Arab Spring

Lord Anderson of Swansea Excerpts

Tuesday 29th October 2013 Grand Committee

[Lord Anderson of Swansea (Lab)]

My Lords, I congratulate the right reverend Prelate on his initiative and I propose to go even further back than the noble Lord, Lord Selkirk, to a time before Franklin Delano Roosevelt—indeed, back to the year 313. This year we celebrate the anniversary of the Edict of Milan—the so-called Edict of Toleration—which stressed freedom of religion. It states:

“When I, Constantine Augustus, as well as I, Licinius Augustus, fortunately met near Mediolanum (Milan), and were considering everything that pertained to the public welfare and security, we thought … we might grant to the Christians and others full authority to observe that religion which each preferred; whence any Divinity whatsoever in the seat of the heavens may be propitious and kindly disposed to us and all who are placed under our rule”.

That was 1,700 years ago. Now that is echoed both in the international instrument mentioned by the noble Lord, Article 9 of the European convention, and of course, most of all, in Article 18 of the Universal Declaration of Human Rights. I recall that that post-war universal declaration has been signed by all the key countries in the Middle East, and the words are crystal clear with no ambiguity: freedom to manifest religion and freedom to change one’s religion. However much one tries to modify this—it is fair to say that there has recently been some helpful movement by the OIC on blasphemy—overall, the position has worsened.

A key phrase in the Edict of Milan is significant, which is,

“considering everything that pertained to the public welfare and security”.

There are echoes here of our prayer at the beginning of the Session, about seeking the tranquillity of the realm; that is, tolerance is designed to promote stability. In the Middle East today, the persecution of minority religions arises in part from instability and is itself a cause of instability. To quote the general secretary of the Fellowship of Middle East Evangelical Churches talking to the Barnabas Fund:

“The majority have been displaced from their homes with hardly anything to subsist on; most are jobless, homeless, and in danger of abduction and assaults by radical militants”.

The excellent FCO report Human Rights and Democracy 2012, published in April, says:

“It is deeply regrettable in particular that religious minorities in the Middle East and North Africa have in a large number of cases suffered as a result of instability linked to the Arab Spring”.

How much we welcomed that Arab spring; bliss was in the dawn. Alas, like many revolutions, many sons and daughters of that spring have been killed.

Of course, there is discrimination to varying degrees against many other minorities. One thinks of the peace-loving Baha’i in Iran and the Shia in Bahrain. Overall, however, the chief victims are Christians in the Middle East—as, indeed, in the world as a whole, as the Pew Forum has shown. Of the 49 Muslim states, 17 do not tolerate any other religion; one thinks of Saudi Arabia. It is clear that, after the Arab spring, the position of Christian minorities has worsened in the Middle East, where, of course, Christianity had its origins.

Even in the year before the Arab spring, there were many challenges to Christianity, which some saw as a foreign religion: the religion of the western imperialists, those who invaded Iraq and Afghanistan. Even Algeria, after a relatively tolerant period, brought in new, discriminatory laws in 2006. This tempo is increasing. Yes, Christians joined with Muslims in Tahrir Square in Cairo but former President Morsi increasingly followed the agenda of the Muslim Brotherhood and the Salafists. The Salafists have increased the pressure in Tunisia.

The real dilemma for Christians in many countries today is in recognising that they had a substantial degree of protection from absolute rulers such as Saddam Hussein and Mubarak. Now, despite rejoicing at the liberation of the Arab spring, they find themselves impelled to shelter behind the army or dictators who offer them a far better life. A day or two ago I spoke to a Conservative colleague who was asked by a leading Christian in Syria, “Do you think we shall be here in 50 years’ time?”. He said no, whereupon his Syrian friend replied, “Nor do I”. That is the extent of the pressure on Christians in their own homeland.

What is the nature of the current persecution? The first observation, obviously, is that in this new secularism, western Governments are curiously reluctant to intervene on behalf of Christians and minorities. Christian churches are burnt down, suicide bombers launch attacks on church leaders, while some, such as the Syrian Archbishop of Aleppo, are abducted. Christian families are forced to flee. It is said that over 50% of Egyptians in London are Coptic Christians. In Iran it was hoped that there would be an improvement under President Rouhani, but the latest reports say that no, there has not been.

How should we respond to this? We should do so, first, by seeking to have a blameless record ourselves. We cannot be taken seriously—

[Lord Bates (Con)]

My Lords, I hesitate to intervene on the noble Lord, but I am conscious of the six-minute time limit on speeches.

[Lord Anderson of Swansea]

I shall end in a moment. Let us have a perfect record by avoiding Islamophobia. We must recognise that Muslims are under pressure in countries such as Sri Lanka and Burma. Let us also urge those states that do persecute to mend their ways and accord with the international instruments of which they are members. Most of all, in so far as the Arab spring has soured almost everywhere, we should use every weapon at our disposal, including the sensitive ones, because we must go beyond ritual condemnation. We should use all our tools of soft power, including—I stress this—conditionality because it would be absurd if we continued to bankroll those countries which persecute their minorities, including Christian minorities.

Marriage (Same Sex Couples) Bill

Lord Anderson of Swansea Excerpts

Wednesday 10th July 2013 Lords Chamber

[Lord Anderson of Swansea]

My noble friend is coming to the view that a review will come to a certain conclusion. We do not know what conclusion that review will come to. The question is surely that we know that under Clause 13—and this was a fairly late addition by the Government—there will be a review of civil partnership. We also know, under Clause 2, that it does not prevent the review also dealing with other matters relating to civil partnership. Are those who are against the amendment suggesting that the review should be stopped from dealing with those matters?

Part of our problem as politicians—or Members of this House, who may not consider themselves politicians —is that we face this disconnect between what we are doing here and public opinion. In my own judgment, having served 30 years in the other place, public opinion would consider this an important matter. When faced with the sort of examples given by the noble and learned Lord, Lord Lloyd, and the noble Baroness, Lady Hooper, they would say that there is a certain injustice in this matter. We remove ourselves from this view of justice coming from public opinion if we say that it cannot be included in the review, which, if it was able to look at this, might say that it was not properly within its terms. I do not know what the Government consider to be the specific terms of the review, or whether they will define what the review can or cannot do. On the face of it, the review will be able to deal with such matters, and may reject them. But public opinion and most of us would say that these are important matters, which deserve to be dealt with and may be dealt with by the review, which may say that it is not properly within its purview or that it is not something that should be dealt with at all.

In my view, it is proper for the review to deal with that matter, under the terms of the clause, and I look to the Minister to say in terms whether the Government recognise that this is a problem. Do the Government recognise that the examples given by the noble and learned Lord, Lord Lloyd, and others refer to something that is considered unjust by a great number of people in this country? If so, even if the Government try to remove this from the review, will they deal with it in some other appropriate way?

[Baroness Barker]

I have listened to and taken parts in these debates ever since the noble Baroness, Lady O’Cathain, first raised them during her then opposition to civil partnership. There remains one point that is fundamental to this discussion and which has never been answered properly by those people who have advanced them, such as the noble Baroness, Lady Deech.

The rights and responsibilities of adults who voluntarily enter into relationships with other people are wholly different from the rights and responsibilities of family members—people born into the same family. If we were to treat them in the same way, as is achieved in the noble Baroness’s amendment, it is wholly possible that a member of a family could find themselves under an obligation to a family member to enter into a relationship, in particular to preserve the right of the family to property. That sets up some potentially damaging and ugly relationships within families, which is a consequence of what she proposes which she would really not like to see come to pass.

To answer the noble Lord, Lord Cormack, I do not think that that potential should enter into law and I do not think that it should form even part of any review. Therefore, I wish today to make that statement as strongly as I possibly can; I shall vote against this amendment and do so in the knowledge that there are people who will support me in supporting carers in a whole variety of different ways, which are wholly appropriate and far better than this.

[Baroness Thornton]

My Lords, this amendment would seek to extend the civil partnership review to include unpaid carers and family members who live together. I am just going to read the amendment, because of the discussion that took place between my noble friend Lady Kennedy and the right reverend Prelate. It refers to,

“unpaid carers and those they care for, and … family members who share a house … provided that they have cohabitated for 5 years or more and are over the age of eighteen”.

If that does not mean fathers, daughters, sisters and brothers, I am not quite sure what it means. So I think that my noble friend had a point in her indignation about that matter.

The problem before the House has been very adequately explained by various noble Lords. This is an issue about legitimate support for carers and the protection of people, sisters and brothers, growing old together and sharing a home, who require a new regime that protects their interests in their home and all the other things. That is to do with carers, tax and inheritance, and it is to do with compassion and the other issues that noble Lords have mentioned. But it is not appropriate to use those words—in terms of pulling up ladders, and so on—in this Bill.

This review is about civil partnerships, as explained by the noble Lord, Lord Pannick. I am not going to read out my note, because he said it much more eloquently than I could.

[Lord Anderson of Swansea]

It is proposed by the noble Baroness, Lady Deech, that the review should deal with,

“the case for amending the criteria in the Civil Partnership Act 2004”.

Is my noble friend suggesting that the criteria themselves should not be amended in any way? What would she suggest should be the criteria employed by the review? Will we seek to limit what it can review?

[Baroness Thornton]

The noble Lord, Lord Pannick, very adequately, concisely and accurately explained exactly what the review is about.

The point is that the claims that the noble Baroness has explained to us are legitimate. As my noble friend Lord Alli said, the last time I heard the noble Baroness speak with such passion about these issues, apart from in Committee on this Bill, was during the passage of the Civil Partnership Bill.

In the mean time I can recall at least two carers Acts put forward by my own Government. There was the free personal care Bill, and there have been numerous discussions about finances and inheritance tax. Although we may not necessarily discuss those matters in this House to conclusion, certainly there are plenty of Members of Parliament in the other place who can and could put down amendments. I would be more sympathetic, perhaps, if I thought those things had happened, but they have not. My noble friend Lady Kennedy is right when she says that you have to question the purpose of this amendment when all those opportunities have been missed. We ask the noble Baroness not to press this amendment but if she does I will be voting against it.

Marriage (Same Sex Couples) Bill

Lord Anderson of Swansea Excerpts

Wednesday 10th July 2013 Lords Chamber

[Lord Anderson of Swansea]

Not, my Lords, of insulting the people, who have never had a chance to speak on this and whose views are rather uncertain. The noble Lord, Lord Alli, has set out his litany of votes and I cannot gainsay that in any way, but I can certainly gainsay him on the polls which have been taken. If he is so confident about the view of public opinion, he should have no hesitation about going forward and agreeing to this referendum. Indeed, it is something which was discussed last Friday in the other place. The Foreign Secretary was really quite lyrical about referenda. Perhaps I may remind him of what he said:

“That is why every Member of the House who is a true democrat can and should unite behind the Bill”—

this was a referendum Bill on the EU—

“It is about letting the people decide … Ultimately, it would be up to the voters to decide, and that is the essence of democracy”.—[Official Report, Commons, 5/7/13; col. 1191.]

Certainly there is no constitutional objection to referenda on the part of the Government. I concede that referenda have mostly been held on constitutional issues, although there are examples in our history of referenda on issues that were manifestly not constitutional. The first referendum that I was aware of was in relation to the opening of public houses in Wales. Even those who want to stretch their imagination could hardly suggest that the opening of public houses in Wales is a referendum issue.

I follow the noble Lord, Lord Singh, and I adopt what he has said. This was an amendment which I broadly put forward myself in Committee. The only difference is that, having listened to the objections then, such as that it was just a delaying device and 2015 would be too late, the noble Lord has brought the date forward to 2013. However, I am not convinced that the wording is as it should be. As was said in Committee, it should probably be left to the Electoral Commission, which is the normal pattern. But I think that the noble Lord, Lord Fowler, did a great disservice to the amendment which has been put forward by distorting it in the way that he did, as if the current position is perfect and only some zealots wish to alter it: do you agree with the zealots or not? I think that this wording is fairly reasonable, and the only reason I object to it is that I think that it should come from the Electoral Commission and not be on the face of the Bill.

The basic argument for having a referendum is the fact that the Government have no mandate for this—certainly no mandate from the people. The commitment was not included in the 2010 Conservative, Liberal or Labour manifestos. The subsidiary argument is the speed of the passage of this Bill. Not only was it not mentioned in the manifestos, not only did a number of the relevant pressure groups not come to this view in respect of gay marriage until a year or two ago, but there has been an unholy haste about this Bill which is difficult to understand. It is rather as if there has been a mass conversion equivalent to that of, say, an African tribal leader who mass converts many of the members of his tribe.

Noble Lords have suggested that there have been occasions in the past when legislative changes have been made without a mandate. That is true, of course, but none has been as fundamental as that set out in the Bill before us today. Although laws defining marriage have changed incrementally over the years—the noble Lord, Lord Elystan-Morgan, gave a whole series of those—nothing has been as fundamental as this one: changing the basic definition of marriage. I suppose that a case could be made for an exception to the electoral mandate principle if it were apparent by other means that there was consensus in public opinion.

I concede that there have been majorities in both Houses, but there is no clear consensus in public opinion. It depends very much on the question that has been asked. Opinion polls have been fairly evenly divided. Some have suggested that there is a majority against, some that there is a majority in favour. If further proof of the absence of consensus were needed, however, let me quote from the Government’s own analysis of their consultation process:

“Overall, views were divided. Of the 228,000 responses to the consultation, 53% agreed that same-sex couples should be able to have a civil marriage ceremony and 46% disagreed ... However, these figures do not take account of those petitions we received, which were universally opposed”.

Moreover, the need for a referendum set out in my speech in Committee was compounded by other failures of due process. I shall not repeat what I said in Committee regarding the failures of due process during the passage of the Bill. I have made the point that the Government are not against referenda in principle. One argument advanced in our earlier debate was that it would not be appropriate to have a referendum when the Bill was passed with such a clear majority in another place. That, however, as the noble Lord, Lord Singh, has properly pointed out, misses the point. No one questions the majorities, the facts are there. If the referendum is opposed in order to make good the lack of any mandate, the votes of MPs on this issue are not relevant because there was no electoral mandate at the time for an issue which is manifestly a fundamental one.

Other noble Lords objected to the idea of having a referendum simply because they considered the redefinition promoted by this Bill to be a self-evidently good thing and recoiled at the idea that it should be subject to a vote. If it was, of course, such a manifestly good thing, why have so many colleagues come to this realisation so speedily and at such a late stage? Had this vote been taken three years ago, it would not have had those majorities—perhaps not even one or two years ago, so it is not such a manifestly good thing.

Another argument advanced by the Minister, and advanced earlier in this evening’s debate, was that referenda should be preserved for constitutional questions. Apart from the fact that Parliament is completely free to apply referenda whenever it sees fit, the key point is that the marriage Bill raises important constitutional questions. I refer to the implications for the establishment of the Church of England, as explained by the right reverend Prelate the Bishop of Chester in his important Second Reading speech. Moreover, Aidan O’Neill QC in his legal opinion on the Bill suggests that it risks partial disestablishment. The Government have made this a constitutional question by disregarding due process and by conducting a consultation which, in my judgment, was a bogus consultation that ignored many of the questions, because the majority were, in fact, against it.

To conclude, it is increasingly common to hear politicians express their profound concerns about the disconnect between political institutions and their passionate commitment to reaching out and listening to the people. This is an opportunity to do so. My judgment is that there is profound discontent and not just among the older generations on this issue.

I am still waiting to hear from the Minister why there is such unprecedented haste in pushing through this Bill. There must be some good reason, or some reason behind the reason, which I would like to hear. We should not seek to kid ourselves that we can proceed on this basis and expect anything other than unhappy consequences. Rather than this being a law that was developed in a proper way and that rests on a constitutionally appropriate foundation, everyone knows that it was pushed through without proper regard for constitutional convention. There was certainly no mandate and there has certainly been substantial haste, as yet unexplained.

To date, the Government have not provided any compelling reason for not supporting a referendum. If they believe that the tide of history over the past year or two since their damascene conversion is on their side and they have no constitutional objection to it—I cite the two referenda in general and the rather lyrical references to referenda in the speech of the right honourable Foreign Secretary last Friday—they should have no hesitation in providing for a referendum so that the people can decide on this issue.

[Lord Martin of Springburn]

My Lords, I have always looked forward to the wisdom of the noble Lord and of the noble Lord, Lord Waddington, and it is nice to see them disagree with one another and disagree so well. It is often the case that the Minister gets to the Dispatch Box and says, “Well, this amendment is not suitable but perhaps we can get something else”. I think that there should be some consultation with the people. For everyone arguing that this is a democratic process, which should therefore be good enough for the people, we should remember the problems that this generation and generations before us have had. In Northern Ireland, we had a Government who kept saying, “The majority rule and forget about the minority or about consulting with the people. We are the ones who will push through the legislation and that will be the end of it”.

I just point to several such matters. The noble Lord, Lord Fowler, will recall that the Scottish people were the first in the British Isles to get the poll tax. That was because of a democratic decision in the other place, even though some MPs, including me, said at the time, “You’re creating a rod for your own back”. However, it was not until the poll tax came to the rest of the United Kingdom that people readily acknowledged that we were wrong. The argument that it goes through both Houses and that is the end of it and people have to accept it, is nonsense. We could be creating very serious problems. Noble Lords should bear in mind that it is normally the case that the Opposition question the Government, if that is what they want to do. However, the Opposition are supporting, not questioning, the Government on this legislation. That is where I feel that there should be some consultation.

Noble Lords will recall that the last time that the Labour Party and the Conservative Party got together, it was when the Conservative Party supported the then Labour Government in going into Iraq and seeking to remove Saddam Hussein. At the time, the Liberals said that there was a feeling out there in the country that this was wrong. Ever since then, we have been asking ourselves whether or not it was the right thing to do. I am on my feet not because there needs to be a referendum but because we need to find some way of consulting the people about the difficulties that we have got here. We are not passing a complete piece of marriage legislation. The Government have been shrewd enough to exclude the Church of England and the Catholic Church and to say, “We are not forcing you to do this”. Therefore we are not getting a piece of marriage legislation in the normal sense of the word. Of course the dates are down here in the amendment, but amendments can be changed or replaced by something more suitable to the Government and ultimately to the House. Let us find a way of consulting the people about what we are putting through both Houses.

Marriage (Same Sex Couples) Bill

Lord Anderson of Swansea Excerpts

Monday 8th July 2013 Lords Chamber

[Lord Cormack]

As a lay man who is glad and proud to be a Christian, I should like to associate myself with most if not all of the right reverend Prelate’s remarks. I am not sure about those that touched on establishment because I am a strong believer in the established church and I wish it to retain its position as far as marriage is concerned. However, this is clearly a fair and sensible amendment and I am glad to give it my support.

[Lord Anderson of Swansea]

I support the concession. I support the review. My only question for the Minister is that there would clearly be potential problems with sham marriages. What is the nature of the protections that she thinks should be built into this welcome amendment to protect against that?

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Moved by

[Lord Anderson of Swansea]

49: After Clause 7, insert the following new Clause—
“Employment protection
(1) After section 47F of the Employment Rights Act 1996 insert—
“47G Beliefs about the definition of marriage
(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer on the ground that the employee believes or expresses a belief that marriage should only take place between a man and a woman, provided that belief is expressed in a reasonable manner.
(2) This section is without prejudice to any rights which an employer may have under Schedule 9 to the Equality Act 2010.”
(2) In section 48 of the Employment Rights Act 1996, at the end of subsection (1) insert “or 47G”.””

[Lord Anderson of Swansea]

My Lords, I think I now have the message that the night is late and that I should be as succinct as I can be in moving Amendment 49. It, again, relates to employer-employee relationships and the adequate protections which, in my judgment, should be given to employees who are, of course, in a more vulnerable position as a result. Essentially, Amendment 49 seeks to protect the free speech of those who believe in, what I call in shorthand, traditional marriage. It provides protection, particularly in the workplace, for those who hold that view.

The amendment would insert proposed new Section 47G into the Employment Rights Act 1996 to prevent employers subjecting their employees to detriment for holding or expressing their belief. It is qualified only in that it protects the expression of belief in traditional marriage, and states that that belief must be expressed in a reasonable manner. Therefore, it is no protection to zealots who choose to travel well beyond the bounds of respect for the dignity of same-sex couples. The amendment is further qualified in that it does not affect employers such as gay charities and religious charities, which are allowed, under Schedule 9 to the Equality Act, to select job applicants on the grounds of sexual orientation and belief where there is a genuine occupational requirement for the job.

I should like to think that noble Lords will feel that all this is eminently reasonable. I look forward with interest to the Minister’s response and I hope that she will accept that this is a serious matter that deserves a serious reply. We are dealing with a view of marriage that was the orthodox view, and one that was accepted by the mainstream and, indeed, by all parties until some time after the 2010 election. Suddenly, there was pressure for change which gathered pace and the tide has swept on. There is a danger that supporters of traditional marriage will be left somewhat vulnerable on a sandbank unless there are adequate protections. These people are not bigots, as the Deputy Prime Minister called them, but ordinary people, many of whom are perhaps either in a majority or close to being in one. The question that we now have to ask ourselves is whether we should maintain space in the public square for those people to hold and express their views.

If an employer accepts the analysis that to be critical of traditional marriage is equivalent to being critical of black people and saying that they are not fully human, that may justify detrimental action. I hope that we can be assured that employers who take that view will not prevail.

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[Baroness Stowell of Beeston]

My Lords, I will begin by saying a couple of things to the noble Lord, Lord Anderson. He is absolutely right that we feel very strongly about the need to protect the freedom of speech, which is what we are doing through this legislation. He also talked about this being a serious amendment, and that he wishes the Government to take it seriously. I can assure him that not only do we take this amendment seriously but that we have taken seriously all amendments that have been tabled, both in Committee and on Report, and will continue to do so.

The noble Lord mentioned various examples to illustrate his argument that employees need additional protection. I responded to all of them at various stages of the Bill, so I will not do so again now. However, he said that people feel concerned that once the Bill becomes an Act—and we hope that it will become an Act—they will not be able to maintain what he described as a mainstream view. I understand that concern; however, not only will it be possible for people to maintain and express their belief, we recognise that that belief is a mainstream opinion. We are not trying to say that it is a sidelined opinion—it is an important belief that many people hold, and we would not want to say anything to undermine people who hold that belief, as we respect them.

On the noble Lord’s amendment and its proposal to amend the Employment Act 1996, we are not convinced that it is necessary, or desirable, to provide additional protection for employees in this way who express a belief that marriage should be only between a man and a woman. Discriminating against an employee because of this belief would already be unlawful under the Equality Act, as the noble Baroness, Lady Thornton, said. That existing protection strikes the right balance in providing protection for the employee, while also protecting other employees and customers from discrimination and harassment. It is important to understand that the Equality Act is there to strike a balance. Employers must have the right to ask their staff to do what is necessary to run their business, provided that it is reasonable and lawful. Therefore, if an employer does not think it right that an employee should express personal views on this or any other subject to customers, for example in a restaurant or hotel, he should be able to ensure that his employees perform their jobs in the appropriate way. To be clear, that does not mean that an employee has no right to hold the opinion or belief that they do.

Furthermore, if we are to pick out this particular belief for protection in the Employment Rights Act, what is the justification for stopping there? Other beliefs are equally worthy of protection, including the belief that marriage can be enjoyed equally by same-sex couples. The principle applies to an enormous range of beliefs which are entirely legitimate, although the expression of them might impede the performance of the job in question.

Employees are already protected under discrimination law. The Equality Act already provides comprehensive protection against unlawful discrimination—both direct and indirect—harassment and victimisation. It would be a matter of fact whether conduct of an employer constitutes a detriment and whether it is imposed because of the employee’s belief that marriage should be of one man with one woman. If there is direct discrimination, it would not be capable of justification and would be unlawful.

We believe that these amendments are unnecessary and potentially damaging to the balanced way in which the Equality Act protects people from discrimination and harassment. There is no need for further protection to be added to the Employment Rights Act. I hope, therefore, that the noble Lord feels able to withdraw his amendment.

[Lord Anderson of Swansea]

I hear the Minister and my noble friend Lady Thornton. I remind them that the law is not being introduced into a vacuum, but into an atmosphere where there is already active hostility to those who hold a traditional view of marriage. There is a very active lobby that would seek to take to court, or bring pressure upon, employers in that respect: that is a fact of life.

My noble friend says that we cannot legislate against idiots—I think that that was her phrase—and, of course, we cannot do that. However, the problem is that if points are raised by individuals against employees or if employers act in a way of which we do not approve, that still raises fears and is still expensive for those who are the object of that.

My noble friend also said that some of those cases have been won. For example, Mr Adrian Smith won a contract action against his employers, thanks to some good legal advice. However, that was a Pyrrhic victory, given that he lost his job. As a result he had minimal compensation; so it is not quite as simple as the Minister has said. I hear her, though I am not wholly convinced by her assurances. In the circumstances, I think that it is appropriate to withdraw the proposed amendment.

Amendment 49 withdrawn.

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Moved by

[Lord Anderson of Swansea]

53: After Clause 8, insert the following new Clause—
“Reasonable accommodation
(1) An employer has a duty to take such steps as are reasonably practical to accommodate an employee who has a conscientious belief that marriage is the union of one man to one woman for life to the exclusion of all others.
(2) The duty in subsection (1) applies where an employee would otherwise be required to act in a way which is contrary to their conscientious belief about marriage.
(3) For the purposes of subsection (1), an employee is as defined in section 230 of the Employment Rights Act 1996 but does not include a registrar, a superintendent registrar, the Registrar General or any person holding or exercising judicial office.
(4) This section is without prejudice to any rights which an employer has under Schedule 9 to the Equality Act 2010.”

[Lord Anderson of Swansea]

My Lords, this amendment is broadly in the same category as the previous ones and uses the phrase “reasonable accommodation”, which is well known in law. The purpose of this amendment is to protect employees from being compelled to act against their belief in traditional marriage, based on their conscientious objection.

For many centuries there has been a clear consensus throughout the United Kingdom, and indeed Europe and the Western world, that marriage is the union of one man and one woman. Until very recently—that is, until the galloping pace of the last year or two—that consensus went unchallenged. I assume that many doctoral students might find that an interesting example of pressure group activity.

Some have pointed to polls in an attempt to argue that there is now a consensus in support of same-sex marriage. The polls go in both directions, but at least we can conclude that there is a very substantial body of opinion—a very high proportion of the population—that remains in favour of traditional marriage. We therefore face the prospect of many of those people being unable in good conscience to embrace the new definition of marriage. How are we to respond to them? Freedom of speech is vital to everyone who subscribes to a traditional view, or where employment involves people being connected or intimately involved with marriage ceremonies.

I give the current Government credit for that. They have gone some way in an attempt to protect faith groups that are persuaded that marriage can only be between a man and a woman. In committee, the Minister emphasised that specific protections are in place to,

“ensure that religious organisations and their representatives who do not want to participate in same-sex marriage ceremonies cannot be compelled to do so”.—[Official Report, 17/6/13; col. 73.]

That was further elaborated today. The Minister added that,

“there are circumstances in which individuals need strong and effective protection in order for religious freedom to be safeguarded”.—[Official Report, 17/6/13; col. 74.]

Amen to that. However, with the exception of faith representatives who do not wish to solemnise same-sex marriages, the Bill currently contains no protection for other individuals; that is, individuals outside the ambit of the faith organisations. Therefore, for example, while a priest, minister, rabbi or imam is free to say that he does not believe in same-sex marriage and wants nothing to do with the ceremony, the Bill provides no protection at all for the chauffeur, seamstress, printer, photographer, caterer or marriage counsellor who may be no less committed to the principle of traditional marriage. Obviously, the normal legal principles would have to prevail—that is, that the relationship should not be too remote. This amendment therefore is based on the premise that not only church and faith leaders require strong and effective protection. In addition, a whole host of ordinary people will face crises of conscience. It is the job of this House and Parliament to protect minorities—sometimes difficult minorities, in my judgment.

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[Baroness Stowell of Beeston]

My Lords, I am grateful to all noble Lords who have contributed to this debate. I shall try to avoid repeating myself, because a lot of this amendment would lead me to do so. I will avoid doing that, if the noble Lord, Lord Anderson, will forgive me, and go directly to the central point of his amendment.

My first point is that an employer should have the right to ask his employees to do their job. Equally, he may not impose a requirement on them that would discriminate against them because of their religion or belief. Of course, it is open to private sector employers to make any adjustment they wish for their staff. It is quite possible, and perfectly lawful, for an employer to allow staff not to be involved in any activity that is objectionable to them—if the employer wishes. In this regard, private sector employers are not in the same position as public sector employers. As the noble Lord made clear, he does not include the likes of registrars in this debate in any case.

However, imposing a duty on employers to provide reasonable accommodation in respect of religion or belief would be a new concept in English law, as the noble Lord has already acknowledged, although he mentioned that it was common practice in the US. We would need to consider in detail how that duty would work in conjunction with the rules on indirect discrimination, and whether all other religious and philosophical beliefs should be equally protected—not just the belief that marriage should be of one man with one woman. That is not a task to be undertaken in this Bill, and I note the comments from my noble friends Lord Lester and Lord Deben about their view of this concept.

To pass this amendment would add a new burden on employers, who would have to work out what it means in their own particular context. It is probably worth pointing out that in his evidence to the Joint Committee on Human Rights, Robin Allen QC, on behalf of the Equality and Human Rights Commission, made clear that the existing legal protections contained within employment and equality law would be suitable to deal with any issues that may arise. He advised against including additional safeguards, such as a reasonable accommodation provision in this Bill.

So the current provision in legislation, which prohibits discrimination because of religion or belief, is fit for purpose. To impose a whole new duty of reasonable accommodation in this Bill is unnecessary. It could also be damaging to the balanced way in which the Equality Act operates, create uncertainty and add a new burden on employers who would have to make sense of it. I therefore ask the noble Lord to consider withdrawing his amendment.

[Lord Anderson of Swansea]

My Lords, if we truly believe in liberty of conscience, we can hardly be against an attempt to ensure that an employer seeks to accommodate, wherever reasonable, the views of an employee. I hear the noble Lord, Lord Deben, who tried to reduce to an absurdity the point that I was trying to make, but does he or does he not believe in the principle of seeking to accommodate, wherever practicable? Clearly, in many firms such an accommodation would not be practicable because of the number of individuals concerned but in the example of a car firm with perhaps 10 drivers, it is surely not unreasonable to ask an employer to ensure that the individual who has expressed such a view is not the one called upon to drive.

The noble Lord, Lord Lester, prayed in aid US precedence during a number of earlier debates on this matter. He quoted Brown v the Board of Education of Topeka. He or someone else mentioned Plessy v Ferguson, the separate but equal case in relation to the railroad. There were a number of other cases to the same effect but the noble Lord is less willing to quote US precedent when it does not happen to suit his purpose. Under the 1964 Civil Rights Act in the US, there is such a provision for reasonable accommodation. It has worked there successfully since that time and I have no reason to doubt that if we were to put such a measure into law today, it would work equally effectively in England and Wales and other common-law jurisdictions.

[Lord Lester of Herne Hill]

The Equality Act 2010 is the best civil rights legislation in the world and is vastly superior to United States civil rights legislation.

[Lord Anderson of Swansea]

The noble Lord cites US precedent when it happens to suit his case. He is less ready to cite it when it does not, such as when considering the effect of the Civil Rights Act. However, I hear what has been said. Clearly, the proof of the pudding will be in the eating. We shall see how the Bill will affect others but I still think it is not unreasonable to ask employers to seek such a reasonable accommodation, wherever practicable. However, this time, I beg leave to withdraw the amendment.

Amendment 53 withdrawn.

Marriage (Same Sex Couples) Bill

Lord Anderson of Swansea Excerpts

Monday 24th June 2013 Lords Chamber

[Lord Anderson of Swansea]

My Lords, it is surely not difficult to construe the meaning of Clause 14. As the noble Lord, Lord Pannick, said, we know that the Secretary of State has agreed to arrange for the “operation and future” of the Act to be reviewed and for a report following that review to be produced. We know also, in subsection (2), that such a review is not prevented from dealing with other matters. What is absolutely clear from the debate thus far is that everyone who has spoken—those in another place, too—recognises that there is a particular injustice and anomaly in the case of siblings and carers. I congratulate the noble Baroness, Lady Deech, on raising this question yet again. She has been a consistent campaigner in this regard. She spoke eloquently and elegantly, as the noble Lord, Lord Cormack, said.

I would find it anomalous if the Government were to say that they cannot take this further because of the European Court of Human Rights judgment. That would be a little puzzling because obviously they have not adhered slavishly to the judgments of the European Court in respect of prisoners’ rights, for example. They have shown that they can be quite selective about that. Perhaps the Minister will, as in the past, draw on the manual available to all Ministers. I am sure there must be a little book of various forms of objection. One of them is: “This is not the appropriate vehicle”. That may well be relied upon in this case. It may not be appropriate but at least the review can include matters that Members of this noble House deem important because we feel that sense of injustice.

The genesis of the review provision is of interest. Perhaps in their desperation to get the Bill through speedily and strike a deal with the dissidents, the Government came up with the idea of accelerating the review. Historians will no doubt find of interest the bargaining that lay behind those deals. Clearly, there was an initial contradiction in the Government’s position. They placed everything on the altar of equality. Equality was worshipped and all other considerations were pushed aside. It is hardly equal if homosexual couples have the choice of either a civil partnership or marriage whereas heterosexual couples do not have that choice and must be content with traditional marriage. There is a basic contradiction there.

To end, my own judgment is as follows: one thing I have learnt over very many years is that the British people have a fundamental sense of justice. Of all those who have spoken, I commend particularly the noble and learned Lord, Lord Lloyd of Berwick. He gave some telling examples from his village and his own experience. His questions need an answer and should be addressed at some stage by this House and Parliament generally. It is surely anomalous that, following the passage of this Bill, homosexual couples with perhaps a deathbed marriage will be in a far more advantageous and favourable position relating to inheritance tax provisions and tenancy than people who have looked after sisters or brothers or cared for others, as the Burden case has shown. People who have perhaps been together for decades will continue to be disadvantaged. It may well be that nothing substantial will emerge from the review but I commend and congratulate the noble Baroness on raising this question and relying, again, on that sense of fairness in the House.

[Lord Alli]

At the heart of this debate is the basic premise that, given that gay marriage will occur, we should open up civil partnerships to a range of other people. We will see that in a number of amendments as we proceed through Committee. My problem with that is that I do not believe that gay marriage is being opened up as part of this Bill. This Bill creates civil same-sex marriage but it does not create equal marriage in the case of religious organisations. It is an enabling Bill and removes the prohibition for same-sex marriages in England and Wales, with the notable exception of the Church of England, which retains so many locks. The Bill preserves an inequality in religious marriages for the very good reasons we have debated throughout Committee. This is an important point in why I think civil partnerships have a very important role to play going forward.

I have listened very carefully to almost every word of the debate and I detect a real mood on the Benches Spiritual and in other religious organisations to recognise, respect and show good will to same-sex couples. When listening to the debates, there is no doubt that that movement is happening. I pay special tribute to the most reverend Primate the Archbishop of Canterbury for the way in which he has sought to shine a new light on these relationships. I believe that before we see same-sex marriage in our churches, temples and mosques, we will see civil partnerships celebrated. We will see liturgies and special services created to bless gay couples without the churches having to change their views that marriage is between a man and a woman.

That movement forward in some religious organisations can happen only if civil partnerships stay in place for a little while longer and do not apply to these other categories of people. For example, while I support those who want civil partnerships to be extended to opposite-sex couples, civil partnerships for same-sex couples will have a unique role to play that justifies their position in a way that is not the same for opposite-sex couples. For me, that is a fundamental part of why I want to resist the extension of civil partnerships in this Bill. Religious organisations have made it clear that very soon a number of them will want to bless civil partnerships, and these amendments would remove the ability for them to do so.

In direct relation to Amendment 46A, there has been a huge amount of discussion about the fairness of these relationships but I cannot imagine that many carers or family members who share a house would wish their relationship to be solemnised before God and in the presence of their friends and family. That, for me, is the fundamental difference. The noble Baroness, Lady Deech, was quite right to quote me, and the noble Baroness, Lady O’Cathain, will recall that we had significant and detailed discussions of this issue during the passage of the Civil Partnership Act 2004. The other place was not sympathetic to what was being proposed because of the different aspects for same-sex couples. I really applaud the work of the noble Baroness and that of the noble Baroness, Lady O’Cathain, in trying to advance the plight of carers but I implore your Lordships to look at the role that civil partnerships will have in the context of religious organisations and allow them the ability to bless these stunning relationships in a way they see fit. It is the other side of the coin to not having gay marriage in religious organisations.

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[Baroness Deech]

I think that the noble Lord and the noble Baroness, Lady Hollis, have misunderstood my point. Of course there would be no question of making anybody enter any sort of contract of union. I am sure they would sit down and work out whether it was worth doing because of inheritance tax, and then of course they would—and should—happily take on the duty of supporting each other. However, if they do not want to, and they want their benefits, then that is it; there is no question of dropping this on them without their consent. There would have to be some sort of formality.

[Lord Anderson of Swansea]

On that issue, the situation is surely this: there is no compulsion, and if any couple, be they carers or siblings, were minded to consider that new relationship, they would surely sit down and work out what could be a major downside. They would no doubt take professional advice to see what the advantages and the disadvantages were, and if the disadvantages of that relationship far outweighed the advantages, they would not proceed. It is as simple as that: there is no compulsion.

[Lord Marks of Henley-on-Thames]

My Lords, around the Committee there is clear recognition of an injustice in inheritance tax terms to carers and siblings. However, while I do so with diffidence, I will to try to answer the question posed by the noble and learned Lord, Lord Lloyd. He effectively asked what the difference was between siblings living together and couples presently in civil partnerships living together. The answer, I suggest, is that the noble Baroness’s amendment threatens to undermine the whole notion of civil partnerships, which are about loving relationships between people living together as couples—and yes, in a sexual relationship—rather than about carers or adult brothers and sisters.

The questions are not questions about inheritance tax. I suggest that the point made by the noble Lord, Lord Alli, that people may wish to continue in civil partnerships even after this Bill goes through and even where they are same-sex couples is completely valid. To broaden the notion of civil partnerships, as this amendment suggests, undermines that possibility. Even in the words of the amendment which calls only for a review, as emolliently pointed out by the noble Lord, Lord Pannick, the suggestion has that tendency to undermine what civil partnerships are. It is for that reason that nine years ago noble Lords called the notion embodied in this amendment inappropriate and why, although it was passed here, it was rejected by the other place. I suggest that the amendment should be rejected today for the same reason and that Parliament needs to find a way, whether as described by the noble Baroness, Lady Hollis, in her erudite explanation of the technical difficulties, or some other way, to solve the quite separate injustice to carers and siblings without interfering with or undermining the notion of civil partnerships.

--- Later in debate ---

[Lord Elton]

My Lords, in that case they still have to go to the Supreme Court. They have to go to the top of the Matterhorn instead of the top of Everest. In the mean time, while they are on the way up there, others suffer. I hope my noble friend will realise that what the right reverend Prelate and allies are seeking here is to introduce a security of protection at a lower level. If it is in the guidance that the Secretary of State under statute has to give, then it is available at county council level and not up at the top.

[Lord Anderson of Swansea]

My Lords, the purpose of the Committee stage, as I understand it, is to scrutinise draft Bills, to propose amendments and to seek, where possible, the concurrence of the Government with those amendments. It is sad that throughout this Bill the Government have taken the view that they were right from the start and that any amendments which have been proposed are either otiose, excessive or outwith the purpose of the Bill. Here is an occasion where the Government can perhaps show a little magnanimity and say that there is serious concern, as a number of noble colleagues have said. Although one might have some confidence in the guidance issued by the department, it is only guidance. It does not need wild speculation about what future Secretaries of State may or may not do. The wording in the Bill gives some assurance which I believe is proper.

Some of us in this House still consider ourselves to be politicians, even if lapsed ones. Surely one factor we should recognise from the start is that there is a clamour in this country to send children to religious and church schools. It is certainly my experience. Why is this so? The view of the great populace is to favour the discipline and ethos of those church schools for their children. I was interested a few years ago to have a friend who was a headmistress of a Church of England school in the East End and almost 100% of her pupils were Bangladeshi. Why did they choose the church school? Because that community recognised the value of church schools.

I am not a Roman Catholic—in fact I am a nonconformist—but I know from my experience as a constituency Member the quality of the Roman Catholic tradition. Perhaps I might say in passing to the right reverend Prelate, I endorsed all that he said. He spoke well, not only on behalf of the Church of England, but also on behalf of the Roman Catholic Church. I was musing to myself as he spoke; would it not be good, from the point of view of the quality of legislation in this House, if we had some senior members of the Roman Catholic faith who could put their own views forward directly and not rely on the good will of someone who is part of a separated brethren?

Be that as it may, we are where we are and have to accept that a vast number of people want to send their children to those schools. They approve of the ethos of those schools. The Government purport throughout that they have provided adequate protections—the quadruple lock in relation to the Church of England and the protections in respect of teachers and parents. If they are so keen to provide those protections, let it be absolutely clear that here on the face of the Bill is the opportunity to do just that. In my judgment it is not otiose. It will have widespread acceptance from those who really value the ethos and values of our church schools. It is a test of how serious the Government are when they talk so much not only about the core principles of this Bill but the counterpart—a readiness to provide adequate protection for those who wish to continue in their own ethos, who accept the new legal basis but wish to continue to put forward the traditional views of marriage.

[Lord Baker of Dorking]

My Lords, I did not intend to speak in this debate but I have been referred to a few times, due only to the fact that I think I am the only living person in the Chamber who has been Secretary of State for Education.

I feel that this amendment is unnecessary for a variety of reasons. I speak as an Anglican and was rather surprised that my church had taken the view that it has on same-sex marriage. The law of the land will be changed on same-sex marriage, and for the established church to say in effect that it is contracting out of it and not to allow its churches to be used for it is not, I would have thought, in the tradition of Anglicanism—not the Anglicanism that I favour. The history of the Church of England from 1533 onwards shows that it is not so much a question of the tenets or the 39 articles but of what happened with individual vicars in their parish churches. If you look at how English vicars interpreted Anglicanism in the 17th and 18th centuries, there is an infinite variety of activity. I should have thought the Anglican church would have done much better to have followed that practice than the one that it has followed.

That aside, on this particular matter, the position is in fact exceedingly clear. Where the state has provided birth control and various government agencies promote it, teachers in the Catholic Church will make it very clear that this is something which they object to and they think is fundamentally wrong. It is not a tenet of their faith but a practice, and the same is true of divorce. A great deal of discretion is already happening every day in our schools. I think it would happen in this case with the Anglican Church regarding sex education. I went to a primary church school in Lancashire and we did not have any sex education at all. I suppose that sex had not been discovered so much in those days. I even went to a secondary grammar school in Lancashire for two years and we did not have any sex education there either. I know we were very repressed sort of people—limited and all that—but it was alien to us.

Today it is clear that when sex education is taught in schools—I promoted it when I was Secretary of State—it is very much in the context of a loving relationship. It was the point that the noble Lord, Lord Pannick, made. It was not just the act of physical gratification—immediate and then finished with. It was to establish a loving relationship and that was a very essential part of all sex education. So when the matter of marriage comes up, it would be quite possible for any teacher, even a clergyman teacher at a Church of England school, to say they believed very strongly that marriage should be between a man and a wife and the purpose is to create a family. Even when he is talking to 12 and 13 year-olds, they will know a lot about other people who do not live like that. It has all changed today. It will not be a matter of teaching but of discussion—that is what it will be more like in actual practice. The teacher will be able to say, without fear of persecution and quite clearly, “This is the view that we believe in the Anglican Church at the moment, and we think that is the position”. So I believe that this amendment is not necessary.

Marriage (Same Sex Couples) Bill

Lord Anderson of Swansea Excerpts

Monday 17th June 2013 Lords Chamber

[Lord Elystan-Morgan]

My Lords, I find myself in total agreement with the submissions made so clearly by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I have immense respect for and sympathy with those who stand firmly on each side of this argument. If it is proven that there can be no actual sameness in single-sex and dual-sex marriage, then on a very artificial basis the argument seems to be carried that way. There cannot be total sameness, and we all know that.

However, the question that we should humbly be asking ourselves this afternoon is: can there be so much in common that the idea of marriage can accommodate both in respect and in status? That, I think, is the real question. If the argument was that the Christian concept of marriage is now and always has been immutable, unchangeable and utterly the same from generation to generation, then my case would fail. However, is that in fact the case?

Prior to 1836, people could get married in this country only in the Church of England. My forebears were staunch Welsh Presbyterians but they had to submit to a ceremony that they regarded as wrong. Was that not a massive change in so far as the institution of marriage was concerned in 1836? I am sorry to pontificate about matters that are well known to many distinguished lawyers in this House but before 1882 and the Married Women’s Property Act of that year, a married woman could not hold substantial property in her own name. She could hold what I think was called her “paraphernalia” but other property became the property of her husband and she herself was essentially a chattel of her husband’s estate. Immediately after that Act of 1882, could anybody say that marriage had not changed at all, any more than one could say it after 1836?

Then, in 1925, the criminal law was substantially changed. Previous to that point, if a married woman was present when an offence was committed by her husband, there was a clear presumption—a rebuttable presumption, it is true—that she was acting under his dominion and under his orders. Would one not say that that substantially changed the situation of marriage in the criminal law?

[Lord Anderson of Swansea]

The noble Lord is giving us a very fine history of a number of changes which have, by statute, been brought about in relation to the definition of marriage. Is he suggesting that any of those changes was of the scale and nature of the change now being proposed?

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, when we are looking at a Bill which has the intention of increasing respect for and giving rights to a minority, it is equally important to look at another minority who will be unable, from their personal conviction, to accept the validity of the consequences of this Bill. The Equality Act has its defects. I strongly supported it, particularly all those elements in relation to gay rights, and I would do that again here. I would take that right to the stake because while I do not agree with marriage, I certainly agree with equal rights.

What I am concerned about—I expressed the same concern during the passage of the Equality Bill—is the right of other people who are in minorities to express a view that is unpopular with many other people, particularly with other minorities. We are now in a new dimension in that we are going to have same-sex marriage. Whatever it is called, it will be marriage. However, there will be people out there who cannot take it. This Bill should recognise that situation, and however great the Labour Opposition think their Equality Act is, it does not necessarily cover every aspect of what we are concerned with today; that is, those who cannot tolerate marriage for same-sex couples. Even if it may be partially covered by the Equality Act, it would be highly wise to have something in this Bill that covers this issue.

I agree with the noble Baroness, Lady Turner, that these amendments may not offer the right wording, but we are in Committee. Surely we could produce, by Report, something that provides some degree of support for other minority groups.

[Lord Anderson of Swansea]

My Lords, my noble friend Lady Thornton speaking from the Front Bench and my noble friend Lord Alli have argued, no doubt persuasively in their view, that the current protections are adequate: the Equality Act is in place. However, in my judgment that contention is belied, first, by the fact that a number of leading counsel take a contrary view and say that the protections are not adequate, and, secondly, by the fact of some of the cases, some of which have already been cited. We will come to the registrar later, as well as the chaplain to the police and other such cases. It would be helpful if we could have a response from the Minister that these cases would in fact have received protection under government Amendment 53 and any other protections which the Government may seek to provide.

My own starting point is clear: as a House, we should seek to protect minorities from what is, sometimes, the tyranny of the majority. We can refer to the wonderful literature on this, such as by Mill and de Tocqueville. I would recommend all colleagues to read and re-read what they say about the tyranny of the majority. Surely, part of our duty is to ensure—so far as we are able—that minorities are protected. In this case, we seek to protect and to give dignity and equal rights to a minority in our country. I would hope that those in this minority would also see the importance of giving protection to another minority—those who think highly of traditional marriage as defined.

[Lord Alli]

My Lords, I know something about minority. However, I am a little confused because, in this amendment, the noble Lord claims to be in the minority; in the previous amendment he claimed to be in the majority. You cannot have it both ways.

[Lord Anderson of Swansea]

My noble friend is playing on words somewhat. At Second Reading there was much contention as to what the majority opinion in this country was. In my judgment, the Government carried out a fairly spurious, bogus consultation where they chose to ignore a petition containing a very large majority which, had it been added, would have shown a majority against the Bill. One chooses one’s public opinion poll. My noble friend may choose one particular poll; I may choose another, both of which bolster our respective opinions. The point I am making is that my view of traditional marriage—which is not just Christian marriage, but that of a number of other confessions—is something worthy. It should be protected, and those who espouse it should achieve protections. That is important even if, say, 46% of respondents to the latest poll oppose this Bill. I do not know what overall public opinion is.

I would challenge the Government to test that opinion. I shall move an amendment later which suggests that, if the Government are so confident that this represents majority opinion, they should hold a referendum, given their record in other areas, such as the relatively trivial transference of sometimes quite minimal provisions to the European Union. This may not be relevant to this particular clause but, even if the views which I and many other colleagues espouse are in the minority—and there is some uncertainty about that—that minority deserves to be protected. Those who have been a clamant minority and who have won support during the passage of this Bill, should also be conscious of the protection of other minorities, if that is what we are.

In answer to the contention of my noble friend that the protections are adequate, let him look at some of the cases that have been brought. It is sad that there are many zealots on both sides of the argument—zealots who seek to use the law to the full for their own purposes. There are many ordinary, decent folk who find that they are the subject of litigation. Not only are they in an agony of uncertainty in the intervening period before their case comes to court, but it is also a very expensive matter. With very limited resources, they may find that they are up against very well-padded groups. That is the reality of these matters. Whatever the legislative provisions, people on both sides will push at the borders. I would urge my noble friend, consistent with the views which he and I generally espouse in respect of minorities, to look carefully to see that the tide has not run so far in one direction that there is indeed a tyranny—in this case, the tyranny of a minority.

I refer specifically to Amendment 19. I know this is not a view that my noble friend has espoused, but the leader of the Liberal Democrats, the Deputy Prime Minister, has called people like me “bigots”. I resent that because there are many people on our side of the argument of all stripes—lawyers, academics, atheists, those of all religions, straight people, gay people—we are not bigots. We are people who happen to hold a traditional view of marriage. I have not heard that the leader of the Liberal Democrats has withdrawn that assertion. I hope that he will. I have not taken it out of context. It means that he has applied a label to many of us which we thoroughly resent.

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[Baroness Stowell of Beeston]

My Lords, I am grateful to all noble Lords who have spoken in this very important and helpful debate. May I say first that I am grateful to the noble Lord, Lord Alli, for repeating what I said at Second Reading? The Bill absolutely makes it lawful, and continues to make it lawful, for people to believe that marriage should be only between a man and a woman. It is their right to express that belief and the Bill does nothing to change that. I am also grateful to the noble Baroness, Lady Thornton, and my noble friend Lord Lester for what they said about the Equality Act protecting people who have a range of religions beliefs but in this context hold the belief that marriage should be between a man and a woman and are free to express that belief. It is important that I continue to make that clear.

I also recognise, however, that people are looking for reassurance and want to know that it is perfectly legitimate to continue to hold the beliefs that they have always held, and that they will not be in any way disadvantaged because of these beliefs—or, indeed, that it would be unfair for people to criticise them in any way, although clearly it is free for anybody to express an opinion that is contrary to that view.

As the noble Baroness, Lady Thornton, mentioned, the Government are bringing forward an amendment to the Public Order Act. I will speak to that in a little more detail when I take the amendments in turn. We felt that it was important for us to do this as we recognised the need for assurance and because it was possible to make that amendment to the Public Order Act without causing any detriment to anybody. We really do understand that people are looking to us for assurance.

The amendments have clearly enabled us to explore issues of conscience in relation to the Bill, and it is right that we should do so. Let me start with Amendment 5, which was moved by my noble and learned friend Lord Mackay of Clashfern. He seeks to explore how the Bill could impact on those seeking appointment to a public office—such as appointment to the board of a non-departmental body. The amendment seems to be based on the premise that, should the Bill be enacted, anyone expressing a belief that marriage should only be between a man and a woman might somehow be excluded from appointment to public offices.

I can reassure noble Lords that this is certainly not the case. This Bill is not about forcing people of faith to change their religious views, practices or teachings about marriage. The belief that marriage should be between a man and a woman is, and will continue to be, mainstream and entirely lawful. Indeed, the Bill explicitly makes clear that such a belief is legitimate and mainstream through the specific protections it provides to ensure that religious organisations and their representatives who do not want to participate in same-sex marriage ceremonies cannot be compelled to do so.

Public appointees, like anyone else, are and will remain free to express their religious or philosophical beliefs as long as this does not affect their ability to do their job.

[Lord Anderson of Swansea]

The noble Baroness is making a very important point. She will know that concern has been expressed about the conduct of various authorities in the past—certain councils, certain police authorities and so on. What assurance can she give the House, in the spirit of the assurances that she is now giving, that adequate guidance will be given to these authorities so that we do not have a repetition of how poor individuals have been pilloried in the past?

[Baroness Stowell of Beeston]

I am about to come to the specific examples that have been raised. I hope I will also give the noble Lord some comfort by saying that we are working with the Equality and Human Rights Commission to review its guidance and ensure that revised guidance is issued. It is also looking at its statutory codes in this area. I accept, as has been pointed out by noble Lords in this debate, that we need to make sure that public bodies in particular—although not just public bodies—are clear that it remains absolutely lawful for somebody to express their belief in this way. We want to make sure that that is clear to them. The Equality Act 2010 provides express prohibition against discrimination because of religion or belief. This includes a religious or philosophical belief that marriage should be only between a man and a woman. This protection applies in relation to public appointments and to employees.

I move on to Amendments 7 and 8, tabled by the noble Lord, Lord Dear. I am grateful for his explanation although, on the face of it, the scope of these amendments is not entirely clear. However, it would certainly include a range of public authorities and religious organisations, and would potentially extend to commercial service providers. Like the noble Lord’s amendment in the earlier group, these amendments would effectively create two tiers of marriage—a point made, I think, by the noble Baroness, Lady Turner—with marriages of same-sex couples on a lower tier. That would undermine the fundamental purpose of the Bill, which, as I made clear in earlier debates, is to extend the single institution of marriage to same-sex couples.

Of course, there are circumstances in which individuals need strong and effective protection in order for religious freedom to be safeguarded. For example, a clergyman should not be compelled to solemnise the religious marriage of a same-sex couple against his conscience. We all agree about that, and the Bill provides that protection through the explicit protections already contained in the quadruple lock.

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[Baroness Stowell of Beeston]

He may have only one driver. It may be a very small firm and the only driver available is that driver. It is not possible for us to legislate. The employer might turn around and say that he has a team of people and that he is quite happy with that arrangement. Outside a public authority, I cannot give the noble Lord a definitive response to the kind of scenario that he is painting. It is absolutely clear that it would be legitimate for that person to express their view, but not for them to say that, because they hold that view, they therefore do not have to do what they are employed to do. I hope that is clear for the noble Lord.

[Lord Anderson of Swansea]

Would it be legitimate for an employer to dismiss from employment as a chauffeur someone who had expressly told him at the time of employment that he was not prepared to convey people at a same-sex marriage?

[Baroness Stowell of Beeston]

We are now getting into so many different hypothetical scenarios—

Marriage (Same Sex Couples) Bill

Lord Anderson of Swansea Excerpts

Monday 3rd June 2013 Lords Chamber

[Lord Anderson of Swansea]

My Lords, some tend to label anyone who opposes this Bill as part of a group of homophobic bigots. Once that is said, the argument has stopped. As a Labour Peer, I wholly dismiss that—I find it insulting. I note, for example, that some key elements of the homosexual lobby, including Stonewall, have come to support same-sex marriage only in the fairly recent past. For me, there is a clear distinction between anti-discrimination, which I support, and seeking an absolute equality, which I oppose. I recall that as a young barrister I was saddened to see before the courts a trail of men whose lives and careers had been ruined by the then law. I am also glad that the legal discrimination which existed has been removed by the Civil Partnership Act. If there are deficiencies, they can be met by amendments of the Act itself to further protect same-sex couples.

Today, proponents of the Bill appear to argue on the basis of equality, but equality is not an absolute good. I am not a Roman Catholic, but saw this same false reasoning employed against Roman Catholic adoption agencies. Reasonable compromises were cast aside by zealots in the name of equality. The juggernaut rolled on. The result was that children lost out, as those caring agencies were forced to close.

In this case, the good in question is the institution of marriage, which has never yet been changed. Of course there have been changes in the law of marriage, but nothing as fundamental as this change to the institution. Marriage as traditionally defined is the union between a man and a woman. A bedrock principle, it relates to the rights of children and their need to know their identity, and is a generational bridge between the past and the future. Its fundamental position in our law is well illustrated by the number of statutes that will have to be changed if the law is now passed. The Bill seeks to make equal that which is not equal. The relationship between a man and a woman is unique. Same-sex relationships are different. Perhaps we should seek to find another name for them, if same-sex couples seek dignity. Thus there is the problem with this Bill of dealing with first, adultery, and secondly, non-consummation. In the Bill, same-sex couples are not required to take account of these criteria, but are still deemed to be married.

Some argue, as we have just heard from the noble Lord, that love between any two people is a decisive consideration: “amor vincit omnia”. However, love is not everything. The law of marriage discriminates on grounds of age and affinity: you cannot marry a parent, sibling or child, or marry someone who is already married. Why exclude these categories in the new definition? Hence, in the Netherlands, a court has endorsed a three-way cohabiting contract. In Brazil a three-way union has been allowed. Today, the borders are clear. Where, then, are the new borders as one sets out on this path? There will be increased pressures for polygamy. In short, marriage should surely not be available for everyone, even if they love one another. The state cannot lightly modify the meaning of words that have stood the test of time, as with Orwellian Newspeak.

The Government announced their proposals in March last year. There was no manifesto commitment, Green Paper or White Paper, and very inadequate consultation on the “how” and not the “whether”. There is no evidence of substantial demand, although there would be some pent-up demand at first. There is no evidence of claims that the change would strengthen the family or the institution of marriage. There is no evidence that the Government, in their haste, have examined the effects of the change in other countries. There is no evidence, either, of any serious attempt to protect conscientious objectors, teachers, social workers, registrars, foster parents, or churches which use public halls for worship.

Why the hurry? If the Government were so attached to the principle of equality, they would have changed both institutions—marriage and civil partnership—from the outset, and would not have been forced into a messy last-minute deal to ensure the passage of the Bill. This is not the way to deal with a hallowed institution that has been fundamental to civilised societies from time immemorial. A French philosopher, who was a disciple of Rousseau, once observed that our Parliament can do anything save change a man into a woman. This Government appear to think otherwise—or at least that Parliament can change traditional gender relationships.

We know that Mr Cameron likes consulting the people in referendums. Indeed, not only has he promised an “in or out” referendum on EU membership in 2017, he has enacted already for a referendum whenever there is a transfer of power to Brussels. Surely this proposed change is far more fundamental to our society than any transfer of power to Brussels. Therefore, I challenge him to call a referendum. He and his friends will put their case for yes, while many of us—Labour, Conservative and Cross-Bench—will be on the other side. Let the people decide.