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Earl Russell: My Lords, I congratulate the noble and learned Lord, Lord Brightman, on having shown the patience of Job in waiting for the right moment for the amendment to come out. He has been waiting for the resolution of the debate on Section 28 and has had the amendment on the Order Paper without moving it all through the progress of the Bill. He has sat through many hours when his amendment has not come out and, so far as I know, has not breathed one word of complaint. That is an example to us all.

However, I am not convinced that the noble and learned Lord is setting out to meet a genuine danger. If one considers the Learning and Skills Act 2000 and the guidance drafted by the right reverend Prelate the Bishop of Blackburn in conjunction with a great many other people, one can see that a great deal has already been done to plug the gap that the noble and learned Lord believes is there. However, I shall leave the detail of that to the Minister.

The second part of the amendment says that,


I would not have chosen the word "lifestyle", but the sentiment is exactly right. It is not the business of schools to do that. How we should live is a matter that is to be resolved by individuals and by collective conscience in groups. It is not the business of schools to teach that one way of living is right and another is not. If that had been the whole of the amendment, even though I believe it to be unnecessary, I would have been perfectly content to see it on the statute book.

However, my problem is with the first words of the amendment, that,


    "the institution of marriage is to be supported".

Your Lordships know my own personal views on marriage. One thing that I have against it is that "till death do us part" is not long enough. But I do not feel entitled to take legislation to enforce my particular preference and conscience on other people. A great many people, among whom I would include my two sisters-in-law, for whom I have great affection, have a genuine conscientious objection to the state of marriage. However, they live together in a union—or,

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in one case I regret to say used to live together in a union when she was alive—as true, as loving and as faithful as any that I can think of. Qualitatively I can see no difference between those types of union.

It is very dangerous to start using the law as a kind of hortatory device to support marriage. In fact it sounds very often as though in medieval theology marriage had been not a sacrament but a penance. The more people think of it as a sacrament the more I would have thought that they would have had reservations about using the law and financial incentives to support it. To use financial incentives to spread a sacramental grace is simonious and that, metaphorically, expresses some of the objections that I feel about the idea of using the law to encourage marriage. It is a matter for the individual conscience and it ought to be undertaken with a whole heart, complete will and genuine intention or not at all.

The amendment could possibly have the inadvertent effect of discouraging things which need to be done in cases where marriages have not worked; for example, the provision of women's refuges for people who have had to leave marriages which very patently are not working. I am certain that never for a moment was that the noble and learned Lord's intention, but without an exhaustive trawl through statutes, for which I have not the resources, I cannot be sure that that would not be its effect. If it is, I hope that it will not happen.

I said at earlier stages of the Bill that people feel committed to each other in unions by different things, not necessarily by the ceremony of marriage, even if they have gone through it. One or two noble Lords may possibly remember that I mentioned a couple with whom we had dinner 15 years ago and who were both coming out of a failed first marriage and hesitating before commitment to a second. They discussed with each other at some length what would make them feel that they had made a commitment to each other. They decided that it would be when they took one subscription instead of two to their favourite learned journal.

It so happens that by sheer chance I met that couple again at a party last Sunday evening. I asked them what they had done about it. They said that they had taken out a single subscription to that journal and that the editor had been furious. Here, what stands in the way of family values is not liberalism but commerce. That is a point which we could all afford to take. They had got married but they said that it was not the marriage which gave them their sense of commitment and the sense that they were a union; it was that they had only the one copy of the journal so if they ever parted one of them would be without the back numbers and without one of the basic resources of living.

I do not know how many other ways there are in which people may feel that they are committed to each other, but they are truly legion. If one looks at people who have gone through the ceremony of marriage one may see two complete strangers. By contrast, as recently as last weekend I was having dinner with a couple who were obviously, in any inward and

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spiritual sense, as completely a married couple as I have ever seen. They had a private language; they understood each other instantly; they would react to something I said as one person. Both of them are still in the process of freeing themselves from marriages to other people, but in any inward and spiritual sense, those people are as married as any couple who have been through a ceremony I have ever met.

So I believe that simply enforcing, encouraging or even using the power of the state to give primacy to a ceremony is a mistake. It is taking the letter and not the spirit. There are many instances that the letter killeth and the spirit gives it life which, not being a Christian, I quote in a metaphorical sense. But in a metaphorical sense I believe that it is a truth and that is why we on these Benches have difficulty with this amendment. For a party with liberalism in its philosophy, it is a matter for the individual conscience.

Lord Peston: My Lords, I rise to ask a question. The noble and learned Lord, Lord Brightman, said that his purpose was to produce clarity where there would otherwise be confusion. In my case he has produced confusion where, until he spoke, I thought the matter was clear. As I understood it, some years ago a reactionary House of Lords passed an amendment, Clause 28, which was viciously anti-homosexual and prohibited what it called the promotion of homosexuality. The law was changed.

As I understood it, a few weeks ago the House removed that provision and returned the law to where it was. That is the whole story as far as I am concerned. There is no confusion whatever. Will the noble and learned Lord, Lord Brightman, tell us whether, if he passes his amendment, we will return to banning the promotion of homosexuality? I read his amendment as reintroducing Clause 28 in a different form of words.

Baroness Warnock: My Lords, I hope that the point about lack of clarity in the Bill will not be overlooked. Probably not lawyers, but ordinary people tend to think that if one removes a prohibition one gives a permission. Since Clause 28 was so notoriously anti-homosexual—I entirely agree with that point, it was a disgraceful clause—removing it, of which I am greatly in favour, suggests an ambiguity about the entitlement of teachers.

I was persuaded by my noble and learned friend in his exposition of that ambiguity, but I find a certain contradiction in proposed subsection (2) between,


    "Subject to the general principle",

and,


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

Marriage is a particular sexual lifestyle. If it is to be supported then that is to encourage a particular sexual lifestyle.

I would be happy with the amendment removing any possible ambiguity if it started after the comma, so that it read,


    "a local authority shall not encourage, or publish material",

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and so on. That would rule out any preference that a teacher might have, whether for marriage, homosexuality or any other sex style we would like to imagine. I am a believer in marriage, but I do not make any distinction among my five children between the two who live with partners unmarried and the three who are married. They are all my children and sons-in-law and daughters-in-law, although I never know quite how to refer to them.

The first proposed subsection is the trouble. Nevertheless, there is an ambiguity in the Bill as it stands.

Baroness Blatch: My Lords, the noble and learned Lord, Lord Brightman, is right in one of his assumptions: if in law there has been a prohibition measure—like him I scanned the dictionary, and it subsumes encouragement of homosexuality—and it is removed and there is no substitute, that means that it is a legal activity. The promotion of homosexuality becomes permissible and legal. To that extent the noble and learned Lord is right.

I believe that I was wilfully misunderstood when I tried to put something in place of accepting the abolition of Clause 28 to give the power to parents to make judgments about the materials used and the content of sex education outside the national curriculum and the degree to which they believed it was appropriate for their children. That was denied me. As I say, I believe that it was wilful misinterpretation. I have read and reread the debate, which was all about my subverting Clause 28 and reinserting it by the backdoor and all the rest of it. I thought that it was straightforward support for parents and a straightforward provision to protect children from the worst form of sex education and the worst form of materials used for sex education.

I have one difficulty which has already been mentioned by the noble Baroness, Lady Warnock. I very strongly support the first line of subsection (2), which states:


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

However, there is a difficulty with the second part of the subsection, which equates marriage with all other lifestyles. Consequently, the two parts of the provision almost contradict one another.

I unashamedly want to distinguish marriage from other forms of sexual lifestyle. Not only do I think that marriage should be supported; the Government and the Prime Minister believe it should be supported. The Foreign Secretary is on record as making very strong statements of support for marriage and as advocating marriage as the best arrangement, not only for bringing up children but for ensuring the cohesion of society. I support it very strongly and I should like to see the distinction. If no such provision goes to the other place, the other place will have no opportunity to consider the basic dilemma. A prohibition has been removed but nothing has been put in its place.

So I want to put on record my view that there is a difficulty and ambiguity in subsection (2) of the amendment. However, if the noble and learned Lord,

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Lord Brightman, wishes to seek the opinion of the House, I should like to think that there will be support for it. He will have my support because I think that the provision will keep the debate alive in another place and that it will allow further thought to be given to what should be put in place of the abolished Clause 28. That is why I shall support the noble and learned Lord.

8.45 p.m.

Lord Northbourne: My Lords, I have put my name to the amendment. I do not wish to delay the House. I am sorry that this debate has, in my view, degenerated into another ongoing discussion about homosexuality, because I do not think that that is what this amendment is about. For me—one may think rather naively—the problem is much simpler. I believe that this amendment is about a tolerant and inclusive society. We know from the enormous lobby that many of us received that there are many in this country who are very deeply worried about the abolition of Section 28. I do not happen to be one of them. However, those people, whether they were right or wrong, were terrified that their children and grandchildren were going to be put in a situation where there was some sort of promotion of homosexuality or other kind of sexual lifestyle indoctrination.

We know that that is not the case. However, I believe that every government have the responsibility to act not only for those who vote for them but also, once they are elected, for all citizens. I think that the Government should show more concern for that enormous chunk of the population who are deeply worried about this situation. That was one of the reasons why I wanted to support the amendment tabled by the noble and learned Lord, Lord Brightman. I also support the point that he made about the uncertainty which was created by negativing a positive statement without in any way making clear what we mean.


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