Baroness Royall of Blaisdon
My Lords, I appreciate that this is a probing amendment, but it has thrown up some interesting questions from the noble Lord, Lord Martin of Springburn. I believe that the proposal in the amendment would be an unnecessary additional hurdle for religious organisations. The legal protections in the Bill relating to the opt-in process, combined with the protections under the Equality Act 2010, are in our view perfectly sufficient to protect religious organisations that decide not to opt in to same-sex marriage from legal challenge.
I suggest that the process Amendment 6 proposes would have the effect of interfering in the internal governing processes of religious organisations. It would allow governing authorities to bind future authorities’ decision-making abilities by placing additional barriers in the way of their taking a decision to opt in to same-sex marriage in the future. I am also concerned that such a system could stifle the ability of a religious organisation to respond to the changing nature of its religious community. In addition, we believe it to be unnecessary in the light of the legal protections afforded by the opt-in system in the Bill as well as by the existing legal framework.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I am grateful to the noble Lord, Lord Martin of Springburn, for giving us an opportunity to debate the substance of this amendment as well as the specific points he raised. I substantially agree with the point made by the noble Lady, Baroness Royall. I even suggest that this would be an additional bureaucratic burden. We believe that the provision is not necessary. There is no need for any religious group to take any action whatever if it does not wish to solemnise the marriages of same-sex couples. Unless a group takes the positive step of opting in, it will not be able to solemnise the marriages of same-sex couples.
I take this opportunity to make it absolutely clear that there is no requirement in the Bill to opt in. That is the position in the Bill as currently drafted. If there was a list it could lead to some confusion if, for some reason, a religious organisation did not apply to be recognised on it. Therefore, not only is it not necessary, it could have unintended and undesirable side-effects.
In answer to the noble Lord, Lord Alli, the position with regard to shared buildings is that the requirement for all religious organisations formally sharing a building to consent to registering that building for the marriage of same-sex couples is a vital protection. It allows religious organisations to choose to conduct same-sex marriages and helps to protect those that do not wish to do so. We are giving religious organisations the option of consenting to the registration without having to agree to conduct marriages themselves. This provides a way in which each organisation can respect the beliefs of the other. The Bill is not only about choosing to conduct same-sex marriages but about protecting religious freedom. We are seeking to ensure that the protections provided by the giving of consent in the main opt-in also apply to organisations that happen to share their buildings.
I am not sure that that fully addresses the point but the basic structure is that if there is a sharing arrangement—and there is statute for church buildings to be shared—and one religious organisation decides not to opt in and does not consent to the registration of the building for same-sex marriages, same-sex marriages could not take place there. Alternatively, the religious organisation could consent to the building being used for same-sex marriages although it would not itself permit same-sex marriages. But I will look carefully at what the noble Lord, Lord Alli, said and if he feels that I have not addressed the point, I will certainly write to him.
The noble Lord, Lord Martin, raised two very interesting issues. My understanding is that the position with regard to marriages in the Church of Scotland—it is not just St Columba’s, Pont Street and Crown Court in Covent Garden; there are Church of Scotland congregations in places such as Corby, I think—is that marriages solemnised by the Church of Scotland in England and Wales are under the law of England and Wales and accordingly the procedures set out in the Bill regarding the opting-in by religious organisations would apply to the Church of Scotland. That would ultimately be a matter, I suspect, for the General Assembly of the Church of Scotland. Obviously, what happens with legislation north of the border is a matter for the Scottish Government. I understand that they plan to publish a Bill relatively soon. Of course, there is a difference between marriage in Scotland and in England: in Scotland it is a licensing of those who perform marriage as opposed to the place of marriage being of crucial importance with regard to religious organisations, as in England.
That takes us on to the question of St Mary Undercroft in the Palace of Westminster. The noble Lord, Lord Martin, said that his understanding was that a marriage there could be solemnised only by the rites of the Church of England and by a Church of England priest. That is certainly my understanding. I had a colleague who wished to be married by a Church of Scotland minister there and had to have a civil ceremony beforehand and then have a blessing by a Church of Scotland minister—so much for humanism. It would not be possible under this Bill for the marriage of a same-sex couple to take place in St Mary Undercroft using the rites of the Church of England. The marriage of same-sex couples according to the rites of the Church of England can take place only when the General Synod of the Church of England and Parliament pass the appropriate measure; it would be a matter for them. The Chapel could not be used for the marriage of a same-sex couple in accordance with other religious rites unless it had first been approved as a place of worship and then registered for the solemnisation of same-sex marriages with the consent of the relevant authorities.
What may have triggered what the noble Lord read in the newspapers is that this matter was raised in debates in the House of Commons and the Parliamentary Under-Secretary of State at the Ministry of Justice, Helen Grant, made a commitment to consider the matter in Committee. Officials made contact with the Office of the Lord Great Chamberlain to clarify the position on this issue. It is clear that the use of the Chapel is not a matter for the Government but for the Church of England and the House authorities.
Lord Martin of Springburn
I thank the noble and learned Lord. That clarifies the matter. So once again the papers have got it wrong and the true story is that clarification was sought from the Lord Great Chamberlain and the case is perhaps as I stated it, but no Minister has made any approach to seek to get the Crypt—as we call it—turned into a prayer room rather than a church.
Lord Wallace of Tankerness
The position is as I understand the noble Lord to have described it: to my knowledge and that of my noble friend, no Minister has made an approach of the kind the noble Lord describes. As I indicated, the issue having been raised in Committee, the Minister Helen Grant undertook to consider it. Officials approached the Office of the Lord Great Chamberlain—possibly not the Lord Great Chamberlain himself—to seek clarification, and the position on the use or non-use of St Mary Undercroft is as I have set out. I hope that gives clarity.
Baroness Thornton
My Lords, these amendments are very similar to those we debated before the dinner break and, in a way, similar to the ones that we will be debating next concerning registrars and public servants. Our view is that the equality legislation—and freedom of thought, speech and belief protected by that legislation—covers these points. I can see why the noble Lord may wish to probe that, and I am sure that the Minister has more than adequate answers to it, but we do not think that the amendments are necessary.
Baroness Stowell of Beeston
The amendments of the noble Lord, Lord Dear, provide an opportunity for me again to make clear what is allowed under the law in terms of belief and expression of belief. I do not accept his argument that the law deals only with conduct and not with freedom of speech, because it explicitly does. People are clearly able to express themselves, to hold religious beliefs and express those beliefs, and to do so freely. Nothing in the Bill restricts anyone’s right to express a view on marriage or anything else.
As I said before, I understand that some people are uneasy about the impact of the important change that we are making in the Bill by extending marriage to same-sex couples, but they really have nothing to fear. The law is clear. I understand that there is concern out there but it is my job here to respond to that and to say as clearly as I can that in law there really is nothing to fear. The Equality Act 2010 works in a balanced way to ensure that reasonable discussion of any topic is not restricted. The law comes into play only if someone is subjected to a detriment or is harassed because of a protected characteristic.
The noble Lord’s amendments would provide that a person other than a registrar, superintendent registrar or the Registrar General may not be compelled to express agreement with a religious marriage ceremony of a same-sex couple. Nothing in the Bill or elsewhere requires anyone to express support for marriage of same-sex couples, nor is there anything that prohibits disagreement with same-sex marriage. Nothing requires religious ministers or teachers—if that is what the noble Lord has in mind—or anyone else to express agreement with religious marriage ceremonies of same-sex couples. Religious ministers are free to preach about their views of marriage and those of their faith, and teaching must be factual and appropriate, but that does not involve teachers having to say they believe things that they do not believe.
Expressing disagreement with something is not in itself harassment or discrimination under the Equality Act. Under that Act, it is how people are treated that matters. Accepting this amendment would risk creating doubt as to whether other topics of conversation, such as views on civil partnerships or homosexual relationships generally, need similar protection.
As we have already discussed, we have amended the Public Order Act. I covered that in great detail in previous debates and I shall not go over it again. I can only conclude by saying that the amendments are unnecessary and potentially damaging to the balanced way in which the Equality Act protects people from discrimination and harassment. For those reasons, I cannot accept the amendments. I hope that I have been able to give the noble Lord the assurance that he is looking for and that he feels able to withdraw the amendment.
Baroness Stowell of Beeston
I think it is both. They are not necessary and by being specific in this way, as I tried to explain, we create doubt about people expressing other views that are not spelt out. Once we become specific, arguably we remove people’s protection to say other things that they are legitimately able to, because the law does not out spell out specifically that they are protected in doing so. There is a potential risk there with the amendments as well.
Baroness Thornton
My Lords, the noble Lord, Lord Elton, is of course right. It is time we moved on and went home.
Amendments 11 and 11A remove registrars’ exemption from the list of individuals who may not be compelled to perform same-sex marriage, meaning that the registrars would have the right to refuse to solemnise same-sex marriage. Amendment 16 provides for registrars to refuse to perform or be involved in performing same-sex marriage on the ground of sincerely held belief. However, it places a corollary duty on the registration authority to provide a sufficient number of registrars to perform marriages of same-sex and opposite-sex couples.
I agree very strongly with my noble friend Lord Alli, the noble and learned Lord, Lord Brown, and the noble Baroness, Lady Barker, who got it just about right. I find it strange that noble Lords are rubbishing the public statement from the national panel for registration because they do not like it. The national panel is a national association of registrars which said that it consulted during the consultation on equal marriage among its members and has given us its legitimate view, for which I am very grateful, as it is very helpful. Noble Lords should hear what that statement says, which is that the national panel is not asking for a conscience clause on the conduct of equal marriage.
I am also slightly puzzled about the evidence from the Joint Committee on Human Rights, which I read over the weekend. For once the committee is very ambiguous about its thoughts on this. Some noble Lords who have spoken today are also on the committee and clearly have very strongly held views. I respectfully suggest that if the committee wants to be more decisive, it needs to go back and have another look at this. I am not sure that the views that it has taken so far have helped the House. If it has reached that position, we need to look at its evidence and see it for what it is—an ambiguous report.
This amendment goes against the principle that we upheld consistently—and voted for—when we were in Government that public services should be delivered in accordance with the laws passed by Parliament and without discrimination. Freedom of belief is a hallmark of democracy and individuals should be able reasonably to express views that relate to same-sex marriage in a professional manner. Public services should also be delivered in a non-discriminatory way.
Registrars provide a public service, implementing the marriage laws as passed by Parliament. Registrars have never previously been given an opt-out on things like performing civil partnerships or remarrying divorced couples—even on the grounds of profoundly held religious belief. Registrars are public servants and it is right that they have a duty to dispense their responsibilities and to deliver services without discrimination. The recent case of Ladele at the European court—a registrar who wanted an opt-out from performing same-sex civil partnerships—shows that in this respect UK domestic law stands up to the challenge under European law. The court found that Mrs Ladele could be required by her employer to register civil partnerships. Performing same-sex civil marriage ceremonies should be no different.
On Amendment 16, I am very pleased that the noble Lord, Lord Elton, seems to recognise that the risks I drew to the attention of the House are legitimate. Notwithstanding that the noble Lord, Lord Martin, and my noble friend Lord Anderson disagreed with me, surely it is our job to test legislation and the amendments to legislation to see whether they pose risks or have unintended consequences. It is very clear that this amendment could open the door to the conscientious objection of registrars to performing civil marriages on a range of issues beyond the gender of the parties, involving, for example, the remarrying of divorced couples or interfaith relationships. We believe that this is an unacceptable risk.
Maria Miller has written that the locks in the Bill specifically exclude,
“registrars and superintendent registrars, making clear that these public servants will have to be ready to take part in marriages of same sex couples. We need to ensure that we strike the right balance between an individual’s right to express their religious beliefs at work and the rights of people not to be discriminated against because of sexual orientation, and we think that the Bill properly draws that balance. The recent case at Strasbourg of Ladele ... showed that in this respect, UK domestic law stands up to challenge under the Convention”.
The Secretary of State is right and we should not accept these amendments.
Lord Wallace of Tankerness
My Lords, I start by thanking my noble friend Lady Cumberlege for introducing this amendment, which has certainly given rise to a good debate. There are clearly some strongly held views on both sides and some powerful arguments, too. I have listened carefully but it is important that I set out and clarify the Government’s position. The noble Baroness, Lady Thornton, has just quoted the Secretary of State, so it may not come as a huge surprise but it is important to give the reasons why we take that view. As the noble Baroness indicated, it is a view that was argued on behalf of the United Kingdom in the European Court of Human Rights in the Ladele case, and the court found that our law at present regarding civil partnerships falls within what is legitimate under the European Convention on Human Rights.
Marriage registrars are public officials performing statutory duties on behalf of the state. We believe that it is an important principle that they should perform their duties in accordance with the law, as decided by Parliament, and without discrimination. I noted—I hope reasonably accurately—what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said: that public servants should, with very limited exceptions, serve the public according to the law as democratically decided. That is fundamentally the Government’s position. If this Bill is passed, the marriage of same-sex couples will be lawful in England and Wales, so marriage registrars must perform their duties in relation to the solemnisation of marriages between both opposite and same-sex couples, without discrimination.
I paid attention to the parallels made with areas such as abortion and conscientious objection in religious education, which were powerfully and sincerely argued. However, it is too simplistic to draw a parallel between a conscientious objection regarding a doctor not performing an abortion and one where a registrar seeks conscientious objection not to perform a same-sex marriage. They are not comparable. For some people with a very strong religious conviction the right to life is paramount and in such circumstances, the argument that the state should not require them to act against their conscience is highly persuasive. I do not think that anyone would reasonably say that same-sex marriage can be seen in the same terms. That was picked up by the noble and learned Baroness, Lady Butler-Sloss, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and my noble friend Lady Noakes.
The most significant difference in terms of the Abortion Act exception is that medical staff do not discriminate on the basis of their patient’s personal characteristics. They do not pick and choose which patients to treat on that basis; for example, on the basis of a particular person’s race or religion. The exception being sought for registrars does precisely that, on the basis of the couple’s sexual orientation. Moreover, for medical staff who object to taking part in abortions that is only a small part of their daily duties, but for a registrar conducting marriage ceremonies, conducting marriage ceremonies is at the heart of what they do.
Reference was also made, not least by the noble Lord, Lord Browne of Belmont, to teachers. I understand that the exception there is not framed as a conscience clause, as such. The provision relating to the ability of teachers to opt out of teaching RE is set out in Sections 59 and 58 of the School Standards and Framework Act 1998. These specify that if you teach at a non-faith maintained school, you are not required to teach RE and cannot suffer any detriment because of that refusal. If you teach at a foundation or voluntary-controlled faith school and are not a reserved teacher, you are not required to teach RE, and, again, cannot suffer any detriment because of that refusal. If you teach at a voluntary-aided faith school, refusal to teach RE in accordance with the religious tenets of the school might well affect your remuneration or promotion, or you might not be employed in the first place. Unless a teacher is specifically appointed to teach religious education they cannot be compelled to do so, regardless of whether they are an atheist or not. Therefore, while I hear the arguments and understand where they are coming from, the parallels are not particularly helpful in dealing with what we are discussing.
The Government are clear that in extending marriage to same-sex couples, the Bill should protect and promote religious freedom. That is why, as we heard again today, it contains a quadruple lock of religious protections. However, the functions performed by marriage registrars are civil in nature. This is also the case in relation to their functions when they have a role in religious marriage ceremonies, such as taking notice of marriages, issuing certificates and being present in cases where there is no authorised person. I am grateful to my noble friend Lord Carlile of Berriew for describing what can happen when making an appointment, and later with the ceremony. Some would say that the example given by my noble friend Lady Barker would be unlikely, because by that stage people would know what was about to happen. Nevertheless, it could still be the case that someone would turn up for their initial appointment and suddenly find themselves met by someone who refuses to see them and take their details. The personal hurt that that could cause should not be underestimated.
Lord Elton
My Lords, the protection extends to conducting the marriage, not preparing for it.
Lord Wallace of Tankerness
My Lords, following that logic, surely a conscientious objection must be as much to facilitating a marriage as performing it—otherwise, it puts into question what the nature of the conscientious objection is.
As public officials, marriage registrars must perform their duties for all members of the public, without discrimination on grounds of sexual orientation or any other matter. They should not be able to pick and choose which members of the public they provide their services to. Amendment 16 refers to,
“consent to the taking place of, a relevant marriage ceremony to which he has a conscientious objection … The conscientious objection must be based on a sincerely held religious or other belief”.
The noble Lord, Lord Alli, and my noble friend Lord Carlile of Berriew picked up on the point that that could include the marriage of divorcees. No doubt the right reverend Prelate will correct me if I am wrong, but certainly until relatively recently it was the position of the Church of England that it would not marry divorcees. Therefore, in many cases divorcees who could not marry had little choice but to go to a registrar. If the registrar adopted the same religious view as that taken by the Church of England and sought exemption through conscientious objection, it would beg the question of how the couple could ever find someone to marry them unless perhaps they found a non-Church of England church that would be willing to do so. The door is open to that kind of religious and conscientious objection. It is not a reasonable position that a public official should refuse to provide a service to a member of the public.
The right reverent Prelate the Bishop of Hereford and my noble friend Lady Berridge referred to the fact that the JCHR had reported on this. I rather share the view of the noble Baroness, Lady Thornton, that the position is slightly mixed. This is not a criticism, because clearly the committee heard difficult, competing evidence, and no doubt competing views such as those heard by the Committee this evening. Of course, the Government will give a considered response to the JCHR. It is a very tight timescale, but we would aim to do so before Report. I hope we can do that.
The Government are confident that the Equality Act 2010 provides the right balance between protecting the right of freedom of expression and the right to manifest one’s belief, alongside the need to protect the rights of others. As was said on a number of occasions in this debate, the European Court of Human Rights, in the Ladele case, supported this view. I will not go over all the details; they were well rehearsed. The United Kingdom refuted the case put by Ms Ladele when she went to the European Court of Human Rights. We argued that our law strikes the right balance between an employee’s right to express their religious beliefs at work and the rights of people not to be discriminated against because of sexual orientation. We believed our law was compatible with the convention and that the Court of Appeal made the right decision under domestic law and the convention, given the particular circumstances of the case. As has been noted, the Court of Human Rights generally upheld that view and noted that the court generally allows national authorities a wide margin of appreciation when it comes to striking a balance between competing convention rights. It held that the national authorities in this case, the local authority employer and the domestic courts, did not exceed that margin of appreciation available to them.