Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011

Debate between Lord Falconer of Thoroton and Baroness Trumpington

Thursday 15th December 2011 Lords Chamber

[Lord Falconer of Thoroton]

My Lords, I speak as a lawyer today. I concede my obligation to the House to set out my genuine view, because this is a legal issue and because I was formerly the Lord Chancellor. The noble Baroness, Lady O’Cathain, and the noble Lord, Lord Alli, agree the basis upon which Parliament—not only this House—passed the amendment to the Civil Partnership Act which abolished the prohibition on civil partnerships being registered in places of religious worship. My noble friend Lord Alli said at the time that there was no disagreement about this.

From the outset I want to make very clear that the amendment does not place any obligation on any religious organisations to host civil partnerships in their buildings. We made that clear by including in the amendment the words:

“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host Civil Partnerships if they do not wish to do so”.

There is no doubt that that was the basis on which the provision was passed. If we have not given effect to that provision, we should not agree to these regulations. The only issue today is therefore whether as a matter of law we have given effect to it. It is for the House to make a decision about this. It is always possible to find a lawyer who says that something is arguable. It is for us to go through the provisions today and form a view about whether or not, contrary to our intention and to that of the House of Commons, we have somehow failed to achieve it.

I will very quickly go through the basic provisions so that we arrive at a clear answer. Section 2 of the Civil Partnership Act makes the moment at which a civil partnership occurs the moment at which the two partners sign the civil partnership document. Section 6 of the Act—this is, before the amendment—says that that signing can take place either at a registry office or at approved premises. It sets out provisions for premises to be approved by somebody called the registration authority. The registration authority is the local authority. The Civil Partnership Act gives the local authority discretion over whether or not they register premises. Section 6 of the Act as originally passed says that civil partnerships cannot be registered at religious premises. Section 2(5) says—and this provision remains—that there should be no religious element in relation to any registration of a civil partnership.

The amendment of the noble Lord, Lord Alli, which was supported by Parliament, did two things. First, it removed the prohibition on religious premises being used for civil partnerships. It retained the approval process, so that local authorities still approve whether premises—including religious premises—can be used for civil partnerships. Secondly, it added to the Civil Partnership Act words to the effect that for the avoidance of doubt, this does not compel any religious organisation to host a civil partnership ceremony if they do not want to.

That is the legal framework that we now have to look at. On the basis of that legal framework, my initial conclusion is that Parliament has made its intention absolutely clear: Parliament does not want to compel anybody to host registration of civil partnerships unless they want to.

I wondered what could conceivably be the argument that we have failed to express our intention clearly. I have read the two opinions that have been provided on this. I will do my best to summarise them fairly and set out why they are plainly wrong, although not lacking in bona fides. The first argument, which was advanced by Professor Mark Hill QC in his opinion dated 8 November, is that because the regulations say that—for the avoidance of doubt—the law does not compel anybody to host a civil partnership if they do not want to, the regulations saying it would not, alone, be enough. I completely agree with that. A regulation saying that hosting is not required would have no effect at all if the position was that the primary Act of Parliament did not get rid of the risk of any discriminatory legislation. However, the primary Act of Parliament does contain the prohibition, so it seems clear that Professor Hill is wrong about that.

I looked through Professor Hill’s opinion to find out what he said about the main provision in the Act, which appeared to be the critical provision. He said that Section 202, in referring to an Act, refers to the Civil Partnership Act and not to the Equality Act. I found that wholly unconvincing because the risk which the noble Baroness, Lady O’Cathain, and the QCs identify is that there are provisions in the Equality Act, except for the purpose of this argument, that might be said to create a risk of some sort of action arising from the fact that you perform civil partnerships but not marriages, or the other way round. It seems to me beyond argument that the intention of Parliament must have been to get rid of that risk by putting in the very same Act the phrase,

“For the avoidance of doubt, nothing in this Act”,

gives rise to the risk of any compulsion. For Professor Hill’s opinion to be correct, you have to assume that this House and the Commons were unaware of the risk that the Equality Act could give rise to litigation when they put into the very same Act a statement that said that allowing churches to host civil partnerships does not lead to any church being compelled to host one. I cannot think of a judge who would give effect to such a nonsensical argument.

8 November was the date on which the advice of Professor Mark Hill was obtained. His advice came under some legal attack. Noble Lords will know that the legal advisers of the Roman Catholic Church, the Church of England, the Home Office and the Equality Commission have all said that there is no legal risk. Reinforcement was obtained from Mr Aidan O’Neill QC. I am very grateful to the noble Baroness, Lady O’Cathain, for providing a copy of his advice. He gives a lot of ground in relation to it, recognising the difficulty that exists.

[Baroness Trumpington]

Could the noble and learned Lord please stop turning away?

Parliamentary Voting System and Constituencies Bill

Debate between Lord Falconer of Thoroton and Baroness Trumpington

Wednesday 16th February 2011 Lords Chamber

[Baroness Trumpington]

Many of us, I believe, voted for the Government out of loyalty to the Government, and not for the matter on which we were voting in the last round. I have listened to all the arguments today and I am thoroughly convinced by the amendment of the noble Lord, Lord Rooker, and by the speakers who have spoken. I fully intend, for the first time, to vote against my Government.

[Lord Falconer of Thoroton]

My Lords, we have had an absolutely scintillating debate on this issue. The issue for the House today is whether we should ask the other place to think again. I believe that that is an interaction of two issues: first, the extent to which we think it has been given adequate consideration already; and secondly, the importance of the issue. As for whether it has been given adequate consideration already, this proposal first emerged as a matter of debate a week ago last Monday, when the noble Lord moved his amendment and it was passed. It went to the other place yesterday. It was one of 104 amendments, of which more than 95 were not debated at all. This amendment was debated for 46 minutes. Of those 46 minutes, more than 30 were taken up by Mr Mark Harper speaking on the issue. I say in parenthesis that there may be times when Mr Mark Harper should emulate his near namesake Harpo Marx rather than Mr Mark Harper himself.

So Mr Mark Harper discussed it for more than 30 minutes, but in the course of his statements he misstated the effect of the amendment on a number of occasions. In relation to a vote in favour with a turnout of under 40 per cent, he said:

“So, even if the public had expressed a clear preference, it would not count”.—[Official Report, Commons, 15/2/11; col. 899.]

That was wrong. The same mistake was made this morning in the Times, which stated in its leader:

“In an attempt to derail the referendum on the alternative vote … system, Labour peers, led by Lord Rooker … and with the connivance of some Conservatives, have defeated the Government on an amendment stipulating that the result of the referendum should only be permitted if at least 40 per cent of the electorate turn out to vote”.

Again, that is wrong.

The position is that if less than 40 per cent of those entitled to turn out do so, it becomes an advisory referendum in exactly the same way. That deals with the critical issue: if there is a derisory turnout in favour of the alternative vote system, is it right that this country should then change its voting system, a voting system for which there would not be a majority in either House of Parliament? The legitimacy of a change of that importance must depend on getting more support for it than a normal change in the law, rather than less.

In my respectful submission to this House, it is pretty plain that this issue has not been properly considered either publicly or in the other place. It is pretty plain that it is a very important issue. It is pretty plain—and I pray in aid the very last speech we heard —that the argument in this House has been comprehensively won by those who support my noble friend Lord Rooker. In those circumstances, we on this side of the House will vote in favour of my noble friend's amendment.