Marriage (Same Sex Couples) Bill

Baroness Kennedy of Shaws Excerpts

Wednesday 10th July 2013 Lords Chamber

[Baroness Berridge]

My Lords, when discussing previous amendments in Committee and on Report, much was said about teachers being required to teach the law of the land. I do not envy their task, as the law regarding different personal relationships has become rather complex. That was best exhibited by the exchange just now between the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Alli, about whether civil partnerships are a sexual union. I have friends in civil partnerships who, when they went to the register office, were separated and asked questions to ensure that their relationship was sexual. Although these matters need clarifying, I shall state my understanding of the situation.

Opposite-sex marriage is understood to be a sexual relationship because it can be ended by annulment and by divorce on the grounds of adultery with a member of the opposite sex. Civil partnerships are same-sex and, for the reason I outlined, treated as sexual, but there is no annulment. Platonic friends can marry if they are of opposite sexes or of the same sex, but the lack of annulment for same-sex marriage may lead the institution to develop very differently. I agree with the right reverend Prelate, who stated what the position is in modern Britain. The demographics of our country are changing rapidly. In the 2011 census, 29% of UK households were single-person—not single-parent—households. The fact that two people can live more cheaply than one is becoming increasingly important with rising living costs, poor returns on private pensions, and high housing costs.

We could end up seeing someone who wants to say to their best friend, with whom they share a house, “You can depend on me. I am your first port of call”. The commitment would be not merely financial, or about inheritance tax, or being one household for the purpose of benefits. With an ageing population, the Government should be pleased if this kind of development occurred under the same-sex marriage Bill.

Of course, that analysis means that carers, as outlined in the amendment, can already marry and gain the financial benefits outlined. If we were to see such a cultural development, the injustice to family members would be even more apparent. One might even see deeply religious people of the same sex who currently oppose the Bill getting married, if same-sex marriage develops in our culture in the way I outlined. That kind of development might even make it easier for marriage to be used mischievously for immigration purposes. We just do not know.

The amendment would give clarity and direction to this review. The review would give the Government time, which they have not had with such a speedy legislative process, to look at the whole legal relationship landscape.

I noted the comment of the noble Lord, Lord Alli, that it feels wrong to him. It was a very subjective, post-modern comment. It feels wrong to me to close down the area of discussion that a review would enable. If it was so wrong to put this wagon or coach on these horses, the amendment would not have been allowed on to the Marshalled List.

I support the amendment, because it would be unjust if everyone—and I mean everyone—except family members would be able under our law to promise a lifelong, non-sexual commitment or dependency.

[Baroness Kennedy of The Shaws]

My Lords, I oppose the amendments in this group. It is disingenuous of those who tabled and support them to suggest that those who do not see the purpose of them are being hard-hearted. I was shocked to hear lawyers who have spent their lives in the law not recognising the implications of extending a law that is essentially about marriage, or a commitment to a sexual relationship—that is what it is about—and imagining that a civil partnership between a father and daughter, or a brother and a sister, should be blessed, as was even suggested, and that it may come to that because of the great multiplicity of relationships that there are. I cannot believe that I heard senior lawyers endorse this. I can only believe that they did so because they want to dilute the purposes of civil partnerships.

[Baroness Deech]

My Lords, on a point of order, I do not think that anyone has suggested that fathers and daughters, or brothers and sisters, should get married. This is about asking the Government to include the position of carers in an inquiry. That is all.

[Baroness Kennedy of The Shaws]

The point of my opposing the suggestion that that should even be considered in the review is that we know that it will continue the debate that has taken place in this House over the past weeks, and because it is intended to undermine the Bill, the purpose of which is to end discrimination against gay people. The Bill is about civil rights. The right reverend Prelate on the Bishops’ Benches suggested that this would all be about recognising important relationships that are somehow on a par with a couple who choose to be with each other because of their sexual attraction to each other, their love for each other and their desire to stay together. I cannot imagine that the church would think that that was a good thing.

I cannot imagine it because we know that this is about choosing a partner whom you intend to be with. It is about the yearning among human beings to choose someone as your love, to be with your beloved and to share your life with them. That is very different from the relationships between brothers and sisters, and fathers and daughters. We should think of the implications of a civil partnership being extended to a father and daughter. Are we going to put an age limit on it? Is the father going to be able to enter into such a civil partnership with his 22 year-old daughter, or his 18 year-old daughter? We have to be conscious that this is yet another way of trying to scupper the Bill. The intention is to continue the debate and the argument long after the Bill has passed. Therefore, I urge everybody who cares about making sure that there is an end to discrimination towards gay people in this nation to vote with those who are against the amendment.

[The Lord Bishop of Chester]

My Lords, I did not want to speak again, but given the way in which—

[The Lord Bishop of Chester]

The guideline is that a Member is allowed to explain himself on an important point. That is what the guidelines say, and that is all I wish to do. I want to make it clear that I do not wish to extend civil partnerships as they are now to the sorts of relationships that are in the amendment. Clearly, if family relationships and carer relationships came into civil partnership, it could change the nature of civil partnership. I understand that that would be within the terms of the review.

[Baroness Kennedy of The Shaws]

I will respond very briefly to the right reverend Prelate. Over the weeks I have listened to people of strong religious faith saying that extending marriage would undermine a social institution. What could undermine the social institution of committed sexual relationships more than the idea of fathers and daughters entering into a contractual partnership? If we care about social institutions, we should recognise that that would be a good way of undermining them.

Marriage (Same Sex Couples) Bill

Baroness Kennedy of Shaws Excerpts

Monday 3rd June 2013 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, this issue raises a great deal of passion because it touches on things that we all care about: equality, human rights and our religious beliefs. The noble Lord, Lord Pannick, and I were invited before the committee that examined this Bill before its passage through the House of Commons. We were asked to present a legal view on the likely success of any challenge to the special protections being given to religious organisations—the churches and so on—in the Bill. We both took the opportunity to speak to legal organisations, to colleagues in the law and to people who often took different positions and different sides on many issues concerning rights. We were both firmly of the view that the protections provided by the Bill to churches, religious organisations and church ministers are strong and should reassure this House that there is no real risk of a successful challenge.

There is no obligation whatever on religious organisations to host gay marriages if they do not wish to do so. The legal position is that it is permissible but absolutely not required in law. Any requirement on a church, religious organisation or minister to conduct same-sex marriage contrary to the religious convictions of its members would violate Article 9 of the European Convention on Human Rights. The protections of that article are very strong and any analysis of the jurisprudence will show that the desire to maintain those protections is strong. The case brought by the Muslim community against the Bulgarian Government, which went all the way to the European Court of Human Rights, laid down an important principle: the autonomous exercise of religious freedoms, and that exercise by religious communities, is indispensable for pluralism in a democratic society.

Why, then, is this Bill going through? It is going through because over my lifetime as a practitioner in the law we have seen a huge change in the position of gay people in our communities. It is interesting to note in this House, where the average age is above 60, that people above the age of 60 express the greatest concern about any change in the law. People under the age of 60 by and large favour this change. You have to ask yourself why that might be. I think it is because of the growing tolerance in our society and the desire to see people treated as equals regardless of race, sexuality or gender. That is something that we should cherish and see as an enormous achievement for our society.

The claim is that marriage is a union between a man and a woman by tradition, custom and practice. The noble Lord, Lord Dear, articulated it at the beginning of the debate. Of course, initially the idea was that marriage was about protecting property and making claims on children, and its purpose was to produce and provide a framework for the protection of property and in which children could be raised in a decent and wholesome way. That conception of marriage came into being before we knew as much as we now do about the human condition. We have now separated out the sexual act for the purposes of procreation from the sexual act as a source of sexual fulfilment. Even the churches would acknowledge that.

A woman or man can nowadays know for sure that they cannot conceive a child, but none of us would expect that to reduce in any way their entitlement to marry. A couple may decide to marry and enjoy what they see marriage as providing for their relationship, even if they know that they will not have children. We know those—there are many in this House—who, on the death of their partner, have gone on to marry again after the age at which they would ever have children or provide the framework for the conventional family. They do so because they want to create a special commitment to the person whom they choose to marry.

We have to ask ourselves whether some of the reasons and rationales for maintaining something are not disguising other concerns. We have changed the meaning of marriage. We have changed it intentionally to be inclusive and to make it possible for people who want to make a commitment in love to another to be able to enter into this public declaration in the way that we do. We must also remind ourselves what it is touching upon. It is touching upon the desire in most human beings to love and be loved. It is part of the whole nature of our humanity. That people, gay or straight, should want to do that—to declare it in the presence of those they consider to be their community and to be part of the whole that is our society—is surely an advance on marriage as it is currently constructed. It means that, in fact, we are enhancing rather then diminishing the meaning of marriage.

Therefore, as I close these few comments I say that, having reviewed the law, Article 9 of the European convention—which protects religions—is about the needs of community and society, and how they have to be balanced with individual needs. In doing that, the churches can have the protection that they have so earnestly sought from the Secretary of State. However, we are also strengthening our society by giving the right to marry to those who earnestly want it and want to be able to live openly and publicly in a declaration of love. I submit to the House that that has to be something that the law should support.