Marriage (Same Sex Couples) Bill
(11 years, 4 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
16:57 - Division on Amendment 1 - Ayes: 119 / Noes: 314 - Amendment 1 disagreed.
18:48 - Division on Amendment 3 - Ayes: 103 / Noes: 278 - Amendment 3 disagreed.
Lord Mackay of Clashfern
( ) Marriage between opposite sex couples shall be referred to as “marriage (opposite sex couples)”.”
Lord Mackay of Clashfern
My Lords, I should first declare an interest. I am the honorary president of the Scottish Bible Society and a member of various Christian groups. I have also been for quite a long time a member of Barnardo’s, which has a certain amount of interest in this area of the law.
The purpose of the first amendment, and of the second amendment that is to be taken with it, is to recognise in the Bill the distinction that exists in fact between marriage for same-sex couples and marriage for opposite-sex couples. I have used only language that occurs already in the Bill. It is striking that the Bill is called the Marriage (Same Sex Couples) Bill. Therefore, I cannot see that what I propose can be objectionable to anybody who wishes to further the Bill in the future. If it is appropriate to refer to what is now being introduced as the Marriage (Same Sex Couples) Bill, it must surely be right to use that name to refer to what exists already in the law, and will continue to exist in the law after this Bill becomes an Act, as I certainly expect that it will.
It seems to me obvious that there is an important distinction between these two types of marriage. My understanding is clear that the Government wish to afford the gold standard to same-sex marriage. That means using the word “marriage” to describe what is involved, which I accept for the purposes of this amendment. Therefore, I cannot see that it in any way degrades what is asked for and granted to same-sex couples in the Bill. The Bill makes distinctions between same-sex marriage and opposite-sex marriage in a number of respects. I need not mention the more technical ones, but there is a fundamental difference in relation to the consummation of the marriage and on the effect to a child of being born to a member of a same-sex couple. That has a very important effect on children.
My understanding is that opposite-sex marriage is a uniquely well designed system for the bringing into the world, and the nurture in the world, of children because opposite-sex marriage involves a direct link between the child and two parents, which arises from the nature of the child’s birth. That, I think, is not in any way replicated in any other form of marriage. Of course, it is possible for children to become children of a marriage in various ways—for example, by adoption and by in vitro fertilisation, which have their own characteristics. Those of your Lordships who sat on the Human Fertilisation and Embryology Bill Committee some time ago, which sought to amend the 1990 Act, will remember hearing people born by means of IVF give very cogent and sensitive evidence on the difficulty of getting information that that had happened and of tracing their roots. I am sure your Lordships are aware that tracing one’s roots and being able to say something about one’s ancestry can be an important factor in the nurture and development of children and, indeed, in the well-being of adults, as people have a great interest in that.
It seems to me essential to recognise that distinction in the Bill as a matter of ordinary drafting. This is not a marriage Bill; it is a Bill which adds to the existing structure a new concept, as I think we should recognise throughout the Bill. It is recognised in the Bill’s Title and is reflected in the heading of various documents, including today’s Marshalled List. In my submission, it is vital that we do not lose sight in future of that aspect of what people have called “traditional marriage” as it is an extremely valuable part of the arrangements that we have had for the birth and nurture of children.
I said in Committee and I say again that the protection of children by marriage, when it works, is extremely important and so far the state has not been able to devise a system which is equally effective. I speak in the presence of people who know much more about this than I do, but I believe that when the natural family fails a child and he has to go into care—which sadly happens, though fortunately not in the majority of cases—one of the difficulties as a matter of practice is to get a bond between a child and a particular individual in, for example a local authority. That is for the very practical reason that local authority staff change and take over different responsibilities and so on. I am sure that that is not the only difficulty, but it is certainly an important one.
I have said that the Bill deals with same-sex marriage and opposite-sex marriage differently in various places and mentioned the technical situation of a child born to a member of the marriage. That child does not enjoy the protection of the marriage on birth. It may be possible for the child to be adopted by the couple, but that is a different process. It is not a direct result of being born to a partner in the marriage. However, perhaps the most striking difference in treatment between same-sex marriage and opposite-sex marriage is in relation to the churches and religious organisations. The nature of the treatment in these two groups is very different indeed. Therefore, it seems only sensible to recognise as a matter of definition what it is that the different treatment applies to.
In my submission, this is the minimum that will secure recognition in the Bill of the distinction between the two. I believe that it completely meets the aims which were intimated as part of what this Bill is about in the sense that it gives marriage with the gold standard to same-sex couples, while retaining, without differentiating to any extent between the two as a value judgment, the essential distinction. This is not a matter of arbitrariness, but of simple fact. Recognising that fact in the Bill seems to me to bring it much closer to what ordinary people—and I count myself in that category—understand the Bill to do. Trying to make out that the two are the same seems to many people, including myself, to be an exercise in fantasy. The factual position is that there is a fundamental distinction which no majority in Parliament or elsewhere can annihilate.
Your Lordships will understand that Amendment 2 is complementary. Later amendments are consequential if the first two are accepted. I am sorry that there are so many of them. This is the minimum that seems to work, although I and other noble Lords think that it may be possible to go further. The later amendment of the noble Lord, Lord Armstrong, to which I and others have added our names, indeed goes further than the minimum. However, my amendment is the essential minimum and if your Lordships were to accept it, a question would remain as to whether the Bill should go further. I beg to move.
Lord Glenarthur
I very much support my noble and learned friend. The debates at Second Reading and in Committee referred to the word “marriage” as being the point at issue and how it could be described in the Bill. The problem with the Bill has been the word “marriage” and it is difficult to find another solution to that problem. For those who have concerns about finding a way to redefine marriage, which the Bill tries to do, it seems sensible, notwithstanding all the sensible comments of my noble and learned friend about the relevance of children to all this, to have a form of words that qualifies marriage under all its circumstances rather than totally redefines it. I very much support the amendment.
Lord Anderson of Swansea
My Lords, it is good to follow the noble and learned Lord, who describes himself as an ordinary person but who happens to be a former Lord Chancellor, one of the most distinguished lawyers in this country. I congratulate the noble and learned Lord on his diligence and ingenuity. I wish that I had thought of the amendment, in which he reproduces the title of the Bill. He clearly sees both sides and has made a serious effort to build a bridge between what might otherwise have become a very polarised debate. Yet, he has given both sides the substance of what they seek.
There are those who believe in traditional marriage, the definition that has existed since time immemorial, and others who wish to extend the definition to include same-sex couples. The Government wish to change that definition with all deliberate speed. I shall not linger on this matter but the deliberate speed is something that puzzles many of us, given that it looks as if the Government were converted to this idea only some time after the election manifestos of three years ago. Now there is nothing stopping them in their haste to get the Bill onto the statute book. Tradition has to be got rid of speedily.
For some, marriage is not just a ceremony with an approved form of words and mutual vows but a sacrament that has existed for many years. I, for example, look forward to my wife and I renewing our vows in a church with the local vicar on the occasion of our golden wedding anniversary in September. For us, our marriage 50 years ago was not some simple ceremony but a form of sacrament before God. Some hold that dear for that reason. For others who have come to their view only over the past year or two—and I include the Government and the official Opposition—the extension of the definition is necessary for equality. Perhaps that is as part of a Damascene conversion as they did not think so a year or two ago.
The amendment of the noble and learned Lord allows two things. Same-sex couples will be able to say in all honesty that they are married and truthfully assert that status when they discuss their marriages with other people. At the same time, the proposal recognises that same-sex marriages cannot be the same as traditional marriages. The noble and learned Lord mentioned characteristics such as non-consummation, adultery, being physically different, and the effect on children, a subject in which he has had a close interest. It is therefore absurd to try to make the same that which is essentially different. The amendment therefore allows for same-sex couples to be distinct but at the same time to be married and to be able to say so when they discuss their relationship with other people. It is an ingenious effort to bridge the gap, which I wholeheartedly support and commend to your Lordships’ House.
Lord Lester of Herne Hill
My Lords, we all agree that marriage is a vital institution. The exclusive commitment of two individuals to each other nurtures mutual love, support and stability. For those who choose to marry and their children, marriage provides legal, financial and social benefits and, in return, legal, financial and social obligations.
Two competing views of marriage were helpfully identified by Justice Alito in his opinion in the United States case of Windsor on 26 June, in which he dissented from the majority—the majority having decided that the denial by the Defense of Marriage Act of federal benefits to same-sex couples lawfully married under New York law was unconstitutional.
In his dissent, Justice Alito referred to the traditional conjugal view that sees marriage as,
“an intrinsically opposite-sex institution—the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so … Throughout human history and across many cultures, marriage has been viewed as an exclusively opposite–sex institution and as one intrinsically linked to procreation and biological kinship”.
That is the view of my noble and learned friend Lord Mackay and others who have spoken so far.
Justice Alito then referred to what he called the newer view that is the consent-based vision of marriage,
“a vision that primarily defines marriage as the solemnization of mutual commitment—marked by a strong emotional attachment and sexual attraction—between two persons. At least as it applies to heterosexual couples, this view of marriage now plays a very prominent part in the popular understanding of the institution … Proponents of same-sex marriage argue that because gender differentiation is not relevant to this vision, the exclusion of same-sex couples from the institution of marriage is,
what he describes as,
“rank discrimination”.
The Bill removes that rank discrimination by securing equality for same-sex couples according to the newer view of consent-based marriage while protecting the traditional conjugal view of opposite-sex marriages for religious organisations such as the Church of England, the Catholic Church and others which do not wish to celebrate or solemnize same-sex marriages. It protects freedom of religion in that important way.
The supporters of this group of amendments—I shall make only one short speech on all of the amendments, which are grouped together on an industrial scale—do not like the Bill and seek to substitute for the phrase “the marriage of same sex couples” the phrase “marriage (same sex couples)”. They believe strongly in the traditional conjugal view of marriage as being much better, as we have heard, for the upbringing of children and they do not believe that the marriage of same-sex couples is to be regarded equally. They reflect their deeply held religious beliefs that I understand and fully respect.
However, these amendments would obscure the main purpose of the Bill, which is to enable same-sex couples to marry in accordance with the newer view of consent-based marriage because they are excluded under the traditional conjugal view of marriage. There should be no hierarchy that puts traditional marriage above consent-based marriage, whether in the definition of the marriage of same-sex couples or whether they are to be treated equally in all respects with the marriage of opposite-sex couples.
The attempt to define same-sex marriage differently from opposite-sex marriage while claiming that they are somehow equal would inevitably be seen by ordinary men and women in the street—and by me, as a not very ordinary man in the street, I suppose—as attempting to give the traditional view of marriage a superior status. It is essential to be sure that the marriage of same-sex couples is not regarded as less worthy than the marriage of opposite-sex couples. That is why I cannot support these amendments.
The Earl of Listowel
My Lords, I listened with great interest as the noble and learned Lord, Lord Mackay of Clashfern, presented his case, particularly to what he said about children and families and the importance for children to grow up in a very strong environment, ideally with a father and a mother. I do not think that he said that specifically, but he talked about children coming into the care system and the difficulties at finding someone who will make a real commitment to the child. In my own family, marriage was fairly relaxed from a religious point of view, but it was there in preparation for having a child and gave us children a secure base to look forward to.
I listened to the noble Lord, Lord Lester, speaking about the old view and the modern view of marriage. The old view is there for families and to give a strong framework in which children can grow up, and the modern view is much more about individual adults choosing what is best for them and what they feel most comfortable with. I am reminded of a report from the Children’s Society—the Good Childhood inquiry—some time ago, which drew attention to exactly that change and shift in adults, and the unfortunate consequence for children, with so many children nowadays growing up without contact with their fathers. That freedom of choice for adults has become a very unhappy situation for many children who do not have that security of having a father around.
This is such a difficult question and it is helpful that the noble and learned Lord has tabled the amendment. It is important to distinguish between this new version of marriage that we are discussing today, and traditional marriage, especially as there is some misunderstanding about the impact of same-sex parenting and heterosexual parenting on child development. There are strong feelings on both sides, and some say now that the question is quite finalised: we all know that same-sex parenting has the same outcomes for children as heterosexual parenting. However, I think that there are a number of difficulties about that particular point of view, and I would say briefly that same-sex parenting has been around for only a short time; it is a new phenomenon, so scientifically there has not been the time for extensive or controlled research to verify either way, or to provide data on these outcomes. We will come back to this later in the debate, but I support strongly what the noble and learned Lord proposes, and I hope that the Minister will feel inclined to accept it.
Baroness Butler-Sloss
My Lords, I am grateful to the noble and learned Lord across the Chamber. I want to make a brief point to the noble Lord, Lord Lester. If the noble and learned Lord, Lord Mackay, had asked for the phrase, “traditional marriage”, the point made would have some benefit and would be something that we should perhaps take into account. But the amendment refers to “same sex couples” and “opposite sex couples”, so how on earth can anyone suggest anywhere that one sort of couple is better than another sort of couple? They just happen to be different—different and equal. So I cannot see how the noble Lord, Lord Lester, can make the point that one group will be downgraded because they are the same sex and another will not be downgraded because they are opposite. That is not an argument that can be used in the present wording—very clever and careful wording, if I may respectfully say so—of the noble and learned Lord’s amendment.
The Lord Bishop of Chester
My Lords, I find myself asking, what would actually change in the Bill if we accepted the amendment? As I understand it, there would be recognition of difference yet equal treatment of the two types of couple. That is what would happen. Therefore, I ask the noble Lord, Lord Lester, who we all respect so greatly, is it the case that the couples would not be regarded equally when, in fact, the treatment of the couples would be exactly equal in law? The noble and learned Baroness, Lady Butler-Sloss, made a similar point. Would accepting the amendment of noble and learned Lord, Lord Mackay of Clashfern—there are two Lord Mackays now in the House—accord either of these forms of marriage a superior status, as was alleged? I do not see that on the face of the Bill. It simply accepts a certain difference.
Behind this lies a seductive aspect of the Equality Act itself, that any differentiation amid the protected characteristics is all the same. Therefore, the difference between a woman of childbearing age and a woman beyond childbearing age is just the same as the difference between a man and a woman. That is plainly not the case. There is a greater distinction between a man and a woman biologically than between a woman of childbearing age and one who is not. An element of recognition of difference within equal treatment in law is entirely consistent with the purposes of the Bill.
Lord Waddington
I read on Saturday a speech made by the most reverend Primate the Archbishop of Canterbury. I will not trouble the House with much of the speech, but it contained this particular passage:
“The opposition to the Bill, which included me and many other bishops, was utterly overwhelmed … There was noticeable hostility to the view of the Churches”.
I was not surprised by what I read. There are many of us not of the church who have experienced the same hostility to our views. I hope that supporters of the Bill do not forget that a substantial proportion of the population were, and are still, greatly disturbed that the Government should have introduced a measure that rejects the traditional view of marriage. Many of us are surprised that, far from trying to meet the concerns of such people, the Government have turned down every opportunity to soothe the susceptibilities of those who find the concept of same-sex marriage difficult to stomach.
Surely the Bill should not reach the statute book without the Government doing something to acknowledge that, until recently, it was almost universally accepted—it was certainly so accepted by the previous Government—that marriage could be only between a man and a woman. The views of those who still hold that belief are therefore worthy of respect and should be acknowledged in the Bill. The best way of doing that is not just by a declaration in the form set out in Amendment 4, but by a clear statement that the marriage of a same-sex couple and the marriage of an opposite-sex couple are equally valid but clearly different. The differences have been gone over time and time again since Second Reading and I will not go into them now, but they are different.
I do not think that so far this burying of traditional marriage, and putting something entirely new in its place, has yet been fully recognised by the populace. I wonder how many realise that this legislation authorises in law a man who is married to another man to be called a husband, and a woman married to another woman to be called a wife. Wife in its old meaning has been abolished by a little-read schedule to the Bill and, no doubt, the proper use of the term will soon disappear. These are dramatic changes—changes that pay no regard to the normal use of the English language, tradition, common sense or common courtesies. It is up to those initiating such change to try and make it reasonably palatable for those who were brought up to accept that marriage is the union of a man and a woman. I hope that, even at this late hour, the Government will recognise that they have some obligation in this matter.
Lord Pannick
My Lords, I do not support the amendments because each of them would wrongly suggest to the happy couple entering into a state of matrimony—to their families, their friends and to the world at large—that theirs is not a marriage like any other. The amendments would suggest that it is a distinct form of marriage to be placed in a category of its own. Since the very purpose of the Bill is to recognise same-sex marriages as the voluntary union of one man with another or one woman with another, in the same way as the voluntary union of a man and a woman, it would surely be bizarre in the extreme for us churlishly to take away by a subsection part of the recognition and status that the Bill will accord.
No one would seriously suggest, I assume, that there should be a legislative provision that states that marriage between divorced persons shall be referred to as marriage (divorced couples). The whole point of the Bill is that all lawful marriages, which will include marriages between same-sex couples, are marriages— although, as we all know from our personal experience, each and every marriage is unique.
The noble and learned Lord, Lord Mackay of Clashfern, emphasised that there are some respects in which the Bill treats a same-sex marriage as different from a marriage of an opposite-sex couple. But the whole point of the Bill, surely, is that, notwithstanding those differences, the Bill will implement the basic and vital principle that a same-sex marriage is a marriage with the same status and consequences as any other.
I entirely understand why those who are fundamentally and sincerely opposed to the Bill should wish to introduce these amendments. But they should recognise why those of us who support the Bill regard them as simply incompatible with the fundamental purpose of the legislation.
Lord Mackay of Clashfern
The noble Lord said that the two types of marriage are to have exactly the same consequences. I think I heard him correctly.
Lord Pannick
I said that I understood the noble and learned Lord’s point that the Bill in various respects, which he referred to, treats same-sex marriage and opposite-sex marriage as distinct in various respects. But I made the point that the purpose of the Bill is nevertheless to recognise that each category should be accepted as a lawful marriage for the purposes of the law of England.
Lord Mackay of Clashfern
The noble Lord will be able to say which of my amendments in any way detracts from that. I understood him to say in his earlier submission that there was no difference in consequence. There is a very vital difference in consequence in this respect: a child born to a woman in a same-sex marriage is not a child of the marriage.
Lord Pannick
I respectfully object to the suggestion that a Bill with these purposes and valuable effects should distinguish between same-sex marriage and opposite-sex marriage and necessarily imply a division between them. That is what I object to.
Lord Cormack
My Lords, I added my name to the amendment because I felt that it was not churlish, derogatory or demeaning. In fact, it indicates that those of us who have profound misgivings about the Bill have done all that we can to acknowledge the validity of the arguments of those who are its champions. All the amendment does is repeat certain words that are in the Bill. The noble Lord, Lord Pannick, or any other noble Lord can talk until he is blue in the face without altering the fact that there is a difference between a same-sex marriage and a marriage between a man and a woman. All this amendment does is acknowledge that. It concedes the word “marriage”.
Lord Alli
My Lords, I fear that my response will disappoint the noble Lord, but let me try to explain why. The amendment seeks to create two classes of marriage. It is conceived from the notion, as the noble and learned Lord said, that what same-sex couples want is use of the word “marriage”. It simply misses the point. What same-sex couples want is marriage itself. They want to share with opposite-sex couples the joy of married life, and to be treated equally by the state and by society. They do not want to be “married (same sex couples)”, and I suspect that opposite-sex couples do not want their union bracketed, either.
The noble and learned Lord has gone to a huge amount of trouble to identify and draft amendments to ensure that the brackets are in the right places and the sexual orientation identifiers placed at any and all opportunities. The question that perplexes me is: why is that necessary? Why does the noble and learned Lord want to pick out gay couples in such a public and conspicuous way? I understand that those opposed to same-sex marriage, having lost the vote at Second Reading, now want a second—and, judging by the Marshalled List, a third, fourth, fifth and sixth—bite of the cherry. “Give them marriage”, says the noble and learned Lord, “but not the name. Call it something else: ‘traditional marriage’ and ‘marriage (same sex couples)’—anything but marriage itself”. That is a new battle; in that way we can preserve the inequality between same-sex and opposite-sex marriage.
If we do that, what of international recognition? This amendment would allow other countries to treat same-sex couples differently from opposite-sex couples. Those countries will say, “We recognise only marriage (opposite sex couples)”. We will draw in statute a difference for others to exploit. That is a bad idea. The word “marriage” should be able to be used by couples regardless of their sexual orientation.
I have a great deal of respect and admiration for the noble and learned Lord and agree with much of what he says on many occasions, but I find myself diametrically opposed to his view on this matter. I do not think that the noble and learned Lord or other noble Lords who have spoken in support of this amendment will ever see this Bill as I do. The amendment that the noble and learned Lord has crafted is a means of dividing us, not uniting us. It pours salts on to wounds at a time when we should be healing. It will allow others—not noble Lords in this place—to create mischief where none was intended. It will be argued that Parliament made the distinction so must have had a purpose in doing so. There the discrimination begins.
We have an obligation in this House to make good and to rebuild once this Bill is passed. This amendment would leave a scar on the Bill for another day, and another battle to be fought. For those reasons, and many more, I hope that this amendment will be defeated. Two classes of marriage, however well disguised, is the very opposite of what this Bill is designed to do. Giving us the use of the word “marriage” with one hand and taking back its exclusivity with the other would be a fatal blow to the intentions of the Bill. Just to be clear, I do not find the amendment acceptable in any shape or form. I hope for the reasons that I have tried to express that the noble and learned Lord will understand why I do not share his view.
Lord Skelmersdale
Is the logic of the noble Lord’s position that this Bill should not be called the Marriage (Same Sex Couples) Bill but the Marriage (Amendment) Bill? Would he be interested in putting down an amendment, if it is not too late, to that effect?
Lord Deben
My Lords, it is always with very great care that one clashes with the noble and learned Lord, Lord Mackay, particularly when one has to suggest to him that there is an illogicality in the argument that he has put forward. He said, on the one hand, that there is a whole range of differences between same-sex marriage and opposite-sex marriage. In that, he is not only right but obviously right. He then attached to that the reason for making this distinction in the Bill, but it is a distinction that does not need to be in the Bill because, as he says, it is universally recognised. Therefore, making the distinction in the Bill must be for a different purpose.
As we have heard the debate continue, we have moved from the careful language of the noble and learned Lord to expositions which explain the purpose of the amendments. When they are referred to as modest amendments, I think only of the modest proposal which, in Dean Swift’s writing, went rather further than that title suggested. This modest amendment is here for a purpose. It is to say now what has so far not been able to be said more directly, which is, “Wait a moment, it is not quite what you say”. We will have made sure that in the Bill, and therefore in the Act, we make a distinction that can be referred to and used not only internationally, as the noble Lord, Lord Alli, said, but at home.
I think that Christians should be even more strongly opposed to this than others because the Bill is specifically designed to give us an absolute right to maintain our view about marriage. It does so on the basis that it gives the state an absolute right to maintain its view about marriage. That was, after all, something that was started back in the days of Henry VIII, when the state said that it could make its own decisions about what marriage meant, even though that meant disagreeing with the highest powers in the church.
I am not suggesting that the state should go any further in its relationships with the church than Henry VIII did, but I am suggesting that this is an historic decision and one that we should respect. The church, under the quadruple lock, is absolutely able both to perform and to give its teaching about marriage. That is a teaching which I wholly support. As a convert, I have to, otherwise I would not have made that decision and choice. However, I also believe that parliamentarians have a duty to the whole nation, and those in the whole nation who seek marriage do not seek marriage followed by brackets. Indeed, I think that opposite-sex couples ought to object to this. Why should they have marriage so defined?
I turn to the second argument, which is that in the very clear words quoted by the noble Lord, Lord Lester, there is now a different way of looking at marriage from the historic one. That was rapidly picked up by those who want to support the amendment. I hope that we will think carefully about this. Differentiating between same-sex marriage and opposite-sex marriage because you think that the one is about a new view of marriage and the other is about an old view is of course not correct. If you wanted to distinguish between the new view and the old view of marriage, you would have to have more brackets. You would have to have “(traditional) marriage” for opposite-sex marriage and “(new) marriage” for opposite-sex marriage. No one in this House would suggest that as one approaches the registry office or the smart hotel, one should go up with a list of alternatives, asking, “Am I going in for marriage-light or marriage-heavy? Am I taking marriage in this way or that way?”. From much of my experience of some 35 years in surgeries as a Member of Parliament—more, if you take in the period of candidacy—I do not think that anybody would understand having to fill in a form on that basis.
The Earl of Listowel
My Lords, before the noble Lord sits down, he has made many important points but in his first point I think he was saying that there is no risk of confusion in the public mind and no need for this differentiation because it is all clear. However, is there not a risk in terms of raising children? There is a real question in the public mind about having children raised by, for instance, two men or two women and about children being raised without a father. I must not go on, of course, and this is a simple question. However, there is confusion, and is not the benefit of this amendment that there would be less confusion?
Lord Deben
I very much thank the noble Earl for that question. It would be germane if we were in France and debating the French changes, because France changed the law about adoption. The whole system was changed. We, of course, are not changing the law, as that provision is already there and is not altered at all. If that was where we were and what we were doing, there would be a different argument because I have to tell the House that I have a huge problem with the creation of babies in a world in which there are so many babies waiting for adoption. I have not yet come to believe that there is enough evidence to say that same-sex adoption is the same as or equal to opposite-sex adoption, but none of those issues is before us today. If they were, we would have a different argument. Because they are not, the proposed change is naked and unashamed. It is not about children or any of those things. It is about two different sorts of marriage and the difference will be upheld by those of ill will and by some of those of ignorant will, and we should not have it.
Lord Fowler
My Lords, I have had great respect for my noble and learned friend Lord Mackay of Clashfern ever since we sat in Cabinet together, but on this proposition I am afraid I cannot support him. He seems essentially to be making a division between one group and another when the whole aim of the Bill is to eliminate divisions and to seek to create some equality. To that extent, the amendment goes against the spirit of the Bill, which both Houses of Parliament have given massive majorities, and I think there is a limit to the number of times that we can debate the Second Reading in this House.
I have been told by, among others, my noble friends Lord Waddington and Lord Cormack that we must listen to what is being said outside this House. I agree, but that is an argument that goes both ways. We should also take into account what gay and lesbian people feel about the way that they have been treated and whether this is yet another attempt to create an underlying division between them and the rest of society. The reason they will feel that—and this is a point that my noble friend Lord Deben referred to in his excellent speech—is the discrimination and prejudice that they have faced over the years in this country. Of course it is true that homosexuality is no longer an offence in the United Kingdom, but let no one believe for a moment that the prejudice has vanished with it. It is true that it is not so bad here as in some notoriously homophobic countries overseas. I have just returned from Russia, where I have been looking at exactly these kinds of issues and where a new law has been passed to stop gay issues being discussed, making gays and lesbians subject to attack.
However, we still have a mountain of prejudice to overcome here in this country. A few days ago I was listening to a much respected figure in the HIV world who said that if he was walking down the road in this country arm-in-arm with his male partner, he could not be sure that he would not be verbally or even physically abused. That is Britain as it stands today, viewed from his eyes. I listened to the gay footballer Robbie Rogers—a committed Christian, incidentally—who came out only after he had left British football. One cannot speculate too much about the reason for that or about the reaction that he would have received had he done so before.
We can listen to the YouGov survey on behalf of Stonewall, which showed that over the past five years 2.5 million people of working age have witnessed verbal homophobic bullying at work, 800,000 people of working age have witnessed physical homophobic bullying at work and two-thirds of people aged 18 to 29 say that there was homophobic bullying in their school. That is not a record that this country can be remotely proud of. It is that sort of thing that underlies my opposition to my noble friend’s amendment.
The overriding goal of policy today should not be to underline differences but to underline the goal of equality of treatment. That intention was overwhelmingly backed by the votes of both Houses of Parliament, and I certainly do not believe that we should try now to unpick the votes of the two Houses at Second Reading in this amendment.
Lord Richard
My Lords, I have an enormous respect for the noble and learned Lord, Lord Mackay, as he knows, but as a long-standing judge he also knows that when one says, “With the greatest respect”, one knows precisely what the phrase means. I have great respect for him and his argument but I am afraid that, on this, he is wrong. He is wrong because the reintroduction of a distinction that the Bill takes out is dangerous, destructive, divisive and debilitating.
I listened to this debate with great care and, with great respect to the noble Lord, Lord Cormack, he let the cat out of the bag when he stood there and said, “We have given you marriage, now give us the distinction”. That is a contradiction in relation to the Bill; the whole point of the Bill is that there is no distinction in relation to marriage. Marriage is something that will be available to gay couples in the same way that it is available to non-gay couples.
As I say, I have listened to this debate and it has gone round and round, but I have little doubt which way I shall vote if a vote takes place.
Baroness Kramer
My Lords, I have not spoken before in this debate; it has taken an exercise of will power, but I have been conscious that time is an issue, and that is true for many of my colleagues on these Benches. I moved the first civil partnership motion at my party’s conference in 2001, having turned to my noble friend Lord Lester for legal advice. I am happy and honoured that that process played a role in bringing us to the incredibly important civil rights legislation that we have in front of us today. I did so motivated by close family and friends who are bisexual, gay and straight but who believe that these changes are extremely important.
What drove me to speak today on the amendment moved by the noble and learned Lord, Lord Mackay, were the comments of the mother of a good lesbian friend who said to me, “Why is it so important to those people”—she means the noble and learned Lord, Lord Mackay, and others, and she means no disrespect—“to mark out my daughter as different and to mark out her relationships as different?”. There are many differences, and others have described them. Every marriage is different and many of us fall into a variety of different categories. However, there are those we choose to mark out, and it is a choice—there is nothing inevitable about marking out a difference. That choice says something about the values of the society of which we are a part and something about ourselves. I have struggled today to understand why creating and reinforcing that sense of us and other is so important, and it seems to me to lie behind those amendments.
I promised that I would be brief. I spent some years, as noble Lords will know, in the United States, so perhaps I come to some of these issues of civil rights with a slightly different perspective. I am conscious of the dissenting view of Justice John Marshall Harlan in 1896 in Plessy v Ferguson. It was that Supreme Court ruling that created the basis for separate and equal. I thought I would read noble Lords one of his sentences, slightly paraphrasing. He said, “The thin disguise of equal”, and have we not heard today that these changes still permit equal? However, he said, “The thin disguise of equal will not mislead anyone”, and I believe that the changes proposed today will not mislead anyone. They are not a mechanism for recognising the common institution of marriage, which unites every adult engaging in a committed, loving and public relationship and who chooses to express that through marriage, whether it is with a person of the same sex or a person of the opposite sex. I ask that this House recognises that the thin disguise of equal is not where we should be on this crucial piece of civil rights legislation.
Lord Elystan-Morgan
My Lords, I respectfully disagree with the noble Lord, Lord Deben, who made an excellent speech. Although I agree with his basic submission, I disagree with his argument that this is a wrecking amendment. It is not a wrecking amendment, but it is an amendment that, if carried, could defeat the whole purpose and objective of this legislation. It is on that basis that we should look at it this afternoon.
The issue is important but simple: whether you elongate the institution of marriage to include same-sex marriage as one indivisible institution, or draw a dividing line through it—a frontier line that will create two categories of marriage, one a gold standard and one a standard of baser metal. That is the issue.
There are three arguments that can be put very briefly in favour of opposing the amendment and accepting the elongated institution argument. First, marriage has passed through many different phases, definitions and concepts in the past 200 years. Before the 1836 legislation, all people who wanted to get lawfully married had to be married in the Church of England. Many, like my forebears, found that extremely distasteful but that was it—it was a fait accompli. Before the Married Women’s Property Act 1882, a married woman could not hold property; it became her husband’s upon marriage. All that she could cling to was what was called her paraphernalia. That changed everything. Before 1991, where two persons were married and no separation order had been made by the courts, a man could rape his wife and she would have no redress. Do you think that did not change the institution immensely? One may point to a number of other phenomena that have in total, and in many cases individually, changed the situation fundamentally. That is the first argument: there have been changes in the law that have fundamentally metamorphosed the whole concept of marriage.
Secondly—I say this with very great diffidence as a Welsh Presbyterian—there have been changes in the spiritual world as well. The Book of Common Prayer justifies marriage in three ways: first, for the procreation of children; secondly, so that the temptations of adultery and fornication should be removed; and thirdly, so that there should be a lifelong, devoted, loving partnership between two people. As far as the first is concerned, you might say that people who are beyond child-bearing age are logically in breach of that precept, but nobody in his or her senses would argue that. However, I know many young people who, for professional reasons, have married on the basis that they will not have children. That is the clearest understanding and agreement between them. Do you say that their marriage should be placed in some hermetically sealed compartment on that account? I would not argue that. Essentially, is one not justified, to a large extent, in saying that the essence of marriage today for so many people is that lifelong commitment of love, affection and loyalty? If that be the case, one can say, yes, in the spiritual world, too, there have been massive changes that have been accepted by society.
There is a third justification. Many Peers have already spoken of the days before 1967, when homosexuality was a very grave offence. I remember well over 60 years ago, when I was a young law student, going along to the assizes and seeing the local vicar, the nonconformist minister, the accountant, the solicitor and many similar people of high standing in society, all being sent to prison for four or five years for what we would today call “lavatory cases”. I remember thinking, “There must be some better way of dealing with this problem”.
I have argued with myself a great deal over the past few weeks as to where I stand in relation to this matter. I have asked myself whether this change—the concept of single-sex marriage, which is of course a massive change—is of such magnitude as to demean and in some way unsettle and undermine the concept of marriage. I have asked myself whether it any way demeans or changes my own marriage. I was supremely happily married for 48 years to a very splendid lady, who died six years ago. I am sure that if she were alive today, she would say to me, “Yes, there is a third argument: the argument of reasonableness and tolerance”.
As a community we have treated these people abominably, in a way that is a disgrace to our religion and to so many things that we believed we stood for as a community. Now we have a chance to make up for that, and we will do exactly that by elongating and not dividing.
Lord Phillips of Sudbury
My Lords, I apologise to my noble and learned friend Lord Mackay of Clashfern. British Rail prevented me from being here when he opened this debate. However, I have had the advantage of long discussion with him concerning his reasons for putting forward the amendment and I support it.
This is not an easy debate. I am sure that there are many in the House now who sway this way and that. The issues are highly complex and diverse and we have heard some outstanding speeches today. However, I disagree totally with one of the things that my noble friend Lord Fowler said when he put it to the House that if we passed this amendment it would add directly to homophobia in this country. If I was even a little in agreement with him on that, I would not be standing and speaking here. However difficult it is to assess the reactions of the great people of this country to matters such as this, far from increasing homophobia, Amendment 1 could ease the passage and consequences of this profoundly important measure for the millions of our decent, not prejudiced and not homophobic countrymen who currently believe that we may be foisting on them what they would call an untruth—they might call it dishonest or a public relations exercise.
Whether we like it or not, millions of our decent fellow-citizens will agree totally about same-sex couples having the same esteem, love and life-long commitment, and so on, but, as has been said many times, and so one need not elaborate on it, they believe that unions between same-sex couples and opposite-sex couples are different and that they have profoundly different potential consequences. To say that many opposite-sex couples are disabled, too old or disinclined to procreate is not an answer to the fundamental factual and real difference. That is where, I repeat, millions of our countrymen sit at this time. The noble Lord, Lord Pannick, talked about an inferior status, but they do not want to create anything of the sort. Nobody is interested in belittling the commitments made by homosexuals; there are a few, but, I maintain, not many. However, what they do say is, “Why are we pretending that it is exactly the same when it is profoundly different in one particular?” Why not use the word “marriage”, since that is the important thing, and then have the qualification? It is not even as though the qualification is very novel: it is in the Title of the Bill as we sit here. I believe that in time—and I do not think that it will be a long time—people will concentrate on the word “marriage” and the bracketed bit, frankly, will fade into lesser and lesser significance as the public mind progresses.
One might ask, “Why have that wording?” I actually believe—this is the nub of it—that we will ease the passage of this important measure if we put Amendment 1 in the Bill. We will salve the present discontent that so many people feel about the Bill as it stands. That is why I shall vote for Amendment 1.
Baroness Howarth of Breckland
Before the noble Lord sits down, does he not think that that has already been achieved by the lock? I am always interested when the right reverend Prelates join in the debate. The only other intervention I have made in these debates was to ask the most reverend Primate the Archbishop of York whether, if the Bill goes through, the Church of England will marry gay couples. We know the answer to that. Those people who object already have a huge lock—I am not sure that I am happy about that in itself—and that holds enough.
Lord Phillips of Sudbury
The noble Baroness raises an interesting point. The quadruple lock is important to people of religious faith. However, I am not talking just about people of religious faith. The current objection goes way beyond that category.
Lord Winston
Is the noble Lord aware of the research on children who are being raised by people who are gay—either lesbian or male homosexual? There is now a large and incontrovertible body of research evidence—particularly from Professor Golombok of the University of Cambridge—which shows that on average such children do better than children who are born in the normal way of current marriage. That is an important point as several noble Lords have raised the issue of procreation. We have to understand that there is no evidence at all that children are worse off as a result of having parents who are in a gay partnership.
Baroness Northover
I remind noble Lords that we are at Report stage and that interventions, if they must happen, should be very brief—namely, a quick question of clarification rather than, in effect, another speech. I also remind my noble friend that those who speak in each debate should be here at the beginning. I realise that there are problems with trains. Nevertheless, there are a lot of noble Lords seeking to get in.
Lord Phillips of Sudbury
If I may answer briefly the noble Lord, Lord Winston—
Lord Davies of Coity
My Lords, Amendment 1 is very simple and I give it wholehearted support. Some things have been said during the debate on which I want to comment. The noble Lord, Lord Fowler, talked about prejudice. Yes, there is prejudice. For example, there is prejudice about capital punishment and there is prejudice about the European Union. We do not ban them. In fact, we might be having referendums on them shortly. Nevertheless, there is prejudice.
This amendment is a simple one. It distinguishes between natural relationships between men and women on the one hand and relationships between men and between women on the other. That is fine. However, everyone has a vested interest in this debate. I have one, for example, and the noble Lord, Lord Alli, has one as well.
I have been married to my wife for 53 years and have four daughters. My second daughter wanted a second child and tried IVF nine times before she succeeded in having one. When I went to the IVF clinic, I saw the faces of women who wanted nothing else but to have children. This amendment protects those children as well as giving members of the gay community the opportunity to marry. They want to have that opportunity and they will get it. However, a marriage between a man and a woman has to be identified because it is natural and should exist separately in the way that this amendment provides for.
Lord Elton
My Lords, my father told me that when this House was evacuated from this Chamber to let the House of Commons sit here, the Lords moved to the Robing Room. The space there was limited by the voting lobbies on either side, the rails below the Throne and the Bar at the bottom of the House. He said that the result was not really a Chamber but a rather comfortable drawing room, in which one could not have oratory but only talk to each other. He thought it was a great pity that the Lords returned to this Chamber. We have heard a lot of oratory today and I think sometimes it moves people to go a little further than they intended. For instance, my noble friend Lord Deben said that anyone who opposed the amendment did so out of ignorance or something—
Lord Deben
I am sorry. If that was said, it was a mistake. I said that, were we to pass this amendment, some people outside, either through ignorance or bad will, would use it in a way which would be damaging and divisive.
Lord Elton
I am delighted. I can move swiftly on to my other small, brief point, which is simply that after a battle the battlefield is covered with broken lances, some of which are worth picking up and mending. We have to distinguish between “equal” and “the same” and the difference has to be understood. Underlying this there is an assumption that if something is different it cannot be equal. I ask your Lordships to look at other noble Lords around the Chamber for a moment or two and remember that this is a House of Peers. We are all equal and, by gum, we are all different.
Lord West of Spithead
My Lords, in the mid-1990s I was the Naval Secretary with responsibility for naval personnel and the Special Investigation Branch. On taking up that post, I discovered the degrading treatment that was meted out to people suspected of being gay, who had anonymous phone calls made about them. It was still illegal to be gay in the services. I was shocked and appalled at how gay people were treated. I stopped that behaviour immediately and then pushed very hard to allow them to be accepted in the Armed Forces. Thank goodness, that happened because it worked brilliantly and it is a good thing to have done. We have a terrible baggage from how we have treated homosexuals and lesbians in this country, as was said by the noble Lords, Lord Deben and Lord Fowler, and others. I am afraid that this is a wrecking amendment. When I came into the Chamber, I did not know how I would vote on the amendment. However, having listened to the arguments put forward, I fear that this is a wrecking amendment. The noble Lord, Lord Pannick, is absolutely right: every marriage is different. Will this demean my marriage? It will not do so at all. I believe that the people we are discussing should have the opportunity.
Baroness Howarth of Breckland
My Lords, I have not made a speech in this debate, just two short interventions, and I wish to speak briefly now. Having talked to dozens of gay people recently and to my ordinary friends who wanted to discuss the Bill, it is clear that the only thing gay and lesbian people want is to be treated as ordinary people. They do not want to be (extraordinary) people. People who are on the receiving end of prejudice, particularly when they are practising Christians and live profoundly Christian lives, know what those brackets mean. They mean that you are different; you are not ordinary. Being ordinary means living in your community and bringing up children—maybe lots of children. It means going to church regularly and being accepted on the same basis as every other Christian in your community. It means sharing with your fellows on an equal basis. Gay and lesbian people do not want brackets as they make them different and will make them even more different as they travel across the world. I beg your Lordships, in common decency, to give gay people what they want: simply to be ordinary.
We are all much aware of the noble and learned Lord’s concern about family and children, because he has spoken about them many times in this Chamber. However, with respect, these are not the issues being discussed in this Bill. I agree with many noble Lords who said that this will probably be known as the “brackets” amendment. We do not want or need brackets in this Bill, because its very purpose is to provide for the state to recognise equally the relationships of couples who wish to make a loving and lifelong commitment to each other, regardless of whether they are members of the same sex or of the opposite sex.
I accept that this purpose moves the statutory concept of marriage beyond that which proponents of traditional marriage agree. This amendment is about creating two classes of marriage. I congratulate my noble friend Lord Anderson, who spoke of celebrating his special wedding anniversary, but I hope that I will live long enough to celebrate silver wedding anniversaries of same-sex marriages which will take place next summer. My noble friends Lord Alli and Lord Richard, and the noble Lords, Lord Fowler, Lord Deben, Lord Pannick and Lord Lester, put the case powerfully and well.
I am surprised by the opposition to equality of marriage from the noble Earl, Lord Listowel, given his work with children, for which he is famous in this House. If he had discussed this with young people, as I have, he may find that in most cases they really do not understand what the fuss is about or what the problem is here. I do not think that the problems faced by the types of young people the noble Earl helps and supports are a result of, for instance, the proposal for same-sex marriage. That cannot be the case.
I would say to the noble Lord, Lord Waddington, that I have not seen any hostility to the church during the course of these discussions. My noble friend Lady Royall and I have met both the Church of England and the Roman Catholic Church on several occasions throughout the course of this Bill. They were friendly exchanges and friendly discussion. We disagree with each other on some of this Bill, but I have not seen any unfriendliness, nor do I think that the dismal picture that the noble Lord paints will come to pass.
I do not think that the word “wife” will be abolished. As a wife, I certainly do not think so and I hope that nobody will put any ideas into my husband’s head. We wives are probably very safe with the passage of this Bill. My noble friend Lord Alli asked the question, “Why do same-sex couples have to have bracketed marriages?”. I agree with him that it is a bad idea. We should defeat this amendment.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble and learned friend for introducing his amendment and for all the contributions to the debate. One or two noble Lords referred to this issue as being complex. I disagree with them. What is before us is very simple. There is one institution of marriage, it is one of the most important institutions that we have, and we want gay and lesbian couples to be a part of it in exactly the same way as any other couples who wish to be married. These amendments create two separate, potentially legal institutions and, therefore, undermine the fundamental purpose of the Bill, as other noble Lords, including the noble Lords, Lord Pannick, Lord Alli, Lord Deben and Lord Richard, have said.
Every time that we have introduced a change in support of gay rights, it has been hard-fought for and not always been easy to progress. None the less, it has made it easier to take the next step. Each step makes it easier for gay men and women to live their lives in the same way as straight men and women. I noted what the noble Baroness, Lady Howarth, said about gay men and women wanting to live ordinary lives. The more that we allow them to do so, and to see them doing so, the more it leads us to believe that we should remove from them any barriers to being able to do just that.
The creation of civil partnerships was a massive step forward. Through them, we gave gay couples equal rights. I was not in Parliament at the time, but I guessed that Parliament decided that the difference between us justified keeping gay men and women out of the institution of marriage. However, over the past eight or nine years, as we witnessed civil partnerships taking place and have become familiar with couples in civil partnerships, we as a society have realised that the exclusion of gay men and women from marriage is not justified.
My noble friend Lord Cormack said that he wanted us to reach a compromise and that the amendment represented that. I say to him and to all noble Lords who support him and these amendments that the time for compromise is over. We now understand that serious relationships between gay men and between gay women are no different from serious relationships between straight men and women. I have said many times during the passage of the Bill that gay couples want to settle down for exactly the same reasons as all other couples do. They are two people who love each other, want to commit to each other, want to provide security and stability for each other, and want to be a team, a partnership and to support each other. Like straight people, that is what leads gay people to want to marry. There is no difference there between us.
My noble and learned friend Lord Mackay pointed to differences and raised the issue of procreation and children to illustrate his argument. The Bill as it stands distinguishes between same-sex couples and opposite-sex couples only as far as is necessary to achieve a practical result. My noble and learned friend talked at length about children. In response, I should make just a few points. The first, which is really important, is that if we enact the Bill, the children of same-sex couples will be able to enjoy the same status as other children. That is a fantastic thing to be able to achieve. It will mean that children at school will not be treated differently, as their parents will be married in the same way as other parents may be.
The Earl of Listowel
I thank the noble Baroness for her reply to my question about research into outcomes for children of same-sex couples. It is encouraging and reassuring, to some extent, that there is positive research about the experiences of two women bringing up a child. However, is she aware that it is still early days in terms of research? We have not, for instance, looked very deeply at what happens to children being brought up by two men. We have not looked at issues around lower income couples and the outcomes for them. Surely we need to keep in mind, and be critical about, all the research because we know, for instance, about poor outcomes for boys who grow up without fathers. We need to look at the research critically because it is still early days.
Baroness Stowell of Beeston
I would disagree with the noble Earl’s suggestion that there is a difference in outcomes for children of same-sex couples, but that is a debate for another day. That argument, and the points he makes are not relevant to the amendments before us, which are about creating two different types of marriage. We are saying that there is only one institution of marriage, and both gay and straight couples who want to get married should be able to be part of that one institution on equal terms.
Lord Mackay of Clashfern
My Lords, I am obliged to all those who have taken part in this debate, whether supporting or opposing my amendment. It is interesting to hear what people have to say. I quite understand that the noble Lord, Lord Alli, does not like the brackets, but they have been put in by Government in the Bill’s Title. I thought, what else can I do but accept the Government’s guidance on the matter? However, I think perhaps that that is not the noble Lord’s most important point.
My noble friend Lord Deben, in a characteristic speech, said that the distinction between the two types of marriage was universally recognised, so why should it be recognised in the Bill? If it is universally recognised, surely it would be right to recognise it in the Bill because it is founded on the absolute fact of what occurs. The two are distinct. I do not try to separate them; I just distinguish because they are distinct in fact, and nobody can alter that. The idea that I am trying to wreck the Bill is not correct, I am sorry to say—well, perhaps I am not sorry; I should be glad to say that it is certainly not correct. I want to recognise in the Bill a distinction which, according to my noble friend Lord Deben—and who higher an authority?—is universally recognised. It damages the Bill in the eyes of ordinary people when it is not seen that that is recognised.
My noble friend said that I went on at length about children. I am sorry if I went on too long, but it is a very important factor. Children are very much at the centre of the institution of marriage as it was—and is until the Bill is passed. They are very much at the centre, and indeed, as your Lordships know, in relation to divorce and all that, elaborate provisions were made for children. Children are very important to marriage. There is a statement about children in the Bill which I regard as very important. Paragraph 2(1) of Part 2 of Schedule 4 states:
“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”.
Therefore, the situation is that when two women are married under the Bill, and one of them has a child, that child has the same status as if the woman were single. If that is not a distinction—it should be recognised at some point, whether in brackets or otherwise—I do not know what an important distinction can be. If the Government want to improve on the brackets, I shall be happy that they should do so, but I believe that there is a universally recognised distinction between the marriage of two men or two women on the one hand and the marriage of a man and a woman on the other. These are facts that depend on something outside, and impossible to move, or remove by this legislation. The Bill would be improved by people realising what it does and recognising this universally understood distinction.
My noble friend Lord Lester quoted from the dissenting judgment of one of the Justices of the Supreme Court of the United States. He distinguished between the two types of marriage: the one slightly older and the more recent one. I want to include in the Bill recognition of that distinction. The quotation of the noble Lord, Lord Lester, seemed to imply the necessity for some form of sexual relationship in both types of marriage. I pointed out, and I think it has been accepted so far, that same-sex marriage is not gay marriage—it is quite wrong to describe it thus. It includes gay marriage, of course, but it is wider because it involves same-sex couples, whether gay or not. Platonic relationships are perfectly possible under the Bill.
Lord Lester of Herne Hill
I am grateful to the noble and learned Lord. The reason I was quoting Justice Alito was simply to say, as he did, that the choice is for the legislature, and that we have in the Bill protected both kinds of marriage. That is why I did so.
Lord Mackay of Clashfern
Exactly, the choice exists. We have chosen—I want to make it clear that we have chosen—to embrace both in our definition of marriage because that is what I am doing. The idea that my noble friend Lord Lester suggested, that I preferred one to the other or said that one was superior to the other, is quite unfounded so far as these amendments are concerned. There are later amendments that may go further, but this amendment strikes me as the absolute minimum to recognise the distinction that exists in fact. I moved the amendment and I would like to seek the opinion of the House.
Lord Mackay of Clashfern
Lord Mackay of Clashfern
My Lords, I give notice that, following that vote, I will not move a large number of other amendments in my name.
Baroness Cumberlege
“(6) Any duty of a person employed as a registrar of marriages on the date this Act comes into force (“relevant registrar”) to solemnize marriages is not extended by this Act to marriages of same sex couples if the relevant registrar has a conscientious objection to doing so.
(7) Nothing in subsection (6) shall affect the duty of a relevant registrar to carry out any other duties and responsibilities of his employment.
(8) The conscientious objection, under subsection (6), must be based on a sincerely held religious or other belief concerning only the marriage of same sex couples and in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.”
Baroness Cumberlege
My Lords, in Committee, I introduced an amendment that allowed civic registrars to exercise a right to conscientiously object to conducting same-sex marriages. Although there was some support for that amendment—in fact, there was quite a bit—I sensed there would be much more support for a transitional amendment that would protect only registrars in office now; they would be protected only once the Bill becomes law. These men and women are already in post and were, in effect, exempt when the law on civil partnerships was introduced in 2004. I am very grateful to the noble Lords who have put their names to this much narrower and more focused amendment, and to those who wished to put their names down. They were restricted by the fact that only four names are allowed.
We understand the nervousness about allowing future registrars to object conscientiously, but why not take those who are in office now? Without protection, those registrars will be faced with an impossible position: resign and face possible unemployment, given how difficult it is to find a job in today’s labour market; or stay and act against their conscience. The lack of protection is unfair and inconsistent with other areas of law, and it will unduly limit the freedom of thought, conscience and religion.
We need to be fair to all. We need to ensure that those who wish to can exercise a conscience clause and that those who want a same-sex marriage can marry. Nothing in the amendment would prevent couples of the same sex marrying. In the spirit of tolerance and respect, we have considered and dealt with almost every concern put to us in this House and the other place. The noble Baroness, Lady Thornton, asked whether a previous amendment would open the door to registrars conscientiously to object to other things, such as mixed-race marriages. That was never our intention, and this amendment makes it clear beyond doubt that registrars will be able to object conscientiously only to same-sex marriages. We have done so by making it absolutely clear in proposed new subsection (6) that the conscientious objection applies only to the solemnisation of marriages. That is reinforced by proposed new subsection (8), which states that the religious or other belief on which the conscientious objection must be sincerely held must concern only the marriage of same-sex couples. Any other conscientious objection to marriage will not be covered by our amendment, so it will not allow registrars to object to conducting marriages for any other reasons.
The noble Baroness, Lady Barker, seemed concerned about the scope of our previous amendment. She was under the impression that it would allow registrars conscientiously to object to more than the conducting of marriage. She was concerned that a registrar could, for example, sit in a register office at interview and refuse to assist any same-sex couple. Again, that is not what we intended. Therefore, our amendment has been revised to make it abundantly clear in proposed new subsection (6) that a registrar may conscientiously object only to conducting a same-sex marriage. Proposed new subsection (7) puts that beyond doubt by stating that any other activities will not be covered. Our amendment will not allow registrars to treat same-sex couples differently; it will merely allow them to refrain from solemnising their marriages.
I stress that our amendment is not unprecedented; it is nothing new. My noble friend, replying to the debate in Committee, attempted to draw a distinction between our conscience clause and others found in English law. I drew the attention of the House to numerous other cases, such as a doctor’s right to refuse to give contraceptive advice, a person’s right not to participate in work involving the treatment and development of human embryos, and the right of a Sikh not to wear a motor cycle helmet or a safety helmet.
Although the protection for teachers is not explicitly framed as a conscience clause, such as in our amendment, it operates like one nevertheless, because it also allows atheist teachers to refuse to conduct religious education without suffering any detriment. That operates at voluntary-aided faith schools and, interestingly, at non-faith schools. I am not saying that the registrar scenario is like that of a doctor not giving contraceptive advice or a teacher refusing to teach religious education.
Those conscience clauses and others—of which there are many—are all different, and they all allow a person to refrain from undertaking different activities. The difference did not prevent conscience clauses in those cases, so why does it in this case? What makes registrars so different as to warrant their forcible registration? Is the belief about marriage not as valuable as a belief about contraception? Is the belief about marriage not as worthy of protection as a teacher’s conscientious objection to teaching religious education? It is not, with the greatest respect, an answer to say that they perform a civil or a public function because doctors, medical professionals, teachers and so on, all of whom have the right to object conscientiously to some activities, also perform public functions for civil society. Not only is it therefore not fair to force all registrars currently in employment to conduct same-sex marriages if they conscientiously object to them, it is also unnecessary.
I am grateful to my noble friend for copying to noble Lords a letter from the chairman of the national panel for registration, but it takes us no further. Jacquie Bugeja, with whom I had a very interesting and long conversation, does not tell us in her letter, when referring to three consultation meetings, how many registrars attended each meeting. Only one or two registrars could have turned up, for all we know. Were the registrars who were not present asked for their opinion? For those who were, was there a general discussion or a confidential questionnaire? What was the format? In conversation, Jacquie could not tell me how many registrars were canvassed for their views. She said that it was left to local discretion within a local authority and that there was no follow-up by the panel.
We have not been able to find the minutes of the meeting of 2 June 2012. If there was no confidential questionnaire, registrars could have been reluctant to voice opinions. They could have risked disciplinary action being taken against them or being dismissed, as experienced by the unfortunate Miss Ladele. The second meeting was simply for 10 managers, whom we know are fearful that a conscience clause might cause them managerial inconvenience. Who attended the most recent regional meetings, held last month? Was it again just the managers, and how and where were those meetings held? What was the format and where are the minutes published for such an important issue?
The letter makes a series of unsupported statements, including that for the past 176 years registrars have been carrying out their duties and have never wanted a conscience clause. Of course they have not; they have never needed one. Local authorities up and down the country were able to accommodate their registrars’ conscientious objections. When an authority did not, it was taken to the European Court of Human Rights. The Joint Committee on Human Rights recognised the argument that registrars currently in office would not be free to hold to their beliefs if they were automatically designated as same-sex registrars. I welcome this conclusion and I urge noble Lords to support and accommodate the registrars currently in office. It is the right and the fair thing to do. In the spirit of tolerance and freedom of the individual, which is the hallmark of this House, let us together protect the registrars’ freedom of thought, conscience and religion. With this very modest but important amendment, we seek to do that. I beg to move.
Baroness Williams of Crosby
My Lords, I am a signatory to this amendment. I realise that the time is going by and I shall make my remarks in support of my noble friend Lady Cumberlege brief ones. Interestingly, there is a real dilemma here about both equality and liberty. Although the amendment is brief and limits itself to a modest request, it has considerably greater implications than may at first be realised.
A registrar is the first step towards a career in public life for a great many people. It is a job which they do for the community and one in which they reflect their community’s interests and concerns. It is a crucial step on the path towards the integration of different minorities, regardless of religion, language or earlier origin. It is therefore all the more important in communities where a large minority is present—let us say Muslims, or other religious groups—to make it possible for them to become registrars. To my regret, this amendment is limited quite deliberately to those already in office. I personally think that it would be better if it applied to anyone applying for this job, which, I repeat, in my view at least is the very first rung of a professional career in public life.
I shall take this one step further. There are some religions that, for deeply held principles, very strongly cannot accept the idea of single-sex marriage. That includes most of the Muslim faith and those who are supporters of Orthodox Jewry. It seems only right that registrars who hold those faiths, and who have done their job properly and intend to go on doing it well, should not be excluded from entry into that profession or, even worse, forced out of it when they have already been in it for several years and have performed satisfactorily. I can think of almost nothing crueller than to announce that after two or three years a registrar who has been behaving himself or herself in an upright and proper manner should be compelled to leave their job, often at a time when they have children and other responsibilities, because of this legislation. I cannot for the life of me believe that most people in this Chamber who believe in equality and human rights would want to see that happen.
Frankly, I do not understand why this relatively limited change could not be made easily to permit people to make this decision on conscientious grounds— for example, as my noble friend said, in cases of giving advice on contraception or taking part in abortion. This very limited right, linked to one particular thing, would allow their conscience to be exercised.
I have two important points to add on this. The numbers concerned would be relatively small. I have recently looked at the record following the passage of gay rights in Spain, and one is talking of a few score people every year. That means that any decent register office could easily, by dint of rotation or of acceptance, treat this rather in the way that they do, quite properly, in the case of a registrar or an assistant registrar who becomes pregnant, covering for them in their enforced absence. That happens to all of us virtually every day of the week in existing forms of employment. It happens to civil servants, lawyers, teachers and doctors, and there is no reason on earth why it could not happen to registrars.
I have to say to the Minister that I find this insistence on such people not being able to have a conscientious objection puzzling, given that we know in advance that certain religions will find this very hard to accept. On the kinds of grounds that my noble friend has already talked about, it would seem sensible to make this exception in such cases.
I believe that this is genuinely a conflict about equality and liberty. I personally believe very strongly that opening the doors of becoming a registrar to people of all races and religions of this country is an important tool in advancing the integration of our communities. I point particularly to those communities in the Pennines and other parts of the country where there may be a very substantial minority, or even sometimes a majority, of Muslim British citizens, and we should ensure that they, too, are treated in an absolutely equal way.
I strongly commend my noble friend’s amendment. I add one thing to what she said about attempting to discover the opinions of registrars. It is always a mistake to ask the opinions of managers about the views of the people they manage, unless you have a proper method of discovering what they are. Surely we know from the sad history of Mid Staffs that one of the things you should not do if you smell difficulties is to talk to the top management and assume that they truly reflect what the ordinary, everyday workforce thinks, because often they have a very strong in built desire to avoid any problems of managerial difficulty, which they always see as too big an obstacle. I strongly support my noble friend’s amendment.
Baroness Butler-Sloss
My Lords, I too have put my name to this amendment. It is a narrow and transitional amendment and does not in any way affect the fundamental underlying purpose of this Bill. Marriage registrars carry out a particularly attractive job. On the number of occasions where I have been to a civil ceremony, I have watched, with mounting enthusiasm, the way in which the registrar has made the marriage ceremony a really important occasion. I assume—and, indeed, I hope, since this Bill will become law—that the majority of registrars will give the same enthusiasm and pleasure to the single-sex couple as I have seen them do in those services. I am about to go to yet another great-nephew’s wedding, which will be a civil ceremony.
However, when a number of registrars took the job, the idea that marriage would be between single-sex couples was not even a blink on the horizon. I can understand perfectly well that those who come in in future will take a job in which they recognise that they will marry everybody, whether that is two males, two females or a male and a female. For those already in the post, for the reasons that the noble Baronesses, Lady Cumberlege and Lady Williams of Crosby, have both put forward, this is a small and special group. It would be particularly sad if, having given to the minority in this country the right to marry in the same way as the majority, we cannot recognise that there remains a minority who cannot take it. Are we to say that that minority, those who came into post before one ever thought there would be same-sex marriages, is not to be recognised at all?
As has already been said by the noble Baroness, Lady Cumberlege, what will these people do if they cannot marry but are ordered to do so? If this Bill will not permit them by the amendment to say no, will they have to resign? Will they get a job in this time of stringency and austerity in which we now live, when the job market is difficult? I ask the House to think about a small minority who would have had no idea that this would happen, and whose Christian beliefs would not permit them to marry the couples who will be able to marry by this Bill.
Lord Lester of Herne Hill
Will the noble Baroness explain why, when we brought in the race and gender discrimination and other controversial legislation, we never made transitional provision for those public officers to be able to discriminate, as they had been before, that we should now do so with this form of discrimination?
Baroness Butler-Sloss
It happened with abortion but, if I may say so, it was not a marriage. We all know how special marriage is; for goodness’ sake we would not all be here, voting in different ways, if we did not think that marriage mattered in a special way. It is for that reason, despite what the noble Lord, Lord Lester, says.
Lord Anderson of Swansea
Is the distinction not this: that there is no mainstream church, be it a Christian church or a Muslim group, in this country which believes in the principles of racist intolerance, whereas there are many mainstream people, Muslim and Christian, who do believe in traditional marriage? It is quite a simple distinction, which perhaps the noble Lord will consider.
Baroness Butler-Sloss
I had just about finished, but I had not actually sat down. I just want to say that I think this is a rather special, entirely transitional and narrow matter which I ask the House to treat with some degree of sympathy. It is rather different from the last vote that we had, which was on an important and fundamental point. There is nothing fundamental about this; it is a matter of helping a small minority.
Lord Mackay of Clashfern
My Lords, I put my name to this amendment too. I do not think that the fact that it is a public office is a distinction that is important. The important thing is that the law is changed after somebody has taken a job, and that law affects the conscientious view that that person has of the job. The nearest thing that came to my mind, in my own experience and connection with this, was when Sunday trading was introduced, again on a free vote. Those who were employed were given terms in relation to that. It seems to me that some such allowance is only fair, and fairness should apply in public offices as well as in private offices.
Lord Pannick
I apologise to the noble and learned Baroness. For my part, I cannot accept that a public official is entitled to protection against the requirement to perform his or her basic obligations in relation to the official duties which they are contracted to perform. As was pointed out in Committee, a judge or a magistrate who administers the law of the land cannot refuse to administer laws to which he or she objects. The law may well be clarified after that judge or magistrate has been appointed. No doubt some registrars have a conscientious objection to marrying divorced couples; I cannot see that a conscientious objection to same-sex marriage is any different.
Of course, as has been pointed out, the law does allow, in various contexts, for conscientious objections, including doctors and abortion and teachers and religious education. Sunday trading was mentioned by the noble and learned Lord, Lord Mackay of Clashfern. The difference, as I see it, is that the registrar is performing the function of the state, and the function of the state in this respect is to marry people. The law, not the registrar, determines who is eligible to marry. It is unfortunate if registrars take the view that they cannot continue to perform this role, but no one is asking them to approve of or bless same-sex marriage; all that they will be required to do is to perform the official function that they have contracted to undertake.
Lord Elton
Before the noble Lord sits down, I wonder if he could enlighten me; I am only an ignorant layman. Am I right or wrong in believing that judges can in fact pass a case to another judge if they have difficulties with it, such as we have been talking about?
Lord Pannick
I am not aware that judges have an ability to refuse to hear and determine cases on the basis that they disapprove of the particular law of the land that they are charged with the duty to enforce. They accept as part of the job that their job is to apply the law; the law is made by Parliament.
Lord Deben
I believe that on this occasion we should remember what we have just done. We have just asked those who disagree with the view that I and others have taken, to understand why it is that marriage has to be the same for both single-sex and opposite-sex couples. Those of us who have done that have now got to think carefully about opposing this amendment. I support this amendment because I think generosity ought to be at the heart of everything that we do. I do not understand why it is unreasonable to say that those people, who took on a job with particular rules and very clear circumstances, should now be unable to carry through that job in the context of wider views and beliefs. It seems to me a very small thing indeed, but it is crucial to say this about the society we live in.
I remember the disgraceful behaviour in a previous Bill because of which many children have not had the opportunity of being adopted because we did not allow those for whom this was a matter of belief to continue to run adoption agencies unless they were prepared to offer for adoption children from same-sex marriages. As all those agencies always passed people on to those adoption agencies that did do that, there was no reason to do it, except that sometimes we mistake toleration for agreement. In other words, what we mean by toleration is that we should tolerate those things with which we agree. I think toleration is about being prepared to tolerate those things with which we do not agree.
I cannot see the comparison between the judge and the registrar. The job of the judge is consistently and continuously to interpret the law. He or she knows from the moment when they accept being a judge that that is what their job will be. They know that in future there may well be laws with which they do not agree, so it is perfectly proper to insist that they should use their technical ability to impose sentences for things which perhaps they feel ought not to be crimes or, the other way, to be less strict on things which they think ought to have been much better assessed by Parliament. But that is not true of registrars who are now registrars. There must be many who never thought that this change would take place. It has been a remarkable change in human society. It is one I wholly approve of, but I cannot pretend that it has not been very rapid.
Therefore, I ask this House to accept this in the same spirit that we who have sought to get this Bill through have asked others to accept something that is so different from the way in which they have previously thought. I hope that we will be magnanimous and generous enough to say that this is, after all, something that could properly be done, because it will not be for ever; it is merely referring to those people who are now in place. I would have much more difficulty were it not doing that. It seems to me that we ought to be a society capable of including this because, if we are not, we give to those who do not want the changes here every reason to believe that we have put intolerance in the place of a liberal approach.
I hold it to be one of the great achievements that we have reached this way of looking at our fellow citizens. We ought also to think of those who through no fault or choice of their own were unable to imagine that they would now be asked to do this. After all, it is a terribly simple matter. We are just making sure that, when such a thing arises in a registrar’s office, Mrs Jones or Mr Smith is not asked to perform that particular ceremony. If this House cannot see that that is the same spirit as the spirit that puts this Bill through, we must be much mistaken.
Baroness Richardson of Calow
My Lords, I recognise what the noble Baroness said about how important it is for a marriage to be conducted in a very proper way. Sometimes the presence of a registrar can make a marriage very special, but the registrar is invited to register a marriage, not to make it or to bless it. If he or she does not register it, someone else will have to. It is not going to make a difference to whether that marriage takes place. We need to have concern for smaller registry offices that do not have a huge number of registrars and which would have to make a rota that took into account people’s sensitivities. This is going a step too far.
Lord Alli
My Lords, we debated at Second Reading and in Committee the rights of this group of employees not to conduct same-sex marriages. I understand that it might seem unfair to some that registrars who do not approve of gay marriage should have their jobs put at risk if they refuse to marry same-sex couples. Registration is the core of what those public employees do. It is not an add-on. It is their refusal to do a substantial part of their job that creates the issue, not their religious belief. We divide church and state, and I think it is dangerous to let church bleed into state functions. I believe that every citizen of this country has a right, regardless of colour, creed, background, religion or, indeed, sexual orientation to have equal access to the goods and services offered by the state. We all pay for them.
Lord Deben
That would be a reasonable argument and one that I would support for people in future, but does the noble Lord accept that there ought to be some generosity towards those who have chosen this profession and for whom the matter of registration—and it is that—stretches their beliefs to a degree that means that they cannot do it? It is not for us to decide what is a proper belief; that is one result of a division between church and state. We ought to be able to allow the small number of those for whom this is true to continue in their jobs until they move on.
Baroness Williams of Crosby
Would the noble Lord, Lord Alli, consider looking at other countries and at what has happened in cases where public servants have questioned the conscience of the state in asking them to do things that they believed to be deeply wrong? How much we all feel in debt to those brave people who stood up in countries such as Germany in the 1930s, and elsewhere, because they believed they had a conscientious objection to what the state was ordering them to do.
Lord Alli
I understand the point the noble Baroness, Lady Williams of Crosby, is making, but it undermines her argument when she and the noble Baroness, Lady Cumberlege, seek to rubbish the national panel for registration and the opinions it gave and question the core of what registrars are saying. They are saying that they do not want this.
In Committee, I said that we have to divide church and state, and this is the other side of the coin. If the noble Baroness, Lady Williams of Crosby, wants me to accept what she just said, would she accept that the church has made it very clear that it wants an absolute opt-out? It has insisted, quite rightly, and I am happy that it has done so, that any individual priest or cleric, no matter how strong their belief in same-sex marriage, should not be allowed to opt in until the religious organisation has agreed. There is a blanket exemption, so if I were a priest—the Bishop of Salisbury—and I deeply believed that I should be allowed to marry gay couples, why could I not opt in? There is a blanket ban from the churches. Individual opt-in and opt-out are not on the table. The churches themselves ruled it out at the beginning of this process. No priest can opt in; no registrar can opt out. If we accept the case for religious organisations barring individuals from opting in, we, too, must accept the case for civil registrars not being able to opt out. We have discussed this issue at length; we need to resolve it today.
Lord Lester of Herne Hill
My Lords, I cannot remember whether the Race Relations Act 1976 had already come into force when I got married 41 years ago in the Brixton register office. However, suppose that that Act had not come into force at that time. In Brixton, there are a lot of black people. If I had wanted to marry a black person and we turned up at the Brixton register office, where the registrar looked at us and said, “I’m very sorry, but I have a conscientious objection to mixed marriages. I don’t wish in any way to undermine you, but I just can’t do this”, that would be impermissible. A public servant who is performing statutory duties must not discriminate on any forbidden grounds.
Lord Cormack
Will my noble friend concede that there is a difference between racism, which is bigotry, and a deeply held belief?
Lord Lester of Herne Hill
My Lords, I understand the difference. Bigots normally have deeply held beliefs. My point is not about the sincerity of the belief but the discriminatory conduct of a public officer. We have never before, in the various phases of introducing and enacting—
Baroness O'Loan
The noble Lord said that that would have been possible only in cases where one is lawfully permitted to say, “I cannot marry you”. The noble Lord said that it was for Parliament to decide. If that is the case, what we are trying to decide here is: what does Parliament want to decide? We cannot make a decision until we have decided it, so the question must be open. We have situations in which Parliament has decided that it is perfectly legitimate for someone to exercise their freedom of conscience—
Baroness O'Loan
I am asking the noble Lord the question. Surely the noble Lord will agree that there is an exception in that situation in which Parliament has decided. We could make another exception.
Baroness Northover
My Lords, before the noble Lord answers, I remind the House that noble Lords can be interrupted with a brief question for clarification. Noble Lords have an opportunity to make a speech—one speech.
Lord Lester of Herne Hill
My Lords, of course Parliament may decide to create an exception through this amendment. I am explaining why I could not support it. The first reason is that it would legitimise discrimination by public officers who are performing their statutory duties. My noble friend Lord Deben says, “Let’s show a bit of generosity”. I reply, yes, let us show a bit of generosity to those who would be the victims of this practice, who would find that they could not have a civil marriage registered by a public official—that is all it is—because of his or her conscientious objection.
Lord Deben
I am sorry, but surely that cannot be true, because the case would never get to that. You would know that if a same-sex marriage had been offered, there would be a registrar who would be willing to do that. It would be privately arranged; there would be no victim in this. That is clearly different from what my noble friend says.
Baroness Northover
My Lords, I apologise, but we are moving away from brief questions of clarification and on to debate, which is permitted in Committee, but we are now on Report. Noble Lords will have a chance to speak if they have not already done so.
Lord Lester of Herne Hill
My Lords, my last point is simply that this is a very old story. In the case of Ladele, which was one of the cases that went to the Strasbourg court, our courts decided that a registrar could not exercise conscientious objection in relation to civil partnerships. The Strasbourg court upheld our domestic courts’ judgment to that effect. My noble and learned friend Lord Mackay of Clashfern took objection to it and we debated it at the time. The current position is that, under Strasbourg law as well as domestic law, there is no right to conscientious objection in this context, and nor should there be.
Baroness Knight of Collingtree
My Lords, in the first debate on the Bill, I warned that we were losing the right to have and live by a conscientious objection all the time. I gave a number of instances, one of which has been referred to today, which was the simple and widely known fact that all Catholic adoption agencies have had to close because they are not happy about putting a child in a home where there are two men or two ladies. I agree completely with what was said in the earlier debate about the monstrous way that we in this country and, I am afraid, other countries have treated homosexuals in the past. However, those who point out how wrong that was are saying, “But it’s only wrong up to a point. We can demand that other rules are made that aren’t fair”. More and more I come to the conclusion that one person’s human rights are the denial of another person’s human rights.
We agreed years ago—I think the first well known example occurred during the First World War—that people were able to have a conscientious objection to fighting. They were given other jobs, which were extremely important in the war effort, and that happened in the last war, too. We must guard and guide that trend. It is woefully and obviously wrong to say today that it is right that conscientious objections shall, in certain circumstances, be smothered. It has to be wrong. We must stand and defend those conscientious objections.
I am also very concerned about what the noble Baroness, Lady Williams, said. She pointed out, unless I misheard, that being a registrar was the first step to a whole career. The fact that apparently we can do nothing about these future circumstances must mean that many people will not be able to go into the career that perhaps they have planned for many years. I urge noble Lords to recognise that it is very dangerous for a free country to deny a person’s right to live by their conscience. We may not agree—it is not important at all—but everybody has a right to their conscience and to live by what it tells them. It is only fair to say that we must try to give the same human rights to everyone.
I know that the noble Lord, Lord Alli, is a fair man. I think that when he considers again his suggestion that just because you have a certain job you should be forced to act against your conscience, he will see that that is the wrong road to take. I support, with many congratulations, those noble Lords who put their names to this amendment, the aim of it and what will happen. I am quite sure that plenty of other registrars who do not hold the same view will be available, and couples who wish to be married will easily be able to be married by them.
Lord Higgins
My Lords, the crucial point is that we have to take account of the fact that some individuals may be affected. What representations have been made on their behalf is not the point. We need to allow for the fact that some such individuals may have serious grounds of conscience. I turn to the point made by the noble Lord, Lord Pannick. He says that these people have a contract, as registrars, to carry out marriages. However, the crucial point is that the marriage that they are now asked to carry out is not what they understood marriage to mean when they signed the contract. We have to take account of the fact that we are changing the rules after they have accepted the job. On a purely transitional basis, there is an overwhelming case for us to agree this amendment.
Lord Wills
Before the noble Lord sits down, is he saying that it is completely unreasonable to expect a registrar, in this modern day and age, not to have foreseen that the current measure would come before Parliament at some point in the foreseeable future? Does he think that that is an unreasonable proposition?
Lord Higgins
I had already sat down. However, it seems to me that there is no reason to suppose that anyone would have anticipated this. When I led from the opposition Front Bench on same-sex partnerships, no one envisaged this; indeed, a number of people said that it was not going to happen.
The Lord Bishop of Chester
My Lords, as a bishop of the Church of England who is constrained by the church not to conduct same-sex marriages, the vision of the noble Lord, Lord Alli, has stimulated me briefly to rise to my feet. I suppose that I should declare an interest, given that I am a sort of registrar. Perhaps I am the only one here, as a bishop of the Church of England.
This is a modest amendment, as has been pointed out, but it has a certain symbolic importance. A lot turns on the status of the issues that we talk about, and that has dogged our debates throughout. The noble Lord, Lord Lester, asked why there is an exception in this case. However, the law does make exceptions in relation to the strongly held beliefs of a significant number of members of a religious body in relation to sexual orientation. The law allows religious bodies to have single-gender priesthoods or whatever. We have agreed exceptions in that area that we have not agreed in other areas, such as divorce. That is why the parallel between same-sex marriage and divorce—I think that the noble Lord, Lord Pannick, raised that point—does not quite follow. It depends on what one regards as the status of the different issues. For example, as I pointed out at Second Reading, historically the canons of the Church of England have never banned clergy from remarrying divorced people. A different status applies in this instance.
One of the problems is that a lot of people here feel—and I understand why—that this whole issue is a no-brainer, and that anyone who is opposed to same-sex marriage is almost de facto and de jure homophobic. That rather destroys the concept of reasonable debate. I find that that happens in the Church of England over the issue of women bishops: if you are opposed to that, somehow a glaze goes over people’s eyes and they cannot speak to you at all. As the noble Lord, Lord Deben, said, it is about having tolerance in the democracy in which we live. The issue is a small one.
As I understand it—though I speak as a fool in the presence of so many lawyers—the principle in this country is that we do not legislate retrospectively unless there is a compelling reason to do so. I do not think that a compelling reason to force existing registrars to conduct same-sex marriages has been demonstrated in our debate. In that spirit, I hope that we can accept the amendment.
Lord Anderson of Swansea
My Lords, the question has been posed whether it was reasonable for an existing registrar to have anticipated that at some date unspecified in the future the law in respect of same-sex marriage might be altered.
Let us consider a registrar who is now, perhaps, 45. Almost 10 years ago we had the Civil Partnership Act. During the passage of that Bill through this House the noble and learned Baroness on our Front Bench said in terms that there would be no relevance for marriage. That was said clearly in terms. If that same registrar—who might have been put off by the possibility of same-sex marriage—had looked at the manifestos of the different parties at the last election, not one of which mentioned same-sex marriage, should he nevertheless have anticipated that there was a faint possibility of that happening? Of course not. It is wholly unreasonable, even in the light of the recent past and the stampede over the past years, to imagine that someone would have anticipated that the situation would change.
Effectively, we are talking about tolerance, generosity and whether the way of the majority—the 3:1 balance we had in the last vote—will be juggernaut-like and we will go on nevertheless.
The noble Lord, Lord Lester, talked about victims. He talked about the victimhood, if I can repeat that word, of the couple who are not married because the registrar has an objection. However, what is certain is that a registrar will be a victim because—given the identikit of the person I have mentioned, who is perhaps in mid-life, has been a registrar for a number of years and did not anticipate the change—his job will go. Being a registrar does not provide specific training for anything else. He will face the fact that the terms and conditions of his employment, on which he embarked some years ago, have been fundamentally altered. However, there is no reasonable prospect of victimhood for the gay couple who quite properly ask to be married, because there can be a reasonable accommodation. There will be a team or group of registrars in a particular district, and the couple can avoid the one individual who has a conscientious objection and, without any fuss, move their case to someone else. After all, I suspect that, after the initial surge of gay people who want to get married, there will be very few cases and relatively few registrars involved. If the district is very small, an arrangement can be made with an adjoining district—as in other areas of local government administration—for the relatively small number of cases that occur.
The noble Lord, Lord Pannick, took a fairly absolutist view, in my judgment. Public officials enforce the law; the registrar is a public official; he enforces the law or he takes the consequences. However, I think that there are other public officials for whom accommodations are found in statute. Doctors, given our National Health Service, are also public officials in the broad definition of the term, and so are teachers. Given that teachers overwhelmingly receive their salaries from the state, their terms and conditions of employment come from the state, yet we find exception for them.
In effect, the number of registrars likely to be involved is small. This is a transitional arrangement. For me, this is a test case of the absolutism, tolerance and generosity of the Government. Equally, it is a test case for the Opposition, who are currently cheerleaders—although perhaps I should refrain from using that word—for the Government. The proud tradition of my party over the centuries has been to look after the small person, the “village-Hampden” or the person with a conscientious objection who might be hurt by changes. I hope that we shall not abandon that proud tradition and will accept this small, transitional and quite proper amendment.
Baroness Berridge
My Lords, I rise to support this amendment, which is recommended in the report of the Joint Committee on Human Rights in relation to the Bill. I serve on that Joint Committee.
In Committee, your Lordships heard emotional exchanges about what was or could be the experience for gay couples seeking a civil marriage if there was any form of conscientious objection. Those scenarios were upsetting. The argument that public services should be available to all service-users is compelling but I do not believe that it is unassailable. A number of individual registrars who are currently in post did, indeed, contact their MPs to say that they would consider resigning their posts should they not be allowed to object, on the basis of conscientious objection, to performing these ceremonies. I asked Simon Hughes MP, who serves on the committee, specifically about that question, as no Select Committee of this House should make recommendations that are unsupported by evidence.
I believe that the distinction between choice and conscience is important here, in that if people say that their conscience does not permit them to do this, that means that it does not allow them even to enter a process of choice. They are not expressing a mere preference. Neither time nor expertise allows me to go into that issue in any greater depth. I am sad that the noble Baroness, Lady O’Neill, is not in her place on the Cross Benches; I am sure that she could elucidate that point more eloquently than I can. However, there is a difference between choice and conscience.
I believe that it is this Chamber’s role to reach an accommodation that will enable same-sex couples to marry under the new law without causing the possible dismissal of a small number of public servants. I should be grateful if my noble friend the Minister would clarify whether the role of the registrar is limited just to the action of registration, as this matter caused some confusion in Committee when your Lordships considered the role of authorised persons. As regards Ms Ladele, I believe there is an arrangement in the Civil Partnership Act whereby certain personnel do not have to conduct civil partnership ceremonies if their local authority permits them not to do so. I leave it to the Front Bench, with its expertise, to clarify those two matters.
Given that the parameters of culture are changing so rapidly, I believe this amendment to be a suitable compromise between two different groups of our citizens, each with deeply held convictions. The ability of all citizens to access public services is not violated by certain public servants having a limited exemption. Having heard the arguments and circumstances outlined in Committee, I repeat that the exemption must be applied carefully and sensitively. It is not a perfect solution for either side but it is a sensible and reasonable compromise in the circumstances.
Lord Mawhinney
My Lords, I commend my noble friend Lady Cumberlege for moving this amendment. I was equally impressed by the supportive speech made by the noble Baroness, Lady Williams of Crosby. While she was speaking, I was reminded of something which my noble friend Lady Stowell of Beeston said at Second Reading, and I will limit my comments to this one issue. I interrupted her when she said that she had great respect for those of us who had religious and conscientious views on the principle and substance of the Bill. I, perhaps ungraciously—if that is so, I apologise—and perhaps mischievously, said words to the effect that I wished I had a tenner for every time in the past 35 years I had heard a Minister say at the Dispatch Box how much he respected views with which he did not agree and then promptly ignored them. I remind my noble friend of that exchange because it seems to me that this is an excellent opportunity for her to demonstrate that she really does respect those whose views and consciences differ from those held by the majority in this House. An acid test of that respect would be to accept this amendment.
Baroness O'Loan
No, I asked the noble Lord, Lord Lester, a question. I will speak briefly as this is a modest amendment. The question has been asked as to why registrars should be exempt. Three years ago, the leader of the Government said that there would be no legislation for same-sex marriage. Therefore, it is not inconceivable that the people employed in registry offices might have formed a legitimate expectation that that would be the case. We have to accept that a consequence of this legislation will be to exclude from being employed as registrars people in the Islamic, Sikh, Orthodox Jewish and Christian communities who have profound beliefs. We simply have to accept that consequence. It is for Parliament to legislate and if Parliament makes that decision, that is proper. However, we have to bear in mind that there is a significant problem for Islamic women who get married in a religious wedding, think they are married and then find that, because there has been no civil marriage, they are not married and can be set aside.
Marriage is a foundation stone for what stability remains in our society. We must do all we can to enable existing registrars, who may be members of those religions and who will be excluded from being employed as registrars—Muslims, Sikhs, Orthodox Jews and certain Christians—to continue to do their job. That spirit of generosity of which so many Members have spoken is very much part of the tradition of this House. I support this amendment because of its significance for those communities and because of the need to care for all the communities in our great country.
Lord Vinson
The noble Lord, Lord Lester, gave the impression that registrars who were not happy with same-sex marriage would make their feelings known. It would be much more sensible to allow registrars with deep religious convictions who feel that they cannot conduct same-sex marriages to say quietly when the roster of registrars is being sorted out, “Do you mind if I am off with a cold on Tuesday?” as everybody will understand why that is being done. We are talking about a very small exception here. The converse is to make such people conduct these ceremonies. We are told—it is true—that registrars conduct ceremonies with spirit and feeling. If ever I married again—God forbid—I would not want a registrar to conduct the ceremony through gritted teeth because he did not like doing it. This is a thoroughly sensible amendment. I remind all those who are against it of the very moving words attributed, I believe, to Christopher Fry about the downtrodden not treading down.
Lord Peston
My Lords, I reluctantly totally oppose this amendment. Those who are totally opposed to same-sex marriage have day in and day out taken up an enormous amount of your Lordships’ time in making their case. This is the dying embers of their attempts to go on making their case. It has nothing to do with tolerance. No one is remotely asking those registrars who oppose same-sex marriage suddenly to say that they are now in favour of it, as happened under the old Stalinist rules. No one is remotely asking them to do that. They can say what they truly believe for as long as they like and where they like. The noble Lord, Lord Pannick, made the central point—I would have thought that was enough to end the debate—when he said that all we are asking them to do is the job they are paid to do. That is the beginning and end of the story. There is nothing more to be said. This has nothing to do with tolerance. When I think of some of the things I have had to tolerate with which I do not agree, I shudder, but one does one’s job. As the noble Lord, Lord Pannick, so excellently said, we are not asking these people to change their minds. They can keep their views but they must do the job they are paid for.
Baroness Howarth of Breckland
I apologise to the noble Lord for interrupting but I am anxious to ask a simple question. I have been a public servant for many years and have had to make difficult assessments and understand the nature of different staff and what they bring to the job. The arguments about generosity and inclusiveness are extremely attractive, but how does a manager decide who has a genuine conscientious objection and who has not? Unless you have criteria and people have previously said something about where they stand on the issue, it will be very difficult to make that decision. Unless there is absolute clarity about the matter, some people will choose not to perform a ceremony because they do not want to do it as opposed to having a conscientious objection to doing it. What about all the other conscientious objections that people may have? Should they not be able to object to marrying people who have a serious criminal history? What if they discover that one of the marriage partners has been a paedophile? Do they have the right to voice a conscientious objection to marrying them? This argument could get us into enormous difficulties if we carry it through.
Lord Elton
My Lords, the noble Lord, Lord Peston, is right in one respect: we are making a meal of a very small issue. At Second Reading, the House agreed to swallow a camel. We are now straining at a gnat, if I may use an image which the right reverend Prelate will understand. The noble Lord, Lord Lester, quoted the Ladele case at Strasbourg. That case proved that there are registrars with conscientious objections and that if the law is not amended they will lose their case and their job.
It also proves that if there was one registrar who was able to go all the way to Strasbourg, then there must be at least a few dozen others who were not able to afford it. It is that handful that we are talking about. If you doubt that it is a handful, then listen to the national panel, who assure us that there is none, which means there can be only very few. This amendment is concerned only with seeing that for the remaining part of their careers those people do not suffer for what, in their eyes and certainly in mine as well, is an unavoidable injustice.
If we are all to be as generous and big-hearted as we say we want to be and get closer together, can your Lordships not find it within yourselves to look at these few people? We are looking for justice, not vengeance. Surely we can find in ourselves the guarantee that these people will not lose their jobs and their pensions because they have a belief that was valid for their job when they took it on and the job then changed.
Lord Walton of Detchant
My Lords, this may by no means be exact, but when the Abortion Act became law many years ago, it was quickly recognised that doctors, particularly obstetricians, who were of a particular religious faith, might well have a serious objection to carrying out abortion on ethical grounds. That was even if, on complete medical advice and investigation, patients had been shown to have fulfilled all the criteria established by law. Some could have argued that those refusing to conduct abortions were not fulfilling their terms and conditions of service within the National Health Service. That argument was not widely used, but on the other hand it was quickly recognised by the doctors’ regulatory authority, the General Medical Council, that it was proper for doctors of that particular religious persuasion, who had an immensely powerful objection to carrying out abortion, to be able to refuse to do so on religious and ethical grounds. However, they were advised that in those circumstances they should do their best to see that the individual in question who had fulfilled all the conditions set down by law should be referred to another consultant who might be willing to carry out that procedure.
To the best of my knowledge, registrars who are public servants do not have a regulatory authority. It may be argued that those who refuse to carry out and register a single-sex marriage on religious or conscientious grounds do not fulfil their existing terms and conditions of service. This is a simple amendment. It protects those registrars at present in post who object to carrying out single-sex marriages on powerful conscientious grounds. Once they have retired, the issue will no longer be with us. All registrars appointed in future will recognise that the terms of this law on single-sex marriage apply to them and they will not have the right to object on grounds of conscience. This amendment protects the ones who are at present in post and we should strongly support it.
Baroness Noakes
My Lords, it is distasteful to equate what happened in the Abortion Act with what we are dealing with here, which is two people coming together to formalise their loving relationship under law. We are talking about two completely different things. We are accustomed in this House to legislating on the basis of evidence. We have heard no evidence that this amendment is needed. I am sure that if registrars out there wanted this amendment they would have been flushed out by now. We have heard evidence to the contrary. The National Panel for Registration thinks that this is neither necessary nor desirable. This is another attempt to undermine the status of marriage being created by this Bill and which I support.
Lord Deben
I really do think that my noble friend has to withdraw that. I have fought in favour of same-sex marriage the whole way through. I am not trying to undermine it. I am standing up for toleration. Toleration, even if it is for two people, is worth while.
Baroness Noakes
I accept what my noble friend says about his position, but I do not think it is the position of those who put forward the amendment.
Baroness Barker
My Lords, I want to draw to the attention of the House something which has not been mentioned so far in all these debates. I listened with great care when the noble Baroness, Lady Cumberlege, introduced the amendment. She drew the attention of the House to subsection (7) of the amendment:
“Nothing in subsection (6) shall affect the duty of a relevant registrar to carry out any other duties and responsibilities of his employment”.
Registrars do not just officiate at weddings. They register births and deaths. If this amendment were passed, it would mean that for a generation we would continue to have acting as registrars people who could not bring themselves to extend the full respect and dignity to same-sex relationships that they do to others.
It may be the case that it is wrong to ask them to perform what is, in the end, not a religious ceremony in any way but a public ceremony. However, to me it is utterly intolerable that a gay person going to register the death of their partner in life should have to do so in the presence of somebody who cannot bring themselves to extend the respect to them that they would to anybody else.
Lord Touhig
My Lords, I had not expected to speak in this debate, although I have listened throughout. My mind goes back to 1967, when a dear friend of mine—and a friend for more than 40 years afterwards—introduced a Bill in the other House to decriminalise same-sex acts. Leo Abse was denounced and vilified, he had human excrement pushed through his letterbox, and it was an intolerable time for him and his family.
I have too much respect and affection for Leo Abse to presume to say what his view would be today. I rather think he would support this Bill, but I know one thing. When he announced his retirement and spoke to a meeting of the Pontypool Constituency Labour Party, he said: “I have only one bit of advice for my successor. Tolerate everyone, tolerate everything, but do not tolerate the intolerant”. As I have witnessed this debate today, I have sensed a degree of intolerance. Wherever we stand on this issue, it is right and important that the majority tolerates the minority. I hope the House will recognise that as we bring this debate to a conclusion.
Baroness Thornton
The arguments of the noble Baronesses, Lady Cumberlege and Lady Williams, and the other movers have not convinced these Benches that the conscience clause amendment is a good idea, any more than we thought in Committee. Notwithstanding the appeal about registrars from the noble Lord, Lord Deben, I really am puzzled as to why he supports this amendment. I am not inviting him to explain again, but we need to be clear that this is not about tolerance and generosity.
In this House we have shown enormous tolerance and generosity to each other. Those of us who support this Bill have also shown huge tolerance and generosity—sometimes enormous generosity—to views that have been expressed which, if not offensive to people who are homosexual, are certainly hurtful to them. We have shown huge tolerance and generosity all the way through the debate. I draw to the right reverend Prelate’s attention that I have probably sat through every single moment of the discussion about this Bill. Nobody used the word “homophobic” until the right reverend Prelate used it today. That has not been mentioned in this Chamber—and that is right, because it is not appropriate that it should be mentioned at all.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I thank my noble friend Lady Cumberlege for moving the amendment, which has undoubtedly generated a good debate. Amendments 3 and 11 would provide a conscience clause for marriage registrars regarding their duty to conduct or participate in marriages of same-sex couples on the basis of a religious or other belief about such marriages. Specifically, Amendment 3 would amend Clause 1 to provide that for registrars who are already in post once this Bill comes into force the duty to solemnise marriages is not extended to same-sex couples. Amendment 11 removes “registrar” from the definition of “person” in subsection (4) of Clause 2 to protect registrars from being compelled to be present at religious same-sex marriage ceremonies, no doubt in circumstances where a particular religion has opted in. The amendment would apply only to registrars participating in religious ceremonies, not to the Registrar General or superintendant registrars.
This issue was much debated in Committee. Since then, I have had the opportunity, along with my noble friend Lady Stowell, to meet my noble friends Lady Cumberlege, Lord Elton, and Lady Williams, and the noble and learned Lord, Lord Lloyd of Berwick, to discuss these issues. As we indicated in our response to the Joint Committee on Human Rights, it is important to say that it did not come to a final conclusion on this issue, although it recommended that the Government reconsider the issue with a view to bringing forward amendments in your Lordships’ House to put in a transitional arrangement to deal with the concerns of those in post as marriage registrars. We have considered this position but, as I shall set out, we do not see a need for amendments to provide a conscience clause for marriage registrars, even on a transitional basis.
I therefore wish to reassure your Lordships’ House that the points made in the debate, particularly those made by my noble friend Lady Williams of Crosby about the impact on particular religions, have been considered. I admit that I felt slightly uncomfortable because the strongest support for the Government’s position perhaps came from two eminent lawyers, my noble friend Lord Lester and the noble Lord, Lord Pannick, and I wondered whether I was being too lawyerly about this issue. I tried to take on board the comments of my noble friend Lord Deben about being charitable and thinking generously but, at the end of the day, even with charity, there is an important matter of principle here. Marriage registrars are public servants performing statutory duties on behalf of the state. They should be expected to perform their duties in accordance with the law, without discrimination. An important distinction can be made between the conscience clauses with regard to abortion and circumstances in which we are asking people to perform duties on behalf of the state, without discrimination.
In extending marriage to same-sex couples, the Government have made it clear throughout that the Bill should protect and promote religious freedom. A substantial amount in the Bill does that. As the noble Lord, Lord Peston, said, registrars of whatever hue will still be able to express their views on same-sex marriage, but the right to freedom of religious expression has to be balanced with the need to protect others from discrimination. The recent judgment of the European Court of Human Rights in the case of Lillian Ladele, referred to by my noble friend Lord Lester, supports this view and the balanced position that we have taken.
Acceptance of the amendment would allow registrars to discriminate against people because of their sexual orientation. Functions performed by marriage registrars are entirely civil and secular in nature and they should not be allowed to pick and choose the members of the public to whom they provide that service. Treating members of the public less favourably than others because of their sexual orientation is fundamentally wrong, in the same way that it would be wrong to discriminate against them because of their race, religion or belief.
On the face of it, some powerful points were made, not least about doctors in relation to abortion. One should think about it for a moment—and perhaps I may put it in the following way. Let us imagine that a doctor were to say, “As a matter of conscience and belief, I am not going to perform an abortion on this person because of their race or ethnicity, but I will perform an abortion on another”. Perhaps that demonstrates the point that we are trying to make. It would not be the question of conscience about performing the act of solemnising a marriage that is at issue; it is the question of discrimination that is at the heart of this issue, and that is why the Government do not support the amendment.
I have been asked, “Where do you draw the line?”. I appreciate what my noble friend Lady Cumberlege said about the amendment being restricted to the solemnisation or belief that it is wrong to have a marriage of same-sex couples. There are other subjects—and I bow to the right reverend Prelate the Bishop of Chester, who said that divorce was not an issue in the canon law of the Anglican Church. However, it is my understanding that, until relatively recently, the Anglican Church did not marry people who had been divorced on grounds of adultery or other reasons, if a person’s original spouse was still alive. I think that that is now possible with the permission of the bishop. In those circumstances, if the Anglican Church was not going perform a marriage and the person had to go down the road of a civil marriage if they wished to contract a second marriage, where would we have been if the registrar had said, “I have profound beliefs against marrying divorcees, particularly if one of the grounds for divorce has been adultery”?
The Lord Bishop of Chester
I wish purely to clarify the matter. I know that I am speaking to a distinguished lawyer but the law of the Church has never prevented clergy from remarrying divorced people, and for the past 30 years of my ministry I have done so. It is true that 30 years ago I was in a minority and that there is now much greater encouragement, but in legal terms there never was a blanket ban on clergy remarrying because statute law permitted divorce.
Lord Wallace of Tankerness
I am grateful to the right reverend Prelate for clarifying that, but he said that 30 years ago he was in a minority and he may agree that some high-profile marriages of divorcees have taken place in the Church of Scotland because of the apparent rules of the Anglican Church. The point remains that there may have been people with profound religious views on why they should not remarry a divorcee who was divorced on the grounds of adultery, but if the route of a civil registry marriage had been cut off, they would have found life to be very difficult indeed.
Equally, I have heard what has been said about the National Panel for Registration. Concerns were expressed in Committee about the consultation that it had undertaken, and that is why my right honourable friend the Secretary of State sought further—
Baroness O'Loan
The Minister said that it would have been profoundly difficult if that route had been cut off. Does he think that this amendment would cut off the possibility of people of the same sex marrying?
Lord Wallace of Tankerness
I was making the point that there are a number of grounds on which one might say one had a religious belief. Are we to have a hierarchy of religious beliefs, some of which will allow a registrar to exercise a conscience clause and some of which will not? However, as the noble Baroness, Lady Richardson, said, there might be some areas of the country with a small number of register office staff where it could be difficult to find a registrar who would marry them.
We sought further information from the National Panel of Registration and its letter has been placed in the Library of your Lordships’ House. As my noble friend Lady Noakes indicated, there has not been a huge demand for this amendment, quite the contrary. It would be easy to dismiss this letter but very often the House calls for the views of bodies which represent particular organisations. The letter states:
“The objection to a conscience clause is based on Registrars being local authority employees who are expected (and willing) to carry out all the functions that their role covers. On a daily basis, Registrars deal with many scenarios that for those with strong beliefs (religious or otherwise) would possibly not be able to carry out. Examples include: registering the birth of a child from a same-sex couple; undertaking marriages for previously divorced persons; or carrying out civil ceremonies and registrations. Registration Services and, in particular, the Registrars, are passionate and proud about the services they deliver and the customers they work with. For the past 176 years, Registrars have been carrying out their duties and have never wanted a conscience clause, and do not see the need for one now … The beliefs we bring to work are respect and tolerance and we would wish that to continue”.
Lord Elton
Could my noble friend read on? Does it not say that,
“we leave beliefs at home”?
Does that not say a great deal about this?
“In the Registration Service we leave beliefs at home and deliver neutrally”.
That is the point made by the noble Lord, Lord Peston. The registrars are free to express their beliefs. There is nothing in this legislation that curbs their ability to hold these beliefs and to express them. However, in the performance of the duties they do on behalf of the state, we are saying that they should not be able to do that in a way that discriminates. It would not be appropriate for us to put on the statute book legislation in which the state legitimises discrimination.
Lord Higgins
If it is true, as the Minister says, that the Panel of Registration says there are no registrars who want this, we will pass the amendment and it will have no effect. The question is whether there are some who we do not know about who would wish to exercise their views as far as conscience is concerned.
On the other point, that they have taken on a job and they then find that it has changed, surely, on a transitional basis—and I stress that—they ought to be able to say, “We are perfectly happy to go on with the original contract”.
Baroness Farrington of Ribbleton
Perhaps I may I remind noble Lords that this is Report. People should ask very brief factual questions and no one should speak after the Minister has spoken except the mover.
Lord Wallace of Tankerness
My Lords, in response to my noble friend Lord Higgins, the national panel has made it clear that it is not seeking this. He said that if no one wants this, it does not matter. However, I believe that it does matter.
The points made by my noble friend Lady Williams are very challenging to someone who has natural liberal instincts about the individual but, at the end of the day, after a great deal of careful thought and examination, the principle that persuades me that we are right in this is that when someone performs a function on behalf of the state we should not put into legislation something which allows them to act in a discriminating manner. I ask my noble friend to withdraw the amendment.
Lord Lester of Herne Hill
Would I be right in saying that if this amendment goes through, there will be detriment to people seeking to marry?
Lord Lester of Herne Hill
Would I be right in saying that if this amendment goes through the result will be detriment suffered by some who are seeking civil marriage?
Lord Wallace of Tankerness
My Lords, that might be a possibility, particularly in areas where there are very few registrars, as the noble Baroness, Lady Richardson, pointed out.
Baroness Cumberlege
My Lords, I sense that the House will want me to be very quick, so I shall be. I thank all noble Lords who have taken part in this very interesting debate, albeit, I accept, on a very narrow subject. I particularly thank my noble friend Lady Williams for her powerful support for the amendment, and I thank my noble friend Lord Deben. The tenor of the amendment is about a bit of tolerance and generosity. This is the moment when perhaps we ought to be giving a little bit to some people who have a conscience clause.
I want to say something very briefly about marriage and about what the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Peston, said. To me, marriage is very important. I married when I was 17 and have to say that it was the best decision of my life. I love my husband to bits and he is great. I can remember every moment of that service. I even remember that the priest, very sadly, forgot to give me my passport. We were going on honeymoon and had to go back to collect it. Marriage is terribly important; we would not be having this Bill or these debates if people did not think it was very important. The people who conduct the marriage are equally important. I very much accept what my noble friend Lord Vinson said. If there is somebody who does not believe in it or who thinks that it is just something you have to go through, it is not the same as someone who really believes in it and wants to see a couple happily married and continuing in later life.
For those people who have a conscience clause, it is much fairer to the same-sex couples who are getting married to have somebody who believes in what they are doing and who rejoices with them in this very special event in their lives. I would love to go through all the arguments, but I will not do so. The managerial arguments are bogus because any good manager knows how to manage a workforce. There are women who inconveniently get pregnant and there are people who are ill, but you still have to manage your workforce, so I do not agree with some of those concerns.
It has been a very interesting debate. I am extremely disappointed by my colleagues on the Front Bench and my noble friends whom I hoped would give a little tonight. I hoped that we could have some accommodation in the spirit of generosity, but that is clearly not the case. Therefore, I want to test the opinion of the House.
“Belief in traditional marriage
Nothing in this Act shall contradict the principle that a belief that marriage is the voluntary union of one man and one woman for life to the exclusion of all others is a belief worthy of respect in a democratic society.”
Lord Dear
My Lords, in moving Amendment 4, I draw attention to the fact that this is a more tightly drawn version of the two amendments that I spoke to in Committee—when I had a voice—on 17 June, which were then Amendments 7 and 8. Instead of getting into the detail, which I did then, on how employers or public sector bodies treat individuals, this amendment is simply a declaration that the belief in traditional marriage is worthy of respect in a democratic society. It makes it clear that it is vital for individuals claiming protection under human rights or discrimination law who are not card-carrying members of any particular religion, but it would be helpful to people who are religious as well.
There are basically two sets of words in this very short amendment. The first refers to the,
“belief that marriage is the voluntary union of one man and one woman for life to the exclusion of all others”,
and the second refers to,
“a belief worthy of respect in a democratic society”.
The first set of words is the existing legal definition of marriage as,
“the voluntary union of one man and one woman for life, to the exclusion of all others”.
That is the definition found in case law as far back as 1866 in the case of Hyde v Hyde and Woodmansee, and was given by Lord Penzance in that leading case. Until now, every couple at the point of marriage declares that they are entering into marriage as defined by English law, which is, as I have said, a voluntary, lifelong and exclusive union. We know that things can go wrong in marriage and there is, of course, legal provision for divorce. Throughout history and across cultures, the definition of marriage has been understood in the terms that I have just repeated.
Even before the Bill becomes law, people who support traditional marriage are now often accused of discrimination. It is said—I cannot vouch for it, but it was sprayed all over the newspapers recently—that in a draft version of a speech by the Deputy Prime Minister some were described as bigots. They have certainly been likened in the House of Commons to racists and advocates of the slave trade. However, it is generally accepted that, no matter how one looks at the opinion polls and so on, a great many people in the UK do not accept the new gender-neutral definition of marriage proposed by the Bill. They may accept the Bill, and many do, but they object to the gender-neutral definition, which embraces them as well. I contend that they cannot be expected to jettison their deeply held beliefs overnight; nor, I suggest, is it the proper role of law to seek to coerce people to do so.
I was much impressed and heartened by the comments of the noble Lord, Lord Deben, who talked about generosity. I made a note of that at the time. It seems that those words have been played into. The word “generosity” and, later, the words used by the noble Lord, Lord Elystan-Morgan, “reasonableness” and “tolerance”, have been much in vogue over the past half hour or so in your Lordships’ House. I applaud that. What we are looking at is recognising the traditional view of marriage as held by many people, who still cling to that as the ideal. That takes care, very briefly, of the first part of my amendment.
I turn to the words,
“worthy of respect in a democratic society”.
That concept—those words—is the key test in human rights law. Case law from the European Court of Human Rights and, indeed, the highest courts in the UK, also hold that for a belief to be protected in law it must pass this legal threshold. Stating in the Bill that the belief in traditional marriage meets this test would provide very valuable help to everyone who holds that belief. It is particularly important for individuals who are not, as one may say, card-carrying members of any particular religion.
A great many people in this country have a deeply held belief in marriage that is not, to them, part of an overall religious or ethical belief system. The belief is more likely to be recognised and protected in law where it flows from an underlying, religious belief system. It is less likely to be afforded protection where a person holds a belief that could be written off as mere opinion. The case law on that I quoted extensively in Committee. I will not go through it again. The references can be found in Hansard, when I quoted from Grainger plc & others v Nicholson and the Williamson case.
The words,
“worthy of respect in a democratic society”,
are the acid test. The Minister said in Committee:
“A belief that marriage should be between a man and a woman is undoubtedly worthy of respect in a democratic society”.—[Official Report, 17/6/2013; col. 75.]
There can be no objection, she said, to putting this in the Bill. The enacting of the Bill should make it abundantly clear that a belief in same-sex marriage is worthy of respect. Millions of people who hold to a traditional belief in marriage are left unsure today by what is going on in this House and in another place as to whether their belief is similarly worthy of respect. I contend that it is necessary and that it takes absolutely nothing away from the Bill, or what the Bill seeks to set out, to include the amendment.
The noble Lord, Lord Phillips of Sudbury, who is not in his place at the moment, spoke very powerfully about the millions of decent people who, as he put it, are not homophobic, who are concerned and confused by what the Bill will mean for them. They show a great deal of tolerance and understanding about why the Bill is coming in and in many ways support the general thrust. However, at the same time, the noble Lord talked about avoiding discontent in that very large number—my words, not his. What he was really saying was, “Don’t damage the purpose of the Bill in the eyes of the general public”.
The Bill will pass. That was evident from Second Reading and from today in the two votes that have taken place already. The Bill will pass, but it should be enacted in a climate of acceptance. With some people that will be a grudging acceptance, although not in my case, and with others a warm acceptance. However, it should come in in an atmosphere of acceptance and those words of tolerance and generosity that we have heard much play made of today. It should not come in in a climate where no concessions are allowed at all for those who seek to understand those millions of people outside who are confused and who look for some sort of reassurance—a safety net if you like—that they can quite properly express a view and a belief and not be punished for it. I beg to move.
Amendment 5 (to Amendment 4)
Lord Cormack
Lord Cormack
My Lords, I will not detain the House long. I do not disagree with what the noble Lord, Lord Dear, said, but I seek to sharpen up his amendment for two reasons. First, I have been approached by many people during the passage of the Bill through your Lordships’ House who believe very firmly that marriage is between a man and a woman and wish to see that recognised at all appropriate points, but have themselves not been able necessarily to sustain marriage for life.
It is a fact of life—the noble Lord, Lord Dear, briefly alluded to it—that many marriages do not stay the course. There are many in your Lordships’ House who have been married more than once. That does not in any sense weaken or invalidate the marriage, or make those noble Lords who have had more than one marriage believe less in marriage as an institution. But we live in a very different world from that of 1866 cited by the noble Lord, Lord Dear. Even within the clergy, I have many good friends, some highly placed within the Church of England, who have had a marriage that has come to grief. Some have remarried and some have not. In that spirit of tolerance, understanding and generosity, to quote my noble friend Lord Deben in a previous debate, it would be more inclusive just to omit those words. That does not in any sense weaken the thrust of the amendment of the noble Lord, Lord Dear; it merely brings it up to date and recognises the world in which we live.
My second amendment is slightly more playful in that I would take away the words “in a democratic society” because this belief is worthy of respect in all societies, democratic or not. We recognise that. It is certainly not an amendment to an amendment that I would press. However, I must say to your Lordships’ House that those of us who believe in traditional marriage but are not in any way opposed to equality—one must repeat that, as one has many times during these debates—feel that including something along these lines in the Bill could not do any harm and could be of some reassurance to many people outside this House. They are the sort of people referred to by the noble Lord, Lord Dear, and by the noble Lord, Lord Phillips of Sudbury, in what I thought was a very moving speech in an earlier debate this afternoon. I beg to move the amendment to the amendment.
Lord Pannick
My Lords, nothing in the Bill prevents the noble Lords, Lord Dear and Lord Cormack, believing and expressing a belief in so-called traditional marriage. Contrary to the speech of the noble Lord, Lord Dear, there is nothing in the Bill that “coerces” people to “jettison”—the noble Lord’s words—their beliefs in any of these respects. This has repeatedly been explained by noble Lords and to noble Lords during our debates on the Bill. If, as the noble Lord, Lord Dear, suggests, millions of decent people have concerns, they are completely unfounded and it does no service to them whatever to give credence to such basic misunderstandings.
Lord Deben
As has been mentioned on several occasions, I want to expand on why I think this is a really dreadful amendment. It is dreadful for the reasons that my noble friend Lord Cormack has explained. He has amended the comments of the noble Lord, Lord Dear, because nobody really knows what people mean by traditional marriage. That is one of the difficulties. The amendment is a blunderbuss.
My problem is that if we put this into the Bill, that would suggest that somebody actually thinks it might need to be in the Bill. However, there is no reason for that. The noble Lord, Lord Pannick, is absolutely right about that. If we have to put this in, what other definitions of marriage will we have to put in? Do we say, “Nothing in this Act shall counteract the opinion that some people believe X, Y and Z”? All Acts would be interminable and intolerable if we added all the things that they did not have a reference to, but that is exactly what the noble Lord, Lord Dear, has put forward.
However, the problem is much more basic than that. There is a fundamental difference, although it is not something that is shared across every side, in arguing that in all circumstances we should be wary of not having a conscience clause. I am always in favour of conscience clauses because I never know when they will come for me. That is my honest view about conscience clauses. Therefore, I always want to lean over backwards towards people who are in a position—not one that they have chosen—where they may feel that their conscience prevents something. That is why I take that view. However, I do not believe that you can reasonably undermine the value of a Bill by putting into it a phrase that is designed to say, “Look, we’ve had to pass this Bill but a lot of us don’t really think like that. We’re not really on that side and we just want to—nudge, nudge—put this in to make sure that you realise that we weren’t really on that side”. That is a game to deny the reality of the Bill.
The Bill is a generous one and if it is too generous, it makes up for the exact opposite way in which we have acted until now. Please, do not allow the Bill to be undermined by an addition of this kind, which is already a matter of disagreements between the two people who are proposing it and which, after all, could be expanded to any lengths you like to include anybody who might feel that they had not had their particular views heard. It is not a sensible amendment and we should refuse it.
Lord Lester of Herne Hill
My Lords, the law on traditional marriage is contained in the Marriage Act 1949. Nothing in the Bill affects the rights and duties under the Marriage Act 1949 of what is called traditional marriage. If it did so, the amendment might have some kind of purpose, but it does not. If it does not undermine the ability to marry under the Marriage Act, does it create any sort of belief that that form of marriage is in some way undesirable? No, it does not. Nothing in the Bill suggests anything wrong with the traditional view of marriage. What it does do is to create another form of marriage and treat it as part of the concept of marriage. That does not undermine traditional marriage unless you take the view, as some do, that we should not have the Bill at all.
Baroness Royall of Blaisdon
My Lords, the noble Lord, Lord Dear, spoke of traditional marriage being worthy of respect. Indeed, traditional marriage, in his words, is worthy of respect. But, the great thing is that after the passing of this Bill, same-sex marriage will be equally worthy of respect. That will be a matter for celebration. This is because at the moment marriage is a voluntary union of one man and one woman, but with the passing of this Bill I am delighted that marriage will be extended to the voluntary union of one man and one man, and one woman and one woman. I think that we are really motoring along.
No one is asking people to abandon their beliefs. The Bill does not suggest in any way that they should or that they must, as has been said so many times in the debates thus far. The reality is that it is absolutely clear that alongside the protections in the Human Rights Act, the common law protection of freedom of speech and the existing protections in the Equality Act 2010, religion or belief will continue to ensure that it is unlawful for an employer, service provider, public body or anybody else to discriminate. There is absolute freedom of speech. The Minister could not have been clearer when she said in Committee that:
“The Bill absolutely makes it lawful, and continues to make it lawful, for people to believe that marriage should be only between a man and a woman”.—[Official Report, 17/6/13; col. 72.]
That is clear.
Baroness Knight of Collingtree
I am most grateful. I ask a very quick question, in the light of the fact that the noble Baroness just told the House that nobody will be forced to act against their conscience. Have we not recently passed an amendment which will make it very likely that a number of registrars will be forced to do so?
Baroness Royall of Blaisdon
My Lords, the issue pertaining to registrars is not to do with conscience but with the fact that registrars are public servants, and they are upholding the law. In being a registrar they are doing their duty as public servants. Their beliefs are nothing to do with their work as a registrar. This amendment is completely different. It is to do with freedom of belief and freedom of expression, which I believe are a hallmark of democracy. Individuals must be able to reasonably express their views on these issues, as indeed they are.
The amendment put forward by noble Lord, Lord Dear, and the amendment to that amendment put forward by the noble Lord, Lord Cormack, are not only unnecessary, but they could dovetail into some concerns expressed earlier by the noble Lord, Lord Elystan-Morgan. He was concerned about having a sort of gold hallmark of marriage, and then a sort of tarnished, baser metal marriage for same-sex couples. We want marriage for same-sex couples and heterosexual couples to have equality of esteem. They must have this. I am therefore against the amendment.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Lord, Lord Dear. In introducing his amendment he reminded us again that we should try to ensure that we are tolerant, generous and courteous, not only in our debates in this House but also in the legislation that we are bringing forward. I argue that we are doing just that. The noble Baroness, Lady Royall, just quoted something I said at an earlier stage. The Government are very clear that the Bill does not only allow same-sex couples to marry; it also protects religious freedom and ensures that no belief that anyone holds now is affected by the introduction of this Bill. As I said at earlier stages, we are clear that the belief that marriage should be of one man with one woman is protected under the Equality Act 2010. It meets the established criteria set out in case law.
The noble Lord, Lord Dear, referred to the case of Grainger plc v Nicholson, which specifically included beliefs worthy of respect in a democratic society. Equally, Article 9 of the European Convention on Human Rights guarantees that everyone has the right to freedom of thought, conscience and religion. This means that everyone has an absolute right to hold any belief. However, of course the right to manifest one’s belief is qualified, and the state can regulate that in certain circumstances where that is necessary for the protection of the rights and freedoms of others. As I have made clear, it is perfectly possible for somebody to not only have that legitimate belief but also to be free to express that belief. To follow up on the exchange that just took place between my noble friend, Baroness Knight, and the noble Baroness, Lady Royall, the difference is that what is not possible is for somebody to withhold their services because of the belief they hold. There is nothing to stop them from having that belief. The amendment is therefore unnecessary. It states something that is entirely true—that the Bill does nothing to undermine the principle that a belief that marriage is,
“union of one man and one woman for life to the exclusion of all others is a belief worthy of respect in a democratic society”.
Of course it is, and this Bill raises no doubt about it.
As has been pointed out, the view that a marriage of a same-sex couple, like the marriage of an opposite-sex couple, is a valid marriage is also a belief worthy of respect in a democratic society. As was said by the noble Baroness, Lady Royall, and my noble friend Lord Deben, if we are going to state that the one belief is worthy of respect, we ought to state that both are worthy of respect. As it stands, this amendment suggests that a belief of the kind it covers, concerning marriage between a man and a woman, is in some way superior to a belief that marriage of a same-sex couple exclusively and for life is to be welcomed as an equally valid relationship. Therefore the amendment goes against the entire point of the Bill.
I also caution the House on a further point of principle. We risk getting into rather dangerous territory if we start to set out in statute which beliefs are worthy of respect or protection in law. It may seem easy here, where there is absolutely no doubt that the belief concerned is mainstream and uncontroversial, but it would not be wise for legislation to list beliefs, just as we do not list religions. Otherwise we get into the arena of state-sponsored religions and beliefs. It would also be an impossible task to list all religions and beliefs that are protected, which would cast doubt about whether unlisted beliefs are protected. That point was made in this debate by some noble Lords who are lawyers.
I now touch on Amendments 5 and 6, put forward by my noble friend Lord Cormack. I will go not into detail, because they do not affect the fundamental point I am making, which is that these amendments are unnecessary. They risk creating the suggestion that a belief in the validity of the marriage of same-sex couples is to some extent less worthy than a belief that marriage should be of one man with one woman. As I have explained, it would be most unwise to seek to legislate for what is or is not a belief worthy of respect.
All that said, and just to be absolutely clear, of course none of that means that it is not absolutely legitimate for people to hold the view that a marriage should be between a man and a woman, and for them to be able to express that view. I have stated that many times and I will continue to do so, because it is such an important part of what we are ensuring will remain the case when, as we hope, the Bill becomes an Act of Parliament.
Finally, in response to the noble Lord, Lord Dear—
Lord Butler of Brockwell
My Lords, it would greatly reassure me if the Minister were to give an absolute assurance that somebody who says that they believe that marriage is the voluntary union of one man and one woman for life to the exclusion of all others is not in any danger of being charged with making a homophobic remark.
Baroness Stowell of Beeston
I can give your Lordships absolute, categorical reassurance that anybody who expresses that view is being absolutely lawful. What I cannot give the noble Lord categorical assurance on, which is something that we debated at length at earlier stages of the Bill, is that there may not be somebody out there who decides to try to take action against them. If they were to do that, the law would protect them, because the view that the noble Lord has just expressed is absolutely lawful. It is legitimate, and they can hold that belief and express it. Clearly, as noble friends who are lawyers have reminded me before, whenever a judge hears a case he has to take in all manner of different contexts in order to consider the way in which those words are expressed. But I believe that I can give the noble Lord the reassurance that he is looking for on that point.
Lord Elton
My Lords, on that point, could my noble friend tell me whether she had a letter from a Mr Tony Miano, which is relevant to this. If not, may I pass it to her to read before Third Reading?
Baroness Stowell of Beeston
If the gentleman that my noble friend refers to has written to me, the letter has not reached me, but I have seen a copy because I know it has been circulated widely. I am aware of it. What his experience tells us is the point that I just made, if I understand that experience rightly and it was as has been reported in the media. I was not there and do not have the full details of the event. If he expressed views as I have just explained, he was being absolutely lawful. I understand, according to news reports, that he was arrested, but no charges were brought against him because the law is clearly on his side.
My noble friend has just given me the opportunity to remind noble Lords of something. I was going to make this point in any case to the noble Lord, Lord Dear, because he said we are not making any concessions in this area. It is important to remind him and the House that we have amended the Public Order Act to make it absolutely clear in the provision that already exists in that Act that it is absolutely lawful for people in public discourse to express this view. We were happy to make that amendment to a section that already exists. That change has been made. On a general basis, I also point out to the noble Lord and the House that later we will debate an amendment we are moving in the context of greater clarity for the protection of religious freedom around the meaning of the word “compel”. We are listening and we are making changes where we think it is right to do so and no harm will be done. In that context, the proposal that the noble Lord has put forward is not necessary for all the reasons I have explained. I hope that he feels able to withdraw his amendment.
Lord Dear
My Lords, I am much reassured by what the Minister said. She mentioned the Public Order Act. Of course, that allows me to parade, after a defeat here, a success in removing the word “insulting” from Section 5 of the Public Order Act shortly before Christmas with a fairly substantial majority. That was taking the word “insulting” out but leaving in “threatening” or “abusive” words or behaviour in a public place. Amendment 4 is really aimed much more at comments made in private, not in a public place, as defined by the Public Order Act, which the noble Baroness alluded to.
I remained concerned. I mentioned before, as did others today, the large number of people who are concerned about a change to life as they see it, to put it in those terms. Certainly, from my own personal point of view, I would not withhold the words “worthy of respect” from same-sex marriage if this Bill becomes law. Undoubtedly, it will do. The moment it becomes law, I shall accord that respect, undauntedly, to those who are in a same-sex relationship as I do to those in a traditional relationship. I hope, too, that that will go for the vast majority of people in this country.
I am much reassured by the response given to the question posed by my noble friend Lord Butler of Brockwell because I was going to make the same point. He saved me from posing that question again and perhaps losing my voice in the process. I hope that, in future, we will find that this short debate has been unnecessary and that in fact the holding of a belief and espousing that belief into some sort of fairly anodyne comment—one not meant to insult, a simple “I believe X”—will not get those people into trouble. The Minister has been so fulsome in the way she responded to that question that I have great pleasure in withdrawing the amendment.
Lord Elton
Before the noble Lord does that, can I just remind him that we are actually debating the amendment to his amendment? The last word on that has not yet been said.
Lord Cormack
My Lords, I am most grateful for the generosity and courtesy of my noble friend Lord Elton. I will not detain your Lordships. I wish to withdraw the amendment to the amendment. Having understood that that desire is similar to that of the noble Lord, Lord Dear, we appear to be in accord.