Marriage (Same Sex Couples) Bill

Lord Butler of Brockwell Excerpts

Monday 8th July 2013 Lords Chamber

[Baroness Stowell of Beeston]

My Lords, I am grateful to the noble Lord, Lord Dear. In introducing his amendment he reminded us again that we should try to ensure that we are tolerant, generous and courteous, not only in our debates in this House but also in the legislation that we are bringing forward. I argue that we are doing just that. The noble Baroness, Lady Royall, just quoted something I said at an earlier stage. The Government are very clear that the Bill does not only allow same-sex couples to marry; it also protects religious freedom and ensures that no belief that anyone holds now is affected by the introduction of this Bill. As I said at earlier stages, we are clear that the belief that marriage should be of one man with one woman is protected under the Equality Act 2010. It meets the established criteria set out in case law.

The noble Lord, Lord Dear, referred to the case of Grainger plc v Nicholson, which specifically included beliefs worthy of respect in a democratic society. Equally, Article 9 of the European Convention on Human Rights guarantees that everyone has the right to freedom of thought, conscience and religion. This means that everyone has an absolute right to hold any belief. However, of course the right to manifest one’s belief is qualified, and the state can regulate that in certain circumstances where that is necessary for the protection of the rights and freedoms of others. As I have made clear, it is perfectly possible for somebody to not only have that legitimate belief but also to be free to express that belief. To follow up on the exchange that just took place between my noble friend, Baroness Knight, and the noble Baroness, Lady Royall, the difference is that what is not possible is for somebody to withhold their services because of the belief they hold. There is nothing to stop them from having that belief. The amendment is therefore unnecessary. It states something that is entirely true—that the Bill does nothing to undermine the principle that a belief that marriage is,

“union of one man and one woman for life to the exclusion of all others is a belief worthy of respect in a democratic society”.

Of course it is, and this Bill raises no doubt about it.

As has been pointed out, the view that a marriage of a same-sex couple, like the marriage of an opposite-sex couple, is a valid marriage is also a belief worthy of respect in a democratic society. As was said by the noble Baroness, Lady Royall, and my noble friend Lord Deben, if we are going to state that the one belief is worthy of respect, we ought to state that both are worthy of respect. As it stands, this amendment suggests that a belief of the kind it covers, concerning marriage between a man and a woman, is in some way superior to a belief that marriage of a same-sex couple exclusively and for life is to be welcomed as an equally valid relationship. Therefore the amendment goes against the entire point of the Bill.

I also caution the House on a further point of principle. We risk getting into rather dangerous territory if we start to set out in statute which beliefs are worthy of respect or protection in law. It may seem easy here, where there is absolutely no doubt that the belief concerned is mainstream and uncontroversial, but it would not be wise for legislation to list beliefs, just as we do not list religions. Otherwise we get into the arena of state-sponsored religions and beliefs. It would also be an impossible task to list all religions and beliefs that are protected, which would cast doubt about whether unlisted beliefs are protected. That point was made in this debate by some noble Lords who are lawyers.

I now touch on Amendments 5 and 6, put forward by my noble friend Lord Cormack. I will go not into detail, because they do not affect the fundamental point I am making, which is that these amendments are unnecessary. They risk creating the suggestion that a belief in the validity of the marriage of same-sex couples is to some extent less worthy than a belief that marriage should be of one man with one woman. As I have explained, it would be most unwise to seek to legislate for what is or is not a belief worthy of respect.

All that said, and just to be absolutely clear, of course none of that means that it is not absolutely legitimate for people to hold the view that a marriage should be between a man and a woman, and for them to be able to express that view. I have stated that many times and I will continue to do so, because it is such an important part of what we are ensuring will remain the case when, as we hope, the Bill becomes an Act of Parliament.

Finally, in response to the noble Lord, Lord Dear—

[Lord Butler of Brockwell]

My Lords, it would greatly reassure me if the Minister were to give an absolute assurance that somebody who says that they believe that marriage is the voluntary union of one man and one woman for life to the exclusion of all others is not in any danger of being charged with making a homophobic remark.

[Baroness Stowell of Beeston]

I can give your Lordships absolute, categorical reassurance that anybody who expresses that view is being absolutely lawful. What I cannot give the noble Lord categorical assurance on, which is something that we debated at length at earlier stages of the Bill, is that there may not be somebody out there who decides to try to take action against them. If they were to do that, the law would protect them, because the view that the noble Lord has just expressed is absolutely lawful. It is legitimate, and they can hold that belief and express it. Clearly, as noble friends who are lawyers have reminded me before, whenever a judge hears a case he has to take in all manner of different contexts in order to consider the way in which those words are expressed. But I believe that I can give the noble Lord the reassurance that he is looking for on that point.

Scotland: Independence

Lord Butler of Brockwell Excerpts

Monday 13th May 2013 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I take my noble friend’s point about the importance of communicating the arguments. The paper on currency to which I have just referred in my response to the noble Lord, Lord McAvoy, had so many points in it that some did not necessarily get the full airing that they might have. The next paper in the series will be on the financial services industry, and numerous issues could arise from that. It is not anticipated that there will be any separate government publication in the run-up to the election in the way that there was in the run-up to the EU referendum of 1975. However, it is important that the Government communicate these important messages and arguments for the union in a way that is readily accessible. It is important that they are underpinned by some weighty analysis, but there is also a case to be made for making sure that the arguments are readily available to the public.

[Lord Butler of Brockwell]

My Lords, what guidance has been given to the Civil Service about maintaining neutrality between the two sides in the lead-up to the referendum on independence?

[Lord Wallace of Tankerness]

My Lords, I recall that some time ago, following the election of the present Scottish Government, the previous Cabinet Secretary gave some indication that Scottish civil servants working for the Scottish Government would be expected, as are UK government civil servants, to promote the policy of their Government. Likewise, civil servants working for the Scottish Government, albeit that they are UK civil servants, will be expected to work towards the policy of the Scottish Government.

Justice and Security Bill [HL]

Lord Butler of Brockwell Excerpts

Tuesday 26th March 2013 Lords Chamber

In summary, following the detailed and well informed debates on the Bill in this House—I am sorry to have taken so long to report on their consequences, but I feel that the detail is important—we were able to move amendments in the Commons that address a number of the concerns raised in this House. The amendments make clear the parliamentary character of the ISC, while placing limitations on its power to publish the evidence it receives; they clarify the Data Protection Act and Freedom of Information Act status of the ISC; they provide statutory protections for evidence given by witnesses before the ISC; they give the ISC an express power to take evidence on oath; they clarify and extend the ISC’s powers to oversee operational matters; and they restrict the power to withhold information from the ISC to Secretary of State level.

[Lord Butler of Brockwell]

My Lords, in general, the amendments which the Minister has described are very welcome to the Intelligence and Security Committee. On behalf of the committee and my noble friend who is also a member of it, I thank the Government for the consideration they have given.

There are three issues that I should like briefly to put to the Minister. First, he said that in respect of access to operational information the committee will be given oversight of operational activity in three circumstances. In relation to the first, it is given retrospectively and if the matter is significant, and that is the usual type of operation that the committee currently considers. Secondly, as the Minister said, the ISC may also be given information about an operation if the Prime Minister wishes the committee to examine it. Therefore, current operations are not ruled out in those rather special circumstances. Thirdly, as the Minister said, the ISC may be given information about any operations if the agencies volunteer that information. There is a respect in which the word “voluntarily”, which appears in the Bill, can seem a little misleading and might even appear restrictive. At present, the agencies do indeed, of their own free will, confide frequently in the committee about operations, but “voluntarily” may suggest that this category is going to be restricted somewhat. I should be grateful if the Minister could give an assurance to the House, as he did when the Bill was before us previously, that there is no intention to restrict the current degree of information which the intelligence agencies give the committee about their operations.

The second issue is the question of resources. As the Minister said, it has been agreed that the ISC will become a grant-aided body. The assurances that I should like to ask the Minister, on behalf of the committee, to give are no doubt the assurances that he would expect me to ask him to give. The Government have repeatedly stated that they want to strengthen oversight. Does the Minister acknowledge on behalf of the Government that if oversight is to be strengthened the tools to carry it out will have to be provided? Can he give a commitment that the ISC will be given a substantial increase in resources that recognises this remit?

We have so far not reached agreement with the Government on what the grant is going to be. Those discussions are going on but it will have to be substantially higher than the present level of grant. Can the Minister confirm that the Government recognise that? Can he give some comfort to the committee that, although those negotiations have not been completed, the Government recognise that a substantial increase will be necessary?

The third point relates to the publication of classified information, to which the Minister also referred. Can he confirm that Schedule 1, which, quite rightly, puts safeguards on the committee’s power to publish classified or sensitive information, is not intended to prevent the ISC publishing other, non-classified material—for example, the issuing of press releases, open letters or newspaper articles, which the committee, or the chairman on its behalf, does from time to time?

If the Minister could give some assurances to the committee on those points, we would be very grateful.

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[Lord Butler of Brockwell]

Before the noble and learned Lord sits down, perhaps I may ask a layman’s question. It may be an oversimplified one. The essential condition the court has to be satisfied with is not, principally, whether the Secretary of State has considered PII—that is certainly one of the conditions—but that it is in the interests of the fair and effective administration of justice in the proceedings to make such a declaration. Is that not the principal test and what all this is about?

[Lord Goldsmith]

The principal test should be whether the only fair way of determining the matter is through a CMP. That is a very simple statement. It is a very simple test but for some reason the Government do not want to accept that as the test that should be applied.

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[Lord Butler of Brockwell]

My Lords, I want to reinforce what the Minister has said about the prejudice which a sunset clause would have to the confidence which partners would have in us. I noticed that the noble Lord, Lord Marks, was modifying his proposals in his speech because he has recognised that.

Let us suppose that an ally is at this moment considering whether to pass confidences to the Government. If those confidences were held by the intelligence services they would be protected under the Bill. If they were held by another department, they could be protected only by a certificate passed by a Secretary of State. If at this moment the ally was considering whether to pass those confidences to this country and was uncertain whether in four or five years’ time there would be closed procedures under which that certificate could then be considered, it would be a matter of uncertainty whether those confidences would be protected in four or five years’ time. That would affect the willingness of allies to pass secrets to us now. It would, therefore, be very damaging if a sunset clause in the form proposed originally by the noble Lord, Lord Marks, supported by the Opposition, were to pass into law. I very much hope that the House will not support that proposal.

[Lord Beecham]

My Lords, I support the amendments tabled by the noble Lord, Lord Marks, and I am prepared to say at this stage that I will not be pressing my own amendment, which is on similar terms at least to the last amendment that the noble Lord has moved.

The noble Lord, Lord Butler, has adumbrated a case in which it would seem almost that the doctrine that no Parliament can bind its successor is somehow to be disregarded. Of course, it would be open to any subsequent Parliament to amend this law in any event. Any nation dealing with us will be aware of that. There is not, therefore, a great deal of force in what the noble Lord has been proposing as a justification for supporting the Government’s position on this matter.

The question arises: what is the point of a review? If a review is to take place—and the Government have given welcome acceptance to that concept—where does it lead? Apparently it would lead nowhere. The whole purpose of the review in these circumstances would be vitiated. There needs to be a review, given the nature of the change in our proceedings for us to establish a principle that there should be a renewal, and certainly on that basis I am prepared to support the noble Lord’s amendments.

Justice and Security Bill [HL]

Lord Butler of Brockwell Excerpts

Monday 19th November 2012 Lords Chamber

Moved by

[Lord Butler of Brockwell]

18: Clause 2, page 2, line 12, leave out from “as” to end of line 13

[Lord Butler of Brockwell]

My Lords, this amendment is in my name and that of the noble Marquess, Lord Lothian. I shall couple with it Amendment 23. I am grateful to the Opposition, who have given their support to these amendments. They relate to circumstances in which the ISC may consider operational matters. At the moment, these are defined in Clause 2(3), which states:

“The ISC may … consider any particular operational matter but only so far as the ISC and the Prime Minister are satisfied that

(a) the matter—

(i) is not part of any ongoing intelligence or security operation, and

(ii) is of significant national interest, and

(b) the consideration of the matter is consistent with any principles set out in, or other provision made by, a memorandum of understanding”.

The problem is that that is too restrictive, but I want to make clear at the outset that the ISC does not aspire to consider current operational matters unless the Government have some particular reason for asking it to.

The reason why the wording is too restrictive is that at present there are three tests that have to be passed by an operational matter for the ISC to continue to consider it. The first is that it,

“is not part of any ongoing intelligence or security operation”.

The second is that it,

“is of significant national interest”.

The third test is that,

“the consideration of the matter is consistent with any principles set out in, or other provision made by, a memorandum of understanding”.

However, the preface to that is that the ISC and the Prime Minister must be satisfied that those conditions are met. That would curtail the present operations of the ISC considerably.

I shall cite one example. When the SIS operation in Libya went so badly wrong and it got into the newspapers, the first thing that happened, quite rightly, was that the chief of SIS wrote a letter to the committee to explain what had gone wrong. If the words of this provision were taken literally, he could have done that only if he had first cleared his lines with the Prime Minister. I could repeat lots of examples of matters where something appears in the press and the heads of the intelligence agencies then report to the ISC. However, the provision says that before any operational matter can be considered, the Prime Minister has to be satisfied that the three tests are passed. My first amendment would omit the words,

“the ISC and the Prime Minister are satisfied that”,

so that the provision would read, “The ISC may consider any particular operational matter but only so far as” the three tests were passed. In other words, it would remove the hurdle of satisfying the Prime Minister, which certainly does not apply at the moment. To have to satisfy the Prime Minister in each case would add a new and cumbersome bureaucratic procedure, which I doubt very much that the Prime Minister would welcome, let alone the ISC.

Doing that alone, however, is not sufficient, and that is where Amendment 23 comes in. That amendment says that the three tests would have to be passed before the ISC could consider an operational matter, and one of those tests would be that it was not part of any ongoing intelligence or security operation.

As I said, the ISC has no aspiration to consider an ongoing operation, unless the Government ask it to. It normally looks at operations retrospectively, but there are circumstances in which it suits the Government to ask the ISC to look at an ongoing operation, so Amendment 23, which my noble friend and I have tabled, states:

“The ISC may, notwithstanding subsection (3), consider any particular operational matter if the relevant Minister of the Crown agrees to consideration of the matter or it is consistent with the memorandum of understanding”.

An example of where this was necessary was cited by the noble Lord, Lord King. When he was chairman of the committee, it was asked by the Home Secretary of the day to consider the Mitrokhin case. That was a circumstance in which it suited the Government to ask the ISC to consider that operational matter. It would be very quixotic if the ISC had to say to the Government, “Sorry, you may have asked us to look at this matter because it would help you, but I am afraid we’re not allowed to because there is an absolute ban on it in the Bill”.

The purpose of these two amendments is to give more flexibility to the Government about the circumstances in which the ISC may look at an operational matter. It is not the ISC’s wish, in normal circumstances, unless the Government want it to, to look at matters retrospectively. The purpose of this amendment is to increase the flexibility which has been removed by the current drafting of the Bill. I beg to move.

[Baroness Smith of Basildon]

As noble Lords will see from the Marshalled List, we have added our names to Amendments 18 and 23, as the noble Lord, Lord Butler, noted, and we have also tabled Amendment 24 in this group.

The noble Lord, Lord Butler, has proved a worthy proponent of his Amendment 18, which would return the procedure for determining whether a matter should be considered by the committee back to the status quo by removing the requirement for the committee to seek the approval of the Prime Minister before making any such decision. It seems absolutely clear that the committee is bound in statute to abide by the remit set out in Clause 2 and it should not have to seek the approval of the Prime Minister to determine that it had done so. I agree with the members of the ISC and the noble Lord, Lord Butler of Brockwell, who have argued that not only is this overly bureaucratic but it is a step backwards from the current position where the committee itself determines, on the basis of given criteria, whether a matter falls within its remit.

Amendment 23, to which we added our name, and Amendment 19, which was tabled by my noble friend Lord Campbell-Savours, address the same point, but in a slightly different way. The Bill reflects the status quo by incorporating operational matters, which the committee has been de facto undertaking for some time, into the formal remit of the ISC. However, it seems overly prescriptive for the Bill expressly to prohibit the committee from reviewing ongoing operational matters. All Members of your Lordships’ House fully accept that there are security issues to do with reviewing operations that are current and may risk compromising individuals involved. However, there may be rare cases where an operation carries on for a long time and, despite the risk being minimal, it is still considered current by the standards of the Bill. It seems much more reasonable to make a general stipulation against the review of ongoing operations but to allow the committee to review such matters in special circumstances if it has the express consent of the relevant Minister.

Opposition Amendment 24 is a repeat of that tabled by my noble friend Lord Campbell-Savours in Committee. It would require the ISC to consider a request by a Select Committee to review a certain matter related to the ISC’s remit as well as any request to provide the Select Committee with information. It should be clarified that under no circumstances would the amendment require the ISC to act on any such request from a Select Committee, for instance, to disclose sensitive information or that simply would prove to be unmanageable for the committee’s workload. It would be a request. However, fostering greater communication and collaboration of Select Committees in Parliament could be only a positive development for the ISC.

--- Later in debate ---

[Lord Wallace of Tankerness]

I recall having read, in the past 24 hours, a particular phrase from the contribution of the noble Lord, Lord Lester, to which the noble Lord, Lord Campbell-Savours, refers. I could take the Joint Committee on Human Rights in isolation but numerous other Select Committees could start making requests and the point I am trying to make is that if the ISC started to receive requests—indeed, it is possible at the moment and no doubt the committee considers them—but on a statutory basis, the concern would be that if the committee decided to respond positively to those requests, that would detract from its core function and purpose. Equally, the point I was making was that if it regularly refused action, that could lead to tension and detract from what we are trying to achieve by way of a greater closeness between the new committee and Parliament.

There is also the point that I was making about the information. By its very nature, some of that information will be extremely sensitive and will be classified as secret or top secret, according to the government system of protective markings, but the ISC, in its accommodation, staffing and procedures is set up to handle sensitive information. The ISC secretariat is vetted and its accommodation is secure. However, other committees are not set up to deal with such information, nor are they, we believe, in a proper position to assess the damage that disclosure could cause. If the ISC refuses to provide information, again, that could lead to tensions between committees.

The new ISC will need to consider how it works with Select Committees and with Parliament more broadly, but I am concerned that the provision suggested in this amendment might serve to skew or disrupt the ISC’s work programme and its reputation could be damaged by refusals to take forward work or pass on information. It is important that the ISC can direct its own work programme as far as possible and focus its efforts on issues that it, with its unique perspective, thinks are most important. I appreciate the intention behind the amendment in the name of the noble Baroness and the noble Lord, but I hope that they will reflect on the concerns that have been expressed and feel able to withdraw it.

[Lord Butler of Brockwell]

My Lords, I am grateful for the Minister’s sympathetic reaction to Amendments 18 and 23. I will make two glosses on it. If I heard him right, he said that Amendment 18 would leave solely to the judgment of the ISC the test for considering an operational matter. I think he is thinking of the amendment that was moved in Committee because this amendment removes both the ISC and the Prime Minister. The Bill says:

“The ISC may … consider any particular operational matter but only so far”,

and it goes on to say that the matter,

“is not part of any ongoing intelligence”.

In other words, it means that it is a matter of fact and not something that the ISC could decide by itself.

The second point is that the Minister spoke about it as if these were matters where the committee asked for information from the agencies. However, as I think the noble Baroness, Lady Manningham-Buller, will confirm, that is not usually the case. The circumstances are that the agencies themselves take the initiative in reporting to the committee. They give the information—I should think that that is the case nine times out of 10. It would be a great pity if that closeness that exists between the ISC and the agencies were to be inhibited by a requirement that the agencies clear their lines with the Prime Minister before they can report such a matter.

[Baroness Manningham-Buller]

I have not intervened in this debate because I have really just been listening with interest and support most of things that have been suggested. If there were a great story in the press—with some truth in it or not, about the operations of the service—I would certainly regard it as my duty to report to the ISC as soon as I reasonably could. It would be reassuring to believe that there is nothing in this drafting to prevent that. It is part of the ongoing confidence-building between the two that the ISC does not have to demand a report on something like that, but gets an early report of the facts from the agencies.

[Lord Butler of Brockwell]

I am very grateful to the noble Baroness, who makes the point from her direct experience.

[Lord Wallace of Tankerness]

I hope that I gave reassurance that we recognise some of the issues that the noble Lord raised and that there is certainly a willingness to work through this. There is certainly no intention to retreat from the things which have normally been part and parcel of the ISC’s operations and deliberations up until now.

[Lord Butler of Brockwell]

I am very grateful to the Minister. On the basis on those assurances, I am very happy to withdraw Amendment 18.

Amendment 18 withdrawn.

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Moved by

[Lord Butler of Brockwell]

26: Clause 3, page 2, line 32, leave out “a draft of”

[Lord Butler of Brockwell]

My Lords, this may be the last amendment that we consider this evening. I can move it very briefly indeed because I am very grateful to the noble and learned Lord, Lord Wallace, for putting his name to it and therefore take it that we are pushing at an open door. This amendment would remove the words “a draft of” in relation to the report submitted to the Prime Minister. The committee does not and never has submitted a draft of the report; it submits its report. The Prime Minister can then ask for certain redactions to be made before it is published. However, it is by no means provisional. I take it from the fact that the noble and learned Lord, Lord Wallace, has put his name to this amendment that the Government will accept the removal of the words “a draft of”.

[Baroness Smith of Basildon]

My Lords, since we are considering the last group of the evening, I confess to being envious of the noble Lord, Lord Butler. I have been in your Lordships’ House a relatively short time in comparison with him, but I have never had an amendment signed by both the Official Opposition and the Government. I congratulate him on that achievement.

There is not very much that I can say on this amendment that will not be said even better by others. However, I will say something regarding our Amendment 27. This is a revised version of an amendment which I tabled in Committee. This amendment would amend the grounds on which the Prime Minister may exclude matters from the annual reports. These are currently broadly defined in the Bill as that which the Prime Minister considers,

“would be prejudicial to the continued discharge of the functions of the Security Service”.

It goes on in that vein. We have argued that the primary reason for the Prime Minister to request the redaction of material contained within the annual report should be on the basis of national security, or that it risks a disclosure of sensitive information as defined in the Bill. Again, we have reservations that the reason given in Clause 3(4) is a bit of a catch-all provision which allows the Prime Minister to prohibit the publication of material perhaps considered too critical and which may damage the reputation of government agencies.

Of course, we acknowledge that there may be circumstances in which the Government will need to prevent the publication of material. That may not be only on the basis of national security or the sensitivity of information. It could also be where the information might threaten the UK’s economic interests. However, it would be better to make such additional criteria transparent and accountable, in order to prevent any misrepresentation of the role of the Intelligence and Security Committee. Amendment 27 allows the Prime Minister to prohibit publication on grounds in addition to national security and the sensitivity of information, along the lines defined in the Bill, but also requires that the scope of the information must be set out in the MoU with the Intelligence and Security Committee. It is a moderate and reasonable amendment and I hope that the Minister will give it his consideration.