Assisted Suicide
Baroness Cumberlege Excerpts(10 years, 5 months ago)
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Lord Wallace of Tankerness
My Lords, it is important to make a distinction between clarifying the policy and changing the law. The role of the Director of Public Prosecutions is not to change the law—that is a matter for Parliament. However, the Supreme Court encouraged the Director of Public Prosecutions to consider the policy. They did not think that she should be required to review it but offered her encouragement to do so. Obviously, as it has been less than six hours since the judgment was delivered, I am not sure what the Director of Public Prosecutions will do. However, I fully expect that she will want to give careful consideration to what the justices said.
Baroness Cumberlege (Con)
My Lords, is my noble and learned friend aware that Keir Starmer, who was the DPP until just last year, told the Commission on Assisted Dying, chaired by the noble and learned Lord, Lord Falconer, that,
“the law works well in practice”?
In the light of that, does my noble and learned friend agree that there is nothing unusual about the way the law on assisted suicide works? We expect the law to be maintained in its integrity in order to protect all of us and for exceptional cases to be dealt with exceptionally.
Lord Wallace of Tankerness
My Lords, I do recall what the previous Director of Public Prosecutions said to the Commission on Assisted Dying; I think I referred to it when I responded to the debate of the noble Baroness, Lady Jay. The important point is that there is a code which sets out the evidential test which has to be met first and foremost, and then the public interest test. As the noble and learned Lord, Lord Hope, noted in the Purdy case, there will always be discretion for the Director of Public Prosecutions. Every case is different and it is important that individual cases are looked at, having proper regard to the individual circumstances.
Marriage (Same Sex Couples) Bill
Baroness Cumberlege Excerpts(11 years, 4 months ago)
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Baroness Cumberlege
“(6) Any duty of a person employed as a registrar of marriages on the date this Act comes into force (“relevant registrar”) to solemnize marriages is not extended by this Act to marriages of same sex couples if the relevant registrar has a conscientious objection to doing so.
(7) Nothing in subsection (6) shall affect the duty of a relevant registrar to carry out any other duties and responsibilities of his employment.
(8) The conscientious objection, under subsection (6), must be based on a sincerely held religious or other belief concerning only the marriage of same sex couples and in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.”
Baroness Cumberlege
My Lords, in Committee, I introduced an amendment that allowed civic registrars to exercise a right to conscientiously object to conducting same-sex marriages. Although there was some support for that amendment—in fact, there was quite a bit—I sensed there would be much more support for a transitional amendment that would protect only registrars in office now; they would be protected only once the Bill becomes law. These men and women are already in post and were, in effect, exempt when the law on civil partnerships was introduced in 2004. I am very grateful to the noble Lords who have put their names to this much narrower and more focused amendment, and to those who wished to put their names down. They were restricted by the fact that only four names are allowed.
We understand the nervousness about allowing future registrars to object conscientiously, but why not take those who are in office now? Without protection, those registrars will be faced with an impossible position: resign and face possible unemployment, given how difficult it is to find a job in today’s labour market; or stay and act against their conscience. The lack of protection is unfair and inconsistent with other areas of law, and it will unduly limit the freedom of thought, conscience and religion.
We need to be fair to all. We need to ensure that those who wish to can exercise a conscience clause and that those who want a same-sex marriage can marry. Nothing in the amendment would prevent couples of the same sex marrying. In the spirit of tolerance and respect, we have considered and dealt with almost every concern put to us in this House and the other place. The noble Baroness, Lady Thornton, asked whether a previous amendment would open the door to registrars conscientiously to object to other things, such as mixed-race marriages. That was never our intention, and this amendment makes it clear beyond doubt that registrars will be able to object conscientiously only to same-sex marriages. We have done so by making it absolutely clear in proposed new subsection (6) that the conscientious objection applies only to the solemnisation of marriages. That is reinforced by proposed new subsection (8), which states that the religious or other belief on which the conscientious objection must be sincerely held must concern only the marriage of same-sex couples. Any other conscientious objection to marriage will not be covered by our amendment, so it will not allow registrars to object to conducting marriages for any other reasons.
The noble Baroness, Lady Barker, seemed concerned about the scope of our previous amendment. She was under the impression that it would allow registrars conscientiously to object to more than the conducting of marriage. She was concerned that a registrar could, for example, sit in a register office at interview and refuse to assist any same-sex couple. Again, that is not what we intended. Therefore, our amendment has been revised to make it abundantly clear in proposed new subsection (6) that a registrar may conscientiously object only to conducting a same-sex marriage. Proposed new subsection (7) puts that beyond doubt by stating that any other activities will not be covered. Our amendment will not allow registrars to treat same-sex couples differently; it will merely allow them to refrain from solemnising their marriages.
I stress that our amendment is not unprecedented; it is nothing new. My noble friend, replying to the debate in Committee, attempted to draw a distinction between our conscience clause and others found in English law. I drew the attention of the House to numerous other cases, such as a doctor’s right to refuse to give contraceptive advice, a person’s right not to participate in work involving the treatment and development of human embryos, and the right of a Sikh not to wear a motor cycle helmet or a safety helmet.
Although the protection for teachers is not explicitly framed as a conscience clause, such as in our amendment, it operates like one nevertheless, because it also allows atheist teachers to refuse to conduct religious education without suffering any detriment. That operates at voluntary-aided faith schools and, interestingly, at non-faith schools. I am not saying that the registrar scenario is like that of a doctor not giving contraceptive advice or a teacher refusing to teach religious education.
Those conscience clauses and others—of which there are many—are all different, and they all allow a person to refrain from undertaking different activities. The difference did not prevent conscience clauses in those cases, so why does it in this case? What makes registrars so different as to warrant their forcible registration? Is the belief about marriage not as valuable as a belief about contraception? Is the belief about marriage not as worthy of protection as a teacher’s conscientious objection to teaching religious education? It is not, with the greatest respect, an answer to say that they perform a civil or a public function because doctors, medical professionals, teachers and so on, all of whom have the right to object conscientiously to some activities, also perform public functions for civil society. Not only is it therefore not fair to force all registrars currently in employment to conduct same-sex marriages if they conscientiously object to them, it is also unnecessary.
I am grateful to my noble friend for copying to noble Lords a letter from the chairman of the national panel for registration, but it takes us no further. Jacquie Bugeja, with whom I had a very interesting and long conversation, does not tell us in her letter, when referring to three consultation meetings, how many registrars attended each meeting. Only one or two registrars could have turned up, for all we know. Were the registrars who were not present asked for their opinion? For those who were, was there a general discussion or a confidential questionnaire? What was the format? In conversation, Jacquie could not tell me how many registrars were canvassed for their views. She said that it was left to local discretion within a local authority and that there was no follow-up by the panel.
We have not been able to find the minutes of the meeting of 2 June 2012. If there was no confidential questionnaire, registrars could have been reluctant to voice opinions. They could have risked disciplinary action being taken against them or being dismissed, as experienced by the unfortunate Miss Ladele. The second meeting was simply for 10 managers, whom we know are fearful that a conscience clause might cause them managerial inconvenience. Who attended the most recent regional meetings, held last month? Was it again just the managers, and how and where were those meetings held? What was the format and where are the minutes published for such an important issue?
The letter makes a series of unsupported statements, including that for the past 176 years registrars have been carrying out their duties and have never wanted a conscience clause. Of course they have not; they have never needed one. Local authorities up and down the country were able to accommodate their registrars’ conscientious objections. When an authority did not, it was taken to the European Court of Human Rights. The Joint Committee on Human Rights recognised the argument that registrars currently in office would not be free to hold to their beliefs if they were automatically designated as same-sex registrars. I welcome this conclusion and I urge noble Lords to support and accommodate the registrars currently in office. It is the right and the fair thing to do. In the spirit of tolerance and freedom of the individual, which is the hallmark of this House, let us together protect the registrars’ freedom of thought, conscience and religion. With this very modest but important amendment, we seek to do that. I beg to move.
Baroness Williams of Crosby
My Lords, I am a signatory to this amendment. I realise that the time is going by and I shall make my remarks in support of my noble friend Lady Cumberlege brief ones. Interestingly, there is a real dilemma here about both equality and liberty. Although the amendment is brief and limits itself to a modest request, it has considerably greater implications than may at first be realised.
A registrar is the first step towards a career in public life for a great many people. It is a job which they do for the community and one in which they reflect their community’s interests and concerns. It is a crucial step on the path towards the integration of different minorities, regardless of religion, language or earlier origin. It is therefore all the more important in communities where a large minority is present—let us say Muslims, or other religious groups—to make it possible for them to become registrars. To my regret, this amendment is limited quite deliberately to those already in office. I personally think that it would be better if it applied to anyone applying for this job, which, I repeat, in my view at least is the very first rung of a professional career in public life.
I shall take this one step further. There are some religions that, for deeply held principles, very strongly cannot accept the idea of single-sex marriage. That includes most of the Muslim faith and those who are supporters of Orthodox Jewry. It seems only right that registrars who hold those faiths, and who have done their job properly and intend to go on doing it well, should not be excluded from entry into that profession or, even worse, forced out of it when they have already been in it for several years and have performed satisfactorily. I can think of almost nothing crueller than to announce that after two or three years a registrar who has been behaving himself or herself in an upright and proper manner should be compelled to leave their job, often at a time when they have children and other responsibilities, because of this legislation. I cannot for the life of me believe that most people in this Chamber who believe in equality and human rights would want to see that happen.
Frankly, I do not understand why this relatively limited change could not be made easily to permit people to make this decision on conscientious grounds— for example, as my noble friend said, in cases of giving advice on contraception or taking part in abortion. This very limited right, linked to one particular thing, would allow their conscience to be exercised.
I have two important points to add on this. The numbers concerned would be relatively small. I have recently looked at the record following the passage of gay rights in Spain, and one is talking of a few score people every year. That means that any decent register office could easily, by dint of rotation or of acceptance, treat this rather in the way that they do, quite properly, in the case of a registrar or an assistant registrar who becomes pregnant, covering for them in their enforced absence. That happens to all of us virtually every day of the week in existing forms of employment. It happens to civil servants, lawyers, teachers and doctors, and there is no reason on earth why it could not happen to registrars.
I have to say to the Minister that I find this insistence on such people not being able to have a conscientious objection puzzling, given that we know in advance that certain religions will find this very hard to accept. On the kinds of grounds that my noble friend has already talked about, it would seem sensible to make this exception in such cases.
I believe that this is genuinely a conflict about equality and liberty. I personally believe very strongly that opening the doors of becoming a registrar to people of all races and religions of this country is an important tool in advancing the integration of our communities. I point particularly to those communities in the Pennines and other parts of the country where there may be a very substantial minority, or even sometimes a majority, of Muslim British citizens, and we should ensure that they, too, are treated in an absolutely equal way.
I strongly commend my noble friend’s amendment. I add one thing to what she said about attempting to discover the opinions of registrars. It is always a mistake to ask the opinions of managers about the views of the people they manage, unless you have a proper method of discovering what they are. Surely we know from the sad history of Mid Staffs that one of the things you should not do if you smell difficulties is to talk to the top management and assume that they truly reflect what the ordinary, everyday workforce thinks, because often they have a very strong in built desire to avoid any problems of managerial difficulty, which they always see as too big an obstacle. I strongly support my noble friend’s amendment.
Baroness Cumberlege
My Lords, I sense that the House will want me to be very quick, so I shall be. I thank all noble Lords who have taken part in this very interesting debate, albeit, I accept, on a very narrow subject. I particularly thank my noble friend Lady Williams for her powerful support for the amendment, and I thank my noble friend Lord Deben. The tenor of the amendment is about a bit of tolerance and generosity. This is the moment when perhaps we ought to be giving a little bit to some people who have a conscience clause.
I want to say something very briefly about marriage and about what the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Peston, said. To me, marriage is very important. I married when I was 17 and have to say that it was the best decision of my life. I love my husband to bits and he is great. I can remember every moment of that service. I even remember that the priest, very sadly, forgot to give me my passport. We were going on honeymoon and had to go back to collect it. Marriage is terribly important; we would not be having this Bill or these debates if people did not think it was very important. The people who conduct the marriage are equally important. I very much accept what my noble friend Lord Vinson said. If there is somebody who does not believe in it or who thinks that it is just something you have to go through, it is not the same as someone who really believes in it and wants to see a couple happily married and continuing in later life.
For those people who have a conscience clause, it is much fairer to the same-sex couples who are getting married to have somebody who believes in what they are doing and who rejoices with them in this very special event in their lives. I would love to go through all the arguments, but I will not do so. The managerial arguments are bogus because any good manager knows how to manage a workforce. There are women who inconveniently get pregnant and there are people who are ill, but you still have to manage your workforce, so I do not agree with some of those concerns.
It has been a very interesting debate. I am extremely disappointed by my colleagues on the Front Bench and my noble friends whom I hoped would give a little tonight. I hoped that we could have some accommodation in the spirit of generosity, but that is clearly not the case. Therefore, I want to test the opinion of the House.
Marriage (Same Sex Couples) Bill
Baroness Cumberlege Excerpts(11 years, 5 months ago)
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Lord Stoddart of Swindon
My Lords, like the noble Lord, Lord Anderson, I agree with the amendment in principle, and any defects can be rectified at a later stage. One reason why there should be a post-legislative review is that we did not have any pre-legislation. That is the great defect. In a Bill of this sort with such far-reaching consequences, there should have been pre-legislation so that all the possibilities could have been ironed out over quite a long period and then a Bill which had considered all the consequences could have been brought before Parliament. Indeed, perhaps there would have been time to put it to the people in the manifestos—or perhaps, this will be discussed later—by way of a referendum. That is one very good reason why we should have post-Bill scrutiny.
The other reason is that the Bill, although it is short, is so complicated and has such far-reaching consequences—unintended consequences—that we ought to be able to have a post-legislative review of it to see whether it is working well and, indeed, whether it should be improved. For that reason, as I said at the beginning, I support the amendment moved by the noble Lord, Lord Dear.
Baroness Cumberlege
My Lords, I, too, support the noble Lord, Lord Dear, on the principle of the amendment. The noble Lord, Lord Stoddart, is absolutely right that in this amendment we can make up for past omissions—things that should have happened but have not. I am conscious that, at this moment, the Mental Capacity Act is subject to post-legislative scrutiny, which has been very successful. We have the principle already and I am sure that we have done it with other Acts in the past. The National Health Service, about which I know a bit, is simply an organ of the state, of Parliament, and it is endlessly under scrutiny. At the moment, the Care Quality Commission is going through the wringer, as we know, because people are so concerned that the regulator is not doing the job that people hoped it would.
Having listened to what the noble Lord, Lord Dear, had to say about the different cases, I find it interesting that throughout this Committee stage noble Lords—the noble Lord, Lord Lester, in particular—have assured us that there is no problem with this Bill because we have safeguards in both European and national legislation. Yet we hear of these cases all the time and this is before the Bill has been enacted. At least one of the safeguards that we could have is the principle laid down by the noble Lord, Lord Dear, that we should have some post-legislative scrutiny.
Baroness Royall of Blaisdon
My Lords, in my view this amendment is absolutely unnecessary in the terms put forward by the noble Lord, Lord Dear. I think that the process that the noble Lord suggests is flawed and unnecessary. However, I am a great fan of post-legislative scrutiny and I know that the committee looking into the Mental Capacity Act is doing a splendid job. I think that every Act should be subject to pre-legislative and post-legislative scrutiny as a matter of course, so I would not be against post-legislative scrutiny, but I am utterly against the sort of judicial process that the noble Lord speaks of.
I say to my noble friend Lord Anderson that I find it slightly offensive that he talks of this Bill as a sort of laboratory experiment. I recognise that it brings about a profound change in our society—from my perspective, a very welcome change—but it is certainly not a laboratory experiment. I wish to put that on record.
I say to the noble Lord, Lord Dear, that his suggestion would be completely impractical. The first same-sex marriages will not take place until about a year after the Act has passed. A review in two years’ time would be completely mad. I have discussed this with the Minister and I think that there will be some standard post-implementation evaluation of the Bill, which will be very welcome, but that will rightly not take place for some time. I ask the noble Lord whether he looked at his own marriage one or two years after he entered wedded bliss. I suspect not. In same-sex marriages we tend to think about the seven-year itch, which is a long time after the two years that the noble Lord is talking about.
The thing that would interest me in 10 years’ time would be to go back to noble Lords who are currently against or have deep concerns about the Bill to see whether their views of same-sex marriage have changed. I would wager that the same acceptance that we now have on all Benches for civil partnerships—
Marriage (Same Sex Couples) Bill
Baroness Cumberlege Excerpts(11 years, 5 months ago)
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Baroness Cumberlege
Baroness Cumberlege
My Lords, I will also speak to Amendment 16. The Bill as drafted does not allow registrars to refuse to conduct civil same-sex marriages on the grounds that they have a conscientious objection to doing so. I am very grateful to the right reverend Prelate the Bishop of Leicester for putting his name to these amendments. Sadly, he is not here this evening but he is represented by the right reverend Prelate the Bishop of Hereford, who I am delighted to have supporting this clause. The proposed new clause in Amendment 16 will allow registrars to conscientiously object in limited circumstances. It will also ensure that all same-sex couples who wish to marry will be able to do so. There is only one reference to registrars in the Bill. It states that for the purposes of Clause 2(4)(b),
“‘person’ … does not include a registrar, a superintendent registrar or the Registrar General”.
This means that registrars will not be afforded the protection from compulsion that religious individuals have in relation to same-sex marriages in the religious context.
It is unclear to me why the drafters chose to mention registrars in a clause that deals only with marriages according to religious rites, termed relevant marriages within the clause, and not in a separate clause that deals with civil same-sex marriages. I find this particularly surprising given the recent decision of the European Court of Human Rights in Eweida and Others v United Kingdom. The noble Lord, Lord Anderson, mentioned it earlier. Miss Ladele was a registrar with a conscientious objection to performing civil partnerships. She was subjected to disciplinary proceedings because of her religious beliefs. Following the Ladele case, and, I have to say, the Government’s huge expense and the following media circus, one would have expected a more explicit reference to registrars in a clause dealing with registrars as a whole, not a small reference in a clause dedicated to marriages according to religious rites.
The absence of protection for registrars in the civil context contrasts markedly with the protection from compulsion that is given to the clergy or others within religious organisations. Why should the religious rights of the individual take precedence only in the context of religious marriages? Both the minister conducting the religious marriage and the registrar conducting the marriage in a register office carry out the same public function: both conduct legally recognised marriage ceremonies. Indeed, the Minister responsible for the Bill in the House of Commons said,
“Marriage is, in my view, a single institution that can be entered into either in a civil ceremony or in accordance with religious rites or usages”.—[Official Report, Commons, 26/2/13; col. 186.]
Our amendment and proposed new clause will permit all registrars, civil and religious, to exercise their right to freedom of conscience and religion while ensuring that same-sex couples are able to access civil or religious marriage ceremonies.
A conscientious objection clause such as the one we propose is not unprecedented. It will not have a detrimental effect on the Bill. Section 4 of the Abortion Act 1967, for example, allows for individuals with a conscientious objection to abstain from participating in abortions. Section 38 of the Human Fertilisation and Embryology Act 1990 allows any person to object to participation in the treatment and development of human embryos. Schedule 2(3) of the National Health Service regulations allows medical staff to refrain from providing contraceptive services—my noble friend Lord McColl knows more about this than I do. Under the Motor-Cycle Crash-Helmets (Religious Exemption) Act 1976, Sikhs do not have to wear helmets, while atheist teachers are not required to conduct collective services or to teach religious education.
These are just a few examples of conscientious objection clauses that already exist. The Government have provided no good reason for distinguishing between the individuals in those contexts and registrars in the same-sex marriage context. The Minister, in his response to the Public Bill Committee, said it is because “they are different”. That is not a satisfactory answer. Like registrars, all medical professionals and teachers provide a service and perform a public function. Why, then, should registrars be treated differently? Teachers perform different functions to medical professionals, and medical professionals perform a different function to research scientists experimenting with human embryos. Why does it matter that they are different? What justifies this difference in treatment?
Subsection (1) of our proposed new clause draws partly in its phrasing on the conscientious objection clause in the Abortion Act, as does the requirement in subsection (3) that the,
“objection must be based on a sincerely held religious or other belief”.
Subsection (4), also like the Abortion Act, places the,
“burden of proof … on the person claiming to rely on it”.
Therefore, only individuals with a genuine, sincerely held religious or other belief may refuse to conduct same-sex marriages, and only if they can prove that their refusal is based on genuinely held religious or other beliefs. That is not an easy test to satisfy.
A conscientious objection clause in this area would not be completely unprecedented, either. While the Civil Partnership Act 2004 does not have an explicit conscientious objection clause, it does not require all registrars to be designated civil partnership registrars. The legislation simply requires registration authorities to ensure that there is a sufficient number of civil partnership registrars for the area. Across the United Kingdom, registrars’ beliefs have been accommodated by local authorities, allowing those with sincerely held religious objections not to be designated as civil partnership registrars. By doing this, local authorities protect both the rights of same-sex couples and registrars.
Baroness Thornton
The noble Baroness keeps referring to the case of Miss Ladele but has failed to inform the House that that lady lost her case all the way up to the European Court. In other words, our equalities legislation was held to be true right up to the European Court.
Baroness Cumberlege
My Lords, my point was that it never needed to have come to court.
Our new clause would produce largely the same result as the Civil Partnership Act, because subsection (2) would not allow individuals to exercise a conscientious objection if doing so would result in same-sex couples being unable to access marriage ceremonies. If sufficient numbers of registrars are not available in any district, a registrar with a conscientious objection would come under a duty to conduct same-sex marriages. Therefore, no same-sex couple would be prevented from marrying by reason of this amendment. This tackles the Minister’s concern that religious individuals might apply for positions as registrars in order to conscientiously object and prevent same-sex couples getting married—although this is unlikely. Our new clause would prevent this, because the registration authority would be able to compel such individuals to conduct the marriages if another registrar is unable to do so.
Not only is our new clause practical and consistent with precedents set in this area, it is necessary. There are currently a number of registrars who wholeheartedly embrace civil partnerships but, by reason of their religious or other beliefs, do not believe that marriage should be extended to same-sex couples. There are also some registrars who, following the Civil Partnership Act, were accommodated by their local authorities and who believe that only opposite-sex couples can marry. Without this new clause there will inevitably be legal disputes in the future, which the Government surely wish to avoid.
During the Public Bill Committee, the honourable Member for Bristol West said:
“There is plenty of time, given that they work in local government, for them to think through the implications of Parliament changing this law and … to apply for redeployment elsewhere in the public service: in the library service, or somewhere else where they have to serve the customers fairly and equally”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 26/2/13; col. 226.]
In other words, tough luck: if registrars do not want to perform same-sex marriages, they should go and find employment elsewhere. That cannot be right. Why should a person who until now has perfectly performed all the functions asked of him or her be forced to resign over this crucial matter of conscience, especially given that such a function was never envisaged as part of their role when they were initially employed? It would be unfair to expect them to do so.
Baroness Thornton
Will the noble Baroness inform the House whether a proposed new clause would open the door to registrars conscientiously objecting to other things such as mixed-race marriages? Where would the noble Baroness draw the line?
Baroness Cumberlege
My Lords, this debate is about same-sex marriages. That is what I am addressing. Surely we should not force people into such an impossible position.
Baroness Thornton
It is a legitimate question. If the amendment were agreed, would the noble Baroness be opening the door to other conscientious objections—for example, to mixed-race marriages?
Baroness Cumberlege
My Lords, this Bill is not about mixed-race marriages but about same-sex marriages. That is what I am addressing.
Lord Martin of Springburn
Does the noble Baroness know of any religious faith that would object to a mixed-race marriage?
Baroness Cumberlege
No, my Lords, I do not know of any. I have just a little more to say before I finish. Our proposed new clause will promote rather than hinder tolerance, because individuals will be more likely to live in harmony, even if their thoughts and beliefs are entirely contradictory. Harmony, broad-mindedness and tolerance are more likely to be achieved if both those who do and those who do not believe that same-sex marriages should be available feel that their beliefs are equally valued and protected.
In conclusion, our proposed new clause strikes a sensible balance between the rights of those wishing to get married and the rights of those with conscientious objections to conducting same-sex marriages. It will allow individuals conscientiously to object only in certain limited circumstances. It will not allow anyone with a conscientious objection to communicate that objection to anyone wishing to get married at a register office. It will not allow any registrar to make their beliefs publicly known through their work. It will allow registrars quietly to refrain from conducting same-sex marriages only where there are enough other registrars to cover demand. Surely this is a better approach.
Earlier this evening, the noble and learned Baroness, Lady Butler-Sloss, talked about a middle way. I agree with her. This House encourages tolerance. Our amendment would protect the rights of individuals with conscientious objections, and also allow same-sex couples to get married. To me, that is the middle way. I urge the Minister—
Lord Alli
I have a question for the noble Baroness. If I understand her proposed new clause correctly, at the beginning there is a conscientious objection subsection. There is also an obligation on public authorities to provide registrars. The proposed clause then states that if there are not enough registrars in the area, the conscience exemption is dropped and the registrar will have to perform the marriage regardless. That is the worst of both worlds. There is the illusion of a conscience exemption, but if there are not enough registrars, the poor person about whom the noble Baroness spoke will have to perform the marriage in any case. Perhaps the noble Baroness will tell me if I got that right or whether she has a different interpretation.
Baroness Cumberlege
The noble Lord, Lord Alli, got it absolutely right. I will draw my remarks to a conclusion.
Lord Carlile of Berriew
I apologise for intervening at this late stage of my noble friend’s speech, but I would like to be clear about the consequences of what she is saying. Does she propose that a registrar who is opposed on conscientious grounds to divorce should have the right to refuse to marry people who are entering into a second marriage after divorce?
Baroness Cumberlege
No, my Lords, I am not going into divorce. I am trying to keep my proposed amendment quite narrow. I am trying to find a middle way, a way that allows registrars to have a conscientious objection because they are not bit parts in this exercise—they are intrinsic to it. I think they should have that right, just as doctors, teachers and everybody else that I have mentioned do. I also understand, having been in local government and knowing how registrars work, the issue of having to work out the workforce that is required to carry out these functions. I am saying that if a registrar is trying to exercise a conscience clause—the clause that we are here trying to give that person—but there is a shortage of registrars within that area, I am afraid that he or she would be compelled to do it.
The Lord Speaker (Baroness D'Souza)
My Lords, if this amendment is agreed to I cannot call Amendment 11A by reason of pre-emption.
Baroness Cumberlege
I live in a rural area and I looked into this. In rural areas particularly, registrars work in teams. It is like a team ministry in the church: a number of registrars serve several different registry offices. That is certainly what happens in my area.
Baroness Barker
None the less, I return to the point: the noble Baroness wishes to put in legislation the potential for some of our citizens to be treated as second-class. That, I am afraid, is not acceptable. In this House we sit and debate whether legislation should be introduced partially, in stages or whatever; we decide what the law is, what is fair and what all our citizens have the right to expect. Why should this be different?
Baroness Cumberlege
My Lords, I would like to start by thanking all noble Lords who have taken part in this debate. I would particularly like to thank the right reverend Prelate the Bishop of Hereford. I thought it was very interesting how he introduced the House of Lords and Commons Joint Committee on Human Rights and I would like to thank my noble friend Lady Berridge for also commenting on that, especially as she was part of that particular committee.
I want to be brief but I just want to raise the issue that the noble and learned Baroness, Lady Butler-Sloss, mentioned. I do not want to be ungracious. I think there really is a very, very difficult position in terms of transitional arrangements and I hope that the Government will choose to address that. I do not think that it goes far enough. Talk to a number of these registrars and they are very committed people who see themselves as having a vocation. To try and stop young people who want to enter into this field in the future would be a great disservice. I hope that in thinking about their careers in the future, we will introduce this conscience clause because I think it might be necessary in terms of recruitment.
The noble Lord, Lord Anderson, mentioned small numbers and practicalities and I thank him very much for his support. I endorse again what my noble and learned friend Lord Mackay of Clashfern said about the approach already adopted by sensible and tolerant local authorities which allow those who hold objections to be accommodated. We are asking that the same should apply in the case we are discussing. We are not asking for a change in that but that that situation should continue in the future.
I say to the noble Lord, Lord Alli, that we are not refusing any couple same-sex marriages. We are trying to accommodate them as well as looking after the interests of registrars, many of whom I know would benefit from a conscience clause. I say to the noble Lord, Lord Browne of Belmont, that it was very interesting to hear about teachers and the situations they face. I do not agree with my noble friend on the Front Bench about doctors. Many doctors, particularly surgeons, choose which operations they want to perform. Not only do they do that, but many doctors also have a right to refuse to give contraceptive advice, so I think there is a parallel issue there.
My noble friend Lord Elton wants a stronger definition of what constitutes acceptable grounds for conscientious objection. Proposed new subsection (4) of our Amendment 16 places the burden of proof of conscientious objection
“on the person claiming to rely on it”.
Therefore, only individuals with a genuine and
“sincerely held religious or other belief”
may refuse to conduct same-sex marriages, and may do so only if they can prove that their objection is based on genuinely held religious or other beliefs. That is not an easy test to satisfy but I very much want to accommodate my noble friend and see whether we can go further on this.
Finally, I thank my noble and learned friend Lord Wallace of Tankerness for his summing up. Of course, I am very disappointed with it but I was interested in what he said about the national panel for registration. I have found it extremely difficult to get hold of the panel. When I rang it up, the staff said that they were too busy and discontinued the line. When I rang later, they said that the person I needed to talk to was not there. The panel does not have a website. It is extremely hard to find out with whom it consulted and how many people it represents. There is a paucity of knowledge which no doubt we will build up when we come to Report. I will read Hansard very carefully but I will certainly consider the possibility of bringing back this amendment, or, I hope, a much more perfected one, on Report. I beg leave to withdraw the amendment.