Crown Prosecution Service

Lord Elystan-Morgan Excerpts

Monday 23rd February 2015 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I have not had the discussions that the noble Lord asks about but I am sure that my right honourable friend the Attorney-General is regularly in touch with all parts of the profession that have an interest in and are working with the Crown Prosecution Service. I have mentioned the cost savings that have had to be made and it should be put on the record that it is greatly to the credit of the staff working for the Crown Prosecution Service that they have sought to make these efficiencies while maintaining quality.

[Lord Elystan-Morgan (CB)]

My Lords, will the noble and learned Lord assure the House that, despite the financial stringencies, the criteria as to whether a case is of sufficient strength to justify prosecution remain exactly the same? Will he kindly tell the House how that role is currently enunciated?

[Lord Wallace of Tankerness]

My Lords, there is the code that is issued and I can assure the noble Lord that the tests remain the same: sufficiency of evidence that there is a realistic prospect of a conviction and, if that test is met, the ensuing public interest test. I think that that has been enunciated on a number of occasions.

Crime: Domestic Violence

Lord Elystan-Morgan Excerpts

Tuesday 13th May 2014 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I very much agree with the noble Baroness, who has a long record of campaigning and taking an interest in this issue. Just to clarify, it is the number of successful prosecutions that was at the highest level ever recorded. However, I agree with what she said about the conclusions of the HMIC report—they are very disturbing. That is why the Home Secretary will chair a national oversight group to monitor delivery against the recommendations, which have been accepted. She has already written to the domestic abuse leads in each police force and to the chief constables to make clear the expectation that plans should be produced quickly and emphasise that urgent action should be taken to address HMIC’s concerns. The noble Baroness is absolutely right that domestic violence is wholly unacceptable and is very damaging to the victims. It is only right that we take every step possible to improve the prosecution of it.

[Lord Elystan-Morgan (CB)]

My Lords, does the Minister accept that domestic violence is a gravely reprehensible offence which should normally be dealt with by way of condign punishment? Is that not so because of the greater vulnerability of women in terms of physical strength, economic security and particularly the protection of children? Is the Minister satisfied that the advisory sentencing bodies are sufficiently enthused to pass on this message to magistrates and judges and that this is essential if this disgraceful practice is to be effectively contested?

[Lord Wallace of Tankerness]

My Lords, I echo what the noble Lord said about it being a wholly reprehensible crime. Among the many concerns, I am not aware of the particular question of sentencing. There may well be individual cases where individual sentences are not acceptable. The important challenge for us, particularly in the light of the HMIC report, is to improve policing. It is unfortunate that the report has discovered a cultural issue where:

“Domestic abuse is a priority on paper but, in the majority of forces, not in practice”.

We have to address that issue and tackle it in following up the recommendations of the HMIC report.

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

Lord Elystan-Morgan Excerpts

Wednesday 15th January 2014 Lords Chamber

[Baroness Mallalieu (Lab)]

My Lords, my name is added to Amendments 34 and 40 in this group, which I support. To my mind, Clause 26 goes to the heart of the damage that the Bill as it stands has the ability to do to free speech, to the right to campaign and to the right to protest. It exposes what I believe was an unintended consequence of a Bill which, as we have already heard, was placed before Parliament in haste and without proper consideration.

Clause 26 has the capacity to prevent any campaigning organisation mounting a major campaign against a Bill before Parliament in the regulatory period proposed —in other words, from September this year to May 2015 and, as others have said, for one year in every five thereafter. If Clause 26, together with the rest of the provisions in the Bill currently proposed by the Government, including today’s government amendments, had been in force in 2005, because of the 60% spending limit reduction and the inclusion of staff costs in the expenditure that has to be accounted for, it would simply not have been possible, for example, to mount rallies and marches on the scale organised by the Countryside Alliance—of which, I remind the House, I am president—all of which took place in what would have been the regulatory period for the 2005 election. I suspect that other major protests, such as the Stop the War march, would also have been troubled by the spending limits.

Although it is defective, PPERA was liveable with because the expenditure limits were set at a level which did not capture the activity of most campaigners and because staff costs did not have to be included in returns. Campaigners were therefore able to live with the legislation. However, this is not so with Clause 26 as it currently stands. As the noble and right reverend Lord, Lord Harries, said, it provides an opportunity for a Government to reserve the introduction of particularly contentious legislation to the year before an election—the regulatory period—knowing full well that opposition will be seriously restricted by the financial limits imposed under the Bill. While I accept that opposition would not be wholly silenced, it would, effectively, be seriously curtailed.

For those who have not followed it as closely as others, political campaigning under the Bill does not necessarily involve campaigning for or against a particular candidate or party. I prefer to call that “Political” campaigning with a capital “P”. Under the Charity Commission’s guidance, no charity is permitted to do that. The Bill goes further and restricts what I call political campaigning with a small “p”: in other words, campaigning on a policy, which is what many charities do. You do not have to make any mention of a particular party or candidate to be caught by the Bill, but you will be if your campaign can reasonably be regarded as intended to promote or secure electoral success, even if it can be regarded as intending to achieve some other purpose too. It does not matter that your campaign is long-standing if it fulfils those criteria. As the Minister has repeatedly said, the test is an objective one. So it is also irrelevant if your intentions, as the campaigner, were solely concerned with the issue and not with the election.

The current guidance of the Electoral Commission suggests that where, for example, one political party allies itself with the campaign of a particular organisation, it does not necessarily mean that the campaign and its material become regulated, but if there is a change in the scale and nature of the campaigning it may well do so. However, what if a party in government introduces a contentious Bill, during the regulatory period, which directly impacts adversely on your existing campaign? How can a campaigning organisation reasonably not draw attention to the fact and campaign vigorously against it? Indeed, why should it not?

Legislation before Parliament will, of course, reach a conclusion one way or another with Prorogation. The campaigning directed at legislation, albeit during the regulated period, is aimed not at the election but at something which will have concluded by election day—indeed six weeks beforehand—with Prorogation. A way must be found to enable the people of this country to express the strength of their feelings about proposed legislation at any time in the course of a Parliament. I hope that the Minister, who has repeatedly said that it is not the Government’s intention to stifle protest, will agree to take the amendment away for urgent discussion with the Electoral Commission and return next week, if not with an amendment to meet this real objection to Clause 26 then at least with an unequivocal indication of guidance to be given to permit legitimate campaigning in these circumstances. As the Minister will know, it is not enough for him to make some form of Pepper v Hart statement in this House because the courts, in due course, will not look at what is said in the debates of this House unless the legislation is itself unclear or ambiguous. The Bill is perfectly clear in what it says in that respect.

If the Minister cannot do either, I regret that we would be better off, for the 2015 election, to continue with PPERA until a proper Bill can be produced and Clause 26 should go completely.

[Lord Elystan-Morgan (CB)]

My Lords, I support Amendment 35 in the names of my friend the noble and learned Lord, Lord Morris, my noble friend Lord Wigley and myself. The case has been put clearly and in very great detail by the noble and learned Lord. I am sure that on the only real issue, the Minister could dispel all doubts very easily, as the Government are showing obvious good will for the Welsh language. I was extremely appreciative of the words of the noble Lord, Lord Gardiner of Kimble, on 16 December when he reiterated the point that many of us have made; namely, that the Welsh language is one of the oldest living languages in Europe. It has been spoken for more than 1,500 years.

Would it not be churlish if the whole concession made by the Government were limited only to the fees paid to a translator—that is the issue—and did not include all other costs which are consequential or involved in translation? That clearly was the intention of the Government and, if there is any doubt whatever in the matter, I would like to see them make assurance doubly sure in that respect.

The noble and learned Lord, Lord Morris, speaks with the authority of a former Attorney-General. Indeed, he is clearly of the view that the words in Amendment 44 are wide enough to encompass exactly what is required in this case. However, if there should be any question of dubiety or it is necessary to remove any peradventure of doubt, it seems that it would be an easy matter to cure this small anomaly by Third Reading.

This is a small skirmish in relation to the Welsh language, which has suffered many attacks and anomalies in the 478 years since the Act of Union 1536. The field of endeavour still remains redolent with possibilities. One obvious campaign that will have to be fought some day is in relation to the right of a person in Wales to be tried by a jury in the Welsh language in an appropriate case, bearing in mind that a tribunal of fact such as a magistrates’ court, dealing with 98% of cases, is entitled to do that and does so under the 1967 Act. I hope that such an issue will be raised before too long in this place.

[Lord Horam (Con)]

My Lords, first, I thank the noble and right reverend Lord, Lord Harries, for welcoming the amendments made by the Government. He was characteristically generous about that and he gave quite a long list. Secondly, I thank my noble friends for what they have done, despite being incapacitated for a period, in bringing amendments of the scope that there has been in this case. Certainly, I, as a supporter of the Government, have been surprised by the extent to which the Government have agreed to the amendments originally put down.

I take the point made by my noble friend Lord Cormack that the Government were deficient in the way in which they failed to do pre-legislative scrutiny. One has to agree that post that situation, with the pause and with the extent of the amendments that the Government have put down in the past few days, they have responded generously to the points fairly made by Members on all sides of the House.

In his short remarks, the noble and right reverend Lord, Lord Harries, mentioned Amendment 34 in particular. He said that, for instance, if a new Bill came before Parliament during the regulatory period from September 2014 to the general election in 2015, it would be a big issue in any particular constituency and that therefore the Bill would inhibit discussion of the new town in that constituency, which would be wrong.

--- Later in debate ---

[Lord Tyler]

My Lords, my name is also on the amendment. I will make a slightly different point from those of other noble Lords who have spoken to it.

Public service in a parliamentary democracy is an honourable activity. I look around the House, and I could say exactly the same thing about the other place, and see a great majority of people who give of their time, talents and careers, and sacrifice their family life, to public service. That is something that we should recognise as being an extremely important part of our civic life.

Yet it is absolutely true, as noble Lords have already said, that it is somehow thought that to be active in politics is less reputable than, for example, supporting a charitable or voluntary organisation; many of us do that as well. That is exaggerated, underlined and repeated every time one of us contributes something to our local church or favourite charity and gets respect from the tax system for so doing, in exactly the way that the noble Lord, Lord Campbell-Savours, has described. If politics is an honourable activity, why are we not allowing our fellow citizens to recognise that and, in their own way, be more active participants through the gift aid system?

It is not just because of the way in which politics has been supported in recent years by bigger and bigger cheques from smaller and smaller numbers of people, but also because millions of people feel disenchanted by and disconnected from the business of politics, that we have reached such a low reputation in the public mind. It is far more important to engage and incentivise millions of people than to engage and incentivise millions of pounds. In those circumstances, it is perhaps worth reminding your Lordships’ House, in addition to the points already made by my noble friend Lord Hamilton, that the taxpayer already makes a huge contribution to the business of politics. For example, the Royal Mail free delivery of election addresses for every single party and contestant in the European parliamentary election in May will cost the taxpayer something between £30 million and £40 million. The sums that the noble Lord, Lord Campbell-Savours, is referring to are a drop in the ocean compared to that. Yet it is far more likely to engage the individual citizen in the business of politics than the necessity for every single elector to receive a separate delivery from each of the parties.

It is perfectly true that there are already a number of proposals for a wider reform of the funding of political parties. Indeed, last year, I, along with colleagues from two of the other parties, produced a draft Bill that would have incorporated the latest proposals of the Committee on Standards in Public Life on this wider issue. We will not move in that direction between now and the general election but, in this modest way, we could put down a marker that we believe that the actual, practical financial support of our fellow citizens for the business of politics is just as honourable as their support for a charity or a church. It would be a very welcome development.

[Lord Elystan-Morgan]

I feel deeply privileged to belong to such a broad church as is suggested by this amendment. I little thought that I would have the privilege of standing in the same rank as the noble Lord, Lord Hamilton, and the noble Lord, Lord Tyler, but I am utterly sincere in the support that I give to the amendment in the name of the noble Lord, Lord Campbell-Savours. When he very respectably sought to accost me some days ago to support this matter, I had misconceived the situation. I thought he was seeking to place political parties on a charitable basis, which of course would have been utterly improper. The definition of charity, however impractical it may be in the modern period, is well laid down in the statute of Elizabeth I and in the authority of Re Pemsel, which I still remember from my student days.

That is not at all what the amendment is about. It is a question of what fuel there should be available in a democracy to any political movement. That fuel, I suggest, is the united will of millions of people, of government, opposition or a third force, or a fourth, for that matter. That fuel is the desire and hopes of millions of individual people, possibly for tens of thousands of different reasons, but it is the amalgam of that united force that gives politics significance.

If you interfere with that system from above by the injection of vast amounts of money, you corrupt that system. It was Oliver Goldsmith, in the 18th century, who had these words:

“Ill fares the land, to hastening ills a prey,

Where wealth accumulates, and men decay”.

In this case, wealth will diminish completely the significance of democratic politics. Now, we will say, “That is highly idealistic and immensely impractical”. It may well be, but we are deeply grateful to the noble Lord, Lord Campbell-Savours, who is a brave, iconoclastic, reforming character and to whom the House owes a great debt.

In America, in the two elections that President Obama has won, it may very well be that there were tactical and highly materialistic reasons why he chose to rely on millions of people rather than on the support of a few wealthy, almighty subjects. Be that as it may, it gave those campaigns impetus and significance. That is exactly what this amendment proposes. It may very well be that the amounts that are mentioned could be debated high and low. That does not matter at all. The significance is that we wish to see politics as an amalgam of millions of people with desires supported, we hope, by the substantial subvention of most of those people.

[Lord Cormack]

My Lords, I have always believed that public life is a vocation. I greatly regret the decline in membership of political parties over the nearly 44 years that I have been in the Palace of Westminster; I touched upon that in an earlier amendment today. We do not know the precise figures, but our three major political parties in this country together have probably less than a quarter of the membership of the National Trust. That is a dismal statistic, which we should all take to heart. However, we have to recognise the realities. One of those is that if the proposals of the noble Lord, Lord Campbell-Savours, were adopted—and in principle I support them—they would not have an immediate and enormous transforming influence. I am glad to see him nodding assent.

--- Later in debate ---

[Lord Cormack]

Of course we are permitted to do that, but at the same time it is not unreasonable to talk about the practicalities. The fact of the matter is that if we have a vote tonight, this amendment will be very heavily defeated. It will not advance the cause. Whereas if we do not have a vote tonight, the statement of the noble Lord, Lord Campbell-Savours, which I believe not to be hyperbole but to be accurate—that there are many, many members of your Lordships’ House who are sympathetic to this point of view—will stand on the record. What will stand on the record if we have a vote is that because of a very, very small number of people, for a variety of reasons—one of them being that this may not be the right vehicle for such an amendment—the figures will not be encouraging to our cause.

I end by pleading with noble colleagues in all parts of the House that we seek in our respective parties to begin a campaign to advance this and that we talk to our colleagues in the other place as well. That is crucially important, as they are the people who get elected. Tonight is not the moment to be heavily defeated when we know, and the noble Lord in particular knows, that there is such widespread sympathy for the principle that he has very reasonably advanced.

[Lord Elystan-Morgan]

Surely—

[Lord Gardiner of Kimble]

My Lords, I apologise to the noble Lord, but I am very conscious of the Companion and I am very conscious that we are at Report. I sense that noble Lords would like to make progress. I apologise for intervening.

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

Lord Elystan-Morgan Excerpts

Monday 16th December 2013 Lords Chamber

[Lord Harries of Pentregarth]

My Lords, I will speak to Amendments 165B, 161A and 165C in my name, which I put forward on behalf of the Commission on Civil Society and Democratic Engagement. First, I pass on the apologies of the noble Lord, Lord Cormack, who has a long-standing engagement and could not be here this evening. His name is added to the commission’s amendments. He has promised to be here on Report not only to speak but to vote for any commission amendments. Many noble Lords have been kind enough to recognise the quality of the report brought forward by the commission. I ought properly to pass on the thanks to those to whom it is properly due—the team of people from charities and campaigning organisations who have been working night and day in order to produce it.

Charities and campaigning organisations accept that a wider range of activities needs to be taken into account. It is part of their wider conviction that charities should be regulated and be transparent. There is absolutely no problem about that. As Amendment 165B points out, there are real difficulties about including staff time in expenditure that counts as a qualifying expense. There is the difficulty of separating staff time used on campaigns generally from that which is directed specifically towards elections, particularly if this is to take place during a whole year—the regulatory burden on charities would be quite disproportionate. The Royal Society for the Protection of Birds says in the report:

“Widening the activities that count towards controlled expenditure would require significant new reporting procedures, including time sheets to account for staff time connected with campaigns and systems for recording spending in regional offices. This would siphon money away from conservation work and amount to an unnecessarily onerous regulatory burden: more than the £0–800 per organisation for implementation estimated in the Impact Assessment”.

It is also important to note that the Electoral Commission, though its long-term view is that staff time should be included both for third-party organisations and political parties—for which at the moment it is not included—says quite clearly in its latest briefing that such are the difficulties of including this that it should not be included before the 2015 campaign. That is a very clear and strong recommendation.

Subsection (1)(b) of the proposed new section in Amendment 165B concerns translation. We firmly support what the noble and learned Lord, Lord Morris of Aberavon, has said. The cost of translation from Welsh to English and English to Welsh should not be included. Our amendment goes slightly wider than simply translation because it would also include things such as Braille. The Electoral Commission also supports this although it says that production costs should not be included. I do not think the Commission on Civil Society and Democratic Engagement would agree with that because the production costs are also extra as a result of the translations. It is not just the job of hiring a translator but also the costs of printing the extra pages in Welsh.

Proposed new subsection (1)(c) concerns safety and security. This is obviously one of the concerns that arose from Northern Ireland. At the moment our amendment refers to safety and security for meetings. The Electoral Commission has very valuably added that “rallies” should be included here and I think the Commission on Civil Society and Democratic Engagement would certainly support that. Proposed new subsection (1)(d) refers to documents making material available for people who are either physically or in any other way disabled. That, again, is an extra expense which should not be counted as part of the qualifying expenses. I hope that the Government will also bring forward an amendment to ensure that extra expenses by disabled groups—for instance, to get them to meetings, which can amount to quite a lot—would be included in subsection (1)(c) of the proposed new clause, which obviously concerns the safety of disabled people at meetings and rallies.

Proposed new subsection (1)(e) refers to communications with supporters. A clear distinction is made in the legislation between the general public, who are brought into the regulation, and supporters. However, “supporters” is defined rather narrowly in terms of donations. Of course, the modern understanding of “supporters” over all sorts of different media is much wider than that. The commission believes that it has a way of solving that by reference to the Data Protection Act, whereby those who have given consent to be contacted by the organisation, in accordance with the Data Protection Act, should count as “supporters”. We hope very much that the Government will look sympathetically at that as a way of making a sharp distinction between those who are supporters and the general public.

Amendment 161A refers to market research. The commission does not believe that general market research should count as a qualifying expense. It should only do so for the purpose of assessing people’s polling intentions; clearly, if it is designed to find out people’s polling intentions, it should be brought within the regulatory framework.

Amendment 165C would ensure that this entire clause could only be changed by primary legislation. The commission believe that this is such a fundamental issue of democratic rights that it should not simply be amended by a government Ministry. It should only be changed as a result of primary legislation.

Finally, I have added my name in a personal capacity to Amendment 163A in the name of my noble friend Lord Best, to which I am sure he will speak. The National Council for Voluntary Organisations did research independent to that of the commission but came up with virtually identical recommendations and one or two more. This is a recommendation that the NCVO was particularly keen to see implemented, which would exclude rallies and meetings from the list of activities which are to be counted as “controlled expenditure”.

[Lord Elystan-Morgan (CB)]

My Lords, I support the amendment of my old friend, the noble and learned Lord, Lord Morris of Aberavon, and also support a parallel point which was advanced by the noble and right reverend Lord, Lord Harries of Pentregarth, about Braille.

I accept the arguments forcefully put by the noble and learned Lord, Lord Morris of Aberavon, but one can take the matter slightly further. The issue is whether the translation of certain documents from Welsh into English or English into Welsh should be regarded as relevant expenditure under Clause 26. The next issue is whether the position of the Welsh language is so different from all the other cases of which one can conceive in this matter as to make it unique; that is also important.

To deal with that, I ask the Committee to indulge me for a few minutes in looking at the Act of Union of 1536; I appreciate that not many of us were around at that time. However, it has cast a long shadow over the land and nation of Wales over many centuries. The opening words of that Act were:

“ALBEIT the Dominion, Principality and Country of Wales justly and righteously is, and ever hath been incorporated, annexed, united and subject to and under the Imperial Crown of this Realm”.

It then goes on to say that there is therefore no Wales and never has been any Wales at all, as a land and nation.

Marriage (Same Sex Couples) Bill

Lord Elystan-Morgan Excerpts

Monday 8th July 2013 Lords Chamber

[Lord Elystan-Morgan]

My Lords, I respectfully disagree with the noble Lord, Lord Deben, who made an excellent speech. Although I agree with his basic submission, I disagree with his argument that this is a wrecking amendment. It is not a wrecking amendment, but it is an amendment that, if carried, could defeat the whole purpose and objective of this legislation. It is on that basis that we should look at it this afternoon.

The issue is important but simple: whether you elongate the institution of marriage to include same-sex marriage as one indivisible institution, or draw a dividing line through it—a frontier line that will create two categories of marriage, one a gold standard and one a standard of baser metal. That is the issue.

There are three arguments that can be put very briefly in favour of opposing the amendment and accepting the elongated institution argument. First, marriage has passed through many different phases, definitions and concepts in the past 200 years. Before the 1836 legislation, all people who wanted to get lawfully married had to be married in the Church of England. Many, like my forebears, found that extremely distasteful but that was it—it was a fait accompli. Before the Married Women’s Property Act 1882, a married woman could not hold property; it became her husband’s upon marriage. All that she could cling to was what was called her paraphernalia. That changed everything. Before 1991, where two persons were married and no separation order had been made by the courts, a man could rape his wife and she would have no redress. Do you think that did not change the institution immensely? One may point to a number of other phenomena that have in total, and in many cases individually, changed the situation fundamentally. That is the first argument: there have been changes in the law that have fundamentally metamorphosed the whole concept of marriage.

Secondly—I say this with very great diffidence as a Welsh Presbyterian—there have been changes in the spiritual world as well. The Book of Common Prayer justifies marriage in three ways: first, for the procreation of children; secondly, so that the temptations of adultery and fornication should be removed; and thirdly, so that there should be a lifelong, devoted, loving partnership between two people. As far as the first is concerned, you might say that people who are beyond child-bearing age are logically in breach of that precept, but nobody in his or her senses would argue that. However, I know many young people who, for professional reasons, have married on the basis that they will not have children. That is the clearest understanding and agreement between them. Do you say that their marriage should be placed in some hermetically sealed compartment on that account? I would not argue that. Essentially, is one not justified, to a large extent, in saying that the essence of marriage today for so many people is that lifelong commitment of love, affection and loyalty? If that be the case, one can say, yes, in the spiritual world, too, there have been massive changes that have been accepted by society.

There is a third justification. Many Peers have already spoken of the days before 1967, when homosexuality was a very grave offence. I remember well over 60 years ago, when I was a young law student, going along to the assizes and seeing the local vicar, the nonconformist minister, the accountant, the solicitor and many similar people of high standing in society, all being sent to prison for four or five years for what we would today call “lavatory cases”. I remember thinking, “There must be some better way of dealing with this problem”.

I have argued with myself a great deal over the past few weeks as to where I stand in relation to this matter. I have asked myself whether this change—the concept of single-sex marriage, which is of course a massive change—is of such magnitude as to demean and in some way unsettle and undermine the concept of marriage. I have asked myself whether it any way demeans or changes my own marriage. I was supremely happily married for 48 years to a very splendid lady, who died six years ago. I am sure that if she were alive today, she would say to me, “Yes, there is a third argument: the argument of reasonableness and tolerance”.

As a community we have treated these people abominably, in a way that is a disgrace to our religion and to so many things that we believed we stood for as a community. Now we have a chance to make up for that, and we will do exactly that by elongating and not dividing.

[Lord Phillips of Sudbury]

My Lords, I apologise to my noble and learned friend Lord Mackay of Clashfern. British Rail prevented me from being here when he opened this debate. However, I have had the advantage of long discussion with him concerning his reasons for putting forward the amendment and I support it.

This is not an easy debate. I am sure that there are many in the House now who sway this way and that. The issues are highly complex and diverse and we have heard some outstanding speeches today. However, I disagree totally with one of the things that my noble friend Lord Fowler said when he put it to the House that if we passed this amendment it would add directly to homophobia in this country. If I was even a little in agreement with him on that, I would not be standing and speaking here. However difficult it is to assess the reactions of the great people of this country to matters such as this, far from increasing homophobia, Amendment 1 could ease the passage and consequences of this profoundly important measure for the millions of our decent, not prejudiced and not homophobic countrymen who currently believe that we may be foisting on them what they would call an untruth—they might call it dishonest or a public relations exercise.

Whether we like it or not, millions of our decent fellow-citizens will agree totally about same-sex couples having the same esteem, love and life-long commitment, and so on, but, as has been said many times, and so one need not elaborate on it, they believe that unions between same-sex couples and opposite-sex couples are different and that they have profoundly different potential consequences. To say that many opposite-sex couples are disabled, too old or disinclined to procreate is not an answer to the fundamental factual and real difference. That is where, I repeat, millions of our countrymen sit at this time. The noble Lord, Lord Pannick, talked about an inferior status, but they do not want to create anything of the sort. Nobody is interested in belittling the commitments made by homosexuals; there are a few, but, I maintain, not many. However, what they do say is, “Why are we pretending that it is exactly the same when it is profoundly different in one particular?” Why not use the word “marriage”, since that is the important thing, and then have the qualification? It is not even as though the qualification is very novel: it is in the Title of the Bill as we sit here. I believe that in time—and I do not think that it will be a long time—people will concentrate on the word “marriage” and the bracketed bit, frankly, will fade into lesser and lesser significance as the public mind progresses.

One might ask, “Why have that wording?” I actually believe—this is the nub of it—that we will ease the passage of this important measure if we put Amendment 1 in the Bill. We will salve the present discontent that so many people feel about the Bill as it stands. That is why I shall vote for Amendment 1.

Scotland Act 1998 (Modification of Schedule 5) Order 2013

Lord Elystan-Morgan Excerpts

Wednesday 16th January 2013 Lords Chamber

[Lord Kerr of Kinlochard]

That is precisely the point that I am trying to make. Is the reference to “intelligibility” in some way limited to it or could it be construed in a court of law as in some way limiting the normal role of the Electoral Commission and its role envisaged in 2009?

[Lord Elystan-Morgan]

Is not the agreement made between the Prime Minister and the Scottish First Minister a gentleman’s agreement? It is not an international treaty, which can be made only between sovereign states. Although everything that the noble Lord says has every relevance in the moral context, in terms of legal consequence and strict constitutionality it must be the case that it is no more and no less than a gentleman’s agreement, binding, of course, as it is.

[Lord Kerr of Kinlochard]

That is where I was going, although I would like to hear the Minister’s answer to my question on how one reads paragraphs 8 and 12 together.