Marriage (Same Sex Couples) Bill

Baroness Royall of Blaisdon Excerpts

Monday 24th June 2013 Lords Chamber

[Baroness Barker]

My Lords, I rise briefly to support this amendment. When the Civil Partnership Act went through, it was interesting to note that employers were already ahead of the law and that a number of private schemes already recognised partners. When the civil partnership law was enacted, many more then did so. It is fair to say that in this House there are people who may have forgotten more about pensions than I will ever know. However, in the greater scheme of things, this is not very much money in terms of the overall pension contributions, yet it means an immense amount to individuals; those people who are doing all the things that we would encourage others to do, like being judicious in provision for their later life. It seems to me wholly wrong that they are not rewarded in the way that every other person would be if they did the same thing.

[Baroness Royall of Blaisdon]

My Lords, as my noble friend said, pensions might sound boring but, as the noble Baroness, Lady Barker, said, pensions are extremely important to individuals. They do affect quality of life, so this is a very important amendment.

Liberty, to which I am grateful for its excellent briefing on this issue, is surely right in saying:

“This is an unnecessary and counterproductive anomaly in a Bill which otherwise makes landmark progress in equally respecting the rights of gay people”.

The same has been said from all Benches today.

Naturally, I recognise the anomaly that exists between the treatment of pension rights for married and same-sex civil partners. However, this Bill not only continues that discrimination but it takes forward the same distinction to same-sex married couples: in terms of these pension rights, they would be treated differently from opposite-sex married couples. This uneven treatment would, therefore, be continued. As my noble friend cogently argued, this should be an opportunity to get rid of the current anomaly rather than to extend the discrimination.

I was struck by what I thought was an extraordinary answer from the Secretary of State to the Joint Committee on Human Rights in relation to compatibility with Article 14 of the European Convention on Human Rights on this issue. She said that the reason for treating same-sex-marriage couples as civil partners is that they could have the option either of getting married or of forming a civil partnership—and that the legislation therefore treats them equally.

This is sort of true but it goes against the whole ethos of this Bill. As my noble friend said, arguments which are made against this on the principle of retrospection are misplaced. It is clear that actuaries base forecasts on a wide range of assumptions which are not necessarily proved to be correct. In its report on the Bill, the JCHR also noted: that,

“Depending on the provisions of the scheme, pension rights of same sex spouses may not be the same as pension rights of opposite sex spouses, which may give rise to an issue as to whether this is compatible with Article 14 of the ECHR in conjunction with Article 1 Protocol 1”.

It has already been noted that the Government are currently fighting an appeal against the decision to uphold this view in the case of John Walker. However, if legislation is not amended to take account of the Walker judgment and the reliance on the European Court findings, it is likely that further action will be taken by same-sex married partners. One cannot blame them. They will seek similar redress in the courts to ensure that they, too, can access pension rights in an equal way. That would be regrettable.

Of course, I recognise that resolving this anomaly is not without cost but the real frustration is that we do not have the requisite information to debate the issue with knowledge of its full consequences. When responding to a similar amendment moved in the other place, the Minister, Helen Grant, said that,

“we do not believe that it would be right to put on schemes the significant additional and retrospective financial burdens that would arise from removing the Equality Act exception”.—[Official Report, Commons, 21/5/13; col. 1144.]

However, how significant those burdens are is unclear. The House of Commons Library estimated that the potential additional cost to private contracted-in schemes would be £18 million. That is a significant figure by anyone’s estimates, but when compared with the total value of assets under management in the pensions industry it amounts to just 0.006%—as was pointed out by Mr Mike Freer on Report in the Commons. I accept that for a handful of small employers or charitable schemes this may have a disproportionate impact. However, the Government have accepted that around two-thirds of schemes already treat opposite-sex marriages and civil partnerships equally. I pay tribute to all those organisations, including the Church of England, which do the right thing.

In evidence submitted to the JCHR, the Minister for Sport and Tourism, Hugh Robertson, stated that,

“We estimate that in total the impact on both contracted-in and contracted-out private sector schemes could amount to as much as £90 million. There would be very substantial costs for public service schemes”.

Will the Minister confirm to the House the costs, additional to the £18 million identified and widely accepted, on which £90 million figure is based, and the costs for public service schemes to which the Secretary of State was referring given the 2005 regulations identified by the Commons Library? On these Benches, we believe that the financial impact of the amendment would be relatively insignificant. However, the Secretary of State is quite clear that there would be a cost. Therefore, I echo the calls from around the Chamber and from the JCHR for the Minister to publish the full evidence on which the Government based their assessment as soon as possible so that we might approach Report armed with the fullest possible view of the consequences of this amendment—an amendment which I fully support.

[Baroness Stowell of Beeston]

My Lords, I am grateful to the noble Lord, Lord Alli, and all others who contributed to this debate. I understand the strength of feeling behind this amendment and the speeches that have been made. Anticipating this debate, I decided to speak directly to the Pensions Ministers today and so was able to come properly armed with full information.

First, and as I have said in other contexts and in our other debates on the Bill, in making it possible for same-sex couples to marry we have sought to build on existing legislation and not amend the structure of marriage law. The point is that we focused on allowing same-sex couples to marry. In the context of pensions, we are following what already exists for civil partnerships, as has been referred to by several noble Lords in the debate. The introduction of civil partnerships was, as we have acknowledged several times over the last few weeks, a fundamental change in our society. It was a huge step forward. The Act was complex and covered a wide range of different issues. The Labour Government at the time decided to provide this exception for defined benefit pension schemes which are not contracted-out of the state second pension. They clearly did so for a principled reason: Governments do not generally make changes to pension schemes retrospectively. That is the general approach that is taken. That decision was made in 2005 during the passage of that Bill. The noble Lord, Lord Alli, referred to the Equality Act 2010 and suggested that it had then been open to this Government to remove the exception. It is worth reminding the noble Lord and the House that the Equality Act was passed under the previous Government. It was not a Bill that we were still debating and deciding after the election—it predated this Government.

--- Later in debate ---

[Baroness Cumberlege]

My Lords, a number of noble Lords have said that this amendment is not necessary. The noble Lord, Lord Pannick, very helpfully mentioned Section 403 of the Education Act 1996, which refers to sex education, and laid out for us subsection (1A)(a) and (b). He did not go on to subsection (1B), which says:

“In discharging their functions under subsection (1) governing bodies and head teachers must have regard to the Secretary of State’s guidance”.

Therefore we already have Secretary of State’s guidance in that Act.

The noble Baroness, Lady Farrington, said that she did not want us to go into great detail in this. However, if she refers again to proposed new subsection (2) in my Amendment 46B, she will see that it sets out very clearly what that guidance will be. That is very necessary. Of course, sex education has very much changed a lot of teaching in schools. However, we are talking about something that is now so fundamental: the nature of marriage and how it is such a foundation for society. If it is important to have the Secretary of State’s guidance for sex education, it is much more important to have it for marriage.

[Baroness Royall of Blaisdon]

My Lords, I am here as somebody who celebrates marriage and values the ethos of church schools, but I am also a very strong supporter of same-sex marriage. I have listened carefully to noble Lords’ concerns but I am not persuaded of the need for this amendment. Like the Secretary of State, I would not support a Bill that encroached on religious freedom or on freedom of speech, but this Bill does not do that.

I apologise for not having been here last Wednesday evening. However, of course I read Hansard, and many points similar to those made in the debate last week were made today about teachers. As was said on Wednesday it is clear that teachers will be under a legal duty to teach the fact of the law of the land—that yes, gay couples will be able to get married. However, those selfsame teachers in faith schools will also be able to express their personal views or those of their faith about marriage. Noble Lords have cited the present guidance, which is extremely well balanced.

I was very struck by a speech given by the right reverend Prelate the Bishop of Norwich in the Public Bill Committee on 12 February. I will quote a section of what he said:

“Our own view is that the promotion of marriage is part of sex and relationship education. What Church of England schools are good at doing, because the vast majority of them are community schools, is integrating the convictions of the Church of England with a recognition that the Christian opinions held in that school are not totally recognised within the whole of wider society … There is a balance to be struck, and I think that the Secretary of State for Education was right to say that in teaching there will need to be a recognition that we have a society in which same-sex marriages—assuming the Bill goes through—are possible, and of course the teacher would also indicate why it is that within the majority of Christian traditions such marriages are not celebrated”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 12/2/13; col. 26.]

That right reverend Prelate had it about right.

I noted, as did the noble Baroness, Lady O’Loan, that in the other place the Minister, Mr Hugh Robertson, undertook to take this issue away and discuss it further with religious groups. I very much look forward to hearing what he will have to say.

[Baroness Stowell of Beeston]

My Lords, this has been a wide-ranging debate. I am very grateful to the right reverend Prelate the Bishop of Ripon and Leeds, for his introduction of his amendment and for quoting what I said on Second Reading about this Bill being as much about promoting religious freedom as it is about allowing same-sex couples to marry. He was absolutely right about that. I am pleased that he was clear that his amendment is about religious freedom of faith schools. He sought to explain that this particular issue is quite different from the earlier education matters we discussed last week, which focused on the general freedom of any teacher to express a personal view rather than on the teaching of sex and relationship education in religious schools specifically. In responding to this debate, I will repeat several points that I made last week, not least because as the debate has unfolded it has become clear that the way in which the House considers this issue is very much to do with education in a wider context than just about the very narrow issue of religious freedom.

Noble Lords and others have expressed a concern that schools’ freedom to teach their beliefs about marriage according to their religious tenets will be threatened by the effect that Clause 11 will have on the meaning of “marriage” in Section 403 of the Education Act 1996 and guidance made under it by the Secretary of State, to which schools must have regard. As has already been noted, the Government have received representations from religious groups, in particular the Church of England and the Catholic Bishops’ Conference of England and Wales, expressing concern that Clause 11 might affect the ability of faith schools to continue to teach about the importance of marriage for family life and the bringing up of children in line with their religious tenets. This concern was echoed by Muslim leaders in their public letter of 18 May.

The noble Lord, Lord Alli, was the first to raise a point about the origination of Section 403. It is worth saying that it was not in a piece of legislation originally in the 1996 Act. Section 403(1A) was inserted by the Learning and Skills Act 2000. I will begin by explaining that schools with a religious character provide an excellent education for their pupils while reflecting their beliefs across the curriculum, including in sex and relationship education. There is absolutely nothing in this legislation that affects schools’ ability to continue to do this in future.

In schools of a religious character, teachers already deal admirably with teaching about marriages which may not be recognised as such according to the tenets of the relevant faith—for example, marriages of divorcees, or mixed-faith marriages. Last week the noble Baroness, Lady Farrington, gave us a great example of how teachers deal with sensitive matters. The noble Baroness, Lady Richardson of Calow, reminded us that it is important that teachers must be conscious of pupils whose parents are of the same sex and married when teaching about marriage in the context of sex and relationship education. My noble friend Lord Baker also made a similar point. However, my noble friend Lord Eden reminded us of the rights of parents who are concerned about sex education and its content. I responded to his concern last week in the debate about the policies that are in place to ensure that schools properly consult parents on the content of sex and relationship education.

Last week I forgot to make a point, which is worth making in the context of this debate, that sex and relationship education is compulsory in maintained secondary schools. Primary schools are not required to teach sex and relationship education, further than anything specific in the curriculum for science. It is important that I make that point, because it is sometimes forgotten.

In order for teachers to handle the very sensitive situations in which they often find themselves, they already interpret the Secretary of State’s guidance according to their religious tenets. This will be no different when marriage is extended to same-sex couples by this Bill. If the tenets of a particular religion do not recognise same-sex marriage, they will be able to approach teaching about marriage in exactly the same professional way that they do now. Although teaching will of course need to cover the factual position that marriage under the law of England and Wales can be between both opposite-sex and same-sex couples, faith schools will also be able to explain the relevant tenets of their religion on this matter.

I think it was the exchange between the noble Baroness, Lady O’Loan, and my noble friends Lord Phillips of Sudbury and Lord Elton, about the Secretary of State ensuring that teaching about marriage is given in accordance with religious tenets. It is important for me to make the point that I fully understand the intentions of the right reverend Prelate in the amendment that he has put forward, but I am sure that he and other noble Lords will agree that it is not appropriate for the Secretary of State to issue guidance to secure adherence to religious doctrine in teaching. This would amount to inappropriate interference by the state in matters properly for the relevant religious denomination. How faith schools approach such teaching is quite rightly a matter for the schools and faiths themselves.

While I think it is broadly acknowledged that the Secretary of State’s current guidance does not impinge on faith schools’ ability to teach in line with their doctrines, concern has also been expressed that the duty on the Secretary of State might allow future versions of the guidance to preclude religious schools from teaching in accordance with their beliefs. This was a point that my noble friend Lady Cumberlege raised—when the noble Baroness, Lady Farrington, referred to my noble friend Lady Knight, my noble friend Lady Cumberlege expressed this point. However, the noble Baroness, Lady Farrington, made my response for me by saying that it is clearly not the intention behind this legislation to envisage circumstances in which any Secretary of State might seek to interfere with matters of religious doctrine in the future. We are framing this legislation as things stand at the moment, and there is no way in which we are suggesting that a future Secretary of State might do anything different, but nor can I say from this Dispatch Box that things may not change in the future.

The noble Lord, Lord Pannick, noted that the second part of the duty in question, which is Section 403 (1A)(b), specifies that the Secretary of State’s guidance must ensure that pupils are,

“protected from teaching and materials which are inappropriate having regard to the age and the religious and cultural background of the pupils concerned”.

Therefore, the existing legislation already makes clear that it is absolutely inappropriate for material to be used that would not have regard for religious faiths. For the Secretary of State to issue guidance specifying that a particular version of marriage be endorsed counter to a school’s ethos, and by extension the religious background of many of its pupils, would not meet this criterion that already exists in legislation. I emphasise that point in response to my noble friend Lady Cumberlege, who expressed concern that the new legislation would somehow remove some protection from schools that are against promoting same-sex couples being able to marry. I want to emphasise that that is absolutely not the case.

This country has a strong tradition of schools with a religious character; they are a valued part of our education system. It would be pointless to maintain a system of designation if such schools were unable to teach in accordance with the tenets of their religion. For this designation to have significance, the school has to deliver what it was set up for. The inherent right of schools to deliver their curriculum and to interpret guidance according to their ethos is evident in their existence as such schools. As I have described previously, such schools do already teach about topics that may be considered sensitive, such as divorce, and they do so without issue.

While the Government are clear that this Bill will not impinge on faith schools’ ability to continue to teach about marriage in line with their religious tenets, I do of course understand that the effect of Clause 11 on Section 403 of the Education Act has led to some concern about this. While we are not convinced that there is a need to change the legislation to clarify the position, we are continuing to discuss this with the churches. As the noble Baronesses, Lady O’Loan and Lady Royall, said, the Government undertook to consider this issue in another place. I can assure noble Lords that I and my colleagues are continuing to examine it in detail.