Marriage (Same Sex Couples) Bill

Debate between Lord Brennan and Lord Lester of Herne Hill

Monday 8th July 2013 Lords Chamber

[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.