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

Debate between Lord Falconer of Thoroton and Lord Tebbit

Thursday 15th December 2011 Lords Chamber

[Lord Tebbit]

The noble and learned Lord has given a splendid exposition of the law of the United Kingdom. Can he assure us that there is no vestige of a chance that European law, either through Brussels law or the law that falls from the European convention, could override the British courts? After all, it, not this House, is now the ultimate authority on our legal affairs.

[Lord Falconer of Thoroton]

In general terms I can give no assurance that the European courts cannot override the British courts on this. Indeed, they can override this Parliament. However, with respect to the noble Lord, Lord Tebbit, that is not the issue that this House is addressing today. The House is addressing a simple issue of English law and it has been accurately put by the noble Baroness, Lady O’Cathain: does the legislation that we passed give effect to the intention of this House? That is a question of interpretation of English law. I have no doubt that it gives effect to it because it is so clear. I have read both opinions very carefully and my view is not shifted by them.

I make two further points. First, Professor Hill QC and the noble Baroness, Lady O’Cathain, who accurately reflected this argument, said that there was some risk that local authorities would try to punish churches that did not agree to host civil partnerships by saying that they could not have the authority to conduct marriages. I have absolutely no doubt that there is no foundation for that in even the existing law. Section 41 of the Marriages Act 1949 lays down a process whereby there is no discretion in the local registrar, who is a separate person from the local authority. The person who decides whether a church is entitled to solemnise a marriage is not the local authority but the Registrar-General. He has no discretion in that matter once it has been resolved in terms of the statutory requirements. The legal foundation of that does not exist.

The second point made by the learned professor is that the regulations—not the Act—say that an application can be made by a trustee or a proprietor of the church. He gives rise to the possibility of doctrinal debates in churches about this and one trustee applying when the congregation does not want it and the minister or the priest perhaps does not want it. That is a policy consideration that the state has been concerned about and has made specific provision for. The Government say in relation to their response:

“Following concerns about ensuring that the local congregation is made aware of an application in respect of the premises they use for worship, we will make clear in guidance and on the application form that best practice is for the proprietors or trustees of the premises to make their congregation aware … In addition, each application will be required to be advertised by a local authority and is subject to a period of 21 days’ public consultation, providing further safeguards against applications being made without the knowledge of the relevant congregation”.

I do not think there is any statute in the world that would be able to provide for disagreements within a church about doctrinal issues. What the state has done—and I commend the state for it—is to follow the approach taken in the Marriage Act in relation to the solemnisation of marriage, and this has caused no trouble over hundreds and hundreds of years.

My legal opinion is absolutely clear. Although I completely respect the sincerity of the noble Baroness and completely accept the bona fides of the QCs, there is nothing in what they say and you can be confident that, even though I can give no guarantees that nobody will bring litigation—there is bound to be somebody who will—it only requires one case to deal with it.