MOTION MOVED ON CONSIDERATION OF COMMONS AMENDMENT No. 377

HL Deb 24 July 2000 vol 616 cc100-30

377A Baroness Young rose to move, as an amendment to the Motion that the House do agree with the Commons in their amendment, leave out "agree" and insert "disagree".

The noble Baroness said: My Lords, I beg to move Amendment No. 377A and wish to speak also to Amendments Nos. 378A, 388A, 389A, 474A, 474B and 482A, which are consequential.

In rising to speak this evening, I am conscious that we are going over well-trodden ground. In moving my amendment, perhaps I may start by saying that, when the House of Lords accepted it last February, it did so with a further amendment which added another safeguard against bullying.

At this late stage I do not want to do more than touch on what I see as the salient points in this great debate. I can assure the noble Lord, Lord Whitty, that I shall deal with the facts of the situation because I believe that the facts of the situation speak for themselves. I hope that anyone who is minded to speak in support of the repeal of Section 28 has looked at the facts and has looked at the material being placed in front of children up and down the country, as we speak now, before deciding that it can be repealed with impunity.

First, Section 28 came about because parents were worried about what their children were being taught in schools—in some cases, in primary schools. They were equally concerned at the type of material that was being put in front of their children. The movers for Section 28 were parents and they remain at the centre of the debate. The response of the then government of the day was Section 28. Perhaps I may say that I have been most moved at the support that I have received for keeping Section 28 from all parts of your Lordships' House and from representatives of all the great religions: Christians, Jews, Muslims, Hindus and Sikhs; the issue crosses them all.

What does Section 28 permit? It permits facts about homosexuality to be discussed in the classroom; it allows the counselling of pupils; it allows local authorities to provide services to homosexuals; and, importantly, under Section 2A(2) local authorities have a duty to promote public health. Therefore Section 28 cannot stop money going towards helping HIV patients or those who suffer from sexually transmitted diseases. Those are not my words; they come from the accompanying memorandum to the Local Government Act 1988.

As for bullying, I believe, as I am sure we all do, that all bullying is wrong, whatever the cause. By law, every school must have a policy on it under Section 61(4) of the School Standards and Framework Act 1998. We know that Chris Woodhead, the Chief Inspector of Schools, has gone on record as saying that in the course of his many inspections he has not come across any evidence of bullying as a result of Section 28.

Therefore, what does Section 28 prevent? It prohibits local authorities from promoting—the verb is important—homosexuality over a range of services in schools, children's homes, youth groups, government training courses, in-service courses for teachers and publications. That, again, we know from the evidence of what is currently happening in local government today.

As the noble Lord, Lord Whitty, referred to it, since we last debated this matter we have passed the Learning and Skills Bill. The House carried amendments to that Bill last Tuesday and, although they are not as strong as I should have wished, I welcome them and the guidance that accompanies them. However, we must all remember that the guidance has no force of law. Section 28 does.

However, as my noble friend Lady Blatch has already pointed out, the amendments to the Learning and Skills Bill concern only sex education in schools. They will not protect children who are in youth groups, in children's homes or in any of the other circumstances that I have just enumerated. It is simply not true to say, as did the noble Lord, Lord Whitty, that they have no effect. They do have an effect. Section 28 is important, and we need both that section and the Learning and Skills Bill amendments as carried. Section 28 has worked well in practice. As your Lordships can imagine, it is unusual for me to quote Peter Tatchell in a debate such as this. However, he has gone on record as saying that he knows of at least 36 cases of self-censorship by local authorities.

I know from our previous debates on this matter that some of your Lordships are greatly concerned about the issue of human rights. I have taken legal advice on that from Heather Swindells, QC, one of the leading experts on family law and the European convention. She has argued clearly that Section 28 is fully consistent with the convention. Should any noble Lord wish it, I should be happy to read in full what she said on that point, but I feel somehow that the House would prefer me simply to accept that her advice is quite clear.

Finally, we must ask ourselves what would happen if Section 28 were repealed, because that is what the debate is about tonight. First, of course, we know that repeal is deeply unpopular with the British public. During my long years in public life, I have never known an issue that has touched so many people so immediately and so deeply. I am not talking only about the 5,000 letters that I have received from consultants, doctors, social workers, teachers, parents, grandparents, young people and old people from one end of the United Kingdom to another. In Scotland, that very brave man, Mr Brian Souter, conducted a poll in which he attracted a million votes in support of keeping Section 28 in Scotland. I have not the slightest doubt that, were there to be a referendum in England, Wales and Northern Ireland, it would show the same figures. The turnout in the referendum in Scotland was greater than that in the English local government elections or the European elections.

I am pleased to see that since the issue has come before our notice, Kent County Council has said that it will pass its own legislation should Section 28 be repealed. I understand that Surrey County Council may follow suit. Were the section to be repealed, I hope that other local authorities would do the same.

The truth is that, if Section 28 is repealed, there will be no safeguards to stop local authorities promoting homosexuality outside education, in youth groups, children's homes, social services, in-service training, courses for teachers and governors and other areas. Within education, the safeguards will apply only narrowly to sex education, not to any other subject in the curriculum. It will be perfectly legal for a local authority to promote homosexuality in English lessons. A book published by the Open University explains how. It is entitled Lesbian and Gay Issues in the English Classroom and sets out six lessons for us to follow. It will be legal to promote gay rights in citizenship lessons, which, I understand, are shortly to become compulsory.

A book produced by Camden and Islington NHS trusts tells teachers how to get round the law on promoting homosexuality in other subjects, such as English and History. Parents have no right to withdraw their children from lessons in those other subjects. The Islington and Camden book says: It is possible to include many of these issues"— that is gay and lesbian issues— within the national curriculum areas, which means that pupils would not be withdrawn by their parents. The requirement for a sex education curriculum resulting from the 1993 Education Act allows parents to only withdraw their children from any part of the school's agreed sex education curriculum". So we know what they think about it.

The repeal of Section 28 would send out a clear message and a signal to local authorities to promote homosexuality. Almost within the past week we have seen one example of that in the material produced by Bristol City Council, which has worked closely with Avon health authority. The council has announced that it will step up funding for the project, which was so closely involved with producing the appalling material, which we had on exhibition in February, called Beyond a Phase, a teacher's handbook and video intended for children aged 13 and above. Many of your Lordships will have seen both in the exhibition that I held last February. On the video, one of the young people suggests that children should try experimenting with other boys and girls and see who you feel most comfortable with". What a message to put in front of children as young as 13. Those are facts, not something that I have invented. The material is available for anybody to see.

The noble Lord, Lord Whitty, talked about the human rights of adults. I have argued consistently throughout the debate that what adults choose to do in private is a matter for them. It is certainly not a matter for me and not one on which I wish to comment. However, what we put in front of children is a matter for us all. I shall fight for the protection of children while I have breath in my body. It matters far too much. Those under 16 are children in law. They are being subjected to some appalling material. People do not need to take my word for that. They should look for themselves and make an individual judgment. One thing that I know for certain is that the overwhelming majority of parents do not want that kind of teaching in our schools. Neither do they want such material to be paid for by taxpayers and council tax payers—by us all.

I conclude with a final constitutional point. I am pleased to see the noble Baroness, Lady Jay, in her place. She has said on more than one occasion that the new House is more legitimate. We are perfectly entitled to take a view on this matter. I am certain that, were we to vote to keep Section 28, the House of Lords would be speaking once again for the overwhelming majority of the British people. I beg to move.

Moved, That Amendment No. 377A, as an amendment to Commons Amendment No. 377, be agreed to.—(Baroness Young.)

Earl Russell

My Lords, we have debated this subject a good many times before. Since 1994, the noble Baroness, Lady Young, has had an innings of a length worthy of Don Bradman. I congratulate her on it, but I doubt whether half a dozen votes in the House have shifted as a result of the debate. That is sad, but I believe it to be the case. Sooner or later, we probably should reach the point at which the debate has to stop. If the House prefers, we could continue it for the rest of our natural lives, but I doubt that that is what most of us wish.

Were the noble Baroness, Lady Young, to be victorious tonight, that would not be the end of the matter. Your Lordships have heard from the Minister the voice of principle and commitment. We have heard that from the Government right through. I am sure that the House agrees that I am not a distinguished member of the Prime Minister's fan club, but on this issue we have heard from him substance, not spin; principle, not the pursuit of advantage. I congratulate him on that. If the noble Baroness were to be victorious, the issue would come back, whether in this Bill or in another, whether the day after tomorrow or next year.

The other reason why I believe that the issue is certain to come back even if the noble Baroness is victorious tonight is that there is a difference between age groups. The noble Baroness has conceded the point before. She accused me of suggesting that she was over the hill, but if she is, so am I. We are both in the over-60 group.

Baroness Young

My Lords, I am flattered to be bracketed with the noble Earl, Lord Russell. We should both be careful, because I gather that there is a new directive ruling out discrimination on the grounds of age.

Earl Russell

My Lords, if the noble Baroness had waited just a moment, she would have heard my point, which is not a discriminatory one. When a cause is more popular among the young than the old, the proportion of opinions necessarily shifts over the decades, even if nobody changes their mind. According to the 1998 British social attitudes survey, almost two-thirds of people aged 65 and over thought that sexual relations between two adults of the same sex were always wrong. That is compared with less than one-fifth of the people aged 18 to 24.

I claim no superiority for any age group over any other. But, in putting forward any law, one should consider its impact on the group that it is most likely to affect. In that group, the noble Baroness's horse is already stolen. The lock on the stable door is too late.

Before sitting down, I ask her to consider just a little whether there is any limit at all on the powers of a majority in a democracy. I do not necessarily claim that I speak for the majority. But that figure in relation to the over-65s may indicate why she believes as she does. I am not so sure.

I take two cases with which I hope the noble Baroness will agree. First, if the majority wants to stop somebody who believes it is right to write graffiti on other people's houses, that the majority is eminently entitled to do. But let us suppose that we had a majority—and in a couple of decades, we easily might—of people who disbelieve in and dislike religion. It would not be right for them to use the school system to teach people that religion is wrong, even if they had the majority behind them. I hope that the noble Baroness will agree with that proposition. If she does, she admits that there is a sliding scale from things the majority may do to things it must not do, with things it perhaps should not do in between.

The purpose of government by the majority is to secure consent. As soon as you set out to label a group of people inferior, you destroy the reasons why they should consent. That is unwise.

7 p.m.

The Lord Bishop of Winchester

My Lords, if you could question all of us who sit on these Benches, whether present or absent today, you would find us in agreement on at least four important points in relation to the matters before us in these amendments, even though we may not all be found in the same Lobby when the matter comes to a vote.

First, as last Tuesday evening showed, we are gladly and firmly convinced of the priority of marriage within sex and relationships education in schools. I regret that I could not be present to participate last Tuesday in expressing that conviction. Had I been here and had the opportunity to speak, I should have asked when the Government intend to reissue the guidance produced earlier this month, updated in accordance with their support for the amendment tabled by the right reverend Prelate the Bishop of Blackburn. As they consider how best to do so, I hope that they will find helpful some of the suggestions that I and others made for strengthening the draft guidance in respect of an appropriate emphasis on marriage when we spoke in your Lordships' House on 23rd March of this year.

We are equally united in the conviction that victimisation, ill-treatment, stigmatisation and verbal or physical violence of any sort are as wrong against individuals of any age who are or who are thought to be homosexual as they are against anyone else. I am confident that we are all also sensitive to the responsibility that lies upon anyone who speaks publicly about these matters, to guard, as far as possible, against their words encouraging or being thought to justify such behaviour and such victimisation or bullying.

And we should be found united too in supporting the provision, everywhere in this country, of appropriate counselling, personal health education and medical care for those who are, or wonder whether they may be, homosexual.

Where, perhaps, we may be found to come to differing judgments on this section, which has regrettably gained such symbolic importance, is in our determining priorities between those shared convictions and in their application; in our view as to which course will promote the greater good, the more consistent welfare and the health of this society now and for many years to come; and in the ways in which we balance what may, in those matters, be the competing needs, even the competing rights, of society on the one hand and of a small minority of individuals on the other; in our preparedness or not to face charges of discrimination, arguing that that particular discrimination is justified if we do not treat identically and equally what used to be called "estates", and, therefore, individuals who participate in them.

My own judgment of those matters still leads me to argue against, and to vote against, the Government's amendments. It seems important at this point, in the light of something which I believe I heard the noble Earl, Lord Russell, say just now, to say that there are principles and commitments on more than one side of this discussion.

It is important to note too what a peculiarity it is of our society and of others like it in today's world, let alone down the centuries, that it should be thought that age must, in every respect, give way to youth in matters especially of ethics and moral behaviour.

Of course I recognise that the wording of Section 2A leaves something to be desired. I recognise too that in the relevant clauses of the Learning and Skills Bill, the Government, significantly assisted by Archbishop Vincent Nichols and by the right reverend Prelate the Bishop of Blackburn, have attempted to replicate as many of the requirements of Section 28 on those now responsible for schools as the Government consider desirable. But I believe that our schools are not all that we should be concerned about in this debate, a point well made just now by the noble Baroness, Lady Young. Yet it was to schools alone, and almost entirely alone, that the Minister referred as he opened this debate.

It seems to me that it needs saying that the reality is that local authorities—and rightly—continue to have responsibility for PSHE training and advisory service and for libraries. In the provision of both, they will be the first line of decision making as to what constitutes the appropriate teaching and materials required by the DfEE's sex and relationship education guidance. Very significantly in that context, local authorities have extremely important responsibilities for a range of services for children, young people and young adults outside schools.

They also provide, in collaboration with health authorities and trusts, health education or promotion services for young people and young adults. I regret that I have not found the time to develop with others an amendment analogous to that in the Learning and Skills Bill proposed by the Government and accepted both in the other place and in this which would have the effect of bringing those authorities and trusts within the scope of Section 2A. And local authorities have the power to distribute public money to a great range of causes, events and voluntary organisations.

In all those, I believe that there are today delicate, difficult distinctions to be drawn between the properly publicly-funded provision of education, support and care and health promotion and protection for homosexual people on the one hand and, on the other—and I quote the Chief Rabbi, who referred to, the promotion of a homosexual lifestyle as morally equivalent to marriage". For those whose responsibility it is to draw those distinctions in decisions about the use of public funds, I continue to believe that Section 28 continues to provide what my friend the right reverend Prelate the Bishop of Lichfield described in a debate here earlier this year as "a stabilising benchmark".

So, if we are concerned for the welfare and stability, the health in those senses of this society—health which is substantially critically dependent on our continuing to honour and sustain the estate of marriage in public policy—then I judge that we shall be most unwise to agree to the removal of that section. And so I shall join those who vote for its reinsertion in the Bill.

Lord Alli

My Lords, last week this House came to a consensus that was both principled and inclusive. In my view, it paved the way for the repeal of Section 28 by removing many of the hurdles, some legitimate, that had been in its path. I am sure that I speak for many noble Lords when I praise the right reverend Prelate the Bishop of Blackburn who worked so hard to find a way for this House to come to a settlement. He cannot be in his place today but I thank him anyway.

Tonight we have a chance to build on that consensus, a chance to repeal Section 28, safe in the knowledge that there is now clear guidance on sex education and clarity about the responsibilities of head teachers, governors and parents in agreeing what is taught in our schools. We can be secure in the knowledge that marriage and family life are at the heart of sex education in schools. For, like the majority in this House, I believe that marriage and family life are a cornerstone of our society, but in saying that I do not intend to denigrate other people's relationships or my own. Society is about living with other people based on our common bonds and not negatively exploiting our differences.

I want to focus on our common bonds. I do not want to be painted by the opponents of the repeal as a champion of the gay rights movement. I do not want to be blamed for material that I find as offensive as do many other noble Lords and that should never find its way into the hands of our children. Instead I want to play my part in securing a consensus in this House. In my belief, that consensus is best served by building on last week's vote with the repeal of Section 28.

I have re-read the debates on this subject and I have found myself asking the question: what purpose does this piece of legislation actually serve now? Since the section was introduced 12 years ago, it has never been used against a single local authority. Noble Lords must question why a piece of legislation that sits on the statute book has never been used, particularly given the alleged mountain of material that others would have one believe is making its way into our schools.

So, it must have a symbolic power for those who believe that homosexuality is wrong, just as it does for those of us who believe that the rights and dignity of the individual should be protected. Tonight I want to examine and to refute the main arguments that underpin the case against repealing Section 28, which seem to break down into three broad categories: first, that without Section 28 our schools will be flooded with gay propaganda produced by local authorities; secondly, that without Section 28 one must be in favour of promoting homosexuality to children; and, thirdly, that homosexuals are sinners with whom we should have nothing to do.

First, let me deal with unsuitable sex education material. A number of speakers have highlighted publications produced by health authorities and trusts. At Second Reading and again today, the noble Baroness, Lady Young, expressed concerns about material from Avon, Camden & Islington, Lambeth, Southwark and Lewisham. Much of that material was never intended for schools but, in any event, parents, head teachers and teachers have responsibility for what is in our schools and not the local authorities. Last week we agreed that the choice and responsibility for sex education policy, quite rightly, lie with schools themselves, with their head teachers, governors and parents. That is how it should be.

Baroness Match

My Lords, I am grateful to the noble Lord for giving way. Does he agree that that obligation does not rest with youth club leaders nor with people in children's homes?

7.15 p.m.

Lord Alli

My Lords, I accept much of that criticism. However, under the law, parents have the right to withdraw their children if they disapprove of sex education lessons in schools. This argument, especially the argument of the noble Baroness, really falls down when one considers that Section 28 does not apply to independent schools. No one has suggested that those schools have been flooded by gay propaganda.

The second broad argument is basically that if you want to repeal Section 28 you must be in favour of promoting homosexuality to children, otherwise why not leave it on the statute book? As the noble Lady, Lady Saltoun of Abernethy, put it: The repeal of Section 28 will remove the small amount of protection which it has provided for the past 11 years against the manipulation of even quite young children against their parents' wishes by a small but vociferous and determined minority". But, I say again, under the new guidelines this cannot happen. The policy on sex education in schools is determined by head teachers, parents and governors and delivered by individual teachers. No Member of this House has alleged that any teacher has been promoting homosexuality. If they have been doing so, they should say so now. I am sure that the Minister of State for Education would investigate such claims.

Lady Saltoun of Abernethy

My Lords, the reason that no teachers have been caught promoting homosexuality is precisely that Section 28 is on the statute book.

Lord Alli

My Lords, I do not accept that. To discuss is not to promote. When children ask questions about sexuality they need and deserve an honest answer, if only to prevent bullying in the playground. Sometimes knowledge is their only protection in an ugly world. No one suggests that knowledge of racism makes a person black and no one suggests that knowledge of anti-Semitism makes a person Jewish, so how can knowledge of homosexuality make a person a homosexual? That argument defies logic and evidence. Research shows that straight people cannot be "converted" into gay people. It is hard enough to teach children to read and write let alone to attempt to change their very nature.

The third main argument is that homosexuality is morally wrong; to quote the noble Duke, the Duke of Norfolk, it is "unnatural". I know that these are honestly and deeply held opinions, but surely they are not a basis for our legislation.

The right reverend Prelate the Bishop of Guildford was right when he said: Irrespective of the judgements we make about people's personal lifestyles and choices, the law has a duty to refer to all citizens with the respect required by their God-given dignity". A noble part of the heritage of this House has been its willingness to scrutinise and improve legislation and to ask the questions that have not been raised in another place. We have fulfilled that task. Equally noble has been the ability of this House to reach conclusions that are consensual and inclusive. We have fulfilled that task too. There are procedures and guidelines in place to teach, to guide and to protect children. There is no longer a legal need for Section 28. It is a redundant piece of legislation.

Lord Campbell of Alloway

My Lords, I apologise for intervening. Does the noble Lord accept that the guidelines are wholly unenforceable? Does he accept that Section 403(1)(a) of the Education Act 1996, as amended, is wholly unenforceable to secure compliance? The noble Lord has referred twice to the guidelines.

Lord Alli

My Lords, I do not accept that at all. I hope when the Minister replies that he will certainly affirm that that is not the case.

This is a Bill about local authorities; it is not an education Bill. As every Member of the House knows, we have had that debate. Tonight we have real choices to make about what kind of House this is. Having achieved our aims, do we continue to wreck this legislation or, having concluded our constitutional duty, do we allow the repeal of Section 28 to proceed? We have agreed that marriage and family life are cornerstones of our society. Let us now put away the dogma. Our objectives have been achieved. Let us now extend to others the tolerance and understanding that we try to give to each other in this House. Let us now agree that the time for Section 28 is past. Let us remove from our statute book a piece of gesture politics. I ask your Lordships to vote for the repeal of Section 28, but if noble Lords cannot do so, I ask them to abstain.

Lord Moran

My Lords, I intend to be brief because I gave my views on this question on 7th February when we last debated the matter. I want to make just one point in relation to the essential issue on which we shall be voting tonight.

The marginal note on the Marshalled List of Commons Amendments on page 36 describes Amendment No. 378 as, Repeal of prohibition on promotion of homosexuality". Section 2A of the 1986 Act says, A local authority shall not … intentionally promote homosexuality or publish material with the intention of promoting homosexuality". We are not discussing services, which the Minister spoke of at some length; we are discussing the intentional promotion of homosexuality. When we come to vote tonight the issue will be whether or not we consider it right, appropriate and sensible for a local authority to promote homosexuality in its work. If we do, then it is right and reasonable that we vote for the government amendments. If we do not, then we should vote for the amendment of the noble Baroness, Lady Young. That is the simple issue and nothing else stands up against it.

Lord Mishcon

My Lords, it is a shame that the debate on a great issue for the people of our country should be divided politically; it should never have been allowed. This issue should have been freely discussed between responsible Members of this ancient House without the burden of a Whip on one's shoulder.

Having said that, perhaps I can share a bit of history with noble Lords. It was way back in 1954 when I was invited by the then Home Secretary—I was then chairman of the London County Council—to sit on the Wolfenden Committee, which was set up to consider and make recommendations on the law and practice relating to homosexual acts. At that stage people were liable to imprisonment, and indeed suffered imprisonment even though they were committing homosexual acts as between consenting adults in private.

I am the only surviving member of that committee and will not guess what our recommendation might have been today. All I know is that, against the injustices that such criminality resulted in, such as blackmail and the invasion of criminal law into the home, I and other members of that committee—there was only one dissentient—recommended that homosexual acts between consenting adults in private should no longer be a part of the criminal law but should be a matter of moral law. It was a long time before that victory was achieved by a provision being placed on the statute book. We reported in 1957. There was a Conservative government and a bit of a Labour government before the 10 years elapsed. We were unable to persuade politicians of all parties that the cancellation of that injustice should be registered on the statute book. In 1967–10 years later—it was achieved in the Sexual Offences Act.

That was followed by the gratitude of the homosexual community, who accepted that victory as being a victory for justice and decency. What happened afterwards was an awful pity. Some local authorities acted in a completely irresponsible way—I could use stronger words, but I will not—and a minority of the homosexual community decided (and I regret it) to be quite aggressive in regard to homosexuality itself. As I said, I shall not state the opinion of those who are no longer with us. But knowing of the discussions that we had, I believe that members of that Wolfenden Committee, who sat and deliberated for three years, would have discouraged that attitude. Whether or not they would have recommended that we deal with the issue by legislation and by direction to local authorities is another matter into which I shall not enter at this stage. It was dealt with by legislation and we have got that legislation.

The extraordinary thing is—this is why I talked of it being a shame to deal with this matter politically—that if I were to address every single Member of this House and ask the question, "Do you think local authorities ought to promote homosexuality?", I would receive the answer from all sides, "No, not promote". And if the amendment had been tabled for which I pleaded on a previous occasion, which said, after "prohibition promoting", "but local authorities should, in all their actions, preach tolerance towards others who are not quite as we are", such an amendment may well have been approved by this House. But, as a previous speaker said, the amendment in front of us makes it extremely difficult for those who feel as I do to vote, as I would always want to do if in conscience I could, for my own Government.

What are we asked to approve by way of a Commons amendment? Anyone referred to our statute book will not be referred to the Learning and Skills Act, as it will become, even if that is relevant—I believe it is. There is no reference to that. Generations to come will not know of your Lordships' speeches in this House, even if generations present know what we say in this House in this debate. They will see in the Bill, when it becomes an Act, the words, Insert … (Section 2A of the Local Government Act 1986 (prohibition promoting homosexuality by teaching"— we were told that teaching had nothing to do with this and never did have— or by publishing material) ceases to have effect)". You do not have to be skilled in the law; you can read this wording as an ordinary layman. Let us take the usual gentleman who inhabits the top of the Clapham bus. He is told here that all this business about prohibition on "promoting homosexuality" ceases to have effect. The amendment refers to "Repeal of prohibition" in the rubric, but puts nothing in its place. As I sit down, I repeat: what a shame that this was not a discussion instead of being a political debate. All that we can do is to make the best of things that we can, knowing that we are voting in honesty. I do not think that, in honesty, I can vote for what this amendment says; indeed, it says, "Look at me! I am saying that it is repealed; it is to have no effect—and that includes teaching". That cannot be right.

7.30 p.m.

Lord Hooson

My Lords, I agree with the noble Lord, Lord Mishcon, that it is a great pity that this is a political debate. As my colleagues on these Benches know, I thoroughly disapprove of the fact that there is a three-line Whip on a matter that should be discussed quite apart from political pressures. I agree with my noble friend Lord Russell that if the amendment of the noble Baroness, Lady Young, is passed this evening, it will not be the end of the matter; but neither will it be the end of the matter if her amendment is defeated. The truth is that we have got ourselves into a situation where we are called upon to exercise our wisdom.

Surely it is possible to analyse the real problem. It is a problem that concerns a very small minority. It is not homosexuals; it is not heterosexuals: it is the zealots on either side, who are very difficult to deal with. If the Government were wise, they would look for a means to solve the problem which I believe is provided by the amendment tabled in the name of the noble and learned Lord, Lord Brightman. I have attached my name to it because I thoroughly approve of it. Indeed, this amendment was tabled at a much earlier stage.

Let us look at the conceived or the perceived evil of Section 28, as far as concerns the homosexual community. Section 28 is the exclusive concern of the zealots of homosexuality. However, we all know that there are also zealots who advocate early sex and experimentation on a heterosexual basis. Therefore, why should we distinguish between the two? If we look at the proposed amendment of the noble and learned Lord, Lord Brightman, we see that, instead of Section 28 being totally repealed, it is amended so as to include the words: Subject to the general principle that the institution of marriage is to be supported, a local authority shall not encourage, or publish material intended to encourage, the adoption of any particular sexual life style". Subsection (3) of the amendment goes on to state: This section does not prohibit the provision for young persons of sex education or counselling services on sexual behaviour and associated health risks". Therefore, it gets rid of the problem of the insult—as it is regarded—to the homosexual community. It applies the prohibition to both the heterosexual and the homosexual communities. If these words had been included in the original Section 28, it would have afforded all the protection for which the noble Baroness, Lady Young, and others, are looking. If that is the protection required, why on earth do not the Government take themselves, as well as everyone else, off the hook on this matter?

We are dealing with a difficult subject. Here I disagree with my noble friend Lord Russell. It is not a question of youth against age. A few young people may be more anxious to promote homosexuality, but this is an area where the older generation can provide some wisdom and guidance. Surely that is what we are looking for in this regard. That is why I believe that this House should look most carefully at the amendment proposed by the noble and learned Lord, Lord Brightman.

Baroness Massey of Darwen

My Lords, in opposing the amendments that support the retention of Section 28, I wish to put forward two simple arguments: first, that Section 28 is now redundant and unnecessary; and, secondly, that it is open to misinterpretation, thereby, giving permission for stigma and prejudice.

Section 28 is redundant because the concerns that it was designed to satisfy are now amply covered by legislation, such as the Education Act 1996, and new guidance on sex and relationship education about which we heard tonight. There is ample evidence to show that parents and young people want sex and relationship education. They want to learn the skills and information for improving relationships and sexual health.

In response to those concerns and those of professionals who have worked with young people, several recent sets of guidelines have been issued, one of which is the sex and relationship guidance. For many years, in law, schools have been required to have a policy on sex education, which must be available to all parents every year. Of course, Section 28 does not apply to schools, although many people believe that it does. Governing bodies are responsible in law for sex education, and one-third of their number are parents.

The new guidance specifies what should be in the policy. It should cover: how the education should be delivered and by whom; how it is monitored; and what parents should do if they wish to withdraw their children. It also talks about evaluation. In addition, there are special sections on materials and their appropriateness, on teaching strategies, and on issues such as the importance of teaching appropriate to Asian culture, as well as the importance of involving boys and parents. Moreover, paragraph 6.6 applies to youth workers.

The guidance builds on the framework of personal, social health education, which was set out last year. This will be inspected by Ofsted from this year, wherever it appears in the curriculum. It is not a single subject; indeed, health education could never be a single subject. All this surely provides a totally adequate framework to protect young people from inappropriate teaching, if any such teaching existed. The Care Standards Act contains much that will prevent young people being abused. Most importantly, such guidance is also concerned to stress the responsibility of family life in sex and relationship education.

We must all surely be concerned about the threat of AIDS, about teenage pregnancies and about young people forming good relationships. Continued confusion about Section 28 is not conducive to encouraging professionals who work not only in schools but in prisons, the youth service, the police and so on. Parents, concerned about their children's health and well-being, have said by a huge majority (2:1) that they want Section 28 to be removed. I do not believe that professionals who work with young people are evil and trying to corrupt young minds. All those I know of are without exception caring and careful. They do not try to make young people homosexual. In his recent speech about common sense for schools William Hague spoke of children being taught, by teachers who enjoyed the professional respect and freedom they deserve". We have heard about unsavoury teaching materials. My own children went to three different comprehensive schools in London. The only targeting that went on was by zealots of the National Front. Fortunately, children at those schools were good at resisting pressure, which is something that personal health education is keen to promote. We have heard about a video being produced in Avon. I have made inquiries about it. I understand that it has not been widely distributed. Teachers are not finding it useful and of 10 teachers whom I asked, only one had heard of it. Sexual relationships guidance makes it totally clear that health authority material which may be used in schools must be in line with the guidance.

I too visited the display of material set out by the noble Baroness, Lady Young. I respect fundamentally her wish to protect children. But the vast bulk of that material was not intended for use in school s and teachers would not have found it remotely useful I can assure the noble Baroness that material produced by education authorities and educationalist for use with young people is sensitive and appropriate to local needs. I believe that she would approve of it.

In the 1980s material was produced by health authorities and voluntary organisations as part of the fight against HIV and AIDS. Norman Fowler, the then Conservative Minister for Health, bravely supported that fight. As a result the HIV-AIDS epidemic in the United Kingdom was not as serious as predicted. This material was not promoting homosexuality but combating a potential disease, which we would be foolish to be complacent about. The material was not designed for use in schools.

Perhaps I may continue briefly to say why I believe Section 28 is harmful apart from the reasons I have just given. A law which allows the possibility of a group in society being treated unjustly is bad law. Section 28 does that by inferring—I stress that word—that homosexuality should be condemned even though it is a state into which people are born. I wish to quote a parents organisation, the Friends and Families of Lesbian Gays, which has 25 branches throughout the country and a substantial membership. It is vehemently opposed to Section 28. The parents know what their sons and daughters have suffered. I wonder what would happen if the letter writers supporting Section 28 were to meet the parents in that organisation. I wonder who would convince whom.

There is also an organisation of Catholic parents who have gay children. I quote from a letter from one such parent. It says, I know that Section 28 is wrong. It is a law that should now be removed. We have three sons who are well adjusted and caring young men who have never broken the law or been violent, raped or injured and who have respect for people. My eldest son was born gay. Nothing in society or his home or friends made him choose to be gay. He is seen by many as worse than criminal, as evil, depraved, unnatural and not normal. I am proud that he accepts his sexuality as nothing other than normal to him. My support of gay people and their lifestyle does not mean that I undervalue family life and marriage". The parents have been married for 27 years. The letter continues: Both of these are vitally important to children in general, but so are tolerance, non-prejudicial judgment and care of others". We do not need Section 28. It is not productive. It is not necessary, given the guidance to schools and the powerful role of governors and parents and the guidance we have been given for youth workers. A value central to civilised society is not only tolerance of difference but the celebration of difference. Those who are different in this case have made, and make, contributions to society which are respected and admired. I do not see why we should continue to insult them with a piece of bad legislation.

7.45 p.m.

Lord Brightman

My Lords, I believe that the time has come for me to say a word about my Amendment No. 378B. I am not speaking to any other amendment. My amendment is relevant only if the amendment of the noble Baroness, Lady Young, is not successful so that Section 28 is repealed. The Commons amendment states that the Section 28 prohibition against promoting homosexuality shall cease to have effect. My Amendment No. 387B would add two subsections to the Commons amendment. The object of the amendment is to fill the vacuum which would arise as a result of repealing Section 28 and putting no words in its place. If a section of an Act of Parliament states that a local authority shall not promote homosexuality and that section is later repealed, the obvious inference is that a local authority is thereafter permitted to promote homosexuality.

I am not concerned with whether that is the strict legal effect of Section 28: I simply do not know. But I am absolutely certain that it is the inference which will be drawn by the public as a result of the repeal. Therefore, the question which arises is what words can be added to the words of repeal—if your Lordships decide that that should take place—which will prevent that inference being drawn and will not detract from the repeal and will accord with government policy so far as we know it.

Amendment No. 378B provides a possible answer. The amendment has two subsections with three components. The first component refers, to the general principle that the institution of marriage is to be supported". Those words are taken directly from Section 1 of the Family Law Act 1996. That Act provides that regard is to be had to certain general principles, the first of which is, that the institution of marriage is to be supported". That Act was introduced by a Conservative Administration, but the principle was equally accepted by the Labour Opposition. The noble and learned Lord, Lord Archer of Sandwell, speaking from the Opposition Front Bench said, It is common ground in your Lordships' House that we are anxious to support the family as an institution and to support marriage as an essential factor in that".—[Official Report, 22/2/96; col. 1153.] The first component of my amendment, that the institution of marriage is to be supported, is therefore unassailable. The Government cannot object to that wording without back-tracking on what they said from the Front Bench when they were in Opposition.

The second component of my amendment is that a local authority, shall not encourage … the adoption of any particular sexual life style". I am no expert on local government, but when I pay my council tax I expect my money to be used for maintaining and lighting streets, keeping them clean and doing 101 other things which make for good local administration. I do not expect local councillors to set themselves up as a court of morals; that is for the Churches and the education authorities. It therefore seems to me right expressly to preclude local authorities from encouraging the adoption of any particular sexual lifestyle; it is simply not their job.

Precluding local authorities from encouraging the adoption of any particular sexual lifestyle will help to allay the fears of those opposed to the repeal of Section 28, if your Lordships decide that Section 28 must go. The amendment avoids giving offence to the homosexual community. It does not single them out for mention. It does not seek to disparage them. It is totally neutral. The important thing is that it fills the vacuum which would otherwise be left by the bare repeal of Section 28.

I turn to the third component of Amendment No. 378B which provides that, This section does not prohibit the provision for young persons of sex education or counselling services". Your Lordships may recall that at Second Reading the reason given by the Minister for repealing Section 28 was that local authorities, are in effect prevented by Section 2A of the 1986 Act— that is to say, Section 28— … from providing young people with information to deal with issues relating to their sexuality".—[Official Report, 6/12/99; col. 1026.] That was the reason given by the Minister. The third component of Amendment No. 378B is included for the purpose of making it absolutely clear that the objection raised against Section 28 by the Government cannot be raised against my amendment.

I hope that I may pull the threads together by reading the repealing clause as it will exist if Amendment No. 378B is accepted by your Lordships: (1) Section 2A of the Local Government Act 1986 (prohibition on promoting homosexuality by teaching or by publishing material) ceases to have effect. (2) Subject to the general principle that the institution of marriage is to be supported, a local authority shall not encourage, or publish material intended to encourage, the adoption of any particular sexual life style. (3) This section does not prohibit the provision for young persons of sex education or counselling services on sexual behaviour and associated health risks". I do not speak against the Motion of the noble Baroness, Lady Young. I am merely trying to provide a fallback position—a safeguard—if your Lordships come to the conclusion that Section 28 has to be repealed.

Baroness Hamwee

My Lords, I hope that future generations will look back on your Lordships' decision today as a moment when we achieved a proper balance. I include as an item in that balance the new guidance to which reference has been made—I refer to the amendment which noble Lords passed last week—which is a safeguard, as the Minister has said.

Speaking previously on behalf of my noble friends from these Benches, I have made our position clear. It was a manifesto commitment on our part to secure the repeal of Section 28. As I have made our position clear, I shall not attempt to cover the whole ground but merely to pick out a few points. The support on these Benches for the repeal of Section 28 is not support for the proselytization of homosexuality, nor is it a green light for corruption.

The term "promote" has led us into all kinds of difficulties. I believe that it is inapposite. It is simply not possible to promote homosexuality. I believe that my noble friend Lord Russell said that one might as well seek to promote left-handedness or some other inherent characteristic. Nor do I believe—I hope that this goes some way to answer the points made by the noble and learned Lord, Lord Brightman—that it is within the powers of local government to promote homosexuality, even were that to be possible. Local authorities are creatures of statute. Their powers are matters of statute. I do not believe that this is a power which they have.

Not only do I believe that the section is nonsense; I believe that it is dangerous nonsense. None of us supports bullying. I absolutely accept the points which have been made by the noble Baroness, Lady Young, and others about their concern to protect the vulnerable. However, we have different evidence. We on these Benches, in particular my noble friend Lord Tope, have much evidence of homosexual bullying and the inability or refusal of teachers to intervene. Teachers are confused as to what they can or cannot do. Some of them may use the existence of the section as a reason or excuse not to intervene or assist. Much distress, misery and, indeed, tragedy have been caused.

I am aware of the real anxieties about some of the material that has been cited, some of which, as has been said, has been issued under the aegis of health authorities—which is irrelevant to the debate. However, for the good of young people, we must permit first-class information to be issued. The noble Lord, Lord Alli, rightly pointed to the fact that no prosecution has occurred under the section despite the length of time during which the material has existed.

I regard Section 28 as bad legislation. If it is not repealed today, what effect will that have? Reference has already been made to the certificate attached to the Bill. Will the Bill, when enacted, be incompatible with the European Convention on Human Rights? Will it contravene our own Human Rights Act which comes into force in October? Will the Minister confirm that the courts could therefore give a declaration of incompatibility and the Government would then be able to use a fast-track procedure to abolish the provision? It should be abolished. We regard it as offensive. It reinforces stigma. It does nothing to assist inclusiveness of society. It reinforces discrimination and we shall be delighted to see the back of it.

Baroness Blatch

My Lords, like the noble Lords, Lord Mishcon and Lord Hooson, I also regret that this is a political debate. However, there are two things that we cannot avoid. First, this amendment was added to the Local Government Bill by the Government; it was never intended to be included. Secondly, it constituted a Liberal Democrat manifesto pledge.

At the outset we were accused of concentrating on schools. I make no apology for concentrating on the education of our children in schools. The government Minister, and others who have supported him, have completely ignored youth clubs, play areas and children's homes, on all of which local authority spending can have an impact. If repeal goes ahead, local authorities will be free to fund the voluntary sector organisations which are determined to produce material of the kind we are discussing. I say to the noble Baroness, Lady Massey, that much of the material that we are discussing is pertinent to schools. I have some of it with me. If noble Lords wish to see it, I should be only too willing to show it to them.

The guidance which was approved last week, which I predicted would be proposed in this debate as a substitute for repealing Section 28, is weak; it is very weak. The House refused to strengthen it.

It is also unenforceable, as my noble friend Lord Campbell of Alloway said, both in its aims and because one cannot legislate for children to learn. One can legislate for children to be taught, but not for what they learn.

I am delighted that a number of local authorities, led by Kent and Surrey, will put in place something equivalent to Section 28 if repeal goes ahead. This is not about making gay and lesbian people second class, as has been suggested; it is about making all of our children first class. The Minister said that we have a right to protect minority interests. I agree with that—but not at the expense of the majority, which includes all the children of our country.

The noble Lord, Lord Alli, was concerned about the role of teachers. I advise him that Section 28 does not prevent teachers discussing homosexuality; nor does it prevent teachers counselling, or referring children to other agencies for advice and counselling. Indeed, the statutory guidance that goes together with Section 28 positively encourages teachers to do just that.

The noble Earl, Lord Russell, said that on this issue the Prime Minister was more substance and less spin. I am about to prove otherwise. In the leaked memo, the Prime Minister said: It is bizarre that any Government I lead should be seen as anti-family". The memo is very revealing on so much, but particularly relevant to this debate are the Prime Minister's comments on the family. He said: We need two or three eye-catching initiatives that are entirely conventional in terms of their attitude to the family … I should be personally associated with as much of this as possible". In addition to seeking the repeal of Section 28, the Prime Minister heads a government who are actively considering allowing transsexuals to marry and to adopt children; who are considering using the Parliament Act to lower the age of consent for homosexuals to the age of 16; and who are generally relaxing the law as it relates to gays and lesbians and to people cruising on our public roads for sex.

It is not homophobic to care about the moral and spiritual education of our children; it is not homophobic to argue that the promotion of homosexuality to our children, in or out of the classroom, is not acceptable; it is not homophobic to promote marriage and to teach that marriage provides a strong foundation for stable relationships and the most reliable framework for raising children; and it is not homophobic to prohibit local authorities using their funds—taxpayers' funds—either directly or indirectly through third parties, to allow materials or individuals to promote homosexuality as equal to marriage as a lifestyle.

Thousands of people—parents, grandparents, teachers, faith groups of all denominations—have written imploring Members of the House to oppose the repeal of Section 28. They know that local authority money is spent, either directly or through other organisations, to produce offensive materials, some of which have been circulated to school-age children, both in schools and in their play areas, in youth clubs and in children's homes. They, like I, find it objectionable.

My noble friend Lady Young has fought courageously, and I have been proud to stand with her, to support the vast majority of parents by opposing the Government on this issue. Should my noble friend Lady Young succeed with her amendment tonight it would represent a vote in favour of the majority of the people in the country, as well as a vindication of the patient and painstaking way in which my noble friend has fought to retain Section 28.

However, should the Government succeed in their Herculean and time-consuming attempts to repeal Section 28, the more militant gay and lesbian groups will dance for joy; so, too, will the Government's supporters. But tears will be shed by many parents, grandparents, Christians and other faith group members throughout this country. Our duty is to support them and it is for Parliament to protect our children.

8 p.m.

Lord Whitty

My Lords, I agree with the noble Baroness, Lady Blatch, on one thing—and probably on only one thing: that the discussion of this very important Bill on the reform of local government has been—in this House at least—utterly dominated by consideration of this issue. Much of the public consciousness of the proceedings of this House over the past 12 or 18 months has likewise been dominated by our consideration of Section 28 and the way in which we approach homosexuality. That is to be regretted on both counts.

Nevertheless, one has to be realistic. This is a deeply symbolic issue to people on all sides of the argument. It has a symbolism which is way beyond its actual importance. It is a piece of legislation which is subject to different interpretations by different groups of people in different contexts—and it has never been used. For all those reasons, in any other context the House of Lords would undoubtedly conclude that this must be seriously bad law.

There is also the societal aspect. The noble Earl, Lord Russell, rightly said that there is an age-related differential attitude in society to this issue. It is unfortunate, but it is true. We live in a changing society. It is a changing society which I am afraid that the noble Baroness, Lady Young, and many of her supporters refuse to accept or recognise. But it is the very society with which not only our children but our young adults, and many of our middle-aged adults, have to come to terms. It is that reality that we should be addressing in the House of Lords rather than some of the more symbolic issues that have been referred to today.

Much of the debate has still related to the position in schools. It is almost as if the Learning and Skills Bill and the guidance issued by the Secretary of State had never existed. Therefore, I shall need, once again, to refer to the Learning and Skills Bill and to the guidance given under it, which places the responsibility of sex and relationship education firmly on teachers and school governors and makes it clear that local authorities have no power in determining sex education in schools. It puts a requirement on schools that they should be statutorily obliged to have regard to the guidance issued by the Secretary of State; for the first time, it requires that pupils should be taught about the nature and importance of marriage to family life and to the bringing up of children.

Baroness Blatch

My Lords, it does not require them to be taught at all; that was the amendment that was lost. It requires children to learn.

Lord Whitty

My Lords, the aim of the guidance is that children should learn. As I understand it, the aim of all teaching is that children should learn. What they should learn in this context is that society is varied; that marriage is an important element for the stability of our society, but that there are other ways of life with which they have to come to terms.

The guidance also protects children from inappropriate teaching and teaching materials; it requires health service bodies to have regard to the guidance; and it reaffirms the rights of parents to withdraw their children from sex education.

A number of things have been said by the opponents of the Government's position which are not correct. The noble Baronesses, Lady Blatch and Lady Young, said that the guidelines have no force of law. That is not true. The Learning and Skills Bill, on which we reached consensus last week, provides clear statutory requirements on the Secretary of State to issue guidance, and heads and governors will have a clear legal responsibility to have regard to that guidance.

Lord Elton

My Lords, I wish to ask only one question, which is central to what the noble Lord is saying. I am receiving different guidance on this myself. If someone who is subject to the guidance is taken to the High Court for not having done what is in the guidance, and says to the High Court, "I have had regard to the guidance but I did not agree with it", is it not the case that there is nothing further to be done against that person?

Lord Whitty

My Lords, if a statute indicates that someone has to have regard to guidance, they have to have regard to the content of the guidance and to behave reasonably in the light of that guidance. They cannot reject that guidance in the way that the noble Lord suggests.

Earl Russell

My Lords, perhaps I may assist the Minister. Does he agree that most teachers are more afraid of the disapproval of their professional superiors than they are of the courts?

Lord Whitty

My Lords, I had better not comment on that. However, the noble Lord is undoubtedly right about some teachers I know. Nevertheless, the courts do have a role here as well.

The noble Baroness, Lady Blatch, said that when the Learning and Skills Bill becomes law that will have no effect in relation to youth workers and the youth service. That is not correct. The DfEE guidance specifically covers youth workers. It says specifically that it is inappropriate for youth workers to promote sexual orientation, that they will be expected to respect its guidance when dealing with school-aged children and that their individual views should not affect the independent advice given. Moreover, the youth service itself is inspected by Ofsted in order to ensure that it operates properly in accordance with those guidelines.

The noble Baroness also suggested that if sexuality could not be taught in sex education lessons it could be taught elsewhere. Again that is not true. The provision in the Learning and Skills Bill will apply to sex education wherever a school delivers it. If it occurs in an English lesson, a literary lesson, a history or a citizenship lesson then the guidelines continue to apply. It is not true that teachers would be free to promote homosexuality in English literature. They are, however, allowed to refer to the fact that homosexuality exists.

The noble Baroness, Lady Young, said that she did not like gay and lesbian issues being referred to in history lessons. But what are we supposed to do? Airbrush the whole of the gay and lesbian community over the ages out of history, and not refer to the lifestyles of some of our greatest painters, artists, generals and indeed politicians? Of course gay and lesbian matters can be referred to. But when it comes to explicit sex education, whether it takes place in a citizenship lesson or whether it takes place in a sex education lesson, the guidelines apply. It is also not the case that social workers are excluded from any of that legislation. They too will be subject to the legislation to be brought forward with regard to the general care standards authority.

Therefore, there has been much said today which is actually not true. The Government have not only brought forward the guidelines, indicated their general approach and taken account of what has been said in your Lordships' House by right reverend Prelates and others with regard to the importance of marriage, and what has been said elsewhere, but they have also extended the effects of their decisions to these other areas where young people may be affected by local authority activity.

The question therefore is why are we persisting with retaining Section 28? The Government have indicated how all the fears which were run, and in many ways exaggerated during earlier consideration of the Bill and in the more irresponsible parts of the media, have been met under the auspices of the Learning and Skills Bill. Yet we persist in thinking that we need Section 28 in order to protect someone.

Part of the problem was referred to by the noble and learned Lord, Lord Brightman, when he said that if we delete the clause, that is carte blanche for local authorities to promote sexuality. That is why he has presented his own alternative amendment should the noble Baroness's amendment fall. I have some sympathy with what that amendment tries to achieve, but I have some concerns regarding its wording. First, the meaning of the term "sexual lifestyle" is in any case far from clear. Secondly, while the amendment does not prohibit the provision of sex education or counselling by local authorities for young people, how does that apply to adults who are doubtful about their sexuality or are themselves homosexual or bisexual. Thirdly, in relation to schools, it is unnecessary in view of the developments under the Learning and Skills Bills.

While I recognise the need which the noble and learned Lord, Lord Brightman, identifies to replace what he sees as a vacuum were Section 28 to be removed, I do not believe that that is necessary. Indeed, he asks what would happen if the repeal were simply adopted as the Government wish. That would not give local authorities any powers to promote homosexuality in schools or anywhere else. Local authorities can only undertake those activities for which they have specific powers. Therefore, the strict legal effect is not to give local authorities any additional powers over and above that which Section 28 gives them to promote homosexuality.

Behind all that is what we mean by "promote". If we mean proselytise, if we mean hassle and pressurise people into homosexuality, then clearly we are all against it, as we would be in terms of pressurising young people in particular, and indeed adults, into any form of sexual relationship. But it is clear from what the opponents of repeal have said that they do not regard promotion as simply those objectionable facets. They regard promotion of homosexuality almost as any reference to homosexuality and certainly to any explicit sexual information provided either in terms of education or in terms of counselling and social services to the homosexual community or those who may feel that they might be homosexual. It is for that reason that the word promotion cannot be taken at its face value. It has not been defined ever by the proponents of Section 28; it has not been defined in earlier debates on the Bill; and it has not been defined today. As long as people regard any mention of homosexuality, any explanation of what homosexual relations mean as being the promotion of homosexuality, then the words of Section 28 are impossible to interpret with any degree of objectivity.

Noble Lords

No.

Lord Whitty

My Lords, noble Lords opposite cry "No". But we have heard references in the debate and outside this Chamber to the provision of what is called "explicit sexual material". Any sex education refers explicitly to sexual activity. It is helpful for children and young adults to know what is being talked about in that respect. If noble Lords opposite object to any such explicit material in whatever context it is put, however much it is surrounded by a social and emotional context, if they regard that as promotion of homosexuality, and many of them do, and much of the media do, then the word "promotion" is seriously misleading and should be taken out of the law. It should be recognised even by the proponents of Section 28 that that has greatly undermined its effect.

Behind this also is the need for us not to use the law of the land to enforce moral judgments on specific members of our society. Three hundred years ago we broke the link between the ecclesiastical courts and the civil and criminal courts. Many people appear to want those who appear to favour or give comfort to those who are homosexual—whether in counselling, education or wherever—to be guilty of some kind of civil offence. We should continue to separate out the sphere of our moral leaders from those of our legal enforcement process. I recognise that many people have deep religious convictions, both in this House and elsewhere, that homosexuality is wrong. Many other sexual activities by those same people would probably be regarded as almost equally wrong— fornication, adultery and so on. But these activities exist in our society and many people engage in them. In our society young adults need to know about them. We have to pick up the consequences of relationships which are based on them.

The Lord Bishop of Winchester

My Lords, does the Minister recognise that while this is a swashbuckling presentation of some of the issues, it really does not seem to me to meet the range of points which have been raised this evening. It appears to me that he has manifestly misrepresented what I said earlier. I have no doubt that among noble Lords on all sides of the House who may be considering how to vote this evening, there is a much wider and more nuance series of positions than he is allowing the possibility of there being.

Lord Whitty

My Lords, there are nuance positions. The noble and learned Lord, Lord Brightman, is attempting a nuance position. Some other people in the course of the debate have had more nuance positions. But those who introduced Section 28 in the first place, those who are the most vociferous in its support and the need for its retention do not have a nuance position; they have a deeply prejudiced position and one which we need to remove from the statute book.

The right reverend Prelate referred to Section 28 as being a stabilising bench mark. That is an entirely erroneous position. It is not a stabilising benchmark. It is, unfortunately, the spark of a deep dispute within our society. It is one which has been seriously misinterpreted, I would agree, by the zealots on all sides of the matter and it is one which has deeply misled the teaching profession, the media, politicians and parents. It is not one on which we can base a sensible approach either to sex education or to dealing with sexual matters in the rest of our society.

Given that we have a deeply destabilising benchmark here, one which has caused great conflict and one which is incapable of rational interpretation, is it not also rational, therefore, for the House of Lords to remove it? Why has the House of Lords hitherto—I hope that noble Lords will change their minds tonight—resisted its removal? It is very strange of this House, because normally it is a well recognised role of this House to defend the position of minorities. It may very well be that the majority of people out there, fed by slightly misleading information in our media and elsewhere, support the retention of Section 28—certainly those aged over 40—but it still remains the responsibility of this House—it is one of the great constitutional checks and balances of our system—to respect and protect the interests of minorities against a populist majority. In this case, for reasons known only to those who oppose the repeal, they have done exactly the opposite.

At the end of the day, it is a human rights issue. It is an issue for individuals. It is an issue of equal treatment of citizens. Section 28 cannot be said to be compatible with the European Convention on Human Rights. The House of Lords should recognise that that is an important statement for the Government and others to have made. I do not believe, therefore, that the House of Lords can, with any light conscience, continue to vote against its repeal. By doing so, it is sending a divisive signal to our society, and one which will encourage discrimination, whatever interpretation noble Lords might benignly try to put on the words of Section 28.

As was said earlier, I fear that there are not a lot of minds to be changed on this issue. However, I hope that when noble Lords go through the Lobbies they will also think of the reputation of this House.

Viscount Bledisloe

My Lords, before the noble Lord sits down, will he make entirely clear the Government's attitude to the amendment of the noble and learned Lord, Lord Brightman? If the House accepts the repeal of Section 28 but then votes for the amendment of the noble and learned Lord, will the Government accept that, regardless of the textual deficiencies to which the Minister referred? If they will do so, it seems to me that that should satisfy any right-minded person. If, on the other hand, we are told that the Government reject that amendment, I feel that many noble Lords will want to vote a different way. Can the noble Lord be entirely clear on where the Government stand on the noble and learned Lord's amendment?

Lord Whitty

My Lords, I thought that I had made it clear earlier that, although I regard the amendment of the noble and learned Lord, Lord Brightman, as a significant move away from the discriminatory wording of Section 28 and believe that it is in that sense an improvement, it has some serious flaws and serious uncertainties. I would not therefore wish to encourage the House to vote for something which is as equally subject to different interpretations as Section 28 itself. If the House were to pass that amendment, following a defeat of the amendment of the noble Baroness, Lady Young, the Government would have to consider that position and consider whether subsequent changes would be necessary or whether we could continue to live with that amendment, given that it is—I accept the good will in these matters of the noble and learned Lord. Lord Brightman—an improvement on the current situation. However, I think that a cleaner answer tonight would be to vote for the repeal of Section 28, to reject the amendments of the noble Baroness, Lady Young, and to give a clear signal that this House does not wish to give any succour to those who discriminate against any section of our community.

Baroness Young

My Lords, I should like to thank all those who have spoken in support of me today. I thank in particular the right reverend Prelate the Bishop of Winchester. He said—I think I quote him correctly—that Section 28 is a stabilising benchmark. In using those words, he used the precise words that were used by the noble Lord, Lord Habgood, when we debated this matter previously. The right reverend Prelate said something else which I think is profoundly true. One of the tragedies of life today is that what has always been accepted—the wisdom of one generation being passed on to another—has been given up; and, because it has been given up, adults have abnegated their responsibility to children. If I may say so to the Government, there is no greater example of that abnegation than the guidelines on sex education. I have read all 33 pages. It is difficult not to draw the conclusion that they are value free and that they are just saying to young people, "Do what you feel comfortable with and take contraceptive advice". That is not a very good message to give to young people.

I should like also to thank the noble Lord, Lord Mishcon, who spoke from a wealth of experience. I thought that his wise words are ones to which we should all pay attention. I am grateful for the support that I have had all the way through from my noble friend Lady Blatch, who has been consistent and steadfast in her support on these matters.

Perhaps I may conclude by saying to the noble Lord, Lord Whitty, that I was very sorry to hear what he said in his final remarks. He attributed to me a good many opinions which I do not hold. If he reads what I actually said, he will see that I neither said them nor think them. He based his arguments very largely on the guidelines for sex education. Before entering the debate, I, too, took legal advice. I simply make two points. First, the local authority employs teachers. It is therefore responsible ultimately for the actions of its employees. Secondly, to say that Section 28 has no effect is simply not true; nor is it true that children will be protected in other subjects outside sex education. The legal advice which I have been given suggests that that is not the case.

This question is not about discrimination towards adults. We are not talking about adults at all. As I said earlier, how adults choose to conduct their lives is a matter for them. The whole question of Section 28 started with parents concerned about children. At the centre of it have always been parents and, above all, children. If we really care about what happens to children—what is said to children in schools and outside—and if we are to fulfil our adult responsibilities, we will vote to keep Section 28. I commend the amendment to the House.

8.28 p.m.

On Question, Whether Amendment No. 377A, as an amendment to Commons Amendment No. 377, be agreed to?

Their Lordships divided: Contents, 270; Not-Contents, 228.

Division No. 2
CONTENTS
Aberdare, L.	Archer of Weston-Super-Mare, L.
Ackner, L.	Armstrong of Ilminster, L.
Ahmed, L.	Arran, E.
Alexander of Weedon, L.	Astor, V.
Allenby of Megiddo, V.	Astor of Hever, L.
Ampthill, L.	Attlee, E.
Anelay of St Johns, B.

Bagri, L.	Freeman, L.
Baker of Dorking, L.	Gardner of Parkes, B.
Barber, L.	Geddes, L.
Barber of Tewkesbury, L.	Gibson, L.
Bell, L.	Glenarthur, L.
Belstead, L.	Glentoran, L.
Blackwell, L.	Goschen, V.
Blatch, B.	Gray of Contin, L.
Blease, L.	Greenway, L.
Blyth of Rowington, L.	Griffiths, L.
Boardman, L.	Griffiths of Fforestfach, L.
Bowness, L.	Habgood, L.
Brabazon of Tara, L.	Hambro, L.
Bradford, Bp.	Hanham, B.
Bramall, L.	Hanningfield, L.
Bridgeman, V.	Hanson, L.
Bridges, L.	Harris of High Cross, L.
Brightman, L.	Harris of Peckham, L
Brigstocke, B.	Hayhoe, L.
Brookeborough, V.	Henley, L.[Teller]
Brooks of Tremorfa, L.	Higgins, L.
Brougham and Vaux, L.	Hodgson of Astley Abbotts, L.
Burnnam, L.	Hogg, B.
Buscombe, B.	Holderness, L.
Butler of Brockwell, L.	Home, E.
Butterworth, L.	Hooper, B.
Buxton of Alsa, L.	Howe, E.
Byford, B.	Howell of Guildford, L.
Caithness, E.	Hunt of Wirral, L.
Campbell of Alloway, L.	Hurd of Westwell, L.
Campbell of Croy, L.	Hussey of North Bradley, L.
Carlisle of Bucklow, L.	Hylton, L.
Carnarvon, E.	Hylton-Foster, B.
Carnegy of Lour, B.	Inge, L.
Carr of Hadley, L.	Islwyn, L.
Carrington, L.	James of Holland Park, B.
Cavendish of Furness, L.	Jauncey of Tullichettle, L.
Chadlington, L.	Jellicoe, E.
Chalfont, L.	Jenkin of Roding, L.
Chalker of Wallasey, B.	Johnston of Rockport, L.
Chilver, L.	Jopling, L.
Clark of Kempston, L.	Kelvedon, L.
Cocks of Hartclifie, L.	Kimball, L.
Coe, L.	King of Wartnaby, L.
Colwyn, L.	Kingsland, L.
Cooke of Islandreagh, L.	Kirkham, L.
Cope of Berkeley, L.	Knight of Collingtree, B.
Courtown, E.	Laing of Dunphail, L.
Cowdrey of Tonbridge, L.	Laird, L.
Cox, B.	Lamont of Lerwick, L.
Craig of Radley, L.	Lane, L.
Cranborne, V.	Lane of Horsell, L.
Crathorne, L.	Lang of Monkton, L.
Crickhowell, L.	Liverpool, E.
Croham, L.	Lloyd of Berwick, L.
Cumberlege, B.	Lofthouse of Pontefract, L.
Dean of Harptree, L.	Longford, E.
Denham, L.	Lucas, L.
Dixon, L.	Luke, L.
Dixon-Smith, L.	Lyell, L.
Donaldson of Lymington, L.	McColl of Dulwich, L.
Donoughue, L.	McConnell, L.
Dunn, B.	Macfarlane of Bearsden, L.
Eccles of Moulton, B.	McFarlane of Llandaff, B.
Eden of Winton, L.	Mackay of Clashfern, L.
Elles, B.	MacLaurin of Knebworth, L.
Elliott of Morpeth, L.	Manchester, Bp.
Elton, L.	Mancroft, L.
Erroll, E.	Marlesford, L.
Evans of Parkside, L.	Marshall of Knightsbridge, L.
Feldman, L.	Masham of Ilton, B.
Fellowes, L.	Mason of Barnsley, L.
Ferrers, E.	Mayhew of Twysden, L.
Fitt, L.	Miller of Hendon, B.
Fookes, B.	Mishcon, L.
Forsyth of Drumkan, L.	Molyneaux of Killead, L.

Monson, L.	Ryder of Wensum, L.
Montrose, D.	Saatchi, L.
Moore of Wolvercote, L.	St. John of Bletso, L.
Moran, L.	Saltoun of Abemethy, Ly.
Mowbray and Stourton, L.	Sanderson of Bowden, L.
Moynihan, L.	Seccombe, B.
Murton of Lindisfarne, L.	Selborne, E.
Naseby, L.	Selkirk of Douglas, L.
Neill of Bladen, L.	Selsdon, L.
Nickson, L.	Sharpies, B.
Nolan, L.	Shaw of Northstead, L.
Norfolk, D.	Sheppard of Didgemere, L.
Northbrook, L.	Shore of Stepney, L.
Northesk, E.	Shrewsbury, E.
O'Cathain, B.	Simon, V.
Oliver of Aylmetton, L.	Simon of Glaisdale, L.
Onslow, E.	Skidelsky, L.
Onslow of Woking, L.	Slim, V.
Oppenheim-Barnes, B.	Soulsby of Swaffham Prior, L.
Orme, L.	Stallard, L.
Oxfuird, V.	Sterling of Plaistow, L.
Palmer, L.	Stewartby, L.
Park of Monmouth, B.	Stodart of Leaston, L.
Parkinson, L.	Stoddart of Swindon, L.
Patel of Blackburn, L.	Strange, B.
Patten, L.	Strathclyde, L.
Pearson of Rannoch, L.	Swinfen, L.
Peel, E.	Taylor of Warwick, L.
Perry of Southwark, B.	Tebbit, L.
Peyton of Yeovil, L.	Tenby, V.
Pike, B.	Thatcher, B.
Pilkington of Oxenford, L.	Thomas of Gwydir, L.
Platt of Writtle, B.	Tombs, L.
Plumb, L.	Trefgarne, L.
Plummer of St. Marylebone, L.	Trumpington, B.
Porter of Luddenham, L.	Vincent of Coleshill, L.
Prentice, L.	Vinson, L,
Prior, L.	Vivian, L.
Pym, L.	Waddington, L.
Quinton, L.	Wakeham, L.
Quirk, L.	Waverley, V.
Rawlings, B.	Weatherill, L.
Rawlinson of Ewell, L.	Weinstock, L.
Reay, L.	Wilcox, B.
Rees, L.	Williamson of Horton, L.
Rees-Mogg, L.	Willoughby de Broke, L.
Renton, L.	Winchester, Bp.
Renton of Mount Harry, L.	Windlesham, L.
Richardson of Duntisbourne, L.	Wolfson, L.
Roberts of Conwy, L.	Wolfson of Sunningdale, L.
Rochester, Bp.	Young, B. [Teller]
Rotherwick, L.	Young of Graffham, L.
	Younger of Leckie, V.
NOT-CONTENTS
Acton, L.	Blackstone, B.
Addington, L.	Bledisloe, V.
Alderdice, L.	Borrie, L.
Alii, L.	Bradshaw, L.
Amos, B.	Bragg, L.
Andrews, B.	Brennan, L.
Archer of Sandwell, L.	Brett, L.
Ashley of Stoke, L.	Bristol, Bp.
Ashton of Upholland, B.	Brooke of Alverthorpe, L
Attenborough, L.	Brookman, L.
Bach, L.	Bruce of Donington, L.
Baldwin of Bewdley, E.	Burlison, L.
Barker, B.	Burns, L.
Barnett, L.	Carlile of Berriew, L.
Bassam of Brighton, L.	Carter, L.[Teller]
Beaumont of Whitley, L.	Castle of Blackburn, B.
Berkeley, L.	Chandos, V.
Bernstein of Craigweil, L.	Christopher, L.
Billingham, B.	Clement-Jones, L.
Birt, L.	Clinton-Davis, L.

Cohen of Pimlico, B.	Kirkhill, L.
Craigavon, V.	Laming, L.
Crawley, B.	Layard, L.
Currie of Marylebone, L.	Lea of Crondall, L.
Darcy de Knayth, B.	Lester of Herne Hill, L.
David, B.	Linklater of Butterstone, B.
Davies of Coity, L.	Lipsey, L.
Davies of Oldham, L.	Lloyd-Webber, L.
Desai, L.	Lockwood, B.
Dholakia, L.	Lovell-Davis, L.
Diamond, L.	Ludford, B.
Dormand of Easington, L.	McCarthy, L.
Dubs, L.	Macdonald of Tradeston, L.
Eatwell, L.	McIntosh of Haringey, L. [Teller]
Elder, L.	McIntosh of Hudnall, B.
Evans of Temple Guiting, L.	MacKenzie of Culkein, L.
Evans of Watford, L.	Mackenzie of Framwellgate, L
Ezra, L.	Mackie of Benshie, L.
Falconer of Thoroton, L.	McNally, L.
Falkender, B.	Maddock, B.
Falkland, V.	Mallalieu, B.
Farrington of Ribbleton, B.	Mar and Kellie, E.
Faulkner of Worcester, L.	Marsh, L.
Filkin, L.	Massey of Darwen, B.
Freyberg, L.	Merlyn-Rees, L.
Fyfe of Fairfield, L.	Methuen, L.
Gale, B.	Miller of Chilthorne Domer, B.
Garel-Jones, L.	Mitchell, L.
Gavron, L.	Molloy, L.
Gilbert, L.	Morgan, L.
Gilmour of Craigmillar, L.	Morris of Castle Morris, L.
Gladwin of Clee, L.	Morris of Manchester, L.
Goldsmith, L.	Murray of Epping Forest, L.
Goodhart, L.	Newby, L.
Gordon of Strathblane, L.	Nicol, B.
Goudie, B.	Northover, B.
Gould of Potternewton, B.	Norton of Louth, L.
Graham of Edmonton, L.	Oakeshott of Seagrove Bay, L.
Greaves, L.	O'Neill of Bengarve, B.
Greengross, B.	Oxford, Bp.
Gregson, L.	Peston, L.
Grenfell, L.	Phillips of Sudbury, L.
Hamwee, B.	Pitkeathley, B.
Hardy of Wath, L.	Plant of Highfield, L.
Harris of Greenwich, L.	Ponsonby of Shulbrede, L.
Harris of Haringey, L.	Portsmouth, Bp.
Harris of Richmond, B.	Prashar, B.
Harrison, L.	Prys-Davies, L.
Haskel, L.	Puttnam, L.
Hattersley, L.	Ramsay of Cartvale, B.
Hayman, B.	Randall of St. Budeaux, L.
Healey, L.	Razzall, L.
Hilton of Eggardon, B.	Rea, L.
Hogg of Cumbernauld, L.	Redesdale, L.
Hollick, L.	Rendell of Babergh, B.
Hollis of Heigham, B.	Rennard, L.
Holme of Cheltenham, L.	Richard, L.
Howells of St. Davids, B.	Richardson of Calow, B.
Hoyle, L.	Rodgers of Quarry Bank, L.
Hughes of Woodside, L.	Rogers of Riverside, L.
Hunt of Chesterton, L.	Roll of Ipsden, L.
Hunt of Kings Heath, L.	Roper, L.
Hutchinson of Lullington, L.	Russell, E.
Irvine of Lairg, L. (Lord Chancellor)	Russell-Johnston, L.
Jacobs, L.	Sainsbury of Turville, L.
Janner of Braunstone, L.	St Albans, Bp.
Jay of Paddington, B. (Lord Privy Seat)	St John of Fawsley, L.
Jeger, B.	Sandwich, E.
Jenkins of Hillhead, L.	Sawyer, L.
Jenkins of Putney, L.	Scotland of Asthal, B.
Joffe, L.	Scott of Needham Market, B.
Judd, L.	Serota, B.
Kennedy of The Shaws, B.	Sewel, L.
King of West Bromwich, L.	Sharman, L.
	Sharp of Guildford, B.

Shepherd, L.	Varley, L.
Sheppard of Liverpool, L.	Walker of Doncaster, L.
Shutt of Greetland, L.	Wallace of Saltaire, L.
Smith of Clifton, L.	Walmsley, B.
Smith of Gilmorehill, B.	Warnock, B.
Smith of Leigh, L	Warwick of Undercliffe, B.
Stern, B.	Watson of Invergowrie, L.
Stone of Blackheath, L.	Watson of Richmond, L.
Symons of Vernham Dean, B.	Wedderburn of Charlton, L
Taylor of Blackburn, L.	Whitaker, B.
Thomas of Gresford, L.	Whitty, L.
Thomas of Walliswood, B.	Wigoder, L.
Thomson of Monifieth, L.	Wilkins, B.
Thornton, B.	Williams of Crosby, B.
Tomlinson, L.	Williams of Elvel, L.
Tope, L.	Williams of Mostyn, L.
Tordoff, L.	Winston, L.
Tumberg, L.	Woolmer of Leeds, L.
Turner of Camden, B.	Young of Dartington, L.
	Young of Old Scone, B.

Resolved in the affirmative, and Amendment No. 377A, as an amendment to Commons Amendment No. 377, agreed to accordingly.

On Question, Commons Amendment No. 377 disagreed to accordingly.