Marriage (Same Sex Couples) Bill

Baroness O'Loan Excerpts

Monday 24th June 2013 Lords Chamber

[Lord Fowler]

Hang on! The noble Lord spoke for 20 minutes. I have spoken for one, so he might retain a little patience.

We are being asked to support a referendum in two years’ time—two years after both Houses on a free vote have overwhelmingly voted in favour of the legislation. That is the fact of the matter. All the arguments put forward by the noble Lord, Lord Anderson—

[Baroness O'Loan]

My Lords—

[Lord Fowler]

I shall give way in a moment. All the arguments put forward by the noble Lord, Lord Anderson, were made on Second Reading. He may not like it but they were rejected massively and overwhelmingly in both Houses of Parliament. I give way to the noble Baroness.

[Baroness O’Loan]

That is most gracious of the noble Lord. I would like to suggest that perhaps the vote on Second Reading in this House was not an overwhelming endorsement. There was rather a feeling in this House that the Bill should be given a Second Reading, the other place having voted so overwhelmingly in favour of it. It was a vote in favour of Second Reading rather than anything else, and I do not think that it is quite accurate to portray it as anything else.

[Lord Fowler]

My Lords, I do not think that the noble Baroness or anyone else has the right to keep on going back to the votes and saying, “Although we lost by two to one, actually it really was not right. They should have taken this into account and that into account”. The fact is that those results were massive and, in my opinion, almost unprecedented for a free vote.

The only point I want to make in what is intended to be a short speech is that all the arguments we have heard so far have been put before and have been rejected. I am sorry to put it in that way—

[Baroness O'Loan]

My Lords—

[Lord Fowler]

If the noble Baroness does not mind, I am not going to give way again.

I do not think that we can or should try to double-guess what is taking place in the other place, or the process that it goes by, or the way it comes to a vote. We will get into a terrible mess if we do that. Not surprisingly, this proposal is going to be seen as a wrecking amendment in the hope, I presume, that it can be defeated when it comes to a referendum. I leave aside the dispute about opinion polls, although every poll I have seen actually appears to suggest that there is a healthy majority in favour of this proposition and not the other way around.

My major reservation is this—it is a point that was touched on by the noble Baroness—concerns the role of this House. We do valuable work checking and improving legislation. What we do not do is stand in the way of legislation so clearly passed by the other place and, incidentally, endorsed in this House. That is what the debate about the future of the House of Lords was all about: what our place was. It was not a sort of double-guessing on major things that come from the House of Commons. I do not think we can possibly defer for two years a piece of legislation that has been—I say it again—overwhelmingly passed by both Houses. We would not dream of doing that for any other legislation I can think of, saying that we would have a referendum in two years’ time, although it has been passed in this way. I do not think that we should do it now. In this case, the proposition of a referendum is misapplied and wrong.

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Moved by

[Baroness O'Loan]

56A: Schedule 7, page 56, line 6, at end insert—
“39A Section 149 (public sector equality duty): after subsection (9), insert—
“(10) Compliance with the duties in this section requires ensuring that a belief regarding the definition of marriage as being between a man and a woman is respected and that no person should suffer any detriment in respect of the holding or the reasonable expression of such a belief.”.”

[Baroness O'Loan]

I appreciate how late it is, and will be brief, but I do want to move Amendment 56A, which relates to Part 2 of Schedule 7, on the last page of the Bill. As I reflect on tonight’s debate, I would say to the Government that this may not be as simple as it seems. The reality is that, despite the repeated assurances of certain noble Lords, the United Kingdom has repeatedly been found to be in breach of its obligations under the convention and, more recently, under the Human Rights Act.

Along with the noble Lord, Lord Anderson, I would say to the Minister that there is both courage and common sense in considering the Bill again and in bringing it back on Report with amendments. I have heard the Minister’s comments on that and have seen government amendments. I asked the question that the noble and learned Lord, Lord Mackay, asked at Second Reading. However, I did not get any response to any of my questions at Second Reading—a matter on which a number of noble Lords commented to me.

More remains to be done and I am pleased to hear the noble Baroness, Lady Northover, say that the door is open. However, I would like to see something rather than just ex post facto post-legislative scrutiny. We need more than that because there is an expectation in this House that the Bill will become law and I want to place on record that I was somewhat concerned at the earlier tenor of the debate. I understood that the process in this House was to raise issues in general at Second Reading, to put amendments in Committee and hear a government response, and to revert to unsolved issues on Report. Otherwise, surely, there would be no point in anything other than Second Reading and wherein would lie our scrutiny function? I would also like to place on record, in response to the noble and learned Lord, Lord Wallace of Tankerness, the fact that I and, I think, several other noble Lords have received a letter signed by a significant number of Members in the other place, saying that although it was broadcast as a free vote, it was not quite as free as it was made out to be.

The Bill as drafted is not limited in its consequences to the issue of conducting same-sex marriages, et cetera. It does not ensure that there can be no detriment to an individual or organisation in their interactions with a public authority, because it does not deal, in this context, with a Section 149 issue and does not deal with the risk of the attribution of discriminatory action against persons with a protected characteristic; namely, sexual orientation. I want therefore to speak very briefly about individuals who, for reasons of conscience, feel unable to promote same-sex marriage in the way that the law, currently, would appear to suggest that they might have to do.

Teaching sex and relationship education tends to be something which is asked of teachers who do not specialise in the topic but may be mathematicians, physicists or historians. SRE has to be taught and some staff must teach it. The risk for a teacher is that, directly or indirectly, something they say may be interpreted as relating to the subject matter of the Bill and may be interpreted as discriminatory by pupils of a homosexual orientation. The noble Lord, Lord Alli, was right when he said earlier that teachers of course have to act as professionals. They can develop rules; for example, that in their classroom no teacher or pupil can be asked a personal question. However, the reality is that a classroom of 30 or more teenagers is not the easiest place to operate. There may be pupils who see an opportunity to embarrass a teacher by asking repeated questions, by making suggestions or by their conduct generally as the teacher tries to ensure that all the children are kept safe, that there is no bullying and that the children actually learn. Teaching is not the easiest occupation.

We even have to take into account that a teacher may have to face what may be a mischievous, but nevertheless damaging, allegation of discriminatory behaviour which is completely unwarranted. We know that there are mischievous and unfounded allegations of sexual abuse of children in schools. I know that that is a difficult issue to introduce in this context but we need to be aware that working in the classroom is not as simple as some noble Lords appear to think it is.

Finally, it is my belief that this amendment, or a similar one, could be introduced to prevent the adverse and unintended consequences to which the noble and learned Lord, Lord Wallace of Tankerness, referred earlier. It would provide protection against detriment resulting from the operation of Section 149 for any person holding conscientious beliefs that marriage is between a man and a woman. It would not permit homophobic action, but it would provide a balancing between these difficult and sensitive competing rights.

[Lord Alli]

My Lords, I think we have debated this issue, like a number of others, over and over again, so I do not wish to detain the House for any longer than is necessary. However, I want to say that this is a good Bill and a balanced Bill. As the Minister said, there is some work to do before Report, but this is the last amendment in Committee. I put on record my thanks, and I am sure the thanks of many Back-Benchers, to the Front-Benchers of both parties for the way in which they have conducted this stage of the Bill. It does them credit, and this House too.

[Baroness Thornton]

My Lords, I shall address my remarks to the actual amendment, which is about the public sector equality duty. This amendment seeks to place an express requirement on public authorities to protect individuals who hold a view that marriage should be between a man and a woman under the public sector equality duty. This amendment misunderstands what the public sector equality duty does, and I am slightly surprised that the noble Baroness would suggest it. It is a duty to:

“have due regard to the need to:

Eliminate unlawful discrimination, harassment and victimisation and other conduct that is prohibited by the Act:

Advance equality of opportunity between people who share a characteristic and those who don’t:

Foster good relations between people who share a characteristic and those who don’t”.

It is not a duty to compel or ensure certain actions by a public body, as Amendment 56A would require. However, that due regard applies to religious belief in the same way that it applies to sexual orientation. No other beliefs or specific issues are singled out for special consideration under the public sector equality duty. Singling out one particular belief above any other risks undermining the equal balancing of protections for religious organisations and other protected characteristics, which is specifically enshrined by this duty. We suggest that this amendment is both unnecessary and potentially damaging to the protections—

[Baroness O'Loan]

My Lords, I did not deliver the speech I had intended to deliver, given the lateness of the hour. I therefore ask the noble Baroness whether she is aware of the increasing jurisprudence of the European Court of Justice, which indicates that in balancing individual rights and rights which affect such issues as discrimination on grounds of sexual orientation, the courts actually give a greater measure of discretion to the state. It is therefore important that the state acts to protect individuals. I can make that argument at greater length if colleagues wish me to do so, but that is the point I ask the noble Baroness.

[Baroness Thornton]

I thank the noble Baroness for those comments, but there is nothing that she has just said that would take me away from the view which I have just expressed, because this is domestic law. I add that I think the Government team which has handled this Bill, led by the noble Baroness, Lady Stowell, has done a brilliant job in taking it through Committee. I look forward to the next stage.

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[Lord Mackay of Clashfern]

My Lords, before the noble Baroness withdraws her amendment, I would like to associate myself from this side of the House with her comments about the Front Benches on both sides.

[Baroness O'Loan]

My Lords, in withdrawing this amendment, I also express my appreciation to the Front Bench for the way in which they have conducted the debate. I reserve the right to bring this matter back, not in multiple amendments, but in an amendment on Report. I beg leave to withdraw the amendment.

Amendment 56A withdrawn.