Child Maintenance Service

Lord Mackay of Clashfern Excerpts

Thursday 24th June 2021 Grand Committee

[Lord Mackay of Clashfern (Con)]

My Lords, my link with this service goes back a long time. When I became Lord Chancellor in 1987, I quickly discovered that many parents who had been deserted had been successful in getting orders from the court for maintenance. But, unfortunately, no sooner had they got the order than the husband disappeared, and they had no resources available to them to try to find out where he was or to raise the money that was due. Needless to say, his attitude was not to come forward—that was not his business; his attitude was to hide himself as much as possible.

I found this an extremely difficult problem. By that time, I knew a little bit about Northern Ireland, which had a state system for enforcing decrees of the court. It seemed to me that this was what we would need: some form of state system that helped to find the person in question and formulated the responsibilities that he had. Eventually, this became government policy in the Act to which my noble friend Lord Farmer has already referred, which set up the Child Support Agency.

As the Lord Chancellor at that time, I had responsibility for divorce law, and a question arose as to whether we should take into our department the necessary work to set up the computer necessities of the CSA. My department very wisely suggested that that was better done in the department that my noble friend represents today. That was very wise advice. Originally, it was thought that this new organisation, with its mighty computer, would be able to adjust the requirements of each case according to the circumstances; but, first of all, that was a very major task, and, secondly, the circumstances changed very rapidly, and therefore quickly became out of sync with the requirements.

The real difficulty in arrears from that source was the arrears of the CSA following the paying parent. It took a long time to get around that problem, with the gradual simplification of what was done via the computer—in the end, it became a job that depended on help with the revenue and so on, and with the fixed sum which was due by the paying parent in respect of the child. That shortened the process quite a bit.

Unfortunately, divorce arrangements remained the responsibility of the Lord Chancellor’s Department. It is now the responsibility of the Lord Chancellor and the Ministry of Justice to adjust the kind of arrangements that will be needed to adjudicate on these where necessary. My view is that it is important that a separation happens with as little animosity as possible. Animosity is a natural reaction to it in many quarters, and a degree of help is needed to overcome that. At the moment, I think that is with the Lord Chancellor’s Department, along with the process of mediation and so on, which we discussed so fully all those years ago in the original proposal for no fault.

I have never seen how allegations of fault get rid of the animosity, because it is very seldom that the parties are agreed about what happened. People who can tell what actually happened are rather scarce, because they will not have been there on most occasions when animosity is shown and the basis for fault arises. It seems to me that that kind of investigation must be in a higher court than any that we can have; it is a matter that should not be allowed to blossom in our system, as I think has now happened.

Collecting money is still an important matter. So far as I can see, at the moment, it is a distinct factor and function in trying to resolve problems with the family. I was very concerned about this when our first Conservative Government after I left office came into power. I was anxious about the arrangements that were made, as they seemed to be fairly heavily disposed against the receiving parent, as well as the paying parent. I am glad to see that the system now operating is 20% extra to the paying parent and 4% to the receiving parent, but I still find it very difficult to accept the view that, because of the attitude of the parents, this particular system is required to achieve payment. The difficulty is that the 4% is really coming off what is due to the child—

[Baroness Scott of Bybrook (Con)]

Can I ask the noble and learned Lord to wind up, as we have a seven-minute speaking limit?

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[Lord Mackay of Clashfern (Con)]

Yes, I shall wind up quickly. I understand that the difficulties in the present business of sorting out the money have created the difficulty that my noble friend Lord Farmer referred to, and which I mentioned in my communication with the Minister. I do not know whether it is true or not, but I think it is worth considering.

Kinship Carers: Two-child Limit Policy

Lord Mackay of Clashfern Excerpts

Monday 11th December 2017 Lords Chamber

[Baroness Buscombe]

My Lords, the Government are looking at this policy at the moment, as I have already said. We do not believe we are being callous. The Government’s view is that providing support for a maximum of two children in universal credit and child tax credit will ensure fairness between claimants on the one hand and, on the other hand, those taxpayers who support themselves solely through work.

[Lord Mackay of Clashfern (Con)]

My Lords, I had understood when this matter was discussed that the theory underlying the proposal was that those who by their own choice landed themselves with more than two children had to support the extra children with whom they had landed themselves. However, the case that we have just been talking about is not that; there was at the very least a moral obligation for that lady to take her siblings. It would therefore be right to say that it is not in accordance with the principle underlying the proposal that this case should be treated as it apparently has been so far. I hope the Government will reconsider it.

[Baroness Buscombe]

I thank my noble and learned friend for his question.

Financial Guidance and Claims Bill [HL]

Lord Mackay of Clashfern Excerpts

Report: 1st sitting: House of Lords
Tuesday 24th October 2017 Lords Chamber

[Lord Elystan-Morgan (CB)]

My Lords, I am full of respect for and sympathy with the amendments and the spirit in which they have been moved. We are facing massive social abuse that is complicated and extremely extensive. I doubt very much whether in the complicated and convoluted society in which we live it is humanly possible to rid us of all of it. I am sure that is beyond us.

The remarks made by the noble Lord, Lord Faulks, triggered two thoughts in my mind. The first relates to the Offences Against the Person Act 1861 and how well that Act has served society. We are still dealing with it day in and day out in the courts, and with the help of judicial interpretation it is as fresh in many respects as it was the day it was passed. In so far as the offence of assault occasioning actually bodily harm—Section 47—is concerned, the noble Lord is absolutely right. There should be a parallel offence that is not confined to an assault and does not concentrate upon a physical consequence. There have been attempts in the past to widen that offence, but they have been rather vague and less than totally successful. It has to be revamped completely so that the concept of assault is not basic to it and it is not confined to bodily harm.

My other point relates to the higher end of the scale with regard to cold calling. At the very bottom of the scale there is the fishing exercise, the hopeful prospect that something might come of what is not of itself a criminal act. At the other end of the scale, there is a very serious criminal act where A says to B “Let us pretend that an accident occurred—we know nothing like that ever took place—and you are the claimant in regard to that matter and that you are prepared to put forward a statement of facts about a fact that you know to be totally false. I will support you, and we will split the profits between us. You should be prepared, of course, to commence an action in the courts”. The moment you do that, you have probably committed a very serious offence. You have attempted to pervert the course of justice. I believe that as a proposition of law, exceptional to the usual law of attempts, every attempt to bring about a perversion of the course of justice is of itself a perversion of the course of justice. It is at that end that we should start concentrating. Very few of these cases are brought to court, and very few of them are successful, but it would be marvellous to be able to make an example of some of the very worst cases, and by such example a very considerable social lesson would be taught.

[Lord Mackay of Clashfern (Con)]

I would like to ask whether the “direct approaches” referred to in proposed subsection (3E) need to relate to financial matters.

[Lord Sharkey]

That would fall within the ambit of the consumer protection function of the SFGB.

Welfare Reform and Work Bill

Lord Mackay of Clashfern Excerpts

Tuesday 9th February 2016 Lords Chamber

[Lord Kirkwood of Kirkhope (LD)]

My Lords, I add my note of congratulation to the noble Baronesses, Lady Pitkeathley, Lady Hollis and Lady Drake, on the splendid work that they have done not just on this Bill but long before and since. They deserve the credit for these hard-fought and well-won amendments, as does the Minister. This has not been an easy Bill at all. Indeed, I do not want to spoil the tone but I join the noble Lord, Lord McKenzie, in saying that this is the worst Bill that I have ever come across in 35 years of working in social security. This group of amendments is extremely welcome, but taking £12 billion out of the social security system for the rest of this Parliament is going to continue to be a hard-fought business at all levels, particularly in this House.

I congratulate the Social Security Advisory Committee, whose work is exemplary; it supports a lot of the work that many of us in this House do. I also congratulate the Delegated Powers and Regulatory Reform Committee, which was absolutely correct in its 13th report when it strove to draw to the Government’s attention the fact that the SSAC needed to have a role in these clauses. I agree with that, and now we have a compromise. I do not understand why the Government decided not to allow the whole of the DPRRC’s recommendation; it would not amount to much, and keeping the level out of the hands of the SSAC just encourages Treasury Ministers to say daft things after Budget purdah without any consultation or anticipation by anyone—there have been examples of that in the recent past.

It also detracts from the established annual procedure for updating the social security levels that Parliament has always had in the uprating statement. I note, for example, that there is no sign of the uprating statement coming to your Lordships’ House this year; it is being done by the other place. I look forward to the powers that be allowing at least a Moses Room debate because it is the one occasion when you can look at the national insurance accounts, the Government Actuary’s recommendations and the totality of social security and tax credit expenditure. If this House cannot find time to discuss that annually, that is a matter of very great regret.

My final point is about the SSAC and the policy around the benefit cap. It is one of the most regressive policies that I have ever come across in any social security system, but I understand that I am in a minority of maybe one in the country on that question now. Maybe the Minister will confirm this because I think that the answer to this question is yes: once, as I hope it will be, austerity is dealt with and as a nation we get into a more favourable set of economic circumstances, I believe that the SSAC could use its discretion to undertake a report into the whole policy. I do not think it is excluded by anything in these amendments from looking at the impact and eventual outcome, after the introduction of universal credit. I understand that that may be a few years down the line, but am I right that nothing in the amendments precludes the committee, on cause shown, if it really believes that it needs to make recommendations to the Minister?

I pay tribute to everyone who has been involved in this Bill; it has been one of the hardest fought and most difficult, and people have worked hard on it. We have got results today, and I welcome that as much as anyone. Still, I think that the Bill will cause damage in future, although I know that as long as the noble Lord, Lord Freud, is in his position he will be monitoring that carefully. If he believes in the fullness of his consideration that some of this stuff needs to be amended in future, we rely on him to come to the House and tell us so. I would be one of the first to support him if he did.

[Lord Mackay of Clashfern (Con)]

My Lords, I join those who have congratulated the Minister on recognising the special needs of this particularly deserving group. I also congratulate those who have brought these matters to his attention. I feel that this demonstrates very clearly that, when a good argument is put forward, it will be listened to.

[Baroness Howarth of Breckland (CB)]

My Lords, I am sorry that I cannot join totally in the congratulations, although obviously the noble Baronesses, Lady Pitkeathley and Lady Hollis, have achieved great things. However, the noble and learned Baroness, Lady Butler-Sloss, and I were very keen that those adopters of difficult children who join their families should also be excluded from the cap. In his reply, the Minister accepted that, where sibling groups were adopted, that would be an exclusion, but where there was one child, his words were, I think, that they would be not unlike any other family.

I suggest to the Minister that any adopted child is not like any other family. Children in care who are going to be adopted are not sweetness and light on the whole. They have had very difficult childhoods and are going to need extraordinary care. I express my disappointment. We have written to him to say that we are disappointed that adopted children have not been included in the list. Having said that, I am extremely grateful for those who are.

Child Support Fees Regulations 2014

Lord Mackay of Clashfern Excerpts

Tuesday 4th February 2014 Grand Committee

[Lord Mackay of Clashfern (Con)]

My Lords, I want to comment on Regulation 7(3) of the fees regulations and, incidentally, on Regulation 8(2). I have interests in children’s charities and care organisations, which may or may not be relevant to what I am going to say now but I declare them for caution.

It is rather remarkable that the Explanatory Memorandum comments on this provision and puts the point rather succinctly:

“The introduction of fees is politically significant. Child maintenance elements of the Welfare Reform Act 2012 had a difficult passage through the Upper House and charging persons with care, often single mothers of limited means”—

I do not know how many people are of unlimited means, but anyway it is quite clear that these are people of rather limited means—

“remains a controversial issue for stakeholder groups, service users and the wider public”.

I assume that I am included in the wider public.

I am entirely in favour of everything that can be done, and that this Government are doing, to try to help people who have had a relationship that has broken up. I am familiar from long ago with divorce cases; I did a lot of them but, as the Committee knows, that was a long time ago. However, the difficulties of interpersonal relationships were as formidable then as they are now, and I wish every success to the moves that have been made to try to help people by the Department for Work and Pensions, the Ministry of Justice and the Department for Education, which are involved in the Children and Families Bill, which is having its Third Reading tomorrow. I went to a meeting that Ministers organised in connection with that Bill, and I had to remind them that the DWP was also working in this area of trying to help people. Of course, they said that they work very closely together, so I am glad to hear that. The closer they get together, the more chance that their measures will be successful. As I say, I wish them every success in that. Unfortunately, so far those efforts have not produced universal success, and the regulations contemplate at least the possibility that they will not have universal success in future.

The point that I want to stress is that when it comes to the obligation to maintain a child, the parents’ obligation is absolute. It does not matter what sort of dispute they have had with the other party to the arrangements in the past. I accept immediately that there are many different types of squabble that can emerge, and it is by no means clear that the non-resident parent is always fully responsible. I entirely understand that for the question of the break-up of the arrangements, both parties usually have some degree of responsibility. When it comes to the payment of maintenance, though, that obligation is absolute and is not qualified by the fact that the other party to the arrangement has been terrible, difficult or whatever. That is what these fee regulations are concerned with.

The collection fee that I have referred to appears when the collection system comes into operation. That happens only when the Child Maintenance Service, not the other party, is satisfied that without the collection service, maintenance is unlikely to be paid. That is in Section 137 of the Welfare Reform Act 2012. The decision that the collection service comes into operation, with its charges, is entirely the responsibility of the Child Maintenance Service and has nothing whatever to do with any responsibility of the parent with care. In that situation, the imposition of the collection charge on the parent with care is unjustified in principle.

Of course, this is not by any means the first time that I have raised this issue, and I thank the departmental Ministers, who have changed over time, for the courtesy with which they have listened to the same thing being said again and again. That has not been an altogether unproductive process, because concessions have been made that I warmly welcome. The concessions are narrated in the Explanatory Memorandum; I will not weary the Committee by going over them but I agree that they are quite substantial. The most recent one was the reduction from the 7% to 12% charge that was originally thought of to 4% in the case of the parent with care. As I say, I welcome that very much and am glad that it has happened. However, as the Explanatory Memorandum says, this charge remains controversial, and I think it is unjustified in principle.

I did not feel inclined to table a Motion of Regret or a Motion to set aside the regulations, for pretty obvious reasons but primarily because the Government know what our House decided about this matter long ago. Of course, it was overcome by the financial protection of the House of Commons and therefore went through. But as the Explanatory Memorandum says, the passage through the upper House was not entirely easy. That vote is there and, as far as I know, opinion on that point remains.

I submit that the review that is to take place 30 months after the matter comes into force will take particular account of this point, which I am sure will remain controversial until the inquiry is completed, whether or not I am here to promote it—although that may be a matter of opinion. I do not intend to weary your Lordships further but I do wish to indicate the principled objection to this that remains.

[Baroness Howe of Idlicote (CB)]

My Lords, your Lordships may remember that I was one of those who supported the noble and learned Lord, Lord Mackay of Clashfern, in the very important amendment that he has just referred to. I, too, remain concerned that despite the concessions made by the Government in reducing the application fee for a child maintenance calculation to £20 and reducing the parent with care collection charge by 4% on every payment—on which I congratulate them—there is a real danger that the effect of the new charging regime will be that fewer children end up with fair and reliable child maintenance.

In this respect, I share the conclusion of the Secondary Legislation Scrutiny Committee, which found that,

“although the transfer scheme may make savings it may imperfectly achieve the overarching objective of providing financial support for children”.

I want to press the Minister for assurances that the Government will closely monitor what happens to maintenance for children whose CSA cases are closed during the next three years. After all, the department has details of the parents and children so can track what happens to them, case by case, in terms of future maintenance arrangements—or the lack of them.

It will not be enough for the Government to congratulate themselves if fewer parents apply to use the statutory maintenance service, unless they know for certain that the parents concerned have made private arrangements for maintenance that result in regular payments of realistic amounts for the children concerned. Similarly, it will not be enough to be satisfied that fewer parents are asking to use the collection service and have opted for a direct payment arrangement—again, unless they know for certain that those direct payment arrangements are resulting in regular payment of the liabilities that have been calculated by the Child Maintenance Service.

In the past, the department has said it can assume that every direct payment arrangement is paid in full and on time because, if not, parents with care would ask to use the collection service. Even if this assumption were true now, it will certainly not be true in the future, given that the collection charges are expressly intended to deter parents from asking to use the collection service, regardless of the circumstances. I therefore seek full assurances from the Minister that the department will track in detail how children fare as their CSA cases are closed down and charges are brought in.

Marriage (Same Sex Couples) Bill

Lord Mackay of Clashfern Excerpts

Monday 8th July 2013 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, the amendment is a response to the concerns expressed by my noble and learned friend Lord Mackay of Clashfern that Clause 11 as drafted is potentially misleading and would benefit from further clarity. Clause 11(1) provides that marriage, in the law of England and Wales,

“has the same effect in relation to same sex couples as it has in relation to opposite sex couples”.

Under my noble and learned friend’s Amendment 33, which we debated in Committee, he argued that the clause will be clearer if it stated that the provision is subject to the later provisions—namely, the provisions in Schedules 3 and 4. Following the debate, my noble friend Lady Stowell and I considered carefully the points that my noble and learned friend made. They have been discussed with parliamentary counsel, and we have agreed that it would do no harm to provide a signpost to those provisions in Clause 11. That is what the amendment is intended to do, and I believe that it provides the clarity which my noble and learned friend sought. I hope that he is satisfied that we have sought to address his concerns, and I beg to move.

[Lord Mackay of Clashfern]

Yes, I certainly am. This is a correct elucidation of the situation and I am very grateful to the Government for accepting the point that something required to be done.

Amendment 70 agreed.

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[Lord Deben]

My Lords, my mother was always rather diffident about what she referred to as “things down there” and I rather feel that the noble and learned Baroness has attempted to recreate my mother’s views in what she has tried to say here. I find it hard to believe that a definition of a sexual act similar to adultery is one which is precise enough, even for the most learned of Lords. I feel that it does not achieve anything. We have another way of dealing with these things and, if I may say so, a rather more all-embracing and less detailed way of doing so. I am not ashamed to understand that Ministers have discussed this and have come to the conclusion that none of them want to produce anything more precise than has been produced. I have sympathy with them; we all should have.

[Lord Mackay of Clashfern]

My Lords, some provisions which appear fairly late in the Sexual Offences Act would have sufficed as a definition, but there is a point to be made about the distinction between the grounds in same-sex marriage and those in opposite-sex marriage. Adultery is mentioned in particular in relation to unreasonable behaviour in opposite-sex marriage. This is an imbalance between the two, which are supposed to be absolutely the same. It seems an unnecessary difference and the noble and learned Baroness has put her finger on an important point so far as this is concerned.

Marriage (Same Sex Couples) Bill

Lord Mackay of Clashfern Excerpts

Monday 24th June 2013 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I shall not detain the Committee by repeating what I said nine years ago when we debated this issue, and the controversy between those who focused on sexual relations and those who focused on tax and inheritance tax.

I have two points to make. Clause 14 seems to me not to require any amendment because it states:

“The Secretary of State must arrange … for the operation and future of the Civil Partnership Act 2004 in England and Wales to be reviewed, and … for a report on the outcome of the review to be produced and published”.

The clause goes on to say that that,

“does not prevent the review from also dealing with other matters relating to civil partnership”.

One of the other matters relating to civil partnership that has been mentioned by my noble friend Lord Marks, in particular, was referred to by the Joint Committee on Human Rights in paragraph 95 of our report. We said:

“We are not convinced by the Government’s reasons not to extend civil partnerships to opposite sex couples, and we welcome the Government’s announcement that it will review this matter. In doing so, the Government should take into account the potential discrimination that may arise between cohabiting opposite sex couples and civil partners”.

I very much welcome the fact that the Government have made it clear that there will be a review of the operation of the Civil Partnership Act to look at that aspect of the existing discrimination. That point has already been made by several noble Lords and it is important to deal with it. I have always disagreed with the noble Baroness, Lady Deech, as she knows, because I am strongly in favour of cohabitation rights for unmarried opposite-sex couples, and she is firmly opposed to that. That will clearly be a matter that the review will need to take into account to see whether the Government decide to give some protection to so-called common law marriages or not.

I continue to believe in that, as I did nine years ago. I am delighted by the speech of the noble Baroness, Lady Hollis, because she has taught me aspects of social security and welfare that I was not aware of. For all the reasons given, I do not think that one should now fetter Clause 14 by requiring that the review should deal with matters that are truly beyond the scope of the Bill and ought not to be part of the review.

[Lord Mackay of Clashfern]

My Lords, I think that I should indicate that some aspects of this discussion will arise under my Amendment 55. It is important to remember that this Bill is not about gay marriage but same-sex marriage. As I pointed out, and I invited correction—so far I have not been corrected—it includes platonic relations between people of the same sex. Therefore, the idea that sexual relationships are fundamental to it is a mistake. That may or may not matter to this issue, but it matters considerably to the issue that I shall raise under Amendment 55.

[Lord Pearson of Rannoch]

My Lords, I, too, support the amendment. I found the introduction given by the noble Baroness so powerful that I hope—depending on whether the Minister can answer three questions that I want to ask—that I will not have to move my Amendment 46D, which will save the Committee quite a lot of time. It has the same essential aim as the amendment moved by the noble Baroness.

I would have been handicapped in moving my amendment in any case, because I do not have Answers to three Written Questions, which I tabled on 5 June and which should have been answered by last Wednesday, 19 June, at the latest. I hope that the Minister can answer them now. Those Written Questions seek to update the information on the scale and cost of the injustice being done to blood-relative, sibling or family partnerships, sometimes known as “the sisters”. I think that, after this debate, we all know who we are talking about.

Marriage (Same Sex Couples) Bill

Lord Mackay of Clashfern Excerpts

Wednesday 19th June 2013 Lords Chamber

[Baroness Thornton]

The point that I was making at the outset of my remarks—the noble Lord is an expert at getting legislation through this House—is that if it has been accepted by the clerks at both ends of this building, in the Commons and in the Lords, then it is within the scope of the Bill. We can have discussions about Long Titles and their meanings, and indeed we occasionally do, but it seems to me that this is fairly straightforward. It is accepted by the clerks in the Commons and in the Lords. It is therefore before us and is a legitimate thing for us to discuss.

[Lord Mackay of Clashfern]

My Lords, I think that I am right in saying that it is not without precedent for a Long Title to be amended in this House.

[Baroness Thornton]

I thank the noble and learned Lord for that remark. That is indeed the case.

I conclude my remarks by quoting from somebody who got married. He said:

“I got married twice in a week. My first marriage was conducted by someone who had interviewed my wife and me twice, at length, before the wedding; who spent hours (and several emails) exploring the key elements of the connection we wished to celebrate during the ceremony; and offered her guidance when we requested it, based on her knowledge of us as individuals and as a couple”.

Actually, that is exactly what a vicar would do—of course it is. He went on to say:

“My second wedding–to the same woman, I should hasten to add–happened two days later. It was conducted by an official who had met us for the first time minutes before, and was conducted with the polite efficiency of a market research interview. My first wedding was conducted by a Humanist Celebrant; my second by a registrar. Needless to say, when I think of my wedding, and the vows I committed to, the second set I gave that week rarely cross my mind. Yet it is this exchange currently recognised in UK law”.

The question that I put to your Lordships’ House is: which date do you think that couple celebrate when they celebrate their wedding anniversary?

Marriage (Same Sex Couples) Bill

Lord Mackay of Clashfern Excerpts

Wednesday 19th June 2013 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, does it not require a statutory provision in Scotland to make this work? Therefore, it is not a matter for the courts in Scotland; it is a matter for the Secretary of State and Ministers in Scotland to make a statutory order to make the rule part of the statutory law of Scotland.

[Lord Wallace of Tankerness]

As ever, my noble and learned friend expresses it far more concisely than I do.

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Moved by

[Lord Mackay of Clashfern]

33: Clause 11, page 11, line 4, at beginning insert “Subject to the later provisions of this Act,”

[Lord Mackay of Clashfern]

This is an extremely simple point, but possibly of some importance. Clause 11 (1) says:

“In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples”.

This is not correct as it stands, because there are all these provisions later in the schedules; therefore, the accurate enunciation of the law will be subject to the later provisions of this Bill. I beg to move.

[Baroness Stowell of Beeston]

My Lords, I am grateful to my noble and learned friend and, as is clear from today’s list, this amendment was debated as part of a group yesterday. My noble and learned friend gave me notice that he wanted to ask a question following on from the debate. I have been given an answer to his question, which I could read out, but I know I would not understand what it is I am reading, and I know we are keen to make progress. The most sensible course of action is for me to ask Parliamentary Counsel to reflect on the points that my noble and learned friend has made and I will then ensure that I write to him as soon as possible and then put a copy of that letter in the Library.

[Lord Mackay of Clashfern]

My Lords, I am very grateful and am happy to withdraw the amendment on that assurance that Parliamentary Counsel will look at this.

Amendment 33 withdrawn.

Marriage (Same Sex Couples) Bill

Lord Mackay of Clashfern Excerpts

Monday 17th June 2013 Lords Chamber

[Lord Carlile of Berriew]

I thought that might draw a guffaw from the Labour side of the House; they know the dangers of it. Instead of that or any other constructed euphemism, those children should be able to say, “My parents are married”, just as other children can.

[Lord Mackay of Clashfern]

My Lords, I have tabled Amendment 2 in this group. I was led to put this amendment down in an attempt to analyse what the differences are on this Bill. They are quite deep in this House, in the other place and in the country. I thought that something could possibly be done to try to bridge the divide.

The claim made by the proposers of the Bill is that whatever happens, the word “marriage” should be at the forefront of its title. Anything less takes away to some extent from that, although very worthy words have been proposed. When one looks at the debate here and in the other place, and reads the letters we have had—I thank the people who have sent many letters to me; I cannot possibly answer them all in view of my commitment to this—one can see that there is a feeling among many people in this country that same-sex marriage on the one hand and opposite-sex marriage on the other are different, and in a number of ways. They may have much in common and yet have distinctions.

I believe that the attempt to deal with this sort of thing in the descriptions given in the myth-busters document that was published along with the Bill did not really look at the main objection that people have, which is the fact that, over many centuries, marriage has signified a relationship between the opposite sexes. That is the fundamental point which a lot of people have grasped and held on to, in a way that is difficult for them to accommodate in any other context. When the myth busters got going, they used a technique which I remember being described by the great advocate Sir Milner Holland to the effect that if you cannot answer a point, the best thing to do is to set up a cockshy as close to the point as possible, knock it down with a great flurry and then pass on. That, in effect, is what has happened. The myth buster talks about the myth of having no development in marriage over the years. Anyone who has listened to this debate or read the volume to which the noble Lord, Lord Pannick, referred at Second Reading will know that there have been many developments in marriage over the years. The idea that there have been none is not the foundation of the argument at all; rather, it is that the fundamental distinction is between a marriage where the relationship is between people of opposite sexes and what is proposed in this Bill.

What I think might be of use in dealing with that is to recognise within the nomenclature of the Bill that there are two distinct provisions, one relating to same-sex marriage and the other to opposite-sex marriage. I did not put down the opposite-sex marriage amendment today because I saw that these other amendments about traditional marriage and so on had been tabled. There is reference to opposite-sex marriage in Clause 11, alongside same-sex marriage. Ultimately, it does not make any difference to the provisions. However, it does signify that the distinction between the two is understood by the legislature and that the title “marriage” is given to what the proponents of the Bill want, at the same time as recognising that those distinctions exist.

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[Baroness Butler-Sloss]

I am grateful to the noble Lord for being prepared to answer the question that I asked him some considerable time ago. The House needs to recognise the deep division that exists both in this House and in the country. From the quantity of e-mails and letters that I have received, I know that there are a number of people out there who are bitterly upset, bitterly distressed and angry at what has happened with this Bill. I support the noble and learned Lord, Lord Mackay of Clashfern, because the amendment is a compromise—it is an attempt at reconciliation. I do not support the word “union” for the very sensible reasons that have been given. I think that there has to be the word “marriage”—I am, with regret, converted to that now—but I believe that we have to seek a middle way. If we do not, there will be many people out there listening who will be even more upset than people in this House.

[Lord Mackay of Clashfern]

I should like to answer the question that was not put while I was speaking. The provisions in the Bill for same-sex and opposite-sex couples are different, and therefore it is only right that a distinction should be recognised in the Bill for that purpose. That would not make one any less lawful than the other or anything of that sort, but it would distinguish between the provisions that apply to same-sex couples and those that apply to opposite-sex couples. Nobody can deny that these provisions are different in the Bill.

So far as the noble Baroness, Lady Thornton, is concerned, there is no necessity to declare one’s sexuality in relation to same-sex marriage. As I pointed out at Second Reading—and I am sure that the noble Baroness listened carefully—there is no question of needing to be gay to engage in a same-sex marriage. Platonic relationships between people of the same sex would perfectly suit the Bill as it stands.

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[Lord Alli]

My Lords, I rise to speak against Amendment 1. I will also touch on Amendments 2, 9, 33, 34, 46 and 57.

The clear purpose of the Bill is to allow same-sex couples to marry. These amendments seek, in one way or another, to create two classes of marriage, which is exactly what the Bill is avoiding. This occurs in the amendment of the noble Lords, Lord Hylton and Lord Cormack, which replaces “marriage” with “union”; and in the amendment of the noble and learned Lord, Lord Mackay of Clashfern, by adding “marriage (same sex couples)”. Let me say to the noble and learned Lord that he did not do his cause justice by linking the abuse of children to a speech about same-sex marriage. Many of us found that absolutely offensive.

[Lord Mackay of Clashfern]

Let me make it absolutely clear that it had nothing to do with that. It is important—to me anyway—that children are considered. That is what I wanted to be considered. I do not link it to same-sex marriage at all. I never did and I do not think that anything I said could reasonably be so construed.

[Lord Alli]

The noble and learned Lord should not have said it then. The amendment of the noble Lord, Lord Dear, and those of the noble Lords, Lord Edmiston and Lord Mawhinney, and the noble and right reverend Lord, Lord Carey, have opted for the term “traditional marriage”. In fact the noble Lord, Lord Dear, and the noble and right reverend Lord, Lord Carey, want a separate register too.

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[Baroness Stowell of Beeston]

If anybody wished to table an amendment and your Lordships wanted to debate it, I would be happy to consider that debate and respond to it. However, the short answer is that it would not be acceptable because we want only one institution of marriage. That is what we are seeking to achieve. We do not want to distinguish between opposite-sex couples and same-sex couples.

[Lord Mackay of Clashfern]

Before my noble friend moves on from that point, am I not right that different terms are applied to same-sex and opposite-sex marriage at different points in the Bill?

[Baroness Stowell of Beeston]

I think my noble and learned friend referred to this point in an earlier intervention. I will probably cover it a little later, but I think he is referring to Clause 11(1), which states:

“In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples”.

That does not introduce a distinction between two different kinds of marriage.

As I understood the noble Lord, Lord Dear, to say, Amendment 9 in his name is intended to define the marriage of a man and a woman as a traditional marriage, and have that marriage registered as such by the Registrar General in a separate register. Traditional marriage of the type he is putting forward could be formed only by opposite-sex couples. Therefore, this amendment would create an unwelcome distinction in the institution of marriage. As I stated at Second Reading, the introduction of same-sex marriage does not redefine any existing or future marriage of a man and a woman. It is not necessary to protect that status.

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Moved by

[Lord Mackay of Clashfern]

5: Clause 1, page 2, line 3, at end insert—
“(6) No person to whom subsection (7) applies may deprive another person of an office or appointment for holding or having publicly expressed the belief that marriage is, or should be, the exclusive union for life of one man and one woman, nor may such a circumstance applying to a candidate for such an office be taken into account as a factor against appointment.
(7) This subsection applies to those making appointments to any public office as defined in section 50(2) of the Equality Act 2010 or any appointment made by a person who is specified in Schedule 19 to that Act or any person exercising a function that is a function of a public nature for the purposes of the Human Rights Act 1998.
(8) A breach of subsection (6) may confer a cause of action at private or public law.”

[Lord Mackay of Clashfern]

My Lords, we heard earlier a number of instances, which I shall not repeat, in which expressing views in relation to same-sex marriage has led to sanctions against people in various walks of life. The amendment is, in effect, intended to avoid any risk of that sort of thing happening in connection with a public office. I beg to move.

[Lord Alli]

My Lords, I wish to speak to Amendments 5, 7, 8 and 19, government Amendment 53 and Amendment 54. This group of amendments seeks to put into the Bill a series of protections for those who believe that same-sex marriage is wrong, who want to make clear that they believe it is wrong, and who are employed by public authorities or subject to the Equality Act.

Robust provisions in the Bill and that Act already give such protections. Indeed, the Minister made this clear at Second Reading and, if she does not mind, I shall repeat her words. She said:

“It is lawful to express a belief that marriage should be between a man and a woman, and it is lawful to do that whether at work or outside work. That is a belief that is protected under the religion or belief provisions of the Equality Act 2010, and penalising someone because of such a belief would be unlawful discrimination under that Act”.—[Official Report, 4/6/13; col. 1104.]

The Minister and the law cannot have been any clearer. In addition, as promised, the Government have brought forward—unnecessarily in my view—reassuring language in Amendment 53 regarding freedom of speech. As regards Amendment 37, which was tabled by the right reverend Prelate the Bishop of Leicester, and Amendment 56 of the noble Lord, Lord Dear, the Government are, in Amendment 53, giving the noble Lords all that they ask for but in more inclusive language. I hope that the right reverend Prelate, who is not in his place, will accept that and move on.

Given that the law is clear and the Government have strengthened the language on free speech, what are Amendments 37 and 56 for? I have a sneaking suspicion that their impact, like many others tabled throughout the Bill, will not be helpful but raise alarm with the public and insert inflammatory language to fix a mischief that never really existed. I accept that that is probably not intended by those who tabled those amendments. However, I call it the “Section 28” effect. What do I mean by that? The last time that such an impact was felt was after the introduction of Section 28 of the Local Government Act 1988. The inflammatory text damaged the reputations of the party opposite and this House. We have come a long way since then. I ask the Committee and the Government that where there is no mischief that they can identify please do not seek to remedy it, as is the case with these amendments dealing with public authority employees expressing their opinions on marriage. Please be wary of those offering helpful solutions, as some of us have had to live with the terrible consequences of those tactics as a result of Section 28.

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[Baroness Stowell of Beeston]

I think I will take my noble friend’s free legal advice and refer the noble Lord, Lord Anderson, to it. On that basis, I hope that I will be able to convince my noble and learned friend, who is also a very experienced lawyer, to withdraw his amendment.

[Lord Mackay of Clashfern]

My Lords, I have been waiting for some time to intervene to prevent my noble friend having to answer all these questions but the priorities of the House required me to give effect to those who wanted to speak. We have had a very full debate and I thank my noble friend for the very detailed answers she has given on all the issues that have been raised. I am sure we will want to read very carefully what has been said. In the mean time, I am extremely happy to withdraw my amendment.

Amendment 5 withdrawn.