Deregulation Bill

Lord Deben Excerpts

Tuesday 11th November 2014 Grand Committee

[Lord Gardiner of Kimble]

My Lords, I thank my noble friend for his amendment. The Government are clear that busking can enrich a community’s quality of life and generate a positive atmosphere enjoyed by many people. Regrettably, though, street entertainment can sometimes be a source of conflict between buskers, businesses and residents. Complaints of noise, nuisance and anti-social behaviour can arise, and police and local councils have to respond and try to find solutions.

The Government do not start from the position that busking requires regulation and control. Busking should be about freedom of the individual, and only if necessary should local action be taken to curb certain excesses. To answer the noble Lord, Lord Rooker, although I am still waiting for some advice, there is actually no general legislation on the subject of busking but local authorities can have policies on it, including codes of conduct or permit regimes, and occasionally by-laws and local authority legislation, such as the London Local Authorities Act 2000. That Act enables London councils to license busking. Indeed, it is a matter for London councils to determine whether or not they utilise these powers.

The amendment proposes that a government Bill should seek to overturn private legislation promoted by London local authorities and passed by Parliament. If we were to accept the amendment, the Government would indeed be saying that London councils should not have the option to decide whether or not to license busking based on local circumstances. Indeed, we feel that this is not a subject for top-down government solutions; it is for local authorities to determine fair, reasonable and transparent policies in relation to managing our streets.

As far as the Metropolitan Police Act 1839 is concerned, while Section 54(14) is rarely used, the Metropolitan Police need to retain the provision to give their officers the tactical option of dealing with what they have called “busking-related offences”. We are seeking to strike a balance between freedom to busk and having to control nuisance caused by persons with no musical intent.

[Lord Deben (Con)]

I have often had discussions with the Metropolitan Police. I find the phrase “busking-related offences” precisely the kind of comment always made when you are suggesting that things might be changed. Perhaps the Minister could describe a “busking-related offence” that is not covered by any other legislation.

[Lord Gardiner of Kimble]

My noble friend always intervenes to engage the Committee in important issues with his own touch. It is important to say that I know what he is saying but that, at the same time, if the Metropolitan Police need to have the ability to ensure that they have some means by which they can have assistance as regards a certain possible alleged assistance, for all the cynicism that there may be about the Metropolitan Police, we have to place our trust in them.

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[Lord Stoneham of Droxford]

My Lords, the main arguments have been made in favour of these amendments but I have just one or two points to make. We have to remember how the growth of pay TV is such that its revenues now hugely exceed those of our public service broadcasters. Sky TV’s revenues are more than twice the BBC’s, which gives it huge power. The Government are considering a review of licence fee collection, but are not prepared to accept some changes to this Bill along the lines of this amendment. Why on earth are they not prepared to have a review or consultation on the proposals which stand in this amendment—and the sooner the better?

[Lord Deben]

My Lords, I believe that my noble friend will realise that my earlier intervention had a degree of mischievousness to it, as I had come in specifically to address this particular amendment. I do so for three reasons. First, sometimes we on this side of the House have been disappointed with the Deregulation Bill, because quite a number of things have been deregulated that really do not seem to have been very important. There has been a tendency to add up the number of things that we have got rid of. On one occasion my noble friend had to justify the removal of a statutory right from someone who was still able to exercise it voluntarily—not, I thought, one of the biggest things that we have ever done in government. I am particularly concerned that when we have an opportunity to make a change that is really worth while, we should do it.

The second reason for my concern is that sometimes one of the ways you can judge the validity of a proposition is to see who opposes it. For much of the time in my period in the House of Commons, there were one or two Members on my own side from whom, when I knew they were in favour of something, I was almost automatically on the other side. I believe that that is true of both sides of the House: we all have bellwethers, who are always extremely useful if we have not quite grasped what is behind the issue. My noble friend’s characterisation of the dual position of Fox News is one that deserves considerable investigation. The reason that people do not want that is because they make money out of it. We therefore have to ask ourselves some very simple questions. Should they make money out of it? Is it in the public interest that they make money out of it? Is it money that could be better spent somewhere else?

That brings me to my third point. Torn aside from all the history, the phrases, the arguments and the discussions, this is a simple matter. We once had a different system, and we had different rules to deal with that system. The system has changed but the rules have not. Would it not be sensible to change the rules now that the system has changed? If there is a big reason for deregulation, and there are several, the biggest of all is that many Administrations suffer from the inability to get rid of good things when they become bad. You can go round the whole Continent of Europe and find all sorts of bits of regulation that were frightfully good at the time when they were put forward but which now get in the way of trade, make it more difficult for people to innovate, and distort the market.

I am not always known for my upholding of the free and unfettered market, mainly because most markets are neither free nor unfettered. However, I wish to say that here there is an obvious way in which a Conservative-led coalition can make the market freer. In those circumstances, seeing as it appears to have the support of the Opposition as well as that of its coalition partners, there is not much reason for saying that this is not a sensible amendment. I therefore hope that my noble friend will find it possible, if not to give way on this occasion, at least to indicate that he has every intention of giving way at a more amenable moment, but before the Bill passes.

[Lord Dubs (Lab)]

My Lords, I have enjoyed listening to the speeches on the amendment moved by the noble Lord, Lord Grade, who gave a very powerful indictment of the present situation. I do not know what the Front Benches will say to this.

When I was first in the Commons in 1979, a small Bill or measure was working its way through—I cannot remember what it was—and both the Front Benches were passionately in favour of it. I ended up in the Lobby, voting against it with friends, who said, “When both the Front Benches agree, we’d better all be careful”. I do not know about that. However, when Governments are in difficulty, our brilliant officials put forward a number of ideas or thoughts. One is to say, “Accept the principle, but not now”. That is pretty much what Governments do in order not to have to do anything. The other thing they could say to get out of it is, “Well, we’re going to have a review”, because that puts it all into the long grass. Or they can say, “This measure has other implications, and we’ve got to think about those”. Those are all stock excuses that the civil servants, in their brilliant and imaginative ingenuity, pull off the shelf and say, “Here, Minister; these will get you out of the mess you’re in”.

The Minister is in a bit of a mess, because people with far more experience in the industry than me have all united to condemn this anomaly, which, frankly, in logical terms, cannot be defended. I bow to the experience of many Members of this Committee who have far more media experience than I have. I served for a brief time on the ITC and for a slightly longer time on the Broadcasting Standards Commission, but we on the commission certainly did not deal with matters of this sort, so I accept that noble Lords here have far more experience in this than I have.

I suspect that the Minister will say that he accepts the principle, and then there will be a big “But”; I look forward to hearing that. However, we are in a ridiculous position if he does not accept it anyway. We have a brilliant creative industry in Britain; our television creativity is second to none. We are allowing it to be weakened by this anomaly, which dates back many years as a way of protecting a small and up-and-coming cable industry. The time has come to say, “No, there’s no point in this”.

We have to support our creative industries and, in terms of competition, have at least a semblance of a level playing field, which we simply do not have at the moment. We are allowing the public service broadcasters to subsidise the pay TV platforms, and surely that is not right in any approach to competition policy. In a normal situation, one would say that these things have to be negotiated freely between the parties and, where they cannot be negotiated freely because of anomalies, we should get rid of the anomalies. Good heavens, I am in the Labour Party and I am arguing for competition—what is going on here? What we do not want is this partly hidden subsidy.

Of course, as has been said, Virgin Media and Sky are willing to enter into such a process for the channels not covered by Section 73—in other words, ITV2, ITV3 and ITV4. It does not make sense even in those terms, any more than it makes sense in terms of what News Corporation is doing in the United States. There are many ridiculous defences of the present position and they just do not stand up at all. I would argue that Section 73 has outlived its useful life. It defies logic, it defies fairness, it defies competition policy and it might defy even the ingenuity of the Government to defend it.

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[Lord Deben]

Does the noble Lord notice that he is almost exactly paralleling the suggested answer that was given to him by his noble friend Lord Dubs? I respectfully say that it is supposed to be Ministers who listen to the civil servants giving them those ideas; I thought it was the Opposition who were supposed to get out of that and be free to be able to say, “Well, we may have got it wrong in the past but perhaps we are now on the side of the progressives who have been so far putting forward this case”.

[Lord Stevenson of Balmacara]

I am always grateful for comments made by the noble Lord, Lord Deben, whose expertise and knowledge are legendary in this House, but, of course, prospective Ministers might also be wise to think about what civil servants are advising.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Lord Deben Excerpts

Wednesday 18th December 2013 Lords Chamber

[Lord Tyler (LD)]

My Lords, the argument does appear to be very simple. I wish it was so. I will illustrate the complexity that could be caused by one or other of these amendments. Amendment 170L would create a fourth regulatory period in electoral law; there are already three. One would be of 12 months for both non-party and national political party expenditure. One would be of four months for candidates’ long campaign, introduced for the 2010 election by the PPE Act 2009. There would then be the traditional four to six-month period post-Dissolution of the so-called “short campaign”, which was imposed by the Representation of the People Act 1983 but which originated from the Corrupt and Illegal Practices Prevention Act 1883. So there is a little more complexity than both of the noble Lords who have already spoken suggested.

As the noble and right reverend Lord, Lord Harries, indicated, there are of course implications for a number of other parts of the Bill. If either of these amendments were to be passed, they would have an impact on spending caps. It would surely be very odd if his commission’s recommendations for the higher spending limits—that is, £1.25 million in England—applied over half the regulated period. This would make the proposed new limit equivalent to £2.5 million if it had been over 12 months. There could then be an argument for no constituency limits. This could mean an unlimited sum being spent in constituencies up to four or six months before an election. I do not accept the argument that nobody is interested in what is spent in the longer period leading up to an election. It can be very influential, as those of us who have fought elections know. After that period, a further £1.125 million could be spent in one constituency—a target constituency, a marginal seat or a small number of constituencies—which would vastly outspend the candidates themselves. The argument is very seductive. The two noble Lords who have spoken are regularly seductive in this House and speak with the tongues of angels, but I have to say that this particular case is not as simple as they suggest.

[Lord Deben (Con)]

My Lords, I am hoping to be seduced. There is a kernel to this that is more important than the detailed argument we have just heard. The kernel is that it might be more sensible to have a shorter period in which this whole thing operates. If I may say so to my noble friend, it is not a sensible argument to say, “It’s awfully inconvenient to do this because all sorts of other things might have to be reorganised”. I hope that the Minister will take seriously the following argument. We now have a system whereby we know when the next election and the election after that will be. If you think about it in those terms, you realise that no one is going to get anything much under way at this point just before Christmas. The real period will in any case be that from 1 January onwards. That is what is going to happen.

Given that there is so much unhappiness about this bit of the Bill and that so many people are concerned—I have checked my Twitter feed and seen how many people remain unconvinced by what the Government and the Minister are saying—it might be sensible to think about making a clear change, and saying to people, “Look, we have listened and we can see that there is still a concern about the weight upon organisations, and therefore we will at least think about the possibility of integrating into the Bill a shorter period”. That would of course mean that my noble friend’s concerns would have to be looked at. After all, this is the Committee stage. One of the things that you do in Committee is raise matters that do not actually fit at the time but might lead one to wonder whether there might be a little bit of a shift.

I was hoping perhaps not to be seduced but, in a gerundive sense, to be put in a state to be seduced. In other words, it would be helpful for the Minister to say that he will look at this and see if there is a possibility of giving confidence to people that their fears would be at least more limited.

The only other thing that I will say is that I am concerned about the immediate effect, because all the arguments about referenda and other things fitting at the same time create a very complex web. That is the second reason why I have difficulty with the views of my noble friend Lord Tyler, with whom I often agree—even though I am not supposed to. There is this difficult web in any case, and therefore it is not unreasonable to take apart the pieces and knit them together in a different manner.

[Baroness Hayter of Kentish Town]

My Lords, I am not going to repeat the points that have been made, which in part arise from two issues. One is that there are so many bits in the Bill that change the way in which a number of organisations are going to have to work that a lot of them are concerned. The changes are also bureaucratic—and none of us likes that.

We have to place the other issue on the shoulders of the Government, I am afraid, because they brought the Bill in so late. We must remember that the Bill was introduced the day before the Commons rose for the Summer Recess, had its Second Reading on the day the Commons returned, and so on. That added to the feeling among organisations that there was such haste with the Bill that their views were not being heard. I fear that some of the questions that have been asked are still not getting answered

From the point of view of the organisations, how on earth are those that are affected going to get all their bureaucracy up and running before the regulated period? It starts in 23 weeks and two days’ time. In fact, it really starts at the beginning of April, because virtually every organisation’s financial year runs from 1 April to 31 March. Therefore, all their systems have to be up and running by then. That is adding to the concerns.

I remain worried that we are not going to see a number of workable proposals. We talked earlier about the ones relating to coalitions in Part 2 coming in good time. I know that the Minister was unable on Monday to promise that we would see the new government amendments on 7 January. It was for the sake of this House that we should have them, but of course it is the affected groups that will also need to see those amendments in order to even begin to work out how to respond in good time.

The noble Baroness, Lady Williams, who is not in her place, said that Part 2 had to be reconstructed from the ground up. We know that that is what she wants and what the outside groups want. Failing that, perhaps the noble and learned Lord could explain what changes the Government will make to ensure that organisations can prepare for the regulated period well ahead of the due date.

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[Lord Deben]

My Lords, I will say one thing. I am very puzzled by the way in which, almost every day in our debates, something happens which reminds us that it is entirely out of kilter with the Government’s generally stated opinions. This Government have generally stated their opinion that they wish to get rid of unnecessary red tape. They are always saying that and yet, every now and again, we have a Bill that seems to have absolutely forgotten that.

We owe a great debt to my noble friend for raising this particular example. It is not the only example—there are a whole lot of examples in the Bill where the Government have suddenly decided that they will do precisely the things that they said they will not do, for very much better purposes, in a whole lot of other areas. For example, we could do with a lot more regulation on environmental matters to get things going, but every time one raises that, one is told, “We don’t want more regulation”. However, in this particular area, regulation appears to be not only implicit, and explicit, but continuous and extensive.

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[Lord Finkelstein]

I am going to gain an exemption from my other duties as a taxpayer, in order to do this. It therefore constitutes a privilege that I am being given for giving that money to a political party. Naturally, we are all in favour of doing that because we are all involved in politics.

[Lord Deben]

I am sorry to interrupt, but if we are starting to talk about taxation in that form, I must say that I do not want a state in which it is a privilege not to pay taxes. That is a very peculiar Conservative view, if I may say so.

[Lord Finkelstein]

We are required to give money to the state to pay for all the services that we enjoy, and the amendment suggests that instead of doing that, we should be given an exemption from that duty merely by dint of the fact that we wish to give money to a political party—a privilege that is not granted to us in respect of any other decision that we may take. Any other decision that I may take about what to do with my money is not granted that privilege; I am not to be granted an exemption from my duty to fund the National Health Service—except, by coincidence, in the opinion of a group of political activists, if I give money to the cause of political activism.

[Lord Deben]

My noble friend has just admitted that he has a large number of charitable activities. I am very happy that that should be the case. The real problem with not extending this provision to political parties is that it says that a political party is somehow less worthy than charities. My concern is that that is an insult to the noble nature of a political party.

[Lord Finkelstein]

Being a member of a political party is not a charitable activity.

[Lord Deben]

Of course it is.

[Lord Finkelstein]

If it were a charitable activity, the party would be a charity. It is not a charitable activity; it is a political activity. There is a distinction between a charitable activity and a political activity. I am sure that the noble Lord is motivated in his politics by a charitable instinct, but that is very different from a political party being a charity. There are rules that govern what is a charity—rules that we have determined should exist. If we wished political parties to be charities, my point is precisely that the electorate would begin to expect us to impose on political parties the same sort of restrictions that we place on charities.

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[Lord Hodgson of Astley Abbotts]

My Lords, I wish to add a few words. This discussion shows that in the area of political funding, for every solution there is a problem. I take a more sympathetic view of the issue than my noble friend Lord Finkelstein because I think that it is dangerous for parties to depend for their existence on a few major donors, wherever those donors may come from. We therefore have to find a way to replace those donors either with the state or by encouraging more people to make their donations worth more: for example, by means of gift aid, thereby taking them into the charity arena.

At the moment, there is a disconnect between the general public and Parliament. There are a number of reasons for that but the noble Lord, Lord Campbell-Savours, put his finger on it: a large proportion of that disconnect is due to difficulties in the area of funding. Some reports are blown up by the newspapers but the public is left with the impression that everybody has their nose in the trough. Even when people are found not guilty of offences in this regard or libel suits are successful, that impression is nevertheless left behind.

I offer a personal view on this. I am on the Lord Speaker’s outreach panel, the members of which give talks in schools, mostly to sixth forms, but sometimes to members of luncheon clubs and so on. It is interesting to see the reaction of 17 and 18 year-olds to talks about Parliament. After you have told them a bit about what we do, you ask them what they think about Parliament and the subject of money always comes up. It is not a question of one party or the other but of a general “smell”. At the moment, we are not passing the “smell” test as far as 17 and 18 year-olds are concerned. I am not suggesting that this amendment is perfect, but it provides a way for us to begin to address the “smell” test and start to deal with some of the issues that so far we have failed to grasp. If we do not grasp them, I fear that the reputation of Parliament will continue to decline because the newspapers and the media will continue to make hay with our reputation.

Although my noble friend is absolutely right about his narrow point, he has to decide where the balance of advantage and disadvantage lies. We should tell our fellow citizens that this process should mean a lot to them as it is the means by which irreconcilable policy issues are reconciled, and that if we do not reconcile them inside this place, we literally fight it out in the streets; and that is not very attractive either. Although I do not think that the amendment is the answer to this problem, I am sympathetic to it because it is the beginning of the answer and deserves to be explored further.

[Lord Deben]

My Lords, I have always been an agnostic about this issue and it is rare that I agree with the noble Lord, Lord Campbell-Savours, but I thought that his speech was remarkably informed. However, the important point is that those who do not want this measure have to find an alternative; and that is the trouble. Every time you talk about party political funding, people do not like whatever you suggest, so you end up with a system which is clearly not acceptable.

This measure is the best solution I can think of for the very reason that the noble Lord who has just spoken put forward: that is, whenever you give a talk in schools, money is the universal and everlasting concern that is always raised. I am not sure that it is easy to answer it because I know perfectly well that, in all the cases I have ever known, donors to the Conservative Party did not get what the newspapers thought they got. I think of a specific occasion when I was a Minister when, because somebody dared to tell me that a particular person was a donor, I am afraid that the opposite happened to what would otherwise have happened. I am sure that the noble Baroness on the Front Bench opposite would agree that such things happen on the opposite side of the House as well. That is what decent people do but it is not what indecent newspapers pretend those people do.

If our whole body politic is being poisoned by the present system, it is incumbent on those who object to the measure being put forward to suggest a different, better solution. I hear none, so, although I do not particularly like this measure, I do not know of a better one. We need to think about this issue much more seriously. The political parties should not wander on saying, “Well, we cannot think of anything better so we will go on with this”, because it is damaging the whole system.

[Lord Finkelstein]

Is the noble Lord proposing that there should be a cap that accompanies this amendment? Because if he is not, why would it affect the problem that he is talking about? It only affects the problem that the noble Lord is talking about if you ban people from making the bigger donations.

[Lord Deben]

I am sorry; my noble friend misses my point. I am an agnostic on this. I am merely saying that as an agnostic listening to the debate, having listened to this debate for many years now, I think that those who defend the present system should not be allowed merely to say, like my noble friend did just then, that this is a problem, and that that is a problem. They have to explain how we can go on with the present system without the poison constantly dripping down into the system in which we live. It is rather like climate change. I never understand why I am supposed to explain that it is dangerous to put vast quantities of gases into the atmosphere. They should have to explain why it is safe to do so. That seems to me to be the right way round. I am in exactly the same position here. Those who defend the present system have got to explain why it is that we should go on with something that is clearly poisoning the body politic.

[Baroness Royall of Blaisdon]

My Lords, that is an interesting idea in an interesting debate. I certainly do not defend the present system. I agree with all of the noble Lords, including my noble friend Lord Campbell-Savours, that funding causes a disconnect with the people of our country, and that we have got to do something about it. We have to lance the boil, or whatever metaphor one wants to use. People have made various suggestions, including about the cap and about other things such as those that the noble Lord, Lord Tyler, talked about. It is absolutely clear that we have to find a solution. I am sure that all of us who are engaged in politics, and all of us who are here would agree, that politics is a “noble activity”, as the noble Lord said. It is a fundamental part of our democracy, and we are here to protect our democracy and to be vibrant activists.

However, it is my party’s strong view that whilst this is an interesting idea, it should not be looked at in isolation, and that what we have to do is to knock each other’s heads together, and find a solution in the round. My party—our party—wants to resume the all-party talks. It can be done; we have got to find a way through. It is not that I am being complacent. I can see that the noble Lord, Lord Marland is getting frustrated by what I am saying, but I can assure him that I spend a huge amount of my time raising funds for my party. I know how difficult it is, and I know all the problems with the media and everything else. We have to find a solution. It may well be that this is part of the solution, but it cannot be dealt with in isolation. But I am very grateful to my noble friend for raising this very interesting issue.

Marriage (Same Sex Couples) Bill

Lord Deben Excerpts

Monday 8th July 2013 Lords Chamber

[Lord Alli]

My Lords, I will resist the temptation of adding a single additional amendment to the 135 on the Marshalled List. Perhaps I will look at that again at the end of the second day of Report.

[Lord Deben]

My Lords, it is always with very great care that one clashes with the noble and learned Lord, Lord Mackay, particularly when one has to suggest to him that there is an illogicality in the argument that he has put forward. He said, on the one hand, that there is a whole range of differences between same-sex marriage and opposite-sex marriage. In that, he is not only right but obviously right. He then attached to that the reason for making this distinction in the Bill, but it is a distinction that does not need to be in the Bill because, as he says, it is universally recognised. Therefore, making the distinction in the Bill must be for a different purpose.

As we have heard the debate continue, we have moved from the careful language of the noble and learned Lord to expositions which explain the purpose of the amendments. When they are referred to as modest amendments, I think only of the modest proposal which, in Dean Swift’s writing, went rather further than that title suggested. This modest amendment is here for a purpose. It is to say now what has so far not been able to be said more directly, which is, “Wait a moment, it is not quite what you say”. We will have made sure that in the Bill, and therefore in the Act, we make a distinction that can be referred to and used not only internationally, as the noble Lord, Lord Alli, said, but at home.

I think that Christians should be even more strongly opposed to this than others because the Bill is specifically designed to give us an absolute right to maintain our view about marriage. It does so on the basis that it gives the state an absolute right to maintain its view about marriage. That was, after all, something that was started back in the days of Henry VIII, when the state said that it could make its own decisions about what marriage meant, even though that meant disagreeing with the highest powers in the church.

I am not suggesting that the state should go any further in its relationships with the church than Henry VIII did, but I am suggesting that this is an historic decision and one that we should respect. The church, under the quadruple lock, is absolutely able both to perform and to give its teaching about marriage. That is a teaching which I wholly support. As a convert, I have to, otherwise I would not have made that decision and choice. However, I also believe that parliamentarians have a duty to the whole nation, and those in the whole nation who seek marriage do not seek marriage followed by brackets. Indeed, I think that opposite-sex couples ought to object to this. Why should they have marriage so defined?

I turn to the second argument, which is that in the very clear words quoted by the noble Lord, Lord Lester, there is now a different way of looking at marriage from the historic one. That was rapidly picked up by those who want to support the amendment. I hope that we will think carefully about this. Differentiating between same-sex marriage and opposite-sex marriage because you think that the one is about a new view of marriage and the other is about an old view is of course not correct. If you wanted to distinguish between the new view and the old view of marriage, you would have to have more brackets. You would have to have “(traditional) marriage” for opposite-sex marriage and “(new) marriage” for opposite-sex marriage. No one in this House would suggest that as one approaches the registry office or the smart hotel, one should go up with a list of alternatives, asking, “Am I going in for marriage-light or marriage-heavy? Am I taking marriage in this way or that way?”. From much of my experience of some 35 years in surgeries as a Member of Parliament—more, if you take in the period of candidacy—I do not think that anybody would understand having to fill in a form on that basis.

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[The Earl of Listowel]

My Lords, before the noble Lord sits down, he has made many important points but in his first point I think he was saying that there is no risk of confusion in the public mind and no need for this differentiation because it is all clear. However, is there not a risk in terms of raising children? There is a real question in the public mind about having children raised by, for instance, two men or two women and about children being raised without a father. I must not go on, of course, and this is a simple question. However, there is confusion, and is not the benefit of this amendment that there would be less confusion?

[Lord Deben]

I very much thank the noble Earl for that question. It would be germane if we were in France and debating the French changes, because France changed the law about adoption. The whole system was changed. We, of course, are not changing the law, as that provision is already there and is not altered at all. If that was where we were and what we were doing, there would be a different argument because I have to tell the House that I have a huge problem with the creation of babies in a world in which there are so many babies waiting for adoption. I have not yet come to believe that there is enough evidence to say that same-sex adoption is the same as or equal to opposite-sex adoption, but none of those issues is before us today. If they were, we would have a different argument. Because they are not, the proposed change is naked and unashamed. It is not about children or any of those things. It is about two different sorts of marriage and the difference will be upheld by those of ill will and by some of those of ignorant will, and we should not have it.

[Lord Fowler]

My Lords, I have had great respect for my noble and learned friend Lord Mackay of Clashfern ever since we sat in Cabinet together, but on this proposition I am afraid I cannot support him. He seems essentially to be making a division between one group and another when the whole aim of the Bill is to eliminate divisions and to seek to create some equality. To that extent, the amendment goes against the spirit of the Bill, which both Houses of Parliament have given massive majorities, and I think there is a limit to the number of times that we can debate the Second Reading in this House.

I have been told by, among others, my noble friends Lord Waddington and Lord Cormack that we must listen to what is being said outside this House. I agree, but that is an argument that goes both ways. We should also take into account what gay and lesbian people feel about the way that they have been treated and whether this is yet another attempt to create an underlying division between them and the rest of society. The reason they will feel that—and this is a point that my noble friend Lord Deben referred to in his excellent speech—is the discrimination and prejudice that they have faced over the years in this country. Of course it is true that homosexuality is no longer an offence in the United Kingdom, but let no one believe for a moment that the prejudice has vanished with it. It is true that it is not so bad here as in some notoriously homophobic countries overseas. I have just returned from Russia, where I have been looking at exactly these kinds of issues and where a new law has been passed to stop gay issues being discussed, making gays and lesbians subject to attack.

However, we still have a mountain of prejudice to overcome here in this country. A few days ago I was listening to a much respected figure in the HIV world who said that if he was walking down the road in this country arm-in-arm with his male partner, he could not be sure that he would not be verbally or even physically abused. That is Britain as it stands today, viewed from his eyes. I listened to the gay footballer Robbie Rogers—a committed Christian, incidentally—who came out only after he had left British football. One cannot speculate too much about the reason for that or about the reaction that he would have received had he done so before.

We can listen to the YouGov survey on behalf of Stonewall, which showed that over the past five years 2.5 million people of working age have witnessed verbal homophobic bullying at work, 800,000 people of working age have witnessed physical homophobic bullying at work and two-thirds of people aged 18 to 29 say that there was homophobic bullying in their school. That is not a record that this country can be remotely proud of. It is that sort of thing that underlies my opposition to my noble friend’s amendment.

The overriding goal of policy today should not be to underline differences but to underline the goal of equality of treatment. That intention was overwhelmingly backed by the votes of both Houses of Parliament, and I certainly do not believe that we should try now to unpick the votes of the two Houses at Second Reading in this amendment.

--- Later in debate ---

[Lord Elton]

My Lords, my father told me that when this House was evacuated from this Chamber to let the House of Commons sit here, the Lords moved to the Robing Room. The space there was limited by the voting lobbies on either side, the rails below the Throne and the Bar at the bottom of the House. He said that the result was not really a Chamber but a rather comfortable drawing room, in which one could not have oratory but only talk to each other. He thought it was a great pity that the Lords returned to this Chamber. We have heard a lot of oratory today and I think sometimes it moves people to go a little further than they intended. For instance, my noble friend Lord Deben said that anyone who opposed the amendment did so out of ignorance or something—

[Lord Deben]

I am sorry. If that was said, it was a mistake. I said that, were we to pass this amendment, some people outside, either through ignorance or bad will, would use it in a way which would be damaging and divisive.

--- Later in debate ---

[Lord Pannick]

I am not aware that judges have an ability to refuse to hear and determine cases on the basis that they disapprove of the particular law of the land that they are charged with the duty to enforce. They accept as part of the job that their job is to apply the law; the law is made by Parliament.

[Lord Deben]

I believe that on this occasion we should remember what we have just done. We have just asked those who disagree with the view that I and others have taken, to understand why it is that marriage has to be the same for both single-sex and opposite-sex couples. Those of us who have done that have now got to think carefully about opposing this amendment. I support this amendment because I think generosity ought to be at the heart of everything that we do. I do not understand why it is unreasonable to say that those people, who took on a job with particular rules and very clear circumstances, should now be unable to carry through that job in the context of wider views and beliefs. It seems to me a very small thing indeed, but it is crucial to say this about the society we live in.

I remember the disgraceful behaviour in a previous Bill because of which many children have not had the opportunity of being adopted because we did not allow those for whom this was a matter of belief to continue to run adoption agencies unless they were prepared to offer for adoption children from same-sex marriages. As all those agencies always passed people on to those adoption agencies that did do that, there was no reason to do it, except that sometimes we mistake toleration for agreement. In other words, what we mean by toleration is that we should tolerate those things with which we agree. I think toleration is about being prepared to tolerate those things with which we do not agree.

I cannot see the comparison between the judge and the registrar. The job of the judge is consistently and continuously to interpret the law. He or she knows from the moment when they accept being a judge that that is what their job will be. They know that in future there may well be laws with which they do not agree, so it is perfectly proper to insist that they should use their technical ability to impose sentences for things which perhaps they feel ought not to be crimes or, the other way, to be less strict on things which they think ought to have been much better assessed by Parliament. But that is not true of registrars who are now registrars. There must be many who never thought that this change would take place. It has been a remarkable change in human society. It is one I wholly approve of, but I cannot pretend that it has not been very rapid.

Therefore, I ask this House to accept this in the same spirit that we who have sought to get this Bill through have asked others to accept something that is so different from the way in which they have previously thought. I hope that we will be magnanimous and generous enough to say that this is, after all, something that could properly be done, because it will not be for ever; it is merely referring to those people who are now in place. I would have much more difficulty were it not doing that. It seems to me that we ought to be a society capable of including this because, if we are not, we give to those who do not want the changes here every reason to believe that we have put intolerance in the place of a liberal approach.

I hold it to be one of the great achievements that we have reached this way of looking at our fellow citizens. We ought also to think of those who through no fault or choice of their own were unable to imagine that they would now be asked to do this. After all, it is a terribly simple matter. We are just making sure that, when such a thing arises in a registrar’s office, Mrs Jones or Mr Smith is not asked to perform that particular ceremony. If this House cannot see that that is the same spirit as the spirit that puts this Bill through, we must be much mistaken.

[Baroness Richardson of Calow]

My Lords, I recognise what the noble Baroness said about how important it is for a marriage to be conducted in a very proper way. Sometimes the presence of a registrar can make a marriage very special, but the registrar is invited to register a marriage, not to make it or to bless it. If he or she does not register it, someone else will have to. It is not going to make a difference to whether that marriage takes place. We need to have concern for smaller registry offices that do not have a huge number of registrars and which would have to make a rota that took into account people’s sensitivities. This is going a step too far.

--- Later in debate ---

[Lord Deben]

That would be a reasonable argument and one that I would support for people in future, but does the noble Lord accept that there ought to be some generosity towards those who have chosen this profession and for whom the matter of registration—and it is that—stretches their beliefs to a degree that means that they cannot do it? It is not for us to decide what is a proper belief; that is one result of a division between church and state. We ought to be able to allow the small number of those for whom this is true to continue in their jobs until they move on.

[Lord Alli]

I do not believe that it should be up to public servants to pick and choose which laws they will and will not implement. This is not a religious ceremony.

--- Later in debate ---

[Lord Lester of Herne Hill]

My Lords, of course Parliament may decide to create an exception through this amendment. I am explaining why I could not support it. The first reason is that it would legitimise discrimination by public officers who are performing their statutory duties. My noble friend Lord Deben says, “Let’s show a bit of generosity”. I reply, yes, let us show a bit of generosity to those who would be the victims of this practice, who would find that they could not have a civil marriage registered by a public official—that is all it is—because of his or her conscientious objection.

[Lord Deben]

I am sorry, but surely that cannot be true, because the case would never get to that. You would know that if a same-sex marriage had been offered, there would be a registrar who would be willing to do that. It would be privately arranged; there would be no victim in this. That is clearly different from what my noble friend says.

[Baroness Northover]

My Lords, I apologise, but we are moving away from brief questions of clarification and on to debate, which is permitted in Committee, but we are now on Report. Noble Lords will have a chance to speak if they have not already done so.

--- Later in debate ---

[Baroness Noakes]

My Lords, it is distasteful to equate what happened in the Abortion Act with what we are dealing with here, which is two people coming together to formalise their loving relationship under law. We are talking about two completely different things. We are accustomed in this House to legislating on the basis of evidence. We have heard no evidence that this amendment is needed. I am sure that if registrars out there wanted this amendment they would have been flushed out by now. We have heard evidence to the contrary. The National Panel for Registration thinks that this is neither necessary nor desirable. This is another attempt to undermine the status of marriage being created by this Bill and which I support.

[Lord Deben]

I really do think that my noble friend has to withdraw that. I have fought in favour of same-sex marriage the whole way through. I am not trying to undermine it. I am standing up for toleration. Toleration, even if it is for two people, is worth while.

[Baroness Noakes]

I accept what my noble friend says about his position, but I do not think it is the position of those who put forward the amendment.

--- Later in debate ---

[Lord Deben]

As has been mentioned on several occasions, I want to expand on why I think this is a really dreadful amendment. It is dreadful for the reasons that my noble friend Lord Cormack has explained. He has amended the comments of the noble Lord, Lord Dear, because nobody really knows what people mean by traditional marriage. That is one of the difficulties. The amendment is a blunderbuss.

My problem is that if we put this into the Bill, that would suggest that somebody actually thinks it might need to be in the Bill. However, there is no reason for that. The noble Lord, Lord Pannick, is absolutely right about that. If we have to put this in, what other definitions of marriage will we have to put in? Do we say, “Nothing in this Act shall counteract the opinion that some people believe X, Y and Z”? All Acts would be interminable and intolerable if we added all the things that they did not have a reference to, but that is exactly what the noble Lord, Lord Dear, has put forward.

However, the problem is much more basic than that. There is a fundamental difference, although it is not something that is shared across every side, in arguing that in all circumstances we should be wary of not having a conscience clause. I am always in favour of conscience clauses because I never know when they will come for me. That is my honest view about conscience clauses. Therefore, I always want to lean over backwards towards people who are in a position—not one that they have chosen—where they may feel that their conscience prevents something. That is why I take that view. However, I do not believe that you can reasonably undermine the value of a Bill by putting into it a phrase that is designed to say, “Look, we’ve had to pass this Bill but a lot of us don’t really think like that. We’re not really on that side and we just want to—nudge, nudge—put this in to make sure that you realise that we weren’t really on that side”. That is a game to deny the reality of the Bill.

The Bill is a generous one and if it is too generous, it makes up for the exact opposite way in which we have acted until now. Please, do not allow the Bill to be undermined by an addition of this kind, which is already a matter of disagreements between the two people who are proposing it and which, after all, could be expanded to any lengths you like to include anybody who might feel that they had not had their particular views heard. It is not a sensible amendment and we should refuse it.

[Lord Lester of Herne Hill]

My Lords, the law on traditional marriage is contained in the Marriage Act 1949. Nothing in the Bill affects the rights and duties under the Marriage Act 1949 of what is called traditional marriage. If it did so, the amendment might have some kind of purpose, but it does not. If it does not undermine the ability to marry under the Marriage Act, does it create any sort of belief that that form of marriage is in some way undesirable? No, it does not. Nothing in the Bill suggests anything wrong with the traditional view of marriage. What it does do is to create another form of marriage and treat it as part of the concept of marriage. That does not undermine traditional marriage unless you take the view, as some do, that we should not have the Bill at all.

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Monday 22nd April 2013 Lords Chamber

[Lord Lea of Crondall]

My Lords, is it not the case that when the right reverend Prelate the Bishop of Guildford made his statement previously, one or two of us asked whether that could somehow be put on the record in a more secure form? Is this not exactly the sort of way in which it could be put on record? Surely that sort of gloss, understanding or undertaking—however one wants to express it—by the Roman Catholic Church is worth more than an amendment, and I hope that the noble Lord, Lord Cormack, will perhaps consider that to be the case.

[Lord Deben]

My Lords, I hope that my noble friend Lord Cormack will think again about this amendment. It is a very difficult situation—we are where we are—but if you read the Act of Succession, you see words which none of us in this House would like to see applied today to Her Majesty’s Roman Catholic subjects, all of whom pray for Her Majesty every Sunday and every Mass. It is very difficult for us to take what is a piece of rampant discrimination. Frankly, for many of us, particularly the ex-Anglicans, the whole concept of a secular monarch being Supreme Governor of the Church of England is very odd, but we are where we are.

I merely ask my noble friend not to rub this in by adding yet more to it. Let us accept that both sides have come to what is an uneasy compromise in a world which thinks utterly differently. If you read the Act of Settlement, you have to wonder what the rest of the world must think about us tinkering with something that frankly ought not to be part of the constitution of the United Kingdom because it does not have anything to do with our view about equality and difference in a society such as ours. It is because of our history and we understand that and do not want to raise that, but please let us accept where the Government are.

I urge my noble friend not to press this. It is bad enough anyway. This merely makes it worse, and it would be helpful for my noble friend to recognise the degree of reticence on the Roman Catholic side on this issue, for many years and again now. Following the great wisdom that we have heard from the right reverend Prelate, this seems to be the moment to let it lie and to withdraw this amendment.

[Lord Trefgarne]

My Lords, I take a slightly different view from that of my noble friend Lord Deben and indeed have some sympathy with the amendment proposed by my noble friend Lord Cormack. As I see it, the Bill in its present form paves the way, possibly, for the heir to the Throne and hence the occupant of the Throne to be a Roman Catholic—although I know that there are other provisions that prevent that—and at the same time Supreme Governor of the Church of England. That seems to be an absurdity which has not been addressed by the Bill although it was pointed out in earlier stages.

I am happy to be told that I am entirely wrong in all this, that I have misunderstood that it will not happen and that there are ways and means of preventing it, in which case that is a good thing. That said, the position of the Roman Catholics as described by my noble friend is an important one, which likewise needs to be taken into account. I shall have a little bit more to say when we get to the Motion that the Bill do now pass, but for the mean time I address my remarks only to the amendment of my noble friend.

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Wednesday 13th March 2013 Lords Chamber

[Lord Thomas of Swynnerton]

My Lords, I, too, support the noble Lord, Lord Lang, with his intelligent and thoughtful amendment. Can the Minister give some background to the situation? I, and I daresay your Lordships, would like to know how many times since Her Majesty the Queen came to the Throne have there been applications for marriages by descendants of King George III and how many times these marriages have been turned down. That would be interesting. As we are all interested in historical matters, this would be at least one contribution. It may seem an indiscreet suggestion but nevertheless it would be very useful to know.

[Lord Deben]

My Lords, I have been somewhat controversial during this debate so I cannot claim the virginity of my noble friend Lord Hamilton. The purpose of this Bill is to rid us of discrimination. I am sad to say that we have not proceeded as far as I would have hoped, but that is obviously going to be very difficult. But in so proceeding, it ought not to leave us with difficulties in the future. The purpose is to write something that is going to work, however odd the circumstances.

What we are trying to do here is to make decisions that are unconnected with the personalities involved. That is why we want to do this at a point where it does not affect any individual. We have been arguing that we do not want a situation in which we have to make some immediate decision because this Bill is defective, and thereby have a public argument about whether a particular person in particular circumstances is suitable to be an heir, or one of the possible heirs, to the Throne. That is what we are trying to avoid.

I put it to my noble and learned friend the Minister that we have had enough examples suggesting that six is too small a number so as to make it happier if we have a larger number. Given that we accept that six people have to ask permission, it does not seem absolutely dreadful that 12 people have to ask permission. I do not quite understand why it is six. I agree with my noble friend that six does not seem to be a particularly valuable number. I thought it was unnecessary to suggest that the figure was brought into doubt because of the progenitor. We can forget about the progenitor of this; it is simply that six does not seem to have any particular connection with it.

[Lord Elton]

My noble friend has had even more ministerial experience than I have. Has he not observed that once a number is on green paper, it becomes sacrosanct?

[Lord Deben]

There comes a point at which people think that there is some nobility about a figure that has been chosen, even though its history may be much less noble than the guise it assumes. This does not seem to be something that the Government should argue about.

I have to say something rather serious to my noble and learned friend. I have sat in this House for two and a half years now and the number of times I have come across things on which it would be very easy for the Government to give way—things that do not really matter but which might just be helpful, but where they solidly go on defending the indefensible—is really very peculiar.

[Noble Lords]

Hear, hear.

[Lord Deben]

We had a debate on caste recently. It was quite clear that the Government could have given way. I have now discovered that almost everybody who voted against me on that occasion did so because they did not know what the debate was about, so if we bring it back the only people who will vote for it will be in the Whips’ Office. The Government could have given way on that without any difficulty at all. The same is true about so many things.

Perhaps my noble and learned friend could take one message back: there are some things where quite a good case has been made; there is no real downside to it, so why do we not do it? Why is it so necessary to assume that there is something so important about this figure? Would it have been all right if my noble friend Lord Lang had suggested seven or nine? At what point are we allowed to say, “In our judgment, this is a better figure”? I just want to say to my noble and learned friend: in my judgment this is a better figure. Looking at the various faces all around, most of us here would not revolt if 12 was put in rather than six, so can we please have it?

[Baroness Butler-Sloss]

My Lords, I just wanted to ask a rather more general question of the Minister. At the moment civil partnership is not part of this Bill. If the same-sex marriage Bill is passed, will that mean that same-sex couples would also require the consent of the Queen or her successor?

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Thursday 28th February 2013 Lords Chamber

[Lord Berkeley]

My Lords, I support this amendment, but for rather different reasons from those of some other noble Lords who have spoken. It is ironic to me that we are having a debate, quite rightly, about equality between men and women in inheriting titles. I understood from what the noble and learned Lord, Lord Wallace, said at Second Reading that if the next heir to the Throne is a lady, she could be called either the Prince of Wales or the Princess of Wales—heaven knows; I would have thought she would be a princess, but I am no expert. If she can be called the Princess of Wales, why can she not be called the Duchess of Cornwall, or the Duke of Cornwall, or whichever way we want to put it? It seems extraordinary, really.

At Second Reading, I spoke about a number of issues that I had with the current structure of the duchy: whether it is in the private or public sector; what it does with its revenue; and the ability of the Prince of Wales to approve legislation. Frankly, this is one of the few Bills that he and Her Majesty should have a view on because it affects them in their roles. However, there are an awful lot of other issues on which I have not put amendments down because I was advised that they were a bit outside the Long Title, so I shall be looking to prepare and propose a Private Member’s Bill on some of these issues in the next Session, I hope. When the noble and learned Lord, Lord Lloyd, said that he had been Attorney-General to the Duchy of Cornwall, I thought, “Fine, the Duchy is getting free legal advice from some of the best lawyers in the land”. However, it then goes to tribunals and says it is a private organisation. Well, no other private organisations get free legal advice from an attorney-general. There are many other issues to discuss on that, but I support the amendment as a logical extension to the Bill. I look forward to hearing the Government’s response.

[Lord Deben]

My Lords, we are dealing with anomalies here and seeking to remove them. One reason we are doing that is because it sends a very clear signal about the attitude of the state towards certain issues. That is why so many of us are such supporters of the removal of gender discrimination in this way.

I genuinely find it difficult to understand why, if we are going to do that, we have not thought through one or two other things that are also signals. The concept of the heir to the Throne having this remarkable opportunity, which history has given them, of running a significant estate and dealing with significant matters of business is something that has characterised the monarchy for a long time and has given the present heir a remarkable opportunity, which he has used to huge effect.

I do not think it right to put before the House a Bill that specifically denies a female heir that opportunity. I know what will happen. She will in effect be the Duchess of Cornwall. I have no doubt that she will be asked to take the chair. I have no doubt that all this will happen. But what I find so difficult—I rise on this point only because it is a continuing concern of mine—is that we do not understand that when you decide you are going to deal with an anomaly, you have to deal with it. You cannot say, “I am going to deal with this bit of it, but I have a particular concern that it would mean changing something that happened in 13-something”. What a good opportunity to remind people of the great length of our history and of the fact that at this moment something has changed and we want to put it right.

So far I have found the Government at their least compelling when they have found it impossible to recognise that these things hang together. I hope that the noble and learned Lord, Lord Wallace, can accept that this will not make any difference in the other countries of the Commonwealth. No one will say, “I am frightfully sorry, I cannot vote for this because I am not prepared to give the Duchy of Cornwall to a female”. Surely this is something we can sort out properly. If the argument is that this might affect the issue of primogeniture with regard to your Lordships’ House and those who were once in it, then the answer is simple: this whole Bill is about the monarchy. We are talking about the monarchy. We are not talking about anybody else. Nothing inevitably comes from this, except possibly a spirit of change. There is nothing that is a precedent.

On this occasion, could we please see that this is a sensible thing to do? Would it not be good to do a sensible thing because it is sensible, rather than to argue about it because there is another argument?

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Thursday 28th February 2013 Lords Chamber

The only sensible—I will rephrase that—the only watertight answer is to have something in the Bill that makes it plain that an agreement has been reached with the highest authorities in the Roman Catholic Church that should such a union take place, the children of that union could be brought up as Anglicans and could therefore properly take on the very real and weighty task and obligation of being Supreme Governor of the Church of England. This is a responsibility that Her Majesty has taken extremely seriously throughout her reign, and that she has discharged with infinite wisdom and grace, and in a way of which we can all be proud, whatever our personal faith or lack of it. With those few words, I beg to move.

[Lord Deben]

My Lords, I associate myself with the final few words of my noble friend Lord Cormack about the nature of Her Majesty and the way in which she has discharged her duties. Not only has it been remarkable but it has been so remarkable that it may have blinded us to the nature of the discussion that we are having today. In the past, the Supreme Governor of the Church of England was a Calvinist and a Lutheran. The only reason they were able so to be was that they were prepared to say, of their own volition, that although they were Calvinist or Lutheran, for this purpose they would be a member of the Church of England. I make no comment on them; I merely say that it was possible. Indeed, before the Act of Supremacy, James II was both a Catholic and Supreme Governor of the Church of England. Therefore, the idea that this is impossible is factually wrong. I start with that. I do not think that my noble friend needs to interrupt me because he will have other things about which to interrupt me when I get to them.

I say to the Minister that I accept that this is a very anomalous circumstance. I will now say something very carefully because I do not want it to sound hurtful. I mentioned the remarkable role that Her Majesty had played. There is no doubt that, as Supreme Governor of the Church of England, she has brought something to the religious life of this land that has been unique and remarkable. However, there are few theologians who can easily argue that this position has a serious theological basis today. We all know that the reason we have it is that the state decided to nationalise the church—that is what happened—in order to get its hands on money and power. It is no good ignoring that. It is not a prejudiced comment. I used to believe it when I was an Anglican, so I cannot be criticised for saying it. That is what happened. The arrangement today arises from an attempt to bring together the facts of history with the perfectly reasonable desires of religious people to make the establishment work. I am in favour of the establishment; I do not want the Church of England disestablished. I pray that, one day, the Church of England and the Catholic Church will again become one. However, I have to say that this proposal is ridiculous.

First, we will put something into the Bill which we have not done since the Act of Settlement. We will allow a foreign potentate, the Pope, to influence the way in which our future Queen or King will be decided. I am a Roman Catholic and I am proud of my allegiance to the Pope. I find this allegiance in no way contradicts my allegiance to the Queen of England. She is the Queen of England as far as I am concerned because I am English, but I realise that she is also the Queen of Britain. I defer to my noble friend. I see no contradiction between those allegiances any more than I see a contradiction with my pride of being a citizen of the European Union. These are citizenships and relationships which we can hold together. This is important as each one contributes to the strength of the other. However, will this House suggest that, for the first time, the Pope shall become a constitutional figure? I find that an impossible answer.

Secondly, in what position does this amendment put His Holiness? Must he say, “The Church’s teaching is this; canonical teaching is this; but, in order that we might do a deal with the British Crown, we will say something quite different about the heir to the Throne”? That looks to me precisely the sort of deal, a political deal, about which many reformers complained. I cannot possibly put my name to something which proceeds in that manner. Then, one has to ask His Holiness to say something most remarkable; that, despite the Church’s teaching, children of the union can be brought up as Anglicans. Therefore, the Pope says that, they get married and they say, “The Pope may say that the children can be brought up as Anglicans but we do not want that”. What, then, do we say in this constitutional arrangement? Do we say, “You better listen to the Pope. We have now brought him into the constitution so we must do so again to sort this out”?

What happens if they bring the child up as an Anglican and he does not think much of it? In fact, I was brought up as an Anglican and I was a member of the Synod of the Church of England. I became increasingly clear that the Anglican Church had moved from being part of the Catholic Church to being a sect because it had decided that it had its own rights to make its own decisions about the teachings and the doctrines of the Catholic Church. Once it did that, it seemed to me to change its position. Therefore, I ceased to be an Anglican and I became a Catholic. What happens if the Pope has said that the heir to the Throne may be brought up as an Anglican, he is brought up as an Anglican and he says to himself, “In truth, I think that the Pope is right—with the exception that he has done a deal with the British authorities. I have therefore decided that I will become a Catholic”? What do we do as a society then? Do we say, “We are frightfully sorry, you are not allowed to decide that”? That is precisely the situation which will arise under this particular amendment.

There may be many ways of dealing with this. I have my own particular way, with which I shall not bother the House as I know very well that the Government are determined not to take it seriously. It seems to me perfectly right that the Church of England should have a Supreme Governor. In normal circumstances, the Supreme Governor should be the monarch where the monarch is an Anglican. But where the monarch is not an Anglican, the monarch should nominate as Supreme Governor someone from the family who is an Anglican. That seems to me to be a perfectly reasonable way forward. It would stop us having a special arrangement for Roman Catholics in this insulting way.

We do not have an arrangement whereby the heir to the Throne can marry a Muslim as long as the Muslim authorities agree that the children are brought up as Anglicans. The Muslim authorities are in exactly the same position in terms of this issue, although I think on very little else, as His Holiness. They are not going to agree to it either. What I would say to all Members of the House is this. It is insulting to the largest church in the United Kingdom—the Catholic Church. It is insulting to isolate Catholics as if there is still something about them today—in 2013.

I want to end with a comment to my noble friend. On Sundays, Anglicans do not pray for the Queen as the Supreme Governor of the Church of England, they pray for the Queen. At exactly the same time, although in larger numbers and with greater enthusiasm, Catholics pray for the Queen. There is no distinction between our prayers. The fact of the supreme governorship does not relate to the way in which subjects pray for their Queen. The only reason I raise this is because on these occasions there is always just a little hark back towards a feeling that there is a position before the Almighty that makes the Church of England special. The Church of England has an important history and its evensong is in many ways one of the finest services produced by any church of any kind. However, let us remember that we live in a pluralist society and that much of this anomaly is something that most people cannot and do not want to understand. To introduce an amendment that would enshrine the very things that historically we have sought not to have in Britain seems to me to be preposterous.

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Thursday 14th February 2013 Lords Chamber

[Lord Maclennan of Rogart]

I understand why they entered into our constitution but to judge people on the basis of their belief, because they have been given permission by the hierarchy of the Church to which they belong to disobey the laws of the state, seems not to connect the individual with the Crown. That led, in so many cases, to execution, cruelty, torture and abysmal behaviour on the part of those who were supporting the established Church—including the monarch herself.

[Lord Deben]

Did my noble friend notice that the right reverend Prelate said that he did not think that those reasons necessarily applied today? Surely it is unacceptable that anybody should say that those reasons apply in any sense today, given that of the people in church on a Sunday who pray for Her Majesty’s health, more of them are in Catholic churches than in any other denomination.

[Lord Maclennan of Rogart]

I entirely agree with my noble friend. It seems to me that we should not allow our future disposition on the succession to the Crown to be governed by what happened in the 1570s, which to my mind was a period of shame.

[Lord Deben]

On both sides.

[Lord Maclennan of Rogart]

On both sides—I accept that. I hope that we can accept as a very valuable step in the right direction the provisions of this Bill, which recognise that marriage to a Roman Catholic is acceptable by the heir. The fact that there are so many unresolved questions seems not entirely surprising, bearing in mind that we were seeking to get the agreement of 15 other Commonwealth countries, However, I hope that the discussion will continue and that we will see our country and our democratic Commonwealth fellows move towards recognising that religion is not a requirement of the sovereign and that the sovereign should be an exemplar to all religions. The utterance of the heir to the Throne about regarding himself as a defender of the faiths, in the plural, was an enlightened comment and I hope that we can move in that direction.

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[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.

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[Lord Deben]

My Lords, I intervene in the gap merely to remind the House that we learn to live with anomaly—indeed, we might say that we are an anomaly. The difficulty comes when we seek to right that anomaly, and that is the problem with which we are faced. We can live with things because they work, until we decide to put them right so that they are right. The problem here is that we are not quite putting them right.

Last night, in the cellars of this House, more than 200 of Her Majesty’s loyal servants—Members of both Houses and servants of these Houses—gathered for the Ash Wednesday mass. We were not checked by the police to see whether we had taken bombs or any kinds of dangerous things down—the days to which the right reverend Prelate referred have gone—but we are as much citizens of this country as anyone else. If we are going to right the inequalities, we should recognise that. I shall vote later on, against many of my co-religionists, in favour of righting an anomaly which I think exists as far as gay marriage is concerned. It is an insult to every loyal Catholic that we still talk about the history, when, on both sides—let us say with equality—people behaved in an entirely unchristian way.

There is a simple way forward, which is to recognise that the head of state does not need to be Supreme Governor of the Church of England in the same terms. That was true in the past, because King James II was a Catholic and head of the Church of England. The dreadful William of Orange was technically a Calvinist and lot of other things as well, and he was the head of the Church of England. George I, who could hardly have understood the liturgy of the Church of England, was a Lutheran and was head of the Church of England. Indeed, we have those problems here today. The Church of England does not technically recognise the orders of the Presbyterian Church of Scotland, yet it has allowed its head to communicate in a church whose very ceremonies it holds to be invalid. If that cannot be the basis of sorting this problem out, I really do not understand it. What worries me is that we are not saying that this is the moment to see the monarchy again as the symbol of unity and as the symbol of equality. This is the moment to say that Catholics have as much right as any other members of this great country. I am ashamed of the fact that the Government have failed to do that.

The Queen is the Supreme Governor of the Church of England as far as the law of Christ allows. Can the Church of England really believe that the law of Christ allows it to say that there is inherent at the heart of our great country this fundamental statement, which is that, after 400 years, we can welcome His Holiness the Pope to the Houses of Parliament but we cannot allow those who in all faith—and I am a convert after all—have recognised the nature of the Catholic Church and have joined it?

I finish simply with this. I do not agree with my great old friend Lord Luce. This is not a matter of negotiation between the churches. Are we really going to say that an individual is going to be told that he must put either his faith or his heritage at risk? Talk about Paris is worth a mass! I am ashamed of a Government who cannot see that this matter should have been resolved in this Bill, instead of which we have half a Bill and it is not one that I am prepared to support.

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[Lord Wallace of Tankerness]

That would be a matter for the sovereign, just as the present Prince of Wales did not automatically become so on the accession of the Queen. I think he was created Prince of Wales in 1958 and that his investiture was some 11 years later. It would be a matter for Her Majesty and I do not think we should be presuming or prejudging this—and in future it would not necessarily be Her Majesty. This is obviously not going to happen at the moment, so it would be a matter not for our present Queen but for our future sovereign to determine.

With regard to the royal titles in Scotland, a number of contributors, not least my noble friend Lord Trefgarne, pointed out that the peerage rules in Scotland are somewhat more generous to women, in some cases anyway. It is certainly our view that in the event of an elder sister becoming heir apparent, the Scottish titles currently held by the Prince of Wales—namely, the Prince and Great Steward of Scotland, the Duke of Rothesay, the Earl of Carrick, Lord of the Isles and Baron of Renfrew—can pass automatically to a female heir apparent. These titles have always hung together and the removal of male bias in the line of succession could therefore not result in the detachment of these titles from the Crown. We have consulted the Court of the Lord Lyon, who is the official heraldry officer for Scotland, on this matter.

My noble friend also asked about the Duke of Edinburgh. The Duke of Edinburgh has a normal remainder to the heirs male of his body, but at the time of the marriage of the Earl of Wessex, it was announced that the Earl would eventually receive the title of Duke of Edinburgh. It is my understanding that there would probably have to be a creation of that; it would not automatically be inherited from his father. I say to my noble friend Lord Carlile that I will investigate further and write to him on the earldom of Merioneth.

This issue also gives rise to the question of hereditary peerages and a number of noble Lords contributed on this, some expressing concern and some hoping that this might indeed open the door to a change in the law. That just underlines the fact that it is not appropriate for this Bill. It goes much beyond the scope of it, although I do not for a moment minimise the importance of the issue. It would certainly not just be the Constitution Committee criticising us if we were suddenly to introduce in this Bill measures that were going to change the order of succession to peerages. My noble friend Lord Lucas reminded us, interestingly, that he inherited from his grandmother and mother but, as he pointed out, hereditary titles can very often go with financial interests and estates. These would not be issues to enter into lightly. As I indicated, they go beyond the scope of this Bill. I also remind your Lordships that even without this Bill, the rules of succession to the Crown already differ in most cases from the rules of succession to the peerage.

Clause 2 possibly generated the most concern and interest, not least because of what the implications would be if there is a marriage between an Anglican and a Roman Catholic. At the outset, let me say that it is important that we remove this element of discrimination, as a number of noble Lords who contributed to the debate made clear. This has been welcomed by both the Church of England and the Roman Catholic Church. I was particularly struck by the contribution of the noble Lord, Lord Janvrin, on the importance of the heir to the Throne being able to have a wider choice as to who may be their spouse. There was a sense of that around your Lordships’ House when he mentioned it. Given the particular challenges that go with the monarchy, I think that the noble Lord referred to the importance of lifetime love and support. That was a very poignant but relevant contribution to our debate.

As I indicated in my opening remarks, it is not the case that the children of all mixed Protestant and Catholic marriages must be brought up in the Catholic faith. Catholic teaching is clear and perhaps more practical than has sometimes been suggested. The guidance is set out in Matrimonia Mixta, an apostolic letter from Pope Paul VI in 1970, and Pontificium Consilium ad Christianorum Unitatem Fovendam: Directory for the Application of Principles and Norms on Ecumenism, published in 1993. The guidance requires the Catholic partner in a mixed marriage to do their best to have the children raised as Catholics but if, as I indicated earlier, there is a just and reasonable cause which would qualify, such as the protection of the place of the Established Church, under those circumstances the local bishop can grant permission for the marriage. That moves us onto another issue, which I will come on to.

I also indicated that the Archbishop of Westminster has welcomed the decision of the Government to give heirs to the Throne the freedom to marry a Catholic. Indeed, in doing so, he recognised the importance of the position of the Established Church in protecting and fostering the role of faith in our society today. The noble Lords, Lord Luce and Lord Janvrin, echoed by the noble Lord, Lord Thomas of Swynnerton, asked whether it would be appropriate to have further discussions with the Roman Catholic Church. It is clear that there have already been discussions prior to this Bill but I will certainly try to ensure that officials meet representatives of the Catholic Church—indeed, I would be willing to meet them myself. I could not honestly predict the outcome but that suggestion seemed to command some support around the House. I would be willing to see whether that might produce anything that we could report back to the House at a future stage of our proceedings.

My noble friend Lord Lang of Monkton referred to my right honourable friend the Deputy Prime Minister regarding taking the matter to the Vatican. At Second Reading in the House of Commons, my right honourable friend said:

“I want to be clear that there is absolutely no prospect of our entering into discussions with the Vatican in order to bring this Bill into effect”.—[Official Report, Commons, 22/1/13; col. 215.]

The establishment of the Church of England has been a recurring matter that was raised in our debate. My noble friend Lord Maclennan and the noble Lord, Lord Dubs, said that it was an appropriate occasion to give that issue an airing. My noble friend Lord Deben indicated, with considerable passion, how he thinks that trying to address one anomaly while leaving another open is not acceptable. My noble friend Lord Astor raised this issue. I will come back to the Church of Scotland in a moment but my noble friend Lord Trefgarne got it right.

I got the impression that my noble friend Lord Lang was concerned that some of the provisions here might lead to disestablishment, whereas other contributors to the debate—indeed, the noble Lord, Lord Stevenson, did so from the Front Bench—were saying that perhaps this should be an incentive to get on and have that debate. Again, this issue goes beyond the Bill. We believe that nothing in the Bill detracts in any way from the sovereign swearing an oath to maintain the Protestant religion. The proposed changes are limited to removing a discriminatory bar on marrying a Roman Catholic. That would not allow a Roman Catholic to accede to the Throne but I suspect that, as the noble Lord, Lord Stevenson, indicated, this debate is not going to go away. However, I do not believe that this Bill is the appropriate place to deal with it.

The issue is that the Act of Settlement and the Accession Declaration Act, which was quoted by my noble friend Lord James, both make clear that the sovereign must be a Protestant, which of course George I was. The position in the Church of Scotland is that it is not an established church as such; the Queen is not the supreme governor of the Church of Scotland. The relationship between church and state is symbolised by the presence of the monarch or her Lord High Commissioner in attendance at the general assembly; indeed, my noble friend Lord Maclennan’s father was Lord High Commissioner, as several Members of your Lordships’ House have been. Although they are invited to address the assembly, they cannot intervene in its business.

As indicated, the oath of accession includes a promise to maintain and preserve the Protestant religion and Presbyterian Government, but the Kirk has not been established by the state—I declare an interest as an elder of the Church of Scotland—and neither the Scottish Parliament nor the Westminster Parliament is involved in Kirk appointments. To that extent, it does not operate as a state church in the way that the Church of England does. I think that it was the noble Lord, Lord Stevenson, who pointed out that in matters of doctrine, government, discipline and worship, the Church of Scotland is free from state interference, operating under a constitution largely contained in articles declaratory that were recognised by Parliament in 1921. So there is quite a significant difference there, but I suspect that this is an issue to which we will return.

[Lord Deben]

Before my noble and learned friend sits down, is there not a terribly simple way out? That is, to say that there is no bar to any Catholic becoming King or Queen but, in the event of a new sovereign being unable to be in communion with the Church of England, a Regent would be appointed as supreme governor of the Church of England. That would help us should there be some other religion to which a sovereign might wish to belong. It would also get out of the way of this being a stitch-up between churches instead of being a proper decision by the individual concerned.

[Lord Wallace of Tankerness]

My Lords, my noble friend makes an important contribution to that debate. I hope that he will recognise that it would not be appropriate to open up that whole issue, not least given the conflicting views that we have heard in the course of your Lordships’ deliberations today, for the purposes of this piece of legislation. However, I have no doubt that, as the noble Lord, Lord Stevenson, indicated—indeed, the noble Lord, Lord Dubs, had a Private Member’s Bill on this subject at one point—this issue is not dealt with, nor do the Government believe that it should be. We believe in the maintenance of the established Church of England. It is an issue, though, and when that debate takes place my noble friend’s contribution will be an important one for people to consider.