Marriage (Same Sex Couples) Bill

Lord Phillips of Sudbury Excerpts

Monday 24th June 2013 Lords Chamber

This is a proportionate and necessary amendment to the Bill.

[Lord Phillips of Sudbury]

My Lords—

[Baroness O'Loan]

It provides an accommodation of competing rights, no more, no less. I apologise to the noble Lord, Lord Phillips, but I was two words from the end.

[Lord Phillips of Sudbury]

I was anxious that the noble Baroness should not get to the end before I could ask this question. I am sorry if it is a bit technical, but it seems to be relevant. The wording of the amendment, with which I have sympathy, is that the guidance must be,

“in accordance with the tenets of the relevant religion or religious denomination”.

It not abundantly clear to me how one would determine what the tenets of a religion are. If the relevant religion were Christianity, different denominations of Christianity take a different view on these matters. Does the amendment in fact cover all the circumstances that the noble Baroness and her co-movers are concerned about? To make it clear, one can imagine some debate over quite what the tenets of Christianity are as time progresses. An extreme Christian sect might take a very untypical view. A Quaker school, for example, might be well ahead of the Christian pack. Does the noble Baroness think that the amendment covers that potential tension?

[Baroness O'Loan]

My Lords, I thank the noble Lord for the question. Having read the previous guidance, most recently this morning, I would not anticipate that the guidance would actually specify the tenets of the individual religion. What I would anticipate is that it would have the provision that education must be provided in accordance with the tenets and that there would be, as the right reverend Prelate has provided, a structure of registration and designation of schools, so that there would be a quality assurance process underlying it. If the amendment is not sufficiently concise, I am sure that it will be possible—unless it is pressed to a Division at this stage—to encourage the Minister to respond with a government amendment, which would provide precisely for what is required.

[Lord Elton]

I am so sorry, but I want to ask the noble Baroness a question relevant to the one she had been asked, because it does not seem to me that there is a problem. My noble friend Lord Phillips of Sudbury asked what happens if different denominations have different views but the amendment requires it to be,

“in accordance with the tenets of the relevant religion or religious denomination”,

so it is merely relevant to the school in question.

[Lord Phillips of Sudbury]

If I might just elucidate, I said that it was not always clear what the tenets of the religion are, quite apart from the denomination.

[Baroness O'Loan]

The current guidance provides that schools are entitled to take their religious beliefs into account in providing sex and religious education, so there is a tradition for this and it may be taken forward from that perspective.

Marriage (Same Sex Couples) Bill

Lord Phillips of Sudbury Excerpts

Monday 17th June 2013 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, I did not speak at Second Reading, but I found myself in agreement with almost all those who spoke against the Bill. In particular I agreed with the speech of the most reverend Primate the Archbishop of Canterbury. My noble friend Lord Quirk also made a short and very effective speech. Like other noble Lords, I have received well over 100 letters from those who feel very strongly about the Bill; indeed, some have written to me more than once. They differ from the sorts of letters one gets on these occasions in that they are all clearly written from the heart. Equally, there are those who feel strongly the other way. I have received only a few letters from them. I do not know why there should be so few compared with the great mass of letters on the other side, but I have great sympathy with their views.

What has been missing in all this has been any attempt to find some sort of compromise between the two positions; in other words, a way of giving the gay community what it so obviously desires, without destroying the meaning of the word “marriage”. It seems like many weeks since I received a booklet which does exactly that. It is issued by ResPublica and written by Professor Roger Scruton. It is extremely well argued and, in my view, provides exactly the sort of compromise that is needed. I do not think it was mentioned on a single occasion at Second Reading, but it should have been.

It was with great joy, when I arrived in the House half an hour ago, that I found an amendment tabled in the name of my noble friend Lord Hylton and the noble Lord, Lord Cormack, expressing exactly the view which I would have expressed if I had spoken at Second Reading. I have not had time to develop the argument in support of the amendment but, with your Lordships’ permission, I will read just one short paragraph from the ResPublica British Civic Life document, which is entitled Marriage: Union for the Future or Contract for the Present:

“To the Churches, we recommend that they recognise that the demand for same sex marriage comes from a serious desire for permanent loving homosexual relationships to be recognised and embraced by society, by Christianity and by other faith groups. The demand for secular marriage equality is in part an appeal for religious acceptance, which the Government’s proposals cannot offer. We believe the Churches should consider offering not civil partnerships but civil unions”—

exactly what this amendment proposes—

“to same sex couples a celebration and a status that recognises a transition from partnership into permanence. And the churches and other faith groups should therefore grant civil partnerships a religious celebration and recognition making them a civil union. Churches should recognise not just that homosexual persons are as they are, but they also are owed recognition of the permanent relationships they choose”.

It is for those reasons that I will support this amendment as strongly as I can and hope that it will at least be considered by the Government.

[Lord Phillips of Sudbury]

My Lords, at Second Reading I suggested that the term for a same-sex marriage might be “espousal”, but I accept the point made by the noble Lord, Lord Hylton, that it is an archaic or anachronistic word. I also said at Second Reading that I intended to sound out the House on whether there would be much support for that nomenclature, and now I have to say that there was not sufficient support for me to feel that bringing it forward at this stage would be the right thing to do.

The reason that I want to persist in the suggestion that there should be a different word for same-sex unions is largely to do with reconciliation. This measure has excited more public interest and reaction than any other measure that I can recollect in recent times, and there is undoubtedly a widespread feeling among a large mass of our fellow citizens—decent people who are not remotely driven by prejudice—that, as the noble Lord, Lord Cormack, and I said at Second Reading, there is a fundamental physical difference between the two unions. It is not a difference either of status or esteem; nor a difference of stability or love, but none the less, it is a fundamental difference. What is quite interesting is that a number of the letters I have received have taken me up on the point that not all heterosexual unions have procreative potential. If a couple are coming together aged 96, there is not likely to be procreative potential. The same goes if one of the couple is unfortunately sterile. However, that escapes the point that same-sex unions can never have procreative potential.

Those who support using exactly the same language will ask, “What’s the point; what’s the difference; what are you trying to do?”. All I am trying to do is to reconcile the bulk of this country to this important, evolutionary change in our law. I sincerely believe that refusing to compromise in the matter of nomenclature would be a big mistake. After this measure has become law, we do not want a rumbling continuance of objection which could conceivably crystallise and increase. I am, therefore, still in favour of a different word. I would be willing to accept “union” which the noble Lord, Lord Hylton, suggested, though I would prefer the word “matrimony”, proposed in Amendment 46—which is part of this group—in the name of the noble Lord, Lord Armstrong of Ilminster. So I hope that we can find a compromise that will give honour to both sides—if I can call them that—although there are infinite shades of grey between the two extremes.

[The Marquess of Lothian]

My Lords, I strongly support what my noble friend Lord Phillips of Sudbury has said. In my speech at Second Reading, I said that there is a great difference between a definition in law and the real meaning of words. This is one that troubles me considerably. I agree with him that Amendment 46, in the name of the noble Lord, Lord Armstrong of Ilminster, suggests a way forward particularly because the word “matrimony” in the Oxford English Dictionary derives from the Latin word “mater”, which means “mother”, and therefore has the meaning of children related to it. Whether or not a marriage produces children is, in a sense, irrelevant. The meaning of the word is there, and it is there for a particular purpose.

I have found it very difficult to work out the best word to use. I have problems with the equal use of the word “marriage”. I personally believe that marriage is between a man and a woman and, although I shall certainly obey the law, whatever it says, I shall never cease to believe that. Whatever we do in terms of same-sex marriages, we are not creating the same meaning, but a legal definition which will be applicable in this country and in this country only. We could be creating enormous problems of definition if, for example, a couple who, believing that they were married under this piece of legislation, were to go to another country which did not accept that definition of marriage—and Russia comes to mind, given what its parliament did the other day.

I hope that the Government will look closely at this to see whether there is a way of finding a distinction between what I call “real marriage”; what in some amendments is called “traditional marriage”; and what my noble friend Lord Cormack has called “union”. I am not sure that any of these words is quite correct, but I think we need to ensure that when this legislation is through, rather than continuing to have this divisive and abrasive distinction, we can have two definitions which can live happily alongside each other. In the course of debating this legislation, I hope we will come to that conclusion.

--- Later in debate ---

[Lord Lester of Herne Hill]

I will do my best. As the noble Lord, Lord Elystan-Morgan, has said, concepts of marriage have not been static in England or elsewhere. During the past three centuries, Parliament has made changes to the status of marriage. What was once traditional and discriminatory is no longer enshrined in English marriage law. The Bill is a further step in removing unjustifiable discrimination, not against Catholics, Protestant dissenters or Jews, but against homosexuals.

I think my noble friend Lady Williams will concede that gay and lesbian couples are just as able as heterosexual couples to love each other in long, enduring relationships. They are just as able to bring up children in the way good parents do, in lifelong relationships. Some noble Lords will have personal experience of their children in gay and lesbian relationships doing precisely that.

Traditionally, the law governing the registration of marriages was piecemeal, restrictive and discriminatory, beginning with the Act of Uniformity 1662 and Lord Hardwicke’s Marriage Act 1753, which abolished common-law marriages. In the 19th century, Parliament created exceptions, one by one, to that discrimination. Most recently, exceptions were made under the Places of Worship Registration Act 1855, not only for Protestant and Jewish dissenters but for other denominations and bodies, theistic and non-theistic, including Buddhists, Jains and Muslims, whose premises are registered for religious worship and the solemnisation of marriages.

Under Scots law, as the noble and learned Lord, Lord Mackay, knows well, marriages by cohabitation and repute could be contracted in Scotland until as recently as 2006. They were still regarded as marriages, even though they were irregular. A traditional marriage could also include a marriage between first cousins, an arranged marriage or a strange thing called a levirate marriage.

Until the Civil Partnership Act 2004, loving gay and lesbian couples could not get legal recognition for their enduring relationship. Now, they may do so. The Act has worked very well, even though it was strongly opposed at the time. However, even though the Civil Partnership Act gives them equivalent rights and duties to those of married couples, it forbids them from marrying and the words “civil union” add nothing to the notion of civil partnership. That is why it is a lesser concept.

A year before the Civil Partnership Act became law, there was an important case—which many of your Lordships will have heard of—Goodridge v Department of Public Health, in which the chief justice of the Supreme Judicial Court of Massachusetts, Margaret Marshall, presided. That court upheld the right to gay and lesbian marriage, rejecting the argument that some of your Lordships have made today and elsewhere, that civil union or civil partnership was good enough. The chief justice explained why, on grounds of due process and equal protection, the state did not have a rational basis for denying same-sex couples marriage. A majority of that court agreed that same-sex couples must not be assigned second-class status, which is what I suggest would be accomplished if any of these amendments were accepted.

The other place has formed a similar view about the need for same-sex couples to marry, as have the Government. I know of no judgment of our courts or of the European Court of Justice that suggests the need for amendments of this character. They would suffer from the serious vice of encouraging a belief in a need for a second-class status for same-sex couples to be enshrined in English law. If the House divides now or hereafter, I will have to vote against any of them.

[Lord Phillips of Sudbury]

Perhaps my noble friend might refer back to what the noble and learned Baroness, Lady Butler-Sloss, asked him, which was whether he objects to Amendment 46, in the name of the noble Lord, Lord Armstrong of Ilminster, which would give the term “matrimony” to a marriage between a man and a woman but would allow marriage to same-sex couples.

[Lord Lester of Herne Hill]

I have already explained my position, which is the same as the judgment I just referred to: that when it comes to marriage, gay and lesbian couples are entitled to total equality to that of opposite-sex couples.

Leveson Inquiry

Lord Phillips of Sudbury Excerpts

Friday 11th January 2013 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I rise as the tail-end Charlie in what has been a really admirable debate. It has demonstrated, if demonstration is needed, the extraordinary wealth of experience in this House because virtually every vantage point has been represented. I, too, commend the noble Lord, Lord Trees, on his maiden speech, not least because he delivered it without notes. I look forward to his contributions in the future.

Briefly, because it needs to be said, I must express my admiration for the press as a whole despite the miserable events to which the Leveson inquiry relates. I am someone who would say that, by and large, we have an admirable press that does admirable work. We should acknowledge in all humility that without the bravery of the Daily Telegraph, our own appalling failings would not have seen the light of day as soon as they were. It was a classic example of what is best in the press and, indeed, why there is a degree of tension between us as politicians and the press.

I have been involved with the press over many decades. I was lucky enough to be a trustee of the Scott Trust, which owns the Guardian, the Observer and a whole fleet of regional newspapers. I presented current affairs programmes for London Weekend Television and Anglia Television, and as a solicitor I have had a good deal of professional involvement, usually acting for members of the public and politicians who have been defamed by the press. I think that I have had a fair old view of the different issues and the practical problems that have to be confronted and dealt with.

We have all said how grateful we are to Lord Justice Leveson because his task was a formidable one which he has discharged formidably. In particular, his proposal vis-à-vis an ethical code, which has been referred to by other noble Lords, is at the heart of what should be a new beginning for the press, as indeed is the conscience clause that will underpin it and the whistleblowing protection which is also vital for the future. I happen to agree with those noble Lords—I think it is the majority—who have said, reluctantly, that statutory underpinning may be necessary. It is necessary and I have to say, too, that I do not believe that it is the thin end of the wedge. If I felt that, I would not go along with it. However, I believe that it is an essential coping stone to the new aegis. I am sure that, if and when the time comes, we will debate the matters with wisdom and, I hope, reach a sensible conclusion.

There is one main issue on which I take a different view from Lord Justice Leveson, which is over the role of the law in all this. In paragraphs 47 and 48 of the summary of his report—a 46-page summary, it must be said—he rejects the idea that the powerless state of affairs revealed by his inquiry was,

“caused by a failure in the operation of the criminal law”.

He goes on to add that:

“More rigorous application of the criminal law, however, does not and will not provide the solution”.

I would not say that it provides the solution but I do believe that a much more vigorous implementation of the laws we have, let alone the laws we might have, is essential. Most of all, it is essential for the press itself, as everybody agrees that it has reached a low ebb. It is vital that restoration of public trust in the press—which is so important, as indeed is public trust in us, the police and so on—must reside in the fact that the laws that we have must be implemented. However, they are notably not implemented.

It is not a fair question to put at this stage to my noble friend the Minister who will sum up, but it would be interesting to know how many provisions of the Regulation of Investigatory Powers Act 2000 or of the Data Protection Act 1998 have ever been enforced against the police. It is a besetting sin of this Parliament that we legislate as if there is no tomorrow—14,000 to 15,000 pages of new statute law a year with only 2,000 or 3,000 pages of repeals—and then take no interest in whether that law is implemented; or, if it is, with what consistency or results. I put it to the Minister that although I believe that Lord Justice Leveson has not sufficiently recognised the role of enforcement in his otherwise wise report, the Government should look at it very closely and intensely.

One instance which Lord Justice Leveson does refer to in his report is after Clive Goodman was prosecuted and convicted in 2006 and the police decided not to commence an inquiry because they were distracted by the more important matter of terrorism. It simply is not good enough that other priorities completely drive such an important estate as the press off the playing field, so to speak, in a case like that. It was a number of years later, and only after further revelations in the Guardian and the New York Times, that the police came back to this. I put this all on a par with the extraordinary and grotesque failure of HMRC to enforce our tax laws—with, again, awful results in terms of public confidence and for the Exchequer—and the awful failure of our regulatory authorities to enforce financial services legislation, which is abundant. I cannot exaggerate the huge importance of the impact. I believe that a few exemplary prosecutions and convictions, particularly of the bosses of the press—not just the little guy—would be galvanic. They could not be ignored. They would be noted. They would uphold and enforce the vast majority of journalists who want to do a good, honourable and ethical job. At this time of night, that is my main point and I am grateful for the chance to have this debate today.

[Lord Thomas of Swynnerton]

Before the noble Lord sits down, perhaps I might ask him why he can praise the press so warmly in the early stages of his speech, whereas very few newspapers and very few media give any attention at all to the doings of this House or the other place.

[Lord Phillips of Sudbury]

I think I heard the noble Lord: why do I praise the press when they give so little attention to the doings of this House? I am not sure that I agree with him that they give so little attention to this House and the other place. It is true that some of the red tops give precious little consideration but then they give precious little consideration to anything other than—I was going to be rude—

[Noble Lords]

Go on!

[Lord Phillips of Sudbury]

All right—boobs and bottoms. The serious press does give reasonable coverage. We may not like the manner of it, but I would not go that far with the noble Lord at all.

Welfare Reform Bill

Lord Phillips of Sudbury Excerpts

Tuesday 14th February 2012 Lords Chamber

[Lord McKenzie of Luton]

My Lords, when our amendments were considered in the other place, the Minister, Chris Grayling, emphasised that the scope of the support group had been increased for cancer patients and that the consultation, following work with Macmillan Cancer Support and Professor Harrington, carried a presumption that someone with cancer will be in the support group. In an exchange with my right honourable friend Stephen Timms, the Minister also confirmed that it was planned to have a simple system that enables a medical professional to indicate whether someone has sufficiently recovered to make a return to work. That obviously is to be welcomed. It clearly goes with the grain of the amendment in lieu in the name of the noble Lord, Lord Patel, which has our support. He has set out the arguments clearly and the support of noble Lords would bring relief to up to 7,000 people who have or have had cancer.

We recognise that the Minister cannot pre-empt a consultation, but we hope that the Government can accept the thrust of what the noble Lord, Lord Patel, proposes. If he cannot, we hope that the noble Lord will test the opinion of the House. Bringing relief to some 7,000 cancer sufferers is a worthy endeavour. Of course, it does not of itself provide help to the hundreds of thousands who are adversely affected by the arbitrary time limit in contributory ESA but that should not prevent us bringing some relief to this group where that is possible.

[Lord Phillips of Sudbury]

Did the noble Lord say that this would apply to 7,000 people?

[Lord McKenzie of Luton]

I understand that 7,000 is the figure. The noble Lord, Lord Patel, is nodding in assent.

Health and Safety: Common Sense Common Safety

Lord Phillips of Sudbury Excerpts

Thursday 25th November 2010 Lords Chamber

[Lord Black of Brentwood]

My Lords, I am delighted not only that we have an opportunity of an early debate on my noble friend’s compelling report but that I have the privilege of following the excellent maiden speech of my noble friend Lord Faulks. I should like to address the report’s recommendations that would have an impact on the media. I declare an interest accordingly as a director of the Telegraph Media Group and chairman of the Press Standards Board of Finance.

My noble friend’s report makes an unanswerable case for the reform of the system of conditional fee arrangements that are the genesis of the compensation culture. I am sure that those who constructed the Access to Justice Act 1999 that ushered in those arrangements had the best of intentions, but the law of unintended consequences, as the report perceptively highlights, has had a pernicious and deeply damaging impact on freedom of expression. I would go so far as to say that, even bearing in mind the highly unwelcome growth of the so-called super-injunction, I believe that there is currently no more serious threat to media freedom or the public’s right to know than the unfettered use by claimant lawyers of CFAs backed by the toxic combination of 100 per cent success fees and after-the-event insurance.

First, there is the question of cost. It is not uncommon, as evidence submitted to Lord Justice Jackson’s review revealed, that libel and privacy actions against newspapers end up with damages of as little as £5,000 with a cost of 20 times or more that amount. That is a frightening prospect, which could put some small publications out of business. I cannot overstate the deeply difficult commercial realities for much of the media. The perfect storm of profound structural change with a severe recession in advertising has left many publications battered and bruised. Too many local papers—the engines of local democracy—have closed and many more may do so. The issue of CFAs could be a significant component in that.

Even more important is the chilling impact on free speech. It is now too common that newspapers will fail to defend a claim, no matter how spurious it might be or how important the issue, because they cannot afford to take the risk. CFAs have become a seriously distorting factor in the editorial process, with issues often avoided because of fear of the consequences. The role of scrutineer, which is inherent in a free press, is undermined. My noble friend’s report rightly states that,

“the Government should adopt Lord Justice Jackson’s proposals as soon as possible”,

to end the recoverability of CFA success fees and after-the-event insurance policy premiums, which Lord Justice Jackson described as,

“the most bizarre and expensive system that it is possible to devise”.

I wholeheartedly agree with that, but my great concern is the question of speed.

The need for swift and decisive action is very real and urgent because the provision of news and information to the public is at stake, but for far too long there has been masterly inaction. The first government review of CFAs took place as long ago as 2003. Since then, there have been countless reviews about the crippling impact of the regime including annual official consultations, research, consultation papers and, to the best of my knowledge, at least two Select Committee inquiries. The first of this year’s crop of consultation papers, which seem to come round as frequently as the first cuckoo in spring, devoted an entire appendix of seven densely written pages to covering information about seven years of inquiries about proposals for CFA reform.

Your Lordships’ House backed interim measures, which did not require primary legislation, to deal with the issue of CFAs in the dying days of the previous Parliament, but the proposals failed at the final hurdle in another place. Now, as my noble friend has said, we have another review seven years after the first. The irony is that, with the exception of some of the claimant lawyers who have a vested interest, everyone seems to agree. Lord Justice Jackson supports reform. The Ministry of Justice and Select Committees have supported reform. Much of the senior judiciary—including the Master of the Rolls, who gave such a warm welcome to Mr Justice Jackson’s review—and the regional and national media support reform. This House supported reform. Yet we are still waiting as the problems grow ever more acute.

The latest consultation paper envisages that changes to the law and to civil procedure will be necessary to introduce these vital reforms. Encouragingly, the new business plan from the Ministry of Justice that was published recently states that the Government will bring forward the necessary primary legislation in the spring of 2011, immediately after implementation plans have been finalised in the light of the consultation response. As the Prime Minister rightly says in his foreword to my noble friend’s excellent report,

“Now we need to act”.

After seven years of prevarication under the previous Government, can we have a clear commitment to a timetable and an assurance that the necessary legislation will not be further delayed? There is a great deal at stake.

[Lord Phillips of Sudbury]

Can I ask the noble Lord to comment on the proposal in the Jackson report to replace conditional fees with contingent fees, whereby the plaintiff’s lawyer would take a slice of the damages?

[Lord Black of Brentwood]

It seems to me, my Lords, that that would be an admirable way forward. The Jackson report has had widespread support from within the media and I hope that it is implemented as soon as possible.