Marriage (Same Sex Couples) Bill
Lord Wallace of Tankerness Excerpts(11 years ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I thank my noble friend Lady Cumberlege for moving the amendment, which has undoubtedly generated a good debate. Amendments 3 and 11 would provide a conscience clause for marriage registrars regarding their duty to conduct or participate in marriages of same-sex couples on the basis of a religious or other belief about such marriages. Specifically, Amendment 3 would amend Clause 1 to provide that for registrars who are already in post once this Bill comes into force the duty to solemnise marriages is not extended to same-sex couples. Amendment 11 removes “registrar” from the definition of “person” in subsection (4) of Clause 2 to protect registrars from being compelled to be present at religious same-sex marriage ceremonies, no doubt in circumstances where a particular religion has opted in. The amendment would apply only to registrars participating in religious ceremonies, not to the Registrar General or superintendant registrars.
This issue was much debated in Committee. Since then, I have had the opportunity, along with my noble friend Lady Stowell, to meet my noble friends Lady Cumberlege, Lord Elton, and Lady Williams, and the noble and learned Lord, Lord Lloyd of Berwick, to discuss these issues. As we indicated in our response to the Joint Committee on Human Rights, it is important to say that it did not come to a final conclusion on this issue, although it recommended that the Government reconsider the issue with a view to bringing forward amendments in your Lordships’ House to put in a transitional arrangement to deal with the concerns of those in post as marriage registrars. We have considered this position but, as I shall set out, we do not see a need for amendments to provide a conscience clause for marriage registrars, even on a transitional basis.
I therefore wish to reassure your Lordships’ House that the points made in the debate, particularly those made by my noble friend Lady Williams of Crosby about the impact on particular religions, have been considered. I admit that I felt slightly uncomfortable because the strongest support for the Government’s position perhaps came from two eminent lawyers, my noble friend Lord Lester and the noble Lord, Lord Pannick, and I wondered whether I was being too lawyerly about this issue. I tried to take on board the comments of my noble friend Lord Deben about being charitable and thinking generously but, at the end of the day, even with charity, there is an important matter of principle here. Marriage registrars are public servants performing statutory duties on behalf of the state. They should be expected to perform their duties in accordance with the law, without discrimination. An important distinction can be made between the conscience clauses with regard to abortion and circumstances in which we are asking people to perform duties on behalf of the state, without discrimination.
In extending marriage to same-sex couples, the Government have made it clear throughout that the Bill should protect and promote religious freedom. A substantial amount in the Bill does that. As the noble Lord, Lord Peston, said, registrars of whatever hue will still be able to express their views on same-sex marriage, but the right to freedom of religious expression has to be balanced with the need to protect others from discrimination. The recent judgment of the European Court of Human Rights in the case of Lillian Ladele, referred to by my noble friend Lord Lester, supports this view and the balanced position that we have taken.
Acceptance of the amendment would allow registrars to discriminate against people because of their sexual orientation. Functions performed by marriage registrars are entirely civil and secular in nature and they should not be allowed to pick and choose the members of the public to whom they provide that service. Treating members of the public less favourably than others because of their sexual orientation is fundamentally wrong, in the same way that it would be wrong to discriminate against them because of their race, religion or belief.
On the face of it, some powerful points were made, not least about doctors in relation to abortion. One should think about it for a moment—and perhaps I may put it in the following way. Let us imagine that a doctor were to say, “As a matter of conscience and belief, I am not going to perform an abortion on this person because of their race or ethnicity, but I will perform an abortion on another”. Perhaps that demonstrates the point that we are trying to make. It would not be the question of conscience about performing the act of solemnising a marriage that is at issue; it is the question of discrimination that is at the heart of this issue, and that is why the Government do not support the amendment.
I have been asked, “Where do you draw the line?”. I appreciate what my noble friend Lady Cumberlege said about the amendment being restricted to the solemnisation or belief that it is wrong to have a marriage of same-sex couples. There are other subjects—and I bow to the right reverend Prelate the Bishop of Chester, who said that divorce was not an issue in the canon law of the Anglican Church. However, it is my understanding that, until relatively recently, the Anglican Church did not marry people who had been divorced on grounds of adultery or other reasons, if a person’s original spouse was still alive. I think that that is now possible with the permission of the bishop. In those circumstances, if the Anglican Church was not going perform a marriage and the person had to go down the road of a civil marriage if they wished to contract a second marriage, where would we have been if the registrar had said, “I have profound beliefs against marrying divorcees, particularly if one of the grounds for divorce has been adultery”?
The Lord Bishop of Chester
I wish purely to clarify the matter. I know that I am speaking to a distinguished lawyer but the law of the Church has never prevented clergy from remarrying divorced people, and for the past 30 years of my ministry I have done so. It is true that 30 years ago I was in a minority and that there is now much greater encouragement, but in legal terms there never was a blanket ban on clergy remarrying because statute law permitted divorce.
Lord Wallace of Tankerness
I am grateful to the right reverend Prelate for clarifying that, but he said that 30 years ago he was in a minority and he may agree that some high-profile marriages of divorcees have taken place in the Church of Scotland because of the apparent rules of the Anglican Church. The point remains that there may have been people with profound religious views on why they should not remarry a divorcee who was divorced on the grounds of adultery, but if the route of a civil registry marriage had been cut off, they would have found life to be very difficult indeed.
Equally, I have heard what has been said about the National Panel for Registration. Concerns were expressed in Committee about the consultation that it had undertaken, and that is why my right honourable friend the Secretary of State sought further—
Baroness O'Loan
The Minister said that it would have been profoundly difficult if that route had been cut off. Does he think that this amendment would cut off the possibility of people of the same sex marrying?
Lord Wallace of Tankerness
I was making the point that there are a number of grounds on which one might say one had a religious belief. Are we to have a hierarchy of religious beliefs, some of which will allow a registrar to exercise a conscience clause and some of which will not? However, as the noble Baroness, Lady Richardson, said, there might be some areas of the country with a small number of register office staff where it could be difficult to find a registrar who would marry them.
We sought further information from the National Panel of Registration and its letter has been placed in the Library of your Lordships’ House. As my noble friend Lady Noakes indicated, there has not been a huge demand for this amendment, quite the contrary. It would be easy to dismiss this letter but very often the House calls for the views of bodies which represent particular organisations. The letter states:
“The objection to a conscience clause is based on Registrars being local authority employees who are expected (and willing) to carry out all the functions that their role covers. On a daily basis, Registrars deal with many scenarios that for those with strong beliefs (religious or otherwise) would possibly not be able to carry out. Examples include: registering the birth of a child from a same-sex couple; undertaking marriages for previously divorced persons; or carrying out civil ceremonies and registrations. Registration Services and, in particular, the Registrars, are passionate and proud about the services they deliver and the customers they work with. For the past 176 years, Registrars have been carrying out their duties and have never wanted a conscience clause, and do not see the need for one now … The beliefs we bring to work are respect and tolerance and we would wish that to continue”.
Lord Elton
Could my noble friend read on? Does it not say that,
“we leave beliefs at home”?
Does that not say a great deal about this?
Baroness Farrington of Ribbleton
Perhaps I may I remind noble Lords that this is Report. People should ask very brief factual questions and no one should speak after the Minister has spoken except the mover.
Lord Wallace of Tankerness
My Lords, in response to my noble friend Lord Higgins, the national panel has made it clear that it is not seeking this. He said that if no one wants this, it does not matter. However, I believe that it does matter.
The points made by my noble friend Lady Williams are very challenging to someone who has natural liberal instincts about the individual but, at the end of the day, after a great deal of careful thought and examination, the principle that persuades me that we are right in this is that when someone performs a function on behalf of the state we should not put into legislation something which allows them to act in a discriminating manner. I ask my noble friend to withdraw the amendment.
Lord Lester of Herne Hill
Would I be right in saying that if this amendment goes through, there will be detriment to people seeking to marry?
Lord Lester of Herne Hill
Would I be right in saying that if this amendment goes through the result will be detriment suffered by some who are seeking civil marriage?
Lord Wallace of Tankerness
My Lords, that might be a possibility, particularly in areas where there are very few registrars, as the noble Baroness, Lady Richardson, pointed out.
The Economic Implications for the United Kingdom of Scottish Independence
Lord Wallace of Tankerness Excerpts(11 years ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
I hope that my noble friend will accept that it is the Scottish Government, not the Scotland Office.
Lord Forsyth of Drumlean
As my noble and learned friend knows, I am still stuck in the past on some of these devolutionary aspects. He is absolutely right. I am referring to the Scottish Government—or the Scottish Executive as they were quite rightly called until he changed that in an Act that I spent quite a lot of time opposing in this House—and the way they behave. My noble and learned friend—I am sure he will not be embarrassed if I say this—was invited to speak at, I think, the 25th anniversary—
Lord Forsyth of Drumlean
He was invited to speak at the 50th anniversary of Loganair. My noble and learned friend must have been a very good customer of Loganair when he represented his constituency so well. He was asked to do that but an official from the Scottish Government rang Loganair and said, “We understand that you have Lord Wallace speaking at this dinner; we think it should be a Scottish Minister”, and it withdrew the invitation. I have no doubt it was thinking about the financial support it receives for its airlines from the Scottish Government. This is the kind of brazen way in which the Scottish Government operate. Are we surprised that few businessmen were prepared to come to give evidence to the committee? The only great nationalist-supporting businessman with any credibility in Scotland who agreed to come and speak to the committee was Brian Souter, who has built a very successful business, but at the last moment—literally days beforehand—he cried off because he did not feel able to do so.
A climate of fear is operating in Scotland. It comes from having a single party dominating a Parliament, without an upper Chamber of this kind and without very much accountability from the Scottish media. Despite that, the First Minister has found it extremely difficult to get cheerleaders for his campaign. He started off with celebrities, all of whom seemed either to live abroad or pay no tax in this country. He has got so desperate to find celebrities for his cause that he is now having to recruit the dead. Only this week we heard from Alex Salmond that Robert Burns would vote yes in the referendum. He quoted these lines from Burns as conclusive proof:
“We’re bought and sold for English gold—
Such a parcel of rogues in a nation!”.
The “rogues in a nation” are not in this part of the United Kingdom; I think they may be north of the border. Of course, that is a reference to how the union came into being in the first place. We should remember how that happened. It came into being because of a financial crisis: something like a quarter of the money in circulation had been invested in the Darien scheme and the Scottish economy was no longer able to sustain that level of financial shock. The Scottish economy could not get access to the single market that was England and her Commonwealth. It was a trade deal. From the English point of view, it was a way of ensuring the succession of the Protestant monarchy, which was a matter of some controversy and of great national security because of the Jacobites.
This union came into being on the basis of maintaining financial security and defence. They are the two matters that come out of this report as being threatened absolutely by the break-up of the United Kingdom now—from Scotland’s point of view, not England’s. The size of the Scottish economy relative to the English one makes it less important for England. Why would Scotland want to give up access to a single market—the rest of the United Kingdom—where most of its goods and services are sold? Why would it, after what we have been through since 2008, wish to remove itself from the security of the Bank of England, the Treasury and a larger country? Why on earth would it want to become so dependent on the revenue from North Sea oil, which, as the report points out, is a very substantial part of the revenue for Scotland as an independent nation, whereas as part of the United Kingdom it is a smaller part and therefore less vulnerable to fluctuations in the oil price? If that sounds like an academic argument, the tax revenue in 2012, as set out in the report, was £6.5 billion. That is 40% less than the previous year. The lack of stability, which dependency on North Sea oil would bring, makes the economic consequences for people living in Scotland very uncertain indeed.
Then we have financial services—financial services that depend on the rest of the United Kingdom for most of their customers, and which also depend on having the security of the Bank of England and the whole apparatus that we have seen working so effectively. As my noble friend pointed out, the Royal Bank of Scotland and the HBOS part of Lloyds account for 1,254% of GDP for Scotland as an independent country. That makes Iceland look as if it was in a very secure position when the financial crisis came along.
When confronted with these issues, answers come there none. On the question of the security of the Bank of England, we are told that it will be fine because, “We will have a representative on the Bank of England and the Bank of England will still stand guarantee”. Why would any English taxpayer wish to put their money on the line for a foreign country called Scotland? This is Walter Mitty economics coming from the First Minister of Scotland, who refused to come to the committee to justify his view.
For those who think that there is some easy way out of this from North Sea oil, there is also the whole question of the decommissioning costs, estimated at some £30 billion and which have to be met by relief on the tax that would otherwise be levied on those oil revenues. Again, answer comes there none, except that the English should pay for the decommissioning because they had the benefit of the revenue in the early years. The lines that are being put are, “We can keep the monarchy and be independent, we can keep the welfare system and have the pensions and welfare administered by the English but be independent, and we can keep the security of the Bank of England”. They are nonsense lines and they are not being properly debated in Scotland as they should be. That is the danger, as the noble Lord, Lord Rowe-Beddoe, pointed out, when things happen on the basis of emotion.
For those who want to see the future, the Minister very unwisely championed the Scotland Act through this Parliament. We are already seeing the first effects of what will happen. The Scottish Government now have the power to set stamp duty. They have just issued a consultation document in Scotland. They are refusing to say what the levels of stamp duty will be until after the referendum—I cannot think why. Everyone in the House will know that stamp duty on houses up to a threshold of £250,000 is 1% in the United Kingdom. In the consultation paper, the Scottish Government propose, as an example, that stamp duty should increase to 7.5% on any amount over £180,000 and 9.5% on properties worth more than £250,000. That is the first effect of these tax-raising powers. To say that an independent Scotland, with the volatility of North Sea oil revenue and all the other matters that I have pointed to that would damage the economy, would be able to reduce tax and not add to it is extraordinary.
The Scottish Government are also, even now, setting up their own inland revenue called Revenue Scotland. We will have two sets of bodies collecting tax north of the border. It is being set up specifically to collect this new land and property tax—this mansion tax that is being imposed on the Scottish people.
I am conscious that time is moving on. I started with a quotation from Robert Burns, which Alex Salmond claimed as his own. I have my own quotation, which I will try to translate later for those who may find some of it a little obscure. It is from the address to the Dumfries volunteers:
“O let us not, like snarling curs,
In wrangling be divided,
Till, slap! come in an unco loun,
And wi’ a rung decide it!
Be Britain still to Britain true,
Amang ourselves united;
For never but by British hands
Maun British wrangs be righted!”.
That echoes the sentiments that are included in this report and is a clear endorsement that Burns was on the side of the Unionists.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, first, I welcome today’s debate discussing the important report from your Lordships’ Economic Affairs Committee. I thank all committee members, but I thank in particular the committee chairman, my noble friend Lord MacGregor of Pulham Market, who introduced the debate. Although I pay tribute to all who have contributed to the debate, perhaps I may pick out the noble Lords, Lord Rowe-Beddoe, Lord Hollick, Lord Lipsey, Lord West and Lord Davies of Oldham, on the basis that they are non-Scots. In making the case of the United Kingdom, I think it is very important that we hear voices from outwith Scotland saying how important the union is for all of us.
We have heard valuable contributions. I share the view of the noble Lord, Lord Davies, that it is perhaps unfortunate that there is no representative of the Scottish National Party in this House. That is the party’s choice and a matter for it, but it would have been useful, not least to answer some of the legitimate questions put. My noble friend Lord Steel of Aikwood interrupted my noble friend Lord MacGregor to say that it was odd that, having had two years since we knew that this referendum was coming, the Scottish Government had not come up with the answers. My noble friend Lord Forsyth hit the nail on the head when he said that it has been Scottish National Party policy for more than 50 years. One might have expected that, as it has been its policy, it might have had some answers, rather than either the deafening silence or the change of position which we sometimes get.
Perhaps I may say something about the tone of the debate that we expect in Scotland. It is important that we have a rational and well reasoned debate. I have heard the concerns expressed by a number of your Lordships from all parts of the House about the fears expressed to the committee. I will not comment further, but I can confirm the withdrawal of my invitation to a 50th anniversary dinner referred to by my noble friend Lord Forsyth.
It is healthy when we get contributions from people who do not necessarily have any axe to grind. My noble friend Lord Lyell declared his interest as a member of the Institute of Chartered Accountants of Scotland. That institute, with its distinguished history, has indicated that it will not come out on one side or the other but has already shown its willingness to ask pertinent questions, not least with regard to pensions. It is important that bodies such as that, which have a track record and can be seen as having professional status in Scotland but are not backing one side or the other, make such a contribution.
As we approach the referendum in September next year, it is important that both sides of the debate are robust in their arguments but conduct them with respect and, echoing what has been said, with information. I welcome the fact that a number of your Lordships who have contributed to the debate have commented on the Scotland analysis papers. The three that have been published so far are fairly heavy tomes. I can confirm that another will be published in the next few weeks. To inform the debate, we as a Government have undertaken that programme. There will be further papers on the United Kingdom’s position in the world, the protection of our citizens and defence, the economic benefits of the United Kingdom, and as my right honourable friend the Chief Secretary said in replying to the committee, on issues such as energy and welfare, as well as the important issue of pensions, mentioned by my noble friend Lord Lyell.
In addition, I have heard the disappointment expressed about the Ministry of Defence, but it has contributed to a number of other Select Committees. My right honourable friend the Secretary of State for Defence is to give evidence to the Defence Select Committee next week. There have been reports by the Scottish Affairs Committee, to which evidence has been given. The noble Lord, Lord Rowe-Beddoe, mentioned postal services. I understand that the Business, Innovation and Skills Select Committee in the other place is conducting an inquiry into the implications of Scottish independence for business, higher education, research and postal services. Undoubtedly the Government will give evidence to that committee.
With the possible exception of the constitutional issues raised in the comments of my noble friend Lord Mar and Kellie, there was general unanimity across the Chamber about the importance of Scotland as part of the United Kingdom. Also mentioned in one or two contributions was that it is important that we are not complacent. I assure your Lordships that the Government are not complacent. Earlier today I heard my right honourable friend the Secretary of State for Scotland refer to the referendum in Quebec. It is difficult to draw too many parallels, but he reflected on the fact that the federalists thought that it was in the bag and won by 1% only. We had the benefit of a lecture in Dover House last month by Monsieur Jean Chrétien, who was Prime Minister of Canada, and we certainly got the message from him. That will keep us on our toes. We know that this is a battle that we must win with both head and heart.
Lord Forsyth of Drumlean
Does my noble and learned friend not think that it is a trifle complacent of the Ministry of Defence, taking up the point made by the noble Lord, Lord West, to say that it is not looking at any contingency plans for the future of Trident, because it takes the view that Scotland is going to remain part of the United Kingdom?
Lord Wallace of Tankerness
My Lords, the Ministry of Defence, as I am sure the noble Lord, Lord West, knows, makes contingencies for many things. As for saying any more on issues of our nuclear deterrent and matters of national security, I am not prepared to go there.
The noble Lord, Lord McFall, referred to Michael Ignatieff and his point that we can have different identities. There is a British identity, although I appreciate that some, if not all, feel a European identity, and there is a Scottish identity. Having made my adopted home in Orkney for the past 30 years, I can share and feel affinity with that Orcadian heritage. I am sure that the point that was being made was that we do not want to choose between these. What we wish to secure by winning this referendum is that we are not forced to make that choice—something that I reflect on after my noble friend Lord Caithness’s comment as to whether I would have to choose between an Orcadian and Scottish identity and a British identity and affinity. Issues of the heart will be involved, but this debate has focused on the importance of the arguments of the head as well.
There are important things that we can say. The United Kingdom Government are producing an increasing amount of information, and I will say more about the communication of that later. We know that the United Kingdom is one of the most successful monetary, fiscal and political unions in history. It is a union that has brought economic benefits to all parts of the United Kingdom, because taxation, spending, monetary policy and financial stability policy are co-ordinated across the United Kingdom.
We know that Scotland and the rest of the UK are economically well placed as members of a single market and a single currency area in the current United Kingdom arrangements. Data published by the Scottish Government suggested that in 2011 nearly 60% of Scottish exports went to the rest of the United Kingdom and that 70% per cent of Scottish imports came from the rest of the United Kingdom. We know that Scottish independence would create an international border between Scotland and the rest of the United Kingdom. International experience shows that there is a border effect. It reduces flows of product, money and people.
We know that the current currency and monetary policy arrangements within the United Kingdom serve Scotland well. Perhaps I can take issue with what my noble friend Lord Caithness said about the First Minister setting out his case very clearly. As my noble friend Lord Forsyth pointed out, within the past five years the Scottish National Party has supported the euro. We were told that sterling was a millstone around Scotland’s neck, but then it supported sterling, either by a currency union or by so-called sterlingisation. Some people in the yes campaign have called for an independent Scottish currency.
The paper that we produced on the currency identified the four options. First, there is an independent Scottish currency. Secondly, there is the euro. Thirdly, there is a sterlingisation, where the Scots keep sterling but are not part of a formal monetary union. Fourthly, there is formal monetary union. None of these is as successful and workable as having our current arrangements within the United Kingdom. The alternative currency arrangements open to an independent Scotland would be less economically suitable for Scotland and the rest of the UK.
We know that the Chancellor, when launching the Treasury paper on currency, said:
“The SNP asserts that it would be in everyone’s interests for an independent Scotland to keep the pound as part of a Eurozone-style sterling zone. … Let’s … look at the evidence… Could a situation where an independent Scotland and the rest of the UK share the pound and the Bank of England be made to work? Frankly, it’s unlikely”.
While the Scottish Government might like to tell people what they think that they want to hear, we are focused on telling people what the evidence says, what the options are and what the consequences of those options are. You do not have to know too much about economics or look too far to see that the eurozone cannot exactly be described as a dream currency union. This was reflected in what my noble friend Lord Maclennan of Rogart said. It was mentioned too by the noble Lord, Lord Hollick, who said that you cannot have monetary union without fiscal union. Countries with the euro are witnessing closer fiscal integration at a time when the Scottish Government would have you believe that you could sign up to a currency union and achieve political and fiscal independence.
It is not just Scotland’s overall economy and currency that we know about. We know that in Scotland we have a strong and vibrant financial services industry as part of the United Kingdom. Financial services contributed £8.8 billion to the Scottish economy in 2010, more than 8% of Scottish onshore economic activity. The sector directly employs 85,000 people in Scotland and a further 100,000 indirectly, which is around 7% of total Scottish employment. We know that our firms and individuals benefit from a world-leading financial services sector and a large integrated domestic market. Our consumers benefit from the UK’s protection and compensation bodies that are able to pool risk across a large and diverse market.
Noble Lords who have contributed to the debate have reflected on the fact that the United Kingdom Government came to the rescue when the Royal Bank of Scotland and HBOS experienced their catastrophic difficulties. In evidence to your Lordships’ committee, Mr David Nish, the CEO of Standard Life, said that what he benefited from today was having a single regulator in a geographical area and that he did not think that there was a working model of cross-border regulation that he could find.
I pick up on the point made by my noble friend Lord Lyell that 70% of pension products bought by Scottish consumers are from firms based in the rest of the United Kingdom, and work by the Institute of Chartered Accountants of Scotland shows that if Scotland were to become independent, the,
“potential impact on funding requirements for employers operating defined benefit or hybrid schemes across the UK is likely to be substantial”.
Another important industry for Scotland is oil and gas. My noble friend Lord Shipley and the noble Lords, Lord Lipsey and Lord Hollick, referred to this. They made the point that wherever this valuable resource is, the revenues are volatile and in long-term decline. The UK has a broad and diverse enough economy to be able to absorb this volatility, but it would loom larger in a Scottish economy that would be less able to absorb it. My noble friend Lord Forsyth asserted that the First Minister would clearly want the United Kingdom to bear the decommissioning costs and quoted the Minister who, when asked on 25 April last year whether Scotland would take these costs on, said that the answer was yes. That contrasted with what his Energy Minister, Fergus Ewing, said on 17 April, which was that the UK had a moral and certainly a legal obligation to be responsible for the decommissioning of these rigs. Within a period of 10 days, there had been a diametrically conflicting view of what the position would be on these costs. It is incumbent on the Scottish Government to be a bit more direct in giving answers to these questions.
Lord Forsyth of Drumlean
I apologise for interrupting my noble and learned friend again, but is it not a matter of choice because the decommissioning costs are given by tax relief on the tax revenues? If the oil becomes part of Scotland’s assets, it is not a matter of choice whether it meets the decommissioning costs; they would have to be met because they would be part of the tax regime. Otherwise, it would be too expensive to take the oil out of the ground, in which case the revenue would be zero.
Lord Wallace of Tankerness
My noble friend makes an important point. I am simply pointing out that the Scottish Government do not seem to have worked out which way it is. I am not trying to offload a moral or legal obligation on to the United Kingdom.
A number of noble Lords, including my noble friend Lord Caithness and the noble Lord, Lord Hollick, mentioned the assets and liabilities. Clearly the division of liabilities and assets would be a significant part of any negotiations to create a new state. In the case of Scotland and the rest of the United Kingdom, it would have to be settled by negotiation. Unpicking the United Kingdom’s institutional and governmental infrastructure framework would be a huge task, and it is impossible to say with confidence what the outcome would be. Although there are some general principles of international law that could impact upon this matter, there is no clear set of rules in international practice about the precise allocation of national debt in these circumstances, but there would be an expectation that an independent Scottish state would take on an equitable share of the UK’s national debt. How an equitable share would be calculated is open to question, although I think the Finance Secretary, Mr John Swinney, accepted that there would be that obligation when he gave evidence to your Lordships’ committee.
Europe and Scotland’s place in Europe also featured in the report and in our debate. Again, we know that if Scotland left this union, the rest of the United Kingdom would be a continuator state. That was set out very clearly in the first Scotland analysis paper that we produced. The United Kingdom as a continuing state would maintain the same set of terms and conditions, rights and responsibilities that we enjoy today in Europe, NATO and the G8. Scotland would be a new state and would have to seek to join all those international bodies. That is a fact that the Scottish Government initially sought to deny. With regard to Europe, they said it would be seamless, automatic membership. Now, in the face of the evidence, they publicly accept that they would have to negotiate their way in. We could debate this. There are differing views about how that negotiation would take place, but there can be no doubt that it would be a very difficult negotiation. As the noble Lord, Lord McFall, pointed out, there would be no guarantee of an exemption from euro membership, or from Schengen, as the noble Lord, Lord Kerr of Kinlochard, stated. My noble friend Lord Caithness asked about the share of the rebate. It is impossible to say what the share of the rebate would be or whether the European Union would even grant any rebate to the Scottish Government. It would be a matter of negotiation not with the United Kingdom Government, although as a member state we would have a part to play in it, but, after the accession of Croatia next week, with 27 other Governments, and there is no guarantee about the outcome of such negotiations.
Defence was quite properly raised by a number of noble Lords. In our responses to other Select Committees we have sought to give some indication of the number of defence-related jobs in Scotland. How many would be lost would to some extent depend on the configuration of Scottish defence. My noble friend Lord Shipley mentioned the report this week from the Scotland Institute, which did not really offer much about what the profile of Scottish Armed Forces would be. As at 1 April 2103, there were more than 11,000 regular armed forces and 4,000 Ministry of Defence civilian personnel in around 50 sites throughout the country. Following the Defence Secretary’s announcement on 5 March about the Army basing plan, by 2020, there will be some 12,500 regular armed forces based here and Scotland will be home to all the Royal Navy’s submarines, one of the Army’s seven adaptable force brigades and one of the three RAF fast jet main operating bases.
With regard to civilian defence jobs, the Scottish Government’s agency Scottish Development International estimates that the defence sector in Scotland employs more than 12,600 people. The building of the Queen Elizabeth class carriers, initially on the Clyde and with further construction in Rosyth, underlines the commitment to defence jobs in Scotland. We can confidently say that that could not by any stretch of the imagination be maintained at that level in an independent Scotland.
I recognise that calls for more information have come in this debate. We are committed to setting out facts and evidence to ensure that people take an informed decision. I take the point that we, not just as a Government, but all of us who support the union, have an obligation to go out and sell the message. It may be that these weighty tomes are a bit weighty for leaflets or for a snappy column in some of our newspapers. Certainly, that has been represented to us, and the tenor of some of the contributions to this debate was that we should think of ways in which we can put out a more popular version. We are aware that these requests have been made, and we will give consideration to that.
Ministers have a particular responsibility, but others can get out and talk. On Friday, I will be speaking to the Scottish Council for Development and Industry in Aberdeen on constitutional issues. I know when my right honourable friend the Secretary of State for Scotland saw the report about the Scottish Chambers of Commerce and those who did not think that they were informed enough, he said—he will probably not like me for this—that he would be happy to go to talk to some of the chambers of commerce up and down Scotland. If anyone is listening from the various component parts of what I think is a federation of SCCs, there is an opportunity there to invite the Secretary of State for Scotland, but others of us would be willing to do so.
I heard the request that we should engage in pre-negotiation. I am not going to side-step it, and I know it will be a disappointment to my noble friend Lord MacGregor, but the United Kingdom Government have made it clear that we are not going to enter into pre-negotiations. My noble friend Lord Caithness said that the First Minister had said that we should. In fact, in a letter to my right honourable friend the Deputy Prime Minister, the Deputy First Minister said:
“The Scottish Government has not asked you to pre-empt the referendum vote in that way. Indeed, I was clear in my speech at Strathclyde University on 3 December that ‘independence negotiations [... ] will follow a yes vote’”.
There are a number of reasons for this. Many people in your Lordships’ House are involved in business, and I do not know how many of them would go into a negotiation showing their negotiating hand and their red lines. Perhaps more fundamentally than that, I belong to a Government who represent the whole of the United Kingdom. If we were to have that kind of pre-negotiation, I suspect it would not be possible for my right honourable friend the Chief Secretary to be part of it because, in the event of independence, he would have a different standpoint. He is a Scot. You would then have part of the United Kingdom Government perhaps debating against another part. My noble friend Lord Caithness might expect me, as someone who is resident in Orkney, to have an interest in that too, and I might not be able to take part either. I cannot think of anything that would better suit the argument of those who want to break up the United Kingdom than that those who want to maintain the United Kingdom spend the next 15 months arguing with each other about what the negotiating position would be. This Government believe in a United Kingdom. If there are negotiations post a referendum, someone will need to represent the interests of England, Wales and Northern Ireland, but that cannot happen before the referendum. We believe in the integrity of the United Kingdom, and once you start unstitching the threads of the United Kingdom by that kind of approach, I fear that we would be in a very difficult position indeed.
When my noble friend Lord Forsyth was quoting the First Minister quoting Robert Burns, I sent a note to the Box asking for the words of a poem that starts:
“Does Haughty Gaul Invasion Threat”.
The Box came back with the verse:
“Be Britain still to Britain true,
Amang ourselves united;
For never but by British hands
Maun British wrangs be righted!”.
I got the words from the Box, but my noble friend quoted the poem by himself. There is so much truth in it. If we want to put out a very clear position, there is a way in which people in Scotland can have the same currency as people in the rest of the United Kingdom, the same financial regulations, the same passports, the Bank of England as lender of last resort, the same welfare provisions and the BBC. It is called the United Kingdom, and I hope people will vote for the United Kingdom on 18 September next year.
Marriage (Same Sex Couples) Bill
Lord Wallace of Tankerness Excerpts(11 years ago)
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Baroness Thornton
My Lords, I shall be very brief, and say two things. One is that when you are losing the political argument, it seems to me that you always go for the methodology or, in the case of the noble Lord, Lord Stoddart, for Europe. The second thing is that I agree with everything said about this by the noble Lord, Lord Fowler. The majority supported it in the free votes. I really think that there is nothing else to add, and the referendum the amendment proposes is a very bad idea indeed.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I wish I could be so brief, because the noble Baroness has just summed up the position very well indeed. As has been made very clear, the amendments proposed by the noble Lord, Lord Anderson, would prevent the Bill being enacted before the next general election by adding a new provision calling for a referendum in England and Wales on proposals to make the marriage of same-sex couples lawful. Indeed, the next general election would be the earliest date which is provided for by the amendment, which also provides reasons to extend it until 2016.
The Government do not believe that this is a sensible course of action, and nor is it required. The Government’s position is that referendums should be used only in issues of substantial constitutional significance. Noble Lords may recall that the Constitution Committee of your Lordships’ House published a report in 2010 on referendums in the United Kingdom. I was a member of the Constitution Committee at that time. The report was clear that matters of substantial constitutional significance would fall within the following proposals:
“To abolish the Monarchy … To leave the European Union … For any of the nations of the UK to secede from the Union … To abolish either House of Parliament … To change the electoral system for the House of Commons … To adopt a written constitution … To change the UK’s system of currency”.
The noble Lord, Lord Anderson, listed the kind of referendums that we have had, and I think they all fall within these definitions, these issues of constitutional significance. We do not believe that the amendments are appropriate or necessary. This is because while I acknowledge that extending the existing institution of marriage to same-sex couples is of huge significance and importance to those couples who are currently being prevented from marrying, and quite clearly from our debates this evening is the subject of strong feelings among those who oppose it, we do not believe that these are matters of substantial constitutional significance along the lines of those which the Constitution Committee identified.
Turning to technical matters, my noble friend Lord Dobbs pointed out that Members of your Lordships’ House would be denied a vote in any such referendum. I also note that there was an interesting point about the question, because the Political Parties, Elections and Referendums Act 2000 makes provision for how a question should be dealt with if it is present on the introduction of the Bill, or indeed if the wording is to be done subsequently by way of order. It does not make any provision for what would happen if a question was introduced at a later stage. Quite clearly, my noble friend and the noble Lord, Lord Anderson, see no role for the Electoral Commission in judging the merits of the question and reporting to Parliament, as now seems to be an accepted part in other circumstances of our arrangements on referendums.
Lord Singh of Wimbledon
I referred specifically to the intricacies and differences within faiths. Just to say that all faiths are protected is not really sufficient. We are different in our different religions. There are different concerns. They have been ignored.
Lord Wallace of Tankerness
My Lords, I of course recognise that there are differences. The Government fully recognise that that there are different concerns within different religions, but I do not believe for one moment that they have been ignored. No religion will be obliged to conduct a same-sex marriage against the views and wishes of that religion. We have tried to build in as many safeguards as possible to do that. It is something to which we are acutely sensitive and we wish to ensure that adequate protection is given.
It is important to remember that civil partnerships were introduced to give same- sex couples equivalent rights and responsibilities at a time when marriage was not available to them. Despite the opposition at the time, their introduction led to greater acceptance and inclusiveness for same-sex couples in wider society.
History shows that undertaking important social change to extend fundamental rights to minority groups who experience inequality and social injustice is not always easy. Not all is necessarily favoured by the majority, but certainly the opinion polls that I have seen from more recent times show that there probably is a majority. I believe that providing for a referendum on same-sex marriage in this Bill would delay progress in removing a current and manifest unfairness. I therefore ask the noble Lord to withdraw his amendment.
Lord Anderson of Swansea
If there is a majority, as the noble and learned Lord suggests, what fear does he have about testing the real opinion of the people of this country? If he is concerned about delay, why not bring it forward, even before the date of the election? The election date was mentioned only because it would ensure a good turnout, which perhaps an earlier referendum would not. The noble and learned Lord suggested, for example, that in the past we have had referendums only on constitutional issues. Yet he supported a proposal that ensures that even trivial transfers of powers to Brussels will trigger a referendum. That is hardly consistent with what he suggests.
I know that we could go on debating this, but I will end by first thanking all those who contributed to this short debate, particularly my co-sponsors, the noble Lords, Lord Cormack and Lord Singh. To the noble Lord, Lord Dobbs, I say that even if noble Lords do not have a vote on this, they do not have a vote in general elections at the moment. It is hardly illogical that noble Lords do not have a vote in a referendum on this matter. It is consistent, but if the noble Lord wishes to move an amendment and it is accepted, so be it.
It was highly simplistic of the noble Lord to suggest that gay equality is the same as black and white equality. I was a leader of the anti-apartheid movement in Europe over a number of years, because I could see no difference at all between blacks and whites, as there was in the Group Areas Act in South Africa and so on. However, in my judgment, there are serious differences between a traditional marriage and a gay marriage and it is wrong to equate them. It is naive and simplistic to suggest otherwise.
To the noble Lord, Lord Fowler, I say this: if he thinks that there will be delay, again he might suggest that the date of the referendum be brought forward. Even he cannot suggest that the Government now have a mandate for this change. No one has answered what is perhaps a key question: why the hurry? Why, after all these years when there has been no change, are the Government in such a rush? There must be some plausible reason. I cannot see any serious reason for it, but equally why are the Government so afraid of giving people a voice?
Finally, I remind the Minister that many noble Lords chose not to vote against the Bill at Second Reading—I can attest this from my own knowledge—either because of their view that the House should show restraint when there has been a majority in the other place, or because of the view that we are principally a revising Chamber. It would have been inconsistent to prevent scrutiny, but they would look again at the matter when it came to the vote on Third Reading. I am not convinced that the Government have made any serious concessions—certainly in respect of the conscience matters, although I am ready to look again at the list that the Minister gave me during an earlier debate.
If the Government have failed to make other serious concessions relating to existing and future registrars, teachers, the public sector duty and so on, then Amendment 48 will inevitably become more attractive. In the mean time I shall not press it at this stage. I shall again ask the Government to give a simple answer to the question: why the hurry? I shall reflect further on the position, and beg leave to withdraw the amendment.
Baroness Royall of Blaisdon
I beg the noble Lord’s pardon. My entire hypothesis seems to be wrong, so I will merely say that I do not believe that this amendment should be accepted because, in any event, we should not withdraw from the European Convention on Human Rights. However, it is an entirely unlikely happening because the Bill as it stands does not offend against any element of human rights, freedom of speech or freedom of religion.
Lord Wallace of Tankerness
My Lords, I thank the noble Lord for his amendment, which gives us a further opportunity to set out yet again how we believe that the European Convention on Human Rights supports rather than threatens the religious protections in the Bill. The noble Lord indicated in response to the noble Baroness, Lady Royall, that he is not opposed in principle to the European Convention on Human Rights, but I know that he has expressed some concerns about the development of the jurisprudence of the court. I am not sure whether he took part in the debate last Thursday when the House had an opportunity, during a debate introduced by my noble friend Lord Lester, to consider these human rights issues.
The Government have made it clear why we do not believe that there would be a reduction in the protection available to religious organisations and individuals as a result of the Bill. I am happy to repeat those assurances. Indeed, I have sought to do so in the previous debate in replying to the noble Lord, Lord Singh of Wimbledon. The noble Baroness, Lady Royall, has said it again. There is unanimity in this House on the wish to secure the protection of religious organisations and individuals.
Article 9 of the European Convention on Human Rights guarantees the right to freedom of religion. Any attempt to compel religious organisations to solemnise marriages that they consider to be doctrinally impermissible would quite clearly be an interference with their right—and indeed the right of their members to religious freedom. I believe that the religious freedoms contained in this Bill reinforce that protection.
The noble Lord, Lord Stoddart, suggests that if Strasbourg finds that there is a right to same-sex marriage, religious organisations would be forced to conduct such ceremonies. We do not believe that to be the case. Under this Bill, we will be providing same-sex civil marriage ceremonies, but the protection of Article 9 would mean that a couple could not force a religious organisation to marry them according to its right purely because they want a religious ceremony.
It is also worth noting that after many years since the introduction of civil unions for same-sex couples in a number of countries that are members of the Council of Europe, including the United Kingdom, there has been no decision of the Strasbourg court holding that there is right to a civil union, in other words to any legal relationship at all for same-sex couples.
Clause 2 of this Bill provides clear protection for individuals and religious organisations who do not wish to conduct or participate in a religious marriage ceremony on the grounds that it is the marriage of a same-sex couple. The case law of the European Court of Human Rights is equally clear that the question of whether, and if so how, to allow same-sex marriage must be left to individual states to decide for themselves. I simply believe that it is inconceivable that the court would require a religious organisation to conduct same-sex marriages in breach of its own doctrines. We believe the position is clear—and indeed has been strongly supported by a number of our most respected legal minds. In his written submission to the Public Bill Committee in the other place, the noble Lord, Lord Pannick, said:
“For the European Court of Human Rights to compel a religious body or its adherents to conduct a religious marriage of a same sex couple would require a legal miracle much greater than the parting of the Red Sea for the Children of Israel to cross from Egypt. The Court unanimously decided in Schalk and Kopf v Austriain 2010”—
the noble Lord, Lord Stoddart, also referred to this case—
“that there is no right to same sex marriage under the European Convention on Human Rights. It is in the realms of legal fantasy to suggest that the Court would impose an obligation on a religious body to conduct such a ceremony, especially when civil marriage will be available in this country for a same sex couple and when Article 9 of the Convention protects religious beliefs and practices”.
Indeed, the noble Lord, Lord Pannick, followed that up and confirmed his position in the oral evidence which he gave to that committee.
I briefly note the practical effects of the amendment. It would be extraordinary for a Secretary of State to be required, as this amendment would envisage, to act unilaterally to withdraw the United Kingdom from the convention without further reference to Parliament—although I accept that the noble Lord said it was a probing amendment. Furthermore, to make such a decision contingent upon the outcome of a court case dealing with unknown and unspecified issues would be equally extraordinary, particularly if the successful challenge related to a technical matter which could be readily remedied by legislation passed in Parliament.
Before I conclude, I refer to the point made by the noble Lord, Lord Stoddart, in a previous amendment, when he read a newspaper article which suggested that there had been some secret conference involving my right honourable friend the Secretary of State, Theresa May, my honourable friend Lynne Featherstone and the Council of Europe. I understand that this secret conference was an event attended by 300 people, invited by the Government of the United Kingdom, when the United Kingdom held the presidency of the Council of Ministers. Nicolas Bratza, who was then president of the European Court of Human Rights, spoke for five minutes. I am informed that the text of his speech is on the court’s website. He made it clear that the court’s case law had left the issue of gay marriage to be decided by national authorities.
Not just in this debate but in a number of debates during Committee we have sought to give reassurances that the protections for individuals and religious organisations are very real. I would hope that having had the opportunity to have this debate, the noble Lord will withdraw his amendment.
Lord Stoddart of Swindon
My Lords, I am most obliged to the Minister for his reply—both to the assertions of Mr Booker and to my own amendment. In relation to his reply, of course I accept his assurances. The problem is that throughout my life—it has been quite a long one—I have seen government assurances come and government assurances go. The European Court of Human Rights now has powers, translated into British law, which are very wide indeed. Some of its decisions in private and other cases have not been very friendly towards the Government and this country, if I might say that. We really do not know what will happen once the Bill is passed.
Baroness Thornton
My Lords, in all the time that I have been in your Lordships’ House, I have enjoyed and loved the way that the noble and learned Lord, Lord Mackay of Clashfern, has often weaved a sticky web of legal mischievousness around issues that we have had before us, and so he has done this evening. I look forward to the conversation that the two learned Scots before me are about to have on this issue.
Lord Wallace of Tankerness
My Lords, I welcome the interesting debate that my noble and learned friend Lord Mackay has generated. He is right to challenge us to consider it and I can indicate at the outset, although I will say more, that the Government do not feel able to support his amendment. It would permit siblings of the same sex to marry, and I assume that that could include uncles and nephews, grandfathers and grandsons and mothers and daughters. The Government do not feel able to accept the extension of marriage to close relatives. Clearly, as my noble and learned friend indicated, the origins of this go back to concerns about the need to prevent incest and potential inbreeding.
However, it is also fair to point out that, in terms of procreation, not all marriages, even heterosexual ones, are contracted for the purposes of procreation. It would almost be a logical extension of the argument that when an opposite-sex couple are past a certain age, or the woman passes a certain age and is incapable any longer of having children, perhaps the degrees of affinity regulations and prohibitions should fly off. Even just saying that indicates the real sensitivity around this and how it is difficult to readily accede the point being made by my noble and learned friend.
Before returning to some of the substance of his argument, I note that my noble and learned friend indicated in his opening remarks that he seeks by this amendment to restore Section 1 of the Marriage Act 1949 to what it was before the Civil Partnership Act 2004 amended it. It is important to point out that the 2004 Act created one gender-neutral list setting out the prohibited degrees of relationship. The amended Marriage Act makes it clear that no person can marry any relative listed in Schedule 1.
I am not founding my argument on this point because it is a technical matter which no doubt could be addressed. But in reverting back to the original Section 1 of the Marriage Act 1949, the amendment does not lead to any change in the relevant schedules, so that certainly could lead to confusion, although no doubt my noble and learned friend could do something about that if he wished to persist with this and bring forward amendments to the schedules as well. Paragraph 17 of Schedule 27 to the Civil Partnership Act 2004 replaced the two separate lists. Under the amendment, that single gender-neutral list would still stand and would need to be repealed and the original wording restored.
I have sought to indicate that the Government do not accept the principle of what my noble and learned friend is trying to achieve. He referred to platonic relationships. If this Bill is passed, it will be open to individual couples, whether of opposite sex or of the same sex, to determine whether to engage in sexual activity and to consummate their marriage. Couples are not required to consummate their marriage; there is only an option for opposite-sex couples to apply for an annulment if one party applies to have the marriage annulled on that basis.
On the point about two brothers being able to marry, as I indicated, the Marriage Act sets out the relationships of people who cannot marry each other. The Government want to ensure that same-sex couples are able to marry under the same provisions as opposite-sex couples. The provisions in the Marriage Act on prohibited degrees of relations are already capable of applying to same-sex couples and therefore no change from what was put in place for civil partnerships is required.
My noble and learned friend referred to the debate we had earlier on the amendment moved by the noble Baroness, Lady Deech. In my response to that I referred to tax issues. To be fair to my noble and learned friend, he did not use that argument. His argument was based more on grounds of principle. Nevertheless, the proposal would have consequences in terms of tax. However, I also think—I made this argument during that debate—that there are power relationships within families. Who is to say that pressure could not be brought to bear on a brother to marry another brother if it was thought that that would best serve his inheritance interests? You cannot tell what goes on in families. That is why my noble and learned friend is absolutely right to talk about the need to protect children. We are not necessarily talking about infant children or children under the age of 16, but within families lots of power can still be exerted when children are young adults or even older. While concerns about incest and inbreeding clearly lie at the heart of the prohibited degrees of marriage, there is also a recognition that within families powerful relationships can often be at play.
As I indicated, this amendment would allow father and son, mother and daughter, uncle and nephew, aunt and niece to marry. We think that the pressure is more relevant at an intergenerational level than at a sibling level, although that is not to say that it could not occur at a sibling level. Therefore, we should be very cautious about going down that road. Indeed, the noble Lord, Lord Alli, referred to civil partnerships in this connection. We believe that the nature of marriage is one which people recognise as being different from the relationship that exists between two close members of the same sex of a family. For these reasons, I ask my noble and learned friend to withdraw the amendment.
Lord Mackay of Clashfern
My Lords, if I had an answer, I would be happy to withdraw the amendment. The point I am making relates, for example, to brothers. The idea that this is something to do with pressure is ridiculous because, as we know, pressure is exerted in families far beyond same-sex relationships, and that has to be dealt with somehow. There are plenty of laws relating to undue pressure being put on people to get married or otherwise. What I am talking about is the marriage that was described by my noble friend at the beginning, where people love one another and wish to undertake the responsibilities of marriage.
I can understand that there are different considerations for different parts of the prohibited degrees, and that is why this needs to be considered. However, I have a feeling, and I may be entirely wrong—
Lord Wallace of Tankerness
I thank my noble and learned friend for giving way. Does he accept that if a man at, say, the age of 60 wished to marry his sister who was aged 60, where procreation and therefore inbreeding was not possible, the rules on the prohibition of close relationships should be set aside after a given age, if they love each other and want to make that commitment? Is that his argument?
Lord Mackay of Clashfern
This is a justification for same-sex marriage that has been put forward. That is what I am talking about. I said in my speech at Second Reading—I invited correction but so far that has not come—that the reason for the prohibited degrees applying across marriage generally is because the natural procreation of children was a central purpose. I quite understand that people far beyond the age of childbearing are subject to the rules, and if George Clooney does not hurry up, you never know what might happen. The rules are there because a central purpose of opposite-sex marriage is the normal procreation of children, and therefore the rules are put generally to the whole lot. That does not apply to same-sex marriage at all.
The idea of pressure is just as likely to occur in relation to people who are not directly related. Parents, particularly in some situations, try to persuade their daughter to marry X for reasons of their own rather than hers. That kind of pressure is something that has to be looked at. However, I do not see why such pressure should be particularly rife between brothers at full age and thus perfectly entitled to consider what they want to do. I cannot see that it is a reason for cutting brothers out. So far, I have not heard any reason that contradicts the general statement of principle which was made when introducing same-sex marriage into our law.
At midnight it is not suitable to press my amendment, but I think that this needs to be considered, and I would like to hear more about it before Report. On the technical point, what we have done is amend the statute and the schedule that works in accordance with the statutory provision. It does not matter because I can easily alter it, but the amendment was tabled with assistance, as noble Lords will understand. I do not say that they necessarily got it right, but I think it is right. Anyway, if it is wrong, I can easily put it right; it is a very technical point and my noble and learned friend has accepted that. However, the essential point needs to be considered carefully and I would like to hear more about it by Report. In the mean time, at one minute to midnight, I am happy to withdraw the amendment.
Lord Wallace of Tankerness
My Lords, I am grateful to the noble Baroness, Lady O’Loan, for her further amendment regarding the public sector equality duty. It is similar, although not identical, to Amendment 13 in the name of the noble Baroness and that of the noble Lord, Lord Singh, which the Committee discussed at length last Wednesday. I certainly do not intend to rehearse all the points that were made then. I undertook, following that debate, to write to the noble Baroness on a number of points that were made in that debate—I think that that suggestion was made by the noble Lord, Lord Deben—and to circulate the letter to all those who took part. I also indicated that if the recipients of that letter wished to follow it up with a meeting, I would more than happy to do so. Certainly, if there are any further points arising out of the contributions to the debate that have been made this evening which require to be covered by that, I shall do so.
The amendment is couched in different terms from Amendment 13 and would have a slightly different effect but, again, the Government believe that it is unnecessary and potentially harmful. As we discussed last week, the public sector equality duty places a duty on public authorities to have due regard to the need to eliminate unlawful discrimination because of, among other matters, religion or belief. Where this is relevant to the exercise of their functions, public authorities are already required to have due regard to the possible impact of their policies on people who believe that marriage should be between only a man and a woman. The amendment is therefore unnecessary.
However, the amendment is also potentially harmful—the noble Baroness, Lady Thornton, was right to say that this is our domestic legislation. The amendment would mean that public authorities would be required to consider this particular belief about marriage, giving precedence to it over all the other beliefs to which they are required to have due regard whenever they take a decision, regardless of the context and the relevance to the decision.
Moreover, the public sector equality duty is a duty to have due regard. It is a duty to think; it is not a duty to act or to achieve a particular outcome. The amendment goes far beyond the duty to have due regard. It places a duty on a public authority to ensure that the belief that marriage should only be between a man and a woman is respected, and to ensure that no one expressing such a belief will suffer any detriment. That is of course a desirable outcome, but it is not clear to me how any single public authority, or indeed all public authorities working together, could ensure that that would happen. I take the point made by the noble Lord, Lord Martin of Springburn. It was in one of our first debates that my noble friend Lord Lester made the point—I think that the noble Lord, Lord Alli, then quoted it back—that you cannot legislate against some public authorities or some individual doing a daft thing; “idiotic” may have been the word that he used. Mention has been made of the case of the housing officer who lost his job for something that was put on a public website, when in fact the law actually protected him. When the case went for judicial review, the judge put it on the record that, had he taken the matter to an employment tribunal, he would have had more substantial damages than he was able to get under a judicial review. The law has worked. I say to the noble Lord, Lord Martin, that I think that we all get very frustrated sometimes when daft things are done, but we believe that the Bill ensures that those protections are in place. I do not believe that the way to deal with those occasions where public authorities have not applied the current laws properly is to start trying to meddle with the equality protections and to risk unintended consequences. Rather, we should address them by doing what we can to ensure that public authorities understand the nature of the requirements on them and what they mean in practice.
That is why, as I explained on Wednesday and as my noble friend Lady Stowell has also explained, the Government will work with the Equality and Human Rights Commission to ensure that its guidance for public authorities is as clear as possible, in particular by making it clear that the equality duty cannot be used to penalise an organisation or individual for opposing same-sex marriage and indeed that to do so would be unlawful. I also remind the Committee of my commitment given last Wednesday that we will address issues relating to the equality duty when we respond to the Joint Committee on Human Rights before Report.
On behalf of my noble friends Lady Stowell and Lady Northover, I thank noble Lords for the kind words that have been said. I thank all Members of the Committee, because we have had some very important and worthwhile debates. I hope that the noble Baroness, Lady O’Loan, has received the further reassurance on this issue that she has sought. I therefore ask her to withdraw her amendment.
Lord Mackay of Clashfern
My Lords, before the noble Baroness withdraws her amendment, I would like to associate myself from this side of the House with her comments about the Front Benches on both sides.
Marriage (Same Sex Couples) Bill
Lord Wallace of Tankerness Excerpts(11 years, 1 month ago)
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Baroness Royall of Blaisdon
My Lords, I appreciate that this is a probing amendment, but it has thrown up some interesting questions from the noble Lord, Lord Martin of Springburn. I believe that the proposal in the amendment would be an unnecessary additional hurdle for religious organisations. The legal protections in the Bill relating to the opt-in process, combined with the protections under the Equality Act 2010, are in our view perfectly sufficient to protect religious organisations that decide not to opt in to same-sex marriage from legal challenge.
I suggest that the process Amendment 6 proposes would have the effect of interfering in the internal governing processes of religious organisations. It would allow governing authorities to bind future authorities’ decision-making abilities by placing additional barriers in the way of their taking a decision to opt in to same-sex marriage in the future. I am also concerned that such a system could stifle the ability of a religious organisation to respond to the changing nature of its religious community. In addition, we believe it to be unnecessary in the light of the legal protections afforded by the opt-in system in the Bill as well as by the existing legal framework.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I am grateful to the noble Lord, Lord Martin of Springburn, for giving us an opportunity to debate the substance of this amendment as well as the specific points he raised. I substantially agree with the point made by the noble Lady, Baroness Royall. I even suggest that this would be an additional bureaucratic burden. We believe that the provision is not necessary. There is no need for any religious group to take any action whatever if it does not wish to solemnise the marriages of same-sex couples. Unless a group takes the positive step of opting in, it will not be able to solemnise the marriages of same-sex couples.
I take this opportunity to make it absolutely clear that there is no requirement in the Bill to opt in. That is the position in the Bill as currently drafted. If there was a list it could lead to some confusion if, for some reason, a religious organisation did not apply to be recognised on it. Therefore, not only is it not necessary, it could have unintended and undesirable side-effects.
In answer to the noble Lord, Lord Alli, the position with regard to shared buildings is that the requirement for all religious organisations formally sharing a building to consent to registering that building for the marriage of same-sex couples is a vital protection. It allows religious organisations to choose to conduct same-sex marriages and helps to protect those that do not wish to do so. We are giving religious organisations the option of consenting to the registration without having to agree to conduct marriages themselves. This provides a way in which each organisation can respect the beliefs of the other. The Bill is not only about choosing to conduct same-sex marriages but about protecting religious freedom. We are seeking to ensure that the protections provided by the giving of consent in the main opt-in also apply to organisations that happen to share their buildings.
I am not sure that that fully addresses the point but the basic structure is that if there is a sharing arrangement—and there is statute for church buildings to be shared—and one religious organisation decides not to opt in and does not consent to the registration of the building for same-sex marriages, same-sex marriages could not take place there. Alternatively, the religious organisation could consent to the building being used for same-sex marriages although it would not itself permit same-sex marriages. But I will look carefully at what the noble Lord, Lord Alli, said and if he feels that I have not addressed the point, I will certainly write to him.
The noble Lord, Lord Martin, raised two very interesting issues. My understanding is that the position with regard to marriages in the Church of Scotland—it is not just St Columba’s, Pont Street and Crown Court in Covent Garden; there are Church of Scotland congregations in places such as Corby, I think—is that marriages solemnised by the Church of Scotland in England and Wales are under the law of England and Wales and accordingly the procedures set out in the Bill regarding the opting-in by religious organisations would apply to the Church of Scotland. That would ultimately be a matter, I suspect, for the General Assembly of the Church of Scotland. Obviously, what happens with legislation north of the border is a matter for the Scottish Government. I understand that they plan to publish a Bill relatively soon. Of course, there is a difference between marriage in Scotland and in England: in Scotland it is a licensing of those who perform marriage as opposed to the place of marriage being of crucial importance with regard to religious organisations, as in England.
That takes us on to the question of St Mary Undercroft in the Palace of Westminster. The noble Lord, Lord Martin, said that his understanding was that a marriage there could be solemnised only by the rites of the Church of England and by a Church of England priest. That is certainly my understanding. I had a colleague who wished to be married by a Church of Scotland minister there and had to have a civil ceremony beforehand and then have a blessing by a Church of Scotland minister—so much for humanism. It would not be possible under this Bill for the marriage of a same-sex couple to take place in St Mary Undercroft using the rites of the Church of England. The marriage of same-sex couples according to the rites of the Church of England can take place only when the General Synod of the Church of England and Parliament pass the appropriate measure; it would be a matter for them. The Chapel could not be used for the marriage of a same-sex couple in accordance with other religious rites unless it had first been approved as a place of worship and then registered for the solemnisation of same-sex marriages with the consent of the relevant authorities.
What may have triggered what the noble Lord read in the newspapers is that this matter was raised in debates in the House of Commons and the Parliamentary Under-Secretary of State at the Ministry of Justice, Helen Grant, made a commitment to consider the matter in Committee. Officials made contact with the Office of the Lord Great Chamberlain to clarify the position on this issue. It is clear that the use of the Chapel is not a matter for the Government but for the Church of England and the House authorities.
Lord Martin of Springburn
I thank the noble and learned Lord. That clarifies the matter. So once again the papers have got it wrong and the true story is that clarification was sought from the Lord Great Chamberlain and the case is perhaps as I stated it, but no Minister has made any approach to seek to get the Crypt—as we call it—turned into a prayer room rather than a church.
Lord Wallace of Tankerness
The position is as I understand the noble Lord to have described it: to my knowledge and that of my noble friend, no Minister has made an approach of the kind the noble Lord describes. As I indicated, the issue having been raised in Committee, the Minister Helen Grant undertook to consider it. Officials approached the Office of the Lord Great Chamberlain—possibly not the Lord Great Chamberlain himself—to seek clarification, and the position on the use or non-use of St Mary Undercroft is as I have set out. I hope that gives clarity.
Baroness Thornton
My Lords, the noble Lord, Lord Elton, is of course right. It is time we moved on and went home.
Amendments 11 and 11A remove registrars’ exemption from the list of individuals who may not be compelled to perform same-sex marriage, meaning that the registrars would have the right to refuse to solemnise same-sex marriage. Amendment 16 provides for registrars to refuse to perform or be involved in performing same-sex marriage on the ground of sincerely held belief. However, it places a corollary duty on the registration authority to provide a sufficient number of registrars to perform marriages of same-sex and opposite-sex couples.
I agree very strongly with my noble friend Lord Alli, the noble and learned Lord, Lord Brown, and the noble Baroness, Lady Barker, who got it just about right. I find it strange that noble Lords are rubbishing the public statement from the national panel for registration because they do not like it. The national panel is a national association of registrars which said that it consulted during the consultation on equal marriage among its members and has given us its legitimate view, for which I am very grateful, as it is very helpful. Noble Lords should hear what that statement says, which is that the national panel is not asking for a conscience clause on the conduct of equal marriage.
I am also slightly puzzled about the evidence from the Joint Committee on Human Rights, which I read over the weekend. For once the committee is very ambiguous about its thoughts on this. Some noble Lords who have spoken today are also on the committee and clearly have very strongly held views. I respectfully suggest that if the committee wants to be more decisive, it needs to go back and have another look at this. I am not sure that the views that it has taken so far have helped the House. If it has reached that position, we need to look at its evidence and see it for what it is—an ambiguous report.
This amendment goes against the principle that we upheld consistently—and voted for—when we were in Government that public services should be delivered in accordance with the laws passed by Parliament and without discrimination. Freedom of belief is a hallmark of democracy and individuals should be able reasonably to express views that relate to same-sex marriage in a professional manner. Public services should also be delivered in a non-discriminatory way.
Registrars provide a public service, implementing the marriage laws as passed by Parliament. Registrars have never previously been given an opt-out on things like performing civil partnerships or remarrying divorced couples—even on the grounds of profoundly held religious belief. Registrars are public servants and it is right that they have a duty to dispense their responsibilities and to deliver services without discrimination. The recent case of Ladele at the European court—a registrar who wanted an opt-out from performing same-sex civil partnerships—shows that in this respect UK domestic law stands up to the challenge under European law. The court found that Mrs Ladele could be required by her employer to register civil partnerships. Performing same-sex civil marriage ceremonies should be no different.
On Amendment 16, I am very pleased that the noble Lord, Lord Elton, seems to recognise that the risks I drew to the attention of the House are legitimate. Notwithstanding that the noble Lord, Lord Martin, and my noble friend Lord Anderson disagreed with me, surely it is our job to test legislation and the amendments to legislation to see whether they pose risks or have unintended consequences. It is very clear that this amendment could open the door to the conscientious objection of registrars to performing civil marriages on a range of issues beyond the gender of the parties, involving, for example, the remarrying of divorced couples or interfaith relationships. We believe that this is an unacceptable risk.
Maria Miller has written that the locks in the Bill specifically exclude,
“registrars and superintendent registrars, making clear that these public servants will have to be ready to take part in marriages of same sex couples. We need to ensure that we strike the right balance between an individual’s right to express their religious beliefs at work and the rights of people not to be discriminated against because of sexual orientation, and we think that the Bill properly draws that balance. The recent case at Strasbourg of Ladele ... showed that in this respect, UK domestic law stands up to challenge under the Convention”.
The Secretary of State is right and we should not accept these amendments.
Lord Wallace of Tankerness
My Lords, I start by thanking my noble friend Lady Cumberlege for introducing this amendment, which has certainly given rise to a good debate. There are clearly some strongly held views on both sides and some powerful arguments, too. I have listened carefully but it is important that I set out and clarify the Government’s position. The noble Baroness, Lady Thornton, has just quoted the Secretary of State, so it may not come as a huge surprise but it is important to give the reasons why we take that view. As the noble Baroness indicated, it is a view that was argued on behalf of the United Kingdom in the European Court of Human Rights in the Ladele case, and the court found that our law at present regarding civil partnerships falls within what is legitimate under the European Convention on Human Rights.
Marriage registrars are public officials performing statutory duties on behalf of the state. We believe that it is an important principle that they should perform their duties in accordance with the law, as decided by Parliament, and without discrimination. I noted—I hope reasonably accurately—what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said: that public servants should, with very limited exceptions, serve the public according to the law as democratically decided. That is fundamentally the Government’s position. If this Bill is passed, the marriage of same-sex couples will be lawful in England and Wales, so marriage registrars must perform their duties in relation to the solemnisation of marriages between both opposite and same-sex couples, without discrimination.
I paid attention to the parallels made with areas such as abortion and conscientious objection in religious education, which were powerfully and sincerely argued. However, it is too simplistic to draw a parallel between a conscientious objection regarding a doctor not performing an abortion and one where a registrar seeks conscientious objection not to perform a same-sex marriage. They are not comparable. For some people with a very strong religious conviction the right to life is paramount and in such circumstances, the argument that the state should not require them to act against their conscience is highly persuasive. I do not think that anyone would reasonably say that same-sex marriage can be seen in the same terms. That was picked up by the noble and learned Baroness, Lady Butler-Sloss, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and my noble friend Lady Noakes.
The most significant difference in terms of the Abortion Act exception is that medical staff do not discriminate on the basis of their patient’s personal characteristics. They do not pick and choose which patients to treat on that basis; for example, on the basis of a particular person’s race or religion. The exception being sought for registrars does precisely that, on the basis of the couple’s sexual orientation. Moreover, for medical staff who object to taking part in abortions that is only a small part of their daily duties, but for a registrar conducting marriage ceremonies, conducting marriage ceremonies is at the heart of what they do.
Reference was also made, not least by the noble Lord, Lord Browne of Belmont, to teachers. I understand that the exception there is not framed as a conscience clause, as such. The provision relating to the ability of teachers to opt out of teaching RE is set out in Sections 59 and 58 of the School Standards and Framework Act 1998. These specify that if you teach at a non-faith maintained school, you are not required to teach RE and cannot suffer any detriment because of that refusal. If you teach at a foundation or voluntary-controlled faith school and are not a reserved teacher, you are not required to teach RE, and, again, cannot suffer any detriment because of that refusal. If you teach at a voluntary-aided faith school, refusal to teach RE in accordance with the religious tenets of the school might well affect your remuneration or promotion, or you might not be employed in the first place. Unless a teacher is specifically appointed to teach religious education they cannot be compelled to do so, regardless of whether they are an atheist or not. Therefore, while I hear the arguments and understand where they are coming from, the parallels are not particularly helpful in dealing with what we are discussing.
The Government are clear that in extending marriage to same-sex couples, the Bill should protect and promote religious freedom. That is why, as we heard again today, it contains a quadruple lock of religious protections. However, the functions performed by marriage registrars are civil in nature. This is also the case in relation to their functions when they have a role in religious marriage ceremonies, such as taking notice of marriages, issuing certificates and being present in cases where there is no authorised person. I am grateful to my noble friend Lord Carlile of Berriew for describing what can happen when making an appointment, and later with the ceremony. Some would say that the example given by my noble friend Lady Barker would be unlikely, because by that stage people would know what was about to happen. Nevertheless, it could still be the case that someone would turn up for their initial appointment and suddenly find themselves met by someone who refuses to see them and take their details. The personal hurt that that could cause should not be underestimated.
Lord Elton
My Lords, the protection extends to conducting the marriage, not preparing for it.
Lord Wallace of Tankerness
My Lords, following that logic, surely a conscientious objection must be as much to facilitating a marriage as performing it—otherwise, it puts into question what the nature of the conscientious objection is.
As public officials, marriage registrars must perform their duties for all members of the public, without discrimination on grounds of sexual orientation or any other matter. They should not be able to pick and choose which members of the public they provide their services to. Amendment 16 refers to,
“consent to the taking place of, a relevant marriage ceremony to which he has a conscientious objection … The conscientious objection must be based on a sincerely held religious or other belief”.
The noble Lord, Lord Alli, and my noble friend Lord Carlile of Berriew picked up on the point that that could include the marriage of divorcees. No doubt the right reverend Prelate will correct me if I am wrong, but certainly until relatively recently it was the position of the Church of England that it would not marry divorcees. Therefore, in many cases divorcees who could not marry had little choice but to go to a registrar. If the registrar adopted the same religious view as that taken by the Church of England and sought exemption through conscientious objection, it would beg the question of how the couple could ever find someone to marry them unless perhaps they found a non-Church of England church that would be willing to do so. The door is open to that kind of religious and conscientious objection. It is not a reasonable position that a public official should refuse to provide a service to a member of the public.
The right reverent Prelate the Bishop of Hereford and my noble friend Lady Berridge referred to the fact that the JCHR had reported on this. I rather share the view of the noble Baroness, Lady Thornton, that the position is slightly mixed. This is not a criticism, because clearly the committee heard difficult, competing evidence, and no doubt competing views such as those heard by the Committee this evening. Of course, the Government will give a considered response to the JCHR. It is a very tight timescale, but we would aim to do so before Report. I hope we can do that.
The Government are confident that the Equality Act 2010 provides the right balance between protecting the right of freedom of expression and the right to manifest one’s belief, alongside the need to protect the rights of others. As was said on a number of occasions in this debate, the European Court of Human Rights, in the Ladele case, supported this view. I will not go over all the details; they were well rehearsed. The United Kingdom refuted the case put by Ms Ladele when she went to the European Court of Human Rights. We argued that our law strikes the right balance between an employee’s right to express their religious beliefs at work and the rights of people not to be discriminated against because of sexual orientation. We believed our law was compatible with the convention and that the Court of Appeal made the right decision under domestic law and the convention, given the particular circumstances of the case. As has been noted, the Court of Human Rights generally upheld that view and noted that the court generally allows national authorities a wide margin of appreciation when it comes to striking a balance between competing convention rights. It held that the national authorities in this case, the local authority employer and the domestic courts, did not exceed that margin of appreciation available to them.
Scotland: Independence
Lord Wallace of Tankerness Excerpts(11 years, 2 months ago)
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Lord McAvoy
To ask Her Majesty’s Government what if any instructions they have given to each Government department to outline the impact that independence would have on its responsibilities in Scotland.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, the Government announced last year that they would carry out a detailed analysis of how Scotland and the rest of the UK contribute to and benefit from our partnership. This work will look at issues including the legal and constitutional set-up, the economy, wider policy issues such as the United Kingdom’s place in the world, defence, energy and welfare. This work is being carried out across government by policy experts in relevant areas.
Lord McAvoy
My Lords, I thank the Minister for his Answer. He will, like me, be confident that the overwhelming body of evidence supplied by government Ministers and their departments will show that Scotland is far better off staying within the union. However, the Minister knows that we must be careful with how this is portrayed in Scotland. We do not want lecturing or hectoring. I ask the Minister to do whatever he can to ensure that government Ministers produce and present these facts in such a way that they do not alienate opinion in Scotland.
Lord Wallace of Tankerness
I very much agree with the initial comments of the noble Lord that Scotland is better within the UK and the UK is better with Scotland in it. I take his point, too, that it is important that the tone of the argument is set, and that it is positive, because there is a very positive case to make. However, pointing out some of the difficulties and challenges of independence does not mean that we are scaremongering or being negative. For example, the paper recently published on currency showed the disadvantages of a number of other options but also showed, beyond peradventure, that the best option of all is for Scotland to remain part of the United Kingdom.
Lord Forsyth of Drumlean
My Lords, will my noble and learned friend indicate what the Government’s position will be on the West Lothian question and on the Barnett formula? Surely, if people are going to vote in the referendum and wish to remain in the United Kingdom, they need to know what the position of their representatives at Westminster will be, and what the funding position in the future will be.
Lord Wallace of Tankerness
My Lords, as my noble friend will know, the commission established to look at the so-called West Lothian question, under the chairmanship of Sir William McKay, reported a couple of months ago, and obviously the Government are looking at and considering the detail of that report. It has been made clear on a number of occasions that the Government do not have any plans to reform or revise the Barnett formula, as our primary objective is to get the UK government finances back into a healthy situation.
Lord West of Spithead
My Lords, I am sure that the Minister agrees that defence and security are the most important duties of any Government. Is the Minister content that sufficient work is being done on looking at the full detail of the inconsistency of what the SNP says about providing a new MoD, command and control, intelligence and the Five Eyes community? These are a whole raft of issues that are crucially important for the defence of these islands in the future should, by some error or whatever, Scotland become separate. Those things need to be looked at, and I am not sure that they are being looked at.
Lord Wallace of Tankerness
My Lords, I certainly agree that one of the primary responsibilities of government is the defence and security of the realm. The report, which was published two weeks ago by the Foreign Affairs Committee of the House of Commons and the Economic Affairs Committee of this House, touched on a whole stream of important issues related to defence. Defence is one of the issues on which a paper will be published in the Scotland analysis series. It is important to recognise the benefits Scotland gets, not only from our defence of the UK but from the number of jobs that are dependent on the defence industries in Scotland.
Lord Maclennan of Rogart
My Lords, have the Government given collective consideration to how to get across to the general voting public in Scotland the facts that are being made available, in a department-by-department process? It is extremely important to bear in mind that the media are not giving detailed consideration to these issues. The Government might think it right to communicate with the electors directly on these matters. If we follow the pattern of the previous referendum, on alternative voting, we had two weeks of media coverage of that issue, although admittedly it was nothing like as important as the break-up of Britain. However, if we do not get detailed knowledge to an intelligent electorate, we could find that the public react against the general condition of the country at the time.
Lord Wallace of Tankerness
My Lords, I take my noble friend’s point about the importance of communicating the arguments. The paper on currency to which I have just referred in my response to the noble Lord, Lord McAvoy, had so many points in it that some did not necessarily get the full airing that they might have. The next paper in the series will be on the financial services industry, and numerous issues could arise from that. It is not anticipated that there will be any separate government publication in the run-up to the election in the way that there was in the run-up to the EU referendum of 1975. However, it is important that the Government communicate these important messages and arguments for the union in a way that is readily accessible. It is important that they are underpinned by some weighty analysis, but there is also a case to be made for making sure that the arguments are readily available to the public.
Lord Butler of Brockwell
My Lords, what guidance has been given to the Civil Service about maintaining neutrality between the two sides in the lead-up to the referendum on independence?
Lord Wallace of Tankerness
My Lords, I recall that some time ago, following the election of the present Scottish Government, the previous Cabinet Secretary gave some indication that Scottish civil servants working for the Scottish Government would be expected, as are UK government civil servants, to promote the policy of their Government. Likewise, civil servants working for the Scottish Government, albeit that they are UK civil servants, will be expected to work towards the policy of the Scottish Government.
Lord Foulkes of Cumnock
My Lords, will the Minister answer a question that his namesake, the noble Lord, Lord Wallace of Saltaire, could not, and confirm that the Cabinet has taken two decisions: first, that there should be no pre-negotiation with the Scottish Government, which is absolutely correct; and, secondly, that there should be no contingency planning, which is quite wrong, particularly, as my noble friend Lord West said, in the area of defence? Will the issue of contingency planning be reconsidered by the Government?
Lord Wallace of Tankerness
My Lords, the Government have indicated that there will be neither pre-negotiation nor contingency planning. I can understand why people talk about red lines and making things clear, but to ask the United Kingdom Government to prioritise one part of the United Kingdom over another would not sit easily with a Government who seek to serve the interests of all our citizens in all parts of the United Kingdom. It is not in the interests of Scotland or of the United Kingdom that we should start to unstitch the fabric of the United Kingdom before the people of Scotland have had their say.
Succession to the Crown Bill
Lord Wallace of Tankerness Excerpts(11 years, 3 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I understand that in tabling the amendment my noble friend Lord Cormack sought to put beyond doubt the requirement that the sovereign be a Protestant and in communion with the Church of England. I readily recognise the concerns expressed by my noble friend; at every stage of the Bill, he has clearly sought to find a means of addressing them. I readily acknowledge that this amendment is, to use his words, more modest than those that he moved in Committee and on Report. However, as has been indicated in our short debate, the Government believe that it is unnecessary as both the Bill of Rights and the Act of Settlement are unambiguous with regard to the requirement that the sovereign be a Protestant and in communion with the Church of England.
The Bill does not pave the way to change that. No one who is not in communion with the Church of England may ascend the throne. That rules out Roman Catholics as well as many other people. I have concerns that by attempting to reiterate this, and to single out the peculiar and particular prohibition on Roman Catholics, one risks causing offence. I am sure that that was not intended, but one does risk causing offence to many of Her Majesty’s loyal subjects when there is no good reason in law to do so. I do not believe that we should put into a Bill words that could cause unnecessary offence and reopen wounds. It has also been said that the amendment is unnecessary in law and could therefore lead to other jurisdictions that have responsibilities in this regard putting forward amendments and unpicking an agreement that has been very carefully constructed across the realms over a considerable time.
As the Supreme Governor of the Church of England, the sovereign must be both Protestant and in communion with the Church of England. For this reason, we are not removing the bar on Roman Catholics acceding to the throne, as set out in the Act of Settlement and Bill of Rights. Of course, we have heard expressed in a number of our debates the perceived problem of the heir to the throne marrying a person of another faith. That problem exists under present law; it is not one created by the Bill. Clause 2 merely provides parity of treatment between Roman Catholics and people of all other non-Protestant faiths.
Nevertheless, I have recognised and understand the profound concerns that have been expressed. As the House knows, following a commitment made in Committee, I met Monsignor Stock on behalf of Archbishop Nichols and the Catholic Bishops’ Conference of England and Wales to discuss this matter. As the right reverend Prelate the Bishop of Guildford indicated, Archbishop Nichols indicated that the wording had been discussed with the Cabinet Office. I have the specific consent of Monsignor Stock to say that he was speaking on behalf of Archbishop Nichols as president of the Catholic Bishops’ Conference of England and Wales, and can inform the House that the view taken by the Catholic Church in England and Wales is that in the instance of mixed marriages the approach of the Catholic Church is pastoral. It will always look to provide guidance that supports and strengthens the unity and indissolubility of the marriage. In this context the Catholic Church expects Catholic spouses to sincerely undertake to do all that they can to raise children in the Catholic Church. Where it has not been possible for the child of a mixed marriage to be brought up as a Catholic, the Catholic parent does not fall subject to the censure of canon law.
Lord Trefgarne
Would it be possible for a copy of this letter to be placed in the Library of the House?
Lord Wallace of Tankerness
My Lords, this was not a letter, it was a form of words that was agreed between Monsignor Stock and the Cabinet Office that I have placed on the record. There was a letter to me from the right reverend Prelate the Bishop of Guildford that enclosed a copy of a letter that indicated what I have just said. I do not believe that it is in my gift to say that it will be placed in the Library, but I reassure my noble friend that I have just used the words that were in that letter. I thank the right reverend Prelate the Bishop of Guildford for his contribution to our debates, both today and on Report, and for what he did following Report in engaging further with Monsignor Stock and the Catholic Bishops’ Conference of England and Wales. Indeed, on Report the right reverend Prelate, in a speech that I believe was very helpful to the House, concluded that the teaching of the Catholic Church on this matter,
“bears out the Government’s assurance that the Roman Catholic rules are not a block to the smooth functioning of the proposed succession rules”. —[Official Report, 13/3/13; col. 282.]
As I have stated both in Committee and on Report, we have a very clear signal that the overriding concern in Catholic pastoral guidance to couples in mixed marriages is the unity and indissolubility of the marriage. We have an equally clear signal from the Church of England, included in their briefing note to Members, that:
“The present prohibition … is not necessary to support the requirement that the Sovereign join in communion with the Church of England”.
Again, I recognise the concern with which my noble friend moved his amendment. I reiterate that the requirement that the sovereign be a Protestant remains as solidly placed in law as ever. In this context, I invite him to withdraw his amendment.
Lord Cormack
My Lords, I am grateful to those who have taken part in this brief but, I think, important debate. I listened with particular care to the speech of the right reverend Prelate and, of course, to what my noble and learned friend said. I believe that we have gone some distance in our three debates. We now have certain statements on the record that I believe are helpful to those of us who have concerns but are in no sense anti-Roman Catholic. My noble friend Lord Deben knows that when he left the Anglican Church to become a Roman Catholic, I honoured him for that decision. A similar decision was made by Miss Ann Widdecombe. I myself agonised at that time although in the end, instead of joining the Roman Catholic Church, I found myself elected to the General Synod to take the place that my noble friend had vacated.
I believe very much in the importance of our established church. However I may die, whether as an Anglican or as a Roman Catholic, I hope that the Church of England will continue as the established church of England. It is because of that, and because our constitution, as has often been said, is like a beautifully constructed watch, in that if you take one little piece out the whole thing will fall apart, that I have expressed my concern in three brief debates. The last thing I wish to do is to cause offence to anyone, particularly Roman Catholics, as I hold the Roman Catholic Church in high regard and always have. I very cheerfully pray, as we do frequently in Anglican churches, for the Pope. I would have liked to have seen something in the Bill that made explicit what is implicit, but I understand the points that have been made, particularly by the noble Lords, Lord Janvrin, Lord Fellowes and Lord Luce. Because I think that we have moved some distance, I will spare the House the exercise of going into the Division Lobbies.
On a final note, I hope that something can go into the Library of the House, as requested by my noble friend Lord Trefgarne. When I concluded my speech at the end of Report, I expressed the hope that at a fairly high level there could be an exchange of letters, and I hope that that is still possible.
I thank my noble and learned friend for the concern and sympathy with which he has listened to the arguments advanced. I beg leave to withdraw the amendment.
Lord Eden of Winton
My Lords, this is a bit of a minefield, so I tread with care and trepidation. I will make a very brief intervention, primarily to say to my noble friend how much I recognise the concerns he has expressed and the care with which he has followed these matters through. I know that he is extremely anxious, not only on his own behalf but on our collective behalf, that the legislation now going through the House is correct in so far as it seeks to affect the role and rights of the sovereign and sovereign succession and that it in no way undermines the position of any Member of your Lordships’ House, let alone that of any citizen outside the House.
I believe that the main answer to the questions that my noble friend raises rests in the sovereignty of Parliament. It is, as I perceive it, the right of Parliament to make alterations to legislation, even including the Bill of Rights. As I interpret it, the primary purpose of the Bill of Rights was to protect the interests and the rights of the people. The rights of the people are currently preserved in the powers and obligations of the Houses of Parliament and of the Government of the day. It is for us to make such amendments as we feel are necessary or desirable. In this particular case, a narrow amendment is being suggested which in a way underlines what was required of the sovereign at the time of the Bill of Rights; namely, that the heir to the Throne shall be a Protestant. There is nothing more to it than that. It therefore seems to me that we are exercising a traditional and constitutional right of Parliament to make amendments and alternations as we think proper. We are not in any way going against the obligations or commitments of the Crown. In carrying these matters forward, we shall be preserving the constitutional requirement in this country that the future monarch shall be a Protestant and a practising communicant member of the Church of England.
I do not think that the worries and anxieties my noble friend has expressed so profoundly are justified and, as he himself said, my noble and learned friend the Minister has given a great deal of care and attention to these issues and has written a letter of some considerable length to him that certainly satisfied me in the arguments put forward.
Lord Wallace of Tankerness
My Lords, I certainly understand that my noble friend Lord James of Blackheath has had serious, profound concerns about this Bill which he expressed even before Second Reading. I recognise the persistence and diligence with which he has continued to raise these issues. I am grateful for his kind comments and I think he would recognise that the comments and concerns he has raised have been given proper consideration.
It appears to me that my noble friend is concerned that, in allowing an heir to the Throne to marry a Catholic, this Bill would contravene the promises that each sovereign is required to make to maintain the established Protestant religion and in some way subvert the Bill of Rights or the Act of Settlement. It will come as no surprise to my noble friend that I disagree with his view, as I have made clear on a number of occasions in your Lordships’ House. Again, I want to make it quite clear that we are not amending the provisions of the Bill of Rights or the Act of Settlement which say that the sovereign has to be a Protestant.
My noble friend Lord Eden of Winton put his finger on the point. Indeed, I wrote at some length in my letter to my noble friend Lord James about the sovereignty of Parliament in the case of Jackson v Attorney-General in which the House of Lords considered the Parliament Act 1911. The late Lord Bingham said:
“The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in Parliament … Then, as now, the Crown in Parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wished”.
With a former Lord Advocate, the noble and learned Lord, Lord Hardie, present, I had better say that there has been some question about that in some respects in Scotland following the dicta of Lord President Cooper in MacCormick v Lord Advocate. Nevertheless, Lord Bingham expressed that view very clearly in the Jackson case.
Given that the prohibition on the sovereign being a Catholic remains, we do not believe that there is any conflict between the Bill and the Accession Declaration or the promise made by the sovereign to preserve the Presbyterian Church in Scotland. I do not think I can really elaborate on it. My noble friend and I are going to have to agree to disagree because we believe that there is nothing in this Bill which subverts the Bill of Rights, the Act of Settlement or the oath which Her Majesty made on her accession. In the circumstances, I invite my noble friend to withdraw his amendment.
Lord James of Blackheath
I thank the Minister for his reply. I reassure him immediately that my concern here is not about the religion of the monarch. I gave up religion at the age of 19 when I was studying for ordination to the Church of England. I discovered that while the Catholics burnt people because they thought it released the soul to go to heaven quicker in order to plead for mercy, the Protestant church was allowing hanging, drawing and quartering on the forecourt of St Paul’s Cathedral—where we all walked last week—to be able to discharge the secular crime of treason under the guise of being a religious crime against the church. At that point my faith crumbled very rapidly and was never restored.
My concern here is not primarily those factors. It is that we are putting Her Majesty in a position where we are asking her to breach the coronation oath, which I would not do under any circumstances. I have provided a suggestion as to how we may circumvent that by borrowing an initiative of the Duke of Wellington from 120 years ago, but none the less we need to be sure that it would work and that is my concern. If the noble Lord will answer that, I will be happy to withdraw my amendment.
Lord Wallace of Tankerness
My Lords, I indicated on Report that I would report to the House once the necessary steps in each realm had been completed and we were in a position to commence the legislation simultaneously. I reiterate that commitment. As it may be of interest to your Lordships, I can inform the House that since our debate on Report, Royal Assent was given to the Canadian Succession to the Throne Act on 27 March. We received confirmation from the Government of Antigua and Barbuda that, based on the nature of their constitution, they will not need to legislate to give the changes effect, and that the Council of Australian Governments agreed on 19 April, last Friday, to a process to change their laws.
As I have indicated on a number of occasions, the provisions in this Bill have been carefully worked out in agreement with the realms, and it is important that we now proceed to pass this Bill and show that we have been able to fulfil the task asked of us by the realm Prime Ministers in Perth in 2001. It is an important piece of legislation that has its roots in securing better equality, and certainly we await with great expectation the birth of a child to their Royal Highnesses the Duke and Duchess of Cambridge. We wish them every health, in particular the Duchess as she proceeds towards the birth of her child. In doing so, we know that if this Bill passes, and if the required processes take place in the other realms, that child, irrespective of whether it is a boy or a girl, will take its place in line to the throne ahead of any subsequent siblings. Therefore, I beg to move that this Bill do now pass.
Lord Trefgarne
My Lords, I do not intend to delay the passage of this Bill for more than a few moments. It is sad that this Bill has been driven through with such speed. Many of us would have preferred a Joint Select Committee, for example, to consider some of the important constitutional implications that it raises, and indeed changes. However, that has not been the case, and therefore that, for now at least, must be that. This Bill has also set running the hare of what happens to the hereditary peerage with regard to the succession arrangements for hereditary peers. I must tell your Lordships that those arrangements are, as I understand it, a great deal more complicated even than they are for the Crown. I dare say that if Bills come forward for that purpose they will delay the noble and learned Lord very much longer than this Bill has.
Scotland: Referendum
Lord Wallace of Tankerness Excerpts(11 years, 3 months ago)
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Lord Foulkes of Cumnock
To ask Her Majesty’s Government what discussions they have had with the Scottish Government regarding the arrangements for the referendum on independence.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
The United Kingdom Government had a number of discussions during 2012 regarding the arrangements for the referendum on independence. These discussions led to the details set out in the referendum agreement on 15 October. As with the agreement, we continue to work constructively with the Scottish Government to ensure that there is a legal, fair and decisive referendum on Thursday 18 September 2014.
Lord Foulkes of Cumnock
I am grateful to the Minister for that reply. Have the Minister and his colleagues had time to consider the request from the First Minister of Scotland for the Prime Minister to appear in face-to-face debates on television in the run-up to the referendum? Will he confirm that this request will be completely rejected and that the United Kingdom Government will make it clear that if anyone from the UK Government takes part it should be the Secretary of State for Scotland, his deputy or the Advocate-General?
Lord Wallace of Tankerness
My Lords, I have indeed heard the First Minister’s call for a head-to-head debate with the Prime Minister. I also recall the First Minister warning London-based politicians such as the Prime Minister to keep out of the referendum campaign, so he cannot have it both ways. While I accept the challenge and would be delighted to take part, one might also ask whether the First Minister will go head-to-head with the leader of the Better Together campaign, Mr Alistair Darling, who at least has a vote in the referendum, unlike the Prime Minister. However, let me make this clear: the Prime Minister will argue very vigorously for Scotland’s continuing place in the United Kingdom.
Lord Forsyth of Drumlean
My Lords, will my noble and learned friend acknowledge that the Prime Minister is not a London-based politician? He is Prime Minister of the whole of the United Kingdom. Will he not agree that the referendum on independence for Scotland is clearly a matter for Scotland? However, if we were to move to devo-max or some form of federalism, that would be a matter for the whole of the United Kingdom, which would need to be settled by a referendum that involved everyone in the United Kingdom.
Lord Wallace of Tankerness
I certainly agree with my noble friend, and I think I made it clear that the Prime Minister believes in the integrity of the United Kingdom. I believe it was others who suggested that he was a London-based politician. I also hear what he says about so-called devo-max, which is a brand without a product at the moment. I also recognise that that has implications for the other parts of the United Kingdom and that, were we to go down such a road, it would be very important to secure buy-in from those other parts of the United Kingdom.
Lord Wigley
My Lords, will the Minister please confirm that the conduct of the referendum in Scotland is now entirely a matter for the Scottish Parliament, and one for which this place has no responsibility?
Lord Wallace of Tankerness
My Lords, as noble Lords will recall, we agreed to a Section 30 order under the Scotland Act in January of this year, which transferred powers to the Scottish Parliament to determine the nature of the referendum. A Bill has been brought in for a referendum; indeed, another Bill has been brought in to determine the franchise for that referendum.
Lord Martin of Springburn
My Lords, it is not the first time that ballot papers have not been made available in good time for those entitled to a postal vote. Could the Minister, when he next meets the First Minister, ensure that the printer gets the ballot papers to the returning officers so that those who are entitled to postal votes get them?
Lord Wallace of Tankerness
The noble Lord makes an important point. That would be overseen by the Electoral Commission and the Electoral Management Board for Scotland. Unlike elections, where candidates are often not nominated until the last minute, we now know what the question is, so there is no reason why these ballot papers should not be prepared well ahead of time.
Lord Maclennan of Rogart
Will my noble and learned friend indicate how the Scotland analysis programme is progressing, particularly with respect to monetary arrangements and the employment of citizens from either country, to enable the facts to be assimilated by the whole country and to inform the pre-referendum debate?
Lord Wallace of Tankerness
My Lords, the Government have made it clear that they wish the referendum debate to be well informed. That is why we have embarked on the Scotland analysis programme. The first paper on the legal implications and the legal basis of independence was published last month. There will be future papers, including one on currency and financial regulation, which we hope will be published in the near future. It is important that we have a well informed debate, and certainly the United Kingdom Government, through these papers, are determined that we should have just that.
Lord McAvoy
My Lords, the SNP Government have claimed that there will be an increase in oil tax revenues post-independence. However, today we hear from the Centre for Public Policy for Regions that, contrary to what the Scottish SNP Government claim,
“to suggest some sort of new oil-tax revenue boom is about to emerge is not readily supported by the evidence”.
Does the Minister agree that the Scottish SNP Government need to be straight with the people of Scotland about the facts of the decision that they have been asked to make in 2014, so that we can get on with making the case for why Scotland is “better together”?
Lord Wallace of Tankerness
My Lords, I entirely endorse what the noble Lord has said about the importance of getting clear facts. He is right. I have seen the report published today by the Centre for Public Policy for Regions, which makes the point about the uncertainty of the oil revenue. That uncertainty was underlined by the Office for Budget Responsibility in its report last week. We hear representatives of the Scottish Government telling us that we are on the cusp of another oil boom, but in the Cabinet paper that the Finance Secretary presented to the Scottish Government last year, he said that there is a,
“high degree of uncertainty around future North Sea revenues, reflecting considerable volatility in production and oil prices”.
It would be useful if they said in public what they say in private.
Lord Wallace of Tankerness
My Lords, as I indicated, the franchise is being determined by the Scottish Parliament. However, there was agreement that it should be based on the local government franchise, which means that it would include those registered for local elections in Scotland. Therefore, it would exclude people of Scottish origin living in other parts of the United Kingdom. The Scottish Government’s legislation would also seek to extend it to 16 and 17 year-olds residing in Scotland.
Baroness Liddell of Coatdyke
My Lords, is the Minister aware that the date of the referendum coincides with the centenary of the Battle of Loos, where many brave Scottish soldiers gave their lives—my great-uncle, Matthew Lawrie, included—for every part of the United Kingdom? What reassurance can the noble and learned Lord give this House that Scottish men and women currently serving in the British Armed Forces will have the ability to vote in the referendum?
Lord Wallace of Tankerness
My Lords, that is an important issue, which we considered and reflected on during our debates on the Section 30 order. There are a number of ways in which service personnel can register to vote; many Scottish servicemen and servicewomen who are posted outside Scotland will remain entitled to be registered at an address in Scotland, either because they are resident there or because they have a service declaration for such an address. I understand that the Ministry of Defence does an annual advertisement of the service declaration, but I can assure your Lordships’ House that we will encourage the ministry to redouble its efforts in that advertisement in the run-up to, and for registration for, the referendum.
Justice and Security Bill [HL]
Lord Wallace of Tankerness Excerpts(11 years, 3 months ago)
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Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendment 1.
Lord Taylor of Holbeach
That this House do agree with the Commons in their Amendments 2 and 3.
(a) the ISC and the Prime Minister are satisfied that the matter—
(i) is not part of any ongoing intelligence or security operation, and
(ii) is of significant national interest,
(b) the Prime Minister has asked the ISC to consider the matter, or
(c) the ISC’s consideration of the matter is limited to the consideration of information provided voluntarily to the ISC (whether or not in response to a request by the ISC) by—
(i) the Security Service,
(ii) the Secret Intelligence Service,
(iii) the Government Communications Headquarters, or
(iv) a government department.
(3A) The ISC’s consideration of a particular operational matter under subsection (3)(a) or (b) must, in the opinion of the ISC and the Prime Minister, be consistent with any principles set out in, or other provision made by, a memorandum of understanding.”
Lord Wallace of Tankerness
That this House do agree with the Commons in their Amendment 4.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I beg to move that this House do agree with the Commons in their Amendment 4 and in doing so, I shall also speak to the other amendments in this group. It is fair to say that the provisions dealing with closed material procedures have undergone significant changes since the Bill was first introduced into your Lordships’ House 10 months ago. This House made significant amendments to the Bill on important issues of principle. A number of noble Lords made their support for these provisions contingent on those changes being made. The Government have brought forward amendments that address the views of this House, and I believe that the measures in the Bill are proportionate and sensible.
In seeking to persuade your Lordships’ House that these amendments should allay the concerns expressed, we should remind ourselves briefly why the Government have brought the closed material procedure—CMP—provisions forward. Fundamentally, they will increase scrutiny of the intelligence and security agencies. CMPs will ensure that intelligence material which would risk the lives of agents and sources, or betray secret techniques is not revealed in open court. At present, the only method to protect very sensitive material such as the identity of informants from disclosure in open court is through public interest immunity. The problem is that a successful PII claim results in the exclusion of that material from the proceedings. Any judgment reached at the end of the case is not informed by that material, no matter how central or relevant it is to the issues in the case. This system works in some contexts, but when a case is so saturated in sensitive material the PII procedure can remove the evidence which one side needs to put their case. Settling is not always an option, and in serious cases involving accusations such as mistreatment, settling does not allow the court to get to the whole truth of what may or may not have happened. The other possibility is Carnduff-type strikeout, which also results in a case not being heard at all. We believe that CMPs offer a way through the dilemma. They enable the courts to ensure that allegations made against the Government are fully investigated and scrutinised, while addressing the potentially severe implications for national security.
A number of changes were made as the Bill proceeded through Committee and, principally, on Report in your Lordships’ House. There were six key amendments on Report, which it is fair to say were taken forward on the basis of a report from the Joint Committee on Human Rights. These increased the discretion available to the judge and allowed any party to apply for the CMP, and indeed for the court to order one, on its own motion.
Turning to the amendments, the Government have sought to take on board the concerns of the Joint Committee on Human Rights and amendments passed in your Lordships’ House. We have brought forward a completely restructured Clause 6—Amendments 4 to 15. There is also a proposed new clause, which is Amendment 16. It addresses the last resort concern by allowing the court to revoke a CMP declaration at any time. The Government’s proposals reflect the intention underlying the amendments made in this House, but also seek to avoid some unintended consequences that would cause problems in practice. Under these amendments the judge now has total discretion over whether to make a CMP declaration following an application by any party to the proceedings, or a Secretary of State, should the Secretary of State not be a party to the proceedings. The court also has the power to order a CMP declaration of its own motion. In making the case for CMPs, the Government argued that they can sometimes be fairer for claimants, too. The courts have confirmed that in some circumstances claimants’ cases will automatically fail without a CMP.
The Joint Committee on Human Rights, and this House observed and argued, rightly, that if CMPs are sometimes in the interests of claimants, they should be able to apply for them and the court should be able to order CMPs as well. These amendments make some technical changes to the amendments originally passed by your Lordships’ House, but they put all parties to proceedings on the same footing when it comes to making an application for a CMP declaration, and will allow the court to order one of its own motion. Where a non-government party is applying for a CMP declaration in relation to sensitive material they do not hold themselves, their interests will be represented by a special advocate in the closed part of the hearings determining that application. The Government have also fully accepted the amendment passed by this House that gave the judge discretion on whether there should be a CMP declaration. As I reflected in some conversations with my noble friends, many of us in our parliamentary lives have tabled amendments to change “must” to “may” or “may” to “must”. This House passed that this should be a change from “must” to “may”, which is possibly the most profound amendment that it made. It has some far-reaching consequences with regard to asserting judicial discretion. Previously, if the court was satisfied that there was relevant evidence that would damage the interests of national security were it to be disclosed, the court had no option but to make a declaration. Now the judge does have discretion.
Lord Gilbert
My Lords, I had not intended to take part in this debate but I have been moved to do so. We have heard this evening that this debate is about the reputation of the security services. We have heard it is about 2,000 to 2,500 years of British justice and that we must of course be on our guard to make sure that we do no damage to either of those principles. However, for me the Bill is not about those things at all. I was a constituency MP for 27 years and I can tell your Lordships that what concerned my constituents was that we should not produce a set of circumstances in which several hundred of them could be blown to smithereens on the District line while going about their ordinary day’s business. That is what concerns them, not what we have been hearing this evening. I have not heard that said once throughout this debate—it astounds me.
Lord Wallace of Tankerness
My Lords, the House will agree that this has been a very good and well informed debate and rightly so because the issues we are dealing with are of fundamental importance to our justice system. I do not think anyone who has taken part or who will vote feels at all comfortable about the idea that there should be closed material proceedings. Nevertheless, as has been explained by a number of contributors to the debate such as the noble Baroness, Lady Ramsay of Cartvale, the noble and learned Lords, Lord Lloyd of Berwick and Lord Woolf, and, although he is supporting the amendments, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, there is a need in current circumstances for closed material proceedings.
The present situation, standing the judgment of the Supreme Court in the Al Rawi case, is that closed material proceedings are not available under common law and the Supreme Court invited Parliament to consider the position. We have sought not only to make provision for closed material proceedings but, as we have gone from Second Reading, through Committee and Report, to the other place for debate and back to us, in doing so we have put in place proper safeguards which reflect the values of our justice system.
The noble and learned Lord, Lord Woolf, said it was important that we show the greatest and utmost care and consideration in addressing these issues, and we have done that tonight. I can assure your Lordships’ House that, in reflecting on the amendments passed on Report in this House, Ministers gave careful consideration to how we might respond to them.
The noble Lord, Lord Beecham, asked about the number of cases that had been settled and how much compensation was paid. As I have explained previously, I am not able to comment on the number or details of many of the cases settled as they are often the subject of confidentiality agreements. However, the House will be aware—indeed, my noble friend Lady Berridge referred to it—that a settlement was recently reached with Mr al-Saadi, on a no-liability basis, to the tune of £2.2 million. I am unable to comment on whether actions have been taken against recipients of other settlements. If such actions have been taken, it would be impossible to comment without breaching the terms of the settlement because it could, for example, indirectly reveal the identity of the individuals concerned.
My noble friend Lady Berridge suggested that perhaps the Government had rushed a settlement to get it in before this legislation went onto the statute book. I am sure that noble Lords will agree that it is not desirable for courts to delay the processing of cases in pre-emptive speculation about what may or may not become available in future legislation. It is unhelpful to suggest that that should be the case. It was and is right that the case of Mr al-Saadi and others should be dealt with quickly and fairly on the basis of existing legislation. The alternative of delaying, pending possible future legislative changes, would be unfair to all parties concerned. I certainly would not like to defend such a situation from the Dispatch Box if that allegation ever had any truth.
The noble and learned Lord, Lord Goldsmith, said that, unlike cases in which he was involved when he was in government and introduced closed material proceedings with regard to control orders under which there were restrictions on freedom, what we are dealing with here is just about money. It is about more than just money; it is also about the reputation of, and the trust and confidence in, our security intelligence agencies. It may also be about executive actions—for example, the judicial review of decisions taken by a Secretary of State on national security grounds which would not be the subject of pre-existing statutory CMPs.
As I have said, it is not just a question about money because, at the end of the day, we are trying to ensure that there will be some kind of proceedings available whereby taxpayers’ money is not spent in settling cases where the case has not been proved. My noble friend Lord Phillips of Sudbury referred to secret justice. I have said in these debates that it is second-best justice, but at least it is justice. There is no justice when cases are settled without any proof of the claim being made.
The importance of the safeguards and how we keep these cases to a minimum—they should be the exception—has been reflected in the debate tonight. My noble friend Lord Macdonald has tabled an amendment that would require the courts to have a balancing test akin to the Wiley balancing test that was developed in the context of public interest immunity. The noble and learned Lord, Lord Lloyd of Berwick, explained why he thought that was inappropriate; he said that it was too wide and imprecise. The noble Lord, Lord Owen, and the noble Baroness, Lady Manningham-Buller, indicated that we are also dealing with situations where there might be foreign sources of intelligence and, crucially, human sources who work on our behalf for our security services. They expressed concern that the imprecision of the test would not be helpful.
My noble friend said that he thought the effect of the Bill as it currently stands, without his amendment, would be that the security services and the Government would opt for CMP rather than PII, public interest immunity, and that somehow that would be convenient for them. The noble Baroness, Lady Manningham-Buller, made the important point that Part 1 of the Bill is about scrutiny of the security services, but Part 2 allows for greater scrutiny. If you wish to push something under the carpet, PII, or settling a case without any evidence being led, is one way of ensuring that information does not come out. Albeit closed material proceedings are closed—for all the reasons that people have articulated in this debate they are not as good as open proceedings—they nevertheless allow the court to examine the material that is there and to apply scrutiny to allegations made against our security services, which otherwise would not be the case.
Regarding openness, my noble friend Lady Berridge referred to the president of the Supreme Court, the noble and learned Lord, Lord Neuberger, and what he said this weekend. The point that was picked up by the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss, helps make the point that we have been trying to make. Of course, as more than one contributor to this debate has said, the idea of openness is absolutely intrinsic to our system of justice. The noble and learned Lord, Lord Neuberger, reflected that in his comments this week. It was intrinsic and it was instinctive.
It is absolutely fanciful to imagine that, in applying the tests set out by the Government in the amendments before your Lordships’ House tonight, the judges will somehow forget about openness. It is very clear that the justices of the Supreme Court did not need words in a statute to get them to apply their minds to the importance of openness when it came to making the decision, which they did.
Lord Thomas of Gresford
Is my noble and learned friend saying that the judges will apply a balancing test when they exercise their discretion between open justice and the interests of national security—that that is implicit in everything he is saying?
Lord Wallace of Tankerness
My Lords, it is very clear that open justice is part of our justice system. It is implied by the words “fair and effective”, and it did not need any words in statute to encourage the justices of the Supreme Court to have regard to the importance of openness in these situations. The noble and learned Lord, Lord Neuberger, said the following words, to which I think my noble friend Lady Berridge referred:
“No judge can face with equanimity the prospect of a hearing, or any part of a hearing, which is not only in private, but involves one of the parties not being present or represented”.
He went on to say:
“Nonetheless, as Parliament has decided that, in certain circumstances, such a procedure is necessary and permissible in a trial before a judge, we have concluded that, on an appeal from a decision in a case where a judge has considered closed material and given a closed judgment, it may be necessary for this court to go into closed session in order to dispose of the appeal justly”.
In other words, the just decision on that particular point was that the court would go into closed session.
On the other issue, I also do not find there to be any real difference in what Members of your Lordships’ House wish to see, and it is an issue of judgment as to how we achieve it. These cases should be the rare exceptions; there are a very small number of cases. When I gave evidence by letter to the Joint Committee on Human Rights on 31 October, there were 27 cases which, across government, we considered would lend themselves to closed material proceedings. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, expressed his view as to why closed material proceedings were necessary, but in his judgment these amendments should be in the Bill. I have explained this, and indeed others who have contributed to the debate have also explained why it is not necessary.
We all aim at the same thing: at the end of the day, this should take place in a small number of cases. It is a matter of judgment. As I indicated earlier, at this initial gateway of closed material proceedings the court is considering an application having not yet seen all the material for the case. Against this background, we are keen that legislation should avoid the court being required to meet a condition which would then require it to establish definitively at that point whether a fair determination would be possible by any other means.
As I said, that could mean the exhaustion of a range of measures, including a full PII exercise. Of course, as the noble Baroness, Lady Kennedy of The Shaws, said, it is something to which the Secretary of State should apply his or her mind. If one reads the judgment of Lord Brown in Al Rawi, he indicates at one point that it would take 60 lawyers the best part of two or three years to go through all the material. That is the scale. If that is the road down which judges felt that they ought to go because of the wording of the Bill, that would underline much of its purpose.
I also pick up the point made by the noble and learned Lord, Lord Goldsmith, who seemed to think that the means of achieving it being a backstop and a rare exception was the provision in proposed new subsection (1F) about the court having to be satisfied that the Secretary of State had considered PII. We do not even get to that stage, because the court must not even consider the application unless it is satisfied that the Secretary of State has considered PII. The question asked by the noble Lord, Lord Butler of Brockwell, was very much to the point: the safeguards of last resort, as it were, are not that requirement on the Secretary of State but, rather, the courts being satisfied that the disclosure of material would be damaging to national security, and that it would be in the interests of the fair and effective administration of justice for the application to be granted.
Baroness Kennedy of The Shaws
My Lords, I point out to the Minister that I, too, am a member of the Joint Committee on Human Rights. We looked at whether it would take many months for the Secretary of State to review the material. We were firmly of the view that that is not what is required of the Secretary of State at all. It is only about looking at material that would move it into in the special category which would mean that it would require closed material proceedings. This business that it would take insurmountable periods of time to examine the material is not what we are talking about. The Joint Committee was absolutely satisfied on that.
Lord Wallace of Tankerness
My Lords, I fully accept that the Joint Committee on Human Rights and your Lordships’ Constitution Committee have said that it would be undesirable to go down the path of an exhaustive PII. The point that I am trying to make to your Lordships’ House is that when we make law, the Joint Committee on Human Rights will not be deciding how it is interpreted, it will be the courts. The courts will no doubt be at the receiving end of very eloquent and persuasive arguments from special advocates as to why they should exhaust different routes. That is our concern: if we include such words in the Bill which allow such arguments to be made, the courts may well feel that they must take those exhaustive steps before entertaining an application for closed material proceedings. We believe that that would take away much of the purpose of the provisions.
In conclusion, it is not as if we are just leaving it there. As I said in my opening remarks, we believe that the tests that we have in place, giving considerable discretion to the judges, the revocation possibilities during the review and the disclosure phase, and the requirement on the court to consider at the end of all the disclosure whether closed material proceedings should still continue constitute a very powerful weapon in the hands of the court and at judges’ discretion that will ensure that those procedures will be used only in truly exceptional cases.
My noble friend Lady Hamwee asked about the change from “must” to “may”. She is absolutely right: it is only if all those conditions are fulfilled that the court may grant an application for and make a declaration of closed material proceedings. Even at that stage, the court has discretion whether or not to do so. The noble and learned Lord, Lord Woolf, asked whether it gives the judges discretion to do the right thing in the circumstances of the particular case. I very much believe that what we have put in place in the other place does that. I fear that to accept the amendments could in some ways undermine that, although I fully understand why they have been moved. I believe that we have the right discretion for our judges in place. As the noble and learned Lord, Lord Goldsmith, said, trust the judges. On that basis, I beg to move.
Lord Wallace of Tankerness
That this House do agree with the Commons in their Amendment 5.
“(1A) The court may make such a declaration—
(a) on the application of—
(i) the Secretary of State (whether or not the Secretary of State is a party to the proceedings), or
(ii) any party to the proceedings, or
(b) of its own motion.”
Lord Wallace of Tankerness
That this House do agree with the Commons in their Amendment 6.
“(1B) The court may make such a declaration if it considers that the following two conditions are met.
(1C) The first condition is that—
(a) a party to the proceedings would be required to disclose sensitive material in the course of the proceedings to another person (whether or not another party to the proceedings), or
(b) a party to the proceedings would be required to make such a disclosure were it not for one or more of the following—
(i) the possibility of a claim for public interest immunity in relation to the material,
(ii) the fact that there would be no requirement to disclose if the party chose not to rely on the material,
(iii) section 17(1) of the Regulation of Investigatory Powers Act 2000 (exclusion for intercept material),
(iv) any other enactment that would prevent the party from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section.
(1D) The second condition is that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration.
(1E) The two conditions are met if the court considers that they are met in relation to any material that would be required to be disclosed in the course of the proceedings (and an application under subsection (1A)(a) need not be based on all of the material that might meet the conditions or on material that the applicant would be required to disclose).
(1F) The court must not consider an application by the Secretary of State under subsection (1A)(a) unless it is satisfied that the Secretary of State has, before making the application, considered whether to make, or advise another person to make, a claim for public interest immunity in relation to the material on which the application is based.
(1G) A declaration under this section must identify the party or parties to the proceedings who would be required to disclose the sensitive material (“a relevant person”).”
Lord Wallace of Tankerness
My Lords, for the convenience of the House, I will speak also to the other amendments in this group. The Government have listened to concerns expressed in this House and elsewhere about transparency, particularly around the new closed material proceedings provisions. I know that several Members of your Lordships’ House expressed frustration at the lack of information available about how many CMPs take place.
The Government have accepted that the unusual nature of CMPs means that there would be significant public and parliamentary interest in more information about how the provisions in this Bill will operate. A strong view was expressed in this House, although no amendments to the Bill were passed, that reporting and review arrangements would be valuable safeguards.
The Government have brought forward amendments that address these concerns. We decided to adopt the expert view of the Constitution Committee by providing for annual reporting to Parliament and for a review of the CMP provisions under this Bill to be conducted five years after Royal Assent. The Joint Committee on Human Rights also made similar recommendations.
Given the often lengthy nature of litigation, with cases often lasting more than a year and sometimes several years, we believe that the frequency of review under these provisions allows for regular but meaningful reporting and for a review to be informed by enough cases to provide for substantiated conclusions and reasoned recommendations where necessary.
An annual report is the most proportionate approach. We expect that the CMP provisions in the Bill will be used rarely. More frequent reports may contain too few data to be meaningful. Annual reports will not, however, be the only way in which facts relating to cases involving CMPs will be made public during the reporting period. The Government made an amendment when the Bill was last considered by this House to ensure that where an application is made under Clause 6(2), that fact must be reported to the other parties in proceedings; and there are already existing mechanisms by which the courts publish their open judgments and the media report on cases of interest to the public.
The reports will focus on the volume of cases and applications. The amendment lists the matters of key concern to be included in the annual report as: the number of applications for a CMP declaration and by whom the applications are made; the number of declarations and revocations made by the court; and the number of judgments published, both open and closed, with respect to the determination of Section 6 proceedings—this would include judgments made on the substantive trial and judgments made regarding the outcome of the application for a CMP declaration. The reporting arrangements will also cover “deemed” Section 6 proceedings or those treated as Section 6 proceedings.
In addition to an annual reporting requirement, the Government have introduced provisions for a comprehensive review of the operation of the CMP provisions in this Bill after five years, conducted by an independent figure and with a report made to Parliament. We expect such a review to take into account the views of special advocates, among others; to consider efficiency, trends and types of case; and to analyse the numbers provided in the annual reports to reflect on how CMPs are being used. The reviewer will have to take care not to comment on judicial decisions or on how the judge has run particular cases.
In line with most other legislation, this clause provides for the appointment of the reviewer by the Secretary of State. Amendment 19A in the name of my noble friend Lord Marks would require consultation first with the Lord Chief Justices and the Lord President of the Court of Session. We do not believe that such consultation is necessary for a reviewer or commissioner to be independent or to be perceived as being independent, as has been repeatedly shown by the independence displayed by Mr David Anderson QC and other independent reviewers and commissioners. David Anderson has been clear about his views on this Bill, for example, and has been influential in persuading the Government to change their position on a number of issues. Such appointments are now subject to a statutory code for public appointments to ensure that they are undertaken transparently and on merit. This should provide reassurance that the person with the right skills and background will be appointed.
It has also been suggested that a review after a shorter period of time would be better. My noble friend’s Amendment 19B would reduce this period from five to four years, which I note seeks to ensure that the sunsetting provision follows consideration of the reviewer’s report. I believe that given how long litigation can take and the small number of cases expected, five years is the right period for there to be enough evidence for a review meaningfully to draw upon.
Amendment 19C would require a further review every five years. In its report, the Constitution Committee said the House may wish to consider the Bill being independently reviewed five years after it comes into force. We have followed that recommendation. Any reviews should be focused where there is proper justification for them, and they should be proportionate.
We should remember that judges have full discretion over whether to grant a CMP, whether to revoke it at any point in a case, whether they agree with the Secretary of State’s assessment of national security damage, how material should be treated within the CMP, effective management of the case, whether a CMP should continue, and in deciding the outcome. There have also been some suggestions that the unusual nature of the CMP provisions means that a sunset clause would be appropriate. This would allow Parliament the opportunity to revisit the need for the provisions in the Bill once they had been operating for a while. The Joint Committee on Human Rights recommended such a provision but the Constitution Committee did not.
Amendment 19D in the name of my noble friend Lord Marks and Amendment 19E, tabled by the noble Lord, Lord Beecham, seek to introduce a sunset and renewal clause for the new CMP provisions, requiring renewal every five years. My noble friend’s amendment provides for a renewal order to follow completion of the reviewer’s report. His amendment makes it clear that the CMP provisions would cease to take effect except relating to proceedings where a declaration had already been made, thereby not interrupting ongoing cases.
I point out to noble Lords that the effect of this amendment would also be to disrupt the Norwich Pharmacal clauses in the Bill that are intended to bring clarity to the Norwich Pharmacal jurisdiction when sensitive information is involved and to provide reassurance to intelligence-sharing partners, a point that was made in the previous debate by the noble Lord, Lord Owen. Although such a clause would apply to the new CMP Clauses 6 to 10 of the Bill, it would also affect proceedings connected to Norwich Pharmacal, both those where the Secretary of State would need to apply for a CMP and the reviews of certificates issued by the Secretary of State under the Norwich Pharmacal clauses. These proceedings are deemed to be Section 6 proceedings because the case needs to be heard in a closed material procedure to ensure that the outcome of the proceedings is not prejudiced by having already publicly disclosed the very information with which the proceedings are concerned.
Such a sunset clause would undermine the purpose of the Bill and unnecessarily so. Both Houses have agreed that there is a gap in the law, that there are circumstances where a judge may decide that a CMP is preferable, that claimants’ cases must sometimes automatically fail without a CMP and that the judge should have a CMP in his toolkit. Given the wide discretion that we have given the judge about when the provisions should be used, I do not know why we would then want to remove CMPs from the judge’s toolkit.
As I have said, the Bill provides for the procedures of the court over which the judge has discretion and not the exercise of controls by the Executive. I reinforce the point, made in an earlier debate, that international partners have expressed concerns regarding the United Kingdom’s ability to protect sensitive information shared with the United Kingdom in cases where claimants are making allegations against the state and its defence rests on national security material. We risk further undermining the confidence that partners have to share information with us if they feel that we do not have secure processes in place to protect their material while defending government actions. We fear that a sunset clause would introduce unnecessary uncertainty.
As I indicated before, the Constitution Committee did not recommend a sunset clause. In its report it said that the House may wish to consider the Bill being independently reviewed, but not renewed, five years after it comes into force; or rather it did not recommend renewal. The Government have accepted the Constitution Committee’s recommendations, and believe that the report and review provisions are sufficient to provide reassurance about how CMPs are used. I therefore beg to move that the House agrees with the Commons in their amendments.
Lord Marks of Henley-on-Thames
My Lords, I rise to speak to Amendments 19A to 19D in my name as amendments to Amendment 19, concerning review and renewal of the operation of CMPs in the legislation.
In the other place, as my noble and learned friend has explained, the Government conceded that the operation of Clauses 6 to 10 of the Bill should be the subject of a review after five years of the Bill’s operation. That is the effect of Amendment 19. As far as they go, the provisions of the amendment are welcome. They were introduced against the background of the recommendation of the Joint Committee on Human Rights in each of its two reports in November last year and February this year that the operation of Part 2 of the Bill should be subject to annual renewal. This amendment not only fails to meet that recommendation but, as it stands, has a number of significant weaknesses that make it frankly unfit for its purpose.
First, proposed new subsection (1) requires the Secretary of State on his or her own to appoint the reviewer. Yet one of the central complaints about the Bill, as my noble friend Lord Macdonald pointed out earlier, is that in practice it gives too much power to the state and to the Secretary of State in particular. The concerns focus not only on the degree to which the Bill sacrifices common-law principles of fairness and open justice but also on the relationship between the Secretary of State and the courts. That remains true notwithstanding the concessions, important though they are, that there have been on judicial discretion and equality of arms.
The Bill undoubtedly accords to the Secretary of State significant new power to influence how trials of some civil cases may be conducted. How the Secretary of State exercises that power and whether it is found in the light of experience to be either excessive or unnecessary will be fundamental questions for the reviewer to address.
Lord Beecham
My Lords, I support the amendments tabled by the noble Lord, Lord Marks, and I am prepared to say at this stage that I will not be pressing my own amendment, which is on similar terms at least to the last amendment that the noble Lord has moved.
The noble Lord, Lord Butler, has adumbrated a case in which it would seem almost that the doctrine that no Parliament can bind its successor is somehow to be disregarded. Of course, it would be open to any subsequent Parliament to amend this law in any event. Any nation dealing with us will be aware of that. There is not, therefore, a great deal of force in what the noble Lord has been proposing as a justification for supporting the Government’s position on this matter.
The question arises: what is the point of a review? If a review is to take place—and the Government have given welcome acceptance to that concept—where does it lead? Apparently it would lead nowhere. The whole purpose of the review in these circumstances would be vitiated. There needs to be a review, given the nature of the change in our proceedings for us to establish a principle that there should be a renewal, and certainly on that basis I am prepared to support the noble Lord’s amendments.
Lord Wallace of Tankerness
My Lords, this has been a relatively short debate, but nevertheless important points have been made by my noble friend Lord Marks and the noble Lords, Lord Butler and Lord Beecham.
The first point I wish to make with regard to the first amendment in the name of my noble friend is, as I indicated in my opening remarks, that a number of public appointments, not least the appointment of Sir David Anderson, have been made by the Secretary of State without the consultation that my noble friend is suggesting in his amendment. I know that it is furthest from my noble friend’s mind to suggest this, but I am sure we would not want a situation where perhaps the appointment of some independent reviewers was questioned because they had not had the same statutory consultation requirements as have been proposed here.
I do not think anyone can deny that the role that Mr David Anderson plays is a very sensitive one. The independent reviewer of terrorism legislation reviews quite significantly the actions of the Executive. It is in the interests, too, of the Secretary of State that the person appointed as the reviewer is credible. I do not think that the recent appointment by the Home Secretary of the Biometrics Commissioner—or indeed of Mr Anderson—has given rise to any concerns. I would caution against fixing a problem that does not exist, because you might inadvertently create another problem by perhaps casting some doubt on the independence of those who have been appointed under the present regime. The Secretary of State should have the discretion, in a highly sensitive national security context, to ensure the appointment of an individual who does not pose any risk. I am sure that would be agreed across the House.
I listened to what my noble friend said and, as the noble Lord, Lord Butler, pointed out, he indicated that he was perhaps shifting—that is not a criticism at all—on the position of the renewal, given the deemed Section 6 proceedings as far as Norwich Pharmacal is concerned. The noble Lord, Lord Butler, makes an important point with regard to the confidence in which other countries share information with us. The fact that there would be regular potential for renewals puts it in a different category from that raised by the noble Lord, Lord Beecham, and it could raise a problem. In one of our earliest debates, the noble Lord, Lord Butler, indicated from a visit to America that when we discussed information perhaps being withheld, it was not fanciful; it was something that he actually encountered in his role as a member of the ISC.
I simply say to my noble friend and to the noble Lord, Lord Beecham, who ask what is the point of a review if nothing could happen, that the answer lies in what the noble Lord, Lord Beecham, himself said. No one is suggesting that this Parliament is binding its successors by this. I remind the House that it is not just the actions of the Executive and the Secretary of State; it is the whole system that we are setting up, which involves the courts. If a review proved that closed material proceedings were not working, manifest injustice was following on from them and they were not actually doing what they were set up to do, of course it would be possible for a future Parliament, through primary legislation, to repeal the legislation if that system is not working. Indeed, it may not go as far as repeal. It may be that a review would point out particular things that perhaps needed amendment, falling far short of a repeal. So a review could have a proper purpose that does not necessarily require a renewal order to follow on from it. In these circumstances, I invite the House to support and approve the amendments that have been brought from another place and I invite my noble friend not to move his amendment.
Lord Wallace of Tankerness
That this House do agree with the Commons in their Amendment 19.
“Review of sections 6 to 10
(1) The Secretary of State must appoint a person to review the operation of sections 6 to 10 (the “reviewer”).
(2) The reviewer must carry out a review of the operation of sections 6 to 10 in respect of the period of five years beginning with the day on which section 6 comes into force.
(3) The review must be completed as soon as reasonably practicable after the end of the period to which the review relates.
(4) As soon as reasonably practicable after completing a review under this section, the reviewer must send to the Secretary of State a report on its outcome.
(5) On receiving a report under subsection (4), the Secretary of State must lay a copy of it before Parliament.
(6) Before laying a copy of a report before Parliament under subsection (5), the Secretary of State may, after consulting the reviewer, exclude from the copy any part of the report that would, in the opinion of the Secretary of State, be damaging to the interests of national security if it were included in the copy laid before Parliament.
(7) The Secretary of State may pay to the reviewer—
(a) expenses incurred by the reviewer in carrying out functions under this section, and
(b) such allowances as the Secretary of State determines.”
Lord Wallace of Tankerness
That this House do agree with the Commons in their Amendments 20 to 24.
Lord Wallace of Tankerness
That this House do agree with the Commons in their Amendment 25.
Lord Wallace of Tankerness
My Lords, I beg to move that this House do agree with the Commons in their Amendment 25. This is a minor technical amendment. It removes the privilege amendment which was inserted into the Bill at Third Reading in this House to recognise the privilege of the other place to control any charges on the people or on public funds. The removal of this amendment at this point is standard procedure.
Lord Wallace of Tankerness
That this House do agree with the Commons in their Amendments 26 to 45.
“(6) The ISC may take evidence on oath, and for that purpose may administer oaths.”
Succession to the Crown Bill
Lord Wallace of Tankerness Excerpts(11 years, 4 months ago)
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Baroness Hayter of Kentish Town
My Lords, this is an interesting discussion but, as the House will know, the Bill has three purposes, all of which are about changing the succession to the Crown. One is to allow women to inherit if they are the eldest; the second is to allow people not to have to forgo their place in respect of the Throne if they were to marry a Catholic; and the third is to allow people to maintain their position should they marry, in certain circumstances, without the monarch’s permission. Those are the three changes to the laws of succession. It seems to us that nothing in the Bill alters the current position that only a natural-born child of a husband and wife can succeed to the Throne. Interesting though these questions are, we would not seek to have them included in this Bill and therefore do not support these amendments.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I thank my noble friends Lord True and Lord Elton for bringing forward these amendments. As my noble friend Lord True said, he brought forward a very similar amendment in Committee and it is important that he has given us an opportunity to debate these issues again. Following on from the Committee stage, I assure my noble friend and the House that I have given this matter thought. It is an important matter. When the phrase “heirs of the body” was incorporated into the Act of Settlement no one could conceivably—possibly—have anticipated the kind of advances that we have seen in the past 50 years, which raise these kind of issues, particularly with regard to human fertilisation and embryology.
As the noble Baroness, Lady Hayter, said, the laws governing succession to the Crown require that the descendant be the natural-born child of a husband and wife. As I indicated in Committee and, indeed, as I said to my noble friend Lord True in the letter from which he quoted:
“Although the Adoption Act 1976 and the Family Law Reform Act 1987 refer only to the succession of titles being left unchanged by their reforms, the Lord Chancellor stated at Second Reading of the Bill that became the 1987 Act that there was no intention to alter the rules on the descent of the Crown”.—[Official Report, 28/2/13; col. 1217.]
My noble friend Lord Elton raised the important point about Section 48(7) of the Human Fertilisation and Embryology Act 2008 concerning England, Wales and Northern Ireland, which has the effect that nothing in the sections concerning parenthood in cases of artificial reproduction,
“affects the succession to any dignity or title … or renders any person capable of succeeding to or transmitting a right to succeed to any such dignity or title”.
Although I acknowledge that the Crown is not expressly mentioned, it is the Government’s view—we have given this considerable thought, and the phrase “the lesser must include the greater” has already been used—that if titles are not affected by this then, a fortiori, neither is the Crown. Therefore, we do not believe that there is a need for this amendment.
The Government also consider it unnecessary to define marriage as is set out in subsection (1) of the proposed new clause under this amendment, as only a natural-born child of a husband and wife can succeed to the Throne. We believe that that is clear as a matter of common law, as I think my noble friend Lord True acknowledged. I do not think that my noble friend referred to this in moving his amendment, but my noble friend Lord Trefgarne did pick up on proposed new subsection (3), on which I was going to reflect, because I think my noble friend Lord True said that the last thing that he wanted to do was engender controversy. I fear that this could become quite a controversial matter if Parliament is asked to pass a resolution on whether proposed new subsections (1) and (2) would apply, but it may be that he was not particularly pressing that leg of his amendment.
Lord Elton
Before my noble and learned friend sits down, perhaps he could clear up one thing in my mind. I certainly support my noble friend but if he were to withdraw at a later stage, I would be minded to continue unless I was satisfied.
My noble and learned friend has again rested importance on the definition within the HFEA 2008, but he preceded that by saying that the real defence was in the interpretation of “heirs of the body” and “natural-born”. Therefore, that is not relevant, if that is the full defence. If the lesser must include the greater, the Crown is the fount of honour and if you imagine it as just that—a spring of water—it can be pure until he upsets his picnic basket into it. It seems to me that the picnic basket defence is in what he proposes but the actual spring water is not protected.
Lord Wallace of Tankerness
Without a lot of thought, I am not sure that I want to embrace that particular analogy. The point I was seeking to make was that if the transmission of a title of the peerage is not affected by the developments that appear in the legislation, a fortiori nor should the succession to the Crown be affected. It is obviously far more significant—I am searching for the right adjective—and of far greater importance than the transmission of a title. Therefore, our belief is that that would not be affected and that in this case the lesser must include the greater.
I have also indicated that with regard to the heirs of the body, it is the position, which my noble friend Lord True accepted, that only a natural-born child of a husband and wife can succeed to the Throne. That is quite clear as a matter of common law. He then went on, as my noble friend has done, to raise more recent statutes. However, as I have indicated, my noble friend Lord Jopling raised an important point about where the child is the natural child of the mother and father. I want to reflect on that; it is only proper to do so. I shall certainly advise and write to my noble friend, and copy the letter to others who have taken part in this debate. On that basis, I invite my noble friends not to press their amendments.
Lord True
My Lords, I thank my noble and learned friend and all those who have contributed to this short debate. I fully accept the comments made on subsection (3) of the new clause proposed by my amendment.
As I said at the outset, I do intend to press this matter, although I remain troubled even after what my noble and learned friend has said. I make it clear to him that, although I accept his argument that a marriage is a man and a woman and natural-born child thereof as a matter of common law, my concern arises that, as the law may evolve, that understanding may be challenged. I hoped and thought that I had made that clear to your Lordships. Once same-sex marriage becomes part of the settled life of our kingdom, the law will inevitably evolve in response to that reality. A birth of this kind would not be open to a monarch who was in a same-sex marriage. The question would therefore arise about whether such a monarch could have a legitimate heir of the body.
This may seem fanciful to some; it may seem long in the future. However, I believe that Parliament should reflect on the points made in this debate—I was grateful to hear my noble and learned friend say that he would do so—including on the very important point raised by my noble friend Lord Jopling.
The position as I understand it as a layman is that there are certain defences against a potential claim. One is the common law, which may or may not evolve and which may or may not be challenged in the European courts. I hear what my noble and learned friend said, although I have heard that said about many other things which have come to be challenged in the European courts. Furthermore, as I said, the position may not be challenged absolutely on the question at the moment of succession; it could be a matter that arises within the Royal Family. A right is established, and then a right of family and right of property, and then, by accident, that person at a later stage becomes the heir to the Throne. I remain a little concerned as to whether that is a defence.
I heard what my noble and learned friend said about the Human Fertilisation and Embryology Act. I was extremely grateful for the assurances that he gave and the promise to look at it further. The Crown to my mind is something sui generis; the law of the Crown is something separate. It seems to me, as a humble layman construing that reference to dignity and titles of honour, that that was not intended to refer to the Crown.
Therefore, the question potentially lies open and I submit with respect to your Lordships that, at some stage in the future, the matter should be closed. I do not intend to press my amendment, but I shall watch with interest what my noble friend Lord Elton may do at a later stage. However, I hope that, at some point, any scintilla of uncertainty—and I believe that there is uncertainty—will be removed. I beg leave to withdraw the amendment.
Baroness Hayter of Kentish Town
My Lords, as we said in Committee, the Duchy is about property, business, title and, indeed, money. Although we agree that those are, as my noble friend said, important issues and we would undoubtedly welcome the end of the inequality—the mistreatment, we might say, of women—as regards the Duchy, they do not concern the Crown succession and therefore, along with the noble and learned Lord, Lord Lloyd of Berwick, we feel that they are not appropriate for the Bill.
I also repeat the comment that I made in Committee in response to the comment made by the noble Lord, Lord Lexden, about the experience that that gives to a monarch. I said then that the current monarch has done extraordinarily well without having had that title. Perhaps we can take this moment to hope that she is soon fully recovered.
Lord Wallace of Tankerness
My Lords, I immediately associate myself with those wishes of full recovery to Her Majesty. I also thank the noble Lord, Lord Berkeley, for raising the issue, which gave rise to a very good debate in Committee. I certainly valued the input from those who contributed, as I have today, on what is a very important issue with a great historic heritage. The noble Lord referred to the founding charter of 1337 and offered to pass me a copy. I was not sure whether he was going to pass me a copy in Latin or the translation. My higher in Latin from 40-odd years ago is probably so rusty that the translation would be better.
As I sought to explain in Committee, the Dukedom of Cornwall can pass only to the eldest son and heir of the monarch. I will come back to the points made about the exceptions to that. Therefore, when Her Majesty was Heir Presumptive as Princess Elizabeth, she did not hold the title of Duke of Cornwall, and we believe that the position would be the same now if there were a female heir, because of the terms of the charter. It is important to bear in mind that, because of limitation to the eldest son and heir of the monarch, the title cannot pass to a younger brother. The two exceptions raised by the noble Lord, Lord Berkeley—that of Henry VIII, Prince Henry when his brother, Prince Arthur, died and of Charles I, then Prince Charles, when his elder brother, Prince Henry, I think, died—were interesting. The noble Lord made it clear that exceptional steps were taken. That almost proves the point that it was not an automatic transfer of the dukedom. In the case of Charles I—Prince Charles, as he then was—King James asked the courts to make the alteration.
I also indicated that if the monarch has a son who is the heir apparent and that son dies before the monarch leaving a son of his own, the grandson of the monarch, the grandson will become heir apparent, but will not become Duke of Cornwall because he is not the son of the monarch.
It was recognised by those who contributed to the debate that this Bill is not the vehicle for making some pretty fundamental changes to a charter that has not changed, with two exceptions over the years involving parliamentary or court intervention on a one-off basis—if you can call Henry VIII a one-off. To make fundamental change is not the purpose of this Bill.
The noble and learned Lord, Lord Lloyd, asked whether I can give a guarantee that the Government will bring forward legislation. I am afraid I am not in a position to do that. A huge amount of consultation would be required before we were in a position to do that.
As the noble Baroness, Lady Hayter, said, the purpose of this Bill is important, but very limited. I do not believe that it would be appropriate to use this Bill as a vehicle to change the charter. I take the point made by my noble friend Lord Lexden on the valuable experience which the present Prince of Wales has undoubtedly had with regard to his involvement in the duchy. I shall reiterate something that I said in Committee: although the title cannot pass to a female heir, there is nothing to stop her being actively involved in the running of the duchy or, should the reigning monarch so wish, chairing the Prince’s Council. If that was what the monarch wished, that would be entirely possible and would give that valuable experience to which my noble friend Lord Lexden referred.
My noble friend Lord Trefgarne asked about the creation of the Princess of Wales. As he acknowledged, the title of Prince of Wales is not automatically conferred on the heir apparent on his mother or father becoming sovereign. In the case of the present Prince of Wales, it was bestowed upon him some six years after the accession of our present Queen. The noble Lord, Lord Berkeley, said—my noble friend disagreed with the disparaging way it was put—the Crown is the source of all honour and dignity, and I agree with him. It would be a matter for the sovereign, but if the Crown is the source of all honour and dignity and the sovereign chose to establish a Princess of Wales, it would be a matter for the sovereign. However, I do not think it is very helpful to speculate on what might happen at a future date.
For those reasons, I invite the noble Lord to withdraw his amendment.
Lord Berkeley
I am grateful to the Minister for his reply and to all noble Lords who have taken part in this short debate. It seems to me that there is a precedent for Parliament or the courts to change what is in the original charter. It is quite clear that the sovereign, Parliament or the Government—because the sovereign and the Government are both Crown, the same Crown, under certain circumstances—can make this change if they so wish, so the whole thing probably does not matter anyway. On that basis, I beg leave to withdraw the amendment.
Lord Wallace of Tankerness
My Lords, I thank my noble friend Lord Cormack for introducing this amendment and allowing the House a further opportunity to discuss what, from our debates at Second Reading and in Committee, is quite clearly a very sensitive subject and one that quite properly has engaged the interest and concern of a number of Members of your Lordships’ House. Like the noble Baroness, Lady Hayter, I particularly thank the right reverend Prelate the Bishop of Guildford for giving us the benefit of his rich experience and giving us an understanding of how these matters are approached by the Roman Catholic Church. It has helped to inform our debate.
As I understand the position, my noble friend Lord Cormack seeks to give guidance to any royal couple who find themselves in a mixed Protestant/Catholic marriage as to the expectation that a child be brought up as a Protestant if they are one day to accede to the Throne. Perhaps the first thing I should make clear—indeed, my noble friend Lord Crickhowell summed it up very well—is that the relevant legislation simply requires the sovereign to be a Protestant and in communion with the Church of England. There is no statutory provision that the heirs should be brought up as Anglicans. The important point is that the sovereign be a Protestant. Therefore they could be brought up as a Methodist or, like my noble friend Lord Kilclooney, as a Presbyterian. That is the position. The Act of Settlement also requires the sovereign to be in communion with the Church of England. There is no statutory provision with regard to being an Anglican.
That point should also reassure the noble Baroness, Lady Flather, if it is reassurance she is seeking, and indeed the noble Lord, Lord Kilclooney, that there is nothing in this Bill that changes the position that the sovereign must be a Protestant. Given that requirement, the expectation is also clear that should royal parents in a mixed marriage wish for their child one day to accede to the Throne then they must be Protestants. I am sure that it is a matter that a couple will consider very carefully indeed. As was clear from what the right reverend Prelate said, couples throughout the land in mixed marriages have these considerations. As the representatives of the Bishops’ Conference of the Roman Catholic Church said to me when I met them, the overriding concern is the indissolubility of marriage and unity of the partnership and, as the right reverend Prelate said, the importance of praying with the family for the grace of Christian unity as the Lord wills it. That is the background. It is a choice. It is a position that royal parents know they must address.
My noble friend Lord Marks very eloquently and very concisely highlighted the serious practical difficulties that could arise if my noble friend’s amendment were to be incorporated into the Bill. Who would determine whether the upbringing continued to be Anglican? It is important to note the consequences of my noble friend’s amendment. As drafted, it would not only be the child’s prospects of succession that were affected if they were not being brought up as an Anglican; it would also mean that the parent who was in the line of succession to the Throne would have to drop out if the maintenance of the upbringing was not continued. As the noble Lord, Lord Fellowes, indicated, that would affect the succession to the Throne as someone would have to cease to be in the line of succession and that would engage the other 15 realms. Therefore it is not something that is purely a domestic matter.
I note that this amendment would apply to children born of mixed Catholic/Protestant marriages only, not, for example, to a mixed Protestant/Muslim marriage. The intention of this Bill in one of its parts is to remove a specific piece of anti-Catholic legislation with regard to the bar on heirs to the Throne marrying Catholics. It is a bar that applies to Catholics only and to no other faith. I believe it would be unsatisfactory on the one hand to repeal a piece of discriminatory legislation only to replace it with a new stricture that would apply only to those entering into mixed Catholic/Protestant marriages. Indeed, at Second Reading my noble friend Lady Falkner of Margravine highlighted something that exists today—that is, people entering into mixed Protestant/Muslim marriages.
Lord Empey
Can the noble and learned Lord clarify one point concerning the relationship between this legislation and the other Commonwealth countries and what the implications of change would be?
Lord Wallace of Tankerness
My Lords, this is an agreement that has been reached with the other Commonwealth countries. This question may arise in relation to later amendments, but the preamble to the Statute of Westminster Act 1931 gives an expectation that in matters of succession to the Crown there will be the engagement of the other realms of which the Queen is head of state. It is not a matter of binding law but it is certainly an expectation and one that we have considered to be very important in taking forward the proposals in this Bill. As I indicated, the implication or consequence of my noble friend’s amendment is that it would affect the succession, and we would need to consider that with the other realms of which the Queen is head of state.
Lord Cormack
My Lords, I am very grateful to everyone who has taken part in this short but fairly vigorous and interesting debate. I am particularly grateful for the support of the noble Lords, Lord Fellowes and Lord Kilclooney, and others. In response to the noble Lord, Lord Walton of Detchant, it is of course possible to be both an Anglican and a Methodist. The two churches are in communion, so there is no impediment there at all.
I am obviously grateful for the speech of my noble and learned friend the Minister and I shall bear in mind everything that he said. However, whatever is in this Bill, it remains in effect, in his words, discriminatory because there is an insistence that the heir to the Throne cannot be a Roman Catholic. I personally accept that and support it, as will have been apparent from my earlier remarks, but you cannot have it both ways. With this amendment, I was merely seeking to remove an element of ambiguity. I am particularly grateful for the excellent exposition of the right reverend Prelate the Bishop of Guildford, but he, too, ended his speech by saying that he would welcome the removal of ambiguity. He hoped that either in the Bill or in some other manner—perhaps in an exchange of letters or whatever—there could be some form of wording that would make it less ambiguous than it is at the moment. I am grateful to him for that because that is an extremely important point.
Obviously there are strong feelings in all parts of the House and around the country about this. I am conscious of the fact that the noble Lord, Lord Fellowes, who pledged his support, also said that he would reluctantly go into the Lobby. I will not make him reluctant tonight because I do not propose to press the amendment to a Division. There is still scope for further discussion. I was delighted to hear from my noble and learned friend that Third Reading will not come until after the Easter Recess. That gives all of us with an interest in this and other matters relating to the Bill, such as my noble friend Lord True, plenty of opportunity to consult, discuss and then decide whether or not it would be prudent to table another amendment at Third Reading. I certainly have not made up my mind on that score.
I will not detain the House further by referring to every speech but there is the clear issue before us that we are dealing with the succession to the Crown. It has been decided that gender should be no impediment as far as the first born is concerned. It has been decided that marriage to a Roman Catholic, subject to the sovereign’s permission, can go ahead. It has also been reiterated by my noble and learned friend that anyone succeeding to the Crown cannot be a Roman Catholic. Although he introduced—as did my noble friend Lord Marks of Henley-on-Thames—references to other religions, that is not what we are concerned with in this Bill. We are concerned with what is explicitly in the Bill. I still believe that it would be helpful if we had some form of safeguard either in the Bill itself or in an exchange of published letters with the Roman Catholic hierarchy, but we can all reflect on that over the coming weeks. With that, I beg leave to withdraw the amendment.
Baroness Hayter of Kentish Town
I will live up to what the noble Lord, Lord True, expects and disappoint him. Not everyone was here in Committee, when this was discussed at greater length and there was an amendment to reduce the number—I think to four, or even to zero—so it was not as clear-cut then that the number should be increased. Indeed, the number six is not the full number of people who will necessarily always have to seek permission, because they have to seek permission at the point at which they marry. It could well include far more people. Someone who may not be heir to the Throne within the first six at any one point could be in that position by the time that they want to marry. It applies at the time of their marriage, so more people may well have to seek permission.
As we said when this was discussed at greater length in Committee, with more evidence given than perhaps all noble Lords have had a chance to read, we feel that this is not an exact science. We know that five were probably as many as were ever needed, so we thought that six gave a useful additional margin.
We certainly do not think that it is sensible to involve an unnecessarily large number of people in having to seek permission of the Crown in order to marry when they have no realistic possibility of inheriting the Throne. We do not know on what grounds a monarch would debar someone from a particular marriage if it was not about religion, although one noble Lord suggested that. We do not know what sort of reasons a couple would have to consider when deciding whether to go ahead with the marriage and give up their place in line. It seems to us strange to put a young couple through that when there is no good reason for doing so.
I should add that although this was not in the original Perth agreement, it is part of the agreement that has been discussed with all the other countries, with all the hard work done on everyone’s behalf by New Zealand. It would need an enormous amount of unscrambling to change the number now when it has been discussed at great length. I am sure that it is in no way the intention behind the amendment that it should be wrecking or delaying. However, I fear that changing the number from six would have that effect. I am sure that we would not want to risk the other really important parts of the Bill, the two bits that the whole House strongly supports—the succession to the Crown of the first born, should it be a woman, and the ability of someone in line to the Throne to marry a Catholic—by delay. We support the continuation of the Bill as it stands.
Lord Wallace of Tankerness
My Lords, again, I thank my noble friends Lord Lang, Lord Hamilton and Lord True, who have signed the amendment. My noble friend Lord Lang raised this issue at Second Reading and again in Committee and on each occasion stimulated a very good debate. It is clear that a balance needs to be struck somewhere between mitigating a remote but potentially catastrophic event, on the one hand, and the risk of impinging unnecessarily, as the noble Baroness, Lady Hayter, said, on the lives of those who are more distant from the Throne.
My noble friend Lord Lang said that there were two differences in what was being proposed from what was there before. I think he said that, before, consent under the Royal Marriages Act 1772 related to religion and marriage to a Catholic. In fact, it went much wider than that. As my noble friend Lord True said, it was George III’s concerns about his siblings that prompted it. It was not actually to do with religion because the provision on religion was such that if you married a Catholic, you lost your place in the line of succession. I suspect that you also still had to get consent, being one of the descendants of George II, otherwise your marriage, albeit one that took you out of the line of succession, would have been void. Nothing is changing there. It is not related solely to religion.
My noble friend also said that the other change is that rather than the marriage being void, as is the case under the 1772 legislation, the person and their descendants from that unconsented-to marriage lose their place in the line of succession. Hitherto, failure to get consent did not cause the individual concerned to lose their place in the line of succession, as the examples given by my noble friend indicated, but their children did not have any place in the line of succession because by definition the marriage was void. Therefore, the children could not take up any place in the line of succession. Being the children of a void marriage, they would not be legitimate.
This change has taken place first to reduce the very large number of people who are today the descendants of George II. In response to the noble Lord, Lord Thomas of Swynnerton, I just do not know how many consents Her Majesty has given during the 61 years of her reign. If my memory serves me correctly, I think I said in Committee that no one seems to have any record of consent having been refused. I would not like to suggest that information about how many consents have been given might be available. The fact is that as each generation comes to bear another generation, the number of descendants of King George II increases. Indeed, it may well be that some of them do not know that they are descendants of George II and may be contracting marriages which are void. That is one of the principal reasons why we wish to change this, so that the consequence of failure to get consent or of consent being refused is not that one’s marriage is void, which has considerable consequences for the couple concerned and their family, but rather that the person loses their place in the line of succession.
As the House will be aware, I indicated that we believe that the six steps provide sufficient proximity to the Throne. The noble Baroness, Lady Hayter, made an important point about consent at marriage: people who at the time of the consent for their marriage were in the first six may subsequently no longer be within the first six in line to the Throne, so the number at any one time who have had to receive consent will almost certainly be greater than six. If one looks at the 240 years of history since the Royal Marriages Act 1772 was passed, the person furthest away from the Throne at the time of marriage who subsequently ascended the Throne was William IV, who was third in line to the Throne, so the position as it stands provides twice as many steps away from the Throne than have ever been necessary in more than 200 years.
Lord Crickhowell
The Minister referred earlier to a possible catastrophic but remote event. The fact of the matter is that in this day and age, very sadly, catastrophic events are too common. Members of the Royal Family are by their nature public figures and they are often together. The possibility of a catastrophic event should be taken into account. I, for one, am still not at all convinced by the argument from the Front Bench and am inclined to support the amendment as it stands.
Lord Wallace of Tankerness
My Lords, the point I made is that we need to provide a balance between militating against a potentially catastrophic event and the risk of unnecessarily impinging upon the lives of those who are more distant from the Throne. While it is reasonable for different rules to apply to the Royal Family, a requirement to obtain consent to marry is a real restriction on people and as such a very strong argument should be made to extend it. I have heard various people say why six is not acceptable. However, I have heard no reason for 12, with the possible exception that it is the number of apostles or the number of former pennies in a shilling. It is also said that it is the number of jurors on a jury, but of course in Scotland that is 15. It is not a question to which there is a mathematical answer.
Lord Elton
My noble friend has moved on from the point that I wanted to pick up on. He is treating the necessity of getting permission from the Crown to marry as if it were a great disincentive to marry and a great burden for these people to suffer, but they are not going to be forbidden to marry; they are only going to be told that they are not in line for succession to the Crown, and I should think a great relief to many of them that would be.
Lord Wallace of Tankerness
I hear what my noble friend says, and he makes that point well. It is, indeed, as I and the noble Baroness indicated, an additional requirement and impinges on the lives of individuals. The Bill is trying to seek that balance. It is not a question to which there is one, and only one, right answer. As the noble Lord, Lord Deben, said, it is a matter of judgment. While my right honourable friend the Deputy Prime Minister would no doubt love to take credit for everything that has been put into the Bill—he has ministerial responsibility for constitutional matters and this legislation—I pay tribute to my right honourable friend the Prime Minister who, like his predecessor, sought to get agreement with the other realms and was party to the announcement of the agreement that was made at Perth. The noble Baroness, Lady Hayter, rightly says that this was not part of the Perth agreement, but it was flagged up at the Heads of Government conference in Perth that we would be seeking changes to the Royal Marriages Act 1772. That was followed by Prime Ministerial correspondence, on which agreement was reached on the number six.
My noble friend Lord Lang referred to a letter to the noble Lord, Lord Trefgarne, in which I said that procedural matters would not require the consent of all the other realms. Indeed, there are procedural issues in Clause 3 as to how, for example, the consent has been obtained and signified. However, substantive matters on the succession to the Crown—to which I referred in the debate on the previous amendment and which get into the spirit of the preamble to the Statute of Westminster Act 1931—would require the agreement of the other realms. This impinges on the succession to the Crown. Indeed, the New Zealand legislation, of which I have a copy somewhere here, specifically makes provision for six with regard to those who would require the consent of the sovereign to marry.
The noble and learned Baroness, Lady Butler-Sloss, asked about civil partnerships. Civil partnerships do not require monarchical consent, as a civil partner does not necessarily assume the public role expected of a spouse as sovereign. She also raised same-sex couples, which came up in an earlier amendment moved by my noble friend Lord True. The Government believe that marriage as stated in Clause 3 of the Succession to the Crown Bill means marriage as defined by the jurisdiction in which it takes place. If we take this away from the issue of same sex—to take away from, as my noble friend Lord True said in moving his amendment, the controversy that might surround that—different jurisdictions very often have different rules on marriage. As a simple example, the age for marriage without parental consent was different from that in England. If it was a legitimate marriage in the law of Scotland, it would be recognised as a marriage, albeit that it would not necessarily have been a legal marriage under the law of England.
Lord True
Before my noble friend leaves that important point—and I accept what he says about civil partnerships —is he saying that the Government are knowingly legislating for a position where the monarch’s Ministers in one country may advise that a same-sex marriage should be disqualified from the succession to the Throne, but in another of the Queen’s dominions, the Crown’s Minister will give opposite advice? Is that what the Government are recommending to Parliament?
Lord Wallace of Tankerness
My Lords, that is not what I am saying. It depends on the jurisdiction of the place where the marriage is contracted. I believe I am right in saying that under the law of Canada, same-sex marriage is legitimate. If, therefore, hypothetically there was a same-sex marriage by someone perhaps well down the line of succession to the throne in Canada as of today, and that was lawful under the law of Canada, that would be a marriage. It hat is not a question of Canadian Ministers giving consent, which might be different because the law in the United Kingdom is different. There might even be different laws in the near future between Scotland and England, depending on the timing of legislation. It is not a question of Ministers giving consent; it is the actual law that is in place in a particular jurisdiction at a particular time.
It is a matter of judgment. I say that quite frankly to the noble Lord, Lord Deben. The Government believe that six is the appropriate number. That is what history suggests is necessary. No more than three have been required in the last 240 years, and there is some added leeway. As I said, with any legal restriction, if we impose a legal restriction we should limit it as far as possible. While I fully recognise the strength of the arguments that have been put forward, I have not heard sufficiently strong arguments that we should extend this legal restriction more than we believe is necessary to take account of the historical number of places to get to the throne, and double it up for that matter. I know how strongly my noble friend feels about this, because we have discussed it in the past. If he feels that it would be helpful to have further discussion on it, I am more than open to that suggestion. In the mean time, however, I invite him to withdraw his amendment.
Baroness Butler-Sloss
May I ask a practical question? If this House took the view that 12 is preferable to six, how would that deal with the problem as to whether this Bill was then in difficulties with the other countries, which have agreed the Bill as it is?
Lord Wallace of Tankerness
My Lords, when we come to a later amendment in the name of my noble friend Lord Trefgarne, I will be able to explain what the position is in the different realms. It would require agreement among the other 15 realms. I will explain this in detail when we come to a later amendment. I am not introducing a parliamentary procedure. As I have indicated, New Zealand is, and it already has a Bill before its Parliament with the number six in it. It would therefore require agreement; it would not necessarily require a parliamentary process. It is up to each individual realm to decide what to do, and some of them do not believe that they need a parliamentary process.
Lord Hamilton of Epsom
Are we simply saying that an exchange of e-mails would be quite adequate?
Lord Wallace of Tankerness
I am sure that if it was just that, it would be simpler. Certainly, the experience of reaching agreement was far more painstaking and more work was put into it than a simple exchange of e-mails. I know that when the noble Lord, Lord Stevenson of Balmacara, who participated in some of our earlier debates, worked in the previous Administration in No. 10 Downing Street, this was one of his responsibilities when the previous Prime Minister was seeking to get agreement. I know how much effort was put into getting the agreement at Perth, and subsequently into getting the agreement on this provision. It is not, therefore, as simple as an exchange of e-mails.
Lord Cormack
If we pass this amendment this evening, it will simply go to another place, which will give extended time for sounding out opinion in the rest of the Commonwealth realms. If a negative response to those soundings was received, we could of course think again, and the Commons might decide to reject the amendment. We are simply expressing this view of this House on a common-sense matter. I very much hope that we shall be able to do that.
Lord Trefgarne
My Lords, we touched on this matter in Committee. Under the present provisions, the Bill can be brought into force, bit by bit, by order of the Lord President of the Council, who is, of course, Mr Clegg at present.
This is not a personal matter. My complaint is not that it happens to be Mr Clegg in his present role but that there is a single Minister at all. A Bill of this nature and this importance should not be brought into force, bit by bit, at the request of a single Minister, however senior and distinguished. That is the essence of my complaint, so I propose that it should be brought into force by statutory instrument, subject to the approval of both Houses of Parliament. I hope your Lordships will agree, and I beg to move.
Lord Wallace of Tankerness
My Lords, my noble friend very succinctly makes his point about the commencement of the Bill. I fully accept that this has nothing to do with the personality of the Lord President. As I explained earlier, it happens that he has ministerial responsibility for constitutional and elections law.
There is absolutely nothing unusual in a Bill including a power for a Minister to commence provisions in an Act on a date and at a time to be specified by order and without that order being subject to any particular parliamentary procedure, negative or affirmative. Parliament will already have given its approval and the Act that is brought into force will be unamended; it will remain unchanged. Therefore, there is no reason for it to return to Parliament so that Parliament can confirm what it has already agreed.
Lord James of Blackheath
My Lords, I came to Second Reading with one major concern in my mind. By Committee I had two and now I have three. Perhaps I should stop coming to these debates because my list will only grow. It leads me to wonder whether we are here with unreasonable haste on something that should not have great haste: namely, an important and challenging constitutional issue.
We all know that there will be a happy event around midsummer this year. I hope that we are not being overinfluenced by that, because it is not the gender of the unborn baby that should guide us at this moment but the continuity of the lady on the Throne, whom we should not seek to embarrass or put in any predicament that could be adverse to the continuity into the future of her glorious 60 years. It is possible that in time, having made a full recovery now, she will exceed her mother’s years—and may she reign for all of those years, too. In that case, what is the haste that we are looking at? We have had many instances in our history when the succession has fallen on an individual who has been born long before they came to the throne. Whatever happens in June or July this year, we do not need to make any commitment.
By the way, I can assure the House emphatically that the Duchess of Cambridge did not intend to use the “d” word and say that she was going to have a daughter. It is a very important point. In my earlier career I was the recipient of a great deal of training in lip-reading. It is one of the few things at which I can claim to be an expert, so I ask noble Lords not to mock me. I have watched the five-second clip of the incident many times. The Duchess never had her tongue out of the roof of her mouth. That enabled her to say the “d” very emphatically. From there she could have gone either to an “au” sound for “daughter”, a “u” for “duke”—but she would not use twee language and say, “I will give it to my duke”—or to an “o” sound to say that she would give it to her dog. She brought herself up on the spot because she realised how hurtful that would be to the kindly donor of the little dog. She had to change direction, and in order to avoid one brick she stubbed her toe on another. Unless the Deputy Prime Minister has plans to so overhaul our constitution that we have a dog on the throne, I cannot see that there is anything here about which we should be concerned. The more we look at constitutional issues, the more it appears that Mr Clegg may have misidentified them and that he is in fact Mr Baldrick Clegg, creator of some very cunning plans.
As I said, I have three major concerns. The first is the one that I began with: namely, that we are putting the Crown in an impossible position. We expect to receive a delegation of the prerogative of consent, which I do not believe the Crown is entitled to delegate to us. Secondly, because of those factors, we should look very closely at the issues of entrenchment and the laws that are being changed. We have heard that one Parliament cannot bind another, but this occurs frequently and in this case it is emphatically there. The third factor is that without any doubt the Bill, in particular Clause 4, virtually wipes out the Act of Settlement with Scotland and renders unnecessary a referendum. If this Bill were passed, Scotland would float off towards the Arctic and a very cold economic future. We should be very concerned not to create these appalling outcomes.
The matter of entrenchment is something that we need to think about very hard. When my noble friend Lord Marks and I had our dialogue in the debate at Second Reading, we were misleading each other and were both under a very big misapprehension. We were talking about alterations to the declaration of rights. In the half hour the Minister was kind enough to give me last week to discuss this, he and his team made the same mistake. The declaration of rights is not the issue here; it is the Bill of Rights. We are confusing them because of the interregnum. There was no monarch at the time. Therefore, there was no way that there could be a Bill leading to an Act, as happens at the moment. There was a declaration of the complaints of the citizens of this country, which was answered by a Bill that eventually became an Act. The Bill of Rights that was presented to William and Mary repeated word for word the declaration of rights. However, it ended at the word “accordingly”, whereupon Joe Browne, the Clerk of the Parliaments, signed his name. A space was left for William to sign, but in fact he signed a separate piece of vellum that was stitched into the Bill. This was perhaps the first instance in England of a political stitch-up.
The document sets out the suggested oaths that could be sworn by future monarchs. However, they are only suggestions and not part of the Bill. As such, my noble friend Lord Marks was wrong, and the Minister remains wrong, because the alterations to the oaths that occurred in the past do not constitute a precedent by which one can alter the Bill; one cannot. I will read two phrases that sum up how far the entrenchment goes. First, the two Houses of Parliament should,
“with royal concurrence make effectual provision for the settlement of the religion, laws and liberties of this Kingdom, so that the same for the future might not be in danger again of being subverted, to which the said Lords Spiritual and Temporal and Commons did agree, and proceed to act accordingly … to the same in all times to come”.
There is not much wiggle room there.
Towards the end, the document states that the provisions are,
“enacted and established by authority of this present Parliament, and shall stand, remain and be the law of this realm for ever”.
That is what we are asking to pass back to Her Majesty, with the request that she should forgo her coronation oath by altering something that was put into the laws of this land for ever and is, I submit, incapable of being changed. I return to my objection on Second Reading. We do not have the authority to accept delegation of the prerogative to this House, and any noble Lord who voted for it would be in breach of their oath on joining your Lordships’ House. I have raised this with many Members on these Benches. No one will give me an answer. They all say: “I’m sure it’s all right but I don’t know why”. I want to know why. I cannot vote for this and I suggest that no noble Lord should vote for it unless we are assured that we are not forcing Her Majesty into an impossible predicament by so doing.
The situation is very straightforward. We have a constitutional monarchy that is committed, first, by its commitment to the oaths of proclamation. There is a very different wording for England and for Scotland, whereby it is much tougher for Scotland. Then we have the coronation oaths, which bind the Crown to abide by what is in effect the entrenched law of the land, which we are now proposing significantly to change. The legal bounds of the Crown’s authority of governance are breached if the Crown’s constitutional limitation is exceeded. This defines the point at which a constitutionally limited monarchy has a duty arising from the commands of the law and constitution to refuse assent to a measure. If a measure is demonstrated to require removal of the constitutional law defining the duty to enforce, it is a breach of that duty, and constitutionally must be disallowed. We in this House can have no authority to pass a measure that collides headlong with the existing rules of our constitution. The limitations of the Crown would need to be breached to remove those duties, and this is an impossible and intolerable situation to place the Crown within.
In allowing the Bill, we would violate principles emanating from these enactments, which limit the Crown and the constraints imposed by the oath of office. At that moment, we would place the Crown in breach of its solemn and sworn duty, a duty undertaken as a reign-long obligation by Her Majesty. We cannot do that. Furthermore, we can hold no authority whatever to seek to do it.
I want to hear the answers to these points. I am very happy at what this Bill tries to achieve and would oppose none of it, but I am wholly opposed to the process by which we seek to do it. The advice that we have had on our legal position is undercooked, and I want to know a great deal more.
Lord Wallace of Tankerness
My Lords, I thank my noble friend for setting out his concerns. I was grateful to him for taking the time to elaborate on the rationale for his concerns at a meeting to which he referred, which we had last week. As I understand it, he has two particular concerns. The first relates to the coronation oath, which the sovereign is required to make to maintain the established Protestant religion. He is concerned that there might in this Bill be something inconsistent with the coronation oath that Her Majesty swore. I disagree and I make it clear that we are not amending the provisions of the Bill of Rights or the Act of Settlement, which say that the sovereign has to be a Protestant. That was debated under an earlier amendment. One could conceivably argue that as a result of the Bill more people might come out of the line of succession, because one of their parents was a Catholic and the parents intended to bring up the child as a Catholic, but that is simply not the same thing. Given that the prohibition on the sovereign being a Catholic remains, there is no conflict between the Bill and the coronation and accession declaration oaths. Therefore, I believe that my noble friend’s opening premise is wrong.
I also disagree with his assertion that the Bill is inconsistent with the oath that the sovereign has to swear with regard to maintaining Presbyterian church government in Scotland. I declare an interest as an elder of the Church of Scotland. As a young student during Her Majesty’s Silver Jubilee Year in 1977, I sat in the gallery of the General Assembly when Her Majesty opened it and reaffirmed her coronation oath with regard to the Church of Scotland. Again, nothing in this Bill in any way conflicts with the oath that Her Majesty took on her accession, which she has subsequently reaffirmed.
My noble friend also made reference to Scotland, and his amendments very much relate to the position of Scotland. He seemed to imply that the Bill would somehow lead to the break-up of the union. In our view there is nothing in this Bill that conflicts with requirements set out in the Act of Union. Given that my noble friend’s amendments focus on the territorial extent of the Bill, it would be helpful to consider that matter as well. The Crowns of England and Wales, Scotland and Northern Ireland are united by the various Acts of Union. Any changes that the United Kingdom Parliament makes to the laws of succession will apply automatically across our United Kingdom. The succession to the Crown is a reserved matter, as is clearly stated in the Scotland Act 1998, and the Scottish Parliament would have no competence to pass a resolution in relation to succession. At least, it would have no legal effect, as proposed in my noble friend’s amendment. However, the devolved Administrations were provided with drafts of the Bill ahead of introduction. Similarly, the Bill applies not only to the UK but to the Crown dependencies and overseas territories by necessary implication, following the precedent set by other Acts concerning the sovereign. Again, Crown dependencies and overseas territories were also consulted.
I seek to reassure my noble friend, who I know is deeply concerned about these matters, that there is nothing inconsistent with the provisions in the Bill before your Lordships’ House and the coronation oaths sworn by Her Majesty. I hope I can allay his concerns and persuade him that this is a perfectly proper matter that we deal with in this Bill.
Lord Trefgarne
My Lords, I am concerned—I think that there was reference to this in the letter that my noble and learned friend very kindly wrote to me the other day—about the possibility of different parts of the Bill coming into force at different times in different parts of the Commonwealth. For example, it seems possible for one nation to agree that the eldest child of the sovereign became its head of state and for another nation not to agree, or at least to delay agreeing—and therefore it might be the second child of the sovereign who became its head of state. That seems to be a confusion and complication that we would not wish to see. My amendment proposes that we should wait until all the nations that want to agree have agreed, so we avoid that difficulty. My amendment proposes that the Act will come into force when all the relevant Commonwealth Parliaments have given their consent to all its provisions. The word “relevant” relates, of course, to the fact that some Commonwealth nations do not have our Queen as their head of state. Therefore, their consent is irrelevant.
I hope that my noble and learned friend will be persuaded as to the point that I have made. I beg to move.
Lord Wallace of Tankerness
My Lords, my noble friend makes an important point about the simultaneous implementation of these provisions in all the realms of which Her Majesty is Queen—and clearly for the right reason, as he gives it. It would not be helpful, nor would it be the policy intent of any of the realms that have agreed to this, that there should be divergence between different realms as to the head of state. Indeed, it is the intention that the effect will be given once all the realms have done what is necessary before the Bill is brought into force, as indicated in response to Amendment 5. I noted the interest that the House has taken as to how changes will be given effect in the different Commonwealth realms, and I have given an undertaking that the Government will lay a Statement before Parliament ahead of the commencement order to indicate how the realms have given effect to the Perth agreement.
It may help the House if I give an update on how the other realms are taking forward these changes. I have referred before to the preamble to the Statute of Westminster 1931. It states:
“And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom”.
This being part of a preamble and not being in the body of the Act, these words impose no legal obligations. However, the Government recognise that they carry considerable political weight and as such have undertaken to agree these changes with other realms’ Governments and to seek their consent to the legislation before introducing it into Parliament.
The New Zealand Government have co-ordinated this discussion, which culminated in all realms giving their written consent to the introduction of this Bill and their assurance that, based on the Bill as drafted, they were in a position to give the policy the same effect in their country. In doing so, some realms decided that legislation or parliamentary consent was required. Others have been clear that no further steps are necessary and that the changes will be brought about by the changes effected by the United Kingdom Government. In our view, it is in accord with the principle of the Statute of Westminster that it should be for each realm to decide what, if anything, is necessary or desirable to give effect to the agreement. Thus, although the preamble refers to the assent of the Parliaments of the dominions, we do not believe that it is for the United Kingdom to insist that parliamentary approval is obtained. I can confirm that in the case of some realms a referendum is necessary before changes to their constitution are made. However, we are not aware that any realm intends to amend its constitution, so the question of its undertaking a referendum on this issue does not at present arise.
As regards the detail of each realm, the Pacific realms of Papua New Guinea, Tuvalu and the Solomon Islands are all content that because of the wording of their constitutions no changes to their laws will be required to implement the changes to the law of succession in their respective countries. We do not believe that they intend to consult their Parliaments further on this matter.
As regards Australia, on 7 December 2012, in a meeting of the Council of Australian Governments, the Prime Minister, state premiers and territory chief ministers reiterated the support of all Australian Governments for the changes to the rules of royal succession proposed by the United Kingdom. Australia has not yet reached agreement with all states and territories on the specific method of implementation in Australia but legislation will be required, probably at both Commonwealth and state levels. Indeed, Queensland has already introduced its own Succession to the Crown Bill.
The New Zealand Bill was introduced on 18 February and its provisions mirror those of the United Kingdom Bill, although it additionally amends, where necessary, New Zealand specific legislation: for example, the Imperial Laws Application Act 1988.
The Canadian Bill has now been introduced into the Canadian senate. The Canadian Government’s view is that the laws of succession are UK law and not Canadian law. The Canadian Bill therefore does not seek amendments to the rules of succession. Instead, the Bill states that Parliament has assented to the changes set out in the United Kingdom Bill. The Canadian Bill will come into force on a date set by an Order in Council.
Jamaica and Belize have stated that, based on the nature of their constitutions, no legislative change will be required to give the changes effect domestically. We do not believe that they intend to consult their Parliaments further on this matter. The relevant oaths under the constitutions of Jamaica and Belize make reference to:
“Her Majesty Queen Elizabeth II, Her Heirs and Successors, according to law”.
The constitutions do not contain any express provisions defining “Her Majesty” or setting out the rules of succession, but we understand that Jamaica and Belize take the view that the reference in the oath to the heirs and successors of Her Majesty is to the heirs and successors under UK law—or, in other words, that it is implicit in their constitutions that the question of succession to the Crown in right of Belize and Jamaica is resolved by the law of the United Kingdom.
We believe that it would be open to the other Caribbean realms to take a similar view, but it is, of course, for them to decide how best to give the changes effect. The United Kingdom and New Zealand are in ongoing discussions with each realm to support the work they are doing.
I thought it would be useful to put that on the record because I know that in earlier debates interest was shown in that matter. I reiterate that it is intended that these measures will come into effect at the same time when all the realms of which Her Majesty is head of state have concluded their appropriate arrangements. In responding to an earlier debate, I indicated that the Government would make a Statement to Parliament prior to introducing the commencement order, indicating what has happened in each realm. Indeed, the reason why there is flexibility in the commencement order is to achieve that very purpose. In light of those comments, I hope that my noble friend will feel able to withdraw his amendment.
Lord Lexden
Before my noble and learned friend sits down, has he any view as to the earliest possible point when the realms will have completed their work and the measure can be implemented?
Lord Wallace of Tankerness
No, my Lords, I do not, and I do not think that I would help the House if I tried to speculate.
Lord Trefgarne
My Lords, I am most grateful to my noble and learned friend. He has gone further than he did at the previous stage of the Bill and I am grateful to him for that. I am also grateful to him for his letter—five pages, no less—which he wrote to me since the previous stage, which has likewise been very helpful. He has said that he will lay a Statement before Parliament as each step is reached. If I may assume that that Statement will be a situation report and will perhaps describe the other nations where progress has not yet been achieved, I am content. On that basis, I am happy to withdraw my amendment.
Lord Wallace of Tankerness
Just so there is no ambiguity or misunderstanding, I think I said that before introducing the commencement order, we will make a Statement—it will not be a sort of running commentary—indicating what has been done in each realm to give effect to these changes.
Lord Trefgarne
My Lords, that is all right. I beg leave to withdraw the amendment.
Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013
Lord Wallace of Tankerness Excerpts(11 years, 4 months ago)
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Lord Wallace of Tankerness
That the draft order laid before the House on 22 January be approved.
Relevant documents: 17th Report from the Joint Committee on Statutory Instruments, 27th Report from the Secondary Legislation Scrutiny Committee, considered in Grand Committee on 26 February.