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Lord Hylton: My Lords, before the Minister replies, I would like to say that I am very happy to support at least the principle of the amendment moved by my noble friend Lord Northbourne. He has frequently spoken about the need for quality time for the whole family. He was too modest to mention his admirable speech on the Second Reading of the Anti-social Behaviour Bill, when he drew attention to the "Dad-deficit for boys". That is an important factor in keeping them—or not—on the straight and narrow path. Neither did he mention the importance for a significant minority of the Jewish Sabbath on Saturday.

Good employers are already doing what my noble friend wants in many cases. That is particularly true of small employers and farmers, with whom I am more acquainted than with most other types of employer. As has already been said, it is most desirable that local authorities should give what lead they can. I suspect that some of them up might actually find themselves saving overtime payments. The policy would also give

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trade unions a lever with which to improve the situation of all employees. With those words, I hope that the Minister will give us a favourable response.

Lord Campbell of Alloway: My Lords, before the noble Lord sits down, does not the essence of the problem lie with these wretched supermarkets?

Lord Hylton: Indeed, my Lords, shops and other sales outlets are the ones most likely to require their workers to work both Saturday and Sunday.

Lord Bassam of Brighton: My Lords, before I get into the meat of the issue, it is worth reminding your Lordships that we are discussing the Local Government Bill. I echo the words of congratulation that have already been given to the noble Lord, Lord Northbourne, for his tenacity in bringing forward this amendment. It has already been debated twice—in Grand Committee and on Report. The noble Lord, Lord Northbourne, is a tireless campaigner in this field and he should be congratulated on that. As a parent with three young children, I certainly approve of and endorse his campaigning. Listening to what he and other noble Lords have had to say on this subject, I have a great deal of personal sympathy for his position.

It has been a mature debate. As it has moved on, all the other important considerations have been introduced into it—considerations such as whether it is right that it should apply only to one sector of employment and whether it is right that it should be imposed on the sector of employment that is best conducted—local authorities. Local authorities are good employers and are flexible in their working practices. We all know from our rich years of experience—in Kensington and Chelsea, Essex or wherever—as local authority representatives that local authorities have been very good about introducing innovation in childcare and support for those who care for young children.

This has been an important debate, but issues such as cost, impact and the perversities of the proposition, which were well aired on Report, I think, or in Committee, when the noble Earl, Lord Russell, made a telling intervention, must be taken into account. I am one of those who would like, in principle, to be able to support the amendment but find that I cannot. We need to see how the current legislation works. As the noble Lord, Lord Northbourne, said, it has not been in place long. As a government, we are well on the road to introducing and ensuring that there are flexible working arrangements and ensuring that nobody is discriminated against unfairly and that family-friendly practices are put in place. It is right to see how those things work in practice and progress, as we always should, on the basis of evidence. It is for that reason that I look forward to 2006, when there will, no doubt, be a thorough review of the way in which the legislation has worked. It is at that stage that some of the considerations to which the noble Lord has drawn attention in moving his amendments will be best addressed.

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I appreciate that that is some time off, but it is right that we have a monitoring strategy in place. We ought to work closely with the employers, whether they be in the local authority or the private sector, so that we can assess the impact of the legislation and how it has worked and see how best practice has operated and how flexible working practices have worked.

I do not think that I will tread on the toes of too many ministerial colleagues if I say that we would welcome the opportunity at that stage to see whether the matter is an important consideration. That, in itself, will enable the local authority sector to review the impact and consider whether it is an appropriate way forward and will provide the opportunity for employers generally to consider other issues, such as cost, to which the noble Baroness, Lady Hanham, referred. Cost is not an insignificant matter. My noble friend Lord Peston made the point forcefully that, although it is a highly desirable direction for public policy to follow, we must balance it with the cost of implementation and the perversities that occur occasionally through implementation.

I hope that the noble Lord does not feel that he needs to press the matter to a Division this evening. That would be unfortunate. However, as Ministers, we have the issue at the front of our mind. We undertake to consider it at a later stage, and we keep it under review at all times. I am grateful to the noble Lord for bringing us back to the matter with his trenchant persistence, on which he is to be congratulated, and for his tireless campaigning in the field. I hope that he will feel able to withdraw his amendment.

8.15 p.m.

Lord Northbourne: My Lords, may I say to the noble Lord, before he sits down—he cannot reply after I have spoken—that he did not deal with my point about whether the Government would extend the monitoring and review process in 2006 to cover school-age children?

Lord Bassam of Brighton: My Lords, that is a fair point. I did not respond to it. It goes without saying that it would make good sense to do that. It would be in the spirit of the legislation that we have introduced in the past few years.

Lord Northbourne: My Lords, I am grateful to the noble Lord. I shall follow the lead given by the noble Lord, Lord Campbell of Alloway, and make a humanitarian gesture, by telling your Lordships that I do not intend to test the opinion of the House. The reason, simply, is that I do not think that I should win.

The noble Lord, Lord Peston, referred to the immense cost. Everybody talks about the high cost, but I think it is just a question of good management, although the matter needs considerable research. The noble Lord, Lord Campbell of Alloway, introduced the interesting idea of having a civil remedy, rather than a criminal remedy. That needs exploring further.

I do not want to delay the House. I am extremely grateful for contributions made by noble Lords, which will assist in arriving at a better way of achieving this

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objective. I hope that the noble Lord's department might be prepared to enter into discussions with noble Lords and others who are interested to determine whether the matter can be moved forward over the next months and years. I promise I shall come back on this subject—unless the Lord takes me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 120 [Repeal of prohibition on promotion of homosexuality]:

Lord Brightman moved Amendment No. 19:

    Page 75, line 40, at end insert—

"(2) Subject to the general principle that the institution of marriage is to be supported, a local authority shall not encourage, or publish material intended to encourage, the adoption of any particular sexual lifestyle.
(3) This section does not prohibit the provision for young persons of sex education or counselling services on sexual behaviour and associated health risks."

The noble and learned Lord said: My Lords, although it may not be very obvious at first glance, this amendment is, in substance, a drafting amendment, but it is an essential one. The only purpose of the amendment is to clarify what would otherwise be an ambiguous situation. Section 28—to use the familiar description—prohibited a local authority from promoting homosexuality. What was meant by promoting is irrelevant for present purposes. I believe that it has a dictionary meaning of encouraging, but that does not matter.

Clause 120 states that Section 28 "ceases to have effect". The question arises: what exactly is the result? Let me take a simple analogy. Suppose that there is a notice on a garden lawn: "It is prohibited to walk on the grass". Suppose that notice is removed. What is the result? What are walkers being told? They are being told that it is no longer forbidden to walk over the grass.

So with Section 28, which states that a local authority is prohibited from promoting homosexuality. Section 28 is repealed. What is the message? A local authority is no longer prohibited from promoting homosexuality. That is clearly not the intention of the Government. The Government try to meet the ambiguity point by saying that local authorities can undertake only those activities for which they have specific powers. Therefore, no more need be said.

But that response is flawed. It overlooks the fact that, as a matter of law, rights and powers—I do not mind which word is used—can be created not only expressly but also by implication. If a course of action is prohibited by statute and then the prohibition is removed, what was previously prohibited is, by implication, sanctioned. If Clause 120 stands on its own, without any explanation, the result is that what was previously prohibited—the encouragement of homosexuality—is, by implication, now sanctioned.

If the situation is not clarified and there is a law case, I can see the case wending its extensive way to the House of Lords—all for the want of a few words of clarification, which Parliament can so easily provide. Perhaps I may take your Lordships to the wording of

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my amendment, for my suggestion of a way of resolving the ambiguity point. I have done it in a way which I hope will cause no offence to anyone. It does not alter one line of the Bill. It begins with the words:

    "Subject to the general principle that the institution of marriage is to be supported."

Those words are lifted verbatim from Section 1 of the Family Law Act 1996. They can be removed by the Commons if the Government do not like them. The amendment continues:

    "A local authority shall not encourage, or publish material intended to encourage the adoption of any particular sexual lifestyle."

The Government may say that the words "sexual lifestyle" lack definition. I do not mind. The Commons, with their highly experienced parliamentary draftsmen, can no doubt think of a better terminology. My wording, or their better wording, will preclude the implication that what was previously prohibited is now sanctioned.

My amendment concludes with the important words:

    "This section does not prohibit the provision for young persons of sex education or counselling services on sexual behaviour and associated health risks."

That is inserted merely to make sure that I am not interfering with sexual education.

I am not a politician. I have no experience of local government. I am only in your Lordships' House ex officio because I have spent my life in the law and ended up as a judge. I am convinced that it is my duty to advise your Lordships that an uncertainty exists. If the Bill is returned to the Commons with my amendment, they can resolve the ambiguity in whatever way they please. I must advise your Lordships that the ambiguity should be removed.

I may be asked why I am moving an important amendment so late in the day. The answer is that that is what the Companion tells me to do. Third Reading is the proper time to clarify any remaining uncertainties in the Bill. I do not know whether there will be a Division on my amendment, but if there is, a vote for the amendment is a vote for clarity. A vote against—and I intend no offence—would be a vote in favour of ambiguity.

I conclude by reminding the House of the words of the noble Lord, Lord Lester of Herne Hill, in a debate on the drafting of statutes. He said:

    "It is essential for reasons of legal certainty and the rule of law, that legislation should be drafted as clearly as possible and in a manner which reflects the objects and purposes of Parliament in using its sovereign power to make the law of the land".—[Official Report, 21/1/98; col. 1591]

I ask your Lordships to support the amendment, which I only put forward in what I believe is the best interests of the promoters of this legislation. I beg to move.

8.30 p.m.

Lord Campbell of Alloway: My Lords, I have difficulties with this amendment. I speak with utmost deference and respect, having appeared before the noble and learned Lord when he was a High Court judge, in the Court of Appeal and in the Appellate

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Committee. He is one of the best equipped legal draftsmen whom I have known in my experience at the Bar, but I have problems with his amendment.

My problem is that, if the amendment had said, in ordinary language, that the local authority should say that the right way of living is with a family in marriage, I would have been content. That would have been in accordance not only with the Christian faith, of which most of us are members, but with the Islamic faith and the Jewish faith. The amendment, as I read it—though I may be totally inept—does not ordain that the encouragement for the children should be to understand the importance of marriage, whether they be Christians, Islamic, Jews or whatever. That is my problem. Therefore, I have a difficulty with the amendment, but perhaps my difficulty is ill conceived.

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