister would find himself in the uncomfortable position of Lord Salisbury in 1890, when Queen Victoria suddenly became enthusiastic about a possible Catholic marriage for the second in line to the Throne. I do not want to take this issue further; I simply lay on the record the potential for conflict.

However, I do want to pursue the issue that follows inevitably from the possibility of a lawful same-sex marriage. From that, and indeed from the position of a royal couple who cannot conceive a child, there follows the question of whether a child could be argued, in the 17th-century language, to be an heir of the body. I pointed out in Committee that the relevant statute refers to an heir of the body being defined from one person, not from both, in a couple.

In Committee and in a most courteous letter to me, my noble and learned friend Lord Wallace, whom I thank for his handling of the Bill, which has been outstanding, said:

“Only a natural-born child of a husband and wife can succeed to the Throne”.—[Official Report, 28/2/13; col. 1217.]

If that is so, and it has always been understood to be the position, those words would also exclude any claim to becoming a monarch made in the future by a child born of a Queen—an heir of the body of a Queen—who was not engendered by the sperm of a consort, even though that would-be heir might have been from an egg of the Queen, carried by the Queen and born of the body of the Queen in a lawful same-sex marriage. We all agree that that is the common law. I simply ask whether the common law is proof against any claim to a right that might be entertained in future, either in the European Court of Human Rights or anywhere else. It need not arise directly in the case of an existing heir but in a less proximate person, who then, by accident, became the heir to the Throne.

In his letter to me, my noble and learned friend said that the European Court of Human Rights would not entertain such a claim because the right to succeed is not a family right, a property right or a civil right. Let us hope that that is so, although it is territory into which I am not qualified to go. He further argues, however, by citing to me the Human Fertilisation and Embryology Act 2005, that an heir of a Queen’s body alone could not succeed. I raised this in Committee and referred to it as being potentially less than conclusive as a defence of the definition of “heir of the body”, given the nature of the drafting of the statute.

The relevant section refers to,

“any dignity or title of honour”.

The words “of honour” were left out in my noble friend’s letter, although I think they are significant as, by my interpretation, honour is surely something that flows from the Crown. My noble and learned friend also argues that a lesser dignity must surely encompass a greater dignity. Again, I am not qualified to answer that question, but clearly removal of any doubt as to whether the Crown is encompassed in that 2005 Act would simply solve the matter. It would debar an heir of the Queen’s body who was not the genetic heir of the monarch and his or her consort in whatever form of marriage.

Amendment 9 in the name of my noble friend Lord Elton, which I support, picks up the point that I made on this in Committee and suggests a simple amendment to the Human Fertilisation and Embryology Act. It would not offend against the Perth agreement, as it simply clarifies beyond doubt what the Government and most of us in this House believe to be the law, and it fireproofs it against attack.

It may be that these occasions seem remote but, as history shows, nothing is ever certain. In Committee, I raised the d’Este case—a challenge for legitimacy by the son of Queen Victoria’s uncle, the Duke of Sussex—as an example of a would-be royal heir having recourse to the law. Although my noble friend argued that he did not appeal to the courts, he did appeal to your Lordships’ Committee for Privileges, which was, and still is, the appropriate place for the test of a peerage.

My noble and learned friend, in his letter, says that Sir Augustus did not challenge the legitimacy of the Royal Marriages Act. That is technically correct, but he was arguing that his parents’ marriage, and therefore his right to succession, was valid on other grounds in that the Royal Marriages Act did not apply. It would be a parallel case for a future claimant to go the courts here or abroad to argue that the Human Fertilisation and Embryology Act did not rule out his or her legitimate claim.

Human nature is such that what happened once, however unlikely it may seem, might happen again. Given that it is the duty of Parliament to relieve the monarchy of any potential controversy, this matter could and should be put beyond doubt. I believe that my noble and learned friend has offered a simple way to do that. While I shall not in any circumstances be pressing my amendment to a Division—I never intended to do so—I support my noble and learned friend in seeking to clarify the 2005 Act beyond all doubt. If it is not appropriate to do it in this Bill—I have heard that argument from the Front Bench—I hope that this potential loophole can quietly and efficiently be closed some time in the future. I beg to move.

My Lords, my amendment has been grouped so that the first and last stand together. My noble friend has fully explained the circumstances that make the amendment necessary. He has traced the identification of the monarch from the Act of Settlement through various other Acts to the present. The question is whether that is a continuous and incontestable line or whether there is doubt thrown upon it. He has demonstrated that there is doubt—a point that I picked up in Committee. Doubt is thrown on it by the Human Fertilisation and Embryology Act 2008. We have discussed that in Committee but there are rather more noble Lords here than there were on that day, so it is worth repeating that Section 48(7) of the HFEA 2008 recites what is not to be altered or touched by what is in that Act.

The two things caught out are titles and other honours. To the lay mind, that does not embrace the possession of the Crown, which is the subject of this Bill, and therefore does not seem to offer any of the protection that my noble and learned friend the Lord Advocate says that it offers. I cannot see the principle by which it could. The principle will apply to the 1987 Act—that is in the same letter from the Lord Advocate referred to by my noble friend. Another letter refers to “us”—being the Government—and the Lord Advocate says that the, “lesser includes the greater”. I think that was the phrase. If that is right, my noble and learned friend should know that that brings instantly to my mind an image of a bar, other than the one to which he was called, and a quart being poured into a pint pot with an awful mess on the taproom floor. The greater surely includes the lesser, rather than the other way round. However, that is irrelevant because that referred to another Act, and he did not advance that argument in the case of this Act.

My simple point is that the Act that the Government say purports to provide protection for the succession of the Crown does not do so. It specifically mentions other objects. Incidentally, my noble and learned friend referred to this in Committee, almost subliminally. If I were a psychiatrist, I would be interested to know how he would interpret the fact that he said:

“The Bill will maintain the position under the Adoption Act and the Human Fertilisation and Embryology Act 2008 referred to above. It will not change the way the Crown, or titles”—

not “and”, but “or titles”—

“or dignities, descend”.—[Official Report, 28/2/13; col. 1217.]

It seems to me that that betrays the fact that it is a separate concept; it is not contained in that definition. Therefore, I ask my noble and learned friend to consider before Third Reading putting in the words of my amendment, which would clarify this beyond doubt. Even if my noble and learned friend and the Government think that this is unnecessary—like him, if I embrace the lesser and the greater—it is still not harmful. If they are wrong and we are right, it needs to be done.

My Lords, I broadly support my noble friend Lord True in his amendment. Indeed, at an earlier stage of my deliberations about today’s proceedings, I thought of tabling an amendment to do something similar to what he is now proposing. Having read my noble friend’s amendment, however, I thought better of it and withdrew my amendment for the time being.

My only reservation about my noble friend’s amendment is proposed new subsection (3) of the new clause, which says that the proposed new section,

“should not apply in any case where both Houses of Parliament pass a resolution to the effect that it shall not apply”.

I would have thought that proposed new subsections (1) and (2) were absolute considerations, thought to apply willy-nilly, and Parliament ought not to have the right to overturn them. However, that is a small point compared to the principle of what he is proposing, which, in general, I support.

My Lords, I am afraid that I have not been able to play a part in the earlier consideration of this Bill. However, I looked at proposed new subsection (2) of my noble friend Lord True’s amendment, which says:

“A person is disqualified from succeeding to the Crown as an heir to the body of a Royal Marriage if they are not the offspring of both parties to that Marriage”.

That takes me back 20 years when, in another place down the Corridor, I had cause to study the embryology Bill, which was going through the Commons at that time. A constituency case came to me of a couple who had found that they could not have a child; the lady had no uterus, but she ovulated. They therefore found a surrogate mother and had the egg from the wife, which was fertilised by the husband, implanted in the surrogate mother. In this case, the surrogate mother gave birth to twins. My constituents brought the twins back to have them registered, and the registrar of births, deaths and marriages said, “Sorry, although you may be the genetic parents of these children, you are going to have to adopt them”. They said, “Don’t be so stupid—we are the genetic parents. Why should we have to adopt our own children?”. This was an anomaly that I took up and caused that Bill to be changed with the help of my right honourable friend Kenneth Clarke, who was the Home Secretary at the time. The change meant that in a case such as that, if an application were made to the High Court, a judge could deem that parents of children who were the genetic offspring of those parents were full parents by an order of the judge in the High Court. That, as far as I understand it, is still the law.

My question to the Minister, thinking of my noble friend’s amendment, is: what would happen in a case like that, where the offspring of both parents are created in circumstances such as the ones I just described? Would it be necessary for the royal parents to apply to the High Court? Surrogacy is becoming much more common and it is not impossible that this could happen in the future. In this sort of circumstance, when the child of a royal marriage was created in this way, would it be necessary to apply to the High Court for that child to be deemed, in the words of the amendment, the “offspring of both parties”? It is rather important that this should be clarified now because it could give rise to considerable difficulties in the future.

My Lords, this is an interesting discussion but, as the House will know, the Bill has three purposes, all of which are about changing the succession to the Crown. One is to allow women to inherit if they are the eldest; the second is to allow people not to have to forgo their place in respect of the Throne if they were to marry a Catholic; and the third is to allow people to maintain their position should they marry, in certain circumstances, without the monarch’s permission. Those are the three changes to the laws of succession. It seems to us that nothing in the Bill alters the current position that only a natural-born child of a husband and wife can succeed to the Throne. Interesting though these questions are, we would not seek to have them included in this Bill and therefore do not support these amendments.

My Lords, I thank my noble friends Lord True and Lord Elton for bringing forward these amendments. As my noble friend Lord True said, he brought forward a very similar amendment in Committee and it is important that he has given us an opportunity to debate these issues again. Following on from the Committee stage, I assure my noble friend and the House that I have given this matter thought. It is an important matter. When the phrase “heirs of the body” was incorporated into the Act of Settlement no one could conceivably—possibly—have anticipated the kind of advances that we have seen in the past 50 years, which raise these kind of issues, particularly with regard to human fertilisation and embryology.

As the noble Baroness, Lady Hayter, said, the laws governing succession to the Crown require that the descendant be the natural-born child of a husband and wife. As I indicated in Committee and, indeed, as I said to my noble friend Lord True in the letter from which he quoted:

“Although the Adoption Act 1976 and the Family Law Reform Act 1987 refer only to the succession of titles being left unchanged by their reforms, the Lord Chancellor stated at Second Reading of the Bill that became the 1987 Act that there was no intention to alter the rules on the descent of the Crown”.—[Official Report, 28/2/13; col. 1217.]

My noble friend Lord Elton raised the important point about Section 48(7) of the Human Fertilisation and Embryology Act 2008 concerning England, Wales and Northern Ireland, which has the effect that nothing in the sections concerning parenthood in cases of artificial reproduction,

“affects the succession to any dignity or title … or renders any person capable of succeeding to or transmitting a right to succeed to any such dignity or title”.

Although I acknowledge that the Crown is not expressly mentioned, it is the Government’s view—we have given this considerable thought, and the phrase “the lesser must include the greater” has already been used—that if titles are not affected by this then, a fortiori, neither is the Crown. Therefore, we do not believe that there is a need for this amendment.

The Government also consider it unnecessary to define marriage as is set out in subsection (1) of the proposed new clause under this amendment, as only a natural-born child of a husband and wife can succeed to the Throne. We believe that that is clear as a matter of common law, as I think my noble friend Lord True acknowledged. I do not think that my noble friend referred to this in moving his amendment, but my noble friend Lord Trefgarne did pick up on proposed new subsection (3), on which I was going to reflect, because I think my noble friend Lord True said that the last thing that he wanted to do was engender controversy. I fear that this could become quite a controversial matter if Parliament is asked to pass a resolution on whether proposed new subsections (1) and (2) would apply, but it may be that he was not particularly pressing that leg of his amendment.

My noble friend also mentioned, as he did in Committee, the issue of a court challenge being brought concerning the meaning of “heirs of the body” in the Act of Settlement, and he inquired whether we were certain that this term in the Act of Settlement would not be widened by the courts. I think perhaps he had in mind a case brought in the domestic courts on the possible application of Section 3 of the Human Rights Act as an aid to interpret the legislation. A claim based on constructive interpretation of the Act of Settlement using Section 3 of the Human Rights Act takes us back to the issue of whether any convention rights would indeed be engaged in these situations.

I reassure both my noble friend and the House that, as the Explanatory Notes to the Bill make clear, it is the Government’s view that the right to succeed to the Crown does not fall within any of the convention rights, not being a property right, a family right or a civil right. Indeed, there is some elaboration on that point in the Explanatory Notes. Rather, it is a public right to the office of head of state and if, as the Government believe, the convention rights are not engaged, the Government also believe that the court would not adopt a constructive interpretation using Section 3 of the Human Rights Act 1998 so as to include a person who is conceived using a donor.

As far as a claim at the European Court of Human Rights is concerned, we do not believe that convention rights are engaged. In any event, we believe that it is clear from the case law of the European Court of Human Rights that decisions on a state’s constitutional arrangements, such as succession to the Throne, are a matter for the state and not for that court.

My noble friend Lord Jopling raised an important point born of his experience as a distinguished Member for Westmoreland, if I remember correctly. I say to him and my noble friends Lord True and Lord Elton that of course these are important issues and I will consider them again. I particularly want to consider the point raised by my noble friend Lord Jopling. I will write to him and others who have contributed to this debate because these points are important.

Before my noble and learned friend sits down, perhaps he could clear up one thing in my mind. I certainly support my noble friend but if he were to withdraw at a later stage, I would be minded to continue unless I was satisfied.

My noble and learned friend has again rested importance on the definition within the HFEA 2008, but he preceded that by saying that the real defence was in the interpretation of “heirs of the body” and “natural-born”. Therefore, that is not relevant, if that is the full defence. If the lesser must include the greater, the Crown is the fount of honour and if you imagine it as just that—a spring of water—it can be pure until he upsets his picnic basket into it. It seems to me that the picnic basket defence is in what he proposes but the actual spring water is not protected.

Without a lot of thought, I am not sure that I want to embrace that particular analogy. The point I was seeking to make was that if the transmission of a title of the peerage is not affected by the developments that appear in the legislation, a fortiori nor should the succession to the Crown be affected. It is obviously far more significant—I am searching for the right adjective—and of far greater importance than the transmission of a title. Therefore, our belief is that that would not be affected and that in this case the lesser must include the greater.

I have also indicated that with regard to the heirs of the body, it is the position, which my noble friend Lord True accepted, that only a natural-born child of a husband and wife can succeed to the Throne. That is quite clear as a matter of common law. He then went on, as my noble friend has done, to raise more recent statutes. However, as I have indicated, my noble friend Lord Jopling raised an important point about where the child is the natural child of the mother and father. I want to reflect on that; it is only proper to do so. I shall certainly advise and write to my noble friend, and copy the letter to others who have taken part in this debate. On that basis, I invite my noble friends not to press their amendments.

My Lords, I thank my noble and learned friend and all those who have contributed to this short debate. I fully accept the comments made on subsection (3) of the new clause proposed by my amendment.

As I said at the outset, I do intend to press this matter, although I remain troubled even after what my noble and learned friend has said. I make it clear to him that, although I accept his argument that a marriage is a man and a woman and natural-born child thereof as a matter of common law, my concern arises that, as the law may evolve, that understanding may be challenged. I hoped and thought that I had made that clear to your Lordships. Once same-sex marriage becomes part of the settled life of our kingdom, the law will inevitably evolve in response to that reality. A birth of this kind would not be open to a monarch who was in a same-sex marriage. The question would therefore arise about whether such a monarch could have a legitimate heir of the body.

This may seem fanciful to some; it may seem long in the future. However, I believe that Parliament should reflect on the points made in this debate—I was grateful to hear my noble and learned friend say that he would do so—including on the very important point raised by my noble friend Lord Jopling.

The position as I understand it as a layman is that there are certain defences against a potential claim. One is the common law, which may or may not evolve and which may or may not be challenged in the European courts. I hear what my noble and learned friend said, although I have heard that said about many other things which have come to be challenged in the European courts. Furthermore, as I said, the position may not be challenged absolutely on the question at the moment of succession; it could be a matter that arises within the Royal Family. A right is established, and then a right of family and right of property, and then, by accident, that person at a later stage becomes the heir to the Throne. I remain a little concerned as to whether that is a defence.

I heard what my noble and learned friend said about the Human Fertilisation and Embryology Act. I was extremely grateful for the assurances that he gave and the promise to look at it further. The Crown to my mind is something sui generis; the law of the Crown is something separate. It seems to me, as a humble layman construing that reference to dignity and titles of honour, that that was not intended to refer to the Crown.

Therefore, the question potentially lies open and I submit with respect to your Lordships that, at some stage in the future, the matter should be closed. I do not intend to press my amendment, but I shall watch with interest what my noble friend Lord Elton may do at a later stage. However, I hope that, at some point, any scintilla of uncertainty—and I believe that there is uncertainty—will be removed. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 1A

Moved by

1A: After Clause 1, insert the following new Clause—

“Succession to the Duchy of Cornwall not to depend on gender

In determining the succession to the Duchy of Cornwall, the gender of a person born after 28 October 2011 does not give that person, or that person’s descendants, precedence over any other person (whenever born).”

My Lords, this amendment was tabled in Committee. My purpose in tabling it again today is gently to take issue with the Minister on one aspect of his letter to noble Lords dated 7 March in connection with the title of the Duke of Cornwall. Before I do that, I draw your Lordships’ attention to this wonderful statement on page 2 of his letter, which says:

“The Crown is the source of all honour and dignity”.

That is absolutely wonderful. It reminds me of the inhabitants of the town of Titipu in “The Mikado”, who defer to the Lord High Executioner. I wish we could move on from some of the Crown’s “all honour and dignity” because part of the Crown is the Government, as we all know.

Turning to the issue I want to raise, page 1 of the Minister’s letter states:

“The title of the Duke of Cornwall can only pass to the eldest son and heir of the monarch”.

I have had some interesting advice from a public notary called John Kirkhope, who is a real expert on these issues. He challenges this statement. He says that the charter establishing the Duchy of Cornwall was dated 1337 and is in Latin. He has kindly given me a 14-page translation, which I will not read out, but if the Minister wants a copy I will be pleased to give him one. Basically, he says that there is precedent for other options besides what the Minister says in the letter. Mr Kirkhope says,

“if I am King and have two sons A and B, A would be Duke of Cornwall. If A dies before becoming King making B Heir Apparent, B would not be the Duke of Cornwall”.

However, he goes on:

“The eldest son of Henry VII, Arthur, died before becoming King leaving his younger brother Henry as Heir. Henry VII got Parliament to agree that his son Henry should become Duke of Cornwall. The eldest son of James I, Henry, died before becoming king leaving a younger brother Charles. In this case James I got the courts to agree that Charles should become Duke of Cornwall”.

It seems that in those days the eldest living son of the sovereign would become heir to the title of Duke of Cornwall, so the devolution of the title has already been varied from that envisaged in the founding charter. I cannot see why this variation should not be applied today. It is consistent with the devolution of the Duchy of Lancaster, the title of which is always with the sovereign, regardless of gender. I suggest that it would be perfectly reasonable for Parliament simply to change the rules to say that the heir to the Throne is the Duke of Cornwall. I beg to move.

My Lords, we are deeply indebted to the noble Lord, Lord Berkeley, for raising this important matter again. A valuable discussion took place in Committee, drawing attention to the fact that the Duchy and its properties tend to flourish most conspicuously when they have a Duke in charge of them. They have been particularly blessed and fortunate in this regard since the 1950s with the current Duke, the Prince of Wales, at the helm. Incidentally, this was also true under the previous Prince of Wales and Duke of Cornwall, who later and briefly became Edward VIII. The tenants of his Kennington estates were the envy of those who rented their homes from London County Council.

Our discussion in Committee also established that the experience gained by the heir to the Throne in administering the Duchy estates is invaluable in equipping him for his wider duties. So why not for “him” read “or her”? The noble Lord, Lord Berkeley, has consulted experts, as he told us, about the Duchy’s founding charter laid in Parliament in 1337. It is clear from what he has told us today that the charter has not remained inviolate over the centuries. Should Parliament not be invited to change the charter again, to incorporate the principle of gender equality, which is one of the founding principles of this Bill? The Bill itself may not be the vehicle for making the change. If not, will my noble and learned friend give a commitment that a measure to provide for it will be introduced? Its rapid progression through both Houses could hardly be in doubt, although I hesitate to use that dreaded term “fast-tracked”.

I support the principle underlying the amendment. It seems to me the logical extension of the principle underlying the Bill itself, but I can see that this might not be the most suitable vehicle for bringing about a reform which I continue to regard as being very desirable in itself. I will not repeat the reasons which I gave in Committee for taking that view. If the amendment is not accepted now, I hope that the council of the Duchy of Cornwall, with the help of the Government, will consider introducing legislation to amend the ancient charter to enable that principle to be effected.

My Lords, I, too, broadly support the principle behind the amendment, but I ask my noble and learned friend about a related matter which I raised in Committee but did not get a full and clear answer. Is it in order and open to the sovereign to confer on his or her eldest daughter the princessdom, if I may call it that, of Wales? We know that the princedom of Wales is in the gift of the sovereign—my noble and learned friend explained that at the previous stage, but he was not clear whether it could go through the female line if that was the wish and view of the sovereign of the day. I hope that he can help me with that.

My Lords, as we said in Committee, the Duchy is about property, business, title and, indeed, money. Although we agree that those are, as my noble friend said, important issues and we would undoubtedly welcome the end of the inequality—the mistreatment, we might say, of women—as regards the Duchy, they do not concern the Crown succession and therefore, along with the noble and learned Lord, Lord Lloyd of Berwick, we feel that they are not appropriate for the Bill.

I also repeat the comment that I made in Committee in response to the comment made by the noble Lord, Lord Lexden, about the experience that that gives to a monarch. I said then that the current monarch has done extraordinarily well without having had that title. Perhaps we can take this moment to hope that she is soon fully recovered.

My Lords, I immediately associate myself with those wishes of full recovery to Her Majesty. I also thank the noble Lord, Lord Berkeley, for raising the issue, which gave rise to a very good debate in Committee. I certainly valued the input from those who contributed, as I have today, on what is a very important issue with a great historic heritage. The noble Lord referred to the founding charter of 1337 and offered to pass me a copy. I was not sure whether he was going to pass me a copy in Latin or the translation. My higher in Latin from 40-odd years ago is probably so rusty that the translation would be better.

As I sought to explain in Committee, the Dukedom of Cornwall can pass only to the eldest son and heir of the monarch. I will come back to the points made about the exceptions to that. Therefore, when Her Majesty was Heir Presumptive as Princess Elizabeth, she did not hold the title of Duke of Cornwall, and we believe that the position would be the same now if there were a female heir, because of the terms of the charter. It is important to bear in mind that, because of limitation to the eldest son and heir of the monarch, the title cannot pass to a younger brother. The two exceptions raised by the noble Lord, Lord Berkeley—that of Henry VIII, Prince Henry when his brother, Prince Arthur, died and of Charles I, then Prince Charles, when his elder brother, Prince Henry, I think, died—were interesting. The noble Lord made it clear that exceptional steps were taken. That almost proves the point that it was not an automatic transfer of the dukedom. In the case of Charles I—Prince Charles, as he then was—King James asked the courts to make the alteration.

I also indicated that if the monarch has a son who is the heir apparent and that son dies before the monarch leaving a son of his own, the grandson of the monarch, the grandson will become heir apparent, but will not become Duke of Cornwall because he is not the son of the monarch.

It was recognised by those who contributed to the debate that this Bill is not the vehicle for making some pretty fundamental changes to a charter that has not changed, with two exceptions over the years involving parliamentary or court intervention on a one-off basis—if you can call Henry VIII a one-off. To make fundamental change is not the purpose of this Bill.

The noble and learned Lord, Lord Lloyd, asked whether I can give a guarantee that the Government will bring forward legislation. I am afraid I am not in a position to do that. A huge amount of consultation would be required before we were in a position to do that.

As the noble Baroness, Lady Hayter, said, the purpose of this Bill is important, but very limited. I do not believe that it would be appropriate to use this Bill as a vehicle to change the charter. I take the point made by my noble friend Lord Lexden on the valuable experience which the present Prince of Wales has undoubtedly had with regard to his involvement in the duchy. I shall reiterate something that I said in Committee: although the title cannot pass to a female heir, there is nothing to stop her being actively involved in the running of the duchy or, should the reigning monarch so wish, chairing the Prince’s Council. If that was what the monarch wished, that would be entirely possible and would give that valuable experience to which my noble friend Lord Lexden referred.

My noble friend Lord Trefgarne asked about the creation of the Princess of Wales. As he acknowledged, the title of Prince of Wales is not automatically conferred on the heir apparent on his mother or father becoming sovereign. In the case of the present Prince of Wales, it was bestowed upon him some six years after the accession of our present Queen. The noble Lord, Lord Berkeley, said—my noble friend disagreed with the disparaging way it was put—the Crown is the source of all honour and dignity, and I agree with him. It would be a matter for the sovereign, but if the Crown is the source of all honour and dignity and the sovereign chose to establish a Princess of Wales, it would be a matter for the sovereign. However, I do not think it is very helpful to speculate on what might happen at a future date.

For those reasons, I invite the noble Lord to withdraw his amendment.

I am grateful to the Minister for his reply and to all noble Lords who have taken part in this short debate. It seems to me that there is a precedent for Parliament or the courts to change what is in the original charter. It is quite clear that the sovereign, Parliament or the Government—because the sovereign and the Government are both Crown, the same Crown, under certain circumstances—can make this change if they so wish, so the whole thing probably does not matter anyway. On that basis, I beg leave to withdraw the amendment.

Amendment 1A withdrawn.

Clause 2 : Removal of disqualification arising from marriage to a Roman Catholic

Amendment 2

Moved by

2: Clause 2, page 1, line 7, at end insert “, provided the statutory requirement that any child of such marriage is brought up as an Anglican is maintained”

My Lords, I introduced a similar amendment, but in different words, in Committee. We had an interesting, and at times quite lively, debate, and I am sorry that my noble friend Lord Deben is not here because I was rather looking forward to crossing swords with him on this one.

The amendment has one very simple but extremely important aim. I am very grateful indeed to the noble Lords, Lord Luce and Lord Fellowes, both of whom spoke in the previous debate, for discussing the wording of the amendment, which is entirely my responsibility of course, before I tabled it. I am also very grateful indeed to my noble friend the Minister, who is exemplary on these matters, for taking the trouble to have a conversation on this last night.

As I say, the aim is simple. This afternoon, as on every day on which we begin our proceedings with Prayers, we pray for the peace and tranquillity of the realm. It seems very important that any constitutional measure should be conducive to the peace and tranquillity of the realm, and should anticipate difficulties. As it was with my noble friend Lord True’s amendment, there might well be no need to address these matters for many, many years. Who knows? However, the fact is that our sovereign is the Supreme Governor of the Church of England, and that is a very special position. I do not think that it could be adequately fulfilled by a regent during the life of a reigning monarch who was a reigning monarch in every other sense.

If we allow, as this Bill allows—and I do not oppose this; I want to make that plain—the heir or anyone in direct line of succession to the Throne to marry a Roman Catholic, which I repeat I accept, there has to be a provision whereby children of that union are brought up as Anglicans. I appreciate that some noble Lords might point out that the statutory requirement that I cite uses the word “Protestant” rather than “Anglican”. However, we have legislated for this in the past. It is important that if we are legislating for decades, maybe even centuries, to come—after all, the Act of Settlement was passed as long ago as 1701—we have to make adequate provision to ensure smooth continuity for the peace and tranquillity of the realm. It is in that sense that I commend this amendment to the House.

Some of us think that the Bill has been rather rushed, but let us leave that argument on one side. Some of us think perhaps that the consequences have not adequately been thought through, but let us leave that on one side. We are going to pass the Bill. I do not oppose the Bill, but I want it to be as foolproof as possible. I want it to anticipate, in so far as legislation possibly can. I want it to be a constitutional measure that will stand the test of time and of whatever circumstances might, in so far as we can possibly foresee, occur.

I repeat that am not opposed to the provision on female succession. I am not opposed at all to allowing the heir to the Throne to marry a Roman Catholic. However, we all know that there is a canon of the Roman Catholic Church that requires that the children of a union of a mixed marriage are brought up as Roman Catholics. There are many cases where that does not happen. I myself married a Roman Catholic. She in fact came over to the Church of England at a later date, but we had decided that we were going to bring our children up as Anglicans. It was obviously easier if she became an Anglican. At our wedding, I was not allowed to receive the sacrament. I make no complaint about that. I was in a very different position from the one I would have been in had I been a Roman Catholic and she, at that time, had been an Anglican.

If someone in direct succession to the Throne marries a Roman Catholic, there must be some sort of provision. I would hope that it could be enshrined in this Bill, before it becomes an Act of Parliament, to protect what one might call the status quo.

It is in that spirit that I move this amendment. There is no need for me to make a longer speech, because I rehearsed some of the other arguments in Committee. However, I hope that when he comes to respond my noble friend the Minister will be able to give me some comfort. I also hope that before this Bill completes its remaining stages—perhaps my noble friend can tell us when Third Reading is expected—we will have something in the Bill that will bring great comfort and encouragement to many people throughout this country who have high regard for Her Majesty, to whom we all send our greetings, not only as sovereign but as Supreme Governor of the Church of England. I beg to move.

My Lords, somewhat surprisingly, I will speak to this amendment. This is my adopted country, and I have much enjoyed living in it. I would not want to live in any other country, including my country of origin. One reason why I like living here is the ethos and the atmosphere, which are very much due to the Anglican Church. I totally support the amendment in the name of the noble Lord, Lord Cormack, because if we had a Catholic heir to the Throne, that ethos and the kind of attitude that now prevails would change.

We also have to remember that the Anglican Church came about through reformation. Reformation means reforming something. If your Lordships are prepared to think about it, the Catholic Church is in dire need of reformation at this moment. There are so many things that people object to. Certainly, the treatment of women in the Catholic Church, especially in developing countries, is not acceptable. Catholics have great influence in Africa, although there are not that many Catholics there. Children are born even if there is no food for them, and people cannot use contraception. We are living in a world that is going round and round in circles. The biggest elephant in the room is population, and yet the Catholic Church is not willing to accept that this cannot go on for ever.

To have a Catholic heir to the Throne of this country would mean that this country would not be the same as we know it. It would certainly change totally, and I would not want it to change in that way. I want this country to grow and to evolve, not to change into a Catholic country.

My Lords, my contribution to the debate on the amendment in the name of my good friend the noble Lord, Lord Cormack, will be somewhat technical, because I speak as one who has been much involved in the official Anglican-Roman Catholic dialogue since 1974. From time to time the Roman Catholic position on the children of so-called mixed marriages has arisen, and has been discussed in some detail, including the work of a special commission on that subject. I also declare an interest as a patron of the Association of Interchurch Families, and I have some modest understanding of both Anglican and Roman Catholic canon law.

The Government, through the Minister and in other ways, have very fairly, in my considered judgment, set out accurately the Roman Catholic position. We are also helped by the Archbishop of Westminster’s statement in this respect. According to Roman Catholic canon law, giving permission for a so-called mixed marriage is not a Vatican matter but one for what is called the local Ordinary: that is, the local bishop.

At the risk of a little canonical history, I must draw your Lordships’ attention to three documents and practice. In the old rules of the Roman Catholic Church on this subject, in the shape of the Code of Canon Law of 1917, the position was rigid and, I would say, harsh. This is no longer the case. The present code of 1983 speaks of “permission”, not “dispensation”. The old code also required the non-Catholic party in a marriage to promise that the children would be brought up as Roman Catholics. No such promise is required today. The Roman Catholic partner is asked to declare that they will do all in their power to ensure that any children are brought up as Roman Catholics, yet no sanction is applied to the canon, whereas the old code made the bishop’s dispensation for a mixed marriage dependent on the bishop’s moral certainty about the Catholic upbringing of the children. This is not the case now.

I will also touch briefly on practice in a more pragmatic way. Permissions for mixed marriages have been given even where it was foreseen that the promise could not be fulfilled in whole or in part. In making these points, I rely not only on my own past discussions of these questions over many years with officials, bishops, theologians and canonists of the Roman Catholic Church but on the authoritative interpretation of present Roman Catholic canon law offered in a magisterial commentary of no less that 1,952 pages published in 2000 by the Canon Law Society of America. It is the standard textbook in the English-speaking world.

Interestingly, on the question of the upbringing of children in these circumstances, the Roman Catholic canon lawyers quote the official Vatican ecumenical directory of 1993, which clearly indicates that the promise may not be expected to be completely fulfilled, or fulfilled at all, in every case. It states that a Roman Catholic partner can ecumenically fulfil their obligations as a faithful Catholic, short of insisting on the Roman Catholic formation of the children, because the unity of the marriage is more important. The Vatican document, quoted by the canon lawyers, speaks of the Catholic partner as,

“playing an active part in contributing to the Christian atmosphere of the home; doing all that is possible by word and example to enable the other members of the family to appreciate the specific values of the Catholic tradition; taking whatever steps are necessary to be informed about his own faith so as to be able to explain and discuss it with them”,

and–—this is the important bit ecumenically—

“praying with the family for the grace of Christian unity as the Lord wills it”.

In my judgment, this officially bears out the Government’s assurance that the Roman Catholic rules are not a block to the smooth functioning of the proposed succession rules.

I acknowledge that we are all conscious of the importance of avoiding all ambiguity for the future. I think that that ambiguity prompted a number of the amendments that we will debate today. Whether an assurance is given in the Bill, or whether it can be given now by the Minister or at a further stage of the Bill’s proceedings, I am sure that your Lordships’ House would wish all such possible ambiguity to be avoided for the future in the matter of the royal succession.

My Lords, I oppose my noble friend’s amendment. I fully understand the Government’s decision not to use the Bill to remove the disqualification of a Catholic becoming the sovereign. However, I and others believe that the question should be revisited at some stage in the not too distant future because it is discriminatory and unnecessary. While I understand the arguments put by the noble Baroness, Lady Flather, that the Catholic Church needs further reformation in places, they do not justify a discriminatory provision. I say that even in the context of the established church, for the reasons so eloquently advanced by the noble Lord, Lord Deben, at earlier stages of the Bill.

It is my suggestion that the principle that we should adopt is that the discrimination involved in providing that the sovereign must be an Anglican should be restricted to the absolute minimum. That is why, on principle, I oppose the amendment. But quite apart from the principle, my noble friend’s amendment, and, I suggest, anything like it, would be quite unworkable. The present position is that marriage to a Catholic imposes a disqualification on an heir succeeding to the Crown. That is clear and simple. Clause 2 removes that disqualification entirely. Marriage to a Catholic does not disqualify anyone from succeeding to the Crown. An heir or a monarch can marry a Catholic without losing his right to the succession or to the Crown. That is clear and simple, again. But my noble friend’s amendment would import a proviso into that clear and simple proposal. There would be no disqualification, provided that the statutory requirement that any child of such a marriage is brought up as an Anglican was maintained.

The right reverend Prelate the Bishop of Guildford explained that the statutory or canonical requirement is very much weaker in principle and in practice than my noble friend’s amendment suggests. Furthermore, the amendment poses another problem: how would it be determined that such a requirement, if indeed it were established, was being maintained? Who would decide whether that requirement was being maintained? When, at what point in time, would the requirement need to be maintained, and when would it cease to be maintained? Furthermore, what exactly is meant by being brought up as an Anglican? By what process would a disqualification be imposed on someone in line of succession to the Throne if it were felt that the proviso was not being fulfilled and a given child was ceasing to be brought up as an Anglican? To take an extreme example, what if the child of the heir to the Throne and his or her Catholic spouse, having been brought up as an Anglican, chose to espouse Buddhism while at school?

The problems are endless. I appreciate that my noble friend who moved the amendment did not suggest that it was this wording or nothing, but when you look for an alternative wording, the concepts are so fluid that they necessarily import an uncertainty and ambiguity that would be thoroughly undesirable. For that reason, I suggest that the Bill should remain unamended.

My Lords, I find myself in something of a dilemma in speaking briefly to support this amendment. I support both the amendment as presently worded and the measures behind it. I still believe that the sooner that we have greater clarity and more explicit commitment from the Roman Catholic Church as to its determination to respect the rule governing the upbringing of the heir to the Throne, the better. That said, were this amendment to be pressed and passed it might well raise the spectre of the reopening of negotiations with the other 15 Governments of Her Majesty’s realms, and that I believe to be undesirable.

I prefer to regard this as a constructive and helpful probing amendment which makes explicit what is at present implicit in the Bill. As such, it sends the right message even if withdrawn. If it is not withdrawn and comes to a vote, I will support it, with some misgivings.

My Lords, I sat through the debate in Committee and listened to the previous effort of my noble friend Lord Cormack, which was fairly effectively demolished by my noble friend Lord Deben. I am puzzled by the amendment that he has now produced because its argument was effectively dealt with by my noble friend Lord Deben when the previous amendment was tabled. Unless my memory is wrong, the Act of Settlement and the Bill of Rights say nothing about upbringing; they merely say that the sovereign has to be Protestant.

As my noble friend Lord Deben and others have pointed out, you could be brought up as a Muslim or indeed in any other faith, but there is nothing to say that you will stick by that decision. As you grow older, you may take your own decision as to what your faith is or whether you have any faith at all. However, if you become the sovereign, you have to be a Protestant; that, surely, is the law. I therefore cannot see that the amendment put forward by my noble friend and all the interesting and complicated points raised by the right reverend Prelate are relevant to this Bill, which concerns not upbringing but whether or not the person in question—male or female—is a Protestant.

No doubt the individual concerned would consider very carefully his or her attitude to religion and what his faith was before taking a final decision on faith, because they would know that if they were not Protestant they could not succeed to the Crown. Therefore I do not see that this upbringing question is relevant or that my noble friend’s amendment has the effect and consequence that he seems to think it has. For that reason, I cannot support it.

My Lords, my intervention will be exceptionally brief. I speak as a lifelong member of the Methodist Church who attends an Anglican Church at present. A useful and helpful concordat has been developed to achieve increasing collaboration between the Anglican and Methodist Churches. Is it totally out of the question that someone brought up as a Methodist might not ultimately become the Governor of the Anglican Church? I do not believe that it is. This is one of my concerns about this very interesting amendment, so very well proposed by the noble Lord, Lord Cormack. I would love to have an answer to that question.

My Lords, like others, I am interested to see how much clarification emerges from consideration of this amendment. I was very interested to hear of the policy shifts in the Roman Catholic Church. I was not aware how far they had gone. I very much welcome the fact that Anglicans and Roman Catholics can agree on the line described by the right reverend Prelate the Bishop of Guildford, so I will not support the amendment.

My Lords, I support my noble friend’s amendment; it goes in the right direction. It may not be perfectly worded, but the principle is right.

My Lords, I am not an Anglican; I am an Irish Presbyterian. Presbyterianism is the main religion in two parts of the United Kingdom—Scotland and Northern Ireland. The head of the Presbyterian Church, the Moderator, is not the head of a sovereign state; nor is the head of the Methodist Church the head of a sovereign state. That is where the crux of the matter rests.

Noble Lords may recall the crisis confronted by the Social Democrat Government in Belgium when the late King Baudouin was forced to abdicate. At that time, the Social Democrat Government in Brussels introduced social legislation; I forget whether it was on family planning, divorce or another family issue. They presented the Act of Parliament to the King for royal assent. The King said that he had two loyalties—to the state of Belgium and to the Vatican state—and he had to make a decision on which got priority. He came down in favour of the Vatican. As a result, he had to abdicate. A regent was appointed who then signed the Social Democrat Act of Parliament, and then the King was restored to power. It was a very neat exercise. However, it is also a warning and a lesson to the United Kingdom.

I found the right reverend Prelate’s account of the talks between the Roman Catholic Church and the Anglican Church very instructive and helpful, but I still think that an area of ambiguity remains. That being the case, although I am not an Anglican, I come down in favour of the amendment.

My Lords, I entirely agree with my noble friend in his attempt in the amendment to achieve clarity. However, as the noble Lord, Lord Marks, has demonstrated, it would not do that because it could not work in its present form. Whether or not anything can be done between now and Third Reading to simplify a very complicated process in the Bill, I do not know. However, for that reason, I cannot support my noble friend.

My Lords, I have not spoken before in this debate and I hope that noble Lords will forgive me for being an interloper. However, I am a Catholic and should like to thank the right reverend Prelate the Bishop of Guildford as well as my noble friend Lord Marks of Henley-on-Thames for their contributions. Obviously—by implication, anyway—I oppose the amendment.

My Lords, I join others in thanking the right reverend Prelate the Bishop of Guildford for the clarity and fullness of his contribution, which was appreciated around the House.

The noble Lord, Lord Cormack, seemed to imply that allowing Catholic marriage would somehow endanger the Protestant succession. I think he is wrong. As it will remain the case that no Catholic may succeed, or indeed anyone who is not in communion with the Church of England, the noble Lord need not have concerns on that basis. We therefore see no need to support the amendment, which goes further by forbidding any child—not simply the eldest who is likely to inherit—to be brought up as, for example, a Methodist, as the noble Lord, Lord Walton, mentioned.

It is also unclear as to what would happen if the sixth or seventh child was brought up as a Methodist. Are we going to depose the monarch or expect the monarch to abdicate because one of their children was brought up as a Methodist or in the Jewish faith? There are many other questions. Could the monarch decide that they would prefer the Crown to pass to a sibling if they wanted the child to be brought up other than as an Anglican? Some of these questions were better enunciated by the noble Lord, Lord Marks.

We have moved on, even in this House, since 1700. We are looking forward to the birth in the summer of a babe born to an Anglican couple—a babe whose marriage is unlikely to take place for about 20 years. Their babe may, for the sake of argument, be born a few years after, in the year 2037, which will happen to be 700 years after the charter establishing the Duchy of Cornwall. We have heard warnings that we must think to the future, but I think that we can leave it to our heirs and successors in 2037 to decide at that point what is good for the country, the other realms and the Crown. We will not be supporting the amendment.

My Lords, I thank my noble friend Lord Cormack for introducing this amendment and allowing the House a further opportunity to discuss what, from our debates at Second Reading and in Committee, is quite clearly a very sensitive subject and one that quite properly has engaged the interest and concern of a number of Members of your Lordships’ House. Like the noble Baroness, Lady Hayter, I particularly thank the right reverend Prelate the Bishop of Guildford for giving us the benefit of his rich experience and giving us an understanding of how these matters are approached by the Roman Catholic Church. It has helped to inform our debate.

As I understand the position, my noble friend Lord Cormack seeks to give guidance to any royal couple who find themselves in a mixed Protestant/Catholic marriage as to the expectation that a child be brought up as a Protestant if they are one day to accede to the Throne. Perhaps the first thing I should make clear—indeed, my noble friend Lord Crickhowell summed it up very well—is that the relevant legislation simply requires the sovereign to be a Protestant and in communion with the Church of England. There is no statutory provision that the heirs should be brought up as Anglicans. The important point is that the sovereign be a Protestant. Therefore they could be brought up as a Methodist or, like my noble friend Lord Kilclooney, as a Presbyterian. That is the position. The Act of Settlement also requires the sovereign to be in communion with the Church of England. There is no statutory provision with regard to being an Anglican.

That point should also reassure the noble Baroness, Lady Flather, if it is reassurance she is seeking, and indeed the noble Lord, Lord Kilclooney, that there is nothing in this Bill that changes the position that the sovereign must be a Protestant. Given that requirement, the expectation is also clear that should royal parents in a mixed marriage wish for their child one day to accede to the Throne then they must be Protestants. I am sure that it is a matter that a couple will consider very carefully indeed. As was clear from what the right reverend Prelate said, couples throughout the land in mixed marriages have these considerations. As the representatives of the Bishops’ Conference of the Roman Catholic Church said to me when I met them, the overriding concern is the indissolubility of marriage and unity of the partnership and, as the right reverend Prelate said, the importance of praying with the family for the grace of Christian unity as the Lord wills it. That is the background. It is a choice. It is a position that royal parents know they must address.

My noble friend Lord Marks very eloquently and very concisely highlighted the serious practical difficulties that could arise if my noble friend’s amendment were to be incorporated into the Bill. Who would determine whether the upbringing continued to be Anglican? It is important to note the consequences of my noble friend’s amendment. As drafted, it would not only be the child’s prospects of succession that were affected if they were not being brought up as an Anglican; it would also mean that the parent who was in the line of succession to the Throne would have to drop out if the maintenance of the upbringing was not continued. As the noble Lord, Lord Fellowes, indicated, that would affect the succession to the Throne as someone would have to cease to be in the line of succession and that would engage the other 15 realms. Therefore it is not something that is purely a domestic matter.

I note that this amendment would apply to children born of mixed Catholic/Protestant marriages only, not, for example, to a mixed Protestant/Muslim marriage. The intention of this Bill in one of its parts is to remove a specific piece of anti-Catholic legislation with regard to the bar on heirs to the Throne marrying Catholics. It is a bar that applies to Catholics only and to no other faith. I believe it would be unsatisfactory on the one hand to repeal a piece of discriminatory legislation only to replace it with a new stricture that would apply only to those entering into mixed Catholic/Protestant marriages. Indeed, at Second Reading my noble friend Lady Falkner of Margravine highlighted something that exists today—that is, people entering into mixed Protestant/Muslim marriages.

I indicated that I met representatives of the Catholic Church on this matter and was assured that, in the instance of mixed marriages, the approach of the Catholic Church is a pastoral one. As the right reverend Prelate indicated, a Catholic parent does not fall subject to the censure of canon law if the child of a mixed marriage is not brought up as a Catholic.

I believe we have a very clear signal that the overriding concern in Catholic pastoral guidance to couples in mixed marriages is the unity and indissolubility of the marriage. We have also had a very clear signal from the Church of England that the present prohibition is not necessary to support the requirement that the sovereign join in communion with the Church of England. Given that, I can see no reason not to remove this piece of discriminatory law or indeed remove it with a discriminatory proviso added.

My noble friend Lord Cormack asked about Third Reading. My understanding is that these things go through other channels but that it will not be before the recess. If my noble friend wishes to engage further with me on this, I shall certainly be happy to do so. However, from what was said by the right reverend Prelate and from what has also been said about the workability of my noble friend’s amendment and the uncertainty that could arise from it, I hope that he will be willing to withdraw it, bearing in mind, too, that the sovereign must be a Protestant. That requirement is to remain solidly placed in law, as ever, and it is not affected by the provisions of this Bill.

Can the noble and learned Lord clarify one point concerning the relationship between this legislation and the other Commonwealth countries and what the implications of change would be?

My Lords, this is an agreement that has been reached with the other Commonwealth countries. This question may arise in relation to later amendments, but the preamble to the Statute of Westminster Act 1931 gives an expectation that in matters of succession to the Crown there will be the engagement of the other realms of which the Queen is head of state. It is not a matter of binding law but it is certainly an expectation and one that we have considered to be very important in taking forward the proposals in this Bill. As I indicated, the implication or consequence of my noble friend’s amendment is that it would affect the succession, and we would need to consider that with the other realms of which the Queen is head of state.

My Lords, I am very grateful to everyone who has taken part in this short but fairly vigorous and interesting debate. I am particularly grateful for the support of the noble Lords, Lord Fellowes and Lord Kilclooney, and others. In response to the noble Lord, Lord Walton of Detchant, it is of course possible to be both an Anglican and a Methodist. The two churches are in communion, so there is no impediment there at all.

I am obviously grateful for the speech of my noble and learned friend the Minister and I shall bear in mind everything that he said. However, whatever is in this Bill, it remains in effect, in his words, discriminatory because there is an insistence that the heir to the Throne cannot be a Roman Catholic. I personally accept that and support it, as will have been apparent from my earlier remarks, but you cannot have it both ways. With this amendment, I was merely seeking to remove an element of ambiguity. I am particularly grateful for the excellent exposition of the right reverend Prelate the Bishop of Guildford, but he, too, ended his speech by saying that he would welcome the removal of ambiguity. He hoped that either in the Bill or in some other manner—perhaps in an exchange of letters or whatever—there could be some form of wording that would make it less ambiguous than it is at the moment. I am grateful to him for that because that is an extremely important point.

Obviously there are strong feelings in all parts of the House and around the country about this. I am conscious of the fact that the noble Lord, Lord Fellowes, who pledged his support, also said that he would reluctantly go into the Lobby. I will not make him reluctant tonight because I do not propose to press the amendment to a Division. There is still scope for further discussion. I was delighted to hear from my noble and learned friend that Third Reading will not come until after the Easter Recess. That gives all of us with an interest in this and other matters relating to the Bill, such as my noble friend Lord True, plenty of opportunity to consult, discuss and then decide whether or not it would be prudent to table another amendment at Third Reading. I certainly have not made up my mind on that score.

I will not detain the House further by referring to every speech but there is the clear issue before us that we are dealing with the succession to the Crown. It has been decided that gender should be no impediment as far as the first born is concerned. It has been decided that marriage to a Roman Catholic, subject to the sovereign’s permission, can go ahead. It has also been reiterated by my noble and learned friend that anyone succeeding to the Crown cannot be a Roman Catholic. Although he introduced—as did my noble friend Lord Marks of Henley-on-Thames—references to other religions, that is not what we are concerned with in this Bill. We are concerned with what is explicitly in the Bill. I still believe that it would be helpful if we had some form of safeguard either in the Bill itself or in an exchange of published letters with the Roman Catholic hierarchy, but we can all reflect on that over the coming weeks. With that, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Clause 3 : Consent of Sovereign required to certain Royal Marriages

Amendment 3

Moved by

3: Clause 3, page 1, line 12, leave out “6” and insert “12”

My Lords, in moving the amendment I return to a matter that troubled me both at Second Reading and in Committee, namely the provision in Clause 3 to replace the Royal Marriages Act 1772 with a new requirement that only the first six persons in the line of succession to the Throne will require the monarch’s consent to their marriages. In my view that number is too small, and my amendment would increase it to 12.

The provision to which the clause will apply is much wider than before. Until now only Catholic marriages were specifically barred. Henceforth, consent can be withheld in respect of any religion, or for any other reason that the monarch, in consultation with his or her Ministers, thinks fit. That is the first major, and largely unadvertised, change that the clause makes. The seeking of consent itself is sensible in principle for a host of reasons, but it is the partial relaxation of the bar on Catholics that makes it necessary. To allow those in the line of succession to the Throne to marry Catholics while at the same time leaving in place an absolute ban on Catholics from occupying the Throne sets a collision course that sooner or later could cause trouble for the monarchy.

Clause 3, by implication, acknowledges that and seeks to provide some protection. However, my contention is that it does not provide enough. I am trying to resist the temptation to delve back into history again, having overindulged in Committee, but the more one considers this Bill and the 1772 Act, the more one realises what a minefield the Government are in danger of straying into. If the list of six now proposed had existed for the seven sons of George III, they would all have been members at some stage, but not all at once. Prince Augustus Frederick, sixth son of George III, and periodically sixth in line to the Throne, would have been in and out of the club three times in his life; yet he still managed to marry twice, both times without consent and both times during what would have been a period of membership of the six; and both marriages were declared void in terms of the 1772 Act. However, he did stay in the line of succession. Two other princes contracted marriages that were also voided by the Act. Three more princes stayed unmarried until middle age.

All of that suggests to me that the 1772 Act had a few unintended consequences, and it was not very effective on the marriage front. But it did serve a useful purpose, because although the royal dukes forfeited their unapproved marriages, they did not forfeit their places in the succession. Despite everything, that helped to maintain stability. The Bill before us does the direct opposite. It turns that around so that unapproved marriages will be allowed to remain in place—however unwise—but the right to the succession is lost. That loss is a substantial constitutional change, with potentially more unintended consequences, especially when linked to the relaxation on royal marriages.

At Second Reading, my noble and learned friend said:

“We retain the tradition of monarchical consent”.—[Official Report, 14/2/2013; col. 783.]

I respectfully suggest to him that he is not so much retaining it as turning it on its head. Before it was a measure confined to marriage to Catholics; now it is marriage to anyone of any religion or for any other unspecified reason. Before the penalty was the voiding of the marriage; now it is the loss of the right to ascend the Throne. These are constitutional changes of import. I do not believe that King George III, even in his angriest and most despairing moments at the behaviour of some of his sons, would have contemplated the extreme option of barring them from the succession. Yet it is done in this Bill, and not a word of explanation for such a change, so far as I could trace, has been offered either in this House or in another place.

Against that background my amendment seems impossibly modest. With these major changes, the future becomes harder to predict. However, what does seem clear is that just as a short list of six would not have been enough in the past, neither will it be enough in the future to protect the Crown from trouble. It is at the future that my amendment is directed.

I invite your Lordships to consider the potential case—a rather frivolous one, many years from now—of an imaginary granddaughter of the monarch, second in line to the Throne, who has a baby. Her first cousin, sixth in line, telephones her and says, “Thrilled about the baby. Do have another one soon so that I can marry that gorgeous Argentinean playboy I met last month in Ibiza”. It is frivolous but feasible. That would not happen if she were number six in a list of 12; and if something similar did happen with the 12th in line, it would be much further from the Throne and would have much less impact.

We tend to think of the succession in terms of Kings and Queens who have already reached the Throne, so for the most part it all looks relatively orderly and stable, looking back over the past couple of centuries. However, the line of succession is quite different. It can change rapidly and repeatedly. It can sometimes be unpredictable and even almost chaotic, as King George III’s experience demonstrated. He and Queen Victoria both exemplified the view that large families secured the succession, but there were certainly downsides to that. Now, and perhaps in the future, we tend to see smaller families but with longer life expectancy—several generations of them in the line of succession, a point made perceptively by the noble Earl, Lord Erroll, in Committee.

In that situation it is not difficult to demonstrate that all six places requiring marital consent can be filled by the heir apparent and his or her own children and grandchildren. That leaves all of the heir apparent’s siblings and their children outwith the ambit of marital consent. Can it be right that by the time they reach marrying age some of the reigning sovereign’s own children might not be covered by the terms of this Bill?

My noble and learned friend also said at Second Reading that he wanted to limit the monarchical consent,

“to the people who could feasibly assume the Throne”.—[Official Report, 14/2/2013; col. 783.]

So do I, but I ask him: is it not feasible that the siblings of the heir apparent might also, in some circumstances, assume the Throne? Should we not provide for that?

If some tragedy should befall the heir apparent’s family—and here I am giving a far from frivolous example —attention would turn to the monarch’s other children. Who could say how many of them or their children, beyond the reach of this Bill, may by then be married to Catholics and raising Catholic children or married to people of any other religion that is deemed unacceptable? That is when the line of succession would start jumping further out, and the further out it goes, the bumpier it gets and the more difficult it may become, after possible en bloc disqualifications, to find potential heirs who could meet the terms and obligations of a potential heir to the Throne.

My noble and learned friend accused me in Committee of positing a “catastrophic but remote hypothetical” event. However, I simply do not accept that. Nor do I accept that it is necessary or appropriate for me to spell out all the myriad risks and dangers that can and might arise in this day and age. We must be realistic, and not just hope for the best.

For all its faults, the 1772 Act brought certainty, if not to marriage at least to the succession. Now, with the repeal of that Act and its replacement by the Bill before us, it is the other way round: the marriages are okay but the line of succession is not.

I believe that when this Bill comes into force we will have much less certainty about the future of the line of succession to the Crown and more of the ingredients for instability. We have a moral duty to provide for that with as much protection as we can contrive. Why take the risk of not doing so?

I set great store by my noble and learned friend’s letter of 7 March to my noble friend Lord Trefgarne concerning the position of the other realms, of which I have procured a copy. On page 4 of the letter he says:

“We have, of course, always been clear that the agreed legislation as introduced into Parliament could be amended as the Bill progresses through its Parliamentary stages, just like any other Bill”.

That, to me, sounds like a step in the right direction. Later on, he says:

“An amendment to the procedure in clause 3 surrounding consent to marriages … would not alter the law of succession and would not concern the Realms”.

I hope that that indicates a chink of light and a willingness to consider amendments with more sympathy than has been apparent thus far during the course of the debates at Second Reading and in Committee. I assume that the relevant procedure in respect of my amendment, to which the letter refers, would be the seeking and obtaining of the consent of the sovereign to a marriage, which would be unaffected by this amendment. Changing six to 12 is a small but practical change. It is a change of degree, not a change of principle. It would leave the Bill not “significantly different”—to quote the Canadian yardstick—from its present form. In that spirit, I beg to move.

My Lords, I have not contributed to this debate until now but was so moved by the oratory of my noble friend Lord Lang when he first put this prospect forward that I really thought it was important to back his amendment. There is no doubt but that it is an extremely modest amendment. I come from a position of serious disquiet, knowing that the person who is really pushing this Bill through Parliament is the Deputy Prime Minister. That adds a whole dimension of worry that the thing has been cobbled together in a rather hasty way. The whole idea of six members of the Royal Family being in this bracket is a number that came to him in the middle of the night and he thought, “Let’s just stuff it in”. I do not think that any serious thought has been given to this at all. I share many of my noble friend’s concerns that we live in a very dangerous age and that awful things could happen to six members of the Royal Family. Then, of course, we would all look incredibly stupid and six would be a number that was obviously much too small.

This is a very modest amendment and I hope that my noble friend Lord Fellowes is not right that this law will have to be processed through all the Commonwealth Governments if we change it. I refer to the noble Lord, Lord Fellowes, as my noble friend, although he sits on the Cross Benches. If you have shared a flat with somebody, you cannot really think of him as anything other than your noble friend. I hope that that is not a concern but I do think that this is a very modest and very sensible amendment and I sincerely hope that this can be taken on board.

My Lords, I, too, support the noble Lord, Lord Lang, with his intelligent and thoughtful amendment. Can the Minister give some background to the situation? I, and I daresay your Lordships, would like to know how many times since Her Majesty the Queen came to the Throne have there been applications for marriages by descendants of King George III and how many times these marriages have been turned down. That would be interesting. As we are all interested in historical matters, this would be at least one contribution. It may seem an indiscreet suggestion but nevertheless it would be very useful to know.

My Lords, I have been somewhat controversial during this debate so I cannot claim the virginity of my noble friend Lord Hamilton. The purpose of this Bill is to rid us of discrimination. I am sad to say that we have not proceeded as far as I would have hoped, but that is obviously going to be very difficult. But in so proceeding, it ought not to leave us with difficulties in the future. The purpose is to write something that is going to work, however odd the circumstances.

What we are trying to do here is to make decisions that are unconnected with the personalities involved. That is why we want to do this at a point where it does not affect any individual. We have been arguing that we do not want a situation in which we have to make some immediate decision because this Bill is defective, and thereby have a public argument about whether a particular person in particular circumstances is suitable to be an heir, or one of the possible heirs, to the Throne. That is what we are trying to avoid.

I put it to my noble and learned friend the Minister that we have had enough examples suggesting that six is too small a number so as to make it happier if we have a larger number. Given that we accept that six people have to ask permission, it does not seem absolutely dreadful that 12 people have to ask permission. I do not quite understand why it is six. I agree with my noble friend that six does not seem to be a particularly valuable number. I thought it was unnecessary to suggest that the figure was brought into doubt because of the progenitor. We can forget about the progenitor of this; it is simply that six does not seem to have any particular connection with it.

My noble friend has had even more ministerial experience than I have. Has he not observed that once a number is on green paper, it becomes sacrosanct?

There comes a point at which people think that there is some nobility about a figure that has been chosen, even though its history may be much less noble than the guise it assumes. This does not seem to be something that the Government should argue about.

I have to say something rather serious to my noble and learned friend. I have sat in this House for two and a half years now and the number of times I have come across things on which it would be very easy for the Government to give way—things that do not really matter but which might just be helpful, but where they solidly go on defending the indefensible—is really very peculiar.

We had a debate on caste recently. It was quite clear that the Government could have given way. I have now discovered that almost everybody who voted against me on that occasion did so because they did not know what the debate was about, so if we bring it back the only people who will vote for it will be in the Whips’ Office. The Government could have given way on that without any difficulty at all. The same is true about so many things.

Perhaps my noble and learned friend could take one message back: there are some things where quite a good case has been made; there is no real downside to it, so why do we not do it? Why is it so necessary to assume that there is something so important about this figure? Would it have been all right if my noble friend Lord Lang had suggested seven or nine? At what point are we allowed to say, “In our judgment, this is a better figure”? I just want to say to my noble and learned friend: in my judgment this is a better figure. Looking at the various faces all around, most of us here would not revolt if 12 was put in rather than six, so can we please have it?

My Lords, I just wanted to ask a rather more general question of the Minister. At the moment civil partnership is not part of this Bill. If the same-sex marriage Bill is passed, will that mean that same-sex couples would also require the consent of the Queen or her successor?

My Lords, I am delighted to support my noble friend’s amendment. I start by saying to my noble friend Lord Hamilton that I have not always shared flats with people who are noble and certainly not always with my friends, but that is slightly beside the point. When legislating, we should always adopt the precautionary principle. The amendment before us is not a matter of principle; the principle is in the Bill: that the sovereign should retain consent. The amendment is merely about the practicality of numbers.

My noble friend in moving the amendment talked a bit about the past, about Queen Victoria’s family and George III’s family. I have a faint connection with a 20th-century royal family which, like many of them, no longer has a kingdom. I happen to know that there was some unhappiness in that family and did some research to look at it.

Between 1933 and 1994, which is 61 years and the length of the current sovereign’s reign, there were three generations and three successions in the German royal family, but, during that time, 17 individuals were removed from the line of succession for marital reasons and, in that, seven marriages were removed from the list. They are the only ones whom you can see by doing a little bit of research. Those 17 individuals all had children and grandchildren who would have been affected. So that is an incredibly short period of time and an enormous change, mostly for religious reasons, because that family, too, had difficulties over Catholicism and Protestantism.

It is worth remembering that when this Bill was mooted and was in the newspapers, everybody drew attention to the fact that if it had been passed during Queen Victoria’s reign, her eldest child, Princess Vicky, would have become Queen of England and the Kaiser, whom she married, her consort. The Kaiser would have been King of England and emperor of Germany. The family that I have been talking about would have been our Royal Family in this generation, with their 17 individuals and seven marriages moving on and off the list of six.

There are indeed differences, as my noble friend said, between the 18th, 19th and 20th centuries. There has of course been a decrease in mortality, particularly infant mortality—thank God that we have far less of that than they did in those days. However, we have an increase in marriages. A friend of my father once asked him what my sisters did. He said, “They marry, long and hard and often”. Quite a lot of people do that in the 21st century. More and more people have more and more marriages. One of the princes in the German royal family, Crown Prince Wilhelm, an eldest son, was married four times and had goodness knows how many children. That is not very long ago. I hope, and we all pray, that there will not be tragedies in the Royal Family—but there have been. We all know what happened to Lord Mountbatten and his family, not far from the sovereign. We hope that that will not happen, nor that it will be illness or death, but, undoubtedly, there are changes in families. Those 17 individuals were not all direct father-son-grandson in 60 years; many of them were siblings, and those siblings had children and grandchildren.

No one suggests that we go back to the idea of all the descendants of King George II, hundreds of people, having to get their marriages approved, but, under the precautionary principle on which we legislate so often, six seems rather a small number.

My Lords, I have my name on this amendment, which I support strongly. When I intervened in Committee, I pointed out rather flippantly that if this provision goes through and the child that we expect is born, the Deputy Prime Minister will have to explain to one daughter of the Duke of York why she has to ask permission but not the other. That explains one of the many illogicalities which might arise from the number six.

When one legislates, one should go with the grain of what the public perceive to be reasonable. Why did we ever have this sort of legislation in the first place? It was because the then monarch was concerned about the impact on the image on the Royal Family of marriages which were being undertaken within the Royal Family. He cast the legislation wide because he had a wide family; indeed, it was not his children’s marriages that originally concerned him, hence it was thrown back to King George of the earlier generation. I am pleased to say that our Royal Family is not viewed in the same way as was the Royal Family in the 18th century.

Which members do the public consider to be the close Royal Family today? They consider them to be our Queen, her children and her grandchildren. It so happens that by chance those are 12 people, soon to be 13. The number my noble friend puts forward approximates more sensibly to what the public would regard as the Royal Family. They do not distinguish between members of the close royal family. I agree with my noble friend Lord Deben that it seems absolutely absurd that this should be resisted. We heard at an earlier stage that it would not in any way cut across the Perth agreement, which was subsequent and separate from it.

I really hope that the Minister and the noble Baroness on the Opposition Front Bench, who seems disappointingly unkeen to hear arguments for flexibility in this, will consider it carefully. This is not a core item to the agreement. It seems entirely sensible and would avoid potential problems. I will support my noble friend if he presses the amendment, but I hope he will be heard by my Front Bench.

My Lords, I support this amendment very strongly. Briefly, my points follow closely those of my noble friend Lord True. By extending from six to 12, the measure would reinforce the sense of family and the obligations that go with it. These are especially important where the Royal Family is concerned. In giving approval for the marriages of his or her blood relatives, the monarch can surely expect to bind them more closely to the Crown and the public duties that it imposes. For that purpose, it is surely appropriate to have 12 blood relatives in this category, rather than six.

Bagehot, the great Victorian constitutionalist, laid great stress on the benefit that Britain derived from a Royal Family of significant size which, under Queen Victoria, inspired great respect, following the disreputable family of George III. I suggest that to maintain and strengthen that tradition, it would be right to increase to 12 the number in the line of succession who would need to seek the approval of the monarch.

My Lords, I, too, support this amendment. Twelve seems to me an eminently sensible and, indeed, a hallowed number. There were 12 tribes of Israel, 12 apostles, 12 members of the jury and there used to be 12 pence in the shilling. Perhaps more importantly, one asks: what is the downside of 12? If those who are ranked seven to 12 do not rate their chances of succession, or if perhaps they do not want to succeed, their remedy is perfectly simple: they do not ask Her Majesty for consent and the statute automatically then disqualifies them. It is only Her Majesty who might suffer the problem of having to consent—if consent is sought—to so many more marriages and I am sure she would not mind.

My Lords, I strongly support my noble friend. He made a splendid speech in Committee and again this afternoon. Any amendment that can unite my noble friend Lord Deben and me deserves the support of the House. I hope that the Minister will not attempt to resist it and will heed the sensible words of my noble friend Lord Deben. What is the point of resisting? This is not a point of principle, but of practicality. To have 12 builds in an extra safeguard and rules out the possibility of a different sort of ambiguity, to which the right reverend Prelate referred in his earlier admirable speech. No one has spoken against this amendment. I am sure the Minister will incur not only the admiration and good will of the House, but the admiration of those outside who are following these proceedings. If by chance my noble friend does not feel able to accept the amendment, I hope that my noble friend Lord Lang will press it.

I speak only to add weight to the perception that I hope that my noble and learned friend is getting that the whole House supports the amendment, and that he will have a major task in showing us significant downsides to prevent all of us flocking around my noble friend.

I will live up to what the noble Lord, Lord True, expects and disappoint him. Not everyone was here in Committee, when this was discussed at greater length and there was an amendment to reduce the number—I think to four, or even to zero—so it was not as clear-cut then that the number should be increased. Indeed, the number six is not the full number of people who will necessarily always have to seek permission, because they have to seek permission at the point at which they marry. It could well include far more people. Someone who may not be heir to the Throne within the first six at any one point could be in that position by the time that they want to marry. It applies at the time of their marriage, so more people may well have to seek permission.

As we said when this was discussed at greater length in Committee, with more evidence given than perhaps all noble Lords have had a chance to read, we feel that this is not an exact science. We know that five were probably as many as were ever needed, so we thought that six gave a useful additional margin.

We certainly do not think that it is sensible to involve an unnecessarily large number of people in having to seek permission of the Crown in order to marry when they have no realistic possibility of inheriting the Throne. We do not know on what grounds a monarch would debar someone from a particular marriage if it was not about religion, although one noble Lord suggested that. We do not know what sort of reasons a couple would have to consider when deciding whether to go ahead with the marriage and give up their place in line. It seems to us strange to put a young couple through that when there is no good reason for doing so.

I should add that although this was not in the original Perth agreement, it is part of the agreement that has been discussed with all the other countries, with all the hard work done on everyone’s behalf by New Zealand. It would need an enormous amount of unscrambling to change the number now when it has been discussed at great length. I am sure that it is in no way the intention behind the amendment that it should be wrecking or delaying. However, I fear that changing the number from six would have that effect. I am sure that we would not want to risk the other really important parts of the Bill, the two bits that the whole House strongly supports—the succession to the Crown of the first born, should it be a woman, and the ability of someone in line to the Throne to marry a Catholic—by delay. We support the continuation of the Bill as it stands.

My Lords, again, I thank my noble friends Lord Lang, Lord Hamilton and Lord True, who have signed the amendment. My noble friend Lord Lang raised this issue at Second Reading and again in Committee and on each occasion stimulated a very good debate. It is clear that a balance needs to be struck somewhere between mitigating a remote but potentially catastrophic event, on the one hand, and the risk of impinging unnecessarily, as the noble Baroness, Lady Hayter, said, on the lives of those who are more distant from the Throne.

My noble friend Lord Lang said that there were two differences in what was being proposed from what was there before. I think he said that, before, consent under the Royal Marriages Act 1772 related to religion and marriage to a Catholic. In fact, it went much wider than that. As my noble friend Lord True said, it was George III’s concerns about his siblings that prompted it. It was not actually to do with religion because the provision on religion was such that if you married a Catholic, you lost your place in the line of succession. I suspect that you also still had to get consent, being one of the descendants of George II, otherwise your marriage, albeit one that took you out of the line of succession, would have been void. Nothing is changing there. It is not related solely to religion.

My noble friend also said that the other change is that rather than the marriage being void, as is the case under the 1772 legislation, the person and their descendants from that unconsented-to marriage lose their place in the line of succession. Hitherto, failure to get consent did not cause the individual concerned to lose their place in the line of succession, as the examples given by my noble friend indicated, but their children did not have any place in the line of succession because by definition the marriage was void. Therefore, the children could not take up any place in the line of succession. Being the children of a void marriage, they would not be legitimate.

This change has taken place first to reduce the very large number of people who are today the descendants of George II. In response to the noble Lord, Lord Thomas of Swynnerton, I just do not know how many consents Her Majesty has given during the 61 years of her reign. If my memory serves me correctly, I think I said in Committee that no one seems to have any record of consent having been refused. I would not like to suggest that information about how many consents have been given might be available. The fact is that as each generation comes to bear another generation, the number of descendants of King George II increases. Indeed, it may well be that some of them do not know that they are descendants of George II and may be contracting marriages which are void. That is one of the principal reasons why we wish to change this, so that the consequence of failure to get consent or of consent being refused is not that one’s marriage is void, which has considerable consequences for the couple concerned and their family, but rather that the person loses their place in the line of succession.

As the House will be aware, I indicated that we believe that the six steps provide sufficient proximity to the Throne. The noble Baroness, Lady Hayter, made an important point about consent at marriage: people who at the time of the consent for their marriage were in the first six may subsequently no longer be within the first six in line to the Throne, so the number at any one time who have had to receive consent will almost certainly be greater than six. If one looks at the 240 years of history since the Royal Marriages Act 1772 was passed, the person furthest away from the Throne at the time of marriage who subsequently ascended the Throne was William IV, who was third in line to the Throne, so the position as it stands provides twice as many steps away from the Throne than have ever been necessary in more than 200 years.

The Minister referred earlier to a possible catastrophic but remote event. The fact of the matter is that in this day and age, very sadly, catastrophic events are too common. Members of the Royal Family are by their nature public figures and they are often together. The possibility of a catastrophic event should be taken into account. I, for one, am still not at all convinced by the argument from the Front Bench and am inclined to support the amendment as it stands.

My Lords, the point I made is that we need to provide a balance between militating against a potentially catastrophic event and the risk of unnecessarily impinging upon the lives of those who are more distant from the Throne. While it is reasonable for different rules to apply to the Royal Family, a requirement to obtain consent to marry is a real restriction on people and as such a very strong argument should be made to extend it. I have heard various people say why six is not acceptable. However, I have heard no reason for 12, with the possible exception that it is the number of apostles or the number of former pennies in a shilling. It is also said that it is the number of jurors on a jury, but of course in Scotland that is 15. It is not a question to which there is a mathematical answer.

My noble friend has moved on from the point that I wanted to pick up on. He is treating the necessity of getting permission from the Crown to marry as if it were a great disincentive to marry and a great burden for these people to suffer, but they are not going to be forbidden to marry; they are only going to be told that they are not in line for succession to the Crown, and I should think a great relief to many of them that would be.

I hear what my noble friend says, and he makes that point well. It is, indeed, as I and the noble Baroness indicated, an additional requirement and impinges on the lives of individuals. The Bill is trying to seek that balance. It is not a question to which there is one, and only one, right answer. As the noble Lord, Lord Deben, said, it is a matter of judgment. While my right honourable friend the Deputy Prime Minister would no doubt love to take credit for everything that has been put into the Bill—he has ministerial responsibility for constitutional matters and this legislation—I pay tribute to my right honourable friend the Prime Minister who, like his predecessor, sought to get agreement with the other realms and was party to the announcement of the agreement that was made at Perth. The noble Baroness, Lady Hayter, rightly says that this was not part of the Perth agreement, but it was flagged up at the Heads of Government conference in Perth that we would be seeking changes to the Royal Marriages Act 1772. That was followed by Prime Ministerial correspondence, on which agreement was reached on the number six.

My noble friend Lord Lang referred to a letter to the noble Lord, Lord Trefgarne, in which I said that procedural matters would not require the consent of all the other realms. Indeed, there are procedural issues in Clause 3 as to how, for example, the consent has been obtained and signified. However, substantive matters on the succession to the Crown—to which I referred in the debate on the previous amendment and which get into the spirit of the preamble to the Statute of Westminster Act 1931—would require the agreement of the other realms. This impinges on the succession to the Crown. Indeed, the New Zealand legislation, of which I have a copy somewhere here, specifically makes provision for six with regard to those who would require the consent of the sovereign to marry.

The noble and learned Baroness, Lady Butler-Sloss, asked about civil partnerships. Civil partnerships do not require monarchical consent, as a civil partner does not necessarily assume the public role expected of a spouse as sovereign. She also raised same-sex couples, which came up in an earlier amendment moved by my noble friend Lord True. The Government believe that marriage as stated in Clause 3 of the Succession to the Crown Bill means marriage as defined by the jurisdiction in which it takes place. If we take this away from the issue of same sex—to take away from, as my noble friend Lord True said in moving his amendment, the controversy that might surround that—different jurisdictions very often have different rules on marriage. As a simple example, the age for marriage without parental consent was different from that in England. If it was a legitimate marriage in the law of Scotland, it would be recognised as a marriage, albeit that it would not necessarily have been a legal marriage under the law of England.

Before my noble friend leaves that important point—and I accept what he says about civil partnerships —is he saying that the Government are knowingly legislating for a position where the monarch’s Ministers in one country may advise that a same-sex marriage should be disqualified from the succession to the Throne, but in another of the Queen’s dominions, the Crown’s Minister will give opposite advice? Is that what the Government are recommending to Parliament?

My Lords, that is not what I am saying. It depends on the jurisdiction of the place where the marriage is contracted. I believe I am right in saying that under the law of Canada, same-sex marriage is legitimate. If, therefore, hypothetically there was a same-sex marriage by someone perhaps well down the line of succession to the throne in Canada as of today, and that was lawful under the law of Canada, that would be a marriage. It hat is not a question of Canadian Ministers giving consent, which might be different because the law in the United Kingdom is different. There might even be different laws in the near future between Scotland and England, depending on the timing of legislation. It is not a question of Ministers giving consent; it is the actual law that is in place in a particular jurisdiction at a particular time.

It is a matter of judgment. I say that quite frankly to the noble Lord, Lord Deben. The Government believe that six is the appropriate number. That is what history suggests is necessary. No more than three have been required in the last 240 years, and there is some added leeway. As I said, with any legal restriction, if we impose a legal restriction we should limit it as far as possible. While I fully recognise the strength of the arguments that have been put forward, I have not heard sufficiently strong arguments that we should extend this legal restriction more than we believe is necessary to take account of the historical number of places to get to the throne, and double it up for that matter. I know how strongly my noble friend feels about this, because we have discussed it in the past. If he feels that it would be helpful to have further discussion on it, I am more than open to that suggestion. In the mean time, however, I invite him to withdraw his amendment.

May I ask a practical question? If this House took the view that 12 is preferable to six, how would that deal with the problem as to whether this Bill was then in difficulties with the other countries, which have agreed the Bill as it is?

My Lords, when we come to a later amendment in the name of my noble friend Lord Trefgarne, I will be able to explain what the position is in the different realms. It would require agreement among the other 15 realms. I will explain this in detail when we come to a later amendment. I am not introducing a parliamentary procedure. As I have indicated, New Zealand is, and it already has a Bill before its Parliament with the number six in it. It would therefore require agreement; it would not necessarily require a parliamentary process. It is up to each individual realm to decide what to do, and some of them do not believe that they need a parliamentary process.

I am sure that if it was just that, it would be simpler. Certainly, the experience of reaching agreement was far more painstaking and more work was put into it than a simple exchange of e-mails. I know that when the noble Lord, Lord Stevenson of Balmacara, who participated in some of our earlier debates, worked in the previous Administration in No. 10 Downing Street, this was one of his responsibilities when the previous Prime Minister was seeking to get agreement. I know how much effort was put into getting the agreement at Perth, and subsequently into getting the agreement on this provision. It is not, therefore, as simple as an exchange of e-mails.

If we pass this amendment this evening, it will simply go to another place, which will give extended time for sounding out opinion in the rest of the Commonwealth realms. If a negative response to those soundings was received, we could of course think again, and the Commons might decide to reject the amendment. We are simply expressing this view of this House on a common-sense matter. I very much hope that we shall be able to do that.

My Lords, I am most grateful to all noble Lords who have spoken in this debate, in particular to the noble and learned Baroness, Lady Butler-Sloss, and my noble friends Lord Cormack and Lord Elton, who gave me time to digest what I thought my noble and learned friend said at the end of his remarks. I will come back to that shortly.

First, I thank everybody who took part in the substantive debate, in particular my noble friends Lord True and Lord Lexden, and the noble Lord, Lord Thomas of Swynnerton, who are three serious historians. I invite my noble and learned friend to contemplate not only the number of noble Lords who have spoken, because there has been unanimous support from the Back Benches in the Chamber, but the quality of the contributions. I also thank my noble friend Lord Deben, whose persuasive luminosity was up to its usual very high standard. My noble friend Lord Mancroft brought substance and fact to a debate that has had to be held on a conjectural basis before, with his very important friends or relations—I am not quite sure which—in Germany. Not that all relations are necessarily friends. That was extremely helpful, as were the contributions from the noble and learned Lord, Lord Brown, and my noble friends Lord Hamilton and Lord Cormack. I apologise to anybody I have omitted to mention.

I do not want to go over all the points that were raised before, because we have batted balls around in the past and we do not always reach agreement. If I misspoke, to use a convenient Americanism, in the context of the 1772 Act, I apologise. The two central points I was keen to get across were that that Act was concerned with breaking marriages but saving the line of succession. The present Bill is the other way around. It would let the marriages go ahead but would throw in the bar to succession. That is an important injection of uncertainty that could lead to certain unintended consequences, which is why I am so keen to see a stronger and more stable base of 12 who have to seek the monarch’s consent in future.

As to the age at marriage, which is an improvement on my noble and learned friend’s previous commitment to the age at birth, Queen Victoria’s age at marriage was not relevant because by then she had left the line of succession and was already Queen. She would only have had to ask for consent to marry. I could, however, refer to the example of the Duke of Cumberland and Teviotdale, Prince Ernest Augustus, who was sixth in line to the throne when he married in 1815, rather than my noble and learned friend’s example of someone who was third in line. He ended up as King of Hanover in 1837 because, of course, Queen Victoria could not accede to that throne because of male primogeniture.

This comes down to judgment. I thought I heard a coded message coming from my noble and learned friend—I do not think I saw white smoke coming out, but at any rate it put me at a slight quandary. I am conscious that regardless of the extent of support within this Chamber, if it came to a Division the noble Baroness, Lady Hayter, has substantial support at her disposal in the Lobbies, and there is no detection of a change of tone coming from there. Nevertheless, I believe that my noble and learned friend is offering me half a loaf, which is better than none. I will withdraw this amendment in the hope that these discussions will be productive, not just empty posturing and going over the ground that we have already gone over. In that tone, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Amendment 4 had been withdrawn from the Marshalled List.

Clause 5 : Commencement and short title

Amendment 5

Moved by

5: Clause 5, page 2, line 29, leave out subsection (2) and insert—

“(2) The other provisions of this Act shall be brought into force by statutory instrument subject to the approval of both Houses of Parliament.”

My Lords, we touched on this matter in Committee. Under the present provisions, the Bill can be brought into force, bit by bit, by order of the Lord President of the Council, who is, of course, Mr Clegg at present.

This is not a personal matter. My complaint is not that it happens to be Mr Clegg in his present role but that there is a single Minister at all. A Bill of this nature and this importance should not be brought into force, bit by bit, at the request of a single Minister, however senior and distinguished. That is the essence of my complaint, so I propose that it should be brought into force by statutory instrument, subject to the approval of both Houses of Parliament. I hope your Lordships will agree, and I beg to move.

My Lords, my noble friend very succinctly makes his point about the commencement of the Bill. I fully accept that this has nothing to do with the personality of the Lord President. As I explained earlier, it happens that he has ministerial responsibility for constitutional and elections law.

There is absolutely nothing unusual in a Bill including a power for a Minister to commence provisions in an Act on a date and at a time to be specified by order and without that order being subject to any particular parliamentary procedure, negative or affirmative. Parliament will already have given its approval and the Act that is brought into force will be unamended; it will remain unchanged. Therefore, there is no reason for it to return to Parliament so that Parliament can confirm what it has already agreed.

We have always been clear that we will commence legislation only when we are satisfied that each realm has taken the necessary steps to give effect to the changes. It is paramount that each realm should have the same rules of succession to the Crown, otherwise we risk bifurcation. We have agreed with the realms that the United Kingdom will be the first to legislate in order to provide a framework for the rest. We have always been clear that the agreed legislation, as introduced in Parliament, could be amended as the Bill progresses through its parliamentary stages.

The Government have taken pains to ensure that each realm is content with the Bill. It is for this reason that the Bill contains flexibility as to the time of commencement in order to allow for simultaneous commencement across time zones and for all realms to take any necessary steps to give effect to the changes. However, I note the interest of the House in how the changes will be given effect to in different Commonwealth realms. I will say more about this in connection with Amendment 8. In the context of this amendment, I give an undertaking that the Government will lay a Statement before Parliament ahead of the commencement order to indicate how the realms have given effect to the Perth agreement. The aim is to maintain flexibility on the commencement order of the Bill that will have passed through both Houses and received Royal Assent. What is brought into force will be unamended. Therefore, what is proposed by the Bill is the proper way forward, and I invite my noble friend to withdraw his amendment.

My Lords, my noble and learned friend has gone further than he went in Committee, which is reasonable and acceptable. I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

Amendment 6

Moved by

6: Clause 5, page 2, line 31, at end insert—

“( ) An order made under subsection (2) shall not have authority in Scotland unless a draft has previously been approved by the Scottish Parliament.”

My Lords, I came to Second Reading with one major concern in my mind. By Committee I had two and now I have three. Perhaps I should stop coming to these debates because my list will only grow. It leads me to wonder whether we are here with unreasonable haste on something that should not have great haste: namely, an important and challenging constitutional issue.

We all know that there will be a happy event around midsummer this year. I hope that we are not being overinfluenced by that, because it is not the gender of the unborn baby that should guide us at this moment but the continuity of the lady on the Throne, whom we should not seek to embarrass or put in any predicament that could be adverse to the continuity into the future of her glorious 60 years. It is possible that in time, having made a full recovery now, she will exceed her mother’s years—and may she reign for all of those years, too. In that case, what is the haste that we are looking at? We have had many instances in our history when the succession has fallen on an individual who has been born long before they came to the throne. Whatever happens in June or July this year, we do not need to make any commitment.

By the way, I can assure the House emphatically that the Duchess of Cambridge did not intend to use the “d” word and say that she was going to have a daughter. It is a very important point. In my earlier career I was the recipient of a great deal of training in lip-reading. It is one of the few things at which I can claim to be an expert, so I ask noble Lords not to mock me. I have watched the five-second clip of the incident many times. The Duchess never had her tongue out of the roof of her mouth. That enabled her to say the “d” very emphatically. From there she could have gone either to an “au” sound for “daughter”, a “u” for “duke”—but she would not use twee language and say, “I will give it to my duke”—or to an “o” sound to say that she would give it to her dog. She brought herself up on the spot because she realised how hurtful that would be to the kindly donor of the little dog. She had to change direction, and in order to avoid one brick she stubbed her toe on another. Unless the Deputy Prime Minister has plans to so overhaul our constitution that we have a dog on the throne, I cannot see that there is anything here about which we should be concerned. The more we look at constitutional issues, the more it appears that Mr Clegg may have misidentified them and that he is in fact Mr Baldrick Clegg, creator of some very cunning plans.

As I said, I have three major concerns. The first is the one that I began with: namely, that we are putting the Crown in an impossible position. We expect to receive a delegation of the prerogative of consent, which I do not believe the Crown is entitled to delegate to us. Secondly, because of those factors, we should look very closely at the issues of entrenchment and the laws that are being changed. We have heard that one Parliament cannot bind another, but this occurs frequently and in this case it is emphatically there. The third factor is that without any doubt the Bill, in particular Clause 4, virtually wipes out the Act of Settlement with Scotland and renders unnecessary a referendum. If this Bill were passed, Scotland would float off towards the Arctic and a very cold economic future. We should be very concerned not to create these appalling outcomes.

The matter of entrenchment is something that we need to think about very hard. When my noble friend Lord Marks and I had our dialogue in the debate at Second Reading, we were misleading each other and were both under a very big misapprehension. We were talking about alterations to the declaration of rights. In the half hour the Minister was kind enough to give me last week to discuss this, he and his team made the same mistake. The declaration of rights is not the issue here; it is the Bill of Rights. We are confusing them because of the interregnum. There was no monarch at the time. Therefore, there was no way that there could be a Bill leading to an Act, as happens at the moment. There was a declaration of the complaints of the citizens of this country, which was answered by a Bill that eventually became an Act. The Bill of Rights that was presented to William and Mary repeated word for word the declaration of rights. However, it ended at the word “accordingly”, whereupon Joe Browne, the Clerk of the Parliaments, signed his name. A space was left for William to sign, but in fact he signed a separate piece of vellum that was stitched into the Bill. This was perhaps the first instance in England of a political stitch-up.

The document sets out the suggested oaths that could be sworn by future monarchs. However, they are only suggestions and not part of the Bill. As such, my noble friend Lord Marks was wrong, and the Minister remains wrong, because the alterations to the oaths that occurred in the past do not constitute a precedent by which one can alter the Bill; one cannot. I will read two phrases that sum up how far the entrenchment goes. First, the two Houses of Parliament should,

“with royal concurrence make effectual provision for the settlement of the religion, laws and liberties of this Kingdom, so that the same for the future might not be in danger again of being subverted, to which the said Lords Spiritual and Temporal and Commons did agree, and proceed to act accordingly … to the same in all times to come”.

There is not much wiggle room there.

Towards the end, the document states that the provisions are,

“enacted and established by authority of this present Parliament, and shall stand, remain and be the law of this realm for ever”.

That is what we are asking to pass back to Her Majesty, with the request that she should forgo her coronation oath by altering something that was put into the laws of this land for ever and is, I submit, incapable of being changed. I return to my objection on Second Reading. We do not have the authority to accept delegation of the prerogative to this House, and any noble Lord who voted for it would be in breach of their oath on joining your Lordships’ House. I have raised this with many Members on these Benches. No one will give me an answer. They all say: “I’m sure it’s all right but I don’t know why”. I want to know why. I cannot vote for this and I suggest that no noble Lord should vote for it unless we are assured that we are not forcing Her Majesty into an impossible predicament by so doing.

The situation is very straightforward. We have a constitutional monarchy that is committed, first, by its commitment to the oaths of proclamation. There is a very different wording for England and for Scotland, whereby it is much tougher for Scotland. Then we have the coronation oaths, which bind the Crown to abide by what is in effect the entrenched law of the land, which we are now proposing significantly to change. The legal bounds of the Crown’s authority of governance are breached if the Crown’s constitutional limitation is exceeded. This defines the point at which a constitutionally limited monarchy has a duty arising from the commands of the law and constitution to refuse assent to a measure. If a measure is demonstrated to require removal of the constitutional law defining the duty to enforce, it is a breach of that duty, and constitutionally must be disallowed. We in this House can have no authority to pass a measure that collides headlong with the existing rules of our constitution. The limitations of the Crown would need to be breached to remove those duties, and this is an impossible and intolerable situation to place the Crown within.

In allowing the Bill, we would violate principles emanating from these enactments, which limit the Crown and the constraints imposed by the oath of office. At that moment, we would place the Crown in breach of its solemn and sworn duty, a duty undertaken as a reign-long obligation by Her Majesty. We cannot do that. Furthermore, we can hold no authority whatever to seek to do it.

I want to hear the answers to these points. I am very happy at what this Bill tries to achieve and would oppose none of it, but I am wholly opposed to the process by which we seek to do it. The advice that we have had on our legal position is undercooked, and I want to know a great deal more.

My Lords, I thank my noble friend for setting out his concerns. I was grateful to him for taking the time to elaborate on the rationale for his concerns at a meeting to which he referred, which we had last week. As I understand it, he has two particular concerns. The first relates to the coronation oath, which the sovereign is required to make to maintain the established Protestant religion. He is concerned that there might in this Bill be something inconsistent with the coronation oath that Her Majesty swore. I disagree and I make it clear that we are not amending the provisions of the Bill of Rights or the Act of Settlement, which say that the sovereign has to be a Protestant. That was debated under an earlier amendment. One could conceivably argue that as a result of the Bill more people might come out of the line of succession, because one of their parents was a Catholic and the parents intended to bring up the child as a Catholic, but that is simply not the same thing. Given that the prohibition on the sovereign being a Catholic remains, there is no conflict between the Bill and the coronation and accession declaration oaths. Therefore, I believe that my noble friend’s opening premise is wrong.

I also disagree with his assertion that the Bill is inconsistent with the oath that the sovereign has to swear with regard to maintaining Presbyterian church government in Scotland. I declare an interest as an elder of the Church of Scotland. As a young student during Her Majesty’s Silver Jubilee Year in 1977, I sat in the gallery of the General Assembly when Her Majesty opened it and reaffirmed her coronation oath with regard to the Church of Scotland. Again, nothing in this Bill in any way conflicts with the oath that Her Majesty took on her accession, which she has subsequently reaffirmed.

My noble friend also made reference to Scotland, and his amendments very much relate to the position of Scotland. He seemed to imply that the Bill would somehow lead to the break-up of the union. In our view there is nothing in this Bill that conflicts with requirements set out in the Act of Union. Given that my noble friend’s amendments focus on the territorial extent of the Bill, it would be helpful to consider that matter as well. The Crowns of England and Wales, Scotland and Northern Ireland are united by the various Acts of Union. Any changes that the United Kingdom Parliament makes to the laws of succession will apply automatically across our United Kingdom. The succession to the Crown is a reserved matter, as is clearly stated in the Scotland Act 1998, and the Scottish Parliament would have no competence to pass a resolution in relation to succession. At least, it would have no legal effect, as proposed in my noble friend’s amendment. However, the devolved Administrations were provided with drafts of the Bill ahead of introduction. Similarly, the Bill applies not only to the UK but to the Crown dependencies and overseas territories by necessary implication, following the precedent set by other Acts concerning the sovereign. Again, Crown dependencies and overseas territories were also consulted.

I seek to reassure my noble friend, who I know is deeply concerned about these matters, that there is nothing inconsistent with the provisions in the Bill before your Lordships’ House and the coronation oaths sworn by Her Majesty. I hope I can allay his concerns and persuade him that this is a perfectly proper matter that we deal with in this Bill.

I thank the noble and learned Lord for that response. The first of my two amendments is, I agree, improper because it anticipates a resolution that the Scottish Government cannot pass. The second amendment was intended to provide an alternative and a way around the problem if it was still seen to be a problem. In that context, I wonder whether another meeting between myself and the noble and learned Lord might be helpful.

The other issue missing from all this at the moment is any reference to the regency, which was created first of all in 1936 but was not actually used. One wonders whether, if there is a problem, one could wait for an interregnum and then have a regency for long enough to pass a Bill. There would not then be a problem. I would like to discuss that with the noble and learned Lord at another time. Otherwise, I am happy at this moment to withdraw my amendment. The second amendment was intended only to provide an easier route than the first.

Amendment 6 withdrawn.

Amendment 7 not moved.

Amendment 8

Moved by

8: Clause 5, leave out Clause 5 and insert the following new Clause—


This Act shall come into force when all the relevant Commonwealth Parliaments have given their assent to all of its provisions.”

My Lords, I am concerned—I think that there was reference to this in the letter that my noble and learned friend very kindly wrote to me the other day—about the possibility of different parts of the Bill coming into force at different times in different parts of the Commonwealth. For example, it seems possible for one nation to agree that the eldest child of the sovereign became its head of state and for another nation not to agree, or at least to delay agreeing—and therefore it might be the second child of the sovereign who became its head of state. That seems to be a confusion and complication that we would not wish to see. My amendment proposes that we should wait until all the nations that want to agree have agreed, so we avoid that difficulty. My amendment proposes that the Act will come into force when all the relevant Commonwealth Parliaments have given their consent to all its provisions. The word “relevant” relates, of course, to the fact that some Commonwealth nations do not have our Queen as their head of state. Therefore, their consent is irrelevant.

I hope that my noble and learned friend will be persuaded as to the point that I have made. I beg to move.

My Lords, my noble friend makes an important point about the simultaneous implementation of these provisions in all the realms of which Her Majesty is Queen—and clearly for the right reason, as he gives it. It would not be helpful, nor would it be the policy intent of any of the realms that have agreed to this, that there should be divergence between different realms as to the head of state. Indeed, it is the intention that the effect will be given once all the realms have done what is necessary before the Bill is brought into force, as indicated in response to Amendment 5. I noted the interest that the House has taken as to how changes will be given effect in the different Commonwealth realms, and I have given an undertaking that the Government will lay a Statement before Parliament ahead of the commencement order to indicate how the realms have given effect to the Perth agreement.

It may help the House if I give an update on how the other realms are taking forward these changes. I have referred before to the preamble to the Statute of Westminster 1931. It states:

“And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom”.

This being part of a preamble and not being in the body of the Act, these words impose no legal obligations. However, the Government recognise that they carry considerable political weight and as such have undertaken to agree these changes with other realms’ Governments and to seek their consent to the legislation before introducing it into Parliament.

The New Zealand Government have co-ordinated this discussion, which culminated in all realms giving their written consent to the introduction of this Bill and their assurance that, based on the Bill as drafted, they were in a position to give the policy the same effect in their country. In doing so, some realms decided that legislation or parliamentary consent was required. Others have been clear that no further steps are necessary and that the changes will be brought about by the changes effected by the United Kingdom Government. In our view, it is in accord with the principle of the Statute of Westminster that it should be for each realm to decide what, if anything, is necessary or desirable to give effect to the agreement. Thus, although the preamble refers to the assent of the Parliaments of the dominions, we do not believe that it is for the United Kingdom to insist that parliamentary approval is obtained. I can confirm that in the case of some realms a referendum is necessary before changes to their constitution are made. However, we are not aware that any realm intends to amend its constitution, so the question of its undertaking a referendum on this issue does not at present arise.

As regards the detail of each realm, the Pacific realms of Papua New Guinea, Tuvalu and the Solomon Islands are all content that because of the wording of their constitutions no changes to their laws will be required to implement the changes to the law of succession in their respective countries. We do not believe that they intend to consult their Parliaments further on this matter.

As regards Australia, on 7 December 2012, in a meeting of the Council of Australian Governments, the Prime Minister, state premiers and territory chief ministers reiterated the support of all Australian Governments for the changes to the rules of royal succession proposed by the United Kingdom. Australia has not yet reached agreement with all states and territories on the specific method of implementation in Australia but legislation will be required, probably at both Commonwealth and state levels. Indeed, Queensland has already introduced its own Succession to the Crown Bill.

The New Zealand Bill was introduced on 18 February and its provisions mirror those of the United Kingdom Bill, although it additionally amends, where necessary, New Zealand specific legislation: for example, the Imperial Laws Application Act 1988.

The Canadian Bill has now been introduced into the Canadian senate. The Canadian Government’s view is that the laws of succession are UK law and not Canadian law. The Canadian Bill therefore does not seek amendments to the rules of succession. Instead, the Bill states that Parliament has assented to the changes set out in the United Kingdom Bill. The Canadian Bill will come into force on a date set by an Order in Council.

Jamaica and Belize have stated that, based on the nature of their constitutions, no legislative change will be required to give the changes effect domestically. We do not believe that they intend to consult their Parliaments further on this matter. The relevant oaths under the constitutions of Jamaica and Belize make reference to:

“Her Majesty Queen Elizabeth II, Her Heirs and Successors, according to law”.

The constitutions do not contain any express provisions defining “Her Majesty” or setting out the rules of succession, but we understand that Jamaica and Belize take the view that the reference in the oath to the heirs and successors of Her Majesty is to the heirs and successors under UK law—or, in other words, that it is implicit in their constitutions that the question of succession to the Crown in right of Belize and Jamaica is resolved by the law of the United Kingdom.

We believe that it would be open to the other Caribbean realms to take a similar view, but it is, of course, for them to decide how best to give the changes effect. The United Kingdom and New Zealand are in ongoing discussions with each realm to support the work they are doing.

I thought it would be useful to put that on the record because I know that in earlier debates interest was shown in that matter. I reiterate that it is intended that these measures will come into effect at the same time when all the realms of which Her Majesty is head of state have concluded their appropriate arrangements. In responding to an earlier debate, I indicated that the Government would make a Statement to Parliament prior to introducing the commencement order, indicating what has happened in each realm. Indeed, the reason why there is flexibility in the commencement order is to achieve that very purpose. In light of those comments, I hope that my noble friend will feel able to withdraw his amendment.

Before my noble and learned friend sits down, has he any view as to the earliest possible point when the realms will have completed their work and the measure can be implemented?

My Lords, I am most grateful to my noble and learned friend. He has gone further than he did at the previous stage of the Bill and I am grateful to him for that. I am also grateful to him for his letter—five pages, no less—which he wrote to me since the previous stage, which has likewise been very helpful. He has said that he will lay a Statement before Parliament as each step is reached. If I may assume that that Statement will be a situation report and will perhaps describe the other nations where progress has not yet been achieved, I am content. On that basis, I am happy to withdraw my amendment.

Just so there is no ambiguity or misunderstanding, I think I said that before introducing the commencement order, we will make a Statement—it will not be a sort of running commentary—indicating what has been done in each realm to give effect to these changes.

Amendment 8 withdrawn.

Schedule : Consequential amendments

Amendment 9 not moved.

Groceries Code Adjudicator Bill

Commons Amendments

Relevant document: 16th Report from the Delegated Powers Committee.

Motion on Amendments 1 to 9

Moved by

1: Clause 9, page 3, line 17, leave out subsection (1)

2: Page 3, line 20, leave out from “to” to end of line 21 and insert “enforce through imposing financial penalties, that means imposing a penalty on the large retailer of an amount not exceeding the amount of the permitted maximum (see subsection (7)).”

3: Page 3, line 25, leave out “and”

4: Page 3, line 26, at end insert “; and

(d) how it must be paid.”

5: Page 3, line 34, at end insert—

“(7) The Secretary of State must make an order—

(a) specifying the amount of the permitted maximum, or

(b) specifying how that amount is to be determined.

(8) The Adjudicator must, within 6 months beginning with the day on which section 1 comes into force, make a recommendation as to the amount that should be specified in the first order under subsection (7) or the method for determining the amount.

(9) Before making a recommendation the Adjudicator must consult any person he or she thinks appropriate.

(10) The Secretary of State—

(a) must have regard to the Adjudicator’s recommendation when making the first order under subsection (7);

(b) may amend or replace an order under subsection (7) only if the Secretary of State has considered whether to do so as part of a review under section 15.

(11) The Adjudicator may not impose a financial penalty in respect of a breach of the Groceries Code that occurs before the first order under subsection (7) comes into force.”

6: Clause 12, page 4, line 20, leave out “and”

7: Page 4, line 22, at end insert “; and

(d) the criteria that the Adjudicator intends to adopt in deciding the amount of any financial penalty under section 9.”

8: Page 4, line 31, leave out subsection (4)

9: Page 4, line 39, leave out “and (c)” and insert “, (c) and (d)”

My Lords, I beg to move that your Lordships do agree with another place in their Amendments 1 to 9. I shall speak also to Commons Amendments 11, 14, 16 and government Amendment 14A to Commons Amendment 14.

Commons Amendments 1 to 9, 11, 14 and 16 all together resolve what has been the most hotly debated topic of this Bill: whether the adjudicator should have the power to fine written on to the face of the Bill. As the Government have said throughout, and as the BIS Select Committee has also acknowledged, this is an issue that is finely balanced. However, at Second Reading in another place there was an overwhelming consensus that fines were necessary. This echoed sentiments expressed in your Lordships’ House. Accordingly, the Government have listened to the clearly expressed voice of Parliament and have tabled amendments to give the adjudicator the power to fine from the outset.

I would like to make clear that I expect fines to be used as a last resort, only for the most egregious or repeated offences. However, the very fact that the adjudicator has the power to impose them will send a strong message to retailers that compliance with the code is not optional. I am confident that these changes will mean that the adjudicator is able to ensure fair play in the food supply chain and keep the industry growing.

This will also benefit the farming industry. While many farmers are unlikely to be direct suppliers to retailers, and thus formally out of scope of the groceries supply code of practice, they will still benefit from increased trust and transparency in the supply chain. It is important to note that the adjudicator’s functions will not be a panacea for all the difficulties of the farming industry. She cannot set prices or address pay and conditions, but improved relationships between direct suppliers and retailers will have beneficial effects along the entire supply chain.

There have been suggestions that the power to impose fines from the outset would make Britain a less attractive place to do business. I would respond by saying that, other than retailers, almost all business groups, including the Federation of Small Businesses, the Food and Drink Federation and the National Farmers’ Union, support this amendment. I would further say that for retailers who comply with the code, an existing legal obligation, there will be absolutely no additional burden, as fines could only ever be imposed for a breach of the code. Retailers will also have a full right of appeal on the merits against the imposition of a fine or its amount.

One further aspect of these amendments is that they set out the process for specifying the maximum penalty. This is clearly a critical part of the power and I consider that it is important that the basis of determination of the maximum penalty be set out in legislation. Equally however, simply to insert a maximum into the Bill without consultation with stakeholders would not be appropriate, and most people would agree that we would not wish to delay the Bill to allow that consultation to be carried out. It is our intention that the adjudicator will set out in her guidance the criteria that she intends to adopt in deciding the amount of any financial penalty.

The guidance will be published in draft form shortly after commencement for a 12-week consultation period. This will allow stakeholders to express their views regarding the maximum level of the fine and will allow the adjudicator to reflect those views in her final recommendation to the Secretary of State. It would be more appropriate for the adjudicator to take the lead in recommending the maximum penalty based on the evidence from the consultation, subject of course to the Secretary of State making the final decision and to parliamentary oversight.

It is therefore essential that consultation be carried out on this matter. Stakeholders, both retailers and suppliers, deserve to have an input into this process. Accordingly, the government Commons Amendments 6 to 9 to Clause 12 require the adjudicator, alongside the initial consultation on guidance, also to consult on what the maximum penalty should be or how the maximum penalty should be calculated and then, via Commons Amendment 5 to Clause 9, to make a recommendation to the Secretary of State. The Secretary of State will then be required to establish this maximum by order. This will ensure that fines can be imposed as soon as possible.

I should like to inform your Lordships that in Committee in another place the Minister, my honourable friend Jo Swinson, gave a personal commitment that, barring extreme matters outside the control of the Government, the order establishing the amount of the maximum fine or how that amount will be determined would be laid within three months of the adjudicator’s recommendation to the Secretary of State.

I also draw your Lordships’ attention to the fact that Commons Amendment 11 to Clause 15 allows the Secretary of State to alter by order the maximum penalty or how the maximum penalty is to be calculated as a result of the findings of a triennial review. To clarify, the wording relating to the maximum penalty or how the maximum penalty is to be determined is used because we envisage that the Secretary of State could set a maximum either as a specific amount—X pounds, which would apply as the same fixed maximum for each retailer—or by reference to a formula, such as X% of a retailer’s groceries turnover, or the value of relevant supply agreements. This approach is set out in paragraph 92 of the Explanatory Notes.

Finally on this topic, I turn to Amendment 14A on the marshalled list, the new government amendment to Commons Amendment 14. Amendment 14A has been tabled in response to a recommendation from your Lordships’ Delegated Powers and Regulatory Reform Committee in their 16th report of this Session. It recommends that the order with which the Secretary of State will set the maximum level of the fine, or the basis upon which it should be determined, should be subject to an affirmative parliamentary resolution rather than through the negative procedure as currently stated in the Bill.

There are already safeguards on the use of the power; it can be exercised only after a recommendation from the adjudicator who must first consult about it. The Delegated Powers and Regulatory Reform Committee recognised that this would usefully serve to inform the Secretary of State’s exercise of the power. However, the committee has advised that because the upper limit of the penalty is not in the Bill the power to fix the limits should be subject to a significant level of parliamentary scrutiny. Amendment 14A will therefore ensure that the order will be subject to the affirmative resolution procedure, thereby ensuring that Parliament will be able to scrutinise and positively approve the order. I beg to move.

My Lords, Members of the House who are present will not be surprised to hear that I regret these amendments made at the other end of the Corridor. I will be brief.

I am speaking as the only member of Her Majesty’s opposition. There is always cause for pausing to think about legislation per se, but when all three Front Benches agree, we can be pretty certain that they have not really thought the matter through—there is no need to and it goes on to automatic pilot. You can also be pretty certain that there will be one or two unintended consequences. My starting position would be, despite my noble friend’s clear and completely comprehensible explanation—the only sign of grace in it being the affirmative procedure—that there are already far too many circumstances in which state functionaries can raise administrative fines. In this case, the groceries code is working. There are 10 supermarkets in hot competition with each other, and they report on complaints and how they have been dealt with. So far, there has been no problem with the speed and accuracy with which these arguments have been settled.

However, that is not why we have these fines. It is because it is said that what is going on now is only the tip of the iceberg due to a climate of fear, which means that many other things go on that do not get attended to, and we therefore need a third party to create a triangular relationship—the adjudicator, who now needs the power to fine. My problem with that is that I very much doubt whether the climate of fear, if it exists, will disappear. If it does, and fines are imposed, one has to question whether it is sensible to put in a state-funded and mediated procedure involving 10 highly competitive supermarkets and their suppliers. When we get into that argument, everyone says, “We understand. We are talking not about Nestlé or Kellogg but the small and medium-sized suppliers. We are also”—this is where we come to the heart of the matter—“talking about the dairy industry”. I fully accept that that industry has significant problems. This is not the time to analyse them but I hope that we would have the opportunity to discuss this issue in much greater depth in this House at an early date. I hope that my noble friend on the Front Bench will promote the suggestion that we discuss the dairy industry in some depth and detail. The supermarkets want to sell as much milk, cheese and other products containing milk as they can. That is their interest. It is not in their gift to solve the dairy industry’s problems. It is wrong for us, as a Parliament, to put it about to a certain extent that if you have a grocery code adjudicator it will be a cure-all for some of the undoubted problems that exist, not least in the dairy industry.

My view is that because the code works pretty well, the investigations that come outside the present practices under the code and arrive with the adjudicator will prove to be intractable or unnecessary. I am pleased that I am not looking for the adjudicator to be busy. It is a misapprehension to think that a lot of the things going on out there will give the adjudicator the opportunity for fruitful investigation and fining. I am pleased that the order that is to come is to be affirmative. I guess from what my noble friend said that it should be with us for debate in about nine months. I hope that we debate it seriously.

Finally, if investigations and fines were to become the practice, grocery prices would rise. That would surely be an unintended consequence.

My Lords, I support the Bill and the amendments the Minister has presented today. However, I am left pondering that if we have a situation here where we are concerned about a customer abusing a supplier, should we also not be alert to the issue in banking where we have suppliers potentially abusing customers? Should there not be a similar mechanism in place in which customers of banks, and I think here particularly of small businesses, have the right to appeal to an independent adjudicator about the treatment they are receiving from the banks? It is right that we should be concerned about a situation of customer abuse but the potential for supplier abuse in the banking industry, which is even more concentrated than the supermarket industry, is clearly higher.

I know this goes beyond the Minister’s brief and I do not for one minute expect him to give a detailed reply, but I suggest to your Lordships’ House that if we are seized by the importance of this Bill and believe that it is the right and proper thing to do, most of the arguments on which we have drawn apply with even greater force to the banking industry.

My Lords, my noble friend Lord Myners made a similar very interesting point at Second Reading. It was interesting then and it is interesting now, but it is not a point I am going to dwell on and he will understand that. I am very sorry to disappoint the noble Viscount, Lord Eccles, that as the lead for Her Majesty’s Opposition I am not opposing more on this Bill but the Government have found the right way of doing things. They have taken a policy that was developed by the previous Labour Government and have bought it forward in legislation. As the Bill has gone through Parliament, they have listened to voices, including from Her Majesty’s Opposition, pressing for the adjudicator to have teeth from day one with the right to fine. I am delighted that they have given concessions. Even before the introduction in the House of Lords, following the BIS Select Committee and pressure from my own party, they removed the restriction on third parties, such as the National Farmers Union, from submitting evidence. Then we had a concession from the Government on powers to fine. We had argued that right from the outset.

I am absolutely delighted and I pay tribute to the Minister, Jo Swinson, and her colleagues, including the Minister, for listening to the arguments made in both Houses. I also pay tribute to my colleagues Ian Murray and Huw Irranca-Davies in the other place for the work they did on this Bill and take this opportunity to thank the noble Baroness, Lady Wilcox, for listening to our arguments on accountability when we were debating this Bill in the Lords. She most graciously conceded the points so that there will now be an annual report before Parliament. A final concession with an amendment in the Marshalled List today will see a move from a negative to an affirmative procedure around the level of fines. That, too, is extremely welcome.

I am delighted with the Government’s approach. I would like to see that repeated in many other ways across legislation. We are looking forward to the Queen’s Speech. Perhaps in that we can look forward to the Government having listened to Labour policy and brought it forward in legislation, and then listening to the Labour Party and changing things as they go through. We have not got everything we wanted—we believe that the code needs to remain a live document. The noble Viscount, Lord Eccles, made a good point about the possible abuse of power in the supply chain by Nestlé, Kellogg and other intermediaries. We have concerns about that. Commercial pressure and bullying in the supply chain that can drive down food standards and health and safety remain a concern, even with the code and this adjudicator. Recent scandals around horse meat, pressures from the horticulture industry to abolish the Agricultural Wages Board and ease immigration rules to drive down the cost of wages to meet the demands of supermarkets are all evidence that this is an extremely competitive industry where competition can at times lead to abusive behaviour.

On balance, we are very happy with this Bill. We support the amendments made in the other place and those before us this evening and we look forward to its speedy implementation.

Having played a very small part in the early stages of the Bill, I want to congratulate the Government on listening. I am not in agreement with the noble Viscount, Lord Eccles. He knows that. I have listened to many NGOs in the farming community and I think he underestimates the feeling out there. It is important that the adjudicator is able to hear from anyone now. It is important that they can initiate investigations based on their own assessment as to whether there has been a breach, and it is also important they have a full set of tools to be able to change retailers’ behaviour. Retailers can be fined and required to take out a newspaper advertisement saying they breached the code. The GCA can provide clarification on how to interpret the code and can recommend changes in its scope. That is roughly the gist of it. I concur with the noble Lord, Lord Knight, that the Commons amendments have been just what was wanted.

My Lords, I am grateful to all noble Lords for their contributions, particularly the noble Earl, Lord Sandwich, and the noble Lord, Lord Knight, although I warn the noble Lord, Lord Knight, that he should manage his expectations for the future.

The issue of whether to give the adjudicator the power to impose fines from the outset has always been, as I have said, a finely balanced policy decision. The BIS Select Committee acknowledged this in its 2011 report. We continue to believe that the sanction of requiring a retailer to publish information—the so-called name and shame—will be a powerful one and will suffice in the great majority of breaches. However, the Government have listened carefully to the arguments made in your Lordships’ House, at Second Reading in another place and by third parties that the ability to fine from the outset would help to give the adjudicator more teeth.

Turning to the questions raised by noble Lords, my noble friend Lord Eccles effectively asked why we need an adjudicator at all. He may not have said it in those words but that was the gist of it. I accept that he feels very strongly about this and he has argued his point eloquently here, as he has at previous stages in the passage of the Bill. I hope he will accept that the weight of opinion in both Houses, as well as that of the Competition Commission and the BIS Select Committee, is strongly in favour of the establishment of an adjudicator.

We recognise that supermarkets are a vital part of our economy and that they do much good through increased employment, consumer choice and their own commitment to corporate social responsibility. We also recognise that the groceries sector is generally very competitive.

My noble friend talked a bit about the suggestion that there is a climate of fear. Currently, complaints must be made to the supermarket involved and, given the purported climate of fear to which he refers and which has been indentified among suppliers, this could indeed limit complaints. Very few suppliers would be willing to challenge a retailer on which they are likely to be highly financially dependent. An independent adjudicator to whom suppliers can complain confidentially is therefore essential to enforcing the code.

He asked about how it could help farmers. The adjudicator has a very tightly defined remit. She will enforce the Groceries Supply Code of Practice based strictly on the Competition Commission’s findings that retailers were transferring excessive risk to their direct suppliers. She will therefore not be able to set prices for produce. Similarly, issues arising between farmers and processors will be out of scope. She can only consider interactions between retailers and their direct suppliers. It is important to note that most farmers are not direct suppliers to retailers. Most farm produce tends to be sold to wholesalers, processors or other intermediaries. However, we are confident that by reducing the pressure on direct suppliers the adjudicator will allow them to make longer-term decisions and to increase innovation and investment, which will benefit the entire supply chain including farmers.

My noble friend was also naturally concerned about the prices paid by shoppers when they go to supermarkets, and he said that he would not wish to see the adjudicator’s work leading to increased costs for hard-pressed consumers. I reassure him that the retailers themselves, when giving evidence to the BIS Select Committee, said that the cost of compliance with the code had not led them to raise the prices paid by consumers. Ultimately, this is a pro-consumer measure. The Competition Commission’s 2008 report clearly identified that the supermarket practices that the adjudicator will confront could have a detrimental effect on consumers if left unchecked.

The noble Lord, Lord Myners, raised a question about the financial sector. It was an interesting point, if I may say so. I have a feeling that the financial ombudsman has an important role to play, and I am sure that the noble Lord will make his point again on a perhaps more relevant occasion.

The noble Lord, Lord Knight, essentially raised the issue of a living code. If the adjudicator considers that the code should be changed, then he or she is required by the Bill to make a recommendation to that effect to the Office of Fair Trading. It should be emphasised that this is a narrow duty on the part of the adjudicator. Under the existing provisions of the Enterprise Act, it would then be for the OFT to decide whether to advise the Competition Commission that a variation of the code was appropriate by reason of a change of circumstances. However, these provisions allow for the code to be adapted to changing circumstances in the groceries market to ensure that suppliers are treated fairly.

I hope that that addresses most of the issues raised and I recommend these amendments.

Motion agreed.

Motion on Amendment 10

Moved by

10: Clause 15, page 5, line 37, leave out subsection (5) and insert—

“(5) The review must also consider whether it would be desirable—

(a) for an order to be made under subsection (10A) (if no order under that subsection is in force), or

(b) for any order under that subsection to be revoked.”

My Lords, I beg to move that your Lordships do agree with the Commons in their Amendments 10, 12 and 13. New subsection (10A) enables the Secretary to State to restrict the sources of information that the adjudicator can consider when deciding whether to carry out an investigation. This is a reserved power, and it can be exercised only after a triennial review has been completed.

This is a contingency measure and it was introduced in case the adjudicator becomes overwhelmed by a high volume of complaints of variable quality. She will have only a small office. This provision will enable her office to focus on enforcing the code effectively in the event that there is a flood of complaints. It also acts as a reminder to trade associations to use the adjudicator responsibly and to ensure that they ask the adjudicator to consider only issues that are likely to fall within the scope of the Groceries Supply Code of Practice. We do not think it is likely that trade associations will behave irresponsibly, but it provides an incentive for them to behave well and not to swamp her office.

As set out by my honourable friend the Minister for Employment Relations and Consumer Affairs, we think it is very unlikely that this power will ever be used, and we hope that it will never be necessary. The power could also be invoked only after a triennial review, as I said, and only if that review revealed that poor-quality or irrelevant complaints were affecting the adjudicator’s ability effectively to carry out her functions.

Concerns were none the less raised in the other place about the scope of this power. Government Amendments 10, 12 and 13 were therefore introduced to respond to those concerns by putting additional safeguards in place regarding when the power can be exercised.

Amendment 10 provides that the ability to restrict sources of information should be reversible. The amendment means that if circumstances change so that, for example, it is beneficial to the adjudicator to again allow wider input from trade associations and others, the Secretary of State can revisit his decision at each subsequent triennial review.

Amendment 12 provides that the power can be exercised only if it will make the adjudicator more effective. It cannot be used on a whim.

Amendment 13 makes the power subject to the affirmative rather than the negative procedure. This gives Parliament the opportunity to scrutinise and positively approve the exercise of the power.

I hope your Lordships will agree that these additional safeguards make it clear that sources of information will be restricted by the Secretary of State only if it is felt absolutely necessary to do so.

Motion agreed.

Motion on Amendments 11 to 13

Moved by

11: Clause 15, page 5, line 38, at end insert—

“( ) A review may consider whether it would be desirable to amend or replace the order for the time being in force under section 9(7).”

12: Clause 15, page 6, line 18, leave out lines 18 to 20 and insert—

“(10A) The Secretary of State may by order provide that this Act has effect as if the section set out in subsection (11) below were inserted after section 4.

(10B) An order under subsection (10A)—

(a) may be made only if, as a result of the findings of a review, the Secretary of State thinks that making the order would enable the Adjudicator to be more effective;

(b) may be revoked only if, as a result of the findings of a review, the Secretary of State thinks that revoking the order would not impair the Adjudicator’s effectiveness.

(11) This is the section referred to in subsection (10A)—”

13: Clause 23, page 10, line 21, after “section” insert “15(10A) or”

Motion agreed.

Motion on Amendment 14

Moved by

14: Clause 23, page 10, line 21, leave out “9(1) or”

Amendment to the Motion

Moved by

14A: At end insert “and insert “section 9(7) or section””

Amendment to the Motion agreed.

Motion, as amended, agreed.

Motion on Amendment 15

Moved by

15: Clause 26, page 11, line 3, leave out subsection (2)

My Lords, Amendment 15 removes the privilege amendment passed in your Lordships’ House at Third Reading. I beg to move that the House do agree with the Commons in their Amendment 15.

Motion agreed.

Motion on Amendment 16

Moved by

16: Schedule 3, page 15, line 36, leave out Schedule 3

Motion agreed.

HIV/AIDS: Commonwealth Countries

Question for Short Debate

Tabled By

To ask Her Majesty’s Government what assessment they have made of the impact of discrimination against gay men and women in Commonwealth countries on global efforts to halt the spread of HIV/AIDS, and what steps they are taking to tackle such discrimination.

My Lords, it is a privilege to lead this debate. I am indebted for the support of the organisations that work tirelessly in this area, including the Human Dignity Trust, the HIV/AIDS Alliance, the Kaleidoscope Trust and the Terrence Higgins Trust.

It is a while since this House debated the issue of HIV/AIDS, so let us first remind ourselves of the scale of the problem. While in the developed world, where HIV is now a chronic condition, not a death sentence, we sometimes become blasé about the subject, in much of the world HIV and AIDS remains a catastrophe. In three decades, AIDS has claimed 30 million souls. Last year, 1.8 million died. More than 34 million people are living with HIV and many of them will perish. Although new infections have declined by 21% in the past decade, still 7,400 people are infected each day.

HIV and AIDS remains a global health catastrophe—the worst pandemic in modern history. The good news is the enormous advance in treatment. Today, there is no reason why anyone receiving it should live any shorter a life than someone without HIV. Crucially, we also have the tools radically to slow new infections through education and prevention measures. However, that ability to prevent the spread of HIV is being seriously compromised. The Global Commission on HIV and the Law concluded that,

“punitive laws, discriminatory and brutal policing and denial of access to justice for people with and at risk of acquiring HIV are fuelling the epidemic”.

At the heart of international efforts to deal with this pandemic is a crisis of human rights law, not medicine. There is now overwhelming evidence of the link between criminalisation of homosexuality and the rate of HIV infection.

Why does criminalisation matter? What is the link between bad law and this public health disaster? The UN Development Programme’s Global Commission on HIV concluded that criminalisation of homosexuality “both causes and boosts” the rate of HIV among men who have sex with men, or MSM. Evidence is incontrovertible. In Caribbean countries where homosexuality is criminalised, almost one in four MSM are infected with HIV. In the absence of such laws, the prevalence is one in 15—a shocking disparity. A report in The Lancet in 2012 reaffirmed:

“The odds of HIV infection in black MSM relative to general populations were nearly two times higher in African … countries that criminalise homosexual activity than for those living in countries where [it] is legal”.

Why is that?

Criminalisation breeds stigma and marginalisation. Where this exists, homosexual behaviour is driven underground. Those at risk do not want to talk about their sexuality, receive information about prevention or, crucially, get tested, for to do so may mean prosecution and severe punishment. That has a terrible impact on homosexual behaviour. As The Lancet report I just mentioned concluded, where it is impossible for gay men to found lasting, loving relationships because the law prohibits it, they adopt non-monogamous, anonymous, unsafe sexual practices that fuel infection. There is nothing to warn them not to do so. It is after all almost impossible to mount HIV prevention campaigns where homosexuality is outlawed. A study in 2010 commissioned by the UNDP focusing on Asia and the Pacific found that such laws are regularly used by police to prohibit HIV prevention activities, confiscate condoms and censor educational material on HIV. Yet as studies in Cameroon, Senegal and Kenya have found, there is a strong correlation between the lack of these programmes and the likelihood of MSM having unprotected sex, simply out of ignorance of the basic facts.

Then there is the impact on the care of those infected. The threat of criminal sanction is an overwhelming disincentive to seeking access to HIV services—if, of course, they are available. In a recent case in Kenya where the penalty for,

“carnal knowledge of any person against the order of nature”,

is 21 years in prison, the Medical Research Institute had its HIV work disrupted after church leaders claimed that it was providing “counselling services to criminals”. There are similar horror stories from Uganda, Cameroon and Singapore, where health providers, who are key to preventing the spread of HIV, refuse to do so because of the threat of dreadful criminal sanctions.

The issue is not one that impacts just on gay men. HIV does not respect sexual orientation and statute in a neat and tidy manner. Because of these laws, many homosexuals inevitably maintain heterosexual relationships alongside a relationship with a man. The result is that innocent wives and children, often blissfully unaware of the fate that awaits them, also die as a result of criminalisation. So let us be very clear: criminalisation of homosexuality kills. It kills gay men. It kills women and children, and it kills them needlessly in their tens of thousands, with no end to this in sight. It begets a grotesque waste of human life on an unimaginable scale. Of course, criminalisation is an issue of fundamental human rights—one that I, as a gay man, feel profoundly. But it is also, overwhelmingly, an issue of public health. In the name of saving lives, it has to end.

To our shame, many Commonwealth countries stand in the dock. As we heard last October in a debate led by my noble friend Lord Lexden, their record on criminalising homosexual behaviour is shameful: 42 out of 54 Commonwealth countries criminalise same-sex relations. Punishments range from life in Sierra Leone to 20 years in prison, with flogging, in Malaysia. The record of the Commonwealth on HIV and AIDS is a pitch perfect underlining of my argument. While the Commonwealth represents 30% of the world’s population, it contains more than 60% of people living with HIV globally. That is a damning statistic. We will never be able to tackle the global AIDS epidemic until Commonwealth countries take action to dismantle cruel, degrading, outdated laws criminalising homosexuality.

That point was rightly recognised by the Commonwealth Eminent Persons Group, which in 2011 concluded that decriminalisation had been successful in reducing cases of HIV infection and recommended that steps be taken to procure repeal of these laws. But, in the interest of saving human lives, words need to be met with action. Let me suggest some. There are some things that this House can do. Our committees can play a vital role by providing oversight of Commonwealth institutions and scrutinising progress made by the UK in delivering its LGBT rights strategy. There are things that the Church of England, which has great sway in the Commonwealth, can do by condemning criminalisation specifically because of the way it squanders human life. I am delighted to see the right reverend Prelate here this evening.

There are challenges for the Government. I recognise that they have already done a great deal and I applaud the work of DfID and the leadership of the Prime Minister. I also recognise the enormous personal commitment of my noble friend Lady Northover, but there is more. The UK needs actively to support legal reform across the Commonwealth—an issue that should also be a high priority for CHOGM later this year. I ask my noble friend for an assurance that we will press to make this happen. I hope that the Government might also make decriminalisation and HIV prevention, which is crucial to it, a policy commitment for the FCO and DfID.

The Government should also press the Commonwealth Secretariat and the Commonwealth Foundation for action in this area. It is very worrying, given the sheer number of people at risk across the Commonwealth, that the secretariat has not included LGBT rights, legal reform or HIV in its new strategy. I would ask my noble friend to take this up with these institutions, which could play a vital role here. I also hope that the Government will look at introducing a specific funding mechanism for LGBT organisations working for legal or social reform within their own countries, or delivering services to LGBT people.

All these are important steps in beginning to tackle the tragedy—it is a tragedy—of criminalisation. It is an affront to human rights, an affront to human dignity and a legacy of 19th century colonialism that is killing tens of thousands of people in the 21st century. It is an extraordinary monument to man’s inhumanity to man. I shall listen with huge interest to our debate. We discuss many important issues in this House but it is not often that we get the chance to talk about a subject which, over time, could make the difference between life and death for many who are alive now but sick or at risk, and many yet to be born. This is one of those occasions and I am sure that we will rise to it.

My Lords, I thank the noble Lord, Lord Black, for introducing such an important debate. As he says, it is the sort of issue that we do not discuss very often. I should declare an interest as co-chair of the Sexual Health Forum and a patron of the parliamentary group on transgender issues.

Part of the British Empire legacy to Commonwealth states 150 years ago was our then legal system, which we passed on and which regrettably included the old colonial draconian laws on homosexuality. These laws were not repealed when the former colonies won their independence, and they continued to ban gay sex between consenting adults. A consequence has been that the Commonwealth countries make up 30% of the world’s population but 60% of the level of HIV. It is interesting that the countries that were colonised by France under the Napoleonic code, which does not concern itself with homosexuality, do not have anti-gay laws or high levels of HIV. In the Commonwealth countries, however, laws are myriad, and with them come violence, murder, fear, stigma, rejection, impunity, the criminalisation of identity and persecutions. As the noble Lord, Lord Black, says, of the Commonwealth countries, 42 still criminalise same-sex relationships for men, women or both, with dire penalties. I find it unbelievable that the situation is getting no better. In fact, in some countries, it is getting worse.

If I may, I shall repeat some of the horror stories because the more often they are told the more people might listen. In Uganda, the anti-homosexuality Bill is repeatedly brought forward to impose the death penalty for men living with HIV. In Zambia, the maximum penalty has been increased from 10 years to 15 years in prison. Penalties in Trinidad and Tobago include 25 years in jail, and there is legislation to ban the entry into the country of known homosexuals. In Malaysia, the penalty is 20 years and flogging. In Malawi, there are prison terms of up to 14 years’ hard labour. And there is life imprisonment in Sierra Leone, Tanzania, Bangladesh, and Pakistan, which also imposes imprisonment for private same-sex intimacy.

These so-called civilised countries defend these criminal sanctions as an authentic expression of indigenous national culture and tradition: that they are breaches of public morality, public health issues and sexual normality. But those conditions do not apply to the 12 Commonwealth countries that currently do not criminalise same-sex acts. It is encouraging that some of those countries also have laws that protect LGBT people from hate crimes and prohibit discrimination against them. Botswana, for instance, amended its Employment Act in 2010 to prohibit discrimination on the grounds of sexual orientation. There is no question that legal penalties for homosexuality encourage public persecution. In Jamaica, gay men are so hideously and violently socially persecuted that many countries now accept gay asylum seekers from Jamaica into their own countries.

Again, in Uganda, tabloid newspapers have conducted witch hunts naming gay men and encouraging violence against them. In both those countries, the result was gay men being killed. All this shows that obstructive legislation contributes to the inability of HIV sufferers to claim their rights and increases the level of HIV stigma and discrimination. HIV sufferers face persecution and violence from employers, hospitals and community organisations. These draconian laws drive gay people underground, away from effective HIV prevention, treatment, care and support. As the noble Lord, Lord Black, said, it must follow that if you have to hide being gay, HIV-prevention agencies cannot give appropriate advice and may find it hard to reach you at all.

Additionally, where men or women have acquired HIV through gay sex, they are less willing to go for testing, so they pass the virus on. This situation is not helped by the continual harassment of HIV outreach workers by police who prohibit HIV-prevention activities on the grounds that they aid and abet criminal activities. Government agencies may be forbidden from working with illegal minorities. The situation, therefore, is that gay people face a double whammy: first, the risk of acquiring HIV, but at the same time being unable to ask for advice or support because they would have to admit to committing an illegal act.

Last year, the Ugandan authorities shut down a workshop bringing together advocates for the rights of LGBT people and providing information on how to avoid HIV transmission. In Cameroon, armed police broke up a planned three-day meeting on HIV/Aids and sexual minorities, organised by the Association for Adolescents Health against HIV/Aids. All that support and help therefore is not going to the people who need it.

Tackling homophobia can encourage gay men to be tested for HIV and other sexually transmitted diseases. There is no question that homophobia continues to be a major barrier to ending the global HIV and AIDS epidemic. The Commonwealth Heads of Government say that the fight against HIV is a high priority, adding:

“we are committed to accelerating action to implement the objectives outlined in the 2011 UN Political Declaration on HIV/AIDS“.

Nevertheless, only this week, when discussing the future Commonwealth Heads meeting, there was talk about the theme being democracy and human rights. If their goals on HIV/AIDS are really genuine, they have to tackle this situation. At the same time, the Commonwealth Secretariat—again, as the noble Lord, Lord Black, said—has not included LGBT rights, legal reform or HIV in its new strategy. The Commonwealth Foundation’s new strategy does not include any plans to support LGBT organisations or others working towards law reform.

Gay men and women are not the only people who suffer because of their sexuality. Illegality is also likely to be extended to transgender people and sex workers, who are similarly marginalised, hard to reach and often subject to legal sanctions. For instance, the high prevalence of HIV in Africa is driven by cultural, religious and political unwillingness to accept LGBT people, so the prejudice, harassment and isolation means lack of access to HIV prevention, including the availability of condoms.

This is a particular problem for transgender women because their identity as women is not recognised in many Commonwealth countries. Denial of their gender identity in law exacerbates the discrimination and marginalisation that transgender people experience. They often are the targets of violent hate crimes, are denied healthcare and education and struggle to find employment, so they are forced into sex work, all of which increases their HIV risk.

Finally, I follow the same theme as the noble Lord, Lord Black. How should the UK exert its influence? What should we be doing? The UK should actively support legal reform that decriminalised consensual sex between adults of the same sex and prohibited discrimination on the basis of sexual orientation and gender identity. We should be calling for targets on law reform and equality in the post-2015 development framework as a means to ensuring access to health and other services for LGBT people and other excluded groups. The Government can play a vital role by providing a more critical oversight of the Commonwealth institutions and by scrutinising progress made in delivering on their LGBT rights strategy, thereby reducing the level and the spread of HIV and AIDS.

Assumptions that criminalising sexual minorities will prevent the spread of HIV and AIDS are ill-founded, based purely on ignorance and long-standing prejudice. The global evidence is clear that public health is best served by removing discrimination and prejudice against all LGBT persons, giving them—the people who need it most—access to HIV prevention and treatment. Removing stigma through the decriminalisation of private, adult, consensual, same-sex sexual relations is the first step in promoting health and tolerant societies.

My Lords, I start with an apology. I am afraid that the speed of the previous business meant that I arrived just after the beginning of the speech by my noble friend Lord Black of Brentwood. I realise that was a discourtesy to the House and I hope noble Lords will allow me to continue. I also thank my noble friend Lord Black for instigating this debate, which is very important. We have already heard from both him and the noble Baroness, Lady Gould, the important strategic reasons.

The continued spread of HIV and AIDS in the Commonwealth of Nations has had devastating effects on the lives of the ill and their families, and on the nation as a whole, which suffers the loss of a young population. Although many nations have been able to minimise transmission of the disease through education and public health initiatives, cultural barriers persist that make containment of the disease particularly challenging. We have all followed the progress of the Anti-Homosexuality Bill in Uganda, which, in criminalising homosexuality and all educational content regarding homosexual behaviour, makes it nearly impossible to educate the Ugandan LGBT community about safe sex practices.

As we have heard already, this problem is not isolated to a single nation, but is part of a widespread culture of homophobia that bars education and marginalises gay men and women around the world. Although it might be awkward to acknowledge, we recognise that the homophobic attitudes that exist in statute today in parts of the Commonwealth originated in whole or in part from a legacy of colonial British prejudices. Over the past half-century, we have taken steps to change our own culture to one of tolerance and support for all people, regardless of sexual orientation or gender identity. Today, we must take those lessons that we ourselves have learnt to encourage and support some of our Commonwealth family to make similar strides towards the equal protection of all people, regardless of sexual orientation or HIV status, and towards a culture that encourages education and public health awareness.

While the spread of HIV and AIDS in the LGBT community has devastated lives around the world, this evening I would like to focus on Zambia, which is an interesting case study in the ways in which HIV and AIDS prevention can be effective, but also the ways in which it can fail. Zambia is one of the nations hit hardest by the HIV and AIDS epidemics and currently suffers the sixth highest rate of HIV in the world. Today, more than one in seven adults live with HIV. As a result, average life expectancy has dropped to a mere 49 years. Although hit hard by this disease, the Zambians rallied to become one of the most willing African nations to confront the epidemics by the start of the millennium. In 2004, President Mwanawasa declared HIV and AIDS a national emergency, promising to provide antiretroviral drugs to 10,000 people by the end of the year. Not only did the President meet this goal, but he exceeded it, and promised to provide the drugs for an additional 10,000 people by the end of 2005. Former President Kaunda, who in the 1980s attempted to cover up the magnitude of the AIDS epidemic, is now one of Zambia’s foremost AIDS activists. In 2008, UNAIDS reported that the epidemic in the region was stabilising.

Political attitudes towards the virus are changing now that politicians in Zambia are willing to talk about it. In light of International Women’s Day, it is important to congratulate Zambia on the steps taken to protect women and children against the disease by educating women about healthy relationships and safe sex practices, and leading a national campaign to dispel the “virgin cure” myth. Condom use is increasing, and with it the negative stigma associated with condoms is slowly waning. Heterosexual couples are learning through many education initiatives about abstinence and marital fidelity as means of stopping the spread of AIDS and HIV.

However, despite these positive steps forward, the LGBT community in Zambia remains marginalised, unable to access education and abused. As the noble Baroness, Lady Gould, has already told your Lordships’ House, homosexuality is a crime in Zambia, punishable now by up to 15 years in prison. Cultural attitudes express widespread disapproval of homosexuality. In a 2008 survey by the Pew Research Center, the number of respondents who indicated that they felt homosexuality was morally wrong was the highest in any country in Africa, at 98%. American journalist Linda Villarosa described her experiences in Zambia on the Huffington Post blog last summer after travelling with the Global Fund to report on HIV and AIDS. While in Zambia, she wrote, she met Lundu, an openly gay man and an HIV and AIDS activist. When he told his family he was gay, they turned to medicine men to try to cure him. Lundu told Linda that:

“The first day, they cut my skin in 200 places and rubbed herbs and ash in the cuts. The second day they tied me to a tree in the bush and left me there overnight. On the third day, they put me in a shallow grave wrapped in a white shroud”.

Despite the hellish experience that Lundu suffered at the hand of his own family, he recognises the cultural barriers and widely held beliefs that feed into homophobia and consequently contribute to the spread of HIV and AIDS. The criminalisation of homosexuality in Zambia makes it difficult for public health organisations to disseminate information about safe sex and almost impossible for homosexual Zambians to seek access to these materials and to support networks. Many people in Zambia, both heterosexual and homosexual, do not know their HIV status for fear of stigmatisation because of the virus.

The UK Government have come forward in the past and asked the Zambians to protect the LGBT community and legalise homosexuality, but we know that this was met with resistance. In 2011, we expressed our disapproval for these policies by channelling aid directly to the people rather than through the Government. However, the policies remain unchanged and, sadly, so does the state of the virus. Although Zambia continues to receive millions of pounds in international aid, the prevalence of the virus has not dropped significantly since it stabilised in 2008. If through this debate your Lordships’ House continues to take the view, which I hope our Government will continue to take, that one of our foremost priorities in the world is to stop the spread of HIV and AIDS, in Zambia in this instance, we must consider other means of helping to change the culture of homophobia in Zambia through channels other than purely by increasing or changing international funding. There is still a lot that we can do.

We can continue to support online resources, such as Rainka in Zambia and Behind the Mask in South Africa, which use blogs to disseminate information about sexuality and safe sex for homosexual couples in nations where the Governments are not willing to support this type of education. We can continue to engage in a dialogue with the nations most affected by the AIDS epidemic about the public health reasons to decriminalise homosexuality. We can set an example by continuing to stand for equal rights regardless of sexual orientation or gender identity. Perhaps most importantly, we can be the voice that connects health with respect for all people, promoting a new cultural attitude that will help nations like Zambia continue efforts to conquer HIV and AIDS.

My Lords, I am very grateful to the noble Lord, Lord Black, for his powerful, moving and, indeed, sometimes bleak speech, which spelt out so strongly and persuasively the link between the criminalisation of homosexuality and the rate of HIV infection and death from AIDS. This timely debate is taking place in the week when the charter has been agreed and signed up to by all the Commonwealth nations. It expresses that it is,

“implacably opposed to all forms of discrimination, whether rooted in gender, race, colour, creed, political belief or other grounds”.

I take “other grounds” to mean also on grounds of sexuality, although the charter does not spell that out, which suggests there is still a very great deal of work to be done.

Noble Lords may remember that it was almost 50 years ago now, in 1967, that the then Archbishop of Canterbury, Michael Ramsey, spoke in this House to support the decriminalisation of homosexuality in this country. We sometimes underestimate how brave a stance that was from him at that time. By doing so, he made the distinction in British law between a moral and a criminal matter. One of the problems today is that no such distinction has been made in many parts of the Commonwealth and, as a result of criminalisation, people continue to suffer terrible abuse—sometimes death—and the scourge of HIV/AIDS continues unchecked. Indeed, as the noble Baroness, Lady Gould, said, in recent years in some countries there has been an increase in stigmatisation, discrimination and criminalisation, which of course threatens to undermine all the good work that has been done with HIV/AIDS.

It is very well known that on matters to do with homosexuality the churches in general, and the Anglican communion in particular, are deeply divided. However, there are not, and cannot be, any grounds for denying the equality before the law of every single human being, whether they are homosexual or heterosexual. Many of us in this country value and indeed treasure our links with particular dioceses around the Anglican communion. In my case, over the past dozen years or more, that has been with the diocese of Botswana. HIV/AIDS was a disaster for that country, although things are now improving significantly. The Botswana Government have been actively providing public health education and public healthcare and the HIV/AIDS rate is in decline. There has been a much more positive response in Botswana than in some other neighbouring African countries.

Few have spoken out of southern Africa as clearly as Archbishop Desmond Tutu, who said to a United Nations panel in 2010:

“All over the world, lesbian, gay, bisexual and transgender people are persecuted. They face violence, torture and criminal sanctions of how they live and who they love. We make them doubt that they too are children of God—and this must be nearly the ultimate blasphemy … Our lesbian and gay brothers and sisters across Africa … are living in fear. And they are living in hiding—away from care, away from the protection the State should offer to every citizen and away from health care, when all of us … need access to essential HIV services”.

The noble Lord, Lord Black, issued a challenge to me in his opening speech. He believes, he says, that the Church of England has got great sway within the Commonwealth. If only that were so. Much more importantly than that, he challenged me to condemn criminalisation specifically because of the way in which it endangers and squanders human life. I will say as clearly as I can that criminalisation is wrong. I know when I say that that I speak not just for myself but for other members of this Bench, and I want to say it as clearly as the right reverend Prelate the Bishop of Leicester did in a previous debate a few months ago. If criminalisation leads, as it evidently does, to gay people concealing their identity, that is wrong. If criminalisation leads to many living in fear, that is wrong. If criminalisation leads to the prospect of persecution, arrest, detention and death, that is wrong. If criminalisation means that LGBT people dare not turn to the state when facing violence and hate crimes, that is wrong. If criminalisation hinders the treatment of people with HIV/AIDS, that is wrong.

It is within the lifetime of most of us in this House that the law in this country was changed to decriminalise homosexual acts. We need to seek to bring change and a completely new climate in those many countries of the Commonwealth where same-sex relations are still criminal offences. I very much hope that this debate will assist and serve that cause. Let the last words again come from Africa and Desmond Tutu:

“Exclusion is never the way forward on our shared paths to freedom and justice”.

My Lords, like my noble friend Lady Brinton, I must apologise for not being in the Chamber at the very start of this debate, having lingered outside for too long after the debate on the Succession to the Crown Bill, in which I was involved. After a friendship of some 27 years, I think my noble friend Lord Black will probably forgive me.

As my noble friend reminded us in his powerful speech, this House has debated HIV/AIDS from time to time, most recently on the initiative of our noble friend Lord Fowler, whose continuing interest and commitment took him recently to Uganda. It is a matter of great regret that he cannot be with us this evening. Last October I opened a debate, to which kind reference has already been made, on the criminalisation of homosexuality, which, shockingly, remains widespread in the developing world in general and the Commonwealth in particular, breaching fundamental human rights.

This debate brings those two grave issues together. They are by common consent among the most important challenges confronting the world today. My noble friend Lord Black has shown conclusively that the spread of HIV/AIDS and the retention of harsh criminal punishments for homosexual conduct are inextricably linked. As my noble friend reminded us, after a detailed inquiry the UN Development Programme’s Global Commission on HIV and the Law found that criminalisation of homosexuality “both causes and boosts” HIV among men who engage in sexual activity with other men.

As we have heard, the records of most Commonwealth countries—which in so many respects are our closest associates and most valuable friends—testify with particular bleakness to the malign link between criminalisation and HIV/AIDS. Sadly, the majority of Commonwealth countries defy international human rights obligations by treating homosexuals as criminals; as a result, those countries suffer disproportionately from the incidence of HIV. The Commonwealth contains some 30% of the world’s population; it also contains twice that figure—60%—of all people living with HIV across the globe.

John Wesley once said:

“No circumstances can make it necessary for a man to burst in sunder all the ties of humanity”.

The same goes, perhaps even more strongly, for societies, communities and countries. The heart bleeds at this spectacle of suffering and injustice in countries of the Commonwealth, of which my noble friend Lady Brinton has given such a harrowing example. How thankful we should be, therefore, for the sensitive yet determined work of the organisations that have come into existence to combat it: the Terrence Higgins Trust, Kaleidoscope, Stonewall, the Human Dignity Trust and the International HIV/AIDS Alliance prominent among them, all of them working in the name of our common humanity without regard to politics, religion or ideology. They are becoming increasingly well known for their work and that, too, is a cause for thankfulness. They deserve the fullest possible support from all those within the Commonwealth who want to overcome the sundering of the ties of humanity. This great cause must be among the highest priorities of the Commonwealth as a whole—I repeat, as a whole—so that ill intentioned people blind to the ties of humanity cannot decry and belittle it as some neo-colonial plan by Britain and a few others.

In this connection, it was extremely heartening to finds words of the highest wisdom in the report of the Commonwealth Eminent Persons Group two years ago, which recommended:

“Heads of Government should take steps to encourage the repeal of discriminatory laws that impede the effective response of Commonwealth countries to the HIV/AIDS epidemic, and commit to programmes of education that would help a process of repeal of such laws”.

How good it would have been if these fine sentiments had been fully reflected in the new Commonwealth charter, which was described last week by my noble friend Lord Wallace of Saltaire as,

“one of the most important outcomes from the Commonwealth modernisation process. The charter conveys clearly the values that the Commonwealth stands for”.—[Official Report, 7/3/13; col. 1674.]

As we have already heard in the extremely moving speech of the right reverend Prelate the Bishop of Newcastle, the charter—of which so much is being made —does not include any specific rejection of discrimination based on sexual orientation or gender identity, nor does it make reference to the decriminalisation of homosexuality. I understand that some officials of the Commonwealth Secretariat interpret the phrase “on other grounds” in the passage of the charter that covers the rejection of discrimination as a condemnation of anti-gay laws. If so, they should be encouraged by our own and other Governments to make this more explicit.

To that end, as my noble friend Lord Black requested, our Government should make decriminalisation a specific policy priority, with the Foreign and Commonwealth Office and the Department for International Development working together with equal resolution and tenacity to promote it. Operating in close association with other countries, our Government should also monitor closely the progress of central Commonwealth institutions in carrying forward agreed plans throughout this unique association of nations.

It is not enough simply to back the general interests of LGBT people throughout the world, as the Government now do; decriminalisation should be made an explicit goal of government policy for the sake of humanity as a whole, and in particular for the thousands of young people—teenagers even—who at the moment face great suffering and then death as a result of HIV/AIDS. I ask, too, that the Government review their policy on asylum to provide full and equal protection to those throughout the Commonwealth on whom inhumane laws bear so heavily, destroying their hopes and ambitions in their own countries. In addition, many have asked the Foreign and Commonwealth Office to update its dossier of information and advice, the “toolkit” about promoting the human rights of LGBT people, which I understand has remained unchanged since the previous general election.

Sixty-five years ago, the newly formed United Nations issued its Universal Declaration of Human Rights. Its first article states:

“All human beings are born free and equal in dignity and rights”.

For the good of all its peoples, the Commonwealth today should pledge itself to bring those of LGBT identity fully within the scope of that great promise to mankind made to straight and gay alike.

My Lords, I am grateful to have the opportunity of speaking in the gap, and I apologise to the House, to the Lord Speaker and to the noble Lord, Lord Black, for missing the beginning of the debate due to its unexpectedly early start.

Section II of the Charter of the Commonwealth, signed three months ago, states:

“We are implacably opposed to all forms of discrimination, whether rooted in gender, race, colour, creed, political belief or other grounds”.

I cannot add anything to what the noble Lord, Lord Lexden, has just said in describing how empty those words, “other words”, are.

It is important to note that the Commonwealth Heads of Government adopted the recommendations of the Eminent Persons Group on repealing of laws in 2012, indicating that member Governments should identify which, if any, laws are considered discriminatory and what steps should be taken to address them.

None the less, the Commonwealth Secretariat has not included, as other noble Lords have said, LGBT rights, legal reform or HIV in its new strategy, and the Commonwealth Foundation’s new strategy includes no plans to support LGBT organisations or others working towards law reform. The secretariat should offer technical support to members to revise and amend their legislation, and the foundation should support civil society organisations working to promote LGBT rights. To address these gaps, I hope that the UK Government will continue actively to promote LGBT rights within the Commonwealth, particularly at the upcoming Commonwealth Heads of Government Meeting—if they attend; it is suggested that they may not—and in the work of the Commonwealth Secretariat and Foundation.

It is important that deeds match the words. LGBT people throughout the Commonwealth—indeed, wider, but the Commonwealth contains such a large proportion of those suffering from HIV and AIDS—deserve to see stigma removed through the decriminalisation of private, adult, consensual and same-sex sexual relations. It seems to me self-evident that, if that were done, it would be so much easier to treat the many people who are afraid to come forward and seek medical assistance with HIV and AIDS. I hope that that would be seen as a first step towards the tolerant and respectful societies that the Commonwealth should promote.

My Lords, I, too, thank the noble Lord, Lord Black, for initiating this debate. The level of cross-party support that has been shown in the debate makes me incredibly proud of this House and of our country. During the past 20 years the situation for lesbian, gay and bisexual people in Britain has changed significantly. I am also proud that much of that progress was made under the previous Government. That is not to say that we should be complacent about the problems that remain, in particular the level of homophobia in our schools.

In the same period, remarkable efforts have been made in combating the HIV and AIDS epidemic. No longer a death sentence, HIV is now a long-term chronic condition. Britain can rightly claim to be a beacon to the world of equality for gay people and in the forefront of the fight against HIV and AIDS. However, domestic progress is not enough. If we are serious in our belief in equality we should speak up for those beyond our borders. This country has led and should continue to lead the EU and the wider international community in ensuring that the rights of LGBTI people are recognised and protected. Challenging homophobia, promoting equality and pressing other Governments to introduce measures to ensure equality for LGBTI people should be—as the noble Lord, Lord Lexden, said—a priority for the Foreign and Commonwealth Office.

Sadly, as we have heard in all the examples cited in the debate, progress in our country is not reflected in many parts of the world. Same-sex sexual conduct between consenting adults continues to be criminalised in more than 80 jurisdictions in the world, and 42 of the 54 countries of the Commonwealth of Nations criminalise same-sex relations for men, women or both. A lot of these laws, as we have heard, are a hangover from British colonial rule. While they remain on the statute book, they have a continuing impact of fear, stigma, rejection, violence and, far too often, murder.

However, this systematic persecution and criminalisation of identity can also decimate efforts to halt the spread of HIV. It often results in gay people not being able to access the healthcare, education and employment that they need, preventing access to HIV testing and treatment. A global online survey of 5,000 men who have sex with men found that only 36% were able easily to access treatment and that less than a third had easy access to HIV education materials.

As we have heard, men who have sex with men have a significantly heightened risk of HIV infection. They are 19 times more likely to be infected with HIV than other adult men. Criminalisation of homosexual activities both causes and boosts those numbers. As we heard from the noble Lord, Lord Black, UNAIDS reports that in the Caribbean countries where homosexuality is criminalised, almost one in four men who have sex with men are infected with HIV. In the absence of such criminal laws, the prevalence is only 1 in 15 among men who have sex with men. As my noble friend Lady Gould said, Commonwealth countries comprise more than 60% of people living with HIV globally, despite representing about 30% of the world’s population. As we have heard, a recent meeting of the Commonwealth Foreign Affairs Ministers adopted a recommendation proposed by the Eminent Persons Group within the Commonwealth to tackle laws that undermine effective responses to HIV. As the right reverend Prelate said, the signing of the new Commonwealth charter is great news, too, as it underpins the commitment of the Commonwealth to human rights, gender equality and democracy.

However, whether the vague terms of the charter against discrimination based on “other grounds” really include sexual orientation and gender identity, drug use, sex work or HIV status presents a real test for the Commonwealth. It is therefore imperative that the commitment to repeal all discriminatory legislation which hampers the HIV response is honoured in the Commonwealth.

Today’s debate presents a real opportunity for the UK Government to underpin the steady support that they have given to reform and modernisation of the Commonwealth and to ensure that the Commonwealth Secretariat takes a proactive and supportive role in promoting the reform of bad laws across the Commonwealth, starting with those that still criminalise gay men.

As both the noble Lord, Lord Black, and my noble friend Lady Gould stated, the global evidence is clear that public health is best served by removing discrimination and prejudice against LGBTI persons, ensuring that the widest possible information regarding safe sex practices, health services and HIV prevention and treatment measures is accessible to the people who need it most.

There are some Commonwealth countries—for example, India and Pakistan—where, if it were not for the Global Fund to Fight AIDS, Tuberculosis and Malaria, the response to tackle HIV among men who have sex with men would be inadequate. Will DfID stick to the commitment made by the former Secretary of State for International Development substantially to increase the amount of resources given to the fund to ensure that those essential programmes are able to continue? Will the Minister outline how the UK Government will work with other leading countries ahead of the G8 this summer, to harness as much financial support for the fund as possible?

I welcome the way—which the noble Lord, Lord Black, referred to—that the Government are now working closely with organisations such as the Human Dignity Trust, Stonewall and the Kaleidoscope Trust on how we oppose human rights abuses of gay people worldwide. Real progress on gay equality will ultimately come from grass-roots movements, but we need to help create the conditions where those local gay rights movements can emerge. May I ask the Minister what direct assistance the Government will provide, either financially or politically, to support the development of lesbian, gay and bisexual movements worldwide, in particular in the Commonwealth countries that we have been talking about?

Finally, we cannot pretend that this does not affect us here. Gay people around the world look to Britain to offer them refuge from this discrimination. I ask the Minister if the Government will ensure that, through the UK Borders Agency, lesbian and gay people are provided with a real safe haven when they flee from persecution? Is it also not time that the existence of these laws should be sufficient to establish persecution?

My Lords, I, too, thank my noble friend Lord Black for introducing so effectively this important debate on the stigma and discrimination facing gay men and women in Commonwealth countries, and the additional stigma of HIV/AIDS. My noble friend Lord Black makes clear that the criminalisation of homosexuality in 42 Commonwealth countries can indeed lead to death, possibly not only of the person in question but of partners and children. We are reminded, both by him and the noble Baroness, Lady Gould, and others that the laws that criminalise are a colonial legacy. We heard a powerful account from my noble friend Lady Brinton about the situation in Zambia, where homosexuality is criminalised and where families and communities take severe measures to “cure” homosexuals of their apparent illness.

Homosexuality is criminalised and homosexuals suffer terrible discrimination. Those with HIV also suffer discrimination. As my noble friend Lord Lexden said, we have here two grave issues—and they can be literally grave. It is appalling that HIV-related stigma and discrimination in the family, community and workplace is still so widespread around the world and in the Commonwealth. Unless stigma and discrimination are addressed, as the noble Baroness, Lady Gould, and others said, we will not meet our global commitment to halt and reverse the spread of HIV. The noble Lord, Lord Collins, outlined the particular risk in the Caribbean and elsewhere. Our response cannot neglect these populations who are most marginalised and today I hope to highlight areas where the UK Government will do more.

Legal barriers create a climate of fear that prevents people accessing the prevention, treatment and care they need. In many countries, including many Commonwealth countries, rather than providing protection, as we have heard, the law—and the law of the street—dehumanises sex workers, men who have sex with men, people who use drugs, transgender people, prisoners and migrants. This drives these key populations underground and hinders their access to information and services, which in turn promotes risky behaviour that makes them even more vulnerable to HIV infection and fuels the epidemic further.

In defiance of international human rights standards, 78 countries, half of them in the Commonwealth, make same-sex sexual activity a criminal offence, as we have heard. When we have specific concerns about a Government's failure to protect their citizens’ rights—for example, through the persecution of lesbian, gay, bisexual and transgender people—we raise these directly at the highest levels of the Government concerned. My noble friend Lord Black asked whether the UK Government will make decriminalisation a stated policy commitment for the FCO and DfID. The UK’s LGBT action plan includes an international commitment to advocate changing discriminatory practices and laws that criminalise homosexuality and same-sex behaviour, and to work with international institutions to oppose the introduction of new anti-homosexual legislation. We work with our embassies and high commissions and through international organisations, including the UN, the Council of Europe and the Commonwealth, to promote tolerance and non-discrimination and to address discriminatory laws, in particular those that criminalise homosexuality.

We see the Commonwealth and its networks as a potentially valuable partner in protecting and promoting human rights globally. However, the rights of homosexual men and women remain a very difficult and controversial issue in the Commonwealth. Like the right reverend Prelate the Bishop of Newcastle and others, I am delighted with the positive outcomes from the Commonwealth Foreign Affairs Ministers’ meeting in New York last September, including agreement on the outstanding recommendations of the Eminent Persons Group, now reflected in the Commonwealth charter signed by Her Majesty the Queen on Monday on Commonwealth Day. This sets out the Commonwealth’s core values and aspirations, including that discriminatory laws that impede access to HIV treatment should be addressed. Protecting human rights is a core value of this unique organisation and endorsement of the charter reiterates its commitment to opposing all forms of discrimination on any grounds.

I will read certain elements of the Commonwealth charter. Various noble Lords have referred to this and quoted from it, but it is worth reading again, for the reasons that my noble friend Lord Lexden gave. In the section on human rights, it states:

“We are committed to equality and respect for the protection and promotion of civil, political, economic, social and cultural rights, including the right to development, for all without discrimination on any grounds as the foundations of peaceful, just and stable societies. We note that these rights are universal, indivisible, interdependent and interrelated and cannot be implemented selectively … We are implacably opposed to all forms of discrimination, whether rooted in gender, race, colour, creed, political belief or other grounds”.

If noble Lords read on, they will see under “Tolerance, respect and understanding” the emphasis on,

“the need to promote tolerance, respect, understanding, moderation”;

under “Separation of powers”,

“the promotion and protection of fundamental human rights”;

and under “Access to health”,

“emphasise the importance of promoting health and well-being in combating communicable and non-communicable diseases”.

It is worth emphasising those, because I urge noble Lords to take heart from these words. They are the words that citizens can use to hold their Governments to account; and for countries to hold other countries to account. As my noble friend Lord Lexden will know, international human rights may seem to make slow progress historically, but it is often through these statements that gradually things move forward.

My noble friend Lord Black asked why the Commonwealth Secretariat has not included LGBT rights, legal reform or HIV in its new strategy. The draft Commonwealth Secretariat’s draft strategic plan is quite high-level and does not go into much detail about proposed activities. It foresees a role in health, human rights and justice, which are all relevant here. We will continue to work with the secretariat and the foundation to see what more they could do in this important area. To address a question from the noble Lord, Lord Watson, we in the UK do not ourselves set the agenda for CHOGM, but we will continue to raise these issues in Commonwealth fora. It is extremely important that countries have signed up to the language that I have just cited.

I hardly need to draw noble Lords’ attention to the fact that policies, programmes and resources for HIV for key populations are grossly inadequate, despite the growing infection rates in the groups that we have talked about. For example, in 2009, only 18% of countries had established HIV prevention goals for reaching men who have sex with men.

That is why, in the Government’s position paper on HIV in the developing world, Towards Zero Infections, published in May 2011, we committed to build on our track record as a voice for a public health approach—as emphasised by the noble Lord, Lord Collins, and the noble Baroness, Lady Gould—to the key populations affected by HIV that respects human rights and addresses stigma and discrimination. The world must work much harder to empower those groups whose life circumstances place them at increased risk of HIV.

I could draw on many examples to demonstrate DfID’s support, which echoes the approach that we have taken in the Department of Health within the United Kingdom. I shall mention three. The Global Network of People Living with HIV has been conducting policy research in South Africa on the criminalisation of LGBT. The Global Forum for Men who Have Sex with Men is engaging in international policy dialogue to promote laws, regulations and policies that improve HIV prevention programmes for men who have sex with men. I hope that my noble friend Lord Black and others will be pleased that, last July, my right honourable friend the Minister of State for International Development, Alan Duncan, announced new resources for the Robert Carr fund to support global and regional networks to improve HIV responses reaching key populations, and this new funding is being disbursed.

My noble friend Lord Black asked whether the UK Government will consider introducing a specific funding mechanism for LGBT organisations working for legal or social reform in those countries. The UK funds a number of programmes in that area. For example, 21% of the networks that the Robert Carr fund, to which I just referred, is supporting involve work for legal or social reform in those countries, so that is being addressed. My noble friend Lady Brinton made the point that there are new ways of promoting equality, such as through social media. She is surely right about that; there are a number of ways to do that.

My noble friend Lord Lexden asked about the FCO rights toolkit. We are very pleased that NGOs feel that it is a world reference and that the United States has used it as a basis for developing its own toolkit, but we take his point that it is now somewhat dated. We plan to update it this year and will be happy to receive suggestions from anyone on how to strengthen it further.

The noble Lord, Lord Collins, asked about support for the global fund. The United Kingdom remains a strong and reliable supporter of the global fund. I am writing to my noble friend Lord Fowler with an update on the situation because, as the noble Lord will know, the global fund went through something of a difficult time, but the United Kingdom is on track to meet our £1 billion commitment to the fund by 2015. I am happy to copy the noble Lord into my letter to my noble friend Lord Fowler. We are working with others to ensure that there is successful replenishment.

It is clearly critical in all our support for local civil society organisations to empower those most at risk from HIV, so that they understand and can advocate for their rights, and to challenge HIV-related discrimination and criminalisation. Without grass-roots support to tackle legal barriers that hamper the HIV response, and without the ability to hold Governments to account, change will not be sustained. People living with or directly affected by HIV understand their needs better than anyone. Involving those communities is not just their right; it is essential to an effective response to the epidemic that their voices are heard in policy, decision-making and budgeting processes.

This has been a very important debate linking the terrible discrimination against homosexuals in many Commonwealth countries with the terrible discrimination against those who suffer HIV/AIDS. As the noble Lord, Lord Collins, the noble Baroness, Lady Gould, and others said, public health is assisted by promoting the rights of homosexuals, but it is right in itself, as others have said.

I assure noble Lords that we recognise those challenges and how important it is to support the rights of all, especially those who are the most vulnerable around the world.

House adjourned at 8.06 pm.