Marriage (Same Sex Couples) Bill
Lord Dear Excerpts(11 years, 5 months ago)
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“Belief in traditional marriage
Nothing in this Act shall contradict the principle that a belief that marriage is the voluntary union of one man and one woman for life to the exclusion of all others is a belief worthy of respect in a democratic society.”
Lord Dear
My Lords, in moving Amendment 4, I draw attention to the fact that this is a more tightly drawn version of the two amendments that I spoke to in Committee—when I had a voice—on 17 June, which were then Amendments 7 and 8. Instead of getting into the detail, which I did then, on how employers or public sector bodies treat individuals, this amendment is simply a declaration that the belief in traditional marriage is worthy of respect in a democratic society. It makes it clear that it is vital for individuals claiming protection under human rights or discrimination law who are not card-carrying members of any particular religion, but it would be helpful to people who are religious as well.
There are basically two sets of words in this very short amendment. The first refers to the,
“belief that marriage is the voluntary union of one man and one woman for life to the exclusion of all others”,
and the second refers to,
“a belief worthy of respect in a democratic society”.
The first set of words is the existing legal definition of marriage as,
“the voluntary union of one man and one woman for life, to the exclusion of all others”.
That is the definition found in case law as far back as 1866 in the case of Hyde v Hyde and Woodmansee, and was given by Lord Penzance in that leading case. Until now, every couple at the point of marriage declares that they are entering into marriage as defined by English law, which is, as I have said, a voluntary, lifelong and exclusive union. We know that things can go wrong in marriage and there is, of course, legal provision for divorce. Throughout history and across cultures, the definition of marriage has been understood in the terms that I have just repeated.
Even before the Bill becomes law, people who support traditional marriage are now often accused of discrimination. It is said—I cannot vouch for it, but it was sprayed all over the newspapers recently—that in a draft version of a speech by the Deputy Prime Minister some were described as bigots. They have certainly been likened in the House of Commons to racists and advocates of the slave trade. However, it is generally accepted that, no matter how one looks at the opinion polls and so on, a great many people in the UK do not accept the new gender-neutral definition of marriage proposed by the Bill. They may accept the Bill, and many do, but they object to the gender-neutral definition, which embraces them as well. I contend that they cannot be expected to jettison their deeply held beliefs overnight; nor, I suggest, is it the proper role of law to seek to coerce people to do so.
I was much impressed and heartened by the comments of the noble Lord, Lord Deben, who talked about generosity. I made a note of that at the time. It seems that those words have been played into. The word “generosity” and, later, the words used by the noble Lord, Lord Elystan-Morgan, “reasonableness” and “tolerance”, have been much in vogue over the past half hour or so in your Lordships’ House. I applaud that. What we are looking at is recognising the traditional view of marriage as held by many people, who still cling to that as the ideal. That takes care, very briefly, of the first part of my amendment.
I turn to the words,
“worthy of respect in a democratic society”.
That concept—those words—is the key test in human rights law. Case law from the European Court of Human Rights and, indeed, the highest courts in the UK, also hold that for a belief to be protected in law it must pass this legal threshold. Stating in the Bill that the belief in traditional marriage meets this test would provide very valuable help to everyone who holds that belief. It is particularly important for individuals who are not, as one may say, card-carrying members of any particular religion.
A great many people in this country have a deeply held belief in marriage that is not, to them, part of an overall religious or ethical belief system. The belief is more likely to be recognised and protected in law where it flows from an underlying, religious belief system. It is less likely to be afforded protection where a person holds a belief that could be written off as mere opinion. The case law on that I quoted extensively in Committee. I will not go through it again. The references can be found in Hansard, when I quoted from Grainger plc & others v Nicholson and the Williamson case.
The words,
“worthy of respect in a democratic society”,
are the acid test. The Minister said in Committee:
“A belief that marriage should be between a man and a woman is undoubtedly worthy of respect in a democratic society”.—[Official Report, 17/6/2013; col. 75.]
There can be no objection, she said, to putting this in the Bill. The enacting of the Bill should make it abundantly clear that a belief in same-sex marriage is worthy of respect. Millions of people who hold to a traditional belief in marriage are left unsure today by what is going on in this House and in another place as to whether their belief is similarly worthy of respect. I contend that it is necessary and that it takes absolutely nothing away from the Bill, or what the Bill seeks to set out, to include the amendment.
The noble Lord, Lord Phillips of Sudbury, who is not in his place at the moment, spoke very powerfully about the millions of decent people who, as he put it, are not homophobic, who are concerned and confused by what the Bill will mean for them. They show a great deal of tolerance and understanding about why the Bill is coming in and in many ways support the general thrust. However, at the same time, the noble Lord talked about avoiding discontent in that very large number—my words, not his. What he was really saying was, “Don’t damage the purpose of the Bill in the eyes of the general public”.
The Bill will pass. That was evident from Second Reading and from today in the two votes that have taken place already. The Bill will pass, but it should be enacted in a climate of acceptance. With some people that will be a grudging acceptance, although not in my case, and with others a warm acceptance. However, it should come in in an atmosphere of acceptance and those words of tolerance and generosity that we have heard much play made of today. It should not come in in a climate where no concessions are allowed at all for those who seek to understand those millions of people outside who are confused and who look for some sort of reassurance—a safety net if you like—that they can quite properly express a view and a belief and not be punished for it. I beg to move.
Amendment 5 (to Amendment 4)
Baroness Stowell of Beeston
If the gentleman that my noble friend refers to has written to me, the letter has not reached me, but I have seen a copy because I know it has been circulated widely. I am aware of it. What his experience tells us is the point that I just made, if I understand that experience rightly and it was as has been reported in the media. I was not there and do not have the full details of the event. If he expressed views as I have just explained, he was being absolutely lawful. I understand, according to news reports, that he was arrested, but no charges were brought against him because the law is clearly on his side.
My noble friend has just given me the opportunity to remind noble Lords of something. I was going to make this point in any case to the noble Lord, Lord Dear, because he said we are not making any concessions in this area. It is important to remind him and the House that we have amended the Public Order Act to make it absolutely clear in the provision that already exists in that Act that it is absolutely lawful for people in public discourse to express this view. We were happy to make that amendment to a section that already exists. That change has been made. On a general basis, I also point out to the noble Lord and the House that later we will debate an amendment we are moving in the context of greater clarity for the protection of religious freedom around the meaning of the word “compel”. We are listening and we are making changes where we think it is right to do so and no harm will be done. In that context, the proposal that the noble Lord has put forward is not necessary for all the reasons I have explained. I hope that he feels able to withdraw his amendment.
Lord Dear
My Lords, I am much reassured by what the Minister said. She mentioned the Public Order Act. Of course, that allows me to parade, after a defeat here, a success in removing the word “insulting” from Section 5 of the Public Order Act shortly before Christmas with a fairly substantial majority. That was taking the word “insulting” out but leaving in “threatening” or “abusive” words or behaviour in a public place. Amendment 4 is really aimed much more at comments made in private, not in a public place, as defined by the Public Order Act, which the noble Baroness alluded to.
I remained concerned. I mentioned before, as did others today, the large number of people who are concerned about a change to life as they see it, to put it in those terms. Certainly, from my own personal point of view, I would not withhold the words “worthy of respect” from same-sex marriage if this Bill becomes law. Undoubtedly, it will do. The moment it becomes law, I shall accord that respect, undauntedly, to those who are in a same-sex relationship as I do to those in a traditional relationship. I hope, too, that that will go for the vast majority of people in this country.
I am much reassured by the response given to the question posed by my noble friend Lord Butler of Brockwell because I was going to make the same point. He saved me from posing that question again and perhaps losing my voice in the process. I hope that, in future, we will find that this short debate has been unnecessary and that in fact the holding of a belief and espousing that belief into some sort of fairly anodyne comment—one not meant to insult, a simple “I believe X”—will not get those people into trouble. The Minister has been so fulsome in the way she responded to that question that I have great pleasure in withdrawing the amendment.
Lord Elton
Before the noble Lord does that, can I just remind him that we are actually debating the amendment to his amendment? The last word on that has not yet been said.
Marriage (Same Sex Couples) Bill
Lord Dear Excerpts(11 years, 5 months ago)
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“Review of impact of same sex marriage
The Secretary of State must arrange—(a) for the operation and effects of this Act to be reviewed two years and five years after this Act is passed;(b) for the report on the outcome of the first review to be produced and published within thirty months of this Act being passed;(c) for the report on the outcome of the second review to be produced and published within five years and six months of this Act being passed; and(d) for both reviews to be conducted by a Lord Justice of Appeal taking appropriate evidence with particular regard to the impact of this Act on civil liberties and the rates of—(i) opposite sex marriage, and(ii) same sex marriage.”
Lord Dear
My Lords, by any stretch of the imagination same-sex marriage is something of a social experiment. Its consequences cannot accurately be foretold, certainly not in this country. Amendment 47 requires a review of the legislation to be conducted by a Lord Justice of Appeal, two years and again five years after the Act is passed, with reports published within six months of each of those two reviews. If the amendment is carried, the reviews are to focus particularly on the impact of the legislation, first on civil liberty and secondly on the rates of opposite and same-sex marriage.
The reasoning behind the amendment is that the impact of same-sex marriage on marriage rates should be reviewed, because evidence shows that redefining marriage undermines support for marriage in the wider society. I draw two examples. After same-sex marriage was introduced in Spain, marriages across the whole population plummeted by more than 20% in the following six years. It has been said that the relaxation of divorce laws that occurred at about the same time as the introduction of same-sex marriage had something to do with this fall. No doubt it did, but it could not account for the full extent of that 20% fall. Without going into the detail, the Netherlands also saw a significant fall in marriage rates after marriage was redefined there.
The focus of the reviews on the consequences of same-sex marriage for civil liberty will enable evaluation of the effectiveness of the Government’s quadruple lock. More broadly, many civil liberty concerns, some of which we have just heard again in the preceding amendment, have been raised with respect to the Bill, only to be largely dismissed by the Government and other supporters of the legislation. With the greatest respect for the Minister, I must say that we have now seen more than 50 amendments in Committee. On several occasions I would have expected words from the Front Bench along the lines of, “We will take away what has been said and consider it”, or, “We intend to review what has been said in the Chamber”, or, “I will take this away and discuss what he has said with the noble Lord”. I can think of only two examples of this taking place. If the Minister can disabuse me of the idea that only two or three amendments have received that sort of response, I will be delighted to know how many more there are.
It seems to me that the noble Baroness’s instructions are heavily annotated with, “Do not concede”. From my standpoint, and that of others who have spoken to me in the margins of Committee before this third day, it seems that the Government are putting some sort of stone wall around the Bill, and refusing to concede anything at all of any substance. Whether that is right or not—and I look forward to being disabused of that idea—I would be delighted to know that the Government are going to take away substantial parts of this discussion to review before we come to Report.
Putting that to one side, the reviews set out in the amendment will be able to consider the extent to which the Government’s assurances have been vindicated or contradicted by events. Concerns about the impact of same-sex marriage on civil liberty arise partly because of what has already happened. Again, we have just had a comment on that in the preceding amendment. Believers in traditional marriage have been punished, both in the UK under the current definition of marriage, and also internationally in those countries which have redefined marriage. We have heard the case of Aidan Smith, which has been much quoted in the last three days of Committee, and was referred to again by the right reverend Prelate the Bishop of Leicester.
There were three more examples in very quick time. The former leader of the SNP, Gordon Wilson, was voted off the board of Dundee Citizens Advice Bureau for supporting traditional marriage. Arthur McGeorge, a bus driver, faced disciplinary action by his bosses simply because he had shared during his break time at work a petition backing traditional marriage. The World Congress of Families wanted to hold a conference on redefining marriage at the Queen Elizabeth II Conference Centre, but it was banned by the Law Society and the conference centre, because, as they said, discussing the subject of redefining marriage would be a breach of diversity policies.
Elsewhere in the world—to get the drift of where all this is going—a Christian florist in Washington state who said that she could not provide flowers for a gay couple’s wedding because it was against her beliefs is being sued by the couple concerned. In Canada, a sports journalist, Mr Damian Goddard, was fired for tweeting that he supported traditional man-woman marriage. In April this year, New Zealand voted to redefine marriage, with the law taking effect from August this year. Within weeks of the vote, the charity, Family First New Zealand, a leading opponent of same-sex marriage, was told by the New Zealand Charities Registration Board that it would lose its charitable status because its activities did not provide public benefit.
This is the climate that we are in. My proposed new clause seeks to have the Bill reviewed at two stages when it becomes law—assuming that it does, and I am sure that it will. I say to the Front Bench that if the Government are so very confident that there is nothing to fear and that the Bill is watertight—and I would be delighted to find that that were the case—it follows that they should have no fear of demonstrating its success by those reviews. I am not so sure necessarily that that will follow. To go out to public consultation, to go out to opinion polls as to where this goes—we have heard this debated in your Lordships’ House in the past. On the one hand, 83% of people taking part in the consultation on the Bill were apparently against it. The ComRes poll and the bulging postbags that we have heard about all seem to show that the Bill is not a very good idea. On the other hand, the polls that have been put forward by Stonewall and others suggest that the Bill is probably a very good idea. Going out to the public in those sorts of ways is not going to produce much of a result. To measure the result of the Bill at the two-year point and the five-year point, and having it done independently and with judicial scrutiny, seems to me to be the way to resolve whether it is going to work and will allay a great deal of public concern which exists at the moment. I beg to move.
Lord Fowler
My Lords, I have not spoken previously in this Committee, but I am anxious to make amends to the noble Lord. When he spoke at Second Reading, someone in the public was watching the television and wrote to me complaining that my facial expressions seemed to indicate some disagreement with him. I very much apologise for that and, even better than that, I am glad to say that I have some sympathy with the principle of what his proposed new clause sets out—although I am bound to say that his remarks did their best to alienate me as I went along.
My view has always been that all Acts—or certainly all major Acts—should be subject to post-legislative scrutiny. It is one of the curiosities of this place that we sometimes, although not always, have pre-legislative scrutiny, which is doubtless of some value, but not the more important post-legislative scrutiny, seeing whether it has all worked out properly or at least as Parliament has intended. From that point of view, therefore, I have sympathy with what the noble Lord is proposing, although he did not much dwell on that aspect of it. Sadly, however, I cannot agree with the detail of the noble Lord’s amendment. A review after two years, for example, is frankly far too early for any sensible conclusion.
What is basically wrong is the process by which this post-legislative scrutiny will take place. Why do we need a Lord Justice of Appeal to carry it out? I have never heard of post-legislative scrutiny being carried out by a Lord Justice of Appeal. I would have thought that it was essentially a job for Parliament and, above all, for this House. This is what we do rather well. I find it extremely difficult to go along with the noble Lord. I cannot support him, but if he would join me in a general proposal—not just on this Bill, which would be foolish—to try to introduce post-legislative scrutiny to Acts generally then we would very much be on the same side.
Both on the detail and above all on the specifics of the way the noble Lord has set it out in this Bill, I cannot support the proposed new clause. I do not think that it adds up to what even the noble Lord really wants.
Baroness Northover
I think that I recognise the sort of change that happens in the first year and from the other little ones who come along after that.
I begin by agreeing with noble Lords that the Bill, if enacted, should be reviewed, as is standard practice for any significant legislation. Whether they are for or against the Bill, noble Lords are pushing at an open door. Let me address quickly the slightly different point made by the noble Lord, Lord Dear—the argument that there have been few changes to the Bill during its passage. I point him to the comprehensive answer that my noble friend Lady Stowell gave to counter that point when the noble Lord, Lord Anderson, made it earlier.
In terms of a review of how this legislation works, we agree with the principle. I welcome the support that has come from my noble friends Lord Fowler, Lord Cormack and Lady Cumberlege, my noble and learned friend Lord Mackay and the noble Baroness, Lady Royall. We would envisage post-legislative scrutiny covering issues such as an assessment of how the Act has worked in practice, which would no doubt address the kind of concerns that the noble Lord, Lord Dear, has mentioned, should they arise. We also envisage it covering: when and how different provisions have been brought into operation; any provisions that have not been brought into force, or enabling powers not used; details of the associated delegated legislation, guidance documents or other relevant material prepared or issued in connection with the Act; and any specific legal or drafting difficulties that had been matters of public concern. That was perhaps the kind of issue that the noble Lord, Lord Dear, was talking about—for example, where litigation has resulted, as the right reverend Prelate mentioned on the last grouping.
However, the timing of such a review needs to be carefully considered, with some flexibility built into the process, which is why arrangements for review are typically not set out within a Bill. In line with established Cabinet Office procedures, a memorandum will be produced containing a preliminary assessment of how the Act has turned out in reality, measured by the objectives set out during the passage of the Bill—including, for example, the protections mentioned by the noble Lord, Lord Anderson. That would be part of the way in which the Act would be reviewed. It will then be a matter for a Select Committee to determine whether it wants to go on to hold a wider post-legislative inquiry into the Act. I thank my noble friends for the support they have given on the process. The convention is that a review is undertaken three to five years after Royal Assent—perhaps earlier than the noble Baroness indicated—in order to provide sufficient time for the new law to bed in and operate as intended. The scrutiny would be done at an appropriate time.
While I appreciate the intention behind this amendment, what is proposed instead by the amendment is something more complicated, as noble Lords have indicated, and not proportionate to what needs to be done, involving as it does two separate reviews and a potentially lengthy process, which would delay the answers that I am sure we would all be keen to hear. So, in essence, we are in agreement on the need for a review but not on the mechanics. That is why I ask the noble Lord to accept my reassurances and to withdraw his amendment.
Lord Dear
I have to say that I remain a little confused about this, but at a much higher level. Everyone on all sides of the House seems to say that the principle is very good. That started with the comments made by the noble Lord, Lord Fowler, and shortly after that by the noble Lord, Lord Cormack, and the noble and learned Lord, Lord Mackay. If the principle is right, perhaps we need not worry too much about the detail. I for one would not push the detail at all—whether it is one year or five years, or indeed whether it is a Lord Justice of Appeal or not.
I thought that those who spoke in support of the amendment in specific terms—the noble Lords, Lord Anderson and Lord Stoddart of Swindon, and the noble Baroness, Lady Cumberlege—in effect all said the same thing, which is that there has been no real pre-legislative scrutiny at all. We know that the Bill came into the House of Commons at a rate of knots. For that reason alone, it is well worth while looking at the workings of the Bill once it becomes an Act of Parliament and goes through into society.
The point has been made several times on both side of the House. The Bill is so complicated and so fundamental to society—“building block” was mentioned—and there is so much concern about it outside that the argument can be carried quite easily that we need to look at its workings at some stage in the future. I do not want to get into the detail; this is something of a probing amendment in any case and I am more than happy to withdraw it at this stage.
“39A After section 26 (harassment) insert—
“26A Discussion or criticism of same sex marriage
For the purposes of this Act, and for the avoidance of doubt, discussion or criticism of same sex marriage shall not be taken of itself to be discrimination or harassment.””
Lord Dear
My Lords, I am conscious of the fact that a pumpkin will shortly come into your Lordships’ House. I would simply reflect that Amendment 56 is a freedom of speech amendment and sits closely to Amendment 46C, moved and debated in this Chamber by the right reverend Prelate the Bishop of Leicester. In fact, one is the obverse and reverse of the other. Had the time been different, I would have tried to distinguish between them, but having regard to the similarity of the amendments and the fact that we have already had a full debate on Amendment 46C—and particularly because of pumpkins in the air—I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)
My Lords, I am afraid I have to ask the noble Lord, in view of the fact that he has spoken to the amendment, if he would please move it before withdrawing it, in order to give noble Lords a chance to address it if they wish
Baroness Stowell of Beeston
I am grateful to the noble Lord. I am particularly grateful to him for drawing comparisons with the amendment that was put down in the name of the right reverend Prelate earlier this evening. I agree with him that it is very similar and the response and arguments that I would have made to the noble Lord, Lord Dear, are similar to those which I have made at length on several occasions in Committee.
I will take this opportunity to make a couple of points. First, I hope that if this Bill is to become an Act—and I certainly hope that it will—we arrive at a point where it is accepted that the law allows marriage of same-sex couples, and it is possible for us all to respect differences of view about whether marriage should be between a man and a woman. Although the noble Lord, Lord Singh, is no longer in his place, I take exception to his assertion earlier that we have brushed aside concerns about freedom of speech in Committee. I have been happy to respond comprehensively to the debates we have had on that matter. I take on board the serious concerns that people have had in this area, and hope that I have been able to offer reassurance to noble Lords.
By the same token, I was a little perturbed by the comment that the noble Lord, Lord Dear, made earlier about me not responding with any real scope for consideration of the debates that have taken place in Committee. As my noble and learned friend will be responding to the final amendment and this will be the last time I am on my feet in Committee, I point out that in addition to the list of amendments I referred to in response to the noble Lord, Lord Anderson, that we have already tabled to the Bill, during debates at Committee, I—or my noble and learned friend—have committed to respond to noble Lords on a range of different issues.
This is not an exhaustive list and I am sure we may have other meetings with Peers on other topics. I have, for example, already agreed to have a meeting with my noble friends Lady Cumberlege and Lord Elton to discuss registrars. On the amendment earlier this evening about religious freedom for faith schools, I said that this was a matter that we continue to consider. In the debate earlier today about transgender matters, I said that I would write to the noble and learned Baroness, Lady Butler-Sloss, about her particular point. I am sure that the noble Baroness, Lady Thornton, my noble friend Lady Barker and I will probably meet to discuss that again. On the public sector equality duty and the definition of “compel”, we have agreed to write in detail to the noble Baroness, Lady O’Loan, about the points she raised. I add, because it was not mentioned during the debates last week, that I have already had a meeting with my noble friend Lady Berridge and the Secretary of State has already met the noble Baroness on that matter.
On humanists, I said that we would reflect further. On presumption of parenthood, I said that I would write in great detail to set out what is proposed in that very important area, which my noble and learned friend has just referred to again. On reviewing of the Act, which was an amendment from the noble Lord, Lord Dear, earlier today, my noble friend Lady Northover responded comprehensively. While there were differences in approach, it was clear that we were very committed to seeing the need for a review of the Act in future. On the debate about pensions, as the noble Lord, Lord Alli, was gracious to acknowledge in his response to me at the beginning of today’s debate, I took the time to speak to the Pensions Minister before the debate took place today.
I say all that because I want to put on record that we are listening, we continue to listen and the debates will continue. I am grateful to the noble Lord for saying that he will withdraw his amendment on freedom of expression.
Marriage (Same Sex Couples) Bill
Lord Dear Excerpts(11 years, 6 months ago)
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( ) to express agreement with a relevant marriage,”
Lord Dear
My Lords, I rise briefly to deal with Amendments 10, 12 and 14. I said when I spoke to Amendments 7 and 8 that they were paving amendments. In many ways they lead on to what the three amendments in this group now seek to deal with.
I listened very carefully to what the noble Baroness, Lady Barker, said when she spoke to Amendments 7 and 8. I have a great deal of sympathy with her. She might be surprised to know just how much common ground there is between us and be reassured by that comment.
Amendments 10, 12, and 14 are concerned with freedom of speech. The Bill seeks to protect the civil liberties of those who do not want to participate in religious same-sex marriages, stating that they cannot be compelled to do so or be punished for not doing so. Equality laws, we have heard today, will be amended so that, for example, a church minister who refuses to conduct a same-sex marriage will not breach the goods and services provisions of the Equality Act of 2010. However, the Bill’s existing safeguards do not deal with speech; they deal only with conduct. The evidence is overwhelming that it is the verbal expression of beliefs about marriage that tends to get people into trouble.
I was reminded to go back to the period just before Christmas, when I successfully introduced an amendment to remove the word “insulting” from Section 5 of the Public Order Act 1986, quite rightly leaving threatening and abusive conduct in place. Therefore, the expression of a mere view, even though some found it insulting, was not an offence in the criminal law under that section. I quoted very heavily then from the judgment of Lord Justice Sedley in the case of Redmond-Bate v Director of Public Prosecutions. The words that he used were very similar to those used by the noble and learned Baroness, Lady Hale, in the Williams case—a judgment I have already referred to; I will not go over that ground again.
Apart from the small amendment to the law on inciting homophobic hatred—Amendment 53, which we dealt with just before the dinner break and which applies, as we know, only to the criminal law—the Government, as far as I can see, have declined to address the problem of speech. Amendments 10, 12 and 14 add protection for freedom of speech, so that no person would be compelled to express agreement with same-sex marriage or be punished for expressing their disagreement to it.
I give three quick examples of what I have in mind here. Under Amendment 10, church staff who explain the church’s view to a same-sex couple who apply for a wedding cannot be sued. Under Amendment 12, employees can disagree with same-sex marriage without risk of being punished by their employers. Under Amendment 14, churches and religious organisations that refuse to endorse a same-sex wedding cannot be sued under the Equality Act for discrimination.
I think it is self-evident. I will not take up the time of the House any more, other than to give one quote from the Joint Committee on Human Rights, which said, in commenting on this general area of the law, that,
“we have heard arguments on both sides as to whether religious organisations and individual ministers may suffer some form of detriment as a result of their position on same sex marriage in a number of contexts which fall outside the scope of the Bill’s current protections. We note the concern that the Bill may create a number of legal uncertainties, which may only be resolved through litigation with its attendant costs”.
My Amendments 10, 12 and 14 seek to plug some of those gaps. I beg to move.
Baroness Stowell of Beeston
The amendments of the noble Lord, Lord Dear, provide an opportunity for me again to make clear what is allowed under the law in terms of belief and expression of belief. I do not accept his argument that the law deals only with conduct and not with freedom of speech, because it explicitly does. People are clearly able to express themselves, to hold religious beliefs and express those beliefs, and to do so freely. Nothing in the Bill restricts anyone’s right to express a view on marriage or anything else.
As I said before, I understand that some people are uneasy about the impact of the important change that we are making in the Bill by extending marriage to same-sex couples, but they really have nothing to fear. The law is clear. I understand that there is concern out there but it is my job here to respond to that and to say as clearly as I can that in law there really is nothing to fear. The Equality Act 2010 works in a balanced way to ensure that reasonable discussion of any topic is not restricted. The law comes into play only if someone is subjected to a detriment or is harassed because of a protected characteristic.
The noble Lord’s amendments would provide that a person other than a registrar, superintendent registrar or the Registrar General may not be compelled to express agreement with a religious marriage ceremony of a same-sex couple. Nothing in the Bill or elsewhere requires anyone to express support for marriage of same-sex couples, nor is there anything that prohibits disagreement with same-sex marriage. Nothing requires religious ministers or teachers—if that is what the noble Lord has in mind—or anyone else to express agreement with religious marriage ceremonies of same-sex couples. Religious ministers are free to preach about their views of marriage and those of their faith, and teaching must be factual and appropriate, but that does not involve teachers having to say they believe things that they do not believe.
Expressing disagreement with something is not in itself harassment or discrimination under the Equality Act. Under that Act, it is how people are treated that matters. Accepting this amendment would risk creating doubt as to whether other topics of conversation, such as views on civil partnerships or homosexual relationships generally, need similar protection.
As we have already discussed, we have amended the Public Order Act. I covered that in great detail in previous debates and I shall not go over it again. I can only conclude by saying that the amendments are unnecessary and potentially damaging to the balanced way in which the Equality Act protects people from discrimination and harassment. For those reasons, I cannot accept the amendments. I hope that I have been able to give the noble Lord the assurance that he is looking for and that he feels able to withdraw the amendment.
Baroness Stowell of Beeston
I think it is both. They are not necessary and by being specific in this way, as I tried to explain, we create doubt about people expressing other views that are not spelt out. Once we become specific, arguably we remove people’s protection to say other things that they are legitimately able to, because the law does not out spell out specifically that they are protected in doing so. There is a potential risk there with the amendments as well.
Lord Dear
My Lords, I am partly confused and certainly not in agreement with what I think I heard the Minister saying. I feel that we have already heard that the Equality Act has been shot through a number of times as being inadequate. A number of cases have been cited. Clearly, the freedoms it set out to offer have not always been available and for the first time—
Lord Lester of Herne Hill
I am sorry to interrupt the noble Lord but I strongly object to what he has just said. There is no evidence that the Equality Act has been shot through with anything or has failed to work properly. I have already said in a previous short speech that the Human Rights Act solves the problem but he does not seem to have followed what I said, so I will say it again. The Human Rights Act says that all legislation, old and new, must, if it is possible to do so, be construed compatibly with the convention rights. Those rights include freedom of conscience, religion and belief and freedom of expression. If we wanted to get into a real muddle, we would start writing stuff into this Bill which then has to be read down by the courts. The best thing to do is to go for legal certainty and my view is that the law is quite certain on that.
Lord Dear
Of course, I defer to the noble Lord’s view on this but nevertheless we have heard of a number of cases in your Lordships’ House tonight where people have expressed a view and been sued for it. I do not in that sense move away altogether from the point I am trying to make. There are people out there who are now very concerned about opening their mouths and saying anything at all, for fear of being dubbed homophobic. There will certainly be more if this Bill comes into law in its present form. Although I am more than happy to withdraw my amendment at this stage, I will seek return to it on Report and may very well seek to divide the House.
Lord Anderson of Swansea
Surely there is not likely to be any situation in which a couple go to a registrar who is seated at a desk and that registrar walks away from them. The position is clear. The authority would know in advance who is coming, and there would be no insult to the individual couple because a registrar there would have no objection in conscience. There is no way in which an individual couple could be injured in the way the noble Baroness describes.
Lord Dear
If I may respond, that situation is really an exercise of emotion rather than fact. The likelihood of a registrar suddenly seeing a gay couple in front of them and turning on his or her heel and walking away is so fanciful as to be almost ludicrous. I would expect to find that people signal their objection before the likelihood occurs. A registrar in this position would signal that, from a matter of conscience, they cannot conduct that marriage. They would make that known to whoever runs that office and somebody else would be in place. I certainly do not envisage—and I certainly would never support—a registrar turning on their heel on the wedding day, walking off and leaving the vestry or the registry office completely open. That is not within my frame of reference at all.
Baroness Barker
But you are left with the possibility. What happens in a rural area where there are not that many registrars and a lot of people of a particular religious belief who do not agree with this?