Baroness Royall of Blaisdon
I beg the noble Baroness’s pardon. It is interesting that both noble Baronesses, and the noble Lord, are members of the committee.
We are clear that Amendments 13 and 18 are unnecessary. We believe that they would add confusion to the law. As the noble Baroness said, the public sector equality duty is a duty to have “due regard”, not a duty to act. The due regard must balance discrimination on the grounds of sexual orientation equally with discrimination on the grounds of religious belief. It would not permit a public body, even with the intention of eliminating discrimination on grounds of sexual orientation, lawfully to treat a religious organisation less favourably on account of its beliefs about same-sex marriage. Furthermore, the authority would be in breach of the clear protections in the Bill that will permit religious organisations to remain outside the system of same-sex marriages.
As the noble Lord, Lord Lester, said, the Equality Act 2010 is a carefully crafted piece of legislation, thanks to many noble Lords present in the Chamber today. It established a balance between protection against discrimination on grounds of religion or belief and protection against discrimination on grounds of sexual orientation. To single out one belief—that marriage should be between a man and a woman—risks undermining the protection afforded to religion as a whole, with its entirety of beliefs and practices, because it sets up this one belief as requiring explicit protection. Therefore, Amendment 13—and Amendment 18, which seeks to achieve a similar effect—would prove unhelpful and unnecessary.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I will start by thanking the noble Baroness, Lady O’Loan, my noble friend Lady Berridge, and the noble Lords, Lord Singh and Lord Hylton, for bringing the amendments before your Lordships’ House in Committee. It has given us an opportunity for a very useful debate, which has been conducted in a very courteous fashion. It was clear that genuine concerns were being expressed. What is interesting is that there is no distinction anywhere in the debate between the objectives of what noble Lords wish to see. It is very clear that religious freedom, including the rights of religious organisations that do not wish to opt in, should be secured.
I will take the advice proffered by my noble friend Lord Lester and not reply to every point. However, it is important that I reply to some of them. My noble friend referred to Pepper v Hart, but we cannot get to that stage if we do not in fact say anything. I will also take up his suggestion, echoed by my noble friend Lord Deben, of putting in written form the points that were raised and my responses.
Amendment 13 seeks to ensure that no religious organisation or individual is penalised by a public authority simply because it has exercised its rights under the Bill to not offer or facilitate same-sex marriages, or because it has expressed the view that marriage should be only between a man and a woman. My noble friend Lady Berridge indicated that there was an anxiety that other religious denominations wished to have the same kind of safeguard and security as has been afforded to the Church of England and the Church in Wales. As I indicated to my noble friend Lord Cormack when he moved an amendment on Monday, there is a historic reason for the distinction for the Church of England and the Church in Wales: namely, the duty on priests in these churches to marry people in their parish. This duty is not incumbent on priests, ministers or imams in other religions and faiths.
The specific context of this amendment is Section 149 of the Equality Act 2010, which places a duty on public authorities to,
“have due regard to the need to … eliminate discrimination … advance equality of opportunity … and … foster good relations between persons who”,
hold or do not hold a particular protected characteristic.
It is absolutely right—I think that this has been echoed on all sides of your Lordships’ House—that religious organisations and individuals should be free to express their beliefs about same-sex marriage, and to make the decisions protected by this Bill about whether to conduct or participate in same-sex marriages, without fear of repercussion or penalty of any kind. I hope I can clarify for your Lordships that, as the law stands, a public authority would in fact be acting unlawfully if it attempted to rely on the public sector equality duty to treat a religious organisation adversely simply because that organisation did not wish to conduct same-sex marriages, as is explicitly allowed under this Bill.
A policy of penalising people or organisations which have religious or philosophical beliefs with which a public authority disagrees would in itself be discriminatory. One element of the duty is to have due regard to the need to eliminate unlawful discrimination. It is not meant to be itself an instrument to discriminate unlawfully. For a local authority, for example, to withdraw meeting facilities from a church because it decided not to offer same-sex marriage would be likely to be unlawful direct discrimination because of religion or belief. We believe that it would be subject to successful legal challenge, a point made by the noble Lord, Lord Pannick.
The noble Baroness, Lady O’Loan, commented that there is nothing in the Bill which states that it would be unlawful for a public authority to punish a religious organisation which had not opted in. The courts have considered the question of whether a local authority can use equality legislation to punish an organisation with views of which it disapproves. In the case of Wheeler v Leicester City Council, the council banned a rugby club from using its ground after some of its members attended a tour of South Africa. It used the then Race Relations Act to justify its decision. The case went to the House of Lords, which held that the decision was irrational and that it was an improper purpose, because the members of the rugby club were legally entitled to go on a tour, just as an organisation is entitled not to opt in. I believe that the reasoning in that case to have a clear read-over in this particular case. Similarly, a local authority could not have a policy of refusing to promote staff who have expressed a belief that marriage should only be between—
Baroness Knight of Collingtree
On that very point, why is it that registrars who from conscience, from their heart and beliefs, will not conduct this kind of marriage have been sacked?
Lord Wallace of Tankerness
My Lords, obviously they cannot yet have been sacked because of this legislation, because it is not yet an Act. As my noble friend may recall, we debated the position of registrars at some length on Monday evening. The explanation given then was that registrars perform a public function. As was pointed out by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, judges, who also exercise a public function, are not allowed to pick and choose which cases come before them. Similarly, a local authority could not have a policy of refusing to promote staff who have expressed a belief that marriage should only be between a man and a woman. This would be unlawful direct discrimination, and the equality duty requires public authorities to have due regard to the need to eliminate such discrimination. The equality duty cannot make lawful an otherwise unlawful or oppressive act.
My noble friend Lady Berridge quoted the impact assessment regarding the threat of litigation. It is of course not possible completely to rule out any possibility of somebody bringing legal proceedings. I think it was the noble Lord, Lord Alli, who pointed out—and as my noble friend Lord Lester quoted on Monday—some authorities do idiotic things. No legislation can provide for every eventuality. However, we believe that the Bill minimises this possibility as far as possible by making it absolutely explicit that those relying on Clause 2 are permitted to refuse to be involved in solemnising same-sex marriages. There would indeed be no cause of action. We believe that an application for strike-out could be made early in any proceedings, as there would be no reasonable prospect of success in such claims. The noble Baroness, Lady O’Loan, said that the inclusion of Clause 2(5) and (6) and the protection they provide undermine the protection which we believe is already in place with regard to Section 149 of the Equality Act 2010.
The amendments to the Equality Act 2010 in Clause 2 provide that it is not unlawful discrimination to refuse to carry out acts specified in Clause 2(2). These specific exceptions are provided to ensure that the Equality Act is not in conflict with the protection provided in Clause 2, so that the law is clear and consistent. This aspect of the Equality Act is the only area of legislation which requires this explicit treatment, as otherwise it would conflict with Clause 2.
We should also remember, as the noble Lord, Lord Pannick, indicated, that the equality duty is a duty only to have regard. It is not in itself a duty to act, but rather a duty to think. It does not require that particular action is taken or that any specific objective or outcome is achieved. As the noble Lord said, “having regard” also means that we have to have regard to primary legislation, such as what would be in this Act if the Bill is enacted. I hear what my noble friend Lady Knight says about concerns that sometimes guarantees do not always seem to follow through many years later. However, what we are dealing with here—I think that the noble Lord, Lord Pannick, made this point—is a fundamental part of the architecture of this legislation: namely, that there should be religious freedom not to opt in. Therefore, it would be unthinkable for a court not to have regard to a fundamental piece of the legislation we are passing. I certainly hear what the noble Baroness—
Lord Lester of Herne Hill
Does my noble and learned friend also agree that the Human Rights Act compels this legislation to be construed compatibly with religious freedom as defined in the European convention?
Lord Wallace of Tankerness
Indeed, my noble friend is right. Article 9 of the European Convention on Human Rights gives that right to freedom of religious belief and expression. The noble Baroness, Lady O’Loan, said that sometimes the courts are reluctant to second-guess public authorities. It is highly unlikely that the court would do something which is in direct contradiction of what Parliament has clearly expressed and intended not just in the Bill but in all the statements that have been made by Ministers and, indeed, by almost everyone who has participated in these debates.
It is also important to note—again, this point was made by my noble friend Lord Lester and picked up by my noble friend Lord Deben—that amendments can sometimes have unintended and adverse consequences. I know that is certainly not the intention of the noble Baroness who moved this amendment, but the equality duty applies to and protects equally various protected characteristics, including religion or belief so a public authority has to bear in mind the impact of its policies on people holding different religious or philosophical beliefs, such as the belief that marriage should be only between a man and a woman. If, as the amendment proposes, a public authority is prevented from having any regard to individuals’ or organisations’ beliefs about same-sex marriage, it would be unable to consider how its own decisions could potentially discriminate against, or otherwise disadvantage, people who believe that marriage should be only between a man and a woman. That would remove an important protection for people who hold such a belief. I know that this is not what the noble Baroness intends but it illustrates the fact that when you try to solve one problem you can create another.
As I say, I recognise the concerns that some public bodies might be overzealous or mistaken in their exercise of the equality duty or misuse it to the detriment of those who do not agree with same-sex marriage. As I have indicated, no Government can give a copper-bottomed guarantee that some public authorities will not act irrationally. It is important that we ensure that public authorities understand their responsibilities under the Equality Act 2010 correctly, and how these relate to beliefs about marriage. With that in mind, the Equality and Human Rights Commission has undertaken to review its guidance for public authorities to ensure that the position is as clear as possible. As I have said, while I appreciate the intention behind this amendment, it is unnecessary and could have adverse consequences quite at odds with its intention.
I turn to Amendment 17. The concept of compulsion is readily understood in its natural meaning, and to subject anyone to any type of detriment or unfavourable treatment because they refuse to participate in any way in religious solemnization of same-sex marriages would clearly be understood as a violation of their legal right under this Bill not to participate. We are therefore confident that Clause 2 provides strong and effective protection to ensure that religious organisations and their representatives cannot be forced to participate in same-sex marriages against their belief. The Explanatory Notes to the Bill set out the position, as quoted by my noble friend Lady Berridge: the concept of compulsion is a broad one, which would include, but not be limited to, attempts to use criminal or civil law, contractual provisions or the imposition of any detriment to force a person to carry out the activities protected in Clause 2. The clause provides no specific remedy, but makes clear that no attempt at such compulsion would be upheld.
Less favourable treatment by a public authority of a person or organisation who does something which the Bill makes clear they are legally entitled to do would, in itself, clearly be unlawful and open to judicial review. The imposition of any penalties—civil or criminal —on a religious organisation or representative in order to compel them to opt in, or to participate in, religious solemnisation of same-sex marriages is clearly unlawful under the Bill.
Clause 2 will clearly prevent criminal or civil action being taken against any religious organisation or representatives merely for refusing to undertake acts protected under this clause. This includes, but is not limited to, disciplinary or other action taken in the employment context. In all circumstances a person who has suffered a detriment simply because they have not done one of the acts specified in Clause 2 will be able to rely on the protections in that clause to show that such conduct is unlawful and to obtain a remedy within the context of the particular claim.
Lord Cormack
Perhaps I could remind my noble and learned friend of my other suggestion: that detailed conversations should be offered to the noble Baroness, Lady O’Loan, my noble friend Lady Berridge and others on this point.
Lord Wallace of Tankerness
If my noble friend had allowed me to finish the sentence that I had started when he intervened, I would have said that, having received it, those who wish to pursue this matter further in discussion with myself and my noble friend Lady Stowell—
Baroness Royall of Blaisdon
My Lords, I do not wish to be consulted, but I suggest that the document or letter is put into the Library so that it is in the public domain. Otherwise it will not appear in Hansard.
Lord Elton
May I suggest that all those who have taken part in the debate should have a copy sent directly? Could my name be added to that list?
Lord Wallace of Tankerness
My noble friend has taken part in the debate and I usually make it a matter of practice to send a copy to everyone who has taken part. The noble Baroness, Lady Royall, makes a constructive suggestion. I will make sure that it is put in the Library and if, on the basis of the letter and follow-up, it is thought that a discussion would be necessary or wanted, I would certainly be happy to accommodate that. In the light of these comments and the reassurances that we have sought to give, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness O'Loan
My Lords, I thank noble Lords who took part in this debate. The noble Lords, Lord Lester and Lord Alli, and various other noble Lords have emphasised the need for clarity in legislation. The Bill, as drafted in the House of Commons, is already subject to amendment by the Government. It is clear that there are situations in which law which is drafted in the first instance by draftsmen requires clarification. That is why the House exists.
This particular piece of legislation falls at the interface of a number of different human rights—rights of religion and other rights. That is why it is so difficult for the House. The Bill seems to be based on the assumption that the act of marrying is separate from the act of registering a marriage, and the noble Baroness, Lady Berridge, demonstrated quite clearly that that is not the case. It is one single act. It is that which raises the whole spectre of public function. I raised this issue and specifically asked the Minister at Second Reading about the risk attached to the public function obligations of religious organisations that are in that hybrid position—those other than the Church of England and the Church in Wales. I did not get any answer to that question.
In the context of the Bill, we are looking not only at the acts of marriage but at the unintended consequences of the legislation before your Lordships’ House. They go much further than the act of conducting or permitting the conducting and so on of a marriage. They go to the whole remit of public authorities in funding, enabling and resourcing organisations such as youth clubs and schools, and in teachers’ ability to speak freely. We have a number of amendments still to come before the Committee in this context. My amendments would have dealt with some elements of these issues but there are other amendments that relate to them. I put it to the Committee that the issues are not quite as clear as some noble Lords would wish to state.
The fact is that there is a clear distinction in the legislation between the Church of England, the Church in Wales and other churches that solemnise marriage, which is that the Church of England and the Church in Wales are not in a position in which they will decide whether to opt in or out without further legislative process outwith this Parliament. That is what makes the difference and it is why we have the quadruple lock for the Church of England, which is not a sufficient lock for other churches. That is why I have tabled these amendments.
I do not wish to be in any way contentious or to delay the House but I cannot help remembering that the Catholic adoption agencies that have now closed as a consequence of legislation were also argued for on the basis of religious freedom. That argument was lost and there is no religious freedom there in the provision of services. It is profoundly important that we ensure that we do not further create very difficult situations. I will therefore, for the moment, withdraw and not move my amendments but reserve the right, having heard what the Minister had to say, to come back to the House on Report. I beg leave to withdraw the amendment.
Baroness Royall of Blaisdon
My Lords, I agree with the noble Lord, Lord Deben, that, as legislators working on the Bill, our duty is to protect those who will be affected when it is enacted and not others. Section 28 of the Equality Act 2010 provides for a clear exemption for services provided in relation to marriage and civil partnership from the Section 29 duty not to discriminate. This will not change under this Bill. I therefore expect the Minister to confirm that a refusal to conduct a blessing of a same-sex marriage would be considered a “related service”, and thus protected under existing provisions within the Equality Act 2010. Therefore we believe that Amendment 15 in the name of the noble and right reverend Lord, Lord Carey, is unnecessary.
Baroness Northover
My Lords, I thank the noble and right reverend Lord, Lord Carey, for flagging this issue so that all of us can answer it with clarity. Amendment 15 seeks clarity that the refusal by a religious organisation or its representative to conduct a service of blessing of a marriage of a same-sex couple would not be considered unlawful discrimination under the Equality Act 2010. The amendment distinguishes between the legal act of solemnisation of a marriage and a religious blessing which does not have legal effect. The amendment is intended to ensure that there is no requirement to conduct such blessings. As with the last group of amendments, we are in agreement on the aim of protecting religious organisations, and I am glad that the noble and right reverend Lord was reassured by much of the previous debate, on that matter.
As the noble and right reverend Lord recognised, the Government are determined that, in opening up the institution of marriage to same-sex couples, they will protect and promote religious freedom, as other noble Lords have said. The Bill ensures that religious organisations and their representatives will not be forced to conduct or participate in same-sex marriage ceremonies. The quadruple lock in this respect amends the Equality Act 2010 to make clear that it is not unlawful discrimination for a religious organisation or representative to refuse to marry a same-sex couple, and I remind the noble and right reverend Lord that these protections apply beyond the Church of England, as my noble friend Lady Barker made very clear.
The amendment is unnecessary because it is already covered by the Bill, and I thank my noble friend Lord Deben and other noble Lords for their support. Clause 2(2) provides that a person cannot be compelled to carry out, attend or take part in a “relevant marriage”. A relevant marriage is defined in Clause 2(4)(a)(iv) as “including any ceremony” connected with the solemnisation of a marriage of a same-sex couple according to religious rites as well as—this is most important—a religious ceremony after a civil marriage of such a couple. The existing religious protections in Clause 2 therefore apply to a blessing of a marriage, which is the same target of this amendment.
In addition, as the noble Lord, Lord Pannick, and the noble Baroness, Lady Royall, explained, and I can confirm, in any event, the conduct of a service of blessing is not something on which the Equality Act 2010 bites, as being purely a religious matter outside of the scope of that Act in the same way that baptisms or the provision of communion are religious issues not covered by discrimination law. So any kind of blessing of a marriage which has no legal effect would not be covered by discrimination law and does not need protection in the way that the amendment envisages.
Lord Tebbit
My noble friend referred to Clause 2(2) which states that:
“A person may not be compelled”.
Is she able to say where in the Bill or elsewhere it is provided that a person who does not conduct a relevant marriage and so on may not be penalised in any way?
Baroness Northover
I am not sure if my noble friend was in his place for the earlier debate, but we had quite an extensive discussion. He may be interested in reading the letter that will be put together by my noble and learned friend.
Lord Tebbit
I was here for a substantial part of that debate, but not all of it. I ask a simple question: is my noble friend able to confirm that a person would not be penalised?
Lord Lester of Herne Hill
Yes, it comes free. When the noble Baroness replied to the noble Lord, Lord Tebbit, she may have had in mind not only what was said in the previous debate but the fact that at common law, as was said in that debate, it is quite clear that for a public authority to misuse its powers punitively is itself a public law wrong. The case quoted was that of Wheeler, but there have been others such as, for example, when Rupert Murdoch was penalised by a public authority so far as advertising was concerned. It was also when Shell was penalised because of a boycott. They were cases where public authorities were doing public law wrongs, and in my opinion that would apply equally at common law so far as this is concerned.
Baroness Northover
I find it amazing that my noble friend Lord Lester knows what is inside my head when I myself do not necessarily know what is inside it, and I appreciate his understanding. Coming back to the amendment that we are addressing here, I hope that the noble and right reverend Lord is reassured by what I have said, and by what other noble Lords have said in addition, and that he will be willing to withdraw his amendment.
Baroness Thornton
I thank the noble and learned Lord for that remark. That is indeed the case.
I conclude my remarks by quoting from somebody who got married. He said:
“I got married twice in a week. My first marriage was conducted by someone who had interviewed my wife and me twice, at length, before the wedding; who spent hours (and several emails) exploring the key elements of the connection we wished to celebrate during the ceremony; and offered her guidance when we requested it, based on her knowledge of us as individuals and as a couple”.
Actually, that is exactly what a vicar would do—of course it is. He went on to say:
“My second wedding–to the same woman, I should hasten to add–happened two days later. It was conducted by an official who had met us for the first time minutes before, and was conducted with the polite efficiency of a market research interview. My first wedding was conducted by a Humanist Celebrant; my second by a registrar. Needless to say, when I think of my wedding, and the vows I committed to, the second set I gave that week rarely cross my mind. Yet it is this exchange currently recognised in UK law”.
The question that I put to your Lordships’ House is: which date do you think that couple celebrate when they celebrate their wedding anniversary?
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Lord, Lord Harrison, for introducing the amendment and for explaining how important it is to humanists that they be allowed to conduct their own marriage solemnisations, according to their beliefs, by someone who shares their beliefs and in any place of their choosing, which could include the outdoors. I have no doubt that a celebration conducted by the sister of the noble Baroness, Lady Thornton, in the way that she described is one that would be enjoyed by those involved.
I am grateful to all noble Lords who have contributed to this debate and talked about the importance of humanist weddings being able to take place. I feel that this issue warrants a careful reply from me. I want to cover quite a bit of ground in my reply, so I hope that the House will indulge me if I am not as speedy as noble Lords might like me to be, but I think this is important.
First, it is important for me to remind noble Lords about the purpose of this Bill. It is about allowing people to marry who currently cannot marry, and the only people who cannot marry at this time are gay and lesbian couples. When we decided as a Government to bring forward legislation to allow that to happen, we decided to do so by making as little change as possible to existing marriage law. The noble Baroness, Lady Thornton, has described quite clearly how different humanists might celebrate their weddings, so I will not go through all the details. However, it is important to make the point that humanists can marry in England and Wales. They might not be able to have at this time the wedding celebration that they would like but, even if they do not want to follow the route that the noble Baroness suggested, where some people go first to a register office and then have a separate celebration, because humanists are non-religious, they have the option, within a civil marriage at a register office, of being able to adapt that service to include vows and readings that reflect their humanist beliefs and values. Although that might not be ideal, they are not alone in sometimes having to adapt their arrangements.
Baroness Thornton
The noble Baroness needs to acknowledge that humanism is a system of belief. It is quite wrong to suggest that, because humanists do not want to have a religious wedding, somehow it is all right for them to have an adapted civil service. That is not the point here. The point is that humanists want to have a ceremony that is a humanist ceremony, based on their beliefs and their value system.
Baroness Stowell of Beeston
I accept that point. Forgive me if I was suggesting anything that was not respectful of what humanists are seeking to achieve. I absolutely understand the point that the noble Baroness is making. I was trying to explain that some people who follow a religious faith might argue that because humanists, although belonging to a belief organisation, are not religious, they have some opportunity to adapt a civil ceremony in a way that a religious person would not be able to.
Lord Harrison
The amendment sets out the conditions whereby it would be permissible in the particular case of the BHA. It should be recognised that that would be a barrier to other groups which might describe themselves as religious—as has been wrongly suggested in the press—such as the Jedi.
Baroness Stowell of Beeston
I understand the point that the noble Lord is making. As I said when I began, there is quite a lot for me to cover in responding to this issue. I beg the noble Lord’s indulgence to allow me to go through my response. I assure him that I will cover everything, giving this matter the justice and the seriousness that it deserves. The point I was trying to make, which has been mentioned in different debates over the past few weeks in the context of this Bill, is that, for a range of people who want to get married, not just humanists, not everyone is able to have a religious ceremony or the ceremony that they desire. For instance, we heard only the other night, when the noble Lord, Lord Martin, was speaking, about a Scottish MP, a member of the Church of Scotland, who was therefore not able to marry in St Mary Undercroft and had to go to a register office first. I am simply making the point to the noble Lord that things are not so straightforward. It is not the case that everything is okay in one scenario and different in another. However, let me move on. I was just trying to make that point.
On my original point about the Bill and allowing same-sex marriage, although it might seem a counterintuitive thing for me to say, clearly for us to allow same-sex marriage to take place is a big change, but we are able to make that change in the framework of existing marriage law.
Lord Harrison
We are proposing this under the existing requirement in Section 27 of the Marriage Act 1949. We did so on the advice of colleagues from the church and also from Ministers in order to ensure that this would not require major change.
Baroness Stowell of Beeston
I will cover that point in the course of my response.
The point still stands—I will explain why in a moment—that in order to allow organisations to marry in the way that is covered in this amendment, although it seems like a small change, it requires a change in existing marriage law that has wider implications for our system of regulation of marriage law in England and Wales. The noble Lord, Lord Harrison, and other noble Lords have referred to the contribution that my right honourable friend the Attorney-General made during the debate on Report in the other place when he made it clear that if the amendment that was being debated at that time was passed, it would make the Bill incompatible with the European Convention on Human Rights. The amendment in the name of the noble Lord, Lord Harrison, is broader in scope and therefore does not raise the concern that the Attorney-General raised during the debate in the other place. However, at that time and consistently, the Government have been clear that the proposals put forward by the British Humanist Association have wider implications for marriage law. The Government are concerned because of those wider implications. There has been a lot of focus on the Attorney-General’s response to that specific amendment put forward on Report, and how that would have made the Bill at that time incompatible with the European Convention on Human Rights. However, that was not the only issue that the Government have raised, and continue to raise, about this proposal. I will explain all this in the course of my response.
Lord Lester of Herne Hill
I am sorry to interrupt and I hope I am not being a nuisance by doing so. Is not one reason in favour of these amendments that they would make our law compatible with Articles 9 and 14 of the convention by removing a discrimination which needs to be removed?
Baroness Stowell of Beeston
I was trying to make the simple point that the concern that the Attorney-General raised at that time has been addressed. That amendment was very narrowly defined around humanist belief. This amendment is much broader in scope because it is not narrowly restricted just to the British Humanist Association. However, that does not remove from what is at issue for the Government: that by introducing a change this amendment would have wider implications for marriage law in England and Wales. I intend to explain this to noble Lords.
As we have acknowledged throughout our debates on the Bill, marriage is clearly an important institution and a legal recognition through which the state confers rights and obligations. We therefore need to regulate carefully the process by which we allow this important legal status to be established.
Baroness Thornton
I am very puzzled by what the noble Baroness is saying. She is now saying that there are other grounds. In the Commons—and it is on the record in Hansard—the Minister specifically said that the letter that she would send to the British Humanist Association would be comprehensive and would cover all the Government’s concerns. This amendment and the discussions that the British Humanist Association has had since then, in good faith, have met all those points. I am very puzzled as to why the noble Baroness is now leading us into what sounds like the answer, “The Government have concerns about other matters”. It seems like we will never reach the end of this.
Baroness Stowell of Beeston
I do not have the copy of Hansard in front of me for the debates that took place in the other place. However, I am confident that my right honourable friend the Secretary of State, Maria Miller, made it clear in those debates that there were other concerns about this proposal that went beyond those raised by the Attorney-General on that specific amendment at that time. In the letter that my right honourable friend sent to Kate Green, she was also clear that there were issues of principle which went beyond the narrow point that the Attorney-General raised in those debates.
Beyond civil marriages, which now form the majority of marriages, where we give other organisations—that is, other religious faiths—this power to marry, the authorisation is subject to specific safeguards that are well established and embedded in current law. In the case of religious ceremonies—though I absolutely understand that the British Humanist Association is not a religion but a belief organisation—registration is generally linked to a particular building or, in the case of Quakers and the Jewish religion, by a longstanding arrangement that took account of the particular position of those religious organisations. Historians in this House will know that the Marriage Act 1753 recognised the Jewish faith and Quakers as having a special status, which they have retained since that time.
For every other religion except the Church of England and the Church in Wales, a building must first be registered as a place of worship, then a place of marriage. If that is agreed to, the supervising registrar attends all marriages for a year to ensure that compliance with all regulations takes place, including safekeeping of duplicate marriage registers in the relevant premises to accurately register marriages. Religious faiths have very little freedom because the integrity of marriage in England and Wales relies on this system to ensure that marriages are not registered that should not be, and that status is accurately recorded.
The amendment of the noble Lord, Lord Harrison, would mean that eligible non-religious belief organisations could hold marriages wherever they wished and have greater freedom to appoint those who conduct and register marriages. As the noble Lord says, the amendment does not specifically define the British Humanist Association but goes wider in order to address the concerns that were raised by the Attorney-General.
I will be absolutely clear on the point that the noble Baroness was pressing me on earlier. Our concerns are not about entry to the system of marriage, but spring from opening a new route to marriage and a new system of regulation. In the course of this debate, noble Lords have expressed views on religious groups who can marry now. However, the key point is that they must all comply with the existing system in terms of their being approved. I do not suggest for one moment that there is any concern about any of the groups we may be discussing. However, the reason why the system we have is so important, and why we consider that there would be wider implications if we were to change the way in which we authorise people to marry, is because that could have an impact on things such as, for example, the way we are able to police sham marriages conducted by criminal wedding arrangers.
The noble Lord is shaking his head. I stress that I understand the reason why the amendment is drafted as it is, but because it would allow for other organisations there are implications that we need to consider.
Baroness Thornton
Are these implications deal breakers or are they administrative and technical details that could be cleared up? Is the noble Baroness going to say anything positive here?
Baroness Stowell of Beeston
The responsibility I have as the Minister responding to this debate is to make clear that something which on the face of it seems quite straightforward would significantly change our marriage law. We have to consider the implications of that before a decision could be made as to whether to change this law. The system we have of registering and authorising people to marry based on religious premises has been in existence since 1898. To introduce a new system for new organisations to be authorised in a different way is a significant change. If we are going to make that change we need to make sure that we have properly considered all the implications.
Lord Alli
There is huge respect for the Minister in this House and for the way in which she has conducted the passage of the Bill. We all want the Bill to go through. However, the noble Baroness should take the temperature of the House and of the other place. There is a will in both Houses that this should go through. You see this sometimes when the Front Bench are making their response: the explanation of why it should not go through has been crafted by the Civil Service and does not feel like one any of us understand. The unintended consequence argument, the argument that it could delay the Bill and a whole range of financial arguments are the standard set of arguments put forward generally to stop amendments going through. We would be very sympathetic if we understood what was worrying the Government about this amendment but as yet I, like many others, am lost as to what it is that cannot be done in the timeframes that we are talking about.
Lord Garel-Jones
Before my noble friend replies to that, she will, I am sure, have observed that not a single voice in your Lordships’ House has been raised against these amendments. She will have observed that the right reverend Prelate, while unable yet to tell us precisely what the position of the Church of England would be, spoke with, one could say, sympathy towards the position. I think what we are all asking is that if the Ministers, both my noble friend and the Secretary of State in the other place, were to say to the civil servants that they would like to find a way of accommodating this, we know that they could it. We would really like an explanation as to why that cannot be done.
Baroness Stowell of Beeston
I was about to conclude my remarks in any case. I am grateful to my noble friend. The noble Lord is right that there has been a great deal of support from all sides of the House, as there was in the other place. Of course I acknowledge that but I am still obliged as the Minister responsible for the Bill to explain when an amendment is put forward that it will have a significant effect—as we think this one could have—so that noble Lords are aware and properly apprised of the seriousness of the issues at stake. While the British Humanist Association and a lot of this House feel strongly that this change should be made, there has not been the kind of consultation and proper consideration of the impact of making that change and that has to take place.
Lord Lester of Herne Hill
I am trying to helpful. Why can the Government not adopt the same approach as the previous Government on sexual orientation discrimination, or that of the present Government on caste discrimination, and say that there should be a proper consultation and then have a power included in the Bill to deal with this by regulations with the affirmative resolution procedure, with proper exceptions put in for things such as sham marriages?
Baroness Stowell of Beeston
I am not in a position to offer to noble Lords today the kind of specific response that my noble friend has suggested.
Baroness Butler-Sloss
I have sat listening to this for an extremely long time. I do not have any views at all about whether humanists should have a marriage. I have heard very good reasons why they should and I have not heard any reasons why they should not. That seems to me quite an interesting point. No one has stood up and said there should not be a humanist marriage. Can the Minister at least say—and it is 7.45 pm—that she will take it away and have a look at it. Then she could come back on Report or before and say, “No, we are not going to do it”. She is not going to make any progress in the House at this moment with her arguments, because nobody is going to accept them if the Government do not go away and have another look at it.
Baroness Stowell of Beeston
Very briefly, before I finally sit down, of course everybody would support humanist marriages. The point is—please let me finish making this point—that it would require a change in law that would have implications that have not been fully thought through. That all said, having listening to the debate today, I will of course report back to my ministerial colleagues and ensure that they reflect further on the points made in this debate.
Lord Harrison
My Lords, I am in severe danger of letting the nice side of my character come to the fore at this conclusion to the debate. I sincerely thank those from all sides who have risen to support the amendment. I thank the right reverend Prelate for his constructive approach. I invite him to have discussions with me and the British Humanist Association himself, rather than sending an official.
I have watched the Minister struggle. I would like to struggle with her. I want to get round a table and discuss this matter and find the solution that this House most clearly needs. In the mean time, I beg leave—and give notice that I shall bring it back on Report—to withdraw this amendment, showing the nice side of my character to the whole House.