Marriage (Same Sex Couples) Bill

Debate between Baroness O'Loan and Baroness Berridge

Monday 8th July 2013 Lords Chamber

[Baroness Berridge]

My Lords, I speak to Amendments 15, 16, 17, 21 and 22, in my name. I thank the Minister for tabling government Amendments 9 and 10. I thank the Government and the Bill team for listening to the concerns raised in Committee. Amendments 9 and 10 clarify the protections given to religious groups under the Bill. The groups, whose concerns had previously not been allayed, were some of those that perform marriages recognised under UK law, where their religious official also performs the function of the registrar. Unlike weddings that noble Lords may have attended at hotels where the registrar comes to do the ceremony, no registrar goes, for instance, to the Catholic Church: the priest is known as the authorised person and so relieves the local registrar from the need to officiate.

There are tens of thousands of authorised people in England and Wales, within many religious organisations, some of whom felt vulnerable to challenge under judicial review, the Equality Act and the Human Rights Act, such that they might have considered handing back their registration as authorised persons if the Bill had not been amended in the manner that the Government outlined this evening. This would of course have been unfortunate and a further financial challenge to local authorities, which would have had to employ more registrars to officiate at such weddings.

I am very grateful to the Government for the amendments, which mean that authorised persons are protected from the risk of challenge and that I will be able to assure those who have contacted me that, as far as is possible in legislation—there can be no cast-iron guarantee—their and their organisations’ decision whether or not to opt in is not amenable to challenge.

I am grateful for this clever amendment, which not only deals with the definition of compulsion but covers issues relating to the public function that is arguably exercised by authorised persons. In the light of my noble friend’s assurances, I will be pleased not to pursue my amendments.

[Baroness O’Loan]

My Lords, I shall speak to Amendments 22 and 23 and 19 and 18—I shall take them in reverse order in the light of the comments made by the Minister. First, I express my gratitude to the Government for tabling Amendments 9 and 10 on the meaning of the word “compel”. They make it clear that compulsion by any means will not be allowed under the Bill. Therefore, any detrimental or unfavourable treatment of a person—whether an individual or an organisation—because that person has not performed, has decided not to perform or has refused to perform, a Clause 2(1) or (2) activity will be absolutely prohibited. That is in line with the Minister’s statement during Committee on 19 June at col. 281, and I am content that the protection that was promised is now provided by those amendments.

Another of our concerns was that the word “compelled” did not make it clear that less favourable treatment by a public authority of a person who does not perform, decides not to perform or refuses to perform, a Clause 2(1) or (2) activity would be prohibited. A public authority could, for example, have used Section 149 of the Equality Act to treat a person less fairly. The amendments, however, again in line with the Minister’s assurances during Committee on 19 June, make it clear that such treatment would be unlawful.

My amendment uses the words,

“the imposition of any criminal or civil penalty”.

However, I am satisfied that the government amendments make it clear as expressed that any criminal or civil penalty—or indeed, any civil or legal action—against a person in those circumstances will be prohibited. A person is protected, therefore, when deciding not to perform or refusing to perform a Clause 2(1) or (2) activity from challenges under the Human Rights Act or the Equality Act, by way of judicial review or by any other legal challenge. That is made apparent in the government amendments.

Although I recognise that the Government never considered, and still do not consider, that the decision of whether to opt in under Clause 2(1) is a public function, I am content that the wording of the amendment alleviates the risk as I perceived it for the purposes of the Human Rights Act, the Equality Act and judicial review. The bracketed wording,

“including by the enforcement of a contract or a statutory or other legal requirement”,

which provides a non-exhaustive list of examples, is helpful in that regard. Again, the protection is in line with the Minister’s assurance during Committee, and we are content that that assurance is covered by the wording of the Government’s amendments.

I am most grateful to the Government for listening to our concerns and for allaying them so effectively. We are now satisfied that the Government’s lock is comprehensive and will protect persons, whether they be individuals or organisations, in the context of Clause 2(1) and (2).

I move to Amendments 18 and 19. Amendment 18 is designed to protect persons as designated in the Bill from unfavourable treatment following an expression of opinion or belief about same-sex marriage. I am aware that this issue has been debated to some extent under other amendments. Under Section 149 of the Equality Act, a public authority must always have regard to the need to provide all persons with equal opportunities, whether they be black, white, male, female, gay, lesbian, straight or whatever. In particular, public authorities must also be mindful of any disadvantage that is or could be suffered by any person with a protected characteristic, and the need to remove or minimise that disadvantage. Those protected characteristics have been well rehearsed in this House during this debate. They include age, sex, sexual orientation, religious or other belief and pregnancy.

Section 149 gives public authorities a lot of discretion in deciding whether to pursue a course of action. A public authority could decide to use its powers, for example, to try to eliminate or minimise disadvantages suffered by those in the LGBT community. That is a laudable aim but it could do so in a way which unnecessarily disadvantages those with religious or other beliefs about marriage. Section 149 does not force them to do so but it allows them to do so by giving them discretion. That discretion has expanded significantly over the years and the courts have interpreted it as a duty to further equality of opportunity, rather than a duty to avoid discrimination. The positive rather than negative duty has encouraged public authorities to pursue broad equality aims. Public authorities have, for example, denied public contracts to organisations which the public authority regarded as unsuitable to be associated with, for example on grounds of race, and the courts appear to have deemed this entirely lawful.

If a public authority decides to pursue equality of opportunity for the LGBT community, and if this is done in a way which unnecessarily disadvantages those of religious or other beliefs, the courts are unlikely to overturn such an action because of their general reluctance to second-guess public authorities in exercising their discretion. The protection from compulsion under Clause 2 gives protections only from actions arising or relating to the solemnisation of same-sex marriages. It is not at all clear from the Bill whether individuals employed by public authorities will be protected if they express an opinion or belief that marriage should only be between a man and a woman. At this point, I should say that I heard the noble and learned Lord, Lord Wallace of Tankerness, refer to something in relation to disciplinary authority. He was speaking quite quickly but it was something about disciplinary proceedings. Perhaps he could reassure me on that point when he sums up.

At the moment, it is unclear whether a teacher would be able to teach that marriage should only be between a man and woman, if that is their belief, because some pupils, parents and other teachers could find such teaching grossly offensive. It is not clear whether a school would be able positively to promote opposite-sex marriage unless it promoted same-sex marriage equally. It could be argued that such an expression would be contrary to the duty on public authorities to further equality of opportunity for the LGBT community and to foster good relations between people with different protected characteristics.

This is not based on hypothesis alone. A judgment was handed down just two weeks ago in which the public sector equality duty was one of the reasons used to dismiss Dr Hans-Christian Raabe from a position on the Advisory Council on the Misuse of Drugs, which he had been given some 17 days earlier by the Home department. He received a letter from the Parliamentary Under-Secretary of State for Crime Prevention, Mr James Brokenshire, telling him that his authority was being revoked because it had been discovered that some eight years ago, he had co-authored an article, Gay Marriage and Homosexuality: Some Medical Comments. He lost that judicial review; the judgment was in June 2013. That case shows very clearly that public authorities, MPs and Treasury solicitors are already relying upon the public sector equality duty to protect the LGBT community in a way which noble Lords stated during Committee it would be wrong for public authorities to do.

The Minister and others have relied on Article 9 and the fact that religion and belief is also a protected characteristic for the purpose of the public sector equality duty. They do that in order to suggest that this amendment is not necessary but it is in fact unclear whether expression of belief would be protected as a manifestation of religion or belief, following the case of Dr Raabe. It was asserted in that case that Article 9 of the European Convention guarantees only absolute entitlement to hold religious views. It does not guarantee absolute protection for their manifestation.

It was also asserted that there is a difference between acts that are a manifestation of religious belief and acts that are motivated by it. Again, if an expression or a belief is protected as a manifestation of religion or belief—for example, when someone reasonably expresses a view in favour of traditional marriage—it will not necessarily protect individuals because the public authority has to strike a balance somewhere between that characteristic and the other protective characteristic, which is sexual orientation. Effectively, the public authority has to choose between religion and sexual orientation.

It is not clear that the court would strike down a decision arrived at by a public authority in those circumstances that ranked the need to ensure equality of opportunity with regard to sexual orientation more highly than the rights of religion. The case of Ms Ladele is an example of that.