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House of Lords

Friday, 23 October 2015.

10 am

Prayers—read by the Lord Bishop of Southwark.

Oaths and Affirmations

10.05 am

Lord Trevethin and Oaksey and Lord Oakeshott of Seagrove Bay took the Oath, and signed an undertaking to abide by the Code of Conduct.

Arbitration and Mediation Services (Equality) Bill [HL]

Arbitration and Mediation Services (Equality) Bill [HL]

Second Reading

10.06 am

Moved by Baroness Cox

That the Bill be now read a second time.

Baroness Cox (CB): My Lords, I am deeply grateful to all noble Lords speaking in this debate and to many other noble Lords, too many to mention by name, who have expressed their support for the Bill but who are unable to be here today. For example, my noble friends Lord Singh of Wimbledon and the former Archbishop of Canterbury the noble and right reverend Lord, Lord Carey of Clifton, have assured me of their support. In the words of the noble and right reverend Lord, Lord Carey:

“The Bill will strengthen the position of vulnerable women who need protection from exploitation. It will ensure that all such women, whatever sect or creed, get the help they need to enjoy full lives. There can be no exceptions to the laws of our land which have been so painfully honed by the struggle for democracy and human rights”.

I very much welcome the noble and right reverend Lord’s message, which highlights the two interrelated issues which this Bill seeks to address: the suffering of women oppressed by religiously sanctioned gender discrimination in this country; and a rapidly developing alternative quasi-legal system which undermines the fundamental principle of one law for all—a matter of especial significance as we mark the 800th anniversary of the signing of Magna Carta.

The Bill is also strongly supported by many organisations concerned with the suffering of vulnerable women, including the Muslim Women’s Advisory Council, Karma Nirvana, Passion for Freedom as well as by the National Secular Society: I am grateful to them all.

The concerns which the Bill seeks to address are even more urgent today than three years ago, when the Bill received a previous Second Reading. As the courageous Muslim woman Habiba Jaan said in her recent report Equal and Free?:

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“There is a growing concern that many Muslim women in Britain today are suffering severe gender discrimination but lack knowledge of their rights under British law”.

Or, to use the words of another brave Muslim lady who shared her story with me:

““I feel betrayed by Britain. I came here to get away from this and the situation is worse here than in the country I escaped from”.

Many noble Lords here today have heard deeply moving and disturbing first-hand accounts of the suffering of women in our country during meetings of the All-Party Parliamentary Group on “Honour” Based Abuse. Some noble Lords will remember the story of Roma—a pseudonym, of course. She was physically abused by her husband, an overseas Pakistani student, but was so in fear of being rejected by her community that she did everything possible to avoid a divorce. However, when her husband could not obtain a visa, he sent Roma an Islamic divorce by post. She showed us a plain piece of paper with the words “I divorce you” three times. To use her words, and I will never forget the yearning in her voice,

“I felt that plain piece of paper was a mockery of my human rights”,

in this country.

Roma also referred to the process of halala, whereby a husband divorces his wife, possibly by saying “I divorce you” three times. If he then wishes to remarry her, she must marry another man, have that marriage consummated, then undergo another divorce; and only then can she remarry her original husband. Roma said that some husbands do this just to taunt their wives, and this is happening in Britain today.

Time permits only one more example. A consultant gynaecologist described to me a request from a 63 year- old man for a repair of the hymen of his 23 year-old wife. The gynaecologist refused as this is an illegal operation, whereupon the man became intensely angry, claiming that doctors in his town, not far from London, frequently undertake this operation under another name. He wanted this surgical procedure for his wife in order to take her back to their country of origin to marry another man. Her next husband could then obtain a visa to enter the UK. He would probably abuse and then divorce his wife and marry another or more wives here. The man who asked for this operation said that he earned about £10,000 for effecting this arrangement, which was very helpful as he was unemployed. Such shocking cases surely cannot be allowed to continue. The rights of Muslim women and the rule of the law of our land must be upheld.

On a related issue, my Muslim friends tell me that in some communities with high polygamy and divorce rates, men may have up to 20 children each. Clearly, youngsters growing up in dysfunctional families may be vulnerable to extremism and demography may affect democracy.

That brings me to identify the specific concerns to which the Bill seeks to draw attention. I recognise that its provisions cannot solve all the sensitive and complex issues involved, or many collateral issues, but I have been assured by the women whom they seek to help that they would be immensely useful. One Muslim woman phoned me this week to tell me that literally thousands of Muslim women are supporting this.

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First, the Bill seeks to address arbitration tribunals which apply discriminatory rules. The Arbitration Act 1996 allows parties to agree how certain civil disputes, often financial, should be resolved, including disputes according to the law of another legal system. This permits arbitration to operate according to sharia principles. The Bill recognises legitimate forums for arbitration, including Muslim arbitration tribunals. It will not affect the continuation of these provisions in accordance with the law of the land.

However, there is a concern that even when these tribunals are operating within the terms of the Arbitration Act, some are practising sex discrimination, such as: inequality between men and women with regard to access to divorce; polygamy—a man can marry four wives; child custody, whereby in the event of a divorce a father may claim custody of his children, often at the age of seven; inheritance provisions under which women and girls receive only half of the amount of a legacy given to men and boys; and rules of evidence whereby the value of a woman’s testimony is deemed to be half that of a man’s. That is why the Bill seeks to close any loophole which might remain in the Equality Act 2010 and strengthens court powers to set aside rulings when discrimination has taken place, if the woman is subsequently unhappy.

The second concern relates to arbitration tribunals acting outside their remit; for example, by deciding cases relating to criminal law, such as those involving domestic violence and grievous bodily harm. The Home Secretary said in March that,

“there is evidence of … wives who are forced to return to abusive relationships because Shari’a councils say a husband has a right to ‘chastise’”.

I therefore very much welcome the Government’s commitment to launch an independent review to understand the extent to which sharia law is, to use the Government’s own phrase,

“being misused and applied in a way which is incompatible with the law”.

The suffering of vulnerable women subjected to abuse can be exacerbated by the nature of the closed communities in which they may live, where they can be subjected to enormous pressure not to seek outside professional help because that might be deemed to bring “shame” on the family or the community. In many cases, women have suffered further difficulties because police, civil authorities and professional personnel have been reluctant to take action that might be deemed to give offence to the leaders of these communities.

This relates to the third concern that the Bill seeks to address: the crucial matter of consent, which must be at the heart of both arbitration and mediation. Arbitration or mediation ought to be voluntary. But women may be pressured by their families into going to sharia councils or courts. They may also lack the knowledge essential for an informed choice, such as the English language and their rights under British law. I quote from the Government’s recent Counter-Extremism Strategy:

“Most concerning of all, women are unaware of their legal rights to leave violent husbands and are being pressurised to attend reconciliation sessions with their husbands despite legal injunctions in place to protect them from violence”.

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The Bill therefore creates an enhanced mechanism for court orders to be set aside if they were based on non-consensual agreements.

Any woman who does come forward needs the full protection of the law because she may well be doing so in the face of intimidation and overwhelming pressure not to bring shame on the family and community. That is why the Bill also makes it explicitly clear, in Clause 5, that a victim of domestic abuse is a witness to an offence.

The fourth concern relates to the estimated 100,000 couples in Britain who are living in Islamic marriages not recognised by English law. Of course, any person is entirely free to be in a religious marriage without legal registration. However, it is important for people doing so to be aware of the legal disadvantages. The 2014 Aurat report by Habiba Jaan, to which I have already referred, described Muslim women’s experience of marriage in the West Midlands. The majority of women who had a religious-only ceremony were unaware that their marriage was not officially recognised by English law. Many were deeply disturbed when they discovered their predicament and said they wished they had known the reality of their situation and its implications.

I raised this issue with an amendment to the Anti-social Behaviour, Crime and Policing Bill in 2013. It would have required the celebrant of any religious, non-legally registered marriage to ensure that both parties to the marriage were aware of the implications. Unfortunately, the Government missed this opportunity to help these women. I trust that Government will now take the opportunity to support the Bill’s very moderate provisions, which simply place a duty on public bodies to ensure that women are not misled as to the legal status of their marriage.

In conclusion, it is important to emphasise that the Bill does not specify any particular faith tradition. If women from other faiths experience systematic discrimination, the provisions of the Bill would also be available for them. It is also important to recognise that that the Bill does not interfere with the internal theological affairs of faith groups. If a woman with devout convictions accepts religiously sanctioned gender discrimination, the Bill would not inhibit the practice of her faith. But the problems I have highlighted often arise because choice is not informed or genuinely free.

I hope, therefore, that the proposals will receive a more sympathetic response from the Minister than on the previous occasion, when the Government claimed that there was no need for such provisions as all citizens can access and benefit from their rights according to law. The chasm between the de jure situation and the de facto reality is an abyss into which countless women are falling. I trust that, with the evidence that has been accumulated since the previous Second Reading, the Government’s response today will be more realistic and will welcome the modest provisions of the Bill, which are strongly supported by Muslim women and organisations that represent them, as well as those committed to the preservation of the fundamental principle of democracy of one law for all. I beg to move.

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Lord Gardiner of Kimble (Con): My Lords, I respectfully advise that if we keep to the advisory time of five minutes, it will mean that the House can rise at 4 pm.

10.19 am

Lord Mackay of Clashfern (Con): My Lords, I thank the noble Baroness, Lady Cox, for introducing the Bill and for introducing it so clearly in the speech we have just heard. My purpose is to say a word or two about arbitration and the position it holds in the law of England and Wales.

The freedom to profess and practise religion is one of the fundamental freedoms of our country. When people agree in a fully voluntary and unintimidated way to a particular request relating to their religion, it is right that that should be respected. However, there is a certain amount of subtle pressure involved sometimes in relation to religious organisations. That is perhaps particularly true in relation to the family. The important situation, it seems to me, is when the arrangements of public law come into a dispute: the basic principles of our law should then be respected because the ultimate authority for the enforcement of the resulting awards is in the law of this country. Therefore fundamental principles of the law should be respected throughout the whole of the procedure.

Under the Arbitration Act, arbitrations have a considerable effect when they have been properly set up. The Arbitration Act, which the noble Baroness referred to, was set up principally to deal with the problems that had arisen in relation to commercial arbitrations in this country, including the difficulties caused by repeated applications to the courts, which had the effect of holding up progress, as they almost certainly always do. The Act was intended to simplify and clarify the effects of arbitration and the principles by which arbitration should be conducted.

One of the fundamental principles of our law, referred to in the Bill, is the treatment of gender on the basis of equality. We know that in certain situations there is a presumption in some religions in favour of men, and the result is discrimination against women. I sincerely hope that that is not a general situation in our country, but it is an important point notwithstanding. It seems to me to be essential that all aspects of any arbitration, if it is to be authorised ultimately by the legal authorities of this country, should be conducted in accordance with the principles of non-discrimination. That is one of the fundamental provisions of the Bill, and I strongly support it.

Various types of negotiation can have the same effect, and it is important that if these are to be considered as authoritative in our law, they too should be in accordance with the fundamental principles of non-discrimination. For me, therefore, the part of the Bill that deals with this is very worthy of support, especially when there is evidence, to which the noble Baroness referred, that this is not always observed in all forms of those arbitrations which are based on certain religions.

10.24 am

Baroness Deech (CB): My Lords, as I did three years ago, I welcome the Bill and congratulate my noble friend Lady Cox on her persistence and her

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unflinching exposure of the evidence that necessitates these provisions. Equality is what the Bill is all about: it is about closing any loopholes that might remain, or might be picked, in the Equality Act 2010. All religions have had to rethink certain practices as a result of decades of addressing equality and non-discrimination: Roman Catholic adoption agencies have had to close; a registrar who was unable to preside over same-sex weddings had to give up; and the JFS school was held to have discriminated when applying the age-old Jewish definition of who is a Jew. It applies all round.

In this era of legal aid cuts, it is right and proper that arbitration and mediation should be permitted—but all arbitrations have to comply with the overarching equality provisions of this country’s secular law. Article 9 of the European Convention on Human Rights promises freedom of religion, but there may be such limits as are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others.

The Bill raises the enormously significant issue of the relationship between democracy and religious beliefs. The issue is more acute than ever, not only because of the forcible way it was brought to our attention by the Charlie Hebdo massacres but because of the mass movement of people of different religions and practices across Europe at the moment and the consequent need for integration and for many substantial minorities to live together in peace and harmony.

There has been much talk of British values. There is one simple token of all of them, which is Magna Carta. I am well aware that Magna Carta was based on a sexist, classist and unfree society, and the way we see it now as an ideal and a symbol of the rule of law took centuries to unfold. But it if means anything today, it is that all of us should be subject to the same system of law, have equal rights to access it and be treated equally by it. All across Europe there is debate about the place that sharia courts should occupy, if at all, in the national system. Some places across the world are more forbidding than others, including several American states and Greece.

I will focus on the family law aspects of the Bill. One problem is marriages that are not valid under English law because they have completely avoided the recognised methods of marrying. The solution is not to treat women who are not married as if they were wives, it is to press for every mosque to register as a legal wedding venue by getting a licence. Nothing could be easier, and then the couple need only have a wedding in the mosque and not have go to a register office. Maybe this could be made a condition of planning permission in the case of new buildings. The information that the women need may be extended by use of the public sector equality duty. As far as religious divorce goes, it needs to be preceded by a secular one, and every effort must be made to promote the welfare of the children, for their welfare may be seriously compromised if women are forced to accept conditions about their upbringing as the price of a religious divorce. Domestic abuse is another area where it is reported that jurisdiction creep by sharia courts has taken place. English law recognises rape within marriage as a crime: it does not accept that women must subject

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themselves to men physically, and we must not tolerate the sweeping of violence against women or children under the carpet by any religion in the name of faith.

When the Bill was introduced in 2011, there was a response to it in a booklet published by the Islamic Sharia Council. Inter alia, in relation to family law, it claimed that the English legal system should not intrude into private lives and that if it did, we would end up with Big Brother watching the bedrooms of citizens. In relation to concerns about unequal inheritance laws, the pamphlet said that the law has no business telling individuals how to dispose of their property. These comments show such ignorance of the rule of law and the function that legal systems serve. The law most certainly reaches into allegations of violence no matter where it happens, whether within marriage or any other context, for the physical protection of its citizens. A religious marriage is not to be treated as the creation of a free-for-all zone immune from the reach of the law where violence and exploitation may have occurred, any more than in any other relationship. As for the denial that the law affects the disposition of property, there is no area where greater legal control exists—especially for inheritance—for the good of individuals and society.

In the end, the clash between national and religious law, the prevention of poor treatment of women, comes down to education from the earliest age in the legal rights and duties of UK citizens. Give women the information to free them. If they are denied the use of the English language and that information, they cannot know the security and proper concern for them and their children that English family law is offering.

10.30 am

Lord Dholakia (LD): My Lords, first, let me thank the noble Baroness, Lady Cox, for her Private Member’s Bill. Over the years of my membership of your Lordships’ House, the noble Baroness has raised important issues affecting the rights and liberties of people in many parts of the world. She has travelled far and wide, at times to places which are hostile and unwelcoming, but that has not deterred her speaking at first hand and with experience on matters which have often escaped public attention. There are many who will agree with her; equally, there are those who may construe that as interference in their beliefs based on the faith they practise.

In a democracy, we have long considered the development of a value-driven society as a core goal. The issues highlighted by the noble Baroness will not go away. We live in times where the impact of globalisation, devolution and immigration has been substantial. This does not mean that faith-based practices are under attack; it is quite the opposite. We must not run away from the decline of ethical behaviour on the one hand and the growth of fundamentalism on the other.

Article 1 of the Universal Declaration of Human Rights reads:

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

and Article 3 reads:

“Everyone has the right to life, liberty and security of person”.

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I do not underestimate that communities feel threatened when cultures and practices that have existed for hundreds of years are discussed and debated, but cultures do not remain static. Communities change. Conflict often occurs on matters of gender, generation, religion, language and the community’s relationship with wider society. We should not be frightened. The successive generations of people settled in this country are now witnessing fusion in music, the arts, fashion and food. Changes are inevitable. It is right that there is a sensible debate, and we should question what happens when an individual’s or group’s belief impinges on other people’s lives and liberties. Debates on community cohesion are useless if we shy away from tackling the very essence of one law for all.

It was as early as 1965 that the then Government proclaimed that Britain was a multiracial society. Since the early days of Commonwealth migration, successive Governments have been proactive and valued equality and diversity as one of Britain’s core values. Britain has been at the forefront of legislative and other machinery to establish equality of opportunity for all its citizens, with strong new legislation on race, disability, gender, age, faith and sexual orientation. It is equally true that for too long we have assumed that our liberties are protected by a set of traditions and customary activities assisted by general consensus within our society about the liberty of individuals. Lawyers have often argued that we have no written constitution and limited guidance in legal process and documentation, and it is for this reason that the Private Member’s Bill promoted by the noble Baroness requires serious consideration.

Let us not forget that, in the absence of specific protection of individuals and communities, we have not hesitated to promote legislation to eradicate discriminatory and other practices. Let me give a few examples. Who would have thought in the late 1950s and early 1960s that we would promote race relations legislation to eliminate race discrimination and promote equality of outcomes for all our citizens? The same applies to sex discrimination, forced marriages, FGM and other practices that cried out for equality of outcomes and fairness for all. By these actions we have sent a clear message that, in a democracy, law is an unequivocal statement of our public policy. Individuals now have access to protection and remedy through our courts.

Let me concede straight away that in many parts of the world there are informal and accepted practices to resolve disputes without recourse to a legal process. I see nothing wrong with that. Many land disputes, family disputes et cetera are resolved by involvement of community elders. The questions that need to be addressed are as follows. Do informal processes treat individuals fairly? Do they show satisfaction with outcomes? Do informal interventions comply with the law of the land enacted by Parliament? Evidence so far produced confirms that in many cases, in particular on matters of gender equality, this is not so. Too often, women are victims because formal or informal arrangements to resolve disputes are made by men.

Let me conclude. In this fast-moving world, there is a change in attitude. The successive generations growing up in this country are better educated and more

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questioning of authority than ever before, and they are better informed. We need to understand that they are putting great pressure on the antique structures and, often, our antiquated ways of thought.

The Bill requires serious consideration. Law is an essential element of our democracy. It is not enough to say that everyone has access to our laws and there is no need to introduce the Bill. This will not do. As a start, the Government have a duty to monitor outcomes of informal procedures. They will find that, in many cultures, women are not only disadvantaged but discriminated against in the way that procedures deal with them. It is time to rebalance this anomaly.

10.36 am

Baroness Donaghy (Lab): My Lords, I am very happy to speak in support of this Bill for three reasons. First, I supported the noble Baroness, Lady Cox, in similar circumstances three years ago. Secondly, speaking as a former chair of ACAS, I say that arbitration and mediation should not be the subject of confusion or brought into disrepute. Thirdly, I played a part in fighting for the rights of women, and I believe that every woman should have access to those equal rights.

In my contribution three years ago, I told the story of my visit to the electricity showroom—it shows how long ago that was—in the Chiswick High Road in the 1960s to take out a hire-purchase agreement on an electric fire. I was told that I needed my husband’s signature for something that I was paying for. I became a feminist overnight.

Progress can sometimes seem very slow, but it must not be transient. For ACAS, arbitration and mediation represent its bread and butter. It is important to distinguish between the two. Arbitration is where two or more parties agree an independent person who will decide their dispute. The terms of reference have to be mutually agreed beforehand and there has to be acceptance of the final outcome. Mediation involves a neutral person trying to help the parties identify common ground and reach a mutually satisfactory agreement. It is the parties which settle in this case, not the mediator.

Many of the reports which I have read show that arbitration and mediation are confused in sharia courts. Their remit is sometimes unclear and sometimes exceeded under the cloak of a judicial remit. It is sometimes said that a woman who attends these courts or councils is attending by mutual consent. I think that the definition of mutuality is sometimes being stretched. A woman is said to consent to a process when huge cultural and family pressure, a language barrier, ignorance of the law, a misplaced faith in the system or a threat of complete isolation from her community mean that the use of the word “mutual” in those circumstances is an abuse of the woman and an abuse of the English language.

Listening to and reading about the stories of women who have experienced real trauma in those courts is harrowing, and takes me back to women’s rights nearly 50 years ago. I appreciate that the Minister was a carefree teenager then—or perhaps there is no such thing as a carefree teenager. Domestic violence and rape within marriage were tolerated, and I lost count of the times I was asked whether I was going to get

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married or become a teacher or secretary. Visiting my mother’s family in Yorkshire, it was even more basic. I was asked, “Do you bake?”. This did not have the same connotations then as it does now, with so many TV programmes on baking making it so popular. “Do you bake?” was putting me in my place. I assure the House that I am not trying to compare something as trivial as my baking capabilities with decisions being taken on behalf of some women today about their marital status, inheritance or personal safety; I am simply saying that, historically, it is not that long ago that women were unequal before the law. We cannot afford to go backwards and tolerate a situation in which any woman is living in fear and isolation.

The Government may feel that the Bill is unnecessary, as the law is sufficiently adequate to ensure justice in that area, but I argue that more needs to be done. This is not confined to sharia law or the Muslim religion; I believe that these parallel laws discriminating against women have existed and may still exist in other religions. As long as some women live in fear and are trapped in their situation, we should act. This is about equal rights for women. I hope that the Minister will be able to say in what way the Government intend to help women in this predicament. No one pretends that passing this Bill will solve all the problems, but it will promote what one of the campaigners whom I greatly admire has called a “shared vision of citizenship”. I support the Bill.

10.41 am

Baroness Eaton (Con): My Lords, it is hard to believe that circumstances in the United Kingdom in the year 2015 for some women can be so unacceptable as to make this Bill necessary. I congratulate the noble Baroness, Lady Cox, on bringing to our attention the various issues that highlight the need for this Bill. The noble Baroness, Lady Donaghy, will be most interested that I was fortunate, being brought up as woman in Yorkshire, that both my mother, who was born in 1906, and her mother before her were exceptional, independent and liberated women, who ran their own businesses—a very unusual occurrence in that generation. In my family, equality in all contexts was a given. For equality to be denied for so many in this country is totally unacceptable.

My working-life experiences as a politician and a teacher have brought me into contact with women for whom equality in the sense that we experience it, both socially and before the law, is unknown. I have become increasingly concerned that many women and girls in the United Kingdom are in this day and age suffering systematic religiously sanctioned gender discrimination. There is, as we have heard, increasing evidence to suggest that in some instances sharia law is being used as an alternative to proper legal process. I have many female friends and acquaintances born and educated in this country who have grown up with their families respecting the rule of law in this country first and foremost while still being devout Muslims. However, many women not born here, lacking language and education, are in a much more vulnerable position, often unaware of their rights under British law. As leader of a council, I became aware of many women living in close-knit communities, suffering domestic

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violence which was condoned by the family, and women who were being divorced against their wishes, who had no legal redress and who were left to live in penury.

We must all be very clear that nothing in this Bill has any negative impact on ecclesiastical courts with a religious and spiritual jurisdiction; nor does it prevent the individual’s right to practice their religious faith. Anyone who wishes can surrender their rights under English law in favour of religious rulings. The right to practise a religion as one wishes will not be affected. This Bill recognises legitimate forums of arbitration, including Muslim arbitration tribunals. As mentioned earlier, problems arise when these tribunals pretend to have actual legal power when, in fact, they have none. As the current law has not been sufficiently effective, I welcome the fact that the Bill creates a new criminal offence of falsely purporting to act as a court. All those who have read the testimonies given by so many and listened to the contributions from your Lordships today will, I am sure, welcome this Bill and wish it a speedy passage.

10.45 am

Lord Green of Deddington (CB): My Lords, I pay warm tribute to my noble friend Lady Cox for her skill, tenacity and courage in bringing this Bill before the House, and I congratulate her on the very powerful case that she made in opening this debate. The provisions of the Bill are based on three essential propositions: that there can be only one law in our society; that religious freedom shall be protected for all religions; and that women in Britain should not suffer discrimination in the resolution of disputes and, to this end, should be made aware of their rights. I strongly support all three propositions, and I suggest that this Bill is a measured and intelligent attempt to achieve that outcome. The endorsement of the noble and learned Lord, Lord Mackay, is very significant in this context.

I speak as someone who spent 16 years living in the Arab and Muslim world, including seven years in Saudi Arabia, at the heart of Islam. Sharia law can be made to work, in largely Muslim countries, but nobody can realistically claim that in those countries women have the equality of status that is nowadays central to our society. The best that can be said is that there can be countervailing family pressures that can help some women in some circumstances. But our society is an entirely different one, and those who come must accept that—indeed, that is why many of them come in the first place. At the same time, we must be prepared to insist that there can be only one law; we must get away from what might be called the “Rotherham complex”, where the authorities were so afraid of offending a minority community that they turned a blind eye to the appalling abuse of young, mainly British girls. I pay tribute here to Andrew Norfolk, a correspondent of the Times, and to the editor of that newspaper, for their courage and persistence in uncovering such outrageous behaviour. Other cases have since been unearthed that suggest that there has been a widespread failure to apply the law for so-called cultural reasons. Indeed, there can be little doubt that the many disturbing examples provided by the noble Baroness are but the tip of a very large iceberg.

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It is time to make a stand against the abuse of women of whatever community and in favour of the rule of law—one law. I commend the Bill to the House.

10.48 am

Viscount Bridgeman (Con): My Lords, this is a timely and important Bill, and I pay tribute to the noble Baroness, Lady Cox, for her persistence in following this matter and for her brilliant exposition today. We are fortunate to live in a democracy that enshrines the principle of equality before the law. The purpose of this Bill is to address some of the difficulties that have arisen over the relationship of religious-based law—primarily, in this case, Muslim sharia law—to the civil law of England and Wales. It is important to be clear what the Bill does not intend to do, which is to interfere with the internal theological affairs of various faiths. To quote an excellent briefing that I have received, the Bill does not force a Muslim woman to give up religious law and, if she wishes to practise her religion as she wishes, the Bill will not take away her freedom. These provisions do not force her to take up her rights under English law; they merely give her the right to do so, should she so wish. This could not have been more clearly stated.

My noble and learned friend Lord Mackay has given us a very concise exposition of the arbitration network and pointed out that the Act can apply to jurisdictions outside English civil law. More difficulties arise under mediation where a third party does not decide the matter but simply helps the parties to settle their dispute between themselves, which on the whole does not form part of the Muslim practice of resolving disputes. Sadly, there is much evidence that so-called mediation in sharia courts is another word for persuasion, forcible or otherwise.

Sharia courts in one large category are constituted as arbitration tribunals but operate outside their legitimate scope. A very large number of courts present problems because they have little or no legal status but claim to operate within particular communities as if they have the power to make authoritative, binding rulings—and this is where we come to the problem of intimidation which is addressed in Clause 5. There is evidence that a refusal to settle a claim in a sharia court can lead to ostracism by the individual’s community and to him or her being labelled a disbeliever. Going to the police or to non-Muslim professionals can be considered in the eyes of the local Muslim community to be disbelief. Most seriously, there are fatwas, which I understand are sharia legal judgments or legal opinions, many of which specify or imply that sharia law takes precedence over British law. I am very pleased that this is addressed, at least in part, in Clauses 4 and 6.

Finally, I will touch on some of the dangerous effects of unsatisfactory Muslim marriages. It is not uncommon in certain Muslim communities for men to have up to 20 children, a point raised by the noble Baroness. The likelihood is that many of these families will be dysfunctional and easy prey to radicalisation in the closed communities in which they operate. The noble Baroness, Lady Cox, has done a great service in persuading a number of Muslim female witnesses with great courage to come forward with their case histories.

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This Bill may not be able to address in their entirety the very serious problems faced by many Muslim women in England and Wales, but it is an important first step, and I hope your Lordships will give it a Second Reading.

10.52 am

Lord Maclennan of Rogart (LD): My Lords, I congratulate the noble Baroness, Lady Cox, on bringing forward this timely Bill. The growth of abuse has been considerable in the past decade. The noble Baroness has given good examples of the abuses, and they need not be repeated. The suffering of women oppressed by religiously sanctioned gender discrimination must be addressed as part of our protection of human rights. The emergence of a parallel legal system which undermines the fundamental principle of one law for all must also be recognised. There is an urgent need to take these issues seriously and adopt appropriate measures to help women suffering in ways which are completely unacceptable in Britain.

In the United Kingdom, there has been considerable growth in sharia forums—I believe there are 85—and sharia arbitration councils which discriminate against women. Section 1 amends the Equality Act 2010 to put this right. Subsection (4) seeks to protect those who marry according to certain religious practices but not according to the civil law. The need to make this remedy open and clear is very strong. Many of those who are subjected to improper practices are not aware of their rights. Those who are in polygamous marriages need to be protected because they can be impoverished if their husbands simply divorce them by repeating three times that they are divorced.

The amendments to the Arbitration Act 1996 to preclude discrimination against females are also very important. They exclude an imbalance of evidence between men and women. Sharia law sees that as acceptable, but it is not acceptable in accordance with the laws of this country. Property distribution between sexes in cases of intestacy is also covered by the Bill. The amendment to the Family Law Act 1996 which is proposed gives power to courts to set aside mediation agreements if they decide that one party’s consent was not genuine. That enables the police to investigate the circumstances. If this Bill is enacted, it will become an offence falsely to claim to have legal jurisdiction or the power to arbitrate without any basis under the Arbitration Act 1996. That seems very necessary.

The Bill seeks to ensure equality before the law and stop the coercion of women in this country. It will help women to know their legal rights and clarifies that discrimination law applies to arbitration. This Bill needs to be enacted to prevent the operation of a parallel legal system. Provided that faith groups operate within the civil law, they will be free to resolve their disputes within the framework of religion. That has been made clear by the noble Baroness, Lady Cox. The Bill is very worth while and needs to be enacted.

10.58 am

Lord Cormack (Con): My Lords, my old friend the noble Lord, Lord Maclennan of Rogart, the ninth speaker in this debate, has made the job of my noble

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friend Lord Faulks, who will reply, easier by the minute or more difficult. If my noble friend Lord Faulks does, as we would all wish, give a warm welcome to the Bill and promise to act upon it, he will leave the Chamber basking in reflected glory. If he has to give the sort of disappointing response we suffered last time, there will be a collective sigh, and it will be heartfelt.

We all owe an enormous debt to the courage and persistence of the noble Baroness, Lady Cox. She is a shining light for us all. She goes to places where others fear to, she reports to this House with graphic simplicity and she embraces causes that we should all be glad to make our own. I have had the privilege of attending a number of the meetings convened by the noble Baroness, where I have met some truly remarkable women—women whose courage emulates hers. It is different, though: she observes, they suffer. She has brought their suffering to our attention, and we would be a churlish lot if we did not give this Bill a fair passage.

The noble Baroness, Lady Deech, is one of those who has referred to Magna Carta. Because of Lincoln’s possession of one of the prime originals, I have been much involved this year in Magna Carta commemorations and celebrations. There could be no better commemoration and celebration as we approach the end of Magna Carta year than by giving this Bill, or something very like it, a fair wind. I say “something very like it” because Governments always nitpick and often like to bring in their own version. Fair enough, but a version there must be.

The noble Baroness, Lady Cox, quoted the noble and right reverend Lord, Lord Carey. I am bound to say, although I am one who is very admiring of the Bishops, that it is a pity that we have a Bishop speaking in the next debate and in the final one but not in this one. I think we ought to hear the voice of the established church. A Bishop for whom I have enormous regard—I will not name him so as not to embarrass him—said to me, “Freedom of religion should not extend to barbarous practices”. It should not. What we are talking about today are barbarous practices. Whether those barbarous practices are the work of an obscure Protestant sect or the work of those adhering to a mainstream religion, they should not be tolerated.

It would be a travesty if we entered 2016 and people could still be treated as chattels. That really is the nub of this matter. These women are being treated not just as second-class or third-class citizens but as possessions. We passed an anti-slavery Act, and I am delighted that we did; I rejoice in the fact that my parliamentary hero was William Wilberforce. This is another form of slavery, in a way. The noble Baroness has done the House a great service by her persistence, and I hope it will be rewarded.

11.03 am

Lord Anderson of Swansea (Lab): My Lords, like the noble Lord, Lord Cormack, I join the consensus of concern. I agree with my noble friend Lady Donaghy that this is essentially a women’s issue. I join, too, with the noble Lord, Lord Dholakia, in praising the noble Baroness, Lady Cox. I have long admired her tenacity and the way in which she has fought for human rights abroad in an even-handed way, be it for Muslims in Burma or Christians in South Sudan. She is no less

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keen in promoting human rights at home, as is shown by her persistence in bringing forward this Bill after the failure in 2012.

As she has pointed out, there is a danger of vulnerable people being misled as a result of a misunderstanding of the relationship that they are forming. Contrary to their beliefs, their so-called marriage ceremony may be of no legal standing in this country, and all too late at the time of their divorce they find that they are without remedy. For example, Islamic religious weddings cannot be recognised if they take place abroad, but of course a licence can be obtained, just as for non-conformist churches. Aurat, the women’s rights organisation, found in its case studies on Muslim women living in the West Midlands that around 90% who said that they were married were not actually in marriages recognised by our law. The Times of 3 July stated that it is considered that as many as 100,000 couples in Britain are estimated to be living in Islamic marriages not recognised by UK law.

My experience, both as a long-term constituency MP and as a barrister whose practice included some family law, gave me experience of women who came to the UK to marry, often from traditional societies, who accepted without question that the marriage was legally valid in the UK. Often they lacked adequate language skills, were timid and subject to community pressure, and would remain ignorant unless properly advised. The problem now appears to have been recognised by the Home Secretary, who said in March this year:

“There is evidence of women being ‘divorced’ under Sharia law and left in penury, wives who are forced to return to abusive relationships because Sharia councils say a husband has a right to ‘chastise’, and Sharia councils giving the testimony of a woman only half the weight of the testimony of a man”.

Surely there is a danger of parallel legal system being created. Women should not be subject to that sort of pressure to submit and not pursue their right under our law. It is therefore all the more surprising that there was such a weak response from the Government in 2012: that every woman has access to her rights under the law of the land. We look forward to a more positive statement from the Minister this morning. I accept that in their Written Answer of 24 September the Government have now conceded that,

“Sharia councils may be working in a discriminatory and unacceptable way”,

and have undertaken to commission a full and independent review. I say in passing that I hope the review will not be of Chilcotian length and will have very clear terms of reference.

Nevertheless, I hope that the Bill will receive a Second Reading, that the question of the legal validity of marriages will be assured, that the principles against our own law—giving more weight to man than to a woman, intestacy and so on—will be examined and that if these key procedural principles of English and Welsh law are not fulfilled, the proceedings can be struck out. If these practices are not stopped, not only will they continue but they are likely to be extended. I therefore welcome the fact that the Government have now changed their position and recognised that there is a real problem. The principle of equality before the

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law should be upheld. I trust that the terms of reference of the proposed review will be sufficiently wide to encompass all the concerns expressed so well by noble Lords in this debate.

11.08 am

Lord Elton (Con): My Lords, the breadth of the compassion of my noble friend Lady Cox is equalled only by the depth of her energy. I am astonished, as I think we all are, by what she accomplishes for human rights right around the world. We are very lucky that she has focused today on this particular important human rights situation. She started more or less by saying that all are equal under the law and that no person, organisation or ethnic group, no religious persuasion and no speaker of a foreign language is exempt from the law, either from its constraints or from its protection, unless the law so provides. Where it exists to protect the weak from the strong, it must be known to the weak so that they can seek its shelter, and to the strong so that they know the limits of their authority. If the law is to be effective, it must therefore be as clearly expressed as legislators can make it. It follows that where it applies for those who do not speak English, it must be available to them in their own tongue.

If practices or a system of practices developed under a different jurisdiction or culture are established in this country and are recognised to be incompatible with the judicature or culture of our own country, the law must be developed to prohibit them. Where that practice or set of practices result in serious harm to individuals, the application must be swift. It follows, perhaps controversially, that that application should not wait on the painstaking development of case law or interpretation; that is, of statutory law as it exists. It should be applied, as is now proposed, by legislation. If it is in contravention of any point of existing law, which I very much doubt, it needs to be amended. If it is not, I suggest that the remedy of overlap should surely await consolidation.

In the present case, we are dealing with matters of great importance and very great sensitivity. The practices at which the Bill is directed have arisen in a particular religious persuasion and perhaps within particular ethnic groups. It is therefore of the greatest importance that it is made absolutely clear that it is the practices themselves, and only the practices themselves, at which the Bill is directed. As has been drawn to your Lordships’ attention, it is so drawn that if they occur in any group—religious, ethnic, cultural, linguistic or any other—it will bear equally heavily upon them. That is how it should be, and that is exactly what the Bill achieves.

The next task is surely to see that there is a mechanism for getting an understanding of this to all those affected by reliable machinery, supervised by those who are empowered to enforce it, and that it should be in their language and, most difficult of all, if they cannot read, it should be given to them verbally. That is of great importance in this particular case. I repeat my admiration and thanks to the noble Baroness. I apologise for beating the same drum as many other noble Lords; I just hope that the rhythm has been slightly different.

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11.12 am

Baroness Flather (CB): My Lords, I am sure that your Lordships have heard everything about the noble Baroness, Lady Cox, but that will not stop me from saying my piece. I have been fortunate enough to have her as a very close friend, and I have been working with her on this legislation, which she desires to bring in. She has undertaken so much work; I sometimes wonder whether she eats and sleeps at times. To be honest, I have never seen her eat—and of course I would not see her sleep. It is wonderful that she has got the Bill to this stage, and it is for us to make sure that at least the best of it comes out.

We just heard from the noble Lord, Lord Anderson, that this is a women’s issue. It is not. We should be very careful not to mark it as a women’s issue, because it is an issue for the country and for all of us. We should not have any parallel system in this country. It is incorrect, and it works against the ethos of what we have been used to. So it is an issue for all of us. Yes, it is a particular issue for women, because they are deprived of rights, but it is an issue for men as well because they must show other men that they have to behave properly.

I am sure that all noble Lords remember the retired Bishop of Rochester, Michael Nazir-Ali, who has made a special study of sharia. He would tell noble Lords that there is no doubt whatever that discrimination is built into sharia. I saw him yesterday and said, “I’ve been quoting you”. “Oh”, he said, “what have you been saying?”. I said, “You’ve been saying that you said that there is inequality in sharia”. “It’s true”, he replied. Therefore, let us be clear that even religious practices that may be more hidden from our eyes may also impact badly on women.

For that reason I am very nervous of sharia, because it does not fit in with this country. If people come to live here they have some duty to conform. If you look at some of the urban areas where large numbers of Pakistanis have settled, there is no desire to integrate—to become part of the nation. If we can do anything to make that happen, obviously that would be a good thing. If they do not integrate, in time they will become a state within a state, and we should guard against that very fiercely so that they do not start building their whole community system on the basis of how they have been brought up.

I also point out that the term “culture” has been very damaging. “Oh, it’s their culture”, people say. Do noble Lords know what culture means? It is usually something you practise. It does not mean that all the things you practise are culture—they are just social practices. Because we call it culture and give it that status, we do not like to go against it. Social workers say, “But it’s their culture”. What do they mean? What about our culture? We want our culture to be practised in our country. I have adopted this country as my own, so I can say that in my country I want my culture to be practised, not the culture of an Islamic country. This is very important when you look at the issues of grooming or other issues where everybody is so scared to say anything in case they upset the “culture”.

My friend Sir Malcolm Grant, who is chairman of NHS England, told me that he asked his team to look at heart disease in Muslim communities. They said, “Oh, but it’s very sensitive to ask them these questions”.

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My goodness—you ask us those questions and it is all right, but it is sensitive if you ask them? Why do you want to have two levels? What you do with us you should be able to do with any other group living in this country. Either they are part of this country or they are not.

This is the biggest thing I want to fight against. We need them to start thinking of integration and to make some commitment to this country. We treat them as a special group—we must not touch them, and so on. On halal meat, we do not know whether it is pre-stunned or not. Why do we not know this? Cutting the head off an animal is not much good. They showed it on television; my husband saw it, but thank goodness, I did not. However, I have stopped eating halal meat. I would like to; if they told me it was pre-stunned, I would. We could easily do these things.

Women married under British or sharia law can get a British divorce but not a sharia divorce. One women whom I met through the noble Baroness waited for six years for a sharia divorce. I said to her, “Why? You’ve got the British divorce”. She said, “If I go to Pakistan, he’ll come and take the children away”. I will not go on, because I have run out of time. I ask noble Lords to please give the Bill a fair wind.

11.18 am

Lord Sheikh (Con): My Lords, I say at the outset that I have met and spoken to many people across the Muslim community in recent weeks concerning the Private Member’s Bill. It should be noted that the Bill does not name any religion. However, there is widespread concern that it seeks to demonise Muslims in particular by giving an incorrect impression of our values.

First and foremost, it must be appreciated that in any dispute—civil or otherwise—one party may feel aggrieved if a decision does not go in their favour. We must talk to all the parties concerned.

There is an incorrect presumption that sharia councils arrive at decisions that are legally binding. Normally, in fact, they provide mediation services and do not consider themselves above the law. Any agreement arrived at following mediation is binding only if both parties mutually agree to it being endorsed by a court of law. If both parties prefer the matter to be considered by arbitration, this should be allowed. In such cases, the normal rules of arbitration apply and the arbitration is binding on both parties unless there has been an error in law.

There is a misconception that Muslims in this country would like sharia law to be applied generally. However, the reality is that nobody talks about sharia law as the law of the land; Muslims are clear that English law should, and does, ultimately prevail.

Some Muslims have an Islamic marriage, known as a nikah, without also having a civil wedding. Ideally, I would like to see imams performing a nikah only after a civil wedding has taken place. We should perhaps look at the possibility of amending the Marriage Act 1949 to address this issue. Having said that, if an imam receives a request to perform a nikah without a prior civil wedding, it is imperative that he emphasises to both husband and wife the drawbacks of a nikah-only marriage.

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Many couples choose to cohabit without getting married and we do not pass any judgment on them—nor should we. More than 3 million couples in this country are cohabiting at the moment. When a nikah takes place, a contract is signed between the man and the woman containing the terms and financial obligations of the marriage. Under Islamic law, a man can divorce his wife by stating this. If a woman feels that her marriage has broken down and that they should divorce, she can ask the man to divorce her. If the man refuses to divorce her, she can approach the sharia council and petition for a divorce to be issued. It is therefore essential that there are sharia councils that she can approach for this to take place. I believe that all Muslims should be encouraged to use the already- drafted Muslim marriage contract, which perhaps needs simplifying.

I should emphasise that sharia councils do not obstruct or attempt to influence proceedings where issues such as domestic violence are concerned. In fact, women are advised to contact the police.

At one point the Bill refers to intestacy. It must be noted that, in the event of the death of a person who has not left a will, the estate will be administered according to the principle of the laws of intestacy in the country. Sharia law is not therefore relevant. If a person wishes to make a will distributing his wealth according to sharia law, he must be entitled to do so.

Lord Carlile of Berriew (LD): I apologise for interrupting the noble Lord. As a matter of fact in sharia law, if a man wishes to obtain a divorce, does he have to ask his wife first, before he approaches the sharia council?

Lord Sheikh: No. Under sharia law he does not have to do that. If sharia councils make unfair decisions, these must be dealt with on a case-by-case basis. I feel that there must be a mechanism to deal with such cases and that we should put in place an appeals procedure.

Baroness Flather: Is the noble Lord saying that there is equal treatment of women and men under sharia or is he saying that whatever sharia prescribes is correct? I am not sure; I think he is saying that whatever sharia prescribes is correct and proper. However, is there not discrimination against women?

Lord Sheikh: It depends on what the noble Baroness means by discrimination.

Baroness Flather: I see that the noble Lord has not found that out yet.

Lord Sheikh: That might be amusing to the noble Baroness but it is not amusing to me.

Baroness Flather: It is not funny to me—I am a woman.

Lord Sheikh: I will continue. In the same way as sharia councils cannot claim to make legally binding decisions, some religious decisions have no place in

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English law. In any case, mainstream courts are not able to deal with matters of religious custom. If Muslims or those from any other religious group wish to undertake mediation or even arbitration according to a set of religious principles, they should be free to do so and there should of course be no coercion. I would like to see the UK Board of Sharia Councils become a prominent, self-regulatory body of which every sharia council should be encouraged to become an accountable member. I have spoken to heads of sharia councils and I know that there is enthusiasm for this.

There are problems affecting Muslim women who are denied religious divorces and women who enter into religious marriages with no legal protection. If there are problems with some practices, it is incumbent on the Muslim community to deal with the issues and take remedial action. We must work together with the community to find the solutions. This Bill will not help us to achieve this.

11.26 am

Lord Taverne (LD): My Lords, I have long much admired the campaigns of the noble Baroness, Lady Cox, in favour of human rights and I strongly support this Bill. It reasserts the principle that there must be equality for all under a single law of the land, especially in one area where the principle is widely ignored and denied—namely, the rights of Muslim women. I have not previously spoken on the subject and will concentrate on one issue only.

I had one major reservation about the Bill—a reservation which, to some extent, is shared by the noble Baroness, Lady Uddin. Since there is such strong evidence that English law and procedure have been ignored in so many ways in so-called sharia courts, and given the difficulties that clearly exist in effectively protecting the rights of Muslim women, is not the simple answer to outlaw sharia law outright in any judicial or quasi-judicial proceedings in the United Kingdom?

I have been persuaded against that argument by someone who is, I am told on very good authority, regarded as one of the wisest counsellors in dealing with Islamic extremism and radicalisation, Councillor Saima Ashraf of Barking and Dagenham. She has had strong personal experience of discrimination but still favours keeping the option of arbitration and mediation under sharia law.

As a non-believer, I accept that, unless there are strong reasons to the contrary, we should respect and protect the right of faith groups to decide disputes in accordance with their religious beliefs. I can see that those who are brought up under strict sharia law, as the law for true believers, might regard a total ban as the imposition of alien values and as an example of discrimination against Islam. That would not be the best way to promote tolerance and understanding between religions, and in fact the Bill does not outlaw so-called sharia courts but provides the safeguards against discrimination which exist under English law, and these must prevail.

However, my adviser stresses two very important issues which have not been mentioned so far: monitoring and education. It is absolutely essential that we have effective monitoring to ensure that the safeguards are

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being observed, and this must be accompanied by education. I believe that we should make sure that Muslim women in England are made explicitly aware of the rights that they have here, and that should certainly include Muslim women who do not speak English. There are many cases at the moment of women being ignorant of their rights and even of their legal status. If, however, monitoring does not provide an effective safeguard or it shows that the abuses which are now widespread continue, then outlawing all sharia law will be the only course left.

11.30 am

Baroness Massey of Darwen (Lab): My Lords, I thank the noble Baroness, Lady Cox, for introducing this debate so effectively. I admire her courage and tenacity. I sometimes sit in the women Peers’ rooms and see her dashing off to catch a plane, going on some ghastly journey to some troubled part of the world.

I am speaking today because of a deep concern, shared by many—by all, I think—for women and children. Some women and children get a poor deal in some circumstances: discrimination in employment, domestic violence, sexual harassment and rape, cruelty and degradation, and appalling treatment in situations of war and conflict.

My late, lamented dear friend, Baroness Rendell of Babergh, was not only a great novelist but she spent much time combatting the odious practice of female genital mutilation. Indeed, she introduced to your Lordships’ House the Bill that became the Female Genital Mutilation Act, and we have seen progress, if slow, in legislation—things are possible. Baroness Rendell used to say that we must stand up for those people who are invisible or who cannot or dare not speak up for themselves. I think that that is a mark of a civilised society.

I welcome and rejoice in religious and cultural diversity. However, culture and religion should not be contrary to the law of the land or to the rights and welfare of any section of society. In your Lordships’ House, I have heard men and women from different ethnic, religious and cultural backgrounds support this view—we have heard that today. If we do not raise controversial issues, in whatever fora we can, issues will stagnate and fester.

I am a patron of the British Humanist Association and an honorary associate of the National Secular Society. Both organisations have challenged, as I do, customs that impinge on the rights of women and children.

Two tenets of this Bill stand out for me. One is that, to be effective and not discriminate, arbitration must be in line with UK equality laws. The second is that quasi-legal structures have grown up which women may not understand and they may therefore be confused about what is according to UK law and what is not. Of course, a woman’s freedom also includes the freedom to arbitrate and mediate on private affairs. However, women must engage in alternative dispute resolution freely, and their right not to be discriminated against on the grounds of gender must be followed, as enshrined in the Equality Act, the Human Rights Act and the European Convention on Human Rights.

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The 2012 arbitration scheme from the Institute of Family Law Arbitrators includes divorce and the care of children. This relates to the Children Act, which states that the welfare of the child must be paramount. Courts of arbitration have no legal right to arbitrate on child custody. Divorce and the care of children are complex issues in any legal dispute but they are made worse if the woman is deemed to have fewer rights; for example, if her testimony is worth half that of a man’s.

Decisions on inheritance can be enforced only if compatible with UK law and public policy. For example, the unequal division of an estate between male and female children on intestacy would not be enforceable in UK law.

There may be pressure on women to submit to a religious court rather than a UK court for the determination of family or inheritance disputes. Women may think that their marriage, divorce or rights over children are guaranteed. Women must be better educated to understand what they are getting themselves into. I believe that there should be education, beginning in school, about the differences in law and that an information campaign should be set up to inform women about their rights in law.

All this would be useful, as are debates such as this one. Any highlighting of problems, and the discussion of those problems, can help rethinking and awareness. In the case of women suffering discrimination, it can help them unite to protect their rights and persons—I know that this is happening. Therefore, I hope that this Bill will serve to encourage discussion, information, clarification and change. Once again, I welcome the opportunity that the noble Baroness, Lady Cox, has provided.

11.35 am

Baroness Buscombe (Con): My Lords, I, too, congratulate the noble Baroness, Lady Cox. It takes real courage to bring and keep this important, and uncomfortable in many ways, issue in the open. I speak as a member of the English Bar, a member of the Joint Committee on Human Rights and a founder member, of many years, of the international foundation for arbitration and dispute resolution, so I understand the issues. I will not repeat the legal and technical arguments. That would be otiose, given the many excellent speeches by your Lordships already in support of the Bill today.

I want to reference two examples of practical experience. Back in 1997, I fought for the parliamentary seat of Slough. I well recall going into brilliant grammar schools during the day to talk to the girls and boys. But in the evening, when I went to their homes, I was not even allowed to look at those same girls, let alone talk to them. They would go home with their brothers and change into their different dress. Their brothers would be allowed to mix with and meet people, such as myself, but the girls were sent straight into the kitchen, no one was allowed to speak to them and they were not even allowed to serve me food. I was treated as an honorary man. When I raised the issue of rights for women, I was thrown out of those houses. Indeed, I remember visiting a mosque one day—this is back in 1997—and turning to my husband to say, “We are

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storing up serious trouble in this country, given that so many young British citizens are not allowed to behave as we do and mix as we do”. Secondly, I will always remember one young Muslim who I knew quite well and who was born in this country. He came up to me one day and said, “The trouble with you British people, we do not respect you; you are weak because you do not stand up for what you believe”.

I come to my central question to the Minister, to which I hope to receive a definitive reply. Will he agree with me that our jury system is no longer sustainable, given that a growing number of people in this country—British citizens, with all the amazing rights that citizenship bestows upon them—do not respect our rule of law and fundamental human rights? Does he agree that when a man has a genuine and heartfelt belief that the rights of women are different from the rights of men, our jury system is broken? We talk about improving the prospect for opportunities for ethnic minority judges. Will the Minister tell us whether we can, and do, allow judges to preside over our system of law when their fundamental beliefs are different?

We must face up to the fact that many Members of Parliament have turned a blind eye to what is happening, and what has been happening in their constituencies for years, for fear of losing votes. Indeed, many of us have been afraid to speak up for fear of being accused of Islamophobia.

What is the solution? That young British man who said that we are weak was quite right. At the core of a safe society, one that our Prime Minister rightly regularly refers to, is a cohesive society. If we are to gain the respect of everyone of all religious beliefs living in this country, we must now to do two things: allow this Bill to pass into law, and seriously rethink and introduce rigour into our rules for citizenship of this country, including rules that spell out and demand equal rights, regardless of gender, under one rule of law—our rule of law—with one system of justice for all.

11.40 am

Lord Kalms (Non-Afl): I thank the noble Baroness, Lady Cox, for leading us into this critical area of re-establishing British justice. She has rung the bell of a new enlightenment.

Islamic religious fundamentalism is a system that will always be in conflict with western liberal democracy. It is a system of non-negotiable theocratic edicts which runs completely against our concepts of human rights and equality. Intolerant religions always make unacceptable encroachments when they are in a minority and cause catastrophes wherever they dominate. The enlightened western democracies long ago separated religion from the making of laws and have generally enjoyed good social achievements as a result. Man-made laws and religious structures should have much in common, and both must be able to flourish in the same place. But in democratic societies, where the elected represent the views of citizens, the laws of that society must always stand supreme. It is the intention of the Bill to ensure that that condition continues in the UK. In clear and unequivocal words, the line is now drawn.

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Those who desire to prioritise their faith may continue to do so, but on a set of non-negotiable principles. No excessive pressures of conformity may be applied; no British laws will be broken, bent or diluted; and no seditious acts can be preached. This marks the issue. A failure to respect those conditions breeds the creation of a wholly unacceptable pseudo-legal system.

One question that the law has been struggling with in recent years is: when is a court not a court? One answer is when pre-formed judgments make a judicial conclusion, which means that claimants have wasted their breath. Situations where the conclusion is irrelevant to the evidence are better known as kangaroo courts.

Beneath the calm surface of many of our Muslim co-citizens lies a historically accepted judicial system based on the Islamic faith. Their judgments are not our responsibility, except that we have a duty of care to be satisfied that the rulings do not breach or run contrary to any of the basic laws of this country. Our laws are supreme over every religious court and subject only to the Parliament of this country. It is a good and well-respected system. If a plaintiff or defendant is satisfied by going through sharia courts for arbitration which does not conflict with British laws then so be it, but there must be no extension or overreach, as there has been in cases reported in this country. If such an overreach occurs, then the full force of the law must be used against anti-British justice.

As to equal rights for both men and women, but particularly women, one law for all applies uncompromisingly: British law. If any woman in front of a sharia court is not fully aware of her rights under the British law, any judgments must have no binding basis. All involved should be charged with what amounts to perversion of the course of justice. It is striking that, despite numerous reports of overreach by sharia courts already, such charges have never yet been brought against a sharia court in this country.

The fundamentalist sharia courts are not about legal ignorance; they are not about misleading those who stand in judgment; it is a blatant refusal to accept that, in this country, the only law is that based entirely, 100%, on British law. In giving judgments contrary to British law, they show that they are not fit for purpose but are instead committed opponents of our system of justice. The wilful mistreatment of those who come to them for justice includes unacceptable levels of financial exploitation.

Lord Sheikh: Does the noble Lord appreciate that these are not sharia courts; they are sharia councils and they do not have any legal effect?

Lord Kalms: I heard all the explanations given by the noble Lord, Lord Sheikh, previously and I reject them completely. I think that the noble Lord stands for views which are totally incompatible with ours in this country.

These courts are a breeding ground for a wider application of sharia which, both historically and around parts of the country today, is not limited to questions of arbitration. Honour killings and other barbarities, including horrible mutilations, are their legacy as day follows night in the wider application of sharia beliefs.

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It should have been unnecessary, but tragically has become necessary, to pronounce, “Join us or leave us”. We are a comfortable, mature and tolerant society. Our ground rules are generous, but our human rights rules are rigorous. It is now for the majority to reject the few so that we may all enjoy all that this country has to offer.

11.45 am

Lord Blencathra (Con): My Lords, I congratulate the noble Baroness on once again raising this issue. She has campaigned ceaselessly for the rights of women who may be disadvantaged by the application of sharia law to their divorces.

When the noble Baroness, whom I now regard as a friend, asked me to participate in this debate, there were only five of us on the speakers list and I had drafted a fairly long speech. Now that we have a list of distinguished and learned Peers taking part—I shall be followed by a very learned Peer—I have decided to follow the advice of my favourite great actor, Mr Clint Eastwood, when he said as Dirty Harry:

“A man’s got to know his limitations”.

Well, I know some of mine, so I can now be brief.

When the noble Baroness raised this issue in 2012, I think that the view of the Government was that there was no real problem since women could have access to the normal civil courts as well. But the evidence that we have heard today in the examples cited by the noble Baroness shows a huge chasm between what is the technical, legal position and what seems to be happening on the ground in reality. I have also read of numerous other examples provided by the noble Baroness which all show discrimination against women who have undergone a sharia law court or council of arbitration.

It would seem to me that the fundamental principle in divorce, after consent or non-consent after a defined period, is fairness. Both parties should be treated fairly. That does not necessarily mean “equally” in terms of division of goods and finances at the end of a divorce, but “fairness” as determined by an impartial court or judge under British law.

It seems that the Home Office has now recognised that there is a problem. Paragraphs 17 and 18 of the Counter-Extremism Strategy, published this week, state:

“Many people in this country of different faiths follow religious codes and practices, and benefit from the guidance they offer. Religious communities also operate arbitration councils and boards to resolve disputes. The overriding principle is that these rules, practices and bodies must operate within the rule of law in the UK. However, there is evidence some Shari’a councils may not follow this principle and that Shari’a is being misused and applied in a way which is incompatible with the law … There is only one rule of law in our country, which provides rights and security for every citizen. We will never countenance allowing an alternative, informal system of law, informed by religious principles, to operate in competition with it”.

That last sentence is pretty powerful stuff and my question to my noble friend the Minister is: will the Government legislate if their inquiry identifies a problem? Paragraph 48 of the strategy states:

“We will therefore commission an independent review to understand the extent to which Shari’a is being misused or applied in a way which is incompatible with the law. This is expected to provide an initial report to the Home Secretary in 2016”.

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That sounds a wee bit vague. Why just an “initial” report? It is not too complicated surely to goodness; let us have a full report. And when will we have it in 2016? I would like the Minister’s assurance that if a real problem is identified in 2016, then we will have legislation in the gracious Speech of 2017.

Finally I say this, and I choose my words carefully. UK divorce law now treats both parties very fairly, but was that the case 30 years ago or 50 years ago? I think not—the noble Baroness, Lady Donaghy, touched on that same point. The law then was biased in favour of men, despite the fact that Christianity had moved on from Old Testament teachings. However, we know that Islam, perhaps not as written in the Koran but as practised by some in this country who are not learned Koranic scholars, is many years behind the modern view of turning the other cheek and loving one’s neighbour as oneself. Therefore, I cannot believe that sharia divorce law treats women fairly. Surely it is still operating in the United Kingdom timeframe of the 19th century when, under English and Scots law, women were treated as chattel with no rights. Again, if that view is wrong, then a proper inquiry can reveal the true situation.

I commend my noble friend on her Bill. It will not become law this Session but I hope that all the evidence she has produced and the comments in this debate will be taken on board by the Government so that we have government legislation in the next-but-one Session. I congratulate her, once again, on her fortitude and perseverance.

11.50 am

Lord Carlile of Berriew: My Lords, in supporting the Bill I join in with the well-deserved tributes made to the noble Baroness. The one jarring note during the debate has been the suggestion that the Bill is an attempt to demonise Islam. If it was, of course, it would be a disgraceful Bill—but it is not. The Bill is an attempt to demonise discrimination, particularly against women, and falls within a virtuous circle in which we should all wish to stand.

The isolation of women from the law is not a new phenomenon. However, the inevitable consequence of such isolation is discrimination against women. Some of that discrimination is casual and negligent, but bad enough for that. However, some of the discrimination is misogynistic, manipulative and, most of all, obsolete. We should take action to drive that kind of discrimination out of our law. The Minister would be right should he say that this proposal was superfluous. Nevertheless, I do not agree because it would emphasise the need for such discrimination to be driven out of our law. The awareness and availability of the law will be heightened by the passing of this Bill.

I said earlier that isolation of women from the law is nothing new. Indeed, as I was thinking about this Bill, I was driven to remember another Friday afternoon, albeit in 1975, when a woman from the beautiful Welsh town of Bala was brought to my chambers in Chester. She was a middle-aged woman with children. She told me when she arrived that she had never been to England before.

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Lord Sheikh: Does the noble Lord feel that it is for the community to take remedial action? This is how I feel and I would like his views on it.

Lord Carlile of Berriew: I hope the community will take immediate action but, in my view, the law needs to take action as well, and that is why we are here today.

The woman who came from Bala told me that she had never been out of Wales before—she had never been to England—and that she was suffering from violent and other abuse by her husband which was affecting her children and her home life. As I said, it was a busy Friday afternoon, and because the law was available we were able to go and see the busy judge—albeit, being a Friday, he was busy in his garden at the time. He took us into his dining room and there, because we were using the law which is available to every citizen, she was able to obtain an injunction, which had the violent husband out of the house in Bala by tea-time; she was able to secure the lives of her children; and in due course she was able to obtain all her other rights.

She had been brought by her Welsh solicitor—who, interestingly, was called Elfyn Llwyd, who later played a distinguished part in the life of this nation. She came to see me in my chambers only because one of her friends had said, “The chapel is not going to achieve anything for you. You must take advantage of what the law offers”. Of course, because legal aid was available—at least at that time—her rights were obtained through the offices of the state. As the noble Baroness, Lady Cox, has said, some women today experience exactly the same kind of discrimination that the Welshwoman from my experience suffered in 1975. We have to take steps to rectify that anomaly.

I am not against religious courts. I said earlier that I used to be in chambers full time in Chester. In Chester Cathedral there is a wonderful consistory court. It is one of the most beautiful little parts of a cathedral building that you can visit. Religious courts have their place but they are for religious matters. Mediation and arbitration have their place—increasingly so—and should be used whenever possible, but there must not be a pretence that there is a form of mediation that is better than the law that applies to every citizen.

We must not do anything or allow any measure or tribunal to diminish legal rights and dilute protection, particularly for those who have not always been able to obtain their rights in an equal way, whether those rights be physical, financial or moral. It is for those reasons that I support this excellent Bill.

11.55 am

The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, I begin as others have done, by congratulating the noble Baroness, Lady Cox, on bringing this matter for debate in the House today. I, of course, share the admiration of all noble Lords for her tenacity. I also share in the admiration for those women who have given the evidence, often at great risk to themselves, which has provided much of the momentum behind what the noble Baroness has done in drawing our attention to the problems that undoubtedly exist in society now. The Government share her support for women’s rights

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and access to justice and her concerns for the victims of domestic violence. We are fully committed to protecting the rights of all our citizens.

The noble Baroness’s Bill is driven by a concern that sharia law principles, as applied in the decisions by sharia councils in the United Kingdom, are being used as an alternative to the legal process, resulting in the unfair treatment of women, the condoning of domestic violence and other abuses, and the undermining of equal rights and protection under the law. The measures in the Bill would, however, apply to a range of arbitration and alternative dispute resolution services, including those provided by arbitration tribunals, religious councils and boards and independent family mediation services, many of which are regulated by the independent Family Mediation Standards Board. Although these bodies and services are not identical, the overriding principle is that they must operate within the rule of law in the United Kingdom, a point made by a number of noble Lords throughout the debate and particularly by my noble friend Lord Kalms.

My noble friend Lady Buscombe asked about the future of the jury system and the personal beliefs of judges who might be appointed. She and the House will be well aware that judges take an oath to apply the law, as do jurors when deciding a particular case. There is a long and worthwhile tradition of jury trial in this country and I would not seek to say at the Dispatch Box that that should be diminished.

Baroness Buscombe: I would say wholeheartedly that our jury system should not be diminished. My concern is that a growing number of people who sit on our juries do not share our beliefs in one rule of law and system of justice and equality of rights for women. They therefore may have a different view as to the outcome of cases that they preside over or sit upon.

Lord Faulks: In this country, at the moment at least, we do not have jury panels questioned by lawyers to find out what their views and prejudices are. I would be reluctant to embark on that exercise. However, I understand my noble friend’s concerns. They are matters on which opinions can reasonably differ.

There is one Muslim arbitration council, established in 2007, which operates in five English towns and cities and which applies a form of sharia law. We do not know exactly how many sharia councils or similar bodies are in operation or have the full picture of their activities and outcomes. I would like to assure the noble Baroness that the Government take the concerns raised about some of these councils very seriously and are committed to understanding more about the problems identified.

That is why, as part of the Counter-Extremism Strategy announced earlier this week, the Home Secretary has said that she intends to commission a full, independent investigation into the application of sharia law in England and Wales. I am grateful to my noble friend Lord Blencathra for reading out paragraphs 17 and 18 of that document, which show conclusively that the Government have taken on board many of the factors which have been featuring in this debate and that they intend to commission an independent report. Of course,

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the announcement was made only this week. I am acutely conscious of the tendencies referred to by the noble Lord, Lord Anderson, along with all the Chilcot-ian observations made by my noble friend Lord Blencathra about the necessity to consider widely and not simply to provide a preliminary view of these matters. On the question of legislation, I do not want to prejudge anything the inquiry may find, although certainly legislation may be an option. But that is a matter which will be considered in due course. The investigation will enhance our understanding of any ongoing misuse of sharia law and the extent of the problem where it exists.

The Government are also facilitating a range of initiatives and working with others to promote integration in our society and the equality of all women. However, the Government do have reservations as to whether the measures in this Bill are the best way forward in tackling the undoubted problems identified. But first let me make it clear that, regardless of religious belief, every citizen is equal before the law. Decisions taken as part of an alternative dispute resolution are not binding in law, save in limited circumstances in civil matters which are carried out under the Arbitration Act 1996, and which are subject to the safeguards of the Act and recourse to the courts. In addition, criminal matters and certain types of family disputes, such as those over the custody or welfare of children, cannot be arbitrated and can be decided only by the courts. Many couples choose to resolve their difficulties between themselves, sometimes with the assistance of lawyers, mediators and other third parties. People may wish to apply their religious principles to the resolution of disputes, and it is right that they have that choice. The Government are keen to promote the continued use of non-court dispute resolution services to resolve family disputes.

While we agree entirely with the noble Baroness that the necessary standards and safeguards must be in place, at the moment we do not agree that the law needs changing to facilitate this, because relevant and specific protections are already in place in common law and in existing legislation.

Lord Elton: My Lords, the concern is not that the law is in place but that it is not understood and therefore is not working. If it is not understood and known, it is no use whatever. My noble friend’s intention is to bring this to public attention. I am sure that he has this in mind, but I would like to hear that he has.

Lord Faulks: Let me reassure my noble friend that of course it is well understood that one of the main burdens of the debate has been the lack of awareness of the law. There is a rather strange legal maxim that every citizen is deemed to know the law, but that is often not the case in the sort of communities that we are concerned with. I accept entirely that increasing awareness is vital to avoid some of the difficulties which have been highlighted in this debate.

Lord Sheikh: Does my noble friend appreciate that there are certain women who obtain a decree absolute but who may not wish to remarry unless they can get a talaq? We need sharia councils so that women can approach them for a talaq.

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Lord Faulks: The Government wish people to make free choices on these matters. If someone wishes to make a choice of their own volition, it is no business of the Government to interfere with that. But we also wish to have a system where women, and men if necessary, feel free to make those choices without undue pressures of one sort or another.

Let me be a little more specific about the legislative provisions. The Equality Act 2010 prohibits discrimination on the grounds of gender. The Criminal Justice and Public Order Act 1994 prohibits the intimidation of all witnesses, including victims of domestic violence. The Arbitration Act 1996 allows parties to an arbitration to agree any system of law or rules other than the national law to be applied by the arbitral tribunal to that dispute. I ought to declare an interest as a fellow of the Chartered Institute of Arbitrators, although I have never arbitrated on the sorts of disputes which this debate has been focusing upon. Religious law considerations may be applied in the context of an arbitration only where, first, the parties have specifically agreed to the arbitral process, and secondly, where all the parties have specifically chosen to use religious law considerations. But even then the decisions of such tribunals is subject to review by the courts of England and Wales on a number of grounds. If any of the decisions or recommendations were in direct conflict with a mandatory provision of national law, the law of England and Wales must always prevail.

The Arbitration Act sets out a number of safeguards, including a duty for arbitrators to act fairly and reasonably between parties. No one should feel pressured or coerced into resolving their dispute in a particular way. Any member of any community has the right to refer to a civil court in England and Wales at any point, particularly if they feel pressured or coerced to resolve an issue or to accept a decision that is unfair or unlawful. If there has been coercion, the outcome of any mediation or arbitration cannot be enforced.

I return now to the point made by my noble friend Lord Elton. That is not to say that all our citizens have equal knowledge of access to their rights within the national law or that other measures cannot be taken to improve the situation. It is the Government’s view that the problems raised by the noble Baroness are due to a lack of awareness of rights, unequal access to the law and barriers to integration rather than a lack of protection within the current law. Integration requires changes to society, not necessarily changes to the law. The issues and barriers involved are often complex, and solving these problems is not just a job for the Government. It is also important that communities and community organisations take the lead in supporting equality and integration and help to raise expectations and awareness so that the rights of women and of all citizens are understood and protected.

Lord Cormack: I am grateful to my noble friend, who is disappointing me a little. Does he not feel that the Government have a duty to promote awareness? It is all very well saying that people should be more aware—we can all agree on that—but do not the Government have a role in this?

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Lord Faulks: Indeed, and if my noble friend will bear with me, I will come to some of the steps which have been taken by the Government to promote awareness.

The noble Baroness raised the specific issue of domestic violence. We are determined to do all we can to tackle this dreadful form of abuse and to ensure that anyone facing the threat of domestic abuse has somewhere to turn to. In the past, it has often been either ignored or given insufficient priority. We have maintained funding of £10 million for the 2015-16 period for core domestic abuse services and national helplines. We have recently invested a further £10 million to maintain a national network of refuges, and £3 million to boost the provision of domestic violence services. A new offence of coercive or controlling behaviour has been put into the Serious Crime Act 2015 to ensure that manipulative or controlling perpetrators who cause their loved ones to live in fear will face justice for their actions. The maximum sentence of five years’ imprisonment for the new offence recognises the damage that coercive or controlling behaviour can do to its victims.

The noble Baroness also highlighted the concern over religious marriages which are not legally valid in England and Wales and so do not enable parties to seek a financial settlement in the family court if the marriage breaks down. The Government are aware of this problem and are working with others to increase integration and awareness within communities. Many noble Lords will know that the Law Commission is currently undertaking a preliminary scoping study to prepare the way for potential future reform of the law concerning how and where people can get married in England and Wales. The commission is due to report on its initial findings by December of this year and the Government will then consider the next steps.

I turn now to the specific proposals included in the Bill. As to Part 1, we do not consider a change to the Equality Act 2010 so that it applies to arbitral tribunals to be necessary. Section 33 of the Arbitration Act already imposes a duty on arbitral tribunals to act fairly and impartially. Awards can be challenged in court if this duty is breached or if there is any other serious irregularity. Section 142 of the Equality Act already makes contracts unenforceable if they treat someone in a discriminatory way. That would apply to contracts as a result of mediations, including those facilitated by religious councils if they were discriminatory.

The Bill also proposes amending the public sector equality duty to create a requirement to raise awareness of the consequences of unregistered religious marriages and polygamy. We do not think that that is the best way to address this issue or that it would be appropriate to use the duty in this way. It is a deliberately broad duty and we are concerned that this breadth of application could be undermined if specific requirements of this kind were to be separately identified within it.

As to Part 2, on the proposed changes to the Arbitration Act 1996, tribunals already have a mandatory duty, to which I have referred, to act fairly and impartially. It is already the common law that criminal acts as regards child custody and welfare cannot be arbitrated.

On Part 3, on the proposed changes to the Family Law Act 1996, we believe these to be unnecessary as contracts are unenforceable if made under duress.

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A judge will not make an order based on a negotiated agreement unless he or she is satisfied that there was genuine consent.

On Part 4, on the proposed changes to the Criminal Justice and Public Order Act, Section 51 of the Act already makes intimidation or harm of those assisting an investigation—witnesses and potential witnesses—an offence, including witnesses of domestic violence. The Criminal Justice and Police Act 2001 contains similar offences which protect witnesses in civil proceedings and the intimidation of witnesses or others may also be punishable under common law offences of perverting the course of justice or contempt of court.

Finally, I turn to the proposed new crime of falsely claiming legal jurisdiction. It would require strong evidence that this is so, and a widespread and proper consultation before considering a new criminal offence and assessing whether it is genuinely necessary. There is not yet strong evidence of this. It may be that the investigation will find it.

In summary, the Government well understand the noble Baroness’s concerns and are committed to finding out more about how sharia councils are working in this country, to tackling domestic abuse and supporting the victims of abuse, and to working in partnership with communities to promote integration and increase awareness of rights and equal access to justice. We think that these initiatives are best placed to help address the serious problems and issues raised rather than for the changes to legislation proposed in this Bill.

The Government are engaged in a range of work to facilitate integration. A number of noble Lords emphasised the importance of integration, particularly the noble Baroness, Lady Flather. This includes, in 2014-15 alone, the provision of £12 million to support 30 projects and to help build strong, united communities, reaching more than 335,000 people. Over three years, £8 million has been invested to support 33,500 isolated adults to learn English. The importance of monitoring education was emphasised by the noble Lord, Lord Taverne. This is aimed particularly at Muslim women who are unable to take up all their rights due to lack of English. Since 2011, £8 million has been spent on the Near Neighbours programme and more than 994 local projects, bringing faith and ethnic groups together and benefiting more than 750,000 local people. The Government Equalities Office is also driving government and wider action to empower all women socially and economically. We are ensuring that diverse women’s voices are heard at the highest levels of government.

To conclude, the Government are not convinced that introducing the measures proposed in this Bill represents the best way forward. As a Government, we are fully committed to protecting the rights of all citizens and there is legislation in place to uphold those rights. I acknowledge the point made by the noble Lord, Lord Carlile, that there may be no harm sometimes in underlining matters, which I think is the burden of what he was submitting. The rights of all women and vulnerable groups must be promoted and protected. The Government are taking forward a number of initiatives, as I have told the House, to help facilitate this.

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In the course of the debate, there was considerable reference to culture and the danger that there can be of cultural relativism, and of being too timorous by acknowledging cultural differences to tackle what can be real discrimination. This is a matter which the Government have identified and many noble Lords may have heard what the Prime Minister said at the Conservative Party Conference about the dangers of “passive tolerance”, to use his expression. This is an important acknowledgement that for too long we have sometimes provided exaggerated respect for so-called cultural differences, notwithstanding the very real hardships that can be caused by members of the community who live under our law.

I will, I fear, sentence myself to the less attractive of the two options presented by my noble friend Lord Cormack—either to be carried shoulder high from the Chamber or to slink away ashamed at my failure to respond to the noble Baroness. However, although the Government express reservations about this Bill, they express no reservations at all about the issues and the importance of the issues that have been identified by the noble Baroness. She has done the House and the country a great service by bringing them to the attention of this House and more widely. She has contributed greatly to raising awareness. I hope she feels reassured by what I have said and by the Home Office’s response in the Counter-Extremism Strategy that we have these matters very much in mind. She deserves our congratulations and I thank her and all noble Lords for their contributions to this important debate.

12.16 pm

Baroness Cox: My Lords, I am deeply grateful to all noble Lords who have spoken and for the widespread support for this Bill from all parts of your Lordships’ House, as well as to all those who support it in another place and outside Parliament. I am aware that there are two more Second Reading debates on very important issues. Therefore, I will be brief and not respond now to every point which deserves a reply. I assure noble Lords that if any of them have criticisms, reservations or suggestions for improvement, I would be very happy to discuss them and to consider any amendments for Committee and Report that would improve the Bill in any way.

I also thank the Minister for his response. I had sincerely hoped that, in light of ever-growing evidence of cause for concern, the Government would have moved in a more sympathetic direction to consider the very modest but much-needed measures to address some of the problems which currently threaten that fundamental principle of “one law for all” and to alleviate the problems of very real gender discrimination which cause such suffering to so many women in this country in ways that would make the suffragettes turn in their graves.

I have said previously that I appreciate the Government’s initiatives, especially the proposed investigation into the operation of Sharia courts. But provisions in this Bill are in no way incompatible with such investigation: indeed, they could be helpful. Delays in implementing some of the support mechanisms for women who are suffering, in the ways the Bill proposes, will leave many women continuing to suffer without

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the help which could be made available if the Bill could become law. We are aware that it is not a total solution in any way but it is believed by many Muslim women, by organisations representing Muslim women and by organisations representing human rights that the modest proposals in the Bill would be of immense value now.

I conclude with a quotation from Caroline Norton, the legendary figure of the struggle for women’s rights in this country who predated even the suffragettes. She said that,

“women are not appealing for an exceptional law in their favour; on the contrary, they are appealing not to be made an exception from the general protection of the laws”.

Caroline Norton was campaigning, inter alia, for women’s custody rights over their children, for greater equality before courts for divorce and simply for women’s status before the law. It is disturbing that here we are having to support a similar campaign for women in our country, in our day, who are denied those rights. Those who say that we should be culturally sensitive to the practice of communities which deny these rights are seeking to turn the clock back not simply to the suffragettes but even further, to the battles fought by Caroline Norton and others of her time nearly 200 years ago.

I hope, passionately, that the very modest measures in the Bill will receive the support of the Government in due course and that, in the mean time, our demonstration today in your Lordships’ House will give some comfort to those who currently suffer in ways which should be utterly unacceptable in our democracy with our cherished commitment to the eradication of gender discrimination and the preservation of one law for all.

Bill read a second time and committed to a Committee of the Whole House.

Access to Palliative Care Bill [HL]

Access to Palliative Care Bill [HL]

Second Reading

12.20 pm

Moved by Baroness Finlay of Llandaff

That the Bill be now read a second time.

Baroness Finlay of Llandaff (CB): My Lords, I declare my interests as palliative care lead for Wales, chair of the National Council for Palliative Care and chair of the National Mental Capacity Forum.

The only certainty is that every one of us will die. Nothing else in healthcare in the UK applies to 100% of our population. About three-quarters of us will need palliative care input at some level when we are dying. The UK seems to be a good place to die. It was ranked top of 80 countries in the recent Economist Intelligence Unit report. We can be unashamedly proud of our hospices and palliative care services. I am grateful to them all for their support of my Bill.

Let me explain why my Bill is needed, what it will do and why it will not incur costs but will free up resources in the system. The Parliamentary and Health

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Service Ombudsman’s report, discussed yesterday in the excellent debate of the noble Lord, Lord Farmer, shows all too clearly that provision of palliative care in England is unacceptably patchy. The Minister spoke of our transparency, and although he cited that many report good or excellent care, he admitted that a quarter of bereaved relatives reported that end-of-life care was not good enough. The memory of that experience remains in the minds of bereaved relatives and can blight their lives, particularly if they are children.

The ombudsman reported that in its casework:

“End of life care is, sadly, a recurring and consistent theme”.

Inadequate care is not a few isolated incidents. National audits by the Royal College of Physicians and Marie Curie, and the recent House of Commons Health Committee report on end-of-life care, and many others, all say the same: many places provide excellent care but provision is patchy and varies in quality, accessibility and reliability.

In response to the report More Care, Less Pathway, the Leadership Alliance for the Care of Dying People set five priorities of care in its report One Chance to Get it Right. The Bill is a chance to finally get it right for all. It meets the recommendations that appear consistently in reports, in particular the Health Committee report, Whats Important to Me: a Review of Choice in End of Life Care, which is awaiting the Government’s response, Ambitions for Palliative Care and End of Life Care, from a wide coalition of 27 lead providers and charities, published just this month, and the ombudsman’s report. It would narrow the widening gap in hospice provision between affluent and poorer areas. It would ensure access to hospice care for those with non-cancer diagnoses.

The NHS Confederation describes the NHS as “at a cliff edge” and points out the need to transform the way that the health service provides care. David Behan, reporting on the state of health and social care in England, points to the need for more collaboration between organisations and services; to evidence that person-centred care is better for the individual and can be more economical for service providers; and that safe services require the right staff and skills mix.

We all know what to do—we have strategies, working parties and reports galore—but we are just not doing it all the time, everywhere. Why not? The demands on clinical commissioning groups are great. They are well intentioned, but drowning. They need a clear, simple template to bring up the standard of services. Importantly, patients and their families, faced with all the fears and uncertainties of discovering that this is likely to be their final illness, need and deserve the assurance that their care will be good and that they will not be abandoned or failed in their hour of need, wherever they are, whatever the time or day of the week.

In 2008 we had the End of Life Care Strategy for England and a similar national strategy in Wales that we implemented pan-Wales. Both were reinforced by the NICE guidance on what high-quality palliative care should look like, including that patients’ physical and psychological needs are safely, effectively and appropriately met at any time of the day or night, including access to medication and equipment, and

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that those whose needs may benefit from specialist palliative care are also offered it at any time of the day or night.

In Wales, we developed a funding formula for palliative care services in 2008 to correct the wide variation in availability. We developed seven-day services, with specialist advice to any healthcare professional at any time of the day or night. We set a benchmark of provision of one actual bed, or a virtual hospice-at-home bed, per 15,000 population; a standard of responding rapidly to urgent referrals; out-of-hours “just in case” boxes for medication for patients at home; a single core palliative care IT record; and staff education initiatives. I am not claiming that we are perfect, but we know that patients consistently rate their experience of care from palliative care providers in Wales as over 9.5 out of 10 across domains of dignity, being listened to, having their concerns addressed and timely care. Indeed, scores of seven out of 10 or below set an alert.

In preparing for today I sent a freedom of information request to all 209 clinical commissioning groups. One hundred and twelve gave information about the number of beds they commission. Benchmarking against Wales on a population basis, 49 have fewer dedicated palliative care beds than Wales and 66 have more. The beds are probably there already, overall. Subject to data validation, clinical commissioning groups’ spend ranged between £15 and £10,504 per patient with palliative care needs, with an average spend of £886 per patient.

Regarding levels of services commissioned, there was wide variation—a true postcode lottery. Some 78% commission 24/7 specialist palliative care advice, but what happens to patients in other areas when staff get stuck and do not know what to do? Only 29 clinical commissioning groups knew how many people they had with palliative care needs, although the Palliative Care Funding Review showed that 0.75% of the population have palliative care needs at any one time.

Narrative from the bereaved and professionals, reported in Every Moment Counts, highlights failures in co-ordinating and personalising end-of-life care, particularly pain relief. Such care is, and should be, delivered by and large by generalists, but often they lack training and confidence to open up difficult conversations, to know how to respond appropriately to distress, or to manage pain urgently.

Actions for End of Life Care set policy aims for 2014 to 2016. It is packed with words such as “promoting”, “supporting”, “facilitating partnership” and “working together”. Its aims are laudable and it would deliver better care if they were all fully implemented. But we do not live in an NHS of plenty; we hear daily of cash-strapped services, of deficits, of failing to meet priorities. There are 15 million people living with one or more long-term conditions. Their admission to hospital is often avoidable.

Cicely Saunders Institute research showed that early integrated specialist palliative care significantly improved quality of life for patients with severe respiratory disease at no additional cost. Sue Ryder’s Bedfordshire partnership provides out-of-hours support, resulting in lower emergency hospital admission rates.

Cancer patients receiving palliative care are half as likely to attend the emergency department in the last month of life. Those with pain and poor care are more

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likely to have multiple emergency department visits in the last two weeks of life. The Nuffield Trust estimates that over that last three months of life the cost of end-of-life care in a hospice is around £550 per person, compared with £4,500 per person in a hospital—an increase largely due to emergency admissions that could have been avoided.

A new palliative care service for people with severe multiple sclerosis improved pain and care-giver burden, at a total cost saving of almost £2,000 per patient over three months. Coordinate My Care, developed by the Royal Marsden, has ensured that three-quarters of those who died while on the programme did so in the place of their choice, with an average saving of more than £2,000 per person.

Let me explain what my Bill would do. It would ensure that wherever a dying person is, whatever the time of day or night, whatever day of the week, they can receive high-standard care. How would it do this? It would do so by ensuring that commissioners commission a level of service for their populations to meet need. If you are a patient with complex needs and things become difficult, you cannot access a specialist service if it is just not there. You cannot expect staff to meet your needs if they do not know what to do and have no one to ask for help. You cannot access medication at home if your needs change, if there is no local way to get that medication urgently, and if the out-of-hours provider does not carry even the basics because they will not pay £4,504 to be licensed to hold an emergency stock. If you need equipment, you cannot wait days or weeks for it. Electronic palliative care communication systems promote better co-ordinated timely care, avoiding inefficiency and duplication. They need to be everywhere. My Bill would ensure co-ordination so that help is accessible, efficient and can meet needs. It is often said that good care costs less than bad care. Sensitive attitudes and caring behaviours by staff cost nothing, but they transform the quality of the patient and family experience.

Health Education England has indicated that it would welcome this Bill to ensure core education and training everywhere. Currently, only one-fifth of trusts have mandatory training in care of the dying. And research is essential to drive forward improvements; it is not a bolt-on.

There are around 500,000 deaths a year in England. Although three-quarters of people have an expected death, the way the deaths of the other quarter are managed can be improved by lessons from palliative care being applied to ways that family members are informed and supported, and how the critically ill and rapidly dying patient is managed.

The stories of people dying at home in distress through failures of commissioning have to stop. We know what to do but we are just not always doing it. At the end of the day, no amount of nice words will make commissioners ensure that they have in place the services to meet their population’s needs.

Why legislate for this and not for other services? It is simply because everyone will die. No other area of healthcare has 100% certainty, so this will not set a precedent. This is the time to make the good care of everyone who is dying a given. I beg to move.

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12.32 pm

Baroness Hollins (CB): My Lords, I congratulate my noble friend on introducing this very important and timely Bill.

I will speak mainly about mental health and well-being for people who are terminally ill. To achieve a comfortable death, it is imperative that psychological distress is understood and attended to as well as treating any physical symptoms. Parity of esteem for physical and mental disorders was mandated in law for the first time in the Health and Social Care Act 2012 and it applies at the end of life, too. Depression, which can be defined as pervasive low mood lasting more than two weeks, is a common co-morbid condition of pain and advanced illness. A systematic review of the evidence in 2006 found that up to 80% of people with cancer experienced clinically diagnosable depression, as did up to 70% of people with chronic lung disease. A considerable proportion of such mental illness remains undiagnosed and untreated, thus pointing to the need for an integrated psychiatric service in hospice and palliative care teams. Another study published in 2014 found that out of 444 advanced cancer patients in the study, 160 patients reported moderate or severe depression, often linked to anxiety. Of these 160 people, 56% showed a significant improvement in their anxiety or depression after just one supportive palliative care consultation.

Three barriers to excellent psychiatric care at the end of life have been described by the Academy of Psychosomatic Medicine: first, the challenge of diagnosing mental disorders in the presence of serious physical illness; secondly, confusion about the threshold of clinical significance—when is distress part of a process of normal psychological adjustment and when is it pathological?—and thirdly, the commonplace but unnecessary nihilism about the potential benefit of treatment for mental disorders at the end of life.

I suggest that psychiatric teams with a specialist understanding of mental health in palliative care have a crucial role to play in the provision of truly holistic end-of-life support. Research points to stigma as a barrier to diagnosing depression. One paper reported that,

“patients were ashamed to admit to psychological symptoms of depression because of their fear about the stigma attached to it”.

Stigma leads to both a reluctance by individual patients to seek help and a reluctance by healthcare professionals even to broach the subject. It will be through effective training in communication and in diagnosing mental illness that these barriers will be broken down, and psychiatrists need to be involved in supervision and reflective practice with the multidisciplinary team.

The Oxford Handbook of Psychiatry in Palliative Medicine, published in 2009, described the multifactorial function of the psychiatrist: first, as a clinical consultant contributing to direct patient care, liaising with other palliative care clinicians and working with families; secondly, as an educator to leverage knowledge about mental health issues and teach communication skills when difficult dynamics are involved; and, thirdly, as an investigator undertaking and supervising research about what works best at the end of life.

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My noble friend’s Bill explicitly includes a clause specifying that Health Education England should ensure that health and social care providers deliver good- quality training to all healthcare professionals in four specified fields related to palliative care: pain control; communication skills; the appropriate use of the Mental Capacity Act; and how to support families and carers of people with palliative care needs. I would ask my noble friend if the Bill’s provisions adequately include a mandate for training in mental health and for the provision of specialist mental health care, and whether her intention would be to emphasise the importance of parity for mental and physical health care in guidance.

The Bill is not just about care for the dying person. The legacy of a traumatic death can have lifelong negative repercussions for those left behind. The Childhood Bereavement Network estimates that around 33,000 children under 18 are newly bereaved every year. Being open about death and allowing them to understand what is happening can reduce otherwise negative sequelae. My own research with Dr Abdelnoor found that, compared with their peers, parentally bereaved children scored an average of half a grade lower in their GCSEs. Other researchers found that bereaved children are one and a half times as likely to have a mental disorder and three times more likely to have physical health symptoms in the clinical range.

As I said in this House yesterday, access to palliative care services does not require just geographical equity but equal access for all individuals in our society. People with learning disabilities, children and individuals with severe mental illness may all need reasonable adjustments to be made to their care and treatment. My research with people with learning disabilities has shown that collaboration between services is the most effective way to ensure that they receive satisfactory palliative care. The problem is not people’s inability to communicate but our inability to understand their way of communicating. We know that in general health services, people with learning disabilities die earlier than they should and face disproportionate barriers to care. Unsurprisingly, the Confidential Inquiry into Premature Deaths of People with Learning Disabilities found problems in advance-care planning, poor adherence to the Mental Capacity Act, and carers not feeling listened to. These areas are also identified in the Bill as needing improvement in end-of-life care. If we could get it right for people with learning disabilities, we would probably get it right for everyone.

I was grateful to the Minister for his response to yesterday’s Question for Short Debate in the name of the noble Lord, Lord Farmer, and his announcement of the planned thematic review by the CQC of inequalities in end-of-life care. Such initiatives will help improve services but legislation is needed to make a significant step change in the availability of adequate palliative care services. I support the Bill wholeheartedly.

12.39 pm

Baroness Walmsley (LD): My Lords, I, too, congratulate the noble Baroness, Lady Finlay of Llandaff, on introducing this Private Member’s Bill. Its admirable

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intention is to ensure that everyone receives the best possible care when they are at their most vulnerable, usually towards the end of life.

There have been a number of reports in recent years highlighting the failings in palliative and end-of- life care. Notable themes have included: serious concerns about staff numbers and competence; poor communication between clinicians and patients, their relatives and carers; the lack of a named senior clinician accountable for end-of-life care; poor access to specialist care out of hours and at weekends; and inadequate care of patients in their own homes. In addition, we have received numerous briefings containing very disappointing statistics.

By the way, I find it very disappointing that some of these highly paid lobbyists think it is adequate to send us their briefings the evening before the debate—I often even get them on the same morning just before I come into the Chamber. It is both irritating and frustrating because they often contain really useful information that is too late to be used. Somebody is paying these people to fail to influence us.

Having got that rant over, to return to the actual statistics, there seems to be an imbalance between the percentage of the medical research budget that is spent on understanding how to improve matters for people at the end of life and the amount their deaths cost the health service. Either we need to spend more on research or spend less by giving more people what they want. As the noble Baroness, Lady Finlay, said, it does not cost more; it costs less to do it properly. Supporting families and carers to care for dying people at home—where they want to be—is far cheaper, even when a package of excellent services is provided, which I am afraid is rare. I was also concerned at the Royal College of Nursing survey, which told us that over 58% of nurses said that patients’ wishes could not be fulfilled because of a lack of time or training.

The Bill seeks to resolve many of these issues and we on these Benches support its principles and call for the wide implementation of the standards and procedures contained in it. However, we would like to discuss whether it is right to enshrine these in primary legislation rather than ensuring that they become the standard best practice everywhere. There is a danger of a legal minefield here but I am sure we will talk about that at later stages.

There is just one item missing: the Health Select Committee’s recommendation that a senior named clinician in each NHS trust is given responsibility for monitoring how end-of-life care is being delivered within their organisation. We might consider laying an amendment to that effect at the next stage of the Bill and I hope that the noble Baroness, Lady Finlay, would support that.

The Bill contains many important elements but I particularly welcome Clause 2(2)(c) and (i) and Clause 3(1)(d), which all refer to support for those who care for the patient. Clause 2(2)(c) refers to support for other health and care workers looking after the patient other than the clinicians. Clause 2(2)(i) refers to a point of contact being available at all times for those looking after patients in their own homes. Clause 3(1)(d) requires health workers to be trained in,

“ways to support families and carers”,

and to involve them in decision-making.

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I particularly support those elements of the Bill because, in a Bill which focuses mainly on the medical aspects of palliative care, it would be all too easy to forget that the patient’s well-being and the peace or otherwise of their death depends very much on the ability of those around them to be confident about what they are doing. That confidence only comes from knowing that further support is there when they need it. If that support is not there, families, and even some professionals, will reluctantly agree for patients to be taken to hospital, even when they know that this would not be their preferred place to die. By the way, this would of course also take up time in A&E and/or an acute bed unnecessarily and add to the burdens on the health service when things could have been done better in a different way. Back in the day, people used to die at home—that was the norm. Perhaps we should go back to the future.

There is some very good practice and some very poor practice. I have a friend whose mother and mother-in-law had totally different experiences at the end of life. Her mother-in-law was diagnosed with terminal cancer some years ago. She was immediately given the support of a Macmillan nurse, who identified her wishes and helped the family put them in place. She wanted to die in her own home and, because everything was planned carefully ahead and they were fully supported, this was achieved. In stark contrast, her own mother and the family had a terrible experience, which I mentioned in my speech yesterday in the debate in the name of the noble Lord, Lord Farmer, in the Moses Room. The patient had multiple conditions, the course of which, although not as simple to predict as a single disease, should have been possible to plan for. However, there was no forward planning and care was reactive—slowly. Bureaucracy, inflexibility, lack of communication, slowness of services to respond, inadequate use of modern technology and complete lack of support for the family characterised their experience. It was a complete nightmare, which I would not wish on anyone else, and I am grateful to my friend for bringing these shortcomings to the attention of the House through me.

I wish the noble Baroness well with her campaign to highlight the shortcomings in our provision of these important services and look forward to further debates on the Bill in due course.

12.46 pm

Baroness Byford (Con): My Lords, I welcome the opportunity to speak in this Second Reading debate, so ably moved by the noble Baroness, Lady Finlay, which deals with the whole question of palliative care. Looking down the list of noble Lords taking part, I am again reminded of the depth of knowledge in this House on this and so many other subjects. My contribution will reflect on current healthcare provision that I and my family received some two years ago when my husband was taken ill. Where it was due, and in fairness, I give great credit to the service that we received, but I question, as others have and will continue to do, why you get a good experience in one place and a poor one in another one.

The noble Baroness, Lady Finlay, has given us detailed proposals to improve the current position and

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to stop failures. Clause 1 sets out to ensure that health and social care providers provide appropriate support to people with palliative care needs, including,

“access to pain and symptom control … support to meet their preferences in care”,

and “information regarding their condition”. I would add to that the importance of making sure that those family members involved in caring fully understand and are kept in the loop at all times, as they are the ones coping. It is an overwhelming experience to be told there is nothing more that can be done and that the end of life is drawing near.

We were lucky enough to receive great kindness from the Leicester Royal Infirmary. Doctors and nursing staff were available to give us time to talk through our options, and when the final decision was reached, my husband decided that he would like to return home to die there rather than go into a hospice. The Macmillan nurses put in a practical plan, and it happened very quickly. Two days later, my husband came back home with all the supplies that we needed and the team of carers arranged. I know from that experience how well co-ordinated our support was, but I am also too well aware that not everyone has the same experience.

In Clause 2(2)(h), the noble Baroness, Lady Finlay, wishes to,

“enable healthcare professionals to access essential medication at all times for palliative care patients being cared for in their own homes”.

Again, I cannot state how important this is. No one should be left in dreadful pain when medicines are available to ease their discomfort. The one thing that helped us as a family to see my husband’s fight against bowel cancer was the knowledge that pain could be relieved. Surely, quality of life at the end of life, and dignity in dying, is something to which we all aspire. The Bill calls for advancing education, training and research into palliative care, which is dealt with clearly in Clauses 3(1)(a) to 3(1)(d). My earlier observations reinforce the advantages that having good clinical communications and skills benefits both the patient and those caring for them.

I could not speak yesterday, as I was attending yet another friend’s funeral. I pay tribute to the work done in our care homes and, particularly, in the hospice movement. In Leicestershire we have a long-standing hospice, LOROS, and a newer one, Rainbows, which specialises in helping families with young children. Nor would I want this opportunity to go by without thanking most sincerely the Macmillan and Marie Curie nurses for the wonderful support that we had. I add to that the important link with the district nurses, who have not yet been mentioned, but may well be later. They were available 24 hours a day and always said to me, “If in the night your husband really is in trouble, pick up that phone and ring us”. So we had someone, and I wonder how many others did.

As has been said, about 350,000 deaths are expected each year, of which about 170,000 will require specialist palliative care. Some of those are young at heart, others are young children. All should have respect in the way that we deal with them in future. In yesterday’s debate, the Minister concluded that the Government were building with reference to their wish to give more control over healthcare services. The Bill of the noble

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Baroness, Lady Finlay, gives practical ways in which improvements could be achieved, and I am very happy to support it and wish her well.

12.50 pm

Baroness Butler-Sloss (CB): My Lords, I, too, congratulate the noble Baroness, Lady Finlay, who has led a number of wonderful campaigns to try to improve healthcare in this country.

I am a vice-president of Hospiscare, which is based at the Royal Devon and Exeter in Exeter. It looks after about 1,000 patients a year in Exeter and its environs. About 42% of the patients looked after by our hospice care die at home. Although not every patient should die at home, it is impressive how well our local community volunteers, as well as nurses, are looking after the people of that area. The bed occupancy in our hospice is generally only between 10 and 15 days at the very latter end of patients’ lives, which again is a tribute to our community nurses. We have two day centres, one new, but only 19% of the cost of keeping this going comes from a grant, so I can tell you that we are all kept pretty busy trying to raise the rest of a very substantial amount of money.

The point I want to make from this is the enormous importance of community nurses, whether the district nurses which the noble Baroness, Lady Byford, mentioned or the nurses and volunteers from the local hospice. The particular point made to me by the chief executive when I asked her what I should be saying was her concern at the inequality of provision even in our area. She estimates that another 1,700 people would benefit from help by those who are trained to recognise, assess and triage palliative care needs—not necessarily coming through the hospice, but by people who actually know how to look after those people. That is lacking.

As you can imagine, our hospice, like all the other hospices in the country, as I understand it, is enormously supportive of the Bill. I would like to raise two particular points. The first is the importance of the duty to commission. That is crucial. The other, perhaps even more important, which again was raised by the noble Baroness, Lady Byford, concerns education, training and research. They come back to the work of those on the ground identifying who needs help and helping them. I wish the Bill well.

12.53 pm

Lord Davies of Stamford (Lab): My Lords, the Bill is an excellent initiative, and I congratulate the noble Baroness, Lady Finlay, on bringing it forward. I cannot imagine that anyone would object to the substantive provisions of the Bill. Some people might think that it is too prescriptive, that it overrides local initiative and clinical commissioning groups and forces everyone into the same Procrustean bed, but there will always be a trade-off between having some local autonomy in the health service and having a national health service and avoiding a postcode lottery. If we have to err—and one does always have to err in human affairs—we should err more on the side of having a national service, because that is both what the public expect

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and what the consensus in this country has believed that we have, ever since the 1946 Act and the 1944 White Paper.

One of the great problems of the NHS is the complete lack of external accountability. It is a platonic system in which the experts—or supposed experts; mostly they are no doubt genuine experts—provide for the public as a whole, the hoi polloi, what they think the public need. There is no accountability and no way in which to second-guess that. In the private sector you can of course shop around and go elsewhere, but in the public sector—in the NHS—that does not work. The experiment with GP commissioning, allowing GPs supposedly to commission secondary healthcare all over the country, never worked. We do not even have the indirect democratic accountability that we now have with the police service, with elected police commissioners setting out what should be the strategy and priorities in their own area. In those circumstances, Parliament has a very important role, and an initiative like today’s Bill is a very good idea, because we are at least accountable to the public in Parliament and it is important to make sure that we set down the sort of standards and norms that the public are entitled to believe will be applied in the health service.

There is one thing that I believe should be in the Bill—and if the Bill goes forward to its next stage, as I profoundly hope that it does, I might venture an amendment of my own along these lines—which is that in this matter of palliative care, above all, the patient must be sovereign. There must be an absolute obligation or condition, so long as the patient is conscious, to explain fully the facts of the patient’s diagnosis and prognosis and the implications of any change in treatment or proposed change in treatment, and implications of any change in venue. For example, being downgraded from an intensive care bed to a general ward or acute bed will reduce considerably the chances of a successful resuscitation, if it is to be attempted. If a patient leaves a general hospital—I totally agree with the argument put forward in favour of often doing this and in favour of a hospice in the last moments of a patient’s life—the patient will be in a facility that probably does not have certain means of life support such as dialysis or ventilation. Indeed, I once asked staff in a hospice whether it had drips for providing intravenous hydration and nutrition to their patients. They looked at me rather strangely and said that they had them but they rarely used them. The implications were fairly obvious.

If I am ever in a hospice, I shall be absolutely terrified every time I receive an injection. I shall wonder whether it is the last one and it is the moment when I am going into palliative sedation, as it is euphemistically called—I tend to call it a palliative coma—from which I shall never awake. I want to be in charge and I want to know what is going on, and so long as I have breath in my body and a mind that is working I want to be able to conduct a dialogue with my clinicians. Above all, I want to be able to choose. If a patient wishes to choose to have the full apparatus of medical science apply to maximising his or her longevity, the patient should be entitled to that. If he or she wants to choose palliative sedation along the lines of the Liverpool or some other pathway, he or she should be entitled

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to that. If he or she wants to choose the exact moment, timing and method of his or her death, with all the legal safeguards set out in the late and much lamented Bill of my noble and learned friend Lord Falconer, in my view he or she should have that—and that is a matter that remains open, to which Parliament must return. I hope that it will, in the next Parliament.

12.58 pm

Lord Ribeiro (Con): My Lords, I too thank the noble Baroness, Lady Finlay, for introducing this important Bill. I shall address Clause 3, on education and training. In the debate proposed by the noble Lord, Lord Farmer, on palliative care yesterday, we noted the many harrowing accounts of treatments delayed, patients’ wishes to die at home denied and junior doctors unable to provide timely device and treatment. As a house surgeon in 1968—a long time ago—I felt well supported, not only by my medical colleagues but by the wise ward sister who provided immediate care and support for me. It is best to remember that nurses are much closer to patients and their advice on treatment should never be ignored.

However, times have changed. We no longer work an average of 100 hours a week or are resident on call. We now require junior doctors to work shifts of an average of 48 hours a week. Continuity of care has become a big problem, and handovers of the care of patients mean that some are occasionally overlooked. This is not the sort of care terminally ill patients require. The Parliamentary and Health Service Ombudsman’s report makes the need for education and training in palliative care mandatory, yet a report in the BMJ in 2013 found that 63% of doctors felt that they required specific training in palliative care. A national audit on care of the dying found that mandatory training for doctors occurred in 19% of trusts and for nurses in 28% of trusts. Given that only 21% of the sites audited had access to face-to-face palliative care services seven days a week, it is clear that we have a long way to go, and I hope that this Bill will help to accelerate the process.

A review of the Liverpool care pathway in 2014 found that medical training in palliative care was inconsistent and often inadequate and left many junior doctors ill prepared to care for dying patients. Breaking bad news and managing dying patients are difficult to learn and often require trainees observing how more senior staff or consultants do it. Part of learning is to reject practices which lack compassion and sensitivity. I agree with the noble Baroness, Lady Finlay, that end-of-life care should be part of all medical school curricula, as it is in the Intercollegiate Surgical Curriculum Programme—ISCP—for surgical trainees. The MRCS exam tests candidates’ ability to manage patients in need of palliative care. It uses actors in examination bays to play of the role of patient and challenge candidates to manage them not just correctly but with compassion and care.

My hospital—Basildon University Hospital—employs a care pathway for terminally ill patients which has an escalating treatment plan. It is established on admission. If there is an expectation of deteriorating health, agreement is reached on whether the intensive care unit is to be used or a programme of palliative care is

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to be introduced. The end-of life pathway should be consistently applied across all trusts, and I believe that the purpose of this Bill is that that should be the case.

It is also important to remember that not all patients who enter hospices go there to die. My wife, a physiotherapist, worked in a hospice for 10 years. She saw many patients come in and go out again having had their pain controlled, their anxieties, which have been referred to, alleviated and relieved and having been helped to mobilise, if they had previously been unable to do so.

We need to shift the balance from dying in hospitals to dying in hospices and at home in the community, as the noble Baroness, Lady Byford, so clearly explained. Providing access to palliative care seven days a week, 24 hours a day, will encourage more GPs to use those services rather than relying on acute hospitals for their dying patients. In doing so, we can reduce the cost in hospital because caring for patients in hospital is expensive and most terminal patients spend an average of 30 days in the acute hospital sector, which we should seek to avoid.

1.04 pm

The Lord Bishop of Carlisle: My Lords, I declare an interest as a fairly active patron of Eden Valley Hospice in Cumbria and of Hospice at Home Carlisle and North Lakeland. They work together to provide outstanding end-of-life care for people in the community as well as for those in a hospice bed. Like so many others, I am also most grateful to the noble Baroness, Lady Finlay, for initiating this significant Bill.

Reflecting on the now defunct Liverpool care pathway, several medical practitioners of my acquaintance suggested that the real problems lay not in the principle behind it, which was essentially a good one, but in the lack of training given to staff who used it and in the sometimes inadequate way they communicated what was going on, especially to relatives.

Interestingly, training and communication are two of the issues that emerge most clearly from the plethora of recent documents on palliative care, including the ombudsman’s report and those briefings from charities that most of us will have received, however belatedly. They are also two of the issues that are addressed head-on by the Access to Palliative Care Bill, and they have already been mentioned several times today by your Lordships. That is why I want to make training and communication the focus of my brief remarks today.

First, I shall address training. Like end-of-life care itself, as the noble Baroness, Lady Finlay, mentioned in her introduction, and as the noble Lord, Lord Ribeiro, has just explained, the training offered to generalists in this whole area is distinctly patchy. In some trusts it is excellent: indeed, one of the main tasks of a consultant friend of mine who is an end-of-life lead is to educate the whole workforce in her huge hospital. That includes training in electronic care planning and advanced decisions. In other trusts it is not so good and, as a recent article in the Nursing Standard pointed out, a lack of training can be exacerbated by staffing shortages and the stress that results. No wonder the chief executive of Marie Curie says that,

“the government must make training in care of the dying for all health and social care professionals a priority”.

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This is addressed in Clause 3 of the Bill.

I should also mention in this context the importance of providing training for prison staff that addresses the particular needs of prisoners and their families. In yesterday’s debate on palliative care, my right reverend friend the Bishop of Rochester indicated that there is some very good practice on this in prison but, as in the wider population, it is inconsistent. With an ageing prison population, it is important to recognise that prison staff and prisoners need some basic understanding of palliative care needs. It would be helpful if this ultimately could be mentioned in the Bill.

I turn to communication. This applies in part to communication across trusts and between members of multidisciplinary teams. Without good communication and close collaboration, people can easily miss out on good end-of-life care plans and specialist support. But it also applies to communication with patients and with their families, which, as the ombudsman’s report makes clear, is sometimes woefully inadequate. The importance of this sort of communication is highlighted by the House of Commons Health Select Committee report, which makes it the second priority of care and indicates that there is occasionally a reluctance on the part of healthcare professionals to talk about end-of-life issues. There is of course an overlap here with training. It is vital that staff should be able to recognise and acknowledge the spiritual dimension of palliative care. In yesterday’s debate I referred to the close link between spirituality and compassion.

Then there is the crucial matter of communication with, and care for, children and adolescents at the end either of their own lives or of the lives of their parents and friends. Palliative care for children has often been neglected in the past, and some major children’s hospitals still have no palliative care team. There is much more that can and no doubt will be said on this very important subject.

I am very glad to give this valuable Bill my warmest support and that of the Church of England. A relatively small initial financial investment, combined with more effective use of existing resources, could make a huge difference to the cost, consistency and overall quality of the care that one day every one of us will need.

1.09 pm

Lord Mackay of Clashfern (Con): My Lords, in this country we have a very high level of skill in palliative care as a specialty in medicine, which I think is unique in the world. However, as the noble Baroness, Lady Finlay, said in opening this debate, the question is how to get that care to the people who need it, because they are spread across the country. The noble Baroness, whom I congratulate on bringing the Bill forward, knows much more than I do about the practical steps that are required to bring that about. The Bill gives a good level of practical scope to achieving what we want to achieve: that patients everywhere, as they approach the certainty of death, will have proper palliative care. Of course, sometimes one of the difficulties is knowing how long care may have to last. As we know from other studies, it is quite difficult to predict when death will happen, unless you bring it about artificially in some way. Therefore,

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sometimes the strains of palliative care have to go on for much longer than might have been anticipated at the beginning.