Marriage (Same Sex Couples) Bill

Lord Cormack Excerpts

Wednesday 19th June 2013 Lords Chamber

[Lord Deben]

I want to try to bring two sides together on this issue. I hope people will recognise that I am entirely in favour of this legislation and I am a practising Catholic, so I understand exactly what has been said. I have great sympathy with what my noble friend Lord Lester has said about how this might be approached by the Government. Let me say two things to the Minister. First, there is a history here of promises made and broken, as my noble friend made clear. So even if this is absolutely okay, there is a feeling that it might not be okay and we have to recognise that fear.

Secondly, there is also a history of campaigning people who seek all the time to push their point further than is reasonable. For example, campaigners have recently argued that we should withdraw aid from youth clubs run by organisations that take a strong view about homosexual practice. That is a campaign that people have suggested—that if you take that view you should not get any help from the state for your youth club. I say to my noble friend that I understand the fears that people have on this issue.

The position of the Catholic Church is particularly difficult because we have a very odd and rather noble system in Britain that has come out of our history: to ensure that it was no longer true that only Anglicans could marry, we extended it to other people via the mechanism of enabling approved persons to act as registrars. There may be an issue here and it may be that the fears that people have are correct. However, I also recognise what my noble friend Lord Lester has said: sometimes, when we try to correct this, those of us who are not lawyers—and I am proud not to be a lawyer—add things that make it worse. That is the danger here. If we are not careful we will have a sort of argument of the deaf, with one side saying, “We want to do what you want, but if we do it that way we will actually make it more difficult for you”, and the other side saying, “You may say that but we’re still worried about it”.

I ask my noble friend to recognise that even those of us who are not just marginally but very much in favour of this legislation are concerned that we should be very careful about the nature of toleration. Unfortunately, “toleration” has become a very curious word. People talk about toleration as if it means tolerating views that you happen to agree with. One of the things that we have to do is produce legislation that enables a tolerant society to accept that some people have very different views. That is not helped, if I may say so, by some of the language used by people opposed to the Bill. Some disgraceful statements have been made by people who have really not come to terms with the fact that we live in a society that should be inclusive and accepting. The churches have sometimes spoken intolerably and intolerantly. However, the truth is that there is intolerableness and intolerance on the other side as well. I will give way to my noble friend .

[Lord Cormack]

I agree very much with my noble friend, whom I thank for giving way, but I hope that he was not suggesting that there has been intolerance in the debates in this House. That is something that he would find very hard to prove.

[Lord Deben]

I listened to the whole debate almost without exception, and there were one or two sentences that I think ought to have been withdrawn by the people who made them because there was clearly a misunderstanding about the nature of what we are talking about. However, I do not in any way suggest that my noble friend spoke in that way. I am merely saying that there is a great need at this moment to make people relearn what toleration is. Toleration is accepting the views of people with whom you disagree fundamentally and totally. We need to do that in our society.

Let me be clear: I think the amendments are unnecessary, I do not see the legal basis for them and I am not worried about this issue. However, some people are worried about it. There is another word that I would like to bring into this: “courtesy”. There is a great need in our society for courteousness to other people, and there are people here who are legitimately worried. We need to ensure that there is no reason for them to be worried. I wonder if my noble friend might do the following, which is largely to follow what my noble friend Lord Lester said: not to argue this case because, frankly, a legal case of this sort across the Floor would be unhelpful for all of us, but to go back and produce a document that answers specifically the points that the noble Baroness, Lady O’Loan, has made, so that we know exactly where we are.

If there is a concern, the bit that seems to me to have had some truth about it is the nature of the official person—the point that the noble Lord, Lord Alli, was pursuing. I think he would agree that if the official person gets denominated in a particular way, what we all want in terms of a tolerant society could easily be overcast. I wonder if my noble friend might take it away in that way, instead of continuing the legal debate, and then come back with a document, which we might all peruse, and see whether we could not, at least on this, come to a common view across the House.

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[Lord Pannick]

My Lords, I entirely understand the concerns that have been expressed by the noble Baronesses, Lady Berridge and Lady O’Loan, and others. My view is that those concerns are unwarranted. As I understand it, three issues have been raised. The first is the public sector equality duty, under Section 149 of the Equality Act, which requires:

“A public authority must, in the exercise of its functions, have due regard”,

to equality considerations. “Due regard” must require primary consideration to be given to other legislation—in particular, the legislation before us. I regard it as unlikely in the extreme that this public sector equality duty could impose a duty or even confer a power on a public authority to penalise a person or a body for declining to be involved in same-sex marriage, when the whole point of this legislation, and a fundamental feature of it, is that a person should not be compelled to do so for religious reasons. It would be extraordinary for a court to rely on a public sector equality duty.

The second concern was about Clause 2(6) and the exclusion of public functions, and that this does not cover the decision whether to opt in. There is a good reason for that. In very simple terms, marrying a person may well be a public function, as Clause 2(6) recognises. However, a decision to opt in or not is not the exercise of a public function. It is not, of itself, a service to the public but a decision whether to rely upon and maintain a statutory immunity given by this legislation. Any argument to the contrary would conflict with the content and purposes of this legislation, and so is extremely unlikely to be accepted.

The third concern that we are dealing with in this group of amendments is the suggestion that the legislation should clarify the meaning of “compulsion” in Clause 2(1). For a public authority to impose a detriment on a person for refusing to undertake an opt-in activity or to refrain from undertaking an opt-out activity would plainly amount to compulsion in this context. The reason for that is very simple: it would impose legal pressure on that person when one of the central purposes of this legislation is to protect religious freedom.

I entirely understand—I hope courteously—noble Lords’ concerns. The noble Lord, Lord Deben, rightly reminds us that we should be courteous about this, but let us be not just courteous but realistic about the risks and concerns that have been expressed.

[Lord Cormack]

My Lords, I courteously recognise the forensic skills and deep legal knowledge of the noble Lord, Lord Pannick, and of my noble friend Lord Lester. However, my noble friend Lord Deben mentioned times in the past when assurances were given, in good faith, from Dispatch Boxes in both Houses, but have not measured up. Therefore, the recognition of the noble Lord, Lord Pannick, of the validity of the concern of the noble Baroness, Lady O’Loan, and my noble friend Lady Berridge should be taken a step further. I should like to make a suggestion that builds upon what the noble Lord, Lord Deben, said. He and I do not agree on the fundamentals of the Bill, but he made a conciliatory and helpful speech this afternoon and we should thank him for that.

I inferred, from the speeches of the noble Baroness, Lady O’Loan, and my noble friend Lady Berridge that neither is likely to push this to a Division today. I hope that is the case. As I said on Monday, this House is at its best when it has long debates in Committee and votes on Report, when there has been proper opportunity to reflect on what has been said. I shall not be able to be present later today, for which I apologise. I hope that after this, when my noble friend Lady Stowell responds to this debate, she will undertake not only to reflect most carefully on what has been said by the noble Baroness, Lady O’Loan, and my noble friend Lady Berridge, but to call them in, with others who share their concerns, to ensure that on Report we will be able to make it plain in the Bill, beyond any shadow of a doubt, that the assurances that have been given will not only be honoured but be capable of being honoured.

I withdrew an amendment on Monday night following assurances from the noble Baroness, Lady Royall, and my noble friend Lady Stowell, when I sought to add Roman Catholic priests to the definition of the clergy. I did so for many of the same reasons advanced by my noble friend Lady Berridge. There is concern—real worry and anxiety—in this House and in the country. The Bill will make its way to the statute book; of that I have no doubt. I regret that but, as a good democrat, I accept it. However, I want it to give the strongest possible protection to those who in all conscience cannot accept the fundamental statement that same-sex marriage is the same as marriage between a man and a woman. I urge my noble friend, when she comes to wind up this debate—

[Lord Lester of Herne Hill]

I hope I am not interrupting at the wrong moment, but will my noble friend agree that we have to think carefully about the role of judges and the role of the legislature? It is the legislature’s role to make the law and the judges’ role to interpret it. Having heard, for example, the noble Lord, Lord Pannick, with whom I entirely agree, I cannot imagine—I do not know what these breaches of faith in the past amount to; no one has explained what they are talking about—that the independent judiciary would not interpret the legislation as it is now drafted in accordance with its object and purpose. Were there to be any breach of assurances by Ministers, under the Pepper v Hart regime that could, if necessary, be brought to the attention of the courts and they would take that into account. Should we not, when we are making laws, try to make them clear, but at the same time recognise that in the end they are to be interpreted by a wise, independent, enlightened judiciary?

[Lord Cormack]

Of course, but it is not unknown for a wise, enlightened, independent judiciary, which I strongly defend, to conclude that Parliament has not indeed been clear, and therefore it is very important that Parliament should be clear. We talked about locks, triple locks and quadruple locks. I think that there are very few locks that my noble friend Lord Lester and the noble Lord, Lord Pannick, are not capable of unpicking. We want to bear that in mind. It is very important indeed that this Bill, when it passes on to the statute book, has the full guarantees which I am sure my noble friend, in all honesty, wishes it to have.

To return to the point that I was making when my noble friend Lord Lester so courteously interrupted me, I hope that my noble friend, when she comes to wind up, will not only reflect on the concerns, and undertake further to reflect after this debate, but that she will give an opportunity for the noble Baroness, Lady O’Loan, my noble friend Lady Berridge and others to meet her and her officials to discuss these points in detail.

[Baroness Royall of Blaisdon]

My Lords, although this has been an immensely courteous debate, I would start by wholeheartedly agreeing with the statement from the noble Lord, Lord Deben, about the need for tolerance and respect for the views of people with whom we fundamentally disagree, both inside and outside this House. It is important that all sides of the House recognise that.

The noble Lord, Lord Cormack, quite rightly said that it is important for Parliament to be clear so that the judges can take a view as regards what happens in the courts. From this side of the House we believe that the Bill as drafted is absolutely clear, including the meaning of the word “compelled” as referred to in Amendment 17. We believe that it would be readily understood and interpreted by the courts as such and that it needs no specific definition in this context. As my noble friend Lord Alli said, the Minister in the other place has given some helpful assurances about the Government’s intention regarding protection against compulsion, which I am sure the noble Lord will reinforce today, as well as clarifying that the definition has not been borrowed from the Matrimonial Causes Act.

Clarity is important but, as I said, there is already clarity in the Bill. That is not to say that I dismiss the concerns expressed around the Committee today. I am sure that the Minister will be able perhaps to assuage those concerns today but, if not, that he will come back on Report and, in the mean time, perhaps put something in writing. The suggestion made by the noble Lord, Lord Lester, that there should be something substantive before Report was a good one.

On Amendments 13 and 18, I say to the noble Baroness, Lady O’Loan, that I was confused about whether she was speaking on behalf of the Joint Committee on Human Rights. It is clear from the exchanges across the Chamber that there were disparities of view in the committee.

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[Lord Cormack]

Perhaps I could remind my noble and learned friend of my other suggestion: that detailed conversations should be offered to the noble Baroness, Lady O’Loan, my noble friend Lady Berridge and others on this point.

[Lord Wallace of Tankerness]

If my noble friend had allowed me to finish the sentence that I had started when he intervened, I would have said that, having received it, those who wish to pursue this matter further in discussion with myself and my noble friend Lady Stowell—