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Lord Elton: My Lords, I rise briefly in support of the noble and learned Lord, Lord Brightman, and in search of illumination. I would be grateful if he would tell me if I am not right in thinking that the first line makes the rest of subsection (2),


In other words, my noble friend Lord Campbell of Alloway can be reassured that the principle is already established, as the noble and learned Lord told us, in the Learning and Skills Act. So the noble Earl, Lord Russell, can be reassured that this is no new introduction in law of proselytization for marriage; it is a repetition.

Earl Russell: My Lords, I am well aware of that. I think I made the point in 1996.

Lord Elton: My Lords, I regret that I was not perhaps awake at the moment that the point was made, or perhaps my memory is not as good as the noble Earl's. As it is not a new point, there is no point in objecting to it as though it were. The noble and learned Lord, Lord Brightman, has achieved what he

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set out to do—to remove an ambiguity. If that were not removed there would be an inequality of treatment between different potential lifestyles. I am glad that there is a prohibition, subject to the provision in the first line of paragraph (2), for the promotion of particular lifestyles, because nobody has talked about the lifestyle of young people who count sexual conquests as Red Indians used to count scalps.

This is a heterosexual as well as a homosexual matter. There are all sorts of lifestyles which are bad, not merely medically—as covered by paragraph (3)—but spiritually, and I would not wish to see them promoted. Therefore, to prevent all such promotion, subject to the general principle that the institution of marriage is to be supported, is an admirable clarification of the intention of the law.

Lord Rooker: My Lords, this has been a useful debate and many noble Lords have contributed. I hope that my notes will cover all of the issues raised. This amendment comes a little late in the day. That is not a criticism, but just in the sense that we are at Third Reading. The arguments on this amendment seem to have changed since Committee stage.

Amendment No. 19 concerns the repeal of Section 28 as we know it. It seeks to place a broad duty on local authorities to prevent them from, with the exception of supporting the principle of marriage, promoting any particular sexuality across any of their functions. The noble and learned Lord, Lord Brightman, said quite clearly in Committee that his only purpose in tabling the amendment was to avoid a difference of opinion between this House and the other place, which would delay the Bill and mean further argument about Section 28. I am very glad to say that that is not the situation in which we find ourselves.

I remind noble Lords that we saw at Report that the view of this House is quite clear on the repeal of Section 28. The amendment to repeal was defeated by 180 votes to 130. In view of such a majority, it seems odd that we are again debating the noble and learned Lord's amendment given that it was originally put forward as a compromise. However, I shall turn now to the substance.

Over the summer we have considered the amendment carefully, but as we explained in Committee, we do not believe that it offers advantages beyond the straightforward repeal of Section 28, which is currently enshrined in the Bill in Clause 120. Indeed we believe that the amendment has some disadvantages.

As we made clear in Committee, the new clause is unnecessary as far as sex education is concerned. The main responsibilities fall to schools and we have in place an adequate framework of protections. Indeed, the approach in the new clause with regard to sex education closely reflects that of the existing sex relationship education guidance which says, in paragraph 1.21, that:


    "pupils should be taught about the nature and importance of marriage for family life and bringing up children, but that there are strong and mutually supportive relationships outside marriage".

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Paragraph 1.30 states that,


    "teachers should be able to deal honestly and sensitively with sexual orientation, answer appropriate questions and offer support and that there should be no direct promotion of sexual orientation".

There are, however, wider considerations. The noble Earl, Lord Russell, pointed out one of the problems with the proposal in his contribution in Committee when he questioned what he described as the "monopolistic provision" for marriage in the proposed new clause. I appreciate that the promoters consider that the new clause simply repeats provisions in the Family Law Act passed under the previous administration, to which reference has been made. I also recall that in Committee the noble and learned Lord, Lord Brightman, said that his intention was to avoid causing offence to anyone. I believe him entirely. However, it is clear to us that this new clause would in fact be offensive to many people—not just homosexual couples but unmarried heterosexual couples as well.

It is also worth pointing out—this reinforces the points that have been made—that the Family Law Act had as its primary purpose dealing with the fallout from breakdown and disputes in marriage and domestic relationships. The general principle regarding the institution of marriage is arguably relevant in dealing with divorce and separation and legal aid for mediation—the matters with which the 1996 Act deals. It does not follow that it is a "freestanding" provision that should underpin all of a local authority's functions, which is what the intent of the amendment appears to be.

Baroness Blatch: My Lords, I am grateful to the Minister for giving way. My understanding is that the Family Law Act has never been implemented. Is that right?

Lord Rooker: My Lords, I cannot answer that question; I shall take advice on it.

Earl Russell: My Lords, I believe the position is that Part 3 of the Act has not been implemented.

Lord Rooker: My Lords, I was just about to say that several Acts have parts that are never implemented. I shall certainly check whether that is the case with the Act we are discussing. However, that does not alter the point that I am making and does not obviate the paragraph that I have just read out which I shall repeat. As I said, it is worth noting that the Family Law Act had as its primary purpose dealing with the fallout from breakdown and disputes in marriage and domestic relationships. The general principle regarding the institution of marriage is arguably relevant in dealing with divorce and separation and legal aid for mediation—the matters with which the 1996 Act deals. But it does not follow that it is a "freestanding" provision that should underpin all of a local authority's functions, which is what the intent of the amendment appears to be.

I also appreciate the efforts that the promoters have taken in order to ensure that the measure would not obstruct local authorities in their responsibilities for

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sex education and sexual health. However, the very fact that they have done so in the second limb of the amendment indicates the main problem associated with their approach. It is a recipe for confusion and uncertainty for local government about what would fall inside or outside the prohibition. That is very important. There is a seductive argument that would lead us along the path of saying that if we accept that authorities should not be promoting a particular lifestyle choice—and we do—we should not object to the law saying so. As I say, it is a seductive argument but I believe that it is one we should resist.

We have given local authorities the powers to be community leaders—a role that we have asked them to develop for the benefit of all the people living in and using their areas and services. Local authorities know that they should act responsibly. They should, indeed, not be promoting any specific lifestyle choice. But equally they should be able to provide services that meet the needs of all members of their communities, including those who may already feel quite marginalised. We should be wary of inadvertently making that task more difficult. We believe that despite its good intentions the amendment has the capacity to cause unnecessary confusion about exactly those kind of issues. For those reasons I hope that the noble and learned Lord will feel able to withdraw the amendment.

9 p.m.

Lord Brightman: My Lords, one lesson that I have learnt this evening is the danger of leaving a drafting amendment to Third Reading. Then, there is no possibility of meeting by means of a few words objections to the actual terminology involved. Leaving a drafting amendment to Third Reading means that you have burnt all your boats except the one that you are in, which is sinking. So, in future, I shall always introduce my drafting amendments on Report, whatever your Lordships may say about it.

I did think of doing that during the debate on Report, but the clock said 11 o'clock and there had just been a Division which had taken up a great deal of time. I felt that it would be unfair to burden your Lordships with a debate on drafting at that stage. I intimated, as your Lordships can read in Hansard, that I intended to introduce this proposal at Third Reading. I have learnt my lesson.

I said again and again in introducing the amendment that I was not wedded to any particular wording. I made it absolutely clear, as the noble Baroness, Lady Blatch, pointed out, that my only purpose was to get the amendment to another place so that Members there could put their skilled draftsmen on to it and achieve a terminology that would suit both Houses.

If the amendment were rejected, as I said earlier, that would be a vote in favour of ambiguity. If I divide the House, a vote in favour of the amendment will at least be a vote in favour of certainty, because the whole of this can be put right in the Commons.

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I know that there have been innumerable Divisions already and it is nine o'clock, but I think that I would be letting down many of my friends if I did not seek the opinion of your Lordships. I wish to press my amendment.

9.2 p.m.

On Question, Whether the said amendment (No. 19) shall be agreed to?

Their Lordships divided: Contents, 25; Not-Contents, 100.


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