Marriage (Same Sex Couples) Bill

Lord Brennan Excerpts

Monday 8th July 2013 Lords Chamber

of a same-sex marriage. It is our view now that the Government’s Amendments 9 and 10 would protect persons from unfavourable treatment of the kind covered in the first limb of Amendment 19. If we are correct in interpreting the Government’s amendment in this way, I shall be content to withdraw Amendment 19 following an assurance from the Minister to that effect. I beg to move.

[Lord Brennan]

My Lords, the purpose of the legislature in this particular legislation is to achieve clarity, in so far as it can, so that its application in public life in this country will not produce dissension or disturbance. Therefore, when we look at the provisions of the Act, we should have in mind a saying of the American Supreme Court: “It is not for the courts to protect the people from the consequences of their political choices. It is for Parliament to legislate with clarity”.

I took part at Second Reading but not in Committee. That was to achieve two objectives. The first was some professional self-discipline; there is nothing less productive than lawyers telling the House what they think the law is or should be. Reserve is the order of the day when interpretation arises. Secondly, Committee was an opportunity for the Government to take the time that they said they would to consider concerns and produce remedies that they thought to be reasonable, in so far as remedies were required.

Government Amendments 9 and 10, I commend. They deal with the word “compel” and the concern about public function, and they deal with those matters comprehensively. I do not invite correction from my professional colleagues, but personally I cannot remember seeing in a statute—certainly not in one of this kind—the words “by any means”. That is an all-embracing, protective phrase and I commend the Government doubly for such a courageous use of language to achieve one of the protections that they said they wanted to achieve: institutional independence.

The phrase “by any means” is followed by some words in brackets. My noble friend Lord Alli has consigned the bracket to statutory ignominy. I prefer a comma; it is just as good. A comma relates to the effect of the legislation on compulsion on ordinary people in their everyday employment, and I invite the Minister to confirm that it is an example, not a definitive, sole exception. Therefore, Amendments 22 and 23, to which I put my name, I no longer consider to be necessary.

This generosity of spirit and this legislative wisdom should not stop here. The Government’s amendment to Schedule 7, dealing with the Public Order Act, remedies the concerns that those who express a public disagreement with same-sex marriage might be prosecuted under the Public Order Act, allowing for the expression of their views to be reasonable and not contrary to the Act. The amendments thus far have not involved the Equality Act, and the concern of many is not just Speakers’ Corner—homosexuality is a sin and so is adultery between opposite-sex people, or whatever it might be. The concern is that, when in the workplace, the expression of a genuine belief, whatever it might be—and let us not be distracted by the homosexual context of this—should not result in detriment to that person in their workplace or their ordinary life.

The Government said that the existing law can address these concerns. Indeed, on the third day of Committee on 24 June, the noble Baroness, Lady Stowell, said that, to avoid misapplication or misinterpretation of the equality law in this area, the Government, with the co-operation of the Equality and Human Rights Commission—I underline “and Human Rights”—will provide guidance to,

“provide adequate protections for religious organisations and individuals”,

and to say,

“why the equality duty cannot be used to penalise those who do not agree with same-sex marriage”.—[Official Report, 24/6/13; col. 603.]

I welcome that.

The Minister said that she would write to the noble Baroness, Lady O’Loan, which she has done, but without detail. There is time yet; Third Reading is next Monday. This topic must have been considered at some length. It is not complicated because the law appears to be straightforward, and so does the Government’s view, so let us have this guidance, at least in outline, in public by Third Reading. That will achieve two things. The outline will prevent further debate on this issue and will reassure all of us that the Equality Act will not be a secondary vehicle for public dissatisfaction and dissent on either side. I encourage the Government to take that action.

I have said nothing about the principle of this Bill. I have been talking about freedoms which we share: the homosexual right to freedom of certain kinds and the religious believer’s right to freedoms of certain kinds. This is a question of balance. I invite the Government to ensure that this Bill becomes law very soon with democratic balance, at least in the area of freedoms.

[Lord Lester of Herne Hill]

My Lords, like the noble Baronesses, Lady O’Loan and Lady Berridge, I am a member of the Joint Committee on Human Rights. Unlike them, I took the view, and take the view today, that the Bill is perfectly clear, even clearer with Amendments 9 and 10 for anyone who doubted it.

The Government responded to the Joint Committee on Human Rights report today. I do not know whether either noble Baroness has read the response but it has not been referred to so far. I have read it, and I am satisfied that it deals quite sufficiently with the doubts that were raised by the Catholic church through Aidan O’Neill QC and Professor Chris McCrudden, who is a member of my Chambers. I felt that the view expressed by the other side—by Robin Allen QC on behalf of the Equality and Human Rights Commission—was correct, but it became apparent that nothing would satisfy the noble Baronesses, Lady O’Loan and Lady Berridge, that there might not be issues that would still be raised. That is their view, and I respect it. I think the views that have been expressed raise fears that cannot be satisfied by language because, whatever we say in the Bill, I am sure that Members of the House will still raise question after question.

I entirely agree with the Government’s legal advice as expressed in the response to the Joint Committee on Human Rights, and I suggest that that response is placed in the Library so that people other than the Joint Committee on Human Rights can see what is said before Third Reading. No doubt it will also be repeated by the Minister in reply today, but it is helpful to have it as a matter of record.

I have been on that Joint Committee for 10 years and I am the last person standing out of the original members. In those 10 years, I have never known a situation like the one we were confronted with. We were deeply split and the only way in which we could produce a report was either by taking votes, as we used to do, which would have shown the differences, or by papering over the differences, which is what we did. Your Lordships should know that we were deeply split. The views expressed in the Chamber today reflect the ways in which we were split. I see that the noble Lord, Lord Faulks, is in his place. He, too, took an active part in those debates.

The Government have responded, and I congratulate them on the speed with which they have done so. I believe that what they have said is correct and that their citing of the law is also perfectly correct. I am glad that Amendments 9 and 10 have been moved. They are a bit verbose. I would have just said “by any means” without having to put words in brackets, but that is because I believe that at this time of night one should speak briefly and write briefly, if possible.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I thank noble Lords who have spoken and who have welcomed the Government’s amendments. I am pleased that the amendments have given the reassurances that the noble Baroness, Lady O’Loan, spoke about, as did my noble friend Lady Berridge, and the noble Lord, Lord Brennan. Certainly, that was our intention, because we were conscious of the concerns that have been raised. I noticed that on the basis of that my noble friend Lady Berridge did not speak to Amendments 15 to 17. I also thank my noble friend Lord Lester for welcoming the Government’s response to the legislative report on the Bill from the Joint Committee on Human Rights. I can assure him that it has been placed in the Library, but I believe that the response is also available in the Printed Paper Office. I am glad that he welcomes these amendments and believes that the legal structure is in place to give the reassurances that have been sought. We have said on many occasions and from all parts of your Lordships’ House, not least from this Dispatch Box, that the security and protection of religious freedom that we wish to give to religious institutions is very much an important part of the architecture of the Bill. I hope that these amendments help to give that reassurance and to reinforce that protection.

Amendments 18 and 19, which the noble Baroness, Lady O’Loan, spoke to and the noble and learned Baroness, Lady Butler-Sloss, referred to, were rehearsed in Committee and I readily recognise the noble Baroness’s wish to explore the same ground again today. The intention of the amendments appears to be to ensure that any religious organisation or individual is not penalised by a public authority simply because they have expressed the view that marriage should be only between a man and a woman, or because they have decided not to participate in a religious solemnisation of marriages of same-sex couples.

It is important to remind ourselves that Section 149 of the Equality Act 2010 places a duty on public authorities to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between people who hold and do not hold particular protected characteristics. It applies to the protected characteristic of religion or belief, not just to sexual orientation, and, as we have already made clear, the belief that marriage should be of one man with one woman is a protected belief. Let me also make it clear that the equality duty is a duty to think, not to act or to produce a particular outcome; it does not require any particular outcome. If, for example, a public authority withdrew its facilities from an organisation or treated an employee less favourably, simply because of the expression of a belief about the marriage of same-sex couples, it would be acting unlawfully, both in failing to apply the duty properly and potentially committing an act of unlawful discrimination under the Equality Act.

Members of your Lordships’ House may recall that when we debated this in Committee, I referred to the decision of the Judicial Committee of your Lordship’s House in the case of Wheeler v Leicester City Council in 1985. That was a case in which the council banned a rugby club from using its ground after some of its members attended a tour of South Africa. The council was using a predecessor of a public sector duty to justify its actions. In that case, the House of Lords held that the decision was irrational; it also found that the decision was procedurally unfair and that therefore there was an improper purpose, which resulted in the council’s decision being quashed. I believe that the same reasoning would apply here.

The noble Baroness, Lady O’Loan, asked me about something that I said during my opening, when I moved the amendment. I am happy to repeat it. Clause 2 will clearly prevent criminal or civil action being taken against any religious organisation or representatives merely for refusing to undertake acts protected under this clause. That includes, but is not limited to—this picks up the point made by the noble Lord, Lord Brennan, that the words in brackets in the amendment are not exhaustive—disciplinary or other action taken in the employment context. In all circumstances, a person who has suffered a detriment simply because they have not done one of the acts specified in Clause 2 will be able to rely on the protections in that clause to show that such conduct is unlawful and to obtain a remedy within the context of the particular claim.

Furthermore, if a public authority is prevented, as Amendments 18 and 19 suggest, from having any regard to an individual’s or an organisation’s beliefs about the marriage of same-sex couples, it would be unable to consider how its own decisions could potentially discriminate against or otherwise disadvantage people who do believe that marriage should only be between a man and a woman. In fact, therefore, it could have the absolute opposite effect from that which I am sure that the noble Baroness seeks to achieve. I believe that that would be an unintended and harmful consequence of the amendment as drafted.

It is our view that an amendment of this kind would be unhelpful and unnecessary and that, rather than amending the legislation, the best way is to ensure that the equality duty is properly understood in the way that it is applied. We will seek to improve the guidance on its use; although, in all honesty, I cannot say that that will be made available before Third Reading. We are currently discussing with the Equality and Human Rights Commission how best to take forward our commitment to review the relevant guidance so as to include clear and helpful guidance for employers and public bodies in the context of this Bill when it is enacted. We will take that work forward as quickly as possible as part of the implementation of the Bill if enacted, although no timetable has yet been agreed. I believe that that is a sensible way to move forward.

[Lord Brennan]

I am grateful to the Minister for giving way. In the absence of the detail of the guidance, can he give the House a general assurance that the government guidance will make it clear to those responsible for applying the Equality Act that to do so in a way that raises the concerns that we are dealing with would be to act irrationally?

[Lord Wallace of Tankerness]

My Lords, it is very dangerous to try to draft guidance on the hoof, as it were. I think that I have expressed, both today and in Committee stage, in response to the amendments tabled by the noble Baroness—and, indeed, in a very detailed letter that I sent to those who had taken part in a similar debate in Committee and which is in the Library—the points that the Government believe are important and which provide the necessary protections. As my noble friend, Lord Lester, said in Committee, there is always the possibility of someone acting in an idiotic way. What we seek to do with the guidance most fundamentally is to try to eliminate—or to reduce to an absolute minimum—the number of times that anyone would act in an idiotic way.

I have one further point. I think that the noble Baroness, Lady O’Loan, raised the issue of the judgment in the case of Hans-Christian Raabe. I will quote from the High Court decision of Mr Justice Stadlen in order to allay, again, concerns that the duty is being misused.

In paragraph 256 of the judgment, his Lordship said:

“As I have said, there is in my judgment nothing to suggest that if Dr Raabe had expressed his opposition to same sex marriage and set out any religious basis for that opposition, that would have been considered by the Defendant or Mr Brokenshire to be a reason for revoking his appointment. In fact he did not set out any religious basis for the views expressed in the 2005 Paper and there is no reason to suppose that the revocation of his appointment would inhibit or deter any person who opposes same sex marriage on religious grounds from publicly expressing such views for fear of being rejected for a similar appointment in the future. Mr de la Mare pointed out the most obviously offensive features of the Paper did not form part of any religious belief”.

Therefore, it is very clear from his Lordship’s judgment that the concern which has been expressed did not form any part of that decision. In those circumstances, I again commend the government amendments to the House and hope that the noble Baroness, Lady O’Loan, will not pursue her amendments.

Marriage (Same Sex Couples) Bill

Lord Brennan Excerpts

Tuesday 4th June 2013 Lords Chamber

[Lord Brennan]

My Lords, everything has been said on this subject already; or nearly everything. I am going to address the House on certain legal consequences of this legislation that I invite the House to consider very carefully. We have been fortunate in this debate to have heard remarkable and telling speeches about homosexual suffering in the past, and then liberation; about heterosexual culpability for persecution in the past, and then the sense of penitence. These are important sentiments. They describe the feelings of a civilised society, but they are not in themselves the foundations of law. This Bill may have a background about love, but we are here to make law.

I have three major concerns about this legislation. The first is the manner in which it has come to Parliament; the second is the complexity of the consequences of making same-sex marriages lawful; and the last is the “what next?” factor. First, how did we come to the position we are now in? You would think that legislation based on such controversy, such fundamental disagreement, each side respecting the views of the other, would have required and got extensive preparatory dialogue between government and public, between party and party, and between us in this House. In particular, there should have been pre-legislative scrutiny. The more difficult the Bill, the more open the parliamentary process should be. But what has happened here? In 2004 we passed the Civil Partnership Act after seven days of debate in this House: five in Committee, Third Reading, and Report in between. The interests of lesbians and gays were addressed comprehensively. No one at that time, eight or nine years ago, suggested that there should be the kind of legislation that we have before us now. No one suggested then, in this House or the other place, that such legislation was necessary. Have matters changed in eight or nine years? If they have, then how, and why? What is the difference now? In 2010, my party passed major legislation, the Equality Act. In the spring of that year, Section 8 and ancillary provisions dealt with the protected interests of married couples and those in civil partnerships. No one suggested that we should introduce the present type of legislation. If not then, why now? On both of those occasions, the general picture presented to the public was “this far, and no further”.

We are a Parliament of the people. We are not a Parliament just for the people, paternalistically deciding what the law should be. We should do our best to represent the people’s wish and will as to what the law should be. I do not agree that the differential diagnosis of opinion polls is the basis for objective parliamentary assessment of what the public think. That comes from debate, electoral exposure and inquiry. The noble Lord, Lord Carlile of Berriew, says that Parliament should lead. Have a care, my Lords, when you are told that Parliament should lead. Parliament should serve, and lead in the service of the public. Here we are, with no election manifesto to support this change and a tide of history that began in the past 18 months that is described as so overwhelming that we have no choice but to accept it. Come now, let us be realistic. This deserves much more careful debate. “We are where we are”, say many, “let us get on with it and do what we can”. If the amendment of the noble Lord, Lord Dear, is not passed, we will face a Bill in Committee based on Clause 1: same-sex marriages are lawful. The rest of the Bill is consequential on that provision. If the Bill goes forward and someone calls a vote in Committee on whether Clause 1 stand part, are we to face the same criticism that that is frustrating the will of the Commons, that the Lords should get on with revision and not delay or even block it? I do not accept that. That is effectively preventing the House making a considered decision of its own on the Bill. That is not democratic. This is the other place, by the will of a Government without mandate to call for such change and to give a free vote to it, creating a new constitutional convention that prevents the House of which we are Members making a block. I do not accept that.

The second point is the complexity of consequences. Overnight and this morning, I have totted up well into double figures the numerous areas where amendments will be required to make this a coherent piece of legislative drafting. I have identified at least five fundamental differences between heterosexual marriage and homosexual marriage. We have to deal with these questions. They cannot be cast aside because we are concerned to satisfy the sentiment so eloquently expressed by so many. We are here to make law.

Lastly, there is the “what next?” factor. It is a simple argument to propose that here is a law that says that two people of the same sex can marry because of discrimination. Why cannot a third person demand the same right and want to join that union of two to make it a union of three? That is eminently simple to argue; it is based on discrimination; and I invite any subsequent speakers to explain, logically and rationally, why numerical limits overcome profound principles of discrimination, if that is what we are dealing with. Polygamy is not just on the same-sex side, it can be on the heterosexual side.

Next, there are the conscience clauses. I was reassured by the noble Lord, Lord Pannick, and the noble Baroness, Lady Kennedy—reassured, but not convinced. As the noble Lord, Lord Faulks, just pointed out, there are no guarantees in the law. I have learnt after many years in the profession, particularly as its chairman, that we are a profession where individually we repose a great deal of confidence in the value of our own opinions. We are trained so to argue. It would be naive to assume that the problems that have been raised by other barristers will not encounter serious disputation in our courts and in Strasbourg.

What lies ahead is the unknown. After 2004, 2010 and 2013, what will come next? We were warned that this House should not expose itself to the danger of being involved in a constitutional divide between this Chamber and the other Chamber. The risk of constitutional division is between Parliament and the people. That is what we should avoid. I invite your Lordships to remember your responsibilities as legislators. Sentiment is important; it is not determinative.