Aviation Security

Baroness O'Cathain Excerpts

Thursday 5th November 2015 Lords Chamber

[Lord Ahmad of Wimbledon]

The British Government have a very distinguished record in upholding human rights. I totally agree with the noble Lord that we should empathise with all involved in this situation. This is a real challenge primarily for the Egyptian nation itself. Certain actions have been taken. As I said, we are still awaiting further details to substantiate the exact causes of this tragedy. Nevertheless, it is important that, as a responsible UK Government, our first concern must be to ensure the safety and security of UK citizens and residents. At the same time, as I indicated to the noble Baroness, Lady Symons, it has always been the case, and should continue to be so today and for future Governments, that we extend whatever assistance and co-operation we can to others when such tragedies occur. We have done so before and we are doing so now.

[Baroness O'Cathain (Con)]

My Lords, is this not a wake-up call because we have all got so used to being body searched and searched for liquids and goodness knows what else, and now somebody has got through and almost certainly put a bomb on an airplane? Instead of asking whether we should know about routeings or anything else, I hope my noble friend agrees that we should all take it on ourselves to stop moaning about what happens at airports and just be eternally vigilant. Is it true that a United States official spoke to an internet company such as AP that reported this, saying that the US had obtained evidence about a terrorist threat and a bomb on that plane through having listened to conversations? That is what the BBC is reporting today.

[Lord Ahmad of Wimbledon]

As regards my noble friend’s final point, it would be inappropriate for me to comment on media speculation. Generally speaking, intelligence agencies, and the sharing of intelligence with our allies to avert any such tragedy, is an important part of how international co-operation works. I agree absolutely with her earlier point about a wake-up call. This is very close to home for me as I am the Minister responsible for aviation security at the Department for Transport. I assure noble Lords that we have regular reviews in place. I look regularly at the issues and challenges we face on this front. In doing so, officials and Ministers engage with, but also visit, different locations to review security arrangements. The challenge we face—it is out there, we have all said it before and I am sure we all relate to it—is that a determined terrorist will go to any length to achieve their aim and their aim, ultimately, is to cause disruption and destruction to innocent lives. We must come together to universally condemn it and I pay tribute to all noble Lords who have spoken today. Notwithstanding the questions that they have rightly asked, we have come together rightly to condemn this tragedy, in which the current quite strong suggestion is that a bomb was involved.

Civilian Use of Drones (EUC Report)

Baroness O'Cathain Excerpts

Tuesday 8th September 2015 Lords Chamber

Moved by

[Baroness O'Cathain]

To move that this House takes note of the Report of the European Union Committee on Civilian Use of Drones in the EU (7th Report, Session 2014–15, HL Paper 122).

[Baroness O'Cathain (Con)]

My Lords, I am very pleased to move this Motion to Take Note. In this debate, I will refer to RPAS—remotely piloted aircraft systems—as drones. Not only will this make the language of my contribution less clunky but I hope that it will make it more accessible to the public. However, I am also sensitive to concerns that drones have major military and security implications, and make it clear that today’s debate will focus solely on the civilian use of drones.

Our report opens with the sentence:

“2014 could be described as the year of the drone”.

That was a major understatement. Its year has continued into and extended throughout 2015. Drones are widely discussed in the media. Some weeks it seems that they are talked about every day. They are the subject of many personal anecdotes. Small toy-like drones were tipped as the must-have gift last Christmas. Such a description could make the business of drones seem easy to dismiss. Indeed, I did not realise until the committee embarked on this inquiry that drones also represent a valuable commercial opportunity for jobs and growth. From agriculture to wedding photography—I could not think of anything beginning with Z—more than 670 permissions for commercial drone operations in the UK alone were granted by the Civil Aviation Authority in 2014. There are said to be 2,500 drone pilots across the EU. It should be remembered that all drones have pilots—yes, each drone is piloted, albeit from the ground. The European Commission estimated that the drone industry could generate 150,000 jobs by 2050. The aim of this inquiry was to find out if the European Commission’s estimate was credible and, if so, what needed to be done to help it grow.

Custom and practice in this House oblige me to thank the committee, our clerk, our policy analyst and the Committee Office. In this instance, it is no obligation but a sincere realisation that without them we would not have taken off. I thank them all; they all worked so very hard. The committee was ably supported in its work by its specialist adviser—I do not know who nominated him—Tony Henley, who has an encyclopaedic knowledge of the subject area. We all thank him. The committee is very grateful to the large number of businesses, trade associations, regulators and individuals who were so willing and enthusiastic to share their experiences with us. I particularly want to say that we found the Government to be proactive and most engaged on this subject. Their swift and supportive response to the report, which came within 13 days of its publication, is a clear demonstration of their commitment to support businesses in this area and, indeed, to protect the public.

This report is a big first step in analysing the potential for a civilian drone industry. A considerable amount of work remains to be done before we will see small drones delivering parcels or large drones freighting cargo, although the newspapers are constantly speculating about this sort of activity. We must realise that important regulatory and technological challenges remain.

In this debate, I will focus on public acceptance of drone technology. The Government’s response said that if the drone industry is to be successful,

“more work will have to be done to reassure the general public”.

Certainly, that is true. In addition to privacy and nuisance concerns, there remains widespread anxiety about the possibility of a mid-air collision between a small drone and a commercial aircraft. This is a common concern with private and leisure users, who can purchase and operate a drone without even realising that they are piloting an aircraft when they utilise it. As was expressed by Paul Cremin from the Department for Transport, a witness to our inquiry:

“The question, as you quite rightly say, is that when you get the box home, where, first of all, does it tell you that you are buying an aircraft, let alone anything else? These are aircraft. They are viewed in the Air Navigation Order as aircraft, and you have responsibilities under that order”.

This concern is even more alive in the wake of reports of near misses and the operation of drones over football stadiums and close to the Eiffel Tower. By the way, I must state that we did not consider the use of drones for nefarious activities but that anxiety remains very strong indeed.

We heard that the CAA and others were taking action to raise public awareness. Small businesses such as First Person View are including leaflets in the boxes of the devices that they sell. The CAA published a video online just before Christmas and the Metropolitan Police posted information on social media. No doubt awareness of this inquiry has also helped. I found that the press office of the House of Lords did a great job in publicising the inquiry, even helping to organise a slot in the “Today” programme on the day of publication, when I was interviewed live from Riga where I was speaking at an EU conference on drones. They actually work very hard behind the scenes. In their response, the Government confirmed that they intend to consult the general public about the rules regarding the use of drones. The Government also agreed to consider acceptable future applications for drones by the media and police. Is the Minister in a position to share more details about this consultation, in particular its objectives and time schedule? There is no time to lose.

The committee also felt that it was important that misuse of drones was adequately punished. While our report applauded the work of the CAA in general, it concluded that the police should play an increasing role in enforcing the existing law. This is because in addition to aviation regulations, the misuse of a drone often breaches nuisance or privacy laws. Both the CAA and the Metropolitan Police have recently contacted the committee to confirm that this approach is now being adopted. That was a minor victory for us.

The report noted that,

“the workload of regulators at EU and at Member State level … will increase in the near future”,

and urged,

“that regulators be sufficiently resourced to deal with this”.

Research conducted by Dr Alan McKenna on the back of our report found that there had been more than 400 calls made to the police regarding incidents involving drones over the last two years. Does my noble friend the Minister believe that the police have adequate resources to take on this new role? Are police officers being adequately trained in this area?

In our discussions with the Metropolitan Police, the committee also learned that it remains difficult, if not impossible, to identify the operator of a drone. This explains why successful prosecution is so rare. We recommended the creation of a system which could track and trace all drones, especially those flying below 500 feet, irrespective of whether they were flown by commercial or leisure pilots. I am certain that there will be a technological solution to this problem which will be simple and affordable for consumers and businesses alike.

Since our report was published on 5 March, I am pleased to say that our recommendation is being considered by industry, EU regulators and the Government. The Government’s response indicates that they are working with NASA in the United States on this issue. An additional risk we now face is perhaps one of duplication of effort. Can the Minister describe in further detail the Government’s involvement with NASA and inform us whether industry has been involved?

I recognise that there remain a number of other important issues which I have not had an opportunity to touch on this evening—namely the effectiveness of JARUS, which is the body nominated to draft the European regulations; the development of important technologies such as detect and avoid; and the challenges that many businesses face in finding affordable public liability insurance. None the less, I am sure that noble Lords contributing to this debate will bring some of these issues and others to the fore, and that all noble Lords taking part will realise how grateful I and the committee are for their involvement.

Finally, although not in keeping with British modesty, I close with a quote from the European Commission’s response to our report:

“The House of Lords’ opinion is most useful and addresses all the relevant issues for opening the market for drone services in a detailed and open way. The opinion will become an important reference for all policy makers, including the Commission”.

This is a great commendation and perhaps a little help in our relations with the Commission and the other 27 member states. I beg to move.

--- Later in debate ---

[Baroness O’Cathain]

My Lords, it just remains for me to thank everyone who has taken part in the debate. Perhaps I may particularly thank my noble friend the Minister because he has been assiduous in taking note of all the points that were raised. I am sure that once he reads Hansard, he will see that he has forgotten nothing. His speech was exemplary and I thank him very much. I know that we have all said that the drones are an industry of the future. The development of drones has been described as going from the ordinary phone or huge computer to the terrific smartphones and iPads we have now. It represents a revolution for the aviation industry akin to the development of the jet engine, or even of the first flight by the Wright brothers. Again, I thank everyone who has taken part and I hope that noble Lords will agree to this Motion.

Motion agreed.

International Students: Post-study Visa

Baroness O'Cathain Excerpts

Wednesday 1st July 2015 Lords Chamber

[Lord Bates]

I am very happy to meet representatives of the universities. In fact, earlier this year the All-Party Parliamentary Group on Migration produced a very helpful report entitled UK Post Study Work Opportunities for International Students, which drew on evidence from universities. I have read it, and it may be helpful to follow it up with universities to make sure that we get the message out on what we are selling and what they should be selling—that is, world-class education, in which we specialise, not low-skilled employment.

[Baroness O'Cathain (Con)]

My Lords, some time ago, as a member of a digital study that we were doing in this House, a group of us went to Imperial College. We were told categorically by graduate students there that they would have to leave within two or three months of finalising their studies. The Minister is saying that they do not have to do that, so why do we not get that message across? I am hearing that from students everywhere, so they are getting misinformation or a lack of information. I think that it would be to the benefit of us all to get that message across.

[Lord Bates]

Imperial College is a world-leading university and we are very proud of it. I want to be clear on the specific point that my noble friend made. If someone is not going into a graduate-level job, they will have four months following the completion of their course to look for work. If they do not do that but are able to find graduate-level employment, they are able to apply for a tier 2 visa. If they secure a temporary internship, they can stay for 12 months. If they are completing a doctorate, they can stay for 12 months, and if they are setting up a business, they are particularly welcome and can stay longer.

Queen’s Speech

Baroness O'Cathain Excerpts

Thursday 9th May 2013 Lords Chamber

[Baroness O'Cathain]

My Lords, it is a great honour to take part in the debate on the most gracious Speech. Reading through the speech several times, I was struck by how central to everything is the economic situation in this country and how we have to measure everything against that.

The first statement in the gracious Speech is:

“My Government’s legislative programme will continue to focus on building a stronger economy so that the United Kingdom can compete and succeed in the world”.

I am fully aware that the debate today is considering constitutional affairs, equalities, home affairs, justice and law, but the state of the economy affects each and every one of those areas. We must arrange our finances to achieve the measures proposed; I suggest that we cannot debate any of them without considering the economy.

Despite all the valiant attempts of the Government to turn around the economic situation, and acknowledging that much has been done, the country remains in a fragile state. It is proving very hard to set the country back on the road to recovery. We can take some weak comfort from the fact that we are by no means in as serious trouble as many others. The message from the EU at the moment is decidedly grimmer, with members of the eurozone openly talking about huge and almost fatal difficulties.

It is imperative that we concentrate on the promotion of growth, on clearing up the financial mess left by the previous Administration, and on the necessity of creating new jobs, particularly for the young, who when they planned their futures, let us remember, never expected that youth unemployment would be one of the most worrying features of their post-school or post-higher education lives. The UK is to be given credit for having done much better than other EU member states, but so many young people today feel betrayed that the promises of good jobs in their bright future are not materialising.

Many of the measures proposed in the gracious Speech are excellent but will need a gargantuan effort to achieve. The energies and considerable resources of the Government must be focused on the economy.

Why am I speaking about the economy so much? The first reason is that I cannot take part in the debate on Monday, which will deal with the economy, because each Monday while the House is sitting—and occasionally when it is not—Sub-Committee B of the EU Select Committee meets to scrutinise documents, proposed directives and information from the European Commission and Parliament. The production of this mini-avalanche is relentless and the timetable is quite restricted. It is essential that we keep abreast and ahead. Secondly, I am convinced that the state of the economy is such that, as I said, every section of the gracious Speech can be measured against it.

Sadly, at a time when we face so many different and troubling challenges, the Government have decided to launch an astonishing attack on our tried and tested values by redefining marriage. Those of us who have been following the process in the other place knew perfectly well that the legislation was going to come here. It was perhaps wishful thinking that led so many people and sections of the population to believe that, because the Bill was not mentioned yesterday morning, it was not going to happen—mind you, that was put right within four hours.

Marriage is at the heart of our way of life, our communities and our country. The union of the two sexes, uniting men and women to each other and to their children, provides the foundation for human flourishing. We have heard today in this House a discussion about childcare and children not flourishing when they get to school because they have not had proper childcare. It is within the bounds of marriage that this happens.

Equality is put forward as the basic reason for this action by the Government, but very little more equality is needed. I think that we are talking more about equality in the name: some people want to say that they are married rather than suggesting that there is anything wrong with marriage at the moment or that marriage has equivalence with same-sex couples being together.

As everyone will remember, we had many discussions on the Civil Partnership Act. I remember clearly the noble and learned Baroness, Lady Scotland, agreeing that the Civil Partnership Act had caused more discrimination in another area. It is like pushing down one bit only for it to come up somewhere else. We were discussing the case of sisters—anyone who was there at the time will remember the injustice being done to them; your Lordships can look it up in Hansard. The noble and learned Baroness emphasised at the government Dispatch Box, “It is not for this Bill. I agree that it is discrimination, but it is not for this Bill at this time”. We accepted that, but when is it going to be tackled because, again, sisters are left out of it?

The evidence from social science is now emphatic that children do best when raised by their married mother and father. I mention just one example: a paper from the Institute for Fiscal Studies observes that, even by the age of three, there are “significant differences” in outcomes between children born to married parents and those born outside marriage. Children born to married parents showed superior social, emotional and cognitive development. There are many other studies which provide powerful evidence of the positive benefits of marriage. Should we throw this up in the air?

Marriage will continue to be the bedrock of society only if it remains the legal union of one man and one woman. The current plans seek to change the meaning of marriage. Such a complete rewriting of a fundamental social institution can have only serious and some unpredictable consequences. Many people question whether the Government have the moral authority to attempt this redefinition. Most people in this country object to its imposition over their heads; they want marriage to remain as it is.

It greatly saddens me that my party is pursuing such a radical and aggressive social agenda and in such an undemocratic fashion—and I repeat, “undemocratic”. I listened carefully to my noble friend Lord Fowler, with whom we have jostled many times on these issues. I say that there is no mandate to make this change since the idea is not in our manifesto—nor indeed is it in those of the other parties; my noble friend says that that does not really matter and that, after all, the dock labour scheme changes were not in the manifesto. Well, I consider that the dock labour scheme, which was wonderful and achieved a lot, is nothing like as important as the fundamental rocking of the state of social cohesion in this country.

The proposal to redefine marriage is unpopular and wholly unnecessary. I was very struck by my noble friend’s argument that the only power in this country lies with the elected representatives. It is a cogent case which I accept, but if there are elected representatives, what are they elected for? They are elected to listen to their constituents and to represent those thoughts—if they do not show them the error of their ways—in the national Parliament. It seems to me that in this case the representatives have all the power because, as my noble friend says, the only people with power in the country are the MPs. However, they do not have any responsibility, because they do not seem to be taking any responsibility to listen to their constituents—certainly not on this matter.

[Lord Forsyth of Drumlean]

Does not my noble friend agree that the argument of my noble friend Lord Fowler about the sovereignty of the House of Commons would be much more powerful if the Government were not imposing a timetable Motion on the consideration of these matters by the elected House?

--- Later in debate ---

[Baroness O’Cathain]

I could never have said it as well as that, but I thank my noble friend.

What is likely to be the reaction of those who have been made summarily redundant and have to rely on food banks to tide them over until they can access benefits, of those thousands of young people whom I have already described, who are living in a state of deep concern, and of pensioners holding steadfastly to values who are suffering from receiving no interest on their savings and the rising costs of energy, when they witness the Government pushing ahead on a Bill that does not address any of those areas? I will tell you what they are probably thinking: have the Government lost their reason? They must have done so to justify the emphasis on redefining marriage while all else is in an unstable and worrying state.

I believe that it is a deeply flawed Bill and a deeply concerning attack on the values of great swathes of the population. Where is the pressure coming from? Are the Government taking any notice of the widespread antipathy to the redefinition of marriage? It is a wrong Bill, and it beggars belief that the Government have wantonly decided to push it through at any time, let alone when we are in such a parlous state.

Marriage must be supported and valued, not dismantled. For the sake of the future of marriage in this country, I urge the Government to admit graciously that this has been a great mistake and drop the Bill.

Crime: Stalking

Baroness O'Cathain Excerpts

Tuesday 12th March 2013 Lords Chamber

[Lord Taylor of Holbeach]

I am sorry, 2013—as a result of the collation of the data for the first six months of implementation.

[Baroness O'Cathain]

My noble friend has been very informative about what has happened. After all, nothing was done—there is no point in the noble Lord, Lord Foulkes, shaking his head—by the previous Government. Does my noble friend have any idea whether any advice is given to girls, particularly in the last stages of their schooling, about what could happen and what advantages there are in learning how to avoid stalking?

[Lord Taylor of Holbeach]

This is part of a fuller education strategy in sexual health and education involving both young men and girls, which I hope is being practised by schools across the country.

Police: Vehicles

Baroness O'Cathain Excerpts

Wednesday 14th March 2012 Lords Chamber

[Lord Henley]

My Lords, as I made clear in my earlier answer, they are sold for the best possible price.

[Baroness O'Cathain]

My Lords, can I ask my noble friend to make sure that the opinions in response to this Question do not make noble Lords go away with a feeling that the British motor industry is in a bad state? It is in the best state it has been in for about 15 years and we should talk up our industry rather than the reverse.

[Lord Henley]

I am very grateful to my noble friend for her comments. I remind her about the announcement made about Nissan and the extra jobs that will be available there as a result of decisions that Nissan has made about further inward investment in this country.

Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011

Baroness O'Cathain Excerpts

Thursday 15th December 2011 Lords Chamber

Moved by

[Baroness O’Cathain]

That a Humble Address be presented to Her Majesty praying that the regulations, laid before the House on 8 November, be annulled on the grounds that they do not fulfil the Government’s pledge to protect properly faith groups from being compelled to register civil partnerships where it is against their beliefs.

Relevant document: 43rd Report from the Merits Committee.

[Baroness O'Cathain]

My Lords, although I am a reluctant rebel today I am very grateful to the Government, and particularly to the Leader of the House, for scheduling the debate and for sticking to the policy of treating this as a matter of conscience. Conservative Back-Bench Peers have a free vote. In fact, all three main parties allowed a free vote when this issue was first voted on in March 2010. At that time the noble Baroness, Lady Royall, said that it raised,

“fundamental issues for religious organisations, and it is therefore right that they are considered as matters of individual conscience”.—[Official Report, 2/3/10; col. 1439.]

I am surprised that the Opposition are now whipping, but that is their decision.

The purpose of my Prayer is to address the widely held concerns that the regulations threaten religious freedom. The Merits Committee has drawn them to the special attention of the House, because of the concerns expressed to it. The House must decide whether we reject them and invite the Government to think again. The regulations are intended to create an entirely voluntary system for places of worship that wish to register civil partnerships. That is the intention and I do not doubt the Government's sincerity, but senior lawyers advise that the interplay between the regulations and equality law could result in legal pressure on churches that do not want to register civil partnerships. That is what I want to address.

In no way am I trying to block these regulations as a means of opposing civil partnerships. I have seen some deeply unpleasant briefing materials and, indeed, have received many obnoxious letters which impugn my motives. I have absolutely no hidden agenda. My sole reason for this Prayer is to attempt to stop churches having their religious freedoms taken away by local authorities or by litigious activists. The House must not pass regulations that fail to fulfil the intention of the Government. The wishes of the noble Lord, Lord Alli, who I am glad to see in his place, should be honoured. He made it clear that he did not wish to see places of worship forced to register civil partnerships against their will.

In the run-up to this debate, there has been so much confusion that I particularly want to make it clear that we must not confuse the registration of civil partnerships in churches with the question of the redefinition of marriage. Marriage remains in law the union of one man and one woman for life, to the exclusion of all others; nothing said or done here today will have any effect on that. The issue is the impact of these regulations as drafted, which seek to allow civil partnerships to be registered—and I underline registered—in places of worship. It is not a question of voting against civil partnerships; it is a question of asking noble Lords to vote for the protection of religious freedoms.

The regulations were laid as a negative instrument on 8 November. Parliament has 40 days from that date to annul them, and that period runs out at the end of this week. Strangely, the coming-into-force date printed on the regulations was 5 December, so technically they are already in force. That date was the Government’s choosing. We still have time to vote them down. If my prayer is agreed today, the regulations will cease to have effect. However, applications by same-sex couples will not be jeopardised, as the local systems have not yet been established. This means that the Government have time to think again about how to implement the proposals, while ensuring that their intention—and I emphasise their intention—of protecting religious freedom is achieved.

The procedure for rejecting delegated legislation which I am invoking today was agreed by the House in July. If the House no longer wanted to have that power, it could have given it away or curbed it. I acknowledge that many noble Lords, especially on these Benches, are reluctant to vote down secondary legislation. According to the Library, we have done so three times in just over a decade—twice in 2000, on the GLA election expenses regulations, and again in 2007, on the casino regulations. I am sure that this is one such situation in which we should act. The regulations are fatally flawed: they put religious freedom in jeopardy. It is always dangerous to take away freedom, but to do so using secondary legislation, which is subject to so little scrutiny, seems especially egregious.

The House of Commons had no opportunity to scrutinise these regulations. As a negative instrument, they did not qualify for the Delegated Legislation Committee. Edward Leigh, the Member for Gainsborough, tabled a Prayer to Annul and tried to persuade the Government to set up a Committee, but this was denied. Thus, the sole responsibility for scrutinising these regulations lies with us. We have no opportunity to amend the regulations; if we had, I would have tabled an amendment. As a revising Chamber, we might have preferred that, but it is not an option. If we think that the Government’s drafting is wrong, we must reject them. This is the only way of asking the Government to think again.

The regulations themselves do not force churches to register civil partnerships on their premises, but offer an opt-in system whereby faith groups wishing to register civil partnerships have the freedom to do so. The regulations contain this statement:

“Nothing in these Regulations places an obligation on a proprietor or trustee of religious premises to make an application for approval of those premises as a place at which two people may register as civil partners”.

But I am afraid that this statement is meaningless, because it only protects against obligations in these regulations. A similar statement was inserted in the Civil Partnership Act by the amendment of the noble Lord, Lord Alli. However, it is not the regulations under the Civil Partnership Act that have the potential to place an obligation. The churches need protection not from the regulation under that Act, but from that under the Equality Act. Having protection under these regulations is like being given protective goggles on a construction site, when what you need is a hard hat—it is protection against the wrong thing.

Professor Mark Hill QC, a leading ecclesiastical lawyer, has produced a written legal opinion which makes the very serious claim that the regulations will result in,

“a curtailment of religious freedom”,

and will compel churches,

“to secure approval for the registration of civil partnerships despite their doctrinal objection”.

This is serious. Professor Hill cites Section 149 of the Equality Act, “Public sector equality duty”, which requires all public bodies to have due regard to the need to eliminate discrimination. This duty applies to local authorities and to the registration officials who are housed and employed by them. These are the people with whom the churches have to deal when they apply for the licence to register marriages.

According to Professor Hill, local authorities could say that the public sector equality duty requires them to oblige churches to register for civil partnerships as a precondition of being able to register for marriage. It is blindingly obvious that a church which performs marriages, but refuses to perform civil partnerships, is discriminating. The church regards this as justified discrimination, simply by being faithful to its religious principles. However, the public sector duty is about eliminating all forms of discrimination. So you can see the problem. Some local authorities would claim that facilitating churches to register marriages, but not civil partnerships, will make them complicit in discrimination.

I know that the Government argue that marriage and civil partnerships are two separate systems, and that the local authority cannot make approval of one dependent on the other. Indeed, the final decision on approving premises for marriages rests with the Registrar General, while the decision over civil partnerships takes place locally. In both cases, however, the application has to be submitted through the registry office, housed at the local authority.

In a separate legal opinion, responding to the Government, Aidan O’Neill QC, a leading human rights lawyer at Matrix Chambers, states that it will be a relevant consideration for, and duty of, the relevant public authority to have regard to how any such approval might impact upon its attempt to eliminate discrimination. He states that although the Marriage Act 1949, which governs registration of churches, allows little discretion, the public authority would still be bound by the public sector equality duty. In order to avoid a conflict between the registration duties under the 1949 Act and the equality duty under the 2010 Act, Mr O’Neill says that a public authority could “read down”—which, as a non-lawyer, I take to mean “re-interpret”—the Marriage Act 1949 to make it compatible with the public authority’s positive obligations under the Equality Act. He suggests that a judicial review might even require it so to do.

It is certainly not difficult to imagine a local authority solicitor advising his chief executive that in all functions, including processing applications for churches for power to register civil partnerships and marriages, the local authority must eliminate discrimination. This would include processing applications only from those churches that also allow the registration of civil partnerships. The application may never be referred to the Registrar General if the local authority applies a filter on the application at the initial stage.

The Church House briefing, which I think everyone has had, argues that because marriages and civil partnerships are different things, the law cannot be used to require a church to provide one just because it provides the other. However, Aidan O’Neill asserts that the equivalence between marriage and civil partnerships is a basic tenet of the Equality Act. The courts are unlikely to view them as two entirely separate services. They have already ruled, in the Ladele case, that being willing to register marriages, but unwilling to register civil partnerships, is discrimination. Mr O’Neill’s opinion, which I have made available to colleagues, shows how churches and denominations could be squeezed by combining the obligations of the Equality Act, the Human Rights Act, the European Convention on Human Rights, and EU law.

We cannot ignore the views of these two QCs. The willingness of Professor Hill and Aidan O’Neill to commit these opinions to writing proves that there are lawyers who are willing to argue these points in court. If there is any risk that these arguments might succeed and that churches could be deprived of the right to register marriage by politically correct local authorities, we must prevent it. We have to get it right first time. Last year the noble Baroness, Lady Royall, actually spoke against the amendment of the noble Lord, Lord Alli, because of the holes in the drafting. She said:

“Our preference would be to get this right from the outset”.—[Official Report, 2/3/2010; col. 1440.]

This is our last chance to get it right. We cannot put the churches in the legal firing line and sort it out later.

I received a copy of the Minister’s letter yesterday, which says that,

“if a successful legal challenge were ever brought, I would like to provide reassurance that the Government would immediately review the relevant legislation”.

I suggest that this is not good enough. We must get it tied down, guaranteed and cast-iron now.

The churches might win out in the end, of course, but why should they face the cost, the fear and the chilling effect of sorting out a legal mess created by Parliament? We know that some people would like to force churches to register civil partnerships. The chief executive of Stonewall said that right now faiths should not be forced to hold civil partnerships, although in 10 or 20 years’ time that might change. Mike Weatherley, the Conservative MP for Hove, has more immediate plans: in a letter to the Prime Minister this year he called for churches that refuse to register civil partnerships to be banned from registering marriages. In a nutshell, this is what would happen if these regulations are not annulled.

We have watched the progress from permission to coercion before now. In 2003 we legalised joint adoption by same-sex couples; that was permissive. However, when the sexual orientation regulations were introduced, even though they were not specifically about adoption, it suddenly became compulsory for Roman Catholic adoption agencies to take part in same-sex adoptions. How permissive is that? As a result of the overlap between the permissive provisions and the obligations of equality law, all but one of the English Catholic agencies have either closed down or been secularised. Holes in the regulations must be plugged or someone somewhere will exploit them.

Officials at Church House are not concerned, of course—the Church of England does not have to apply to registrars to register marriages—but surely they ought to be concerned about other religious denominations and independent churches that rely on the good will of local authorities. I have had so many letters on this subject from churches that I did not even know existed. The secretariat of the Roman Catholic Church prefers the Government’s interpretation of the regulations but admits that there is a risk. It says:

“If, of course, there were an opportunity for the Regulations to be revisited at this stage, then they should include … a statement explicitly to put the matter beyond doubt”.

I reiterate that I am not talking about redefining marriage or about trying to unpick the Civil Partnership Act. I am talking about the particular mechanism that the Government have chosen to legalise civil partnership registration on religious premises. I accept that it is the Government’s intention to introduce a voluntary regime that protects churches. I urge the Minister to agree to my Prayer, withdraw the regulations and go away to think again about whether the Government really have done enough to achieve this voluntary regime.

Aidan O’Neill QC argues that the only way to protect the churches is an amendment to the Equality Act. The Scottish Government, who are considering their own plans to allow religious civil partnership registration, have the same view. If leading QCs are not convinced, the Government have not provided reassurance despite their wish to do so. My Government need to go away and think again. I beg to move.

[Lord Alli]

My Lords, I wanted to start by arguing that this issue has already been debated at length in your Lordships’ House and that the opinion of the House had already been made clear. Then I came to my senses and remembered that I was actually in your Lordships’ House, so I disposed of that line of argument.

I shall move on to the substantive issues and tackle first the intention of the clause to which these regulations apply. Noble Lords may recall the amendment that I originally proposed with the noble Baronesses, Lady Noakes, Lady Neuberger and Lady Campbell, who I am very pleased to see in her place today—I know that she has been very ill recently, and for her to come here was a great kindness. The regulations did not and do not place an obligation on any religious organisation to host civil partnerships if it does not wish to. I shall read once again the actual words in the Act:

“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so”.

How can such a clear statement of intent be twisted into forcing religious organisations to host civil partnerships in their buildings against their will? I shall tell the House how I think it happens. First, you take a spurious argument. You dress it up in legal language; find a senior QC or two, and preferably a professor, and get them to write a lot about very little. Then you throw in a large dose of prejudice, and finally you add that secret ingredient: fear—in this case, fear that people will be coerced into acting against their conscience. It is a heady cocktail and its purpose is simple: to make good people with good intentions do things that otherwise they would not do.

That is how it is done. What has always confused me is why we continue to drink that cocktail when we know what goes into it. It has always confused me that decent, hard-working people continue to listen to extreme views built on half-truths. We know that they are half truths but some kind of politeness stops us from challenging them. That needs to stop. We need to call an untruth an untruth, a lie a lie, an opinion an opinion and a fact a fact. We must not develop the politics of the Right in America, where it does not matter what the actual truth is, whether any prosecution would actually succeed or whether or not it really is a conscience vote. All that matters is how big your microphone is and how controversial your views are—nothing to do with truth, fairness or justice.

I say, with the deepest respect: is it not about time that a Government who know that this is not a conscience vote put a three-line whip on all their Members, not just their Ministers? At this point I normally thank the Minister for his help and support, and indeed I am sure that he knows I do so now. I suspect that thanking him will do neither him nor me any good, but I do so anyway.

Is it not time also that Front-Benchers of all parties, who know that this is not a conscience vote, stand up and say so? Is it not time that those who hold legal opinions admit that no one believes that a legal action would succeed in this context, because of the very conscience clause that is in the Act? We should be better than this. This House is a place where truth should win out and the arguments should be about the big issues—good, evil, right and wrong. It is a place where the facts should be respected and the kind of misinformation that we see peddled in our postbags rubbished for what it is.

In the run-up to this debate, I have asked myself, “What is it that those who seek to annul these regulations hope to achieve?”. It is simple: they do not want same-sex couples to celebrate their partnership in any religious building. They argued against the original amendment. They simply do not care if the religion concerned wants to host these celebrations or not; it is their way or no way at all. That is simply wrong. This provision is all about religious freedom. It is about allowing churches and religious organisations the freedom to decide whether or not they wish to host civil partnerships. It is about removing the civil law from those discussions. It is about allowing each faith to decide for itself what is best for it and its congregation. It is fundamentally about religious freedom.

I know that this is a difficult issue for some churches, but the legal opinions of even the Church of England and the Catholic Church confirm that no church will be forced to approve its premises and that the public duty that the noble Baroness talks of simply does not apply. If you cherish religious freedom, there is a bigger principle at stake—the principle that means allowing the Quakers, the Liberal Jews or the Unitarian Church to make their own decisions on civil partnerships in their own religious buildings.

I shall end by saying a little about what I believe I have learnt that this House can and cannot do. We should not fashion our laws around the convenience or inconvenience of any particular religion. We cannot stop a gay Catholic man from suing the Catholic Church. We cannot stop a gay Anglican from suing the Church of England. For that matter, we cannot stop a straight man or woman from doing the same. We in this House cannot stop people from going to court. The question is not, “Can they make a case?”—in my experience, a good lawyer can always make a case—but, “Will they win?”. On that there can be very little doubt: the answer is no. However, should any in this House feel unconvinced, please draw comfort from where we started and from what is written in the Act:

“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so”.

That is the law that we passed. It is a debate that we have had. This procedure should not seek to frustrate the will of this House or indeed of the other place. We should see off this Prayer to Annul and its bogus claim to seek to protect religious freedom. Should the noble Baroness decide to test the opinion of the House, I hope that noble Lords will join me in the Lobby. I beg to oppose.

--- Later in debate ---

[Lord Henley]

My Lords, I am not sure which European court my noble friend is referring to. If he is referring to the European Court of Human Rights, we discussed that somewhat earlier in the day. I think that it was the noble and learned Lord, Lord Lloyd of Berwick, who referred to a judgment in a Finnish case in the European Court of Human Rights, and then to the later remarks of the Lord Chief Justice that we must give due weight to the decisions of that court but not necessarily be bound by them. If it was the European Court of Justice, obviously we would have to comply with that, as with other matters, but I do not see quite how it would get involved in these matters.

[Baroness O'Cathain]

My Lords, I thank everyone who has taken part in this debate. I was very relieved that I was not at the butt-end of accusations of being homophobic, toxic, odious or even old, as I was in some of the letters that I got. I know I am old, but I do not like it to be said pejoratively.

I have listened intently. I remember—this is a flashback to my childhood—that when my parents asked me what I wanted to do, I said I wanted to become a lawyer. Thank goodness I did not, that is all I can say; it is even more confusing than being an economist.

I have listened particularly to the Minister. I just want him to agree once more, so that my noble and learned friend Lord Mackay has satisfaction. In the 2004 Act no one was in any doubt and yet there was protection for the avoidance of doubt, but there is doubt around the 2010 Act—whatever we think about it, there is doubt out there. If the Minister is saying, in a ministerial Statement from the Dispatch Box, that he is convinced that the protection for the avoidance of doubt in the 2004 Act applies to the 2010 Act, then in view of the opinion around the House I will withdraw my Motion. But I want to make sure that the Minister has the chance to say so.

[Lord Henley]

My Lords, I confirm again to my noble friend that that is exactly what I said. Section 202 inserts an amendment into the 2004 Act but it is equally true that it is in the Equality Act; it is a vehicle for this. It is proper to say that it is Parliament’s intention that that is the position. I do not think I can be any clearer than that.

[Noble Lords]

Sit down!

[Baroness O'Cathain]

I was speaking. I apologise to the noble Lord, Lord Lester, but I was in the middle of my request to the Minister. I beg leave to withdraw the Motion.

Motion withdrawn.

Identity Documents Bill

Baroness O'Cathain Excerpts

Tuesday 21st December 2010 Lords Chamber

[Lord Howarth of Newport]

My Lords, it is one more noxious constitutional innovation on the part of the coalition that the Government seek to pray in aid financial privilege when they do not want to face up to the consequences of their policies and their legislative actions in this House. Historically, I believe, privilege has not been claimed in relation to matters of expenditure. I am very willing to be corrected by noble Lords who are former Speakers or Deputy Speakers of the House of Commons, but that is my belief. There is hardly a policy, a Bill or a statutory instrument introduced by Governments into Parliament that does not involve expenditure. If it ceases to be in order and permissible for this House seriously to consider the legislation and the policies brought in by the Government on the basis that financial privilege means that it is not appropriate for us to do so, we might as well pack up and go home. Such a situation would make an absolute mockery of our claim to be a revising Chamber or, indeed, a proper debating Chamber.

On that point, I appreciate that the noble Earl, Lord Attlee, always seeks to act in the best interests of the House, as does the noble Lord, Lord McNally, but I would say to them that we are a debating Chamber. As my noble friend Lord Davies said, the noble Baroness, Lady Neville-Jones, is very well able to look after herself. The House respects her and I am sure that she is personally willing to enter into debate.

On the constitutional point, I think that this really is of the greatest importance. It seems both cowardly on the part of the Government and contemptuous of this House that they seek to evade debate and, under a new and bogus claim of financial privilege, seek to prevent us from voting on issues on which we have traditionally been entitled to vote. This is a constitutional innovation of which your Lordships’ House should be aware and upon which it should reflect very carefully indeed.

[Baroness O'Cathain]

My Lords, we have just listened to the most toe-curling self-righteousness from Members of the Opposition, who were, after all, the ones who introduced the ID cards scheme in the first place. They encouraged people to think that it would be a great thing to have an ID card. The fact that 30,000 people or thereabouts bought ID cards does not necessarily mean that those people thought about whether the cards were a good thing; they were encouraged to think so by the previous Government. Now we have the noble Lord, Lord Howarth, whom I have a lot of time for, saying that the Government will have to face up to the consequences of their policies in this House.

I say to noble Lords opposite that they should all face up to the consequences of their policy of bringing in ID legislation in the first place and of encouraging people to go and buy the identity cards. I am not taking sides on this one—

[Noble Lords]

Oh!

[Baroness O'Cathain]

No, I am not. Please listen to what I have said. The self-righteousness coming from the other side is quite sickening.

I abstained in the debate because I felt that there was a moral justification for the money to be repaid to the people who were conned by those opposite into spending money on ID cards. There is no point in denying that by trying to be the people who support everybody out there and by adopting a high moral tone and self-righteousness. Rubbish.

[Lord Pannick]

My Lords, I hope that I will not be accused of being self-righteous if I say that I share the concerns that have been expressed by the noble Lords, Lord Hunt of Kings Heath and Lord Howarth of Newport.

Behind the moral issue and the issue of principle, I think that there is a legal issue. The Minister will recall, as mentioned by the noble Lord, Lord Hunt of Kings Heath, that it was suggested to her on the previous occasion when we debated the matter that she might wish to take specific advice from the law officers as to whether the Government’s approach is consistent with this country’s obligations under the European Convention on Human Rights. The concern, which is very simple indeed, is that the Bill removes a property right without any compensation, in breach of Article 1 of the First Protocol to the ECHR and, therefore, that the amendment that noble Lords approved was not only wise but necessary.

When we last debated this matter, the Minister’s answer was that the ID card remained the property of the Government and therefore there was no difficulty. With respect, however, that is no answer at all. It is very well established in the case law of the European Court of Human Rights—indeed, it is common sense—that, when the Government grant a licence or an authorisation to do something, that of itself establishes a property right. If that licence or that authorisation is then removed by the Government, contrary to the expectation that has been created, the Government have a duty, other than in the most exceptional circumstances, to pay compensation. That legal obligation is precisely consistent with the substance of our debate on the previous occasion and with the amendment that was approved by noble Lords.

I therefore join the noble Lord, Lord Hunt of Kings Heath, in asking the Minister to explain whether she has indeed taken specific advice from the law officers, to deal in more detail with the substance of this concern and to explain to noble Lords how it can be that what the Government intend to do is consistent with this country’s international obligations.