Marriage (Same Sex Couples) Bill
(11 years, 4 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
22:45 - Division on Amendment 46 - Ayes: 32 / Noes: 163 - Amendment 46 disagreed.
23:48 - Division on Amendment 55 - Ayes: 15 / Noes: 84 - Amendment 55 disagreed.
Baroness Meacher
“Regulations
(1) The Secretary of State may by regulations make provision for the Registrar General to approve and permit organisations that are registered charities principally concerned with advancing or practising a non-religious belief to solemnise marriages according to their usages on the authority of a superintendent registrar’s certificate, and for related purposes.
(2) The regulations shall specify that such marriages may not take place in register offices, but may in particular—
(a) define minimum requirements any such organisation must meet before it may be considered for such approval;(b) define the procedures for the appointment of registering officers by such organisations, for the issue and custody of marriage register books, for the solemnisation and registering of marriages, and for related matters, and in these matters the regulations shall follow where convenient the several precedents to be found in the Marriage Act 1949;(c) create criminal offences of a kind similar to, and with the same maximum penalties as, offences under Part IV of the Marriage Act 1949;(d) include incidental or consequential provisions (which may include provisions amending an enactment);(e) include transitional provision.(3) The regulations under subsection (2)(a) must include provisions concerning whether an organisation—
(a) is a registered charity principally concerned with advancing or practising a non-religious belief;(b) has been in continuous existence for at least 10 years;(c) has been performing celebrations of marriage and other ceremonies for its members for at least five years, such ceremonies being rooted in its belief system;(d) has in place written procedures for the selection, training and accreditation of persons to conduct solemnisations of marriages; and(e) appears to the Registrar General to be of good repute.(4) The regulations shall extend to England and Wales.
(5) The regulations—
(a) shall be made by statutory instrument, and(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.(6) The Secretary of State must lay these regulations before Parliament within six months of this Act coming into force.”
Baroness Meacher
My Lords, the purpose of this amendment is to provide for humanist and other belief-based marriages to have legal recognition in England and Wales, which they have had in Scotland since 2005. I apologise to the Minister and your Lordships for the fact that I have been in five different countries over the past few weeks and have been unable to attend any of the previous sessions on the Bill. I pay tribute to the noble Lord, Lord Harrison, and the noble Baroness, Lady Massey, who tabled a similar amendment in Committee. I also convey the apologies of the noble Lord, Lord Garel-Jones, who is in hospital, I am sad to say. We were very keen to have his name on the amendment in view of the powerful speech he made in Committee.
It is gratifying that the humanist amendments have been supported on all sides of both Houses by people of religion and of no religion. Indeed, I hope the Minister will not mind if I quote her. She said that,
“of course everybody would support humanist marriages”.—[Official Report, 19/6/2013; col. 311.]
That, for me, is a tremendously valuable endorsement.
I applaud the Minister for tabling the government amendment, which takes a historic step towards eliminating the inequity in our system regarding humanist and other non-religious belief organisations. I offer the noble Baroness, Lady Thornton, my personal thanks for having worked very hard to ensure that belief-based marriages are given legal status. It is appropriate and helpful that the noble Baronesses, Lady Thornton and Lady Brinton, and the noble Lord, Lord Alli, have included their names on the government amendment, illustrating the strong support from all sides of the House for the key principle of our amendment, while acknowledging, probably very fairly, the Government’s commitment to a consultation on the issue.
Noble Lords may ask why I am moving this amendment, bearing in mind the fact that we have the government amendment. The answer is that the government amendment does not actually guarantee that humanist marriages will have legal status in England and Wales. The noble Lord, Lord Garel-Jones, said that,
“we in the humanist movement ‘will not cease from mental fight’ until we have achieved full recognition in the law for humanist marriage”.—[Official Report, 19/6/2013; col. 298.]
I feel a great duty to carry the torch for our dear colleague while he lies in hospital. It is very much in that context that I need to put some points on the record and seek some assurances from the Minister. In so doing, I seek to avoid a rerun of the Committee stage, albeit I was not here to listen to it, although noble Lords will be glad to hear that I have read it.
Religious marriages reflect the deepest beliefs and values of religious couples, but humanist beliefs and values are of equal importance to humanist couples. In an increasingly secular society, it is important that we do all we can to promote and recognise good values. Registry office marriages now account for two-thirds of marriages in this country. Those marriages may not involve the couple committing themselves in a ceremony to the all-important beliefs and associated values that they will need in times of trouble. If we want marriages to survive, we must nurture beliefs and values which will help couples to sort out their problems. There is also the equity issue. In the case of humanists, despite the cost and inconvenience, some have two marriage ceremonies to achieve the things they want: a meaningful wedding and one that has legal status. I hope that the Government accept that the inequity cannot continue beyond a short period to allow for a review and consultation.
Humanist marriage is well tried and tested. Scotland gave legal status to humanist marriages eight years ago and has some 3,000 such marriages each year. Humanist marriages account for 58% of the increase in marriages in Scotland in the last three years. All of them, of course, are belief and value-based marriages, and I am sure that noble Lords value that fact. Every year in England, the number of humanist marriages exceeds the number of Quaker or Unitarian marriages. Yet humanist marriages have no legal recognition, while these smaller minorities do have it. Legally recognised humanist marriages have strong support from the public, according to a YouGov poll—this is another important issue for the Government—with 53% in favour and only 12% opposed. Few policies, I suggest, have such a ringing public endorsement.
No one has any reason to fear the legal recognition of humanist and other belief-based marriages, again another important point. In particular, I do not believe that churches have anything to fear. Religious ceremonies already have the intrinsic characteristic of what, for me, is a good ceremony: a focus on important beliefs and values. I understand that the Church of England is relaxed about this amendment and I welcome that fact. I hope this also applies to the other great religions.
The professionalism of celebrants of humanist marriages and funerals is to be congratulated. Anyone who has attended a humanist marriage or funeral will attest that they are of the highest quality of ceremony that one could have. I have attended only two humanist funerals. They were professionally conducted, moving and memorable. Those who have been to other ceremonies have said the same to me.
Registrars suggest that this amendment represents a fundamental legislative change, but it is absolutely not. It builds organically on the existing law of the Marriage Act 1949. It is based upon the provisions that allow the Society of Friends to solemnise marriages, but adds some tighter controls which I would think the Government—and certainly I—welcome.
Let me refer to the Government’s objections to the earlier amendment. All these concerns have been fully addressed in this amendment. I believe that the Government accept that fact. The draft has been vetted and cleared by a number of marriage law experts, and we know from the opinion of Matrix Chambers that the amendment is compatible with the European convention. So there is no reason to reject the content of this amendment. We hope that regulations will reflect the essential points so carefully drafted for our Amendment 7. However, we understand the Government’s wish to undertake a consultation before introducing regulations to give legal status to humanist and other belief-based marriages.
I now turn to the Government’s amendment and hope the Minister can give us just four assurances. First, will she repeat in this House her officials’ assurances that they expect to complete the review, consultation and report well ahead of the end of 2014, which of course is the date given in the government amendment? Most importantly, can the Minister assure the House that regulations will be laid before the next general election? With eight years of experience of such marriages in Scotland and many decades of experience of analogous Quaker and Jewish marriages, I trust that this is not too much to ask. The important point here is that the amendment should not be kicked into touch. Can the Minister assure the House that the considerable and unique experience and expertise of the British Humanist Association will be fully taken on board in the review and consultation, and that the criteria set out in the amendment will be considered as a basic guide for the future regulations when the review is being undertaken? No one has criticised those principles and points in our amendment, and they would provide a good basis for future regulations. Finally, can the Minister confirm that it is not her intention that commercial organisations will be able to profit from the regulations on belief-based marriages?
In conclusion, I express my sincere thanks to the Minister for her support for humanist marriages and for ensuring that the Government take this matter forward. I beg to move.
Baroness Stowell of Beeston
With the leave of the House, perhaps noble Lords will allow me to speak to my amendment now for the convenience of this debate and respond to any questions raised at the end.
The noble Lords, Lord Lester, Lord Pannick, and the noble Baroness, Lady Thornton, have also put their names to Government’s amendment. I welcome back the noble Baroness, Lady Meacher. I am sorry that she was unable to be here for the debates in Committee. I echo her good wishes for a speedy recovery to my noble friend Lord Garel-Jones who we are sad to be missing this evening.
When I responded to the debate on this issue in Committee, I undertook to have further discussions with colleagues about what the Government could do about the proposals put forward by the noble Lord, Lord Harrison. I recognised the strength of feeling in that debate and am pleased to bring forward on behalf of the Government amendments that provide for a statutory review, including a full public consultation, on whether belief organisations should solemnise marriage and, if so, what such a provision would look like. Crucially, the new clause provides the means to make any future changes by providing an order-making power that may amend any England and Wales legislation, both primary and secondary. In taking this approach, the Government’s amendment reflects the solution proposed by my noble friend Lord Lester in Committee, supported by the noble Lord, Lord Alli, among others. Since then, I have had the opportunity to speak to some Members of your Lordships’ House with an interest in this matter. My officials have also met the British Humanist Association and the noble Baroness, Lady Meacher. I am grateful to all noble Lords who have given up some of their time to engage in discussion with the Government, and to the British Humanist Association for its constructive approach to finding a way forward on this matter.
Perhaps I may say a little more about the government amendments and why they offer the best way forward in resolving this important issue. The arrangements for the review, which will be a statutory requirement, must provide for a full public consultation, and the Secretary of State must arrange for a report on the outcome of the review to be published by 1 January 2015. The new clause gives the Secretary of State power to make provision by order permitting marriages according to the usages of belief organisations. Our amendment defines a belief organisation as an organisation whose principal or sole purpose is the advancement of a system of non-religious beliefs which relate to morality and ethics. I note what the noble Baroness, Lady Meacher, said about the importance of belief organisations and their purpose.
Such an order may amend any England and Wales legislation, both primary and secondary, and may make provision for the charging of fees. The point about fees is a technical one: it merely enables the Registrar General to charge a fee, as she does currently, to cover her costs in administering the service.
An order must provide that no religious service may be used at any marriage solemnised under the provisions of the order. This is because it has been a principle since their introduction that civil marriage ceremonies should be clearly distinct from religious marriage ceremonies. We do not want this review to open up the system by which religious organisations carry out marriages which has been in place for years, and this Bill has been drafted on those foundations. The intention is to maintain the distinction so that no religious elements should be used in a marriage according to the usages of belief organisations. Any order made under this clause will be subject to the affirmative procedure. So, were the Secretary of State to take advantage of the order-making clause, both Houses of Parliament would have an opportunity to debate it and the order would be subject to the affirmative procedure.
Although the Government maintain that this Bill is not the right place to make broader changes to marriage law, as I have said already, it would be wrong not to recognise the strength of feeling in support of the humanists. A statutory consultation as a means to effect any change is the right way forward in responding to the support for humanists, ensuring that the wider public are able to contribute to the debate, and securing that arrangements for belief-based marriages are made on a sound footing and that any implications of them are fully understood.
The noble Baroness, Lady Meacher, referred to what is already in place in Ireland and Scotland. There the law has been changed to allow for humanist and other belief marriages, but they operate a different system to what we have in England and Wales. None the less, in both those countries the changes were subject to extensive dialogue over a period of time with interested parties to develop a solution that fits with their marriage law. It must be right that, if we are to change the law in England and Wales, we should do so only after proper consideration, as it has already been given in Scotland and Ireland, and therefore after a proper public consultation.
In addition to a public consultation, we also need to give consideration to the impact of the changes on the voluntary, private and local government sectors and on religious organisations, although, as the noble Baroness, Lady Meacher, said, we have not received any suggestion from the churches that they object to the amendment we are bringing forward in order to achieve proper consideration. Likewise, consideration must be given to what safeguards may be required and how these should be established and, in particular, how we ensure that the significant legal commitment made through marriage is properly regulated and recorded. Such fundamental public policy changes would normally be subject to these considerations and a review and consultation will allow us to do this.
Furthermore, we need to consider whether there are other belief organisations in addition to humanists which may wish to solemnise marriage, and therefore draw up criteria accordingly. I note what the noble Baroness said about the criteria in the amendment in her name. While we will, of course, have due regard to the proposals put forward by the BHA, we need to make sure that the criteria are set in a way that would allow belief organisations other than the BHA to conduct marriages should they wish to do so.
Let me now respond to some of the specific questions put to me by the noble Baroness. She asked me about commercial organisations. I can confirm that it is not our intention to allow commercial organisations to solemnise marriage. Marriage is an important institution and marriage for profit risks undermining key safeguards—for example, it could increase the instances of forced and sham marriages—if the emphasis is simply on increasing the numbers of couples going down the aisle, as it were, as opposed to undertaking proper checks on the couples. I hope I am able to reassure her on that point. She asked me about taking account of the expertise and experience of the British Humanist Association. I can certainly give her an assurance that we would want to give due weight to the expertise of humanist celebrants during the design of the review and consultation. We will also look carefully at the criteria set out in the amendment tabled by the noble Baroness as part of our work on this.
The noble Baroness sought further assurance about future timings. As I have said already, the clause states that the outcome of the review must be published by 1 January 2015. I stress that this is a final date for publication. I am confident that we will be able to provide a response before that time. Over and above that, it would be premature at this time to give a commitment to implementing the regulations. We must consult openly. Ministers will consider the results of the consultation and will, of course, have regard to the debates in both Houses during the passage of the Bill. It is clear that Ministers will have the power to make these changes. That is power that they do not have now, so the power will be there to make the change.
I am very grateful for the constructive approach that has been taken by all noble Lords with an interest in this matter. I believe that the Government’s proposed approach offers the best way to address this issue. When it comes to the right point on the Marshalled List, I hope to move the amendments then, and I shall commend them to the House. As I say, I will be happy to respond to any further points that are made in debate.
Lord Alli
My Lords, I have added my name to Amendment 7. I have made my strong support for the legalisation of humanist marriages clear and said in Committee that the ball is well and truly in our court. In our discussions in Committee, the noble Lord, Lord Lester of Herne Hill, like the lone ranger, and not for the first time in this Bill, rode over the hill to our rescue and gave us this formulation. I am more than delighted that the Government have tabled the amendment, bearing the names of the noble Lord, Lord Lester of Herne Hill, and my noble friend Lady Thornton. I pay tribute to the noble Baroness, Lady Stowell, for all her efforts in securing the change in policy. I know that she spent many hours negotiating with many different interests, and it is to her credit that we have this amendment.
I also pay tribute to my noble friend on the Front Bench, Lady Thornton. I know that it is a personal mission for her and I believe that many of us in Committee were moved by her interventions on this subject. I hope that my noble friend’s sister is as proud of her today as we are on these Benches. I urge all those who support humanist marriage to support the amendment.
Baroness Brinton
My Lords, I, too, added my name to Amendment 7, and attempted to put my name to some of the government amendments but was pipped to the post by others. I, too, offer my thanks to Julian Huppert MP who started the process in another place, to the noble Baroness, Lady Thornton, and to my noble friend Lord Lester for the work they have done in conjunction with the Minister. We are extremely grateful for the progress that has been made in the short time since Committee. The only point I would reiterate from the debate in Committee is that this Bill is very much about equality. So far the equality has been based on same-sex and heterosexual marriage. This issue is vital for people who do not follow a religion or faith to be able to celebrate their marriages in the way they wish. It is long overdue and I am delighted that the government amendments pave the way. I look forward to the first humanist-celebrant wedding that I will be able to attend.
Lord Lester of Herne Hill
My Lords, I just wish to add that the process here has been admirable. Had we simply stuck with forcing through an amendment to do the trick, it would not have held in the other place. There would have been ping pong and no public consultation. Including sexual orientation discrimination in the 2006 Act and caste discrimination in the 2010 Act by regulation and consultation seemed to be the best way forward. I am extremely glad that that approach, which is in the amendment of the noble Baroness, Lady Meacher, and now reflected in the government amendment, does the trick.
The Minister has not mentioned Amendment 135, grouped here, which amends the Long Title. Although this sounds like me being a lawyer, I am very glad that it is there because I raised the point in the previous debate that, on the face of it, this was out of order. Once we amend the Long Title, it is in order and it means, in Amendment 135, that the Bill will also be for,
“permitting marriages according to the usages of belief organisations”,
and so on. I have one—not exactly caveat—point, which is that there are belief organisations and belief organisations. A line has to be drawn because there are some belief organisations that have no proper structure and may be in favour of witchcraft, paganism or matters of that kind. It will be necessary using the test of the European human rights convention or the Human Rights Act to make sure that the Government draw the line properly. A consultation is important to be sure of that. However, I congratulate the Government on doing this and the way in which it has been done. I think we will remember it in the future.
Lord Birt
My Lords, I, too, thank the Government for bringing forward the amendment, and all those who worked on all sides to make that possible. The amendment offers the possibility but—as the noble Baroness, Lady Meacher, makes clear—not yet a guarantee that humanists, and perhaps in due course other groups, will be able to conduct lawful marriages. As we have heard, that already happens in a fast-growing number of countries. Humanism is a movement. It is not bound together by belief in a supreme being or a formal body of doctrine, but by ethical conviction, a belief in rationality and the virtues of science, respect for nature and a commitment to optimise the sum total of human happiness here on earth.
The noble Baroness, Lady Meacher, mentioned this. Anyone who has ever attended a humanist ceremony of any kind will attest to its spiritual power, to the sense that it viscerally captures and conveys a strong sense of community feeling and the wonder of human existence. The noble Lord, Lord Norton, who I see in his place, spoke most eloquently—in one of the most powerful of many powerful speeches at Second Reading—explaining why overall he supported the Marriage (Same Sex Couples) Bill, emphasising that it extended freedom, the freedom of gays to marry. This amendment, it is hoped, paves the way for a further extension of freedom for humanists to marry as they would wish. Like everyone else, I congratulate the Government, and I look forward to the first gay humanist wedding.
Lord Harrison
My Lords, as mover of the original amendment in Committee, along with my noble friend Lady Massey, I rise not to detain the House but, first, to thank the noble Baroness, Lady Meacher, for so cogently presenting the case this evening. For all those who spoke in Committee, I think we have universal support. I reserve my particular thanks for the Minister for working so hard behind the scenes to bring to fruition today the amendment that she moved this evening. I thank her on behalf of all humanists.
The Lord Bishop of Chester
My Lords, I add a few words from my own perspective and possibly from the perspective of these Benches, which may not be exactly the same. The Church of England was caught on the hop slightly by this issue in the Commons. A lot of time was given to an amendment on this matter, whereas all our energies had been around the quadruple lock and associated issues.
A couple of years ago, in your Lordships’ House, I made clear my own commitment in principle to humanist marriage. It might have been one of my periodic jousts with the noble Lord, Lord Alli. I cannot remember the precise details of it, but I made it clear. The honourable Member for the Rhondda immediately said that I was completely in favour of his amendment in the House of Commons. This then goaded the Second Church Estates Commissioner to state that the Church of England was actually opposed to humanist marriage. It was all rather on the hop. In Committee, the right reverend Prelate the Bishop of Guildford said here in your Lordships’ House that he was, in principle, open to this development. Speaking for myself—I cannot speak more widely than that—it would make eminent sense for this consultation to take place.
There has been quite a lot of discussion of the Bill as if the objection to same-sex marriage was because of a particular religious understanding of marriage. I understand why that perception has been raised. However, it is important to say that, in Christian terms, marriage is not a possession of the church. It has always been seen as part of the creative order and for the good of creation as a whole. That has always been the position of the churches. I see no reason at all why the consultation should not lead to permission for humanist marriage and indeed for other belief organisations that meet the necessary criteria for doing this.
The Government’s amendment is important because it allows for time for consultation. One of our complaints has been that this process has been rather telescoped in relation to same-sex marriage. We need time to think through some of the implications. I said at Second Reading—I will not repeat my points—that many of the issues before us would be resolved if we went towards a more continental separation of a civil preliminary and then had other organisations celebrate marriage in this dual way. That would iron out a lot of our problems. That may not be part of the consultation, but at least it would give us time to think through some of the issues.
I would rather regret it if humanists were forced to register all sorts of premises, which is one solution that may arise because at the moment we have a premises-based system in England and Wales. In Scotland, there is a celebrant-based process. That needs some careful thought because there may be some hybrid. However, I welcome the consultation. Certainly for my own part, and I believe more generally from these Benches, I very much welcome the Government’s amendment because it gives time for a proper process of consultation.
Lord Cormack
As a lay man who is glad and proud to be a Christian, I should like to associate myself with most if not all of the right reverend Prelate’s remarks. I am not sure about those that touched on establishment because I am a strong believer in the established church and I wish it to retain its position as far as marriage is concerned. However, this is clearly a fair and sensible amendment and I am glad to give it my support.
Lord Anderson of Swansea
I support the concession. I support the review. My only question for the Minister is that there would clearly be potential problems with sham marriages. What is the nature of the protections that she thinks should be built into this welcome amendment to protect against that?
Baroness Thornton
My Lords, I join other noble Lords in congratulating everybody, really. This is one of those occasions. I congratulate the noble Baroness, Lady Meacher, the noble Lord, Lord Garel-Jones, who I hope will be back with us soon, my noble friends Lord Harrison, Lady Massey and Lord Alli, the noble Lord, Lord Lester, and the noble Baroness, Lady Brinton. Of course, I also sincerely congratulate the Minister and the very talented team who worked with her on this. Late on Thursday, when we were trying to get the amendment down, get my name on it and do all the clearances, I was in an LSE governors’ meeting. I texted the Minister to say that I thought we both needed a gin and tonic. I did not get one, but I hope she did.
I also congratulate the British Humanist Association, Andrew Copson its chief executive and his team who consistently jumped through hoops that had been set for them all the way through this process. They have sought all along the line to accommodate all the questions that have been asked. Noble Lords may remember that I said that my children would not be able to be married by a humanist celebrant in this country. I will now have to tell them that if they intend to get married they will probably have to have quite a long engagement. However, this is the House doing its job by doing good.
Baroness Stowell of Beeston
My Lords, I am very grateful to the noble Baroness, Lady Thornton, for reminding the House that I am part of a team. While I am very taken by the kind tributes made by the noble Lord, Lord Harrison, in particular, and the noble Lord, Lord Alli, it is important to stress that we have worked as a team in Government to be able to come forward with this amendment. We are very pleased to do so. I echo all the tributes just made by the noble Baroness, Lady Thornton. If it were possible in Lords-speak, I would say “Right back atcha”, as they might say somewhere else.
If I may, I will respond to some of the serious points that have been made. My noble friend, Lord Lester, is right that we are amending the Long Title of the Bill to ensure that this amendment is properly reflected in what will become an Act. I note his points about that. I also note his point about there being belief organisations and belief organisations, and the need for safeguards. I note the questions of the noble Lord, Lord Anderson, about what people call, in shorthand, sham marriages. I also note what the right reverend Prelate the Bishop of Chester said about various points of detail. All of these contributions have emphasised why this is important, and why we think it is the right approach to have this review and consultation and make sure that all of these matters are properly considered. That is what we will do. As I said earlier to the noble Baroness, Lady Meacher, it is in the Bill that we have to do that before 1 January 2015, so we will certainly make sure that it happens.
Baroness Meacher
My Lords, I must apologise to the House. I should have welcomed the noble Lords, Lord Lester and Lord Pannick, and the noble Baroness, Lady Thornton, for having their names on the Government amendment. I am very grateful to all those who have spoken in this short debate. They have been very coherent and succinct, and quite excellent. I am perhaps particularly grateful to the right reverend Prelate the Bishop of Chester for clarifying the position of the Church of England, and also giving his personal support to the principle behind this amendment. That is very valuable to all of us. I am very grateful to the Minister for her helpful remarks and the assurances that she was able to give us.
I was obviously disappointed that the Minister could not reassure us about the timing of the laying of regulations. I am not at all surprised, but of course it is a disappointment. The Minister will know that all of us, including the noble Lord, Lord Garel-Jones, will be on her tail to ensure that the strength of feeling in this House and the other place is followed through to regulations after the consultation, to ensure that in future humanist marriages will have legal recognition. I say a last thank you to the British Humanist Association, without which I could not have done this. I arrived back from elsewhere and its support for me has been fantastic. I am very willing and happy to withdraw the amendment.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I think it might help your Lordships’ House, and the progress of debate, if I do not say anything at this time on the other amendments, and respond to these in light of the debate that takes place. That will probably mean that I do not repeat myself.
Government Amendments 9 and 10 clarify the meaning of “compelled” in Clause 2, which provides important protections for religious organisations and their representatives from participating in religious solemnisation of marriages of same-sex couples. They have been tabled in response to concerns raised in your Lordships’ House and in the other place that the protection from compulsion set out in Clause 2 may be narrow because the meaning of compulsion is not clear. A number of noble Lords have raised that concern, not least the noble Baroness, Lady O’Loan, my noble friend Lady Berridge and the noble Lord, Lord Hylton.
Baroness Berridge
My Lords, I speak to Amendments 15, 16, 17, 21 and 22, in my name. I thank the Minister for tabling government Amendments 9 and 10. I thank the Government and the Bill team for listening to the concerns raised in Committee. Amendments 9 and 10 clarify the protections given to religious groups under the Bill. The groups, whose concerns had previously not been allayed, were some of those that perform marriages recognised under UK law, where their religious official also performs the function of the registrar. Unlike weddings that noble Lords may have attended at hotels where the registrar comes to do the ceremony, no registrar goes, for instance, to the Catholic Church: the priest is known as the authorised person and so relieves the local registrar from the need to officiate.
There are tens of thousands of authorised people in England and Wales, within many religious organisations, some of whom felt vulnerable to challenge under judicial review, the Equality Act and the Human Rights Act, such that they might have considered handing back their registration as authorised persons if the Bill had not been amended in the manner that the Government outlined this evening. This would of course have been unfortunate and a further financial challenge to local authorities, which would have had to employ more registrars to officiate at such weddings.
I am very grateful to the Government for the amendments, which mean that authorised persons are protected from the risk of challenge and that I will be able to assure those who have contacted me that, as far as is possible in legislation—there can be no cast-iron guarantee—their and their organisations’ decision whether or not to opt in is not amenable to challenge.
I am grateful for this clever amendment, which not only deals with the definition of compulsion but covers issues relating to the public function that is arguably exercised by authorised persons. In the light of my noble friend’s assurances, I will be pleased not to pursue my amendments.
Baroness O’Loan
My Lords, I shall speak to Amendments 22 and 23 and 19 and 18—I shall take them in reverse order in the light of the comments made by the Minister. First, I express my gratitude to the Government for tabling Amendments 9 and 10 on the meaning of the word “compel”. They make it clear that compulsion by any means will not be allowed under the Bill. Therefore, any detrimental or unfavourable treatment of a person—whether an individual or an organisation—because that person has not performed, has decided not to perform or has refused to perform, a Clause 2(1) or (2) activity will be absolutely prohibited. That is in line with the Minister’s statement during Committee on 19 June at col. 281, and I am content that the protection that was promised is now provided by those amendments.
Another of our concerns was that the word “compelled” did not make it clear that less favourable treatment by a public authority of a person who does not perform, decides not to perform or refuses to perform, a Clause 2(1) or (2) activity would be prohibited. A public authority could, for example, have used Section 149 of the Equality Act to treat a person less fairly. The amendments, however, again in line with the Minister’s assurances during Committee on 19 June, make it clear that such treatment would be unlawful.
My amendment uses the words,
“the imposition of any criminal or civil penalty”.
However, I am satisfied that the government amendments make it clear as expressed that any criminal or civil penalty—or indeed, any civil or legal action—against a person in those circumstances will be prohibited. A person is protected, therefore, when deciding not to perform or refusing to perform a Clause 2(1) or (2) activity from challenges under the Human Rights Act or the Equality Act, by way of judicial review or by any other legal challenge. That is made apparent in the government amendments.
Although I recognise that the Government never considered, and still do not consider, that the decision of whether to opt in under Clause 2(1) is a public function, I am content that the wording of the amendment alleviates the risk as I perceived it for the purposes of the Human Rights Act, the Equality Act and judicial review. The bracketed wording,
“including by the enforcement of a contract or a statutory or other legal requirement”,
which provides a non-exhaustive list of examples, is helpful in that regard. Again, the protection is in line with the Minister’s assurance during Committee, and we are content that that assurance is covered by the wording of the Government’s amendments.
I am most grateful to the Government for listening to our concerns and for allaying them so effectively. We are now satisfied that the Government’s lock is comprehensive and will protect persons, whether they be individuals or organisations, in the context of Clause 2(1) and (2).
I move to Amendments 18 and 19. Amendment 18 is designed to protect persons as designated in the Bill from unfavourable treatment following an expression of opinion or belief about same-sex marriage. I am aware that this issue has been debated to some extent under other amendments. Under Section 149 of the Equality Act, a public authority must always have regard to the need to provide all persons with equal opportunities, whether they be black, white, male, female, gay, lesbian, straight or whatever. In particular, public authorities must also be mindful of any disadvantage that is or could be suffered by any person with a protected characteristic, and the need to remove or minimise that disadvantage. Those protected characteristics have been well rehearsed in this House during this debate. They include age, sex, sexual orientation, religious or other belief and pregnancy.
Section 149 gives public authorities a lot of discretion in deciding whether to pursue a course of action. A public authority could decide to use its powers, for example, to try to eliminate or minimise disadvantages suffered by those in the LGBT community. That is a laudable aim but it could do so in a way which unnecessarily disadvantages those with religious or other beliefs about marriage. Section 149 does not force them to do so but it allows them to do so by giving them discretion. That discretion has expanded significantly over the years and the courts have interpreted it as a duty to further equality of opportunity, rather than a duty to avoid discrimination. The positive rather than negative duty has encouraged public authorities to pursue broad equality aims. Public authorities have, for example, denied public contracts to organisations which the public authority regarded as unsuitable to be associated with, for example on grounds of race, and the courts appear to have deemed this entirely lawful.
If a public authority decides to pursue equality of opportunity for the LGBT community, and if this is done in a way which unnecessarily disadvantages those of religious or other beliefs, the courts are unlikely to overturn such an action because of their general reluctance to second-guess public authorities in exercising their discretion. The protection from compulsion under Clause 2 gives protections only from actions arising or relating to the solemnisation of same-sex marriages. It is not at all clear from the Bill whether individuals employed by public authorities will be protected if they express an opinion or belief that marriage should only be between a man and a woman. At this point, I should say that I heard the noble and learned Lord, Lord Wallace of Tankerness, refer to something in relation to disciplinary authority. He was speaking quite quickly but it was something about disciplinary proceedings. Perhaps he could reassure me on that point when he sums up.
At the moment, it is unclear whether a teacher would be able to teach that marriage should only be between a man and woman, if that is their belief, because some pupils, parents and other teachers could find such teaching grossly offensive. It is not clear whether a school would be able positively to promote opposite-sex marriage unless it promoted same-sex marriage equally. It could be argued that such an expression would be contrary to the duty on public authorities to further equality of opportunity for the LGBT community and to foster good relations between people with different protected characteristics.
This is not based on hypothesis alone. A judgment was handed down just two weeks ago in which the public sector equality duty was one of the reasons used to dismiss Dr Hans-Christian Raabe from a position on the Advisory Council on the Misuse of Drugs, which he had been given some 17 days earlier by the Home department. He received a letter from the Parliamentary Under-Secretary of State for Crime Prevention, Mr James Brokenshire, telling him that his authority was being revoked because it had been discovered that some eight years ago, he had co-authored an article, Gay Marriage and Homosexuality: Some Medical Comments. He lost that judicial review; the judgment was in June 2013. That case shows very clearly that public authorities, MPs and Treasury solicitors are already relying upon the public sector equality duty to protect the LGBT community in a way which noble Lords stated during Committee it would be wrong for public authorities to do.
The Minister and others have relied on Article 9 and the fact that religion and belief is also a protected characteristic for the purpose of the public sector equality duty. They do that in order to suggest that this amendment is not necessary but it is in fact unclear whether expression of belief would be protected as a manifestation of religion or belief, following the case of Dr Raabe. It was asserted in that case that Article 9 of the European Convention guarantees only absolute entitlement to hold religious views. It does not guarantee absolute protection for their manifestation.
It was also asserted that there is a difference between acts that are a manifestation of religious belief and acts that are motivated by it. Again, if an expression or a belief is protected as a manifestation of religion or belief—for example, when someone reasonably expresses a view in favour of traditional marriage—it will not necessarily protect individuals because the public authority has to strike a balance somewhere between that characteristic and the other protective characteristic, which is sexual orientation. Effectively, the public authority has to choose between religion and sexual orientation.
It is not clear that the court would strike down a decision arrived at by a public authority in those circumstances that ranked the need to ensure equality of opportunity with regard to sexual orientation more highly than the rights of religion. The case of Ms Ladele is an example of that.
Lord Brennan
My Lords, the purpose of the legislature in this particular legislation is to achieve clarity, in so far as it can, so that its application in public life in this country will not produce dissension or disturbance. Therefore, when we look at the provisions of the Act, we should have in mind a saying of the American Supreme Court: “It is not for the courts to protect the people from the consequences of their political choices. It is for Parliament to legislate with clarity”.
I took part at Second Reading but not in Committee. That was to achieve two objectives. The first was some professional self-discipline; there is nothing less productive than lawyers telling the House what they think the law is or should be. Reserve is the order of the day when interpretation arises. Secondly, Committee was an opportunity for the Government to take the time that they said they would to consider concerns and produce remedies that they thought to be reasonable, in so far as remedies were required.
Government Amendments 9 and 10, I commend. They deal with the word “compel” and the concern about public function, and they deal with those matters comprehensively. I do not invite correction from my professional colleagues, but personally I cannot remember seeing in a statute—certainly not in one of this kind—the words “by any means”. That is an all-embracing, protective phrase and I commend the Government doubly for such a courageous use of language to achieve one of the protections that they said they wanted to achieve: institutional independence.
The phrase “by any means” is followed by some words in brackets. My noble friend Lord Alli has consigned the bracket to statutory ignominy. I prefer a comma; it is just as good. A comma relates to the effect of the legislation on compulsion on ordinary people in their everyday employment, and I invite the Minister to confirm that it is an example, not a definitive, sole exception. Therefore, Amendments 22 and 23, to which I put my name, I no longer consider to be necessary.
This generosity of spirit and this legislative wisdom should not stop here. The Government’s amendment to Schedule 7, dealing with the Public Order Act, remedies the concerns that those who express a public disagreement with same-sex marriage might be prosecuted under the Public Order Act, allowing for the expression of their views to be reasonable and not contrary to the Act. The amendments thus far have not involved the Equality Act, and the concern of many is not just Speakers’ Corner—homosexuality is a sin and so is adultery between opposite-sex people, or whatever it might be. The concern is that, when in the workplace, the expression of a genuine belief, whatever it might be—and let us not be distracted by the homosexual context of this—should not result in detriment to that person in their workplace or their ordinary life.
The Government said that the existing law can address these concerns. Indeed, on the third day of Committee on 24 June, the noble Baroness, Lady Stowell, said that, to avoid misapplication or misinterpretation of the equality law in this area, the Government, with the co-operation of the Equality and Human Rights Commission—I underline “and Human Rights”—will provide guidance to,
“provide adequate protections for religious organisations and individuals”,
and to say,
“why the equality duty cannot be used to penalise those who do not agree with same-sex marriage”.—[Official Report, 24/6/13; col. 603.]
I welcome that.
The Minister said that she would write to the noble Baroness, Lady O’Loan, which she has done, but without detail. There is time yet; Third Reading is next Monday. This topic must have been considered at some length. It is not complicated because the law appears to be straightforward, and so does the Government’s view, so let us have this guidance, at least in outline, in public by Third Reading. That will achieve two things. The outline will prevent further debate on this issue and will reassure all of us that the Equality Act will not be a secondary vehicle for public dissatisfaction and dissent on either side. I encourage the Government to take that action.
I have said nothing about the principle of this Bill. I have been talking about freedoms which we share: the homosexual right to freedom of certain kinds and the religious believer’s right to freedoms of certain kinds. This is a question of balance. I invite the Government to ensure that this Bill becomes law very soon with democratic balance, at least in the area of freedoms.
Lord Lester of Herne Hill
My Lords, like the noble Baronesses, Lady O’Loan and Lady Berridge, I am a member of the Joint Committee on Human Rights. Unlike them, I took the view, and take the view today, that the Bill is perfectly clear, even clearer with Amendments 9 and 10 for anyone who doubted it.
The Government responded to the Joint Committee on Human Rights report today. I do not know whether either noble Baroness has read the response but it has not been referred to so far. I have read it, and I am satisfied that it deals quite sufficiently with the doubts that were raised by the Catholic church through Aidan O’Neill QC and Professor Chris McCrudden, who is a member of my Chambers. I felt that the view expressed by the other side—by Robin Allen QC on behalf of the Equality and Human Rights Commission—was correct, but it became apparent that nothing would satisfy the noble Baronesses, Lady O’Loan and Lady Berridge, that there might not be issues that would still be raised. That is their view, and I respect it. I think the views that have been expressed raise fears that cannot be satisfied by language because, whatever we say in the Bill, I am sure that Members of the House will still raise question after question.
I entirely agree with the Government’s legal advice as expressed in the response to the Joint Committee on Human Rights, and I suggest that that response is placed in the Library so that people other than the Joint Committee on Human Rights can see what is said before Third Reading. No doubt it will also be repeated by the Minister in reply today, but it is helpful to have it as a matter of record.
I have been on that Joint Committee for 10 years and I am the last person standing out of the original members. In those 10 years, I have never known a situation like the one we were confronted with. We were deeply split and the only way in which we could produce a report was either by taking votes, as we used to do, which would have shown the differences, or by papering over the differences, which is what we did. Your Lordships should know that we were deeply split. The views expressed in the Chamber today reflect the ways in which we were split. I see that the noble Lord, Lord Faulks, is in his place. He, too, took an active part in those debates.
The Government have responded, and I congratulate them on the speed with which they have done so. I believe that what they have said is correct and that their citing of the law is also perfectly correct. I am glad that Amendments 9 and 10 have been moved. They are a bit verbose. I would have just said “by any means” without having to put words in brackets, but that is because I believe that at this time of night one should speak briefly and write briefly, if possible.
Baroness Butler-Sloss
My Lords, I have also put my name to the amendments in the name of the noble Baroness, Lady O’Loan. I share her view and the view of others and join in the congratulation of the Government on Amendments 9 and 10, which go a very long way and certainly meet Amendments 22 and 23. However, there is potentially a gap, shown by Amendments 18 and 19. I share the view of the noble Lord, Lord Brennan, and support his proposal that the guidance offered by the Government should be available. The gap that the noble Baroness, Lady O’Loan, has identified in Amendments 18 and 19 may well be met by that guidance, so it would be helpful for the Government to do that. I personally would wait to see that guidance before wishing to take Amendments 18 and 19 any further, although it is clearly not a matter for me but for the mover. However, the Government need to recognise that something needs to be said on paper to be sure that these points are met. To that extent, I differ from the noble Lord, Lord Lester.
Baroness Royall of Blaisdon
My Lords, I will briefly also congratulate the Government. With their Amendments 9 and 10 they have clearly assuaged the majority of people’s fears. My noble friend Lord Brennan said that they comprehensively assuaged fears, which must be a good thing. The proposal from my noble friend about guidance sounds entirely correct, but I know from long experience that sometimes guidance takes rather longer to draft than we might like. However, discussions about the guidance, even if it is not fully drafted, might be a way forward in this particular little logjam. I am very happy to support the amendments.
Lord Wallace of Tankerness
My Lords, I thank noble Lords who have spoken and who have welcomed the Government’s amendments. I am pleased that the amendments have given the reassurances that the noble Baroness, Lady O’Loan, spoke about, as did my noble friend Lady Berridge, and the noble Lord, Lord Brennan. Certainly, that was our intention, because we were conscious of the concerns that have been raised. I noticed that on the basis of that my noble friend Lady Berridge did not speak to Amendments 15 to 17. I also thank my noble friend Lord Lester for welcoming the Government’s response to the legislative report on the Bill from the Joint Committee on Human Rights. I can assure him that it has been placed in the Library, but I believe that the response is also available in the Printed Paper Office. I am glad that he welcomes these amendments and believes that the legal structure is in place to give the reassurances that have been sought. We have said on many occasions and from all parts of your Lordships’ House, not least from this Dispatch Box, that the security and protection of religious freedom that we wish to give to religious institutions is very much an important part of the architecture of the Bill. I hope that these amendments help to give that reassurance and to reinforce that protection.
Amendments 18 and 19, which the noble Baroness, Lady O’Loan, spoke to and the noble and learned Baroness, Lady Butler-Sloss, referred to, were rehearsed in Committee and I readily recognise the noble Baroness’s wish to explore the same ground again today. The intention of the amendments appears to be to ensure that any religious organisation or individual is not penalised by a public authority simply because they have expressed the view that marriage should be only between a man and a woman, or because they have decided not to participate in a religious solemnisation of marriages of same-sex couples.
It is important to remind ourselves that Section 149 of the Equality Act 2010 places a duty on public authorities to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between people who hold and do not hold particular protected characteristics. It applies to the protected characteristic of religion or belief, not just to sexual orientation, and, as we have already made clear, the belief that marriage should be of one man with one woman is a protected belief. Let me also make it clear that the equality duty is a duty to think, not to act or to produce a particular outcome; it does not require any particular outcome. If, for example, a public authority withdrew its facilities from an organisation or treated an employee less favourably, simply because of the expression of a belief about the marriage of same-sex couples, it would be acting unlawfully, both in failing to apply the duty properly and potentially committing an act of unlawful discrimination under the Equality Act.
Members of your Lordships’ House may recall that when we debated this in Committee, I referred to the decision of the Judicial Committee of your Lordship’s House in the case of Wheeler v Leicester City Council in 1985. That was a case in which the council banned a rugby club from using its ground after some of its members attended a tour of South Africa. The council was using a predecessor of a public sector duty to justify its actions. In that case, the House of Lords held that the decision was irrational; it also found that the decision was procedurally unfair and that therefore there was an improper purpose, which resulted in the council’s decision being quashed. I believe that the same reasoning would apply here.
The noble Baroness, Lady O’Loan, asked me about something that I said during my opening, when I moved the amendment. I am happy to repeat it. Clause 2 will clearly prevent criminal or civil action being taken against any religious organisation or representatives merely for refusing to undertake acts protected under this clause. That includes, but is not limited to—this picks up the point made by the noble Lord, Lord Brennan, that the words in brackets in the amendment are not exhaustive—disciplinary or other action taken in the employment context. In all circumstances, a person who has suffered a detriment simply because they have not done one of the acts specified in Clause 2 will be able to rely on the protections in that clause to show that such conduct is unlawful and to obtain a remedy within the context of the particular claim.
Furthermore, if a public authority is prevented, as Amendments 18 and 19 suggest, from having any regard to an individual’s or an organisation’s beliefs about the marriage of same-sex couples, it would be unable to consider how its own decisions could potentially discriminate against or otherwise disadvantage people who do believe that marriage should only be between a man and a woman. In fact, therefore, it could have the absolute opposite effect from that which I am sure that the noble Baroness seeks to achieve. I believe that that would be an unintended and harmful consequence of the amendment as drafted.
It is our view that an amendment of this kind would be unhelpful and unnecessary and that, rather than amending the legislation, the best way is to ensure that the equality duty is properly understood in the way that it is applied. We will seek to improve the guidance on its use; although, in all honesty, I cannot say that that will be made available before Third Reading. We are currently discussing with the Equality and Human Rights Commission how best to take forward our commitment to review the relevant guidance so as to include clear and helpful guidance for employers and public bodies in the context of this Bill when it is enacted. We will take that work forward as quickly as possible as part of the implementation of the Bill if enacted, although no timetable has yet been agreed. I believe that that is a sensible way to move forward.
Lord Brennan
I am grateful to the Minister for giving way. In the absence of the detail of the guidance, can he give the House a general assurance that the government guidance will make it clear to those responsible for applying the Equality Act that to do so in a way that raises the concerns that we are dealing with would be to act irrationally?
Lord Wallace of Tankerness
My Lords, it is very dangerous to try to draft guidance on the hoof, as it were. I think that I have expressed, both today and in Committee stage, in response to the amendments tabled by the noble Baroness—and, indeed, in a very detailed letter that I sent to those who had taken part in a similar debate in Committee and which is in the Library—the points that the Government believe are important and which provide the necessary protections. As my noble friend, Lord Lester, said in Committee, there is always the possibility of someone acting in an idiotic way. What we seek to do with the guidance most fundamentally is to try to eliminate—or to reduce to an absolute minimum—the number of times that anyone would act in an idiotic way.
I have one further point. I think that the noble Baroness, Lady O’Loan, raised the issue of the judgment in the case of Hans-Christian Raabe. I will quote from the High Court decision of Mr Justice Stadlen in order to allay, again, concerns that the duty is being misused.
In paragraph 256 of the judgment, his Lordship said:
“As I have said, there is in my judgment nothing to suggest that if Dr Raabe had expressed his opposition to same sex marriage and set out any religious basis for that opposition, that would have been considered by the Defendant or Mr Brokenshire to be a reason for revoking his appointment. In fact he did not set out any religious basis for the views expressed in the 2005 Paper and there is no reason to suppose that the revocation of his appointment would inhibit or deter any person who opposes same sex marriage on religious grounds from publicly expressing such views for fear of being rejected for a similar appointment in the future. Mr de la Mare pointed out the most obviously offensive features of the Paper did not form part of any religious belief”.
Therefore, it is very clear from his Lordship’s judgment that the concern which has been expressed did not form any part of that decision. In those circumstances, I again commend the government amendments to the House and hope that the noble Baroness, Lady O’Loan, will not pursue her amendments.
Baroness O'Loan
My Lords, I want to say something about the nature of the debate on the Bill in the House today and on previous occasions, as it is has been very acrimonious.
Baroness Stowell of Beeston
I am sorry to interrupt the noble Baroness. We are discussing government Amendment 9. Indeed, we have concluded our debate on it.
Baroness O'Loan
“( ) For the purposes of section 149 of the Equality Act 2010, no regard may be had by any public authority to the expression by a person of the opinion or belief that marriage is the union of one man with one woman.”
Baroness O'Loan
I thank the Minister and the noble Baroness for all that they have said and done and for their work in creating these comprehensive amendments. I will not move these amendments which do not seek to wreck the Bill or cause homophobia but are simply designed to reassure a huge range of churches beyond the established church in England and Wales. I hope that the Government will continue to keep your Lordships’ House informed about their work with the Equality and Human Rights Commission on guidance, as that is clearly vital. On that basis, Amendments 18, 19, 22 and 23 are not moved.
The Deputy Speaker (Lord Skelmersdale)
I am afraid that the rules do not allow me to do that. Is it your Lordships’ pleasure that Amendment 18 be withdrawn?
Baroness Northover
“(1) The Secretary of State may by statutory instrument make regulations about the procedures to be followed and the fees payable—
(a) on registration applications;(b) in relation to section 43B authorisations;(c) on cancellation applications.(2) The Secretary of State may by statutory instrument make—
(a) regulations modifying the application of section 41 or 43 in relation to buildings that are already registered under section 43A;(b) regulations about cases where a person makes applications under sections 41 and 43A, or gives or certifies authorisations under sections 43 and 43B, in respect of the same building at the same time (including provision modifying any requirement imposed by any of those sections or by regulations under subsection (1) of this section).(3) A statutory instrument containing regulations made under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(4) In this section—
“cancellation application” means an application under section 43C for the cancellation of the registration of a building;“registration application” means an application under section 43A for the registration of a building;“section 43B authorisation” means the authorisation of a person under section 43B to be present at the solemnization of marriages in a building registered under section 43A.”
Baroness Northover
My Lords, in moving Amendment 37, I shall speak also to Amendments 41, 54, 56 to 59, 91, 92, 108 to 110, 113 to 118 and 123 which together comprise the government amendments brought forward in response to the Delegated Powers and Regulatory Reform Committee’s fourth report which addressed this Bill’s approach to the exercise of powers. I start by thanking the committee for its scrutiny of the Bill. As always, the report was thorough and made sound recommendations, the vast majority of which the Government have accepted in whole or in part. I will explain the amendments broadly in clause order.
Amendments 37 and 41 will clarify the powers to make regulations in relation to the registration of places of worship for the solemnisation of marriages of same-sex couples and the arrangements for some shared buildings. Amendment 37 responds to the committee’s recommendation that powers of the Secretary of State in new Section 43D of the Marriage Act 1949—to make regulations about the registration of buildings which are registered as places of worship to solemnise same-sex marriages under the provisions of the Bill—should be subject to the affirmative procedure.
(1) The Secretary of State may by statutory instrument make regulations about—
(a) registration applications relating to other shared places of worship;(b) cancellation applications relating to other shared places of worship;(c) the sharing churches’ use of other shared places of worship (in cases where those places are registered under section 43A) for the solemnization of marriages of same sex couples.(2) The provision that may be made under subsection (1)(a) or (b) includes provision about the procedures to be followed on registration applications or cancellation applications.
(3) In this section “other shared place of worship” means a shared building—
(a) which has been certified as required by law as a place of religious worship, but(b) to which sections 44A and 44B do not apply because the building is neither—(i) subject to a sharing agreement, nor(ii) used as mentioned in section 6(4) of the 1969 Act.”
“Protection of teachers
(1) For the avoidance of doubt, nothing under or in consequence of this Act shall—
(a) affect the right of teachers to express their personal views about marriage in an appropriate way, or(b) mean that any teacher will be under any obligation to endorse a particular view of marriage.(2) Subsection (1) does not apply to a school designated as having a religious character by an order made by the Secretary of State under section 69(3) of the School Standards and Framework Act 1998.”
Lord Dear
My Lords, in moving the amendment, which seeks to protect the rights to conscientious exclusion for schoolteachers, I draw attention to the fact that teachers who have a conscientious objection to same-sex marriage are prevented from endorsing same-sex marriage, just as they are not required to give religious education or attend religious worship.
A ComRes poll conducted in January this year found that a quarter, 26%, of teachers said that they would either probably refuse to teach children about the importance of same-sex marriage or do so only reluctantly. More than half, 56%, were concerned that colleagues who expressed support for traditional marriage could harm their career prospects. The Government’s response to concerns expressed in this House about teachers’ concerns in this regard has so far been somewhat less than enthusiastic, despite being encouraged by the Joint Committee on Human Rights to,
“to consider whether specific protections are required for faith schools and for individual teachers who hold a religious belief about same sex marriage”.
The Minister, the noble Baroness, Lady Stowell of Beeston, said in Committee that,
“no teacher is under any obligation to endorse a particular view of marriage or would be in the future as a result of the Bill. Teachers are and will continue to be free to express their personal views”.—[Official Report, 19/6/13; col. 351.]
Amendment 46 simply seeks to place those promises in the Bill.
It is vital that teachers know that their freedom is protected. They are particularly concerned that they may be asked by senior staff or head teachers to promote same-sex marriage against their conscience. As Mr John Bowers QC, a leading counsel in this field of law, has indicated, a refusal to obey a lawful instruction could, in his opinion, be grounds for dismissal of that member of staff.
In Committee, I referred to a current case, the circumstances of which were set out briefly in Hansard on 19 June at column 336, in which a long-serving teacher at a girls’ school in south London is facing disciplinary proceedings for refusing to teach a presentation which stated, in effect, that any disagreement with same-sex marriage is homophobia. The Government have said:
“There is a significant difference between expecting a teacher to explain something and expecting them to endorse it”.—[Official Report, 19/6/13; col. 351.]
I ask Members of your Lordships’ House to put themselves into the position where a classroom of 13 year-olds are being taught about same-sex marriage and ask whether the line can be drawn between endorsement on the one hand and a pure explanation on the other. It is easy to imagine that class of 13 year-olds pressing their teacher to give his or her personal opinion.
That is particularly the case when the issue of same-sex marriage arises in contexts which are outside sex education. For example, should a primary school teacher with a conscientious objection to same-sex marriage be expected a read a book such as King and King, which is well known and endorsed and published by Stonewall, about two princes who get married? The teacher could well consider such a book to be an endorsement of same-sex marriage. She should have the freedom to decline to read the book without suffering detriment, a freedom that has already been denied to one such teacher who stopped reading a book about two male penguins raising a chick because she felt it conflicted with her beliefs. She was subsequently restricted from having her own class.
The amendment does not apply to schools designated as having a religious character in order to ensure respect for the values that underpin those schools. Schools with a religious ethos may well want to endorse the particular view of marriage upheld by the tenets of that relevant religion and should be left free to do so.
A further related issue is how the Bill, once enacted, will interact with sex education. Under the Education Act 1996, pupils are taught that the importance of marriage and family life should be encouraged. That is set down in Section 403. It applies to all state schools, both with and without a religious character. Church schools have a special protection but there are concerns for teachers and pupils across the state system. Clause 11 of the Bill redefines marriage for the purposes of all legislation, as we know, so teaching about the importance of same-sex marriage will be inherent in Section 403. As John Bowers QC stated in a legal opinion on Section 403 that the section,
“provides no exception for conscientious beliefs. Unless this were amended I envisage that there will be a duty on the teacher to promote marriage as newly defined”.
He went on to say:
“If the Marriage Bill becomes law, schools could lawfully discipline a teacher who refused to teach materials endorsing same sex marriage”.
He added:
“The stark position in my view is that a Christian teacher (or indeed any teacher with a conscientious objection) may have to teach about (and positively portray) a notion of marriage (and its importance for family life) which they may find deeply offensive”.
He goes on:
“Section 403(1A) of the Education Act would also in my view provide a legitimate basis for schools or LEAs which wish to promote a particular vision of equality to require all teachers to teach materials which endorse same sex marriage. The position of teachers who manifest a conscientious objection to doing so is not enviable”.
Lord Eden of Winton
My Lords, I thank the noble Lord, Lord Dear, for moving his amendment and I support what he said. I have one point to make, which I regard as important. In the real world, the teacher in a classroom often finds him or herself in a somewhat isolated position. It is not always easy to control a class of up to about 30 children. It can be difficult for the teacher to establish fully the nature of what he or she wants to get across. A side example, which appears more regularly than one would wish, is when a teacher has tried to discipline someone in the class. The net result can be—I have recent practical examples of this—that the father of the child takes the opportunity to address the teacher in an abusive and threatening manner. One does not want to see that extended into this realm.
It is most important that the guidance given to the teaching profession is clear on this matter and, more especially, that the guidance is given to the heads of the schools. There are associations in which head teachers are fully represented, and I should like an assurance from the Minister that the guidance will go to all those associations, making it abundantly clear that any teacher who feels as strongly as was indicated by the noble Lord, Lord Dear, and who wishes to refrain from teaching matters with which they are unhappy will be fully protected. I hope to have that assurance from the Minister in her reply.
Baroness Royall of Blaisdon
My Lords, we have debated this issue several times throughout the passage of the Bill. I believe it is absolutely clear that while teachers will be under a legal duty, as is right and proper, to teach the law of the land—that gay couples will be able to marry—that does not mean that teachers are going to be able to advocate this as the best form of marriage, and nor are they going to be asked to promote same-sex marriage. These are very different things. It is right and proper that teachers in our country should be expected to teach the law of the land—not to promote or advocate but just to teach.
The noble Lord mentioned conscience. I think that he was talking about opt-outs. It would be totally inappropriate for a teacher to opt out of teaching the law of the land. The noble Lord also mentioned a classroom of 13 year-olds and asked whether the line could be drawn between endorsement and explanation. I have utmost confidence in the ability of teachers to do this. They already do so in many circumstances and I see absolutely no reason why they cannot do this with same-sex marriage. I am utterly opposed to the amendment.
The Earl of Listowel
My Lords, my noble friend raises a very interesting question about how teachers will work with this legislation. At Second Reading, the noble Baroness, Lady Stowell, made it very clear that this is a Bill about same-sex marriage. The Government have no intention of dealing with any other issue; this is just about same-sex marriage. However, from our debates this afternoon, I think it is also clear that we agree that for many years marriage has been understood to be the stepping stone to starting a family. For many people, it is the basis for going on to have children. Therefore, it does not seem too far-fetched to think that if a Government bring forward a Bill to introduce same-sex marriage, they may by implication be saying, “We have looked at all the research about the outcomes for same-sex marriage and the outcomes for children growing up with two women or two men as parents, and we are sanguine about the results. We are quite confident now that there are no concerns at all about that fashion of bringing up children”. Clearly, from what the noble Baroness said at Second Reading, that is not the Government’s intention, but I can see that this may be a difficulty—that there may be a popular misunderstanding of the Government’s intention in this Bill. Therefore, we need to make the guidance very clear for teachers. My noble friend cited two concerning cases about teachers coming under pressure because they had a different view from that of their head teachers about what should be taught in this area. A lot of work needs to be done in ensuring that the best guidance possible is offered to teachers.
I reiterate that there are strong feelings on both sides of this issue. Some people feel very strongly that with same-sex parenting there is no difference in terms of outcomes for children, and there are others who are very strongly against it. The science so far does not prove the case either way, but both sides want to twist or bend it to a certain degree to make that conclusion. Therefore, this matter requires a lot of attention. There is a need to think really carefully about the evidence involved and to use it in advising teachers and other childcare professionals about the best framework for the best outcomes for children.
Baroness Barker
My Lords, it is deeply regrettable that the noble Lord, Lord Dear, chose to speak about the promotion of same-sex relationships. That brings an echo of some very bad policy from times past for some of us.
I have great admiration for teachers. One of the great things they do is to manage classrooms of 13 year-olds, who are extremely challenging. Teachers already face issues of this kind in their daily life. They already have guidance to which they refer in order to help them to do their jobs. I simply want to ask the Minister whether there is anything in this legislation that changes the existing position regarding the teaching of the subject of personal and sexual health education to children—a topic on which there have been endless debates, not least in your Lordships’ House, in great detail.
Baroness Massey of Darwen
I commend what the noble Baroness has just said about existing policies. I want to make one quick point. Teachers in schools do not usually teach in isolation. Behind them there is a school ethos and school policies developed by the staff and the governors and very often by the pupils themselves involving parents. That is the context in which teachers are teaching. The existing law will apply and I do not see any problem at all. I agree that the word “promote” in relation to these issues is a very unfortunate one. Teachers do not promote; they educate.
Lord Deben
We are in great danger of thinking about only this subject. Teachers constantly have to face this issue. I remember going to a Protestant school and being taught about transubstantiation. The teacher had a duty to explain that honestly and straightforwardly. He also had a duty to explain what he himself thought about it. I did not agree with what he thought about it. On the other hand, I was extremely well informed by how he explained it. That is what teachers are doing constantly, in all sorts of areas. That is all that is being asked.
It is right that the teacher should explain what the law is. It is right that the teacher should have to explain the arguments that led to the law being as it is. It is also perfectly reasonable—and 13 year-olds would certainly demand it—for the pupils to say, “Well what do you think about it?”. It is perfectly right for the teacher to say what he or she thinks about it, but with the proper politeness and courtesy that teaching implies.
We are making a great deal too much of this because this is the sort of thing that all teachers face all the time. The law is not being changed to make a special arrangement for this, because it is already covered. I really do not think that we should get hung up about this, because it will have to be dealt with immediately we change the law, whatever we do. That is what teachers are there for: to try to make people understand that this is what the law is and that there are arguments. Let us get the class to argue and discuss the issues. The only people who do not want that are the people who want teachers to promote one side or the other. Promotion of things does not have much place in the classroom.
Lord Curry of Kirkharle
My Lords, I support the amendment of the noble Lord, Lord Dear. Deep concerns were expressed at Second Reading on this issue. We all have huge respect for the role of teachers and admiration for what they do, but many are deeply concerned about the impact of the Bill. Indeed, in the Government's response to the Joint Committee on Human Rights, the door was left partially open in that the Government said that they would continue to engage with religious organisations and others to explore whether there was a case for further clarification in this area. I suggest that there is a case for further clarification. Rather than just rejecting this amendment, the Government ought to consider how they can respond to give greater clarity on the subject.
Lord Framlingham
My Lords, the noble Lord, Lord Deben, divided the issue into two—that teachers will have to explain the situation as it is and then, if asked, give their opinion. I am afraid that if we are not careful in this House, we are in grave danger of pretending things that will not happen. Anyone who has stood in front of a class knows that children are very cute. They want to know the truth and you have to be very honest. Teachers are teaching pupils about the ordinary, normal married state and same-sex marriage at the same time in as honest and fair a way as they possibly can. Then the pupils who are listening very carefully say, “But what do you really think Miss?” or “What do you really think about it Sir?” As the noble Lord, Lord Deben, said, teachers then have to give their opinions. If a teacher who does not believe in same-sex marriage and who has explained the situation factually is then forced into a corner and says, “I think same-sex marriage is an awful idea. I am sad that it ever happened and it is dreadful that it has gone through”, what then happens to that teacher?
Baroness Stowell of Beeston
I am grateful to the noble Lord, Lord Dear, for moving Amendment 46. This amendment obviously reflects the concerns he expressed about the potential effect of the Bill on teachers’ ability to express personal views about marriage, their employment rights and how they are expected to approach this topic in class. Noble Lords who have followed the passage of the Bill will know that these issues have been discussed at length in Committee, not only in this House but also in another place.
Before I respond to those three separate issues, I make the point that the way in which some contributions have been made to the debate this evening suggests that we are starting to confuse these three issues. I think it is important to see them as separate points. I start by addressing the point about freedom of expression generally. On this point I can be absolutely clear in response to my noble friend Baroness Barker, who asked about whether anything had changed in this Bill. Teachers are and will continue to be free to express a personal view about marriage or any other matter, provided they do so in a balanced and sensitive way. There is nothing in the Bill which will restrict anyone’s right to express the view that marriage should be between a man and a woman.
Amendment 46, put forward by the noble Lord, Lord Dear, aims to offer additional protections in this regard. This is unnecessary for exactly the same reasons that I spelled out in response to debates earlier this evening. I will not repeat them, but I just signpost for noble Lords Article 9 of the European Convention on Human Rights and the Equality Act 2010. Everything I have said previously applies here. People, including teachers, have the right to believe whatever they wish to believe, and nothing about this is changed.
The noble Lord, Lord Dear, referred to the specific case of a teacher whom he said had been told that it is homophobic to disagree with the belief that same-sex couples should be able to marry. Obviously I do not know the details of that case, but I can be absolutely clear, because of everything that is in the Bill and what we are legislating to bring about, that it is absolutely legitimate to have a belief that marriage should only be between a man and a woman. I can say categorically that, if somebody holds that belief, it is not homophobic.
I move on to how the Bill affects teachers’ employment rights. Like any other employee, teachers are protected from being discriminated against or harassed because of their religion or belief. Discriminating against someone because they hold or express a belief about marriage is unlawful under the Equality Act. I add that the noble Lord’s amendment risks casting doubt on that existing protection by discriminating against a teacher applying for a job in a non-faith school, because his or her belief about marriage would already be unlawful under the Equality Act. The point, which I have made in other debates, is that, if we start being specific on the face of the Bill about such things, we dilute the protections to which teachers, as indeed any other employee, have the right, and we put them at risk.
Subsection (2) of the noble Lord’s amendment would also cast doubt on the ability of teachers in faith schools who are not covered by this provision to express their personal views about marriage in an appropriate way. I am sure that he would agree that such an outcome would be undesirable, and harmful to the ability of teachers in faith schools to present their own views in an appropriate manner and in the broader context of that school’s faith ethos.
The noble Lord, Lord Curry of Kirkharle, referred to the Government’s response to the Joint Committee on Human Rights, and the point it makes about considering an amendment which relates directly to faith schools. I point out to the noble Lord that that is very different to the amendments we are discussing right now. That particular amendment, which the Government refer to in their response to the Joint Committee on Human Rights, is a very specific one, which we will debate on Wednesday. It is not this amendment.
Then we move on to the issue of the requirements and demands on teachers in the classroom and the content of their lessons. First, I must remind the House again that, although I know that this is not just related specifically to sex and relationship education, none the less sex and relationship education is not compulsory for primary schools. It is compulsory only for secondary schools. When the noble Lord referred to particular materials and the effect they may have on younger children, there is no demand or requirement on primary schools to teach sex and relationship education.
No teacher is under any obligation to endorse a particular view of marriage, or would be as a result of the Bill once it is in force. The noble Lord, Lord Dear, quoted me from earlier stages of the Bill. I will repeat myself briefly again because I am afraid there is no other way for me to make this point. I said:
“There is a significant difference between expecting a teacher to explain something and expecting them to endorse it”.
Those are two separate things, and by expecting a teacher to explain something, there is no requirement for them to say that what is the law of the land is something they personally support. They are at liberty to have their own personal views. As I said—and as the noble Baroness, Lady Farrington, made clear in her contribution in Committee and as my noble friend Lord Deben said in his contribution tonight—teachers,
“are required to explain the world around them in a way that is appropriate to the age and level of understanding of their pupils. This includes explaining some things which may be controversial and with which they may not necessarily agree”—
such as divorce and contraception. Teachers,
“are already very experienced in dealing with such issues and do so admirably and professionally”.—[Official Report, 19/6/13; col. 351.]
We would expect them to be able to handle this kind of change in the law as they already have done in the past with changes, for instance, that allowed civil partnerships.
The noble Lord, Lord Dear, referred to some specific material. I make the point to him that the Government do not specify the materials that any school should use to support teaching. The main point I make is that schools are required to maintain a policy on their approach to sex and relationship education and to make that available to parents because it is important that they consult with parents about their approach to education in this context.
The noble Lord, Lord Dear, and my noble friend Lord Eden asked about guidance. The Equality and Human Rights Commission guidance that we have talked about in the context of other debates includes technical guidance for schools in England dealing with the areas of the Equality Act 2010 which deal with the provision of education in schools. That will be reviewed as part of the work that the EHRC has committed to do to review its guidance in the context of this Bill when enacted. We are working with the EHRC to agree the plans and timetable for this work.
I understand the concerns behind the noble Lord’s amendment and the strength of his feeling in this area. I can only reassure him as clearly as I can that the protections are there for teachers in the context of their own employment rights, their own personal beliefs and their ability to express them, and also the requirement for them to teach the law of the land: they are under no obligation to promote or endorse anything that they do not agree with. As we have said at earlier stages in the passage of the Bill, to achieve the kind of tolerance, courtesy and generosity that we all talk about as being so important, it is incumbent upon teachers to be able to explain very clearly that there are many types of families and that same-sex couples will be able to marry in future. We want our children to be able to learn about the whole difference of views that there are in this country so that they can themselves ensure that we have the kind of society that we all feel strongly and passionately about. I hope that on that basis, the noble Lord feels able to withdraw his amendment. If he decides to press it to a Division, I will of course be voting not-Content.
Lord Dear
My Lords, first, I thank the Members of your Lordships' House who have spoken in favour of the amendment. I must say that I am a little confused by the statements made by the Minister.
I beg your Lordships’ indulgence to read very quickly what the amendment sets out. It states that,
“nothing under or in consequence of this Act shall … affect the right of teachers to express their personal views about marriage … or … mean that any teacher will be under any obligation to endorse a particular view of marriage”.
That sets out exactly what the Minister said in Committee. She also said:
“Teachers are and will continue to be free to express their personal views”.—[Official Report, 19/6/13; col. 351.]
That is fine, but 40,000 of them—more than 10% in the ComRes poll, when extrapolated, means 40,000 teachers in this country—have said that they would probably refuse to teach children about same-sex marriage, and 56% have said that they fear that this will lead to teachers being disciplined if they find themselves in that position.
I also beg the indulgence of the House in drawing attention to the fact that I have quoted extensively from John Bowers QC, leading counsel. I repeat:
“If the Marriage Bill becomes law, schools could lawfully discipline a teacher who refused to teach materials endorsing same sex marriage”.
That is from leading counsel eminent in this field. His view has not been challenged by either of the noble Lords, Lord Lester of Herne Hill or Lord Pannick, so I take it—
Lord Pannick
I made a speech in Committee. I have not repeated the points I made in Committee because I did not think that it would help the House.
Baroness Farrington of Ribbleton
My Lords, I have not repeated any of the comments that I made in Committee, but I am concerned whether leading counsel was asked whether teachers would be against endorsing same-sex marriage, because that has not been the tenor of any of the contributions, including those from the Minister. We are not talking about endorsement, we are talking about teaching the facts. I have been in politics a long time, and I have to tell the noble Lord, Lord Dear, that I know how to phrase a question to get the answer that I want.
Lord Dear
With the greatest of respect, I am not too sure what that point is set out to achieve.
The amendment states in paragraph (a) that nothing affects,
“the right of teachers to express their personal views about marriage in an appropriate way”.
That means that, if the amendment were carried, teachers can say what they like. The noble Lord, Lord Framlingham, made very much the same point: teachers, when pressed, can say “I do” or “I do not” endorse it under that protection. Under the clause, if teachers say, “I do not agree with it”, according to the opinion by John Bowers QC and others, they lay themselves open to disciplinary action or disadvantage. He continues:
“The stark position in my view is that a Christian teacher (or indeed any teacher with a conscientious objection) may have to teach about (and positively portray) a notion of marriage (and its importance for family life) which they may find deeply offensive”.
I am not going to weary the House by speaking any longer. However, if one believes the ComRes poll, 10% of teachers, which if extrapolated is 40,000 teachers in this country, are deeply concerned about this and have said that they will either refuse to teach it or find to do so abhorrent—that is my word, not theirs. It seems that there is so much doubt in that 10% of the teaching staff that we need to cover this. All that we are asking is simply to take the words that the Minister expressed on 19 June:
“Teachers are and will continue to be free to express their personal views”.—[Official Report, 19/6/13; col. 351.]
At the moment, it seems to John Bowers QC and others that if they express their own personal views on this, they are open to discipline and action. I therefore beg leave to seek the opinion of the House.
Lord Anderson of Swansea
“Employment protection
(1) After section 47F of the Employment Rights Act 1996 insert—
“47G Beliefs about the definition of marriage
(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer on the ground that the employee believes or expresses a belief that marriage should only take place between a man and a woman, provided that belief is expressed in a reasonable manner.
(2) This section is without prejudice to any rights which an employer may have under Schedule 9 to the Equality Act 2010.”
(2) In section 48 of the Employment Rights Act 1996, at the end of subsection (1) insert “or 47G”.””
Lord Anderson of Swansea
My Lords, I think I now have the message that the night is late and that I should be as succinct as I can be in moving Amendment 49. It, again, relates to employer-employee relationships and the adequate protections which, in my judgment, should be given to employees who are, of course, in a more vulnerable position as a result. Essentially, Amendment 49 seeks to protect the free speech of those who believe in, what I call in shorthand, traditional marriage. It provides protection, particularly in the workplace, for those who hold that view.
The amendment would insert proposed new Section 47G into the Employment Rights Act 1996 to prevent employers subjecting their employees to detriment for holding or expressing their belief. It is qualified only in that it protects the expression of belief in traditional marriage, and states that that belief must be expressed in a reasonable manner. Therefore, it is no protection to zealots who choose to travel well beyond the bounds of respect for the dignity of same-sex couples. The amendment is further qualified in that it does not affect employers such as gay charities and religious charities, which are allowed, under Schedule 9 to the Equality Act, to select job applicants on the grounds of sexual orientation and belief where there is a genuine occupational requirement for the job.
I should like to think that noble Lords will feel that all this is eminently reasonable. I look forward with interest to the Minister’s response and I hope that she will accept that this is a serious matter that deserves a serious reply. We are dealing with a view of marriage that was the orthodox view, and one that was accepted by the mainstream and, indeed, by all parties until some time after the 2010 election. Suddenly, there was pressure for change which gathered pace and the tide has swept on. There is a danger that supporters of traditional marriage will be left somewhat vulnerable on a sandbank unless there are adequate protections. These people are not bigots, as the Deputy Prime Minister called them, but ordinary people, many of whom are perhaps either in a majority or close to being in one. The question that we now have to ask ourselves is whether we should maintain space in the public square for those people to hold and express their views.
If an employer accepts the analysis that to be critical of traditional marriage is equivalent to being critical of black people and saying that they are not fully human, that may justify detrimental action. I hope that we can be assured that employers who take that view will not prevail.
Baroness Thornton
My Lords, I know that my noble friend is very concerned because cultural change is always difficult and sometimes painful, and I understand that. We have discussed these issues in some detail in Committee. I say to my noble friend that although the safeguards to protect people’s freedom of speech exist, we also have the safeguards under the Equality Act, which is a carefully considered piece of legislation. They set the boundaries and characteristics that allow religion and belief as a protected characteristic, so we have the safeguards that ensure that this amendment is not necessary. As several noble Lords have already said during this debate and in Committee, one cannot legislate against idiots taking silly cases. Although in some of the cases that my noble friends have mentioned people won those vexatious, silly cases, that does not mean that you change the fundamental laws and freedoms that we already have. We will be opposing my noble friend’s amendment.
Baroness Stowell of Beeston
My Lords, I will begin by saying a couple of things to the noble Lord, Lord Anderson. He is absolutely right that we feel very strongly about the need to protect the freedom of speech, which is what we are doing through this legislation. He also talked about this being a serious amendment, and that he wishes the Government to take it seriously. I can assure him that not only do we take this amendment seriously but that we have taken seriously all amendments that have been tabled, both in Committee and on Report, and will continue to do so.
The noble Lord mentioned various examples to illustrate his argument that employees need additional protection. I responded to all of them at various stages of the Bill, so I will not do so again now. However, he said that people feel concerned that once the Bill becomes an Act—and we hope that it will become an Act—they will not be able to maintain what he described as a mainstream view. I understand that concern; however, not only will it be possible for people to maintain and express their belief, we recognise that that belief is a mainstream opinion. We are not trying to say that it is a sidelined opinion—it is an important belief that many people hold, and we would not want to say anything to undermine people who hold that belief, as we respect them.
On the noble Lord’s amendment and its proposal to amend the Employment Act 1996, we are not convinced that it is necessary, or desirable, to provide additional protection for employees in this way who express a belief that marriage should be only between a man and a woman. Discriminating against an employee because of this belief would already be unlawful under the Equality Act, as the noble Baroness, Lady Thornton, said. That existing protection strikes the right balance in providing protection for the employee, while also protecting other employees and customers from discrimination and harassment. It is important to understand that the Equality Act is there to strike a balance. Employers must have the right to ask their staff to do what is necessary to run their business, provided that it is reasonable and lawful. Therefore, if an employer does not think it right that an employee should express personal views on this or any other subject to customers, for example in a restaurant or hotel, he should be able to ensure that his employees perform their jobs in the appropriate way. To be clear, that does not mean that an employee has no right to hold the opinion or belief that they do.
Furthermore, if we are to pick out this particular belief for protection in the Employment Rights Act, what is the justification for stopping there? Other beliefs are equally worthy of protection, including the belief that marriage can be enjoyed equally by same-sex couples. The principle applies to an enormous range of beliefs which are entirely legitimate, although the expression of them might impede the performance of the job in question.
Employees are already protected under discrimination law. The Equality Act already provides comprehensive protection against unlawful discrimination—both direct and indirect—harassment and victimisation. It would be a matter of fact whether conduct of an employer constitutes a detriment and whether it is imposed because of the employee’s belief that marriage should be of one man with one woman. If there is direct discrimination, it would not be capable of justification and would be unlawful.
We believe that these amendments are unnecessary and potentially damaging to the balanced way in which the Equality Act protects people from discrimination and harassment. There is no need for further protection to be added to the Employment Rights Act. I hope, therefore, that the noble Lord feels able to withdraw his amendment.
Lord Anderson of Swansea
I hear the Minister and my noble friend Lady Thornton. I remind them that the law is not being introduced into a vacuum, but into an atmosphere where there is already active hostility to those who hold a traditional view of marriage. There is a very active lobby that would seek to take to court, or bring pressure upon, employers in that respect: that is a fact of life.
My noble friend says that we cannot legislate against idiots—I think that that was her phrase—and, of course, we cannot do that. However, the problem is that if points are raised by individuals against employees or if employers act in a way of which we do not approve, that still raises fears and is still expensive for those who are the object of that.
My noble friend also said that some of those cases have been won. For example, Mr Adrian Smith won a contract action against his employers, thanks to some good legal advice. However, that was a Pyrrhic victory, given that he lost his job. As a result he had minimal compensation; so it is not quite as simple as the Minister has said. I hear her, though I am not wholly convinced by her assurances. In the circumstances, I think that it is appropriate to withdraw the proposed amendment.
Lord Anderson of Swansea
“Reasonable accommodation
(1) An employer has a duty to take such steps as are reasonably practical to accommodate an employee who has a conscientious belief that marriage is the union of one man to one woman for life to the exclusion of all others.
(2) The duty in subsection (1) applies where an employee would otherwise be required to act in a way which is contrary to their conscientious belief about marriage.
(3) For the purposes of subsection (1), an employee is as defined in section 230 of the Employment Rights Act 1996 but does not include a registrar, a superintendent registrar, the Registrar General or any person holding or exercising judicial office.
(4) This section is without prejudice to any rights which an employer has under Schedule 9 to the Equality Act 2010.”
Lord Anderson of Swansea
My Lords, this amendment is broadly in the same category as the previous ones and uses the phrase “reasonable accommodation”, which is well known in law. The purpose of this amendment is to protect employees from being compelled to act against their belief in traditional marriage, based on their conscientious objection.
For many centuries there has been a clear consensus throughout the United Kingdom, and indeed Europe and the Western world, that marriage is the union of one man and one woman. Until very recently—that is, until the galloping pace of the last year or two—that consensus went unchallenged. I assume that many doctoral students might find that an interesting example of pressure group activity.
Some have pointed to polls in an attempt to argue that there is now a consensus in support of same-sex marriage. The polls go in both directions, but at least we can conclude that there is a very substantial body of opinion—a very high proportion of the population—that remains in favour of traditional marriage. We therefore face the prospect of many of those people being unable in good conscience to embrace the new definition of marriage. How are we to respond to them? Freedom of speech is vital to everyone who subscribes to a traditional view, or where employment involves people being connected or intimately involved with marriage ceremonies.
I give the current Government credit for that. They have gone some way in an attempt to protect faith groups that are persuaded that marriage can only be between a man and a woman. In committee, the Minister emphasised that specific protections are in place to,
“ensure that religious organisations and their representatives who do not want to participate in same-sex marriage ceremonies cannot be compelled to do so”.—[Official Report, 17/6/13; col. 73.]
That was further elaborated today. The Minister added that,
“there are circumstances in which individuals need strong and effective protection in order for religious freedom to be safeguarded”.—[Official Report, 17/6/13; col. 74.]
Amen to that. However, with the exception of faith representatives who do not wish to solemnise same-sex marriages, the Bill currently contains no protection for other individuals; that is, individuals outside the ambit of the faith organisations. Therefore, for example, while a priest, minister, rabbi or imam is free to say that he does not believe in same-sex marriage and wants nothing to do with the ceremony, the Bill provides no protection at all for the chauffeur, seamstress, printer, photographer, caterer or marriage counsellor who may be no less committed to the principle of traditional marriage. Obviously, the normal legal principles would have to prevail—that is, that the relationship should not be too remote. This amendment therefore is based on the premise that not only church and faith leaders require strong and effective protection. In addition, a whole host of ordinary people will face crises of conscience. It is the job of this House and Parliament to protect minorities—sometimes difficult minorities, in my judgment.
Lord Lester of Herne Hill
My Lords, in my judgment this amendment suffers from the following problems among others. First, it imposes completely unnecessary burdens on employers; secondly, the burdens it imposes are unworkable; and, thirdly, it is discriminatory.
Lord Deben
My Lords, we have complained about many people suing, but this is an absolute opening for anybody to sue. I find it incredibly peculiar to say that an employer should organise his business so that somebody who objects to same-sex marriages could say that it was unreasonable to drive two people from one place to another. There is a limit to what can be reasonably considered a conscientious objection.
I voted for the case of registrars because I felt it was one end of the limit. I have to say that this really is ridiculous. It will open up the opportunity for people to sue the other way round on the basis of the most trivial issues. If a cook was able to say, “I am afraid that my petit fours cannot be used for the reception at a same-sex marriage”, we are making a laughing stock of the law. This is not just a bridge too far, it is a whole highway beyond where we should go.
Baroness Thornton
My Lords, the noble Lords, Lord Deben and Lord Lester, have put this very well indeed. I would add just one other matter. I find my noble friend’s view of the future rather depressing. I do not believe that people will argue and fight with each other about the existence of same-sex marriage. I simply do not believe that this is what will happen. Apart from the fact that in most cases this is a private matter between two people of the same sex or opposite sex, it is not the kind of issue that will raise the problems that my noble friend has suggested. I hope that, as the Bill moves forward in the next year, my noble friend will start to take a more optimistic view of it.
Baroness Stowell of Beeston
My Lords, I am grateful to all noble Lords who have contributed to this debate. I shall try to avoid repeating myself, because a lot of this amendment would lead me to do so. I will avoid doing that, if the noble Lord, Lord Anderson, will forgive me, and go directly to the central point of his amendment.
My first point is that an employer should have the right to ask his employees to do their job. Equally, he may not impose a requirement on them that would discriminate against them because of their religion or belief. Of course, it is open to private sector employers to make any adjustment they wish for their staff. It is quite possible, and perfectly lawful, for an employer to allow staff not to be involved in any activity that is objectionable to them—if the employer wishes. In this regard, private sector employers are not in the same position as public sector employers. As the noble Lord made clear, he does not include the likes of registrars in this debate in any case.
However, imposing a duty on employers to provide reasonable accommodation in respect of religion or belief would be a new concept in English law, as the noble Lord has already acknowledged, although he mentioned that it was common practice in the US. We would need to consider in detail how that duty would work in conjunction with the rules on indirect discrimination, and whether all other religious and philosophical beliefs should be equally protected—not just the belief that marriage should be of one man with one woman. That is not a task to be undertaken in this Bill, and I note the comments from my noble friends Lord Lester and Lord Deben about their view of this concept.
To pass this amendment would add a new burden on employers, who would have to work out what it means in their own particular context. It is probably worth pointing out that in his evidence to the Joint Committee on Human Rights, Robin Allen QC, on behalf of the Equality and Human Rights Commission, made clear that the existing legal protections contained within employment and equality law would be suitable to deal with any issues that may arise. He advised against including additional safeguards, such as a reasonable accommodation provision in this Bill.
So the current provision in legislation, which prohibits discrimination because of religion or belief, is fit for purpose. To impose a whole new duty of reasonable accommodation in this Bill is unnecessary. It could also be damaging to the balanced way in which the Equality Act operates, create uncertainty and add a new burden on employers who would have to make sense of it. I therefore ask the noble Lord to consider withdrawing his amendment.
Lord Anderson of Swansea
My Lords, if we truly believe in liberty of conscience, we can hardly be against an attempt to ensure that an employer seeks to accommodate, wherever reasonable, the views of an employee. I hear the noble Lord, Lord Deben, who tried to reduce to an absurdity the point that I was trying to make, but does he or does he not believe in the principle of seeking to accommodate, wherever practicable? Clearly, in many firms such an accommodation would not be practicable because of the number of individuals concerned but in the example of a car firm with perhaps 10 drivers, it is surely not unreasonable to ask an employer to ensure that the individual who has expressed such a view is not the one called upon to drive.
The noble Lord, Lord Lester, prayed in aid US precedence during a number of earlier debates on this matter. He quoted Brown v the Board of Education of Topeka. He or someone else mentioned Plessy v Ferguson, the separate but equal case in relation to the railroad. There were a number of other cases to the same effect but the noble Lord is less willing to quote US precedent when it does not happen to suit his purpose. Under the 1964 Civil Rights Act in the US, there is such a provision for reasonable accommodation. It has worked there successfully since that time and I have no reason to doubt that if we were to put such a measure into law today, it would work equally effectively in England and Wales and other common-law jurisdictions.
Lord Lester of Herne Hill
The Equality Act 2010 is the best civil rights legislation in the world and is vastly superior to United States civil rights legislation.
Lord Anderson of Swansea
The noble Lord cites US precedent when it happens to suit his case. He is less ready to cite it when it does not, such as when considering the effect of the Civil Rights Act. However, I hear what has been said. Clearly, the proof of the pudding will be in the eating. We shall see how the Bill will affect others but I still think it is not unreasonable to ask employers to seek such a reasonable accommodation, wherever practicable. However, this time, I beg leave to withdraw the amendment.
Lord Elton
“(3A) Regulations under subsections (1) and (2) shall in particular provide that the conversion of a civil partnership to a marriage shall take place in a registered building with open doors in the presence of two or more witnesses and in the presence of either—
(a) a registrar of the registration district in which the registered building is situated, or(b) an authorised person whose name and address have been certified in accordance with the regulations by the trustees or governing body of that registered building or of some other registered building in the same registration district.(3B) Where the conversion of a civil partnership to a marriage takes place in a registered building each of the parties to the civil partnership shall, in some part of the ceremony and in the presence of the witnesses and the registrar or authorised person, make the following declaration—
(none) “I do solemnly declare that I know not of any lawful impediment why I, AB, may not be joined in matrimony to CD.”and each of them shall say to the other—(none) “I call upon these persons here present to witness that I, AB, do take thee, CD, to be my lawful wedded wife (or husband)”.(3C) As an alternative to the declaration set out in subsection (3B) the persons contracting the marriage may make the requisite declaration either—
(a) by saying “I declare that I know of no legal reason why I (name) may not be joined in marriage to (name)”; or(b) by replying “I am” to the question put to them successively “Are you (name) free lawfully to marry (name)?”;and as an alternative to the words of contract set out in that subsection the persons to be married may say to each other “I () take you ( thee) () to be my wedded wife (husband)”.”
Lord Elton
My Lords, the lateness of the hour and my fatigue make it certain that I shall not take as much of your Lordships’ time as I should like to because I regard this as an important amendment. My intention is simply to strengthen the Bill, which may come as a surprise to noble Lords opposite who have the feeling that anything that comes from people like me is bound to be in some way sinister. How exaggerated are the head shakes that I see, but they are welcome none the less.
The Bill addresses an acknowledged evil. It is a rift in our society that needs to be mended. The tragedy is that the way in which it has been introduced has made it much harder to implement. However, that makes me keener for the Bill to do the job effectively. When the civil partnership legislation was introduced, it was generally understood that civil partnerships were to be taken as the equivalent of marriage and conferred equal status. However, that did not happen. The Bill needs to produce a status that is the equivalent of marriage. Given that it can be done no other way, some of us have reluctantly come to the view that the status must also be marriage.
The Lord Bishop of Chester
My Lords, I support the principle of the amendment. No doubt the detailed wording will be subject to criticism.
When civil partnerships were introduced, there was always an ambiguity. It was stated very strongly that it is not marriage and yet every provision on the statute book relating to marriage was trawled and reproduced in the Civil Partnership Act, which is a great big thick Act as a result. That ambiguity is what we are confronting at this point. Is a couple in a civil partnership almost essentially married? The language of marriage has been used in popular terms for civil partnerships in recent years—I acknowledge that—but we must remember that when the civil partnership legislation was put in place the view expressed was, “This is not marriage”.
Marriage is a commitment of two people to each other. That is the centre of the same-sex marriage Bill, but marriage is also a public and social institution. I am not suggesting that people around the Chamber who are in favour of the Bill deny that at all. As we go forward, measures that strengthen that sense of the social institution of marriage will be good for marriage in every sense. Vows that are essentially strong promises made between the couple are a vital part of creating that institution.
I have never been to a civil partnership; I have never been to a civil wedding. I have led a sheltered life, no doubt. However, the making of vows to one another in a personal way in the presence of representatives of the wider community is an essential part of the dynamic. When regulations for converting civil partnerships to marriage are drawn up, while we should not make any onerous requirements, I hope that we take matters seriously and reflect the social institution that must be at the heart of marriage.
Lord Alli
I understand the motivation behind the noble Lord, Lord Elton’s amendment, and I did not view it with huge suspicion. I understand that a conversion of civil partnership to a marriage should be marked by a ceremony to convey the solemnity of the occasion. I completely accept that. In other circumstances, I would be with him on this amendment, but I am afraid that the past is the past and the future is the future. We have to start the journey from where we are. Many same-sex couples will have already had big celebrations when they entered their civil partnerships. They will have had family and friends witness their civil partnerships, and they will have made vows and speeches. For them, I suspect, it was the nearest they probably thought they would get to a marriage and they would not wish to repeat that whole process. There will be others who simply went to the registry office and had a small civil partnership in the expectation that one day they would be able to marry. For them, this would provide the opportunity to recommit their vows in the way in which the noble Lord, Lord Elton, wants them to do. There may indeed be others who wish to wait until the right reverend Prelate, and his colleagues, sanction same-sex marriage, or even permit civil partnerships in their churches, mosques and temples.
I am afraid that I do not think it is up to us to place an unnecessary hurdle in the conversion of civil partnerships in the way in which the noble Lord suggests. There is a further point. We should remember that many of those ceremonies are for the young, and we should also respect the financial burdens that another ceremony might place on those who are just starting off in life. While it is a lovely idea, I do not believe that it is necessary or that in the end will help those in civil partnerships who want to convert their civil partnerships into weddings. I am sorry, as I wanted to agree with the noble Lord, Lord Elton, and I am sure that we will find a way of doing so in future. However, I cannot support the amendment, although I commend the sentiments behind it.
Baroness Cumberlege
My Lords, I support my noble friend on this one. I had a ray of hope when I heard the noble Lord, Lord Alli, start to speak. I thought that at last we would unite the House. My noble friend’s arguments are unassailable. It is absolutely right that we should be strengthening marriage, and this is a marvellous way to do it. I think of the weddings I have been to. I have been to a same-sex wedding, a pagan wedding, and what I consider to be normal weddings—Christian weddings. When I go to weddings the most moving part for me is when the vows are exchanged. There is always a hush in the town hall, church or the venue wherever it is taking place because people recognise that this is the very heart of the ceremony. It is the total commitment of two people to each other. I so agree with the right reverend Prelate that it is a public and social institution. It is something that you should make very public—what you are doing, why you are doing it and what you hope for the future. I am afraid I do not agree with any of the arguments of the noble Lord, Lord Alli. I think this is equity, fairness and what we should be doing.
Baroness Butler-Sloss
My Lords, I also agree with amendment of the noble Lord, Lord Elton. One point made by the noble Lord, Lord Alli, I thought was really quite unnecessary. One does not have to spend much money on a civil ceremony. I have a number of friends, indeed members of my own family, who have got married with just two witnesses. In one case, they asked two people from the street, would they go in and be the witnesses. That was the cheapest possible wedding one could have. I would also like to support marriage in the Bill, at the point which we have now reached. There is a danger of demoting marriage among those who are civil partners. That would be the worst of all worlds. That would be very sad indeed. We should be strengthening every sort of marriage. We have got to that stage. Therefore, the amendment of the noble Lord, Lord Elton, would be entirely appropriate.
Baroness Royall of Blaisdon
My Lords, I warmly welcome the fact that the noble Lord, Lord Elton, wants to strengthen the Bill. Like him, I am very much in favour of strengthening marriage, and celebrating marriage at every opportunity. Therefore, I certainly agree with the sentiment of the amendment. Public commitment, made in the presence of friends and family, is an expression of that commitment and of the seriousness of the union that the two people are entering into. However, couples choosing to convert their civil partnerships into marriage, which of course they will not have to do, will already have gone through a very similar process. It is not the same and not with the vows, which I think are extremely important, although not everybody would agree; but they have made a public commitment in the presence of a registrar and witnesses.
Many of the couples who have done that, as the noble Lord himself said, might have wished to marry, but at that time they were not able to so they went through the civil partnership. Like my noble friend Lord Alli, I think that couples should not be required to have a ceremony to convert their civil partnership into marriage. However, for those couples that wish to embark upon marriage then, of course, it is absolutely right and proper. I am sure that when the guidance comes out, when the Government publish whatever they are going to publish in relation to the conversion of civil partnerships into marriage, should a couple wish to exchange vows and marry they will be able to do so. It is just that not every couple will be required to do so. It is the difference between requiring and enabling a couple to do so. I am afraid I cannot agree with the amendment, but I am fully behind the sentiment.
Baroness Northover
My Lords, I thank all noble Lords who participated in this mini debate. I particularly thank my noble friend Lord Elton for concerning himself so positively in looking at the conversion from civil partnerships to marriage. I think that the right reverend Prelate may have invited himself to some civil partnership ceremonies now that he has mentioned that he has not yet had such an invitation.
We have previously debated Clause 9 in Committee and the nature of the process that will apply for couples in a civil partnership to convert that partnership to a marriage. I was very grateful to my noble friend Lord Elton for agreeing to withdraw a similar amendment to this in Committee on the basis that it was appropriate to await the Government’s response to the recommendations of the Delegated Powers and Regulatory Reform Committee. I hope that he is pleased with the Government’s decision, which I explained earlier this evening, to accept the Committee’s recommendation on Clause 9, so that the regulations under this clause would be made by the Secretary of State, rather than the Registrar General, and that the first such regulations would be subject to the affirmative procedure, and subsequent regulations subject to the negative procedure. Therefore, we will be debating this further.
Lord Elton
My Lords, my noble friend leaves me in a quandary. I think I am right in saying that the consultation will not bear fruit until after the Bill has passed through Parliament. If I can address the arguments that have been made, my feeling is that the noble and learned Baroness, Lady Butler-Sloss, dealt fairly effectively with the noble Lord, Lord Alli—or rather with his arguments, not necessarily with him. The costs can be minimal.
Too much has been made of the barrier. It is not a barrier: it is an escalator. It is something very easy to get on to that gets you where you want to be. That is what the Bill is for: to open up marriage to people who want it and who could not get it until now. If that is what we are committed to, we must have some means of doing it. We could leave it to the Secretary of State. I am glad that it will not be the Registrar General and I am glad that it will be subject to the affirmative procedure. But I think as a matter of principle that the vows should be the same in both instances.
I know what enormous irritation one goes home with if the Chief Whip has kept both sides in the House for so long and then there is no vote. All things considered, I would like to take the opinion of the House.
“(4A) For provision about limitations on the effects of subsections (1) and (2) and Schedule 3, see Part 7 of Schedule 4.”
Lord Wallace of Tankerness
My Lords, the amendment is a response to the concerns expressed by my noble and learned friend Lord Mackay of Clashfern that Clause 11 as drafted is potentially misleading and would benefit from further clarity. Clause 11(1) provides that marriage, in the law of England and Wales,
“has the same effect in relation to same sex couples as it has in relation to opposite sex couples”.
Under my noble and learned friend’s Amendment 33, which we debated in Committee, he argued that the clause will be clearer if it stated that the provision is subject to the later provisions—namely, the provisions in Schedules 3 and 4. Following the debate, my noble friend Lady Stowell and I considered carefully the points that my noble and learned friend made. They have been discussed with parliamentary counsel, and we have agreed that it would do no harm to provide a signpost to those provisions in Clause 11. That is what the amendment is intended to do, and I believe that it provides the clarity which my noble and learned friend sought. I hope that he is satisfied that we have sought to address his concerns, and I beg to move.
Lord Mackay of Clashfern
Yes, I certainly am. This is a correct elucidation of the situation and I am very grateful to the Government for accepting the point that something required to be done.
“(d) an order under section (Legislative definitions) (1)(d)”
Lord Armstrong of Ilminster
My Lords, I am in something of a dilemma, because Amendment 71 is consequential on Amendment 85, which is the substantive amendment, but it has been agreed between the usual channels that Amendment 85 will be for debate on Wednesday afternoon. If it is for the convenience of the House that we should not be too late—much too late—rising tonight, I will be content not to move Amendment 71 tonight but come back to it when we discuss Amendment 85. If Amendment 85 falls, Amendment 71 will not be required; if Amendment 85 is maintained, we will need an amendment of this kind either at Report or on Third Reading.
Baroness Butler-Sloss
“(2) In subsection (2)(a) after “that the respondent has committed adultery” insert “or a sexual act with a person of the same sex similar to adultery”.”
Baroness Butler-Sloss
My Lords, in Committee, I spoke to a similar but not identical amendment at midnight. Today, I start two or three minutes later. It makes me wonder whether it is a ploy of the government Front-Bench to make sure that I speak to an amendment on this subject after 9 pm. The noble Baroness, Lady Stowell, made that suggestion in Committee. In Committee, I spoke at some length, despite the hour, about the importance of trust between those who enter into matrimony, so today I shall be very brief. Trust can be destroyed if one spouse has a relationship outside marriage and breaks the concept of faithfulness. That extramarital relationship strikes at the root of the marriage bond and can be devastating. It seems to me that the behaviour of the erring spouse should be identified as adultery, as it is in the Matrimonial Causes Act. I do not see why the injured spouse should petition for unreasonable behaviour, which is a wholly different matrimonial offence.
I have made changes to the amendment to refer to a sexual act similar to adultery. I do not consider that it would be very difficult for judges to decide what the amendment means, but it is most unlikely that a judge will ever have to do so. There are almost no defended divorces today. A divorce is a very easy process when it is undefended.
This amendment will apply to existing marriages between opposite-sex couples where one spouse enters into a same-sex relationship outside their marriage, so it is broader than the marriages of same-sex couples and would right a broader wrong. Unlike the perception of many in this House that amendments today are in effect wrecking amendments, this amendment, like the previous amendment by the noble Lord, Lord Elton, is intended to be helpful. It is of a wholly different type and is intended to help faithful spouses to deal with this devastating blow to their marriage by treating it as a failure of fidelity, rather than a matter of what used to be called cruelty. I beg to move.
Lord Alli
The noble and learned Baroness will recall that I also spoke in Committee on her amendment. The issue we wrestled with then is the same that we are wrestling with now, which was that definition of adultery and the sexual act that defines it. I see that the noble and learned Baroness has said that a judge could interpret that but in every instance bar that of a lesbian relationship, we could find an accommodation. The issue of how you define adultery between two lesbians is something we have tackled over and over again from the Civil Partnership Act onwards. I do not believe that the noble and learned Baroness’s amendment deals with that. I have huge sympathy regarding the issue that she raises but I do not feel that the amendment is drawn in a way which will make it clear. Given that there are grounds of unreasonable behaviour, it is probably unnecessary.
Lord Pannick
My Lords, I, too, cannot support this amendment. Under existing law, if a married man has a sexual relationship with another man his wife cannot sue for divorce on the ground of adultery. She can sue for divorce on the ground of unreasonable behaviour, based on sexual infidelity. As I understand it, the Bill adopts the same approach in relation to same-sex marriage and sexual infidelity with another same-sex partner. This seems to be consistent with existing legal principle. It involves no detriment whatever to the other party to the marriage, who can obtain a divorce on the basis of unreasonable behaviour. I, too, am concerned about the uncertainty inherent in the noble and learned Baroness’s amendment. What is,
“a sexual act … similar to adultery”,
in the case of lesbians?
Lord Deben
My Lords, my mother was always rather diffident about what she referred to as “things down there” and I rather feel that the noble and learned Baroness has attempted to recreate my mother’s views in what she has tried to say here. I find it hard to believe that a definition of a sexual act similar to adultery is one which is precise enough, even for the most learned of Lords. I feel that it does not achieve anything. We have another way of dealing with these things and, if I may say so, a rather more all-embracing and less detailed way of doing so. I am not ashamed to understand that Ministers have discussed this and have come to the conclusion that none of them want to produce anything more precise than has been produced. I have sympathy with them; we all should have.
Lord Mackay of Clashfern
My Lords, some provisions which appear fairly late in the Sexual Offences Act would have sufficed as a definition, but there is a point to be made about the distinction between the grounds in same-sex marriage and those in opposite-sex marriage. Adultery is mentioned in particular in relation to unreasonable behaviour in opposite-sex marriage. This is an imbalance between the two, which are supposed to be absolutely the same. It seems an unnecessary difference and the noble and learned Baroness has put her finger on an important point so far as this is concerned.
Baroness Berridge
My Lords, I, too, wish to speak to this amendment. While the law retains adultery as a ground for divorce, I believe that it should be applied equally. I think that I am right in recalling that perhaps this could have been short-circuited, as I believe there remains on our statute books, although it is not in force, a whole provision in relation to no-fault divorce. However, until we are in the position where people do not use fault as a ground for divorce, it is my submission that it should be applied to all situations.
There is inequality here. It is as unjust to gay couples as it is to heterosexual couples, as neither of them can ask for divorce on the grounds of adultery with someone of the same sex. Although I appreciate any humour that we can inject into this debate, as my noble friend Lord Deben just did, this is a serious point. One has only to look at some of the support group websites that exist. The one that I have come across is for wives who subsequently discover that their husband is in a relationship with a man. The support group website that I looked at this evening talks about pain, loss, betrayal, confusion, loss of self-esteem and feelings of isolation. To be told that if your husband leaves you for another man it is just unreasonable behaviour, but if he were to leave you for another woman you could petition for divorce on the grounds of adultery, is, I believe, unjust.
Bizarrely, that means that the only couples in either of our marriages—heterosexual or same-sex—who are in a just situation are those to whom my noble and learned friend Lord Mackay referred: platonic friends who take advantage of this legislation. After all, as a sexual relationship was not the basis of their marriage, they cannot complain that adultery is not available to them. I think that we have left the law in not just a muddled state but an unjust one, and it is important to recognise that.
I accept that the noble Lord, Lord Pannick, says that this is the existing law, but if we are saying that culture is changing and we are changing the law on marriage, surely the same argument exists in relation to the grounds for divorce—that we must change. However difficult the definition of problems can be, there is a good case for saying that we have to change these grounds at the same time as we change marriage law.
Baroness Thornton
My Lords, I confess that I had trouble with the wording of this amendment, along the same sort of lines as the noble Lord, Lord Deben. It says,
“or a sexual act with a person of the same sex similar to adultery”.
I was wondering how similar and at what proximity, and whether you would want a judge to take that sort of decision. We can probably agree that the amendment does not serve even the purpose that the noble and learned Baroness wishes it to. We agree with the Government that it is unnecessary to replicate the requirement.
There have been several times in the course of today when noble Lords have referred to platonic relationships. Actually, there is no requirement to consummate a marriage; you can have a platonic marriage as a same-sex marriage or an opposite-sex marriage, so I am not quite sure what point noble Lords have been making there.
We also believe that it is unnecessary to legislate for dissolution on the grounds of adultery. It is sufficiently provided for, and I think that the Government got it right in consultation that the grounds of unreasonable behaviour exist. Indeed, since the commencement of the Civil Partnership Act in 2005, this has proved to be entirely unproblematic and I think we should just leave it as it is.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble and learned Baroness, Lady Butler-Sloss, for introducing her amendment and for ensuring that we are, again, post-watershed. I did not design it this way but, as someone who used to work at the BBC, I am always so much happier when I know that we are compliant with broadcasting regulations.
I will start by addressing one angle that underpins this amendment and the debate associated with it, and that is about fidelity. It was something to which my noble and learned friend Lord Mackay referred. I want to be absolutely clear that the Government recognise the importance that couples, whether opposite-sex or same-sex, attach to fidelity in their relationships. The seriousness and the intention of same-sex couples wishing to make a commitment to each other are no less serious than that of opposite-sex couples. There is no difference in the intensity of the commitment and fidelity is every bit as important for same-sex couples who wish to marry as it is for opposite-sex couples.
The provisions in the Bill do not, in any way, imply that fidelity will be less important in marriages of same-sex couples than it is in marriages of opposite-sex couples. It is important to make that point, not so much in relation to what the noble and learned Baroness said today, but certainly following up on the debate that we had in Committee, and the comments of my noble and learned friend Lord Mackay, lead me to make that clear.
It is important to remember that betrayal in close relationships can, unfortunately, take many forms. A partner can be unfaithful by sharing confidences and not necessarily by sharing a bed. I make that point because I think that the noble and learned Baroness, Lady Butler-Sloss, said in Committee, when she was moving her amendment, that for her the opposite of fidelity was adultery. However, I would argue that the opposite of fidelity is infidelity, and infidelity takes many forms; it is not necessarily about adultery via a sexual act. Her amendment, as we have heard, seeks to create a new fact for divorce to sit alongside the current fact of adultery in the Matrimonial Causes Act 1973. This new fact would apply to sexual activity, similar to adultery, of a married person with someone of the same sex outside the marriage, and it would apply to all marriages, whether of same-sex or opposite-sex couples.
The effect of this definition is not clear as we do not know what sexual acts would be covered by the amendment. That point was made by the noble Lord, Lord Pannick. It is worth reminding ourselves that the definition of adultery that exists in law now took decades to be defined through case law; it was not something that was established overnight. If we are to introduce something called “similar to adultery”, as the noble Lord, Lord Pannick, has said, this lack of clarity would mean that all married couples, whether same-sex or opposite-sex, would not be clear about the grounds on which they could obtain a divorce. Neither same-sex nor opposite-sex couples would benefit from the extended facts to constitute adultery inserted by this amendment.
The provisions of the Bill on adultery provide that the same long-standing definition of adultery, set out in case law, will apply to both opposite-sex and same-sex married couples. I would argue against what my noble friend Lady Berridge and others said, that actually the Bill creates some inequality by keeping the definition as it is. We are not introducing a new inequality; we are continuing as we are now.
Without getting too graphic, the definition of adultery is very specific and relates to a sexual act between a man and a woman which is not physically possible between two men or two women. That act has been established by case law over decades, and because of that, it is not something that can apply to relations between people of the same sex.
I was going to offer some explanation as to how the law on adultery works. Noble Lords have covered this very well in the contributions that have already been made, but if the House will indulge me, I think it is worth being specific about this because after we had the previous debate I talked to one of the policemen as I was leaving the building. He had been very amused by our debate that evening and seemed to think that off the back of it adultery would not necessarily apply any more and that people would not be able to divorce each other on those grounds. I explained to him how adultery works. As he found that so interesting, I thought I might do it for the benefit of noble Lords.
As the law stands, if I was married to George Clooney and he was to have a sexual affair with, say, the noble Baroness, Lady Thornton, that would be adultery. If I was married to George Clooney and Mr Clooney had sexual relations with the noble Lord, Lord Alli, that would not be adultery because he would not be able to do the sexual act which is very specifically defined in law. Should I wish to divorce Mr Clooney on those grounds, I would do so on the grounds of unreasonable behaviour. In future, if the noble Lord, Lord Alli, was to marry Mr Clooney, and Mr Clooney was to have an affair with me—and who would blame him in those circumstances?—that would be adultery and the noble Lord, Lord Alli, should he choose to, would be able to divorce Mr Clooney on those grounds. If the noble Lord, Lord Alli, were married to Mr Clooney and Mr Clooney had an affair with, say, my noble friend Lord Black of Brentwood—
Baroness Stowell of Beeston
That would not be adultery, but the noble Lord, Lord Alli, would be able to divorce Mr Clooney, should he choose to, on the grounds of unreasonable behaviour. The point I am making is that the arrangements relating to how adultery works will remain the same in the future as they are now.
When a marriage breaks down, it is a very serious matter and of huge regret. The number of divorces on the grounds of adultery is falling. The latest figures show that 18% of divorces are on the grounds of adultery. The figure has fallen quite rapidly over the past 10 years. Adultery is not the grounds on which most people seek to divorce one another. We hope that all marriages, whether they are between a couple of opposite sexes or the same sex will continue, and that they will be faithful and remain happy and contented. If that is not the case, we believe that the existing provisions are perfectly adequate for divorce to take place, and I therefore hope that the noble and learned Baroness will feel able to withdraw her amendment.
Baroness Butler-Sloss
I thank all noble Lords for their contributions, particularly the noble Baroness, Lady Berridge, who put very well indeed the points that I put previously and did not put today. The particular point she made was about injustice. As the noble and learned Lord, Lord Mackay of Clashfern, said, inequality comes from this Bill. That is perhaps the most important reason for raising it.
I say to the noble Lord, Lord Deben, that it is not a funny matter, whatever his mother might think. I am talking about a really serious issue, although it was very attractively put by the Minister in her excellent exposition of the existing law, which I could not fault. The fact is that everyone thinks it is rather funny. There is the policeman saying it is rather funny, but we are dealing with a truly serious matter. One of the causes of the breakdown of marriages is the way in which one of the spouses goes off and prefers another person, male or female, to the person to whom he or she is married. That is the basis of the reason that I raised it.
Despite what the Minister and the noble Lord, Lord Pannick, said, no one is ever going to challenge this. All these divorces are undefended. They all go through in three months because almost never is there a defended divorce. I would be astonished if there was a line of case law on this unless somebody took it up, although that is very unlikely.
However, the alternative, which the Minister might just take back, even to the Law Commission, is to ask: as marriage is now for everyone, is it appropriate that we have adultery at all? Would it perhaps be better to have an equality whereby adultery was removed, and all relationships, whatever they may be, were dealt with by irretrievable breakdown of marriage and unreasonable behaviour? However, if adultery is to remain, it remains an inequality and an injustice. Like other noble Lords, I have received the most heartrending letters by e-mail from women who describe how they have been treated by a man who has gone off with somebody—with another man. The purpose of this amendment was to broaden the issue beyond same-sex marriage to heterosexual marriages in which one partner goes away with another man or another woman.
However, it is perfectly obvious, at 12.25 am, on the last amendment of the evening, that I would not put noble Lords through the burden of having an ineffective vote which I could not win, so I beg leave to withdraw the amendment.