Marriage (Same Sex Couples) Bill

Baroness Cumberlege Excerpts

Monday 24th June 2013 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I should perhaps just leave this on the reply of the noble Baroness, Lady Farrington. Turning to the rights and responsibilities of carers, of course they play an invaluable role in our society, caring for people. No one disputes that. The Government strongly value the role and commitment of carers. Indeed, we set out our priorities in November 2010 in a cross-government strategy: Recognised, valued and supported: next steps for the Carers Strategy. The mandate to the NHS Commissioning Board also contains a clear objective on enhancing the quality of life of people with long-term conditions and their carers. Achieving this objective will mean that by 2015, the 5 million carers looking after friends and family members will routinely have access to information and advice about the available support. When it comes to financial support for carers, the Government have announced that carer’s allowance will continue to exist as a separate benefit outside of universal credit, so that carers will continue to enjoy the support of a dedicated benefit.

[Baroness Cumberlege]

My Lords, I thank the Minister for giving way. I was very intrigued by what he said about the Care Bill, which is now before the House in Committee. I appreciate my noble friend Lady Knight’s comment about how we get really fed up when we are told that it is not the appropriate Bill to propose a certain amendment. My noble and learned friend the Minister has said that the Government really appreciate the work of carers and we are grateful for it. However, if the Government are so committed to the work of carers, would it not be possible for the Government to bring forward their own amendment to the Care Bill?

[Lord Wallace of Tankerness]

That is the responsibility of a different department. I would be very brave to make that kind of commitment here without consulting, but I am sure that my noble friend’s words will be noted. The noble Lord, Lord Elystan-Morgan, made the point that he never liked the arguments about vehicles. I am not really trying to make that argument, because I have argued that there are in fact some very serious differences. The noble Baroness, Lady Hollis, also made the point that the issues being raised are really not appropriate for this Bill. They are relevant perhaps to a finance Bill rather than a partnership Bill, as they relate to the rules of inheritance tax or the terms of benefits.

As the noble Baroness knows, those arguments have been well rehearsed. I was not in your Lordships’ House nine years ago, but my noble friend Lady Northover has said in response to one or two of the comments that have been made, “Oh, I remember that point being made then”. The Government then sought to oppose proposals of this kind, and this Government share the view that civil partnership, as it then was and as it has evolved and developed over time, is not the appropriate place to open up these new, significant policy questions. The review is about civil partnerships. It would be inappropriate to open it up to look at unrelated issues of carers and family law, and particularly the question of tax and benefits. We have also indicated that we do not wish to delay or add to the cost and complexity of a review which the Government have committed to undertake as soon as possible in response to calls that were made in the other place. The other issues that are opened up are vast, as the noble Baroness, Lady Hollis, made clear. I therefore ask the noble Baroness, Lady Deech, to withdraw her amendment.

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[The Lord Bishop of Ripon and Leeds]

My Lords, this amendment is about education in church schools, mostly owned by the Church of England or the Roman Catholic Church, but also by some other denominations and in schools of faiths other than Christian. Before I describe what the amendment is intended to achieve, I need to explain why it is needed.

Clause 11(2) of this Bill makes wide-ranging changes to the law of England and Wales and its effect is explained in paragraph 55 of the Explanatory Notes. It states that Clause 11(2),

“ensures that the law of England and Wales, including all existing and new England and Wales legislation, is to be interpreted as applying, where marriage is concerned, equally to same sex and opposite sex couples”.

Together with Schedule 3, this sets out the equivalence of all marriages in law. That seems perfectly clear. For legal purposes, the meaning of marriage is changed, so that where an Act of Parliament refers to marriage, it will mean marriage of same-sex couples and of opposite-sex couples.

Section 403 of the Education Act 1996 places a duty on the Secretary of State to issue guidance designed to secure that when sex education is given, pupils,

“learn the nature of marriage and its importance for family life and the bringing up of children”.

Governing bodies and head teachers of maintained schools, including all church schools and academies, are required to have regard to the guidance when formulating their policies for sex education. After the Bill passes, that reference to marriage in Section 403 will, rightly, be read as a reference to marriage as redefined by the Bill. In other words, the nature of marriage to which Section 403 refers will mean the union of any two persons regardless of gender.

This Bill also recognises—indeed declares—in Clause 1(3) that the doctrine of the Church of England remains that marriage is,

“the union of one man with one woman”.

That is also the doctrine of the Roman Catholic Church, most other churches and most other major religions in this country. The trusts of Church of England schools require education to be given in accordance with the tenets of the Church of England. Schools that belong to other denominations are in an equivalent position. As a result of this, church schools are recognised for their distinctive Christian ethos and the impact this has on standards and all-round education.

So far as teaching about the legal nature of marriage is concerned, there is no problem. Church schools, like any other schools, can and must teach their pupils that Parliament has legislated so that, as Clause 1(1) of the Bill states:

“Marriage of same sex couples is lawful”.

As at present, homophobic bullying must have no place in church or any other schools. Discrimination on grounds of sexual orientation is usually expressly forbidden within a school’s code of conduct and that must remain the case. The Church of England’s established policy is that pupils should have the opportunity to examine the full range of views on same-sex relationships—including different Christian views—and develop their own considered position. Within that atmosphere of open discussion, church schools must nevertheless be in a position to teach the nature of marriage in a way that is in accordance with the tenets of the Church of England.

The distinctive Christian ethos of church schools will be undermined unless that position is accommodated. Exactly the same goes for schools that belong to other religious traditions. The purpose of this amendment is simply to achieve that accommodation. It does not seek an exemption. No one is asking for a provision that would enable schools to operate outside the framework that the Secretary of State’s guidance provides. What I seek is a provision which ensures that the guidance itself expressly recognises the need for schools that have a religious character to teach the nature of marriage in a way that is in accordance with that character.

The meat of the amendment is the new subsection (1CA). The meaning of the provision is quite straightforward. It would require the guidance itself to address this particular issue. It would require it to do so by accommodating the need for schools that have a religious character to teach in a way that is consistent with their religious ethos, while continuing to operate within the statutory framework. Unfortunately the amendment needs to be quite a bit longer than that, to provide definitions that link it to other existing statutory provisions. It also needs to deal with the position of academies in a slightly different way, because of the legal basis on which they are established. In substance, it would put academies that have a religious character in the same position in this regard as other church schools.

When introducing the Bill, the Minister said that she wished to make clear from the outset that this Bill was,

“not just about allowing same-sex couples to marry; it is also about protecting and promoting religious freedom”.—[Official Report, 3/6/13; col. 938.]

The Government have very largely delivered on this commitment. Teaching about marriage in schools that have a religious character is one of the few issues of that nature that remain outstanding. I therefore hope that the noble Baroness will respond positively to this amendment, which is concerned with the same principles of religious freedom that she outlined at Second Reading.

[Baroness Cumberlege]

My Lords, I have also put my name to this amendment. My interests are in the Lords’ register. I am also the chairman of trustees of Chailey Heritage Foundation and a governor of Lancing College, though both are non-maintained schools. I start by thanking the right reverend Prelate for his clear introduction. Noble Lords who are now well-versed in this Bill will know that the House has already debated concerns about its possible effects on teachers. I am very grateful to the noble Lord, Lord Dear, and my noble friends Lord Eden of Winton, Lord Elton and Lord Waddington, and others, for addressing those concerns, which are well argued and strongly felt.

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[Lord Lester of Herne Hill]

Can I ask the noble Baroness why she is not sufficiently reassured by the fact that the Education Act, like all other past and future legislation, must be read and given effect in accordance with freedom of religion and freedom of speech, as guaranteed by Articles 9 and 10 of the human rights convention? Reading those, and the case law on them, it seems to me quite clear that the schools and their teachers will be completely protected.

[Baroness Cumberlege]

My Lords, the reason is that without this amendment, the Bill changes those particular elements in those Acts. That is the advice that I have been given. I am very anxious that we ensure that these schools that have a religious designation are protected. I am not convinced that that is the case in the Bill as it stands, for the reasons that I have put before your Lordships.

I do not think that a Minister’s words in the House, however well meaning, stand the good test. They evaporate. We know that they are open to challenge, whereas amendments carried in the Bill, when it becomes an Act, are much less open to challenge. I urge my noble friend to have the welcomed assurances that she has given incorporated into the Bill.

[Baroness O'Loan]

My Lords, I support this amendment, to which I have put my name.

It has already been said that the purpose of this clause is very simple and narrow: to amend Section 403 of the Education Act in order to provide statutory protection for schools of religious character by creating an obligation that any guidance issued under the Act must provide for such schools to deliver education about marriage, its importance for family life and the bringing up of children, in accordance with the tenets of the relevant religion or religious denomination. The noble Lord, Lord Lester, asked why we could not just read the legislation in the context of the existing jurisprudence of the European court and be satisfied that everything was protected. The reality is that the jurisprudence of the European court in this context is quite complicated and there are a number of senior QCs who have provided advice to various organisations in connection with this legislation who do not share in totality the noble Lord’s views.

The reason that this amendment is necessary is that Section 403 imposes on schools a twofold duty. Pupils must,

“learn the nature of marriage”

and they must learn,

“its importance for family life and the bringing up of children”.

That is the law as it stands at the present time. Teachers in all schools must do what the law says. They must ensure that the children for whom they are responsible learn about the nature of marriage. That includes both the legal and the relational definition of marriage; that it is the union of one man and one woman for life to the exclusion of all others. In this situation, teachers will be teaching classes composed of children who, by virtue of circumstances, will sometimes have no experience of marriage or not of marriage in its traditional sense, but of other stable relationships or sometimes of relationships that are totally unstable. All those children must be sensitively provided for.

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[Baroness Cumberlege]

My Lords, a number of noble Lords have said that this amendment is not necessary. The noble Lord, Lord Pannick, very helpfully mentioned Section 403 of the Education Act 1996, which refers to sex education, and laid out for us subsection (1A)(a) and (b). He did not go on to subsection (1B), which says:

“In discharging their functions under subsection (1) governing bodies and head teachers must have regard to the Secretary of State’s guidance”.

Therefore we already have Secretary of State’s guidance in that Act.

The noble Baroness, Lady Farrington, said that she did not want us to go into great detail in this. However, if she refers again to proposed new subsection (2) in my Amendment 46B, she will see that it sets out very clearly what that guidance will be. That is very necessary. Of course, sex education has very much changed a lot of teaching in schools. However, we are talking about something that is now so fundamental: the nature of marriage and how it is such a foundation for society. If it is important to have the Secretary of State’s guidance for sex education, it is much more important to have it for marriage.

[Baroness Royall of Blaisdon]

My Lords, I am here as somebody who celebrates marriage and values the ethos of church schools, but I am also a very strong supporter of same-sex marriage. I have listened carefully to noble Lords’ concerns but I am not persuaded of the need for this amendment. Like the Secretary of State, I would not support a Bill that encroached on religious freedom or on freedom of speech, but this Bill does not do that.

I apologise for not having been here last Wednesday evening. However, of course I read Hansard, and many points similar to those made in the debate last week were made today about teachers. As was said on Wednesday it is clear that teachers will be under a legal duty to teach the fact of the law of the land—that yes, gay couples will be able to get married. However, those selfsame teachers in faith schools will also be able to express their personal views or those of their faith about marriage. Noble Lords have cited the present guidance, which is extremely well balanced.

I was very struck by a speech given by the right reverend Prelate the Bishop of Norwich in the Public Bill Committee on 12 February. I will quote a section of what he said:

“Our own view is that the promotion of marriage is part of sex and relationship education. What Church of England schools are good at doing, because the vast majority of them are community schools, is integrating the convictions of the Church of England with a recognition that the Christian opinions held in that school are not totally recognised within the whole of wider society … There is a balance to be struck, and I think that the Secretary of State for Education was right to say that in teaching there will need to be a recognition that we have a society in which same-sex marriages—assuming the Bill goes through—are possible, and of course the teacher would also indicate why it is that within the majority of Christian traditions such marriages are not celebrated”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 12/2/13; col. 26.]

That right reverend Prelate had it about right.

I noted, as did the noble Baroness, Lady O’Loan, that in the other place the Minister, Mr Hugh Robertson, undertook to take this issue away and discuss it further with religious groups. I very much look forward to hearing what he will have to say.