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Lord Dixon-Smith: My Lords, the House will be grateful to the noble Lord, Lord Campbell of Alloway, for drawing to our attention all the legal and legislative complexities we face when discussing this issue. It is an interesting coincidence that the amendment tabled by my noble friend almost follows on from the Question tabled today by the noble Lady, Baroness Rendell of Babergh. As an amateur at this game, I admire my noble friend's experience as a parliamentarian and his skill as a lawyer and wordsmith which enabled him to table the amendment at the start of our proceedings today.

The amendment will give the House, if it chooses, the opportunity to continue a debate which it undertook for well over five hours only a fortnight ago. I suspect that the House may decide that that is not the most useful way in which to spend an afternoon. I have no wish to do anything which would restrict the freedom of the House to discuss the matter for as long as it wishes. However, it seemed to me that after our earlier debate and its result there would be discussions between the Government, the bishops and other interested parties to bring this subject to perhaps what some might consider to be a more felicitous conclusion than the one reached. However, perhaps my noble friend Lady Young might think that the conclusion we reached is the appropriate one.

Lord Campbell of Alloway: My Lords, I am obliged to my noble friend for giving way. I am not here to listen to or take admonitions from my noble friend on the Front Bench.

Lord Dixon-Smith: My Lords, I apologise to my noble friend if anything I said was "admonitory", if that is not a new word (I hope that I am not inventing new words). However, I apologise if that was the case. It was certainly not intended to be. However, it will be interesting to hear what the Minister might have to say on the progress of such discussions. It seems clear that the matter will return to this House before the Bill is

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eventually passed. It will clearly have to go from this place to another, and to return here for further discussion. There will, therefore, be a great deal of opportunity for further debate after the discussions between the interested parties have taken place. I believe that that would be a more preferable way in which to deal with the matter. For that reason, we shall not be supporting my noble friend this afternoon.

Baroness Hamwee: My Lords, I assume that the Minister may tell us that, as far as concerns Sections 2A and 2B of the 1986 Act, Amendment No. 1 is not necessary because, until what we have come to refer to as "Section 28" is repealed, it remains on the statute book. As with other restrictions, it will apply to the exercise of the powers of local government. Indeed, to take one example, I believe that is why we have Clause 5 in the Bill. That clause gives certain powers to the Secretary of State to repeal, revoke or dis-apply enactments which may obstruct local authorities from exercising their powers. I, too, have no wish to re-run the debate referred to by the noble Lord, Lord Dixon-Smith. As far as we are concerned, it is sad that that is the case. Our views on Section 28 are well known.

Perhaps I may respond to one of the comments made by the noble Lord, Lord Campbell of Alloway. I make clear that we support the powers which are to be given to local authorities under Section 2. As we established in Committee, such powers must be exercised reasonably.

The noble Lord referred to his later amendments. I confess that I do not understand Amendment No. 81. I am sure that that is my failing, not that of the draftsman. The amendment refers, among other things, to the delivery of education and healthcare and allows for them to be discriminatory. It is almost implicit that education must discriminate in the sense that it provides for individuals. I have some difficulties therefore with the clause though of course I accept the good intentions of the noble Lord to try to clarify the position.

I have some difficulties also with Amendment No. 82. As was said, we shall return to this topic under the question of guidelines, though it would perhaps be better debated as part of the educational provision rather than simply local authorities. However, I am unclear as to how, as a matter of practice, governors would apply this provision. Currently, sex education is a matter for the governors. But for individual items to go before a board of governors for approval may prove extremely cumbersome. My experience of schools is that different governors have responsibility for different areas, including the area of the curriculum under which sex education generally falls. So governors will be involved in any event.

I am not clear what may be taken to fall into the category of "sexually explicit" material. It could be interpreted very widely by those who are mischievous. It occurred to me that Romeo and Juliet or A Midsummer Night's Dream--particularly the relationship between Titania and Bottom--could fall within that category. It is a difficult road down which to start.

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3.30 p.m.

The Lord Bishop of Blackburn: My Lords, I find myself in some difficulty with these amendments, partly because they are highly technical. I do not feel that they are necessary, particularly Amendment No. 1. In that regard I echo what was said by the noble Lord, Lord Dixon-Smith, and the noble Baroness, Lady Hamwee.

The noble Lord, Lord Campbell of Alloway, was gracious in his comments in relation to myself and the amendment I placed before the House. But let me repeat what I said last week on another Bill; that is, that the discussions with the Department for Education and Employment, and in particular with the Secretary of State, continue. I am sorry that we have not by this stage been able to see amendments which may well be made to the Learning And Skills Bill, which is perhaps--as was hinted at by the noble Baroness, Lady Hamwee--the proper place to continue this discussion.

The Secretary of State has to see a number of interested parties and not just the Churches. I should not like to think of it as a "concordat" between the Churches and the Government; the consultation is much wider than that. The Churches play their part and, fortunately, I have been able to play some part also. I am among those who hope that the noble Lord will withdraw the amendment at this stage in order to allow the discussions to continue and for the Secretary of State properly to consult. I am hopeful that what will come out of those discussions may be helpful both to the House and, more importantly, to parents and others throughout the country who are looking for some kind of assurance.

Earl Russell: My Lords, I listened with interest to the noble Lord, Lord Campbell of Alloway. I understand of course what he is driving at. I raise one or two purely technical points in relation to the drafting of the amendment.

In relation to Amendment No. 81, I have the fullest sympathy with any attempt to secure a policy of non-discrimination. But I was once asked by the noble and right reverend Lord, Lord Habgood, in this Chamber, whether I could indicate a distinction between those grounds on which it was proper to discriminate and those grounds on which it was not. That is a question about which I am still thinking.

The noble Lord, Lord Campbell of Alloway, attempts to address that question in Amendment No. 81. I am not sure that he has it right. He has his non-discrimination provision,


    "save in respect of counselling, health care, education and in the prevention of the spread of disease".

But does that adequately cover, for example, the case of disability? A PE teacher may legitimately wish to provide a slightly different regime for somebody with a club foot than for somebody with two able feet. In so doing, will he infringe the provision as presently drafted by the noble Lord, Lord Campbell of Alloway? This is a question which needs addressing and if we are to see more of this amendment, I hope that will be done.

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I share the doubts of my noble friend Lady Hamwee in relation to the words "sexually explicit". I can remember some of the diagrams put in front of us in biology lessons when I was young. They were clinical, detached, accurate and about as unarousing as anything I can possibly imagine. But in the strict and literal sense they could perhaps have been described as "sexually explicit". Perhaps the Minister will take the advice of his noble and learned friend the Attorney-General as to whether or not those words have been included in previous legislation and, if so, whether we have any accepted judicial construction of their meaning. If not, we should be a little wary of using them.

Lord Whitty: My Lords, like the noble Lord, Lord Dixon-Smith, I hoped that we would move into the body of this Bill rather than attempt a rerun of discussions on Section 28. Having said that, I understand what the noble Lord, Lord Campbell of Alloway, is attempting to do, and that he is attempting to do it in as even-handed a way as possible. However, Amendment No. 81 does not do that and Amendment No. 82 runs into the sort of trouble just spelt out by the noble Earl, Lord Russell; namely, that there are serious judicial problems in defining what is and what is not sexually explicit and whether or not it is appropriate to use those terms in what is, after all, sex education.

I agree with the noble Baroness, Lady Hamwee, that Amendment No. 1 is unnecessary. In relation to what is now Clause 82, the principal decision of the House was made clear. The Government did not support that. It may be that another place has a view on that and, as the noble Lord, Lord Dixon-Smith, said, we will no doubt return to that in due course. However, the main anxieties addressed during that debate related to education and, as the right reverend Prelate the Bishop of Blackburn spelt out, constructive discussions are taking place between the Churches and my right honourable friend the Secretary of State. We will need a wider debate on their outcome, which will no doubt take place in the Learning and Skills Bill. I believe that we will achieve a satisfactory way of meeting most of the anxieties raised. It is not sensible, therefore, for the House to reopen that debate at this stage, though we may well have to return to it after the Learning and Skills Bill has been dealt with and the Commons has considered this Bill.

As it stands, the amendment is unnecessary. Clause 82 places a restriction on local authority action. Section 2 is subject to all other restrictions, including those within the Bill, and therefore the addition of the amendment would not create any further restriction on the ability of local authorities to act. The provision of well-being is a broad power for local authorities but it is subject to all other legislative restrictions. What is now Clause 82 is no different from any other in that respect.

Clause 3(1) of this Bill further states that the power under Clause 2(1) does not enable a local authority to do anything which it is unable to do by virtue of any prohibition, restriction or limitation on its powers

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which is contained in any enactment (whenever passed or made). That is clear. Moreover, the full implication of the adoption of this amendment and the related amendments would mean that the kind of discrimination to which the noble Earl referred--namely, specific provision for the disabled, for pensioners and other subsections of the community, including the gay and lesbian community--may fall foul of such a generalised provision. That is not the kind of restriction that is intended to be placed on local authorities in their pursuit of well-being because they all have varying communities containing different sub-sections that will require different treatment.

The general intention behind the amendment is unnecessary. Its effect would be to limit local authorities in what has been broadly accepted as a positive step towards the pursuit of well-being of the community and indeed might jeopardise it. I hope that the noble Lord will not pursue the amendment and that we can continue with the debate on local government reform rather than revert to discussions on matters covered by what was Section 28.


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