Marriage (Same Sex Couples) Bill
(10 years, 10 months ago)
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Lord Curry of Kirkharle
““recognised” means recognised according to the ordinary customs and usage of the organisation and in the event of a dispute between the members over which person or persons are recognised for the purpose of giving consent for the purposes of this section, the Secretary of State shall consult all members of the relevant religious organisation to determine which person or persons are recognised, and this shall include power to order a ballot of members in which a quorum of 66 per cent shall be required and recognition shall be determined by a majority vote;
“members” means those whose names have appeared on a formal membership roll kept by the relevant religious organisation for a period of at least 12 months prior to written consent being given, and if no such roll is kept, then the members shall be deemed to be those who have attended worship at the place of worship for a majority of services of worship during the 12 months prior to written consent being given.”
Lord Curry of Kirkharle
My Lords, I am deeply concerned about the potentially divisive nature of this Bill. Mention was made a number of times at Second Reading and has been made again in the two days when we have been considering amendments of the serious potential for unintended consequences. We need to consider this very carefully indeed. There is a huge risk that faith communities and church congregations find themselves in dispute as a consequence of this Bill where no dispute existed previously.
Given the strong differences of views on same-sex marriage, there is enormous scope for minority elements within congregations to seek to register premises for same-sex weddings against the wishes of their denomination or majority. The vague drafting of this clause leaves too much to chance. Under the Bill as drafted, it is not clear what “recognised” actually means. What does it mean for members of a religious organisation to recognise an authority that is competent to give consent on this issue? Who are the members of a religious organisation? It is impossible to catalogue the variety of ways in which churches and religious bodies identify their membership. What mechanisms are local authorities and courts to use in attempting to address this question?
The governance arrangements that exist within different churches can be quite complex and sometimes unclear. Some churches may require a member to have fulfilled a formal process. Some will use written lists. Others will use an electoral roll. Even these lists might not reflect the number of people in attendance at any meeting. Some churches are structured in such a way that it is considered best not to have a formal system of membership. Church structures are very complicated. It is possible for the situation to become confusing, with claim and counterclaim being made about who possesses authority to speak for the organisation in binding its membership to conducting same-sex marriages.
There will be huge pressure on churches which do not want to opt in. Local authorities may be strong advocates of same-sex marriage and may happily take the consent of a liberal faction as being binding on the whole organisation. It is necessary to set out clear statutory principles to handle inevitable disputes. Local authorities must hold the tools to assess or reject applications to register a building for same-sex marriages, but the local registry office that receives the application has no legal basis on which to determine an application.
It could be very easy to register the church for same-sex marriages, just by the proprietor making an application accompanied by something that seems to show consent. Consent may be given by a wing, a faction, a sub-committee of a denomination, but that does not mean they are representative or legally and morally competent to give consent. It is not clear what constitutes evidence of consent? Under the Bill, a letter is sufficient, but given the internal complexities involved, have the Government considered any additional requirements to verify the issue of consent? Is there any guidance on the consequences of the local authority wrongly approving an application?
It is unrealistic to expect that all local authorities will have a grasp of the internal politics and structures of every religious body. Without a clear framework they will not have the ability to ascertain who exercises the proper legal responsibility for such decisions within each of a wide range of churches with their innumerable variations of governance, locations, interests, hierarchies and systems.
The purpose of Amendment 20 is to define “recognised” and “members” and the consent that would apply to issues on registering buildings, filling gaps in the Bill and reducing the potential for problems down the line. It promotes consistency across the boundaries of different local authorities. It provides mechanisms for achieving clarity when there are opposing claims about who is legally able to speak on behalf of a particular church or faith organisation.
The amendment makes it clearer whether applications are in line with the respective church’s typical decision-making methods. Because of the sensitivities involved, in the event of an unresolved dispute, Amendment 20 would require the Secretary of State to become involved and therefore establish a uniform approach across central and local government. The Government have created the problem by their drafting, so they should take ultimate responsibility for solving individual problems that may arise.
If it is evident that proper processes have been ignored or deliberately manipulated, the Secretary of State should have the power to order a ballot of church members, as set out under the amendment. In such a ballot, a majority vote of two-thirds would be required to authorise the religious body to either opt in or opt out of the same-sex marriage registration system. This, of course, may come with its own complications, which is why it is so crucial to attempt to define in statute what constitutes membership.
Two words have been repeated again and again in debate on the Bill: “divisive” and “discriminatory”. It is possible that, despite reassurances, if the Bill is introduced, it will create more discrimination than it seeks to solve and cause divisions where none existed before. The amendment proposed by the Minister—Amendment 21—is helpful but it needs to go further. I hope the Minister will give this amendment very serious consideration.
Lord Singh of Wimbledon
My Lords, I rise to speak in favour of Amendment 22, which is in my name. Very detailed consideration has been given to the impact of this legislation on the Christian and Jewish religions. However, no consideration whatever has been given to the difficulties that may arise for other faiths. Can the Minister enlighten the Committee as to why members of other faiths, each more numerous than the Jews, are being treated as if they did not exist? Was this omission inadvertent or was it thought that newer faiths in this country were less important? Either way, the less than favourable treatment of other faiths, including my own, appears to contravene both the Equality Act and human rights legislation. It seems that some minorities are more equal than others.
The substance of my amendment is best understood through a little story, which is true. An opinion pollster knocked on the door of a house in Birmingham and asked, “Do you belong to an organised religion?”. A man in a turban responded, “No, I’m a Sikh”. Sikhs do not easily submit to authority. The day-to-day management of each gurdwara is by democratically elected committees. There is no hierarchy of authority in the Sikh community other than the democratically elected Shiromani Gurdwara Parbandhak Committee in Amritsar, which, after years of deliberation in the middle of the last century, produced what we call the Rehat Maryada—the Sikh code of conduct, which gives definitive and universally accepted guidance on Sikh marriage, defined as the union of a man with a woman.
I head the Network of Sikh Organisations UK—the NSO—which is the largest umbrella body of Sikhs in the UK, with over 130 affiliated members. Its purpose is to facilitate co-operation between gurdwaras in promoting Sikh values and living true to Sikh teachings. However, neither it nor any other organisation in the UK has any authority to vary the Sikh Rehat Maryada. Amendment 22 is necessary to make this position absolutely clear to the relevant authorities.
Baroness Barker
My Lords, I have been listening with great care to many of the arguments which the noble Lord, Lord Singh, has made during this debate, not least because his is a voice that has not been heard for very long in this House. I will take away and contemplate at greater length his statement in one of our earlier debates that it is not the job of religious organisations to adapt to modern society.
I listened very carefully during our deliberations on Monday, and the noble Lord, Lord Singh, indicated that he spoke for all Sikhs. I asked some other people what they thought about that. They said that in many ways, the organisation is as he described in that different gurdwaras do have some autonomy, although there are common principles around which members of the Sikh faith coalesce.
However, there is one group, called Sarbat, which is a lesbian and gay Sikh group. It takes a very different view of this legislation from the one that has been put forward by the noble Lord, Lord Singh. It is not my job, or the job of this House, to determine who is right and who is wrong. However, I do think it is for this House to note that there are different opinions within his religion, which is not surprising as there is a great variety of opinions within the religions to which many of us belong. I wanted to put that on record, and this seemed like an appropriate point to do so.
Lord Singh of Wimbledon
I did not say that it was not the job of religions to go along with society. Religions are formulated and their purpose is to give a sense of moral direction to society that, being human, we sometimes lose. It is to remind us of basic values, such as concern for others before concern for yourself. That should not be subject to public opinion, which today is becoming very much about “me and my rights”. Looking to others is very much a part of religion.
As to the other aspect of fringe groups within the Sikh religion, there are such groups. I am talking about the tenets of the Sikh religion as enunciated in the Guru Granth Sahib, the teachings of the gurus, and the code of conduct derived from that. That is the code which 99.9% of Sikhs follow.
Baroness Barker
I do not wish to enter into what I think is something of a distraction. I agree with the noble Lord, Lord Singh, about the role of religion. I merely make the point that the rest of us do not live in a moral vacuum. The rest of us also subscribe to values, some of which are very strong and which he would be familiar with and would share. I simply wish to point out that within his faith, as with all faiths, there are different shades of opinion, and I think the House should be cognisant of that.
Lord Singh of Wimbledon
Again, I have not for a moment said that the rest live in a moral vacuum. I simply stated what religion is all about, because that seems to have been lost in this debate. Very often the debate is religion against society, and it is not that.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I will address the amendments moved by the noble Lords, Lord Curry of Kirkharle and Lord Singh of Wimbledon, in a moment, but I start by speaking to government Amendments 21 and 51. Government Amendment 21 specifies the relevant governing authorities for giving consent to same-sex marriages according to the rights and usages of the Jewish religion. It replaces the provisions currently in the Bill with a definition that reflects the current arrangement for the Jewish community.
During the Committee evidence sessions in the other place, Sarah Anticoni of the Board of Deputies of British Jews’ Family Law Group referred to drafting issues which it had brought to the Government’s attention. This amendment is the result of discussions with the Board of Deputies of British Jews about those drafting issues, and the Government are very grateful to the board for its helpful and constructive contribution to the completion of this amendment, despite representing a wide range of views on same-sex marriage.
The Marriage Act 1949 already provides a definition of “secretary of a synagogue” in respect of the registration of Jewish marriages. This is because the Jewish religion already has specific provisions for its marriages in the Marriage Act which date back to 1753. This amendment ensures that the new provision in respect of the relevant governing authority reflects the modern structure of the Jewish community.
Government Amendment 51 provides that, where a governing authority has given consent to marriages of same-sex couples, that consent will not be affected purely by a change in the person or persons constituting that governing authority. Where a governing authority provides consent and thereby opts into conducting marriages for same-sex couples, a change in the person or persons who make up the authority will not render the consent void, negate it or remove it. The consent will still stand. However, this does not prevent the new governing authority from revoking the consent and deregistering the building, but this amendment makes clear that that would not happen automatically.
Amendment 22, in the name of the noble Lord, Lord Singh, provides a specific reference to the governing authority of the Sikh religion in relation to opting into same-sex marriage. I assure the noble Lord that no disrespect is intended towards the Sikh religion, or towards any other denomination or faith that is not specifically mentioned in the Bill, and that this amendment is not needed.
Lord Singh of Wimbledon
It may be that no disrespect is intended, but disrespect has been taken and many people are extremely upset about it. I still do not know why the omission occurred. Was it inadvertent or was it deliberate?
Lord Wallace of Tankerness
I apologise if any disrespect has been taken; it was certainly not the intention. A general reference to the governing authorities of religious organisations other than the Church of England, the Jewish religion and the Quakers is already included in the Bill—not by specific reference, but it is covered. The governing authority for the Sikh religion would be covered by this and would enable the members of the Sikh religion to determine who would be their relevant governing authority for the purpose of consenting to same-sex marriage.
The Government do not think it desirable to specify in legislation the governing authority for any particular religious organisation. That is properly a matter for the members of the religious organisation themselves. For the Government to seek to prescribe this would be an inappropriate interference in the internal governance and autonomy of religious organisations, which should be free to decide, and indeed change, their decision-making arrangements for themselves.
I think it was reflected in what the noble Lord said that he is trying to replicate the specific reference that the governing authorities of the Jewish religion and the Society of Friends—the Quakers—have within the Bill. However, as has already been indicated, they are both in a different position, given their particular treatment under the Marriage Act 1949, which arises from arrangements put in place hundreds of years ago to reflect their particular circumstances at the time. They have long had different arrangements under marriage law and therefore their governing authorities are already specifically referred to in the Marriage Act. In line with that treatment, specific reference must be made to their governing authorities in this Bill. This is not required for other religious organisations, where the relevant governing authority should be determined by the members of each organisation. Indeed, my own religious denomination, the Church of Scotland, which has places of worship in England, is not referred to in this Bill—for the very good reason that there is no historical reason why it should be.
Amendment 20 is similar to an amendment debated in Committee in the other place. It inserts provisions regarding the definition of the relevant governing authority, whose written consent is required to opt into the registration of a religious organisation’s place of worship for marriages of same-sex couples. The amendment provides that where there is a dispute over the recognition of the governing authority, the Secretary of State is required to consult members of the religious organisation and if necessary hold a ballot in which at least 66% of members cast their votes. Members are defined as people who have been on a formal membership roll for 12 months or who have attended the majority of services held over a 12-month period.
As I have already indicated, the Government do not believe that it is right for the state to restrict the independence of religious organisations and interfere with their internal governance in this way. Quite properly, that is a matter for each religious body to determine for itself, and we believe that the Bill as it stands gives adequate clarity about what is required regarding the consent of the governing authority of a religious group to marriages of same-sex couples, since the question of who the governing body is will be a matter of fact in each case. If there is a dispute over the identity of the relevant governing authority, that is a matter for the religious organisation to deal with internally, and we do not wish to create additional burdens for religious organisations. Nor indeed do we wish the Secretary of State and the state itself to become involved in internal disputes within a religious organisation.
The noble Lord, Lord Singh, gave us a very helpful explanation as to why he had moved this amendment with reference to the authority in his Sikh religion. It is helpful to have that information about the structure of the Sikh religion, because it illustrates exactly why it would not be proper for the Government to intervene in a religious organisation and its internal workings. It would be quite wrong for the Government to determine which part of the Sikh community should prevail, and it would be a near impossibility for the Government even to identify every religious organisation in the country and make the kind of provision that he would make. Undoubtedly someone would be left off, and that has its own implications. I can assure the noble Lord, Lord Singh, that the references to the Jewish faith and to Quakers are for long-standing historical reasons, and I invite the noble Lord, Lord Curry, to reflect on the fact that it is not appropriate for the state and the Secretary of State to intervene in such a way with the internal workings of a religious organisation. On the basis of that, I invite the noble Lord not to press his amendment.
Lord Singh of Wimbledon
I am grateful for what has been said, but it does not really explain the concerns at all. If there had been any sort of research into the Sikh religion, the Government would have had precise answers as to the state of play in that religion and what and who is the authority. No research whatever has been done. It has been considered unimportant and that is what really upsets. The concern is very similar to that of my noble friend Lord Curry: that any fringe group can say that it is in charge of this or that. If the Government do not wish to take note of someone speaking on behalf of the largest and only relevant authority in India, that is up to them, but this is aiding a “divide and rule” culture that is unhelpful, and that will not be welcome in the community.
Lord Elton
My Lords, this echoes precisely what I was saying at Second Reading. It is a very good example of what is wrong with this whole process. We started off with one unhappy minority and we are going to finish up with 15 or 20 who have not been consulted in the process to the extent that the others have.
Lord Wallace of Tankerness
My Lords, I appreciate the point that the noble Lord, Lord Singh, is making, but I ask him to reflect on the fact that the exceptions are exceptions for historical reasons of the Church of England and the Church in Wales where there is a common-law duty with regard to priests in relation to people within their parish. Quakers and the Jewish faith are included for reasons that go back centuries. Every other religion in England and Wales is treated in the same way. Even my own denomination, the Church of Scotland, is treated in the exactly same way as the Sikh faith is treated by the provisions in this Bill for the religious organisation itself to determine what its appropriate authority is.
It is quite clear from what the noble Lord has said that there is no doubt within his faith as to where that authority lies, just as in my own denomination the General Assembly of the Church of Scotland would be the obvious authority. The fact that he has been able to make very clear where that authority would lie just shows the importance of it being determined by the religion itself. I also ask him to reflect on the fact that if we included his amendment, every other faith and denomination would have to be included as well. That would be an impossible task for a Government and would take them into having to decide which the proper authority of some religions is, and I do not believe that is where the state should go.
Lord Pannick
My Lords, I would just add that if the state were to conduct such an exercise and purport to decide for religious bodies what the proper religious authority is, difficult questions would arise under Article 9 of the European Convention on Human Rights.
Lord Singh of Wimbledon
Having heard that, I will not move my amendment, with the proviso that what I have suggested should be taken as a strong advisory note in any further development of this legislation. The reason given for the Government’s position is that this is too complex, but that is not really a reason. If you embark on this sort of contentious legislation, you should be prepared for the consequences. It is there, through and through; this is unhelpful legislation that is set to divide not only the country, as it is divided, but communities between themselves.
Lord Curry of Kirkharle
My Lords, I reinforce that. The Bill itself, as I said in my comments and has been said numerous times, is divisive. Some churches with no clearly defined governing body—and I know many that fall into that category—will find it exceedingly difficult if a minority decides to pursue this. It has the potential to divide church congregations and communities, and that is deeply regrettable. I shall withdraw the amendment, but I would like the Minister to reflect on this. Faith communities need some way of appealing if they believe that a position is being taken against their best interests. I beg leave to withdraw the amendment.
The “relevant governing authority” is... | ...if the marriage falls to be registered by... |
|---|---|
the Chief Rabbi of the United Hebrew Congregations of the Commonwealth | the secretary of a synagogue certified under paragraph (a) of the relevant definition (certification by the President of the Board of Deputies) |
the person or persons duly recognised by the members of—(i) the West London Synagogue of British Jews (“the West London Synagogue”), and(ii) the other synagogues that are constituents of or affiliated to the Movement for Reform Judaism | —either the secretary of the West London Synagogue, as certified under paragraph (b) of the relevant definition—or the secretary of another synagogue in a case where:(i) the secretary is certified under paragraph (d) of the relevant definition by the secretary of the West London Synagogue, and(ii) the synagogue is one of those which are constituents of or affiliated to the Movement for Reform Judaism |
the person or persons duly recognised by the members of—(i) the Liberal Jewish Synagogue, St. John’s Wood (“the St. John’s Wood Synagogue”), and(ii) the other synagogues that are constituents of or affiliated to Liberal Judaism | —either the secretary of the St. John’s Wood Synagogue, as certified under paragraph (c) of the relevant definition—or the secretary of another synagogue in a case where:(i) the secretary is certified under paragraph (d) of the relevant definition by the secretary of the St. John’s Wood Synagogue, and(ii) the synagogue is one of those which are constituents of or affiliated to Liberal Judaism |
the person or persons duly recognised by the members of the synagogue by whose secretary the marriage falls to be registered | the secretary of a synagogue certified under paragraph (d) of the relevant definition (certification by the secretary of the West London Synagogue or the secretary of the St. John’s Wood Synagogue) in a case where the synagogue is not one of those which are constituents of or affiliated to:(i) the Movement for Reform Judaism, or(ii) Liberal Judaism |
(a) “relevant definition” means the definition of “secretary of a synagogue” in section 67;(b) a reference to a person or persons being duly recognised is a reference to the person or persons being recognised for the purpose of giving consent for the purposes of this section.”
“School Standards and Framework Act 1998: consciences of teachers
After section 60 of the School Standards and Framework Act 1998 insert—“60A Teaching about marriage
(1) This section applies to a maintained school.
(2) No teacher shall be required to endorse same sex marriage if he has a conscientious objection to so doing based on his religious or other beliefs.
(3) No teacher at the school shall receive any less remuneration or be deprived of, or disqualified for, any promotion or other advantage by reason of the fact that he relies on subsection (2) above.””
Lord Dear
My Lords, I see that Amendments 23 and 24 are grouped together. I had discussions earlier with the Front Bench that in my opinion it would have been better to have split these and discussed them separately. As will become clear very quickly, the only common ground in these two amendments is the classroom. One amendment deals with the position of teachers and the other with parents, but in the interests of time I have had a further discussion with the Front Bench and am more than happy to run these two together and speak to them both one after the other, if that would help. I am looking at the Front Bench and they are nodding so, with the approval of the House, I will do that.
Amendment 23, which seeks to protect schoolteachers, would preserve the position of a teacher so that no teacher was required to endorse same-sex marriage if there was a conscientious objection to so doing, and the same teacher would not be deprived or disqualified by the same action. Under the amendment, teachers with a conscientious objection to same-sex marriage would be protected from being forced to actively endorse it. The amendment would also seek to protect them from being disadvantaged as a result. It offers a conscientious protection similar to that enjoyed by, for example, atheist teachers, who have a legal right not to have to teach religious education. I contend that, unless explicit protection like this is included, the same-sex marriage legislation would jeopardise the civil liberty of teachers holding the traditional mainstream view of marriage.
Discussion about marriage comes up routinely as part of the school curriculum—for example, in English or in history—and there will be pressure, I fear, to ensure that any such discussion includes same-sex marriage. As for sex education, Section 403 of the Education Act 1996 requires sex education to include teaching pupils about the importance of marriage in family life, and will require teaching about the importance of same-sex marriage in that context.
I refer, as I did at Second Reading, to the opinion given by John Bowers QC, a leading barrister in the field of employment law. He stated that Section 403,
“provides no exception for conscientious beliefs”.
He goes on to say:
“Unless this were amended I envisage that there would be a duty on the teacher to promote marriage as newly defined”.
Many teachers undoubtedly will feel unable, in all good conscience, to express such an endorsement. A representative poll, taken earlier this year among teachers, found that 10%—which equates to more than 40,000 teachers in this country—would probably refuse to teach children about the importance of same-sex marriage if required to do so. In the same poll, 17% would teach about its importance but would not be happy in doing so, and 56% expressed concerns that colleagues who take a stance supporting traditional marriage could find their professional careers damaged.
In fairness, the Government have repeatedly sought to allay these fears by insisting that teachers will not be forced to endorse anything that is contrary to their conscience. In fact, the Minister, the noble Baroness, Lady Stowell of Beeston, told the House at Second Reading:
“Teachers will be expected to teach the factual and legal position when teaching about marriage, as with any area of the curriculum, but they will not be expected to promote or endorse views that go against their own beliefs. It will be unlawful to dismiss a teacher purely for doing so”.—[Official Report, 3/6/13; col. 940.]
Setting on one side the factual and legal position, and distinguishing it from the promotion or endorsement of views about that same subject, I would think that it is almost a knife-edge position.
In contrast to that view, John Bowers QC, whose opinion I have just quoted from, has suggested that teachers could be required to promote same-sex marriage and be disciplined and even dismissed if they refuse to do so. He states in his opinion:
“If the Marriage Bill becomes law, schools could lawfully discipline a teacher who refused to teach materials endorsing same sex marriage”.
Earlier in the document he states:
“The stark position in my view is that a Christian teacher (or indeed any teacher with a conscientious objection) may have to teach about (and positively portray) a notion of marriage (and its importance for family life) which they may find deeply offensive”.
He goes on to say:
“Section 403(1A) of the Education Act 1996 would also in my view provide a legitimate basis for schools or LEAs which wish to promote a particular vision of equality to require all teachers to teach materials which endorse same sex marriage. The position of the teacher who manifests a conscientious objection to doing so is not enviable”.
I will quote from a letter that was sent to me at the end of last week by a firm of solicitors in Witney in Oxfordshire. It stated:
“I am happy to confirm the attached letter, addressed to you by Mrs X, in relation to an investigation against her in her school, which is an honest summary of a genuine incident. I am aware of the facts of the case. I am also aware that Mrs X wishes to remain anonymous at this stage because an investigation is ongoing”.
The letter from Mrs X is illustrative of this problem, and I quote from it directly:
“I am a teacher at a … girls’ school in South London. I have been employed by the school for 17 years. During March … I was instructed to deliver a presentation, which included material stating, in effect, that any disagreement with same-sex marriage was de facto homophobia. I felt this was not a fair characterisation of the debate and it was one that conflicted with my own deeply held religious beliefs. I raised my concerns with the teacher in charge”.
I will shorthand the next bit. She complained to the teacher in charge, who allowed her her position and let her teach elsewhere. However, another colleague raised a complaint:
“The head teacher investigated the incident and concluded there was no case to answer. Another colleague, who is also a union rep, then followed up the complaint, and has formally raised additional concerns about my Christian beliefs and my membership of a church. The union rep has demanded an investigation of my beliefs and my membership of the church, and whether it had any negative impact on my job as a teacher. That investigation process is currently underway, and at the time of writing I do not yet know the outcome”.
The nub of that was on whether any disagreement with same-sex marriage was de facto homophobia.
I could cite other examples, but I will not take up too much of the House’s time. I will say simply that other teachers have come under similar pressure. One situation involved a primary school teacher who stopped reading the book And Tango Makes Three to her class because it endorsed same-sex relationships in a way that conflicted with her beliefs. When the head teacher discovered that, the teacher was restricted from having her own class because school policy required teachers to promote homosexuality in the classroom. In Scotland, a secondary school teacher was told that he would have to teach a relationships course, promoting same-sex marriage “without exceptions or safeguards”, despite that contradicting his beliefs.
We have a tangle. We have leading counsel on one side saying that the law will not protect teachers, and we have the view from the Front Bench, very obviously, earnestly and faithfully put forward, that the factual and legal position can be distinguished from the promotion and endorsement of views. We then turn to the Joint Committee on Human Rights, which is as divided on this as it was on other matters we heard of earlier in connection with another amendment. On this particular issue the Joint Committee said:
“We have heard significant arguments about whether existing employment and equality law provisions provide sufficient protection for employees who may wish to manifest their belief about same-sex marriage in the workplace. We note the particular concern for the position of teachers and civil registrars … We welcome the Government’s commitment to review the protections that may be required in relation to the teaching of Sex and Relationship Education. In particular, we encourage the Government to consider whether specific protections are required for faith schools and for individual teachers who hold a religious belief about same sex marriage”.
That sums up the reasoning behind this amendment. I beg to move.
Lord Waddington
My Lords, the noble Lord, Lord Dear, brought to the attention of the House certain remarks made by my noble friend in her speech at Second Reading. I will remind the House of some of her words. In particular, she said:
“Teachers will be expected to teach the factual and legal position when teaching about marriage … but they will not be expected to promote or endorse views that go against their own beliefs”.—[Official Report, 3/6/13; col. 940.]
That surely means that the teacher must teach the new definition of marriage and must explain the significance of the change. That may be very difficult for some teachers. The Minister says that the teacher does not have to endorse the new definition, and by that I think she means to accept it as right.
Lord Waddington
I appreciate what the noble Lord has to say and he will be able to say it in his speech. I wish he would just hear me out on this little piece of the action. He surely must agree that this begs the question as to whether it is anything we should complain about; he surely must agree that the teacher must teach the new definition of marriage and must explain the significance of the change. The noble Lord must concede, whether he likes it or not, that that may be offensive to some teachers. It is no good the noble Lord shaking his head. I should have thought that after all our debates he knows how divisive this legislation is. Some people find it very difficult to accept that a marriage between two people of the same sex is a proper marriage. It is ridiculous him just shaking his head. We have to face the facts.
Lord Alli
I was shaking my head because I do not believe that it is difficult for a teacher to teach the facts. They may not like it, but I believe teaching is a fantastic profession and every teacher I have met is capable of distinguishing fact from opinion. People in this profession are capable of dealing with this issue because that is what they are trained to do.
Lord Waddington
A number of teachers will find it extremely difficult to have to explain the new regime. At Second Reading the Minister said that teachers do not have to “endorse” the new definition—by that I think she means accept it as right. She then went on to say that,
“the expression of personal beliefs should be done in a professional way and not in a way that would be inappropriate or insensitive to pupils”.—[Official Report, 3/6/13; col. 940.]
I wonder whether some people might judge that any statement to the effect that the only true marriage is one between a man and a woman is bound to be thought insensitive to some pupils and that therefore it should not be allowed. When we come to Section 403 of the Education Act 1996, which was again referred to by the noble Lord, Lord Dear, there is a strong case for giving some protection to safeguard the position of teachers who cannot in conscience teach that the union of two men or two women is a marriage.
As to conscientious objection, there was a debate about that the other night. One thing was not mentioned. The Equality and Human Rights Commission was reported on 12 July 2011 as saying that the court should have done more to protect Christians affected by equality laws. In the case then pending before the ECHR the commission was going to call on the European Court of Human Rights to back the principle that employers should do more to reasonably accommodate employees’ religious beliefs like they accommodate staff with disabilities. I am quoting from the commission. Later, for quite unexplained reasons, the commission beat a hasty retreat but we can take some comfort in the fact that for a short time it looked as if we were going to get somewhere. Surely if in the dark days of the war you could give people who had a conscientious objection to fighting the right to opt out of military service we could do something similar here.
There have been so many cases where the demands of equality have been allowed to trump the right of people to observe the dictates of their faith. There may be a case in every enactment for protection of those who would find observance difficult on grounds of conscience. I raised that matter in a Question in the House on 8 July 2010. Unfortunately, I got the usual expression of sympathy followed by a statement that the Government had not the slightest intention of doing anything.
I noted the words of my noble friend Lord Deben earlier this afternoon. He talked about tolerance. I do not see much tolerance in this place tonight—not on that side of the Chamber. The Government would be practising tolerance if they gave protection to teachers who find it difficult to teach the significance of the new law on marriage.
Baroness Farrington of Ribbleton
My Lords, I say in a spirit of courtesy that I rather resent the reference to this side of the Chamber, because this debate is not whipped. What I will say is based on my experience as a mother and as someone, obviously, who went to school. For 10 years I chaired the education committee in Lancashire, with a bevy of bishops—perhaps “beneficence” would be a more appropriate word—because Lancashire had, and I think still has, the largest number of faith schools. I think that this is the last week that the right reverend Prelate the Bishop of Liverpool will be in your Lordships’ House. I would like to put it on record that he has contributed very wisely to our debates.
My experience of the education system is that of a parent and an unqualified teacher. I have to say, on the basis of my experience, that the current Government’s use of unqualified teachers serves children ill. I will address this issue and concerns raised by the noble Lord, Lord Dear. We tangle with the content of the curriculum and what teachers ought to say and do at our peril. I recollect—this may surprise some noble Lords opposite—my faith in the late Lord Joseph, who, in the circumstance of vitriolic debates about whether teachers were telling young people that they ought to support CND back in the 1980s, said that the role of a teacher could be to say that they supported CND or not, but that as a professional they ought also to say that other teachers, parents and people in the community held different views. To my amazement—I admit prejudice prior to his appointment—I found that Lord Joseph was interested in genuine educational debate and discussion among young people as they grew up. Noble Lords would do well to remember his advice that young people need to know about a diversity of views as they grow into young adults.
Nobody wishes to see the promotion of a particular lifestyle, moral view, political view or religious view. Teachers have to teach children who are growing up in a very diverse culture. It is totally different from my childhood, when there was not a diverse culture in most communities. Most diversity was hidden.
I would like to relate the story of a superb head teacher in a Lancashire church school, who came to me at the time of the introduction of Section 28. This head teacher was a devout, practising Anglican. By chance, she was actually a very devout Conservative Party member, if one can be such a thing. She asked to see me about Section 28. I thought she would come in and say, “You’ve got to support this, this is important.” What she told me was a story. It took place in that small church school in a village in Lancashire, where she was head teacher. She asked the children to draw a picture of their Christmas Day morning. She said to me, “Josie, one little girl drew a picture of herself in bed with two women”. She said to the little girl, “Who are they?”, and the little girl said, “My two mummies. I don’t have a daddy, I have two mummies.”
The head teacher said to me that her professional job, given all her views and her devout Christian belief, was to support the family in which this child lived and ensure the child was never in any way victimised for the circumstances of her family life. So she had to explain to other children, “Some people live like this”. I explained that story to Lord Joseph. He understood it because he knew that children grow up in families with very different views and very different circumstances.
To the noble Lord, Lord Dear, I say that it is not a question of endorsing but of recognising. Children are growing up in a diversity of families. They may grow up with a mother and a father who are married within a religious faith. Their uncles and aunts and other people they know, other people in the community such as family friends, will have different patterns of life, different beliefs and different relationships. We have to make sure that teachers are given the freedom and responsibility to respond to the young people in their care.
A long way back I was accused by a then Member of Parliament in Lancashire of presiding over a situation in which teachers were indoctrinating children into supporting a particular view. I refer back to the CND. I never actually got proof of the indoctrination, but I had wholehearted support across the political groups on Lancashire Country Council for ensuring that teachers were able to teach children to grow up in the real world that they lived in.
I may not like particular aspects of life. I am not awfully fond of rap, but that it is an age thing, not an artistic judgment. We have to stop preventing teachers teaching children about the world in which they are growing up. Teachers should not endorse views or indoctrinate children but recognise that the world is real and it is out there. That is why I give the Government my wholehearted support. I hope that the noble Lord, Lord Dear—
Lord Dear
I wonder whether the noble Baroness could apply that reasoning to the letter that I quoted. I will read out the pertinent point again. The lady in question is currently under investigation in the south of England. She says in her letter, which is endorsed by the solicitor as being an accurate reflection of what went on:
“I was instructed to deliver a presentation which included material stating, in effect, that any disagreement with same-sex marriage was de facto homophobia”.
In other words, if you agree with it, it is not homophobia; if you disagree, it is. I understand that the lady is suspended and is currently the subject of an investigation. It seems to me that the difference between disagreement, agreement and endorsement is a very fine line indeed. I hope the noble Baroness will answer a further question at the same time. What about the 40,000 teachers—10%—who said that they would not be able to teach this matter in good conscience and would probably refuse to do so?
Baroness Farrington of Ribbleton
My Lords, my experience in my political career is that it is unwise to comment on individual cases. I would need to know the detail. I cannot believe—however, the noble Lord tells me it is a fact—that any head teacher or governing body has insisted on that wording. However, I do not doubt that the noble Lord has evidence which seems to support that.
I am slightly more dubious about opinion polls. I think that the opinions depend on the exact question that is asked. If noble Lords were asked as they left the Chamber whether they agreed with indoctrinating pupils into believing that same-sex marriage was right or wrong, we would probably all say that we do not believe in indoctrination. If we were asked a slightly different question, we might answer it differently. As someone who is very committed to political life, I am saddened that out there a variety of groups of people hold a variety of views, many of which I totally oppose personally. Nevertheless, I defend their right to hold them. That is the issue we are dealing with. I do not want my grandsons to be told that anything is right or wrong in regard to the law. They will be told by their parents and teachers and occasionally by their grandmother—although, as they grow up, they may not listen—about certain things of which we do or do not approve. However, I think it is very unwise for us to start assuming that teachers will be told they have to indoctrinate or put forward a particular point of view. For 10 years I chaired the education committee on Lancashire County Council. I once said to somebody, “If I wanted the whole teaching profession in Lancashire, which I respect and admire, to do something, the best way would be for me to ban it”.
Lord Pannick
My Lords, we all recognise the strength of feeling that these issues command, and pleas for tolerance, such as that from the noble Lord, Lord Waddington, always command considerable respect and attention. However, we really need to look at the principle behind the proposed amendments of the noble Lord, Lord Dear. As I see it, the teacher’s role is not simply to promote same-sex marriage or propagate his or her views. Surely the only role of the teacher in relation to same-sex marriage is to explain to pupils, where this is relevant, that the law allows same-sex marriage, and to explain that some religions do not recognise it and therefore the law does not recognise same-sex marriage of a religious nature in those circumstances.
I cannot understand why a teacher needs or should have a statutory immunity from performing that educative role. Nor can I understand why parents should be able to prevent their children being so informed about the laws of the society in which they live. The noble Lord, Lord Dear, also referred, in the context of the legal opinion from Mr John Bowers QC, to Section 403 of the Education Act 1996, which was said to cause great concern. I remind noble Lords that Section 403(1A) is about giving guidance in the context of sex education. It requires children in that context to,
“learn the nature of marriage and its importance for family life and the bringing up of children”.
The purpose of that statutory provision, as I understand it, is so that when children learn about sex education, they learn that it is highly desirable that sexual intercourse takes place within the context of marriage. I cannot understand why those noble Lords who are concerned about the Bill should wish in any way to prevent children learning—if and when they do—about homosexual sexual relations in that context, as well as about heterosexual sexual relations and the importance of marriage and family life.
Lord Pannick
An atheist may have good reason for not teaching religious education, because by definition religious education is teaching matters relating to religion. However we are not concerned here with teaching religion, but with the role of the teacher in teaching children, so far as it is relevant, about the society in which they live. If and when the Bill is passed, part of the society in which children live will include same-sex marriage.
Lord Dear
With the greatest possible respect, that is dancing on a pin. I am sorry to put it that way, because I have the greatest respect for the noble Lord. Surely it is exactly the same reasoning which gives protection—if one can use that phrase—for the atheist to fall out of teaching religion and the teacher who has a rooted objection to teaching about sex education and same-sex marriage on religious or conscientious grounds. I see no difference.
Baroness Farrington of Ribbleton
My Lords, would the noble Lord, Lord Dear, please accept that he is referring to two separate issues? One is teaching religious education. Perhaps in some schools this is taught as fact by people who believe, particularly in church schools. As for the other, I do not know if other noble Lords have my experience of children, particularly grandchildren, asking people questions at the most inappropriate moments to get information.
Even if the noble Lord’s suggestion in the amendment was agreed, parents could say, “I do not wish my child to be in the classroom when X is being discussed”. However, then the child at the back of the class suddenly asks a question that the teacher has to answer. It is not formal sex education. “Where did I come from?” is the question that a child is most likely to ask at the checkout in the supermarket, rather than at the appropriate moment at home. Therefore, one cannot subdivide the process of education. Education goes on all the time. The teacher may be asked such questions in the classroom. It may be a scout leader who is asked—it could be anyone; it may occasionally be the grandmother. Then you have the problem of working out not only what you think but what the parents concerned would like you to say.
Baroness Butler-Sloss
My Lords, perhaps I may put in my 10 cents-worth on this. I entirely agree with the noble Lord, Lord Alli, that the teacher must teach what the law is. There is no doubt about it. I have the utmost sympathy with what the noble Baroness, Lady Farrington, has said. As I have said previously, it is the duty of teachers to support the child, whatever type of relationship the parents with whom they are living may have. I have happily granted adoption orders to same-sex couples. They are or can be excellent parents—as good as any other. I start from that basis.
However, I have a concern. It is really what the noble Baroness, Lady Farrington, said about being a grandparent. I am a grandparent and my grandchildren ask awkward questions but the concern is about when the question is asked of a teacher. The teacher is there, trying very hard to give a neutral account of what the present law of marriage is. Then a child asks an awkward question and the teacher answers honestly. It could be a question such as, “What do you think about it, miss?”, and the teacher says, “I have to say that I am a member of the Church of England and my view is that I do not believe in same-sex marriage”. The child goes off and tells the mother, and the mother comes and complains to the school because a member of that family is in a same-sex relationship. That is what worries me. It is the perception; it is the interpretation. It is that which has gone beyond the ordinary, perfectly proper teaching of the teacher. It is for that reason that what the noble Lord, Lord Dear, is asking for is a necessary protection for teachers.
I do not support the noble Lord’s second amendment. I think that children should learn everything. When I was a judge, I remember the father of a Roman Catholic family, who was very devout, telling me that I should make an order that in the Anglican school to which he had sent his children they should not attend religious education because it was Anglican education, not Roman Catholic. I basically told him to get lost and that if he had chosen to send the child to that school it was right that the child should learn what the school was teaching. Children should be learning everything and they will then distinguish between matters.
However, the first of the two amendments of the noble Lord, Lord Dear, should not be dismissed out of hand. There is a problem here that has to be recognised.
Lord Alli
I wonder whether the noble and learned Baroness has seen the Secretary of State’s Second Reading speech in the other place and what the Minister in the other place said. The Minister said that,
“no teacher is under any duty to promote or endorse a particular view of marriage, and neither would they be as a result of any revised guidance in the future”.—[Official Report, Commons, Marriage (Same Sex Couples Bill Committee, 28/2/13; col. 311.]
If a loophole exists—and I have said this to the noble Lord, Lord Dear—we should try to close it, but it seems to me that the loophole is not there.
Baroness Butler-Sloss
I very much hope that that is true. It may be that this is not necessary in primary legislation. However, there is a potential problem of perception and interpretation. There will be some teachers who will be at risk, perhaps in areas where they do not read what the Secretary of State said, or what the Minister said in Parliament, and have their own views and take the view that the teacher has gone outside what he or she should say, in having answered the question of the child, or whatever it may be. I raise the question, and my concern, in moderate terms. We ought not just dismiss this. That is the point I am making to the House.
Baroness Farrington of Ribbleton
My Lords, does the noble and learned Baroness accept that I have failed to convey the message of the much missed Lord Joseph? Good professional teachers will answer that question and will point out that parents, other teachers, local clergymen or whoever, may hold a totally different view. What is important is that the child knows about the range of views. That is the safeguard for the teacher.
Baroness Butler-Sloss
I do not want to keep getting up and down. I entirely agree with the noble Baroness, but since she asks me, it is not in fact what the teacher teaches in the class that worries me. It is what is said, probably to the head teacher, about what the child has said, what has gone home, and so on. Although I have never been a teacher I have had experience in different ways of what is said, and what is misunderstood, and the way in which teachers are placed in very difficult positions, when the head teacher has been given the information by a parent, by another teacher, or by somebody else. It is that perception—that interpretation —which worries me.
Baroness Byford
My Lords, I have waited patiently and tried about five times to get in, because this part of the Bill is enormously important. The noble Lord, Lord Alli, said quite rightly that if and when this becomes law, teachers will have to teach the law. How does he envisage the situation where a teacher is in a room, teaching the whole question of marriage as it has been known and accepted until now, alongside same-sex marriage, to children within the same class? That is asking a huge amount of teachers under pressurised circumstances. That is my first point; perhaps I may park that for a moment. I hope I can help a little bit more.
Secondly, I am grateful for the contribution of the noble Baroness, Lady Farrington. She and I share many things, and we disagree on many things, but I was very grateful for her input. I have real concerns, and I welcome Amendment 23 moved by the noble Lord, Lord Dear. He has given us instances of cases being heard at the moment. I am worried that there will be pressure put on teachers—they may find they do not get promotion or may find themselves in a difficult situation. We have been dealing with intricacies, and Amendment 23 deserves greater support than it has so far received. I do not find it objectionable. Proposed Section 60A states:
“This section applies to a maintained school”.
Will the noble Lord, Lord Dear, explain a little bit more about that? If somebody really does have a conscientious objection, they should not be jeopardised if they find it very difficult to do what the noble Lord, Lord Alli, wants them to do, within a lesson. All I would say is that it is not easy.
I am sorry that I could not be here on Monday or I would have participated in this debate earlier, but I have only been able to attend since late this afternoon. However, this is a hugely important part of the Bill and there are real and practical issues that need to be addressed. I do not think that what the noble Lord, Lord Alli, wants to do is something that I would want to do, so he knows where I stand. The questions of how we are going to take this forward and how it will work have not really been addressed at all.
Lord Alli
My Lords, I shall be brief because I know that the Committee wants to make progress and there is still quite a lot to be done. This will be handled in exactly the same way as teachers currently deal with the issue of divorce. Teachers in schools up and down the country who hold deeply religious views and do not agree with divorce are free to express those views in the classroom. Nothing prevents them doing so. However, they are required to tell pupils the truth about the world we live in and that divorce exists. I do not think that that causes a problem. The principle applies and it can read across to another set of issues. Teachers have a much better grasp of this than perhaps we are giving them credit for.
Lord Elton
My Lords, there are a couple of things which have not been mentioned that we need to bear in mind before this is resolved. The first relates to classroom teaching. I must congratulate the noble Baroness, Lady Farrington of Ribbleton, on giving a perfect example of proper and professional conduct, and some perfect examples of how extremely awkward children can be. However, noble Lords have not actually grasped the fact that many teachers are required by their heads to teach to a particular programme which has been produced by a publisher, by some think tank in a comprehensive, or whatever. It will take an attitude to this which to some teachers will appear as though it is promoting a particular interpretation. Teachers need to be able not to have that forced on them.
The other thing is that, of course, a lot of a teacher’s life is spent in the staff room. No doubt they hold to the view that they are highly professional and will do exactly what the teacher the noble Baroness, Lady Farrington, told us about did under all circumstances, yet in the staff room may express views contrary to those that we are now going to be told are mandatory. If they express an objection to same-sex marriage which, as the noble Lord, Lord Dear, has said, is interpreted as being tantamount to homophobia, and that sort of conversation is held in the staff room, particularly of a large school, there will be those on the staff who will regard it as making them unfit to teach. Those teachers will find themselves under undesirable pressure. No doubt the Minister will take this away and think about it, and indeed all these exchanges will prove to be useful.
Lord Eden of Winton
My Lords, I believe that it was the noble Lord, Lord Dear, who said that this is something of knife-edge issue, and I sympathise with that observation. I hope that I will not embarrass her, but I find myself in considerable agreement with the noble Baroness, Lady Farrington of Ribbleton, and I certainly have a lot of sympathy for her whole approach to this subject. However, I have one deeply held anxiety which I would like to express very briefly in the hope that it will be allayed by the response of my noble friend the Minister.
It is not the objectivity of teaching that worries me. It is not the way that teachers will interpret or rehearse the law before their pupils or their classes that is my concern. On the whole, I have enormous respect for the teaching profession, having been associated with it for some time, and I think that teachers will do their job admirably. That is not my worry. My worry lies in what I think the noble Baroness, Lady Farrington of Ribbleton, said, and certainly others have mentioned; namely, the difference between what I would call the objective teaching or factual teaching, as the noble Lord, Lord Alli, said, and promotion. That is the knife edge. It is done so easily. It is done by emphasis and by inference. We know through our respective interests how easy it is, almost subliminally, to encourage a viewpoint that is held firmly by the particular promoter of that view. It is done carefully and sometimes not quite so carefully. This is my worry and I hope my noble friend will be able to reply.
I have seen, as other noble Lords have doubtless also seen—there is nothing peculiar about me, there is no reason why I alone should have seen this—material in the public domain which is promotional material advertising the good things about same-sex relationships. I have heard it said—I give no particular credence to this; it is hearsay—that teachers sometimes encourage pupils in their class to experiment, to find out in terms of sexual relationships, “what makes you happy”. This is what worries me. There is an undercurrent there of crusading on behalf of same-sex relationships which I think has no place in a school. I accept teaching factually; I do not accept promotion or promotional material.
Lord Alli
In the spirit of tolerance that the noble Lord, Lord Waddington, asked for, will the noble Lord accept that, for many of us, the use of the word “promotion” and the language that the noble Lord has just used is particularly emotive because of Section 28? Will he therefore accept, in the spirit of tolerance, that where the amendments are crafted in such a way that that phraseology is embedded in them, that is the reason for the perceived reaction that the noble Lord may get? Will the noble and learned Baroness, Lady Butler-Sloss, also accept that where there is a mischief we genuinely want to solve it, but if the language is inflammatory, if the arguments put forward are inserted into the Bill, it is very hard, in the air of tolerance, for us to have a proper and constructive discussion?
Lord Eden of Winton
I am very sorry to hear the noble Lord say that because I certainly do not want to offend him or anybody else of that persuasion. However, he is right to say that I am emotional about the issue, because I feel very strongly about it. I hope he will accept that there are strong feelings on the side that I represent, as strongly as he represents the feelings on his side. I cannot help that. I feel I have to express these views, because we are talking about legislation, which is likely to become the law of the land, in which case my views will be sublimated and the law takes over. Now is the time for me to express these views, and I hope I convey the feelings which I believe represent the views of others beyond this House. I hope that I will get a response from them.
We talk about teachers being required to teach the law correctly. What is the position of teachers in Church of England schools? They will also be required to do this. This is one of the areas of difficulty which I find being developed by the proposals in this Bill, which I hope will be satisfied, if not by the existing protections, at least by the amendment of my noble friend Lord Dear.
Baroness Farrington of Ribbleton
I remind the noble Lord that the example in Lancashire that I spoke of was in a Church of England school. My experience of church schools is that they not only hold their own strong religious views but respect the communities from which their pupils come and the circumstances from which their families come. Perhaps it is different in Lancashire.
Lord Eden of Winton
I thank the noble Baroness for that intervention, which reminds me, if I needed reminding, of her earlier speech. I said at the beginning that I agreed with a lot of what she said and found that I had a lot of sympathy with her point of view. I accept what she says and just hope that when my noble friend comes to reply there will be some comment about the nature of the material that is made available to interpret the various different aspects of relationships in marriage. It comes back to a point made in a previous debate, on an earlier amendment, about the importance of guidance. What is in the guidance material is very significant. If we could have some reassurances about the nature of the guidance that will be given to the teaching profession, either from local authorities or from the centre, that would be very helpful.
Lord Glenarthur
My Lords, I hesitate to intervene because I have not spoken since Second Reading. However, I want to follow up a point which the noble and learned Baroness, Lady Butler-Sloss, made about teaching. I have no experience of teaching but it seems to me that a teacher coping with a classroom of pupils, who has to deal with one aspect in a particular way, might need a more individual session with a pupil who displays a lack of understanding about a particular issue. It might need to be put over to that individual pupil in a different way from how it might easily be expressed in a more public way. That would almost certainly draw the poor teacher concerned into expressing much more personal views than he or she might have done if it had been in a public classroom. There seems to be a genuine risk here which could imperil the teacher concerned. It needs very careful thought.
Baroness Barker
My Lords, I have a question for the Minister arising from the speech of the noble and learned Baroness, who made very strong points but did not describe something new. The sorts of issues to which she referred have been around for a very long time. We have had guidance for many years about how such sensitive matters should be addressed in school. I believe that bishops and representatives of other faiths have, over many years, been called by successive Governments to contribute to that guidance. The noble Lord, Lord Elton, talked about promotional materials, but there is guidance already. When the noble Baroness comes to summing up—which I am sure she will be delighted to get into fairly soon—can she say whether anything in the Bill changes the statutory guidance that we already have about the teaching of sensitive matters?
Lord Elton
The noble Lord has not, as far as I know, addressed his second amendment at all. I do not think that there is any time for it tonight but, very briefly, I give notice that will we need a debate on the legal opinions that have been expressed on whether the Bill will affect the right of parents to withdraw their children from sex education. We may have an opportunity to do that at the next stage. I put it on record that if the noble Lord does not address it, I will table an amendment to give such an opportunity.
Baroness Thornton
I will address both Amendment 23 and Amendment 24, as the noble Lord, Lord Dear, himself said—
Lord Dear
I am so sorry. Perhaps I may directly address the Front Bench. We agreed that we would try to hurry this through—and of course we have failed in that. I certainly do want to speak to Amendment 24, having moved Amendment 23. I thought that we agreed that I would then go straight on to Amendment 24 and take that as well. I want to discuss it. However, I am also conscious of the time. It is fast coming up to half past 10. I am in the hands of the Committee as to how we handle this.
Baroness Stowell of Beeston
I apologise to the noble Lord if I was in any way unclear when we discussed this. I thought, from our last conversation, that we were going to debate both amendments together as a single group, and that is what I was intending to do in responding to this debate. I think that there is real merit in doing so because there are things relevant to the noble Lord’s second amendment which help me to address some of the points that have been raised by my noble friends, particularly points raised by the noble Lord, Lord Eden. My intention is to cover both amendments in my response.
Lord Dear
If it is the will of the Committee I will move on to Amendment 24. Yes, the Front Bench is nodding.
Amendment 24 stands in my name as well and I will try to be fairly brief; I can certainly be briefer than I was before. Because of their religious or other convictions, many parents will not want their children to learn about same-sex marriage before a certain age, fearing that they will find it confusing. Others may be concerned that teaching on the subject will not be balanced or might not respect their own convictions on the matter.
Parents, as we all know, have the right to withdraw their children from sex education. However, same-sex marriage could be included in a range of other subjects, across the curriculum, to which the right of withdrawal does not apply. For example, there is no right of withdrawal from history lessons and there has been a growth of schools taking part in LGBT History Month lessons within the last few months.
Stonewall, the leading gay rights group, promotes an extensive list of materials on same-sex marriage for use in primary schools. These resources cover subjects much wider than just sex education. A teacher training guide, also produced by Stonewall, suggests that primary school children could perform some of Stonewall’s recommended story books as school plays. An accompanying teacher training DVD, which was produced with the support of the Training and Development Agency for Schools, suggests that pupils must become “resilient”—and that word is lifted directly from its literature—to the values of their parents and grandparents. This is quite clearly an indirect reference to some parents and grandparents who may have objections to issues such as gay marriage.
There is a danger that without an extension of the right of withdrawal, the deeply held beliefs of parents will be undermined, as will their ability to have their children educated in accordance with their own convictions. Article 2, as some of us know, of the first protocol of the European Convention on Human Rights will be weakened. I could give a number of examples where this sort of thing has happened—I am conscious of the time and of the fact that the House wants to progress—but suffice it to say that there are already examples in this country, and abroad, where children have sought to be removed from school because of this sort of thing, and the council has told the parents that action would be taken against them unless the children were returned to school. It has happened in Waltham Forest in east London and it has happened abroad in Massachusetts.
I am galloping through very fast, and I would have liked to develop the argument to greater effect, but Amendment 24 gives a parent the right to withdraw a child from any lesson that includes teaching about same-sex marriage. It also requires the school to notify the parent a week in advance of those lessons, because being informed in that way is obviously crucial to the effective operation of the right of withdrawal.
Baroness Thornton
My Lords, third time lucky. Amendments 23 and 24 in the name of the noble Lord, Lord Dear, address various aspects concerning teaching in schools. I recognise that this is a sensitive issue and of importance to many people. However, we believe that both these amendments go too far.
The obligations of schools, particularly faith schools, in relation to teaching about same-sex marriage were extensively debated in the other place. I will repeat what I said at Second Reading: I think that the Secretary of State, Michael Gove, got it just about right when he gave his evidence to the committee in the Commons. These are not new issues. Current requirements on faith schools around the teaching of PSHE and subjects such as abortion have required schools and DFE guidance to forge a sensitive path between teaching pupils about the facts of life and the law of this country, while still informing them of their faith’s views on these issues.
Noble Lords need to understand that teachers have succeeded in navigating these sensitive issues. We understand the concern of faith schools that they will be required to advocate to their pupils something that their faith does not endorse. However, there is a fundamental difference between teaching and advocacy, which is why the noble Lord’s Amendment 23 is confusing. By providing for an explicit protection for teachers who refuse to “endorse” same-sex marriage, the amendment misconceives the nature of teaching. The noble Lord, Lord Pannick, explained that extremely well and I will not repeat those arguments.
The Education Act 1996 requires that pupils,
“learn the nature of marriage and its importance for family life and the bringing up of children”.
It is not the job of teachers to endorse or not endorse a particular opinion, no more than teaching about a subject amounts to their personal endorsement of it. Just as currently all schools are required to teach about the importance of marriage for family life—while being sensitive,
“so as not to stigmatise children on the basis of their home circumstances,
which is what the statutory guidance says on this issue—I put it to those who are concerned about this that schools have already found a way to navigate the sensitive path of teaching children about the importance of marriage without implying that children who come from other arrangements or set-ups, be they single, same-sex or unmarried parent homes, have any less important a family life.
Amendment 24 would allow parents to remove their children from any lesson in addition to PSHE, where they already have such a right, which might involve teaching about same-sex marriage, and would require teachers to give advance notice to parents of any lessons in which this may be of relevance. Disregarding for a moment the complete impracticality of a teacher having to inform parents before any likelihood of a discussion on same-sex marriage—my noble friend Lady Farrington made that point completely clear: you cannot predict what a teacher will be asked by a pupil—will the teacher be forced not to answer that question?
I suggest that the amendment comes close to wishful thinking on the part of the noble Lord, Lord Dear, in hoping that some individuals might go through their entire young lives without ever knowing that same-sex marriage was the law of this country and that it would be wrong to go down such a path.
Baroness Stowell of Beeston
My Lords, as I said to the noble Lord, Lord Dear, I am grateful to be able to respond to his Amendments 23 and 24 together because some of the issues arising from his second amendment will help me address some of the concerns that have been expressed in this debate by my noble friends.
The noble Lord, Lord Dear, and my noble friend Lord Waddington quoted quite extensively from what I said at Second Reading. Clearly I am not going to repeat that and quote myself but I will be relying on the same facts that I relied on at Second Reading because they are the facts as they are. I want to be clear from the start that I recognise the concern that there is out there and among some noble Lords who have spoken this evening. I feel the passion that was expressed by my noble friend Lord Eden and recognise that it is a real concern. Therefore, there is a responsibility on me to respond from the Dispatch Box and acknowledge that concern. I am grateful for the opportunity to do so.
My noble friend Lady Barker asked me a direct question about whether the Bill changes anything in respect of the guidance that currently exists for teachers on how to teach sensitive issues under the heading of “sex and relationship education”. No, it does not. I should note at this point that there is a later amendment, Amendment 46B in the name of the right reverend Prelate the Bishop of Ripon and Leeds and my noble friend Lady Cumberlege, which relates to religious freedom for faith schools and it is directly linked to Section 403 of the Education Act 1996, which has been quoted by noble Lords in the course of this debate. So I will return to that issue on Monday and, while I hope to be clear and comprehensive in responding to these amendments, this is not the only debate we will have on education in Committee.
Amendment 23 would have broad application to all teachers in all maintained schools. I must stress, as has already been said by the noble Baroness, Lady Thornton, that no teacher is under any obligation to endorse a particular view of marriage or would be in the future as a result of the Bill. Teachers are and will continue to be free to express their personal views or those of their faith about marriage or any other matter, provided they do so in a balanced and sensitive way. There is a significant difference between expecting a teacher to explain something and expecting them to endorse it. Teachers are required to explain the world around them in a way that is appropriate to the age and level of understanding of their pupils. This includes explaining some things which may be controversial and with which they may not necessarily agree. The examples that have been used tonight in debate include divorce and contraception. As many noble Lords have said, teachers are already very experienced in dealing with such issues and do so admirably and professionally. The noble Baroness, Lady Farrington, gave a powerful illustration of how teachers handle these complexities already. They are required to ensure that their teaching is balanced and they take care to ensure that there is no stigmatisation of children based on their home circumstances, their own sexual identity or their own views and beliefs. Teachers are not prevented from discussing their own views, provided they do so in an appropriate way. It is worth reminding ourselves that there are children in classrooms today who are struggling with their sexual identity. This is not just about the teacher; it is also about the pupils and how they respond to the lessons that they receive.
A lot has been said today about tolerance and courtesy. My noble friend Lord Waddington raised the need for that in the context of this debate—we have to continue to respect differences of opinion. I understand the point that my noble friend makes in this context and it has been acknowledged on all sides of the House. As the noble Baroness, Lady Farrington, said, that is precisely what we want children to learn through professional teaching explaining the differences that exist in our society. This is not just about the tolerance that we expect of each other in debating these issues. We want to help our children be tolerant and to respect one another. That is an important part of this process.
The noble and learned Baroness, Lady Butler-Sloss, expressed a concern about teachers being criticised by the same-sex parents of a pupil for expressing their personal view that they do not believe in the marriage of same-sex couples. However, that kind of scenario could happen now in the context of civil partnerships. I therefore go back to the debate that we had on Monday about the law protecting people against others who might not understand their freedoms. Clearly we have a responsibility to ensure that people are aware of and understand the freedom that everyone has to express their views, and it is perfectly legitimate for a teacher in a classroom to be able to do that. If it happens that someone decides to pursue a case against someone else, the law exists to protect them from inappropriate discrimination.
Schools, like any other employer, have responsibilities to their employees under equality and employment law. Teachers, like other employees, are protected from being discriminated against or harassed because of their religion or belief. As I have made clear, this includes a belief that marriage should be only between a man and woman. I forget now who it was but it may have been the noble Lord, Lord Dear, who said that they can express that opinion to each other as teachers in the common room or express that belief in the classroom. It is clearly wrong, as I have stated many times, to say that, because someone believes that marriage should be only between a man and woman, that means the person is homophobic. That is not the case, and I will keep saying that because it is important that we help people to know that it is not the case.
In this context, as I have also said in the context of other debates, the Equality and Human Rights Commission’s statutory codes and guidance, particularly where they relate to public bodies, will help us to ensure that this understanding is widespread. No teacher is obliged to endorse a particular view and no school should disadvantage a teacher because he or she does not do so. If a teacher feels that he or she has been treated unfairly, procedures are in place for them to seek redress. I would hope that the first step would be to take this up through the appropriate channels at school level.
The noble Lord, Lord Dear, gave a range of examples that he had been informed of where he felt that some teachers were being treated unfairly. I feel that the process and the protection are there for any teacher who may feel that they are being treated unfairly, but it is worth pointing out that the Bill that we are discussing now has not become an Act. This Bill is not what is affecting those teachers of whom the noble Lord has been made aware. Those situations predate what we hope will become an Act in the future.
I turn to the noble Lord’s Amendment 24, which is about parents having the ability to withdraw their child from lessons. Parents already have the right to withdraw their child from any or all aspects of sex and relationship education, including any teaching about marriage, with the exception of those specific topics that form part of the national curriculum for science, covering biology and reproduction. Parents also retain the right to withdraw their children from any and all parts of religious education and acts of collective worship. That is not affected by the Bill.
If a school chooses to cover aspects of teaching that are outlined in the Secretary of State’s guidance on sex and relationship education—further to that outlined in the national curriculum in a biology lesson, for example—then parents have the right, and will continue to do so in future, to withdraw their children from those aspects. This is where that matter relates to the issue that my noble friend Lord Eden raised about material. It is important to remind the House that parents should be fully consulted about the school’s approach to sex and relationship education to ensure that they are comfortable with what is being taught. This should include both the content of lessons and the context in which it will be presented.
I further reassure the House that such information is already available for parents. Schools are required to have a written policy on sex and relationship education and that policy must be available to parents on request. What is being taught in this context should include parents. They should be able to understand it, and it should inform their decision as to whether their children should be involved in sex and relationship education—although we would urge that all students be allowed to participate in those lessons because of the benefits we believe they can derive from them. I note the view expressed by the noble and learned Baroness, Lady Butler-Sloss, about ensuring that all students are included.
As regards teaching that is not part of sex and relationship education or religious education, there is no right for parents to withdraw their children from lessons, because the national curriculum is the statutory body of knowledge that every pupil should know. Furthermore, as the noble Baroness, Lady Farrington, said, questions about marriage may arise in any lesson and at any time, and it is not practically possible to know in advance when this may happen. The Government have full confidence in the professionalism of teachers to handle situations in which sensitive topics arise outside sex and relationship education carefully, professionally and in a balanced way.
As I said at the start of this debate, this is not the only debate that we will have on teaching and education in the passage of the Bill. However, it is important for me to be clear that teachers are not required to endorse any belief that they do not have. They are required to explain the law as it stands. They are free to express their personal view as long as they do so sensitively and take into account the context of their lesson. Clearly, what we hope to achieve is the kind of situation that the noble Baroness, Lady Farrington, said the late Lord Joseph talked about in terms of what we hope all our children will be able to achieve from the kinds of lessons that are available to them now. I hope the noble Lord feels able to withdraw his amendment.
Lord Elton
Did I understand my noble friend to say that parents are not now allowed to withdraw their children from, specifically, sex education?
Baroness Stowell of Beeston
I am happy to confirm to my noble friend that parents are indeed allowed to withdraw their children from sex and relationship education. They can do so now and they will be able to do so in future, if that is what they decide.
Lord Dear
I am very grateful to the Minister for the way in which she has summed up and the way in which she has handled these difficult issues. I thank all noble Lords who have taken part in this debate. It has been very illuminating. We have covered a lot of ground, and I take the point that we will be covering educative issues later in Committee.
I will very quickly make four points. First, I ask the Minister to take on board the very considerable concern that the ComRes poll showed among teachers. I ask her to reflect on her words, which were said, of course, in an effort to be helpful when she spoke at Second Reading, distinguishing the factual and legal position on the one hand and promoting and endorsing views on the other. I still maintain that is a very fine balance in the classroom and may be very difficult to disentangle. In fact, I unashamedly lifted the word “endorse” from the Minister’s speech and put it into the amendment. It may be that we can find a different word, but the issue is still there, balanced, as I said, on something of a knife edge. One has to take into account the opinion of leading counsel on this, and that runs straight into the opinion of the Joint Committee on Human Rights, which stated,
“we encourage the Government to consider whether specific protections are required”,
and so on.
From what I have heard in the Chamber tonight there is sufficient doubt and concern on these issues for us to carry those forward into later debates on the whole business of the classroom, teaching and parents. I hope that at the end of that debate, between Committee and Report stages, the Government will be involved in discussions. I would be very happy to join in those discussions, if that was thought to be helpful. We may be able to bring something forward that would give a degree of satisfaction to those who are involved.
Lord Elton
“(3A) Regulations under this section shall in particular—
(a) specify the terms of the marriage contract; and (b) make provision for each party to a civil partnership within subsection (1) or (3) to undertake, before witnesses and by oath or by solemn affirmation, to honour the contract and the other party to it for as long as both of them are alive.(3B) The oath or solemn affirmation referred to in subsection (3A)(b) shall be made before not less than three witnesses.
(3C) Neither a registrar conducting the conversion of a contract nor either of the parties to that contract may act as a witness under the provisions of subsection (3A).
(3D) The oath or solemn declaration referred to in subsection (3A)(b) shall be recorded in the certificate of marriage issued by the registrar on completion of the conversion.”
Lord Elton
My Lords, I have gleaned a little popularity that way. I hope that I will now get a good reception for Amendment 24C.
The background to the amendment is that the whole purpose of the Bill is to accord a higher status to those people who at the moment have been limited for permanent unions to resorting to a civil contract. It seems rather absurd that to convert that to a marriage, which is supposed to be a leg-up, as it were, should be left to regulations made not even by the Secretary of State—which I would have dealt with by the earlier amendments in my name—but by the Registrar General, and that there was to be no mention of any sort of formality or ceremonial required of the process. Some form of swearing of an oath of continuity should form a part of anything that calls itself a marriage.
I have set out an Aunt Sally that requires the regulations—made by the Secretary of State or the Registrar General, as the case may be—which specify the terms of that oath in the marriage contract, to make a requirement that both parties to such a marriage shall swear lifetime fidelity,
“to undertake, before witnesses and by oath or by solemn affirmation, to honour the contract and the other party to it for as long as both of them are alive”.
I put a requirement that it should be made before witnesses as that is the barest bones for a ceremony of some sort which incorporates one of the essential elements of a marriage. After all, if they do not want a lifetime union, what is the point of having a marriage? This is a reasonable thing to do, and I do it to enhance the status of what noble Lords opposite are trying to achieve. I hope that it will at least give your Lordships something to think about between now and Report. With those few words I commend this amendment to your Lordships’ House.
The Deputy Speaker
I assume that the noble Lord would like to move his amendment.
Lord Elton
I thought commendation amounted to movement. However, I beg leave to move the amendment.
Baroness Northover
My Lords, Amendment 24C sets out a procedure for the conversion from civil partnership to marriage to take place under Clause 9 of the Bill. My noble friend proposes an oath or affirmation to be made before three witnesses. We already have adequate powers in Clause 9 that would enable the making of provision for a ceremonial element to the conversion, which could consist of spoken statements and/or a requirement for the presence of witnesses. It would be premature to be more specific.
We are still developing detailed proposals for how the conversion process would work and these are not straightforward issues. For example, the more elaborate the arrangement, the more costly this is likely to be for the couple, many of whom may wish to have a very simple, essentially administrative process, given that they may have incurred significant costs when registering their civil partnership. Let us not forget that if marriage had been an option when many couples contracted their civil partnership they might have opted for marriage originally and will consider that they do not need to jump additional hurdles or show more commitment; they have already done that. It is important that we do everything we can not to force such couples down a costly route if they do not wish to take it.
I acknowledge that some would like a requirement for some form of declaratory or contracting words to be spoken in a procedure as an integral part of the conversion, while others would want a minimalist approach. We will be consulting interested stakeholders as we shape the detailed policy for conversions so that the regulations are as inclusive as possible of affected couples’ wishes. We should not lose sight of the fact that a conversion is not, and never has been, intended to signify the beginning of a relationship; rather it is a change of status of an existing legal relationship. Conversion will be an administrative process, although we believe there should be a possibility of an optional ceremonial aspect for those who want it. We will bring forward our proposals in good time so that we can get the process right.
I appreciate my noble friend’s recognition of the significance of marriage to couples who wish to convert their civil partnership. Nevertheless, as the methods of such conversion are very carefully considered, I hope my noble friend will bear with us and withdraw his amendment.
Lord Elton
My Lords, I was very interested in the terms in which my noble friend asked me to do that. I wonder if she is familiar with the fourth report of the Delegated Powers and Regulatory Reform Committee on the Bill. Paragraph 6 says:
“We do not consider it appropriate to describe the powers conferred by clause 9 as being administrative in nature”—
which is what she has just done.
“The regulations will set out the entire process under which a civil partnership is converted into a marriage, including whether or not it requires the presence of the parties and (if so) the nature of the ceremony they are to take part in. This is a wholly novel process with no indication given in the Department’s memorandum as to the form that it will take or as to fees which may be required to be paid”.
It seems that not enough thought has been given to this in advance. In bold type the report then says:
“Accordingly we recommend that regulations under clause 9 should be made by the Secretary of State, with the affirmative procedure applying to the first exercise of the powers, and with the regulations thereafter being subject to the negative procedure”.
I hope that my noble friend will warm to that idea as the bare minimum that would induce me at a later stage to withdraw the amendment.
Baroness Northover
My noble friend has neatly rolled up his previous amendment as well. I am aware of the Delegated Powers Committee report. We have just received it and will be studying it carefully, considering all its recommendations. I note what my noble friend says and I ask him to await our response to the committee’s recommendations.
Lord Elton
That said, and anxiously awaiting developments, which I hope will be ahead of Report stage so that I can digest them and maybe even have the honour of discussing them with the Minister before Report stage, I beg leave to withdraw my amendment.
Lord Elton
My Lords, I apologise. I gave notice that I had a point to raise, but it was drawn inevitably into my remarks after the noble Baroness gave me her answer. I no longer have anything to say.
Lord Alli
My Lords, the effect of Amendment 26A is to remove the schedule that converts same-sex marriages into civil partnerships in Northern Ireland and Scotland. The Bill makes legal same-sex marriages in England and Wales. I state from the outset that the amendment does not alter the laws of Scotland or Northern Ireland in relation to conducting same-sex marriages. These are prescribed matters for the Parliament in Scotland and the Assembly in Northern Ireland. I do not wish to trespass on their jurisdiction any more than the Bill already does. My intention is not to amend legislation in Northern Ireland or Scotland by the back door.
The effect of the schedule is to state that, even though a couple are lawfully married in England and Wales, they are deemed not to be married in Scotland and Northern Ireland. The Government’s view seems to be that a couple lawfully married in England should not be treated as such elsewhere in the union where such marriages are not performed. In particular, a couple of the same sex married in England and Wales should not be recognised as married but rather treated as civil partners, even if they have not entered into a civil partnership. If I were to get married in London and move to Belfast—I am sure the noble Lord, Lord Waddington, would be very pleased about that—the Bill would convert my civil marriage to a civil partnership.
I am not persuaded that the Government are right about this. As the union develops, with increased devolution of the nations and regions, we are all to a certain extent fumbling our way forward together. Our absence of a written constitution has the advantage of flexibility, but there is not always the certainty that would be helpful. There will be times when one of the regions or nations passes a law that does not sit comfortably with the laws of the other parts of the union. The question is how we should resolve that, and whether there are any precedents that might be helpful. I am not aware of any, and the Government are in danger of creating an unhelpful precedent.
In the absence of past guidance, it would be helpful to look at basic principles. A first principle must be that as our devolved union develops, it is very important that it should do so on the basis of what we have talked about this evening: namely, mutual respect. For example, it would be wrong for England to try to force another part of the union to pass laws on which it has devolved powers, but it would be quite appropriate for England to expect other parts of the union to respect English law. A law passed in one part of the union cannot simply be ignored in another part because it is unpopular there.
On the point in hand, it would be a constitutional nonsense for a couple to be deemed to be married in one part of the United Kingdom and not in another. If that were the case, it would be difficult to understand exactly what the union was for. I argue that it is up to the Secretaries of State for Scotland and Northern Ireland, and the Scottish and Northern Irish Ministers, to ensure that a couple married in England and Wales are treated as married in Scotland and Northern Ireland. It is not for us to presume to convert English and Welsh marriages to Scottish and Northern Irish civil partnerships. I hope that the Minister will agree and accept the amendment. I beg to move.
The Duke of Montrose
My Lords, my amendments are grouped with that of the noble Lord, Lord Alli. The reason is of course that if his amendment is carried, then the schedule to which my amendments attach will be removed. I thought that the noble Lord, Lord Alli, with his usual bold capacity for initiative, was going to tangle with the whole question of devolved legislation and what can be done between the Scottish Parliament and the English Parliament. In some ways he managed to work around that, although in fact he must recognise that certainly there are separate laws between Scotland and England. Various situations must be responded to according to the law in the country in which they occur. However, at this time of night I shall move rapidly on to my own amendments, rather than trying to unravel some of his proposals.
I found a number of Scottish lawyers with questions about the outcome of what the Government propose in Schedule 2. My amendments were prompted by the Law Society of Scotland, and basically address two issues. First, paragraph 1(1) of Schedule 2 states that:
“The Secretary of State may, by order, provide that, under the law of Scotland, a marriage of a same sex couple under the law of England and Wales is to be treated as a civil partnership”.
This would apply to all same-sex marriages. In some ways that is the point made by the noble Lord, Lord Alli: some people might feel that this is unjust, and there would be room for only limited exceptions for whom this was not agreeable. This would only be possible with a further counter-order from the Secretary of State under paragraph 2(b).
The other more fundamental issue concerns the doctrine of the separation of powers. The Civil Partnership Act 2004 passed legislation for the whole of the UK using the full process of Parliament. Schedule 2 gives the Secretary of State the power to make a ruling by order on private right and personal status. Determining how personal relationships are treated under law is properly a function of the judiciary, which has jurisdiction over matters of personal status. Here, we have the Executive taking over a function of the law. Amendment 28 asks to transfer this function of the Secretary of State to the Court of Session, which has the power to make declarations under current family law. Using the mechanism proposed in the amendment will give the court the advantage of ascertaining the facts in each case where the parties seek a declaration as a civil partnership, and bring in the element of individual choice.
If the Government wish to continue with the mechanism they propose, it would be helpful if they would answer three questions. First, what process will be used to produce orders under Schedule 2, and what safeguards will be put in place to address the issue of separation of powers? Secondly, what criteria will be applied to those orders which permit treatment of a same-sex marriage as a civil partnership? Thirdly, what remedies would aggrieved parties have?
Baroness Butler-Sloss
My Lords, I find this part of the Bill quite extraordinary. I have the greatest possible sympathy with the amendment of the noble Lord, Lord Alli, and indeed with that of the noble Duke, the Duke of Montrose. If one took the analogy of English law, a marriage which is celebrated in another country according to the law of that country is generally recognised in English family law. I have tried endless cases involving a dispute as to whether or not a marriage is valid in the country where it was carried out. There will be issues of whether or not the two parties were capable of marrying in that country, whether they are domiciled or resident in that country and so on.
However, if those particular points are dealt with, then it is a matter for English law to say whether we will recognise a marriage. Why are we legislating for what Scotland or Northern Ireland will do if in fact it is a perfectly lawful marriage in England and Wales? Is it not for Scotland or Northern Ireland to say, “Yes, we accept it”, or, “No, we do not”? I find it absolutely astonishing that we are dealing with this. As for the suggestion that a marriage lawfully carried out in England is to be called something completely different in Scotland and Northern Ireland, as I say, I find the whole thing quite astonishing.
Baroness Thornton
My Lords, Amendment 26A in the name of my noble friend Lord Alli would remove the special arrangements made in the Bill to require the legal recognition of marriages of same-sex couples as civil partnerships in Scotland and Northern Ireland. I sympathise with the sentiment behind these amendments. British same-sex couples who get married in England or Wales but choose to live in Scotland or Northern Ireland will not have their status legally recognised for what it is. However, it is the nature of devolution that we cannot impose the will of Westminster on devolved Administrations in areas where it has ceded authority.
Marriage law is devolved to both Northern Ireland and Scotland, meaning that any desire by Westminster to legislate in this area for the whole of the UK requires the consent of these Administrations. I know that Scotland is in the process of looking at same-sex marriages at the moment, so I hope that we shall shortly see same-sex marriage introduced in Scotland and therefore this issue will become somewhat less relevant.
In Northern Ireland, civil partnerships have been available since 2005. However, Northern Ireland has chosen not to consider extending marriage to same-sex couples at this time. A Motion calling on the Northern Ireland Executive to legislate to allow for same-sex marriage was narrowly defeated in its Assembly last month. I recognise my noble friend’s frustration at this. However, I ask the Minister, what are the implications if the legislative consent Motion is not agreed to by the Northern Ireland Assembly? Does it mean that married couples of the same sex living in Northern Ireland may be left in a worse position, having no legal recognition of their status whatever? What might be the implications for children and pensions? I am concerned about the legal implications of such a disparity of recognition and hope that the Minister will be able to answer the questions I have around this issue.
Couples in a civil partnership are prohibited from adopting children in Northern Ireland—a situation which is currently being challenged in the High Court. For those couples who have been married and adopted children in England and Wales and who move to Northern Ireland, what will be the status of their adopted children? Will the couple be recognised as the legal parents where they are living?
In relation to pension rights and accrued survivor benefits, if a married same-sex couple have been living in England for 10 years and then move to Northern Ireland, will they lose the right to those accrued benefits, or will they be carried over to their civil partnership status?
Lord Wallace of Tankerness
My Lords, I welcome the opportunity to clarify how the Bill, which makes provision for marriage of same-sex couples under the law of England and Wales, affects Scotland and Northern Ireland. I assure your Lordships that the Government have had lengthy and considered discussions with Scotland and Northern Ireland Ministers and officials to ensure that where the Bill touches on devolved matters, it does so appropriately. I understand where the noble Lord, Lord Alli, is coming from on this but it is not possible for us to accept his amendment or, indeed, those spoken to by my noble friend the Duke of Montrose, which would cut across the approach that we have been discussing with the devolved Administrations.
Indeed, the effect of the amendment of the noble Lord, Lord Alli, would be to remove the relevant part of Schedule 2 to the Bill. It might be helpful if I explain the effect, and importance, of Schedule 2. Without the provisions in Schedule 2, if a same-sex couple married in England or Wales, their relationship would not have legal status if they subsequently travelled or moved to Belfast or Glasgow. It is not that their marriage in England or Wales would become a civil partnership; it would have no status whatever under the law of Scotland or Northern Ireland.
Lord Alli
But it does not have a legal status in Northern Ireland and Scotland because it is a marriage in England and Wales. What the Bill is proposing is for this Government and this Parliament to request—because that is all we can do—the devolved Administration in Northern Ireland and the Scottish Parliament to accord it a lower status in those territories.
Lord Wallace of Tankerness
My Lords, the position is that, as things stand at the moment, there is no provision in either Scotland or Northern Ireland for same-sex marriage. Therefore, if a same-sex couple who are married in England and Wales were to move to Scotland or Northern Ireland, their relationship would not have a legal status of marriage in Scotland or Northern Ireland because that provision does not exist. There is no such thing at the moment in Scotland or Northern Ireland as same-sex marriage. Schedule 20 to the Civil Partnership Act 2004 lists the overseas same-sex relationships which are treated as civil partnerships in the United Kingdom. This partly answers the question raised by the noble and learned Baroness, Lady Butler-Sloss.
At the moment, overseas same-sex marriages are not recognised as marriages in England, Wales, Scotland or Northern Ireland. They are treated as civil partnerships in the United Kingdom, and Section 213 of the Civil Partnership Act 2004, under which Schedule 20 has effect, also sets out the general conditions which must be met for such relationships to be recognised in the United Kingdom. If the amendment of the noble Lord, Lord Alli, were to be carried, we would have the slightly anomalous situation where a couple moving to Belfast or Glasgow would be in a worse position than a same-sex couple who married in Portugal, or elsewhere overseas where same-sex marriage is permitted, and then went to live in Scotland or Northern Ireland.
Under the current law, the 2004 Act, these same-sex marriages contracted, for example in Portugal, would be treated as a civil partnership. If this Bill becomes an Act, we do not wish to see a situation where a same-sex couple married in England would have lesser legal status in Scotland or Northern Ireland than a same-sex couple who married in Portugal. It is for that reason that Schedule 2 exists. As the noble Lord indicated, marriage and civil partnerships are devolved matters. The noble Lord asked why Secretaries of State for Scotland and Northern Ireland could not get together with Scottish or Northern Ireland Ministers to make them marriages. That is not how devolution works. Legislation would have to be passed by the Scottish Parliament or the Northern Ireland Assembly.
As the Bill anticipates, referred to by the noble Baroness, Lady Thornton, the Scottish Government have indicated that they will bring legislation before the Scottish Parliament to bring about same-sex marriage as a legal status in Scotland. That is why, if noble Lords look carefully at the provisions for Scotland in Schedule 2, the order-making power would not have effect if the Scottish Parliament passes legislation for same-sex marriage. In many respects, what is there is deliberately framed, recognising the likelihood that same-sex marriage legislation is to be brought forward in Scotland in the relatively near future.
It is probably also fair to say that same-sex marriage legislation does not appear to be on the horizon in Northern Ireland. That is why the position regarding Northern Ireland is that there is not an order-making power, which will lapse in Scotland when or if Scottish law changes, but rather one that sets out in primary legislation the same position for same-sex marriages contracted in England and Wales in Northern Ireland, as is the case for same-sex marriages contracted in other countries, such as Portugal. People there would be in the same position in Northern Ireland as they would at present.
Last week, the Scottish Parliament passed a legislative consent Motion to the provisions in this Bill which impinge and deal with devolved matters affecting Scotland. The question was asked what would happen if we could not get a legislative consent Motion from Northern Ireland. Our concern would be that this would risk leaving couples with no legal status in a part of the United Kingdom. This could have important European Convention on Human Rights implications. We would need to consider this carefully if this situation arose and whether amendments to the Bill would be needed.
I know that this is not what the noble Lord, Lord Alli, wishes to see, but given the devolution settlement, this Parliament should not legislate for same-sex marriages in Scotland or Northern Ireland and I do not think that anyone in this Parliament is arguing for it. However, in the absence of legislation there, it is important that we give couples who have contracted a same-sex marriage in England and Wales a legal status in Scotland and Northern Ireland. Without the schedule they would have no legal status, so we are putting them on a par with couples who are married in other countries which have passed legislation on same-sex marriage.
The Duke of Montrose
My Lords, I always understood that the first purpose of an order was to be a blanket order to cover all situations. What remains from my questions is: what process does the Minister expect to use for the implementation of the order and what account does it take of the separation of powers? I think that he was saying that the Scottish Parliament has agreed that you can cross-mix the powers.
Lord Wallace of Tankerness
My Lords, the Scottish Parliament has agreed a legislative consent Motion to the provisions in the Bill relating to Scotland, which is very much what we are talking about. The procedure is that the order-making power would be subject to the negative procedure. I am aware that the Delegated Powers Committee has suggested looking at the possibility of there being an affirmative power. We will obviously give consideration to that, but the power also requires the consent of Scottish Ministers. That will be the process. Consent will be required from Scottish Ministers and there will be a negative procedure in this Parliament, subject to our considering the recommendations of the Delegated Powers Committee.
With regard to the separation of powers, I tried to indicate that this is a general position, not a question of the Secretary of State determining the legal status of each couple individually by order. It is a general power that is being given and it is therefore appropriate for the legislature to give that power to the Secretary of State, and for the Secretary of State then to exercise that power. It is not an appropriate matter for the courts because they obviously cannot exercise such a power on a general basis and would have to consider these matters case by case. As I have indicated, that could place a considerable burden on the courts. It would also mean that those who had moved to Scotland and were petitioning the Scottish courts for recognition of their status would, during that period, have no legal status at all. That is not a satisfactory position in which to put these couples.
Perhaps I may write to the noble Baroness, Lady Thornton, about her question on accrued pensions. There is provision to make some variation of the orders and there may be some situation in which that issue would be relevant. However, I will write to her and confirm that position.
Lord Mackay of Clashfern
My Lords, does it not require a statutory provision in Scotland to make this work? Therefore, it is not a matter for the courts in Scotland; it is a matter for the Secretary of State and Ministers in Scotland to make a statutory order to make the rule part of the statutory law of Scotland.
Lord Wallace of Tankerness
As ever, my noble and learned friend expresses it far more concisely than I do.
Lord Alli
My Lords, I thank the Minister for that reply but, as he probably recognises, I am not happy with it. If I got married in England or Wales, I would expect my marriage to be recognised in Scotland and Northern Ireland. It is the essence of the union. For us to have found a mechanism in the Bill to convert marriages into civil partnerships feels as though it was too difficult politically to keep them as marriages. It is clearly a nonsense for couples to be married in England and Wales, and then be treated differently in Northern Ireland and Scotland. For us, in this Parliament, to determine that a marriage in England and Wales should not be treated as a marriage in Scotland and Northern Ireland, without putting the question—as the noble and learned Lord, Lord Mackay of Clashfern, just indicated—to the Secretary of State for Scotland, and those Scottish Ministers for that order, or indeed to the Northern Ireland Secretary of State and Ministers, is for us to be complicit in perpetuating an inequality. Nevertheless, I will read what the Minister said and reflect, but I have no doubt we will return to this on Report. I beg leave to withdraw my amendment.
Lord Trefgarne
“Marriages at sea
In section 26 of the Marriage Act 1949 (marriages which may be solemnized on authority of superintendent registrar’s certificate), after subsection (1)(e) insert—“(f) a marriage of a same sex couple conducted by the Master of a British ship registered under the Merchant Shipping Act 1995 while that ship is sailing outside of the territorial waters of England and Wales.””
Lord Trefgarne
This is in essence a probing amendment. However, like all good probing amendments, it has the merit of being properly drafted, and could readily form a useful part of the Bill if the probing is not particularly successful or satisfactory. I must say that my research into the legal basis for marriages at sea has been difficult and tortuous, and I am still not entirely clear what the statutory basis is. No doubt the Minister will be able to tell me in a moment. Neither the Public Bill Office nor the Library could identify the particular legislation that apparently authorises marriage at sea. Is there such a thing as a common-law marriage? Oh dear, I am getting into deep water.
Seriously, as everybody knows, captains of ships often carry out marriages. Indeed, one noble Lord—who shall remain nameless—was telling me earlier today that he had indeed been married at sea by the captain. Unfortunately, some years later, when he sought a divorce from his wife, some doubt was cast on the validity of his marriage, which could apparently have been a good thing in simplifying the divorce. None the less, that was a complication that was not looked for.
It is important that, if we are to pass this Bill into law—doubtless we are, even to the regret of many of us, including me—it must be as rational and sensible as possible. If there are to be single-sex marriages in England and Wales at least, marriages at sea—which I believe have formed part of English law for a great many years—should be included in that arrangement. That is the purpose of the amendment that I have tabled.
I have drafted it in a way that I think is sensible; namely, so that it should apply outside British territorial waters. If it were to operate inside our territorial waters, I believe that would create complications. Further, I would suggest that we can extend our legislation only to British-registered ships, although I may be wrong about that. However, that seems both sensible and appropriate. On that basis, I beg to move.
Baroness Thornton
My Lords, I recommend that the noble Lord, Lord Trefgarne, should google marriages at sea. It says that captains can perform marriages, but they need a licence to do so, just like anyone else. There are no laws that automatically grant captains the right to marry, although you would not know that from watching the television. Apparently this possibly originates from the days of sail when Europeans would have to travel by ship for months at a time to reach far-flung colonies. A couple might meet, court and marry while en route to their destination.
The same Google search threw up a quote. I am a great fan of “Star Trek” and the Starship “Enterprise”. Apparently, Captain James T Kirk said:
“Since the days of the first wooden vessels, all shipmasters have had one happy privilege, that of uniting two people in the bonds of matrimony”.
Captain Kirk’s successor, Captain Jean-Luc Picard, played by Patrick Stewart, a fellow Yorkshireman and great Labour supporter, said, “Make it so”.
Baroness Northover
My Lords, my noble friend’s amendment would enable marriages of same-sex couples to be conducted by the master of a British-registered vessel on the authority of a superintendent registrar’s certificate outside the territorial waters of England and Wales. However, this is not a right possessed by opposite-sex couples, so this would in fact be out of line. I am absolutely delighted to fill in my noble friend on marriage at sea, and I have learnt a great deal about it as well.
At present, the validity of a marriage on board a British merchant vessel is governed by the law of the country in which that vessel is registered. In the law of England and Wales, the Marriage Act 1949 does not provide for marriages to take place on board UK registered vessels at sea, and the Foreign Marriage Act 1892 applies only to marriages outside UK jurisdiction. Neither is it clear that the common law of England and Wales provides authority for the validity of marriages that are celebrated on merchant vessels at sea, although there are historic authorities which suggest that a marriage could be formed under the common law only if it was not possible to wait until the ship reached port. It is unclear whether those authorities still apply, given that there is now statutory marriage law covering both domestic and foreign marriages. However, in any event, such a scenario is extremely unlikely to arise in current times. Therefore, at present, we do not believe that it is possible for a heterosexual couple to have their marriage formally solemnised by the master of a British ship.
I can fill my noble friend in on some additional material, but probably not tonight. The purpose of the Bill is to enable same-sex couples in England and Wales to marry in a civil ceremony, or in a religious ceremony if the religious organisation opts in. It is not intended that marriage for opposite-sex couples should be altered, even if everybody does want them to get married at sea, or that the Bill should bring about wider changes to marriage law. I hope, therefore, that although he is no doubt disappointed, my noble friend will be happy to withdraw his amendment. Lastly, I will supply him with more information than either Google or his own investigations have produced.
Lord Trefgarne
My Lords, I have to be honest and say that I am more mystified than disappointed. Listening to the noble Baroness, Lady Thornton, talking about the Starship “Enterprise”, I am tempted to ask whether the captains of aircraft might be granted this right, but perhaps that would press the extent of the amendment just a little too far. I am grateful to the noble Baroness for what she has said and I beg leave to withdraw the amendment.
Lord Mackay of Clashfern
Lord Mackay of Clashfern
This is an extremely simple point, but possibly of some importance. Clause 11 (1) says:
“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”.
This is not correct as it stands, because there are all these provisions later in the schedules; therefore, the accurate enunciation of the law will be subject to the later provisions of this Bill. I beg to move.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble and learned friend and, as is clear from today’s list, this amendment was debated as part of a group yesterday. My noble and learned friend gave me notice that he wanted to ask a question following on from the debate. I have been given an answer to his question, which I could read out, but I know I would not understand what it is I am reading, and I know we are keen to make progress. The most sensible course of action is for me to ask Parliamentary Counsel to reflect on the points that my noble and learned friend has made and I will then ensure that I write to him as soon as possible and then put a copy of that letter in the Library.
Lord Mackay of Clashfern
My Lords, I am very grateful and am happy to withdraw the amendment on that assurance that Parliamentary Counsel will look at this.
Lord Tunnicliffe
My Lords, I rise to move Amendment 33A in the name of my noble friend Lord Stevenson of Balmacara, which is a probing amendment. Our interest in this issue is to draw attention to people born with an intersex condition; individuals whose anatomy or physiology differs from contemporary cultural stereotypes of what constitutes male and female.
Being intersex is not a disease, it is not a disorder, it is a perfectly normal—and quite common—variation within human development. The need to use the term is made necessary by society’s insistence on maintaining a rigid classification of all human beings as male or female. In many ways, those with an intersex condition can be termed non-gendered. Sometimes a person is not found to have an intersex anatomy until she or he reaches the age of puberty or she or he finds himself an infertile adult, or dies of old age and is autopsied. Some people live and die with intersex anatomy without anyone, including themselves, ever knowing.
If we take the classic stereotypes of what constitutes male and female and consider the biological, social, gender or sexual orientation in the round, there are very few human beings who completely conform in all aspects to the rigid stereotypes. Most people vary from the standard stereotypes in some ways, sometimes in small details, sometimes significantly. Some commentators would now consider sexuality as a continuum with the standard stereotypes as the extremes of this continuum.
One major difficulty with the use of bipolar stereotypes is that there is no precise way of determining into which of the two boxes someone should be placed at birth. All the available yardsticks are flawed: karyotype, gonads, secondary sexual characteristics, appearance—none of these, or even any combination of them, can determine sex with absolute certainty. It is only by ignoring the vast amount of biological evidence to the contrary that this fiction of a strict bipolar sexuality can be maintained. Those who clearly do not fit these classifications—a substantial minority—are dismissed as being disordered or biological errors which require fixing.
It is understandable to discover that, when an infant is born, there is often great pressure on parents and clinicians alike to come up with a clear definition of sex for the newborn. Such people are often subjected by the medical professions to surgical and chemical interventions, usually without their explicit permission, to normalise them and thereby eradicate the evidence of difference.
Your Lordships will understand that, with this amendment, we are talking about a largely hidden and often overlooked minority of people. Estimates of this population run to as many as 1% of live births exhibiting some degree of sexual ambiguity and between 0.1% and 0.2% of live births being ambiguous enough to become the subject of specialist medical attention, regretfully including involuntary surgery to address their sexual ambiguity.
If we lived in a legal jurisdiction where marriages were defined without reference to the sexual identity of the couples concerned, these complications would not occur. However, the approach underlying the Bill is based on an assumption that the sex of the participants is settled. The UK of course recognises the legal and official change of gender, which would allow a transsexual person to be legally married in accordance with their adopted gender identity. However, those intersex people who identify as non-gendered do not always, if they are allowed to, attempt to transition and are therefore excluded at all levels. Our amendment would specifically include in legislation, for the first time, those who identify as non-gendered.
Unless there is some consideration given to this largely hidden and often overlooked minority, they will be isolated yet again from the rights accorded to other, higher-profile groups. I beg to move.
Baroness Northover
My Lords, this amendment seeks to ensure that the Bill would allow individuals who identify themselves as being non-gendered—neither male nor female—to marry. We understand the challenges that intersex conditions can pose and appreciate the difficulties people affected by this can face. The noble Lord has, with great sensitivity, outlined the case for consideration of this group of people. I have great sympathy for their situation but, as the noble Lord is aware, we cannot accept this amendment.
As the noble Lord acknowledges, the law of England and Wales recognises only two genders—male and female. Although we understand that some people do not see themselves as either male or female, none the less everyone has a legal gender status of either male or female. The Bill does not change that, and it would not be an appropriate legislative vehicle in which to seek to do so. However, the Bill, by enabling same-sex couples to marry, will ensure that in future there will be no bar to an intersex person, or a person who identifies as non-gender, marrying anyone whom they choose. The effect of the Bill will be that people will be able to get married, and remain married, regardless of their legal gender. The issue raised by this amendment goes well beyond marriage. Having a gender in addition to male and female, or not recognising gender at all, would change a fundamental aspect of our law. Such a change would need to be considered carefully, in order to understand the implications for the many aspects of law which are based on gender differences.
I thank the noble Lord for the opportunity to discuss this important issue. I appreciate his statement that this is simply a probing amendment and I am grateful to him for addressing the concerns of those individuals who feel that they do not have a gender. However, I hope he will be prepared to withdraw his amendment.
Lord Tunnicliffe
My Lords, I thank the Minister for her understanding response. It is the first time, I think, that a Minister of the Crown has recognised this group in this House. That is an important first step in discussing this issue and addressing the needs of this group of people. I thank her for the sympathetic approach. My understanding is that, through various changes in the environment, this is actually a growing problem and it is an issue that will have to be addressed over time. However, I wholly accept the point that the Minister is making. This is a very complex issue and it will need very careful consideration and a very sensitive approach from all those involved in the debate. I am happy to assure the Minister that we do not intend to take this matter further forward in this Bill, and I beg leave to withdraw the amendment.
Baroness Northover
Baroness Northover
My Lords, in moving government Amendment 38 I will speak to the other government amendments in this group. These government amendments relate to technical but important provisions of marriage law which determine when a marriage is void—that is to say, considered never to have existed in the eyes of the law. Clarity in these provisions protects both couples and organisations conducting marriages. They also clarify the provisions for courts to issue a declaration of the validity of a same-sex marriage in prescribed circumstances.
I start with government Amendment 38. This ensures that paragraph 3 of Schedule 3 to the Bill is consistent with the rest of Part 1 of Schedule 3 in that it does not limit subsections (1) or (2) of Clause 11. It is necessary because, as a matter of statutory interpretation, specific provision may reduce the effect of general provision. Subsections (1) and (2) of Clause 11 make general provision and Schedule 3 makes specific provisions related to that clause. The schedule as drafted may give the impression, by omission of reference to paragraph 3, that that paragraph should limit Clause 11. This could cause confusion about the meaning of both clause and schedule.
Government Amendments 42, 43 and 44 clarify the use of the term “declaration of validity” in the Bill. They ensure that when the courts have jurisdiction to make a declaration of validity relating to a same-sex marriage as set out in Schedule A1 to the Domicile and Matrimonial Proceedings Act 1973, inserted by Schedule 4 to this Bill, the 1973 Act works properly for same-sex marriages.
Government Amendments 49 and 50 make provision for when marriages of same-sex couples will be void in circumstances where the religious organisation concerned has not agreed to same-sex marriages, according to its rights. In relation to the Church of England and Church in Wales, Amendment 49 provides protection to couples to prevent their marriage from being considered to be a non-marriage. If it was held to be a non-marriage, this would mean that the court could not exercise its powers in respect of financial relief, which they can do if the marriage is held to be a void marriage. This amendment also provides clarity for the Church of England and Church in Wales, and I can say that this issue was in fact raised with us by the Church of England, which we have consulted on the drafting of this amendment.
In the case of other religious organisations, Amendment 50 provides that where a couple is unaware that the religious organisation has not opted in to marrying same-sex couples, the marriage will be valid. However, if the couple took part in the marriage knowing that the religious organisation had not opted in, then the marriage will be void. If the couple marry in good faith, believing that the person who solemnised their marriage was representing the religious organisation, and that the organisation had opted in, they may live as a married couple for many years before the mistake comes to light. It is not right that they should be penalised for the mistake of the person who solemnised their marriage.
This amendment mirrors the provisions currently in place to deal with errors and mistakes in relation to the formation of opposite-sex marriages, which will also apply to same-sex couples. Government Amendment 52 provides the same clarity about the status of same-sex deathbed marriage under the Marriage (Registrar General’s Licence) Act 1970, which has been conducted by a member of religious organisation which has not opted in to conducting marriages of same-sex couples. Such marriages will be void if the couple knew the religious organisation had not opted in.
Finally, turning to government Amendment 58, the other place approved a government amendment on Report further to ensure that the protection for the Church of England in this Bill is both full and clear. The amendment replaced the power previously provided in Clause 11(5)(c) with an overarching reference to “other ecclesiastical law”, which, on balance, the Government felt would provide the church with more effective protection from the effect of subsections (1) and (2) of Clause 11, so that Church of England law should continue to be interpreted as referring to marriage of a man with a woman. Government Amendment 58 is consequential to that substantive amendment and removes from Clause 16 the parliamentary control procedure for the now deleted power in Clause 11(5)(c). I commend these government amendments and hope that noble Lords will support them.
The Lord Bishop of Guildford
My Lords, it is agreed on all sides that parents make the most fundamental contribution to the flourishing and development of children, and that there are many aspects of parenthood and many kinds of parenting in such a complex society as ours. There are many forms of being a family, as was illustrated earlier this evening by the example given by the noble Baroness, Lady Farrington, from her school.
We have a common-law presumption that a child born to a woman during her marriage is also the child of her husband. Paragraph 2 of Schedule 4 says that the common-law presumption does not apply in the case of a woman who is married to another woman—for obvious reasons. This is a probing amendment and the question is whether simply leaving matters there is sufficient. I argue that it is not because, in all the debates on the Bill here and in another place, and during the consultation process, there has not been enough concentration on children. Tonight, as briefly as I possibly can, I want to stress a more child-centred approach to the question of children in marriage—all kinds of marriages and especially same-sex marriages.
Currently and in future, in a marriage between a man and a woman any child born to the woman is presumed to be the child of her husband. As her husband, he bears a responsibility for that child, not least if something should happen to its mother. I am concerned that in the Bill there is no equivalent or automatic provision made for children brought up by a married couple of the same sex. If a woman in a same-sex marriage has a child, there is of course a biological father somewhere but, regardless of whether or not the father is in an ongoing relationship with the couple and their child, there is at present no responsibility on the mother’s spouse’s side for that child.
Helpfully, it has been suggested in the Explanatory Notes that the other party to a marriage will be treated as the child’s parent by virtue of amendments that the Bill is making to the Human Fertilisation and Embryology Act. These provide, under certain conditions, for the same-sex partner of a mother who gives birth to a child as a result of artificial insemination or the placing of an embryo in her womb to be treated as the parent of that child. I am sorry for this rather technical intervention at this point in the evening.
However, not all children born to mothers in a same-sex marriage will necessarily be born as a result of treatment to which the HFE Act applies. Such a child might be conceived in the conventional manner by a woman who is married to another woman. In such a case it would be possible for the mother to register the child’s father when she registers the birth, with the effect that he would have parental responsibility for the child. The complications of that are quite interesting. Alternatively, she might not do so and her same-sex spouse might become the adoptive parent of the child. If neither of these things were done, the child would have only one person with parental responsibility for it—this is the point.
There is thus a contrast with a child born to a mother in an opposite-sex marriage and there is a real possibility of children born to a mother in a same-sex marriage being disadvantaged as compared to children of opposite-sex marriages. This is not to say that children always have to have two parents—that is often sadly not possible. Moreover, sometimes a child brought up by a single parent or same-sex parents is actually better cared for than a child brought up by dysfunctional heterosexual parents. I give praise to couples who give love and care to children in same-sex partnerships and eventually in same-sex marriage. However, given the intention of the Bill to extend marriage and to provide equality, why should children of a same-sex marriage— some of them, at least—be at a potential disadvantage in some cases? This is a probing amendment and I ask the Government to consider this question very carefully indeed.
Baroness Butler-Sloss
My Lords, the noble Lord, Lord Northbourne, has asked me to speak on his behalf to Amendment 39A, which picks up exactly the same point as the right reverend Prelate’s. The noble Lord is not terribly happy with the wording that he has produced. It is, again, a probing amendment and it raises quite clearly the issue of parental responsibility. I am not sure that it is necessarily appropriate to delete paragraph 2 in Part 2 of Schedule 4 but the Government need to look at the point made by the right reverend Prelate that there will be children born to one partner in a same-sex marriage who will be the only person with parental responsibility although in every other way she and her partner will be married and, were they of opposite sexes, both would have parental responsibility. It is quite an important point. You might say, “Get a residence order”, but in the Children and Families Bill residence orders are going to be abolished. Consequently, I do not consider arrangements made for when parties are in dispute to be appropriate for those who are in harmony. Therefore, I ask the Minister to have a look at this question of how appropriate parental responsibility can be achieved for the female partner of a woman who gives birth during their marriage.
Baroness Barker
My Lords, I want to thank the right reverend Prelate for the speech that he just gave. I thought that he addressed some very difficult issues in the most sensitive way. I also think that it is important that we hold this debate, however late it is, not least to put on record the fact that very many gay couples think very seriously about parenthood. It is not something into which they enter lightly at all. Perhaps some of the most distressing of the accusations which have flown around this Bill are that people who are in support of it take the issues of children’s stability and parental responsibility less seriously than those who oppose it. That is absolutely not true. I happen to believe very strongly in marriage and one of the reasons is that I believe that it provides stability for children. That is why I want to see it extended to gay people because I believe that the children of those relationships deserve that stability.
I want to take the opportunity to flag up one thing. I am a veteran of the Human Fertilisation and Embryology Act and the question of registration of birth is one which is becoming increasingly complex. It has been very complex ever since we had planned donor-assisted conception. There is a small group of people who will never be able to find out what their identity is because they were born prior to the legislative changes that require there to be a registration of their biological parentage, and that has done enormous damage to those individuals.
There is a small group of people working in this area who have thought long and hard for some considerable time about the way in which the birth registration system of this country needs to be updated and changed. I do not want to go into it in great detail now, but the right reverend Prelate has flagged up an issue that is not for this Bill or indeed just for gay people. It goes much more widely than that, and it is something that the Government will need to return to. There was a report on this a couple of months ago which I thought might be from the Joseph Rowntree Foundation but was actually by the Nuffield Trust. It is one part of the issue that the right reverend Prelate has raised, and it is one that the Government should return to at some length and in more detail than will be possible within the scope of this Bill.
Baroness Thornton
My Lords, my noble friend Lady Royall and I came to the same conclusion as the right reverend Prelate the Bishop of Guildford that we needed to probe this issue, and for exactly the same reasons. It is not clear from reading the Bill exactly what is meant, whether it is satisfactory, whether it covers the point about those children and whether it is adequate in giving those children the stability that they deserve and require. The only way to do that was to put down an amendment to delete this provision, but we have no intention of doing so and merely wish to know that there is no legal uncertainty around the parentage of children of a married couple of the same sex.
All the other points that I was going to make about IVF and the embryology Act have been made. All that remains is for the Minister to reassure us that this point is covered or needs further consideration.
Baroness Stowell of Beeston
My Lords, I understand why noble Lords would want to seek clarification on this aspect of the Bill, so I am grateful to the right reverend Prelate and other noble Lords who have amendments in this group. I echo what my noble friend Lady Barker said about the right reverend Prelate’s introduction to this debate, and I share his view that it is important that we consider children in the context of the Bill.
My noble friend Lady Barker made an important point about married same-sex couples providing stability and security for their children and this Bill therefore being a good thing for children of same-sex couples. That is something that we should ensure is not forgotten in the course of our debates.
Amendment 39, in the name of the right reverend Prelate, would remove paragraph 2 of Schedule 4, which makes clear that the common-law presumption often referred to as the presumption of legitimacy, that a child born to a woman during her marriage is also the child of her husband, will not extend to same-sex marriages. For the clarity of our debate, it is probably worth my reading out what it says in of the Bill, which is not very long:
“Section 11 does not extend the common law presumption that a child born to a woman during her marriage is also the child of her husband … Accordingly, where a child is born to a woman during her marriage to another woman, that presumption is of no relevance to the question of who the child’s parents are”.
This means that where two women are married to each other and one of the parties to that marriage gives birth to a child, the other party will not automatically be presumed to be the parent of that child. That provision does not change the current situation; instead, it clarifies what the legal position would be in terms of the common-law presumption. The presumption is about fatherhood, and the Bill does not change the law on fatherhood.
Amendment 39A in the name of the noble Lord, Lord Northbourne, which the noble and learned Baroness, Lady Butler-Sloss, spoke to, aims to ensure that both parties to a same-sex marriage have parental responsibility for children born to or adopted by that couple, and focuses particularly on the parental rights of the surviving spouse. I understand and share that objective, and I understand why we are having this debate and why clarity is sought. However, we believe that this amendment is unnecessary because the law already sets out specific criteria that must be met in order for same-sex couples to be treated as the legal parents and to have parental responsibility. So in order for me to reassure noble Lords, I will try to explain.
Baroness Butler-Sloss
Baroness Butler-Sloss
My Lords, I will speak to Amendments 40 and 41. This is a sensitive issue and we are speaking, of course, at an extremely late stage. It is an issue that also produces embarrassment in some and humour among others of those who hear what is said. I am, however, entirely serious about this matter and I wish to present it to your Lordships even at this late stage.
My early practice at the Bar was against the background of defended divorces, and the matrimonial offence of adultery was treated very seriously. There were allegations of collusion and condonation to try to avoid a finding of adultery. The Matrimonial Causes Act 1973, which caused dramatic changes to divorce law, retained adultery in Section 1 as the first ground, together with irretrievable breakdown, and it remains the law today. Adultery may not be seen as such a serious matrimonial offence today as it was in earlier times, but that, in my view, is a mistaken approach.
Adultery remains a fundamental breach of the trust of those who make the commitment of marriage, and I have no doubt that there will be an equal commitment between same-sex couples, many of whom demonstrate long-term, stable relationships, so the behaviour of one party to a marriage who breaks the commitment to the other by engaging in a relationship with someone outside marriage strikes at the root of marriage and can be a devastating blow to the injured partner. The suggestion has been made that the injured person in a same-sex marriage could petition for unreasonable behaviour as an alternative ground for divorce, but that is not the answer. In current marriages, if one spouse commits adultery, that is the ground upon which the other spouse can pray in the divorce petition. It therefore demonstrates in family legislation the importance of both spouses remaining faithful to each other during the continuance of the marriage.
According to Part 2 of Schedule 4, following the Civil Partnership Act, the same-sex relationship excludes a ground for divorce available to those spouses who have an adulterous husband or wife. They have the opportunity, but the same-sex couple do not. This is inequality, both to erring husbands or wives, who can be sued for divorce on a ground that would not occur if same-sex partners were in the same position. However, more importantly, it is profoundly unjust to the partner who has suffered the trauma of the failure of the marriage through the sexual misbehaviour of an erring same-sex partner and the breach of the commitment of fidelity. Had I been a Member of this House during the passage of the Civil Partnership Bill, I would have made exactly the same point.
I consider it profoundly unsatisfactory and, more importantly, profoundly unjust that adultery is not a ground for same-sex divorce. It undermines the value of same-sex marriage. Why is this the case? I assume that it is because there has not so far been a definition of consummation of a sexual relationship other than between couples of the opposite sex. This is a failure to come to terms with more than one type of sexual relationship and a broader definition of the consummation of a relationship.
The criminal law includes the rape of a male as well as a female. It has been so ever since the Sexual Offences Act 1956. I will read just one sentence from the Sexual Offences Act 2003, from Section 1(1):
“A person … commits an offence if he intentionally penetrates the vagina, anus or mouth of another person … with his penis”.
That goes part of the way with same-sex marriages. Rape requires proof of consummation, and so far 12,000 men have been identified as victims of rape.
I cannot understand why there can be a definition of rape—a recognition of the sexual act of consummation required to prove rape in criminal law—but a seeming inability or reluctance by the previous or the present Government to give it the same recognition in the context of family law. The failure to find a definition of consummation in civil and family law works, as I have said, as a real injustice. It makes a mockery of the so-called equality that is the bedrock of this Bill. If marriage is to be equal for all those who get married, an embarrassed or ineffective approach to this inequality and brushing aside the matrimonial offence of adultery will not do.
Whether it is a religious or civil marriage, promises and commitments are made by one partner to the other in the marriage ceremony. Is the concept of being faithful to one another during marriage a promise to be kept by opposite-sex couples but not by same-sex couples? How can this be? For those not brave enough to recognise different forms of sexual activity, a possible alternative to a revised definition of adultery might be to describe the matrimonial offence as one similar to adultery.
Amendment 41, which looks at the inequality in the matrimonial law of voidable marriages in this Bill, raises the issue of non-consummation. In current nullity law there are two grounds of voidable marriages: inability and wilful refusal to consummate the marriage. A nullity suit on either of these grounds is nowadays unusual. However, the question of inequality and possible injustice arising from the difference in two types of marriage raises the same point as my comments on adultery. If this Government are, as they should be, strong enough to provide a revised definition of consummation and non-consummation, they should deal with voidable marriages as well as adultery. This is not a homophobic point. On the contrary; this is an injustice to innocent partners in a same-sex marriage, who do not have the same rights as innocent partners in an opposite-sex marriage and do not have the specific right to divorce a faithless same-sex partner. I beg to move.
The Lord Bishop of Guildford
Again, I support a probing amendment. I am concerned that marriages between people of the same sex should enshrine the same standard of fidelity as marriages of heterosexual couples. As it stands, the Bill does not quite deliver this. Indeed, the Bill enshrines a very important inequality in the way that the virtue of fidelity is manifested in relationships. Marriage between people of the opposite sex is partially defined by the fact that sexual infidelity—adultery—is a recognised and long-standing ground for divorce, as has been expounded very eloquently by the noble and learned Baroness, Lady Butler-Sloss. This is not found in the Bill.
Faithfulness is intrinsic to the promises a married couple make to one another. I feel very strongly that, as we go forward in our scrutiny of the Bill, this House must find some way of including that faithfulness equally for all married couples, if we are looking to something that has been described as equal marriage. On the grounds of equality that is an omission and in terms of the social significance of faithfulness, which is central to marriage, this omission diminishes the status that couples of the same sex stand to receive from being married. As the Bill stands, such same-sex marriages could be accused of being of a lesser standard in terms of faithfulness than heterosexual marriage unless this point is attended to.
Lord Alli
I thank the noble and learned Baroness for bringing forward this amendment. I have listened to what she said most carefully and I can see the point she raises. Unfaithfulness is understandably a cause for which many people seek divorce but I do not think that anything in this Bill will prevent people divorcing their partners for unfaithfulness. In my view, marriage is a contract that varies in its nature, understanding and commitment from couple to couple. The issue and the importance of fidelity is one that, equally, varies from couple from couple, but it is fair to say that fidelity is a cornerstone of most religious marriages. I think the same should be said of civil marriage, too.
The definition of the sexual act that defines fidelity for heterosexuals is outdated and, in my view, very cumbersome. The noble and learned Baroness is very brave to bring the issue to this House. When one looks at penetration as part of that definition, or we try to import the definition of penetration from rape into this, it does not deal with lesbian couples, for example. So much of our sexual law is defined by the male and not by women that a complete class of marriage is ignored by what the noble and learned Baroness is trying to do. If we had had more and broader discussions on the Civil Partnership Act and over the Bill, we may find common ground, but simply importing the definition of penetration—anal, vaginal or oral—into this would leave lesbians at a complete disadvantage regarding fidelity. While I completely understand what is behind this, we come back to the definition of fidelity. I think the Government’s position has been not to disturb the current arrangements as far as possible, to avoid tampering with existing legislation. It is a much wider question, which I certainly welcome. There is no way anyone can accuse the noble and learned Baroness of being homophobic in her amendment.
Baroness Thornton
My Lords, I will merely say that my noble friend Lord Alli has put his finger on the point. This discussion is not about biology but—as the right reverend Prelate said—fidelity. I suspect that the Government have been round this course. I know from reading the record in the Commons that they had these discussions and settled where they did. At the moment I cannot see any way of moving from that point. I do not accept the biological descriptions and solutions suggested by the noble and learned Baroness, Lady Butler-Sloss. The Government have probably ended up in the right place.
Baroness Stowell of Beeston
My Lords, I was wondering earlier how BBC Parliament would cope if this group of amendments came up before the 9 pm watershed. However, we are clearly okay.
Baroness Stowell of Beeston
At least we are not going to be subject to an inquiry by Ofcom.
The effect of the amendment of the noble and learned Baroness would be that the question of how adultery and non-consummation would apply to same-sex marriages would have to be determined over time by case law. The Government believe that such an approach would leave the law uncertain in respect of divorce and nullity, and would not give people adequate protection. The noble and learned Baroness will know better than I that the definition of adultery has developed in case law over many years. In order for a definition to be determined for same-sex couples, it would have to go through a similar process. That would provide uncertainty for same-sex couples, which is not what any of us want.
The Bill provides greater clarity by confirming that only sexual intercourse with a member of the opposite sex outside marriage will constitute adultery for all couples, both opposite sex or same sex. The noble Lord, Lord Alli, rightly said that the Government had taken the approach, in designing all parts of the Bill, of trying to avoid disrupting existing marriage law as far as possible. This provision confirms that the current case law definition of adultery applies to the marriages of same-sex couples. I make it clear that at the moment, if a married man has an affair with another man, his wife would not be able to divorce him on the grounds of adultery. However, she would be able to cite unreasonable behaviour, so she would not be denied the right to divorce; only the grounds that she relied on would be different.
Equally, for same-sex married couples, sexual activity with a member of the same sex will support an application for divorce, since it will be open to someone in a same-sex marriage to cite unreasonable behaviour. This will not mean that same-sex couples have any reduced right to divorce or will suffer any delay in applying for it, because the same procedures apply to divorces on the grounds of adultery and those on the grounds of unreasonable behaviour. If a woman in a same-sex marriage has an affair with a man, her wife would still be able to apply for a divorce on the grounds of adultery. If she has sex with another woman outside the marriage, her wife could not seek a divorce on grounds of adultery but would do so on the grounds of unreasonable behaviour. That is what currently happens. As we know, it is not that unusual for someone in an opposite-sex marriage to have an affair outside the marriage with somebody of the same sex.
The noble and learned Baroness, Lady Butler-Sloss, and the right reverend Prelate argued that these provisions in the Bill mean that there is no requirement for same-sex married couples to be faithful, because adultery is not available to them in the way I have just talked about. The right reverend Prelate used a particular word that I cannot remember; I think he talked about “standards”. I think it is worth making the point that we need to avoid assuming that in order to be faithful people need to know they can divorce someone on the grounds of adultery. It is not the possibility of divorcing someone on the grounds of adultery that leads someone to be faithful to the person they are in a relationship with. What makes people faithful is far more complicated than that. The issues around fidelity, the reasons why people stay together, and their trust and commitment to each other are very complex. Even so, in terms of the law, marriage does not require the fidelity of couples. It is open to each couple to decide for themselves on the importance of fidelity within their own relationship. The law does not lay down requirements about the consensual sexual activity which should or should not take place for married couples.
Similarly, the Government believe that not applying provisions on non-consummation as a ground for the nullity of the marriage of a same-sex couple is the correct approach. There has been a lot of discussion of procreation, not so much tonight but certainly at earlier stages of our debates. Historically, consummation was linked to procreation, although now in law it is not. I want to make it clear that there is no requirement in law that a couple should consummate their marriage in order for it to be a valid marriage. We do not consider that there is a need to extend non-consummation as a ground for annulment to same-sex marriage. This also ensures that the law is clear for same-sex couples, as I already noted.
I think the point made by the noble Lord, Lord Alli, in response to the proposal of the noble and learned Baroness, Lady Butler-Sloss, to transfer the definition of penetration from that of an opposite-sex couple to that of a same-sex couple, but focusing only on men, serves to demonstrate that we have not addressed what penetration means for a lesbian couple. That is why, as I say, it would take a long time to develop this in case law in a meaningful way. The Government do not believe that the Bill’s approach to adultery and non-consummation for same-sex couples represents an inequality with opposite-sex couples. We believe the Bill makes appropriate provision for same-sex couples, while ensuring that the law for opposite-sex couples remains exactly as it is now.
However, I thank the noble and learned Baroness for bringing forward her amendments because, as she rightly says, this is a very sensitive topic. It is not one that people find easy to debate. I never thought I would stand at a Dispatch Box talking about these kinds of things. She serves the Committee well by raising this matter, but I hope I have been able at least to clarify that by not changing what now exists in law we are not actually creating an inequality. I think the desire of same-sex couples to have a successful relationship through marriage does not require the possibility of adultery for them to remain faithful to each other, if of course that is what they intended when they first married. I hope the noble and learned Baroness feels able to withdraw her amendments.
Baroness Butler-Sloss
I have perhaps found this topic rather easier to talk about, having been a divorce judge and indeed a judge who tried a lot of nullity suits. However, it is a sensitive subject, and I am very grateful to the Minister for the way in which she dealt with it, and to the noble Lord, Lord Alli. I said earlier that I recognised that looking at the issue of penetration was taking only it half way. I also threw out the potential olive branch of saying that you could call it something similar to adultery.
I remind noble Lords that for several thousand years adultery has been the opposite side of the coin to faithfulness for married couples. It has not been an issue only for Jews, Muslims and Christians; it has gone far wider than that. Those who do not believe in any religion do none the less see the importance of making a promise—it has to be a promise, whether explicit or implicit—that, if you marry, whatever your stable relationship is, during that period when it matters, you remain faithful to one another. After nearly 55 years of marriage, I see that as extremely important. However, I see it as equally important for the stable relationships of which I am well aware among those who—
Baroness Stowell of Beeston
I hope the noble and learned Baroness will forgive me for intervening very briefly. I absolutely understand the point that she makes and I do not want to give the impression that I do not take the issue of faithfulness seriously because I certainly do. However, it is important for me to make clear for the record that in the context of a civil ceremony it will be possible for those getting married to make promises and commitments in the form of words that they choose. We are not suggesting that we do not think this issue is important. However, we do not think that it is necessary to make provision for adultery in this measure. This is not about denying the importance of fidelity, which is clearly important when people first come together.
Baroness Butler-Sloss
I hear what the Minister says and of course I accept that she is saying on behalf of the Government that faithfulness in marriage of whichever sort is important. I do not for a moment disagree with that. However, there are two sides to the coin—faithfulness and adultery. As I say, for several thousand years adultery has been a ground for setting aside a partnership because of the way that one partner has behaved. To call it unreasonable behaviour, or cruelty in the old days, is not the same thing. I am sad that the Government are not prepared to tackle this because something akin to adultery could be achieved to put everybody who is involved in marriage in exactly the same position. Currently, with the Civil Partnership Act, and now this Marriage Bill going through the House, they will be in different positions. You cannot get away from that. I find that very sad, as, I know, does the right reverend Prelate. I will reflect very carefully on what the noble Baroness has said and, indeed, what the noble Baroness, Lady Thornton, has said about this, but I remain very unhappy about it. However, at this moment, I beg leave to withdraw the amendment.
“Interpretation6 In this Schedule “declaration of validity” means—
(a) a declaration as to the validity of a marriage,(b) a declaration as to the subsistence of a marriage, or(c) a declaration as to the validity of a divorce, annulment or judicial separation obtained outside England and Wales in respect of a marriage.”