Mesothelioma Bill [HL]

Lord Pannick Excerpts

Wednesday 17th July 2013 Lords Chamber

[Lord Selsdon]

My Lords, I thought that the death sentence was cancelled many years ago, but I almost seem to have heard my own death sentence now. I worked with asbestos for many years. I picked up Cape blue. Every now and then, when you get a cough in your throat, you think, “Oh, have I caught this disease”—I cannot even pronounce it—“Is there something wrong with me?”. That was during a period in industry. I came out of the Navy, where of course we had masses of asbestos protecting ships, in repairs and elsewhere. I worked with it. It was to some extent a mystical product because it was the only fire protection kit available.

I then went into industry because of the new developments. These were the new plastics, which were suddenly to replace the whole of the construction industry. I learnt about polyurethane, formaldehyde, polytetrafluoroethylene, poly this, poly that. I would work on the shop floor without a mask, because when you are young you do not have a mask, and when sent out to do roofing materials, lay asbestos cement, cutting and so on, of course we did not wear heavy boots with protective caps; one wanted to be flexible. We did not have safety ladders; we slid down the outside. When I was working on the Blyth Colliery project as a young rep up in the north, I learnt about mining diseases—silicosis and all those things that I could not pronounce.

However, that was another period of time. Now, quite suddenly—and, I think, correctly; I have been impressed by what I have heard today—out of this something has been identified. I have tremendous regard for what the noble Lord, Lord Alton, does, but it is the right thing in the wrong place. This Bill is the right one to go through, and it could have gone through years ago. As I tried to look at the figures, I suddenly realised that I am even more grateful to your Lordships’ House because 50 years ago, when I first came here, I would not have left the asbestos and the plastics world without having to be in your Lordships’ House. I changed my job and went into building and industrial research and I have learnt, over many years, an enormous amount from noble Lords and have great respect for them.

I think that my noble friend Lord Freud and his colleagues have got it right. The question that I ask is: why was this not done a long, long time ago? What is being done about all those other historic diseases that may have come from chemicals of one sort or another? As we have new research developments, those who develop a particular product never think of the future. They do not understand what smells and other things can do. I never wore a mask and now I feel that I am starting to cough a bit, but I have learnt a trick. In your Lordships’ House, when you stand up to speak, many people need a glass of water or need to clear their throat. That may lead them to believe that they have one of these industrial diseases. However, it is strange but there is a little trick that you can do: wiggle your toes. That gets the circulation going and stops you having a dry throat and having to look to the Doorkeepers to ask for water.

I say to the noble Lord, Lord Alton, that I will help in any way that I can to raise money for a research fund and others. I think that the way to approach it is to look at those who may have had great success in property development or things of this sort. Located in their buildings—probably in almost every building in London—are likely to be unacceptable levels of asbestos. However, the levels are not unacceptable until you find it. It may be behind every board. We used to make a product called asbestolux, which was a fire-proofed, simple board used in all homes instead of plywood, which was too expensive at that particular time.

Throughout the land, from our colonies, asbestos, such as the Cape blue asbestos, is virtually everywhere. The danger is, once you try to move it and destroy it, you create dust and some of the research has not yet managed to identify how you screen it. Perhaps your Lordships have been in a block where someone is redeveloping a flat and before you know it, in comes an enormous team of people with large fans that suck and circulate. You wonder whether that is taking out some of the micro ingredients that come with asbestos.

Obviously, you will find that in the building trade, people do not necessarily follow what are called “building regs”. Therefore, many accidents have happened with saws and so on that could have been solved. Therefore, to the noble Lord, Lord Alton, and to others, I say: let us just get on with this Bill and get it through. It can do a lot of good as it stands. Do not hold it up and I will see what we might be able to do to encourage some support anywhere else. I am grateful to your Lordships for listening to me and I feel that perhaps I will not fade away quite as early as I thought.

[Lord Pannick]

My Lords, I have not wiggled my toes but I have added my name to the amendment of the noble Lord, Lord Alton. In his compelling speech, the noble Lord referred to the letter that the Minister sent on Monday. In it the Minister expressed his support for increased research, but he added that,

“unfortunately, the mechanism proposed is just not viable”.

The letter does not provide what we lawyers call further and better particulars as to why the Minister believes that the proposal is not viable; nor did the Minister throw any light whatever on this matter in Grand Committee. Indeed, in his opening remarks this afternoon the Minister very helpfully referred to a number of other matters, but he did not give any explanation in relation to this issue.

In Grand Committee, the Minister focused on a concern that research funding was the responsibility of the Department of Health, while this was a DWP-sponsored Bill. I hope that we will not hear that argument again today. As a matter of law, of course the Government are indivisible, and, as a matter of efficiency, government departments talk to each other. I am encouraged to see the noble Earl, Lord Howe, in his place today.

What other reasons, therefore, could there possibly be for the Minister to suggest that the proposal of the noble Lord, Lord Alton, is not viable? The Government must be satisfied that Clause 13 of their own Bill is viable in providing a levy. These amendments simply provide for a research supplement on this levy, which would be clear as to those who are obliged to pay, the amount and the purpose. Nor can it be that the Minister thinks that these amendments do not reach their target. As the noble Lord, Lord Alton, mentioned, the amendments have been drafted by Daniel Greenberg, a former parliamentary counsel of distinction, who is editor of the authoritative work Craies on Legislation.

Nor could it sensibly be suggested by the Minister that the amendments are not legally viable because they might be the subject of some legal challenge under the Human Rights Act or the European Convention on Human Rights. The Bill contains a levy and there are many other examples of statutory levies introduced by Parliament to advance good causes. The noble Lord, Lord Alton, has given a number of examples; I mentioned in Grand Committee the levy on bookmakers under the Betting, Gaming and Lotteries Act 1963 for the purpose of improving horse racing in this country. If, as Ministers must believe, the levy in Clause 13 is legally viable and those other levies are legally viable, I cannot understand why the amended levy of the noble Lord, Lord Alton, is not equally viable. Any legal action to challenge an amended clause—amended in the terms of the noble Lord, Lord Alton—would be a legal action, to coin a phrase, that is not legally viable.

There is a vital need for research and research funding to combat this awful disease. To include these amendments in the legislation would encourage research. I do not accept for a moment the concern expressed by the noble Lord, Lord Selsdon, that for us to do our job and improve the Bill would somehow hold it up. There is ample time for debate on such matters if—I hope it will not be the case—the other place disagrees with us. When it comes to a choice between liability on the insurers and the Minister’s concerns about viability, I am with the noble Lord, Lord Alton.

[Lord Howarth of Newport]

My Lords, I, like all noble Lords, want to see more research into mesothelioma, above all into ways to prevent people developing this terrible and lethal disease. Noble Lords may be aware that quite recently Russia, leading a group of another six countries —Kazakhstan, Ukraine, Kyrgyzstan, Zimbabwe, India and Vietnam—blocked a move to have white asbestos listed under the UN convention that requires member countries to decide whether or not they should risk importing that substance. I fear that asbestos-related diseases, including mesothelioma, will long remain with us; we will need research for the long term.

I am entirely sympathetic to the purposes of the noble Lord, Lord Alton, his co-signatories to the amendment and the larger number of co-signatories to the letter that they were kind enough to send to us. I congratulate the noble Lord on his dedication in this matter. However, I have some difficulties in accepting the precise proposition of the noble Lord. I have no problem about hypothecating part of the levy for the purpose of research; I accept that precedents are there in the Gambling Act, the Betting, Gaming and Lotteries Act and other measures. I would not presume to take issue with the noble Lord, Lord Pannick, on the question of viability as he has just expounded it. In Committee, I heard noble Lords who are eminent in the fields of medicine and academic research support the case made by the noble Lord, Lord Alton, and I applaud them for that.

However, there is a problem. The insurance industry has told us that it is a willing funder on the basis that the Government will fund the major part of the costs of research. The employer’s liability insurers see themselves as very much the junior partner in that partnership with the state. It was probably not the case with the gambling legislation and the other measures that have been referred to that the Government were expected to more than match the funding that the relevant industry should supply.

These amendments omit to state the implication for government funding of what they would impose on the insurance industry. I wonder why that is so. I can imagine that there are good reasons why the amendments do not require the state to commit itself to fund mesothelioma research specifically.

At one time I was Minister for Higher Education and Science; that experience confirmed me in my very strong belief in the arm’s-length system. If we were to abandon that, it would be only a few steps to the relationship between Stalin and Lysenko. The arm’s-length principle is essential for the maintenance of academic freedom and for research quality. Of course, it is legitimate for the Government to take a strategic view and, indeed, for the Department of Health and the National Institute of Health Research to set priorities and make broad allocations. As the noble Lord, Lord Walton of Detchant, told us, when he was a member of the Medical Research Council, the council identified broad priority areas, although it did not think it appropriate to identify individual diseases for which it was determined to fund research. That was because the criterion for making specific awards must be, above all, that of quality. Peer review, not Parliament or the Government, should determine who receives publicly provided funding for research. It follows from that that funding from the state cannot be guaranteed in perpetuity in any particular field of research.

Ample funding has already been provided by the state for which mesothelioma researchers are eligible to bid. The employer’s liability insurers have already provided funds for research and have indicated that they are willing to continue to do so. Therefore, the problem of finding money for research into mesothelioma is not a lack of money on the part of the state or a lack of money forthcoming from the insurers. The problem must be that there has been a lack of high-quality proposals for research in this field. There may have been some quite good proposals; I think that some 80% of bids to the National Institute of Health Research are unsuccessful. Such is the competition for funding from that source that only the very best receive it, so it is not only people who care very strongly about mesothelioma who are disappointed about the lack of funding in any particular field.

Are we to legislate simply to compel the employer’s liability insurers to do what they are already doing and have stated that they are willing to do? If, for good reason, we are not specifying an obligation on the Government, is the Minister none the less proposing to legislate thorough these amendments to place a moral, if not a legal, obligation on the state to fund mesothelioma uniquely, notwithstanding how weak academically particular proposals might be, and notwithstanding the needs that there are for research funding in other fields?

I am left feeling that these amendments, although I completely sympathise with their intention, do not yet articulate a satisfactory position. I think that in a moment the Minister will report to us on his conversations with the noble Earl, Lord Howe, who it is very good to see here listening to this debate, but I suspect that the noble Lord, Lord Alton, ought primarily to be addressing himself to the scientists rather than to the Government.

Marriage (Same Sex Couples) Bill

Lord Pannick Excerpts

Wednesday 10th July 2013 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, some of the amendments moved in the course of our debates have been eccentric. However, respectfully, I should say that Amendment 85 is among the most eccentric, not least because of its very distinguished authors—a former Cabinet Secretary, a Lord Chancellor and my noble friend Lady Williams of Crosby, whose deeply held religious convictions as a Catholic I fully respect.

Leaving aside its extraordinary length and detail, Amendment 85 is moved in the face of the overwhelming and decisive decisions made by the House on Monday to reject similar attempts to classify and separate opposite-sex and same-sex marriages. In paragraph (a), the amendment declares that,

“there shall no difference or distinction be made between lawful marriage of same sex couples and lawful marriage between a man and a woman, save as provided for in this Act”.

If the amendment stopped there, it would be completely unobjectionable although also completely unnecessary, but it does not stop there. It continues by making an exception,

“as required to give effect to any difference or distinction which is made necessary by reason of physiological or biological differences of gender or consequences thereof”.

It is probably my fault, but I do not understand what that is meant to mean. Most men and most women are biologically different and sexual intercourse between a man and woman, a man and a man and a woman and a woman may reflect those differences of biology and anatomy, but how do those differences require future or existing law regulating or relating to marriage to treat traditional, conjugal and new consensual marriage differently? We are beyond the watershed for children, and I shall be grateful for an explanation of what this has to do with the law rather than the Kama Sutra.

Paragraph (b) seeks to separate the two forms of marriage using about 100 words instead of a bracket. We have already firmly rejected that attempt; I respectfully ask what the point is of rehearsing the arguments again and again.

Paragraph (c) is unnecessary because it goes, or should go, without saying, that existing legislation will continue in effect in relation to opposite-sex marriages except as amended by the Bill. As to paragraph (d), given the vague obscurity of the earlier parts of the amendment, its meaning and effect would puzzle Henry VIII and his Lord Chancellor as well as the current holder of that high office. If the noble Lord tests the opinion of the House, I hope that the amendment will be rejected.

[Lord Pannick]

My Lords, I agree with the noble Lord, Lord Lester of Herne Hill, though possibly not in relation to the Kama Sutra. The point being made by the noble Lord, Lord Armstrong of Ilminster, as I understood it, was that provision should be made in this Bill to confer power to address problems that may arise in consequence of this Bill when enacted. Of course, Clause 15(2) already does that. It says:

“The Secretary of State or Lord Chancellor may, by order, make such provision as the Secretary of State or Lord Chancellor considers appropriate in consequence of this Act”.

For the avoidance of doubt, Clause 15(3) states that any such provision that may be made,

“includes provision amending UK legislation”.

That would seem to me amply to address any concerns.

[Lord Deben]

Perhaps I may say just one thing because I was attacked—not attacked, but charmingly referred to—by the noble Baroness, who said that I was being a bit jokey about adultery. I really was not being jokey about adultery. I think that I am coming back to my mother again on this. What is being proposed here is another version of the amendments that we have had all along. This one says: “We cannot find anything at the moment, but we might find something in the future. So in case we do find something in the future, we will put something in at the moment—and by the way, that means that we can point to the thing that we put in at the moment, which shows that there is a difference, and that is what we meant in the first place”. I am not a lawyer but, if I may dare say to the two noble lawyers who went before me, I do not need to refer to the law. All I can say is that this is one of the most ingenious attempts that we have had so far. I do not think that they can do it again, but it is another go. Even if it has been charmingly presented by the noble Lord with such elegance and beautiful English, for which we all honour him, the fact is that it will not wash. It is another go. Let us not take it, and if it is voted on, let us increase the majority to more than the 200 that we had last time.

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[Baroness Barker]

I have listened to and taken parts in these debates ever since the noble Baroness, Lady O’Cathain, first raised them during her then opposition to civil partnership. There remains one point that is fundamental to this discussion and which has never been answered properly by those people who have advanced them, such as the noble Baroness, Lady Deech.

The rights and responsibilities of adults who voluntarily enter into relationships with other people are wholly different from the rights and responsibilities of family members—people born into the same family. If we were to treat them in the same way, as is achieved in the noble Baroness’s amendment, it is wholly possible that a member of a family could find themselves under an obligation to a family member to enter into a relationship, in particular to preserve the right of the family to property. That sets up some potentially damaging and ugly relationships within families, which is a consequence of what she proposes which she would really not like to see come to pass.

To answer the noble Lord, Lord Cormack, I do not think that that potential should enter into law and I do not think that it should form even part of any review. Therefore, I wish today to make that statement as strongly as I possibly can; I shall vote against this amendment and do so in the knowledge that there are people who will support me in supporting carers in a whole variety of different ways, which are wholly appropriate and far better than this.

[Lord Pannick]

My Lords, I find this a much more difficult issue than all noble Lords who have spoken so far. There are very strong arguments on both sides of the case and I very much hope that noble Lords on each side would recognise that.

My reason for speaking is that I spoke in Committee in favour of this amendment, and I am in a very unusual position in that the debates that we had in Committee on this issue have actually caused me to change my mind. The reason I have changed my mind is because I think that there is a very real injustice done to the people for whom the noble Baroness, Lady Deech, has spoken, but I am not persuaded that this is an appropriate vehicle by which this injustice should be addressed. The noble and learned Lord, Lord Lloyd of Berwick, says, sotto voce, “Why not”—and I will tell him. The purpose of the review is very simple; it is to assess whether the existing civil partnership regime, which is part of the law of the land, continues to serve a useful purpose now that we will have same-sex marriage. That is a very narrow purpose, and I do not think that it is appropriate that a review should consider whether a civil partnership should be used as a means to address a very real injustice which, if it is to be addressed, should be addressed through the taxation system and other means. That is why I have changed my mind and why I much regret that I cannot support the noble Baroness, Lady Deech.

[Baroness Thornton]

My Lords, this amendment would seek to extend the civil partnership review to include unpaid carers and family members who live together. I am just going to read the amendment, because of the discussion that took place between my noble friend Lady Kennedy and the right reverend Prelate. It refers to,

“unpaid carers and those they care for, and … family members who share a house … provided that they have cohabitated for 5 years or more and are over the age of eighteen”.

If that does not mean fathers, daughters, sisters and brothers, I am not quite sure what it means. So I think that my noble friend had a point in her indignation about that matter.

The problem before the House has been very adequately explained by various noble Lords. This is an issue about legitimate support for carers and the protection of people, sisters and brothers, growing old together and sharing a home, who require a new regime that protects their interests in their home and all the other things. That is to do with carers, tax and inheritance, and it is to do with compassion and the other issues that noble Lords have mentioned. But it is not appropriate to use those words—in terms of pulling up ladders, and so on—in this Bill.

This review is about civil partnerships, as explained by the noble Lord, Lord Pannick. I am not going to read out my note, because he said it much more eloquently than I could.

Marriage (Same Sex Couples) Bill

Lord Pannick Excerpts

Wednesday 10th July 2013 Lords Chamber

[Baroness Cumberlege]

My Lords, I support the amendment of the right reverend Prelate the Bishop of Leicester. We know that parents go to great lengths to get their children into faith schools, which are hugely popular. Some 30% of schools are faith schools. Parents value the ethos, discipline and character of the schools, which teach the importance of marriage for family life and for bringing up children. Of course, that is nothing new. It is built into our existing law. As the right reverend Prelate said, Section 403(1A) of the Education Act 1996 requires the Secretary of State to issue guidance to ensure that pupils,

“learn the nature of marriage and its importance for family life and the bringing up of children”.

We know that in future the word “marriage” in Section 403 will mean both opposite-sex and same-sex marriage, so when the Bill is enacted it will change the meaning of “marriage”.

As I understand it, the amendment is designed to tackle a problem that will arise by reason of the wording in Section 403(1A) that requires more than ensuring that children learn about the law of the land. The section puts an obligation on the Secretary of State to ensure that children, I repeat,

“learn the nature of marriage and its importance for family life and the bringing up of children”.

Those words are of concern because they entail more than the teaching of fact or law. They require schools to teach that marriage is valuable and beneficial for family life and the bringing up of children. As the right reverend Prelate said, it could be in conflict with the Secretary of State’s guidance.

In this amendment, we want to ensure that schools with a religious character are able to continue ensuring that pupils learn about the importance of marriage for family life, and that they are not prevented from doing so by the redefinition of marriage in Section 403 caused by the Bill. It is a modest amendment that will alleviate the concerns of many schools about the conflict that could arise, which was outlined by the right reverend Prelate.

I am sure that noble Lords will say that it is simply not needed. That argument has been used against a lot of the amendments that have been put forward. However, I was reminded of Voltaire, who said:

“Define your terms, you will permit me again to say, or we shall never understand one another”.

It is important that we understand each other, especially as legislators, and are clear about what we consider to be the law of the land.

The Government last Monday saw no harm in redefining some of their terms. Previously, we were told that it was not necessary to clarify parts of the Bill but, in Committee, the Government, generously perhaps, put forward amendments to further clarify the wording around the Public Order Act and the definition of “compel”—amendments which we consider have really improved the Bill. Our aim is not to allow schools with a religious character to avoid teaching the law of the land; as the Minister rightly pointed out,

“such schools do already teach about topics that may be considered sensitive, such as divorce, and they do so without issue”.—[Official Report, 24/6/13; col. 567.]

But we think that all schools, including schools with a religious character, should teach the law, and this amendment has been very carefully drafted to ensure that schools will not be enabled to ignore any guidance requiring them to do so. It is not designed to prevent schools educating them about the law. On the contrary, we want schools to teach the law, to ensure that it is taught with clarity, is even-handed and, as they understand it, within the character and ethos of faith schools, without conflicting with the Secretary of State’s guidance.

[Lord Pannick]

My Lords, I understand the concerns that have moved the right reverend Prelate and the noble Baroness, Lady Cumberlege, but I think that the amendment is inappropriate, for these reasons. Section 403, which the amendment addresses, is concerned with sex education. There are many contexts in which sex education raises religious issues, including homosexuality, contraception, and no doubt many more. I cannot understand why there is a need for a specific statutory provision in Section 403 to address the impact of same-sex marriage on sex education when there is no need for a statutory provision to address other issues that may have a religious dimension.

The right reverend Prelate referred to Section 403(1A), which, as the noble Baroness pointed out, says that the guidance to be issued by the Secretary of State must put sex education in the context of marriage and family life. But there is a very good reason why the guidance requires sex education to be put in the context of family life and marriage. That is because sex education should not be taught simply on the basis of physicality; it should be presented, as I am sure that all noble Lords would agree, in the context of responsibility and the development of relationships. Surely, if and when sex education addresses homosexuality, it should equally be taught in that same context of responsibility and other relationships and, as a result of this Bill, that will include same-sex marriage. For this amendment to be adopted would, I am afraid, run counter to everything else that we are seeking to achieve in this Bill.

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[Lord Singh of Wimbledon]

I rise briefly to say that, in the next amendment, I will produce some evidence-based research that very much supports the concerns of the noble Earl, Lord Listowel.

[Lord Pannick]

I agree entirely with everything that has been said by the noble Lord, Lord Alli. But the concern of the noble Earl, Lord Listowel, is about the implications of the measures in this Bill. I can see no reason whatever for thinking that it could be any less favourable to the interests of a child to be brought up by parents in a same-sex marriage than to those of a child being brought up by parents in a civil partnership. I would have thought that the stability and status of a marriage would be as beneficial to the child as it will be to the partners of same-sex marriage.

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[Lord Carlile of Berriew]

My Lords, listening to the little exchange that has taken place in the past few minutes between two distinguished noble friends who are members of the Conservative Party led me to think about whether an alliance between UKIP and the Tory party—which, of course, has been mooted—might be regarded as a same-sex marriage.

Leaving aside that little bit of private grief in the Conservative Party, I agree with every word that has been uttered by my noble friend Lord Fowler and will not repeat it because I could not say it as well as he. Like many people in this country, I have great admiration for the noble Lord, Lord Singh. We hear him on the public radio from time to time, and he utters very wise words—mostly. However, I say to the noble Lord that, regrettably, on this occasion he has let us, and himself, down. I invite him to reflect upon whether the proposed amendment is a proper use of the debating procedure of your Lordships’ House; what he said sounded to me awfully like a Second Reading speech.

In order to ascertain whether that would be a justified comment, I spent some little time looking at the noble Lord’s biography and bibliography to see what other issues that he has suggested would be suitable for a referendum because they have an ethical or moral component. There are none: this is special pleading. I urge your Lordships to reject the amendment on that simple basis.

[Lord Pannick]

My Lords, perhaps I may remind noble Lords that the Constitution Committee, of which I was then a member, recently produced a report on referendums. We said that there are significant drawbacks to the use of referendums, essentially for the reasons given by the noble Lord, Lord Fowler. Our advice to the House was that they should be confined to fundamental constitutional issues. This is not a fundamental constitutional issue. I say to the noble Lord, Lord Waddington, that helping out the Prime Minister, if he needs help to get off any hook, is not a fundamental constitutional issue.

[Lord Alli]

My Lords, I, too, do not want to help the Prime Minister, but let me say that I am most grateful for the Prime Minister’s help. He has shown huge personal courage in bringing forward this Bill, for which many of us would want to pay tribute to him.

Perhaps I may say this to the noble Lord, Lord Singh: a December 2012 MORI poll showed that 73% of people agree that gay people should be allowed to marry. On 5 February, at Second Reading in the House of Commons, it was 400 to 175 on a free vote. On 21 May, at Third Reading in the House of Commons, it was 366 to 161 on a free vote. On 4 June, at Second Reading in the House of Lords, it was 390 to 148 on a free vote. On 8 July, the first day of the Report stage in the House of Lords, the votes were 344 to 119 on Amendment 1, followed by votes of 278 to 103, 163 to 32 and 84 to 15. The noble Lord seeks to suggest that this is undemocratic and unconstitutional, but in doing so I fear that he is treading on very dangerous ground. He risks insulting the integrity of both Houses of this Parliament.

Marriage (Same Sex Couples) Bill

Lord Pannick Excerpts

Monday 8th July 2013 Lords Chamber

[Lord Dear]

My Lords, first, I thank the Members of your Lordships' House who have spoken in favour of the amendment. I must say that I am a little confused by the statements made by the Minister.

I beg your Lordships’ indulgence to read very quickly what the amendment sets out. It states that,

“nothing under or in consequence of this Act shall … affect the right of teachers to express their personal views about marriage … or … mean that any teacher will be under any obligation to endorse a particular view of marriage”.

That sets out exactly what the Minister said in Committee. She also said:

“Teachers are and will continue to be free to express their personal views”.—[Official Report, 19/6/13; col. 351.]

That is fine, but 40,000 of them—more than 10% in the ComRes poll, when extrapolated, means 40,000 teachers in this country—have said that they would probably refuse to teach children about same-sex marriage, and 56% have said that they fear that this will lead to teachers being disciplined if they find themselves in that position.

I also beg the indulgence of the House in drawing attention to the fact that I have quoted extensively from John Bowers QC, leading counsel. I repeat:

“If the Marriage Bill becomes law, schools could lawfully discipline a teacher who refused to teach materials endorsing same sex marriage”.

That is from leading counsel eminent in this field. His view has not been challenged by either of the noble Lords, Lord Lester of Herne Hill or Lord Pannick, so I take it—

[Lord Pannick]

I made a speech in Committee. I have not repeated the points I made in Committee because I did not think that it would help the House.

[Lord Dear]

I am grateful for that.

The fact is that there is a division of opinion between leading counsel—the noble Lord, Lord Pannick, on the one hand and John Bowers QC on the other.

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[Lord Alli]

The noble and learned Baroness will recall that I also spoke in Committee on her amendment. The issue we wrestled with then is the same that we are wrestling with now, which was that definition of adultery and the sexual act that defines it. I see that the noble and learned Baroness has said that a judge could interpret that but in every instance bar that of a lesbian relationship, we could find an accommodation. The issue of how you define adultery between two lesbians is something we have tackled over and over again from the Civil Partnership Act onwards. I do not believe that the noble and learned Baroness’s amendment deals with that. I have huge sympathy regarding the issue that she raises but I do not feel that the amendment is drawn in a way which will make it clear. Given that there are grounds of unreasonable behaviour, it is probably unnecessary.

[Lord Pannick]

My Lords, I, too, cannot support this amendment. Under existing law, if a married man has a sexual relationship with another man his wife cannot sue for divorce on the ground of adultery. She can sue for divorce on the ground of unreasonable behaviour, based on sexual infidelity. As I understand it, the Bill adopts the same approach in relation to same-sex marriage and sexual infidelity with another same-sex partner. This seems to be consistent with existing legal principle. It involves no detriment whatever to the other party to the marriage, who can obtain a divorce on the basis of unreasonable behaviour. I, too, am concerned about the uncertainty inherent in the noble and learned Baroness’s amendment. What is,

“a sexual act … similar to adultery”,

in the case of lesbians?

[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.

Marriage (Same Sex Couples) Bill

Lord Pannick Excerpts

Monday 24th June 2013 Lords Chamber

[Lord Cormack]

Clearly, that was meant to be an intervention so obviously I will respond to the noble Lord. I said at Second Reading that I accepted that civil partnerships were now a permanent part of our social fabric. Indeed, I went much further. I will not repeat what I said then as the noble Lord was in his place and heard it. I made similar comments during the debates in Committee last week. However, that does not in any way invalidate the basic justice of the case enunciated by the noble Baroness, Lady Deech, and supported by the noble and learned Lord, Lord Lloyd of Berwick. I support it too and I say to the noble Lord, Lord Alli, that surely he and I are concerned with justice and equity for everybody. Although I have my reservations about the word “marriage” being applied right across the board, I have tried to make it plain in my brief interventions in Committee that I accept that he and those who share his beliefs thoroughly deserve a better recognition than they have had in the past—better even than in civil partnerships. In saying that, however, I can also say, and I do, in supporting the noble Baroness, Lady Deech, that there are others in our society—siblings and carers have been named, but there are others—who deserve, if they have made a life-long commitment to each other, as have those sisters and as has the young man with the gentleman who was so severely injured in a hunting accident, a recognition of the personal sacrifice and commitment that they have made which is at least equal to the recognition that we have given to civil partnerships. I hope very much that my noble and learned friend Lord Wallace will be able to encourage us today when he comes to respond to this debate. I repeat my strong support for the amendment so eloquently moved by the noble Baroness, Lady Deech.

[Lord Pannick]

My Lords, my understanding is that this amendment does not require the House to come to any view whatever on the merits or otherwise of the proposal. What it does is to recognise that there is to be a review of civil partnerships and it proposes that during the course of that review this topic should be included in the matters to be discussed, to be addressed and possibly to be the subject of future legislation.

The noble Baroness, Lady Deech, mentioned the case of Miss Burden and Miss Burden against the United Kingdom in 2008. I regret as much as the noble Baroness that I was unable to persuade the European Court of Human Rights to find that the less favourable treatment of these two ladies—it was severely less favourable treatment—was arbitrary discrimination contrary to the convention. It does seem to me as to many other noble Lords that since there is to be a review this topic should be covered.

My only quarrel with the speech of the noble Baroness, Lady Deech, is in her recitation of Irving Berlin’s song as support. She may recall that the lyric ends:

“And Lord help the sister, who comes between me and my man”,

which is perhaps not wholly appropriate in this context.

[The Lord Bishop of Ripon and Leeds]

My Lords, I too want to support the noble Baroness, Lady Deech, on this amendment and to thank her and the noble Baroness, Lady O’Cathain, for their persistence in pressing the unfairness of the present law with regard to both carers and also family members.

The noble Lord, Lord Pannick, made the point that the amendment does not require any particular answer to the questions but simply tries to ensure that they will get raised. The point of having a review of the Civil Partnership Act 2004 is that, following the passage of this Bill, the circumstances of civil partnerships will be different. We do not yet know in what way they will be different, but they will be different because many people who would otherwise have entered into civil partnerships will enter into marriages. That seems to me to be an ideal point at which to consider whether civil partnerships should be extended to carers and other family members. If that is not the point at which we ought to do it, perhaps the noble and learned Lord, Lord Wallace, can say what is the point at which we can tackle the unfairness which everyone seems to admit. We have had example after example of the unfairness of the present law. When are we going to be allowed to tackle that?

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[Baroness O'Loan]

My Lords, I wish to address a point made by the noble Lord, Lord Lester. In the debate in the House of Commons on 20 May, the Government committed to consider this issue further in the Lords. As a consequence of that, and of all the evidence that was received, the Joint Committee stated:

“In particular, we encourage the Government to consider whether specific protections are required for faith schools and for individual teachers who hold a religious belief about same sex marriage”.

I do not think the situation is quite as clear as might have been suggested.

[Lord Pannick]

My Lords, I, too, think that this amendment is unnecessary and inappropriate. The amendment is concerned with the guidance under Section 403 of the Education Act. That guidance is concerned solely with sex education. There are three consequences of this.

First, the reference to marriage and family life in Section 403, which has excited the concern in this amendment, is designed simply to ensure that when pupils learn about sexual relationships, they should learn about sex in the context of marriage, families and commitment; in other words, they should not learn about sex as a mere physical act. In my view, it would be most unfortunate that if and when pupils learn in sex education classes—as they do—about gay sex, such discussion is not also in the context of relationships, commitment and the developments that this Bill will introduce. That is the first point.

The second point is that Section 403, which deals with guidance, already states that when sex education is provided, children must be,

“protected from teaching and materials which are inappropriate having regard to the age and the religious and cultural background of the pupils concerned”—

and rightly so. So there is already considerable protection.

The third point is the point made by the noble Lord, Lord Lester of Herne Hill, with which I entirely agree. It is a point that we have returned to over and again in the debates in Committee, but it is nevertheless true: there is nothing in this Bill that allows—far less requires—a teacher to promote same-sex marriage, and even less so in the context that we are now discussing, Section 403 of the Education Act, which is concerned only with sex education.

[Lord Eden of Winton]

My Lords, I want to follow up what the noble Lord, Lord Pannick, has just said and to add just one point, using the amendment so very ably moved and promoted by those who have their names to it as an opportunity to do so. I will be very brief.

The noble Lord, Lord Pannick, is obviously correct in what he says about the context in which the guidance would be given to the class; that is, health education in one form or another. Great emphasis has been given throughout our debates to the need to protect teachers. I accept that. That is correct and right for those teachers who feel strongly on these issues or have particular points of view which they find make it difficult for them to participate in a wider discussion or wider introduction of this subject.

My concern is not so much with teachers as with parents. So many parents—I am sure that the noble Baroness and others will have experienced this—are offended that sex education is taught to their children. I recognise that this has to happen, unfortunately. There was a time when this was left entirely to the parents, but that is no longer the case because so many parents do not in fact teach these matters to their children and do not bring up their children to understand the rights and wrongs on issues of this kind. So it has gone into the classroom and teachers are now required to teach this subject as part of the curriculum.

As I understand it, the position of parents is defended in this legislation in that if a parent is likely to be offended by anything of this kind being taught in a classroom, the parent can exercise the right to withdraw a child. I find that very difficult to accept. I acknowledge that it is done with the best of intentions, but I do not think it is very helpful to the child. Very often a child who is singled out from the rest of her peers in the classroom is made to feel different in some way or another. This is not very helpful to that child in the relationship with the rest of the children in the class. I hope, therefore, that when my noble friend comes to reply to this debate she will be able to take into account not just the position of teachers and those whose views will have been protected as a result of the amendments that are being proposed but the position of parents who might equally be offended by these matters.

Marriage (Same Sex Couples) Bill

Lord Pannick Excerpts

Wednesday 19th June 2013 Lords Chamber

[Baroness Berridge]

I will respond to the noble Lord, Lord Alli. I am not seeking a cast-iron guarantee. I have previously been a lawyer, so I know how people can look at us, but there seems to be a case for some sensible, straightforward language in the Bill that could avoid—as we have put it—a situation in which small charities have to take discrimination claims to deal with that kind of behaviour, and it would provide that reassurance.

[Lord Pannick]

My Lords, I entirely understand the concerns that have been expressed by the noble Baronesses, Lady Berridge and Lady O’Loan, and others. My view is that those concerns are unwarranted. As I understand it, three issues have been raised. The first is the public sector equality duty, under Section 149 of the Equality Act, which requires:

“A public authority must, in the exercise of its functions, have due regard”,

to equality considerations. “Due regard” must require primary consideration to be given to other legislation—in particular, the legislation before us. I regard it as unlikely in the extreme that this public sector equality duty could impose a duty or even confer a power on a public authority to penalise a person or a body for declining to be involved in same-sex marriage, when the whole point of this legislation, and a fundamental feature of it, is that a person should not be compelled to do so for religious reasons. It would be extraordinary for a court to rely on a public sector equality duty.

The second concern was about Clause 2(6) and the exclusion of public functions, and that this does not cover the decision whether to opt in. There is a good reason for that. In very simple terms, marrying a person may well be a public function, as Clause 2(6) recognises. However, a decision to opt in or not is not the exercise of a public function. It is not, of itself, a service to the public but a decision whether to rely upon and maintain a statutory immunity given by this legislation. Any argument to the contrary would conflict with the content and purposes of this legislation, and so is extremely unlikely to be accepted.

The third concern that we are dealing with in this group of amendments is the suggestion that the legislation should clarify the meaning of “compulsion” in Clause 2(1). For a public authority to impose a detriment on a person for refusing to undertake an opt-in activity or to refrain from undertaking an opt-out activity would plainly amount to compulsion in this context. The reason for that is very simple: it would impose legal pressure on that person when one of the central purposes of this legislation is to protect religious freedom.

I entirely understand—I hope courteously—noble Lords’ concerns. The noble Lord, Lord Deben, rightly reminds us that we should be courteous about this, but let us be not just courteous but realistic about the risks and concerns that have been expressed.

[Lord Cormack]

My Lords, I courteously recognise the forensic skills and deep legal knowledge of the noble Lord, Lord Pannick, and of my noble friend Lord Lester. However, my noble friend Lord Deben mentioned times in the past when assurances were given, in good faith, from Dispatch Boxes in both Houses, but have not measured up. Therefore, the recognition of the noble Lord, Lord Pannick, of the validity of the concern of the noble Baroness, Lady O’Loan, and my noble friend Lady Berridge should be taken a step further. I should like to make a suggestion that builds upon what the noble Lord, Lord Deben, said. He and I do not agree on the fundamentals of the Bill, but he made a conciliatory and helpful speech this afternoon and we should thank him for that.

I inferred, from the speeches of the noble Baroness, Lady O’Loan, and my noble friend Lady Berridge that neither is likely to push this to a Division today. I hope that is the case. As I said on Monday, this House is at its best when it has long debates in Committee and votes on Report, when there has been proper opportunity to reflect on what has been said. I shall not be able to be present later today, for which I apologise. I hope that after this, when my noble friend Lady Stowell responds to this debate, she will undertake not only to reflect most carefully on what has been said by the noble Baroness, Lady O’Loan, and my noble friend Lady Berridge, but to call them in, with others who share their concerns, to ensure that on Report we will be able to make it plain in the Bill, beyond any shadow of a doubt, that the assurances that have been given will not only be honoured but be capable of being honoured.

I withdrew an amendment on Monday night following assurances from the noble Baroness, Lady Royall, and my noble friend Lady Stowell, when I sought to add Roman Catholic priests to the definition of the clergy. I did so for many of the same reasons advanced by my noble friend Lady Berridge. There is concern—real worry and anxiety—in this House and in the country. The Bill will make its way to the statute book; of that I have no doubt. I regret that but, as a good democrat, I accept it. However, I want it to give the strongest possible protection to those who in all conscience cannot accept the fundamental statement that same-sex marriage is the same as marriage between a man and a woman. I urge my noble friend, when she comes to wind up this debate—

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[Lord Deben]

My Lords, this is entirely misconceived. This Bill is not about blessings. The church has a right to bless or not as it likes. In my case I am referring to the Catholic church, and not the Church of England, and you can bless without any difficulty. The idea that somehow by refusing a blessing you would be subject to the law because of this Bill seems totally fallacious. You might be subject to the law according to other Acts, but we have not found that, and if you want to change those Acts, no doubt that would be sensible. But really, this is otiose. That is what worries me. It seems perfectly proper that people who disagree with the vast majority of both Houses on this subject will seek proper protection in areas where one might be uncertain. However there is also a degree of courtesy—I am sorry to have raised that word because it will now dog me for the rest of my life—about not loading this Bill with all kinds of statements about how you do not want to be pressed in this or that way.

It is quite clear what a blessing is. It is something which the churches give as a generous offering to people who ask for it. There is no compulsion; they do not have to do it. If they refuse it, as they can in many cases, there is no question of there being any recourse to law. My father was an Anglican clergyman; he would give blessings in certain circumstances and not in others. That was because in some circumstances he thought they were suitable, in others he thought they were not. Nobody could, would, or should ever have taken him to court. Imagine the court case: “Well, old father, what did you do this for?” and the response, “These two people have been living with other people as well at the same time and so I decided not to give them a blessing”. On what possible basis does the court then say, “You should have given them a blessing”?

I say to the noble and right reverend Lord, Lord Carey, that we have to be very careful. There is a great deal of unhappiness among decent people about the attitude of some churchmen to this Bill. Therefore, for goodness’ sake, do not let us load this Bill with all sorts of bits and pieces which are not necessary. Let us protect people where the Bill affects them. Do not let us try to protect people where the Bill does not affect them, otherwise we will be doing something which is the bane of American legislation: because there is no concept of the Long Title, you can add anything you like to any Act. You say, “If you want me to vote for this, I want you to include my bit about a bridge in my constituency”. I fear that this is precisely that kind of addition. It seeks to squeeze something into the Bill which has nothing to do with it at all.

Lastly, I will say why this is very serious. If we are to take seriously the contention of some churchmen that same-sex marriages are uniquely unacceptable, those same churchmen have to be very careful that they do not spread that unacceptability to other things. A blessing is manifestly something which the churches have used to overcome the reality of pastoral care as against the reality of doctrinal belief. It ought to stay there. The last place where it ought to be reflected is in the legislation of this House and of this Parliament. Blessing is a mechanism whereby the Church of England, for example, has overcome the fact that doctrinally it believes that marriage is indissoluble, but on the other hand it has to deal with marriage as it is. That is what blessing is. Do not, for goodness’ sake, try to muck this up by adding to this Bill something which is entirely extraneous.

[Lord Pannick]

My Lords, this amendment is concerned with Section 29 which is related to the exercise of public functions. Whether you give a blessing or not is plainly not a public function, it is a religious function. It is subject to a higher authority, no doubt, but that higher authority is not the Queen’s Bench Division, the administrative court and the Court of Appeal. It would be very damaging indeed to religious bodies for this legislation to suggest that Section 29 could apply to the exercise of what are plainly and simply religious functions.

[Baroness Barker]

My Lords, the noble Lord, Lord Deben, used the word “courtesy”. I wish to make a plea for clarity. I have said already twice during our debates that I utterly support the rights of religious organisations to take a very different view of same-sex marriage than me, as passionately as I believe that public functions need to be open to all. I regret that none of the Methodist mafia is here today—they are usually around when I need one of them—but I want to make a particular point about the nonconformist churches. We spend an awful lot of time talking about the Church of England for obvious reasons, but I do not want any of the nonconformist churches to be left in any doubt that they will be subject to some kind of compulsion when the Church of England will not be. That is absolutely not the case.

One of the reasons I wished that the noble Lord, Lord Griffiths of Burry Port, or the noble Baroness, Lady Richardson of Calow, were here would be to confirm my understanding that—on a slightly different point—the Methodist Church, at its conference, is being asked to uphold the view that it will not bless civil partnerships. That is its right and, along with any other church, it will have the right to exercise the same judgment in relation to same-sex marriage.

I want to go slightly further; I hope that churches that take those decisions make it known publicly and loudly that that is their decision. I have spent my life very seriously observing the rights of religious people and trying not to offend them. It is not my intention, as a gay person, ever to offend somebody who holds that religious viewpoint, but I would like churches to make it abundantly clear to me, as a gay person, what their view is, so that I may lead my life in a way that does not directly offend them.

Marriage (Same Sex Couples) Bill

Lord Pannick Excerpts

Wednesday 19th June 2013 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I appreciate the point that the noble Lord, Lord Singh, is making, but I ask him to reflect on the fact that the exceptions are exceptions for historical reasons of the Church of England and the Church in Wales where there is a common-law duty with regard to priests in relation to people within their parish. Quakers and the Jewish faith are included for reasons that go back centuries. Every other religion in England and Wales is treated in the same way. Even my own denomination, the Church of Scotland, is treated in the exactly same way as the Sikh faith is treated by the provisions in this Bill for the religious organisation itself to determine what its appropriate authority is.

It is quite clear from what the noble Lord has said that there is no doubt within his faith as to where that authority lies, just as in my own denomination the General Assembly of the Church of Scotland would be the obvious authority. The fact that he has been able to make very clear where that authority would lie just shows the importance of it being determined by the religion itself. I also ask him to reflect on the fact that if we included his amendment, every other faith and denomination would have to be included as well. That would be an impossible task for a Government and would take them into having to decide which the proper authority of some religions is, and I do not believe that is where the state should go.

[Lord Pannick]

My Lords, I would just add that if the state were to conduct such an exercise and purport to decide for religious bodies what the proper religious authority is, difficult questions would arise under Article 9 of the European Convention on Human Rights.

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[Baroness Farrington of Ribbleton]

My Lords, my experience in my political career is that it is unwise to comment on individual cases. I would need to know the detail. I cannot believe—however, the noble Lord tells me it is a fact—that any head teacher or governing body has insisted on that wording. However, I do not doubt that the noble Lord has evidence which seems to support that.

I am slightly more dubious about opinion polls. I think that the opinions depend on the exact question that is asked. If noble Lords were asked as they left the Chamber whether they agreed with indoctrinating pupils into believing that same-sex marriage was right or wrong, we would probably all say that we do not believe in indoctrination. If we were asked a slightly different question, we might answer it differently. As someone who is very committed to political life, I am saddened that out there a variety of groups of people hold a variety of views, many of which I totally oppose personally. Nevertheless, I defend their right to hold them. That is the issue we are dealing with. I do not want my grandsons to be told that anything is right or wrong in regard to the law. They will be told by their parents and teachers and occasionally by their grandmother—although, as they grow up, they may not listen—about certain things of which we do or do not approve. However, I think it is very unwise for us to start assuming that teachers will be told they have to indoctrinate or put forward a particular point of view. For 10 years I chaired the education committee on Lancashire County Council. I once said to somebody, “If I wanted the whole teaching profession in Lancashire, which I respect and admire, to do something, the best way would be for me to ban it”.

[Lord Pannick]

My Lords, we all recognise the strength of feeling that these issues command, and pleas for tolerance, such as that from the noble Lord, Lord Waddington, always command considerable respect and attention. However, we really need to look at the principle behind the proposed amendments of the noble Lord, Lord Dear. As I see it, the teacher’s role is not simply to promote same-sex marriage or propagate his or her views. Surely the only role of the teacher in relation to same-sex marriage is to explain to pupils, where this is relevant, that the law allows same-sex marriage, and to explain that some religions do not recognise it and therefore the law does not recognise same-sex marriage of a religious nature in those circumstances.

I cannot understand why a teacher needs or should have a statutory immunity from performing that educative role. Nor can I understand why parents should be able to prevent their children being so informed about the laws of the society in which they live. The noble Lord, Lord Dear, also referred, in the context of the legal opinion from Mr John Bowers QC, to Section 403 of the Education Act 1996, which was said to cause great concern. I remind noble Lords that Section 403(1A) is about giving guidance in the context of sex education. It requires children in that context to,

“learn the nature of marriage and its importance for family life and the bringing up of children”.

The purpose of that statutory provision, as I understand it, is so that when children learn about sex education, they learn that it is highly desirable that sexual intercourse takes place within the context of marriage. I cannot understand why those noble Lords who are concerned about the Bill should wish in any way to prevent children learning—if and when they do—about homosexual sexual relations in that context, as well as about heterosexual sexual relations and the importance of marriage and family life.

[Lord Dear]

Would the noble Lord then distinguish that from the circumstances of a teacher who is an atheist and already receives statutory protection from teaching religious education classes?

[Lord Pannick]

An atheist may have good reason for not teaching religious education, because by definition religious education is teaching matters relating to religion. However we are not concerned here with teaching religion, but with the role of the teacher in teaching children, so far as it is relevant, about the society in which they live. If and when the Bill is passed, part of the society in which children live will include same-sex marriage.

[Lord Dear]

With the greatest possible respect, that is dancing on a pin. I am sorry to put it that way, because I have the greatest respect for the noble Lord. Surely it is exactly the same reasoning which gives protection—if one can use that phrase—for the atheist to fall out of teaching religion and the teacher who has a rooted objection to teaching about sex education and same-sex marriage on religious or conscientious grounds. I see no difference.

Mesothelioma Bill [HL]

Lord Pannick Excerpts

Wednesday 5th June 2013 Grand Committee

[Lord Kakkar]

My Lords, I support Amendment 31. In doing so, I declare my interest as professor of surgery at University College London, an institution that is actively involved in cancer research. We have heard about the importance of mesothelioma and the impact that it is going to have in the next 30 years with regard to the deaths of many tens of thousands of our fellow citizens. However, I wish to build on the comments of my noble friend Lord Walton of Detchant, who has spoken with considerable eloquence about the importance of research. This is a disease that is going to afflict many of our fellow citizens but there is no strategic defined national research initiative for it. That is quite striking, and it is a serious deficiency in the otherwise hugely successful and important approach that successive Governments have taken towards having a national research effort, conducted either through the work of the Medical Research Council or through the National Institute for Health Research.

We have heard about the important role that four insurance companies have played to date, providing some £1 million a year between them to support research in this area, supplemented by important charitable contributions. We cannot underestimate the importance of even this small contribution to having kick-started research and academic interest in this area. The meso-bank that we have heard of is a very important national initiative that will have global significance, because collecting tissue from patients afflicted with mesothelioma provides the opportunity for fundamental and translational research on those tissue samples to ensure that there is better understanding of the disease.

As we have heard, there is no opportunity at all to develop either better diagnostics or indeed treatments and cures for this particular form of malignant disease unless we understand fundamentally its biology. Collecting tissue using tissue banks and bio-banks is the basis of modern medical research, and it would not have been possible without the contribution of insurance companies and the work of the British Lung Foundation in having facilitated that. However, this work—these bio-banks, the meso-bank—needs to continue in future.

On that basis, large academic groups have started to focus on the question of mesothelioma. That would not have happened without the funds currently available. Scientists, academics and clinicians have come together, now in reasonable numbers, to focus on the question of mesothelioma as a result of recognising that funds to support their research would be available. If the signal cannot be sent in future that funding for research in this area will be available, regrettably, no research will be undertaken. That is the simple truth: without funding, research cannot be promoted and completed.

Interesting work is being undertaken at the Sanger Institute in Cambridge as a result of the limited funding currently available, which has allowed the first molecular characterisation of mesothelioma, providing a better understanding of genetic mutation and signalling pathway defects which could offer targets for future drug development. A disease in a similar situation to mesothelioma some years ago was melanoma, the malignant skin cancer. As a result of research focus and a better understanding of the molecular biology of melanoma, we can now offer patients biological therapies targeted specifically at the genetic and signalling defects that characterise their cancers, improving the outlook for certain patients with certain types of melanoma. It is surely possible to conceive that, with appropriate research funding, the same might be achieved for mesothelioma.

In addition to those two important areas—the meso-bank and genetic and molecular research into the nature of mesothelioma—the limited funds available for only a three-year period have also stimulated important research into better palliative care for patients with mesothelioma. Again, that is vital, because the median survival for that disease is only 12 months. Those few who respond to current chemotherapy have only an additional two months—eight weeks—of added median survival. For the vast majority, the reality of modern care is palliation of their disease, so research into appropriate palliation is vital, again supported by those limited funds.

I had some hesitation about the implications of the amendment more broadly but, having listened to the important contributions so far in Committee, it is clear that there is a potential route forward to pass an amendment that would stimulate the national research effort in this area. It would ensure that we are able to provide important funds either through having available in statute but not using—as, we have heard, is the case with the Gambling Act 2005—or having a tool available to apply to members of the compensation scheme. There is an important discussion to be had about how those funds would then be distributed to research-active organisations to ensure appropriate peer review, and that mechanisms from the National Institute for Health Research or one of the research charities could be used to facilitate it.

Without the emphasis in the Bill, it is likely that the early progress being made towards better understanding of the disease and, ultimately, providing treatment for it will be lost. That would be a great shame for the tens of thousands of our fellow citizens who will suffer from that terrible condition.

[Lord Pannick]

My Lords, I, too, support Amendment 31, for all the reasons powerfully advanced by the noble Lord, Lord Alton of Liverpool, and other noble Lords this afternoon. I should be very surprised if the Minister were to suggest that there is something inappropriate about a statutory levy on an industry to promote a valuable public purpose. It is not only in the Gambling Act 2005, there are other statutory examples that one could refer to. As long ago as 1963, Parliament decided that, under Section 24 of the Betting, Gaming and Lotteries Act, the levy board has a power to charge on all bookmakers involved in horserace betting, the levy to be spent for the purposes of improving the breeds of horses, the advancement or encouragement of veterinary science or education and the improvement of horseracing. So there is nothing novel about a statutory levy on a particular industry for a particular valuable purpose.

The noble Lord, Lord Alton, mentioned the Human Rights Act. The Minister has told us today that he cannot comment on whether he has had legal advice, but I would be astonished if his advice were that the Human Rights Act somehow stands in the way of a statutory levy on industry in this context. Parliament has a very broad discretion in the context of property rights, because that is what we are talking about, on the proper balance between individual interests and the public interest. It would be quite fanciful to suggest that there is a legal reason not to support an amendment such as Amendment 31, although I entirely accept that there may well be room for improvement in its drafting.

[Lord Empey]

Does the noble Lord also recall the statutory ability to charge levies through organisations such as the Construction Industry Training Board, where skills were provided to a number of industries? This used to apply not only to construction but to the textile and a range of other industries. The industrial training boards were a statutory levy on employers in particular sectors.

[Lord Pannick]

The noble Lord is right. As I mentioned, there are other examples. Parliament imposes levies when it thinks it is appropriate to do so in order to promote a valuable public purpose. There are many examples. I am grateful to the noble Lord.

[Lord Howarth of Newport]

My Lords, I add my thanks and congratulations to the noble Lord, Lord Alton of Liverpool, on tabling this amendment. He has been a consistent, determined, passionate and highly effective advocate for sufferers of mesothelioma and this is one more instance of his very good work. I was happy to sign the letter that he initiated to the Times but there was no room left for me to add my name to the amendment.

It is profoundly desirable that more funds should be invested in research in this field. It is good that the industry, spurred by the British Lung Foundation, has already contributed £3 million and even better that it has stated its willingness to contribute more, provided that the state provides what the industry would regard as an acceptable contribution, which I guess means more than match funding.

I would be grateful if the Minister or the noble Lord, Lord Alton, could cast some light on why we have not yet seen a greater volume of state-funded research in this field. The Department of Health and the NHS have very large budgets for research; the business department has a substantial budget enabling it to fund the Medical Research Council; and there is no lack of public funding available to be applied in this area.

The normal principle is that those to whom decisions on the use of state-provided funds for research are entrusted look to receive high quality research applications. Surely such high quality research applications must have been forthcoming. The noble Lord, Lord Kakkar, spoke, in some sense, on behalf of University College London, where there is an important programme of research in the field of cancer. He also alluded to the Sanger Institute at Cambridge. If we are talking about academic institutions of the highest quality willing to commit themselves to work in this field, it is a puzzle to me why they have not been able to obtain more of the funds that the state provides for research. It may be that not enough appropriate proposals for research have yet been formulated, but I am puzzled about that and I would be grateful if the Minister would cast some light on it.

Perhaps he is going to say that the DWP, which itself has a substantial research budget, will be willing to find additional money to earmark in this direction. However, even the DWP probably insists on quite high quality in its research, so the same constraints might apply. However, those constraints should not be meaningful in this area. We are talking about a subset of the broad field of cancer research. There is an abundant willingness to fund it. I really want to know why it has not happened. Of course, I hope that it will and I hope that this amendment, whether or not it is modified as the Bill proceeds, will be the means to opening up a greater flow of funding towards mesothelioma from the state as well as the industry and perhaps also the charitable sector.

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[Lord Pannick]

To clarify, is the noble Lord saying that the only impediment to including a provision of this sort in this Bill is that this is a DWP Bill and research is a Department of Health matter? If that is the point, I think it will come as a great surprise to this Committee that it is not possible for two departments to liaise and come up with an agreed position to place within a Bill—not least because, as he will well know, as a matter of constitutional propriety, when a Bill talks about a Secretary of State, it covers all Secretaries of State. There is no division of responsibilities between Secretaries of State. Can the Minister think about whether it is really not possible to talk to his colleagues on these matters?

[Lord Freud]

I have done quite a lot of work on this, as I have said, and talked to the department. I am saying that this would have to be a Department of Health levy, but the Department of Health is not minded to legislate in this way on this matter because that is not how the structure of research provision in this country works. That is the position. I can get further clarification on this ready for Report.

Marriage (Same Sex Couples) Bill

Lord Pannick Excerpts

Monday 3rd June 2013 Lords Chamber

[Lord Pannick]

My Lords, I warmly welcome the Bill for the reasons stated by the Minister and the noble Baroness, Lady Royall, in their admirable speeches opening the debate.

I much regret that the noble Lord, Lord Dear, should think it appropriate to seek to deny a Second Reading to a Bill which has received overwhelming support in the other place on a free vote. The noble Lord emphasised what he described as the majority view in the country at large. I have to tell him and others who share his views that the world out there has moved on and that for most people, particularly those under 60, the sexuality of their neighbours is neither a concern nor a threat, as the noble Baroness, Lady Kennedy, said. It bemuses people that any element of unequal treatment should remain in our society simply by reference to people’s sexual orientation.

Many people outside the House listening to the debate or reading it in Hansard in due course will wonder why the noble Lord, Lord Dear, and his supporters, all of whom rightly value the institution of marriage, seek to deny the same happiness, fulfilment and status to other people simply by reference to their sexual orientation. I am a paid-up member of the married club and glad to be so. It is precisely because of the value of marriage that it should not be denied to same-sex couples. There is no question of the Bill being introduced on a whim, as the noble Lord suggested. It is being introduced on a fundamental question of principle to address a wrong that needs to be addressed.

I wish to comment on a theme which appears to drive the Bill’s opponents. The noble Lord, Lord Dear, referred to what he described as centuries of tradition and the concept of marriage as we have always known it, and the noble Lord, Lord Waddington, made similar points. This is to treat the law of marriage like the law of the Medes and the Persians which, according to the Book of Daniel, chapter 6, verse 8—the devil can quote scripture—“altereth not”. The reality is that the law of marriage in this country has altereth a lot. It has altereth a lot from time to time according to changes in social conditions and social attitudes. The noble Baroness, Lady Barker, made this point in her powerful contribution to the debate.

Prior to legislation in 1907, a man could not marry his deceased wife’s sister. Prior to 1921, a man could not marry his deceased brother’s widow. Other prohibited degrees were removed in 1931. All of this information is in the valuable Halsbury’s Laws of England edited by the noble and learned Lord, Lord Mackay of Clashfern. The Gender Recognition Act 2004 allowed a transsexual to marry in his or her acquired sex even though, I remind the noble Lord, Lord Waddington, procreation is plainly not possible in such circumstances. The minimum age for marriage has been altered from time to time; the law related to the validity of non-Anglican marriages has developed over time; the law of divorce has been amended from time to time; other incidents of marriage have been the subject of change. Until case law in the 1990s when the first judgment in the modern era was given by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, the law proceeded on the basis that a husband could not be criminally liable for raping his wife if he had sexual intercourse with her without her consent.

It is, therefore, simply unsustainable for critics of the Bill to suggest that there is anything unprincipled in Parliament amending the law of marriage in a fundamental manner to recognise social developments and to do it in accordance with basic principle.

I will make one other point if I may. I have provoked the noble Lord.

[Lord Dear]

As we are both Benchers of Gray’s Inn, the noble Lord would have to go a long way to provoke me. Before we go any further, may I ask the noble Lord if he has taken notice of the fact that at no stage in my address did I say that because the law and custom of marriage were well established we should continue in the same vein? The main thrust of my address was that sufficient research has not been carried out into the laws of unintended consequences. Could he address that?

[Lord Pannick]

I cannot address every point made by the noble Lord. If he fails, as I hope he does, to prevent the House from debating the detail and the arguments in Committee and on Report, I very much hope that the House will address every point made by him. I focused on his completely unsustainable suggestion that there are “centuries of tradition” and that the concept of marriage as we have always known it is being removed. I am quite happy to try to deal with every point if noble Lords want me to make a speech of 30 or 40 minutes but I will not trespass on the tolerance of the House to do so.

I do not accept that there are unintended consequences. I will deal finally with just one suggestion of an unintended consequence made by the noble Lord and other critics—that the Bill is going to force religious bodies to conduct same-sex marriages contrary to their religious principles. The noble Baroness, Lady Kennedy, mentioned that we both gave oral evidence on this subject to the House of Commons Public Bill Committee. I explained my view that there was no realistic possibility whatever that any court, domestic or European, would compel a church or other religious body to conduct a same-sex marriage ceremony contrary to the doctrines of that religious faith. The reason is very simple: under this Bill, a same-sex couple will be able to enter into a civil marriage. Their only reason for wanting a religious ceremony would be to gain a religious benefit. All, and I mean all, case law confirms that courts will leave religious bodies to decide on the allocation of religious benefits. None of the other legal concerns raised by the opponents of the Bill seems to have any basis whatever.

I am confident that this House will give a Second Reading to the Bill tomorrow and I very much look forward to a reasoned debate in Committee on all questions of detail.

Enterprise and Regulatory Reform Bill

Lord Pannick Excerpts

Monday 22nd April 2013 Lords Chamber

[Lord Pannick]

My Lords, I supported the noble Baroness, Lady Turner of Camden, and the noble and learned Lord, Lord Hardie, on Report, and I continue to do so. The Minister said earlier in this debate that we are considering cases where the employer has done nothing wrong. With great respect, that is a fundamental misunderstanding. The employer is liable only if the claimant can prove a breach of health and safety legislation. The employer is liable only if the claimant can prove that the breach has caused the injury. To require the employee also to prove negligence would impose an unreasonable burden. I take the point made by the noble Lord, Lord Faulks, that it is not an impossible burden. However, I suggest that it is an unreasonable burden because the relevant information will normally be information in the knowledge of the employer, and the costs and delay of the litigation—a point which the noble Lord, Lord Faulks, did not mention—would surely be disproportionate in all these circumstances to any legitimate interest, especially when the reality is that the employer can, and normally does, have liability insurance. For those brief reasons I will support the noble and learned Lord, Lord Hardie, should he divide the House this evening.

[Lord McKenzie of Luton]

My Lords, we remain steadfast in our opposition to the Government’s position, and fully support the case led by the noble and learned Lord, Lord Hardie, and spoken to in support by my noble friend Lady Turner and the noble Lord, Lord Pannick. We are dismayed that parliamentary process has allowed so little time for consideration of this matter in the House of Commons and that more than a century—in fact, nearly 150 years—of settled law is being overturned on the basis of such brief deliberation.

The arguments to remove Clause 61 from this Bill have not of course changed in the few weeks since we last debated the matter. Nor have the serious consequences which will ensue should we not carry the day. Removal of the existing right of an employee to rely on a breach of health and safety legislation represents a fundamental shift, and one which is to the detriment of employees.

We heard before, and again today, that having to prove negligence will provide a more difficult route to getting redress. The burden of proof will shift to employees, or to the family in the case of a fatality at work, there will be a requirement for more evidence-gathering and investigation, and the incurring of greater costs. In that respect there will be no lessening of the regulatory burden on employers. This change goes well beyond the issue of strict liability which the Government’s own impact assessment accepts is likely to give rise to only a small number of claims.

The issue of a near impossible burden referred to by the noble Lord, Lord Faulks, I think in our previous debate, was not applied generally but specifically to those circumstances where strict liability has hitherto been in force.