Marriage (Same Sex Couples) Bill

Baroness Barker Excerpts

Monday 17th June 2013 Lords Chamber

[Lord Dear]

I shall speak to Amendments 7 and 8, which stand in my name in this grouping. I ask noble Lords to consider the words which case law has held to be paramount in this, that beliefs must be,

“worthy of respect in a democratic society and not incompatible with human dignity”.

They are words protected by the European Convention on Human Rights, and they cover both religious and philosophical beliefs. There are a clutch of cases which I could quote here, but I will refer briefly to only two of them.

The first is Grainger plc & Others v Nicholson in 2009. The court held that strong philosophical belief about climate change, for example, affected how the claimant lived. It went beyond mere opinion. It was setting out that opinion is one thing, which is not protected by the law, but that serious beliefs which stand above that should be so protected. That case really became the bedrock of this particular set of cases. In a 2005 case in the House of Lords, Regina v Secretary of State for Education and Employment and others ex parte Williamson, the noble and learned Baroness, Lady Hale, said that:

“A free and plural society must expect to tolerate all sorts of views which many, even most, find completely unacceptable”.

Agreeing with that judgment, the noble and learned Lord, Lord Walker, in accepting pacifism, vegetarianism, and teetotalism as beliefs, went on to say that they are not just religious beliefs,

“but equally … may be based on ethical convictions which are not religious but humanist”.

I galloped through that just to say that the words,

“worthy of respect in a democratic society”,

have a solid bedrock in both European law and the law of this country.

The reason for tabling these two amendments is to focus on the fact that the Government have repeatedly insisted that this legislation before us will not penalise those who believe that marriage is only between a man and a woman. As the noble Baroness, Lady Cumberlege, has already said, the obvious case to cite at that juncture is that of Adrian Smith and the housing trust. That has been mentioned several times in previous debates on this subject. I will not go into it again but that case, and others, indicate the fragility of the position of those who seek to express a firmly held view, without any intent of causing any disruption beyond—

[Baroness Barker]

I wonder if the noble Lord, Lord Dear, would care to acknowledge that Adrian Smith actually won his case. The reason why he did not win substantial damages was because he did not take the case within the time limit. But he did win his case.

[Lord Dear]

Adrian Smith won his case under contract law. He was awarded only £98 for loss of earnings. I understand that he was advised by his lawyers that he would not have succeeded on a religious or belief discrimination claim.

Having mentioned the Adrian Smith case and the fragility which I think most would accept is there at present, my Amendments 7 and 8 are paving amendments, as much as anything, for Amendments 10, 12 and 14, which also stand in my name. They are put forward to your Lordships for consideration as alternatives, to put the Government’s assurances on a statutory footing. The amendments expressly state that,

“marriage was the union of one man and one woman”,

as a belief, and here I quote again,

“worthy of respect in a democratic society”.

As I say, that is the key test used by the European Court of Human Rights. The amendments go on to say “that no person” holding that belief “should suffer any detriment”, and ensure an ongoing recognition that there are different views on the issue and that the many who hold to a long-standing definition of marriage should not be disadvantaged.

Briefly, Amendment 7 requires that:

“Any person, in exercising functions under or in consequence of this Act”,

should have regard to the principle of not causing detriment to those who believe in “traditional marriage”. That would put, as an example, the Secretary of State under an obligation to have regard to this principle when making orders under the Act. It would apply to anyone involved in the registration of marriages, including staff handling applications from churches.

Amendment 8, as an alternative, tightens the focus down to:

“A public authority, or any person exercising a public function”,

having regard to the same principle. That would apply to public sector employers, including housing trusts, which might treat employees unfairly because of their beliefs about marriage. The amendment would also extend to all that is done, for example, by Ministers of the Crown, the National Health Service, local authorities, schools, police forces and so on. Individuals in all walks of life would be protected, from doctors to road sweepers, from nurses to government advisers, and from teachers to police officers.

--- Later in debate ---

[Lord Singh of Wimbledon]

If I may briefly respond to that, it is true that the law covers a lot of things. It does not combat ignorance. The law provides equality for Sikhs, Muslims and everyone else. When an outrage by an Islamic fundamentalist takes place, very often the target is a Sikh gurdwara or a Sikh individual. You cannot combat ignorance in that way. The more clarity we put into the law and the more determination we put into upholding the law, the better it will be for everyone.

[Baroness Barker]

My Lords, I will address Amendment 8 in particular. At Second Reading, I said that my early life was spent in a place where religious discrimination was the norm. It is something that I managed to grow out of—after a very long time—and which I find absolutely abhorrent. I also explained at Second Reading why, like the noble Lord, Lord Alli, I know what it is like to suffer abuse because of one’s sexuality. It is never so dispiriting as when those two things are combined. Some of the most homophobic material that is sent to me is in the name of churches. I find that more depressing than anything else.

I was raised in a religious household and I will defend the rights of people to hold religious points of view and minority points of view. I will defend their right to preach things that I find unacceptable and disheartening. I cannot tell your Lordships how dispiriting it is to listen to some preachers and to understand from their preaching how little they think of their fellow human beings, but it is absolutely their right to do that. But it is not their right to do that and to inflame hatred and violence at the same time.

I suspect that not many of your Lordships go to Gay Pride marches but I do, occasionally. Every time I go to Brighton and have a wonderful time, there is a point when we walk up the street and there is a particular religious organisation there; its members have picked that day to come and make known their opposition to gay people. The police are there protecting them because they are exercising their right to do so.

The point at which I absolutely and fundamentally part company with the noble Lord, Lord Dear, is in his Amendment 8. He is a citizen and I am a citizen. We pay our taxes. When it comes to the exercise of public services, we should have exactly the same rights provided that we are both living within the law. I simply cannot accept the statement in the amendment that the private views of public servants should enable them to treat people differently.

Finally, something that I started to do many years ago, and still do as a private discipline, is that when I listen to or am asked to advance an argument on behalf of one minority, I run through the same argument in the name of another, completely different minority. I find it a very helpful way of getting to a universal understanding of what it means to be a human being and to treat other people with dignity. It is a discipline that I recommend to all.