Marriage (Same Sex Couples) Bill

Baroness Royall of Blaisdon Excerpts

Monday 8th July 2013 Lords Chamber

[Baroness Royall of Blaisdon]

My Lords, I will briefly also congratulate the Government. With their Amendments 9 and 10 they have clearly assuaged the majority of people’s fears. My noble friend Lord Brennan said that they comprehensively assuaged fears, which must be a good thing. The proposal from my noble friend about guidance sounds entirely correct, but I know from long experience that sometimes guidance takes rather longer to draft than we might like. However, discussions about the guidance, even if it is not fully drafted, might be a way forward in this particular little logjam. I am very happy to support the amendments.

[Lord Wallace of Tankerness]

My Lords, I thank noble Lords who have spoken and who have welcomed the Government’s amendments. I am pleased that the amendments have given the reassurances that the noble Baroness, Lady O’Loan, spoke about, as did my noble friend Lady Berridge, and the noble Lord, Lord Brennan. Certainly, that was our intention, because we were conscious of the concerns that have been raised. I noticed that on the basis of that my noble friend Lady Berridge did not speak to Amendments 15 to 17. I also thank my noble friend Lord Lester for welcoming the Government’s response to the legislative report on the Bill from the Joint Committee on Human Rights. I can assure him that it has been placed in the Library, but I believe that the response is also available in the Printed Paper Office. I am glad that he welcomes these amendments and believes that the legal structure is in place to give the reassurances that have been sought. We have said on many occasions and from all parts of your Lordships’ House, not least from this Dispatch Box, that the security and protection of religious freedom that we wish to give to religious institutions is very much an important part of the architecture of the Bill. I hope that these amendments help to give that reassurance and to reinforce that protection.

Amendments 18 and 19, which the noble Baroness, Lady O’Loan, spoke to and the noble and learned Baroness, Lady Butler-Sloss, referred to, were rehearsed in Committee and I readily recognise the noble Baroness’s wish to explore the same ground again today. The intention of the amendments appears to be to ensure that any religious organisation or individual is not penalised by a public authority simply because they have expressed the view that marriage should be only between a man and a woman, or because they have decided not to participate in a religious solemnisation of marriages of same-sex couples.

It is important to remind ourselves that Section 149 of the Equality Act 2010 places a duty on public authorities to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between people who hold and do not hold particular protected characteristics. It applies to the protected characteristic of religion or belief, not just to sexual orientation, and, as we have already made clear, the belief that marriage should be of one man with one woman is a protected belief. Let me also make it clear that the equality duty is a duty to think, not to act or to produce a particular outcome; it does not require any particular outcome. If, for example, a public authority withdrew its facilities from an organisation or treated an employee less favourably, simply because of the expression of a belief about the marriage of same-sex couples, it would be acting unlawfully, both in failing to apply the duty properly and potentially committing an act of unlawful discrimination under the Equality Act.

Members of your Lordships’ House may recall that when we debated this in Committee, I referred to the decision of the Judicial Committee of your Lordship’s House in the case of Wheeler v Leicester City Council in 1985. That was a case in which the council banned a rugby club from using its ground after some of its members attended a tour of South Africa. The council was using a predecessor of a public sector duty to justify its actions. In that case, the House of Lords held that the decision was irrational; it also found that the decision was procedurally unfair and that therefore there was an improper purpose, which resulted in the council’s decision being quashed. I believe that the same reasoning would apply here.

The noble Baroness, Lady O’Loan, asked me about something that I said during my opening, when I moved the amendment. I am happy to repeat it. Clause 2 will clearly prevent criminal or civil action being taken against any religious organisation or representatives merely for refusing to undertake acts protected under this clause. That includes, but is not limited to—this picks up the point made by the noble Lord, Lord Brennan, that the words in brackets in the amendment are not exhaustive—disciplinary or other action taken in the employment context. In all circumstances, a person who has suffered a detriment simply because they have not done one of the acts specified in Clause 2 will be able to rely on the protections in that clause to show that such conduct is unlawful and to obtain a remedy within the context of the particular claim.

Furthermore, if a public authority is prevented, as Amendments 18 and 19 suggest, from having any regard to an individual’s or an organisation’s beliefs about the marriage of same-sex couples, it would be unable to consider how its own decisions could potentially discriminate against or otherwise disadvantage people who do believe that marriage should only be between a man and a woman. In fact, therefore, it could have the absolute opposite effect from that which I am sure that the noble Baroness seeks to achieve. I believe that that would be an unintended and harmful consequence of the amendment as drafted.

It is our view that an amendment of this kind would be unhelpful and unnecessary and that, rather than amending the legislation, the best way is to ensure that the equality duty is properly understood in the way that it is applied. We will seek to improve the guidance on its use; although, in all honesty, I cannot say that that will be made available before Third Reading. We are currently discussing with the Equality and Human Rights Commission how best to take forward our commitment to review the relevant guidance so as to include clear and helpful guidance for employers and public bodies in the context of this Bill when it is enacted. We will take that work forward as quickly as possible as part of the implementation of the Bill if enacted, although no timetable has yet been agreed. I believe that that is a sensible way to move forward.

--- Later in debate ---

[Lord Eden of Winton]

My Lords, I thank the noble Lord, Lord Dear, for moving his amendment and I support what he said. I have one point to make, which I regard as important. In the real world, the teacher in a classroom often finds him or herself in a somewhat isolated position. It is not always easy to control a class of up to about 30 children. It can be difficult for the teacher to establish fully the nature of what he or she wants to get across. A side example, which appears more regularly than one would wish, is when a teacher has tried to discipline someone in the class. The net result can be—I have recent practical examples of this—that the father of the child takes the opportunity to address the teacher in an abusive and threatening manner. One does not want to see that extended into this realm.

It is most important that the guidance given to the teaching profession is clear on this matter and, more especially, that the guidance is given to the heads of the schools. There are associations in which head teachers are fully represented, and I should like an assurance from the Minister that the guidance will go to all those associations, making it abundantly clear that any teacher who feels as strongly as was indicated by the noble Lord, Lord Dear, and who wishes to refrain from teaching matters with which they are unhappy will be fully protected. I hope to have that assurance from the Minister in her reply.

[Baroness Royall of Blaisdon]

My Lords, we have debated this issue several times throughout the passage of the Bill. I believe it is absolutely clear that while teachers will be under a legal duty, as is right and proper, to teach the law of the land—that gay couples will be able to marry—that does not mean that teachers are going to be able to advocate this as the best form of marriage, and nor are they going to be asked to promote same-sex marriage. These are very different things. It is right and proper that teachers in our country should be expected to teach the law of the land—not to promote or advocate but just to teach.

The noble Lord mentioned conscience. I think that he was talking about opt-outs. It would be totally inappropriate for a teacher to opt out of teaching the law of the land. The noble Lord also mentioned a classroom of 13 year-olds and asked whether the line could be drawn between endorsement and explanation. I have utmost confidence in the ability of teachers to do this. They already do so in many circumstances and I see absolutely no reason why they cannot do this with same-sex marriage. I am utterly opposed to the amendment.

[The Earl of Listowel]

My Lords, my noble friend raises a very interesting question about how teachers will work with this legislation. At Second Reading, the noble Baroness, Lady Stowell, made it very clear that this is a Bill about same-sex marriage. The Government have no intention of dealing with any other issue; this is just about same-sex marriage. However, from our debates this afternoon, I think it is also clear that we agree that for many years marriage has been understood to be the stepping stone to starting a family. For many people, it is the basis for going on to have children. Therefore, it does not seem too far-fetched to think that if a Government bring forward a Bill to introduce same-sex marriage, they may by implication be saying, “We have looked at all the research about the outcomes for same-sex marriage and the outcomes for children growing up with two women or two men as parents, and we are sanguine about the results. We are quite confident now that there are no concerns at all about that fashion of bringing up children”. Clearly, from what the noble Baroness said at Second Reading, that is not the Government’s intention, but I can see that this may be a difficulty—that there may be a popular misunderstanding of the Government’s intention in this Bill. Therefore, we need to make the guidance very clear for teachers. My noble friend cited two concerning cases about teachers coming under pressure because they had a different view from that of their head teachers about what should be taught in this area. A lot of work needs to be done in ensuring that the best guidance possible is offered to teachers.

I reiterate that there are strong feelings on both sides of this issue. Some people feel very strongly that with same-sex parenting there is no difference in terms of outcomes for children, and there are others who are very strongly against it. The science so far does not prove the case either way, but both sides want to twist or bend it to a certain degree to make that conclusion. Therefore, this matter requires a lot of attention. There is a need to think really carefully about the evidence involved and to use it in advising teachers and other childcare professionals about the best framework for the best outcomes for children.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, I also agree with amendment of the noble Lord, Lord Elton. One point made by the noble Lord, Lord Alli, I thought was really quite unnecessary. One does not have to spend much money on a civil ceremony. I have a number of friends, indeed members of my own family, who have got married with just two witnesses. In one case, they asked two people from the street, would they go in and be the witnesses. That was the cheapest possible wedding one could have. I would also like to support marriage in the Bill, at the point which we have now reached. There is a danger of demoting marriage among those who are civil partners. That would be the worst of all worlds. That would be very sad indeed. We should be strengthening every sort of marriage. We have got to that stage. Therefore, the amendment of the noble Lord, Lord Elton, would be entirely appropriate.

[Baroness Royall of Blaisdon]

My Lords, I warmly welcome the fact that the noble Lord, Lord Elton, wants to strengthen the Bill. Like him, I am very much in favour of strengthening marriage, and celebrating marriage at every opportunity. Therefore, I certainly agree with the sentiment of the amendment. Public commitment, made in the presence of friends and family, is an expression of that commitment and of the seriousness of the union that the two people are entering into. However, couples choosing to convert their civil partnerships into marriage, which of course they will not have to do, will already have gone through a very similar process. It is not the same and not with the vows, which I think are extremely important, although not everybody would agree; but they have made a public commitment in the presence of a registrar and witnesses.

Many of the couples who have done that, as the noble Lord himself said, might have wished to marry, but at that time they were not able to so they went through the civil partnership. Like my noble friend Lord Alli, I think that couples should not be required to have a ceremony to convert their civil partnership into marriage. However, for those couples that wish to embark upon marriage then, of course, it is absolutely right and proper. I am sure that when the guidance comes out, when the Government publish whatever they are going to publish in relation to the conversion of civil partnerships into marriage, should a couple wish to exchange vows and marry they will be able to do so. It is just that not every couple will be required to do so. It is the difference between requiring and enabling a couple to do so. I am afraid I cannot agree with the amendment, but I am fully behind the sentiment.

[Baroness Northover]

My Lords, I thank all noble Lords who participated in this mini debate. I particularly thank my noble friend Lord Elton for concerning himself so positively in looking at the conversion from civil partnerships to marriage. I think that the right reverend Prelate may have invited himself to some civil partnership ceremonies now that he has mentioned that he has not yet had such an invitation.

We have previously debated Clause 9 in Committee and the nature of the process that will apply for couples in a civil partnership to convert that partnership to a marriage. I was very grateful to my noble friend Lord Elton for agreeing to withdraw a similar amendment to this in Committee on the basis that it was appropriate to await the Government’s response to the recommendations of the Delegated Powers and Regulatory Reform Committee. I hope that he is pleased with the Government’s decision, which I explained earlier this evening, to accept the Committee’s recommendation on Clause 9, so that the regulations under this clause would be made by the Secretary of State, rather than the Registrar General, and that the first such regulations would be subject to the affirmative procedure, and subsequent regulations subject to the negative procedure. Therefore, we will be debating this further.