Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
Lord Mackay of Clashfern Excerpts(10 years, 5 months ago)
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Lord Phillips of Sudbury
It is now a government amendment, so we are going to get it—and that is vital because we will learn a great deal after that. I will just finish the point that volunteer trustees, perfectly understandably, are going to be cautious about this new legislation. The last thing in the world they will take a risk with is the prospect that things may get a bit out of hand or may not be perfectly understood, and that they, the trustees, will end up being personally liable. As I am sure everybody hearing this debate knows, they are personally liable. It does not matter if they are a limited-liability charity.
All in all, therefore, these are some of the reasons—I think other contributors to the debate will add others—that we should avoid the huge confusion that will follow if we subject charities to both charity law and electoral law. For good reason, I will not detain the House now beyond saying that this is still a very important issue that touches a hugely important part of our civic society—the very part of our civic society that does so much to uphold and vivify election campaigns. I beg to move.
Lord Mackay of Clashfern (Con)
My Lords, I am extremely well aware that the Charity Commission has given us a document to say that it is against this amendment, but the charity commissioners do not actually do legislation; that is our responsibility. They have set out in this missive that we got about 6.30 pm yesterday some of the reasons for their opposition.
Charities are, as I understand it, very fully regulated by law. Charities are those bodies that are established for charitable purposes only, and charitable purposes are defined as falling into certain classes, with the general provision that a charitable purpose is one that must be for public benefit. When I got this missive and had a chance to look at it, I e-mailed back the writer of the document asking, “Are you saying that a charity can lawfully, under existing charity law, engage in activities regulated by this Bill?”. I got an e-mail back to say that he was out of the office today and that, if it was urgent, I should ring a number. So I rang the number, and no one answered—although these things happen, even in the best regulated circles.
This is an extremely important point, as I see it. Charity law is sufficiently robust to require charities to obey the rules, which state that they can use their expenditure and efforts only in support of or in pursuance of their charitable purposes. As the missive says:
“Charities must never support political parties or candidates for election”.
At the moment, I cannot see why it is necessary that the Bill applies to charities. However, the Charity Commission, in the missive we got last night, goes on to explain that if the charities were exempted, its task of making sure that the charities obeyed the law in this regard would be too much for it, particularly in an election period. The Government have cut its budget so much that it cannot support this or do it properly. If that is the reason for passing the responsibility for seeing to this from a government organisation, the Charity Commission—which has a very long history of 150 years or so—on to charities, which depend on voluntary contributions for their financial support and to a great extent for their personnel support, it is an extremely bad one. Why should the government organisation pass on its responsibility to ensure that this is happening to the charities themselves and have them registered for that purpose?
This is an extremely serious matter that the Charities Commission has raised in this missive to us. So far as I am concerned, it requires the Government to look into the matter. I would like to see the Government undertake to look into this between now and Third Reading. I do not wish to pursue the matter further today. I originally raised this matter with the noble Lord, Lord Wallace of Saltaire, before he was away, and I am extremely glad to see that he is able to be back with us again. This is an important matter that I feel strongly about, and one that your Lordships’ House should not just pass over. We do not need to spend long on it, because it is a short but very important point.
Baroness Lister of Burtersett (Lab)
Before the noble and learned Lord sits down, I have a question about the e-mail from the Charity Commission, which I have here. My reading of it is that the question about resource implications is a subsidiary argument, and that the key argument is:
“We do not believe that, in the best interests of public trust and confidence in charities, an exemption for charities is the most appropriate method for the regulation of charities during an election period”.
Surely that is the argument that the Charity Commission is putting forward against this amendment. The question about resources is just supporting that.
Lord Mackay of Clashfern
The reason that that is a difficulty is because it cannot be relied upon to enforce the law. There is no question of trust in charities being damaged by propaganda and that kind of thing. If it were shown that charities were not obeying charitable law, that would damage trust and confidence. If the commission does not have enough resources to pursue that properly—as paragraph 4, I think, says—that is a problem. I can see that if that is justified, it is a problem, but it is a very serious problem if organisations set up to ensure that the law is observed in a particular area say that they do not have sufficient resources to do it properly.
Lord Harries of Pentregarth
Does the noble and learned Lord not accept that the Electoral Commission has come out exceedingly strongly against this amendment? It is not just the Charity Commission but the Electoral Commission, which has a specific statutory duty.
Lord Mackay of Clashfern
I understand that, but I do not understand why they have come out against it, because it must be based on an understanding that charities could in fact engage in activities that are regulated by this Bill.
Lord Low of Dalston (CB)
My Lords, my name is added to this amendment and I do support it, but I think that we have been somewhat blown off course by the reference to this letter that we have had from the Charity Commission, which we have not had very long to consider, and also by the briefing that we have received from the Electoral Commission.
On the Charity Commission’s letter, I honestly think that this faces both ways: at one point the commission says that it is not in favour of an exemption but elsewhere it says that it believes in keeping the burden of regulations on trustees and charities to the minimum that is consistent with effective regulation. If that is what the commission is saying, then why on earth impose another burdensome layer of regulation on charities? Or is the commission saying that the regulation that it provides is not effective? I honestly think that the letter that we have received from the Charity Commission is not robust enough to sustain any argument and I do not think that we should be further diverted by it, certainly not today.
I agree that this has rather blown the debate off course and I think that the suggestion made by the noble and learned Lord, Lord Mackay of Clashfern, that this be taken away, that discussions take place and that we ask the Government to review the situation and come back with something at Third Reading, would honestly be the best way of proceeding.
Lord Wallace of Tankerness
My Lords, I can do no better than remind your Lordships of Clause 26, which states that,
“the expenditure can reasonably be regarded as intended to promote or procure electoral success at any relevant election for—”.
The point is that there is a distinction between an objective and a subjective test. It may be that if the charity was complying it was not intending, but if objectively it was thought to have done so it would fall into that narrow range of activity. The important point was made by the commission chaired by the noble and right reverend Lord, Lord Harries; namely, that it is the activity that is important rather than who is undertaking the activity.
I know that the House wants to move on, but the e-mail issued yesterday evening by Mr Rowley has been referred to by a number of noble Lords. He says:
“We recognise that there are some circumstances where a charity’s activities can adhere to charity law but may still require them to register with the Electoral Commission during an election period. Indeed, during the last General Election a small number of charities did register with the Electoral Commission. Due to the increased awareness and scrutiny of this area we believe that this number may increase, regardless of the change in the scope of activities and limits that this Bill proposes”.
My noble friend Lord Phillips was suggesting that somehow or other the information on this coming from the Charities Commission was out of date. It is important to recall that it does set out the current position, but it is a situation in which PPERA is not changing with regard to the definition. It will not change as a result of this Bill, so the case remains that a narrow scope of activities could be covered. The Electoral Commission is clear that charities should not be exempt from the PPERA regime. It highlights that such an exemption would undermine the effectiveness of the PPERA regime and create incentives for campaigners to carry out as much campaigning activity as possible via charitable channels. Potentially that could have implications for the reputations of the charities.
I repeat what the commission said:
“It is the Commission’s view that it is right that charities are not excluded from within this legislation, and we believe the Government’s approach to distinguish by activity rather than by type of organisations is correct”.
The Government’s view, however, is that the nature of the PPERA test, to which I have referred, and the constraints of charity law will mean that the circumstances in which charities are brought within the scope of PPERA rules will be very rare. First, they must meet the PPERA test where their activities can reasonably be regarded as intended to promote or procure the electoral success of a party or candidate. Secondly, if they meet this test they must incur controlled expenditure over the registration threshold. The amendments that we will debate later and that are being brought forward by the Government to raise the registration threshold in essence will ensure that smaller or even medium-size charities will not have to register with the Electoral Commission.
I heard comments in Committee and in the meetings that I have had about the importance of trying to keep the administrative burden to a minimum. I accept that there was force in the concerns expressed when I first became engaged in this Bill and attended meetings with my noble friend Lord Wallace of Saltaire, in which charities said that there was a possibility that they could do something that took them into PPERA-controlled expenditure, with the limit at £5,000—£2,500 in Scotland, Wales and Northern Ireland. That might happen, without their knowing that there could be a freeze on their activity. But limits of £20,000 for registration are now proposed; in Scotland, Wales and Northern Ireland it is £10,000.
If charities are undertaking that level of expenditure this is neither unreasonable nor the sort of thing that will get lost in the loose change. It is significant expenditure. Therefore many charities will be removed from any concern by the thresholds that we are setting. Those approaching that level of expenditure may wish to consider whether it is appropriate. In terms of the general core principles of accountability and transparency in the Bill, it is important that if a body is undertaking the kind of activity that falls within this scope it should be accountable and transparent. In some of my discussions with the chief executive of OSCR, the Scottish charities regulator, he said that he thought that the transparency argument was important: if two organisations were doing exactly the same thing that brought them within the scope of the Bill or PPERA, it was wrong that one should have to be accountable and transparent, and the other, because it was a registered charity, should not. In transparency and accountability terms, this departed from an objective of the Bill.
Charities have raised concerns as to what happens if a party or a candidate adopts one of their policies. The Electoral Commission guidance is clear on this point. If a party or a candidate adopts a charity’s policy this will not automatically result in the charity incurring controlled expenditure. A charity will incur controlled expenditure only if it subsequently highlights the fact that party A or candidate B supports its policy, or ramps up its campaign. As such, the Government are not persuaded that there is a compelling case to take such a significant step as to exempt charities from the regulatory regime. It is the activities of the third party and not the type of organisation that should be subject to regulation. I can assure my noble friend, who raised the matter, as did other contributors to the debate, that the regulatory regime on charities will be explored during the review of third-party campaigning that we have indicated, as laid out in later amendments, will take place after the 2015 election.
We have had a good debate. I am not sure that I can elaborate these points much further. The noble and learned Lord, Lord Mackay of Clashfern, very properly made the point that the shape of the Bill will not be determined by the Charity Commission or the Electoral Commission; it will be done by Parliament, by your Lordships’ House and the other place. But, in doing so, it is important that we have some regard to those who have dealt with these issues in elections past, and to the Charity Commission and the Electoral Commission, which agree that the amendment proposed by my noble friend would not be appropriate in these circumstances. I therefore invite my noble friend to withdraw it.
Lord Mackay of Clashfern
Is my noble and learned friend saying, as a law officer of the Crown, that it is lawful for a charity in pursuance of its charitable purpose to do something that can,
“reasonably be regarded as intended to promote”,
the interests of a particular party or candidate?
Lord Wallace of Tankerness
My Lords, that has been the legal position since 2000. It is very rare that it would happen but, conceivably, there is a very limited range of activities that could fall within that. It would not be the intention of the charity but it might be reasonably seen by others to be the intention of the charity. It is because of that very limited possibility that it is important to maintain the provision as it is rather than implement the exemption proposed by my noble friend.
Marriage (Same Sex Couples) Bill
Lord Mackay of Clashfern Excerpts(10 years, 12 months ago)
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( ) Marriage between opposite sex couples shall be referred to as “marriage (opposite sex couples)”.”
Lord Mackay of Clashfern
My Lords, I should first declare an interest. I am the honorary president of the Scottish Bible Society and a member of various Christian groups. I have also been for quite a long time a member of Barnardo’s, which has a certain amount of interest in this area of the law.
The purpose of the first amendment, and of the second amendment that is to be taken with it, is to recognise in the Bill the distinction that exists in fact between marriage for same-sex couples and marriage for opposite-sex couples. I have used only language that occurs already in the Bill. It is striking that the Bill is called the Marriage (Same Sex Couples) Bill. Therefore, I cannot see that what I propose can be objectionable to anybody who wishes to further the Bill in the future. If it is appropriate to refer to what is now being introduced as the Marriage (Same Sex Couples) Bill, it must surely be right to use that name to refer to what exists already in the law, and will continue to exist in the law after this Bill becomes an Act, as I certainly expect that it will.
It seems to me obvious that there is an important distinction between these two types of marriage. My understanding is clear that the Government wish to afford the gold standard to same-sex marriage. That means using the word “marriage” to describe what is involved, which I accept for the purposes of this amendment. Therefore, I cannot see that it in any way degrades what is asked for and granted to same-sex couples in the Bill. The Bill makes distinctions between same-sex marriage and opposite-sex marriage in a number of respects. I need not mention the more technical ones, but there is a fundamental difference in relation to the consummation of the marriage and on the effect to a child of being born to a member of a same-sex couple. That has a very important effect on children.
My understanding is that opposite-sex marriage is a uniquely well designed system for the bringing into the world, and the nurture in the world, of children because opposite-sex marriage involves a direct link between the child and two parents, which arises from the nature of the child’s birth. That, I think, is not in any way replicated in any other form of marriage. Of course, it is possible for children to become children of a marriage in various ways—for example, by adoption and by in vitro fertilisation, which have their own characteristics. Those of your Lordships who sat on the Human Fertilisation and Embryology Bill Committee some time ago, which sought to amend the 1990 Act, will remember hearing people born by means of IVF give very cogent and sensitive evidence on the difficulty of getting information that that had happened and of tracing their roots. I am sure your Lordships are aware that tracing one’s roots and being able to say something about one’s ancestry can be an important factor in the nurture and development of children and, indeed, in the well-being of adults, as people have a great interest in that.
It seems to me essential to recognise that distinction in the Bill as a matter of ordinary drafting. This is not a marriage Bill; it is a Bill which adds to the existing structure a new concept, as I think we should recognise throughout the Bill. It is recognised in the Bill’s Title and is reflected in the heading of various documents, including today’s Marshalled List. In my submission, it is vital that we do not lose sight in future of that aspect of what people have called “traditional marriage” as it is an extremely valuable part of the arrangements that we have had for the birth and nurture of children.
I said in Committee and I say again that the protection of children by marriage, when it works, is extremely important and so far the state has not been able to devise a system which is equally effective. I speak in the presence of people who know much more about this than I do, but I believe that when the natural family fails a child and he has to go into care—which sadly happens, though fortunately not in the majority of cases—one of the difficulties as a matter of practice is to get a bond between a child and a particular individual in, for example a local authority. That is for the very practical reason that local authority staff change and take over different responsibilities and so on. I am sure that that is not the only difficulty, but it is certainly an important one.
I have said that the Bill deals with same-sex marriage and opposite-sex marriage differently in various places and mentioned the technical situation of a child born to a member of the marriage. That child does not enjoy the protection of the marriage on birth. It may be possible for the child to be adopted by the couple, but that is a different process. It is not a direct result of being born to a partner in the marriage. However, perhaps the most striking difference in treatment between same-sex marriage and opposite-sex marriage is in relation to the churches and religious organisations. The nature of the treatment in these two groups is very different indeed. Therefore, it seems only sensible to recognise as a matter of definition what it is that the different treatment applies to.
In my submission, this is the minimum that will secure recognition in the Bill of the distinction between the two. I believe that it completely meets the aims which were intimated as part of what this Bill is about in the sense that it gives marriage with the gold standard to same-sex couples, while retaining, without differentiating to any extent between the two as a value judgment, the essential distinction. This is not a matter of arbitrariness, but of simple fact. Recognising that fact in the Bill seems to me to bring it much closer to what ordinary people—and I count myself in that category—understand the Bill to do. Trying to make out that the two are the same seems to many people, including myself, to be an exercise in fantasy. The factual position is that there is a fundamental distinction which no majority in Parliament or elsewhere can annihilate.
Your Lordships will understand that Amendment 2 is complementary. Later amendments are consequential if the first two are accepted. I am sorry that there are so many of them. This is the minimum that seems to work, although I and other noble Lords think that it may be possible to go further. The later amendment of the noble Lord, Lord Armstrong, to which I and others have added our names, indeed goes further than the minimum. However, my amendment is the essential minimum and if your Lordships were to accept it, a question would remain as to whether the Bill should go further. I beg to move.
Lord Glenarthur
I very much support my noble and learned friend. The debates at Second Reading and in Committee referred to the word “marriage” as being the point at issue and how it could be described in the Bill. The problem with the Bill has been the word “marriage” and it is difficult to find another solution to that problem. For those who have concerns about finding a way to redefine marriage, which the Bill tries to do, it seems sensible, notwithstanding all the sensible comments of my noble and learned friend about the relevance of children to all this, to have a form of words that qualifies marriage under all its circumstances rather than totally redefines it. I very much support the amendment.
Lord Pannick
My Lords, I do not support the amendments because each of them would wrongly suggest to the happy couple entering into a state of matrimony—to their families, their friends and to the world at large—that theirs is not a marriage like any other. The amendments would suggest that it is a distinct form of marriage to be placed in a category of its own. Since the very purpose of the Bill is to recognise same-sex marriages as the voluntary union of one man with another or one woman with another, in the same way as the voluntary union of a man and a woman, it would surely be bizarre in the extreme for us churlishly to take away by a subsection part of the recognition and status that the Bill will accord.
No one would seriously suggest, I assume, that there should be a legislative provision that states that marriage between divorced persons shall be referred to as marriage (divorced couples). The whole point of the Bill is that all lawful marriages, which will include marriages between same-sex couples, are marriages— although, as we all know from our personal experience, each and every marriage is unique.
The noble and learned Lord, Lord Mackay of Clashfern, emphasised that there are some respects in which the Bill treats a same-sex marriage as different from a marriage of an opposite-sex couple. But the whole point of the Bill, surely, is that, notwithstanding those differences, the Bill will implement the basic and vital principle that a same-sex marriage is a marriage with the same status and consequences as any other.
I entirely understand why those who are fundamentally and sincerely opposed to the Bill should wish to introduce these amendments. But they should recognise why those of us who support the Bill regard them as simply incompatible with the fundamental purpose of the legislation.
Lord Mackay of Clashfern
The noble Lord said that the two types of marriage are to have exactly the same consequences. I think I heard him correctly.
Lord Pannick
I said that I understood the noble and learned Lord’s point that the Bill in various respects, which he referred to, treats same-sex marriage and opposite-sex marriage as distinct in various respects. But I made the point that the purpose of the Bill is nevertheless to recognise that each category should be accepted as a lawful marriage for the purposes of the law of England.
Lord Mackay of Clashfern
The noble Lord will be able to say which of my amendments in any way detracts from that. I understood him to say in his earlier submission that there was no difference in consequence. There is a very vital difference in consequence in this respect: a child born to a woman in a same-sex marriage is not a child of the marriage.
Lord Pannick
I respectfully object to the suggestion that a Bill with these purposes and valuable effects should distinguish between same-sex marriage and opposite-sex marriage and necessarily imply a division between them. That is what I object to.
Baroness Stowell of Beeston
I would disagree with the noble Earl’s suggestion that there is a difference in outcomes for children of same-sex couples, but that is a debate for another day. That argument, and the points he makes are not relevant to the amendments before us, which are about creating two different types of marriage. We are saying that there is only one institution of marriage, and both gay and straight couples who want to get married should be able to be part of that one institution on equal terms.
Lord Mackay of Clashfern
My Lords, I am obliged to all those who have taken part in this debate, whether supporting or opposing my amendment. It is interesting to hear what people have to say. I quite understand that the noble Lord, Lord Alli, does not like the brackets, but they have been put in by Government in the Bill’s Title. I thought, what else can I do but accept the Government’s guidance on the matter? However, I think perhaps that that is not the noble Lord’s most important point.
My noble friend Lord Deben, in a characteristic speech, said that the distinction between the two types of marriage was universally recognised, so why should it be recognised in the Bill? If it is universally recognised, surely it would be right to recognise it in the Bill because it is founded on the absolute fact of what occurs. The two are distinct. I do not try to separate them; I just distinguish because they are distinct in fact, and nobody can alter that. The idea that I am trying to wreck the Bill is not correct, I am sorry to say—well, perhaps I am not sorry; I should be glad to say that it is certainly not correct. I want to recognise in the Bill a distinction which, according to my noble friend Lord Deben—and who higher an authority?—is universally recognised. It damages the Bill in the eyes of ordinary people when it is not seen that that is recognised.
My noble friend said that I went on at length about children. I am sorry if I went on too long, but it is a very important factor. Children are very much at the centre of the institution of marriage as it was—and is until the Bill is passed. They are very much at the centre, and indeed, as your Lordships know, in relation to divorce and all that, elaborate provisions were made for children. Children are very important to marriage. There is a statement about children in the Bill which I regard as very important. Paragraph 2(1) of Part 2 of Schedule 4 states:
“Section 11 does not extend the common law presumption that a child born to a woman during her marriage is also the child of her husband … Accordingly, where a child is born to a woman during her marriage to another woman, that presumption is of no relevance to the question of who the child’s parents are”.
Therefore, the situation is that when two women are married under the Bill, and one of them has a child, that child has the same status as if the woman were single. If that is not a distinction—it should be recognised at some point, whether in brackets or otherwise—I do not know what an important distinction can be. If the Government want to improve on the brackets, I shall be happy that they should do so, but I believe that there is a universally recognised distinction between the marriage of two men or two women on the one hand and the marriage of a man and a woman on the other. These are facts that depend on something outside, and impossible to move, or remove by this legislation. The Bill would be improved by people realising what it does and recognising this universally understood distinction.
My noble friend Lord Lester quoted from the dissenting judgment of one of the Justices of the Supreme Court of the United States. He distinguished between the two types of marriage: the one slightly older and the more recent one. I want to include in the Bill recognition of that distinction. The quotation of the noble Lord, Lord Lester, seemed to imply the necessity for some form of sexual relationship in both types of marriage. I pointed out, and I think it has been accepted so far, that same-sex marriage is not gay marriage—it is quite wrong to describe it thus. It includes gay marriage, of course, but it is wider because it involves same-sex couples, whether gay or not. Platonic relationships are perfectly possible under the Bill.
Lord Lester of Herne Hill
I am grateful to the noble and learned Lord. The reason I was quoting Justice Alito was simply to say, as he did, that the choice is for the legislature, and that we have in the Bill protected both kinds of marriage. That is why I did so.
Lord Mackay of Clashfern
Exactly, the choice exists. We have chosen—I want to make it clear that we have chosen—to embrace both in our definition of marriage because that is what I am doing. The idea that my noble friend Lord Lester suggested, that I preferred one to the other or said that one was superior to the other, is quite unfounded so far as these amendments are concerned. There are later amendments that may go further, but this amendment strikes me as the absolute minimum to recognise the distinction that exists in fact. I moved the amendment and I would like to seek the opinion of the House.
Lord Mackay of Clashfern
My Lords, I give notice that, following that vote, I will not move a large number of other amendments in my name.
Baroness Butler-Sloss
I had just about finished, but I had not actually sat down. I just want to say that I think this is a rather special, entirely transitional and narrow matter which I ask the House to treat with some degree of sympathy. It is rather different from the last vote that we had, which was on an important and fundamental point. There is nothing fundamental about this; it is a matter of helping a small minority.
Lord Mackay of Clashfern
My Lords, I put my name to this amendment too. I do not think that the fact that it is a public office is a distinction that is important. The important thing is that the law is changed after somebody has taken a job, and that law affects the conscientious view that that person has of the job. The nearest thing that came to my mind, in my own experience and connection with this, was when Sunday trading was introduced, again on a free vote. Those who were employed were given terms in relation to that. It seems to me that some such allowance is only fair, and fairness should apply in public offices as well as in private offices.
Lord Pannick
I apologise to the noble and learned Baroness. For my part, I cannot accept that a public official is entitled to protection against the requirement to perform his or her basic obligations in relation to the official duties which they are contracted to perform. As was pointed out in Committee, a judge or a magistrate who administers the law of the land cannot refuse to administer laws to which he or she objects. The law may well be clarified after that judge or magistrate has been appointed. No doubt some registrars have a conscientious objection to marrying divorced couples; I cannot see that a conscientious objection to same-sex marriage is any different.
Of course, as has been pointed out, the law does allow, in various contexts, for conscientious objections, including doctors and abortion and teachers and religious education. Sunday trading was mentioned by the noble and learned Lord, Lord Mackay of Clashfern. The difference, as I see it, is that the registrar is performing the function of the state, and the function of the state in this respect is to marry people. The law, not the registrar, determines who is eligible to marry. It is unfortunate if registrars take the view that they cannot continue to perform this role, but no one is asking them to approve of or bless same-sex marriage; all that they will be required to do is to perform the official function that they have contracted to undertake.
Marriage (Same Sex Couples) Bill
Lord Mackay of Clashfern Excerpts(11 years ago)
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Lord Mackay of Clashfern
I support the principle of the amendment tabled by the noble Lord, Lord Dear, in rather the same way as my noble friend Lord Fowler does. It would not be particularly suitable to ask a Lord Justice to do this sort of work. The sort of inquiries that Lord Justices and other judges are asked to do are usually into some specific matter in which their talent and fact-finding is thought to be of particular importance. It has been said that the results of their recommendations are often not quite as influential as the findings that they make on facts. Anyhow, post-legislative scrutiny of this Bill, as with other Bills, would be extremely valuable. It has been said more than once that marriage is the building block of our society. If you change the building blocks, that is quite likely to produce some change in the building, whether for good or bad. It would be right to have this as a subject of post-legislative scrutiny. So far as my marriage is concerned, a very significant change occurred within the first year.
Baroness Northover
I think that I recognise the sort of change that happens in the first year and from the other little ones who come along after that.
I begin by agreeing with noble Lords that the Bill, if enacted, should be reviewed, as is standard practice for any significant legislation. Whether they are for or against the Bill, noble Lords are pushing at an open door. Let me address quickly the slightly different point made by the noble Lord, Lord Dear—the argument that there have been few changes to the Bill during its passage. I point him to the comprehensive answer that my noble friend Lady Stowell gave to counter that point when the noble Lord, Lord Anderson, made it earlier.
In terms of a review of how this legislation works, we agree with the principle. I welcome the support that has come from my noble friends Lord Fowler, Lord Cormack and Lady Cumberlege, my noble and learned friend Lord Mackay and the noble Baroness, Lady Royall. We would envisage post-legislative scrutiny covering issues such as an assessment of how the Act has worked in practice, which would no doubt address the kind of concerns that the noble Lord, Lord Dear, has mentioned, should they arise. We also envisage it covering: when and how different provisions have been brought into operation; any provisions that have not been brought into force, or enabling powers not used; details of the associated delegated legislation, guidance documents or other relevant material prepared or issued in connection with the Act; and any specific legal or drafting difficulties that had been matters of public concern. That was perhaps the kind of issue that the noble Lord, Lord Dear, was talking about—for example, where litigation has resulted, as the right reverend Prelate mentioned on the last grouping.
However, the timing of such a review needs to be carefully considered, with some flexibility built into the process, which is why arrangements for review are typically not set out within a Bill. In line with established Cabinet Office procedures, a memorandum will be produced containing a preliminary assessment of how the Act has turned out in reality, measured by the objectives set out during the passage of the Bill—including, for example, the protections mentioned by the noble Lord, Lord Anderson. That would be part of the way in which the Act would be reviewed. It will then be a matter for a Select Committee to determine whether it wants to go on to hold a wider post-legislative inquiry into the Act. I thank my noble friends for the support they have given on the process. The convention is that a review is undertaken three to five years after Royal Assent—perhaps earlier than the noble Baroness indicated—in order to provide sufficient time for the new law to bed in and operate as intended. The scrutiny would be done at an appropriate time.
While I appreciate the intention behind this amendment, what is proposed instead by the amendment is something more complicated, as noble Lords have indicated, and not proportionate to what needs to be done, involving as it does two separate reviews and a potentially lengthy process, which would delay the answers that I am sure we would all be keen to hear. So, in essence, we are in agreement on the need for a review but not on the mechanics. That is why I ask the noble Lord to accept my reassurances and to withdraw his amendment.
“32A For paragraph 13(2) of Schedule 27 to the Civil Partnership Act 2004 substitute—
“( ) In subsection (1), for the words from “solemnized” to “shall”, substitute “a man and any other of the persons mentioned in the first column of Part I of the First Schedule to this Act, or between a woman and any other of the persons mentioned in the second column of the said Part II,”.””
Lord Mackay of Clashfern
My Lords, this is the last amendment that we shall consider at any length in this Committee. However, it is rather an important amendment and it is in the nature of a probing amendment, as I will make clear as I proceed.
When the Marriage Act 1949 was passed, Section 1 set out the prohibited degrees in a way that said, “A man shall not marry,” and then a column of positions of a woman whom he could not marry, and “A woman shall not marry,” and another column of men of different positions that she could not marry. If Section 1 had stayed as it was then it would not apply to same-sex couples.
In the Civil Partnership Act 2004, as I said in my speech at Second Reading, the intention was to produce for people who were in same-sex relationships a legal position as like marriage as possible. In order to do that, Section 1 of the Marriage Act had to be amended so that instead of expressing it in these columns it did it by way of relationships. That was done in the Civil Partnership Act. Section 1 of the 1949 Act was also amended so that the Act no longer proceeded on the columns but went on relationships as the Civil Partnership Act did.
When the 1949 Act was passed, as I said, there was no question of it applying to same-sex marriage. I strongly believe that the same-sex couples marriage which this Bill introduces is different in important respects from opposite-sex marriage. In particular, opposite-sex marriage includes as one of its purposes—not its only purpose—the natural procreation of children. That is not a purpose of the same-sex couples marriage for reasons that are obvious.
The second point I want to make is that I have heard same-sex couples marriage described as gay marriage. That is not correct. The correct description is same-sex couples marriage and I can see nothing in the Bill that suggests anything to do with sexual relationships. Therefore it is perfectly open for people in same-sex marriages to have a completely platonic relationship. That raises the question of the applicability of the prohibited degrees to same-sex marriage. I want to raise the question of whether prohibition requires reconsideration in relation to same-sex marriage. It is one thing to have it for opposite-sex marriage but does it require reconsideration in respect of same-sex marriage?
In introducing the Bill, my noble friend said:
“So much do we believe in marriage and its importance to our society, we want all couples, whether gay or straight, who are prepared to affirm publicly their commitment to each other and all the responsibility and joy that comes with it, to be free to marry”.—[Official Report, 3/6/13; col. 938.]
That means all. Obviously if someone is married already there is no possibility or freedom to remarry, but subject to that kind of consideration the general assertion is that all couples should be free to marry. Therefore we have to look at the prohibited degrees which are prohibitions on couples who may wish to marry. One such couple—to take an example—is brothers. I know of no love which is more widely commended than brotherly love. There is nothing to suggest that brothers cannot love each other perfectly properly and in such a way as to be willing to commit to each other in the full sense with which my noble friend used the expression in introducing this Bill, unless of course it has some relationship to what the noble Baroness, Lady Deech, was talking about later—earlier—today. Yes, I am getting confused. At 11.40 pm it is not surprising.
Earlier today she raised the question in relation to civil partnerships but I raise the question more fundamentally in relation to marriage and same-sex marriage in particular. At present I do not understand why it should be closed to all of the present prohibited degrees. I would like to know to what extent the Government have previously analysed this position and have reached a conclusion on it because as yet I have seen no discussion of this particular aspect in any detail. It is an important aspect to my mind, and I think it has a bearing on how some people in our society view the provision for same-sex couples marriage. A lot of people—we have heard it today once or twice—refer to it as gay marriage. That is restricting the scope of this Bill in a way that is not justified by the terms of the Bill itself.
The importance of the fact that ordinary marriage—what I will call opposite-sex marriage—has as one of its purposes the natural procreation of children is that the institution is there to offer protection and safeguards to children. When it works properly it is a very effective safeguard for children. As I said the other day, the state has not shown the ability to protect children to anything like the same extent as a well functioning marriage.
I received in connection with this Committee stage a request to make it clear that I am against homophobic bullying in any way. I certainly want to make that abundantly clear. The function of ordinary marriage—the marriage of opposite sexes—includes protecting the children against any form of bullying and any form of homophobic bullying, and preventing them taking part in such bullying. We all know that children are quite quick to notice differences between their circumstances and those of other children, perhaps in the same class. That is often a source of improper bullying of one kind or another. I make it clear that I regard one of the functions of opposite-sex marriage as protecting against all forms of damage to the children.
The noble Baroness on the opposition Front Bench referred, in the context of another amendment, to the presumption that when a child is born to a married woman the other party to the marriage is parent of the child. That presumption is set aside in this Bill—an important fact that must be taken into account. In opposite-sex marriage the three ways in which children of the marriage can be produced are by natural procreation, IVF or adoption. In same-sex marriage it will be by IVF or possibly full sexual relations, which according to the Bill may constitute adultery—which is slightly unfortunate from the point of view of the child being produced. According to the Bill, that child will have no relationship with the marriage at all. Of course, the other method is by adoption.
Same-sex marriage, as the Bill makes plain, does not embrace children in the same way as the natural child is embraced by the marriage of opposite-sex couples. All of this has a bearing on the relationships that are prohibited—the prohibited degrees. At the moment I can see no reason why brothers and sisters should not be able to have a same-sex marriage if they felt that they wanted to. A noble Lord pointed out earlier that of course you can end a relationship only with a divorce. That is absolutely true. The marriage relationship would be over and above the relationship between sisters or brothers. If they decided to end the marriage relationship that would be sad, but it can happen with same-sex and opposite-sex couples and it is sad whenever it happens. However, it could happen. One would not wish to contemplate that as happening very often, but of course it is certainly a possibility.
Against the background that all couples who love one another are able to marry—that is what we want—I find it difficult to see why brothers or sisters who are willing to marry should not be able to do so. The Bill needs to consider a little more carefully than it has done this provision raised by the noble Baronesses on the Front Bench in their amendment for no presumption in favour of a child born to a woman in a same-sex marriage. That child is left without any marriage connection at all as far as I can see. That seems to me highly unfortunate. Although it is important to consider the rights of adults in relation to same-sex marriage—that is what the Bill is primarily about—it is extremely important to think about future generations and the relationship with children as well as the prohibited degrees matters that I mentioned. I believe that the prohibited degrees were first inserted into the marriage institution for the primary reason of protecting against inbreeding with normal procreation. These reasons, of course, do not have any place in same-sex marriage, and therefore I think we need to look at the justification, if any, for the prohibited degrees, at least in their present form. I beg to move.
Lord Wallace of Tankerness
My Lords, I welcome the interesting debate that my noble and learned friend Lord Mackay has generated. He is right to challenge us to consider it and I can indicate at the outset, although I will say more, that the Government do not feel able to support his amendment. It would permit siblings of the same sex to marry, and I assume that that could include uncles and nephews, grandfathers and grandsons and mothers and daughters. The Government do not feel able to accept the extension of marriage to close relatives. Clearly, as my noble and learned friend indicated, the origins of this go back to concerns about the need to prevent incest and potential inbreeding.
However, it is also fair to point out that, in terms of procreation, not all marriages, even heterosexual ones, are contracted for the purposes of procreation. It would almost be a logical extension of the argument that when an opposite-sex couple are past a certain age, or the woman passes a certain age and is incapable any longer of having children, perhaps the degrees of affinity regulations and prohibitions should fly off. Even just saying that indicates the real sensitivity around this and how it is difficult to readily accede the point being made by my noble and learned friend.
Before returning to some of the substance of his argument, I note that my noble and learned friend indicated in his opening remarks that he seeks by this amendment to restore Section 1 of the Marriage Act 1949 to what it was before the Civil Partnership Act 2004 amended it. It is important to point out that the 2004 Act created one gender-neutral list setting out the prohibited degrees of relationship. The amended Marriage Act makes it clear that no person can marry any relative listed in Schedule 1.
I am not founding my argument on this point because it is a technical matter which no doubt could be addressed. But in reverting back to the original Section 1 of the Marriage Act 1949, the amendment does not lead to any change in the relevant schedules, so that certainly could lead to confusion, although no doubt my noble and learned friend could do something about that if he wished to persist with this and bring forward amendments to the schedules as well. Paragraph 17 of Schedule 27 to the Civil Partnership Act 2004 replaced the two separate lists. Under the amendment, that single gender-neutral list would still stand and would need to be repealed and the original wording restored.
I have sought to indicate that the Government do not accept the principle of what my noble and learned friend is trying to achieve. He referred to platonic relationships. If this Bill is passed, it will be open to individual couples, whether of opposite sex or of the same sex, to determine whether to engage in sexual activity and to consummate their marriage. Couples are not required to consummate their marriage; there is only an option for opposite-sex couples to apply for an annulment if one party applies to have the marriage annulled on that basis.
On the point about two brothers being able to marry, as I indicated, the Marriage Act sets out the relationships of people who cannot marry each other. The Government want to ensure that same-sex couples are able to marry under the same provisions as opposite-sex couples. The provisions in the Marriage Act on prohibited degrees of relations are already capable of applying to same-sex couples and therefore no change from what was put in place for civil partnerships is required.
My noble and learned friend referred to the debate we had earlier on the amendment moved by the noble Baroness, Lady Deech. In my response to that I referred to tax issues. To be fair to my noble and learned friend, he did not use that argument. His argument was based more on grounds of principle. Nevertheless, the proposal would have consequences in terms of tax. However, I also think—I made this argument during that debate—that there are power relationships within families. Who is to say that pressure could not be brought to bear on a brother to marry another brother if it was thought that that would best serve his inheritance interests? You cannot tell what goes on in families. That is why my noble and learned friend is absolutely right to talk about the need to protect children. We are not necessarily talking about infant children or children under the age of 16, but within families lots of power can still be exerted when children are young adults or even older. While concerns about incest and inbreeding clearly lie at the heart of the prohibited degrees of marriage, there is also a recognition that within families powerful relationships can often be at play.
As I indicated, this amendment would allow father and son, mother and daughter, uncle and nephew, aunt and niece to marry. We think that the pressure is more relevant at an intergenerational level than at a sibling level, although that is not to say that it could not occur at a sibling level. Therefore, we should be very cautious about going down that road. Indeed, the noble Lord, Lord Alli, referred to civil partnerships in this connection. We believe that the nature of marriage is one which people recognise as being different from the relationship that exists between two close members of the same sex of a family. For these reasons, I ask my noble and learned friend to withdraw the amendment.
Lord Mackay of Clashfern
My Lords, if I had an answer, I would be happy to withdraw the amendment. The point I am making relates, for example, to brothers. The idea that this is something to do with pressure is ridiculous because, as we know, pressure is exerted in families far beyond same-sex relationships, and that has to be dealt with somehow. There are plenty of laws relating to undue pressure being put on people to get married or otherwise. What I am talking about is the marriage that was described by my noble friend at the beginning, where people love one another and wish to undertake the responsibilities of marriage.
I can understand that there are different considerations for different parts of the prohibited degrees, and that is why this needs to be considered. However, I have a feeling, and I may be entirely wrong—
Lord Wallace of Tankerness
I thank my noble and learned friend for giving way. Does he accept that if a man at, say, the age of 60 wished to marry his sister who was aged 60, where procreation and therefore inbreeding was not possible, the rules on the prohibition of close relationships should be set aside after a given age, if they love each other and want to make that commitment? Is that his argument?
Lord Mackay of Clashfern
This is a justification for same-sex marriage that has been put forward. That is what I am talking about. I said in my speech at Second Reading—I invited correction but so far that has not come—that the reason for the prohibited degrees applying across marriage generally is because the natural procreation of children was a central purpose. I quite understand that people far beyond the age of childbearing are subject to the rules, and if George Clooney does not hurry up, you never know what might happen. The rules are there because a central purpose of opposite-sex marriage is the normal procreation of children, and therefore the rules are put generally to the whole lot. That does not apply to same-sex marriage at all.
The idea of pressure is just as likely to occur in relation to people who are not directly related. Parents, particularly in some situations, try to persuade their daughter to marry X for reasons of their own rather than hers. That kind of pressure is something that has to be looked at. However, I do not see why such pressure should be particularly rife between brothers at full age and thus perfectly entitled to consider what they want to do. I cannot see that it is a reason for cutting brothers out. So far, I have not heard any reason that contradicts the general statement of principle which was made when introducing same-sex marriage into our law.
At midnight it is not suitable to press my amendment, but I think that this needs to be considered, and I would like to hear more about it before Report. On the technical point, what we have done is amend the statute and the schedule that works in accordance with the statutory provision. It does not matter because I can easily alter it, but the amendment was tabled with assistance, as noble Lords will understand. I do not say that they necessarily got it right, but I think it is right. Anyway, if it is wrong, I can easily put it right; it is a very technical point and my noble and learned friend has accepted that. However, the essential point needs to be considered carefully and I would like to hear more about it by Report. In the mean time, at one minute to midnight, I am happy to withdraw the amendment.
Lord Wallace of Tankerness
My Lords, I am grateful to the noble Baroness, Lady O’Loan, for her further amendment regarding the public sector equality duty. It is similar, although not identical, to Amendment 13 in the name of the noble Baroness and that of the noble Lord, Lord Singh, which the Committee discussed at length last Wednesday. I certainly do not intend to rehearse all the points that were made then. I undertook, following that debate, to write to the noble Baroness on a number of points that were made in that debate—I think that that suggestion was made by the noble Lord, Lord Deben—and to circulate the letter to all those who took part. I also indicated that if the recipients of that letter wished to follow it up with a meeting, I would more than happy to do so. Certainly, if there are any further points arising out of the contributions to the debate that have been made this evening which require to be covered by that, I shall do so.
The amendment is couched in different terms from Amendment 13 and would have a slightly different effect but, again, the Government believe that it is unnecessary and potentially harmful. As we discussed last week, the public sector equality duty places a duty on public authorities to have due regard to the need to eliminate unlawful discrimination because of, among other matters, religion or belief. Where this is relevant to the exercise of their functions, public authorities are already required to have due regard to the possible impact of their policies on people who believe that marriage should be between only a man and a woman. The amendment is therefore unnecessary.
However, the amendment is also potentially harmful—the noble Baroness, Lady Thornton, was right to say that this is our domestic legislation. The amendment would mean that public authorities would be required to consider this particular belief about marriage, giving precedence to it over all the other beliefs to which they are required to have due regard whenever they take a decision, regardless of the context and the relevance to the decision.
Moreover, the public sector equality duty is a duty to have due regard. It is a duty to think; it is not a duty to act or to achieve a particular outcome. The amendment goes far beyond the duty to have due regard. It places a duty on a public authority to ensure that the belief that marriage should only be between a man and a woman is respected, and to ensure that no one expressing such a belief will suffer any detriment. That is of course a desirable outcome, but it is not clear to me how any single public authority, or indeed all public authorities working together, could ensure that that would happen. I take the point made by the noble Lord, Lord Martin of Springburn. It was in one of our first debates that my noble friend Lord Lester made the point—I think that the noble Lord, Lord Alli, then quoted it back—that you cannot legislate against some public authorities or some individual doing a daft thing; “idiotic” may have been the word that he used. Mention has been made of the case of the housing officer who lost his job for something that was put on a public website, when in fact the law actually protected him. When the case went for judicial review, the judge put it on the record that, had he taken the matter to an employment tribunal, he would have had more substantial damages than he was able to get under a judicial review. The law has worked. I say to the noble Lord, Lord Martin, that I think that we all get very frustrated sometimes when daft things are done, but we believe that the Bill ensures that those protections are in place. I do not believe that the way to deal with those occasions where public authorities have not applied the current laws properly is to start trying to meddle with the equality protections and to risk unintended consequences. Rather, we should address them by doing what we can to ensure that public authorities understand the nature of the requirements on them and what they mean in practice.
That is why, as I explained on Wednesday and as my noble friend Lady Stowell has also explained, the Government will work with the Equality and Human Rights Commission to ensure that its guidance for public authorities is as clear as possible, in particular by making it clear that the equality duty cannot be used to penalise an organisation or individual for opposing same-sex marriage and indeed that to do so would be unlawful. I also remind the Committee of my commitment given last Wednesday that we will address issues relating to the equality duty when we respond to the Joint Committee on Human Rights before Report.
On behalf of my noble friends Lady Stowell and Lady Northover, I thank noble Lords for the kind words that have been said. I thank all Members of the Committee, because we have had some very important and worthwhile debates. I hope that the noble Baroness, Lady O’Loan, has received the further reassurance on this issue that she has sought. I therefore ask her to withdraw her amendment.
Lord Mackay of Clashfern
My Lords, before the noble Baroness withdraws her amendment, I would like to associate myself from this side of the House with her comments about the Front Benches on both sides.
Baroness O'Loan
My Lords, in withdrawing this amendment, I also express my appreciation to the Front Bench for the way in which they have conducted the debate. I reserve the right to bring this matter back, not in multiple amendments, but in an amendment on Report. I beg leave to withdraw the amendment.
Marriage (Same Sex Couples) Bill
Lord Mackay of Clashfern Excerpts(11 years ago)
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Lord Mackay of Clashfern
I am not so sure about that. Those who arranged the judicial calendar did have some regard to questions of that sort when there were a number of judges to be allocated.
I want to draw attention to the facts found in the Ladele case about certain local authorities. It was found practical, in some local authorities, to respect the conscientious objection of particular registrars. If it is possible to do that and still provide the service, it seems to me that the provisions of the European Convention on Human Rights apply in respect to religious belief. As I understand it, people’s religious beliefs are to be given effect except when they conflict with the rights and obligations of others. Where a local authority was able to make that kind of adjustment it was perfectly reasonable for it to do so, and that is what it did. I think this clause as proposed is intended to do that.
I agree that it may be wise to restrict it to those who are already registrars, as the changes to the law affect their situation. However, the idea that it should be ruled out altogether because you could object on other grounds strikes me as not a particularly attractive argument. I remember having a discussion about this very sort of thing with the noble Baronesses on the Front Bench when the Equality Act 2010 was a Bill. I did not get any further with them then than I am likely to now.
Baroness Barker
My Lords, I listened to this debate with great care. It is one of the most important we have had. It was very telling that the noble Baroness, Lady Cumberlege, refused to consider the application to other groups of the principle that she invites us to accept. I thought that was very, very telling. Going back to the points I made earlier today, I defend the right of religious organisations not to like gay people, and to treat gay people differently. I defend their right to do that. I do not defend the right of individual public servants to determine the level of service given to a member of the public according to their private views.
I listened to the noble Lord, Lord Dear, talking about his earlier amendment, which had a similar effect. He talked about a situation in which public servants remove themselves and walk away. How would you feel, as a member of the public turning up for a service that you and everybody else are supposed to be allowed to have, if the person behind the desk walks away? How would you like that to happen to you on one of the most important days of your life? Would you like to have a really important ceremony in your family officiated by somebody who quite plainly does not like you?
Justice and Security Bill [HL]
Lord Mackay of Clashfern Excerpts(11 years, 3 months ago)
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Lord Mackay of Clashfern
My Lords, I suppose that I can claim to have had some experience in dealing with this area of the law in the past. The first thing I want to say is that the procedure that has hitherto been adopted in relation to national security is a secret procedure in which the judge sees the documents and the other side does not. This secret procedure has been established and used many times, as the noble and learned Lord, Lord Brown, has said. There is nothing novel about that kind of thing having to happen in relation to sensitive material.
The first condition for the closed procedure is that one of the parties will be required to produce sensitive material—that is to say, material which is damaging to national security. The noble and learned Lord, Lord Brown, has said that he was considering redaction as an alternative to CMP, and using screens to hide people’s identity. That must be considered before you can say that sensitive material has to be produced. The idea of that is to remove the sensitivity of the material and make the redacted material harmless to national security.
It seems to me that the only alternative that this first amendment would introduce is the amendment of public interest immunity. As the noble and learned Lord, Lord Brown, has explained in the case to which he referred, attempting to ascertain that would require, in some cases, a very long process. The process is equally one in which one of the parties is not allowed to take part. It is not much of an advantage over this procedure.
Lord Goldsmith
My Lords, the noble and learned Lord, Lord Mackay of Clashfern, has made that point twice. Does he recognise that although, as he said at the outset, there have been procedures in which material has been seen, but not by one party, those are not procedures in which that material is then relied upon by the judge to determine the rights and wrongs applicable to that party? This is in order to exclude that material and not to allow it in. Is that not the novelty of this procedure?
Lord Mackay of Clashfern
Absolutely, that is the procedure with excluded material. Of course, excluding the material can sometimes be extremely damaging to the interests of the other party to the litigation. The noble Baroness referred to Matrix Churchill. That was exactly the sort of case that Matrix Churchill would have been if the judge had excluded it because the material that was sought to be excluded as sensitive material was, on further examination, of great use to the claimant, as we all know. The idea that a public interest immunity certificate is so superior to this procedure strikes me as being without great foundation.
I assume that the only material in question is material that has been subject to all the processes that the noble and learned Lord, Lord Brown, has suggested for removing its sensitivity, because if you can do that the party is not required to produce sensitive material because it has been neutralised and the difficulty has been removed. Therefore, when you have that in mind, it is very hard to see how you can find out whether there is any other way in which the case can be dealt with. One of the problems about that is that at the beginning of a case things may look different from how they look as the case proceeds.
One of the great benefits of the amendments that the other place has put in here is that this matter can be reviewed at any stage of the procedure. Therefore, it seems to me that this system, in a very small minority of cases, will be the best way of securing the fair and effective administration of justice in that case. It is not a question of excluding material, which is an appropriate test for the amendment proposed by the noble Lord, Lord Macdonald; it is nothing to do with that. It is to see that the material that is being used is used in a way that does not damage the security of this nation. The Government have as one of their primary responsibilities securing the national security, as evidenced by what the noble and learned Lord, Lord Woolf, said about control orders, which control people’s liberties, in which this sort of procedure was introduced. I believe that this procedure is the best way in which to secure national security.
I endorse what the noble and learned Lord, Lord Woolf, said in his letter. Our judges are as familiar with the desirability of open justice as any Peer who has spoken. They know the value of open justice; they were brought up to it. There is no question of a judge going for a closed material procedure if he thought it could be done in open court. I believe that giving this discretion to the judiciary in very limited circumstances with two very important conditions is the right way to deal with it. It is not the Executive who are deciding, but the judge. Judges have taken an oath to,
“do right to all manner of people … without fear or favour, affection or ill will”.
That oath will apply in the decision that the judge has to make, and it seems to me that the best possible test has been evolved by the House of Commons in its consideration of our Bill, and the test is the fair and effective administration of justice in that case.
Lord Thomas of Gresford
My Lords, much of what I intended to say has already been said, but I shall give an illustration from the classic case of Duncan v Cammell Laird, which involved the sinking of a submarine in Liverpool Bay while undergoing trials on its maiden voyage in 1939. Ninety-nine men were lost. Their widows, mostly from Merseyside, sued the shipbuilders. The Admiralty, in the middle of the Second World War, declined to allow the production of the designs of the submarine on grounds of national security. Contemporary evidence, which has been seen since, suggests that its true motive was to restrict the power of citizens to sue government departments, particularly when they were financed by trade unions. In fact, the claimants lost.
Today, other means, which have been referred to in the course of this debate, might have been used to assist those claimants in the projection of their cases, but suppose this legalisation had been in force and that the Government had applied for a secret hearing. Can your Lordships imagine the uproar in Liverpool if the Admiralty had been able to produce not merely the designs but its expert evidence and argument, and to explain those designs to the judge in secret, without challenge and without anything being heard on the other side? Patently, it would have been a miscarriage of justice.
Open justice, very simply, means first that a claimant should know the case made against him. That principle derives from what was said more than two and a half millennia ago by Aeschylus in the “Oresteia”.
Lord Mackay of Clashfern
How does my noble friend know what the judge would have decided, assuming that he had had a chance to look at the designs?
Lord Thomas of Gresford
I am not saying what decision he would have made—how could I possibly know? I am saying that the public would have been outraged at the idea that the Admiralty could go to see the judge up the back stairs, in a secret court, and produce the designs and the arguments to support their case.