Marriage (Same Sex Couples) Bill

Lord Bishop of Chester Excerpts

Monday 8th July 2013 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I am grateful to the noble and learned Lord across the Chamber. I want to make a brief point to the noble Lord, Lord Lester. If the noble and learned Lord, Lord Mackay, had asked for the phrase, “traditional marriage”, the point made would have some benefit and would be something that we should perhaps take into account. But the amendment refers to “same sex couples” and “opposite sex couples”, so how on earth can anyone suggest anywhere that one sort of couple is better than another sort of couple? They just happen to be different—different and equal. So I cannot see how the noble Lord, Lord Lester, can make the point that one group will be downgraded because they are the same sex and another will not be downgraded because they are opposite. That is not an argument that can be used in the present wording—very clever and careful wording, if I may respectfully say so—of the noble and learned Lord’s amendment.

[The Lord Bishop of Chester]

My Lords, I find myself asking, what would actually change in the Bill if we accepted the amendment? As I understand it, there would be recognition of difference yet equal treatment of the two types of couple. That is what would happen. Therefore, I ask the noble Lord, Lord Lester, who we all respect so greatly, is it the case that the couples would not be regarded equally when, in fact, the treatment of the couples would be exactly equal in law? The noble and learned Baroness, Lady Butler-Sloss, made a similar point. Would accepting the amendment of noble and learned Lord, Lord Mackay of Clashfern—there are two Lord Mackays now in the House—accord either of these forms of marriage a superior status, as was alleged? I do not see that on the face of the Bill. It simply accepts a certain difference.

Behind this lies a seductive aspect of the Equality Act itself, that any differentiation amid the protected characteristics is all the same. Therefore, the difference between a woman of childbearing age and a woman beyond childbearing age is just the same as the difference between a man and a woman. That is plainly not the case. There is a greater distinction between a man and a woman biologically than between a woman of childbearing age and one who is not. An element of recognition of difference within equal treatment in law is entirely consistent with the purposes of the Bill.

[Lord Waddington]

I read on Saturday a speech made by the most reverend Primate the Archbishop of Canterbury. I will not trouble the House with much of the speech, but it contained this particular passage:

“The opposition to the Bill, which included me and many other bishops, was utterly overwhelmed … There was noticeable hostility to the view of the Churches”.

I was not surprised by what I read. There are many of us not of the church who have experienced the same hostility to our views. I hope that supporters of the Bill do not forget that a substantial proportion of the population were, and are still, greatly disturbed that the Government should have introduced a measure that rejects the traditional view of marriage. Many of us are surprised that, far from trying to meet the concerns of such people, the Government have turned down every opportunity to soothe the susceptibilities of those who find the concept of same-sex marriage difficult to stomach.

Surely the Bill should not reach the statute book without the Government doing something to acknowledge that, until recently, it was almost universally accepted—it was certainly so accepted by the previous Government—that marriage could be only between a man and a woman. The views of those who still hold that belief are therefore worthy of respect and should be acknowledged in the Bill. The best way of doing that is not just by a declaration in the form set out in Amendment 4, but by a clear statement that the marriage of a same-sex couple and the marriage of an opposite-sex couple are equally valid but clearly different. The differences have been gone over time and time again since Second Reading and I will not go into them now, but they are different.

I do not think that so far this burying of traditional marriage, and putting something entirely new in its place, has yet been fully recognised by the populace. I wonder how many realise that this legislation authorises in law a man who is married to another man to be called a husband, and a woman married to another woman to be called a wife. Wife in its old meaning has been abolished by a little-read schedule to the Bill and, no doubt, the proper use of the term will soon disappear. These are dramatic changes—changes that pay no regard to the normal use of the English language, tradition, common sense or common courtesies. It is up to those initiating such change to try and make it reasonably palatable for those who were brought up to accept that marriage is the union of a man and a woman. I hope that, even at this late hour, the Government will recognise that they have some obligation in this matter.

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[Lord Higgins]

I had already sat down. However, it seems to me that there is no reason to suppose that anyone would have anticipated this. When I led from the opposition Front Bench on same-sex partnerships, no one envisaged this; indeed, a number of people said that it was not going to happen.

[The Lord Bishop of Chester]

My Lords, as a bishop of the Church of England who is constrained by the church not to conduct same-sex marriages, the vision of the noble Lord, Lord Alli, has stimulated me briefly to rise to my feet. I suppose that I should declare an interest, given that I am a sort of registrar. Perhaps I am the only one here, as a bishop of the Church of England.

This is a modest amendment, as has been pointed out, but it has a certain symbolic importance. A lot turns on the status of the issues that we talk about, and that has dogged our debates throughout. The noble Lord, Lord Lester, asked why there is an exception in this case. However, the law does make exceptions in relation to the strongly held beliefs of a significant number of members of a religious body in relation to sexual orientation. The law allows religious bodies to have single-gender priesthoods or whatever. We have agreed exceptions in that area that we have not agreed in other areas, such as divorce. That is why the parallel between same-sex marriage and divorce—I think that the noble Lord, Lord Pannick, raised that point—does not quite follow. It depends on what one regards as the status of the different issues. For example, as I pointed out at Second Reading, historically the canons of the Church of England have never banned clergy from remarrying divorced people. A different status applies in this instance.

One of the problems is that a lot of people here feel—and I understand why—that this whole issue is a no-brainer, and that anyone who is opposed to same-sex marriage is almost de facto and de jure homophobic. That rather destroys the concept of reasonable debate. I find that that happens in the Church of England over the issue of women bishops: if you are opposed to that, somehow a glaze goes over people’s eyes and they cannot speak to you at all. As the noble Lord, Lord Deben, said, it is about having tolerance in the democracy in which we live. The issue is a small one.

As I understand it—though I speak as a fool in the presence of so many lawyers—the principle in this country is that we do not legislate retrospectively unless there is a compelling reason to do so. I do not think that a compelling reason to force existing registrars to conduct same-sex marriages has been demonstrated in our debate. In that spirit, I hope that we can accept the amendment.

[Lord Anderson of Swansea]

My Lords, the question has been posed whether it was reasonable for an existing registrar to have anticipated that at some date unspecified in the future the law in respect of same-sex marriage might be altered.

Let us consider a registrar who is now, perhaps, 45. Almost 10 years ago we had the Civil Partnership Act. During the passage of that Bill through this House the noble and learned Baroness on our Front Bench said in terms that there would be no relevance for marriage. That was said clearly in terms. If that same registrar—who might have been put off by the possibility of same-sex marriage—had looked at the manifestos of the different parties at the last election, not one of which mentioned same-sex marriage, should he nevertheless have anticipated that there was a faint possibility of that happening? Of course not. It is wholly unreasonable, even in the light of the recent past and the stampede over the past years, to imagine that someone would have anticipated that the situation would change.

Effectively, we are talking about tolerance, generosity and whether the way of the majority—the 3:1 balance we had in the last vote—will be juggernaut-like and we will go on nevertheless.

The noble Lord, Lord Lester, talked about victims. He talked about the victimhood, if I can repeat that word, of the couple who are not married because the registrar has an objection. However, what is certain is that a registrar will be a victim because—given the identikit of the person I have mentioned, who is perhaps in mid-life, has been a registrar for a number of years and did not anticipate the change—his job will go. Being a registrar does not provide specific training for anything else. He will face the fact that the terms and conditions of his employment, on which he embarked some years ago, have been fundamentally altered. However, there is no reasonable prospect of victimhood for the gay couple who quite properly ask to be married, because there can be a reasonable accommodation. There will be a team or group of registrars in a particular district, and the couple can avoid the one individual who has a conscientious objection and, without any fuss, move their case to someone else. After all, I suspect that, after the initial surge of gay people who want to get married, there will be very few cases and relatively few registrars involved. If the district is very small, an arrangement can be made with an adjoining district—as in other areas of local government administration—for the relatively small number of cases that occur.

The noble Lord, Lord Pannick, took a fairly absolutist view, in my judgment. Public officials enforce the law; the registrar is a public official; he enforces the law or he takes the consequences. However, I think that there are other public officials for whom accommodations are found in statute. Doctors, given our National Health Service, are also public officials in the broad definition of the term, and so are teachers. Given that teachers overwhelmingly receive their salaries from the state, their terms and conditions of employment come from the state, yet we find exception for them.

In effect, the number of registrars likely to be involved is small. This is a transitional arrangement. For me, this is a test case of the absolutism, tolerance and generosity of the Government. Equally, it is a test case for the Opposition, who are currently cheerleaders—although perhaps I should refrain from using that word—for the Government. The proud tradition of my party over the centuries has been to look after the small person, the “village-Hampden” or the person with a conscientious objection who might be hurt by changes. I hope that we shall not abandon that proud tradition and will accept this small, transitional and quite proper amendment.

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[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I thank my noble friend Lady Cumberlege for moving the amendment, which has undoubtedly generated a good debate. Amendments 3 and 11 would provide a conscience clause for marriage registrars regarding their duty to conduct or participate in marriages of same-sex couples on the basis of a religious or other belief about such marriages. Specifically, Amendment 3 would amend Clause 1 to provide that for registrars who are already in post once this Bill comes into force the duty to solemnise marriages is not extended to same-sex couples. Amendment 11 removes “registrar” from the definition of “person” in subsection (4) of Clause 2 to protect registrars from being compelled to be present at religious same-sex marriage ceremonies, no doubt in circumstances where a particular religion has opted in. The amendment would apply only to registrars participating in religious ceremonies, not to the Registrar General or superintendant registrars.

This issue was much debated in Committee. Since then, I have had the opportunity, along with my noble friend Lady Stowell, to meet my noble friends Lady Cumberlege, Lord Elton, and Lady Williams, and the noble and learned Lord, Lord Lloyd of Berwick, to discuss these issues. As we indicated in our response to the Joint Committee on Human Rights, it is important to say that it did not come to a final conclusion on this issue, although it recommended that the Government reconsider the issue with a view to bringing forward amendments in your Lordships’ House to put in a transitional arrangement to deal with the concerns of those in post as marriage registrars. We have considered this position but, as I shall set out, we do not see a need for amendments to provide a conscience clause for marriage registrars, even on a transitional basis.

I therefore wish to reassure your Lordships’ House that the points made in the debate, particularly those made by my noble friend Lady Williams of Crosby about the impact on particular religions, have been considered. I admit that I felt slightly uncomfortable because the strongest support for the Government’s position perhaps came from two eminent lawyers, my noble friend Lord Lester and the noble Lord, Lord Pannick, and I wondered whether I was being too lawyerly about this issue. I tried to take on board the comments of my noble friend Lord Deben about being charitable and thinking generously but, at the end of the day, even with charity, there is an important matter of principle here. Marriage registrars are public servants performing statutory duties on behalf of the state. They should be expected to perform their duties in accordance with the law, without discrimination. An important distinction can be made between the conscience clauses with regard to abortion and circumstances in which we are asking people to perform duties on behalf of the state, without discrimination.

In extending marriage to same-sex couples, the Government have made it clear throughout that the Bill should protect and promote religious freedom. A substantial amount in the Bill does that. As the noble Lord, Lord Peston, said, registrars of whatever hue will still be able to express their views on same-sex marriage, but the right to freedom of religious expression has to be balanced with the need to protect others from discrimination. The recent judgment of the European Court of Human Rights in the case of Lillian Ladele, referred to by my noble friend Lord Lester, supports this view and the balanced position that we have taken.

Acceptance of the amendment would allow registrars to discriminate against people because of their sexual orientation. Functions performed by marriage registrars are entirely civil and secular in nature and they should not be allowed to pick and choose the members of the public to whom they provide that service. Treating members of the public less favourably than others because of their sexual orientation is fundamentally wrong, in the same way that it would be wrong to discriminate against them because of their race, religion or belief.

On the face of it, some powerful points were made, not least about doctors in relation to abortion. One should think about it for a moment—and perhaps I may put it in the following way. Let us imagine that a doctor were to say, “As a matter of conscience and belief, I am not going to perform an abortion on this person because of their race or ethnicity, but I will perform an abortion on another”. Perhaps that demonstrates the point that we are trying to make. It would not be the question of conscience about performing the act of solemnising a marriage that is at issue; it is the question of discrimination that is at the heart of this issue, and that is why the Government do not support the amendment.

I have been asked, “Where do you draw the line?”. I appreciate what my noble friend Lady Cumberlege said about the amendment being restricted to the solemnisation or belief that it is wrong to have a marriage of same-sex couples. There are other subjects—and I bow to the right reverend Prelate the Bishop of Chester, who said that divorce was not an issue in the canon law of the Anglican Church. However, it is my understanding that, until relatively recently, the Anglican Church did not marry people who had been divorced on grounds of adultery or other reasons, if a person’s original spouse was still alive. I think that that is now possible with the permission of the bishop. In those circumstances, if the Anglican Church was not going perform a marriage and the person had to go down the road of a civil marriage if they wished to contract a second marriage, where would we have been if the registrar had said, “I have profound beliefs against marrying divorcees, particularly if one of the grounds for divorce has been adultery”?

[The Lord Bishop of Chester]

I wish purely to clarify the matter. I know that I am speaking to a distinguished lawyer but the law of the Church has never prevented clergy from remarrying divorced people, and for the past 30 years of my ministry I have done so. It is true that 30 years ago I was in a minority and that there is now much greater encouragement, but in legal terms there never was a blanket ban on clergy remarrying because statute law permitted divorce.

[Lord Wallace of Tankerness]

I am grateful to the right reverend Prelate for clarifying that, but he said that 30 years ago he was in a minority and he may agree that some high-profile marriages of divorcees have taken place in the Church of Scotland because of the apparent rules of the Anglican Church. The point remains that there may have been people with profound religious views on why they should not remarry a divorcee who was divorced on the grounds of adultery, but if the route of a civil registry marriage had been cut off, they would have found life to be very difficult indeed.

Equally, I have heard what has been said about the National Panel for Registration. Concerns were expressed in Committee about the consultation that it had undertaken, and that is why my right honourable friend the Secretary of State sought further—