Marriage (Same Sex Couples) Bill
(11 years, 5 months ago)
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Lord Hylton
Lord Hylton
My Lords, this amendment is partly probing and partly to do with language, and it may have some constitutional overtones. I have tabled it for discussion because I believe that it is not the business of government or of Parliament to change by legislation the long accepted meaning of words. As has already been said, the proposed change recalls Alice in Wonderland or, indeed, Orwell’s Newspeak. Certainly the meaning of words evolves, and sometimes changes direction almost completely. This, however, does not justify changing known meanings by law. To do so undermines confidence in all generally accepted meanings. It devalues language and the honesty of spoken and written meanings. On those grounds, I appeal to the Government and those behind the Bill to have second thoughts.
I should say something about the word “Union” in my amendment. It is a strong and honourable word. For example, the union between Scotland, England and Wales has been a strong one, originally uniting the Crowns and later the Parliaments of the two countries. I trust that it will not end in divorce. The United States has similarly stood the test of time and survived a terrible civil war. Even the Union of Soviet Socialist Republics produced a strong central power capable of threatening the rest of the world.
I said at Second Reading that civil partnership should be regarded as an honourable estate or status. I take the same view of unions between two persons of the same sex. Another speaker in that debate suggested that “espousal” would be appropriate to describe the intentional coming together of two men or two women. I suggest that such an expression is a little archaic and may not convey permanence or lifelong qualities. I submit that “Union” is a better and stronger word and has wholly honourable connotations. To have two different words to describe two very different kinds of relationship would be far clearer. It would also make things far more straightforward for teachers, parents and others who have to explain relationships to young people.
If “Union” had appeared in the Bill here instead of “Marriage”, the Government would have saved themselves a great deal of trouble. They would not have been faced with a petition from more than 650,000 people. They would not have aroused deep fears and anxieties throughout all parts of England and Wales, as we saw from the huge volume of letters sent to Members of both Houses. The Conservative Party would not have alienated many of their natural supporters.
Traditionally defined marriage had and has a sacramental character in many of the great religions. Leaving that point aside, it has represented the coming together of two families with their histories and traditions, and embraces the widest possible set of relationships surrounding and supporting the married couple and the children of their begetting. This is something immensely valuable that we should not risk devaluing. We should seek to avoid the problems beginning to re-emerge in countries that have thus far legislated for same-sex marriage.
I offer the amendment to your Lordships and the country in the hope of stimulating new and constructive thought. I beg to move.
Lord Cormack
My Lords, I went to the Public Bill Office last week to table this very amendment, only to find that the noble Lord, Lord Hylton, had beaten me to it. I therefore, of course, added my name to the amendment and was very glad to do so.
A couple of weeks ago we had an extremely moving debate, with some powerful speeches on both sides. I am bound to say that the result of that debate did not clearly reflect the division. I would much rather that we had not had a Division because I know that a lot of colleagues voted for constitutional reasons, believing that it was not right to seek to vote down something on Second Reading that had received such a large majority in another place. Yet I know from many personal conversations with colleagues in all parts of the House that there is deep concern and real unease about calling same-sex relationships “marriage”.
Lord Lloyd of Berwick
My Lords, I did not speak at Second Reading, but I found myself in agreement with almost all those who spoke against the Bill. In particular I agreed with the speech of the most reverend Primate the Archbishop of Canterbury. My noble friend Lord Quirk also made a short and very effective speech. Like other noble Lords, I have received well over 100 letters from those who feel very strongly about the Bill; indeed, some have written to me more than once. They differ from the sorts of letters one gets on these occasions in that they are all clearly written from the heart. Equally, there are those who feel strongly the other way. I have received only a few letters from them. I do not know why there should be so few compared with the great mass of letters on the other side, but I have great sympathy with their views.
What has been missing in all this has been any attempt to find some sort of compromise between the two positions; in other words, a way of giving the gay community what it so obviously desires, without destroying the meaning of the word “marriage”. It seems like many weeks since I received a booklet which does exactly that. It is issued by ResPublica and written by Professor Roger Scruton. It is extremely well argued and, in my view, provides exactly the sort of compromise that is needed. I do not think it was mentioned on a single occasion at Second Reading, but it should have been.
It was with great joy, when I arrived in the House half an hour ago, that I found an amendment tabled in the name of my noble friend Lord Hylton and the noble Lord, Lord Cormack, expressing exactly the view which I would have expressed if I had spoken at Second Reading. I have not had time to develop the argument in support of the amendment but, with your Lordships’ permission, I will read just one short paragraph from the ResPublica British Civic Life document, which is entitled Marriage: Union for the Future or Contract for the Present:
“To the Churches, we recommend that they recognise that the demand for same sex marriage comes from a serious desire for permanent loving homosexual relationships to be recognised and embraced by society, by Christianity and by other faith groups. The demand for secular marriage equality is in part an appeal for religious acceptance, which the Government’s proposals cannot offer. We believe the Churches should consider offering not civil partnerships but civil unions”—
exactly what this amendment proposes—
“to same sex couples a celebration and a status that recognises a transition from partnership into permanence. And the churches and other faith groups should therefore grant civil partnerships a religious celebration and recognition making them a civil union. Churches should recognise not just that homosexual persons are as they are, but they also are owed recognition of the permanent relationships they choose”.
It is for those reasons that I will support this amendment as strongly as I can and hope that it will at least be considered by the Government.
Lord Phillips of Sudbury
My Lords, at Second Reading I suggested that the term for a same-sex marriage might be “espousal”, but I accept the point made by the noble Lord, Lord Hylton, that it is an archaic or anachronistic word. I also said at Second Reading that I intended to sound out the House on whether there would be much support for that nomenclature, and now I have to say that there was not sufficient support for me to feel that bringing it forward at this stage would be the right thing to do.
The reason that I want to persist in the suggestion that there should be a different word for same-sex unions is largely to do with reconciliation. This measure has excited more public interest and reaction than any other measure that I can recollect in recent times, and there is undoubtedly a widespread feeling among a large mass of our fellow citizens—decent people who are not remotely driven by prejudice—that, as the noble Lord, Lord Cormack, and I said at Second Reading, there is a fundamental physical difference between the two unions. It is not a difference either of status or esteem; nor a difference of stability or love, but none the less, it is a fundamental difference. What is quite interesting is that a number of the letters I have received have taken me up on the point that not all heterosexual unions have procreative potential. If a couple are coming together aged 96, there is not likely to be procreative potential. The same goes if one of the couple is unfortunately sterile. However, that escapes the point that same-sex unions can never have procreative potential.
Those who support using exactly the same language will ask, “What’s the point; what’s the difference; what are you trying to do?”. All I am trying to do is to reconcile the bulk of this country to this important, evolutionary change in our law. I sincerely believe that refusing to compromise in the matter of nomenclature would be a big mistake. After this measure has become law, we do not want a rumbling continuance of objection which could conceivably crystallise and increase. I am, therefore, still in favour of a different word. I would be willing to accept “union” which the noble Lord, Lord Hylton, suggested, though I would prefer the word “matrimony”, proposed in Amendment 46—which is part of this group—in the name of the noble Lord, Lord Armstrong of Ilminster. So I hope that we can find a compromise that will give honour to both sides—if I can call them that—although there are infinite shades of grey between the two extremes.
The Marquess of Lothian
My Lords, I strongly support what my noble friend Lord Phillips of Sudbury has said. In my speech at Second Reading, I said that there is a great difference between a definition in law and the real meaning of words. This is one that troubles me considerably. I agree with him that Amendment 46, in the name of the noble Lord, Lord Armstrong of Ilminster, suggests a way forward particularly because the word “matrimony” in the Oxford English Dictionary derives from the Latin word “mater”, which means “mother”, and therefore has the meaning of children related to it. Whether or not a marriage produces children is, in a sense, irrelevant. The meaning of the word is there, and it is there for a particular purpose.
I have found it very difficult to work out the best word to use. I have problems with the equal use of the word “marriage”. I personally believe that marriage is between a man and a woman and, although I shall certainly obey the law, whatever it says, I shall never cease to believe that. Whatever we do in terms of same-sex marriages, we are not creating the same meaning, but a legal definition which will be applicable in this country and in this country only. We could be creating enormous problems of definition if, for example, a couple who, believing that they were married under this piece of legislation, were to go to another country which did not accept that definition of marriage—and Russia comes to mind, given what its parliament did the other day.
I hope that the Government will look closely at this to see whether there is a way of finding a distinction between what I call “real marriage”; what in some amendments is called “traditional marriage”; and what my noble friend Lord Cormack has called “union”. I am not sure that any of these words is quite correct, but I think we need to ensure that when this legislation is through, rather than continuing to have this divisive and abrasive distinction, we can have two definitions which can live happily alongside each other. In the course of debating this legislation, I hope we will come to that conclusion.
Lord Armstrong of Ilminster
My Lords, as both the noble Lord, Lord Phillips, and the noble Marquess, Lord Lothian, referred to Amendment 46, which is in my name, I will take this opportunity to speak to it.
The Bill reminds me irresistibly of Humpty Dumpty, as other noble Lords have said it does them. Your Lordships will remember that, from his seat on the wall, Humpty Dumpty said to Alice:
“When I use a word, it means just what I choose it to mean—neither more nor less”.
A little later, he said:
“You see it’s like a portmanteau—there are two meanings packed up into one word”.
I should not of course think of casting the Prime Minister, with his many other qualities, as Humpty Dumpty but I am sure that the noble Baroness, Lady Stowell, and her colleagues will not have forgotten Humpty Dumpty’s fate. Sitting on his wall, he failed to assess the risk of falling off it and had a nasty accident. Unfortunately, he could not be saved, even though the military were called upon in aid of the civil power.
The Bill would change the meaning of the word “marriage”, which has hitherto denoted a loving and lifelong commitment between a man and a woman, often—although as the noble Lord, Lord Phillips has said, not always—leading to the procreation of children and the perpetuation of the human race. If and when the Bill becomes law, marriage would become a portmanteau word. Marriage between same-sex couples would be lawful as well as marriages between a man and a woman. The intention is that same-sex couples who choose to marry should enjoy equality of rights and equality of esteem with men and women who choose to marry. I have no problem whatever with that, although equality of rights is something that can be, and largely has been, achieved by changes in the law without any change of nomenclature while equality of esteem, although it may be assisted by a change in the law, will not be achieved by that alone.
My amendment today is concerned solely with the law. The Bill changes the meaning of the word “marriage”, which is where Humpty Dumpty comes in. It makes marriage between same-sex couples as lawful as marriages between a man and a woman. As the noble Lord, Lord Cormack, said, there still remain some ineluctable differences between the two kinds of marriage. The law will need to recognise, and be able to provide for, this distinction. The Bill already shows that some of the existing legislative provisions which apply to marriage, as we have known it, cannot apply to marriages between same-sex couples, although we should want them still to apply to marriages between a man and a woman. My amendment proposes that, for the purposes of the law, marriages between a man and a woman should be “matrimonial marriages”. This would mean no change in the meaning of the word “matrimony”, which would continue to mean what it has always meant: the act of two free persons mutually taking one another for husband and wife. I do not need to pray Humpty Dumpty in aid of my amendment.
There are precedents for a qualifying adjective for certain kinds of marriage. For instance, in continental legal systems—although not I think in English law—there used to be morganatic marriages, where a man and a woman were lawfully married but the children of the marriage were disqualified from inheriting the father’s hereditary honours. The amendment which I am proposing would provide a convenient means of distinguishing in legislation, where necessary, between marriages of a man and a woman—matrimonial marriages—and marriages of same-sex couples. The word and concept of marriage would apply to both kinds of marriage, but the amendment would provide a serviceable legal distinction for one kind of marriage. It implies no moral, ethical or value-based judgment, or discrimination, between the two kinds of marriage. I commend it to the House.
Lord Lea of Crondall
My Lords, I would like to know the basis on which any noble Lord would disagree with the sentiments expressed by the noble Lord, Lord Armstrong of Ilminster.
Lord Waddington
My Lords, I agree entirely with my noble friend Lord Phillips. We are talking about two types of union which are entirely different: different in the way in which the union is manifested, in the obligations that flow from that union, and in the sanctions that can be obtained if one party defaults.
At Second Reading my noble friend Lord Jenkin missed the point entirely, which is very rare for him. He did not think that lumping together these two unions was redefining marriage, and said that it was not going to redefine his marriage. With respect to my noble friend, that is not the point. What about those coming up to marriageable age who are contemplating whether to marry? Might not this mishmash of traditional marriage and the union of two people of the same sex, with the accent no longer on family, make some people wonder whether to go ahead? What will they feel when denied the opportunity to have a traditional marriage?
One of the strangest assertions I have heard during this debate is that marriage will be strengthened if we go ahead with this Bill. There is not a jot of evidence to support that proposition; in fact, all the evidence is to the contrary. Some of us may have heard Dr Patricia Morgan when she—
Baroness Thornton
Since the noble Lord thinks there is not a jot of evidence that marriage will be strengthened by this Bill, what evidence does he have—apart from his assertion—that this Bill will put people off getting married?
Lord Waddington
I was just getting to the experience of other countries, and it does seem that some people have been put off. Dr Patricia Morgan produced evidence to show that since gay marriage was introduced in Spain in 2005, the decline in heterosexual marriage has been precipitous. It has been just the same in Holland since 2001, and also in Scandinavia. There is not one example of this change going ahead and marriage increasing. The result has been exactly the opposite.
Lord Waddington
I am afraid that the noble Lord is wrong about that. It was certainly true that in Spain there was a relaxation in divorce at the time of the introduction of same-sex marriage, but I am talking about new marriages. There was a big decline in new marriages in Spain since the change came about. So it seems obvious that if marriage between same-sex couples is to be allowed, at the very least it should be made clear that it is very different from traditional marriage.
Baroness Williams of Crosby
My Lords, political decisions are often influenced by issues of conscience. Speaking for myself, I have never confronted a more difficult decision than the one about equal marriage in the Bill that confronts us today. I voted against the amendment of the noble Lord, Lord Dear, because I believe that the House had a duty to look scrupulously at and scrutinise carefully every detail of this complicated Bill. I also believe that it was wrong to try to nullify a decision made in the other House as a result of a substantial majority on a free vote. Since then, I have had to confront the outcome of that and, with others in this House, consider very carefully the proposals before the Committee.
In my view, marriage has been for a long time the foundation of family life in this country and elsewhere. In that case, I believe that it is indeed a framework for procreation and the raising of children. As we all know, among mammals, human beings take longer to reach maturity than virtually any other creature on the planet. It takes between 15 and 18 years for a child to mature—if one takes an optimistic view—and I think many of us recognise that nowadays the actual figure may be well over 20. What that means is that we are looking at a very different proposition from other mammals. We are looking at what has to be a very large part of a life’s commitment to raise children properly, which is a very substantial factor that we have not yet considered sufficiently.
As my noble friend Lord Alderdice has pointed out, the evidence from social workers and psychiatrists suggests—I will not put it more strongly than that—that it looks as if a marriage between a man and a woman is probably the best and most stable basis for raising children that we have so far invented. I would also suggest that there is another factor than simply the biological one. Of course, we know that there is a biological difference between the genders but it is also critical to say that there is a difference between the approaches of the genders to a whole range of issues. As the famous American writer Carol Gilligan pointed out in her book, In a Different Voice, women and men approach relationships, and very often their relationships with the whole of society, rather differently; above all, they complement one another. That is the basis of what is known in the churches as holy matrimony and something that we have to consider very carefully indeed.
Traditional marriage also gives equal value to parents of both genders. In a moving statement yesterday, Mr Lammy, the Member of Parliament for Tottenham, pointed out that there had been a serious devaluation of the role of fathers in our society, citing his own experience as the child of a single-parent family. Today hundreds of thousands of children—more than 1 million—are being brought up without fathers or mothers or another permanent, loving or male presence. Single-parent families often display truly amazing—indeed, nearly miraculous—commitment to their children. Many of them are the breadwinners as well as the main carers for their families. I am often breathless with amazement at the extraordinary courage and dedication that the heads of single-parent families bring to that duty. But often they find it utterly exhausting to try to handle the whole burden on their own. That is not to condemn in any way single-parent families but to say loudly and clearly that the role of fathers should once again be sustained by the state and by society because they are such a crucial element in sustaining a long-lasting and loving family between two parents.
However, of course there is a different side to the argument. The most reverend Primate the Archbishop of Canterbury said that he had been stunned by the quality of some of the relationships between gay men and lesbian women that he had come across. I accede to that completely. Among my own friends, some of the most remarkable examples of human union that I have ever come across are between my gay and lesbian friends and their partners. Therefore, why should there be any difference in the nomenclature? The distinction is perhaps best made by pointing out the very different roles, as has been done already by several speakers in this debate, of a marriage that is based on the outcome of procreation—the long-term maturing of children—and a relationship that is based on the huge, total and intimate relationship between two people who wish to live their lives together.
Quite straightforwardly, the churches have a great responsibility in being asked to be forgiven for some of the attitudes taken towards gay people in the past. The Christian churches are fundamentally about forgiveness—not about vengeance, but about forgiveness. Jesus Christ asked not only that human beings be forgiven but that human beings forgive one another for their mutual and reciprocal sins. I say loudly and clearly that the Christian churches, believing as they do in forgiveness, should ask forgiveness for the long, abusive and often cruel treatment of gay people over many years. I hope that that is something they will address now that they are under charitable and understanding leadership.
Lord Brown of Eaton-under-Heywood
My Lords, when I came into the Chamber this afternoon, it never occurred to me that there might be something original to be said. Having listened, however, to all the speeches thus far, it seems to me that it is original to point out that the very purpose of this Bill—its underlying objective—is inclusivity; it is sameness; it is to eliminate, so far as possible, any differentiation in regard and in treatment of same-sex couples from heterosexual couples. It is to give same-sex couples the exact same status, benefits, comfort, joys, estimation, reputation—call it what one will—of marriage. The Bill is so called and the Explanatory Notes make that plain. With the greatest respect to those who move and support these amendments, they are calculated, if not indeed designed, essentially to undermine that core purpose of the legislation.
In truth, this is a root-and-branch attack on the Bill, almost in the same way as was advanced at Second Reading. I, too, regret I was unable to speak at Second Reading—I was in fact celebrating my own golden wedding. I am happy to say that my noble and learned friend Lord Lloyd of Berwick was among those who joined me in the celebration. He says today that to talk of civil unions, instead of using the language of marriage would be, and I think I quote him accurately, “to give the gay community what it so obviously desires”. With the best will in the world, it would not. They have civil partnerships. It is absurd to suggest, I would argue, that civil partnerships and civil unions are distinct.
Lord Elton
I think that there is a misunderstanding between us about the difference between being equal and being the same. If you have two different things and put them together, you do not arrive at a larger quantity of the thing that was originally there; you arrive at something new. If you add one part of hydrogen to two parts of oxygen, you finish up with water.
Whatever you say in the law, there are two different categories here; what we are trying to do, in all charity, is to bring them together and bring some sort of reconciliation and mutual recognition of understanding, which is being made exceedingly difficult, if not impossible, by the way this thing has been introduced into Parliament and into public life. However, the fact remains that when you have one part hydrogen and two parts oxygen, you finish up with water and not hydrogen.
Lord Brown of Eaton-under-Heywood
I, of course, need the most rudimentary lectures in any scientific subject you care to mention, but I appreciate—and it was said time and again at Second Reading—that there is a distinction between equality and sameness. However, that is no bar to giving the gay community—same-sex couples—the same term to celebrate and enshrine their faith in and commitment to each other. If the Bill goes through in its present form and those couples are henceforth asked, “Are you married?”, they will be able to say yes, but if the amendments that are now suggested go through, they will still have to say no, and I for one would regret that.
Lord Elystan-Morgan
My Lords, I find myself in total agreement with the submissions made so clearly by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I have immense respect for and sympathy with those who stand firmly on each side of this argument. If it is proven that there can be no actual sameness in single-sex and dual-sex marriage, then on a very artificial basis the argument seems to be carried that way. There cannot be total sameness, and we all know that.
However, the question that we should humbly be asking ourselves this afternoon is: can there be so much in common that the idea of marriage can accommodate both in respect and in status? That, I think, is the real question. If the argument was that the Christian concept of marriage is now and always has been immutable, unchangeable and utterly the same from generation to generation, then my case would fail. However, is that in fact the case?
Prior to 1836, people could get married in this country only in the Church of England. My forebears were staunch Welsh Presbyterians but they had to submit to a ceremony that they regarded as wrong. Was that not a massive change in so far as the institution of marriage was concerned in 1836? I am sorry to pontificate about matters that are well known to many distinguished lawyers in this House but before 1882 and the Married Women’s Property Act of that year, a married woman could not hold substantial property in her own name. She could hold what I think was called her “paraphernalia” but other property became the property of her husband and she herself was essentially a chattel of her husband’s estate. Immediately after that Act of 1882, could anybody say that marriage had not changed at all, any more than one could say it after 1836?
Then, in 1925, the criminal law was substantially changed. Previous to that point, if a married woman was present when an offence was committed by her husband, there was a clear presumption—a rebuttable presumption, it is true—that she was acting under his dominion and under his orders. Would one not say that that substantially changed the situation of marriage in the criminal law?
Lord Anderson of Swansea
The noble Lord is giving us a very fine history of a number of changes which have, by statute, been brought about in relation to the definition of marriage. Is he suggesting that any of those changes was of the scale and nature of the change now being proposed?
Lord Elystan-Morgan
Ultimately, bearing in mind the whole ethos of society, it is a matter of judgment, whether the totality of these changes has substantially altered the institution of marriage. Prior to 1991 a husband could rape his wife provided they were still living together and no separation order had been made by a court. Was her position the same after 1991 as it was previously? One could give other less spectacular instances.
Lord Cormack
I nearly always find myself in almost total agreement with the noble Lord, but surely the one constant throughout all these changes is that the relationship has been between a man and a woman.
Lord Elystan-Morgan
That is absolutely true. That is the assumption made in the Book of Common Prayer, which, as I understand it—I am a Welsh Presbyterian—says that there are three justifications for marriage. The first is the procreation of children, the second is the avoidance of the temptations of fornication and adultery, and the third is that there should be a lifelong relationship based on love, affection and respect. The first justification has been dealt with very properly by the noble Lord, Lord Phillips of Sudbury. Many people who are young and capable of procreating children now get married on the understanding that there will be no children in their relationship. Does one say that their union is less than a union of marriage? On the third point, about the creation of a lifelong union based on love, affection, respect and mutual dedication, is there a fundamental difference between that and the institution of marriage, as we say now? Nothing that I have said can prove the matter one way or the other. However, I make the obvious point that marriage is not an immutable institution. It has become elongated and greatly changed over the years, and will be changed again. Is it not possible to accommodate within that change the term “marriage” for people of the same sex?
I make one last point with regard to union. The noble Lord, Lord Hylton, said that there was a union of Scotland, England and Wales. It was never a union in relation to Wales, as I am the noble Lord, Lord Elis-Thomas, will agree. The preface to the Act of Union says the country, dominion and principality of Wales is now and always has been annexed, incorporated and included. It was a rape—certainly not a union.
Lord Lester of Herne Hill
My Lords, I was not at the Second Reading debate but I have read the 90 speeches since then. I am glad I was not there because I would have added even more to the length of the debates. I declare an interest: I am neither a believing Christian nor a believing Jew, and that no doubt colours the way in which I approach these matters. Many of those who have spoken already come from a strong religious tradition, which I fully respect, and which drives many of their views. As the noble and learned Lord, Lord Brown, has said, the main purpose of the Bill is to enable same-sex couples to marry, either in a civil ceremony or, provided that the religious organisation concerned is in agreement, on religious premises with the marriage being solemnised through a religious ceremony.
I promise to speak only once in relation to Amendments 7, 8, 9, 34 and 46. All are based on the idea that there is something called “traditional marriage”, defined as the union of one man and one woman for life to the exclusion of all others. What they mean by “traditional marriage”—as the noble Lord, Lord Elystan-Morgan, indicated in referring to the Book of Common Prayer—is a form of marriage that is biblically ordained in the Judeo-Christian tradition, which is a theistic tradition, although it does not represent the thinking of many Christians or Jews or many of those of no religious belief who are not affronted by the notion of same-sex marriage. Under the Bill, Christian churches, Orthodox Jews, Sikhs and Muslims are well protected from the risk of liability. However, that does not satisfy the movers of these amendments, who seek to write into the statute book a lesser status for same-sex marriage than for opposite-sex marriage by calling it “civil union” or some other term.
Lord Gordon of Strathblane
Will the noble Lord, on reconsideration, delete “lower status” and just say “different status”?
Lord Lester of Herne Hill
No, I will not, because I think all noble Lords in this Chamber regard marriage as the crowning of our relationships. As a man who has been married for 41 years, I certainly do, as do many gay people who are religious, or not religious but who regard marriage as the highest status they can aspire to. Therefore if you call it something less, such as civil partnership or civil union, it has a lesser status—not just a different status but a lesser one.
Baroness Butler-Sloss
Will the noble Lord at some stage address the amendment of the noble and learned Lord, Lord Mackay of Clashfern? It is difficult to believe that his proposal for “marriage (same-sex couples)” could import a lower standard, because it includes the word “marriage”.
Lord Lester of Herne Hill
I may not be able to do that because I still have to deal with these amendments, so I will reflect on that.
Lord Lester of Herne Hill
I will do my best. As the noble Lord, Lord Elystan-Morgan, has said, concepts of marriage have not been static in England or elsewhere. During the past three centuries, Parliament has made changes to the status of marriage. What was once traditional and discriminatory is no longer enshrined in English marriage law. The Bill is a further step in removing unjustifiable discrimination, not against Catholics, Protestant dissenters or Jews, but against homosexuals.
I think my noble friend Lady Williams will concede that gay and lesbian couples are just as able as heterosexual couples to love each other in long, enduring relationships. They are just as able to bring up children in the way good parents do, in lifelong relationships. Some noble Lords will have personal experience of their children in gay and lesbian relationships doing precisely that.
Traditionally, the law governing the registration of marriages was piecemeal, restrictive and discriminatory, beginning with the Act of Uniformity 1662 and Lord Hardwicke’s Marriage Act 1753, which abolished common-law marriages. In the 19th century, Parliament created exceptions, one by one, to that discrimination. Most recently, exceptions were made under the Places of Worship Registration Act 1855, not only for Protestant and Jewish dissenters but for other denominations and bodies, theistic and non-theistic, including Buddhists, Jains and Muslims, whose premises are registered for religious worship and the solemnisation of marriages.
Under Scots law, as the noble and learned Lord, Lord Mackay, knows well, marriages by cohabitation and repute could be contracted in Scotland until as recently as 2006. They were still regarded as marriages, even though they were irregular. A traditional marriage could also include a marriage between first cousins, an arranged marriage or a strange thing called a levirate marriage.
Until the Civil Partnership Act 2004, loving gay and lesbian couples could not get legal recognition for their enduring relationship. Now, they may do so. The Act has worked very well, even though it was strongly opposed at the time. However, even though the Civil Partnership Act gives them equivalent rights and duties to those of married couples, it forbids them from marrying and the words “civil union” add nothing to the notion of civil partnership. That is why it is a lesser concept.
A year before the Civil Partnership Act became law, there was an important case—which many of your Lordships will have heard of—Goodridge v Department of Public Health, in which the chief justice of the Supreme Judicial Court of Massachusetts, Margaret Marshall, presided. That court upheld the right to gay and lesbian marriage, rejecting the argument that some of your Lordships have made today and elsewhere, that civil union or civil partnership was good enough. The chief justice explained why, on grounds of due process and equal protection, the state did not have a rational basis for denying same-sex couples marriage. A majority of that court agreed that same-sex couples must not be assigned second-class status, which is what I suggest would be accomplished if any of these amendments were accepted.
The other place has formed a similar view about the need for same-sex couples to marry, as have the Government. I know of no judgment of our courts or of the European Court of Justice that suggests the need for amendments of this character. They would suffer from the serious vice of encouraging a belief in a need for a second-class status for same-sex couples to be enshrined in English law. If the House divides now or hereafter, I will have to vote against any of them.
Lord Phillips of Sudbury
Perhaps my noble friend might refer back to what the noble and learned Baroness, Lady Butler-Sloss, asked him, which was whether he objects to Amendment 46, in the name of the noble Lord, Lord Armstrong of Ilminster, which would give the term “matrimony” to a marriage between a man and a woman but would allow marriage to same-sex couples.
Lord Lester of Herne Hill
I have already explained my position, which is the same as the judgment I just referred to: that when it comes to marriage, gay and lesbian couples are entitled to total equality to that of opposite-sex couples.
Lord Black of Brentwood
My Lords, I strongly support what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said. He crystallised exactly what the debate about this group of amendments is about. The rationale behind this Bill, the philosophy that underpins it, is the concept of equality of marriage. Without wishing to go over the same old ground that to a large degree we went over at Second Reading, the point is that gay people simply want the right to share in the same institutions, not the same institutions that are qualified in some way or another. With due respect to those who say that there is not much in it, there is a great deal in a name and it is much more than a matter of nomenclature, which I think is the phrase the noble Lord, Lord Phillips of Sudbury, referred to.
Words such as “union” and “espousal” will themselves turn rapidly into divisive terms. If I fill out one of those forms at a bank or somewhere else and they say: “Are you married?”, and I have to say: “No, I am espoused”, I shall feel in exactly the same state I was in under the existing law of civil partnerships. Therefore we do not want simply to replace one second-division label with another. I think that the noble Lord, Lord Phillips, was the first to raise the issue of esteem. I have to tell noble Lords that the issue of esteem and the use of the word “marriage”, unqualified by anything else, are inextricably linked.
I spoke in the debate two weeks ago. Other noble Lords talked about the postbags that they had had since then. I have had a very substantial postbag—more so than when I have talked here on other matters—from people who looked at the House and thought very well of our proceedings. A number of people wrote to say that we gave them the courage to come out. That is a remarkable thing. However, this amendment flies in the face of all that. It is a wolf of an amendment in sheep’s clothing. It strikes at the heart of the Bill and would go against the entire philosophy on which it is rightly based, which is full, unqualified equality for gay people.
Baroness Richardson of Calow
My Lords, it is my understanding that what same-sex couples are asking for is not permission from the state to enter into loving, committed, lifelong relationships but the recognition by the state that the relationships they have entered into, or will enter into, are equally valid in bringing stability to society and in being a right and proper place for the upbringing of the children they take into their families. Therefore, anything other than marriage, which we have all said is the bedrock of our society and should be the basis for the ongoing upbringing of children, will not do.
Lord Dobbs
My Lords, I feel deeply unhappy to be divided on this matter from so many of my traditional friends on these Benches, but divided I am. Many of these amendments seem to rely on an understanding of the word “marriage”. In many of them we get down to defining the term. A “traditional marriage” is said to be,
“the voluntary union of one man and one woman for life, to the exclusion of all others”.
That is stated in several of the amendments that we are discussing. We need to look at definition to see what it means.
I will start with,
“to the exclusion of all others”.
Surely the bar is set too high for most mortals, including even the clergy and—dare I say it?—royal princes. The failure to keep to such a high trajectory does not destroy the meaning of marriage, and should not destroy the purpose of the Bill.
We are told that traditional marriage should be for life. Again, sadly, this is not so. We do our best. We promise and intend to be married for ever, but divorce is no longer a matter of public shame, although I hope it is a matter of much private regret.
Therefore, all that seems to be left of the definition is that marriage should be between a man and a woman. Traditionally that has been indisputably true. How could it have been otherwise? Until very recently, homosexuality was punished by the full force of the law: incarceration, a criminal record, chemical castration in many cases, and almost total social exclusion. Of course marriage traditionally was between a man and a woman.
However, the definition does not hold water. There is no satisfactory definition in the amendments of traditional marriage. Going back in time, we find that marriage was about inheritance, power, social standing and securing property rights. Those with no power or little social standing did it to make it easier to have sex—let us be honest. It is only in our lifetimes that marriage has been broadly based on love and any sense of equality between a man and a woman. Even today, there are still many exceptions to that rule.
Marriage has always changed its foundations. It evolves and will continue to do so. I have considerable sympathy for many of the values that lie behind the amendments. For instance, we have all suffered for too long from the intolerance exemplified in political correctness. However, with the greatest respect to many of my colleagues, we cannot base a piece of legislation on a concept of traditional marriage that has no enforceable meaning.
Lord Mawhinney
My Lords, Amendment 34 is down in my name and that of my noble friend Lord Edmiston. I should like to convey his apologies for not being here today and although the words will be mine, the spirit will be ours.
When I spoke at Second Reading I think I was fairly clear. No one was confused. I was not in favour of this Bill. I had the pleasure of speaking immediately after my noble friend Lord Dobbs, and I am happy to do so again. I will come back in a few moments to something he said. I was not in favour of it because, as I pointed out, I had grown up in a home and environment where both Christian and Conservative principles and values had dominated. That was my view and I voted against the Bill receiving a Second Reading. However, I have been in this place long enough to know that when both Houses have spoken with such overwhelming majorities, we have got to address that issue. We then have the right to turn to how we can, if possible, make the legislation better.
I would like to say to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that I think he did some of us a slight injustice. We are not trying to rerun Second Reading and the concepts behind it by tabling these sorts of amendments. There is a difference between traditional marriage—as it has been referred to—and same-sex marriage, which the Government recognise in Schedule 4, Part 2 and Part 3 of the Bill. The word “marriage” is used to cover both. The noble and learned Lord, Lord Brown, may be interested to know that I did not attach my name to the amendment of the noble Lord, Lord Hylton, and my noble friend Lord Cormack precisely because I thought that, having been as outspoken as I was at Second Reading, I would be accused of trying to undermine the principle of the Bill in some other devious way. That is why I did not attach my name to that amendment although I support it.
My amendment and that of my noble friend Lord Edmiston addresses a separate point. We have spent more than an hour talking about the substance of marriage, and in some cases rehearsing Second Reading, but in reality—in biological reality if nothing else—there are differences between a marriage of a man and a woman and a marriage of two men or two women. I am staying well clear of the symbolism and the aspirations. I am simply stating a fact. My noble friend Lord Dobbs said that we must address the political correctness which has concerned and dominated us for too long. I want to agree with him but in a different context. When this House and the other place have passed legislation around religious hate crimes, racial hate crimes and the like, once the well-meaning, carefully written legislation was subjected to general use, those whose sense of political correctness exceeded that of most of us in this Chamber got to work. People, employees and workers, particularly in the public sector, were accused of all sorts of things in the name of that legislation and in many cases it took them months and a fortune to prove that what they were accused of was not in accordance with the law of the land. Their reputations never totally recovered. I foresee that possibility arising out of this legislation.
Your Lordships will notice that I have not addressed the substance of marriage and I have not tried to define it. I say to my noble friend the Minister that I would like the Bill to state that for the general public who are not involved in all this deep theological and, if I may say so, legal analysis, it is all right to say—
Lord Mawhinney
I commend the noble Baroness for her enthusiasm. I will give way in just a moment. I would like the ordinary men and women of this country to be able to say, “It is legally all right; I am not involved in hatred of any sort if I talk about a traditional marriage between a man and a woman or if I talk about a same-sex marriage between two men or two women”. The Bill needs to reassure people that they can state what is factually the case and not have their jobs or reputations put at risk because somebody interprets this legislation in the way that race and religious hatred legislation has been interpreted thus far.
Lord Elton
My Lords, my noble friend will have heard the exception taken by a number of our noble friends and others to the term “traditional marriage”. The term “same-sex marriage” immediately identifies what the difference is. However, there are two well known terms in the history of the Church of England which do not carry any such connotations, each of which I think might appeal especially to the predilections of the two confronted parties—that is, “ancient” and “modern”. I do not know whether he would consider changing his proposed two terms at a later stage; I just put that in his mind.
Lord Mawhinney
I think not, because “ancient” and “modern” carry with them designations which are likely to complicate an already pretty complicated set of circumstances. I am just a simple Belfast boy and “traditional” and “same sex” seem to me to be a fair reflection. However, in the same spirit as that shown by the noble Lord, Lord Hylton, and my noble friend Lord Cormack, if somebody can find a better way to put in the Bill simple phrases that ordinary people can use to protect themselves against being charged with some sort of hatred, I would be very happy to consider that.
Lord Lester of Herne Hill
Is the noble Lord aware that the Government have tabled an amendment to deal with his precise point about free speech to make it clear that criticising same-sex marriage or otherwise will not in any way constitute a criminal offence? That is clearly spelt out in a later amendment.
Lord Mawhinney
My Lords, I am grateful to the noble Lord for his intervention. He knows, perhaps better than most in the House, that I have a fairly strong commitment to freedom of expression. That commitment to freedom of expression and the Government’s commitment to freedom of expression have been there for years. However, that has not stopped people being accused of hate crimes, race crimes and religious crimes. I do not believe that simply using the term “freedom of expression”, or repeating it, will be any more effective than it has been over the past 30 years. Something simple needs to be put in the Bill that everybody can understand and behind which everybody, whatever their view of the issue, can take refuge, if necessary.
Baroness Turner of Camden
I thank the noble Lord. I wanted to make a very brief intervention to bring your Lordships back to the discussion of Amendment 1 in the name of the noble Lord, Lord Hylton. It seems to me that that amendment cuts at the very heart of the Bill, for which we have already voted. Clause 1(1) states:
“Marriage of same sex couples is lawful”.
In other words, we are talking about the basis of the Bill that we have discussed and was voted for by a very large majority in both Houses. The amendment seeks to replace “marriage” with “union”, which then makes something quite different from what the Bill is all about. In my view, it is not an amendment at all, because a union of same-sex couples, as I understand it, is lawful anyway.
What we are talking about here is legislation for same-sex marriage, and amending that sentence in Clause 1(1) as proposed cuts at the very root of the legislation. That cannot be acceptable. If it were pressed, I certainly would not vote for “marriage” to be replaced by some other word. In fact, I cannot think of a word that would be at all suitable, because marriage is what we are talking about—marriage between same-sex couples, which we have already agreed in principle with a very large vote at Second Reading. I certainly do not want to repeat a Second Reading speech, although one could say quite a lot about traditional marriage because that also has been referred to in the debate. As far as I am concerned, the wording that was before us as concerns traditional marriage is very much based on a religious outlook, which I respect but do not share; and certainly it has a provision for a kind of opposition to divorce, which I do not share. Of course, I imagine that very many people in this House at some time have been in a divorce court and therefore would not qualify under the traditional marriage position outlined in some of the amendments before this House.
The main point that I want to make is that I do not see how Amendment 1, in the name of the noble Lord, Lord Hylton, can possibly be accepted because it cuts at the very root of this Bill, for which we have already voted. We have had our Second Reading debate and have already voted in this House and in the other House with a very large majority, so I do not see how that can possibly be an acceptable amendment.
Baroness Shackleton of Belgravia
My Lords, I would like to explain why I am against this group of amendments and why I support this Bill. I first declare an interest as a practising solicitor specialising in family matters, as a trustee of the Marriage Foundation—although I speak in a personal capacity and not on behalf of it—and as a person who has had only a civil marriage ceremony. A cynic may think that I am in favour of this Bill because it opens up another avenue of possible work for me, but the reason that I support it is precisely because I believe the reverse to be true.
Civil partnerships became legal in 2005. Seven years later, I am now dealing with a wave of cases for their dissolution, although I stress that they are no more prone to dissolution than marriages. I ask myself: would these partnerships have stood a greater chance of success had the parties been able to be married? If this could happen, I believe that there would certainly be no adverse consequences, and there may possibly be some positive ones.
The civil partnerships to which I refer often involve children of the union. It is, of course, the children who are the innocent victims of the breakdown of a partnership, however that partnership is described. It is my belief that every possible measure should be taken by this country to support commitment to stable relationships. Their breakdown and the fall-out for all concerned, financial and emotional, must be addressed because that is the real threat to the very fabric of our society.
Lord Goodhart
My Lords, I strongly support the speech of the noble Baroness, Lady Shackleton, and will be very brief.
I remember going to a wedding of a couple of men shortly after the Civil Partnership Act came into effect in 2005. It was regarded by most of us at the party following that event, including by myself, as a form of marriage, and was referred to as such on that occasion. I cannot remember any words such as “partnership” or “union” for that relationship when it was discussed. The natural description of the joining of a couple, whether of the same sex or different sexes, is surely “marriage”. That is the appropriate word in the Bill.
I conclude by mentioning the word “matrimony”, which has been referred to already and appears in the Bill. It is a word that means “mothership” and adopts the Latin word “mater”. The use to which “matrimony” has been put in the Bill cannot apply.
Lord Higgins
My Lords, two themes have run through the debate. On one there is almost universal agreement that we must seek to achieve equality. We also have to recognise that there are differences between the two forms of marriage. Having said that—and I am sorry that I do not carry the noble Lord, Lord Alli, with me—it seems to me that we need effectively to recognise both the need for equality and the point that I have just made. I led from the Front Bench on the Civil Partnership Bill, which was a great step forward. None the less, it is perhaps unfortunate that its terminology did not recognise the aspect of equality, and it has certainly not been recognised by the country as a whole. What we need, therefore, is some recognition that there are two forms of marriage. If we do that, marriage will appear on both sides of the equation, representing equality. As suggested in Amendment 34, we need to have traditional marriage on the one hand, and same-sex marriage on the other. If we do that, we can achieve both of the objectives we seek, and reconcile the differences which have otherwise been apparent in the debate. One hopes that both the gay community and the community as a whole will recognise the status of these two forms of marriage as equal. I see no reason why this can not be done.
Baroness Noakes
My Lords, normally I agree with everything my noble friend Lord Higgins says. I am in profound disagreement with him today. He has emphasised that he believes that marriages between same-sex couples and heterosexual couples are different. There are all kinds of marriages that are different: marriages between divorced people; marriages with and without children; death-bed marriages. However, we do not find different terms for those. Noble Lords need to ask themselves serious questions about why they wish to continue to emphasise sexual orientation in the names that they give certain statuses. By perpetuating giving a different name to marriage in the context of gay and lesbian people, we are wishing to continue to regard them as different from us. Inclusion is what this Bill is about, and what we should be about in society generally, because that is what will make us a stronger society.
Lord Singh of Wimbledon
My Lords, the legislation itself refers to two different types of marriage. It is there in how it is written. I am concerned that the attempt to find some common ground between deep divisions is being interpreted as some sort of wrecking amendment. The idea of union is fine; it says everything. I cannot see any difference. The English language is very rich in giving precision to meaning, but sometimes it is not precise enough. We do not want to make it less precise. For example, the Indian languages Hindi and Punjabi have different words for “uncle” and “aunt” depending on which side of the couple they come from, the mother’s or the father’s. These words give precision so that you know what you are talking about. Here, if you use the words “union” and “marriage”, that is fine; we know what we are talking about. There is nothing to suggest that one is less equal than the other, which would be totally wrong.
Lord Carlile of Berriew
My Lords, without wishing to prolong this debate, perhaps I may try to say a brief word on behalf of children. Many gay relationships—civil partnerships—have children within them. If anybody believes that within a gay relationship it is simple to create a family, they should think again and talk to some of those families. For both gay women and, perhaps more particularly, for gay men, having children by adoption is a most formidable task and one that is scrutinised with great care. What we are talking about here is not just the equality of the married couple or the partners to that relationship, but of their children as well. I would urge upon your Lordships that we should enable those parents to say to their children, “We are married”, and above all we should enable those children, when they are asked about the relationship of their parents, to say, “My parents are married”, not “My parents are espoused” or “My parents are unionised”—
Lord Carlile of Berriew
I thought that might draw a guffaw from the Labour side of the House; they know the dangers of it. Instead of that or any other constructed euphemism, those children should be able to say, “My parents are married”, just as other children can.
Lord Mackay of Clashfern
My Lords, I have tabled Amendment 2 in this group. I was led to put this amendment down in an attempt to analyse what the differences are on this Bill. They are quite deep in this House, in the other place and in the country. I thought that something could possibly be done to try to bridge the divide.
The claim made by the proposers of the Bill is that whatever happens, the word “marriage” should be at the forefront of its title. Anything less takes away to some extent from that, although very worthy words have been proposed. When one looks at the debate here and in the other place, and reads the letters we have had—I thank the people who have sent many letters to me; I cannot possibly answer them all in view of my commitment to this—one can see that there is a feeling among many people in this country that same-sex marriage on the one hand and opposite-sex marriage on the other are different, and in a number of ways. They may have much in common and yet have distinctions.
I believe that the attempt to deal with this sort of thing in the descriptions given in the myth-busters document that was published along with the Bill did not really look at the main objection that people have, which is the fact that, over many centuries, marriage has signified a relationship between the opposite sexes. That is the fundamental point which a lot of people have grasped and held on to, in a way that is difficult for them to accommodate in any other context. When the myth busters got going, they used a technique which I remember being described by the great advocate Sir Milner Holland to the effect that if you cannot answer a point, the best thing to do is to set up a cockshy as close to the point as possible, knock it down with a great flurry and then pass on. That, in effect, is what has happened. The myth buster talks about the myth of having no development in marriage over the years. Anyone who has listened to this debate or read the volume to which the noble Lord, Lord Pannick, referred at Second Reading will know that there have been many developments in marriage over the years. The idea that there have been none is not the foundation of the argument at all; rather, it is that the fundamental distinction is between a marriage where the relationship is between people of opposite sexes and what is proposed in this Bill.
What I think might be of use in dealing with that is to recognise within the nomenclature of the Bill that there are two distinct provisions, one relating to same-sex marriage and the other to opposite-sex marriage. I did not put down the opposite-sex marriage amendment today because I saw that these other amendments about traditional marriage and so on had been tabled. There is reference to opposite-sex marriage in Clause 11, alongside same-sex marriage. Ultimately, it does not make any difference to the provisions. However, it does signify that the distinction between the two is understood by the legislature and that the title “marriage” is given to what the proponents of the Bill want, at the same time as recognising that those distinctions exist.
The Archbishop of York
My Lords, I apologise for not being here in your Lordships’ House at Second Reading. I thank noble Lords for their greetings on that occasion, when I was recovering from surgery. I am on the mend, although I am not quite there yet. I want to thank especially the noble Baroness, Lady Royall of Blaisdon, for the generous compliments in her speech.
I suggest that this legislation is an exercise in ideological redefinition. The amendments before us today are designed to limit this ideological damage. I will speak to the one amendment that probably does it better than the others. The legislation does not address the concrete disadvantages from which same-sex couples still suffer. It is a matter of deep personal regret and sorrow to me that homosexual people are still diminished, which is anathema to me and to the Primates of the Anglican Communion. In the 2005 Dromantine communiqué, we said that the diminishing of homosexual people is anathema to the Christian faith. However, it still happens, which is a deep regret for me. I want to tell them that I am sorry.
The great difference between this legislation and the reform that introduced civil partnerships is that the latter remedied certain concrete difficulties and disadvantages. What injustice would be remedied by some civil partnerships becoming marriages? That argument of remedying injustices does not seem to carry much weight; the argument lies somewhere else. Ministers of the Crown have argued that the legislation extends to an excluded minority a concrete privilege currently enjoyed by the majority. What is that privilege? The privileges that accompany marriage have already been extended to same-sex couples through civil partnership legislation. However, since marriage has been defined in law and practice as a relationship between a man and woman, marriage, as so defined, cannot in law be extended to same-sex couples.
The draft legislation presupposes an account of marriage that makes the gender of the partners incidental to the institution. This, to me, is a novelty. It does not correspond to marriage as it has been known in British law and society. This is not an extension of something that already exists but the creation of a new institution, under the aegis of existing marriage law, which is in fact quite different from it. We are somewhat ill prepared midwives at the birth of a new social institution. Why not give it a new name?
The interests served by the legislation before us are, I suggest, ideological and aimed at changing the way people think: hence the amendments before us today are rightly geared towards protecting individual freedoms in the face of a radically new ideology. The church shares, in the best traditions of this House, a passion for justice and a deep concern for the particular needs of minorities. These concerns have been met in the provisions of the civil partnership legislation. However, today, the question turns on two other interests of the church: first, an interest in the truthful description of anything; and, secondly, an interest in defending responsible practices of government against the sophistic abuse of language.
It matters that we recognise this as a new social institution. As a Christian, I would argue that being a man or a woman is not incidental to the human relations a person may engage in, but formative of them. In Christian understanding, the meaning of human sexual difference is in the good gift of God in creation. The maleness and femaleness of the human race are given to us. It is where we are placed, in common with the whole human race in every generation. Our role is to be thankful for it and to understand how it helps us to live the human lives that we are given. This task of appreciating our sexual difference weighs equally on married and unmarried, on gay and straight, and on children and adults—on all who have the gift of being human. Christians, in common with Jews and Muslims, understand marriage as essentially representative of this good gift of sexual difference. This understanding flows from an undivided and unbroken tradition that has sought to define the unity of the human race, uniting nations, religions, cultural traditions and periods of history.
In describing marriage as bound up constitutively and generatively with male-female relations, we describe a good form of life for which we can be unreservedly thankful. As with any aspect of creation, our interpretation of marriage is not final. Reality is deeper than its interpretation; there is always more to be learnt. Our thinking may be shaped by artists, working in whatever form, who represent to us some fragment of reality to be recognised. It will be shaped also by scientists, who model complex interactions and observations in formulae that render them intelligible. It may also be shaped by theologians, teaching us to thematise that which artists and scientists have shown within the larger picture of the goodness of God.
The unamended legislation uses the term “marriage” to describe a new entity. For me this entity is worthy in itself, but it is not equivalent to marriage as hitherto described. I have argued that this is not an area for state intervention. The work of government does not lie in teaching us how to interpret and think about reality. Yet we are here. The trouble with this undifferentiated use of the term “marriage” is that it will create confusion on the one hand, and erode freedom of conscience on the other. The amendment of the noble and learned Lord, Lord Mackay, seeks to remedy this. It calls both same-sex marriage and opposite-sex marriage “marriage”.
In contrast, the legislation to create civil partnerships was, for me, a proper exercise in formal terms of the authority of government. That legislation was precise in its use of language. It recognised the intrinsic difference between the loving, life-long commitment of same-sex couples and the loving, life-long commitment of male and female couples in marriage. I respectfully submit that those who sought to extend the scope of civil partnerships beyond same-sex couples would have made the legislation lack legal clarity. Its intention would have been blurred, if not thwarted. Those who resisted the extension of civil partnerships beyond same-sex couples were right, because it would have blurred the entire conversation and the entire discussion.
Without some clearer classification, as suggested in the amendment of the noble and learned Lord, Lord Mackay, we introduce a degree of ambiguity that is not common in law. This cannot help anyone, because Clause 11 still refers to “opposite sex”. We must be very careful about how we arrive at an answer. Responsible government is government under law. A responsible Government must prevent, as far as they can, the judgment that the law is an ass. I believe that fracturing the law of marriage into two alternative concepts of marriage inevitably inflicts damage of very serious proportions on English law, weakening the authority of the law as a whole. This damage can be lessened by the very honest amendment of the noble and learned Lord, Lord Mackay. This amendment seeks clarity and makes an important distinction. If it is accepted, as I sincerely hope it will be, it will go some way towards preserving the integrity of the law. I support the amendment, and I hope the House will have the same view.
Baroness Howarth of Breckland
If that was the definition, would the Church of England be prepared to marry couples in church? The great difficulty with civil partnership marriages for Christians—those who love the Lord deeply—is that there is no religious content. From the speeches just made, would the Church of England change its position if the amendment of the noble and learned Lord, Lord Mackay, was agreed?
The Archbishop of York
I wish I was speaking on behalf of the Church of England. I am not. I am part of it. The noble Baroness knows as well as I do that decisions about liturgy and constitutions are not the privilege of bishops but of the General Synod of the Church of England. This matter will need to be discussed. Incidentally, I am one of those who has gone on record as saying that had civil partnerships been given enough space, the church would not have escaped the possibility of a conversation. What do you do with people in same-sex relationships who are committed, loving and Christian? Would you rather bless a ship and a tree, and not them? However, that is a big question, to which we are going to come. I am afraid that now is not the moment. We are dealing with the legislation as we have it. I am trying to make it slightly easier to work out what that difference is. Give me time, and one day I may come back and speak on this.
Lord Grenfell
My Lords, I will be extremely brief. I am not sure whether I prefer the amendment set down by the noble Lords, Lord Hylton and Lord Cormack, or the one set down by the noble and learned Lord, Lord Mackay, but I believe that either of them would help bridge the divide. Therefore, I am generally in favour of both of them and would be happy with either.
The only point I want to make is to refer back to something that the noble Lord, Lord Carlile, said about children. I think that he rather oversimplified the matter. If a same-sex couple says to its children, “Yes, we are married”, and those children have had what I would call the benefit of religious education and say, “But we have been told that marriage is between a man and a woman”, this seems divisive and it would be very difficult to square the circle with them on that.
Baroness Butler-Sloss
My Lords, I, too, am a trustee of the Marriage Foundation, which I should say is totally neutral on this subject. In any case, I am speaking personally.
To pick up a point made by the noble Baroness, Lady Williams, about children, when I was a family judge I tried cases where I placed children with gay couples, male or female. I had the utmost confidence that those children would be extremely well brought up. Nothing that we are discussing today, or indeed in this Bill, leads me to believe that whatever a same-sex couple’s relationship is called would have anything to do with the excellent way in which very many children are brought up by lesbian and homosexual couples. That is my own personal experience, sitting as a judge.
I did not speak at Second Reading; I thought that 90 speakers were enough. Like others, I have received more than 100 letters which my secretary has so far replied to, and many more e-mails. It might interest the House to know that 98% were opposed to this Bill, but the 2% in favour were also extremely persuasive. Listening to the earlier speakers, it seems clear to me that the word “union” will not be treated by those seeking marriage as the equivalent of “marriage”, for the reasons that have already been given. Since it is clear that this Bill is going through, it is time for us to try to find the best way forward.
Those who support the Bill are—to use the colloquialism—hooked on the word “marriage”. That we have to accept, but the Government need to recognise the strength of feeling of those who are opposed to the use of the word “marriage” simpliciter as recognising the marriage of couples of the same sex. We must find a middle way. I strongly support the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern, because this House urgently needs to seek reconciliation and find a compromise, as the noble Lord, Lord Phillips of Sudbury, said earlier. Somehow we have to allow the word “marriage” and somehow we have to distinguish between different sorts of marriage.
As the noble and learned Lord, Lord Mackay of Clashfern, has pointed out—and I aim to say in later amendments to this Bill—this is a question of equality but it is not a question of uniformity. You cannot have uniformity in this Bill together with what you get in the marriage of opposite-sex couples. One only has to look at Part 4 of the Bill, as the noble and learned Lord, Lord Mackay of Clashfern, has done, to see that there are differences. There is nothing wrong with differences in equality. As the most reverend Primate the Archbishop of Canterbury said at Second Reading, there is a danger of equating equality and uniformity in this Bill.
I cannot see how Amendment 2 can be objectionable to people. The “marriage” word is used and those who are in any marriage are equal, but the amendment recognises that there are differences. You cannot say that marriage for same-sex couples has in any way a lower status than marriage for heterosexual couples has. For goodness’ sake, at the end of the day we are legislators, if I might respectfully remind the House, legislating for what people on the ground will actually be doing. As the noble Baroness, Lady Shackleton, pointed out, there are all sorts of marriages: those who wish to marry; those who are already married—I have to confess that I have been married for very nearly 55 years, and to the same man; and marriages for the second or third time. We have to recognise this, but we also have to recognise that there is a difference, and although the noble Baroness, Lady Noakes, talked about different sorts of marriage, the different sorts of marriage that she mentioned were actually between male and female, because in those days they could be nothing else; they were all male-female.
This amendment would be a compromise in an otherwise deeply divisive Bill. I have to say to those who have been talking about the children, particularly the noble Lord, Lord Carlile, that perhaps most important of all—
Baroness Thornton
I should like to ask the noble and learned Baroness a question. I have wanted to ask this of other members of your Lordships’ House who were speaking about the matter of calling a same-sex marriage a same-sex marriage rather than distinguishing it from what people are calling a traditional marriage. What is the noble and learned Baroness’s view about the fact that anyone who has a same-sex marriage would have to identify their sexuality by definition? Why should they have to do that?
Baroness Butler-Sloss
You have to recognise the truth of it. The most reverend Primate pointed out the importance of truth. It is different. We have to look at some stage, as the noble and learned Lord, Lord Mackay, pointed out, at how we deal with the children of a couple who cannot have their own children as a couple.
Baroness Thornton
I beg the noble and learned Baroness’s pardon, but in other parts of our legislation—in our equalities law—we protect people from having to declare their sexuality, because we think that that is the right thing to do. It is not a question of the truth or not the truth.
Baroness Butler-Sloss
The declaration of sexuality would be relevant only at the moment of marriage. It would not be relevant to everybody else who meets them or knows it. They will be married. Perhaps the most important point made by the noble Lord, Lord Carlile, was about children. If we have marriage and same-sex marriage, so far as the children are concerned, it is marriage. They will say, “My parents are married”. It seems to me that the noble and learned Lord, Lord Mackay of Clashfern—
Lord Lester of Herne Hill
I apologise to the noble and learned Baroness, but I never answered her question when I was on my feet. She asked what I thought of Amendment 2. What I do not understand, either in Amendment 2 or in the speeches in support of it, is why it is necessary. The Bill begins by saying in Clause 1(1):
“Marriage of same sex couples is lawful”.
Subsection (2) refers to:
“The marriage of a same sex couple”.
We do not need to have sarcastic remarks about Lewis Carroll and Humpty Dumpty. The words could not be clearer. I do not understand why one needs to add anything. The Bill is about the marriage of same-sex couples and nothing else.
Baroness Butler-Sloss
I am grateful to the noble Lord for being prepared to answer the question that I asked him some considerable time ago. The House needs to recognise the deep division that exists both in this House and in the country. From the quantity of e-mails and letters that I have received, I know that there are a number of people out there who are bitterly upset, bitterly distressed and angry at what has happened with this Bill. I support the noble and learned Lord, Lord Mackay of Clashfern, because the amendment is a compromise—it is an attempt at reconciliation. I do not support the word “union” for the very sensible reasons that have been given. I think that there has to be the word “marriage”—I am, with regret, converted to that now—but I believe that we have to seek a middle way. If we do not, there will be many people out there listening who will be even more upset than people in this House.
Lord Mackay of Clashfern
I should like to answer the question that was not put while I was speaking. The provisions in the Bill for same-sex and opposite-sex couples are different, and therefore it is only right that a distinction should be recognised in the Bill for that purpose. That would not make one any less lawful than the other or anything of that sort, but it would distinguish between the provisions that apply to same-sex couples and those that apply to opposite-sex couples. Nobody can deny that these provisions are different in the Bill.
So far as the noble Baroness, Lady Thornton, is concerned, there is no necessity to declare one’s sexuality in relation to same-sex marriage. As I pointed out at Second Reading—and I am sure that the noble Baroness listened carefully—there is no question of needing to be gay to engage in a same-sex marriage. Platonic relationships between people of the same sex would perfectly suit the Bill as it stands.
Viscount Astor
My Lords, it seems to me that we are trying to find a form of words that does not increase the level of discrimination. The amendment in the name of my noble and learned friend Lord Mackay offers that and I shall be most interested to hear what my noble friend on the Front Bench has to say about it. It seems to me that it could provide a way forward without producing further discrimination. I believe that if we added the words “traditional marriage” to the Bill, we would be going down entirely the wrong route. What is the definition of “traditional marriage”? How do we describe it? Is it when the bride wears white? Is it a traditional marriage when the bride goes up the aisle with two children whom she has already had out of wedlock? We would be going down a road that, as legislators, we should not follow, and I believe that it would be a grave mistake. We should find a form of words that both sides can live with.
Lord Dear
My Lords, Amendment 9 in this group is in my name and I should like to speak to it now. I have a great deal of sympathy with what the noble and learned Baroness, Lady Butler-Sloss, said. She really focused, as did the most reverend Primate the Archbishop of York, on the blurring of the wording before us in the Bill.
There has been some comment about the difference between equality and sameness, and we touched on that at Second Reading. What we have heard today has, very largely, been two alternative points of view. One is that out of civil partnership might have arisen something which itself would grow into the dignification of something similar to marriage, and the other is a fusion—which is what the Bill is really talking about—of two completely different strands into the one nomenclature of marriage. It is that point that I wanted to mention in introducing Amendment 9 and to offer a way forward—a compromise to where we are now.
The Government say that the Bill is about ensuring equality, fairness and respect for same-sex couples who wish to have their relationship recognised in marriage, and I agree with that. I hope the Government will also accept that there also needs to be equality, fairness and respect for those who hold a different opinion. Much has been said about protecting churches and individual clergy from being forced to officiate at same-sex marriages. I believe I am right in saying that there is nearly universal agreement in your Lordships’ House on the important principle of protecting religious liberty in that regard.
Lord Alli
My Lords, I rise to speak against Amendment 1. I will also touch on Amendments 2, 9, 33, 34, 46 and 57.
The clear purpose of the Bill is to allow same-sex couples to marry. These amendments seek, in one way or another, to create two classes of marriage, which is exactly what the Bill is avoiding. This occurs in the amendment of the noble Lords, Lord Hylton and Lord Cormack, which replaces “marriage” with “union”; and in the amendment of the noble and learned Lord, Lord Mackay of Clashfern, by adding “marriage (same sex couples)”. Let me say to the noble and learned Lord that he did not do his cause justice by linking the abuse of children to a speech about same-sex marriage. Many of us found that absolutely offensive.
Lord Mackay of Clashfern
Let me make it absolutely clear that it had nothing to do with that. It is important—to me anyway—that children are considered. That is what I wanted to be considered. I do not link it to same-sex marriage at all. I never did and I do not think that anything I said could reasonably be so construed.
Lord Alli
The noble and learned Lord should not have said it then. The amendment of the noble Lord, Lord Dear, and those of the noble Lords, Lord Edmiston and Lord Mawhinney, and the noble and right reverend Lord, Lord Carey, have opted for the term “traditional marriage”. In fact the noble Lord, Lord Dear, and the noble and right reverend Lord, Lord Carey, want a separate register too.
Lord Carey of Clifton
Perhaps I may interrupt. I withdrew my name from that amendment, even though I fully support my noble friend Lord Dear in what he has said. I was a teller when we had the debate and it was clear to me that, almost by three to one, we as a House declared our unanimity with the House of Commons. Therefore this debate is not about going over old ground again, but about finding a way forward to meet the deep discord and anger in the country. Many people are very worried about this Bill. How can we go forward together and find some unanimity of language? That is why the noble and learned Lord, Lord Mackay, is suggesting that amendment.
Lord Alli
I thank the noble and right reverend Lord for that intervention. I had heard that he had withdrawn his name from the amendment. I think he described it as mischievous and dangerous and I very much agree with that, too. The noble Lord, Lord Armstrong of Ilminster, wants to use the term “matrimonial marriage” for opposite sex-marriage. All these amendments are cut from the same cloth with the same purpose: to create inequality in the use of the term marriage between same-sex couples and opposite-sex couples. I agree with the noble Lord, Lord Black of Brentwood, that these amendments are wolves in sheep’s clothing, designed to preserve marriage and the use of the term exclusively for opposite-sex couples, with the exception of the amendment of the noble Lord, Lord Dear, which seeks to introduce a new concept of traditional marriage.
Lord Cormack
I apologise for interrupting and I am grateful to the noble Lord for giving way. I appeal to him to accept that many people in this country are deeply troubled. Many wish to see a true equality and true equality is based on difference. Can the noble Lord not concede that it would be a good idea to find a formula that both would give him what he wants and would ease the minds and consciences of countless people outside this Chamber?
Lord Alli
I do not accept the noble Lord’s premise. I understand that there is concern outside this Chamber, but the vast majority of people in this country want this measure to go through. Poll after poll, the majority in the other place and, I suspect, the majority here want it. The problem with the noble Lord’s suggestion is that it is diametrically opposed to what we wish for in terms of the use of the word marriage.
I am a little confused about what the noble Lord, Lord Dear, has in mind when talking about traditional marriage. Marriage not just predates Christianity, but is found in many different cultures and traditions and, as has been said, in many different forms. As an aside, the noble Lord may be interested to know that in ancient Rome, Emperor Nero was married to a man—a fine tradition, in my view, but perhaps not what the noble Lord had in mind.
Lord Dear
First, I hope that the noble Lord will clear up the point about whether I am being mischievous. I hope that he will say in the Chamber that I am not. Secondly, subsection (2) of the new clause proposed by Amendment 9 states simply:
“A ‘traditional marriage’ is one where the basis of the marriage is the voluntary union of one man and one woman for life, to the exclusion of all others”.
Lord Alli
My Lords, I think I am right—I hope that the noble and right reverend Lord, Lord Carey, will correct me if I am wrong—that in an e-mail purporting to come from the noble and right reverend Lord, he described his own amendment as mischievous and dangerous. It was not I who used those words.
Attempts to create inequality in the Bill seem to be the sole object of these amendments. To create a separate term or register would be both divisive and unnecessary. I hope that noble Lords will think again and not press their amendments. I suspect that there is no appetite for them in the House.
Lord Elton
Perhaps I may make a point to the noble Lord. The homosexual community has long been a minority in our society and has protested, understandably loudly, at being unfairly treated. He has just pointed out that those opposed to the Bill are now a minority. Could he not extend the same generosity that he expects, and try to reach an accommodation in that direction?
Lord Alli
I will repeat what I said to the noble Lord, Lord Cormack. These two concepts are diametrically opposed. What the noble Lord wishes to happen is completely opposite to what I wish to happen. At some point, when two sets of rights are in conflict, these great Houses of Parliament have to decide which rights are pre-eminent. If there was a course of action that we could find that would satisfy and accommodate everybody, there is nobody in the House, on any side of the argument, who would not work night and day to find it. However, these concepts are opposed. Therefore, our job as a Parliament is to say which is pre-eminent, the first or the second. I suspect that the public and Members of this House—
Lord Lester of Herne Hill
Is that quite right? The amendment of the noble Lord, Lord Dear, states:
“Nothing in this Act takes away the right of a man and woman to enter a traditional marriage”.
Nothing in the Bill takes away that right. It is not a question of one right trumping another. The rights of the traditionalists are protected completely under the Bill, and the rights of gay people are also protected.
Lord Alli
Amendment 9, tabled by the noble Lord, Lord Dear, would create a separate register—so there is a difference in the noble Lord’s amendment, which would create a new category of marriage. More broadly on the noble Lord’s point, I contend that we have to consider the emotional response of the communities involved. The issue cannot be gauged simply by the words in the Act. I argue very strongly that it is not acceptable to have a differentiation in wording or name between different types of marriage. That would be exacerbated outside this Chamber the moment the legislation went through.
Lord Aberdare
My Lords, I had not intended to intervene in this debate, but I will make two brief points. First, I am very uncomfortable with the references we have heard to a new definition of marriage. As I understand it, the aim of the Bill is to enable same-sex couples to share in the existing understanding and status of marriage. My understanding of my marriage is not primarily gender-based; it is based on the fact that I love my wife and wish to stay with her for the rest of my life. That has nothing to do with gender.
Secondly, I would love to find a compromise—I am a compromising sort of person, and I very much welcome the recognition of my noble and learned friend Lady Butler-Sloss that the word “marriage” is essential in whatever we end up with—but I find it extremely hard to imagine any compromise that would not formalise the idea that there are two different forms of marriage. Therefore, I tend to agree with the noble Lord, Lord Alli, that it is either one thing or the other.
Baroness Thornton
My Lords, we have had a long and interesting debate about the definition of marriage and about this group of amendments. I accept fully that noble Lords are, with the best of intentions, trying to find a way through. However, we on these Benches think that the effect of all the amendments in this group would be the same. All, in different ways, seek to enshrine in law a distinction between what is referred to as “traditional marriage” or “matrimonial marriage” and the new, statutory definition of marriage that will be created under the Bill, which encompasses the union of both opposite-sex and same-sex couples. Whether those who tabled the amendments intended to or not, they were in effect making two classes of marriage. Trying to find different definitions—and in some cases, I fear, jealously guarding the word “marriage” for heterosexual couples—suggests that one form of marriage is inferior to another and that flies in the face of the Bill.
The noble and learned Lord, Lord Brown of Eaton-under-Heywood, was quite right in his remarks, as were other noble Lords, including the noble Lords, Lord Dobbs and Lord Black, the noble Baroness, Lady Richardson, my noble friend Lady Turner, the noble Baroness, Lady Shackleton, in her excellent speech, the noble Baroness, Lady Noakes, and the noble Lord, Lord Carlile. They all appreciated that while those who tabled the amendments have a strong personal belief about marriage, in some cases rooted in their religious faith, their amendments would undermine the purpose of the Bill.
It is important to make a distinction between something that has the effect of undermining a belief or an idea and something that undermines an individual’s ability to hold such a belief. I find it difficult to believe that, when the Bill becomes an Act and same-sex marriages are a routine matter, as they will be, the noble Lords who have been so nervous today will feel that something important or precious has been removed from their faith or their strong belief in marriage.
Article 9 of the Convention on Human Rights clearly enshrines an individual’s right to freedom of thought, conscience and religion. We must be absolutely clear in our protection of these rights. The Bill seeks to do that. The Bill does not in any way undermine those rights for individuals in relation to their belief about the appropriate nature of marriage. As the noble Baroness, Lady Richardson, said, its purpose is to provide for the state to recognise equally the relationships of couples, regardless of whether they are between members of the same sex or of opposite sexes, who wish to make a loving and lifelong commitment to each other.
By inserting a distinction between same-sex and opposite-sex marriage back into statute, whether by describing one as a “union”, as Amendment 1 would do, or as matrimonial marriage requiring special privileges, as Amendments 46 and 57 do, or by setting up a separate register, we would undermine the purpose of the Act, which is to remove the distinction in law between same-sex and opposite-sex relationships. Therefore, we on these Benches have no sympathy with, and do not support, any of the amendments in this group. I ask noble Lords not to be seduced by what I regard as the lethal combination of the noble and learned Lord, Lord Mackay of Clashfern, and the most reverend Primate the Archbishop of York. The way they described what they wish to achieve was seductive, but it would have the same effect on the Bill.
Lord Mawhinney
I think that the noble Baroness suggested that my amendment was designed to undermine the Bill, although I explicitly made clear that it was not. What would she think about giving ordinary members of the public the assurance that they can use certain phrases, by putting them in the Bill, to protect themselves against undue political correctness? My amendment has nothing to do with the substance that she has addressed so far in her speech.
Baroness Thornton
I think that noble Lords’ concerns about free speech will be addressed at a later stage in Committee, in the next group of amendments but one. I am certainly happy to address those concerns. This group of amendments is about the substance and purpose of this Bill. The Government have addressed the freedom of speech issues; indeed, they are covered in this legislation and in the legislation that is already in existence.
Baroness Stowell of Beeston
My Lords, I am very grateful to all noble Lords. I think more than 30 noble Lords have contributed to this debate on the first group of amendments. We have covered quite a lot of ground and I hope noble Lords will forgive me if I start by reminding the House about the purpose of this Bill. All the amendments in this group go to the heart of the Bill. I acknowledge the point that my noble friend has just made and I will address his specific amendment and others in turn in a moment. The Bill, in part, is about safeguarding the future of the vital institution of marriage by making sure it reflects the modern and inclusive society that this generation of your Lordships’ House has helped create, and which younger generations value and want to see extended.
What we are looking for here is the acceptance of gay men and lesbian women for who they are. That means accepting their relationships on the same terms as we accept all relationships. I hope noble Lords will forgive me if I refer back to a couple of points I made at Second Reading. Clearly, I will not go over all the points I made then. The arrival of civil partnerships had a profound effect on how we, as a society, look at and consider gay couples. Civil partnerships allowed us to see that gay men and lesbian women want to be together for exactly the same reasons as straight couples. I know some noble Lords usually refer to the inability of gay couples to procreate as a way of saying that there must be a difference there because there is a physical difference. However, as other noble Lords have said today and in other debates, that is not a fair distinction. There are couples of the opposite sex for whom procreation is not an option. The longer George Clooney waits to pop the question, the less likely it is that that might be an option for me. If he were ever to extend his hand in marriage to me, I would not want noble Lords to diminish my union with him on the basis that procreation was not a possibility.
We understand that gay couples take their union—I use that word in the broadest sense, rather than specifically in response to the noble Lord, Lord Hylton—as seriously as a man and a woman who want to get married. That is why we have become accepting of them and, for many of us, why we are so comfortable with the idea of gay couples marrying just like the rest of us. I know many noble Lords have said today that there is a minority—some describe it as a majority—outside this House, and indeed there are some inside this House, who do not feel so comfortable. Of course I understand that. However, the evidence shows that the majority of people are quite content for marriage to be extended to gay couples. It is worth reminding ourselves of the speech that my noble friend Lord Norton of Louth made towards the end of Second Reading, when he went through all the various evidence out there. He made the very striking point that among the younger generation there is very high support for and acceptance of gay marriage.
It is also worth reminding ourselves that we can see that gay men and women do not want to change marriage. They just want to be part of something that they, too, believe is important to our society. In terms of the current legislation and civil partnerships, if someone asks a gay man or a lesbian woman whether they are married, to be really accurate they have to say, “Sort of”. They are not legally married, yet they want to be able to say yes. As my noble friend Lord Black made clear, as did the noble Lord, Lord Carlile, this is very important.
Lord Higgins
A curious aspect of this debate is that it is assumed that if there is a distinction between two possible definitions, one is necessarily inferior to the other, and that comes out very clearly. Would it meet her point if there was also an amendment which said the status of both forms of marriage is equal?
Baroness Stowell of Beeston
If anybody wished to table an amendment and your Lordships wanted to debate it, I would be happy to consider that debate and respond to it. However, the short answer is that it would not be acceptable because we want only one institution of marriage. That is what we are seeking to achieve. We do not want to distinguish between opposite-sex couples and same-sex couples.
Lord Mackay of Clashfern
Before my noble friend moves on from that point, am I not right that different terms are applied to same-sex and opposite-sex marriage at different points in the Bill?
Baroness Stowell of Beeston
I think my noble and learned friend referred to this point in an earlier intervention. I will probably cover it a little later, but I think he is referring to Clause 11(1), which states:
“In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples”.
That does not introduce a distinction between two different kinds of marriage.
As I understood the noble Lord, Lord Dear, to say, Amendment 9 in his name is intended to define the marriage of a man and a woman as a traditional marriage, and have that marriage registered as such by the Registrar General in a separate register. Traditional marriage of the type he is putting forward could be formed only by opposite-sex couples. Therefore, this amendment would create an unwelcome distinction in the institution of marriage. As I stated at Second Reading, the introduction of same-sex marriage does not redefine any existing or future marriage of a man and a woman. It is not necessary to protect that status.
Lord Dear
Does the noble Baroness agree that what I propose is, in very simple terms, a purely permissive provision that would retain the new legal definition of marriage as introduced by the Bill? It goes very much with the Government’s line on this and does not seek to change it at all. It would simply set up within that new definition the possibility of the couple getting married declaring their marriage in a form which is acceptable to them and having that registered in a register—a side register, if you like—that the registrar can keep. As I say, the provision would work permissively within the Bill and not upset it at all, but would satisfy the 98%, shall we say, who want the comfort of staying with what they understand to be traditional marriage.
Baroness Stowell of Beeston
Although I understand perfectly what the noble Lord is saying, the amendment would still create that separation and distinction that somehow one group is different from another and, therefore, we have to keep them apart. That is what we are trying to avoid. That is what we do not want to do.
Amendments 33 and 34 give us an opportunity to discuss—
Lord Lester of Herne Hill
I am grateful to the Minister for giving way. Will she ask her advisers why the separate but equal doctrine that is being propounded in some parts of the House was struck down by the American Supreme Court in Brown v Board of Education as being inherently discriminatory?
Baroness Stowell of Beeston
I shall certainly seek advice on that, but I have a feeling that my noble friend would be able to help me answer the question he has posed. I will certainly endeavour to respond to that point while I remain on my feet.
Amendments 33 and 34 give us an opportunity to discuss Clause 11. It may be helpful if I explain briefly what Clause 11 does. It is a significant clause to ensure that existing and future legislation in England and Wales will be interpreted so that all references to marriage and related terms will be read as applying equally to same-sex married couples unless specifically provided otherwise. This is right and necessary to ensure that all married couples are treated generally in the same way. The clause also gives effect to Schedule 3, which makes further provision for the interpretation of references to marriage in both new and existing legislation in England and Wales. It also gives effect to Schedule 4, which sets out particular instances where the effect of Clause 11 would give the wrong result.
I turn to Amendment 33—
Lord Mawhinney
My Lords, I am grateful to my noble friend. I understand that she just wants marriage without any bells or whistles—just marriage. Will those people who are not politicians or lawyers, and who may use the phrase “same-sex marriage” or “traditional marriage”, now be exposed to the charge of committing a hate crime?
Baroness Stowell of Beeston
Absolutely not. I was going to come on to respond briefly to the points that my noble friend raised. However, I am happy to make clear now that I will move an amendment to make it absolutely clear that that is not the case—not that it would have been anyway, but I am happy to clarify that. Furthermore, nothing in the Bill prevents anybody using any kind of terminology they choose to use in the course of their conversations, whether in public or private. The Government seek to ensure that we do not introduce distinctive terms into this legislation which separate out different people. That is the key difference.
Amendment 33 in the name of my noble and learned friend Lord Mackay states that Clause 11 should be:
“Subject to the later provisions of this Act”.
However, as I said, Clause 11 gives effect to Schedule 4, paragraph 27(2)(a) of which makes Clause 11 subject to contrary provision made by,
“the other provisions of this Act”.
That achieves the effect that my noble and learned friend’s amendment appears to seek and so renders it unnecessary. My noble and learned friend also referred to the presumption of parenthood and to adultery and raised important points about both those matters. We shall discuss later amendments on these issues so it is probably more efficient for me to come back to those at the appropriate time.
As I have just said, we believe that Amendment 34 in the name of my noble friend Lord Mawhinney is unnecessary. Although we reject any designation that would create two tiers of marriage because there is only one form of marriage, Clause 11 does nothing to prevent anybody using any terms, including “traditional marriage” or “same-sex marriage”, if they choose to do so. As I have described, the clause interprets terms related to marriage for legal purposes; it does not prevent individuals or others making reference to, or supporting, traditional marriage. It is worth referring to the powerful intervention by my noble friend Lady Noakes on difference and the fact that there is a lot of difference in marriages, as other noble Lords have said. Some married people have no children, some stay married for life and others divorce. We do not apply different labels to those kinds of marriages and that is not something that we want to do in the Bill.
Baroness Cumberlege
My Lords, I am very interested in what my noble friend said about people being able to say what they want without fearing retribution, as it were. I should like to bring to the noble Baroness’s attention the case of Adrian Smith, the housing officer who was demoted by a housing authority for expressing the view, in his own time and on his personal Facebook page, that same-sex marriage was an equality too far; and to that of Brian Ross, the police chaplain who was forced out of his job for stating his opposition to the same-sex marriage proposals. I could go on. Can my noble friend tell me where there are safeguards in the Bill to prevent that happening?
Baroness Stowell of Beeston
There are safeguards in the Bill as the Equality Act makes it clear that it is possible for people to express their religious or other beliefs in a manner that is absolutely of their choosing as long as that is done without inciting hatred or is not expressed in the workplace in a way that might damage an employer’s reputation. However, given that we shall come to a large group of amendments on this issue, and there is quite a lot that I can say at that point which I think will reassure my noble friend, I hope she will allow me to respond to that issue in more detail on that later group of amendments. I think that would be the best thing for me to do.
The amendments tabled by the noble Lord, Lord Armstrong of Ilminster, proposed that marriages for opposite-sex couples be classified as “matrimonial” marriages—again creating, I would argue, separate institutions for marriage of opposite-sex and same-sex couples. Others have commented on that word “matrimonial”, which does not seem to have attracted a great deal of support around the House. For us, again, as a matter of principle, that is something that we would be unable to accept. I know that the noble Lord is genuinely concerned that the current law on marriage might alter as it applies to opposite-sex couples when this Bill comes into force, but I can assure him that this is not the case.
The Government do not believe that any new legal status or subdivision for marriage is either necessary or right. There is one legal institution of marriage in England and Wales, which, through this Bill, all couples will be able to join by either a religious or a civil ceremony. The existence of marriage for same-sex couples does not alter the marriage of opposite-sex couples. Nothing in this Bill affects the marriage of opposite-sex couples in any way. Regrettably, these amendments would deny same-sex couples the fairness that this Bill is designed to achieve. I therefore ask the noble Lords not to press their amendments.
I repeat to noble Lords concerned about freedom of expression and freedom of speech matters that this Bill most clearly protects freedom of speech and freedom of expression.
The Archbishop of York
My Lords, first of all, I thank noble Lords for wishing me well in my recovery and on being back in the House. To answer the noble and learned Lord, Lord Mackay, on the question of whether even in the Bill itself some distinction is drawn between same-sex marriage and opposite-sex marriage, I would say that a distinction clearly is made in Schedule 4, Part 3, on the divorce and annulment of marriage. It states under the heading “Divorce”:
“Only conduct between the respondent and a person of the opposite sex may constitute adultery for the purposes of this section”,
but when it comes to annulment, that does not happen, so already there is an acknowledgment of some kind of distinction between the two types of marriage. I do not think it is right to say that there is no distinction.
Furthermore, although Clause 11 says that marriage is being extended, the particular definition of marriage and the way in which the Church of England has perceived it and teaches it are also very different, so I am not so sure that you can deny that even in the Bill there are some distinctions.
Baroness Stowell of Beeston
The most reverend Primate referred to divorce and annulment. We are not changing the definition of “annulment” because it is an historical definition that is linked to procreation. As I said at Second Reading and again today, clearly there is a distinction between same-sex couples and opposite-sex couples because procreation is not available to same-sex couples. We are not seeking to change the definition of existing marriage law and how it applies to opposite-sex couples. We think it is perfectly proper for that distinction to remain as it is and not be changed in order to apply to same-sex couples, because that would render it meaningless.
Baroness Stowell of Beeston
Again, amendments on adultery are coming up. I do not know whether we will get to them today. I am really looking forward to that debate. It is going to be great. I urge noble Lords to come back on it. We should be selling tickets for it. I will be able to cover that issue in detail at that time.
Baroness Berridge
Will my noble friend the Minister clarify the position on annulment? This matter appeared in a letter written to Peers. My understanding of annulment is that it is not connected to procreation. You can have an annulment of a marriage even if you get married at 65. It is not directly related to procreation.
Baroness Stowell of Beeston
If my noble friend will forgive me, although I responded to the most reverend Primate on this topic, this topic is quite a point of detail and we will be debating it later at great length, so rather than trying to flick through my briefing folder now to find specific answers, when we have that debate I will be absolutely prepared and armed to respond to her at that time.
Lord Stoddart of Swindon
On that point, in the case of a heterosexual marriage, annulment depends on consummation, not procreation. In those circumstances, since that will not apply to same-sex couples, there is no equality in this Bill.
Baroness Stowell of Beeston
The noble Lord has done me a great service because he reminds me that I was wrong in the connection that I made to procreation. That is why it would be much safer if we debated this matter when I have the right speaking notes in front of me. I am grateful to the noble Lord.
I can, however, respond to the question from my noble friend Lord Lester. This was a US Supreme Court case that ended the bussing of children to segregated schools in the USA. I am wary of making a direct read-across, but my noble friend makes a point that is very worthy of consideration: that separate but equal can be a cloak of inequality.
I think I have covered all the points raised in the debate, so I ask the noble Lords whose amendments we have been discussing not to press them.
Lord Hylton
My Lords, I am honoured and pleased that my amendment should have paved the way for such a profound, important and long-lasting debate. I think that very many of us have been doing our best to find a common ground for honourable, long-term relations between couples of whatever kind. I hope that the Government accept that point. For my part, I have come to the view that other amendments in this group, and indeed in the fourth group on the Marshalled List, point the way better than mine to the ways in which we can continue to seek improvements to the Bill both in Committee and in the later stages. I therefore beg leave to withdraw Amendment 1.
Lord Cormack
“(c) a priest of the Roman Catholic Church in England or Wales.”
Lord Cormack
My Lords, this is a very different, and rather more limited, amendment, but I think it has some importance. I had tabled it really as a probing amendment to try to get a clear answer from my noble friend who will be responding as to why clergy within the definition of the Bill are limited to clergy of the Church of England and the Church in Wales. Of course, one understands this in the case of the Church of England; it is the established church of the land. Welsh disestablishment happened a long time ago. It seems to me that there is one church in this country that deserves to be mentioned in the same clause: the Roman Catholic Church. I know very well that there are clear and honourable differences of opinion within the free churches. We heard eloquent speeches both today and on Second Reading from the noble Baroness, Lady Richardson, to indicate that she, as a former president of the Methodist Conference, takes a line that is clearly at variance with the official line of the Church of England and the Roman Catholic Church.
Baroness Richardson of Calow
Perhaps I may also remind your Lordships that it is not the line that my church is taking at the moment.
Lord Cormack
I am grateful for that clarification, although I know quite a number of free churches ministers of different denominations who would certainly line up behind the noble Baroness. However, if she or anyone else wished to table a further amendment to include the clergy of the free churches, I would raise no objection, but the Roman Catholic Church has made its position clear and unambiguous. That deserves recognition, and the priests of the Roman Catholic Church deserve the same degree of protection that is rightly being accorded to priests of the established church. It is in that spirit that I briefly commend the amendment to the Committee and hope that it will at least elicit some support. I beg to move.
Baroness Royall of Blaisdon
My Lords, the amendment is an unnecessary and potentially confusing addition, because it would, as the noble Lord said, add Roman Catholic priests to the list of persons exempt from the common-law duty to marry parishioners under Clause 1(5). As he also said, the common-law duty extends only to members of the Church of England and to Wales clergy, not the Roman Catholic Church. It is not a question of not wanting to offer protection to the Roman Catholic Church; it is just that it is not necessary to do this against challenge on the basis of any such duty.
Priests of the Roman Catholic Church are already protected in Clause 2, as are clergy of all other religious organisations that may decide whether to opt into performing same-sex marriage. Clause 2 is absolutely clear. It states:
“A person may not be compelled to … undertake an opt-in activity, or … refrain from undertaking an opt-out activity … to conduct a relevant marriage … to be present at, carry out, or otherwise participate in, a relevant marriage, or … to consent to a relevant marriage being conducted”.
The clause makes specific provisions for individuals, other than registrars, to be able to refuse to perform or participate in performing a same-sex marriage. This will allow priests, ordinaries, altar servers, organists and many others to refuse to participate in such a service, even if their governing authority has decided to opt into same-sex marriage. That is clear and the provisions in the Bill are sufficient to allow the Catholic Church to not opt into same-sex marriage with full confidence of protection under the law.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I thank my noble friend Lord Cormack for moving the amendment. As he indicated, it is a probing amendment, and I hope that from both the response of the noble Baroness, Lady Royall, and what I am about to say that he will be reassured that there is good reason why clergy of the Church of England and the Church in Wales are identified separately in the Bill.
As my noble friend indicated, the amendment would make plain that no duty of the Roman Catholic clergy to marry couples is extended by the Bill to same-sex couples. I am grateful for the opportunity to explain the position. In respect of this amendment, whatever his duties in the Catholic Church or under Roman Catholic canon law are, a priest of the Roman Catholic Church is under no legal duty according to English law to marry anyone. If a couple of some other faith, or who are for example simply not members of his congregation, come to him, he does not have to marry them.
However, there is a common-law duty to marry parishioners, which applies to the clergy of the Church of England and the Church in Wales. That duty arose because of the establishment of the Church of England and the previous establishment of the Church in Wales. The purpose of Clause 1(4) and (5) is to ensure that this duty does not extend to the marriage of same-sex couples.
However, given that no other religions are or have been established in England and Wales, no common-law duty arose in respect of the clergy of other religious organisations. It is therefore not necessary to have a provision in the Bill ensuring that such a duty is not extended to the marriage of same-sex couples. All other religious organisations are entirely free to decide whom they wish to marry according to their rites.
Therefore, Roman Catholic clergy, along with ministers of other religious organisations, are fully protected under Clause 2. The amendment would therefore achieve no change in the law but could produce confusion and doubt as to whether the clergy of the Roman Catholic Church might be under a legal duty to marry opposite-sex couples when, in fact, they are not.
I hope that that straightforward and simple explanation satisfies my noble friend. However, it has been important and worth while for him to have moved the amendment to provide an opportunity for that explanation to be given.
Lord Cormack
My Lords, I am grateful to my noble friend and the noble Baroness, Lady Royall. I have a number of Roman Catholic friends who have been somewhat concerned, and I am grateful that all this is now on the record. I am only too glad to beg leave to withdraw the amendment.
Lord Mackay of Clashfern
“(6) No person to whom subsection (7) applies may deprive another person of an office or appointment for holding or having publicly expressed the belief that marriage is, or should be, the exclusive union for life of one man and one woman, nor may such a circumstance applying to a candidate for such an office be taken into account as a factor against appointment.
(7) This subsection applies to those making appointments to any public office as defined in section 50(2) of the Equality Act 2010 or any appointment made by a person who is specified in Schedule 19 to that Act or any person exercising a function that is a function of a public nature for the purposes of the Human Rights Act 1998.
(8) A breach of subsection (6) may confer a cause of action at private or public law.”
Lord Mackay of Clashfern
My Lords, we heard earlier a number of instances, which I shall not repeat, in which expressing views in relation to same-sex marriage has led to sanctions against people in various walks of life. The amendment is, in effect, intended to avoid any risk of that sort of thing happening in connection with a public office. I beg to move.
Lord Alli
My Lords, I wish to speak to Amendments 5, 7, 8 and 19, government Amendment 53 and Amendment 54. This group of amendments seeks to put into the Bill a series of protections for those who believe that same-sex marriage is wrong, who want to make clear that they believe it is wrong, and who are employed by public authorities or subject to the Equality Act.
Robust provisions in the Bill and that Act already give such protections. Indeed, the Minister made this clear at Second Reading and, if she does not mind, I shall repeat her words. She said:
“It is lawful to express a belief that marriage should be between a man and a woman, and it is lawful to do that whether at work or outside work. That is a belief that is protected under the religion or belief provisions of the Equality Act 2010, and penalising someone because of such a belief would be unlawful discrimination under that Act”.—[Official Report, 4/6/13; col. 1104.]
The Minister and the law cannot have been any clearer. In addition, as promised, the Government have brought forward—unnecessarily in my view—reassuring language in Amendment 53 regarding freedom of speech. As regards Amendment 37, which was tabled by the right reverend Prelate the Bishop of Leicester, and Amendment 56 of the noble Lord, Lord Dear, the Government are, in Amendment 53, giving the noble Lords all that they ask for but in more inclusive language. I hope that the right reverend Prelate, who is not in his place, will accept that and move on.
Given that the law is clear and the Government have strengthened the language on free speech, what are Amendments 37 and 56 for? I have a sneaking suspicion that their impact, like many others tabled throughout the Bill, will not be helpful but raise alarm with the public and insert inflammatory language to fix a mischief that never really existed. I accept that that is probably not intended by those who tabled those amendments. However, I call it the “Section 28” effect. What do I mean by that? The last time that such an impact was felt was after the introduction of Section 28 of the Local Government Act 1988. The inflammatory text damaged the reputations of the party opposite and this House. We have come a long way since then. I ask the Committee and the Government that where there is no mischief that they can identify please do not seek to remedy it, as is the case with these amendments dealing with public authority employees expressing their opinions on marriage. Please be wary of those offering helpful solutions, as some of us have had to live with the terrible consequences of those tactics as a result of Section 28.
Lord Waddington
My Lords, first, I apologise to the noble Lord, Lord Alli, and others on the other side of the House. My hearing aid, or my hearing, or both, gave way last time and I could not hear a word that was said. I was very fortunate to have a prompter near me. I do not think that anything I say now will provoke a large number of interventions but if that happens, I am now in better shape to deal with them.
The amendment deals with discrimination against someone because he expresses the view that marriage is the union of a man and a woman. I want to take this opportunity to mention something which has been very much on my mind. This sort of discrimination may become prevalent because it has got about the place that even before the Bill has become law, it is plain wrong to express support for traditional marriage. I hope others were as concerned as I was to read how the Law Society and the Queen Elizabeth II Conference Centre cancelled conferences to be held on their premises by Christian Concern to make the case for traditional marriage, with a very distinguished body of speakers. Each of those bodies had the nerve to say in its notification of cancellation that the nature of the event was,
“contrary to our diversity policy, espousing as it does an ethos which is opposed to same-sex marriage”.
It never seems to have occurred to the writers of those letters that they were quite deliberately interfering with the right of free speech in a country where free speech is greatly treasured as the hallmark of a free society. I hope that a clear message goes out from the Government today that the behaviour of those bodies was clearly unacceptable. We must safeguard free speech, whatever we do tonight.
Baroness Berridge
My Lords, I wish to speak briefly to Amendment 54, which is in my name, and, obviously, to government Amendment 53. Much has been said in your Lordships’ House of the need to preserve free speech but, as I outlined in my Second Reading speech, the role of the state goes beyond that. To ensure free speech, there has to be an encouragement and a protection of dissent in the public space. I am grateful to my noble friend the Minister for bringing forward Amendment 53, which was promised in the other place on Report, and was a concern outlined in the recent report of the Joint Committee on Human Rights that was published last Friday. I am a member of that committee, and there were very divergent opinions on the principle of the Bill, but we managed to come up with a report of the whole committee about the concerns that remain about the Bill.
I am grateful that the Government have brought forward this amendment to deal with some of the concerns around free speech. It is particularly important when on our statute book there are crimes that can be committed, with the force of criminal law being brought to bear on them, when there is hate speech with a particular mens rea of intending to stir up hatred against, for instance, somebody on the grounds of sexual orientation. I draw attention to what the noble and learned Baroness, Lady Butler-Sloss, outlined: this is a necessary safeguard when we look at what people on the ground are actually doing. Members of the other place have already referred to an incident a few weeks ago, when the police were called to a heated exchange around the matters that we are considering. We have to bear in mind that the effect of this legislation, and the potential effect on free speech, has to be policed on our streets by ordinary police constables. Amendment 53 ensures that they have clear guidance around what is and is not a criminal offence. It specifically states the caveat that it is not just about stating your belief that marriage is between one man and one woman. It is allowing that criticism to take place and thereby not breaching criminal law once the criticism is made. That dissent in the public space is to be welcomed.
In my speech at Second Reading I drew attention to the exchanges that took place between David Lammy MP and David Burrowes MP on these issues. One of the things that are becoming very difficult in speaking on this issue is the analogy, which was the cause of the dispute in the other place, around sexual orientation, same-sex marriage and racism. I am surprised to see the nature of the exchanges we are having today. If that is what ends up taking place in this debating Chamber, what will be happening on our streets when passions get inflamed around this issue? I welcome the Government’s amendment and believe that it brings in an important safeguard.
Lord Dear
I shall speak to Amendments 7 and 8, which stand in my name in this grouping. I ask noble Lords to consider the words which case law has held to be paramount in this, that beliefs must be,
“worthy of respect in a democratic society and not incompatible with human dignity”.
They are words protected by the European Convention on Human Rights, and they cover both religious and philosophical beliefs. There are a clutch of cases which I could quote here, but I will refer briefly to only two of them.
The first is Grainger plc & Others v Nicholson in 2009. The court held that strong philosophical belief about climate change, for example, affected how the claimant lived. It went beyond mere opinion. It was setting out that opinion is one thing, which is not protected by the law, but that serious beliefs which stand above that should be so protected. That case really became the bedrock of this particular set of cases. In a 2005 case in the House of Lords, Regina v Secretary of State for Education and Employment and others ex parte Williamson, the noble and learned Baroness, Lady Hale, said that:
“A free and plural society must expect to tolerate all sorts of views which many, even most, find completely unacceptable”.
Agreeing with that judgment, the noble and learned Lord, Lord Walker, in accepting pacifism, vegetarianism, and teetotalism as beliefs, went on to say that they are not just religious beliefs,
“but equally … may be based on ethical convictions which are not religious but humanist”.
I galloped through that just to say that the words,
“worthy of respect in a democratic society”,
have a solid bedrock in both European law and the law of this country.
The reason for tabling these two amendments is to focus on the fact that the Government have repeatedly insisted that this legislation before us will not penalise those who believe that marriage is only between a man and a woman. As the noble Baroness, Lady Cumberlege, has already said, the obvious case to cite at that juncture is that of Adrian Smith and the housing trust. That has been mentioned several times in previous debates on this subject. I will not go into it again but that case, and others, indicate the fragility of the position of those who seek to express a firmly held view, without any intent of causing any disruption beyond—
Baroness Barker
I wonder if the noble Lord, Lord Dear, would care to acknowledge that Adrian Smith actually won his case. The reason why he did not win substantial damages was because he did not take the case within the time limit. But he did win his case.
Lord Dear
Adrian Smith won his case under contract law. He was awarded only £98 for loss of earnings. I understand that he was advised by his lawyers that he would not have succeeded on a religious or belief discrimination claim.
Having mentioned the Adrian Smith case and the fragility which I think most would accept is there at present, my Amendments 7 and 8 are paving amendments, as much as anything, for Amendments 10, 12 and 14, which also stand in my name. They are put forward to your Lordships for consideration as alternatives, to put the Government’s assurances on a statutory footing. The amendments expressly state that,
“marriage was the union of one man and one woman”,
as a belief, and here I quote again,
“worthy of respect in a democratic society”.
As I say, that is the key test used by the European Court of Human Rights. The amendments go on to say “that no person” holding that belief “should suffer any detriment”, and ensure an ongoing recognition that there are different views on the issue and that the many who hold to a long-standing definition of marriage should not be disadvantaged.
Briefly, Amendment 7 requires that:
“Any person, in exercising functions under or in consequence of this Act”,
should have regard to the principle of not causing detriment to those who believe in “traditional marriage”. That would put, as an example, the Secretary of State under an obligation to have regard to this principle when making orders under the Act. It would apply to anyone involved in the registration of marriages, including staff handling applications from churches.
Amendment 8, as an alternative, tightens the focus down to:
“A public authority, or any person exercising a public function”,
having regard to the same principle. That would apply to public sector employers, including housing trusts, which might treat employees unfairly because of their beliefs about marriage. The amendment would also extend to all that is done, for example, by Ministers of the Crown, the National Health Service, local authorities, schools, police forces and so on. Individuals in all walks of life would be protected, from doctors to road sweepers, from nurses to government advisers, and from teachers to police officers.
Baroness Thornton
Is the noble Lord aware that the Equality Act 2010 does all of this? I recommend that he reads the guidance that accompanies that Act. The legislation received cross-party support in this House. It is a carefully balanced Act that already offers all the protections that the noble Lord mentioned.
Lord Dear
The point I would make is that the Equality Act is shot through—I am sorry, I shall retract that. The Equality Act attracts a mass of legislation in which actions are taken against individuals who are said to be in breach of the Act. These amendments will put into statutory form the words,
“worthy of respect in a democratic society”.
I suggest that they will cap off a large number of those actions. Putting it in simple terms, the Equality Act is not proving to be as watertight as it was first imagined to be.
Lord Elton
My Lords, am I not right in thinking that the case that was brought to the attention of the Committee a few moments ago by my noble friend Lady Cumberlege should have been protected by the Equality Act? However, that Act failed to provide any protection.
Baroness Turner of Camden
My Lords, perhaps I may say a word about Amendment 8 because I have some doubts about it. The first line of the proposed new clause states:
“A public authority, or any person exercising a public function, shall have regard to the following”.
That is followed by a list to which he should have regard. What does “shall have regard” mean? Does he have any enforcement powers? For example, could he so construct his activities that he was, in fact, forcing on people who did not want to receive it the belief in subsections (1)(b) and (1)(c), which state,
“that belief in traditional marriage is a belief worthy of respect”,
and,
“that no person should suffer any detriment because of their belief”?
As far as I am concerned, people can believe what they like. What I object to is an intention to impose those beliefs on people who do not accept them. I certainly would not be happy to accept that, because in subsection (1)(a) there is a provision about marriage being,
“the union of one man and one woman … to the exclusion of all others (‘traditional marriage’)”.
As I said before on the previous amendment we discussed, what about the position of people who divorce? A lot of people in this country get married, go through a divorce and then, perhaps, marry again. Is their second marriage traditional or not traditional? There are a number of questions raised by the wording here which make the proposed clause quite unacceptable, particularly to those who hold a fairly secular view so far as marriage is concerned. The wording is not really acceptable because, in my view, it could lead to the position where those who hold these beliefs could, in their capacity as public officials, seek to impose them on people who do not hold them at all.
Lord Dear
Perhaps I may respond to that. I refer the noble Baroness to the judgment in the case of Williamson. I shall quote rather more extensively from what the noble and learned Baroness, Lady Hale, said:
“Many would believe it to be wrong even if it was proven to work. Both are essentially moral beliefs, although they may be underpinned with other beliefs about what works best in bringing up children. Both are entitled to respect. A free and plural society must expect to tolerate all sorts of views which many, even most, find completely unacceptable”.
I rest my case.
Lord Cormack
My Lords, perhaps I may ask my noble friend a specific question, which has already been referred to by my noble friend Lady Cumberlege. A number of us received a letter from a clergyman of the Church of Scotland who, not in his official duties as a chaplain to the police but in, I believe, his blog, referred to his own personal belief in marriage as being the union of a man and a woman. He was subsequently dismissed from his post as a chaplain. What I want to know is this: are the provisions that the Government are putting forward in this Bill sufficient to prevent that sort of unseemly episode happening in the future?
Baroness Butler-Sloss
My Lords, when we are looking at a Bill which has the intention of increasing respect for and giving rights to a minority, it is equally important to look at another minority who will be unable, from their personal conviction, to accept the validity of the consequences of this Bill. The Equality Act has its defects. I strongly supported it, particularly all those elements in relation to gay rights, and I would do that again here. I would take that right to the stake because while I do not agree with marriage, I certainly agree with equal rights.
What I am concerned about—I expressed the same concern during the passage of the Equality Bill—is the right of other people who are in minorities to express a view that is unpopular with many other people, particularly with other minorities. We are now in a new dimension in that we are going to have same-sex marriage. Whatever it is called, it will be marriage. However, there will be people out there who cannot take it. This Bill should recognise that situation, and however great the Labour Opposition think their Equality Act is, it does not necessarily cover every aspect of what we are concerned with today; that is, those who cannot tolerate marriage for same-sex couples. Even if it may be partially covered by the Equality Act, it would be highly wise to have something in this Bill that covers this issue.
I agree with the noble Baroness, Lady Turner, that these amendments may not offer the right wording, but we are in Committee. Surely we could produce, by Report, something that provides some degree of support for other minority groups.
Lord Anderson of Swansea
My Lords, my noble friend Lady Thornton speaking from the Front Bench and my noble friend Lord Alli have argued, no doubt persuasively in their view, that the current protections are adequate: the Equality Act is in place. However, in my judgment that contention is belied, first, by the fact that a number of leading counsel take a contrary view and say that the protections are not adequate, and, secondly, by the fact of some of the cases, some of which have already been cited. We will come to the registrar later, as well as the chaplain to the police and other such cases. It would be helpful if we could have a response from the Minister that these cases would in fact have received protection under government Amendment 53 and any other protections which the Government may seek to provide.
My own starting point is clear: as a House, we should seek to protect minorities from what is, sometimes, the tyranny of the majority. We can refer to the wonderful literature on this, such as by Mill and de Tocqueville. I would recommend all colleagues to read and re-read what they say about the tyranny of the majority. Surely, part of our duty is to ensure—so far as we are able—that minorities are protected. In this case, we seek to protect and to give dignity and equal rights to a minority in our country. I would hope that those in this minority would also see the importance of giving protection to another minority—those who think highly of traditional marriage as defined.
Lord Anderson of Swansea
My noble friend is playing on words somewhat. At Second Reading there was much contention as to what the majority opinion in this country was. In my judgment, the Government carried out a fairly spurious, bogus consultation where they chose to ignore a petition containing a very large majority which, had it been added, would have shown a majority against the Bill. One chooses one’s public opinion poll. My noble friend may choose one particular poll; I may choose another, both of which bolster our respective opinions. The point I am making is that my view of traditional marriage—which is not just Christian marriage, but that of a number of other confessions—is something worthy. It should be protected, and those who espouse it should achieve protections. That is important even if, say, 46% of respondents to the latest poll oppose this Bill. I do not know what overall public opinion is.
I would challenge the Government to test that opinion. I shall move an amendment later which suggests that, if the Government are so confident that this represents majority opinion, they should hold a referendum, given their record in other areas, such as the relatively trivial transference of sometimes quite minimal provisions to the European Union. This may not be relevant to this particular clause but, even if the views which I and many other colleagues espouse are in the minority—and there is some uncertainty about that—that minority deserves to be protected. Those who have been a clamant minority and who have won support during the passage of this Bill, should also be conscious of the protection of other minorities, if that is what we are.
In answer to the contention of my noble friend that the protections are adequate, let him look at some of the cases that have been brought. It is sad that there are many zealots on both sides of the argument—zealots who seek to use the law to the full for their own purposes. There are many ordinary, decent folk who find that they are the subject of litigation. Not only are they in an agony of uncertainty in the intervening period before their case comes to court, but it is also a very expensive matter. With very limited resources, they may find that they are up against very well-padded groups. That is the reality of these matters. Whatever the legislative provisions, people on both sides will push at the borders. I would urge my noble friend, consistent with the views which he and I generally espouse in respect of minorities, to look carefully to see that the tide has not run so far in one direction that there is indeed a tyranny—in this case, the tyranny of a minority.
I refer specifically to Amendment 19. I know this is not a view that my noble friend has espoused, but the leader of the Liberal Democrats, the Deputy Prime Minister, has called people like me “bigots”. I resent that because there are many people on our side of the argument of all stripes—lawyers, academics, atheists, those of all religions, straight people, gay people—we are not bigots. We are people who happen to hold a traditional view of marriage. I have not heard that the leader of the Liberal Democrats has withdrawn that assertion. I hope that he will. I have not taken it out of context. It means that he has applied a label to many of us which we thoroughly resent.
Baroness Butler-Sloss
I will make a very brief response to the noble Lord, Lord Alli, who I think had possibly not finished speaking, to just elucidate what was meant by a minority. Once the Bill is law, I have no doubt that the majority will accept it. However, there will be a minority who will not accept it, and it is that minority that needs protection.
I have to say that I slightly resent that the noble Lord, Lord Alli, talked about a minority being a majority and the majority a minority. Within majorities, there are minorities, even of the same group. Some will accept it and others will not. It is the ones who will not accept it who actually need protection; much as the gay community has needed protection in the past but has not received it.
Lord Singh of Wimbledon
My Lords, I rise to speak to Amendment 19, which is in my name and is part of this group of amendments. In many ways, what I will say will mirror some of the things said by the noble Lord, Lord Anderson. The Equality Act 2010 is meant to protect against discrimination on the grounds of religion and belief. However, anyone who has read about the cases that have come to court will know that it has not always, to date, protected people with strong religious beliefs about marriage.
It is not easy to stand up for your beliefs against the might of arrogant and sometimes ignorant authority. It is not easy to risk your career prospects and your family’s livelihood. I know—I have been there. Lack of clarity in the law adds to the difficulty. Those with traditional views bringing discrimination claims under the religion or belief strand, usually after being mistreated for a long time, have found that their beliefs on sexual ethics were not covered. Amendment 19 would put beyond doubt that belief in traditional marriage falls under the religion or belief strand. It would not guarantee that every claim brought to court would succeed but would simply confirm that the belief is capable of being protected under the Equality Act.
Millions of people in this country passionately believe that marriage is an exclusive relationship between a man and a woman and cannot be anything else. Some believe this for religious reasons and others for non-religious reasons. Thankfully, we live in a democracy, where people are not forced to behave as if they believe something just because the law asserts it. We should all obey the laws of the land but we should also have the freedom to express our views about the fairness of those laws, particularly where they refer to dramatic social change.
When it comes to the issue of same-sex marriage, there is a real risk that people will be coerced to go along with the redefinition of marriage because there is a lack of respect and tolerance for diverse views on the matter. Other noble Lords have referred to the rather unfortunate moment in January when a draft speech issued by the office of the Deputy Prime Minister referred to people who disagreed with the Marriage (Same Sex Couples) Bill as “bigots”. He sought to make amends for the statement by saying:
“My views on this issue are no secret, but I respect the fact that some people feel differently to me about marriage”.
That was quite generous of him but it does not alter the fact that he refers to those who differed from him as bigots. The Deputy Prime Minister is not the only one to use such trenchant terms about those who oppose this legislation. Many of us have received similar abuse for defending traditional marriage.
The Government say in their fact sheet on the Bill that they are committed to freedom of speech and that they,
“have always been absolutely clear that being able to follow your faith openly is a vital freedom that we”—
the Government—
“will protect. Everyone is entitled to express their view about same-sex marriage, at work or elsewhere”.
That is a noble and good sentiment and one that we want carried into law and protected. Everyone should be entitled to hold and express their views about this important and sensitive issue without fear of punishment. We find strong support for traditional marriage among politicians of all stripes, lawyers, academics and workers from all walks of life in the private and public sectors. We find it among atheists and people of all religions, among heterosexuals and gay people. It would be sad if such opinions were muffled or silenced by a lack of clarity in the law. Not to respect and protect their ability to hold and express their beliefs about marriage would result in a tyrannical situation where there was only one acceptable view, with those with other views pushed out or mistreated. Public space must be left for those millions of people. There have already been many occasions when people who try to speak out publicly in support of traditional marriage suffer for it, even while the current law is still in place. We can be sure that unless measures are taken it will get worse if this Bill becomes law.
Baroness Thornton
Would the noble Lord care to tell the House what he thinks is a reasonable limit to the view that that gentleman should express? For example, if one substituted the word “black”, would that view then be reasonable? The policeman is publicly expressing his feelings about something. What does the noble Lord think is a reasonable way to do that? What would he think if, for example, he had used “black” instead of “same-sex marriage”? It seems to me that there must be a limit to what our public servants can express and cannot express. I would be interested to know from the noble Lord where he thinks that limit sits.
Lord Singh of Wimbledon
I am happy to answer that point. Any freedom of speech should be open. It should be there, but it should not be the freedom to denigrate anyone. That is the boundary. You can express an opinion, but if you denigrate other people that is wrong.
Lord Cormack
Surely the noble Lord will agree that all the clergyman in question sought to do was enunciate orthodox Christian beliefs. That is not in any way analogous to making racist comments.
Lord Singh of Wimbledon
I thank the noble Lord for that intervention. That is absolutely true. As a Sikh, expressing my beliefs in public should not subject me to harassment in any way. Clearly, some people have a problem respecting the beliefs of those who believe in traditional marriage. Rather than equality law protecting—
Lord Singh of Wimbledon
The amendment is not as clear as it should be. I want it to be very precise in protecting these sorts of abuses. We will come to discuss that more fully, but I personally believe that it is right and proper to air concerns at this stage.
Lord Lester of Herne Hill
Does the noble Lord know that under the Human Rights Act 1998 every part of this Bill must be construed, read and given effect in conformity with the European Convention on Human Rights? The convention fully protects freedom of religion, conscience, belief and expression. Does he also know that the noble Lord, Lord Waddington, had a great victory in this House in writing in free speech guarantees when we debated incitement to religious hatred? Therefore, so far as the law is concerned, there is no lack of clarity. It is not a question of majorities or minorities, and nor is it a question of opinion polls. Every individual is fully entitled to free speech, including the expression of views that I would deplore. I stand to be corrected if I am wrong, but I gather that Mr Clegg did not himself put out that highly obnoxious statement. It was put out by others and was withdrawn as soon as he saw it.
Lord Singh of Wimbledon
I thank the noble Lord for that intervention. I will not go too far into the Deputy Prime Minister’s views, because he then went on to say that everyone knows his views. That was a little ambiguous, and did not clarify things. It is true that many of the laws of the land in theory protect us all. In reality, those laws are not very clear. The more clarification that can be brought, the better, because many ordinary people suffer. Many ignorant people abuse those laws, or are ignorant of those laws and harass people. The more clarity we can have, the better.
To give another example, when housing associations and publicly owned venues such as the Queen Elizabeth II Conference Centre deal with people with traditional beliefs about marriage, they should treat them with respect. Yet they were excluded. If they do not treat such people with respect, they should be open to legal challenge for discrimination. When police, schools and hospitals are dealing with staff and service users, their approach to equality should include respecting those with mainstream views.
We should amend this Bill to ensure that people who, in good conscience and without a trace of malice, believe that marriage can be only between two people of opposite sexes are not disadvantaged for those beliefs, which may become minority beliefs, as has been said. They should still be allowed to have those beliefs. Amendment 19 is necessary to safeguard freedom of both belief and speech.
Lord Lester of Herne Hill
My Lords, to amplify briefly what I said before, Amendment 19 is completely unnecessary because the part of the Equality Act that it is seeking to amend defines protected characteristics in order to deal with discrimination, harassment and victimisation. In relation to those protected characteristics, it is clear beyond argument that if A is treated worse than B because of his or her opinions about sexuality, sex, marriage, communism, Sikhism, Judaism or anything under the sun, they are fully protected by the amendment that the noble Lord, Lord Waddington, made to the criminal law, and by the Human Rights Act and Articles 9 and 10 of the European Convention on Human Rights.
I am sorry that the noble Lord thinks that a Bill designed to prevent people becoming victims of unfair treatment is creating victims of unfair treatment. The fact that idiots in the public sector or private sector misunderstand it is no reason for us to have to amend this Bill to deal with such idiots. With respect, the state of the law is plain and obvious. It does not require this amendment. Were this amendment to be accepted, it would muddle up the entire concept of the Equality Act, which we took so long to get right.
Lord Singh of Wimbledon
If I may briefly respond to that, it is true that the law covers a lot of things. It does not combat ignorance. The law provides equality for Sikhs, Muslims and everyone else. When an outrage by an Islamic fundamentalist takes place, very often the target is a Sikh gurdwara or a Sikh individual. You cannot combat ignorance in that way. The more clarity we put into the law and the more determination we put into upholding the law, the better it will be for everyone.
Baroness Barker
My Lords, I will address Amendment 8 in particular. At Second Reading, I said that my early life was spent in a place where religious discrimination was the norm. It is something that I managed to grow out of—after a very long time—and which I find absolutely abhorrent. I also explained at Second Reading why, like the noble Lord, Lord Alli, I know what it is like to suffer abuse because of one’s sexuality. It is never so dispiriting as when those two things are combined. Some of the most homophobic material that is sent to me is in the name of churches. I find that more depressing than anything else.
I was raised in a religious household and I will defend the rights of people to hold religious points of view and minority points of view. I will defend their right to preach things that I find unacceptable and disheartening. I cannot tell your Lordships how dispiriting it is to listen to some preachers and to understand from their preaching how little they think of their fellow human beings, but it is absolutely their right to do that. But it is not their right to do that and to inflame hatred and violence at the same time.
I suspect that not many of your Lordships go to Gay Pride marches but I do, occasionally. Every time I go to Brighton and have a wonderful time, there is a point when we walk up the street and there is a particular religious organisation there; its members have picked that day to come and make known their opposition to gay people. The police are there protecting them because they are exercising their right to do so.
The point at which I absolutely and fundamentally part company with the noble Lord, Lord Dear, is in his Amendment 8. He is a citizen and I am a citizen. We pay our taxes. When it comes to the exercise of public services, we should have exactly the same rights provided that we are both living within the law. I simply cannot accept the statement in the amendment that the private views of public servants should enable them to treat people differently.
Finally, something that I started to do many years ago, and still do as a private discipline, is that when I listen to or am asked to advance an argument on behalf of one minority, I run through the same argument in the name of another, completely different minority. I find it a very helpful way of getting to a universal understanding of what it means to be a human being and to treat other people with dignity. It is a discipline that I recommend to all.
Lord Stoddart of Swindon
My Lords, it is absolutely necessary that some of these amendments should be on the Marshalled List. They have been discussed at length today and will be discussed further. But the fact remains that there is a perception that people will be restrained from expressing their views about marriage as a result of this Bill. The correspondence that I and many others have received show that there is a very considerable concern that people will be denied the freedom to criticise same-sex marriage when this Bill goes through—I say “when this Bill goes through” because it quite clearly will go through. Therefore, it is right and proper that this House should ensure that there are proper provisions to ensure free speech. There have been instances where free speech has been guaranteed by Ministers but not carried out by people in other walks of life and other areas of employment.
People are also concerned at the speed with which this Bill was introduced and is being rushed through Parliament. They feel that there has been insufficient public discussion of this very important Bill, which alters parts of our constitution, and that it is being rushed through and their views are not being properly taken into account. After all, we must recognise that the percentage of gay couples is 1.5% and therefore 98.5% of the population has to be taken into consideration as well. If people disagree with this Bill, they must be able to express their opposition after the Bill has been passed without fear of being dismissed or otherwise harmed by their employers or having a policeman knock at the door because they have made some off-the-cuff remark.
Baroness Thornton
My Lords, we have had another interesting and informative discussion.
I wonder how much confusion there is about the fact that when we disagree with each other, that is okay; that it is okay to disagree with each other quite vehemently; and that it is all right to express those vehement disagreements. Our view on these Benches is that the law recognises that that is exactly right. It took me back to the passage of the Equality Act 2010, when the interventions of the noble Lord, Lord Lester, made precisely the point that needed to be made about the protections that existed. Those protections do exist. The fact that they are tested from time to time, and that people on both sides do silly things with them from time to time, does not mean that they are not valid protections; they are very valid protections indeed.
We believe—and the Commons agreed in its debates—that there is no need for additional protection under the Equality Act 2010. It is not necessary. There is already protection for people’s religious beliefs in law, which encompasses views about marriage. It would also be invidious, because it would make the only specific belief that has protection under this part of the Equality Act one that defines marriage as being between a man and a woman. I will return to that.
It is worth saying that Amendment 19 would make a particular viewpoint on marriage, which could be held by people with or without religious beliefs, the only belief that was expressly protected from discrimination on the grounds of religion or belief, elevating it above any other belief. This could have exactly the opposite effect to that intended by the noble Lord, Lord Singh, since a person who believes that the definition of marriage as being between a man and a woman is wrong would also be protected. Therefore, it may do exactly what the noble Lord does not want it to do.
As I said during the debate, the Equality Act 2010 is a carefully considered piece of legislation, which balances the rights of one protected group against those of another. Sexual orientation and religion or belief are both protected characteristics under the Equality Act, meaning that it is illegal to discriminate against someone on the grounds of their sexual orientation or their religion.
The Equality Act already takes care to provide protections for the beliefs of those with a religious faith, including on issues of sexual orientation and marriage. For example, guidance accompanying the Equality Bill, states:
“In the case of Ministers of Religion and other jobs which exist to promote and represent religion, the Bill recognises that a church may need to impose requirements regarding sexual orientation, sex, marriage and civil partnership or gender reassignment if it is necessary to comply with its teachings or the strongly held beliefs of its followers”.
It is completely clear that the law already exists to protect those views and their expression. Religion and belief are protected characteristics under the Act. It means that we cannot be discriminated against for holding or expressing those beliefs. On these Benches, we did not think that the government amendment was necessary, as my noble friend Lord Alli mentioned, but we understand that the Government are acting in good faith on a commitment made by a Minister in another place. Therefore, we accept that the Government are bringing the amendment forward with the best of intentions and that it certainly does no harm. If it gives people peace of mind, that is only to be welcomed.
I will not go through the rest of the amendments because I suspect the Minister will do that extremely well—and it is nearly dinner time.
Baroness Stowell of Beeston
My Lords, I am grateful to all noble Lords who have spoken in this very important and helpful debate. May I say first that I am grateful to the noble Lord, Lord Alli, for repeating what I said at Second Reading? The Bill absolutely makes it lawful, and continues to make it lawful, for people to believe that marriage should be only between a man and a woman. It is their right to express that belief and the Bill does nothing to change that. I am also grateful to the noble Baroness, Lady Thornton, and my noble friend Lord Lester for what they said about the Equality Act protecting people who have a range of religions beliefs but in this context hold the belief that marriage should be between a man and a woman and are free to express that belief. It is important that I continue to make that clear.
I also recognise, however, that people are looking for reassurance and want to know that it is perfectly legitimate to continue to hold the beliefs that they have always held, and that they will not be in any way disadvantaged because of these beliefs—or, indeed, that it would be unfair for people to criticise them in any way, although clearly it is free for anybody to express an opinion that is contrary to that view.
As the noble Baroness, Lady Thornton, mentioned, the Government are bringing forward an amendment to the Public Order Act. I will speak to that in a little more detail when I take the amendments in turn. We felt that it was important for us to do this as we recognised the need for assurance and because it was possible to make that amendment to the Public Order Act without causing any detriment to anybody. We really do understand that people are looking to us for assurance.
The amendments have clearly enabled us to explore issues of conscience in relation to the Bill, and it is right that we should do so. Let me start with Amendment 5, which was moved by my noble and learned friend Lord Mackay of Clashfern. He seeks to explore how the Bill could impact on those seeking appointment to a public office—such as appointment to the board of a non-departmental body. The amendment seems to be based on the premise that, should the Bill be enacted, anyone expressing a belief that marriage should only be between a man and a woman might somehow be excluded from appointment to public offices.
I can reassure noble Lords that this is certainly not the case. This Bill is not about forcing people of faith to change their religious views, practices or teachings about marriage. The belief that marriage should be between a man and a woman is, and will continue to be, mainstream and entirely lawful. Indeed, the Bill explicitly makes clear that such a belief is legitimate and mainstream through the specific protections it provides to ensure that religious organisations and their representatives who do not want to participate in same-sex marriage ceremonies cannot be compelled to do so.
Public appointees, like anyone else, are and will remain free to express their religious or philosophical beliefs as long as this does not affect their ability to do their job.
Lord Anderson of Swansea
The noble Baroness is making a very important point. She will know that concern has been expressed about the conduct of various authorities in the past—certain councils, certain police authorities and so on. What assurance can she give the House, in the spirit of the assurances that she is now giving, that adequate guidance will be given to these authorities so that we do not have a repetition of how poor individuals have been pilloried in the past?
Baroness Stowell of Beeston
I am about to come to the specific examples that have been raised. I hope I will also give the noble Lord some comfort by saying that we are working with the Equality and Human Rights Commission to review its guidance and ensure that revised guidance is issued. It is also looking at its statutory codes in this area. I accept, as has been pointed out by noble Lords in this debate, that we need to make sure that public bodies in particular—although not just public bodies—are clear that it remains absolutely lawful for somebody to express their belief in this way. We want to make sure that that is clear to them. The Equality Act 2010 provides express prohibition against discrimination because of religion or belief. This includes a religious or philosophical belief that marriage should be only between a man and a woman. This protection applies in relation to public appointments and to employees.
I move on to Amendments 7 and 8, tabled by the noble Lord, Lord Dear. I am grateful for his explanation although, on the face of it, the scope of these amendments is not entirely clear. However, it would certainly include a range of public authorities and religious organisations, and would potentially extend to commercial service providers. Like the noble Lord’s amendment in the earlier group, these amendments would effectively create two tiers of marriage—a point made, I think, by the noble Baroness, Lady Turner—with marriages of same-sex couples on a lower tier. That would undermine the fundamental purpose of the Bill, which, as I made clear in earlier debates, is to extend the single institution of marriage to same-sex couples.
Of course, there are circumstances in which individuals need strong and effective protection in order for religious freedom to be safeguarded. For example, a clergyman should not be compelled to solemnise the religious marriage of a same-sex couple against his conscience. We all agree about that, and the Bill provides that protection through the explicit protections already contained in the quadruple lock.
Lord Dear
I am grateful to the Minister for giving way. I specifically did not say that. My amendment, if adopted, would certainly not lead to the sort of conduct whereby a housing manager could decide that he did not much like single-sex marriages and therefore would not allocate a house. That was quite specifically not what I had in mind. It was that the housing manager should not be punished or be at detriment for holding those views when he stood back and said, “I don’t want to get involved in this. Somebody else should make this allocation”. That is the point I was making.
Lord Brown of Eaton-under-Heywood
Before the Minister answers that, I should like to be clear on whether the noble Lord, Lord Dear, is suggesting that it is open to a registrar who objects to same-sex marriages to desist from performing a same-sex marriage.
Baroness Stowell of Beeston
I am grateful to the noble Lord, Lord Dear, for his intervention but I disagree that it is legitimate for, say, a housing officer to withhold his services or, rather, to withdraw participation in an aspect of his job on the basis of his religious beliefs, although he is absolutely within his rights to express his religious beliefs at work. In an earlier debate, the noble Lord and others, including my noble friend Lady Cumberlege, raised the case of Adrian Smith. We must not lose sight of the fact that, as my noble friend Lady Barker made clear, Adrian Smith won his case. I absolutely understand the point made by noble Lords that it is regrettable that people sometimes have to go through that process in order for the law to be made clear, and I wish that that never happened. However, I am grateful that the law exists, so that somebody with a strong case that they are being unlawfully discriminated against can be successful in bringing a case, as illustrated by that example.
In this area, it is also worth referring to another example—raised, I think, by the noble Lord, Lord Dear, but certainly by others—concerning the Reverend Brian Ross, who was a volunteer police chaplain for Strathclyde police. It is difficult to comment on an individual case without knowing the full facts but the religious protections in the Bill make it clear that belief that marriage should be between only a man and a woman is legitimate and mainstream.
The amendments of the noble Lord, Lord Dear, also appear to have the effect of elevating the belief that marriage should be between only a man and a woman over all other religious or philosophical beliefs which people hold and which are deserving of equal respect under the law. A belief that marriage should be between a man and a woman is undoubtedly worthy of respect in a democratic society. As such, it is already protected under the religion or belief protections in the Equality Act 2010 and under Article 9 of the European Convention on Human Rights. It is therefore unlawful to discriminate against someone simply because they hold this belief.
The determination of whether there has been unlawful discrimination under the Equality Act is always a matter of balance, depending on the facts of the case. The noble Lord’s Amendments 7 and 8 would, I believe, disrupt that balance. An employer must be able to insist that employees carry out their work in a reasonable and professional manner. If, for example, a chauffeur for a commercial car hire company arrived at a wedding and decided that he would not drive the couple because they were of the same sex, that would amount to unlawful discrimination and would leave the employer open to a claim on that basis. It would also affect the employer’s business. It is right that the employer should be able to take action against the employee in those circumstances. However, Amendment 7 would prevent the employer doing so and therefore I believe that it goes too far.
Baroness Cumberlege
I am very interested that my noble friend has touched on the commercial world. Can she comment on the Christian organisation that had its conference at the Queen Elizabeth II Conference Centre banned with less than a day’s notice because the organisation’s support for traditional marriage was deemed to contravene the centre’s diversity policy?
Baroness Stowell of Beeston
Yes, my Lords. I would have come to that once we reached a later amendment. My noble friend Lord Waddington also raised that as an example but I shall deal with it here. Unfortunately, I understand that these cases are the subject of ongoing litigation, so it would not be appropriate for me to comment on them. However, the Equality Act protects against discrimination because of religion or belief in the provision of services. I regret that I cannot comment on that specific point but, again, I stress that the law is clear in this area.
Lord Elton
I am sorry but I am not sure that I follow the noble Baroness. The law is clear that this should not have happened. Is that right or in what respect is it clear?
Baroness Stowell of Beeston
I am afraid that it is not possible for me to respond directly to that question because the case is still live and subject to litigation. I hope that my noble friend will forgive me.
Amendment 8 in the name of the noble Lord, Lord Dear, seems to be aimed at addressing concerns aired here and in the other place that public authorities might overreact to expressions of belief in traditional marriage. This was raised by the noble Lord, Lord Anderson. Not only would the amendment require public authorities to treat people fairly but it would impose a specific duty in respect of this one belief, which could result in the marriage of same-sex couples being placed on a lower tier or being considered as somehow not of the same status as marriage of opposite-sex couples.
Together, Amendments 7 and 8 would allow the owner of a hotel approved for the solemnisation of marriages to refuse to host marriages of same-sex couples, and the registration authorities and even the courts would have to allow him to do so. We believe that that would be both confusing and wrong.
Amendment 9 would also require those exercising public functions to consider a particular belief about marriage, regardless of the function being exercised. This would be overburdensome and unnecessary. How would this be relevant for a person exercising parking or traffic enforcement functions or a person exercising functions relating to rubbish collection?
Another difficulty arising from both these amendments is that, by focusing on protecting a particular belief about marriage, they could cast doubt about the protection afforded to people who hold similar views on other issues, such as civil partnerships or same-sex relationships generally. Such a focus could suggest that such views were not protected by the Equality Act. The point there is basically that, if we are specific about this but not specific about other things, arguably we are then putting other beliefs in doubt.
We believe that the proper way to consider issues of protection of conscience in relation to people who exercise functions connected to marriage is to do so in each particular context: civil registration, employment, religious organisations and so on. That is what we have done. We will shortly debate the amendment from my noble friend Lady Cumberlege, which would introduce a conscience clause for civil registrars.
In the preparation of the Bill and during the debates here and in the other place, we have listened to concerns about whether the protections could be strengthened. One thing that we have done is to amend the Bill to provide additional protection for employed chaplains—for example, hospital or university chaplains—who do not wish to carry out or participate in the religious marriage ceremony of a same-sex couple.
Amendment 19 from the noble Lord, Lord Singh, seeks to amend the religion or belief provisions in the Equality Act to make explicit that a belief that marriage should be between a man and a woman is included within it. I am pleased to reassure the noble Lord that there is no need to change the Equality Act in the terms set out in the amendment. Amending the protected characteristic of religion or belief by specifying a particular belief about marriage would cast doubt, as I have just said, on other religious or philosophical beliefs that are also protected by the Equality Act, and could therefore lead to confusion about how the protected characteristic of religion or belief is generally protected.
Moving to Amendments 53 and 54, Amendment 53 is a government amendment, similar to one debated in the other place in Committee and on Report. The Government gave a commitment on Report in the other place that we would come back with our own amendment, and I am happy to do so now. This amendment is intended simply to put beyond doubt that the Public Order Act 1986 offences regarding stirring up hatred on the grounds of sexual orientation do not outlaw the reasonable expression of the view that marriage should be between a man and a woman, which remains a perfectly legitimate view. It is appropriate to make this amendment because there is already a similar provision in Section 29JA of that Act concerning discussions about sexual conduct or practices. The current wording of Section 29JA would not however cover discussion of same-sex marriage, and that is why we are making the amendment. It is conceivable that some people might be in doubt as to whether discussions of same-sex marriage were to be treated differently from discussions of sexual conduct and practices, in so far as those two topics are linked. For example, my noble friend Lady Barker referred to the demonstration in Brighton by a church on the day of the Gay Pride march. If the church wanted to demonstrate against same-sex marriage, it would be perfectly lawful. This amendment makes that clear. However, let me at the same time be absolutely clear and reassure the House that this amendment does not allow hate speech. If the manner in which something is expressed is threatening and intended to stir up hatred, that would still be an offence. The amendment refers to the content of what is said, not the manner in which it is said. It makes clear that that subject matter is a legitimate one for discussion and it is right to do that only because there is an existing provision covering discussion of sexual conduct or practices.
I turn briefly to Amendment 54 in the name of my noble friend Lady Berridge.
Baroness Stowell of Beeston
Yes, I can confirm that it relates only to criminal law.
Returning to Amendment 54 from my noble friend Lady Berridge—
Lord Lester of Herne Hill
Can my noble friend confirm, so far as the civil law is concerned, that what I said about the Human Rights Act, freedom of speech and freedom of religion applies equally to the civil law?
Baroness Stowell of Beeston
Absolutely. I am grateful to my noble friend for making that clear and glad to confirm that he is right.
I cannot accept Amendment 54 because the drafting could give the impression that the law is not to be applied even-handedly, which I know is not what my noble friend intended. It also goes further than we believe is necessary. I hope she will agree with me that our own amendment meets the need.
I therefore ask my noble and learned friend Lord Mackay of Clashfern to consider withdrawing his amendment.
Lord Singh of Wimbledon
Earlier the noble Baroness mentioned that if a chauffeur turns up at a wedding and will not take part any more because he finds that the people involved are gay, then the employer has some legitimate grounds for disciplining them. Suppose that same person had expressed a view, within the confines of his employment, that he thought gay marriage was wrong and was then asked to go on this particular trip, what would be the view then?
Baroness Stowell of Beeston
The chauffeur would be entirely legitimate in expressing the view, whether at work or outside work, that marriage should be only between a man and a woman. However, as I said to the noble Lord, Lord Dear, in the context of the example of a housing officer, it would not be legitimate for the chauffeur to withhold or withdraw from his employment, in terms of what he is paid to do, on the basis of that belief. His employer should be able to pursue that in a way he felt appropriate because he had employed that person to chauffeur people in accordance with the way in which such services are offered commercially.
Lord Singh of Wimbledon
I am sorry but the point I am making is: if the employer had deliberately asked that person to do something, knowing it was against his conscience, what would be the view?
Baroness Stowell of Beeston
He may have only one driver. It may be a very small firm and the only driver available is that driver. It is not possible for us to legislate. The employer might turn around and say that he has a team of people and that he is quite happy with that arrangement. Outside a public authority, I cannot give the noble Lord a definitive response to the kind of scenario that he is painting. It is absolutely clear that it would be legitimate for that person to express their view, but not for them to say that, because they hold that view, they therefore do not have to do what they are employed to do. I hope that is clear for the noble Lord.
Lord Anderson of Swansea
Would it be legitimate for an employer to dismiss from employment as a chauffeur someone who had expressly told him at the time of employment that he was not prepared to convey people at a same-sex marriage?
Baroness Stowell of Beeston
We are now getting into so many different hypothetical scenarios—
Lord Lester of Herne Hill
Before the Minister answers that question, I wonder if I can give some free advice. The answer to that question is fact-sensitive. It all depends on the terms of engagement. There are cases that uphold freedom of conscience in certain situations but no one can give a categorical answer without knowing the facts of the particular case. There are plenty of former judges here to nod their disagreement if what I have just said is wrong.
Baroness Stowell of Beeston
I think I will take my noble friend’s free legal advice and refer the noble Lord, Lord Anderson, to it. On that basis, I hope that I will be able to convince my noble and learned friend, who is also a very experienced lawyer, to withdraw his amendment.
Lord Mackay of Clashfern
My Lords, I have been waiting for some time to intervene to prevent my noble friend having to answer all these questions but the priorities of the House required me to give effect to those who wanted to speak. We have had a very full debate and I thank my noble friend for the very detailed answers she has given on all the issues that have been raised. I am sure we will want to read very carefully what has been said. In the mean time, I am extremely happy to withdraw my amendment.