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

Debate between Lord Falconer of Thoroton and Lord Bishop of Oxford

Thursday 15th December 2011 Lords Chamber

[Lord Falconer of Thoroton]

My unequivocal view, which I have been trying to express, though rather badly, is that the provision that the noble Lord, Lord Alli, and I have quoted has the effect of making sure that no discrimination proceedings can be brought under the Equality Act or under the convention in English law as a result of a church saying no to civil partnerships being solemnised on their premises. That is the problem and I am absolutely clear that there is no possibility of discrimination legislation, based on the Equality Act, as a result of the drafting of Section 202.

There is also a broader point of principle. We should not, as a House, be knocked off doing what we decided to do by the opinions of two Queen’s Counsels. We should be clear that we achieved our intention. We used simple language. There is no doubt about what it means and I have absolutely no doubt that the courts will give it effect. I have reason to believe that it might be said that it would be quite easy to amend the provisions, using a provision of the Civil Partnerships Act under Section 259. This would take time, but it would be quite easy to do. It is, however, utterly unnecessary because we expressed our views utterly clearly and the courts will give effect to them.

[The Lord Bishop of Oxford]

My Lords, I, too, am most grateful to the noble and learned Lord, Lord Falconer, for an extraordinarily erudite narrative. I am also grateful to the noble Baroness for initiating the debate because it gives us the opportunity to look at this very important and sensitive issue of the regulations. I have been much exercised, as I am sure many of you have, by the conflicting opinions I have received. I very much wish the issue were clear-cut, and perhaps it really is. However, for reasons I will explain, I will not be able to join the noble Baroness in the Division Lobbies if she pushes it to a vote.

I say that with real regret, because I entirely share the noble Baroness’s passionate concern for safeguarding religious liberty which is one of the tap-roots for all liberty. Those who hold to the traditional ethical teaching on sexual morality of the Christian churches and many other faiths can too easily be accused of being homophobes. The implication is that, if persuasion does not work, we may have to resort to coercion, which would be a profoundly wrong approach.

The question before us today is whether these regulations do in fact interfere with religious freedom. Having considered the issues carefully and tried my best to understand the conflicting legal opinions of the distinguished lawyers with whom I have also been in touch, I am not persuaded that they do give us that danger. There could, in principle, be two possible arguments for opposing the regulations. The first would be to register opposition to the principle of allowing civil partnerships to be registered in places of worship. The second would be because, although the principle is accepted, these particular regulations were deficient.

On the first point, although it is history, it can be argued that the change in the law agreed by Parliament last year does have its curious features. To say, as the law now does, that civil partnerships can be registered in places of worship but without any religious element taking place in the registration is, on the face of it, quite odd. Moreover, denominations wishing to offer services of blessing following civil registration can already invite people to come to the church or synagogue after the registration and have that element there. Parliament rehearsed these arguments last year and was persuaded that, if people want to register their civil partnership and have a religious ceremony at the same time and in the same location, then legislation should not get in the way of their doing so. That was essentially for religious liberty reasons. The Quakers, the liberal Jews, the Unitarians and anyone else who wanted to host civil partnership registrations should be free to do so, but not forced to do so. I do not, therefore, see a sufficient case for opposing these regulations on the first of those two possible grounds.

For me and, I am sure, for all of us here, everything turns on the second issue which is whether these regulations and, indeed, the Equality Act to which they give effect, are defective. By defective, I mean whether what is meant to be an option would, in fact, become a duty. Will churches and chapels be at risk of litigation? We non-lawyers are in the hands of the experts here. I can muster only a 40 year-old Oxford law degree which is quite inadequate for the task. However, the advice of the legal office of the General Synod is clear that it will be perfectly lawful for churches, chapels and other places of worship to decline to register their places of worship as premises for civil partnerships. That advice has been unequivocally endorsed by the standing counsel to the Synod, Sir Anthony Hammond QC, who was previously Her Majesty’s Procurator General and Treasury Solicitor and Queen’s Proctor. It is also the view of the Government’s lawyers and other senior lawyers not unknown in these erudite precincts, one of whom we have just heard from.

In addition, for the Church of England and certain other denominations, there would have to be a policy decision at the national level from the relevant body—in our case the General Synod—before any church could seek to register. I know that the Christian Institute has commissioned legal opinion from the two separate QCs we have heard about, who take a different view to the lawyers I have mentioned. This is disturbing, and I look to the Minister in responding to this debate to read very carefully into the record his own understanding of the position. In particular, I would like to hear him assure the House that, in the wholly unexpected event of the courts taking a different view from the massed ranks of government lawyers, church lawyers and other lawyers to whom I have referred, we would have either primary or secondary legislation to sort the problem out. I am sure that assurance can be given.

I have the highest regard for the professionalism and integrity of the lawyers of the General Synod, who also advise the House of Bishops. In the light of their advice, it is not clear that there is anything in these regulations or last year’s legislation which needs to be changed. They appear to me to preserve the ability of the Church of England and all other churches and faiths to decide their policy on these matters in the light of their own beliefs and teaching. I regret coming to a different conclusion from the noble Baroness; I would like to have stood with her in support of religious liberty, which is essential to a civilised society, but on the balance of arguments I believe the safeguards are already in place.

Let me say one final word before I conclude. It is hardly a secret that the Church of England along with many other religious traditions continues to wrestle with the underlying ethical issues. We are likely to go on doing so for a considerable time. I have taken part in many of those internal debates and they are at their best when characterised by a spirit of restraint, mutual respect and generosity.

Given the litigious nature of our society, it is only right that we should look at regulations on a sensitive subject such as this with a good deal of care. I am grateful that so many noble Lords and noble Baronesses are here to do that. Nevertheless, I would urge from these Benches that this debate is characterised by that same restraint, mutual respect and generosity that I just mentioned. Those are the qualities by which religious, and indeed all, liberties are best nourished and protected.