Love Matters (Archbishops’ Commission on Families and Households Report)

Baroness Butler-Sloss Excerpts

Friday 8th December 2023 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I am very sad not to continue with the suggestion of “Coronation Street”. I congratulate the Archbishop’s commission on its brave report. It is very welcome. It chimes with much work that I have done over many years. I found it very difficult, when looking through the report, to decide which of its many subjects to say something about today, but I shall pick up on children, building a fairer society and dysfunctional families. It is no wonder that I chose dysfunctional families, because I was a family judge, so nearly all my work has dealt with dysfunctional families or oligarchs hiding their money so they did not have to pay their wives.

In 1987-88 I chaired the Cleveland inquiry on child abuse. One of its recommendations was that the child is a person, not an object of concern. I add, having heard for years since then how so many children are treated, that children are absolutely not packages.

I am impressed by this report’s emphasis on children, particularly on listening to children and young people and taking seriously what they have to say. Unusually, perhaps, children used to come and see me in my room, and I found that quite young children gave me astonishingly accurate reports of what they were concerned about and how they thought I, as a judge, might be able to put it right. I have seen a great many videos made by child psychiatrists and social workers with children as young as five or six giving an entirely accurate account of what has happened. I have to say that many times I preferred to hear that from a six year-old than from a 15 year-old, who might well have an agenda.

I do not underestimate the information that children can give. It is crucial to listen to them and take them seriously. We should not necessarily agree with what they have said or do what they want, but we must give them a chance, as the report underlines, to play their part in what goes on. I add that it is important to recognise child trauma, and the lack of sufficient facilities to deal with it.

A few years ago I chaired the Commission on Religion and Belief in British Public life. Its report was called Living with Difference. I am interested in Love Matters recommending the building of a kinder, fairer and forgiving society, because in our report we suggested that

“It should be a high priority, not only for interfaith organisations but also for all religion and belief groups, educational institutions, public bodies and voluntary organisations, to promote opportunities for encounter and dialogue”,


particularly for young people and children. Again, we learned the importance of listening rather than talking to other people and of learning from what other people could teach us. That seems to chime with the report from the Archbishop’s commission.

It seems also to me that the Church of England can do even more to promote the inclusive discussions between the Abrahamic and the dharmic traditions. That seems the one part of the work done by the Church of England that may not be as fruitful as it could be.

I am very fortunate: I came from a stable family and was very lucky to be married for 64 years—to one person, I might add. I also had the tragedy of losing one of my three children. One of the important things that I would like to share with the House is the problems of dysfunctional families, some of which I will refer to briefly. There is a lack of legal aid in family disputes. This was, very sadly, identified when very recently a judge was attacked by a litigant in person, obviously overcome by the appalling trauma for him of the court case. We obviously need not only more legal aid but more counselling and mediation. We need help for families who are troubled.

I declare that I am chair of a commission on forced marriage, which has learned how most families love their children but that it does not necessarily mean that, objectively, they do the best for them. Parents’ view of love, honour and duty pushes some families into marrying a son or daughter without their consent to a person whom the family considers is appropriate for marriage and to join the family. This occurs, I must tell the House, well beyond south-east Asia and it happens throughout the United Kingdom. In some particularly sad cases, there is a gay son or lesbian daughter who is married, in a form of conversion therapy, to honour the family and with the parents loving that adult child. I hope that the excellent suggestions of the Archbishops’ report will help to solve some, at least, of these problems and that the Government will support its recommendations.

Reducing Parental Conflict

Baroness Butler-Sloss Excerpts

Thursday 20th July 2023 Lords Chamber

[Viscount Younger of Leckie (Con)]

Yes, and my noble friend makes an important point about the link with the MoJ, particularly its work in the family courts. We are watching with interest the progress of work on mediation between parents who are separating. I also endorse my noble friend’s point on wider integration. I would like to reassure the House that the Government are working closely with a focus on relationship dynamics. That is what it is all about. Evidence shows that conflict, which can be intense, frequent and poorly resolved, as we know, can really damage children’s mental health and their longer-term outcomes, including attainment and employment.

[Baroness Butler-Sloss (CB)]

My Lords, as a former family judge, I saw a great deal of this. To what extent are the Government able to help with the traumatic effect on so many of these children?

[Viscount Younger of Leckie (Con)]

I think I have already alluded to a number of points of help because, first of all, the reducing parental conflict programme sits within my department. We have the Supporting Families programme, which is moving into the DfE quite shortly, and we have the family hubs. On the noble and learned Baroness’s question, we are working across government on family-focused policies, and it is very important that we continue to do that to provide cohesive answers to these very challenging matters.

Children: Parental Separation

Baroness Butler-Sloss Excerpts

Wednesday 27th April 2016 Lords Chamber

[Baroness Sherlock]

My Lords, I am sorry. It is a declaration of interest. I apologise to the House. I should have declared a historic interest in that five years ago I was a board member of the Child Maintenance and Enforcement Commission. That is all I wanted to say.

[Baroness Butler-Sloss (CB)]

My Lords, it is obvious that children who are not informed about what is happening to their parents when they are separating do much less well than those who are kept in the loop. What will the Government do to make this one of the really important aspects? Parents must let their children know, even at an early age, what is actually happening and make them part of the decision-making, or at least give them an understanding of what the future is going to be.

[Baroness Altmann]

The noble and learned Baroness makes another good point. We have been trialling interventions with our innovation fund where we are using the voice of the child to make sure that we include children in the conflict situation. We are also working with the Ministry of Justice to make those interventions work.

Welfare Reform and Work Bill

Baroness Butler-Sloss Excerpts

Wednesday 27th January 2016 Lords Chamber

[Baroness Manzoor (LD)]

My Lords, we on these Benches have added our name to Amendments 36 to 38. We also support Amendment 40. The amendment is similar to the one that we put down in Committee when it was debated at great length. Noble Lords will be pleased to know that I do not intend to rehearse that contribution again today. Excellent reasons have already been given by the right reverend Prelate the Bishop of Portsmouth and the noble Baroness, Lady Sherlock, as to why exceptions should be made to the two-child limit on receipt of tax credits and the child element of universal credit.

I want to pose a few questions. For those who did not sit through Committee stage, I will read out the exemptions we seek. Under Amendment 38, we seek an exemption if,

“the claimant responsible for children in the household is a single claimant as a result of being bereaved of their partner”—

I ask the Government, where is the choice in that?—

“the claimant has fled their previous partner as a result of domestic abuse”—

where is the choice in that?—

“the child or qualifying young person has a disability”—

where is the choice in that?—

“the child or qualifying young person is in the household as a result of a kinship care arrangement, private fostering arrangement, or adoption”—

where is the choice in that?—

“or … the claimant was previously entitled to an award for the child or qualifying young person and has re-partnered creating a household with more than two children”.

Of course, there is a little bit of choice in that. It is love, which we can believe in or not, but sometimes we do not choose who we want to partner.

Effectively, these circumstances are beyond the control of the claimants. This amendment attempts to demonstrate that the first responsibility is to the child. It must be so, otherwise what kind of society are we really creating? I was, and I remain, particularly concerned that, despite the Government’s laudable commitment to exclude women who have had a child as a result of rape from the two-child limit policy, the Minister did not explain to my satisfaction how this exemption would operate. I will not go into that debate again. It is such a sensitive area. Perhaps he will explain today. Should this amendment be voted on, we on these Benches will wholeheartedly support it.

[Baroness Butler-Sloss (CB)]

My Lords, I have not taken part in the debate on this Bill before but I was chairman of the Select Committee on adoption. I have been very concerned by the Government’s concerns, which I share, that not sufficient children have been adopted. This is a current problem. We need more adopters. It seems utterly astonishing to have a situation where those who are prepared to take children out of care or take, perhaps, members of the family whom they then adopt when they already have children, will be penalised for doing something that is entirely in line with what the Government have said in their adoption policies.

It seems to me quite extraordinary that the Government do not exclude adoption and kinship care. The noble Baroness, Lady Sherlock, has set it out very much better than I could and in greater detail, so I do not want to reflect on it. As she said, it is very expensive to keep children in care. There are practical financial reasons for the Government to look at kinship care and at adoption. They use the Bill as an opportunity to deprive these families of a comparatively small amount of money, put against the cost to the taxpayer of keeping in care children who could otherwise be living in a family of which they are truly members. That is why I support Amendment 40 in particular, and Amendment 38.

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[The Minister of State, Department for Work and Pensions (Lord Freud) (Con)]

I thank the noble Baronesses, noble Lords and right reverend Prelates for their amendments, and all those who contributed to the debate. The amendments all relate to exemptions in certain circumstances from the policy which limits the child element in child tax credit and universal credit to a maximum of two children or qualifying young persons from 6 April 2017. I think we have gone through those exemptions so I will not go through them in the normal way but take them as read.

We have been clear since the summer Budget, when this policy was announced, that we will exempt a third or subsequent child or qualifying young person who is one of a multiple birth where there were previously fewer than two children in the household, and we will exempt a third or subsequent child born as a result of rape. These exemptions will be developed and brought forward in secondary legislation, as subsections of Clauses 11 and 12 permit. We believe that secondary legislation is the right approach for specifying exemptions, to allow for flexibility and engagement with stakeholders. It will be important to get the detail right and we have time to do that before bringing forward regulations for April 2017.

I recognise the deeply felt concern in this House, the other place and more widely about how this exemption will work—something the noble Baroness, Lady Manzoor, pinpointed just now. We all recognise that this is a difficult and sensitive issue and I would like to provide the House with further information. Clearly, we need to establish a way of making this assessment that is sympathetic and responsive to the claimant and timely in determining entitlement to benefit. Our intention is not to focus on or pre-empt criminal justice outcomes but to ensure that mothers receive the help they need at the time they need it, using clear criteria that are straightforward to apply and not overly intrusive, but which secure the system against fraud and error.

While we continue to look at the detail, our thinking is that a third party evidence model offers the most promising approach to striking the balance we need to achieve. This approach would not be new for the benefit system. For example, we use a third party evidence model in universal credit for the temporary relaxation of the requirement to be available for work in cases of domestic violence. The evidence required is the reporting of the abuse to a third party acting in an official capacity, such as a GP or social worker. This model was developed with input from stakeholders.

Of course, a significant amount of work is needed to take forward and develop the detail of the model. I also want development of the model to include working with stakeholders to help ensure that the process is as compassionate and supportive as possible for claimants in these circumstances, while providing the right assurance to government that the additional support is going to those for whom it is intended. We will be getting in touch with organisations with an interest in this policy shortly to seek their input, and I encourage any other stakeholders who would like to be a part of this to let me know. While there is a significant amount of work to do and detailed questions to be answered, I hope this helps reassure the House and stakeholders that we are thinking very carefully about how we respond to this difficult and sensitive issue.

We have been clear since the summer Budget that we will bring forward further exemptions for exceptional circumstances, and we will be doing that today. I am grateful to those who have suggested amendments and contributed to the debate. As a number of noble Lords pointed out, I have been talking to Peers on this matter. We have carefully considered those affected by this policy and the options available, while taking into account the fact that one of our objectives for universal credit is that it will be part of a simpler and workable welfare system that benefits everyone. I know that noble Lords will remember my muttering about adding carbuncles every now and then.

Regardless, I am pleased to announce today that in recognition of the important role which family and close friends can play in caring long term for children who are unable to live with their parents and could otherwise be at risk of entering the care system, we are in favour of an exemption for children in such circumstances. The noble and learned Baroness, Lady Butler-Sloss, and the noble Baronesses, Lady Sherlock, Lady Drake and Lady Armstrong, have made persuasive speeches on this issue not just today but in Committee—so it is worth putting the effort into those speeches. We recognise that in these cases such carers, often referred to as kinship carers, are not in the same position to make choices about the number of children in their family as other parents are. I am grateful that the noble Baroness, Lady Drake, is now taking my distinction there in a positive rather than a non-positive way.

As I have already mentioned, the Bill provides the necessary powers to make regulations to provide exemptions to this policy, and we intend to use regulations to provide for this exemption. In developing the regulations, we will need to ensure that we get the definition right to make sure that the exemption applies to the children to whom it is intended to apply. We will work with stakeholders in developing the regulations to deliver a solution which meets the needs of vulnerable children, while protecting the Government from the potential risk of fraud and error.

[Baroness Butler-Sloss]

If the Minister will forgive me for interrupting, I am having slight difficulty in understanding. I am delighted to hear about kinship carers but adopters are generally not family. One of the great points about adoption is that they come from outside, so the Minister’s suggestions to the House about kinship carers would not cover the majority of adopters.

[Lord Freud]

That is a timely intervention because I am now going to move on to the very eloquent arguments for exempting adopted children. We think that where a single child is being adopted, it would not be fair to treat the parents adopting more advantageously than other parents. However, where children need to be placed for adoption and have siblings in the same position—this was the example that the right reverend Prelate the Bishop of Durham used about one of his, I suspect, many friends—we recognise that it is often in the best interests of the children for them to be placed in their sibling group. Therefore, I am also able to announce that we are in favour of an exemption where there were previously fewer than two children in the household and the adoption of a sibling group causes the number of children to exceed two. Again, we intend to use regulations to provide for this exemption.

This is a good point at which to respond to the question of the noble Baroness, Lady Hollis, who on Monday night discussed guardian’s allowance—very eloquently, as usual. I am in a position to say that I will continue to explore that particular issue with her and whether it is possible to bring forward something at Third Reading.

In relation to disabled children, the Government are committed to making sure that disability benefits work for these families, so we will continue to support families with disabled children through the disability elements of child tax credit and the equivalent in universal credit. I must point out to the right reverend Prelate the Bishop of Portsmouth that the figure is not reduced in universal credit: the absolute figure reads across from the tax credit system into the universal credit system. That will be payable for all disabled children, even when they are a third or subsequent child, so support for families with disabled children will still be reflected in universal credit and tax credits following the introduction of Clauses 11 and 12. There is of course other support for disabled children within the DLA system to recognise the extra costs which, as noble Lords have pointed out, parents with disabled children need to carry. In addition, we are exempting disability benefits such as personal independence payment and disability living allowance from the uprating freeze.

Marriage (Same Sex Couples) Bill

Baroness Butler-Sloss Excerpts

Wednesday 10th July 2013 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I, too, support the amendment. I will make two points, picking up on what the noble and learned Lord, Lord Lloyd of Berwick, has said.

First, if both spouses are in agreement, consummation is not a necessary part of marriage. You can perfectly well have a platonic marriage throughout the entire period of that marriage. Consequently, that point goes. Secondly, the Government have opened the door. Okay, it was a deal done in the House of Commons, but the door is actually open under Clause 14, which states that:

“The Secretary of State must arrange … for the operation and future of the Civil Partnership Act 2004 in England and Wales to be reviewed, and … for a report on the outcome of the review”,

but that,

“Subsection (1) does not prevent the review from also dealing with other matters relating to civil partnership”.

That absolutely opens the door for the amendment that the noble Baroness has put forward. I find it very difficult to understand why it cannot at least be considered.

[Baroness Hooper]

My Lords, as an example of the category of person that the amendment is intended to cover, I support it.

Having lived for some 30 years in a shared household with my sister—a jointly owned home, with shared management and payment of household overheads, and the commitment of a happy family relationship, sharing everything but sex—it is therefore disappointing to find that the ties of blood and family love are less important than other bonds, and that the concept of equality does not cover this.

Sadly, my sister died three years ago so I gain nothing personally from this, but others can. I therefore fully support all that the noble Baroness has said in moving this amendment so clearly and helpfully, and I trust that your Lordships will give it very sympathetic consideration.

Marriage (Same Sex Couples) Bill

Baroness Butler-Sloss Excerpts

Monday 8th July 2013 Lords Chamber

[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.

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[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.

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Moved by

[Baroness Butler-Sloss]

75: Schedule 4, page 28, line 6, leave out sub-paragraph (2) and insert—
“(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.

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[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.

Amendment 75 withdrawn.

Marriage (Same Sex Couples) Bill

Baroness Butler-Sloss Excerpts

Monday 24th June 2013 Lords Chamber

[Baroness Gould of Potternewton]

My Lords, I put my name to these amendments, having initiated this debate at Second Reading, because I believe that the Bill is morally wrong. I appreciate that these are complex issues—the issue that we are discussing is particularly complex, as the noble Baroness, Lady Barker, illustrated—which are difficult to resolve, but the difference they can make to a transperson’s life cannot be underestimated. I illustrate this by referring to an e-mail I received after my speech at Second Reading. It was from a transperson who said that she cried tears of joy. I am sure that she was not crying tears of joy at my speech but at the fact that somebody had addressed an issue about which she felt so strongly and which was affecting her life. That is terribly important.

As the noble Baroness, Lady Barker, also said, the Bill identifies two anomalies which govern transpeople’s lives. The legislation provides for the removal of the requirement for married transpeople who wish to apply for gender recognition to be single at the point of gender recognition. Further, a concession has been made as regards spouses’ survivor pensions, which removes a further major concern for many transpeople.

The passing of this amendment would get rid of a third anomaly for transpeople in existing marriages. As it stands, the Bill removes the obligation on a transperson being in an existing marriage, although it does require a civil partnership to be converted to a marriage before application, as otherwise an opposite-sex civil partnership would be created. However, the Bill has now introduced the concept that the non-transitioning spouse must give formal consent. It adds the requirement that spouses now have to consent to the change of their partner. No other area in law—this is a change to the structure of law—requires spousal consent to any change within a marriage. There is no need for spousal consent to end a marriage, move abroad, financially destabilise the family, apply for distant jobs, or for medical treatment. Formal spousal consent that can veto a partner’s gender recognition is a new concept in law.

The assumption in marriage law is that spousal consent is assumed. If the spouse does not consent to the partner’s actions, the spouse has the opportunity to initiate divorce proceedings. What we have now certainly goes against the view of most spouses. It may have been objected to by some but until 2003-04 it was routine for gender identity clinics to require spousal consent for the treatment of married transpeople, until it was pointed out that this was potentially a breach of the transperson’s human rights. We have the same problem again here.

The amendment has been carefully crafted. Its value is that the determination of someone’s gender will be a matter for the individual concerned and the state. No other individual is involved. A spouse may choose to expedite the applicant’s full gender recognition by including a statutory declaration of consent. However, a spouse cannot prevent an applicant’s full gender recognition by more than a year by withholding that consent. That is important. They still have rights but they are limited. In respect of interim gender recognition certificates, the Gender Recognition Act currently allows the gender recognition panel to issue interim gender recognition certificates to those transpeople who were married or in civil partnerships at the point of application.

The amendment allows an applicant in an existing marriage or civil partnership to apply for an interim gender recognition certificate, which would allow annulment or divorce proceedings to commence if required. Further, it would allow an individual who has been granted an interim gender recognition certificate to change their gender under the Act, after a predetermined period has elapsed. The Bill makes no distinction between marriages where both spouses wish it to continue and marriages where divorce proceedings have commenced. Therefore, we seem to have created the ludicrous situation that in the absence of a decree absolute, the divorcing spouse will still be required to give consent to the transperson’s gender recognition, no matter how long it has taken to get to that point in the divorce. Marriages can break down when a transperson reveals themselves to be trans. There are many points at which either spouse may decide that the marriage can no longer continue, such as the point of revelation, when treatment commences, when the transperson goes public, the point of name change or when transformation surgery occurs. All these can result in acrimonious proceedings that can drift on for many years. Known cases have gone from 17 months to six years. The amendment would avoid that situation.

The requirement for spousal consent creates one further flashpoint for couples in what is already a difficult situation. The amendment overcomes that problem as spouses can no longer obstruct but only delay by a known timescale someone’s gender recognition. That is the crux of the amendment. All the objections raised in the Commons seem to have been satisfied. It is fair to both partners and does not disadvantage the spouse. Again, it is utterly wrong in principle to hand someone’s right of identity to someone else who may be hostile to that person. It is irrelevant whether it is a widespread problem or not. That argument should not be used when talking about justice and fairness for any individual. I trust that it will not be used as an explanation for opposing the amendment. I approached this amendment with some hope, and I have enormous respect for the way in which the Minister has responded to opposition to the Bill. She has listened and responded to many of the points raised. But, on this occasion, I feel that that listening has stopped. Many people, not only transpeople, will feel betrayed and discriminated against, and there will certainly be no tears of joy if this amendment is not accepted. It is discrimination in a Bill that is designed to do just the reverse.

When the Gender Recognition Act was passed in 2004, there was no mention of spousal consent. I would be grateful if the Minister could tell the House why this has suddenly emerged. Can she give evidence of spouses having requested a veto? I understand that some spouses have said that they want to be informed, but being informed is substantially different from consent. It would also be helpful to know the view of the gender recognition panel, because now there will be additional documentation for the panel to process, and that will certainly have financial implications.

The transperson potentially gains significantly by gender recognition and therefore may lose significantly by not being able to achieve it. The spouse loses nothing by their partner gaining gender recognition and gains nothing by withholding consent. Does the Minister not see that this is really to do with equity of rights? Leaving the Bill as it stands and without this amendment will mean that the Government are saying to the trans community, “Somehow or other, you seem to be second-class citizens”. It will establish a precedent which may be used elsewhere. I appeal to the Minister to rethink her opposition to this amendment because I am sure that the issue will not go away. It is a matter of principle, and if her opposition has anything to do with the wording of the amendment, we would be very happy to bring it back on Report with new wording.

[Baroness Butler-Sloss]

I, too, support these amendments. When I was a family judge, I tried a number of what for me were the saddest of all cases: where one spouse had entered into a transgender situation, particularly before the Gender Recognition Act brought justice to those people. However, that left the other spouse confused and distressed. I remember a particular case in which the wife sat at the back of the court in floods of tears when what was being discussed was how the father could become an auntie because he was in the process of changing his gender.

These are incredibly sad cases for both parties, but particularly for those who are left behind under the Gender Recognition Act. I agree totally with the noble Baroness, Lady Gould, that those who change their gender require fairness, proper human rights and recognition, but this House also needs to remember those who are left behind. However, in doing that, there is no point in retaining a marriage that cannot exist unless it exists in a new dimension.

The two points made to me by the noble Baroness, Lady Barker, shortly before the House sat today are extremely important. The first is that there should be a notification of the fact that the gender recognition spouse is making this application. I understand that the spouse who is left behind does not necessarily know that the application is being made. That is an injustice to that person, and it is one of the important elements in this group of amendments. The second point is this: if people cannot bring themselves to be married as a same-sex couple, as they will be able to in the future when this Bill becomes law, because the left-behind spouse cannot tolerate that, they really should not allow the marriage to continue indefinitely. It does not help either party that it should run on. The suggestion in this group of amendments—that there should be a cut-off point at six months, as there is in every other part of this—seems only just. People can then get on with bringing the marriage, which would by definition have failed, to an end. For these reasons, again, I support these amendments.

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[Baroness Stowell of Beeston]

Forgive me, but I think I am. I am saying that if someone wants to go ahead with gender reassignment and their spouse does not agree to remain married to them, then it is open to them to start annulment proceedings, as indeed it is to the spouse who no longer wishes to remain married to them. Both of them have the right to start an annulment proceeding, and the person who wishes to change their gender and receive a full certificate can do that. It is not about them being unable to change their gender. They have the right to do that, and nobody is stopping them doing that. However, if the person to whom they are married does not wish to remain married, sadly they have to make a choice. They have to decide, and it must be their choice. It is not a choice that the state can make for them.

This is an incredibly difficult situation, as has been made clear in the course of this debate. Fundamentally, it concerns the decision of two people about their future. Each person has equal rights in the future of their marriage, but they must decide for themselves. These amendments seek to institute a time limit after which the state decides for them. It is not for the state to decide who people should be married to.

[Baroness Butler-Sloss]

I would like to ask the Minister about notification. Clearly, nothing can happen until the interim certificate is provided. I understand that at the moment it is possible for the spouse not to know anything about the gender reassignment application. The sooner the other spouse knows about it the better, because mediation may be required. One does not want the parties to be in dispute, if possible. The shock to the person who finds that, for instance, her husband is no longer going to be her husband is enormous. The quicker she knows about it the better, in order to help finish the marriage decently and quietly. I understood the Minister to say that this could not be done because other proceedings had to come first. I am asking only for notification at the earliest possible stage that an application is being made. There can be nothing wrong with that, because it will do nothing other than make it certain that both spouses know what is going on.

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[Lord Lloyd of Berwick]

In the absence of the noble Baroness, Lady O’Cathain, I will speak very briefly in support of this humane amendment.

I imagine that we all can think of couples who fall into one or other of these two paragraphs. As regards family members, I remember a much loved bishop, a Bishop of Lewes. It was many years ago. I believed him to be a happily married man. It was only after he died that I discovered that the woman who I had believed to be his wife was his sister. I can conceive of no reason, as the noble Baroness, Lady Deech, has said, why those two should not have enjoyed the benefits of a civil partnership. The same applies to the unpaid carer. In our village there is a man who suffered a severe riding accident many years ago, as a result of which he is paralysed. He has been looked after with the utmost loyalty by the young man who previously looked after his horse. Once again, I can think of no reason why those two should not enjoy the benefits of being parties to a civil partnership.

It is clear to me that the amendment passed by this House nine years ago should have been accepted by the Government and by the Commons. We cannot do much about it in this Bill but we can at least open the door. I hope that we shall.

[Baroness Butler-Sloss]

My Lords, perhaps I may make two extremely short points. First, as the previous two speakers have said, the door is now open. It is very interesting that on previous Bills the suggestion was made that this was not the right place. However, of all places, a review of civil partnership actually opens the door for what this House very properly voted in favour of before I joined it. Secondly, the effect on the Government of the day—I appreciate that there have been two Governments of opposite views, who have gone the same way on this—would be to defer the inheritance tax and not necessarily to lose it. It would not necessarily cost the Government very much money in the end. I hope that this will be looked at with more sympathy than it has been in the past.

[Lord Cormack]

My Lords, I strongly support the amendment moved by the noble Baroness, Lady Deech. Indeed, it was the rejection of the sisters amendment that led me to vote against the Third Reading of the Civil Partnership Bill in another place. I thought it was discriminating and unfair to concentrate entirely on sexual relationships and not to recognise the sort of close relationship and affinity to which the noble Baroness has referred.

Nine years ago, we were told that it was inappropriate to put it in that Bill—and somebody interjects, sotto voce, that it was. Well, nine years have gone by and the commonly recognised discrimination, which has been recognised by the noble Lord, Lord Alli, and others, has not been put right. We have an opportunity in this Bill to put it right. Although I hope that we do not come to a Division in Committee on this, if we do not have a satisfactory answer from my noble and learned friend Lord Wallace, I hope that the noble Baroness, Lady Deech, and my noble friend Lady O’Cathain will consider retabling this or a similar amendment on Report—one on which we can vote.

Marriage (Same Sex Couples) Bill

Baroness Butler-Sloss Excerpts

Wednesday 19th June 2013 Lords Chamber

[Baroness Stowell of Beeston]

I am not in a position to offer to noble Lords today the kind of specific response that my noble friend has suggested.

[Baroness Butler-Sloss]

I have sat listening to this for an extremely long time. I do not have any views at all about whether humanists should have a marriage. I have heard very good reasons why they should and I have not heard any reasons why they should not. That seems to me quite an interesting point. No one has stood up and said there should not be a humanist marriage. Can the Minister at least say—and it is 7.45 pm—that she will take it away and have a look at it. Then she could come back on Report or before and say, “No, we are not going to do it”. She is not going to make any progress in the House at this moment with her arguments, because nobody is going to accept them if the Government do not go away and have another look at it.

[Baroness Stowell of Beeston]

Very briefly, before I finally sit down, of course everybody would support humanist marriages. The point is—please let me finish making this point—that it would require a change in law that would have implications that have not been fully thought through. That all said, having listening to the debate today, I will of course report back to my ministerial colleagues and ensure that they reflect further on the points made in this debate.

Marriage (Same Sex Couples) Bill

Baroness Butler-Sloss Excerpts

Wednesday 19th June 2013 Lords Chamber

[Baroness Farrington of Ribbleton]

My Lords, would the noble Lord, Lord Dear, please accept that he is referring to two separate issues? One is teaching religious education. Perhaps in some schools this is taught as fact by people who believe, particularly in church schools. As for the other, I do not know if other noble Lords have my experience of children, particularly grandchildren, asking people questions at the most inappropriate moments to get information.

Even if the noble Lord’s suggestion in the amendment was agreed, parents could say, “I do not wish my child to be in the classroom when X is being discussed”. However, then the child at the back of the class suddenly asks a question that the teacher has to answer. It is not formal sex education. “Where did I come from?” is the question that a child is most likely to ask at the checkout in the supermarket, rather than at the appropriate moment at home. Therefore, one cannot subdivide the process of education. Education goes on all the time. The teacher may be asked such questions in the classroom. It may be a scout leader who is asked—it could be anyone; it may occasionally be the grandmother. Then you have the problem of working out not only what you think but what the parents concerned would like you to say.

[Baroness Butler-Sloss]

My Lords, perhaps I may put in my 10 cents-worth on this. I entirely agree with the noble Lord, Lord Alli, that the teacher must teach what the law is. There is no doubt about it. I have the utmost sympathy with what the noble Baroness, Lady Farrington, has said. As I have said previously, it is the duty of teachers to support the child, whatever type of relationship the parents with whom they are living may have. I have happily granted adoption orders to same-sex couples. They are or can be excellent parents—as good as any other. I start from that basis.

However, I have a concern. It is really what the noble Baroness, Lady Farrington, said about being a grandparent. I am a grandparent and my grandchildren ask awkward questions but the concern is about when the question is asked of a teacher. The teacher is there, trying very hard to give a neutral account of what the present law of marriage is. Then a child asks an awkward question and the teacher answers honestly. It could be a question such as, “What do you think about it, miss?”, and the teacher says, “I have to say that I am a member of the Church of England and my view is that I do not believe in same-sex marriage”. The child goes off and tells the mother, and the mother comes and complains to the school because a member of that family is in a same-sex relationship. That is what worries me. It is the perception; it is the interpretation. It is that which has gone beyond the ordinary, perfectly proper teaching of the teacher. It is for that reason that what the noble Lord, Lord Dear, is asking for is a necessary protection for teachers.

I do not support the noble Lord’s second amendment. I think that children should learn everything. When I was a judge, I remember the father of a Roman Catholic family, who was very devout, telling me that I should make an order that in the Anglican school to which he had sent his children they should not attend religious education because it was Anglican education, not Roman Catholic. I basically told him to get lost and that if he had chosen to send the child to that school it was right that the child should learn what the school was teaching. Children should be learning everything and they will then distinguish between matters.

However, the first of the two amendments of the noble Lord, Lord Dear, should not be dismissed out of hand. There is a problem here that has to be recognised.

[Lord Alli]

I wonder whether the noble and learned Baroness has seen the Secretary of State’s Second Reading speech in the other place and what the Minister in the other place said. The Minister said that,

“no teacher is under any duty to promote or endorse a particular view of marriage, and neither would they be as a result of any revised guidance in the future”.—[Official Report, Commons, Marriage (Same Sex Couples Bill Committee, 28/2/13; col. 311.]

If a loophole exists—and I have said this to the noble Lord, Lord Dear—we should try to close it, but it seems to me that the loophole is not there.

[Baroness Butler-Sloss]

I very much hope that that is true. It may be that this is not necessary in primary legislation. However, there is a potential problem of perception and interpretation. There will be some teachers who will be at risk, perhaps in areas where they do not read what the Secretary of State said, or what the Minister said in Parliament, and have their own views and take the view that the teacher has gone outside what he or she should say, in having answered the question of the child, or whatever it may be. I raise the question, and my concern, in moderate terms. We ought not just dismiss this. That is the point I am making to the House.

[Baroness Farrington of Ribbleton]

My Lords, does the noble and learned Baroness accept that I have failed to convey the message of the much missed Lord Joseph? Good professional teachers will answer that question and will point out that parents, other teachers, local clergymen or whoever, may hold a totally different view. What is important is that the child knows about the range of views. That is the safeguard for the teacher.

[Baroness Butler-Sloss]

I do not want to keep getting up and down. I entirely agree with the noble Baroness, but since she asks me, it is not in fact what the teacher teaches in the class that worries me. It is what is said, probably to the head teacher, about what the child has said, what has gone home, and so on. Although I have never been a teacher I have had experience in different ways of what is said, and what is misunderstood, and the way in which teachers are placed in very difficult positions, when the head teacher has been given the information by a parent, by another teacher, or by somebody else. It is that perception—that interpretation —which worries me.

[Baroness Byford]

My Lords, I have waited patiently and tried about five times to get in, because this part of the Bill is enormously important. The noble Lord, Lord Alli, said quite rightly that if and when this becomes law, teachers will have to teach the law. How does he envisage the situation where a teacher is in a room, teaching the whole question of marriage as it has been known and accepted until now, alongside same-sex marriage, to children within the same class? That is asking a huge amount of teachers under pressurised circumstances. That is my first point; perhaps I may park that for a moment. I hope I can help a little bit more.

Secondly, I am grateful for the contribution of the noble Baroness, Lady Farrington. She and I share many things, and we disagree on many things, but I was very grateful for her input. I have real concerns, and I welcome Amendment 23 moved by the noble Lord, Lord Dear. He has given us instances of cases being heard at the moment. I am worried that there will be pressure put on teachers—they may find they do not get promotion or may find themselves in a difficult situation. We have been dealing with intricacies, and Amendment 23 deserves greater support than it has so far received. I do not find it objectionable. Proposed Section 60A states:

“This section applies to a maintained school”.

Will the noble Lord, Lord Dear, explain a little bit more about that? If somebody really does have a conscientious objection, they should not be jeopardised if they find it very difficult to do what the noble Lord, Lord Alli, wants them to do, within a lesson. All I would say is that it is not easy.

I am sorry that I could not be here on Monday or I would have participated in this debate earlier, but I have only been able to attend since late this afternoon. However, this is a hugely important part of the Bill and there are real and practical issues that need to be addressed. I do not think that what the noble Lord, Lord Alli, wants to do is something that I would want to do, so he knows where I stand. The questions of how we are going to take this forward and how it will work have not really been addressed at all.

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[The Duke of Montrose]

My Lords, my amendments are grouped with that of the noble Lord, Lord Alli. The reason is of course that if his amendment is carried, then the schedule to which my amendments attach will be removed. I thought that the noble Lord, Lord Alli, with his usual bold capacity for initiative, was going to tangle with the whole question of devolved legislation and what can be done between the Scottish Parliament and the English Parliament. In some ways he managed to work around that, although in fact he must recognise that certainly there are separate laws between Scotland and England. Various situations must be responded to according to the law in the country in which they occur. However, at this time of night I shall move rapidly on to my own amendments, rather than trying to unravel some of his proposals.

I found a number of Scottish lawyers with questions about the outcome of what the Government propose in Schedule 2. My amendments were prompted by the Law Society of Scotland, and basically address two issues. First, paragraph 1(1) of Schedule 2 states that:

“The Secretary of State may, by order, provide that, under the law of Scotland, a marriage of a same sex couple under the law of England and Wales is to be treated as a civil partnership”.

This would apply to all same-sex marriages. In some ways that is the point made by the noble Lord, Lord Alli: some people might feel that this is unjust, and there would be room for only limited exceptions for whom this was not agreeable. This would only be possible with a further counter-order from the Secretary of State under paragraph 2(b).

The other more fundamental issue concerns the doctrine of the separation of powers. The Civil Partnership Act 2004 passed legislation for the whole of the UK using the full process of Parliament. Schedule 2 gives the Secretary of State the power to make a ruling by order on private right and personal status. Determining how personal relationships are treated under law is properly a function of the judiciary, which has jurisdiction over matters of personal status. Here, we have the Executive taking over a function of the law. Amendment 28 asks to transfer this function of the Secretary of State to the Court of Session, which has the power to make declarations under current family law. Using the mechanism proposed in the amendment will give the court the advantage of ascertaining the facts in each case where the parties seek a declaration as a civil partnership, and bring in the element of individual choice.

If the Government wish to continue with the mechanism they propose, it would be helpful if they would answer three questions. First, what process will be used to produce orders under Schedule 2, and what safeguards will be put in place to address the issue of separation of powers? Secondly, what criteria will be applied to those orders which permit treatment of a same-sex marriage as a civil partnership? Thirdly, what remedies would aggrieved parties have?

[Baroness Butler-Sloss]

My Lords, I find this part of the Bill quite extraordinary. I have the greatest possible sympathy with the amendment of the noble Lord, Lord Alli, and indeed with that of the noble Duke, the Duke of Montrose. If one took the analogy of English law, a marriage which is celebrated in another country according to the law of that country is generally recognised in English family law. I have tried endless cases involving a dispute as to whether or not a marriage is valid in the country where it was carried out. There will be issues of whether or not the two parties were capable of marrying in that country, whether they are domiciled or resident in that country and so on.

However, if those particular points are dealt with, then it is a matter for English law to say whether we will recognise a marriage. Why are we legislating for what Scotland or Northern Ireland will do if in fact it is a perfectly lawful marriage in England and Wales? Is it not for Scotland or Northern Ireland to say, “Yes, we accept it”, or, “No, we do not”? I find it absolutely astonishing that we are dealing with this. As for the suggestion that a marriage lawfully carried out in England is to be called something completely different in Scotland and Northern Ireland, as I say, I find the whole thing quite astonishing.

[Baroness Thornton]

My Lords, Amendment 26A in the name of my noble friend Lord Alli would remove the special arrangements made in the Bill to require the legal recognition of marriages of same-sex couples as civil partnerships in Scotland and Northern Ireland. I sympathise with the sentiment behind these amendments. British same-sex couples who get married in England or Wales but choose to live in Scotland or Northern Ireland will not have their status legally recognised for what it is. However, it is the nature of devolution that we cannot impose the will of Westminster on devolved Administrations in areas where it has ceded authority.

Marriage law is devolved to both Northern Ireland and Scotland, meaning that any desire by Westminster to legislate in this area for the whole of the UK requires the consent of these Administrations. I know that Scotland is in the process of looking at same-sex marriages at the moment, so I hope that we shall shortly see same-sex marriage introduced in Scotland and therefore this issue will become somewhat less relevant.

In Northern Ireland, civil partnerships have been available since 2005. However, Northern Ireland has chosen not to consider extending marriage to same-sex couples at this time. A Motion calling on the Northern Ireland Executive to legislate to allow for same-sex marriage was narrowly defeated in its Assembly last month. I recognise my noble friend’s frustration at this. However, I ask the Minister, what are the implications if the legislative consent Motion is not agreed to by the Northern Ireland Assembly? Does it mean that married couples of the same sex living in Northern Ireland may be left in a worse position, having no legal recognition of their status whatever? What might be the implications for children and pensions? I am concerned about the legal implications of such a disparity of recognition and hope that the Minister will be able to answer the questions I have around this issue.

Couples in a civil partnership are prohibited from adopting children in Northern Ireland—a situation which is currently being challenged in the High Court. For those couples who have been married and adopted children in England and Wales and who move to Northern Ireland, what will be the status of their adopted children? Will the couple be recognised as the legal parents where they are living?

In relation to pension rights and accrued survivor benefits, if a married same-sex couple have been living in England for 10 years and then move to Northern Ireland, will they lose the right to those accrued benefits, or will they be carried over to their civil partnership status?

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[The Lord Bishop of Guildford]

My Lords, it is agreed on all sides that parents make the most fundamental contribution to the flourishing and development of children, and that there are many aspects of parenthood and many kinds of parenting in such a complex society as ours. There are many forms of being a family, as was illustrated earlier this evening by the example given by the noble Baroness, Lady Farrington, from her school.

We have a common-law presumption that a child born to a woman during her marriage is also the child of her husband. Paragraph 2 of Schedule 4 says that the common-law presumption does not apply in the case of a woman who is married to another woman—for obvious reasons. This is a probing amendment and the question is whether simply leaving matters there is sufficient. I argue that it is not because, in all the debates on the Bill here and in another place, and during the consultation process, there has not been enough concentration on children. Tonight, as briefly as I possibly can, I want to stress a more child-centred approach to the question of children in marriage—all kinds of marriages and especially same-sex marriages.

Currently and in future, in a marriage between a man and a woman any child born to the woman is presumed to be the child of her husband. As her husband, he bears a responsibility for that child, not least if something should happen to its mother. I am concerned that in the Bill there is no equivalent or automatic provision made for children brought up by a married couple of the same sex. If a woman in a same-sex marriage has a child, there is of course a biological father somewhere but, regardless of whether or not the father is in an ongoing relationship with the couple and their child, there is at present no responsibility on the mother’s spouse’s side for that child.

Helpfully, it has been suggested in the Explanatory Notes that the other party to a marriage will be treated as the child’s parent by virtue of amendments that the Bill is making to the Human Fertilisation and Embryology Act. These provide, under certain conditions, for the same-sex partner of a mother who gives birth to a child as a result of artificial insemination or the placing of an embryo in her womb to be treated as the parent of that child. I am sorry for this rather technical intervention at this point in the evening.

However, not all children born to mothers in a same-sex marriage will necessarily be born as a result of treatment to which the HFE Act applies. Such a child might be conceived in the conventional manner by a woman who is married to another woman. In such a case it would be possible for the mother to register the child’s father when she registers the birth, with the effect that he would have parental responsibility for the child. The complications of that are quite interesting. Alternatively, she might not do so and her same-sex spouse might become the adoptive parent of the child. If neither of these things were done, the child would have only one person with parental responsibility for it—this is the point.

There is thus a contrast with a child born to a mother in an opposite-sex marriage and there is a real possibility of children born to a mother in a same-sex marriage being disadvantaged as compared to children of opposite-sex marriages. This is not to say that children always have to have two parents—that is often sadly not possible. Moreover, sometimes a child brought up by a single parent or same-sex parents is actually better cared for than a child brought up by dysfunctional heterosexual parents. I give praise to couples who give love and care to children in same-sex partnerships and eventually in same-sex marriage. However, given the intention of the Bill to extend marriage and to provide equality, why should children of a same-sex marriage— some of them, at least—be at a potential disadvantage in some cases? This is a probing amendment and I ask the Government to consider this question very carefully indeed.

[Baroness Butler-Sloss]

My Lords, the noble Lord, Lord Northbourne, has asked me to speak on his behalf to Amendment 39A, which picks up exactly the same point as the right reverend Prelate’s. The noble Lord is not terribly happy with the wording that he has produced. It is, again, a probing amendment and it raises quite clearly the issue of parental responsibility. I am not sure that it is necessarily appropriate to delete paragraph 2 in Part 2 of Schedule 4 but the Government need to look at the point made by the right reverend Prelate that there will be children born to one partner in a same-sex marriage who will be the only person with parental responsibility although in every other way she and her partner will be married and, were they of opposite sexes, both would have parental responsibility. It is quite an important point. You might say, “Get a residence order”, but in the Children and Families Bill residence orders are going to be abolished. Consequently, I do not consider arrangements made for when parties are in dispute to be appropriate for those who are in harmony. Therefore, I ask the Minister to have a look at this question of how appropriate parental responsibility can be achieved for the female partner of a woman who gives birth during their marriage.

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Moved by

[Baroness Butler-Sloss]

40: Schedule 4, page 27, line 4, leave out paragraph 3

[Baroness Butler-Sloss]

My Lords, I will speak to Amendments 40 and 41. This is a sensitive issue and we are speaking, of course, at an extremely late stage. It is an issue that also produces embarrassment in some and humour among others of those who hear what is said. I am, however, entirely serious about this matter and I wish to present it to your Lordships even at this late stage.

My early practice at the Bar was against the background of defended divorces, and the matrimonial offence of adultery was treated very seriously. There were allegations of collusion and condonation to try to avoid a finding of adultery. The Matrimonial Causes Act 1973, which caused dramatic changes to divorce law, retained adultery in Section 1 as the first ground, together with irretrievable breakdown, and it remains the law today. Adultery may not be seen as such a serious matrimonial offence today as it was in earlier times, but that, in my view, is a mistaken approach.

Adultery remains a fundamental breach of the trust of those who make the commitment of marriage, and I have no doubt that there will be an equal commitment between same-sex couples, many of whom demonstrate long-term, stable relationships, so the behaviour of one party to a marriage who breaks the commitment to the other by engaging in a relationship with someone outside marriage strikes at the root of marriage and can be a devastating blow to the injured partner. The suggestion has been made that the injured person in a same-sex marriage could petition for unreasonable behaviour as an alternative ground for divorce, but that is not the answer. In current marriages, if one spouse commits adultery, that is the ground upon which the other spouse can pray in the divorce petition. It therefore demonstrates in family legislation the importance of both spouses remaining faithful to each other during the continuance of the marriage.

According to Part 2 of Schedule 4, following the Civil Partnership Act, the same-sex relationship excludes a ground for divorce available to those spouses who have an adulterous husband or wife. They have the opportunity, but the same-sex couple do not. This is inequality, both to erring husbands or wives, who can be sued for divorce on a ground that would not occur if same-sex partners were in the same position. However, more importantly, it is profoundly unjust to the partner who has suffered the trauma of the failure of the marriage through the sexual misbehaviour of an erring same-sex partner and the breach of the commitment of fidelity. Had I been a Member of this House during the passage of the Civil Partnership Bill, I would have made exactly the same point.

I consider it profoundly unsatisfactory and, more importantly, profoundly unjust that adultery is not a ground for same-sex divorce. It undermines the value of same-sex marriage. Why is this the case? I assume that it is because there has not so far been a definition of consummation of a sexual relationship other than between couples of the opposite sex. This is a failure to come to terms with more than one type of sexual relationship and a broader definition of the consummation of a relationship.

The criminal law includes the rape of a male as well as a female. It has been so ever since the Sexual Offences Act 1956. I will read just one sentence from the Sexual Offences Act 2003, from Section 1(1):

“A person … commits an offence if he intentionally penetrates the vagina, anus or mouth of another person … with his penis”.

That goes part of the way with same-sex marriages. Rape requires proof of consummation, and so far 12,000 men have been identified as victims of rape.

I cannot understand why there can be a definition of rape—a recognition of the sexual act of consummation required to prove rape in criminal law—but a seeming inability or reluctance by the previous or the present Government to give it the same recognition in the context of family law. The failure to find a definition of consummation in civil and family law works, as I have said, as a real injustice. It makes a mockery of the so-called equality that is the bedrock of this Bill. If marriage is to be equal for all those who get married, an embarrassed or ineffective approach to this inequality and brushing aside the matrimonial offence of adultery will not do.

Whether it is a religious or civil marriage, promises and commitments are made by one partner to the other in the marriage ceremony. Is the concept of being faithful to one another during marriage a promise to be kept by opposite-sex couples but not by same-sex couples? How can this be? For those not brave enough to recognise different forms of sexual activity, a possible alternative to a revised definition of adultery might be to describe the matrimonial offence as one similar to adultery.

Amendment 41, which looks at the inequality in the matrimonial law of voidable marriages in this Bill, raises the issue of non-consummation. In current nullity law there are two grounds of voidable marriages: inability and wilful refusal to consummate the marriage. A nullity suit on either of these grounds is nowadays unusual. However, the question of inequality and possible injustice arising from the difference in two types of marriage raises the same point as my comments on adultery. If this Government are, as they should be, strong enough to provide a revised definition of consummation and non-consummation, they should deal with voidable marriages as well as adultery. This is not a homophobic point. On the contrary; this is an injustice to innocent partners in a same-sex marriage, who do not have the same rights as innocent partners in an opposite-sex marriage and do not have the specific right to divorce a faithless same-sex partner. I beg to move.

[The Lord Bishop of Guildford]

Again, I support a probing amendment. I am concerned that marriages between people of the same sex should enshrine the same standard of fidelity as marriages of heterosexual couples. As it stands, the Bill does not quite deliver this. Indeed, the Bill enshrines a very important inequality in the way that the virtue of fidelity is manifested in relationships. Marriage between people of the opposite sex is partially defined by the fact that sexual infidelity—adultery—is a recognised and long-standing ground for divorce, as has been expounded very eloquently by the noble and learned Baroness, Lady Butler-Sloss. This is not found in the Bill.

Faithfulness is intrinsic to the promises a married couple make to one another. I feel very strongly that, as we go forward in our scrutiny of the Bill, this House must find some way of including that faithfulness equally for all married couples, if we are looking to something that has been described as equal marriage. On the grounds of equality that is an omission and in terms of the social significance of faithfulness, which is central to marriage, this omission diminishes the status that couples of the same sex stand to receive from being married. As the Bill stands, such same-sex marriages could be accused of being of a lesser standard in terms of faithfulness than heterosexual marriage unless this point is attended to.

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[Baroness Stowell of Beeston]

At least we are not going to be subject to an inquiry by Ofcom.

The effect of the amendment of the noble and learned Baroness would be that the question of how adultery and non-consummation would apply to same-sex marriages would have to be determined over time by case law. The Government believe that such an approach would leave the law uncertain in respect of divorce and nullity, and would not give people adequate protection. The noble and learned Baroness will know better than I that the definition of adultery has developed in case law over many years. In order for a definition to be determined for same-sex couples, it would have to go through a similar process. That would provide uncertainty for same-sex couples, which is not what any of us want.

The Bill provides greater clarity by confirming that only sexual intercourse with a member of the opposite sex outside marriage will constitute adultery for all couples, both opposite sex or same sex. The noble Lord, Lord Alli, rightly said that the Government had taken the approach, in designing all parts of the Bill, of trying to avoid disrupting existing marriage law as far as possible. This provision confirms that the current case law definition of adultery applies to the marriages of same-sex couples. I make it clear that at the moment, if a married man has an affair with another man, his wife would not be able to divorce him on the grounds of adultery. However, she would be able to cite unreasonable behaviour, so she would not be denied the right to divorce; only the grounds that she relied on would be different.

Equally, for same-sex married couples, sexual activity with a member of the same sex will support an application for divorce, since it will be open to someone in a same-sex marriage to cite unreasonable behaviour. This will not mean that same-sex couples have any reduced right to divorce or will suffer any delay in applying for it, because the same procedures apply to divorces on the grounds of adultery and those on the grounds of unreasonable behaviour. If a woman in a same-sex marriage has an affair with a man, her wife would still be able to apply for a divorce on the grounds of adultery. If she has sex with another woman outside the marriage, her wife could not seek a divorce on grounds of adultery but would do so on the grounds of unreasonable behaviour. That is what currently happens. As we know, it is not that unusual for someone in an opposite-sex marriage to have an affair outside the marriage with somebody of the same sex.

The noble and learned Baroness, Lady Butler-Sloss, and the right reverend Prelate argued that these provisions in the Bill mean that there is no requirement for same-sex married couples to be faithful, because adultery is not available to them in the way I have just talked about. The right reverend Prelate used a particular word that I cannot remember; I think he talked about “standards”. I think it is worth making the point that we need to avoid assuming that in order to be faithful people need to know they can divorce someone on the grounds of adultery. It is not the possibility of divorcing someone on the grounds of adultery that leads someone to be faithful to the person they are in a relationship with. What makes people faithful is far more complicated than that. The issues around fidelity, the reasons why people stay together, and their trust and commitment to each other are very complex. Even so, in terms of the law, marriage does not require the fidelity of couples. It is open to each couple to decide for themselves on the importance of fidelity within their own relationship. The law does not lay down requirements about the consensual sexual activity which should or should not take place for married couples.

Similarly, the Government believe that not applying provisions on non-consummation as a ground for the nullity of the marriage of a same-sex couple is the correct approach. There has been a lot of discussion of procreation, not so much tonight but certainly at earlier stages of our debates. Historically, consummation was linked to procreation, although now in law it is not. I want to make it clear that there is no requirement in law that a couple should consummate their marriage in order for it to be a valid marriage. We do not consider that there is a need to extend non-consummation as a ground for annulment to same-sex marriage. This also ensures that the law is clear for same-sex couples, as I already noted.

I think the point made by the noble Lord, Lord Alli, in response to the proposal of the noble and learned Baroness, Lady Butler-Sloss, to transfer the definition of penetration from that of an opposite-sex couple to that of a same-sex couple, but focusing only on men, serves to demonstrate that we have not addressed what penetration means for a lesbian couple. That is why, as I say, it would take a long time to develop this in case law in a meaningful way. The Government do not believe that the Bill’s approach to adultery and non-consummation for same-sex couples represents an inequality with opposite-sex couples. We believe the Bill makes appropriate provision for same-sex couples, while ensuring that the law for opposite-sex couples remains exactly as it is now.

However, I thank the noble and learned Baroness for bringing forward her amendments because, as she rightly says, this is a very sensitive topic. It is not one that people find easy to debate. I never thought I would stand at a Dispatch Box talking about these kinds of things. She serves the Committee well by raising this matter, but I hope I have been able at least to clarify that by not changing what now exists in law we are not actually creating an inequality. I think the desire of same-sex couples to have a successful relationship through marriage does not require the possibility of adultery for them to remain faithful to each other, if of course that is what they intended when they first married. I hope the noble and learned Baroness feels able to withdraw her amendments.

[Baroness Butler-Sloss]

I have perhaps found this topic rather easier to talk about, having been a divorce judge and indeed a judge who tried a lot of nullity suits. However, it is a sensitive subject, and I am very grateful to the Minister for the way in which she dealt with it, and to the noble Lord, Lord Alli. I said earlier that I recognised that looking at the issue of penetration was taking only it half way. I also threw out the potential olive branch of saying that you could call it something similar to adultery.

I remind noble Lords that for several thousand years adultery has been the opposite side of the coin to faithfulness for married couples. It has not been an issue only for Jews, Muslims and Christians; it has gone far wider than that. Those who do not believe in any religion do none the less see the importance of making a promise—it has to be a promise, whether explicit or implicit—that, if you marry, whatever your stable relationship is, during that period when it matters, you remain faithful to one another. After nearly 55 years of marriage, I see that as extremely important. However, I see it as equally important for the stable relationships of which I am well aware among those who—

[Baroness Stowell of Beeston]

I hope the noble and learned Baroness will forgive me for intervening very briefly. I absolutely understand the point that she makes and I do not want to give the impression that I do not take the issue of faithfulness seriously because I certainly do. However, it is important for me to make clear for the record that in the context of a civil ceremony it will be possible for those getting married to make promises and commitments in the form of words that they choose. We are not suggesting that we do not think this issue is important. However, we do not think that it is necessary to make provision for adultery in this measure. This is not about denying the importance of fidelity, which is clearly important when people first come together.

[Baroness Butler-Sloss]

I hear what the Minister says and of course I accept that she is saying on behalf of the Government that faithfulness in marriage of whichever sort is important. I do not for a moment disagree with that. However, there are two sides to the coin—faithfulness and adultery. As I say, for several thousand years adultery has been a ground for setting aside a partnership because of the way that one partner has behaved. To call it unreasonable behaviour, or cruelty in the old days, is not the same thing. I am sad that the Government are not prepared to tackle this because something akin to adultery could be achieved to put everybody who is involved in marriage in exactly the same position. Currently, with the Civil Partnership Act, and now this Marriage Bill going through the House, they will be in different positions. You cannot get away from that. I find that very sad, as, I know, does the right reverend Prelate. I will reflect very carefully on what the noble Baroness has said and, indeed, what the noble Baroness, Lady Thornton, has said about this, but I remain very unhappy about it. However, at this moment, I beg leave to withdraw the amendment.

Amendment 40 withdrawn.

Marriage (Same Sex Couples) Bill

Baroness Butler-Sloss Excerpts

Monday 17th June 2013 Lords Chamber

[Lord Lester of Herne Hill]

No, I will not, because I think all noble Lords in this Chamber regard marriage as the crowning of our relationships. As a man who has been married for 41 years, I certainly do, as do many gay people who are religious, or not religious but who regard marriage as the highest status they can aspire to. Therefore if you call it something less, such as civil partnership or civil union, it has a lesser status—not just a different status but a lesser one.

[Baroness Butler-Sloss]

Will the noble Lord at some stage address the amendment of the noble and learned Lord, Lord Mackay of Clashfern? It is difficult to believe that his proposal for “marriage (same-sex couples)” could import a lower standard, because it includes the word “marriage”.

[Lord Lester of Herne Hill]

I may not be able to do that because I still have to deal with these amendments, so I will reflect on that.

[Baroness Butler-Sloss]

It is in the same group of amendments.

[Lord Lester of Herne Hill]

I will do my best. As the noble Lord, Lord Elystan-Morgan, has said, concepts of marriage have not been static in England or elsewhere. During the past three centuries, Parliament has made changes to the status of marriage. What was once traditional and discriminatory is no longer enshrined in English marriage law. The Bill is a further step in removing unjustifiable discrimination, not against Catholics, Protestant dissenters or Jews, but against homosexuals.

I think my noble friend Lady Williams will concede that gay and lesbian couples are just as able as heterosexual couples to love each other in long, enduring relationships. They are just as able to bring up children in the way good parents do, in lifelong relationships. Some noble Lords will have personal experience of their children in gay and lesbian relationships doing precisely that.

Traditionally, the law governing the registration of marriages was piecemeal, restrictive and discriminatory, beginning with the Act of Uniformity 1662 and Lord Hardwicke’s Marriage Act 1753, which abolished common-law marriages. In the 19th century, Parliament created exceptions, one by one, to that discrimination. Most recently, exceptions were made under the Places of Worship Registration Act 1855, not only for Protestant and Jewish dissenters but for other denominations and bodies, theistic and non-theistic, including Buddhists, Jains and Muslims, whose premises are registered for religious worship and the solemnisation of marriages.

Under Scots law, as the noble and learned Lord, Lord Mackay, knows well, marriages by cohabitation and repute could be contracted in Scotland until as recently as 2006. They were still regarded as marriages, even though they were irregular. A traditional marriage could also include a marriage between first cousins, an arranged marriage or a strange thing called a levirate marriage.

Until the Civil Partnership Act 2004, loving gay and lesbian couples could not get legal recognition for their enduring relationship. Now, they may do so. The Act has worked very well, even though it was strongly opposed at the time. However, even though the Civil Partnership Act gives them equivalent rights and duties to those of married couples, it forbids them from marrying and the words “civil union” add nothing to the notion of civil partnership. That is why it is a lesser concept.

A year before the Civil Partnership Act became law, there was an important case—which many of your Lordships will have heard of—Goodridge v Department of Public Health, in which the chief justice of the Supreme Judicial Court of Massachusetts, Margaret Marshall, presided. That court upheld the right to gay and lesbian marriage, rejecting the argument that some of your Lordships have made today and elsewhere, that civil union or civil partnership was good enough. The chief justice explained why, on grounds of due process and equal protection, the state did not have a rational basis for denying same-sex couples marriage. A majority of that court agreed that same-sex couples must not be assigned second-class status, which is what I suggest would be accomplished if any of these amendments were accepted.

The other place has formed a similar view about the need for same-sex couples to marry, as have the Government. I know of no judgment of our courts or of the European Court of Justice that suggests the need for amendments of this character. They would suffer from the serious vice of encouraging a belief in a need for a second-class status for same-sex couples to be enshrined in English law. If the House divides now or hereafter, I will have to vote against any of them.

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[Lord Grenfell]

My Lords, I will be extremely brief. I am not sure whether I prefer the amendment set down by the noble Lords, Lord Hylton and Lord Cormack, or the one set down by the noble and learned Lord, Lord Mackay, but I believe that either of them would help bridge the divide. Therefore, I am generally in favour of both of them and would be happy with either.

The only point I want to make is to refer back to something that the noble Lord, Lord Carlile, said about children. I think that he rather oversimplified the matter. If a same-sex couple says to its children, “Yes, we are married”, and those children have had what I would call the benefit of religious education and say, “But we have been told that marriage is between a man and a woman”, this seems divisive and it would be very difficult to square the circle with them on that.

[Baroness Butler-Sloss]

My Lords, I, too, am a trustee of the Marriage Foundation, which I should say is totally neutral on this subject. In any case, I am speaking personally.

To pick up a point made by the noble Baroness, Lady Williams, about children, when I was a family judge I tried cases where I placed children with gay couples, male or female. I had the utmost confidence that those children would be extremely well brought up. Nothing that we are discussing today, or indeed in this Bill, leads me to believe that whatever a same-sex couple’s relationship is called would have anything to do with the excellent way in which very many children are brought up by lesbian and homosexual couples. That is my own personal experience, sitting as a judge.

I did not speak at Second Reading; I thought that 90 speakers were enough. Like others, I have received more than 100 letters which my secretary has so far replied to, and many more e-mails. It might interest the House to know that 98% were opposed to this Bill, but the 2% in favour were also extremely persuasive. Listening to the earlier speakers, it seems clear to me that the word “union” will not be treated by those seeking marriage as the equivalent of “marriage”, for the reasons that have already been given. Since it is clear that this Bill is going through, it is time for us to try to find the best way forward.

Those who support the Bill are—to use the colloquialism—hooked on the word “marriage”. That we have to accept, but the Government need to recognise the strength of feeling of those who are opposed to the use of the word “marriage” simpliciter as recognising the marriage of couples of the same sex. We must find a middle way. I strongly support the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern, because this House urgently needs to seek reconciliation and find a compromise, as the noble Lord, Lord Phillips of Sudbury, said earlier. Somehow we have to allow the word “marriage” and somehow we have to distinguish between different sorts of marriage.

As the noble and learned Lord, Lord Mackay of Clashfern, has pointed out—and I aim to say in later amendments to this Bill—this is a question of equality but it is not a question of uniformity. You cannot have uniformity in this Bill together with what you get in the marriage of opposite-sex couples. One only has to look at Part 4 of the Bill, as the noble and learned Lord, Lord Mackay of Clashfern, has done, to see that there are differences. There is nothing wrong with differences in equality. As the most reverend Primate the Archbishop of Canterbury said at Second Reading, there is a danger of equating equality and uniformity in this Bill.

I cannot see how Amendment 2 can be objectionable to people. The “marriage” word is used and those who are in any marriage are equal, but the amendment recognises that there are differences. You cannot say that marriage for same-sex couples has in any way a lower status than marriage for heterosexual couples has. For goodness’ sake, at the end of the day we are legislators, if I might respectfully remind the House, legislating for what people on the ground will actually be doing. As the noble Baroness, Lady Shackleton, pointed out, there are all sorts of marriages: those who wish to marry; those who are already married—I have to confess that I have been married for very nearly 55 years, and to the same man; and marriages for the second or third time. We have to recognise this, but we also have to recognise that there is a difference, and although the noble Baroness, Lady Noakes, talked about different sorts of marriage, the different sorts of marriage that she mentioned were actually between male and female, because in those days they could be nothing else; they were all male-female.

This amendment would be a compromise in an otherwise deeply divisive Bill. I have to say to those who have been talking about the children, particularly the noble Lord, Lord Carlile, that perhaps most important of all—

[Baroness Thornton]

I should like to ask the noble and learned Baroness a question. I have wanted to ask this of other members of your Lordships’ House who were speaking about the matter of calling a same-sex marriage a same-sex marriage rather than distinguishing it from what people are calling a traditional marriage. What is the noble and learned Baroness’s view about the fact that anyone who has a same-sex marriage would have to identify their sexuality by definition? Why should they have to do that?

[Baroness Butler-Sloss]

You have to recognise the truth of it. The most reverend Primate pointed out the importance of truth. It is different. We have to look at some stage, as the noble and learned Lord, Lord Mackay, pointed out, at how we deal with the children of a couple who cannot have their own children as a couple.

[Baroness Thornton]

I beg the noble and learned Baroness’s pardon, but in other parts of our legislation—in our equalities law—we protect people from having to declare their sexuality, because we think that that is the right thing to do. It is not a question of the truth or not the truth.

--- Later in debate ---

[Baroness Butler-Sloss]

The declaration of sexuality would be relevant only at the moment of marriage. It would not be relevant to everybody else who meets them or knows it. They will be married. Perhaps the most important point made by the noble Lord, Lord Carlile, was about children. If we have marriage and same-sex marriage, so far as the children are concerned, it is marriage. They will say, “My parents are married”. It seems to me that the noble and learned Lord, Lord Mackay of Clashfern—

[Lord Lester of Herne Hill]

I apologise to the noble and learned Baroness, but I never answered her question when I was on my feet. She asked what I thought of Amendment 2. What I do not understand, either in Amendment 2 or in the speeches in support of it, is why it is necessary. The Bill begins by saying in Clause 1(1):

“Marriage of same sex couples is lawful”.

Subsection (2) refers to:

“The marriage of a same sex couple”.

We do not need to have sarcastic remarks about Lewis Carroll and Humpty Dumpty. The words could not be clearer. I do not understand why one needs to add anything. The Bill is about the marriage of same-sex couples and nothing else.

[Baroness Butler-Sloss]

I am grateful to the noble Lord for being prepared to answer the question that I asked him some considerable time ago. The House needs to recognise the deep division that exists both in this House and in the country. From the quantity of e-mails and letters that I have received, I know that there are a number of people out there who are bitterly upset, bitterly distressed and angry at what has happened with this Bill. I support the noble and learned Lord, Lord Mackay of Clashfern, because the amendment is a compromise—it is an attempt at reconciliation. I do not support the word “union” for the very sensible reasons that have been given. I think that there has to be the word “marriage”—I am, with regret, converted to that now—but I believe that we have to seek a middle way. If we do not, there will be many people out there listening who will be even more upset than people in this House.

[Lord Mackay of Clashfern]

I should like to answer the question that was not put while I was speaking. The provisions in the Bill for same-sex and opposite-sex couples are different, and therefore it is only right that a distinction should be recognised in the Bill for that purpose. That would not make one any less lawful than the other or anything of that sort, but it would distinguish between the provisions that apply to same-sex couples and those that apply to opposite-sex couples. Nobody can deny that these provisions are different in the Bill.

So far as the noble Baroness, Lady Thornton, is concerned, there is no necessity to declare one’s sexuality in relation to same-sex marriage. As I pointed out at Second Reading—and I am sure that the noble Baroness listened carefully—there is no question of needing to be gay to engage in a same-sex marriage. Platonic relationships between people of the same sex would perfectly suit the Bill as it stands.

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[Lord Cormack]

My Lords, perhaps I may ask my noble friend a specific question, which has already been referred to by my noble friend Lady Cumberlege. A number of us received a letter from a clergyman of the Church of Scotland who, not in his official duties as a chaplain to the police but in, I believe, his blog, referred to his own personal belief in marriage as being the union of a man and a woman. He was subsequently dismissed from his post as a chaplain. What I want to know is this: are the provisions that the Government are putting forward in this Bill sufficient to prevent that sort of unseemly episode happening in the future?

[Baroness Butler-Sloss]

My Lords, when we are looking at a Bill which has the intention of increasing respect for and giving rights to a minority, it is equally important to look at another minority who will be unable, from their personal conviction, to accept the validity of the consequences of this Bill. The Equality Act has its defects. I strongly supported it, particularly all those elements in relation to gay rights, and I would do that again here. I would take that right to the stake because while I do not agree with marriage, I certainly agree with equal rights.

What I am concerned about—I expressed the same concern during the passage of the Equality Bill—is the right of other people who are in minorities to express a view that is unpopular with many other people, particularly with other minorities. We are now in a new dimension in that we are going to have same-sex marriage. Whatever it is called, it will be marriage. However, there will be people out there who cannot take it. This Bill should recognise that situation, and however great the Labour Opposition think their Equality Act is, it does not necessarily cover every aspect of what we are concerned with today; that is, those who cannot tolerate marriage for same-sex couples. Even if it may be partially covered by the Equality Act, it would be highly wise to have something in this Bill that covers this issue.

I agree with the noble Baroness, Lady Turner, that these amendments may not offer the right wording, but we are in Committee. Surely we could produce, by Report, something that provides some degree of support for other minority groups.

[Lord Anderson of Swansea]

My Lords, my noble friend Lady Thornton speaking from the Front Bench and my noble friend Lord Alli have argued, no doubt persuasively in their view, that the current protections are adequate: the Equality Act is in place. However, in my judgment that contention is belied, first, by the fact that a number of leading counsel take a contrary view and say that the protections are not adequate, and, secondly, by the fact of some of the cases, some of which have already been cited. We will come to the registrar later, as well as the chaplain to the police and other such cases. It would be helpful if we could have a response from the Minister that these cases would in fact have received protection under government Amendment 53 and any other protections which the Government may seek to provide.

My own starting point is clear: as a House, we should seek to protect minorities from what is, sometimes, the tyranny of the majority. We can refer to the wonderful literature on this, such as by Mill and de Tocqueville. I would recommend all colleagues to read and re-read what they say about the tyranny of the majority. Surely, part of our duty is to ensure—so far as we are able—that minorities are protected. In this case, we seek to protect and to give dignity and equal rights to a minority in our country. I would hope that those in this minority would also see the importance of giving protection to another minority—those who think highly of traditional marriage as defined.

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The Ross saga, and the indignity faced by that one individual who expressed his views, would have been less likely in England and Wales with Amendment 19. I urge the Minister, in replying, to say whether she is confident that the amendment that she will move adequately protects such people and that there will be no recurrence of such outrages in future.

[Baroness Butler-Sloss]

I will make a very brief response to the noble Lord, Lord Alli, who I think had possibly not finished speaking, to just elucidate what was meant by a minority. Once the Bill is law, I have no doubt that the majority will accept it. However, there will be a minority who will not accept it, and it is that minority that needs protection.

I have to say that I slightly resent that the noble Lord, Lord Alli, talked about a minority being a majority and the majority a minority. Within majorities, there are minorities, even of the same group. Some will accept it and others will not. It is the ones who will not accept it who actually need protection; much as the gay community has needed protection in the past but has not received it.

[Lord Singh of Wimbledon]

My Lords, I rise to speak to Amendment 19, which is in my name and is part of this group of amendments. In many ways, what I will say will mirror some of the things said by the noble Lord, Lord Anderson. The Equality Act 2010 is meant to protect against discrimination on the grounds of religion and belief. However, anyone who has read about the cases that have come to court will know that it has not always, to date, protected people with strong religious beliefs about marriage.

It is not easy to stand up for your beliefs against the might of arrogant and sometimes ignorant authority. It is not easy to risk your career prospects and your family’s livelihood. I know—I have been there. Lack of clarity in the law adds to the difficulty. Those with traditional views bringing discrimination claims under the religion or belief strand, usually after being mistreated for a long time, have found that their beliefs on sexual ethics were not covered. Amendment 19 would put beyond doubt that belief in traditional marriage falls under the religion or belief strand. It would not guarantee that every claim brought to court would succeed but would simply confirm that the belief is capable of being protected under the Equality Act.

Millions of people in this country passionately believe that marriage is an exclusive relationship between a man and a woman and cannot be anything else. Some believe this for religious reasons and others for non-religious reasons. Thankfully, we live in a democracy, where people are not forced to behave as if they believe something just because the law asserts it. We should all obey the laws of the land but we should also have the freedom to express our views about the fairness of those laws, particularly where they refer to dramatic social change.

When it comes to the issue of same-sex marriage, there is a real risk that people will be coerced to go along with the redefinition of marriage because there is a lack of respect and tolerance for diverse views on the matter. Other noble Lords have referred to the rather unfortunate moment in January when a draft speech issued by the office of the Deputy Prime Minister referred to people who disagreed with the Marriage (Same Sex Couples) Bill as “bigots”. He sought to make amends for the statement by saying:

“My views on this issue are no secret, but I respect the fact that some people feel differently to me about marriage”.

That was quite generous of him but it does not alter the fact that he refers to those who differed from him as bigots. The Deputy Prime Minister is not the only one to use such trenchant terms about those who oppose this legislation. Many of us have received similar abuse for defending traditional marriage.

The Government say in their fact sheet on the Bill that they are committed to freedom of speech and that they,

“have always been absolutely clear that being able to follow your faith openly is a vital freedom that we”—

the Government—

“will protect. Everyone is entitled to express their view about same-sex marriage, at work or elsewhere”.

That is a noble and good sentiment and one that we want carried into law and protected. Everyone should be entitled to hold and express their views about this important and sensitive issue without fear of punishment. We find strong support for traditional marriage among politicians of all stripes, lawyers, academics and workers from all walks of life in the private and public sectors. We find it among atheists and people of all religions, among heterosexuals and gay people. It would be sad if such opinions were muffled or silenced by a lack of clarity in the law. Not to respect and protect their ability to hold and express their beliefs about marriage would result in a tyrannical situation where there was only one acceptable view, with those with other views pushed out or mistreated. Public space must be left for those millions of people. There have already been many occasions when people who try to speak out publicly in support of traditional marriage suffer for it, even while the current law is still in place. We can be sure that unless measures are taken it will get worse if this Bill becomes law.