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

Lord Pannick Excerpts

Thursday 15th December 2011 Lords Chamber

[Lord Laming]

My Lords, it is a great pleasure to follow the right reverend Prelate and we should be extremely grateful for the insight and human quality that he has brought to the House. I think that the whole House would wish to dissociate itself from any unpleasant comments and criticism that have been directed at the noble Baroness who has moved this Prayer to Annul. She is rightly held in high regard in this House and no one should doubt the sincerity of her position.

The debate has moved on considerably since I prepared my notes and I shall therefore be brief and summarise my views. I am not a lawyer and I speak in a purely personal capacity. I approach this matter from a more social point of view. Successive Governments deserve great credit for the sensitivity and understanding that they have demonstrated in handling the registration of civil partnerships under the 2004 Act and the way in which they have demonstrated equal sensitivity under the Equality Act 2010. As a result of these pieces of legislation and the regulations that have been provided, it seems to me, from a lay point of view, that the churches have all the necessary freedoms and safeguards that they may wish to have. This is well illustrated by the fact that the churches will have to make their own decisions to opt in to these arrangements. It is certain that there is nothing in this legislation that in any way promotes a particular lifestyle.

I am a member of the Church of England and I have the honour to represent your Lordships on the Ecclesiastical Committee. I am a great admirer of all faiths and therefore find it very difficult to appear to be critical. However, I do so with kindness because I would not be being faithful to my beliefs if I failed to say that it has saddened me, and no doubt many others, that the churches have not been in the vanguard of promoting equality in our society. The way in which the Government have tackled this sensitive area is very worthy and credible and I very much hope that in approaching this matter the churches will follow that example.

We Anglicans like to say that we are part of a broad church. That is true theologically, but it may not be necessarily true socially. I hope that in approaching these matters we will not only be gracious to our fellow human beings but generous and understanding. I hope that this Prayer to Annul will be rejected by the House.

[Lord Pannick]

My Lords—

--- Later in debate ---

[Lord Pannick]

My Lords, I very much respect the principled views of the noble Baroness, Lady O'Cathain, but this is not a matter of conscience, it is a matter of legal interpretation. As the noble and learned Lord, Lord Mackay of Clashfern, said, the question is whether there is any real doubt as to what a court would say on the matter. Your Lordships may have found it rather striking that the noble and learned Lord did not give the House any opinion at all as to the answer to this question; he confined himself to saying that views are expressed by QCs on this matter. In my experience of this House, it is rare for the noble and learned Lord not to give the House his very welcome opinion on issues, and I am sorry that he gave the House no opinion on the credence that could be attached to the opinions that have been expressed.

My view, for what it is worth, as a barrister practising in the area of human rights law and administrative law, is that there is no possibility whatever of any court accepting the arguments that have been advanced in those opinions. That is for two reasons. First, the court would focus on Section 202. It would recognise that Parliament has expressed in the clearest possible terms that religious bodies have a power to conduct civil partnership ceremonies but no duty whatever to do so. The regulations faithfully implement what Parliament has decided

The noble Baroness, Lady O'Cathain, expressed a concern that had been expressed by her advisers that that is not good enough because it is the Equality Act that, as she put it, poses the danger. The noble and learned Lord, Lord Mackay, made the same point. My answer to that concern is that it is the very Equality Act that expressly addressed civil partnerships and allowed civil partnerships to be conducted on religious premises for the first time but made it absolutely clear that religious bodies have no duty to conduct such ceremonies.

[Lord Mackay of Clashfern]

The noble Lord must accept that the operative effect of the provision in the Equality Act is to make an amendment to the Civil Partnership Act 2004, and nothing more.

[Lord Pannick]

I entirely accept that, but it is the Equality Act that addressed this very question of the circumstances in which religious bodies may, but have no obligation to, conduct civil partnership ceremonies. It therefore seems to me highly unlikely that any court will say that that very legislation, the Equality Act, nevertheless imposes indirectly some duty on religious bodies to do precisely what Section 202 of the same Act states that they do not need to do.

Secondly, if there were any ambiguity in the Equality Act—there is none, but if there were—a court would interpret the Equality Act by reference to the right under the European Convention on Human Rights and by reference to Section 13 of the Human Rights Act, which this Parliament enacted, which states that on any question that might affect the exercise by a religious organisation of the right to freedom of religion, the court must have particular regard to freedom of religion. It is plain beyond argument that the court would therefore say that a religious body has no duty to do what would conflict with the religious rights of the church or other religious body concerned.

Earlier in this debate, the noble Lord, Lord Tebbit, asked for assurances that the European Court would not interfere in this matter. I would be extremely surprised if the European courts would trespass on a fundamental question of religious freedom, but if they did, nothing that we decide today would affect that—it is simply irrelevant to this debate and therefore cannot be used either to support or to argue against the Prayer that the noble Baroness presents to the House.

[Lord Tebbit]

The point is that we are opening the way for the court to do so. The noble Lord said that he would be very surprised if it did. Has he never been surprised at the judgment of a court?

[Lord Pannick]

I submit that this Parliament must proceed by what we recognise is the overwhelming probability. We cannot legislate on the basis of something that would be wholly contrary to what Parliament has decided as recently as 2010. I say with great respect to the noble Lord that the attitude of the European Court is completely irrelevant to this debate.

I have to tell noble Lords that if I were asked to advise a client on the prospects of success for someone who wished to compel a religious body to hold a civil partnership ceremony against its will, my advice—and, I am sure, the advice of every other competent lawyer practising in this field—would be that any such application would be completely hopeless and misguided. Therefore, I hope that the noble Baroness will withdraw her Prayer for annulment.

[Lord Mackay of Clashfern]

The noble Lord took great comfort from the Human Rights Act, which of course dates back some time before the 2004 and 2010 Acts came into being, yet the noble Lord, Lord Alli, and those with him, thought that it was wise to put into the 2004 Act an avoidance of doubt provision. Therefore, they were not prepared to trust the Human Rights Act provision alone to avoid any doubt that might arise. Such a provision does not suggest that there would be a legitimate attack; it simply suggests that doubt is to be put at rest completely, and that is what I should like to see here.

[Lord Pannick]

My answer to the noble and learned Lord is that in 2010, when the noble Lord, Lord Alli, was seeking to persuade the House to create for the first time, contrary to what had been decided in 2004, a power for religious bodies to conduct civil partnership ceremonies, it was perfectly understandable that it should be made clear that this was a power but not a duty. We had that debate and resolved the matter. There is no ambiguity and we really do not need to revisit it.

[Baroness Deech]

Given the protection for religious freedom that the noble Lord, Lord Pannick, has just described, why did the Equality Act and the Human Rights Act not permit a Jewish school to continue its religious freedom in maintaining the definition of Judaism that had prevailed in the Jewish religion for thousands of years?

[Lord Pannick]

As the noble Baroness knows very well, that case raised completely different issues. No specific provision in the Equality Act addressed that question. I have to declare an interest. As the noble Baroness well knows, I was the counsel who acted for the JFS, the Jewish Free School, in that litigation, and the problem was that there was no specific provision. By contrast, the Equality Act addresses this very question and it does so in the clearest possible terms.

[Baroness Richardson of Calow]

My Lords—