Marriage (Same Sex Couples) Bill

Debate between Lord Phillips of Sudbury and Lord Elystan-Morgan

Monday 8th July 2013 Lords Chamber

[Lord Elystan-Morgan]

My Lords, I respectfully disagree with the noble Lord, Lord Deben, who made an excellent speech. Although I agree with his basic submission, I disagree with his argument that this is a wrecking amendment. It is not a wrecking amendment, but it is an amendment that, if carried, could defeat the whole purpose and objective of this legislation. It is on that basis that we should look at it this afternoon.

The issue is important but simple: whether you elongate the institution of marriage to include same-sex marriage as one indivisible institution, or draw a dividing line through it—a frontier line that will create two categories of marriage, one a gold standard and one a standard of baser metal. That is the issue.

There are three arguments that can be put very briefly in favour of opposing the amendment and accepting the elongated institution argument. First, marriage has passed through many different phases, definitions and concepts in the past 200 years. Before the 1836 legislation, all people who wanted to get lawfully married had to be married in the Church of England. Many, like my forebears, found that extremely distasteful but that was it—it was a fait accompli. Before the Married Women’s Property Act 1882, a married woman could not hold property; it became her husband’s upon marriage. All that she could cling to was what was called her paraphernalia. That changed everything. Before 1991, where two persons were married and no separation order had been made by the courts, a man could rape his wife and she would have no redress. Do you think that did not change the institution immensely? One may point to a number of other phenomena that have in total, and in many cases individually, changed the situation fundamentally. That is the first argument: there have been changes in the law that have fundamentally metamorphosed the whole concept of marriage.

Secondly—I say this with very great diffidence as a Welsh Presbyterian—there have been changes in the spiritual world as well. The Book of Common Prayer justifies marriage in three ways: first, for the procreation of children; secondly, so that the temptations of adultery and fornication should be removed; and thirdly, so that there should be a lifelong, devoted, loving partnership between two people. As far as the first is concerned, you might say that people who are beyond child-bearing age are logically in breach of that precept, but nobody in his or her senses would argue that. However, I know many young people who, for professional reasons, have married on the basis that they will not have children. That is the clearest understanding and agreement between them. Do you say that their marriage should be placed in some hermetically sealed compartment on that account? I would not argue that. Essentially, is one not justified, to a large extent, in saying that the essence of marriage today for so many people is that lifelong commitment of love, affection and loyalty? If that be the case, one can say, yes, in the spiritual world, too, there have been massive changes that have been accepted by society.

There is a third justification. Many Peers have already spoken of the days before 1967, when homosexuality was a very grave offence. I remember well over 60 years ago, when I was a young law student, going along to the assizes and seeing the local vicar, the nonconformist minister, the accountant, the solicitor and many similar people of high standing in society, all being sent to prison for four or five years for what we would today call “lavatory cases”. I remember thinking, “There must be some better way of dealing with this problem”.

I have argued with myself a great deal over the past few weeks as to where I stand in relation to this matter. I have asked myself whether this change—the concept of single-sex marriage, which is of course a massive change—is of such magnitude as to demean and in some way unsettle and undermine the concept of marriage. I have asked myself whether it any way demeans or changes my own marriage. I was supremely happily married for 48 years to a very splendid lady, who died six years ago. I am sure that if she were alive today, she would say to me, “Yes, there is a third argument: the argument of reasonableness and tolerance”.

As a community we have treated these people abominably, in a way that is a disgrace to our religion and to so many things that we believed we stood for as a community. Now we have a chance to make up for that, and we will do exactly that by elongating and not dividing.

[Lord Phillips of Sudbury]

My Lords, I apologise to my noble and learned friend Lord Mackay of Clashfern. British Rail prevented me from being here when he opened this debate. However, I have had the advantage of long discussion with him concerning his reasons for putting forward the amendment and I support it.

This is not an easy debate. I am sure that there are many in the House now who sway this way and that. The issues are highly complex and diverse and we have heard some outstanding speeches today. However, I disagree totally with one of the things that my noble friend Lord Fowler said when he put it to the House that if we passed this amendment it would add directly to homophobia in this country. If I was even a little in agreement with him on that, I would not be standing and speaking here. However difficult it is to assess the reactions of the great people of this country to matters such as this, far from increasing homophobia, Amendment 1 could ease the passage and consequences of this profoundly important measure for the millions of our decent, not prejudiced and not homophobic countrymen who currently believe that we may be foisting on them what they would call an untruth—they might call it dishonest or a public relations exercise.

Whether we like it or not, millions of our decent fellow-citizens will agree totally about same-sex couples having the same esteem, love and life-long commitment, and so on, but, as has been said many times, and so one need not elaborate on it, they believe that unions between same-sex couples and opposite-sex couples are different and that they have profoundly different potential consequences. To say that many opposite-sex couples are disabled, too old or disinclined to procreate is not an answer to the fundamental factual and real difference. That is where, I repeat, millions of our countrymen sit at this time. The noble Lord, Lord Pannick, talked about an inferior status, but they do not want to create anything of the sort. Nobody is interested in belittling the commitments made by homosexuals; there are a few, but, I maintain, not many. However, what they do say is, “Why are we pretending that it is exactly the same when it is profoundly different in one particular?” Why not use the word “marriage”, since that is the important thing, and then have the qualification? It is not even as though the qualification is very novel: it is in the Title of the Bill as we sit here. I believe that in time—and I do not think that it will be a long time—people will concentrate on the word “marriage” and the bracketed bit, frankly, will fade into lesser and lesser significance as the public mind progresses.

One might ask, “Why have that wording?” I actually believe—this is the nub of it—that we will ease the passage of this important measure if we put Amendment 1 in the Bill. We will salve the present discontent that so many people feel about the Bill as it stands. That is why I shall vote for Amendment 1.

Enterprise and Regulatory Reform Bill

Debate between Lord Phillips of Sudbury and Lord Elystan-Morgan

Monday 18th March 2013 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I apologise to my noble friend the Minister for not raising this rather gritty little point before this debate, but of course this is all hot off the press. There could be a lacuna in this amendment. It requires the approval of Parliament for any amendment to the royal charter or dissolution of the recognition body. However, might it be possible—and one is thinking of possibly years hence—that the newspaper industry could decide not to dissolve these arrangements but simply to sidestep them by establishing a parallel and separate body? I would like to have the answer to that question, because I think it is germane.

[Lord Elystan-Morgan]

My Lords, I wholeheartedly applaud the intentions of those parties that have brought about this compromise and their integrity. I make that observation, however, subject to one factor. If I am indulging in a pettifogging lawyers’ argument then I apologise if it has no substance. However, if I happen to be right, it will be something that I can regale my grandchildren about for some time to come. A royal charter is, of course, a sovereign prerogative. How far can that prerogative be circumscribed, if at all, by any decision of either or both Houses of Parliament?

Let me test my doubt in this way. The creation of Peers, as we well know, is the prerogative of Her Majesty the Queen. Any decision taken by either House to circumscribe that authority to the slightest degree would be invalid. If I am correct in that submission, does it not apply to this situation equally so? In other words, any decision by both Houses of Parliament to circumscribe that absolute, sovereign royal authority will be less than valid. It may well be, and probably would be the case, that Her Majesty would graciously surrender her prerogative, but that is a different matter. I am raising this point now as a very narrow, legalistic point, and I would be grateful if I could be told exactly what the constitutional answer to it is, if you please.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Phillips of Sudbury and Lord Elystan-Morgan

Tuesday 10th January 2012 Lords Chamber

[Lord Phillips of Sudbury]

I am not sure whether I am speaking for these amendments or against them. I started the day at 3 o’clock our time having breakfast in Doha, and was rather choked when eating my toast when I read in the Gulf Times about the King’s research into the financial effects of parts of this Bill. I am sure that my noble friend the Minister will ponder those extremely hard.

I wanted to say a brief word about the important matter raised by the noble Baronesses, Lady Lister and Lady Howarth, and many others, of the prospect of many more of our fellow citizens having to represent themselves before courts and tribunals. I started life as a young lawyer in a country general practice, spending a great deal of my time in magistrates’ courts. My principal was part-time clerk to five country courts. All I can say is that you really do not need a pre-impact assessment of the effect on a would-be proponent or accused, whether before a magistrates’ court or a tribunal. You do not need to do any research to know the effect of having to go into battle without any legal help. That is particularly acute, obviously, with less confident and articulate people, but it is not confined to them. My experience is that you never know how many people are deterred from taking or defending proceedings because they cannot have legal assistance, because of course they just do not tip up; they do not pursue their claim or defend the claim made against them.

I know that my noble friend has thought long and hard about this and has a very difficult task in dealing with parts of the Bill, but the other thing that is easily forgotten is that if someone thinks that they are going to be opposed on the other side by a lawyer, that really is a finisher for the course that they adopt on those proceedings. I make those points merely to try to help the deliberations of the House.

[Lord Elystan-Morgan]

My Lords, I find myself in agreement with practically everything that has been said in this debate. The amendments go to the very heart, core and kernel of the Government’s thinking on this part of the Bill. I would even put the matter higher than most noble Lords have put it. They have put it that there are unintended consequences that now have to be considered. I would put it rather higher than that and say that, in dealing with the sensitive and almost sacrosanct area of the administration of justice and with the question of seeking to save funds at a time when they are desperately needed by the public purse, it is nothing short of reckless to proceed in circumstances where there is no certitude of success in either of those matters.

What is recklessness? Assuming that one takes a fairly lay interpretation, it is a situation in which a risk is created and the person creating that risk either closes his or her mind completely to the risk created or, appreciating that the risk is there, still takes it. That is recklessness. I hope that I do not use intemperate language in this or any discussion in this House. It is right that the Government should ask themselves, in a situation in which the onus of proof is so immense in relation to the area of the administration of justice and saving money for the public purse, whether sufficient consideration was given to as many of the risks as can be quantified—and I appreciate that some of them are very difficult to quantify.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Phillips of Sudbury and Lord Elystan-Morgan

Wednesday 16th February 2011 Lords Chamber

[Lord Phillips of Sudbury]

No; no more. That is quite enough. For those reasons, I will vote against the amendment of the noble Lord, Lord Rooker.

[Lord Elystan-Morgan]

My Lords, the noble and learned Lord, Lord Lloyd of Berwick, speaks from the very heart of reason and common sense when he says that the real role of this House, in a situation such as this, is to invite the House of Commons to think again. That, however, does not mean that that should happen only once. In the circumstances of this case, as has been so clearly shown by the noble Lord, Lord Lawson, the House of Commons has thought twice about the matter and come to totally different conclusions—although in both cases it happened to reject the proposition that we are discussing. In the first instance, the other place voted by 540 votes against and 31 votes for a threshold in the referendum. Last night, the vote against was carried by about 65 per cent to 70 per cent. The curve is clearly pointing in one direction. But be that as it may, one cannot say that the other place is expressing a consistent and monolithic view on the matter. That does not in any way defeat what the noble and learned Lord, Lord Lloyd, is saying, but to some extent it qualifies it in the special circumstances of this case.

One can summarise the issue in this way. We are dealing here, I think, with a balance of risks. The noble and learned Lord, Lord Wallace, is perfectly correct to say that when you invite the public to partake directly in a decision such as this, there is a risk that Parliament could be seen—in some way or other, without intending it—to be spurning that decision. That is a real risk. No one spoke very much about that risk in 1975 when the referendum was indicative or consultative. I have read the Act and there is clearly no suggestion that that referendum would have been mandatory in any way at all.

I urge noble Lords to consider another risk. A derisory turnout would deprive this vote of any sovereignty or realism as an arbitrement of the people. That is a massive risk. It is very unlikely to happen. It does not matter a great deal which of these proposals one chooses; I tabled one myself which might not have been quite as meritorious as the one now before the House. They are insurances against a failure that is unlikely to happen, but which could happen. A person insures his house against fire not because he knows that it is going to be destroyed—unless he has criminal intentions—or because he believes that it is likely to be destroyed. He does so because he considers that there is a slight chance that it could be destroyed. The more one thinks about something, the less likely one is to be prepared to take even the slightest risk. I am sure that that is our attitude to the families we love. Here the risk is small, but it can be covered by a small, modest and reasonable premium.