Succession to the Crown Bill

Mark Durkan Excerpts

Monday 28th January 2013 Commons Chamber

[Sir Alan Beith]

I want to get on to amendments 1 and 2, because I am anxious that we get this right and I am interested in what the Government have to say about them.

It seems to me that the wording in the Act of Settlement might well preclude someone who, let us say, as a teenager or young adult chooses to be in the Church of England rather than the Catholic Church, having had experience of both in their lives. They could be automatically excluded by those features of their early involvement with the Roman Catholic Church that fell within the extended definition in the Act of Settlement of what constitutes having been a Catholic. Unless we deal with that, our legislation will be defective and will fail to fulfil its intended purpose, because at some future date it might exclude someone from being the sovereign even though they were in communion with the Church of England and wanted to uphold the Protestant reformed religion, as the coronation oath requires.

[Mark Durkan (Foyle) (SDLP)]

I have attached my name to amendments 1 and 2, but not to new clause 1. That is not because I particularly disagree with the point that the hon. Member for North East Somerset (Jacob Rees-Mogg) is trying to make in new clause 1, but in many ways because I am sensitive about such issues, as someone who is not a British national, but a citizen of the Irish Republic—that is the passport I carry; therefore I see myself as a citizen of a nation that does indeed have an elected Head of State.

I come to this House not to disrespect any of the institutions that are cherished by other Members and that are part of the British constitutional settlement. Where I can, I will support moves to remove and relieve aspects of discrimination wherever we find them. I said last week that this Bill does two valuable things in that it removes a layer of gender discrimination in the succession to the Crown and it lifts one layer of religious discrimination —the bar on a Catholic marrying the heir to the throne. However, as we heard in last week’s debate, those proposals in themselves leave many questions. As we heard, for some of us, one question concerns the remaining areas of discrimination, whereby anybody who at any stage in their lives had either been a Catholic or been deemed to be a Catholic would be barred from being an heir to the throne. In effect, it is the McCarthyite question: “Are you now or have you ever been a Catholic?” For anybody who has ever been a Catholic in any shape or form, that is it—they are out; they count as dead for these purposes. Clearly that is wrong and anomalous. I do not believe that, in passing this Bill, the House should choose to say, “Well, we still want to keep that—it’s about right that we keep it.”

--- Later in debate ---

[Miss Smith]

As I understand the amendments tabled by our hon. Friend the Member for North East Somerset, they would technically open the opportunity for a person to convert and provide for that person not to be “for ever” barred. I think it is possible for that to allow confusion over the very same point, including after the moment of succession. I can see that possibility arising through my hon. Friend’s amendments. I regret that that is the case, but I see it as a problem, and I humbly make that argument to the House.

[Mark Durkan]

The Minister is throwing up a plot line here that even Jeffrey Archer would not try to contrive in suggesting that by converting, someone is somehow going to leapfrog over somebody else in the line of succession. How would that happen?

[Miss Smith]

I am trying to describe a situation where an older child—the Bill affects nothing to do with the age of succession—could, due to their faith, initially be out of the line of succession but later change their faith, as envisaged by the amendments, thereby changing the realities of the succession.

[Mark Durkan]

If the Minister will forgive me for saying it, this is now sounding a little like “There’s a hole in my bucket, dear Liza”! She is relying on the fact that an older brother or sister might be debarred because of their faith, but the point of the amendments is to end the situation of someone being debarred because they happen to be of a particular faith at any stage in their lives.

[Miss Smith]

During this debate many hon. Members have asked the Government to take account of unintended consequences, and I humbly suggest that I am pointing out an unintended consequence of the amendments tabled by my hon. Friend the Member for North East Somerset.

We have heard several mentions in the debate of the support afforded to the Bill by the Archbishop of Westminster, who welcomed

“the decision of Her Majesty’s Government to give heirs to the throne the freedom to marry a Catholic”.

Importantly, he also recognised the importance of the position of the established Church in protecting and fostering the role of faith in our society. I balance that against the Church of England’s comments, which are likewise supportive. Given that both the Catholic Church and the Church of England have been extremely supportive of the changes, I believe that we have found an appropriate balance in the Bill. I do not think there is an appetite in the country at large to change or damage the position of the established Church in this country.

Voting Age

Mark Durkan Excerpts

Thursday 24th January 2013 Commons Chamber

[Mark Durkan (Foyle) (SDLP)]

It is a pleasure to follow the hon. Member for Glasgow North East (Mr Bain). I simply point out that his historical list could also have included Catholic emancipation, which was a pretty significant battle in itself and faced many arguments.

The debate on this subject raises a range of arguments, and I do not intend to rehearse all the various things that young people have the right and competence to do at the ages of 16 and 17. We have heard a number of arguments against the proposal to change the voting age, but I support it. I congratulate the hon. Member for Bristol West (Stephen Williams) on tabling the motion and on his record of fighting on the issue.

The arguments that we hear against the change seem to range from protecting democracy from childishness to protecting children from democracy. That is essentially what we heard today from the hon. Member for Huddersfield (Mr Sheerman)—that despite all the things on which we are letting children down, such as product placement and sexualisation, the one point where we can draw the line is by keeping the voting age at 18 to somehow protect their childhood. That is an argument of complete misdirection.

We should consider what reducing the voting age would mean for our democracy and for how people appreciate their status as young citizens. If we want 16 and 17-year-olds to identify themselves increasingly as young citizens, perhaps we should mandate, recognise and equip them as young citizens by giving them the right to vote, which is a basic thing. That is why I support the motion, just as I supported the proposal in the last Parliament.

We have heard a range of arguments as to why we should and should not make the change. The hon. Member for North East Derbyshire (Natascha Engel) made the point that the argument for extending the vote to 16-year-olds is not the same as the argument in the past for extending the vote to women. However, the arguments that we hear against it are pretty similar to those that were used against giving votes to women—they do not really want it, they are ill-informed, they would be too frivolous or giddy, they are distracted by other things, and if they do vote they will vote according to what somebody else tells them. Perhaps the danger is really that if they vote, they will not vote according to what somebody else tells them. Those are all the same arguments that were used against extending the franchise to women. The arguments for the change are not the same, but the arguments against are uncannily and disgracefully similar.

We even heard from the hon. Member for Brigg and Goole (Andrew Percy)—this is my version, which might not be as good as that in Hansard—that we will have a whole load of people who cannot vote and will not vote. Who is he to say that they cannot and will not vote if we put them on the electoral register? They could have as much competence as he or I. Many political parties allow 16 and 17-year-olds votes within the party. People can become members of my party at 14 and vote in it at 16, and other parties allow young people to vote in internal elections, including for party leaders, at 15. Those elections have a pretty significant impact on the country, so if parties allow that in their own democracy, I do not see why people should not be allowed on the register at that age.

Members have mentioned various places that have already moved to allow, and I would mention that a constitutional convention has been established in Ireland by the current Government. It includes parties and non-party interests, including from Northern Ireland, and is examining the issue of reducing the voting age. It is considering a voting age of 17, because that is the age of consent in the Irish Republic. It is not considering an age of 16, because it does not want to open up another debate that might never be resolved, but I hope that the advance to 17 happens.

It is important to recognise that although extending the franchise will allow people to vote, of course many will not do so. It will mean that people have a chance of exercising their first vote at a better age. We have heard that fixed-term Parliaments will mean that the maximum age at which people could have their first parliamentary vote will be 23. If the change to 16 were made, that would mean that that age would be 21. That does not seem unreasonable or shocking to me. It would not be too radical or drastic, and it seems sensible.

The change would also increase the prospects of people casting their first possible vote, because more of them will be at or near home and able to do so. Having the voting age at 18 means that people are often away from home by the time their first vote comes up, and they have not thought about a postal vote, so they miss out. The change would help the integrity of the franchise by ensuring that it counts, and that is why I support it.

Succession to the Crown Bill

Mark Durkan Excerpts

Tuesday 22nd January 2013 Commons Chamber

[Miss Smith]

There are many, many sections of the Act of Settlement that we are not dealing with today, and I suspect that that is one of them.

Clause 2 removes a specifically anti-Catholic provision that bars a person from succeeding to the throne or possessing it if they are married to a Catholic.

[Mark Durkan (Foyle) (SDLP)]

I think that the hon. Member for Rochester and Strood (Mark Reckless) was trying to draw the Minister’s attention to the provisions in clause 2(1) and suggesting that that might answer the question asked by the hon. Member for Rhondda (Chris Bryant). It states:

“A person is not disqualified from succeeding to the Crown or from possessing it as a result of marrying a person of the Roman Catholic faith.”

That, of itself, would not preclude Her Majesty from refusing a marriage on the grounds of somebody being a Roman Catholic. The hon. Member for Rochester and Strood seemed to suggest that that answers the question asked by the hon. Member for Rhondda. Does it?

--- Later in debate ---

[Sir Alan Beith]

I do not want to be drawn into clause 3. We are considering whether the effect of clause 2 might be undermined by clause 3, and that has much to do with clause 2, but I suspect—I do not intend to say this again when we debate clause 3, so I will say it now —that it is something we will have to live with in order to produce a sensible outcome. The Bill as it stands provides a reasonable outcome to the problems I have described, but there is no escaping the fact that some problems will remain.

[Mark Durkan]

I want to take up the Minister’s point that this clause removes a line of discrimination from law. That is clearly what it does—up to a point. It removes a blatant bit of sectarian discrimination that would prevent somebody from remaining in the line of succession if they married a Roman Catholic. However, as we have heard, it still requires us all to subscribe to the notion that the Crown must remain Protestant and that somebody can only be Head of State in the United Kingdom on the basis of one particular faith. That is a sectarian provision.

[Mr MacNeil]

For clarity, it is more than the Crown must remain Protestant; the Crown must remain Church of England. If we are talking about the personality of the monarch’s faith, surely when the monarch crosses a border or moves across the sea, his or her religion does not change.

[Mark Durkan]

Well in some respects, as I understand from the current debate, the sovereign’s religion does change when they cross a border. The Church with which they are deemed to be in communion changes when the sovereign crosses the border from the Church of England to the Church of Scotland, not the Episcopal Church in Scotland. That is just from listening to this debate. We are getting into areas that I know little about and do not particularly want to know a lot about. Some of this debate reminds me of the old advert for Baxters soup: “The difference is in the thickness.”

Yes, obviously there is an emphasis on communion with the Church of England because of the role of the Crown and the governorship of that Church, but there is also the Protestant line of succession, as the Minister has said.

--- Later in debate ---

[Mark Durkan]

As a Scottish nationalist, the hon. Gentleman speaks for himself on that. As an Irish nationalist, I have a different view on a number of his points.

In the part of the world I represent, I clearly say to people, “There is no acceptable level of sectarianism in our streets,” but the message from the Committee is that there is an acceptable level of sectarianism in our statutes. We are removing the bar on someone who marries a Catholic from succeeding to the throne, but we are not removing the grossly arcane and offensive language that remains on the statute book. We are saying, “That’s okay.” We have statements from the different Churches that have been consulted that they are just about okay with the compromise, but I am not comfortable with such received sectarianism.

[Jacob Rees-Mogg]

Does the hon. Gentleman share my view that, by amending the statutes, we are saying that all the provisions are modernised, and that the Act of Settlement and all its anti-Catholic provisions are acceptable in a modern world with a few words changed? Does he share my view that that is offensive to Her Majesty’s loyal Catholic subjects and possibly more offensive to republicans?

[Mark Durkan]

I thank the hon. Gentleman for his point, which reinforces exactly the one I am making. The Committee will take a deliberate decision to amend only the legislation it needs to amend, and will not take the opportunity to do away with the offensive, discriminatory and provocative language. Such language will remain on the statute books—the language of the law of the land—which is offensive. Why would the Committee take a decision at this point in the 21st century not to make laws of our time and for the future?

To my mind, it is not acceptable for people to be satisfied by such received sectarianism, and it is a matter of sadness that it remains. That is my difficulty with clause 2. I welcome the fact that it makes a difference, but I have a fundamental problem with the fact that it says, “Everything else can stay the same. That’s okay. We’re happy with that sort of language.” We should be repulsed by the language that the Committee says should stay on the statute book.

[Sir Gerald Howarth]

I am delighted to take part in Committee under your tutelage, Mr Bone, and to follow the hon. Member for Foyle (Mark Durkan) and other hon. Members. There is a paradox in the situation in which we find ourselves. The Government are seeking to end part of a discriminatory law, and yet have resurrected rather a lot of hurt, as expressed by the hon. Member for Foyle and my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). Perpetuating this debate could lead to further hurt.

As an Anglican on the Anglo-Catholic wing of the Church of England, the last thing I seek to do is to offend those in the Catholic Church, but I should tell my hon. Friend that he might at least allow us to take communion when we attend his Church. When he attends ours, he is allowed to take communion with us. Perhaps that little bit of discrimination could be ended by the Catholic Church.

--- Later in debate ---

[Miss Chloe Smith]

I beg to move amendment 2, page 1, line 20, after ‘descendants’ insert ‘from the marriage’.

Clause 3 is, as one Member put it earlier, one of the more arcane provisions in the Bill. The Royal Marriages Act 1772 currently requires, subject to some very limited exceptions, the descendants of George II to seek the consent of the monarch before marrying. That probably affects hundreds of people, and we do not think that such a sweeping provision continues to serve a useful purpose today.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

[Mark Durkan]

I do not intend to detain the Committee for long. I merely wish to ask the Minister to address herself to questions that have been raised about the number six. The hon. Member for Na h-Eileanan an Iar (Mr MacNeil) suggested one explanation, and other Members made further suggestions. I should also like the Minister to consider how the Government envisage the discharging of the sovereign’s consent in practice, and whether the decision on granting that consent could depend on the religion of the person concerned.

[Chris Bryant]

Would it not be helpful if the Minister at least told us that the Government would consider amending the Bill in another place to ensure that the provision could not be used to prevent an heir to the throne from marrying a Roman Catholic?

[Mark Durkan]

Absolutely. Earlier, a Government Member referred to clause 2(1), in which we seem to think we are telling ourselves that we are removing the bar on the marriage of an heir to the throne to a Roman Catholic. However, it could well be that clause 3 allows the sovereign to continue to exercise such a bar, or a future monarch to exercise it, precisely to avoid some of the issues that other Members have already raised.

[Mark Reckless]

Does the hon. Gentleman think it would be helpful if the Minister were to clarify the position on what we think is implied by the Bill, which is that clause 2(1) is subject to clause 3(1)?

[Mark Durkan]

That would be very helpful, because the problem is that clause 3(1) reads as though it could be an ouster for clause 2(1); the joker still rests with a future monarch to refuse marriage on the grounds I have set out. Of course other issues might arise, and this provision would be the subject of all sorts of conjecture and speculation. The Government would therefore want to clarify it where they can, if not today, at least on a future occasion.

In this stand part debate, I would like the Minister to address one other area, which has not yet been raised. The Bill refers solely to marriage and does not mention civil partnership. I therefore take it that somebody would not be barred from having their place in the line of succession if they had a civil partnership, with or without the consent of the sovereign. The provision specifically refers exclusively to marriage, so will the Minister clarify that it would not present an issue in respect of a civil partnership? Such a partnership might raise its own issues for the Churches, particularly the Church of England. I wonder why the Government specifically refer to marriage, because most other bits of legislation that refer to marriage also refer to civil partnership.

[Kevin Brennan]

Would it not have been more sensible, in this constitutional monarchy of ours—no matter what one thinks of that as a system of government—for the person succeeding to the throne to be determined either by God, through the accident of birth, or through Parliament? It should not be determined by the caprice of the monarch.

[Mark Durkan]

I thank the hon. Gentleman for speaking up for God as well as for Parliament. His point again raises some of the issues that we have been dealing with today and the difficulties we find when we get into the constitutional fineries, particularly those of an unwritten constitution.

Let me return to the issue of civil partnerships and why the Bill contains no reference to them. I remind the Minister that equal marriage legislation will be coming before the House, and many hon. Members will be tabling and supporting amendments that would also seek to have opportunities in respect of civil partnerships. They may propose that civil partnerships would no longer be restricted as an option only for same-sex couples, but would be open for other people to register their loving relationship, so that couples of either type would have an equal choice between the rite of marriage and civil partnership. That equal marriage legislation might be amended so that civil partnerships could end up being available to people of different sexes, and therefore children would issue from those, too. So again the question arises: why do this Bill and this clause refer only to consent for marriage, and not consent for civil partnership?

[Christopher Pincher]

I am grateful to the Minister for suggesting on Second Reading that in 200 or 300 years I may be Father of the House. My right hon. Friend the Member for Louth and Horncastle (Sir Peter Tapsell) may have something to say about that, either now or in 200 or 300 years’ time.

May I press her on the clause a little more, because her earlier remarks cause me to do so, and refer her to clause 2 of the Royal Marriages Act 1772? It states:

“In case any descendant of Geo. 2.—

George II—

“being above 25 years old, shall persist to contract a marriage disapproved of by his Majesty, such descendant, after giving 12 months notice to the Privy Council, may contract such marriage; and the same may be duly solemnized, without the previous consent of his Majesty; and shall be good; except both Houses of Parliament shall declare their disapproval thereof.”

In other words, if someone is over 25 and has made their intentions clear to the Privy Council, they can get married unless Parliament says that they cannot.

The Bill states in clause 3:

“A person who (when the person marries) is one of the 6 persons next in the line of succession to the Crown must obtain the consent of Her Majesty before marrying.”

In other words, no matter how old that person is they must actively gain the consent of the monarch before marrying and must wait for the Queen or King to say yes. Any reasonable person would infer that the Government appear to be trying to tighten the rules about whom members of the royal family can marry and to give the monarch some extra leverage. Will the Minister confirm that? If that is the case, can she explain much more clearly, as the hon. Member for Foyle (Mark Durkan) asked, why six has been chosen for the number of those in the line of succession who are subject to this rule? If the idea is to tighten the rules and make it easier for the sovereign to control whom his or her descendants close to the line of succession may marry, surely the number should be greater than six or we should prescribe that it applies to the heirs and descendants of Elizabeth II. Surely grandchildren of a reigning monarch who are Royal Highnesses and active members of the royal family might not be subject to the provision.

I would be grateful if my hon. Friend the Minister could make the decision-making process in reaching that number clear and tell us what advice the Government were given about the number six, why they rejected other numbers and why they rejected the idea of having no numbers. That will allow us to be clear about the Government’s intentions.

--- Later in debate ---

[Mark Durkan]

The Minister said that six is a practical number, but she also said that Nos. 7 and 8 will need to be “careful”. Needing to be careful might be interpreted in their minds as, “Get married quick before anything happens that means that you become No. 6 and therefore have to get the monarch’s consent.” It might appear to mean, “Marry in haste.”

[Miss Smith]

I have nothing more to add to the comments I made a few moments ago. I think that in these situations a degree of pragmatism might prevail.

Succession to the Crown Bill (Allocation of Time)

Mark Durkan Excerpts

Tuesday 22nd January 2013 Commons Chamber

[Mark Durkan (Foyle) (SDLP)]

I am not British and not a royalist. I am a constitutional republican and an Irish nationalist. I do not purport to know all the possible consequences of the Bill and I do not pretend to care about some of those that I do know about. However, there are aspects of the Bill and of the consequences of passing it which persuade me that more time is needed. Those who care about these various consequences should be given more time, as should those of us who want to elaborate on some of the issues involved in the Bill—such as the fact that in the 21st century we still leave such sectarian language on the statute book.

The choice that we are making through the amendments that will result from this Bill puts a 21st century licence on arcane and offensive language. The provisions are quite sectarian. If a politician in Northern Ireland used the same language on a political platform, people would talk about incitement to religious hatred, but the Bill, for reasons of constitutional sensitivity, for reasons of ecclesiastical sensitivity to do with the constitutional settlement, leaves that language in place, safe and untouched.

If we were commenting on other regimes, other countries, other states that are being built and reformed, and if they were putting such intense, offensive and exclusive religious provisions into their constitution, we would be calling for all sorts of UN standards to be observed, we would be calling for reports and applying diplomatic pressure, and we would have the Foreign Secretary and others telling us from the Dispatch Box that they were trying to offer good and wise counsel to other people and other Parliaments and urging them not to rush such provisions. But that is precisely what is happening here.

I accept that, in the circumstances, there is obviously a timeliness and an urgency about particular provisions, specifically the gender discriminatory provision. As someone who believes fundamentally in civil rights and equality, I am for any provision that removes any layer of gender inequality from any aspect of the state’s life. Similarly, as someone absolutely committed to civil rights, I would want to support anything that removes any layer of religious discrimination. Although we are being allowed to remove one layer of religious discrimination in relation to the Bill, we are not allowed to address the others layers of religious discrimination that are still provided for and put into the infrastructure of the state. It is not a state that I particularly want to be part of. I have other aspirations in other directions, but I am not here to be subversive in any way. I have always respected the Queen and those who respect the Queen. I met her when I was Deputy First Minister—indeed, I was the first nationalist Minister to receive the Queen officially anywhere on the island of Ireland. As a Member of Parliament I have received her in my constituency and I have met her on other occasions, so I am not here in any way to disrespect. But those of us who have a different take on the Bill want time to bring up some of the issues that we want to highlight, just as we want to hear from others who want to highlight other issues.

[John Hemming]

Does the hon. Gentleman agree that it seems that because civil servants have been tasked with writing something to deal with a very narrow issue, they have ignored all the other issues, and the programme motion is preventing Parliament from properly considering various aspects?

[Mark Durkan]

Yes, as happens with many such things. When the civil service and the parliamentary draftsmen are asked to look at things, their predictive text mentality focuses only on certain aspects and the rest of us cannot get any other logic or language in there. That is precisely the present situation. We do not have to take huge numbers of days to debate the Bill, but if Members are to be comfortable with how and what they are legislating for, we need more time.

The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) said that we now have separate stages, but the Report stage will be very compressed and when Lords amendments come to the House, there cannot be amendments to them in this House, as far as I can see, unless they are tabled by a Minister of the Crown. There will be a very short Report stage and a short stage for Lords amendments.

[Ian Paisley]

I thank my hon. Friend for giving way and for adding to the strange and wonderful coalition that is emerging on the matter. Does he agree that the Government appear to be saying, “We cannot give you more time because we would have to go to Australia, Canada, New Zealand, Belize, St Lucia, Grenada, Antigua and Barbuda, St Christopher, St Kitts, Nevis, Papua New Guinea, the Solomon islands, Barbados, the Bahamas and Jamaica and ask them their opinions, and that is just too complex, so let’s push this through in a hurry”? That is wrong. Not only have we a right to raise all the issues that concern us, but all those other territories will have matters that are of concern to them and they should have the same rights as we have.

[Mark Durkan]

I accept the hon. Gentleman’s point. None of the arguments or excuses that might be offered for simply microwaving the Bill through in its present form—as the Government are doing today, without looking at the suspect content that we will still be leaving on the statute book—will stand. Those of us who are calling for more time are not calling for hugely more time, nor are we talking about the sort of grand world tour that I am sure the hon. Gentleman would love to go on to consult people in those other Chambers.

I know that some Members, including probably the hon. Member for North Antrim (Ian Paisley), have a deep allegiance to the Crown. I know that the former Member for North Antrim, who just happened to have the same name as the current hon. Member, used to state straightforwardly that he was loyal to the Crown so long as the Crown remained Protestant. I am sensitive to why people have their own issues and their own thoughts, but other people have a different conscience and a different approach.

If some people’s loyalty or allegiance to the Crown is qualified by that religious precondition, those of us in the House who do not share that view have to ask why we, as the price of taking up membership in the House, are forced to recite a form of words that we do not believe. We pledge allegiance to the sovereign and to her heirs and successors, and remember, the Bill will make a change that has implications for who the heirs and successors might be. People are concerned about some of the consequences and the conundrums that might arise as a result of these changes. But I hope that those who have such sensitivities and concerns about succession will have some sensitivity to those of us who are forced, as the price of representing our constituents, to use either the affirmation or the oath. I use the affirmation, and I then hand my letter of protest about that to the Speaker. I use it under protest because I will not swear a lie. I will not swear a lie that I will bear allegiance to someone to whom—

[Paul Flynn]

Does the hon. Gentleman recall that the last time the House discussed an alternative oath, 140 Members voted in favour of it, for all kinds of reasons? It is reasonable that we should return to the matter and have an alternative oath for those who find that they are not telling the truth when they take the oath. It is possible to put words before it or after it which negate the oath.

[Mark Durkan]

I entirely support my hon. Friend. I indicate that I am reciting the formula only in order to represent my constituents, then I read my formula. No doubt other hon. Members have other ways of doing that. I do that, as I indicated earlier, not to be subversive or offensive in any way, but to be true to the integrity of my own position. I would expect no less from anybody who does not share my views or who deeply differs from those views.

If hon. Members get a chance during the limited time that we have on the Bill to make the point that their allegiance to the Crown depends on its religious attachment in future, will they also consider whether it is reasonable to expect a pledge of allegiance to the Crown to be imposed on the rest us who either do not share that religious precondition or who simply do not share the constitutional outlook which I know is cherished by so many in the House, but is just not part of my make-up as a constitutional Irish nationalist?

Oral Answers to Questions

Mark Durkan Excerpts

Tuesday 8th January 2013 Commons Chamber

[The Solicitor-General]

My hon. Friend will know of the Connors case, which was finally concluded yesterday —an appalling case involving vulnerable people being forced to work by the criminals concerned. It is important that we tackle these cases, but the main offence was introduced only in 2010 and related to events that occurred after that date, so we are very much at the early stage of bringing these cases to court. The Connors case is one of the first. An agreement has been reached with the Gangmasters Licensing Authority, however, to refer cases to the police, and other steps are being taken to toughen up on internal trafficking.

[Mark Durkan (Foyle) (SDLP)]

Has the Solicitor-General had any indication of the number of cases where files were submitted and the decision was taken not to prosecute, or of the number of decisions that were based on concerns about the witness capacity of the victims?

[The Solicitor-General]

I will look into that and am happy to write to the hon. Gentleman, because I do not have the information here. The Crown Prosecution Service is anxious to prosecute in this area if the evidence is available. All too often it is difficult to obtain the quality of evidence from overseas that one would want in order to prosecute effectively. There is also the problem that victims need a great deal of support and encouragement. All these matters are being addressed, and I will write to the hon. Gentleman on his point.

Justice and Security Bill [Lords]

Mark Durkan Excerpts

Tuesday 18th December 2012 Commons Chamber

[Paul Goggins]

I do not make light of the issues. If intelligence were shared with a coroner, but not with the family of the deceased, that would be a massive step, but it is better that we should know the cause of death rather than the whole thing remain a mystery. I am therefore grateful to my right hon. Friend for her intervention.

[Mark Durkan (Foyle) (SDLP)]

My right hon. Friend will not be surprised to hear that I beg to differ strongly on that point. The idea that we can make a contribution to resolving issues of the past in Northern Ireland and all these inquests that have not taken place by creating a closed material procedure simply will not wash, not least in the light of the implications of the de Silva report and the issues for many families, not just the Finucane family, in relation to some of the revelations, never mind the material that was not disclosed by de Silva.

[Paul Goggins]

As ever, I warmly welcome the intervention of my hon. Friend, even though for some years we have disagreed on that point. It is good to know that he continues to make the point and that we continue to debate the issue. He may be interested in my next point which relates to the judicial review of a decision to revoke the licence of a convicted terrorist who has been released from prison, and where there is intelligence to suggest that that individual is again engaged in terrorist activity.

I shall refer to my specific experience in Northern Ireland. In 2008, I revoked the licence of a leading member of the Real IRA who was a convicted terrorist and had been allowed out of prison. Intelligence given to me made it perfectly clear that he was again involved in organising terrorist activity. That intelligence came from the Security Service. He did not like the fact that I revoked his licence and he went back to prison, but he challenged me for more than 12 months on that decision. In the end, the case went all the way to the Supreme Court. The outcome was that he had to be released into the community, though he was due to be released a few months after that date in any event.

The court made it clear that I had behaved perfectly reasonably and lawfully throughout, but it demanded that more of the information on which I made my decision should be given to the individual than the Security Service could possibly have allowed, so he walked free. I simply say to the Minister—and it will be interesting to see whether the Under-Secretary will comment on this in his winding-up speech—that the issue will not go away, especially as an increasing number of convicted terrorists will come out of prison in the foreseeable future. I suggest that this is something that needs to be looked at.

Finally, I agree that the closed material procedure used by the Special Immigration Appeals Commission, and included in the Bill, is not a perfect procedure, but to work as best as it can it requires the co-operation and advocacy of the special advocates who represent claimants or defendants. I do not criticise special advocates because they express strong opinions, and I do not question their motives, but if Parliament decides that the provision of a closed material procedure is a proportionate response to the risks that we face, it is absolutely vital that special advocates, like the rest of us, do whatever they can to make the system work. I hope that the Under-Secretary will tell us that he is engaging in a new initiative with special advocates that will mean that they will strive to make sure that they can represent their clients in the best way possible. The Bill is an important further step. It was improved in the other place, and I am sure that it will be improved in Committee.

--- Later in debate ---

[Mark Durkan]

My right hon. Friend referred to US concerns based on the Binyam Mohamed case. Does she not, and do they not, recognise that no disclosure of information was ordered by the courts here and that the disclosure actually happened in US proceedings, not here?

[Hazel Blears]

I think the Americans have a great deal of concern about many legal jurisdictions when it results in information subject to the control principle being disclosed in open court.

--- Later in debate ---

[Mark Durkan (Foyle) (SDLP)]

Other Members have observed that there seems to be consensus on part 1 of the Bill, but I may be more of a doubting Thomas in that respect. I am not sure that part 1 will do all that it promises to do for the Intelligence and Security Committee, the House or the Bill itself.

I do not, of course, speak with experience of membership of the ISC, although I was offered membership a number of years ago, in bizarre circumstances. In fact, at one point my party was offered two seats on it, which seems bizarre even now. At that time we were negotiating the St Andrews agreement, and Tony Blair got it into his head that I might be prepared to accept annex E—which re-routed some of the Patten provisions relating to intelligence and national security—if I was offered a place on the ISC.

Hours later, I was advised that two places were on offer. I had said that it would be very difficult for a member of my party to sit on the Committee, supposedly to offer scrutiny and challenge, while being unable to tell anyone that he or she had done so or to say anything about it. The consolation was that we would have two members there, each of whom would vouch for the other in our secrecy. It was a bit like King Louie in “The Jungle Book”: “Have a banana; have two bananas.”

Members have said that the Bill is a significant advance on existing law, but I am not sure whether it is adequate or truly accountable. Part 2, obviously, has raised the more substantial issues and differences. I am at a bit of a loss, because I hear differing and confusing arguments. I hear those who commend part 2 saying that closed material procedures are not a particularly big departure because they are already used in cases of various types, and that the Bill merely codifies them in a particular area. I also hear the argument that PII is no good, that it cannot be used, that it stops cases being defended and that by its very nature it means that evidence cannot be brought. The reality is that PII can be dealt with on an evidence-by-evidence basis, and does not have to be done entirely wholesale. We have seen where it has worked in the past when the courts have granted immunity in relation to certain material, evidence and witnesses. They have protected their anonymity and secrecy and have protected material from being disclosed altogether. In other cases, they have protected material by due and measured redaction. The idea that PII is basically just a one-size-fits-all option is nonsense, as it can be used in a measured way.

I feel almost as though I am involved in some sort of closed material proceedings, because everyone else seems to be aware of why certain cases were settled as quickly as they were. I do not know why the al-Rawi case was settled in the way that it was. It had not even gone to the Supreme Court once appeal was allowed, yet settlement took place. Was it so compelling that the state had no other choice? Was there no way of having more measured terms? I do not know, but other people seem to. They seem to have been briefed and perhaps they are privy to such things, but I certainly am not and as a legislator I am not prepared to pass serious, significant legislation on spec based on somebody else’s hunch that the state would not have settled if it did not really have to.

I come from a part of the world where the state has done many things and failed to do many things. People attributed all sorts of reasons and pure motives to it, saying, “They wouldn’t have done that if they didn’t have to.” We know from last week’s revelations that that logic absolutely stinks. One of the worst things was that all down the years, when such things were happening, they were not sufficiently challenged by enough people in this Chamber and in other places.

When we receive such legislation, we must question it and ask what the compelling reason for it is. We must also look to those who know something about such things. Lord Justice Kerr has been widely quoted today on the subject of closed material proceedings, but he was not the only one to make significant statements in the al-Rawi judgment. Lord Dyson, giving the lead judgment, said that the introduction of closed proceedings in ordinary civil claims would involve

“an inroad into a fundamental common law right.”

He went on to say:

“The PII process is not perfect, but it works well enough. In some cases, it is cumbersome and costly to operate, but a closed material procedure would be no less so.”

Other hon. Members have quoted Lord Kerr’s concluding judgment. An additional point he made was:

“This would not be a development of the common law”

as the Government

“would have it. It would be, at a stroke, the deliberate forfeiture of a fundamental right which…has been established for more than three centuries.”

In those circumstances, I do not think that we should lightly pass the Bill on the basis that the other place has made a few amendments that make it good enough.

[John McDonnell]

The point has been made throughout the debate—I have not heard it all as I have been in a Westminster Hall debate—that in a piece of legislation that is actually flawed, we must ask whether the balance of interest lies in protecting the state or the individual. Clearly, the Bill protects the state rather than the individual.

[Mark Durkan]

That is exactly the nature of the Bill. It is a measure to ensure that the state will be protected in various litigations and that it will have an absolutely unequal power to use a procedure that will frustrate a case against it using a special secret procedure.

We are told—I have listened to other hon. Members say it—that the amendment to clause 6 in the other place that changed “must” to “may” now means that the proceedings are entirely a matter of judicial discretion and that we should therefore trust the courts. Of course, however, that is only in relation to clause 6. Once the national security case has been engaged by a judge under clause 6, clause 7 means that what happens is entirely in the hands of the state. That joker is played by the state and cannot be predicted. PII means that a judge can be selective and can scrutinise what evidence might compromise national security and what should or should not be admitted in balancing the interests of hearing the case and protecting national security, but that will no longer be the case. We are being sold a false argument about just how big a difference there is because of the change from “must” to “may”.

As well as listening to learned judges who have considered the matter, we should look to those who also have experience of closed material proceedings and such legislation—the special advocates. The Minister without Portfolio told us, in effect, that special advocates underestimate their own power—they do rather well under such provisions and have quite a good score rate. Let us listen to what the special advocates and other observers say. The late Lord Chief Justice, Lord Bingham, described the role of a special advocate as akin to

“taking blind shots at a hidden target”.

Special advocates themselves have described it as “shadow boxing” in circumstances where

“you are speaking into a black hole because you have no idea if your strategy and points are on the money or wide of the mark”.

So special advocates are frustrated by their own professional standards. They must be particularly frustrated in relation to the interests and rights of their clients.

Remember, that is what we are talking about—people who have reason, good or ill, for taking a case against the state. If, in doing so, they are speaking of actions that have fundamentally affected their human rights, that have done damage or harm to them which in other circumstances and at the hands of someone else would be deemed to be illegal, that is serious. We should not treat the issue as a matter of administrative convenience. The argument should not be that it takes Ministers too long to decide whether they want to look for public interest immunity certificates in respect of all the different pieces of information, that it could take them a whole day to do so, and that we have to come up with something quicker, so we go for closed material proceedings. That is not the way in which we should legislate for justice to be done.

Others have quoted the Government’s independent reviewer of terrorism legislation, David Anderson. On one occasion he attended a session with representatives of the Government and of all three intelligence services and counsel. He was talked through seven significant cases and left with a bundle of top-secret material in each case, including evidence and internal and external advice, which he had taken the opportunity to read. Three of those seven cases were civil damages cases. His conclusion was that

“there is a small but indeterminate category of national security-related claims . . . for civil damages, in respect of which it is preferable that the option of a CMP . . . should exist”—

only preferable that the option of a CMP should exist, but the Bill goes down an almost compulsive route in relation to that and legislates too far.

There is the irony that the very procedure that the independent reviewer engaged in was a closed material procedure. He looked at files that were presented by Government. He listened to the representatives of the intelligence agencies and their legal advisers, and he formed an assessment with no other view being given from special advocates or anybody else, yet it is his advice and his conclusions that we are told we should listen to.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)]

I am grateful for the range of contributions that have been made today, including those made by informed members of the Intelligence and Security Committee, the Joint Committee on Human Rights, and the Justice Committee. This is an important Bill, and it is right for it to be the subject of such vigorous and thorough debate in the House.

As is plain from the quality of the debate since the introduction of the Bill, these are challenging matters, and I respect the concern that we should get the balance between justice and security right. The changes in the global landscape present us with a number of complex problems that we cannot ignore. The concepts of justice, the rule of law and human rights are fundamental principles of which our nation has a rich heritage.

Having carefully examined our options, we believe that the Bill will enable us to tackle the problems that we face both justly and securely, but I accept what has been said by a number of Members today about some of those difficulties. The Chairman of the ISC, my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), said that the Bill was not perfect, but was a great deal better than what we have at present. My hon. Friend the Member for South Swindon (Mr Buckland) said that we must start with the world in which we find ourselves, rather than the world that we might like it to be.

Those themes were underlined during the debate, along with other challenges that were mentioned by Members. I was struck by what was said by my hon. Friend the Member for Oxford West and Abingdon (Nicola Blackwood) about the changes that had been made in the Lords, and the impact that they had had on her impressions of the Bill. I was also struck by the comments made by my hon. Friend the Member for Wycombe (Steve Baker) about the need to ensure that liberty and justice were appropriately balanced. I can say to him very clearly that this is not about expediency but about how we can ensure that the difficult challenges of providing safety and security while reflecting justice are properly reflected in the changes made to the Bill. The same applies to the comments made by my hon. Friend the Member for Edinburgh West (Mike Crockart) and my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes).

I recognise that some Members in the Chamber this afternoon are fundamentally opposed to the Bill in principle and do not accept that the provisions are balanced in the way that I have characterised them. The speeches from the hon. Member for Islington North (Jeremy Corbyn), my hon. Friend the Member for Dewsbury (Simon Reevell) and my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) underlined some of those themes. The situation we are in at the moment is not right, however, and does not meet many of the objections they proffered against the Bill. We believe that it will make an important improvement to the situation by ensuring that difficult cases, which cannot be heard at all because the evidence does not come within the ambit of the court or the public view, are put before a judge so that justice can be done.

The points made by the right hon. Member for Salford and Eccles (Hazel Blears), which were reflected in the speeches made by my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) and the right hon. Member for Blackburn (Mr Straw), underlined that if there is no adjudication, that is unsatisfactory for justice, particularly in the context of the cases that are settled in which there is a defence for the Government but the moneys have to be paid out. We judge the reputational risk that poses for the Government and, as my hon. Friend the Member for Ipswich (Ben Gummer) highlighted, for those individuals concerned in those particular cases to be significant.

We have seen significant changes over the past few decades in the evolving threat from terrorism. The UK faces a global terrorist threat from beyond our shores and our intelligence services are heavily committed to protecting our national security by tackling those threats. We are also now in a more litigious society and the combined effect has seen an increase in numbers of civil claims against the Government. The problem is that in these cases, the material the Government need to defend their case is often classified and cannot be disclosed to the court without compromising operations or risking the sensitive sources and techniques on which we rely to keep the people of this country safe. As the former Lord Chief Justice, Lord Woolf, said in Committee in the Lords,

“PII has the very unfortunate effect that you cannot rely on the material that is in issue, whereas both the claimant and the Government may want to rely on that material.”—[Official Report, House of Lords, 11 July 2012; Vol. 738, c. 1189.]

The result is that at present the courts cannot rule in those cases, so the Government might be left with no option but to settle. That is why the Bill seeks to introduce the use of closed material procedures in a small number of cases that hinge on sensitive national security material.

Some hon. Members have suggested that the public interest immunity system is perfectly adequate to deal with national security matters. Let me be clear that the Government are not trying to abolish PII through this Bill: it will continue to exist and be used in certain contexts. Without the possibility of a closed material procedure, however, a very small number of cases that hinge on national security-sensitive information will not be able to reach a conclusion. When the very material that would determine a case would be excluded from PII, the case cannot be fairly concluded without a forum for it to be heard in. If it is central to the Government’s case, the case cannot proceed and the Government may have to settle. Vast sums of taxpayers’ money could be paid out as a result.

Some have argued that PII leads to more information being disclosed than would be the case under a CMP, but we do not accept that that is the case. The court can order the disclosure of material, notwithstanding the damage that would be caused to national security. But the Government then have the choice not to rely on that material, to make admissions or to seek to settle the case entirely. That means that such a damaging disclosure is never made. So, in practice, we believe that no evidence that can currently be heard in open court will be put into closed proceedings in future. Only evidence that would otherwise not see the light of day will be heard by a judge in closed proceedings.

There have been concerns that the claimant will be kept in the dark about accusations against them, though I hope it has been made clear through a number of contributions to today’s debate that that is not the case. It does no harm to restate that the Bill will introduce closed material procedures only in civil cases, not criminal cases, where the Government are the defendant, and claimants will have full knowledge of the allegations that they are making.

CMPs will allow the Government to defend their case and the claimant will have a special advocate working on their behalf, fighting their case. Moreover, it could well be that information that could be considered in a closed material procedure is of benefit to the claimant, and having the case heard using a closed material procedure does not guarantee that the Government will win.

[Mark Durkan]

Will the Minister address the implications of schedule 2 part 2 as it applies to Northern Ireland? That provides that where the court is of the opinion that there are or that there will be section 6 proceedings, a jury can be dismissed. If there is a jury trial, the jury can be dismissed, so it is not just a matter of select proceedings. The provision fundamentally alters the nature of the trial. What reputational damage does that do to the due character of the devolved justice system?

[James Brokenshire]

I am clear that, as we have said throughout the debate, the measure does not relate to criminal matters. It relates only to civil proceedings. If there are concerns, I look forward to robust scrutiny, debate and discussion in Committee. I know that hon. Members on both sides will make their points clearly. As right hon. and hon. Members who have previously served on Bill Committees with me know, I welcome all those contributions and we will respond to them.

The Lords indicated that closed material procedures are absolutely necessary and strongly rejected an amendment to remove the CMP clauses altogether. It is worth noting that the amendment was defeated by 164 votes to 24. Fair points have been made. The right hon. Member for Wythenshawe and Sale East (Paul Goggins) highlighted the issue of special advocates. We are working with the special advocates to establish where there may be further training needs, and on ways of dealing with some of the administrative issues and the processes involved. There are detailed points that we can return to in Committee. The right hon. Gentleman also highlighted the issue of inquests, a point that was touched on also by my right hon. Friend the Member for Haltemprice and Howden (Mr Davis). We have considered this, but believe that the current arrangements, with an inquiry being established, are still the appropriate way forward, but I look forward to further discussion on those matters.

I heard the points made from the Front Bench and more generally in relation to the part 1 provisions on oversight. We believe that the changes proposed in the Bill strengthen oversight. A good point was made that our intelligence agencies are better for the oversight. That view is reflected in all parts of the House, respecting and acknowledging the excellent work that they do for all of us in keeping our country safe. I look forward to further detailed discussions on those topics and on the memorandum of understanding that is being worked through with the Intelligence and Security Committee.

In relation to Norwich Pharmacal, I think that there is broad agreement across the House that the issue needs to be dealt with. Essentially, we are the only country that has this type of arrangement, which was created through jurisprudence established to deal with intellectual property cases, rather than national security cases, in which there is the ability to obtain information in that way, and that impacts on the willingness of our international partners to share intelligence information with us in respect of the control principle. Again, I look forward to discussing the matter further in Committee.

In conclusion, we strongly believe that the Bill is needed. Yes, there are difficult issues that need to be addressed, but when we look at justice and security we believe that justice is better served by ensuring that more cases are heard than are not heard. Essentially, the part 2 provisions are the fundamental issue at stake. Although I respect a number of important points that have been made this afternoon, that is the core of the issue. We believe that justice and security will be established through the Bill. Therefore, I commend the Bill to the House.

Question put, That the Bill be now read a Second time.

Patrick Finucane Report

Mark Durkan Excerpts

Wednesday 12th December 2012 Commons Chamber

[The Prime Minister]

I am grateful to my hon. Friend for his remarks about those who served and those who continue to serve, including the Royal Marines. One cannot say exactly how long a public inquiry would take, but as we have learnt from experience, an enormous amount of ground clearing work would need to be done before it could even get going—the process of everyone hiring lawyers and trying to work out who is going to have anonymity and so forth. I came to office having made a promise that we were not going to have further costly open-ended inquiries. I have looked at the evidence in this case, and I have met the family, and I have seen that there is nothing the Government are holding back. I could see a stronger case for an inquiry if there was an open question about whether we were prepared to admit there was a problem with the MOD; we are. Was there a problem with parts of the RUC? There was. Were Ministers misled? I can say yes, they were. There is no argument that we are holding back on, so what matters is getting to the truth with the greatest disclosure, and I do not think that that requires an inquiry.

[Mark Durkan (Foyle) (SDLP)]

The Prime Minister must realise that many of us find it hard to leave these matters simply to the interpretations and inferences Desmond de Silva has drawn from the dreadful evidence his inquiry has produced. We are dealing with a situation where terrorism took on the form of paramilitarism and military intelligence took on the form of para-terrorism. That is what was happening. In Special Branch, the force research unit and the secret services, there was a culture of anything goes but nobody knows—and following Desmond de Silva’s report we are still being asked to accept that nobody knows. Our predecessor Social Democratic and Labour party MPs told the Ministers of the time that that was what was going on. That is why we said we needed a new beginning to policing and we needed Special Branch to go, yet in all that time we were denounced, denigrated and dismissed. The one good thing about the Prime Minister’s statement today is that others in this House can no longer be in denial about what was happening.

There were so many levels and layers of collusion—all the deadly dereliction and the deviance and the dark deployment—but we are being asked to agree that it all adds up to there being no co-ordination. The Prime Minister must know that if we are to get to the bottom of this, we have to get to the top of it, but Desmond de Silva is trying to tell us, “No, there was no top.”

[The Prime Minister]

I have great respect for the hon. Gentleman, the campaign he has fought and the points he has made. He and his predecessors in the SDLP were right about what went wrong, and this report shows that they were right. It shows the extent to which we are prepared to open up and be clear about what happened. As for the organisations he mentions, the FRU has gone, and the RUC Special Branch has gone, so the question now is whether there is anything else to discover that this report has not discovered but a public inquiry would, and I do not believe there is.

In answer to the hon. Gentleman’s specific question about how high this went, Sir Desmond de Silva is absolutely clear that Ministers were misled and briefings were given that should not have been given, but he does not find that there was a ministerial conspiracy or ministerial order for the murder of Pat Finucane. That is very important. We now have a true picture and it is for others, including the police and the prosecuting authorities, to work out whether there is anything more that can be done.

Charitable Registration

Mark Durkan Excerpts

Tuesday 13th November 2012 Westminster Hall

[Fiona Bruce]

My hon. Friend makes a characteristically astute point and I thank him for it.

I specifically want to mention the Preston Down Trust, because it is the subject of the appeal. I have additional information about its social action in the past two to three months, including the provision of free meals to members of the public, assisting at accidents, collecting for charity and street preaching and the distribution of tracts. It has that in common with all Plymouth Brethren churches. Surely no one can argue that they do not provide public benefit.

On the website, the Brethren say that

“we hold the same faith as every true Christian, we publicly preach the gospel and engage with the broader community through fund-raising and volunteer work. We work and live alongside people from many walks of life and many Brethren own businesses that collectively employ thousands of non-Brethren. Brethren characteristically are caring, active and contributing members of their local community.”

Someone might say, “Well, they would say that, because they are saying it about themselves”, but I assure people that I have spoken with a constituent of mine who describes himself as a lapsed atheist. He is certainly not a Christian, by his own admission, and he works for one of the several Plymouth Brethren businesses in my constituency. His name is Glyn Rushton, he is happy to go on the record and he works with Delta Balustrades, where he is a production manager. He got his job through the jobcentre in 2005 and he has the utmost respect for the Brethren, describing them as model employers:

“I would always view Brethren as a force for good in any area. They are industrious, independent minded people who care about those around them. They set out to solve more problems than they create and rarely feature in crime statistics”.

His point about the positive aspects of the Brethren way of life should not go unnoticed, and I draw attention to page 17 of the booklet to which I referred earlier.

It is important to raise the issue of information circulating on some internet sites that gives a negative portrayal of experiences to do with the Plymouth Brethren. I understand that such matters have not been a cause of the Charity Commission deciding to refuse charitable status. In a letter of 7 June, the commission states:

“We do not have any evidence before us at this time to demonstrate disadvantage which may serve to negate public benefit.”

No one would claim that any organisation is perfect, but if the Charity Commission has any such concerns the proper thing to do is to investigate thoroughly and to substantiate or discount them. At present, however, having checked with the Plymouth Brethren as late as this morning, I understand that that is not an issue in the appeal case of the Preston Down Trust.

[Mark Durkan (Foyle) (SDLP)]

I commend the hon. Lady, as others have done, for initiating the debate. She and I served on the Bill Committee that considered the Small Charitable Donations Bill and, in that context, it is clear that the Government have gone to some lengths to make quite elaborate and convoluted provision to take care of the differing set-ups and networks of the Catholic Church and the Church of England, though not much by way of smaller Churches. Does she accept that we Members of Parliament might have an opportunity, when that Bill returns to the Chamber in a couple of weeks, to support an amendment that would clarify that local churches as well as community amateur sports clubs should be included in the working definition of charities and at least come under the definition of community benefit?

[Fiona Bruce]

I thank the hon. Gentleman for that intervention. I remember that aspect of the debate, and certainly that is something that could be considered.

Members have spoken about how many other faith groups are concerned about the legislation. It is interesting, therefore, to look back at the debate in 2006, when the Charities Act was passed in the House. The right hon. Member for Doncaster North (Edward Miliband), now the Leader of the Opposition, said that

“it is right that public benefit must be shown, but…at least for religion, the obligation will not be onerous. We have accepted, and I think others have, too, that making provision for people to attend acts of worship is clearly a public benefit. It is clear in case law, and it will remain part of the charity law of this country. Religions have nothing to fear.”—[Official Report, 26 June 2006; Vol. 448, c. 96.]

It would appear that religious charities now very much have something to fear.

Several commentators have remarked on the issue, and I want to draw attention to some of them, because it is important to demonstrate that concern exists about it among not only a huge swathe of parliamentarians but people in authority outside the House. Last week, the former Archbishop of Canterbury, Lord Carey, said he was “very concerned” and was quoted as saying:

“I do believe we need to hold the Charity Commission to account as much as they hold any religion and social service to account. I believe that Christianity has a huge and great record in terms of serving the community, in terms of education and all kinds of ways.”

Other people have expressed concern. Lord Boateng wrote to me:

“I believe the Charity Commission has exceeded its mandate and needs to be reined in. I believe people of faith have much to fear from this decision and will support all measures brought to Parliament to reverse it.”

A highly respected charity law practitioner, Robert Meakin, has written a book, which I have with me, called, “The Law of Charitable Status: Maintenance and Removal”—quite a triumph to read over the weekend, although I say so myself. His words date back to 2008, although I notice that the copy in the Library was in pristine condition:

“The law of public benefit is confusing and as a result the Commission cannot be confident of its powers to remove charities from the Register… there is a need for greater clarity about the Commission’s powers.”

Interestingly, he also refers to a 1948 House of Lords decision in a famous case, the National Anti-Vivisection Society v. the Inland Revenue Commissioners, in which Lord Simonds stated that

“only a radical change in circumstances, established by sufficient evidence”

should justify holding an object not to be charitable which in earlier ages has been held to possess that virtue. As mentioned, the Plymouth Brethren have been registered as a charity for some 50 years.

Mr Meakin also says that it should be rare for charities to be removed from the register. He says that there is no power in the Charities Act authorising the commission to decide questions of charitable status judicially:

“Its role is to register charities and in doing so it must follow general law but there are so few decisions of the Court and legislation that the Commission is forced into becoming a de facto law-maker”,

rightly pointing out the importance therefore of clarifying the issue. He also mentions the importance of public confidence, in the commission and in the status of charitable registration.

--- Later in debate ---

[Mark Durkan (Foyle) (SDLP)]

I will not say ditto completely to the hon. Member for North Antrim (Ian Paisley), but I join other hon. Members in commending the hon. Member for Congleton (Fiona Bruce) on raising this important issue. It is clear from the indications that the Charity Commission has given that this will be an escalating premise if the precedent is allowed to stand, which is why everyone should be worried.

In an intervention, I referred to the Small Charitable Donations Bill, which provides the opportunity to say who should qualify for gift aid on additional schemes. In the Bill Committee, I asked the Economic Secretary whether HMRC, in its conduct of gift aid and the associated scheme under the Bill, would be bound by the Charity Commission’s decisions, or whether it would make its own judgment. He said that HMRC would apply its own understanding of the Charities Act, but I now understand that HMRC is withholding some gift aid payments from Brethren trusts pending the outcome of the tribunal. It seems to me that Members who are rightly putting questions to the Minister today and thundering at the Charity Commission for the adverse implications of what it is doing will have our chance, as parliamentarians, in a couple of weeks’ time. I hope that some of us gathered here can put our heads together and propose an amendment to the Bill that will ensure the concept of community buildings, as provided for in the Bill, is not confined, elaborately and convolutedly, to the Catholic Church or the Church of England, but applies to all Churches.

Like other hon. Members, I think it is terrible that the Brethren have to try and advertise the benefit that they provide to the public. They help the public in my constituency and they are passionately and socially engaged. The emphasis in their living guidance on separation should not be misinterpreted and misrepresented, as the Charity Commission has done. They have never wanted to advertise it—no Pharisees they—and they should not have been driven into this position. As parliamentarians, we have the opportunity to draw a line under this in a couple of weeks.

[Mr David Burrowes (Enfield, Southgate) (Con)]

Is it not the case that we also had chance, as I did, when I was a member of the Select Committee on Public Administration, to question the Charity Commission and others about the implications of the changes in legislation? Assurances were given then that there was no intention of this kind of thing happening. When we scrutinised the matter on the Floor of the House, it was said that there was no intention of such a thing happening. To use another analogy, the Charity Commission is a wolf in sheep’s clothing. It has overreached itself, and it needs to get back into line with what Parliament intended and with Select Committee scrutiny. If it cannot do so, we must ensure that we get it back into line.

[Mark Durkan]

I fully endorse the point made by the hon. Gentleman. We should remember that the legislative buck stops with us, and we will have the opportunity to draw a parliamentary line under this in a couple of weeks’ time.

[Jim Dobbin (in the Chair)]

I thank Members for their discipline in what has been an amazingly busy debate. I now call the shadow Minister.

Hillsborough

Mark Durkan Excerpts

Wednesday 12th September 2012 Commons Chamber

[The Prime Minister]

I have listened carefully to the hon. Lady, as, I am sure, did the Attorney-General and Home Secretary. She made a very powerful point.

[Mark Durkan (Foyle) (SDLP)]

I join other hon. Members in welcoming the full and fluent apology from the Prime Minister, and the profound words of the Leader of the Opposition. Those words are authoritative because they rest on the diligent work of the panel that the right hon. Member for Leigh (Andy Burnham) was so right to establish. The Prime Minister will know that Bloody Sunday families and survivors in my constituency have a profound empathy with those Hillsborough families that have struggled with grief compounded by grievance, and endured injustice, insult and indifference. Does the Prime Minister recognise that this report will not only mean that Hillsborough families are overcome with a sense of vindication, but that it will also provoke many other mixed and difficult emotions and issues? Will he ensure that relevant services are supported and supplemented to help the families and survivors of Hillsborough with those needs?

[The Prime Minister]

I am sure that with his experience of Bloody Sunday and the Saville inquiry, the hon. Gentleman is completely right to say that the families will need a lot of support and help as they digest what is in the report. The commonality, as it were, of the two things, is that a Government should not make an apology just because something bad happened some time ago. The apology should be in respect of the fact that there is new information that injustice took place and was allowed to lie for far too long, and that false stories were got up about what happened. That is why an apology is not only right, but the necessary and correct thing to do, and that is where there is common ground between the two issues raised by the hon. Gentleman.

Prime Minister’s Adviser on Ministers’ Interests

Mark Durkan Excerpts

Tuesday 17th July 2012 Commons Chamber

[Mr Hurd]

I share my hon. Friend’s reservations about placing too much weight and responsibility on someone who is ultimately an adviser, and this will not be the first time that the hon. Member for Newport West has overstated his case. The point that I was trying to make about the political attacks on the Prime Minister by the hon. Member for Harrow West was that the reasons in each particular case that he cited were made public and the Prime Minister, as we are extremely well aware, was held very accountable for all those decisions.

[Mark Durkan (Foyle) (SDLP)]

Does the Minister not recognise that history shows that the ministerial code has been invoked more as a shield against public and parliamentary accountability than as a tool for enabling those things? For as long as the code remains the personal app of the Prime Minister and the independent adviser does not have independence, surely all we are looking at is a feeble cross between a figment and a fig leaf.

[Mr Hurd]

The hon. Gentleman gives me an opportunity to discuss the issue of whether Sir Alex is independent enough, which featured in the thrust of the argument from many hon. Members.