Public Interest Immunity Certificates

Lord Carlile of Berriew Excerpts

Monday 18th November 2013 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I readily acknowledge the determination with which the noble Lord has pursued these matters. As I have previously indicated to him, it is a long-standing convention that applications for PII certificates are neither confirmed nor denied. Indeed, I gave the noble Lord a Written Answer earlier this year in which I set out the reasons for that.

Immediately before coming into your Lordships’ House, I inquired about the status of the Turkish Republic of Northern Cyprus. It is my understanding that these issues were raised during the trial of Asil Nadir and that Foreign and Commonwealth Office officials were examined on the matter. As a matter of general law, the use of a PII to prevent disclosure of sensitive material does not render any trial unfair. Whether materials are or are not disclosed is not a decision for Ministers or for the prosecution; it is the decision of the trial judge. The trial judge will not allow a PII claim to stand if to do so would render the trial of the defendant unfair.

[Lord Carlile of Berriew (LD)]

Does my noble and learned friend agree that the PII ministerial certificates should be used sparingly, if only because they are made without anyone representing the interests of a defendant being present? That places a great burden on the trial judge, who has to second guess what the defence is likely to say on certain issues. It also means that the defence is unable to answer allegations which can easily be made, but which may be incorrect.

[Lord Wallace of Tankerness]

My Lords, as I indicated, in the case of criminal fraud trials since 2010, I am not aware of any case where a ministerial PII certificate has been advanced. I acknowledge that PII certificates are more commonly used in civil cases, and I accept my noble friend’s point, that that should proceed only after very careful consideration.

Marriage (Same Sex Couples) Bill

Lord Carlile of Berriew Excerpts

Monday 17th June 2013 Lords Chamber

[Baroness Cumberlege]

The noble Lord, Lord Alli, got it absolutely right. I will draw my remarks to a conclusion.

[Lord Carlile of Berriew]

I apologise for intervening at this late stage of my noble friend’s speech, but I would like to be clear about the consequences of what she is saying. Does she propose that a registrar who is opposed on conscientious grounds to divorce should have the right to refuse to marry people who are entering into a second marriage after divorce?

[Baroness Cumberlege]

No, my Lords, I am not going into divorce. I am trying to keep my proposed amendment quite narrow. I am trying to find a middle way, a way that allows registrars to have a conscientious objection because they are not bit parts in this exercise—they are intrinsic to it. I think they should have that right, just as doctors, teachers and everybody else that I have mentioned do. I also understand, having been in local government and knowing how registrars work, the issue of having to work out the workforce that is required to carry out these functions. I am saying that if a registrar is trying to exercise a conscience clause—the clause that we are here trying to give that person—but there is a shortage of registrars within that area, I am afraid that he or she would be compelled to do it.

--- Later in debate ---

[Baroness Noakes]

I completely understand that but the examples given are relatively few. One of them is abortion and it is very different from same-sex marriage, which concerns two people who love each other wishing to formalise their relationship. We cannot compare that with the circumstances that led to the law allowing conscience objections in relation to abortion.

Similarly, we are not talking about teachers dealing with the law of the land. Teachers have been given a conscience opt-out in relation to something that is not the law of the land. If the Bill is passed, as I hope it will be, it will become the law of the land and same-sex marriage will become part of the law of the land, and public servants should, in general, be required to comply with the law of the land.

I understand what the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lady Berridge said in relation to the Joint Committee on Human Rights—there might be a need for transitional provisions—but I cannot see that there is a need for the provision put forward by my noble friend Lady Cumberlege. I am not sure that a transitional provision is needed. It will depend on whether a number of people are genuinely affected by this, and I do not think that we have conclusive evidence of that. We have heard that in the past some local authorities have made arrangements on a transitional basis with those who have had problems in applying the law in relation to civil partnerships, but it may well be that we can achieve any transitional issues that arise through non-legislative means. Putting something in the Bill would seem to elevate the fact of same-sex marriage to something way beyond where it needs to be, when it is, as I said, simply about two people who want to formalise their relationship in accordance with the law of the land.

[Lord Carlile of Berriew]

My Lords, I have listened to this debate with some concern because we have heard references to conscience in a space in which conscience may not belong at all. We have heard about shades of grey in this debate; this evening, we have had shades of brown. I strongly agreed with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, when he referred to the judiciary. What occurs in these situations? Things may have changed a little since the noble and learned Lord, Lord Mackay of Clashfern, was Lord Chancellor. Perhaps in those days county court judges in Welshpool, Caernarfon or Lambeth were able to pick and choose their way through cases they liked or did not like. However, if I may respectfully say so, the reality is that a judge is a very senior form of public official who hears the case that is presented before him by an often hard-pressed and unsympathetic listing officer. It is form of appointment, as a doctor’s appointment might be.

Equally, if somebody wishes to enter into a civil marriage, what qualifications are needed? They have to establish that they are 16 or over, free to marry and not closely related. There is no issue of conscience involved in that. Then they have to make a convenient appointment to attend before the registrar who, like a judge hearing a case, happens to be on duty on that day. They have to produce some documents—it is a bit like opening a bank account—including their passports, birth certificates and a utility bill or bank statement. Once the appointment has been made with those documents, they attend and there is no liturgy whatever. They are required to exchange promises if they are marrying, but there is no set form. Of course, the registrar helps out if required but they can write their own promises and exchange them quickly and informally. Where is the conscience aspect of this? The registrar is simply a public official providing the statutory facility to enter on a register the names of two people who wish to be married. That is the beginning and end of it. It could not be more different from going to see a vicar, priest, rabbi or imam to seek a marriage founded on a religious belief.

I have huge respect for my noble friend Lady Cumberlege and it is with great regret that I disagree with her so profoundly. However, on this subject, I think we are allowing this debate to trespass into an area in which it does not belong. I urge your Lordships to reject this amendment accordingly.

[Lord Elton]

My Lords, it is trespassing very close on bedtime, too, so I will not take much of your Lordships’ time. I have an amendment in this group which I think your Lordships have forgotten. It is very short and I will try to be the same myself. I start by picking up what the noble Lord has just said. You make an appointment before you go to see the registrar. You do not walk in the front door and say, “I would like now to be married. This is my happy day”. Therefore the scenario the noble Baroness painted could not occur.

Succession to the Crown Bill

Lord Carlile of Berriew Excerpts

Thursday 14th February 2013 Lords Chamber

[Lord Carlile of Berriew]

My Lords, I declare an interest as father and stepfather of five admirable females, each of whom tends to treat me graciously as a kind of loyal subject.

The Bill is timely. It seeks to ensure the stability and the acceptable continuity of the realm. I happen to be, like a number of other Members of your Lordships’ House, the first member of my family ever born in the United Kingdom. My father could have gone to the United Kingdom, the United States of America or possibly elsewhere. He was born in 1904, and from an early age was a fervent Anglophile. Part of what brought him here, as he told me many times, was the sense of historical continuity given by the Crown. The Bill and the negotiations that have preceded it are a mark of the willingness of the Crown to embrace modern values and diversity in society, particularly relating to the role of women.

I will raise four points with my noble friend the Minister, of which he has had advance notice. I acknowledge the part played in these by a brilliant and unusual constitutional lawyer called Graham McBain, who has written copiously and persuasively about this subject and about redundant statutes. Although I will not be moving amendments at later stages of the Bill, as it would be inappropriate on this Bill, these are anomalies which the Government should consider.

The first relates to the Roman Catholic Relief Act 1829. The Government have remembered in the Bill to amend the Regency Act 1937 so that a person who fails to obtain the consent of the Queen to their marriage cannot be regent. This is reasonable. The Regency Act also prevents a Catholic from being regent by reference to the Act of Settlement 1700. However, the Bill provides that the Act of Settlement is now subject to the Bill. The result is quite simple: a Catholic can now be regent.

Except that it is not quite so simple, because the Government appear to have forgotten another Act of Parliament: the Roman Catholic Relief Act 1829. It, too, prevents a Catholic from being regent. By not repealing the 1829 Act, we will have one Act that allows a Catholic to be regent, and one that does not. I do not know if anyone will brief me to apply for judicial review if we ever have a Catholic regent, but it seems that this is the sort of issue that ought to be tidied up.

[Lord Deben]

As I understand it, the regent is not Supreme Governor of the Church of England, which rather suggests that the noble Lord, Lord Dubs, was right to suggest that there ought to be some simple side-stepping of this to get over the whole problem. Would my noble friend not agree?

[Lord Carlile of Berriew]

I respectfully agree with my noble friend and the noble Lord, Lord Dubs, on this point.

My second point, which I was going to make in greater detail but will not, has already been made by my noble friend Lord Lang about consent to marriage and whether six is an adequate number. I would have taken the opposite view—that six is too large a number—on an entirely different point of principle. However, we should be able to debate this issue and determine it in relation to this Bill. It is a right in modern times for a man and a woman to marry whom they wish. Indeed, according to my rather dog-eared copy, the European Convention on Human Rights did not design that right but it makes clear that that right exists, not just in the United Kingdom but throughout the countries of the Council of Europe.

To prevent people from marrying whom they wish is quite an intervention in their human rights. To extend it to as many as six people is to extend it too far. I say to my noble friend Lord Lang that we live in a different era from the one in which Queen Victoria became the monarch. I have my doubts as to whether what happened then could happen now, or whether it is in the realms of reality given the welcome size of our modern Royal Family.

Thirdly, I suspect that the Government may have forgotten another law. Even before the Royal Marriages Act 1772, the sovereign had a right, and exercised it, not under statute but under the common law, to prevent marriages of other members of the Royal Family—for example, to prevent a dowager Queen from remarrying. It is possible that that right still applies and that, under the common law, the sovereign could enforce his or her consent in the case of the marriages of brothers, sisters, cousins et cetera. Therefore, I respectfully suggest to my noble friend the Minister that any anomaly in the common law should be abolished in this Bill so that we do not have another unforeseen problem.

My fourth point arises mainly from the fact that I was brought up in east Lancashire in the county palatine, where at every dinner I would be shocked if I did not hear the loyal toast made to the Queen, the Duke of Lancaster. Of course, that is a sovereign’s title, but there are other titles which the sovereign’s eldest child inherits, which already have been mentioned by my noble friend Lord Trefgarne. I would have drawn particular attention to the Duchy of Cornwall and, as someone who represented a constituency in mid-Wales, the earldom of Merionethshire, which is regarded with great value in that beautiful, if hard to access, part of rural Wales.

If His Royal Highness Prince William and the Duchess of Cambridge have a girl, she will, thanks to the Bill, be able to become Queen. However, she cannot as of right become Duchess of Cornwall or Countess of Merionethshire. That seems to me to be an anomaly. I understand why the Government do not want to get involved in this Bill and in the hereditary peerage at large—that is a private grief enjoyed by a number of my noble friends in this House into which I would not wish to interfere. But surely we could engage in titles that belong to the heir to the Throne. In that, I support my noble friend Lord Trefgarne.

I raise these issues because, as I was thinking about it, I realised that we are unlikely to return to this subject for a few hundred years. That may be a blink in the evolution of your Lordships’ House—I would add “thank heavens” from my personal position rather than from my political position—but if it is to be a few hundred years before we return to this subject, should we not deal with it now? Should we not take into account these and other difficulties that might arise, sort them out and iron them out?

Finally, I am sure that your Lordships’ House would wish to join me in offering our warmest good wishes for the challenges of parenthood for the royal couple.