Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011

Debate between Baroness Butler-Sloss and Baroness Noakes

Thursday 15th December 2011 Lords Chamber

[Baroness Noakes]

My Lords, I was pleased to be able to add my name to the amendment tabled by the noble Lord, Lord Alli, in the Equality Act and I am equally pleased to be standing here today supporting my Government in bringing forward the regulations, which will complete what we started. I am proud of the journey that my party has made from opposition to civil partnerships to full acceptance of and delight in seeing these regulations taken forward. I do not understand why, but we have a free vote on these Benches. I do not believe that it is a matter of conscience. I believe, as has been said today, that it is legal interpretation of whether these regulations give effect to what we are clear that Parliament thought that we had to do. We have the luxury of a free vote, and that as it happens is a nice thing, but it means that we must use our free vote wisely or we must be clear that we are using it in the right way.

I do not believe that the majority of my party now opposes civil partnerships. We want to see an end to the discrimination against couples entering civil partnerships whereby they are prohibited from celebrating it on religious premises when the religious body wishes to take part in it. We should do the right thing today and end that discrimination and not take fright at some highly disputed legal argument, especially given the Minister’s undertaking that should there be a legal problem the Government will ultimately deal with it. I hope that my noble friends will join me in supporting the Government if it proves necessary.

[Baroness Butler-Sloss]

My Lords, I spoke in favour of the amendment tabled by the noble Lord, Lord Alli, and in principle I continue to support him. I also agree with the noble Baroness, Lady Noakes, that this is a question of legal interpretation and not an issue of conscience. I am a member of the Merits Committee. I read the two opinions that were sent to us that gave me some concern at the time. I was disposed initially to support the Motion of the noble Baroness, Lady O’Cathain, but since then I have read a considerable number of contradictory opinions. I am reminded of a quotation from The Rubaiyat of Omar Khayyam, which goes something like this:

“Myself when young did eagerly frequent

Doctor and Saint, and heard great argument

About it and about; but evermore

Came out by the same door where in I went”.

I can well understand why this Motion is being debated and why so many people are anxious about the effect of this legislation, and in the light of the legal disagreements about the effect of the regulations and the statutes. I have considerable sympathy with those concerns. I have now worked my way through all the opinions, the seven or eight that I have read, from distinguished lawyers, mainly Queen’s Counsel, and I have come to my own firm conclusions.

First, I do not think that this statutory instrument is well expressed. It has been described to me as sloppy, but it reproduces the protection given in the Equality Act, which puts of course into the Civil Partnership Act, as the noble and learned Lord, Lord Mackay, said. It has been suggested to me that including in Regulation 2B the words “nothing in this regulation or any other statutory enactment” would give adequate protection, but the enactment that might raise risk to religious premises is the Equality Act, not the regulation. As has already been said, this regulation cannot bind primary legislation, and an attempt to do so would be, as lawyers call it, ultra vires.

I am therefore satisfied that a better drafted statutory instrument would not deal with the problem that lies, if it lies at all, in the Equality Act, so my second point is that Sections 29 and 149 of the Equality Act are identified as potentially giving rise to litigation, but that the same Equality Act makes changes that give protection to those who choose to opt out. It gives protection in the Civil Partnership Act, but, my goodness me, it is actually in the Equality Act. Noble Lords have heard the words in Section 202(4) of the Equality Act that are inserted after Section 6(3) of the Civil Partnership Act.

It seems improbable to me that one part of this legislation, Section 202, gives protection to religious establishments and another part creates justiciable issues of discrimination and takes away that protection. Where there appears to be an inconsistency in different parts of the same Act, a court would seek to resolve them or construe the Act to prevent a result that would be absurd, irrational or illogical. One would also expect that a specific section in an Act would take precedence over a general section, particularly if the specific section comes later in the same Act.

The specific protection given in Section 202 of the Equality Act would, in my view, be relied upon in preference to the general anti-discriminatory provisions in Section 29, if they apply. Equally, looking at Section 149 and the duties of public authorities, the specific protection of Section 202 would, in my view, also apply if it can be shown that Section 149 applies in any event. I would therefore expect that each part of the Equality Act would be construed by a court in such a way as to make it compatible with another part of the same Act and that Section 202 would be accepted by a court so as to implement the important protection that it provides.

As we have already been told, the Church of England is satisfied with the proposed change in the law and the protection that it is given. Having listened with interest to the right reverend Prelate the Bishop of Blackburn, I would expect a Church of England priest to rely upon the decision, or the failure to give a decision, in favour of religious establishments and say that he or she cannot allow the church to be used.

The Equality and Human Rights Commission, which, as we all know, has a duty under the Equality Act to be an advocate for equality and human rights, is also satisfied that there is protection for religious establishments. I do not consider there to be a real doubt and prefer the speeches by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Pannick, to those by the right reverend Prelate the Bishop of Blackburn and the noble Lord, Lord Anderson.

I have now seen the helpful letter from the Minister saying that there would be a review if a problem arose as a result of some legal action. It would be even more helpful if the Minister were to say that there should in any event be a review, perhaps at the end of 12 months, to see what difficulties there are or may be, but I see no reason to annul this regulation, which is only carrying into effect the primary legislation put forward by the noble Lord, Lord Alli, and others, and I shall therefore support this regulation and vote against the Motion to Annul.