Marriage (Same Sex Couples) Bill

Baroness Cumberlege Excerpts

Monday 17th June 2013 Lords Chamber

Moved by

[Baroness Cumberlege]

11: Clause 2, page 3, leave out lines 21 and 22

[Baroness Cumberlege]

My Lords, I will also speak to Amendment 16. The Bill as drafted does not allow registrars to refuse to conduct civil same-sex marriages on the grounds that they have a conscientious objection to doing so. I am very grateful to the right reverend Prelate the Bishop of Leicester for putting his name to these amendments. Sadly, he is not here this evening but he is represented by the right reverend Prelate the Bishop of Hereford, who I am delighted to have supporting this clause. The proposed new clause in Amendment 16 will allow registrars to conscientiously object in limited circumstances. It will also ensure that all same-sex couples who wish to marry will be able to do so. There is only one reference to registrars in the Bill. It states that for the purposes of Clause 2(4)(b),

“‘person’ … does not include a registrar, a superintendent registrar or the Registrar General”.

This means that registrars will not be afforded the protection from compulsion that religious individuals have in relation to same-sex marriages in the religious context.

It is unclear to me why the drafters chose to mention registrars in a clause that deals only with marriages according to religious rites, termed relevant marriages within the clause, and not in a separate clause that deals with civil same-sex marriages. I find this particularly surprising given the recent decision of the European Court of Human Rights in Eweida and Others v United Kingdom. The noble Lord, Lord Anderson, mentioned it earlier. Miss Ladele was a registrar with a conscientious objection to performing civil partnerships. She was subjected to disciplinary proceedings because of her religious beliefs. Following the Ladele case, and, I have to say, the Government’s huge expense and the following media circus, one would have expected a more explicit reference to registrars in a clause dealing with registrars as a whole, not a small reference in a clause dedicated to marriages according to religious rites.

The absence of protection for registrars in the civil context contrasts markedly with the protection from compulsion that is given to the clergy or others within religious organisations. Why should the religious rights of the individual take precedence only in the context of religious marriages? Both the minister conducting the religious marriage and the registrar conducting the marriage in a register office carry out the same public function: both conduct legally recognised marriage ceremonies. Indeed, the Minister responsible for the Bill in the House of Commons said,

“Marriage is, in my view, a single institution that can be entered into either in a civil ceremony or in accordance with religious rites or usages”.—[Official Report, Commons, 26/2/13; col. 186.]

Our amendment and proposed new clause will permit all registrars, civil and religious, to exercise their right to freedom of conscience and religion while ensuring that same-sex couples are able to access civil or religious marriage ceremonies.

A conscientious objection clause such as the one we propose is not unprecedented. It will not have a detrimental effect on the Bill. Section 4 of the Abortion Act 1967, for example, allows for individuals with a conscientious objection to abstain from participating in abortions. Section 38 of the Human Fertilisation and Embryology Act 1990 allows any person to object to participation in the treatment and development of human embryos. Schedule 2(3) of the National Health Service regulations allows medical staff to refrain from providing contraceptive services—my noble friend Lord McColl knows more about this than I do. Under the Motor-Cycle Crash-Helmets (Religious Exemption) Act 1976, Sikhs do not have to wear helmets, while atheist teachers are not required to conduct collective services or to teach religious education.

These are just a few examples of conscientious objection clauses that already exist. The Government have provided no good reason for distinguishing between the individuals in those contexts and registrars in the same-sex marriage context. The Minister, in his response to the Public Bill Committee, said it is because “they are different”. That is not a satisfactory answer. Like registrars, all medical professionals and teachers provide a service and perform a public function. Why, then, should registrars be treated differently? Teachers perform different functions to medical professionals, and medical professionals perform a different function to research scientists experimenting with human embryos. Why does it matter that they are different? What justifies this difference in treatment?

Subsection (1) of our proposed new clause draws partly in its phrasing on the conscientious objection clause in the Abortion Act, as does the requirement in subsection (3) that the,

“objection must be based on a sincerely held religious or other belief”.

Subsection (4), also like the Abortion Act, places the,

“burden of proof … on the person claiming to rely on it”.

Therefore, only individuals with a genuine, sincerely held religious or other belief may refuse to conduct same-sex marriages, and only if they can prove that their refusal is based on genuinely held religious or other beliefs. That is not an easy test to satisfy.

A conscientious objection clause in this area would not be completely unprecedented, either. While the Civil Partnership Act 2004 does not have an explicit conscientious objection clause, it does not require all registrars to be designated civil partnership registrars. The legislation simply requires registration authorities to ensure that there is a sufficient number of civil partnership registrars for the area. Across the United Kingdom, registrars’ beliefs have been accommodated by local authorities, allowing those with sincerely held religious objections not to be designated as civil partnership registrars. By doing this, local authorities protect both the rights of same-sex couples and registrars.

--- Later in debate ---

[Baroness Thornton]

The noble Baroness keeps referring to the case of Miss Ladele but has failed to inform the House that that lady lost her case all the way up to the European Court. In other words, our equalities legislation was held to be true right up to the European Court.

[Baroness Cumberlege]

My Lords, my point was that it never needed to have come to court.

Our new clause would produce largely the same result as the Civil Partnership Act, because subsection (2) would not allow individuals to exercise a conscientious objection if doing so would result in same-sex couples being unable to access marriage ceremonies. If sufficient numbers of registrars are not available in any district, a registrar with a conscientious objection would come under a duty to conduct same-sex marriages. Therefore, no same-sex couple would be prevented from marrying by reason of this amendment. This tackles the Minister’s concern that religious individuals might apply for positions as registrars in order to conscientiously object and prevent same-sex couples getting married—although this is unlikely. Our new clause would prevent this, because the registration authority would be able to compel such individuals to conduct the marriages if another registrar is unable to do so.

Not only is our new clause practical and consistent with precedents set in this area, it is necessary. There are currently a number of registrars who wholeheartedly embrace civil partnerships but, by reason of their religious or other beliefs, do not believe that marriage should be extended to same-sex couples. There are also some registrars who, following the Civil Partnership Act, were accommodated by their local authorities and who believe that only opposite-sex couples can marry. Without this new clause there will inevitably be legal disputes in the future, which the Government surely wish to avoid.

During the Public Bill Committee, the honourable Member for Bristol West said:

“There is plenty of time, given that they work in local government, for them to think through the implications of Parliament changing this law and … to apply for redeployment elsewhere in the public service: in the library service, or somewhere else where they have to serve the customers fairly and equally”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 26/2/13; col. 226.]

In other words, tough luck: if registrars do not want to perform same-sex marriages, they should go and find employment elsewhere. That cannot be right. Why should a person who until now has perfectly performed all the functions asked of him or her be forced to resign over this crucial matter of conscience, especially given that such a function was never envisaged as part of their role when they were initially employed? It would be unfair to expect them to do so.

[Baroness Thornton]

Will the noble Baroness inform the House whether a proposed new clause would open the door to registrars conscientiously objecting to other things such as mixed-race marriages? Where would the noble Baroness draw the line?

[Baroness Cumberlege]

My Lords, this debate is about same-sex marriages. That is what I am addressing. Surely we should not force people into such an impossible position.

[Baroness Thornton]

It is a legitimate question. If the amendment were agreed, would the noble Baroness be opening the door to other conscientious objections—for example, to mixed-race marriages?

[Baroness Cumberlege]

My Lords, this Bill is not about mixed-race marriages but about same-sex marriages. That is what I am addressing.

[Lord Martin of Springburn]

Does the noble Baroness know of any religious faith that would object to a mixed-race marriage?

[Baroness Cumberlege]

No, my Lords, I do not know of any. I have just a little more to say before I finish. Our proposed new clause will promote rather than hinder tolerance, because individuals will be more likely to live in harmony, even if their thoughts and beliefs are entirely contradictory. Harmony, broad-mindedness and tolerance are more likely to be achieved if both those who do and those who do not believe that same-sex marriages should be available feel that their beliefs are equally valued and protected.

In conclusion, our proposed new clause strikes a sensible balance between the rights of those wishing to get married and the rights of those with conscientious objections to conducting same-sex marriages. It will allow individuals conscientiously to object only in certain limited circumstances. It will not allow anyone with a conscientious objection to communicate that objection to anyone wishing to get married at a register office. It will not allow any registrar to make their beliefs publicly known through their work. It will allow registrars quietly to refrain from conducting same-sex marriages only where there are enough other registrars to cover demand. Surely this is a better approach.

Earlier this evening, the noble and learned Baroness, Lady Butler-Sloss, talked about a middle way. I agree with her. This House encourages tolerance. Our amendment would protect the rights of individuals with conscientious objections, and also allow same-sex couples to get married. To me, that is the middle way. I urge the Minister—

[Lord Alli]

I have a question for the noble Baroness. If I understand her proposed new clause correctly, at the beginning there is a conscientious objection subsection. There is also an obligation on public authorities to provide registrars. The proposed clause then states that if there are not enough registrars in the area, the conscience exemption is dropped and the registrar will have to perform the marriage regardless. That is the worst of both worlds. There is the illusion of a conscience exemption, but if there are not enough registrars, the poor person about whom the noble Baroness spoke will have to perform the marriage in any case. Perhaps the noble Baroness will tell me if I got that right or whether she has a different interpretation.

[Baroness Cumberlege]

The noble Lord, Lord Alli, got it absolutely right. I will draw my remarks to a conclusion.

[Lord Carlile of Berriew]

I apologise for intervening at this late stage of my noble friend’s speech, but I would like to be clear about the consequences of what she is saying. Does she propose that a registrar who is opposed on conscientious grounds to divorce should have the right to refuse to marry people who are entering into a second marriage after divorce?

[Baroness Cumberlege]

No, my Lords, I am not going into divorce. I am trying to keep my proposed amendment quite narrow. I am trying to find a middle way, a way that allows registrars to have a conscientious objection because they are not bit parts in this exercise—they are intrinsic to it. I think they should have that right, just as doctors, teachers and everybody else that I have mentioned do. I also understand, having been in local government and knowing how registrars work, the issue of having to work out the workforce that is required to carry out these functions. I am saying that if a registrar is trying to exercise a conscience clause—the clause that we are here trying to give that person—but there is a shortage of registrars within that area, I am afraid that he or she would be compelled to do it.

[The Lord Speaker (Baroness D'Souza)]

My Lords, if this amendment is agreed to I cannot call Amendment 11A by reason of pre-emption.

--- Later in debate ---

[Baroness Barker]

But which is none the less possible.

[Baroness Cumberlege]

I live in a rural area and I looked into this. In rural areas particularly, registrars work in teams. It is like a team ministry in the church: a number of registrars serve several different registry offices. That is certainly what happens in my area.

[Baroness Barker]

None the less, I return to the point: the noble Baroness wishes to put in legislation the potential for some of our citizens to be treated as second-class. That, I am afraid, is not acceptable. In this House we sit and debate whether legislation should be introduced partially, in stages or whatever; we decide what the law is, what is fair and what all our citizens have the right to expect. Why should this be different?

--- Later in debate ---

Marriage registrars are public officials performing statutory functions on behalf of the state. Conducting marriage ceremonies is clearly part of their functions. It would not be right to allow them to discriminate by providing their services to some individuals but not to others—I recognise the comments that have been made—not even on a matter of conscience. I have no doubt we will return to this on Report, but in the mean time I ask my noble friend to withdraw her amendment.

[Baroness Cumberlege]

My Lords, I would like to start by thanking all noble Lords who have taken part in this debate. I would particularly like to thank the right reverend Prelate the Bishop of Hereford. I thought it was very interesting how he introduced the House of Lords and Commons Joint Committee on Human Rights and I would like to thank my noble friend Lady Berridge for also commenting on that, especially as she was part of that particular committee.

I want to be brief but I just want to raise the issue that the noble and learned Baroness, Lady Butler-Sloss, mentioned. I do not want to be ungracious. I think there really is a very, very difficult position in terms of transitional arrangements and I hope that the Government will choose to address that. I do not think that it goes far enough. Talk to a number of these registrars and they are very committed people who see themselves as having a vocation. To try and stop young people who want to enter into this field in the future would be a great disservice. I hope that in thinking about their careers in the future, we will introduce this conscience clause because I think it might be necessary in terms of recruitment.

The noble Lord, Lord Anderson, mentioned small numbers and practicalities and I thank him very much for his support. I endorse again what my noble and learned friend Lord Mackay of Clashfern said about the approach already adopted by sensible and tolerant local authorities which allow those who hold objections to be accommodated. We are asking that the same should apply in the case we are discussing. We are not asking for a change in that but that that situation should continue in the future.

I say to the noble Lord, Lord Alli, that we are not refusing any couple same-sex marriages. We are trying to accommodate them as well as looking after the interests of registrars, many of whom I know would benefit from a conscience clause. I say to the noble Lord, Lord Browne of Belmont, that it was very interesting to hear about teachers and the situations they face. I do not agree with my noble friend on the Front Bench about doctors. Many doctors, particularly surgeons, choose which operations they want to perform. Not only do they do that, but many doctors also have a right to refuse to give contraceptive advice, so I think there is a parallel issue there.

My noble friend Lord Elton wants a stronger definition of what constitutes acceptable grounds for conscientious objection. Proposed new subsection (4) of our Amendment 16 places the burden of proof of conscientious objection

“on the person claiming to rely on it”.

Therefore, only individuals with a genuine and

“sincerely held religious or other belief”

may refuse to conduct same-sex marriages, and may do so only if they can prove that their objection is based on genuinely held religious or other beliefs. That is not an easy test to satisfy but I very much want to accommodate my noble friend and see whether we can go further on this.

Finally, I thank my noble and learned friend Lord Wallace of Tankerness for his summing up. Of course, I am very disappointed with it but I was interested in what he said about the national panel for registration. I have found it extremely difficult to get hold of the panel. When I rang it up, the staff said that they were too busy and discontinued the line. When I rang later, they said that the person I needed to talk to was not there. The panel does not have a website. It is extremely hard to find out with whom it consulted and how many people it represents. There is a paucity of knowledge which no doubt we will build up when we come to Report. I will read Hansard very carefully but I will certainly consider the possibility of bringing back this amendment, or, I hope, a much more perfected one, on Report. I beg leave to withdraw the amendment.

Amendment 11 withdrawn.