Northern Ireland Protocol Bill

Debate between Lord Pannick and Lord Cormack

Committee stage
Wednesday 2nd November 2022 Lords Chamber

[Lord Cormack (Con)]

I should just like to ask a question of whichever Minister will reply to this brief debate. I am of course entirely on the side of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Purvis, in what they said. I understand why my noble friend raised his commercial points, but between us and him is a great gulf fixed. What we are concerned about is the arbitrary and unfettered power of Ministers.

I have great respect for all three of the Ministers who are handling this Bill, and great sympathy for them, but are they truly happy to exercise such unfettered powers without reference to Parliament and proper debate? We go back to where we were on Monday: the imbalance of power and the excessive power of the Executive, which has been growing like a mad Topsy for the last few years. It is deeply disturbing to anybody who believes in parliamentary government, and I want to know if it is deeply disturbing to the Ministers on Front Bench this afternoon, because if it is not, it should be. I would be much more worried than when I got up if they tell me that they do not mind.

[Lord Pannick (CB)]

Could I suggest to the noble Lord, before he sits down, that the real question is not whether the Ministers on the Front Bench would be happy to exercise these powers, but whether they would be happy for their opponents, were they to be in office, to exercise these powers.

[Lord Cormack (Con)]

As so often, the noble Lord puts it very well. It ought to be a parliamentary lesson to us all: never seek to take to yourself powers that you would not be happy to see the other side have. The noble Lord put it very succinctly and I endorse what he said.

Northern Ireland Protocol Bill

Debate between Lord Pannick and Lord Cormack

Committee stage
Monday 31st October 2022 Lords Chamber

[Lord Cormack (Con)]

In effect, we have heard this evening a reiteration of Dunning’s Motion in the reign of George III:

“The influence of the Crown has increased, is increasing, and ought to be diminished.”


We are seeing in the Bill not only an abrogation of international law and our obligations, which is what primarily concerns me, but in the process, by the design of the Bill, an accretion of power to Ministers and the Executive—an unbalancing of the relationship between Parliament and the Executive.

The Executive are answerable to Parliament in our constitution. Here, great chunks are being given to the power of the Executive. We owe an enormous debt to the noble Earl, Lord Kinnoull, and his committee, and other committees in this House, which have pointed this out calmly—to use a word I used earlier—but very forcefully. We are embarking on a road towards executive superiority such as is incompatible with our constitution, which is moving away in the 21st century from what our forefathers fought for in the past. We cannot emphasise that too greatly.

The person who could make this speech far better than I and whose name is on the amendments spoken to eloquently by the noble Lord, Lord Purvis of Tweed, is the noble and learned Lord, Lord Judge. Time and again, in a variety of Bills and contexts, he has pointed out to your Lordships’ House how the accumulation of Henry VIII powers in the hands of Ministers, without proper accountability to the House, is the road towards executive domination such as is incompatible with our constitution, as I said a few moments ago.

In wholeheartedly supporting these amendments, I urge my noble friend, when he comes to reply from the Front Bench, to address this issue and address it directly. I have great admiration for my noble friend Lord Caine. I certainly have great admiration for his knowledge of, and concern for, Northern Ireland, to which he has dedicated a large part of his life; but is he really happy to be put in a position, or see any of his ministerial colleagues put in a position, where they can override Parliament effectively by diktat?

[Lord Pannick (CB)]

I completely agree with the noble Lord, particularly in relation to his tribute to the noble and learned Lord, Lord Judge. In his absence—as his junior as it were—I draw this Committee’s attention to the quite extraordinary report of your Lordships’ Delegated Powers and Regulatory and Reform Committee to which reference has been made before, particularly at Second Reading, but it bears repetition. Its seventh report of this Session says at paragraph 4 that this is

“a skeleton bill that confers on Ministers a licence to legislate in the widest possible terms.”

It continues:

“The Bill represents as stark a transfer of power from Parliament to the Executive as we have seen throughout the Brexit process. The Bill is unprecedented in its cavalier treatment of Parliament”.


That is quite an extraordinary criticism of this legislation. It is made not by novices but by highly experienced and respected Members of your Lordships’ House across party lines. I find it deeply regrettable that the Government should think it appropriate to continue with a Bill that has attracted such cross-party criticism.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Pannick and Lord Cormack

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 10th January 2022 Lords Chamber

[Lord Cormack (Con)]

My Lords, I was very glad to add my name to my noble friend Lord Blencathra’s amendment, which he has moved with a convincing and passionate speech. I agree wholeheartedly with all that he said. My own views were reinforced in the last debate when the noble Lord, Lord Macdonald of River Glaven, talked in rather chilling terms about his visits to women’s prisons; I have heard similar accounts from others, both within your Lordships’ House and outside. It seems to me that we add to the uncertainty, mental tension, fear and all those other things if we house in women’s prisons those who are physically male but proclaim themselves female.

Of course, the safety of a prisoner, no matter their sex, is important to us all—a point that some of us touched on in Committee. I put forward then a suggestion that perhaps these people should be separately treated and looked after. After all, the aim of prison—I had two prisons in my former constituency—is often lost sight of: sending to prison is the punishment and rehabilitation is the aim. You are much more likely to get rehabilitation if the atmosphere is calm and subdued and there is not rampant fear in the prison. I believe very strongly, as does my noble friend Lord Blencathra, that the solution is to treat those who are particularly vulnerable in such a way that we take as many safeguards against their vulnerability as possible. To me, that leads logically to a solution where those who were born as women, and who are women, are in women’s prisons, and those who are still physically male are, if necessary, housed in a separate unit.

I do not buy, any more than does my noble friend Lord Blencathra, the talk of travelling great distances. Of course the aim should always be to try to have prisoners as close as possible to their loved ones and the community that they know, but it is not always possible. My noble friend Lord Blencathra referred to the fact that there is no women’s prison in Wales, and so a woman sentenced to jail there can be sent 150 or more miles away. We also have to remember that people are sent to prison because they have done something detrimental to society. It may be a heinous crime or not such a heinous crime, but having to travel a certain distance may be part of the price one has to pay.

I am a great believer in community restorative justice. I believe that we send far too many people, both male and female, to prison, and that we should be much more adventurous in the way we treat those who are not, by their physical violence, an obvious danger to society; of course, they must be securely housed, wherever and whoever they are.

I am grateful to my noble friend the Minister. I attended the teach-in on Zoom—it would have been much better if only we could all have sat down together, but it was on Zoom. I do not doubt for a moment my noble friend’s passionate commitment, but I had to say to him on the day that I was wholly unconvinced; I think he respected that.

I believe that we have to grasp this problem. Like my noble friend Lord Blencathra, I had dozens of letters and messages from those who had listened to the debate —it is remarkable how many people suffer from insomnia in this country—and who wanted to say thank you for standing up for womanhood and motherhood and for not making women feel disparaged. We went through this last year, when we had the extraordinary maternity Bill to, quite reasonably, give maternity leave to the Attorney-General. As a Bill designed to give maternity leave, it did not mention the words “woman” or “mother” until it had left your Lordships’ House, where we talked a little sense into it.

This is something that we have to grasp as a society. I believe that it is totally wrong to put women in a threatened position by having housed next to them people who are still physically male. Protect them all, yes, but, in particular, let us have regard for the women. I believe that the amendment put before us by my noble friend Lord Blencathra this evening is worthy of your Lordships’ support. If it does not receive that support tonight, this is an issue that will not go away; it is a series of big accidents waiting to happen if we are not careful. I am glad to support my noble friend’s amendment.

[Lord Pannick (CB)]

My Lords, I am very happy to stand up for womanhood and motherhood, but this amendment is very puzzling indeed. What it would mean is that even if a person born male has lived as a woman for 20 years, even if they have undergone sex reassignment surgery, even if they have a gender recognition certificate, and even if they are assessed as posing no risk whatever to other women, the Home Office would be obliged either to place them in a men’s prison or put them in specially segregated facilities. The former option of putting them in a men’s prison would be a disaster; it would obviously be enormously dangerous to such a person. Placing them in specially segregated facilities would be demeaning; it would fail to recognise what legislation in this country has recognised for the last at least 15 years: that people who happen to be born in the wrong sex deserve our compassion and deserve recognition of their position.

I suggest to the House that these issues are far better addressed, as they are at the moment, by Home Office policy that considers the circumstances of the individual case, rather than by broad amendments of this nature, whatever the good faith of those who put them forward.

Data Protection Bill [HL]

Debate between Lord Pannick and Lord Cormack

Monday 14th May 2018 Lords Chamber

[Lord Pannick]

My Lords, I declare an interest as one of the few counsel who has acted in privacy cases for both the Daily Mail and Mr Max Mosley. I cannot support the amendment in the name of the noble Baroness, Lady Hollins. I remind your Lordships of what the Conservative Party manifesto said before the election last year:

“Given the comprehensive nature of the first stage of the Leveson Inquiry and given the lengthy investigations by the police and Crown Prosecution Service into alleged wrongdoing, we will not proceed with the second stage of the Leveson Inquiry into the culture, practices and ethics of the press”.


As your Lordships know, the Commons held a lengthy debate on this subject last Wednesday and voted not to institute a Leveson part 2. Your Lordships’ House has heard the pro and con arguments on many occasions.

I want simply to emphasise two points. Amendment 109 introduces extensive new powers on the Information Commissioner in relation to the press and, as the Minister has already indicated, it requires the commissioner to conduct a review of the press in the short term. Also, over the years, there have been not just police, and other, inquiries: a large number of civil actions—cases against the press—have been brought by phone-hacking victims. Those victims have not gone without remedy; they have received very substantial financial compensation, and rightly so. It is true that some of the claimants were celebrities, but many were not; they were victims of phone hacking because, for example, they were related to television actors or spent the night with a footballer. Reprehensibly, the press hacked their phones. They brought legal actions; the lawyers acted on a conditional fee basis. After the event, insurance ensured that there was no financial risk to the claimant, so it is simply not the case that victims of phone hacking lack, and have lacked, legal remedy. Newspapers have rightly been ordered to pay substantial sums by way of compensation. It is simply unrealistic to think, in the light of the criminal prosecutions and civil liability, that the message has not got across. I respect, of course, the views of the noble Baroness, Lady Hollins, the noble Earl, Lord Attlee, and the others who support this amendment, but it really is time for this House to give way to the views of the Commons on this matter.

[Lord Cormack (Con)]

My Lords, I support what the noble Lord, Lord Pannick, has just said. I also have the utmost respect for the noble Baroness, Lady Hollins. She has shown that she is a doughty campaigner; she passionately believes in her cause, and she has every right so to do.

I want to dwell on just one aspect: the relationship between the two Houses of Parliament. I hope that I have shown that I am not afraid to vote against the government line; I have done so frequently recently and I do not regret it, because I have done what I thought was right.

When we take such a line, we ask the other place to think again. However much the noble Baroness, Lady Hollins, may regret it, the other place has thought again. This is not the moment to introduce new amendments—to protract the ping-pong by bringing in a new ball. With proper deference to the elected House, we have to accept the line that it has taken. There are of course other arguments that one could deploy—it has been said that this is not the right Bill and all the rest of it—but the matter has gone to the other place; it has made its decision. We would be overemphasising our constitutional legitimacy if we sought to reject what it has said.

European Union (Withdrawal) Bill

Debate between Lord Pannick and Lord Cormack

Wednesday 21st March 2018 Lords Chamber

[Lord Pannick]

My Lords, in the previous debate the Committee deliberated on the vice of Clause 17(1). The amendment proposed by the noble Lord, Lord Bassam of Brighton, identifies a specific reason why Clause 17 (1) is so objectionable. When the Constitution Committee put to Ministers our concern, to which the noble and learned Lord, Lord Mackay of Clashfern, has just referred, that the Bill should identify the legal status of retained EU law, the answer from Ministers was that if necessary or appropriate they could use the powers conferred by Clause 17(1) to designate what legal status retained EU law would have, and designate different parts of retained EU law for different purposes. The Constitution Committee made its view very clear in paragraph 69 of its report:

“It is constitutionally unacceptable for Ministers to have the power to determine something as fundamental as whether a part of our law should be treated as primary or secondary legislation”.


We debated what legal status should be given to retained EU law earlier in Committee. I respectfully agree with the observations made just now by the noble and learned Lord, Lord Mackay of Clashfern. I emphasise, however, that it is the width of Clause 17 (1) that is so objectionable as it enables Ministers to assert that they could use it to make changes of such constitutional enormity to our legislation. I agree, therefore, with the concerns that the noble Lord, Lord Bassam of Brighton, has expressed.

[Lord Cormack]

My Lords, I will briefly add my support. I point out to my noble and learned friend, who gave a very sensitive reply to the previous debate, that a culture has grown up in Parliament in recent years: the proliferation of so-called “Christmas tree Bills”, which include very few specific proposals, allowing Ministers to hang whatever baubles they like on them. Together with the deep suspicion, that we all have, of Henry VIII provisions, I hope that that explains to my noble and learned friend why, with all the far-reaching consequences of this Bill, we are most anxious that the prerogative should remain with Parliament and that it should not be for Ministers to determine what is primary and what is secondary. I hope that building on his sensitive and—I do not want to sound patronising—sensible remarks at the end of the last debate, he will take on board what has been, and is being, said on this point.

Trade Union Bill

Debate between Lord Pannick and Lord Cormack

Tuesday 3rd May 2016 Lords Chamber

[Lord Pannick (CB)]

My Lords, I agree with what the noble Lord, Lord Kerslake, has just said. The Minister has repeated today that the Government are not opposed to electronic balloting in principle; they are concerned about the technicalities. I therefore hope that the Minister can tell the House that, if the independent review produces a positive response on the technicalities and the detail, the Government will be eager to implement the findings.

[Lord Cormack (Con)]

My Lords, I thank the Minister, as I do Mr Nick Boles for the very constructive part he played in another place. I just ask my noble friend to say something about the timescale.

--- Later in debate ---

[Lord Cormack]

My Lords, I think we have to reflect, briefly, upon what has happened. We had a Motion, carried by a large majority, that the Select Committee should be established. I did not support it. I explained during the debate that I felt that the Bill was seriously impaired and that there was much unfairness in it, but I questioned whether a committee could, in the very short timescale that my noble friend Lady Neville-Rolfe has referred to today, produce a really good, definitive report. Thanks to the hard work of colleagues from all parts of the House and expert chairmanship, to which they all testified, by the noble Lord, Lord Burns, the deadline was met and a report was produced. It was signed up to by all the members of the committee—although, in the final, conclusive paragraph, there was, it was explained, a divergence of opinion.

The noble Lord, Lord Burns, decided to encapsulate that recommendation in the amendment which he moved on Report in your Lordships’ House. He moved the amendment with great skill and was supported by Members from other political parties as well as Members on the Cross Benches. My noble friend Lord Balfe and I voted enthusiastically for him. The names of a number of leading members of the Conservative Party will not be found in the Division list—I went through it carefully—because they felt that they could not oppose the amendment of the noble Lord, Lord Burns. It was carried by a large majority. The noble Lord, Lord Burns, explained that when he came to the negotiations at the beginning of last week, what was on offer not only did not meet his amendment but did not even meet the amendment to which my Conservative friends had signed up—in paragraph B, I think it was—so further negotiations were held.

What happened was very simply this. The parliamentary Session is coming to an end. The State Opening of Parliament has already been designated for 18 May—a fortnight tomorrow. So what was to happen? My noble friend Lady Neville-Rolfe and Mr Boles in another place decided that half a loaf was indeed better than no bread: that it would be far better to have a Bill that had widespread support—albeit that some of it is reluctant support. I myself do not think that this is the greatest Bill that the Government have placed before this House. Nevertheless, it is now, as far as one-nation Conservatives are concerned, a fairer, more decent and more equitable Bill, and one that has within it some recognition of the underlying dichotomy of party funding, because the Bill in its original state—and I used the words “unfairness” and “choice” many times in contributing to earlier debates—whether by accident or design, was penalising one of the great parties of state and not the others.

I believe that it is important that the second recommendation in the manifesto, which has already been alluded to two or three times in this debate, should be followed up. I hope that there will be something in the Queen’s Speech about it, because I do not like the way in which party politics is funded in this country—and I know that that view is widely shared in all parts of your Lordships’ House and in all parts of the country. But what we now have is a Bill that can go on to the statute book and which honours a number of the important pledges in last year’s manifesto. I accept that a manifesto Bill is different from another sort of Bill. Therefore, we have something in which the Government can take a degree of quiet satisfaction—and those of us who were concerned about the underlying unfairness of the original Bill can also feel that it has been improved.

I was only too glad to put my name—alongside that of my noble friend Lord Balfe—to the amendment of the noble Lord, Lord Burns. The noble Lord, Lord Tyler, also signed it. Your Lordships’ House gave that a very large majority, as I said. So the Government’s choice was a very simple one: should they go along with the will of your Lordships’ House as expressed in the Division Lobbies or should they invite further defeat, which could have jeopardised every particular of the Bill?

I think that the Government have made a wise, moderate and sensible decision. I pay unreserved tribute to the unfailing courtesy and diligence of my noble friend Lady Neville-Rolfe and to Mr Boles in another place. I hope that we can now move on. Last week, when we had the Third Reading, I said I hoped that the spirit of euphoria was not premature. I hope that it will not prove to have been premature and that we can now accept what is before us and get something on the statute book that is much more acceptable to those who have genuine concerns.

[Lord Pannick]

My Lords, we in this House often complain that the other place has ignored our views. It is unusual, and perhaps regrettable, that some noble Lords complained today that the other place listened attentively to the views of the committee of the noble Lord, Lord Burns, and to the vote in this House, which was supported all around the House, as the noble Lord, Lord Cormack, said, including on the government Benches. I do not know whether there was a deal, but whether or not there was, an act of political wisdom has occurred and we should welcome it.

Assisted Dying Bill [HL]

Debate between Lord Pannick and Lord Cormack

Friday 7th November 2014 Lords Chamber

[Lord Cormack]

What can possibly be lost by having further conversation and discussion? If the amendment is put to the vote and is carried, other amendments cannot then be discussed because a number of them will fall by the wayside. That is not going to assist our progress in having a full-ranging discussion. I would beg the noble Lord, Lord Pannick, not to press his amendment today so that discussions can take place. I make this suggestion, as I did in my speech, in a wholly constructive manner. I would beg of the noble Lord to heed that, because pre-empting other amendments is not the best way of taking this forward.

[Lord Pannick]

I am grateful to all noble Lords who have put to me pleas, begging—or however it is put—and I do take them very seriously indeed. However, it seems to me that after two hours we have had a very considerable debate on an issue of principle relating to the Bill. There is widespread agreement that there should be a judicial protection included in the Bill. As I understand it, only two real concerns have been expressed. The noble Lord, Lord Carlile, has suggested that the protections in my amendment are not sufficiently robust. With great respect, I do not accept that. The other objection raised is that it should not be judges of the Family Division who hear this. I think that this is so grave an issue that it is right and appropriate that the judicial protection is at that level. As the noble and learned Baroness, Lady Butler-Sloss, will confirm from her experience, there is nothing formal about the Family Division in appropriate cases. Judges hear the disputes around the bedside of the patient when necessary.

The noble Lord, Lord Tebbit, in his moving speech, was concerned about wrongdoing. I say that if the judge is satisfied on hearing evidence that the decision is,

“voluntary, clear, settled and informed”,

by a person who has capacity, then the noble Lord’s concerns about wrongdoing will be met. It is time that we came to decision on this matter of principle, encouraged as I am by what the noble and learned Lord, Lord Falconer of Thoroton, says. I willingly give way.

Marriage (Same Sex Couples) Bill

Debate between Lord Pannick and Lord Cormack

Monday 8th July 2013 Lords Chamber

[Lord Pannick]

I respectfully object to the suggestion that a Bill with these purposes and valuable effects should distinguish between same-sex marriage and opposite-sex marriage and necessarily imply a division between them. That is what I object to.

[Lord Cormack]

My Lords, I added my name to the amendment because I felt that it was not churlish, derogatory or demeaning. In fact, it indicates that those of us who have profound misgivings about the Bill have done all that we can to acknowledge the validity of the arguments of those who are its champions. All the amendment does is repeat certain words that are in the Bill. The noble Lord, Lord Pannick, or any other noble Lord can talk until he is blue in the face without altering the fact that there is a difference between a same-sex marriage and a marriage between a man and a woman. All this amendment does is acknowledge that. It concedes the word “marriage”.

--- Later in debate ---

[Lord Cormack]

My Lords, I will not detain the House long. I do not disagree with what the noble Lord, Lord Dear, said, but I seek to sharpen up his amendment for two reasons. First, I have been approached by many people during the passage of the Bill through your Lordships’ House who believe very firmly that marriage is between a man and a woman and wish to see that recognised at all appropriate points, but have themselves not been able necessarily to sustain marriage for life.

It is a fact of life—the noble Lord, Lord Dear, briefly alluded to it—that many marriages do not stay the course. There are many in your Lordships’ House who have been married more than once. That does not in any sense weaken or invalidate the marriage, or make those noble Lords who have had more than one marriage believe less in marriage as an institution. But we live in a very different world from that of 1866 cited by the noble Lord, Lord Dear. Even within the clergy, I have many good friends, some highly placed within the Church of England, who have had a marriage that has come to grief. Some have remarried and some have not. In that spirit of tolerance, understanding and generosity, to quote my noble friend Lord Deben in a previous debate, it would be more inclusive just to omit those words. That does not in any sense weaken the thrust of the amendment of the noble Lord, Lord Dear; it merely brings it up to date and recognises the world in which we live.

My second amendment is slightly more playful in that I would take away the words “in a democratic society” because this belief is worthy of respect in all societies, democratic or not. We recognise that. It is certainly not an amendment to an amendment that I would press. However, I must say to your Lordships’ House that those of us who believe in traditional marriage but are not in any way opposed to equality—one must repeat that, as one has many times during these debates—feel that including something along these lines in the Bill could not do any harm and could be of some reassurance to many people outside this House. They are the sort of people referred to by the noble Lord, Lord Dear, and by the noble Lord, Lord Phillips of Sudbury, in what I thought was a very moving speech in an earlier debate this afternoon. I beg to move the amendment to the amendment.

[Lord Pannick]

My Lords, nothing in the Bill prevents the noble Lords, Lord Dear and Lord Cormack, believing and expressing a belief in so-called traditional marriage. Contrary to the speech of the noble Lord, Lord Dear, there is nothing in the Bill that “coerces” people to “jettison”—the noble Lord’s words—their beliefs in any of these respects. This has repeatedly been explained by noble Lords and to noble Lords during our debates on the Bill. If, as the noble Lord, Lord Dear, suggests, millions of decent people have concerns, they are completely unfounded and it does no service to them whatever to give credence to such basic misunderstandings.

Marriage (Same Sex Couples) Bill

Debate between Lord Pannick and Lord Cormack

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.

Marriage (Same Sex Couples) Bill

Debate between Lord Pannick and Lord Cormack

Wednesday 19th June 2013 Lords Chamber

[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—