Marriage (Same Sex Couples) Bill

Lord Dear Excerpts

Monday 3rd June 2013 Lords Chamber

Moved by

[Lord Dear]

To leave out from “that” to the end and insert “this House declines to give the Bill a Second Reading”.

[Lord Dear]

My Lords, I should like to thank the Minister for setting out the Government’s position on what is, by any stretch of the imagination, a contentious Bill.

“I don’t know what you mean by ‘glory’, Alice said. Humpty Dumpty smiled contemptuously. Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’ But ‘glory’ doesn't mean ‘a nice knock-down argument’, Alice objected. When I use a word, Humpty Dumpty said, in rather a scornful tone, it means just what I choose it to mean—neither more nor less”.

I would suggest that if we substitute the word “marriage” for “glory” we get somewhere very close to the essence of today’s debate. As Humpty Dumpty might have said: “There’s a nice knock-down argument for you. Marriage means just what I choose it to mean—neither more nor less”.

If we move away from Lewis Carroll’s Alice and back through the looking glass, we find ourselves in a world where an ill considered Bill seeks to overturn centuries of tradition, heedless of public opinion and the views of religious leaders and blind to the laws of unintended consequences. It seeks to alter totally the concept of marriage as we have always known it, it seeks to divide a nation with an argument that hides behind the concept of equality when in reality it is about sameness, and it stands on its head all considerations of electoral mandate.

I am conscious that around 90 speakers await their turn to speak today and tomorrow so I will deal only very briefly with the essential elements of the arguments against the Bill but take, in turn, four things: the concept of the rule of the majority; the impact of the Bill on society; the flawed process that it has undergone so far; and, last but by no means least, the question of whether it is proper or appropriate to vote the Bill down at Second Reading.

First, I refer to the question of the extent to which a civilised society should accede to the wishes or the desires of a very small minority in its midst. In the debate on the humble Address on 9 May this year, an impassioned reference was made to the plight of homosexuals in Uganda and in other repressive regimes. This seemed to suggest that, if we were to defeat the Bill, this country could quickly regress to a state something approaching that in Uganda and elsewhere where homophobia is prevalent. Nothing could be more fanciful and nothing could be further from the truth. Like many other Members of your Lordships’ House, I have, for many years, championed the extension and the protection of minority rights, including homosexual rights and equality, and I have seen and applauded this country’s change of attitude towards homosexuality, from thinly veiled intolerance 50 years or so ago to a position of understanding and acceptance today.

With the introduction of civil partnerships, we have seen the legal rights of homosexual couples put on a par with those in a conventional marriage, with all the financial benefits available to both groupings. Indeed, those in a homosexual civil partnership are significantly better off in that respect than family members who live together without the benefits of such a partnership. Doubtless, we shall hear more of that as the debate progresses—more about the two sisters living together or the elderly parent and the unmarried daughter in the same household. All those are of course unable to enjoy the same financial benefits available to those in civil partnerships. In that respect, homosexual equality has outstripped equality for those in family relationships.

However, this part of the argument is much more about the lengths to which a society should go in order to embrace the demands from very small minorities. The utilitarian approach of Jeremy Bentham—the greatest good for the greatest number, where a simple majority carries the day—was challenged first by John Stuart Mill and then by other theological and jurisprudential writers in the 19th century. Very sensibly, it has been moderated over the years to a point where any society wishing to be thought of as civilised, tolerant and mature is judged by the degree to which it can accept minority views, even when those views fail to accord absolutely to the norms and views of the majority. However, there must come a point when, provided full equality for all under the law is guaranteed—this, I suggest, is perhaps the nub of this argument—the majority view should prevail, especially when the minority is tiny and the overwhelming majority is affronted. It is all a question of balance, wisely, and not least sensitively, applied.

The present danger of redefining marriage could well turn out to be counterproductive because tolerance can be overstretched. Look to contemporary France for an example. The similarities with this country are numerous. France has much the same population as our own, is still coming to terms with a revised role in the world, has an old and enduring national religion, has financial problems, and its leadership is questioned. Same-sex marriage has recently been forced through the French parliamentary process, with the result that mass demonstrations, and occasionally riots, have taken place in major cities in that country. Worse, the incidence of serious homophobic violence has markedly increased. I do not foresee violent street demonstrations in this country but I fear that the Bill, should it become law, could well create such opposition to homosexuals in general that the climate of tolerance and acceptance in this country that we have all championed, supported and seen flourish over the years could well be set back by decades—certainly for a long time.

Let me move on. In headline form only, let me pose a question or two. What is the impact of the proposed legislation on society? A change in the law would herald uncertainty in a number of areas, rather than certainty, and I will touch only briefly on those aspects now, confident that the other 90 or so speakers who follow me will explore some of these issues in much greater depth. Marriage between a man and a woman has been a part of life for centuries, predating nation, church and law. The lifelong commitment of a man and a woman is part of our history and culture. Evidence abroad, for example in Spain, shows that a redefinition of marriage actually undermines support for marriage in the wider society. There, marriage rates have plummeted. Noble Lords may advance their own theories as to why this has occurred in Spain and elsewhere but the facts are there for all to see and it is reasonable to conclude that redefining marriage is a contributory factor.

In the field of education very real fears exist that teachers who fail to endorse same-sex marriage could be dismissed. The Minister touched on this and other similar issues. Government reassurances that this will not be the case have been challenged as naive by leading counsel. Parents will not have a legal right to withdraw children from lessons that endorse same-sex marriage in the curriculum. The effect on schools will undoubtedly be divisive, and we should reflect on the fact that calls have already been made for children to act out gay weddings in class. I have to hand an opinion by leading counsel, prominent in employment law, who concludes that the Bill would create a duty to promote or endorse and not just to explain the new definition of marriage in sex education. Furthermore, he advises that schools could discipline teachers for failing to teach positively about same-sex marriage alongside opposite sex marriage.

Employment law is not likely to protect those who, as a matter of conscience, refuse to endorse the new law. Some noble Lords from the legal profession will want to expand their opinions on this at length. The fact that matters such as this are so strongly disputed, with leading counsel on both sides of the argument, must show that there is legitimate concern that cannot be shrugged off by mere rhetoric.

The well-being of children within marriage is a matter of very serious concern, certainly for those who accept the view that the best family grouping in which to grow up is a stable environment with two married parents, one of each sex. These and other major factors will be hotly debated today and tomorrow and they will highlight the sharp divisions that exist on almost every aspect of this Bill.

So if divisions exist—and they do—we should ask to what extent the Government have considered the totality of the problem. In a matter as fundamentally important and potentially so contentious as this, one could reasonably have expected any Government with pretentions at governing by consensus to have conducted deep and thoughtful research before drafting legislation. This Bill is hallmarked by the very lack of such an approach. A royal commission, or other similar learned group, might have been expected to call on the very best minds from the fields of theology, philosophy, sociology, jurisprudence and finance in order to take a long look at all the implications, to identify the pros and cons and to make mature recommendations. The Government did nothing of the sort. Instead, they seem to have relied on old, often partial, research and opinion that give only a fragmentary picture of the problem. There was no royal commission; no committee of inquiry; no mention of the Bill in any party manifesto prior to the last general election; no report from any parliamentary Select Committee. The Leader of the Conservative Party, questioned on Sky television only three days before the general election, declared that he had no plans for such a Bill. There was no Green Paper, no White Paper and no pre-legislative scrutiny. It was not included in the Queen’s Speech either last year or this year. However, after its introduction a few months ago, the results in the recent local elections were catastrophic. Around 450 seats were lost by the coalition parties, with all the analysis showing that the Bill was a significant factor in the swing of voters away from the main parties.

The Bill’s progress through the House of Commons was inauspicious. Back-Bench contributions at Second Reading were limited to only four minutes. The Government then delegated the Bill to a committee of 19 hand-picked MPs rather than to a Committee of the Whole House. Its membership was stacked 15 to four in favour of the Bill and not a single amendment was accepted by the Government. Committee debates were limited to only five days, in contrast to the Hunting Bill, when the Standing Committee lasted for 14 days.

The main parties announced a free vote, but there is a question mark over the freedom of that vote. In a letter signed by 15 MPs and circulated on 15 May, serious doubts were cast, citing,

“varying degrees of coercion, with threats made, for example, to an MP’s future political career or withdrawal of party support at future elections”.

Therefore, the apparent solid majority for the Bill in the other place must be considered, in part, at least, in that light.

The Government’s consultation exercise was about how to introduce the changes and not whether to do so. To put it bluntly, the results were rigged. The figures given by the Government indicated a total of 228,000 responses, with 53% said to be in agreement with the Bill and 46% against it—about even, tilting slightly towards approval for the Bill. However, that ignored two critical facts. First, the responses in favour were largely collected on the internet—anonymously, with no check as to whether the respondents were resident in the UK and no check on multiple entries from single respondents. Secondly, the Government accepted a signed petition collected by the Coalition for Marriage and arbitrarily counted it as one vote, deliberately ignoring the fact that it contained 509,000 verifiable signatures. That petition has now grown, I am told, to 660,000 signatures, although at the time of its closure there were, as I said, 509,000 verifiable signatures. Had that number of 509,000 been included, as it clearly should have been, it would have shown 83% of respondents against the Bill. That considerable public opposition is borne out by many reliable opinion polls. Some polls of course suggest the opposite but many have failed to make clear the existence of civil partnerships in posing the question to those being polled.

At this stage, I should say that since my name became linked in public with opposition to the Bill and I became something of a lightning conductor in public for all these issues, the number of communications I have received on the matter by e-mail and in my postbag falls just short of 1,000, of which 38—I counted them this morning—are in favour of the Bill and the remaining almost 1,000 are against it. I think that many noble Lords have had very similar results, if not in those numbers, then certainly in proportion.

Opposition from formal religious groups divides on the same lines. Quakers, Unitarians and Liberal Jews of course support the Bill but we should remember that together they represent less than 1% of the religious community. The largest bodies—the Church of England, Roman Catholics, Sikhs, Muslims and others—all adamantly oppose it.

Lastly, I turn to the vote at Second Reading. Understandably, some noble Lords have queried whether it is proper to challenge a Bill in this way at Second Reading in your Lordships’ House. I fully understand that question and I recognise and support the proud and long-standing tradition in this House to take particular care over every aspect of any Bill and to give it a full and fair examination before voting. However, that holds good only in normal circumstances, and the circumstances that we face today are abnormal. I am advised by the clerks that it is perfectly proper to vote on Second Reading. The 2006 Joint Committee on Conventions affirmed that the House of Lords retains the power to reject government Bills in free-vote situations. Votes against a Bill at Second Reading are unusual but they are not unknown. Examples that closely parallel these present circumstances are the War Crimes Bill and the Sexual Offences (Amendment) Bill, both of which occurred just over 10 years ago but both were free-vote issues without a mandate from a manifesto. The Health and Social Care Bill in October two years ago is the most recent and reliable example.

So if we can do it, and have done it, why oppose the Bill at this stage? Quite simply, I contend that the Bill is in a mess. It is ill thought-through, lacks support in the population as a whole and is likely to antagonise, or even inflame, public opinion. It has nothing to do with equality, which is already in place with civil partnerships, and it attempts to dignify an admittedly very small minority of partnerships with the description “marriage”—a term that has been understood differently for centuries.

If that were not enough, there is more. This House is asked to debate and examine a Bill that has not yet come anywhere near identifying all the consequences of change. The official government estimate of the numbers of amendments to existing legislation that would follow should the Bill become law is, in their words, at least 8,000 and they are still counting. It is no good telling me that there is provision in the Bill to take care of that, because the experience in Argentina, where similar legislation was passed in 2010, is chilling. In a paper provided by Dr Ursula Basset for the Pontificia Universidad Católica Argentina, she explains the changes now being debated in that country, which passed legislation similar to that which is on the table in front of us, in order to establish a redefined civil code. She said:

“It quickly became clear that legalising same-sex marriage required a revolution to our internal law. It impacted laws regulating public order, identity, gender, rules of kinship, filiation, marriage, names, marital property arrangements, divorce, alimony, parental rights, succession, domestic violence, adoption, artificial reproductive techniques, surrogate motherhood, liberty of conscience, criminal law, tax law and employment law, among other topics. All of these subjects would need to be attuned to the gender-neutral paradigm ... same sex marriage law in Argentina has turned the law upside down—no stone has remained unturned”.

That is what we face. Were we to consider the Bill in Committee, on Report and at Third Reading without at least some of that information at hand, it would frankly be like wandering into the dark blindfold. Hard on the heels of the procedure today at Second Reading, it looks as if we may be denied the chance of properly considering the Bill in Committee, since, to date, only two days have been allocated by the usual channels.

Even worse than that, we know that as the Bill left the House of Commons on the last day before the recess the Government announced their intention to conduct an immediate review of the whole issue of heterosexual civil partnerships. That is in Clause 14, which was introduced as a manuscript amendment. How can we be expected to consider turning the law of marriage on its head without taking full account of the implications of heterosexual civil partnerships as well? If we must consider changing marriage, let it be with all the facts at our disposal, all the consequences identified, all the financial implications worked out, all the social advantages and disadvantages known, and not blunder into a legal, theological, moral and sociological minefield.

I ask that this Bill should be defeated now, and not allowed to take up valuable parliamentary time in the later stages, when so many other pressing matters demand our attention. It should be defeated. The concept should be sent back to the drawing board because this is too serious and too important a matter to be introduced on a whim and handled in such cavalier fashion. The House of Lords is the final check, perhaps the only check, on the power of the Executive. It should use that power sparingly, but, on this occasion, use it positively. I beg to move.

--- Later in debate ---

[Lord Pannick]

My Lords, I warmly welcome the Bill for the reasons stated by the Minister and the noble Baroness, Lady Royall, in their admirable speeches opening the debate.

I much regret that the noble Lord, Lord Dear, should think it appropriate to seek to deny a Second Reading to a Bill which has received overwhelming support in the other place on a free vote. The noble Lord emphasised what he described as the majority view in the country at large. I have to tell him and others who share his views that the world out there has moved on and that for most people, particularly those under 60, the sexuality of their neighbours is neither a concern nor a threat, as the noble Baroness, Lady Kennedy, said. It bemuses people that any element of unequal treatment should remain in our society simply by reference to people’s sexual orientation.

Many people outside the House listening to the debate or reading it in Hansard in due course will wonder why the noble Lord, Lord Dear, and his supporters, all of whom rightly value the institution of marriage, seek to deny the same happiness, fulfilment and status to other people simply by reference to their sexual orientation. I am a paid-up member of the married club and glad to be so. It is precisely because of the value of marriage that it should not be denied to same-sex couples. There is no question of the Bill being introduced on a whim, as the noble Lord suggested. It is being introduced on a fundamental question of principle to address a wrong that needs to be addressed.

I wish to comment on a theme which appears to drive the Bill’s opponents. The noble Lord, Lord Dear, referred to what he described as centuries of tradition and the concept of marriage as we have always known it, and the noble Lord, Lord Waddington, made similar points. This is to treat the law of marriage like the law of the Medes and the Persians which, according to the Book of Daniel, chapter 6, verse 8—the devil can quote scripture—“altereth not”. The reality is that the law of marriage in this country has altereth a lot. It has altereth a lot from time to time according to changes in social conditions and social attitudes. The noble Baroness, Lady Barker, made this point in her powerful contribution to the debate.

Prior to legislation in 1907, a man could not marry his deceased wife’s sister. Prior to 1921, a man could not marry his deceased brother’s widow. Other prohibited degrees were removed in 1931. All of this information is in the valuable Halsbury’s Laws of England edited by the noble and learned Lord, Lord Mackay of Clashfern. The Gender Recognition Act 2004 allowed a transsexual to marry in his or her acquired sex even though, I remind the noble Lord, Lord Waddington, procreation is plainly not possible in such circumstances. The minimum age for marriage has been altered from time to time; the law related to the validity of non-Anglican marriages has developed over time; the law of divorce has been amended from time to time; other incidents of marriage have been the subject of change. Until case law in the 1990s when the first judgment in the modern era was given by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, the law proceeded on the basis that a husband could not be criminally liable for raping his wife if he had sexual intercourse with her without her consent.

It is, therefore, simply unsustainable for critics of the Bill to suggest that there is anything unprincipled in Parliament amending the law of marriage in a fundamental manner to recognise social developments and to do it in accordance with basic principle.

I will make one other point if I may. I have provoked the noble Lord.

[Lord Dear]

As we are both Benchers of Gray’s Inn, the noble Lord would have to go a long way to provoke me. Before we go any further, may I ask the noble Lord if he has taken notice of the fact that at no stage in my address did I say that because the law and custom of marriage were well established we should continue in the same vein? The main thrust of my address was that sufficient research has not been carried out into the laws of unintended consequences. Could he address that?

[Lord Pannick]

I cannot address every point made by the noble Lord. If he fails, as I hope he does, to prevent the House from debating the detail and the arguments in Committee and on Report, I very much hope that the House will address every point made by him. I focused on his completely unsustainable suggestion that there are “centuries of tradition” and that the concept of marriage as we have always known it is being removed. I am quite happy to try to deal with every point if noble Lords want me to make a speech of 30 or 40 minutes but I will not trespass on the tolerance of the House to do so.

I do not accept that there are unintended consequences. I will deal finally with just one suggestion of an unintended consequence made by the noble Lord and other critics—that the Bill is going to force religious bodies to conduct same-sex marriages contrary to their religious principles. The noble Baroness, Lady Kennedy, mentioned that we both gave oral evidence on this subject to the House of Commons Public Bill Committee. I explained my view that there was no realistic possibility whatever that any court, domestic or European, would compel a church or other religious body to conduct a same-sex marriage ceremony contrary to the doctrines of that religious faith. The reason is very simple: under this Bill, a same-sex couple will be able to enter into a civil marriage. Their only reason for wanting a religious ceremony would be to gain a religious benefit. All, and I mean all, case law confirms that courts will leave religious bodies to decide on the allocation of religious benefits. None of the other legal concerns raised by the opponents of the Bill seems to have any basis whatever.

I am confident that this House will give a Second Reading to the Bill tomorrow and I very much look forward to a reasoned debate in Committee on all questions of detail.