Marriage (Same Sex Couples) Bill

Baroness O'Loan Excerpts

Tuesday 4th June 2013 Lords Chamber

[Baroness O'Loan]

My Lords, this has been a difficult and challenging debate—on occasions even an emotional one—for many of us as we have listened to all the speeches. To take a position that is not in support of this Bill is not to be homophobic, although some might accuse us of it. We have a duty to do all we can to further equal treatment, to challenge homophobic behaviour and to celebrate difference and diversity. This Bill is a very uncertain instrument, but one thing is clear: it will change the definition and understanding of marriage, converting it into two different institutions.

As has been said previously, it is not the outcome of a manifesto commitment, of a referendum, of a Green Paper, of a White Paper and of normal consultation. In the 126 letters in my postbag yesterday, 120 were against this Bill and six were for it. One thing that was articulated repeatedly in those letters—they were not standard form letters; people had sat down and thought this out—was that the Government had not gone through the normal processes in approaching this matter. They simply issued a consultation on how marriage could be opened up to same-sex couples.

As we come to the end of this debate, we need to remind ourselves why we have legislative provision for marriage at all and why the state intervenes in people’s sexual relations. Bertrand Russell said:

“But for children, there would be no need of any institution concerned with sex”.

Let us think a minute about English law, under which a valid marriage is one man one woman, is a lifelong commitment, has an exclusive sexual aspect and has a presumption that the husband is the father of the wife’s child and that the partners will remain loyal to one another. Normally, marriage involves being open to bringing children into the world and provides a legal context within which stability, care and protection can be provided for them. Marriage has been protected in law for that reason and, as others have said, it provides the basis for our complex inheritance laws.

It is not just a matter of domestic law. Article 12 of the European convention protects the right of a man and woman to marry. Article 23 on the International Covenant on Civil and Political Rights recognises the family as,

“the natural and fundamental group unit of society … entitled to protection by society and the State”,

involving,

“The right of men and women of marriageable age to marry and to found a family”,

and implying, in principle, the possibility to procreate and live together. If Parliament enacts this Bill, the content must be clear and unequivocal. It must leave no uncertainties capable of resolution only through the courts, often at great expense and distress to those involved.

The Government stated in December that:

“At its heart, marriage is about two people who love each other making a formal commitment to each other”.

Under English law, marriage is rather more complex than this. What is proposed will result in two different types of union that will bear the same name: marriage. The first will involve traditional legal marriage between a man and a woman. The second, legal marriage between same-sex partners, will be significantly different from opposite-sex marriage. Non-consummation will not be a ground on which such a marriage can be declared void. There will be no presumption that a child born to the family is a child of the family, and sexual infidelity with another same-sex partner will not constitute adultery. The formal proposed legal relationships of married same-sex couples cannot therefore be construed as being identical to those of married opposite-sex couples. There will be different consequences, not only for the couple but for any child who may be born to such a relationship.

It is not unequal, unfair or discriminatory to treat those in different circumstances differently. European law gives state authorities a wide margin of appreciation in deciding where to strike the balance between convention rights. In 2012, the European Court stated that there is no discrimination in excluding same-sex couples from marriage.

I want to move on to a number of questions for the Minister. Can she advise whether a member of a same-sex marriage whose partner has a sexual relationship with a member of the opposite sex will be able to divorce that partner for adultery, which goes to the heart of the commitment to faithfulness, as is the case for those in opposite-sex marriages? Can she also advise why the two types of marriage proposed are treated differently in the Bill, something that surely might ultimately give rise to action in the courts? If a wife in a same-sex marriage does not have the advantage of a presumption—we understand why—that a child whom she bears is a child of the marriage, what protections will exist for that child in law?

If a same-sex marriage does not have to be consummated, surely a partner in an opposite-sex marriage who wishes to remain married to his or her partner despite the fact that the marriage has never been consummated would have the right to bring a challenge in the European Court against the Government for discrimination in not according to them the protections afforded to those in same-sex marriages. There might be significant financial implications for a party married to someone who declines to consummate the marriage but is in all other respects a model spouse.

Under English law, religious marriages conducted in accordance with the law are also civil marriages. There are not two kinds of marriage. Rather, marriage may be contracted either through a religious ceremony, without the requirement that exists in other European countries for a separate civil marriage, or a civil ceremony. A number of churches, including representatives of the Church of England, have articulated uncertainties about attempts at compulsion that may be brought to bear if the Bill is enacted. Might some churches, reluctant to face the uncertainties and costs inherent in the possibility of third-party action against the United Kingdom in the European courts, simply decide that they will no longer act as registrars of marriages, so that couples will have to have a civil wedding as well as a religious wedding to have a legally valid marriage? What assessments have been made of the potential costs of any consequential necessity to employ additional registrars of marriage? It has been argued that a religious marriage involves a civil element that incorporates the provision of a public function. Where a church has stated that it will not marry same-sex couples, could it therefore be argued in the European Court that the UK is in breach of the non-discrimination laws applicable here and in Europe?

There has been significant concern in many quarters about the effectiveness of the so-called quadruple lock. There are those who also object to the fact that there is no discretion for the Church of England to determine whether it wishes to marry same-sex couples. Questions also arise about what might happen where an institution determines that it will not conduct same-sex marriages but a minister of that institution decides that, in conscience, he wishes to do so. The fact that the minister has conducted the marriage in defiance of his institution’s determination might be a disciplinary matter for the institution, but will the marriage be valid for the couple concerned, and how will they know? Clause 2(2) allows individuals to refuse to conduct a same-sex marriage even though organisations have opted in. There is no corresponding protection, as has been said, for many others who provide services in the context of marriage.

The Government consulted on whether civil partnerships should be extended to opposite-sex couples. Of those who responded, 61% thought they should. It has been said that a requirement to declare a civil partnership is in effect a requirement to declare sexual orientation. Opening civil partnerships to opposite-sex couples would remove this automatic interpretation of sexual orientation. Will the Minister explain why the Government have decided to maintain this discriminatory situation and provide assurances that the European Court will uphold the right of the state to retain gender inequality in civil partnerships when they have legislated for equal marriage?

Statutory guidance requires that children learn about the nature of marriage and its importance for family and the bringing up of children. In the widened definition of marriage provided for in this Bill, there would be no exception for conscientious or religious belief: rather, there will be a duty on a teacher to promote positively marriage as newly defined. A teacher could be disciplined for conveying a belief against same-sex marriage in a way that a pupil might regard as discriminatory.

Finally, marriage receives modest support from government in the form, for example, of assistance for marriage counselling. Excluding same-sex couples from marriage counselling would be discrimination on the grounds of sexual orientation. The exceptions under the Equality Act 2010 do not apply to an organisation whose purpose is to provide services to a wider public constituency. Such organisations could be unable to access ongoing funding and might have to close. There is significant difficulty in accessing marriage counselling across England and Wales, given the long waiting lists. How do the Government propose to protect the ongoing provision of such services?

I was much impressed by the words of the most reverend Primate the Archbishop of Canterbury when he suggested yesterday that the better way would be to create a new and valued institution alongside marriage to strengthen us all. We have a duty to legislate in a way that gives certainty. Despite the Government’s intention, the Bill cannot, as drafted, provide equality. It also appears to have been the subject of hasty drafting that does not deal comprehensively with far too many issues.