Marriage (Same Sex Couples) Bill

Debate between Lord Elton and Lord Wallace of Tankerness

Monday 8th July 2013 Lords Chamber

[Lord Wallace of Tankerness]

I was making the point that there are a number of grounds on which one might say one had a religious belief. Are we to have a hierarchy of religious beliefs, some of which will allow a registrar to exercise a conscience clause and some of which will not? However, as the noble Baroness, Lady Richardson, said, there might be some areas of the country with a small number of register office staff where it could be difficult to find a registrar who would marry them.

We sought further information from the National Panel of Registration and its letter has been placed in the Library of your Lordships’ House. As my noble friend Lady Noakes indicated, there has not been a huge demand for this amendment, quite the contrary. It would be easy to dismiss this letter but very often the House calls for the views of bodies which represent particular organisations. The letter states:

“The objection to a conscience clause is based on Registrars being local authority employees who are expected (and willing) to carry out all the functions that their role covers. On a daily basis, Registrars deal with many scenarios that for those with strong beliefs (religious or otherwise) would possibly not be able to carry out. Examples include: registering the birth of a child from a same-sex couple; undertaking marriages for previously divorced persons; or carrying out civil ceremonies and registrations. Registration Services and, in particular, the Registrars, are passionate and proud about the services they deliver and the customers they work with. For the past 176 years, Registrars have been carrying out their duties and have never wanted a conscience clause, and do not see the need for one now … The beliefs we bring to work are respect and tolerance and we would wish that to continue”.

[Lord Elton]

Could my noble friend read on? Does it not say that,

“we leave beliefs at home”?

Does that not say a great deal about this?

Marriage (Same Sex Couples) Bill

Debate between Lord Elton and Lord Wallace of Tankerness

Wednesday 19th June 2013 Lords Chamber

[Lord Elton]

May I suggest that all those who have taken part in the debate should have a copy sent directly? Could my name be added to that list?

[Lord Wallace of Tankerness]

My noble friend has taken part in the debate and I usually make it a matter of practice to send a copy to everyone who has taken part. The noble Baroness, Lady Royall, makes a constructive suggestion. I will make sure that it is put in the Library and if, on the basis of the letter and follow-up, it is thought that a discussion would be necessary or wanted, I would certainly be happy to accommodate that. In the light of these comments and the reassurances that we have sought to give, I hope that the noble Baroness will feel able to withdraw her amendment.

Marriage (Same Sex Couples) Bill

Debate between Lord Elton and Lord Wallace of Tankerness

Wednesday 19th June 2013 Lords Chamber

[Lord Elton]

My Lords, this echoes precisely what I was saying at Second Reading. It is a very good example of what is wrong with this whole process. We started off with one unhappy minority and we are going to finish up with 15 or 20 who have not been consulted in the process to the extent that the others have.

[Lord Wallace of Tankerness]

My Lords, I appreciate the point that the noble Lord, Lord Singh, is making, but I ask him to reflect on the fact that the exceptions are exceptions for historical reasons of the Church of England and the Church in Wales where there is a common-law duty with regard to priests in relation to people within their parish. Quakers and the Jewish faith are included for reasons that go back centuries. Every other religion in England and Wales is treated in the same way. Even my own denomination, the Church of Scotland, is treated in the exactly same way as the Sikh faith is treated by the provisions in this Bill for the religious organisation itself to determine what its appropriate authority is.

It is quite clear from what the noble Lord has said that there is no doubt within his faith as to where that authority lies, just as in my own denomination the General Assembly of the Church of Scotland would be the obvious authority. The fact that he has been able to make very clear where that authority would lie just shows the importance of it being determined by the religion itself. I also ask him to reflect on the fact that if we included his amendment, every other faith and denomination would have to be included as well. That would be an impossible task for a Government and would take them into having to decide which the proper authority of some religions is, and I do not believe that is where the state should go.

Marriage (Same Sex Couples) Bill

Debate between Lord Elton and Lord Wallace of Tankerness

Monday 17th June 2013 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I start by thanking my noble friend Lady Cumberlege for introducing this amendment, which has certainly given rise to a good debate. There are clearly some strongly held views on both sides and some powerful arguments, too. I have listened carefully but it is important that I set out and clarify the Government’s position. The noble Baroness, Lady Thornton, has just quoted the Secretary of State, so it may not come as a huge surprise but it is important to give the reasons why we take that view. As the noble Baroness indicated, it is a view that was argued on behalf of the United Kingdom in the European Court of Human Rights in the Ladele case, and the court found that our law at present regarding civil partnerships falls within what is legitimate under the European Convention on Human Rights.

Marriage registrars are public officials performing statutory duties on behalf of the state. We believe that it is an important principle that they should perform their duties in accordance with the law, as decided by Parliament, and without discrimination. I noted—I hope reasonably accurately—what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said: that public servants should, with very limited exceptions, serve the public according to the law as democratically decided. That is fundamentally the Government’s position. If this Bill is passed, the marriage of same-sex couples will be lawful in England and Wales, so marriage registrars must perform their duties in relation to the solemnisation of marriages between both opposite and same-sex couples, without discrimination.

I paid attention to the parallels made with areas such as abortion and conscientious objection in religious education, which were powerfully and sincerely argued. However, it is too simplistic to draw a parallel between a conscientious objection regarding a doctor not performing an abortion and one where a registrar seeks conscientious objection not to perform a same-sex marriage. They are not comparable. For some people with a very strong religious conviction the right to life is paramount and in such circumstances, the argument that the state should not require them to act against their conscience is highly persuasive. I do not think that anyone would reasonably say that same-sex marriage can be seen in the same terms. That was picked up by the noble and learned Baroness, Lady Butler-Sloss, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and my noble friend Lady Noakes.

The most significant difference in terms of the Abortion Act exception is that medical staff do not discriminate on the basis of their patient’s personal characteristics. They do not pick and choose which patients to treat on that basis; for example, on the basis of a particular person’s race or religion. The exception being sought for registrars does precisely that, on the basis of the couple’s sexual orientation. Moreover, for medical staff who object to taking part in abortions that is only a small part of their daily duties, but for a registrar conducting marriage ceremonies, conducting marriage ceremonies is at the heart of what they do.

Reference was also made, not least by the noble Lord, Lord Browne of Belmont, to teachers. I understand that the exception there is not framed as a conscience clause, as such. The provision relating to the ability of teachers to opt out of teaching RE is set out in Sections 59 and 58 of the School Standards and Framework Act 1998. These specify that if you teach at a non-faith maintained school, you are not required to teach RE and cannot suffer any detriment because of that refusal. If you teach at a foundation or voluntary-controlled faith school and are not a reserved teacher, you are not required to teach RE, and, again, cannot suffer any detriment because of that refusal. If you teach at a voluntary-aided faith school, refusal to teach RE in accordance with the religious tenets of the school might well affect your remuneration or promotion, or you might not be employed in the first place. Unless a teacher is specifically appointed to teach religious education they cannot be compelled to do so, regardless of whether they are an atheist or not. Therefore, while I hear the arguments and understand where they are coming from, the parallels are not particularly helpful in dealing with what we are discussing.

The Government are clear that in extending marriage to same-sex couples, the Bill should protect and promote religious freedom. That is why, as we heard again today, it contains a quadruple lock of religious protections. However, the functions performed by marriage registrars are civil in nature. This is also the case in relation to their functions when they have a role in religious marriage ceremonies, such as taking notice of marriages, issuing certificates and being present in cases where there is no authorised person. I am grateful to my noble friend Lord Carlile of Berriew for describing what can happen when making an appointment, and later with the ceremony. Some would say that the example given by my noble friend Lady Barker would be unlikely, because by that stage people would know what was about to happen. Nevertheless, it could still be the case that someone would turn up for their initial appointment and suddenly find themselves met by someone who refuses to see them and take their details. The personal hurt that that could cause should not be underestimated.

[Lord Elton]

My Lords, the protection extends to conducting the marriage, not preparing for it.

[Lord Wallace of Tankerness]

My Lords, following that logic, surely a conscientious objection must be as much to facilitating a marriage as performing it—otherwise, it puts into question what the nature of the conscientious objection is.

As public officials, marriage registrars must perform their duties for all members of the public, without discrimination on grounds of sexual orientation or any other matter. They should not be able to pick and choose which members of the public they provide their services to. Amendment 16 refers to,

“consent to the taking place of, a relevant marriage ceremony to which he has a conscientious objection … The conscientious objection must be based on a sincerely held religious or other belief”.

The noble Lord, Lord Alli, and my noble friend Lord Carlile of Berriew picked up on the point that that could include the marriage of divorcees. No doubt the right reverend Prelate will correct me if I am wrong, but certainly until relatively recently it was the position of the Church of England that it would not marry divorcees. Therefore, in many cases divorcees who could not marry had little choice but to go to a registrar. If the registrar adopted the same religious view as that taken by the Church of England and sought exemption through conscientious objection, it would beg the question of how the couple could ever find someone to marry them unless perhaps they found a non-Church of England church that would be willing to do so. The door is open to that kind of religious and conscientious objection. It is not a reasonable position that a public official should refuse to provide a service to a member of the public.

The right reverent Prelate the Bishop of Hereford and my noble friend Lady Berridge referred to the fact that the JCHR had reported on this. I rather share the view of the noble Baroness, Lady Thornton, that the position is slightly mixed. This is not a criticism, because clearly the committee heard difficult, competing evidence, and no doubt competing views such as those heard by the Committee this evening. Of course, the Government will give a considered response to the JCHR. It is a very tight timescale, but we would aim to do so before Report. I hope we can do that.

The Government are confident that the Equality Act 2010 provides the right balance between protecting the right of freedom of expression and the right to manifest one’s belief, alongside the need to protect the rights of others. As was said on a number of occasions in this debate, the European Court of Human Rights, in the Ladele case, supported this view. I will not go over all the details; they were well rehearsed. The United Kingdom refuted the case put by Ms Ladele when she went to the European Court of Human Rights. We argued that our law strikes the right balance between an employee’s right to express their religious beliefs at work and the rights of people not to be discriminated against because of sexual orientation. We believed our law was compatible with the convention and that the Court of Appeal made the right decision under domestic law and the convention, given the particular circumstances of the case. As has been noted, the Court of Human Rights generally upheld that view and noted that the court generally allows national authorities a wide margin of appreciation when it comes to striking a balance between competing convention rights. It held that the national authorities in this case, the local authority employer and the domestic courts, did not exceed that margin of appreciation available to them.

Succession to the Crown Bill

Debate between Lord Elton and Lord Wallace of Tankerness

Wednesday 13th March 2013 Lords Chamber

[Lord Elton]

Before my noble and learned friend sits down, perhaps he could clear up one thing in my mind. I certainly support my noble friend but if he were to withdraw at a later stage, I would be minded to continue unless I was satisfied.

My noble and learned friend has again rested importance on the definition within the HFEA 2008, but he preceded that by saying that the real defence was in the interpretation of “heirs of the body” and “natural-born”. Therefore, that is not relevant, if that is the full defence. If the lesser must include the greater, the Crown is the fount of honour and if you imagine it as just that—a spring of water—it can be pure until he upsets his picnic basket into it. It seems to me that the picnic basket defence is in what he proposes but the actual spring water is not protected.

[Lord Wallace of Tankerness]

Without a lot of thought, I am not sure that I want to embrace that particular analogy. The point I was seeking to make was that if the transmission of a title of the peerage is not affected by the developments that appear in the legislation, a fortiori nor should the succession to the Crown be affected. It is obviously far more significant—I am searching for the right adjective—and of far greater importance than the transmission of a title. Therefore, our belief is that that would not be affected and that in this case the lesser must include the greater.

I have also indicated that with regard to the heirs of the body, it is the position, which my noble friend Lord True accepted, that only a natural-born child of a husband and wife can succeed to the Throne. That is quite clear as a matter of common law. He then went on, as my noble friend has done, to raise more recent statutes. However, as I have indicated, my noble friend Lord Jopling raised an important point about where the child is the natural child of the mother and father. I want to reflect on that; it is only proper to do so. I shall certainly advise and write to my noble friend, and copy the letter to others who have taken part in this debate. On that basis, I invite my noble friends not to press their amendments.

--- Later in debate ---

[Lord Elton]

My noble friend has moved on from the point that I wanted to pick up on. He is treating the necessity of getting permission from the Crown to marry as if it were a great disincentive to marry and a great burden for these people to suffer, but they are not going to be forbidden to marry; they are only going to be told that they are not in line for succession to the Crown, and I should think a great relief to many of them that would be.

[Lord Wallace of Tankerness]

I hear what my noble friend says, and he makes that point well. It is, indeed, as I and the noble Baroness indicated, an additional requirement and impinges on the lives of individuals. The Bill is trying to seek that balance. It is not a question to which there is one, and only one, right answer. As the noble Lord, Lord Deben, said, it is a matter of judgment. While my right honourable friend the Deputy Prime Minister would no doubt love to take credit for everything that has been put into the Bill—he has ministerial responsibility for constitutional matters and this legislation—I pay tribute to my right honourable friend the Prime Minister who, like his predecessor, sought to get agreement with the other realms and was party to the announcement of the agreement that was made at Perth. The noble Baroness, Lady Hayter, rightly says that this was not part of the Perth agreement, but it was flagged up at the Heads of Government conference in Perth that we would be seeking changes to the Royal Marriages Act 1772. That was followed by Prime Ministerial correspondence, on which agreement was reached on the number six.

My noble friend Lord Lang referred to a letter to the noble Lord, Lord Trefgarne, in which I said that procedural matters would not require the consent of all the other realms. Indeed, there are procedural issues in Clause 3 as to how, for example, the consent has been obtained and signified. However, substantive matters on the succession to the Crown—to which I referred in the debate on the previous amendment and which get into the spirit of the preamble to the Statute of Westminster Act 1931—would require the agreement of the other realms. This impinges on the succession to the Crown. Indeed, the New Zealand legislation, of which I have a copy somewhere here, specifically makes provision for six with regard to those who would require the consent of the sovereign to marry.

The noble and learned Baroness, Lady Butler-Sloss, asked about civil partnerships. Civil partnerships do not require monarchical consent, as a civil partner does not necessarily assume the public role expected of a spouse as sovereign. She also raised same-sex couples, which came up in an earlier amendment moved by my noble friend Lord True. The Government believe that marriage as stated in Clause 3 of the Succession to the Crown Bill means marriage as defined by the jurisdiction in which it takes place. If we take this away from the issue of same sex—to take away from, as my noble friend Lord True said in moving his amendment, the controversy that might surround that—different jurisdictions very often have different rules on marriage. As a simple example, the age for marriage without parental consent was different from that in England. If it was a legitimate marriage in the law of Scotland, it would be recognised as a marriage, albeit that it would not necessarily have been a legal marriage under the law of England.

Succession to the Crown Bill

Debate between Lord Elton and Lord Wallace of Tankerness

Thursday 28th February 2013 Lords Chamber

[Lord Elton]

My Lords, I want to add a note of concern to that of my noble friend Lord Trefgarne by referring to the report on the Succession to the Crown Bill produced by the Constitution Committee, which holds the strong view that there is no need for haste.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, the effect of my noble friend’s amendment would be, as he has indicated, to delay the removal of the male gender bias in the line of succession for almost 50 years. Perhaps I may pick up the point made by my noble friend Lord Elton and his reference to the report of your Lordships’ Constitution Committee. It is fair to say that since that committee reported, there has not been any undue haste. The time made available for debate on this Bill in the other place was not even fully used up, and in your Lordships’ House we are proceeding in the normal fashion with the appropriate elapses of time between the different stages. There is certainly no intention to cut short the debate in this House.

My noble friend has asked why we are doing this now and at this speed. The position is that the Prime Ministers of 16 Commonwealth nations, of which Her Majesty is the head of state, agreed during the Commonwealth Heads of Government Conference in Perth in October 2011—that is why the date has been put into the Bill—to work together towards a common approach to amending the rules on the succession to their respective Crowns. It is fair to say that that was the product of considerable work and discussion over many years. Indeed, discussions were ongoing during the previous Administration in this country. All these countries wish to see change in two areas, the first of which is covered by this clause, and that is to end the system of male preference primogeniture, under which a younger son can displace an elder daughter in the line of succession. It is right and appropriate that this clause will remove a piece of long-standing discrimination against women that may well have been acceptable in earlier centuries, to which my noble friend referred. This provision will modernise and affirm the place of our constitutional monarchy.

At Second Reading the noble Lord, Lord Janvrin, said that:

“If in the future within the line of succession a younger son were to take precedence over an older daughter, it would seem to be at least controversial and at worst discriminatory, out of date and out of touch. To make this change now, therefore, strengthens the monarchy because it avoids any risk of such deep controversy”.—[Official Report, 14/2/13; col. 802.]

That is why this is an appropriate time to make the change, because it will be done without affecting anyone who currently would have a prior claim on the throne. If, however, we wait for a situation where there may be a daughter and then a younger brother, and we tried to make the change then, it is inevitable that that would be more controversial.

Perhaps it is also worth reflecting that if the Duke and Duchess of Cambridge have as their first born a son, have only sons or, indeed, have only daughters, the effect of this clause may not bite until the next generation, possibly after 2060. However, as the noble Lord, Lord Janvrin, made clear, it would be controversial and possibly even destabilising to the monarchy to have this kind of debate at that point. We look forward to the birth of the Duke and Duchess of Cambridge’s first child knowing that we can celebrate, when this Bill is passed, that whether the baby is a boy or a girl they will have an equal claim to the Throne. I therefore invite my noble friend to withdraw his amendment.

Succession to the Crown Bill

Debate between Lord Elton and Lord Wallace of Tankerness

Thursday 28th February 2013 Lords Chamber

[Lord Elton]

My Lords, I observe that this matter is outwith the terms of the Long Title. However, the Title has been postponed and it is possible to amend it, if necessary.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

I thank my noble friend Lord True for the amendment and for the sensitive and thoughtful way in which he moved it and presented his concerns. Indeed, I seek to reassure him that the amendment is unnecessary.

Subsections (1) and (2) of the proposed new clause state the current position in respect of heirs of the body and adoption or artificial reproduction. I recognise that my noble friend indicated that he was not making any claims as to the drafting of the amendment but he said something that I have previously said—it is important that the succession is removed from controversy and there should be certainty. Subsection (3) could be an opportunity for some controversy if a case had to come before both Houses of Parliament. However, the spirit in which my noble friend moved the amendment was to try to seek some clarity on this matter.

The laws governing succession to the Crown that require that the descendant be the natural-born child of a husband and wife have been enshrined in our constitution for generations. Children who have been adopted may not succeed to the Throne, whether their new parents are of opposite sexes or the same sex. As my noble friend said, it is immaterial; indeed, even without the Bill, the issues he raised are pertinent. I repeat that children who have been adopted may not succeed to the Throne, irrespective of whether the parents are of opposite sexes or the same sex.

It was never our intention to codify all aspects of succession to the Throne in the Bill. Rather, as the noble Baroness, Lady Hayter, indicated, the agreement reached among the realms was quite specifically limited to removing the male bias and ending a specific discrimination against Roman Catholics, and it is not appropriate that we go beyond what was expressly agreed.

Although the Adoption Act 1976 and the Family Law Reform Act 1987 refer only to the succession of titles being left unchanged by their reforms, the Lord Chancellor stated at Second Reading of the Bill that became the 1987 Act that there was no intention to alter the rules on the descent of the Crown. It is also worth noting, as my noble friend observed, that the Human Fertilisation and Embryology Act 2008 states that nothing in the Act,

“affects succession to any dignity or title”,

or,

“renders any person capable of succeeding to or transmitting a right to succeed to any such dignity or title”.

The Bill will maintain the position under the Adoption Act and the Human Fertilisation and Embryology Act 2008 referred to above. It will not change the way the Crown, or titles or dignities, descend. We also consider it to be unnecessary to define marriage for the purposes of this proposed new clause as set out in subsection (1). Only a natural-born child of a husband and wife can succeed to the Throne. That is quite clear. I have tried to keep my response brief and concise, and I hope that it provides the reassurance that my noble friend seeks and has properly raised. I invite my noble friend to withdraw the amendment.

[Lord Elton]

My Lords, I hope that my noble and learned friend on the Front Bench will take time to consider this matter between now and Report, and that my noble friend will also occupy that time. The answer that my noble and learned friend has given does not entirely cover everything because becoming Queen or King is rather more than receiving a dignity or title. The term used in the Bill is “possessing” the Crown, which is different from inheriting a title, and that is surely what we are concerned about.

[Lord Wallace of Tankerness]

We will certainly reflect on this matter and I can assure my noble friend that considerable consideration has been given to it. However, I take the points that he and my noble friend Lord True made and will give further consideration to them. Nevertheless, I hope that I clearly indicated our view with regard to an “heir of the body”.

[Lord Elton]

I accept that that is the current position. I hope that we shall be reassured if it remains the same on Report.

--- Later in debate ---

[Lord Wallace of Tankerness]

That is certainly my understanding. That is why we have the implementation clause. Even if we pass this the intention is that the provisions will not commence until all realms have done what is necessary in each of their territories.

[Lord Elton]

My Lords, as this is the realm in which the Queen is perceived as being principally the head, Supreme Governor, monarch and the rest of it, presumably the legislation in the other realms and territories is, in a sense, consequential. Therefore I was a little surprised to hear that they are already putting things on their statute books while we have not finalised what we are putting on our statute book. The question I again ask is: what is the procedure? The timing, I gather, is terminus ante quem non; there is no time by which we have to get this done, so the pressure is off. The next question is: what do we use that time for and how does it impact on the other members of the Commonwealth and the territories? If we were, for instance, to adopt my noble friend Lord Lang’s eminently sensible suggestions—or, indeed, the less sensible, in my view, suggestions of my noble friend Lord Northbrook—would that require those countries which already had something on the statute book to adjust it? Or are they simply saying, “We hereby agree with whatever the United Kingdom Parliament finalises”? It is difficult to know how all this is negotiated and how that affects our dealings in the Chamber.

[Lord Wallace of Tankerness]

My Lords, I will try to help. When we come to later amendments, if there is any further information I can give or anything I say needs to be corrected, I will do so. Some of the realms take the view that under their own procedures they require legislation. It is not for this Parliament to determine what happens in other countries. At Second Reading I reported that a Bill had already passed through the lower House in Canada and had been presented in the upper Chamber. As I said, a Bill was presented to the New Zealand Parliament last week.

Other realms take the lead from this Parliament and have indicated that they do not believe that they will need separate legislation. Their arrangements are such that their head of state will be the person who is the head of state of the United Kingdom. The important point in all of this is that we are passing legislation which will be used in some countries, but it has been done on the basis of an agreement that has been reached.

If the Bill were changed with substantive effect, the other realms would need to adjust their legislation where they are legislating and make sure that the same changes are given effect. That would obviously require the agreement reached between the 16 realms.

As I indicated earlier, the amendment that was moved in the other place was circulated and the other realms were given the opportunity to comment before it was brought forward. They indicated that they were fine. I do not think that it was a substantive amendment, but it was nevertheless one on which we sought to ensure that there was proper consultation and information given and an opportunity to comment. Clearly, if there were a change with substantive effect, that would require further agreement.

[Lord Elton]

Is it a matter of interest in Canada, for instance, whether the number six, 12 or four appears in the Bill at the point we were looking at just now? If so, what will the Canadians do about it?

[Lord Wallace of Tankerness]

My Lords, I do not think that I have seen the Canadian legislation but, in as much as it is giving effect to the same agreement, I would anticipate that the number six is there. If there were to be change, as I indicated in my previous contribution, that would have to be agreed with all the other realms. I will stand corrected, and in response to my noble friend Lord Trefgarne’s subsequent amendment I can clarify that. However, my understanding is that all the realms would have to agree if there was a substantive change.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Elton and Lord Wallace of Tankerness

Wednesday 19th January 2011 Lords Chamber

[Lord Elton]

Before the Minister replies, he said only that his honourable friend would read this debate. Will he intervene with his honourable friend in person?

[Lord Wallace of Tankerness]

Indeed. I said that because I know for a fact that he does read these debates. I will certainly ensure that, before I have any meeting with my noble friend, my honourable friend, Mr Mark Harper, has read the terms of this debate and that would then inform the discussion that I am offering to have.