Marriage (Same Sex Couples) Bill

Baroness Cumberlege Excerpts

Monday 8th July 2013 Lords Chamber

Moved by

[Baroness Cumberlege]

3: Clause 1, page 2, line 7, at end insert—
“(6) Any duty of a person employed as a registrar of marriages on the date this Act comes into force (“relevant registrar”) to solemnize marriages is not extended by this Act to marriages of same sex couples if the relevant registrar has a conscientious objection to doing so.
(7) Nothing in subsection (6) shall affect the duty of a relevant registrar to carry out any other duties and responsibilities of his employment.
(8) The conscientious objection, under subsection (6), must be based on a sincerely held religious or other belief concerning only the marriage of same sex couples and in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.”

[Baroness Cumberlege]

My Lords, in Committee, I introduced an amendment that allowed civic registrars to exercise a right to conscientiously object to conducting same-sex marriages. Although there was some support for that amendment—in fact, there was quite a bit—I sensed there would be much more support for a transitional amendment that would protect only registrars in office now; they would be protected only once the Bill becomes law. These men and women are already in post and were, in effect, exempt when the law on civil partnerships was introduced in 2004. I am very grateful to the noble Lords who have put their names to this much narrower and more focused amendment, and to those who wished to put their names down. They were restricted by the fact that only four names are allowed.

We understand the nervousness about allowing future registrars to object conscientiously, but why not take those who are in office now? Without protection, those registrars will be faced with an impossible position: resign and face possible unemployment, given how difficult it is to find a job in today’s labour market; or stay and act against their conscience. The lack of protection is unfair and inconsistent with other areas of law, and it will unduly limit the freedom of thought, conscience and religion.

We need to be fair to all. We need to ensure that those who wish to can exercise a conscience clause and that those who want a same-sex marriage can marry. Nothing in the amendment would prevent couples of the same sex marrying. In the spirit of tolerance and respect, we have considered and dealt with almost every concern put to us in this House and the other place. The noble Baroness, Lady Thornton, asked whether a previous amendment would open the door to registrars conscientiously to object to other things, such as mixed-race marriages. That was never our intention, and this amendment makes it clear beyond doubt that registrars will be able to object conscientiously only to same-sex marriages. We have done so by making it absolutely clear in proposed new subsection (6) that the conscientious objection applies only to the solemnisation of marriages. That is reinforced by proposed new subsection (8), which states that the religious or other belief on which the conscientious objection must be sincerely held must concern only the marriage of same-sex couples. Any other conscientious objection to marriage will not be covered by our amendment, so it will not allow registrars to object to conducting marriages for any other reasons.

The noble Baroness, Lady Barker, seemed concerned about the scope of our previous amendment. She was under the impression that it would allow registrars conscientiously to object to more than the conducting of marriage. She was concerned that a registrar could, for example, sit in a register office at interview and refuse to assist any same-sex couple. Again, that is not what we intended. Therefore, our amendment has been revised to make it abundantly clear in proposed new subsection (6) that a registrar may conscientiously object only to conducting a same-sex marriage. Proposed new subsection (7) puts that beyond doubt by stating that any other activities will not be covered. Our amendment will not allow registrars to treat same-sex couples differently; it will merely allow them to refrain from solemnising their marriages.

I stress that our amendment is not unprecedented; it is nothing new. My noble friend, replying to the debate in Committee, attempted to draw a distinction between our conscience clause and others found in English law. I drew the attention of the House to numerous other cases, such as a doctor’s right to refuse to give contraceptive advice, a person’s right not to participate in work involving the treatment and development of human embryos, and the right of a Sikh not to wear a motor cycle helmet or a safety helmet.

Although the protection for teachers is not explicitly framed as a conscience clause, such as in our amendment, it operates like one nevertheless, because it also allows atheist teachers to refuse to conduct religious education without suffering any detriment. That operates at voluntary-aided faith schools and, interestingly, at non-faith schools. I am not saying that the registrar scenario is like that of a doctor not giving contraceptive advice or a teacher refusing to teach religious education.

Those conscience clauses and others—of which there are many—are all different, and they all allow a person to refrain from undertaking different activities. The difference did not prevent conscience clauses in those cases, so why does it in this case? What makes registrars so different as to warrant their forcible registration? Is the belief about marriage not as valuable as a belief about contraception? Is the belief about marriage not as worthy of protection as a teacher’s conscientious objection to teaching religious education? It is not, with the greatest respect, an answer to say that they perform a civil or a public function because doctors, medical professionals, teachers and so on, all of whom have the right to object conscientiously to some activities, also perform public functions for civil society. Not only is it therefore not fair to force all registrars currently in employment to conduct same-sex marriages if they conscientiously object to them, it is also unnecessary.

I am grateful to my noble friend for copying to noble Lords a letter from the chairman of the national panel for registration, but it takes us no further. Jacquie Bugeja, with whom I had a very interesting and long conversation, does not tell us in her letter, when referring to three consultation meetings, how many registrars attended each meeting. Only one or two registrars could have turned up, for all we know. Were the registrars who were not present asked for their opinion? For those who were, was there a general discussion or a confidential questionnaire? What was the format? In conversation, Jacquie could not tell me how many registrars were canvassed for their views. She said that it was left to local discretion within a local authority and that there was no follow-up by the panel.

We have not been able to find the minutes of the meeting of 2 June 2012. If there was no confidential questionnaire, registrars could have been reluctant to voice opinions. They could have risked disciplinary action being taken against them or being dismissed, as experienced by the unfortunate Miss Ladele. The second meeting was simply for 10 managers, whom we know are fearful that a conscience clause might cause them managerial inconvenience. Who attended the most recent regional meetings, held last month? Was it again just the managers, and how and where were those meetings held? What was the format and where are the minutes published for such an important issue?

The letter makes a series of unsupported statements, including that for the past 176 years registrars have been carrying out their duties and have never wanted a conscience clause. Of course they have not; they have never needed one. Local authorities up and down the country were able to accommodate their registrars’ conscientious objections. When an authority did not, it was taken to the European Court of Human Rights. The Joint Committee on Human Rights recognised the argument that registrars currently in office would not be free to hold to their beliefs if they were automatically designated as same-sex registrars. I welcome this conclusion and I urge noble Lords to support and accommodate the registrars currently in office. It is the right and the fair thing to do. In the spirit of tolerance and freedom of the individual, which is the hallmark of this House, let us together protect the registrars’ freedom of thought, conscience and religion. With this very modest but important amendment, we seek to do that. I beg to move.

[Baroness Williams of Crosby]

My Lords, I am a signatory to this amendment. I realise that the time is going by and I shall make my remarks in support of my noble friend Lady Cumberlege brief ones. Interestingly, there is a real dilemma here about both equality and liberty. Although the amendment is brief and limits itself to a modest request, it has considerably greater implications than may at first be realised.

A registrar is the first step towards a career in public life for a great many people. It is a job which they do for the community and one in which they reflect their community’s interests and concerns. It is a crucial step on the path towards the integration of different minorities, regardless of religion, language or earlier origin. It is therefore all the more important in communities where a large minority is present—let us say Muslims, or other religious groups—to make it possible for them to become registrars. To my regret, this amendment is limited quite deliberately to those already in office. I personally think that it would be better if it applied to anyone applying for this job, which, I repeat, in my view at least is the very first rung of a professional career in public life.

I shall take this one step further. There are some religions that, for deeply held principles, very strongly cannot accept the idea of single-sex marriage. That includes most of the Muslim faith and those who are supporters of Orthodox Jewry. It seems only right that registrars who hold those faiths, and who have done their job properly and intend to go on doing it well, should not be excluded from entry into that profession or, even worse, forced out of it when they have already been in it for several years and have performed satisfactorily. I can think of almost nothing crueller than to announce that after two or three years a registrar who has been behaving himself or herself in an upright and proper manner should be compelled to leave their job, often at a time when they have children and other responsibilities, because of this legislation. I cannot for the life of me believe that most people in this Chamber who believe in equality and human rights would want to see that happen.

Frankly, I do not understand why this relatively limited change could not be made easily to permit people to make this decision on conscientious grounds— for example, as my noble friend said, in cases of giving advice on contraception or taking part in abortion. This very limited right, linked to one particular thing, would allow their conscience to be exercised.

I have two important points to add on this. The numbers concerned would be relatively small. I have recently looked at the record following the passage of gay rights in Spain, and one is talking of a few score people every year. That means that any decent register office could easily, by dint of rotation or of acceptance, treat this rather in the way that they do, quite properly, in the case of a registrar or an assistant registrar who becomes pregnant, covering for them in their enforced absence. That happens to all of us virtually every day of the week in existing forms of employment. It happens to civil servants, lawyers, teachers and doctors, and there is no reason on earth why it could not happen to registrars.

I have to say to the Minister that I find this insistence on such people not being able to have a conscientious objection puzzling, given that we know in advance that certain religions will find this very hard to accept. On the kinds of grounds that my noble friend has already talked about, it would seem sensible to make this exception in such cases.

I believe that this is genuinely a conflict about equality and liberty. I personally believe very strongly that opening the doors of becoming a registrar to people of all races and religions of this country is an important tool in advancing the integration of our communities. I point particularly to those communities in the Pennines and other parts of the country where there may be a very substantial minority, or even sometimes a majority, of Muslim British citizens, and we should ensure that they, too, are treated in an absolutely equal way.

I strongly commend my noble friend’s amendment. I add one thing to what she said about attempting to discover the opinions of registrars. It is always a mistake to ask the opinions of managers about the views of the people they manage, unless you have a proper method of discovering what they are. Surely we know from the sad history of Mid Staffs that one of the things you should not do if you smell difficulties is to talk to the top management and assume that they truly reflect what the ordinary, everyday workforce thinks, because often they have a very strong in built desire to avoid any problems of managerial difficulty, which they always see as too big an obstacle. I strongly support my noble friend’s amendment.

--- Later in debate ---

[Baroness Cumberlege]

My Lords, I sense that the House will want me to be very quick, so I shall be. I thank all noble Lords who have taken part in this very interesting debate, albeit, I accept, on a very narrow subject. I particularly thank my noble friend Lady Williams for her powerful support for the amendment, and I thank my noble friend Lord Deben. The tenor of the amendment is about a bit of tolerance and generosity. This is the moment when perhaps we ought to be giving a little bit to some people who have a conscience clause.

I want to say something very briefly about marriage and about what the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Peston, said. To me, marriage is very important. I married when I was 17 and have to say that it was the best decision of my life. I love my husband to bits and he is great. I can remember every moment of that service. I even remember that the priest, very sadly, forgot to give me my passport. We were going on honeymoon and had to go back to collect it. Marriage is terribly important; we would not be having this Bill or these debates if people did not think it was very important. The people who conduct the marriage are equally important. I very much accept what my noble friend Lord Vinson said. If there is somebody who does not believe in it or who thinks that it is just something you have to go through, it is not the same as someone who really believes in it and wants to see a couple happily married and continuing in later life.

For those people who have a conscience clause, it is much fairer to the same-sex couples who are getting married to have somebody who believes in what they are doing and who rejoices with them in this very special event in their lives. I would love to go through all the arguments, but I will not do so. The managerial arguments are bogus because any good manager knows how to manage a workforce. There are women who inconveniently get pregnant and there are people who are ill, but you still have to manage your workforce, so I do not agree with some of those concerns.

It has been a very interesting debate. I am extremely disappointed by my colleagues on the Front Bench and my noble friends whom I hoped would give a little tonight. I hoped that we could have some accommodation in the spirit of generosity, but that is clearly not the case. Therefore, I want to test the opinion of the House.