Marriage (Same Sex Couples) Bill

Baroness Stowell of Beeston Excerpts

Wednesday 19th June 2013 Lords Chamber

[Lord Dear]

I am so sorry. Perhaps I may directly address the Front Bench. We agreed that we would try to hurry this through—and of course we have failed in that. I certainly do want to speak to Amendment 24, having moved Amendment 23. I thought that we agreed that I would then go straight on to Amendment 24 and take that as well. I want to discuss it. However, I am also conscious of the time. It is fast coming up to half past 10. I am in the hands of the Committee as to how we handle this.

[Baroness Stowell of Beeston]

I apologise to the noble Lord if I was in any way unclear when we discussed this. I thought, from our last conversation, that we were going to debate both amendments together as a single group, and that is what I was intending to do in responding to this debate. I think that there is real merit in doing so because there are things relevant to the noble Lord’s second amendment which help me to address some of the points that have been raised by my noble friends, particularly points raised by the noble Lord, Lord Eden. My intention is to cover both amendments in my response.

[Lord Dear]

If it is the will of the Committee I will move on to Amendment 24. Yes, the Front Bench is nodding.

Amendment 24 stands in my name as well and I will try to be fairly brief; I can certainly be briefer than I was before. Because of their religious or other convictions, many parents will not want their children to learn about same-sex marriage before a certain age, fearing that they will find it confusing. Others may be concerned that teaching on the subject will not be balanced or might not respect their own convictions on the matter.

Parents, as we all know, have the right to withdraw their children from sex education. However, same-sex marriage could be included in a range of other subjects, across the curriculum, to which the right of withdrawal does not apply. For example, there is no right of withdrawal from history lessons and there has been a growth of schools taking part in LGBT History Month lessons within the last few months.

Stonewall, the leading gay rights group, promotes an extensive list of materials on same-sex marriage for use in primary schools. These resources cover subjects much wider than just sex education. A teacher training guide, also produced by Stonewall, suggests that primary school children could perform some of Stonewall’s recommended story books as school plays. An accompanying teacher training DVD, which was produced with the support of the Training and Development Agency for Schools, suggests that pupils must become “resilient”—and that word is lifted directly from its literature—to the values of their parents and grandparents. This is quite clearly an indirect reference to some parents and grandparents who may have objections to issues such as gay marriage.

There is a danger that without an extension of the right of withdrawal, the deeply held beliefs of parents will be undermined, as will their ability to have their children educated in accordance with their own convictions. Article 2, as some of us know, of the first protocol of the European Convention on Human Rights will be weakened. I could give a number of examples where this sort of thing has happened—I am conscious of the time and of the fact that the House wants to progress—but suffice it to say that there are already examples in this country, and abroad, where children have sought to be removed from school because of this sort of thing, and the council has told the parents that action would be taken against them unless the children were returned to school. It has happened in Waltham Forest in east London and it has happened abroad in Massachusetts.

I am galloping through very fast, and I would have liked to develop the argument to greater effect, but Amendment 24 gives a parent the right to withdraw a child from any lesson that includes teaching about same-sex marriage. It also requires the school to notify the parent a week in advance of those lessons, because being informed in that way is obviously crucial to the effective operation of the right of withdrawal.

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[Baroness Stowell of Beeston]

My Lords, as I said to the noble Lord, Lord Dear, I am grateful to be able to respond to his Amendments 23 and 24 together because some of the issues arising from his second amendment will help me address some of the concerns that have been expressed in this debate by my noble friends.

The noble Lord, Lord Dear, and my noble friend Lord Waddington quoted quite extensively from what I said at Second Reading. Clearly I am not going to repeat that and quote myself but I will be relying on the same facts that I relied on at Second Reading because they are the facts as they are. I want to be clear from the start that I recognise the concern that there is out there and among some noble Lords who have spoken this evening. I feel the passion that was expressed by my noble friend Lord Eden and recognise that it is a real concern. Therefore, there is a responsibility on me to respond from the Dispatch Box and acknowledge that concern. I am grateful for the opportunity to do so.

My noble friend Lady Barker asked me a direct question about whether the Bill changes anything in respect of the guidance that currently exists for teachers on how to teach sensitive issues under the heading of “sex and relationship education”. No, it does not. I should note at this point that there is a later amendment, Amendment 46B in the name of the right reverend Prelate the Bishop of Ripon and Leeds and my noble friend Lady Cumberlege, which relates to religious freedom for faith schools and it is directly linked to Section 403 of the Education Act 1996, which has been quoted by noble Lords in the course of this debate. So I will return to that issue on Monday and, while I hope to be clear and comprehensive in responding to these amendments, this is not the only debate we will have on education in Committee.

Amendment 23 would have broad application to all teachers in all maintained schools. I must stress, as has already been said by the noble Baroness, Lady Thornton, that no teacher is under any obligation to endorse a particular view of marriage or would be in the future as a result of the Bill. Teachers are and will continue to be free to express their personal views or those of their faith about marriage or any other matter, provided they do so in a balanced and sensitive way. There is a significant difference between expecting a teacher to explain something and expecting them to endorse it. Teachers are required to explain the world around them in a way that is appropriate to the age and level of understanding of their pupils. This includes explaining some things which may be controversial and with which they may not necessarily agree. The examples that have been used tonight in debate include divorce and contraception. As many noble Lords have said, teachers are already very experienced in dealing with such issues and do so admirably and professionally. The noble Baroness, Lady Farrington, gave a powerful illustration of how teachers handle these complexities already. They are required to ensure that their teaching is balanced and they take care to ensure that there is no stigmatisation of children based on their home circumstances, their own sexual identity or their own views and beliefs. Teachers are not prevented from discussing their own views, provided they do so in an appropriate way. It is worth reminding ourselves that there are children in classrooms today who are struggling with their sexual identity. This is not just about the teacher; it is also about the pupils and how they respond to the lessons that they receive.

A lot has been said today about tolerance and courtesy. My noble friend Lord Waddington raised the need for that in the context of this debate—we have to continue to respect differences of opinion. I understand the point that my noble friend makes in this context and it has been acknowledged on all sides of the House. As the noble Baroness, Lady Farrington, said, that is precisely what we want children to learn through professional teaching explaining the differences that exist in our society. This is not just about the tolerance that we expect of each other in debating these issues. We want to help our children be tolerant and to respect one another. That is an important part of this process.

The noble and learned Baroness, Lady Butler-Sloss, expressed a concern about teachers being criticised by the same-sex parents of a pupil for expressing their personal view that they do not believe in the marriage of same-sex couples. However, that kind of scenario could happen now in the context of civil partnerships. I therefore go back to the debate that we had on Monday about the law protecting people against others who might not understand their freedoms. Clearly we have a responsibility to ensure that people are aware of and understand the freedom that everyone has to express their views, and it is perfectly legitimate for a teacher in a classroom to be able to do that. If it happens that someone decides to pursue a case against someone else, the law exists to protect them from inappropriate discrimination.

Schools, like any other employer, have responsibilities to their employees under equality and employment law. Teachers, like other employees, are protected from being discriminated against or harassed because of their religion or belief. As I have made clear, this includes a belief that marriage should be only between a man and woman. I forget now who it was but it may have been the noble Lord, Lord Dear, who said that they can express that opinion to each other as teachers in the common room or express that belief in the classroom. It is clearly wrong, as I have stated many times, to say that, because someone believes that marriage should be only between a man and woman, that means the person is homophobic. That is not the case, and I will keep saying that because it is important that we help people to know that it is not the case.

In this context, as I have also said in the context of other debates, the Equality and Human Rights Commission’s statutory codes and guidance, particularly where they relate to public bodies, will help us to ensure that this understanding is widespread. No teacher is obliged to endorse a particular view and no school should disadvantage a teacher because he or she does not do so. If a teacher feels that he or she has been treated unfairly, procedures are in place for them to seek redress. I would hope that the first step would be to take this up through the appropriate channels at school level.

The noble Lord, Lord Dear, gave a range of examples that he had been informed of where he felt that some teachers were being treated unfairly. I feel that the process and the protection are there for any teacher who may feel that they are being treated unfairly, but it is worth pointing out that the Bill that we are discussing now has not become an Act. This Bill is not what is affecting those teachers of whom the noble Lord has been made aware. Those situations predate what we hope will become an Act in the future.

I turn to the noble Lord’s Amendment 24, which is about parents having the ability to withdraw their child from lessons. Parents already have the right to withdraw their child from any or all aspects of sex and relationship education, including any teaching about marriage, with the exception of those specific topics that form part of the national curriculum for science, covering biology and reproduction. Parents also retain the right to withdraw their children from any and all parts of religious education and acts of collective worship. That is not affected by the Bill.

If a school chooses to cover aspects of teaching that are outlined in the Secretary of State’s guidance on sex and relationship education—further to that outlined in the national curriculum in a biology lesson, for example—then parents have the right, and will continue to do so in future, to withdraw their children from those aspects. This is where that matter relates to the issue that my noble friend Lord Eden raised about material. It is important to remind the House that parents should be fully consulted about the school’s approach to sex and relationship education to ensure that they are comfortable with what is being taught. This should include both the content of lessons and the context in which it will be presented.

I further reassure the House that such information is already available for parents. Schools are required to have a written policy on sex and relationship education and that policy must be available to parents on request. What is being taught in this context should include parents. They should be able to understand it, and it should inform their decision as to whether their children should be involved in sex and relationship education—although we would urge that all students be allowed to participate in those lessons because of the benefits we believe they can derive from them. I note the view expressed by the noble and learned Baroness, Lady Butler-Sloss, about ensuring that all students are included.

As regards teaching that is not part of sex and relationship education or religious education, there is no right for parents to withdraw their children from lessons, because the national curriculum is the statutory body of knowledge that every pupil should know. Furthermore, as the noble Baroness, Lady Farrington, said, questions about marriage may arise in any lesson and at any time, and it is not practically possible to know in advance when this may happen. The Government have full confidence in the professionalism of teachers to handle situations in which sensitive topics arise outside sex and relationship education carefully, professionally and in a balanced way.

As I said at the start of this debate, this is not the only debate that we will have on teaching and education in the passage of the Bill. However, it is important for me to be clear that teachers are not required to endorse any belief that they do not have. They are required to explain the law as it stands. They are free to express their personal view as long as they do so sensitively and take into account the context of their lesson. Clearly, what we hope to achieve is the kind of situation that the noble Baroness, Lady Farrington, said the late Lord Joseph talked about in terms of what we hope all our children will be able to achieve from the kinds of lessons that are available to them now. I hope the noble Lord feels able to withdraw his amendment.

[Lord Elton]

Did I understand my noble friend to say that parents are not now allowed to withdraw their children from, specifically, sex education?

[Baroness Stowell of Beeston]

I am happy to confirm to my noble friend that parents are indeed allowed to withdraw their children from sex and relationship education. They can do so now and they will be able to do so in future, if that is what they decide.

[Lord Dear]

I am very grateful to the Minister for the way in which she has summed up and the way in which she has handled these difficult issues. I thank all noble Lords who have taken part in this debate. It has been very illuminating. We have covered a lot of ground, and I take the point that we will be covering educative issues later in Committee.

I will very quickly make four points. First, I ask the Minister to take on board the very considerable concern that the ComRes poll showed among teachers. I ask her to reflect on her words, which were said, of course, in an effort to be helpful when she spoke at Second Reading, distinguishing the factual and legal position on the one hand and promoting and endorsing views on the other. I still maintain that is a very fine balance in the classroom and may be very difficult to disentangle. In fact, I unashamedly lifted the word “endorse” from the Minister’s speech and put it into the amendment. It may be that we can find a different word, but the issue is still there, balanced, as I said, on something of a knife edge. One has to take into account the opinion of leading counsel on this, and that runs straight into the opinion of the Joint Committee on Human Rights, which stated,

“we encourage the Government to consider whether specific protections are required”,

and so on.

From what I have heard in the Chamber tonight there is sufficient doubt and concern on these issues for us to carry those forward into later debates on the whole business of the classroom, teaching and parents. I hope that at the end of that debate, between Committee and Report stages, the Government will be involved in discussions. I would be very happy to join in those discussions, if that was thought to be helpful. We may be able to bring something forward that would give a degree of satisfaction to those who are involved.

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[Lord Mackay of Clashfern]

This is an extremely simple point, but possibly of some importance. Clause 11 (1) says:

“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”.

This is not correct as it stands, because there are all these provisions later in the schedules; therefore, the accurate enunciation of the law will be subject to the later provisions of this Bill. I beg to move.

[Baroness Stowell of Beeston]

My Lords, I am grateful to my noble and learned friend and, as is clear from today’s list, this amendment was debated as part of a group yesterday. My noble and learned friend gave me notice that he wanted to ask a question following on from the debate. I have been given an answer to his question, which I could read out, but I know I would not understand what it is I am reading, and I know we are keen to make progress. The most sensible course of action is for me to ask Parliamentary Counsel to reflect on the points that my noble and learned friend has made and I will then ensure that I write to him as soon as possible and then put a copy of that letter in the Library.

[Lord Mackay of Clashfern]

My Lords, I am very grateful and am happy to withdraw the amendment on that assurance that Parliamentary Counsel will look at this.

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[Baroness Stowell of Beeston]

My Lords, I understand why noble Lords would want to seek clarification on this aspect of the Bill, so I am grateful to the right reverend Prelate and other noble Lords who have amendments in this group. I echo what my noble friend Lady Barker said about the right reverend Prelate’s introduction to this debate, and I share his view that it is important that we consider children in the context of the Bill.

My noble friend Lady Barker made an important point about married same-sex couples providing stability and security for their children and this Bill therefore being a good thing for children of same-sex couples. That is something that we should ensure is not forgotten in the course of our debates.

Amendment 39, in the name of the right reverend Prelate, would remove paragraph 2 of Schedule 4, which makes clear that the common-law presumption often referred to as the presumption of legitimacy, that a child born to a woman during her marriage is also the child of her husband, will not extend to same-sex marriages. For the clarity of our debate, it is probably worth my reading out what it says in of the Bill, which is not very long:

“Section 11 does not extend the common law presumption that a child born to a woman during her marriage is also the child of her husband … Accordingly, where a child is born to a woman during her marriage to another woman, that presumption is of no relevance to the question of who the child’s parents are”.

This means that where two women are married to each other and one of the parties to that marriage gives birth to a child, the other party will not automatically be presumed to be the parent of that child. That provision does not change the current situation; instead, it clarifies what the legal position would be in terms of the common-law presumption. The presumption is about fatherhood, and the Bill does not change the law on fatherhood.

Amendment 39A in the name of the noble Lord, Lord Northbourne, which the noble and learned Baroness, Lady Butler-Sloss, spoke to, aims to ensure that both parties to a same-sex marriage have parental responsibility for children born to or adopted by that couple, and focuses particularly on the parental rights of the surviving spouse. I understand and share that objective, and I understand why we are having this debate and why clarity is sought. However, we believe that this amendment is unnecessary because the law already sets out specific criteria that must be met in order for same-sex couples to be treated as the legal parents and to have parental responsibility. So in order for me to reassure noble Lords, I will try to explain.

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[Baroness Thornton]

My Lords, I will merely say that my noble friend Lord Alli has put his finger on the point. This discussion is not about biology but—as the right reverend Prelate said—fidelity. I suspect that the Government have been round this course. I know from reading the record in the Commons that they had these discussions and settled where they did. At the moment I cannot see any way of moving from that point. I do not accept the biological descriptions and solutions suggested by the noble and learned Baroness, Lady Butler-Sloss. The Government have probably ended up in the right place.

[Baroness Stowell of Beeston]

My Lords, I was wondering earlier how BBC Parliament would cope if this group of amendments came up before the 9 pm watershed. However, we are clearly okay.

[Baroness Thornton]

They could turn the lights down.

[Baroness Stowell of Beeston]

At least we are not going to be subject to an inquiry by Ofcom.

The effect of the amendment of the noble and learned Baroness would be that the question of how adultery and non-consummation would apply to same-sex marriages would have to be determined over time by case law. The Government believe that such an approach would leave the law uncertain in respect of divorce and nullity, and would not give people adequate protection. The noble and learned Baroness will know better than I that the definition of adultery has developed in case law over many years. In order for a definition to be determined for same-sex couples, it would have to go through a similar process. That would provide uncertainty for same-sex couples, which is not what any of us want.

The Bill provides greater clarity by confirming that only sexual intercourse with a member of the opposite sex outside marriage will constitute adultery for all couples, both opposite sex or same sex. The noble Lord, Lord Alli, rightly said that the Government had taken the approach, in designing all parts of the Bill, of trying to avoid disrupting existing marriage law as far as possible. This provision confirms that the current case law definition of adultery applies to the marriages of same-sex couples. I make it clear that at the moment, if a married man has an affair with another man, his wife would not be able to divorce him on the grounds of adultery. However, she would be able to cite unreasonable behaviour, so she would not be denied the right to divorce; only the grounds that she relied on would be different.

Equally, for same-sex married couples, sexual activity with a member of the same sex will support an application for divorce, since it will be open to someone in a same-sex marriage to cite unreasonable behaviour. This will not mean that same-sex couples have any reduced right to divorce or will suffer any delay in applying for it, because the same procedures apply to divorces on the grounds of adultery and those on the grounds of unreasonable behaviour. If a woman in a same-sex marriage has an affair with a man, her wife would still be able to apply for a divorce on the grounds of adultery. If she has sex with another woman outside the marriage, her wife could not seek a divorce on grounds of adultery but would do so on the grounds of unreasonable behaviour. That is what currently happens. As we know, it is not that unusual for someone in an opposite-sex marriage to have an affair outside the marriage with somebody of the same sex.

The noble and learned Baroness, Lady Butler-Sloss, and the right reverend Prelate argued that these provisions in the Bill mean that there is no requirement for same-sex married couples to be faithful, because adultery is not available to them in the way I have just talked about. The right reverend Prelate used a particular word that I cannot remember; I think he talked about “standards”. I think it is worth making the point that we need to avoid assuming that in order to be faithful people need to know they can divorce someone on the grounds of adultery. It is not the possibility of divorcing someone on the grounds of adultery that leads someone to be faithful to the person they are in a relationship with. What makes people faithful is far more complicated than that. The issues around fidelity, the reasons why people stay together, and their trust and commitment to each other are very complex. Even so, in terms of the law, marriage does not require the fidelity of couples. It is open to each couple to decide for themselves on the importance of fidelity within their own relationship. The law does not lay down requirements about the consensual sexual activity which should or should not take place for married couples.

Similarly, the Government believe that not applying provisions on non-consummation as a ground for the nullity of the marriage of a same-sex couple is the correct approach. There has been a lot of discussion of procreation, not so much tonight but certainly at earlier stages of our debates. Historically, consummation was linked to procreation, although now in law it is not. I want to make it clear that there is no requirement in law that a couple should consummate their marriage in order for it to be a valid marriage. We do not consider that there is a need to extend non-consummation as a ground for annulment to same-sex marriage. This also ensures that the law is clear for same-sex couples, as I already noted.

I think the point made by the noble Lord, Lord Alli, in response to the proposal of the noble and learned Baroness, Lady Butler-Sloss, to transfer the definition of penetration from that of an opposite-sex couple to that of a same-sex couple, but focusing only on men, serves to demonstrate that we have not addressed what penetration means for a lesbian couple. That is why, as I say, it would take a long time to develop this in case law in a meaningful way. The Government do not believe that the Bill’s approach to adultery and non-consummation for same-sex couples represents an inequality with opposite-sex couples. We believe the Bill makes appropriate provision for same-sex couples, while ensuring that the law for opposite-sex couples remains exactly as it is now.

However, I thank the noble and learned Baroness for bringing forward her amendments because, as she rightly says, this is a very sensitive topic. It is not one that people find easy to debate. I never thought I would stand at a Dispatch Box talking about these kinds of things. She serves the Committee well by raising this matter, but I hope I have been able at least to clarify that by not changing what now exists in law we are not actually creating an inequality. I think the desire of same-sex couples to have a successful relationship through marriage does not require the possibility of adultery for them to remain faithful to each other, if of course that is what they intended when they first married. I hope the noble and learned Baroness feels able to withdraw her amendments.

[Baroness Butler-Sloss]

I have perhaps found this topic rather easier to talk about, having been a divorce judge and indeed a judge who tried a lot of nullity suits. However, it is a sensitive subject, and I am very grateful to the Minister for the way in which she dealt with it, and to the noble Lord, Lord Alli. I said earlier that I recognised that looking at the issue of penetration was taking only it half way. I also threw out the potential olive branch of saying that you could call it something similar to adultery.

I remind noble Lords that for several thousand years adultery has been the opposite side of the coin to faithfulness for married couples. It has not been an issue only for Jews, Muslims and Christians; it has gone far wider than that. Those who do not believe in any religion do none the less see the importance of making a promise—it has to be a promise, whether explicit or implicit—that, if you marry, whatever your stable relationship is, during that period when it matters, you remain faithful to one another. After nearly 55 years of marriage, I see that as extremely important. However, I see it as equally important for the stable relationships of which I am well aware among those who—

[Baroness Stowell of Beeston]

I hope the noble and learned Baroness will forgive me for intervening very briefly. I absolutely understand the point that she makes and I do not want to give the impression that I do not take the issue of faithfulness seriously because I certainly do. However, it is important for me to make clear for the record that in the context of a civil ceremony it will be possible for those getting married to make promises and commitments in the form of words that they choose. We are not suggesting that we do not think this issue is important. However, we do not think that it is necessary to make provision for adultery in this measure. This is not about denying the importance of fidelity, which is clearly important when people first come together.

[Baroness Butler-Sloss]

I hear what the Minister says and of course I accept that she is saying on behalf of the Government that faithfulness in marriage of whichever sort is important. I do not for a moment disagree with that. However, there are two sides to the coin—faithfulness and adultery. As I say, for several thousand years adultery has been a ground for setting aside a partnership because of the way that one partner has behaved. To call it unreasonable behaviour, or cruelty in the old days, is not the same thing. I am sad that the Government are not prepared to tackle this because something akin to adultery could be achieved to put everybody who is involved in marriage in exactly the same position. Currently, with the Civil Partnership Act, and now this Marriage Bill going through the House, they will be in different positions. You cannot get away from that. I find that very sad, as, I know, does the right reverend Prelate. I will reflect very carefully on what the noble Baroness has said and, indeed, what the noble Baroness, Lady Thornton, has said about this, but I remain very unhappy about it. However, at this moment, I beg leave to withdraw the amendment.

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Moved by

[Baroness Stowell of Beeston]

42: Schedule 4, page 28, line 13, leave out “as to the validity of a marriage” and insert “of validity”