Marriage (Same Sex Couples) Bill

Baroness O'Loan Excerpts

Wednesday 19th June 2013 Lords Chamber

Moved by

[Baroness O'Loan]

13: Clause 2, page 4, line 9, at end insert—
“( ) For the purposes of section 149 of the Equality Act 2010, no regard may be had by any public authority to—
(a) any decision by a person whether or not to opt-in, conduct, be present at, carry out, participate in, or consent to the taking place of, relevant marriages; or(b) the expression by a person of the opinion or belief that marriage is the union of one man with one woman.”

[Baroness O'Loan]

My Lords, I reiterate my membership of the Joint Committee on Human Rights, whose report on the issues on which I will speak is before your Lordships’ House today.

Amendment 13 provides for amendment to Clause 2(5) of the Bill. Despite all that was said on Monday in respect of the Equality Act, and I listened very carefully to all the contributions, there is a significant risk that religious organisations and individuals could be treated less favourably by a public authority in the exercise of its functions, for example, as regards funding, as a result of the public sector equality duty under Section 149 of the Equality Act 2010. This could occur in two rather different situations: first, following a decision by a religious organisation,

“not to opt-in … be present at, carry out, participate in, or consent to the taking place of”,

same-sex marriages; and, secondly, following the expression by an individual or organisation of an opinion or belief that marriage is,

“the union of one man with one woman”.

This amendment would protect religious organisations and individuals from unfavourable treatment in both these circumstances.

Under Section 149 of the Equality Act, public authorities such as local authorities are under a duty to have due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it. In particular, public authorities must have due regard to the need to remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic. Since the enactment of the first public sector duty in 2001, there has been extensive litigation and an expansion of the discretion of public authorities in this context. The courts have consistently interpreted the duty of due regard as a duty to further equality of opportunity and not just a duty to avoid discrimination.

Public authorities have in practice used this discretion to pursue broad equality aims and the courts have been reluctant to second-guess the discretion of public authorities. Public authorities have, for example, denied public contracts to organisations which they regarded as unsuitable—for example, on race equality grounds, and the courts appear to have deemed this entirely lawful. As noble Lords will already be aware, the public sector equality duty now imposes duties on multiple grounds, which include sexual orientation and religion. This means that public authorities now have significant discretion in deciding how best to balance these grounds if they clash, and they will clash.

In relation to the first scenario—unfavourable treatment of a person following a decision not to opt in—the amendment is needed for three reasons. First, the Bill does not expressly state that a public authority will act ultra vires if it penalises a person following any of those decisions. Clause 2 protects from compulsion; it does not appear to protect religious organisations from being treated less favourably by public authorities under Section 149. The Government appear to think that less favourable treatment should be ultra vires. In the Secretary of State’s response to the Catholic Bishops’ Conference of England and Wales, she said:

“In all circumstances a person who has suffered detriment for the reason that they have not done one of the acts specified in Clause 2, will be able to rely on the protection in Clause 2 to show that such conduct is unlawful”.

During the Public Bill Committee, the Minister stated,

“as the law stands, a public authority would in fact be acting unlawfully … if it attempted to treat a religious organisation adversely simply because that organisation refused, as is explicitly allowed in the Bill, to conduct same-sex marriages. If, for example, a local authority withdrew meeting facilities from a Church only because it did not offer same-sex marriage, that would be likely”—

likely, my Lords—

“to be unlawful direct religious or belief discrimination”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 5/3/13; col. 349.]

This is not clear in the Bill because an ordinary dictionary definition of “compelled” does not include treating someone less favourably. Nor is it at all clear, for example, that it would be unlawful direct religious discrimination for a local authority to withdraw meeting facilities from a church on the ground that it does not offer same-sex marriage. At most, it is likely to amount to prima facie unlawful indirect discrimination and that would then be subject to the justification defence. We know that the results which flow from judicial scrutiny of such defences are uncertain.

Secondly, Clause 2(5) and Clause 2(6) of the Bill provide explicit protection from Sections 29 and 110 of the Equality Act, despite the comprehensive protection from compulsion which Clause 2 is supposed to provide. The presence of these extra exemptions in Clause 2(5) and 2(6) casts serious doubt on the scope of the protection from compulsion. If it is necessary to have exemptions for these sections, it is also necessary to have a separate exemption for Section 149, to give the protection provided for in this new clause.

Thirdly, even if it were established that the actions of the public authority were ultra vires in the scenario described, such a clarification would come only as a result of a judicial review being taken by religious organisations, which would be time-consuming and expensive. What is more, domestic courts have been reluctant to second-guess the discretion of public authorities, where allegations have been made that more weight should be given to a particular ground of equality. The Secretary of State has been careful not to state that a judicial review of a public authority that engaged in this less favourable treatment would be successful. The Secretary of State has said only that the decision would be vulnerable to challenge. This amendment will provide the necessary clarification, and thus protect persons from unfavourable treatment, by making it explicitly clear in the Bill that public authorities cannot have regard to decisions by persons not to opt-in, conduct, be present at, carry out, participate in or consent to the taking place of same-sex marriages.

In relation to the second scenario, in which persons may be treated unfavourably under Section 149 following an expression of the opinion that marriage is the union of one man and one woman, the amendment is necessary for two reasons. First, the Government have repeatedly stated that teachers will not be required to promote or endorse views which go against their beliefs. The Minister stated at the Public Bill Committee:

“It is therefore perfectly lawful for a teacher in any school to express personal views on sexual orientation or same-sex marriage, provided that it is done … in an appropriate manner and context”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 28/2/13; col. 305.]

However it is not clear from the Bill that a teacher would be able to teach that marriage should be only between a man and a woman, because some parents, pupils or other teachers could find such teaching deeply offensive. The public sector equality duty could force a school to review, for example, its anti-bullying strategy to ensure that such expressions of opinion are not given. A teacher could thus be disciplined for expressing such an opinion to his or her pupils.

Secondly, if a school’s curriculum positively presents only opposite-sex marriage, there is a danger that the school could fall foul of the Section 149 positive duty on schools to advance equality of opportunity and to foster good relations between people with different protected characteristics. The public sector equality duty could consequently compel schools to endorse same-sex marriages, not just to teach the fact that they exist.

--- Later in debate ---

[Baroness O’Loan]

My Lords, for the sake of clarification, I did not speak on behalf of the committee but declared my membership, as I thought appropriate.

[Baroness Royall of Blaisdon]

I beg the noble Baroness’s pardon. It is interesting that both noble Baronesses, and the noble Lord, are members of the committee.

We are clear that Amendments 13 and 18 are unnecessary. We believe that they would add confusion to the law. As the noble Baroness said, the public sector equality duty is a duty to have “due regard”, not a duty to act. The due regard must balance discrimination on the grounds of sexual orientation equally with discrimination on the grounds of religious belief. It would not permit a public body, even with the intention of eliminating discrimination on grounds of sexual orientation, lawfully to treat a religious organisation less favourably on account of its beliefs about same-sex marriage. Furthermore, the authority would be in breach of the clear protections in the Bill that will permit religious organisations to remain outside the system of same-sex marriages.

As the noble Lord, Lord Lester, said, the Equality Act 2010 is a carefully crafted piece of legislation, thanks to many noble Lords present in the Chamber today. It established a balance between protection against discrimination on grounds of religion or belief and protection against discrimination on grounds of sexual orientation. To single out one belief—that marriage should be between a man and a woman—risks undermining the protection afforded to religion as a whole, with its entirety of beliefs and practices, because it sets up this one belief as requiring explicit protection. Therefore, Amendment 13—and Amendment 18, which seeks to achieve a similar effect—would prove unhelpful and unnecessary.

--- Later in debate ---

[Lord Wallace of Tankerness]

My noble friend has taken part in the debate and I usually make it a matter of practice to send a copy to everyone who has taken part. The noble Baroness, Lady Royall, makes a constructive suggestion. I will make sure that it is put in the Library and if, on the basis of the letter and follow-up, it is thought that a discussion would be necessary or wanted, I would certainly be happy to accommodate that. In the light of these comments and the reassurances that we have sought to give, I hope that the noble Baroness will feel able to withdraw her amendment.

[Baroness O'Loan]

My Lords, I thank noble Lords who took part in this debate. The noble Lords, Lord Lester and Lord Alli, and various other noble Lords have emphasised the need for clarity in legislation. The Bill, as drafted in the House of Commons, is already subject to amendment by the Government. It is clear that there are situations in which law which is drafted in the first instance by draftsmen requires clarification. That is why the House exists.

This particular piece of legislation falls at the interface of a number of different human rights—rights of religion and other rights. That is why it is so difficult for the House. The Bill seems to be based on the assumption that the act of marrying is separate from the act of registering a marriage, and the noble Baroness, Lady Berridge, demonstrated quite clearly that that is not the case. It is one single act. It is that which raises the whole spectre of public function. I raised this issue and specifically asked the Minister at Second Reading about the risk attached to the public function obligations of religious organisations that are in that hybrid position—those other than the Church of England and the Church in Wales. I did not get any answer to that question.

In the context of the Bill, we are looking not only at the acts of marriage but at the unintended consequences of the legislation before your Lordships’ House. They go much further than the act of conducting or permitting the conducting and so on of a marriage. They go to the whole remit of public authorities in funding, enabling and resourcing organisations such as youth clubs and schools, and in teachers’ ability to speak freely. We have a number of amendments still to come before the Committee in this context. My amendments would have dealt with some elements of these issues but there are other amendments that relate to them. I put it to the Committee that the issues are not quite as clear as some noble Lords would wish to state.

The fact is that there is a clear distinction in the legislation between the Church of England, the Church in Wales and other churches that solemnise marriage, which is that the Church of England and the Church in Wales are not in a position in which they will decide whether to opt in or out without further legislative process outwith this Parliament. That is what makes the difference and it is why we have the quadruple lock for the Church of England, which is not a sufficient lock for other churches. That is why I have tabled these amendments.

I do not wish to be in any way contentious or to delay the House but I cannot help remembering that the Catholic adoption agencies that have now closed as a consequence of legislation were also argued for on the basis of religious freedom. That argument was lost and there is no religious freedom there in the provision of services. It is profoundly important that we ensure that we do not further create very difficult situations. I will therefore, for the moment, withdraw and not move my amendments but reserve the right, having heard what the Minister had to say, to come back to the House on Report. I beg leave to withdraw the amendment.

Amendment 13 withdrawn.