Marriage (Same Sex Couples) Bill

Baroness Stowell of Beeston Excerpts

Monday 17th June 2013 Lords Chamber

[Baroness Stowell of Beeston]

My Lords, I am very grateful to all noble Lords. I think more than 30 noble Lords have contributed to this debate on the first group of amendments. We have covered quite a lot of ground and I hope noble Lords will forgive me if I start by reminding the House about the purpose of this Bill. All the amendments in this group go to the heart of the Bill. I acknowledge the point that my noble friend has just made and I will address his specific amendment and others in turn in a moment. The Bill, in part, is about safeguarding the future of the vital institution of marriage by making sure it reflects the modern and inclusive society that this generation of your Lordships’ House has helped create, and which younger generations value and want to see extended.

What we are looking for here is the acceptance of gay men and lesbian women for who they are. That means accepting their relationships on the same terms as we accept all relationships. I hope noble Lords will forgive me if I refer back to a couple of points I made at Second Reading. Clearly, I will not go over all the points I made then. The arrival of civil partnerships had a profound effect on how we, as a society, look at and consider gay couples. Civil partnerships allowed us to see that gay men and lesbian women want to be together for exactly the same reasons as straight couples. I know some noble Lords usually refer to the inability of gay couples to procreate as a way of saying that there must be a difference there because there is a physical difference. However, as other noble Lords have said today and in other debates, that is not a fair distinction. There are couples of the opposite sex for whom procreation is not an option. The longer George Clooney waits to pop the question, the less likely it is that that might be an option for me. If he were ever to extend his hand in marriage to me, I would not want noble Lords to diminish my union with him on the basis that procreation was not a possibility.

We understand that gay couples take their union—I use that word in the broadest sense, rather than specifically in response to the noble Lord, Lord Hylton—as seriously as a man and a woman who want to get married. That is why we have become accepting of them and, for many of us, why we are so comfortable with the idea of gay couples marrying just like the rest of us. I know many noble Lords have said today that there is a minority—some describe it as a majority—outside this House, and indeed there are some inside this House, who do not feel so comfortable. Of course I understand that. However, the evidence shows that the majority of people are quite content for marriage to be extended to gay couples. It is worth reminding ourselves of the speech that my noble friend Lord Norton of Louth made towards the end of Second Reading, when he went through all the various evidence out there. He made the very striking point that among the younger generation there is very high support for and acceptance of gay marriage.

It is also worth reminding ourselves that we can see that gay men and women do not want to change marriage. They just want to be part of something that they, too, believe is important to our society. In terms of the current legislation and civil partnerships, if someone asks a gay man or a lesbian woman whether they are married, to be really accurate they have to say, “Sort of”. They are not legally married, yet they want to be able to say yes. As my noble friend Lord Black made clear, as did the noble Lord, Lord Carlile, this is very important.

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[Lord Higgins]

A curious aspect of this debate is that it is assumed that if there is a distinction between two possible definitions, one is necessarily inferior to the other, and that comes out very clearly. Would it meet her point if there was also an amendment which said the status of both forms of marriage is equal?

[Baroness Stowell of Beeston]

If anybody wished to table an amendment and your Lordships wanted to debate it, I would be happy to consider that debate and respond to it. However, the short answer is that it would not be acceptable because we want only one institution of marriage. That is what we are seeking to achieve. We do not want to distinguish between opposite-sex couples and same-sex couples.

[Lord Mackay of Clashfern]

Before my noble friend moves on from that point, am I not right that different terms are applied to same-sex and opposite-sex marriage at different points in the Bill?

[Baroness Stowell of Beeston]

I think my noble and learned friend referred to this point in an earlier intervention. I will probably cover it a little later, but I think he is referring to Clause 11(1), which states:

“In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples”.

That does not introduce a distinction between two different kinds of marriage.

As I understood the noble Lord, Lord Dear, to say, Amendment 9 in his name is intended to define the marriage of a man and a woman as a traditional marriage, and have that marriage registered as such by the Registrar General in a separate register. Traditional marriage of the type he is putting forward could be formed only by opposite-sex couples. Therefore, this amendment would create an unwelcome distinction in the institution of marriage. As I stated at Second Reading, the introduction of same-sex marriage does not redefine any existing or future marriage of a man and a woman. It is not necessary to protect that status.

[Lord Dear]

Does the noble Baroness agree that what I propose is, in very simple terms, a purely permissive provision that would retain the new legal definition of marriage as introduced by the Bill? It goes very much with the Government’s line on this and does not seek to change it at all. It would simply set up within that new definition the possibility of the couple getting married declaring their marriage in a form which is acceptable to them and having that registered in a register—a side register, if you like—that the registrar can keep. As I say, the provision would work permissively within the Bill and not upset it at all, but would satisfy the 98%, shall we say, who want the comfort of staying with what they understand to be traditional marriage.

[Baroness Stowell of Beeston]

Although I understand perfectly what the noble Lord is saying, the amendment would still create that separation and distinction that somehow one group is different from another and, therefore, we have to keep them apart. That is what we are trying to avoid. That is what we do not want to do.

Amendments 33 and 34 give us an opportunity to discuss—

[Lord Lester of Herne Hill]

I am grateful to the Minister for giving way. Will she ask her advisers why the separate but equal doctrine that is being propounded in some parts of the House was struck down by the American Supreme Court in Brown v Board of Education as being inherently discriminatory?

[Baroness Stowell of Beeston]

I shall certainly seek advice on that, but I have a feeling that my noble friend would be able to help me answer the question he has posed. I will certainly endeavour to respond to that point while I remain on my feet.

Amendments 33 and 34 give us an opportunity to discuss Clause 11. It may be helpful if I explain briefly what Clause 11 does. It is a significant clause to ensure that existing and future legislation in England and Wales will be interpreted so that all references to marriage and related terms will be read as applying equally to same-sex married couples unless specifically provided otherwise. This is right and necessary to ensure that all married couples are treated generally in the same way. The clause also gives effect to Schedule 3, which makes further provision for the interpretation of references to marriage in both new and existing legislation in England and Wales. It also gives effect to Schedule 4, which sets out particular instances where the effect of Clause 11 would give the wrong result.

I turn to Amendment 33—

[Lord Mawhinney]

My Lords, I am grateful to my noble friend. I understand that she just wants marriage without any bells or whistles—just marriage. Will those people who are not politicians or lawyers, and who may use the phrase “same-sex marriage” or “traditional marriage”, now be exposed to the charge of committing a hate crime?

[Baroness Stowell of Beeston]

Absolutely not. I was going to come on to respond briefly to the points that my noble friend raised. However, I am happy to make clear now that I will move an amendment to make it absolutely clear that that is not the case—not that it would have been anyway, but I am happy to clarify that. Furthermore, nothing in the Bill prevents anybody using any kind of terminology they choose to use in the course of their conversations, whether in public or private. The Government seek to ensure that we do not introduce distinctive terms into this legislation which separate out different people. That is the key difference.

Amendment 33 in the name of my noble and learned friend Lord Mackay states that Clause 11 should be:

“Subject to the later provisions of this Act”.

However, as I said, Clause 11 gives effect to Schedule 4, paragraph 27(2)(a) of which makes Clause 11 subject to contrary provision made by,

“the other provisions of this Act”.

That achieves the effect that my noble and learned friend’s amendment appears to seek and so renders it unnecessary. My noble and learned friend also referred to the presumption of parenthood and to adultery and raised important points about both those matters. We shall discuss later amendments on these issues so it is probably more efficient for me to come back to those at the appropriate time.

As I have just said, we believe that Amendment 34 in the name of my noble friend Lord Mawhinney is unnecessary. Although we reject any designation that would create two tiers of marriage because there is only one form of marriage, Clause 11 does nothing to prevent anybody using any terms, including “traditional marriage” or “same-sex marriage”, if they choose to do so. As I have described, the clause interprets terms related to marriage for legal purposes; it does not prevent individuals or others making reference to, or supporting, traditional marriage. It is worth referring to the powerful intervention by my noble friend Lady Noakes on difference and the fact that there is a lot of difference in marriages, as other noble Lords have said. Some married people have no children, some stay married for life and others divorce. We do not apply different labels to those kinds of marriages and that is not something that we want to do in the Bill.

[Baroness Cumberlege]

My Lords, I am very interested in what my noble friend said about people being able to say what they want without fearing retribution, as it were. I should like to bring to the noble Baroness’s attention the case of Adrian Smith, the housing officer who was demoted by a housing authority for expressing the view, in his own time and on his personal Facebook page, that same-sex marriage was an equality too far; and to that of Brian Ross, the police chaplain who was forced out of his job for stating his opposition to the same-sex marriage proposals. I could go on. Can my noble friend tell me where there are safeguards in the Bill to prevent that happening?

[Baroness Stowell of Beeston]

There are safeguards in the Bill as the Equality Act makes it clear that it is possible for people to express their religious or other beliefs in a manner that is absolutely of their choosing as long as that is done without inciting hatred or is not expressed in the workplace in a way that might damage an employer’s reputation. However, given that we shall come to a large group of amendments on this issue, and there is quite a lot that I can say at that point which I think will reassure my noble friend, I hope she will allow me to respond to that issue in more detail on that later group of amendments. I think that would be the best thing for me to do.

The amendments tabled by the noble Lord, Lord Armstrong of Ilminster, proposed that marriages for opposite-sex couples be classified as “matrimonial” marriages—again creating, I would argue, separate institutions for marriage of opposite-sex and same-sex couples. Others have commented on that word “matrimonial”, which does not seem to have attracted a great deal of support around the House. For us, again, as a matter of principle, that is something that we would be unable to accept. I know that the noble Lord is genuinely concerned that the current law on marriage might alter as it applies to opposite-sex couples when this Bill comes into force, but I can assure him that this is not the case.

The Government do not believe that any new legal status or subdivision for marriage is either necessary or right. There is one legal institution of marriage in England and Wales, which, through this Bill, all couples will be able to join by either a religious or a civil ceremony. The existence of marriage for same-sex couples does not alter the marriage of opposite-sex couples. Nothing in this Bill affects the marriage of opposite-sex couples in any way. Regrettably, these amendments would deny same-sex couples the fairness that this Bill is designed to achieve. I therefore ask the noble Lords not to press their amendments.

I repeat to noble Lords concerned about freedom of expression and freedom of speech matters that this Bill most clearly protects freedom of speech and freedom of expression.

[The Archbishop of York]

My Lords, first of all, I thank noble Lords for wishing me well in my recovery and on being back in the House. To answer the noble and learned Lord, Lord Mackay, on the question of whether even in the Bill itself some distinction is drawn between same-sex marriage and opposite-sex marriage, I would say that a distinction clearly is made in Schedule 4, Part 3, on the divorce and annulment of marriage. It states under the heading “Divorce”:

“Only conduct between the respondent and a person of the opposite sex may constitute adultery for the purposes of this section”,

but when it comes to annulment, that does not happen, so already there is an acknowledgment of some kind of distinction between the two types of marriage. I do not think it is right to say that there is no distinction.

Furthermore, although Clause 11 says that marriage is being extended, the particular definition of marriage and the way in which the Church of England has perceived it and teaches it are also very different, so I am not so sure that you can deny that even in the Bill there are some distinctions.

[Baroness Stowell of Beeston]

The most reverend Primate referred to divorce and annulment. We are not changing the definition of “annulment” because it is an historical definition that is linked to procreation. As I said at Second Reading and again today, clearly there is a distinction between same-sex couples and opposite-sex couples because procreation is not available to same-sex couples. We are not seeking to change the definition of existing marriage law and how it applies to opposite-sex couples. We think it is perfectly proper for that distinction to remain as it is and not be changed in order to apply to same-sex couples, because that would render it meaningless.

[The Archbishop of York]

What about adultery?

[Baroness Stowell of Beeston]

Again, amendments on adultery are coming up. I do not know whether we will get to them today. I am really looking forward to that debate. It is going to be great. I urge noble Lords to come back on it. We should be selling tickets for it. I will be able to cover that issue in detail at that time.

[Baroness Berridge]

Will my noble friend the Minister clarify the position on annulment? This matter appeared in a letter written to Peers. My understanding of annulment is that it is not connected to procreation. You can have an annulment of a marriage even if you get married at 65. It is not directly related to procreation.

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[Baroness Stowell of Beeston]

If my noble friend will forgive me, although I responded to the most reverend Primate on this topic, this topic is quite a point of detail and we will be debating it later at great length, so rather than trying to flick through my briefing folder now to find specific answers, when we have that debate I will be absolutely prepared and armed to respond to her at that time.

[Lord Stoddart of Swindon]

On that point, in the case of a heterosexual marriage, annulment depends on consummation, not procreation. In those circumstances, since that will not apply to same-sex couples, there is no equality in this Bill.

[Baroness Stowell of Beeston]

The noble Lord has done me a great service because he reminds me that I was wrong in the connection that I made to procreation. That is why it would be much safer if we debated this matter when I have the right speaking notes in front of me. I am grateful to the noble Lord.

I can, however, respond to the question from my noble friend Lord Lester. This was a US Supreme Court case that ended the bussing of children to segregated schools in the USA. I am wary of making a direct read-across, but my noble friend makes a point that is very worthy of consideration: that separate but equal can be a cloak of inequality.

I think I have covered all the points raised in the debate, so I ask the noble Lords whose amendments we have been discussing not to press them.

[Lord Hylton]

My Lords, I am honoured and pleased that my amendment should have paved the way for such a profound, important and long-lasting debate. I think that very many of us have been doing our best to find a common ground for honourable, long-term relations between couples of whatever kind. I hope that the Government accept that point. For my part, I have come to the view that other amendments in this group, and indeed in the fourth group on the Marshalled List, point the way better than mine to the ways in which we can continue to seek improvements to the Bill both in Committee and in the later stages. I therefore beg leave to withdraw Amendment 1.

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[Baroness Thornton]

My Lords, we have had another interesting and informative discussion.

I wonder how much confusion there is about the fact that when we disagree with each other, that is okay; that it is okay to disagree with each other quite vehemently; and that it is all right to express those vehement disagreements. Our view on these Benches is that the law recognises that that is exactly right. It took me back to the passage of the Equality Act 2010, when the interventions of the noble Lord, Lord Lester, made precisely the point that needed to be made about the protections that existed. Those protections do exist. The fact that they are tested from time to time, and that people on both sides do silly things with them from time to time, does not mean that they are not valid protections; they are very valid protections indeed.

We believe—and the Commons agreed in its debates—that there is no need for additional protection under the Equality Act 2010. It is not necessary. There is already protection for people’s religious beliefs in law, which encompasses views about marriage. It would also be invidious, because it would make the only specific belief that has protection under this part of the Equality Act one that defines marriage as being between a man and a woman. I will return to that.

It is worth saying that Amendment 19 would make a particular viewpoint on marriage, which could be held by people with or without religious beliefs, the only belief that was expressly protected from discrimination on the grounds of religion or belief, elevating it above any other belief. This could have exactly the opposite effect to that intended by the noble Lord, Lord Singh, since a person who believes that the definition of marriage as being between a man and a woman is wrong would also be protected. Therefore, it may do exactly what the noble Lord does not want it to do.

As I said during the debate, the Equality Act 2010 is a carefully considered piece of legislation, which balances the rights of one protected group against those of another. Sexual orientation and religion or belief are both protected characteristics under the Equality Act, meaning that it is illegal to discriminate against someone on the grounds of their sexual orientation or their religion.

The Equality Act already takes care to provide protections for the beliefs of those with a religious faith, including on issues of sexual orientation and marriage. For example, guidance accompanying the Equality Bill, states:

“In the case of Ministers of Religion and other jobs which exist to promote and represent religion, the Bill recognises that a church may need to impose requirements regarding sexual orientation, sex, marriage and civil partnership or gender reassignment if it is necessary to comply with its teachings or the strongly held beliefs of its followers”.

It is completely clear that the law already exists to protect those views and their expression. Religion and belief are protected characteristics under the Act. It means that we cannot be discriminated against for holding or expressing those beliefs. On these Benches, we did not think that the government amendment was necessary, as my noble friend Lord Alli mentioned, but we understand that the Government are acting in good faith on a commitment made by a Minister in another place. Therefore, we accept that the Government are bringing the amendment forward with the best of intentions and that it certainly does no harm. If it gives people peace of mind, that is only to be welcomed.

I will not go through the rest of the amendments because I suspect the Minister will do that extremely well—and it is nearly dinner time.

[Baroness Stowell of Beeston]

My Lords, I am grateful to all noble Lords who have spoken in this very important and helpful debate. May I say first that I am grateful to the noble Lord, Lord Alli, for repeating what I said at Second Reading? The Bill absolutely makes it lawful, and continues to make it lawful, for people to believe that marriage should be only between a man and a woman. It is their right to express that belief and the Bill does nothing to change that. I am also grateful to the noble Baroness, Lady Thornton, and my noble friend Lord Lester for what they said about the Equality Act protecting people who have a range of religions beliefs but in this context hold the belief that marriage should be between a man and a woman and are free to express that belief. It is important that I continue to make that clear.

I also recognise, however, that people are looking for reassurance and want to know that it is perfectly legitimate to continue to hold the beliefs that they have always held, and that they will not be in any way disadvantaged because of these beliefs—or, indeed, that it would be unfair for people to criticise them in any way, although clearly it is free for anybody to express an opinion that is contrary to that view.

As the noble Baroness, Lady Thornton, mentioned, the Government are bringing forward an amendment to the Public Order Act. I will speak to that in a little more detail when I take the amendments in turn. We felt that it was important for us to do this as we recognised the need for assurance and because it was possible to make that amendment to the Public Order Act without causing any detriment to anybody. We really do understand that people are looking to us for assurance.

The amendments have clearly enabled us to explore issues of conscience in relation to the Bill, and it is right that we should do so. Let me start with Amendment 5, which was moved by my noble and learned friend Lord Mackay of Clashfern. He seeks to explore how the Bill could impact on those seeking appointment to a public office—such as appointment to the board of a non-departmental body. The amendment seems to be based on the premise that, should the Bill be enacted, anyone expressing a belief that marriage should only be between a man and a woman might somehow be excluded from appointment to public offices.

I can reassure noble Lords that this is certainly not the case. This Bill is not about forcing people of faith to change their religious views, practices or teachings about marriage. The belief that marriage should be between a man and a woman is, and will continue to be, mainstream and entirely lawful. Indeed, the Bill explicitly makes clear that such a belief is legitimate and mainstream through the specific protections it provides to ensure that religious organisations and their representatives who do not want to participate in same-sex marriage ceremonies cannot be compelled to do so.

Public appointees, like anyone else, are and will remain free to express their religious or philosophical beliefs as long as this does not affect their ability to do their job.

[Lord Anderson of Swansea]

The noble Baroness is making a very important point. She will know that concern has been expressed about the conduct of various authorities in the past—certain councils, certain police authorities and so on. What assurance can she give the House, in the spirit of the assurances that she is now giving, that adequate guidance will be given to these authorities so that we do not have a repetition of how poor individuals have been pilloried in the past?

[Baroness Stowell of Beeston]

I am about to come to the specific examples that have been raised. I hope I will also give the noble Lord some comfort by saying that we are working with the Equality and Human Rights Commission to review its guidance and ensure that revised guidance is issued. It is also looking at its statutory codes in this area. I accept, as has been pointed out by noble Lords in this debate, that we need to make sure that public bodies in particular—although not just public bodies—are clear that it remains absolutely lawful for somebody to express their belief in this way. We want to make sure that that is clear to them. The Equality Act 2010 provides express prohibition against discrimination because of religion or belief. This includes a religious or philosophical belief that marriage should be only between a man and a woman. This protection applies in relation to public appointments and to employees.

I move on to Amendments 7 and 8, tabled by the noble Lord, Lord Dear. I am grateful for his explanation although, on the face of it, the scope of these amendments is not entirely clear. However, it would certainly include a range of public authorities and religious organisations, and would potentially extend to commercial service providers. Like the noble Lord’s amendment in the earlier group, these amendments would effectively create two tiers of marriage—a point made, I think, by the noble Baroness, Lady Turner—with marriages of same-sex couples on a lower tier. That would undermine the fundamental purpose of the Bill, which, as I made clear in earlier debates, is to extend the single institution of marriage to same-sex couples.

Of course, there are circumstances in which individuals need strong and effective protection in order for religious freedom to be safeguarded. For example, a clergyman should not be compelled to solemnise the religious marriage of a same-sex couple against his conscience. We all agree about that, and the Bill provides that protection through the explicit protections already contained in the quadruple lock.

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[Lord Brown of Eaton-under-Heywood]

Before the Minister answers that, I should like to be clear on whether the noble Lord, Lord Dear, is suggesting that it is open to a registrar who objects to same-sex marriages to desist from performing a same-sex marriage.

[Baroness Stowell of Beeston]

I am grateful to the noble Lord, Lord Dear, for his intervention but I disagree that it is legitimate for, say, a housing officer to withhold his services or, rather, to withdraw participation in an aspect of his job on the basis of his religious beliefs, although he is absolutely within his rights to express his religious beliefs at work. In an earlier debate, the noble Lord and others, including my noble friend Lady Cumberlege, raised the case of Adrian Smith. We must not lose sight of the fact that, as my noble friend Lady Barker made clear, Adrian Smith won his case. I absolutely understand the point made by noble Lords that it is regrettable that people sometimes have to go through that process in order for the law to be made clear, and I wish that that never happened. However, I am grateful that the law exists, so that somebody with a strong case that they are being unlawfully discriminated against can be successful in bringing a case, as illustrated by that example.

In this area, it is also worth referring to another example—raised, I think, by the noble Lord, Lord Dear, but certainly by others—concerning the Reverend Brian Ross, who was a volunteer police chaplain for Strathclyde police. It is difficult to comment on an individual case without knowing the full facts but the religious protections in the Bill make it clear that belief that marriage should be between only a man and a woman is legitimate and mainstream.

The amendments of the noble Lord, Lord Dear, also appear to have the effect of elevating the belief that marriage should be between only a man and a woman over all other religious or philosophical beliefs which people hold and which are deserving of equal respect under the law. A belief that marriage should be between a man and a woman is undoubtedly worthy of respect in a democratic society. As such, it is already protected under the religion or belief protections in the Equality Act 2010 and under Article 9 of the European Convention on Human Rights. It is therefore unlawful to discriminate against someone simply because they hold this belief.

The determination of whether there has been unlawful discrimination under the Equality Act is always a matter of balance, depending on the facts of the case. The noble Lord’s Amendments 7 and 8 would, I believe, disrupt that balance. An employer must be able to insist that employees carry out their work in a reasonable and professional manner. If, for example, a chauffeur for a commercial car hire company arrived at a wedding and decided that he would not drive the couple because they were of the same sex, that would amount to unlawful discrimination and would leave the employer open to a claim on that basis. It would also affect the employer’s business. It is right that the employer should be able to take action against the employee in those circumstances. However, Amendment 7 would prevent the employer doing so and therefore I believe that it goes too far.

[Baroness Cumberlege]

I am very interested that my noble friend has touched on the commercial world. Can she comment on the Christian organisation that had its conference at the Queen Elizabeth II Conference Centre banned with less than a day’s notice because the organisation’s support for traditional marriage was deemed to contravene the centre’s diversity policy?

[Baroness Stowell of Beeston]

Yes, my Lords. I would have come to that once we reached a later amendment. My noble friend Lord Waddington also raised that as an example but I shall deal with it here. Unfortunately, I understand that these cases are the subject of ongoing litigation, so it would not be appropriate for me to comment on them. However, the Equality Act protects against discrimination because of religion or belief in the provision of services. I regret that I cannot comment on that specific point but, again, I stress that the law is clear in this area.

[Lord Elton]

I am sorry but I am not sure that I follow the noble Baroness. The law is clear that this should not have happened. Is that right or in what respect is it clear?

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[Baroness Stowell of Beeston]

I am afraid that it is not possible for me to respond directly to that question because the case is still live and subject to litigation. I hope that my noble friend will forgive me.

Amendment 8 in the name of the noble Lord, Lord Dear, seems to be aimed at addressing concerns aired here and in the other place that public authorities might overreact to expressions of belief in traditional marriage. This was raised by the noble Lord, Lord Anderson. Not only would the amendment require public authorities to treat people fairly but it would impose a specific duty in respect of this one belief, which could result in the marriage of same-sex couples being placed on a lower tier or being considered as somehow not of the same status as marriage of opposite-sex couples.

Together, Amendments 7 and 8 would allow the owner of a hotel approved for the solemnisation of marriages to refuse to host marriages of same-sex couples, and the registration authorities and even the courts would have to allow him to do so. We believe that that would be both confusing and wrong.

Amendment 9 would also require those exercising public functions to consider a particular belief about marriage, regardless of the function being exercised. This would be overburdensome and unnecessary. How would this be relevant for a person exercising parking or traffic enforcement functions or a person exercising functions relating to rubbish collection?

Another difficulty arising from both these amendments is that, by focusing on protecting a particular belief about marriage, they could cast doubt about the protection afforded to people who hold similar views on other issues, such as civil partnerships or same-sex relationships generally. Such a focus could suggest that such views were not protected by the Equality Act. The point there is basically that, if we are specific about this but not specific about other things, arguably we are then putting other beliefs in doubt.

We believe that the proper way to consider issues of protection of conscience in relation to people who exercise functions connected to marriage is to do so in each particular context: civil registration, employment, religious organisations and so on. That is what we have done. We will shortly debate the amendment from my noble friend Lady Cumberlege, which would introduce a conscience clause for civil registrars.

In the preparation of the Bill and during the debates here and in the other place, we have listened to concerns about whether the protections could be strengthened. One thing that we have done is to amend the Bill to provide additional protection for employed chaplains—for example, hospital or university chaplains—who do not wish to carry out or participate in the religious marriage ceremony of a same-sex couple.

Amendment 19 from the noble Lord, Lord Singh, seeks to amend the religion or belief provisions in the Equality Act to make explicit that a belief that marriage should be between a man and a woman is included within it. I am pleased to reassure the noble Lord that there is no need to change the Equality Act in the terms set out in the amendment. Amending the protected characteristic of religion or belief by specifying a particular belief about marriage would cast doubt, as I have just said, on other religious or philosophical beliefs that are also protected by the Equality Act, and could therefore lead to confusion about how the protected characteristic of religion or belief is generally protected.

Moving to Amendments 53 and 54, Amendment 53 is a government amendment, similar to one debated in the other place in Committee and on Report. The Government gave a commitment on Report in the other place that we would come back with our own amendment, and I am happy to do so now. This amendment is intended simply to put beyond doubt that the Public Order Act 1986 offences regarding stirring up hatred on the grounds of sexual orientation do not outlaw the reasonable expression of the view that marriage should be between a man and a woman, which remains a perfectly legitimate view. It is appropriate to make this amendment because there is already a similar provision in Section 29JA of that Act concerning discussions about sexual conduct or practices. The current wording of Section 29JA would not however cover discussion of same-sex marriage, and that is why we are making the amendment. It is conceivable that some people might be in doubt as to whether discussions of same-sex marriage were to be treated differently from discussions of sexual conduct and practices, in so far as those two topics are linked. For example, my noble friend Lady Barker referred to the demonstration in Brighton by a church on the day of the Gay Pride march. If the church wanted to demonstrate against same-sex marriage, it would be perfectly lawful. This amendment makes that clear. However, let me at the same time be absolutely clear and reassure the House that this amendment does not allow hate speech. If the manner in which something is expressed is threatening and intended to stir up hatred, that would still be an offence. The amendment refers to the content of what is said, not the manner in which it is said. It makes clear that that subject matter is a legitimate one for discussion and it is right to do that only because there is an existing provision covering discussion of sexual conduct or practices.

I turn briefly to Amendment 54 in the name of my noble friend Lady Berridge.

[Lord Dear]

Before the noble Baroness leaves the Public Order Act 1986, will she clarify that that Act relies on the definition of a public place within it and that it is therefore applicable only to the criminal law and not the civil law?

[Baroness Stowell of Beeston]

Yes, I can confirm that it relates only to criminal law.

Returning to Amendment 54 from my noble friend Lady Berridge—

[Lord Lester of Herne Hill]

Can my noble friend confirm, so far as the civil law is concerned, that what I said about the Human Rights Act, freedom of speech and freedom of religion applies equally to the civil law?

[Baroness Stowell of Beeston]

Absolutely. I am grateful to my noble friend for making that clear and glad to confirm that he is right.

I cannot accept Amendment 54 because the drafting could give the impression that the law is not to be applied even-handedly, which I know is not what my noble friend intended. It also goes further than we believe is necessary. I hope she will agree with me that our own amendment meets the need.

I therefore ask my noble and learned friend Lord Mackay of Clashfern to consider withdrawing his amendment.

[Lord Singh of Wimbledon]

Earlier the noble Baroness mentioned that if a chauffeur turns up at a wedding and will not take part any more because he finds that the people involved are gay, then the employer has some legitimate grounds for disciplining them. Suppose that same person had expressed a view, within the confines of his employment, that he thought gay marriage was wrong and was then asked to go on this particular trip, what would be the view then?

[Baroness Stowell of Beeston]

The chauffeur would be entirely legitimate in expressing the view, whether at work or outside work, that marriage should be only between a man and a woman. However, as I said to the noble Lord, Lord Dear, in the context of the example of a housing officer, it would not be legitimate for the chauffeur to withhold or withdraw from his employment, in terms of what he is paid to do, on the basis of that belief. His employer should be able to pursue that in a way he felt appropriate because he had employed that person to chauffeur people in accordance with the way in which such services are offered commercially.

[Lord Singh of Wimbledon]

I am sorry but the point I am making is: if the employer had deliberately asked that person to do something, knowing it was against his conscience, what would be the view?

[Baroness Stowell of Beeston]

He may have only one driver. It may be a very small firm and the only driver available is that driver. It is not possible for us to legislate. The employer might turn around and say that he has a team of people and that he is quite happy with that arrangement. Outside a public authority, I cannot give the noble Lord a definitive response to the kind of scenario that he is painting. It is absolutely clear that it would be legitimate for that person to express their view, but not for them to say that, because they hold that view, they therefore do not have to do what they are employed to do. I hope that is clear for the noble Lord.

[Lord Anderson of Swansea]

Would it be legitimate for an employer to dismiss from employment as a chauffeur someone who had expressly told him at the time of employment that he was not prepared to convey people at a same-sex marriage?

[Baroness Stowell of Beeston]

We are now getting into so many different hypothetical scenarios—

[Lord Lester of Herne Hill]

Before the Minister answers that question, I wonder if I can give some free advice. The answer to that question is fact-sensitive. It all depends on the terms of engagement. There are cases that uphold freedom of conscience in certain situations but no one can give a categorical answer without knowing the facts of the particular case. There are plenty of former judges here to nod their disagreement if what I have just said is wrong.

[Baroness Stowell of Beeston]

I think I will take my noble friend’s free legal advice and refer the noble Lord, Lord Anderson, to it. On that basis, I hope that I will be able to convince my noble and learned friend, who is also a very experienced lawyer, to withdraw his amendment.

[Lord Mackay of Clashfern]

My Lords, I have been waiting for some time to intervene to prevent my noble friend having to answer all these questions but the priorities of the House required me to give effect to those who wanted to speak. We have had a very full debate and I thank my noble friend for the very detailed answers she has given on all the issues that have been raised. I am sure we will want to read very carefully what has been said. In the mean time, I am extremely happy to withdraw my amendment.