Marriage (Same Sex Couples) Bill

Debate between Lord Dear and Baroness Barker

Monday 17th June 2013 Lords Chamber

[Lord Dear]

I shall speak to Amendments 7 and 8, which stand in my name in this grouping. I ask noble Lords to consider the words which case law has held to be paramount in this, that beliefs must be,

“worthy of respect in a democratic society and not incompatible with human dignity”.

They are words protected by the European Convention on Human Rights, and they cover both religious and philosophical beliefs. There are a clutch of cases which I could quote here, but I will refer briefly to only two of them.

The first is Grainger plc & Others v Nicholson in 2009. The court held that strong philosophical belief about climate change, for example, affected how the claimant lived. It went beyond mere opinion. It was setting out that opinion is one thing, which is not protected by the law, but that serious beliefs which stand above that should be so protected. That case really became the bedrock of this particular set of cases. In a 2005 case in the House of Lords, Regina v Secretary of State for Education and Employment and others ex parte Williamson, the noble and learned Baroness, Lady Hale, said that:

“A free and plural society must expect to tolerate all sorts of views which many, even most, find completely unacceptable”.

Agreeing with that judgment, the noble and learned Lord, Lord Walker, in accepting pacifism, vegetarianism, and teetotalism as beliefs, went on to say that they are not just religious beliefs,

“but equally … may be based on ethical convictions which are not religious but humanist”.

I galloped through that just to say that the words,

“worthy of respect in a democratic society”,

have a solid bedrock in both European law and the law of this country.

The reason for tabling these two amendments is to focus on the fact that the Government have repeatedly insisted that this legislation before us will not penalise those who believe that marriage is only between a man and a woman. As the noble Baroness, Lady Cumberlege, has already said, the obvious case to cite at that juncture is that of Adrian Smith and the housing trust. That has been mentioned several times in previous debates on this subject. I will not go into it again but that case, and others, indicate the fragility of the position of those who seek to express a firmly held view, without any intent of causing any disruption beyond—

[Baroness Barker]

I wonder if the noble Lord, Lord Dear, would care to acknowledge that Adrian Smith actually won his case. The reason why he did not win substantial damages was because he did not take the case within the time limit. But he did win his case.

[Lord Dear]

Adrian Smith won his case under contract law. He was awarded only £98 for loss of earnings. I understand that he was advised by his lawyers that he would not have succeeded on a religious or belief discrimination claim.

Having mentioned the Adrian Smith case and the fragility which I think most would accept is there at present, my Amendments 7 and 8 are paving amendments, as much as anything, for Amendments 10, 12 and 14, which also stand in my name. They are put forward to your Lordships for consideration as alternatives, to put the Government’s assurances on a statutory footing. The amendments expressly state that,

“marriage was the union of one man and one woman”,

as a belief, and here I quote again,

“worthy of respect in a democratic society”.

As I say, that is the key test used by the European Court of Human Rights. The amendments go on to say “that no person” holding that belief “should suffer any detriment”, and ensure an ongoing recognition that there are different views on the issue and that the many who hold to a long-standing definition of marriage should not be disadvantaged.

Briefly, Amendment 7 requires that:

“Any person, in exercising functions under or in consequence of this Act”,

should have regard to the principle of not causing detriment to those who believe in “traditional marriage”. That would put, as an example, the Secretary of State under an obligation to have regard to this principle when making orders under the Act. It would apply to anyone involved in the registration of marriages, including staff handling applications from churches.

Amendment 8, as an alternative, tightens the focus down to:

“A public authority, or any person exercising a public function”,

having regard to the same principle. That would apply to public sector employers, including housing trusts, which might treat employees unfairly because of their beliefs about marriage. The amendment would also extend to all that is done, for example, by Ministers of the Crown, the National Health Service, local authorities, schools, police forces and so on. Individuals in all walks of life would be protected, from doctors to road sweepers, from nurses to government advisers, and from teachers to police officers.

Marriage (Same Sex Couples) Bill

Debate between Lord Dear and Baroness Barker

Monday 17th June 2013 Lords Chamber

[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?

[Lord Dear]

With the greatest respect, we are trying to get to the facts in all these debates. If I may say so, the noble Baroness is painting a picture that is so unlikely to happen as to be almost irrelevant.

[Baroness Barker]

But which is none the less possible.