Marriage (Same Sex Couples) Bill

Baroness Stowell of Beeston Excerpts

Monday 8th July 2013 Lords Chamber

[Baroness Stowell of Beeston]

With the leave of the House, perhaps noble Lords will allow me to speak to my amendment now for the convenience of this debate and respond to any questions raised at the end.

The noble Lords, Lord Lester, Lord Pannick, and the noble Baroness, Lady Thornton, have also put their names to Government’s amendment. I welcome back the noble Baroness, Lady Meacher. I am sorry that she was unable to be here for the debates in Committee. I echo her good wishes for a speedy recovery to my noble friend Lord Garel-Jones who we are sad to be missing this evening.

When I responded to the debate on this issue in Committee, I undertook to have further discussions with colleagues about what the Government could do about the proposals put forward by the noble Lord, Lord Harrison. I recognised the strength of feeling in that debate and am pleased to bring forward on behalf of the Government amendments that provide for a statutory review, including a full public consultation, on whether belief organisations should solemnise marriage and, if so, what such a provision would look like. Crucially, the new clause provides the means to make any future changes by providing an order-making power that may amend any England and Wales legislation, both primary and secondary. In taking this approach, the Government’s amendment reflects the solution proposed by my noble friend Lord Lester in Committee, supported by the noble Lord, Lord Alli, among others. Since then, I have had the opportunity to speak to some Members of your Lordships’ House with an interest in this matter. My officials have also met the British Humanist Association and the noble Baroness, Lady Meacher. I am grateful to all noble Lords who have given up some of their time to engage in discussion with the Government, and to the British Humanist Association for its constructive approach to finding a way forward on this matter.

Perhaps I may say a little more about the government amendments and why they offer the best way forward in resolving this important issue. The arrangements for the review, which will be a statutory requirement, must provide for a full public consultation, and the Secretary of State must arrange for a report on the outcome of the review to be published by 1 January 2015. The new clause gives the Secretary of State power to make provision by order permitting marriages according to the usages of belief organisations. Our amendment defines a belief organisation as an organisation whose principal or sole purpose is the advancement of a system of non-religious beliefs which relate to morality and ethics. I note what the noble Baroness, Lady Meacher, said about the importance of belief organisations and their purpose.

Such an order may amend any England and Wales legislation, both primary and secondary, and may make provision for the charging of fees. The point about fees is a technical one: it merely enables the Registrar General to charge a fee, as she does currently, to cover her costs in administering the service.

An order must provide that no religious service may be used at any marriage solemnised under the provisions of the order. This is because it has been a principle since their introduction that civil marriage ceremonies should be clearly distinct from religious marriage ceremonies. We do not want this review to open up the system by which religious organisations carry out marriages which has been in place for years, and this Bill has been drafted on those foundations. The intention is to maintain the distinction so that no religious elements should be used in a marriage according to the usages of belief organisations. Any order made under this clause will be subject to the affirmative procedure. So, were the Secretary of State to take advantage of the order-making clause, both Houses of Parliament would have an opportunity to debate it and the order would be subject to the affirmative procedure.

Although the Government maintain that this Bill is not the right place to make broader changes to marriage law, as I have said already, it would be wrong not to recognise the strength of feeling in support of the humanists. A statutory consultation as a means to effect any change is the right way forward in responding to the support for humanists, ensuring that the wider public are able to contribute to the debate, and securing that arrangements for belief-based marriages are made on a sound footing and that any implications of them are fully understood.

The noble Baroness, Lady Meacher, referred to what is already in place in Ireland and Scotland. There the law has been changed to allow for humanist and other belief marriages, but they operate a different system to what we have in England and Wales. None the less, in both those countries the changes were subject to extensive dialogue over a period of time with interested parties to develop a solution that fits with their marriage law. It must be right that, if we are to change the law in England and Wales, we should do so only after proper consideration, as it has already been given in Scotland and Ireland, and therefore after a proper public consultation.

In addition to a public consultation, we also need to give consideration to the impact of the changes on the voluntary, private and local government sectors and on religious organisations, although, as the noble Baroness, Lady Meacher, said, we have not received any suggestion from the churches that they object to the amendment we are bringing forward in order to achieve proper consideration. Likewise, consideration must be given to what safeguards may be required and how these should be established and, in particular, how we ensure that the significant legal commitment made through marriage is properly regulated and recorded. Such fundamental public policy changes would normally be subject to these considerations and a review and consultation will allow us to do this.

Furthermore, we need to consider whether there are other belief organisations in addition to humanists which may wish to solemnise marriage, and therefore draw up criteria accordingly. I note what the noble Baroness said about the criteria in the amendment in her name. While we will, of course, have due regard to the proposals put forward by the BHA, we need to make sure that the criteria are set in a way that would allow belief organisations other than the BHA to conduct marriages should they wish to do so.

Let me now respond to some of the specific questions put to me by the noble Baroness. She asked me about commercial organisations. I can confirm that it is not our intention to allow commercial organisations to solemnise marriage. Marriage is an important institution and marriage for profit risks undermining key safeguards—for example, it could increase the instances of forced and sham marriages—if the emphasis is simply on increasing the numbers of couples going down the aisle, as it were, as opposed to undertaking proper checks on the couples. I hope I am able to reassure her on that point. She asked me about taking account of the expertise and experience of the British Humanist Association. I can certainly give her an assurance that we would want to give due weight to the expertise of humanist celebrants during the design of the review and consultation. We will also look carefully at the criteria set out in the amendment tabled by the noble Baroness as part of our work on this.

The noble Baroness sought further assurance about future timings. As I have said already, the clause states that the outcome of the review must be published by 1 January 2015. I stress that this is a final date for publication. I am confident that we will be able to provide a response before that time. Over and above that, it would be premature at this time to give a commitment to implementing the regulations. We must consult openly. Ministers will consider the results of the consultation and will, of course, have regard to the debates in both Houses during the passage of the Bill. It is clear that Ministers will have the power to make these changes. That is power that they do not have now, so the power will be there to make the change.

I am very grateful for the constructive approach that has been taken by all noble Lords with an interest in this matter. I believe that the Government’s proposed approach offers the best way to address this issue. When it comes to the right point on the Marshalled List, I hope to move the amendments then, and I shall commend them to the House. As I say, I will be happy to respond to any further points that are made in debate.

[Lord Alli]

My Lords, I have added my name to Amendment 7. I have made my strong support for the legalisation of humanist marriages clear and said in Committee that the ball is well and truly in our court. In our discussions in Committee, the noble Lord, Lord Lester of Herne Hill, like the lone ranger, and not for the first time in this Bill, rode over the hill to our rescue and gave us this formulation. I am more than delighted that the Government have tabled the amendment, bearing the names of the noble Lord, Lord Lester of Herne Hill, and my noble friend Lady Thornton. I pay tribute to the noble Baroness, Lady Stowell, for all her efforts in securing the change in policy. I know that she spent many hours negotiating with many different interests, and it is to her credit that we have this amendment.

I also pay tribute to my noble friend on the Front Bench, Lady Thornton. I know that it is a personal mission for her and I believe that many of us in Committee were moved by her interventions on this subject. I hope that my noble friend’s sister is as proud of her today as we are on these Benches. I urge all those who support humanist marriage to support the amendment.

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[Baroness Thornton]

My Lords, I join other noble Lords in congratulating everybody, really. This is one of those occasions. I congratulate the noble Baroness, Lady Meacher, the noble Lord, Lord Garel-Jones, who I hope will be back with us soon, my noble friends Lord Harrison, Lady Massey and Lord Alli, the noble Lord, Lord Lester, and the noble Baroness, Lady Brinton. Of course, I also sincerely congratulate the Minister and the very talented team who worked with her on this. Late on Thursday, when we were trying to get the amendment down, get my name on it and do all the clearances, I was in an LSE governors’ meeting. I texted the Minister to say that I thought we both needed a gin and tonic. I did not get one, but I hope she did.

I also congratulate the British Humanist Association, Andrew Copson its chief executive and his team who consistently jumped through hoops that had been set for them all the way through this process. They have sought all along the line to accommodate all the questions that have been asked. Noble Lords may remember that I said that my children would not be able to be married by a humanist celebrant in this country. I will now have to tell them that if they intend to get married they will probably have to have quite a long engagement. However, this is the House doing its job by doing good.

[Baroness Stowell of Beeston]

My Lords, I am very grateful to the noble Baroness, Lady Thornton, for reminding the House that I am part of a team. While I am very taken by the kind tributes made by the noble Lord, Lord Harrison, in particular, and the noble Lord, Lord Alli, it is important to stress that we have worked as a team in Government to be able to come forward with this amendment. We are very pleased to do so. I echo all the tributes just made by the noble Baroness, Lady Thornton. If it were possible in Lords-speak, I would say “Right back atcha”, as they might say somewhere else.

If I may, I will respond to some of the serious points that have been made. My noble friend, Lord Lester, is right that we are amending the Long Title of the Bill to ensure that this amendment is properly reflected in what will become an Act. I note his points about that. I also note his point about there being belief organisations and belief organisations, and the need for safeguards. I note the questions of the noble Lord, Lord Anderson, about what people call, in shorthand, sham marriages. I also note what the right reverend Prelate the Bishop of Chester said about various points of detail. All of these contributions have emphasised why this is important, and why we think it is the right approach to have this review and consultation and make sure that all of these matters are properly considered. That is what we will do. As I said earlier to the noble Baroness, Lady Meacher, it is in the Bill that we have to do that before 1 January 2015, so we will certainly make sure that it happens.

[Baroness Meacher]

My Lords, I must apologise to the House. I should have welcomed the noble Lords, Lord Lester and Lord Pannick, and the noble Baroness, Lady Thornton, for having their names on the Government amendment. I am very grateful to all those who have spoken in this short debate. They have been very coherent and succinct, and quite excellent. I am perhaps particularly grateful to the right reverend Prelate the Bishop of Chester for clarifying the position of the Church of England, and also giving his personal support to the principle behind this amendment. That is very valuable to all of us. I am very grateful to the Minister for her helpful remarks and the assurances that she was able to give us.

I was obviously disappointed that the Minister could not reassure us about the timing of the laying of regulations. I am not at all surprised, but of course it is a disappointment. The Minister will know that all of us, including the noble Lord, Lord Garel-Jones, will be on her tail to ensure that the strength of feeling in this House and the other place is followed through to regulations after the consultation, to ensure that in future humanist marriages will have legal recognition. I say a last thank you to the British Humanist Association, without which I could not have done this. I arrived back from elsewhere and its support for me has been fantastic. I am very willing and happy to withdraw the amendment.

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Moved by

[Lord Wallace of Tankerness]

9: Clause 2, page 2, line 10, after “compelled” insert “by any means (including by the enforcement of a contract or a statutory or other legal requirement)”

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[Baroness O'Loan]

My Lords, I want to say something about the nature of the debate on the Bill in the House today and on previous occasions, as it is has been very acrimonious.

[Baroness Stowell of Beeston]

I am sorry to interrupt the noble Baroness. We are discussing government Amendment 9. Indeed, we have concluded our debate on it.

Amendment 9 agreed.

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Moved by

[Baroness Stowell of Beeston]

41: Schedule 1, page 21, line 14, leave out from “” to end of line 24 and insert “shared places of worship: registration and cancellation
(1) The Secretary of State may by statutory instrument make regulations about—
(a) registration applications relating to other shared places of worship;(b) cancellation applications relating to other shared places of worship;(c) the sharing churches’ use of other shared places of worship (in cases where those places are registered under section 43A) for the solemnization of marriages of same sex couples.(2) The provision that may be made under subsection (1)(a) or (b) includes provision about the procedures to be followed on registration applications or cancellation applications.
(3) In this section “other shared place of worship” means a shared building—
(a) which has been certified as required by law as a place of religious worship, but(b) to which sections 44A and 44B do not apply because the building is neither—(i) subject to a sharing agreement, nor(ii) used as mentioned in section 6(4) of the 1969 Act.”

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[Baroness Stowell of Beeston]

I am grateful to the noble Lord, Lord Dear, for moving Amendment 46. This amendment obviously reflects the concerns he expressed about the potential effect of the Bill on teachers’ ability to express personal views about marriage, their employment rights and how they are expected to approach this topic in class. Noble Lords who have followed the passage of the Bill will know that these issues have been discussed at length in Committee, not only in this House but also in another place.

Before I respond to those three separate issues, I make the point that the way in which some contributions have been made to the debate this evening suggests that we are starting to confuse these three issues. I think it is important to see them as separate points. I start by addressing the point about freedom of expression generally. On this point I can be absolutely clear in response to my noble friend Baroness Barker, who asked about whether anything had changed in this Bill. Teachers are and will continue to be free to express a personal view about marriage or any other matter, provided they do so in a balanced and sensitive way. There is nothing in the Bill which will restrict anyone’s right to express the view that marriage should be between a man and a woman.

Amendment 46, put forward by the noble Lord, Lord Dear, aims to offer additional protections in this regard. This is unnecessary for exactly the same reasons that I spelled out in response to debates earlier this evening. I will not repeat them, but I just signpost for noble Lords Article 9 of the European Convention on Human Rights and the Equality Act 2010. Everything I have said previously applies here. People, including teachers, have the right to believe whatever they wish to believe, and nothing about this is changed.

The noble Lord, Lord Dear, referred to the specific case of a teacher whom he said had been told that it is homophobic to disagree with the belief that same-sex couples should be able to marry. Obviously I do not know the details of that case, but I can be absolutely clear, because of everything that is in the Bill and what we are legislating to bring about, that it is absolutely legitimate to have a belief that marriage should only be between a man and a woman. I can say categorically that, if somebody holds that belief, it is not homophobic.

I move on to how the Bill affects teachers’ employment rights. Like any other employee, teachers are protected from being discriminated against or harassed because of their religion or belief. Discriminating against someone because they hold or express a belief about marriage is unlawful under the Equality Act. I add that the noble Lord’s amendment risks casting doubt on that existing protection by discriminating against a teacher applying for a job in a non-faith school, because his or her belief about marriage would already be unlawful under the Equality Act. The point, which I have made in other debates, is that, if we start being specific on the face of the Bill about such things, we dilute the protections to which teachers, as indeed any other employee, have the right, and we put them at risk.

Subsection (2) of the noble Lord’s amendment would also cast doubt on the ability of teachers in faith schools who are not covered by this provision to express their personal views about marriage in an appropriate way. I am sure that he would agree that such an outcome would be undesirable, and harmful to the ability of teachers in faith schools to present their own views in an appropriate manner and in the broader context of that school’s faith ethos.

The noble Lord, Lord Curry of Kirkharle, referred to the Government’s response to the Joint Committee on Human Rights, and the point it makes about considering an amendment which relates directly to faith schools. I point out to the noble Lord that that is very different to the amendments we are discussing right now. That particular amendment, which the Government refer to in their response to the Joint Committee on Human Rights, is a very specific one, which we will debate on Wednesday. It is not this amendment.

Then we move on to the issue of the requirements and demands on teachers in the classroom and the content of their lessons. First, I must remind the House again that, although I know that this is not just related specifically to sex and relationship education, none the less sex and relationship education is not compulsory for primary schools. It is compulsory only for secondary schools. When the noble Lord referred to particular materials and the effect they may have on younger children, there is no demand or requirement on primary schools to teach sex and relationship education.

No teacher is under any obligation to endorse a particular view of marriage, or would be as a result of the Bill once it is in force. The noble Lord, Lord Dear, quoted me from earlier stages of the Bill. I will repeat myself briefly again because I am afraid there is no other way for me to make this point. I said:

“There is a significant difference between expecting a teacher to explain something and expecting them to endorse it”.

Those are two separate things, and by expecting a teacher to explain something, there is no requirement for them to say that what is the law of the land is something they personally support. They are at liberty to have their own personal views. As I said—and as the noble Baroness, Lady Farrington, made clear in her contribution in Committee and as my noble friend Lord Deben said in his contribution tonight—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”—

such as divorce and contraception. Teachers,

“are already very experienced in dealing with such issues and do so admirably and professionally”.—[Official Report, 19/6/13; col. 351.]

We would expect them to be able to handle this kind of change in the law as they already have done in the past with changes, for instance, that allowed civil partnerships.

The noble Lord, Lord Dear, referred to some specific material. I make the point to him that the Government do not specify the materials that any school should use to support teaching. The main point I make is that schools are required to maintain a policy on their approach to sex and relationship education and to make that available to parents because it is important that they consult with parents about their approach to education in this context.

The noble Lord, Lord Dear, and my noble friend Lord Eden asked about guidance. The Equality and Human Rights Commission guidance that we have talked about in the context of other debates includes technical guidance for schools in England dealing with the areas of the Equality Act 2010 which deal with the provision of education in schools. That will be reviewed as part of the work that the EHRC has committed to do to review its guidance in the context of this Bill when enacted. We are working with the EHRC to agree the plans and timetable for this work.

I understand the concerns behind the noble Lord’s amendment and the strength of his feeling in this area. I can only reassure him as clearly as I can that the protections are there for teachers in the context of their own employment rights, their own personal beliefs and their ability to express them, and also the requirement for them to teach the law of the land: they are under no obligation to promote or endorse anything that they do not agree with. As we have said at earlier stages in the passage of the Bill, to achieve the kind of tolerance, courtesy and generosity that we all talk about as being so important, it is incumbent upon teachers to be able to explain very clearly that there are many types of families and that same-sex couples will be able to marry in future. We want our children to be able to learn about the whole difference of views that there are in this country so that they can themselves ensure that we have the kind of society that we all feel strongly and passionately about. I hope that on that basis, the noble Lord feels able to withdraw his amendment. If he decides to press it to a Division, I will of course be voting not-Content.

[Lord Dear]

My Lords, first, I thank the Members of your Lordships' House who have spoken in favour of the amendment. I must say that I am a little confused by the statements made by the Minister.

I beg your Lordships’ indulgence to read very quickly what the amendment sets out. It states that,

“nothing under or in consequence of this Act shall … affect the right of teachers to express their personal views about marriage … or … mean that any teacher will be under any obligation to endorse a particular view of marriage”.

That sets out exactly what the Minister said in Committee. She also said:

“Teachers are and will continue to be free to express their personal views”.—[Official Report, 19/6/13; col. 351.]

That is fine, but 40,000 of them—more than 10% in the ComRes poll, when extrapolated, means 40,000 teachers in this country—have said that they would probably refuse to teach children about same-sex marriage, and 56% have said that they fear that this will lead to teachers being disciplined if they find themselves in that position.

I also beg the indulgence of the House in drawing attention to the fact that I have quoted extensively from John Bowers QC, leading counsel. I repeat:

“If the Marriage Bill becomes law, schools could lawfully discipline a teacher who refused to teach materials endorsing same sex marriage”.

That is from leading counsel eminent in this field. His view has not been challenged by either of the noble Lords, Lord Lester of Herne Hill or Lord Pannick, so I take it—

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[Baroness Thornton]

My Lords, I know that my noble friend is very concerned because cultural change is always difficult and sometimes painful, and I understand that. We have discussed these issues in some detail in Committee. I say to my noble friend that although the safeguards to protect people’s freedom of speech exist, we also have the safeguards under the Equality Act, which is a carefully considered piece of legislation. They set the boundaries and characteristics that allow religion and belief as a protected characteristic, so we have the safeguards that ensure that this amendment is not necessary. As several noble Lords have already said during this debate and in Committee, one cannot legislate against idiots taking silly cases. Although in some of the cases that my noble friends have mentioned people won those vexatious, silly cases, that does not mean that you change the fundamental laws and freedoms that we already have. We will be opposing my noble friend’s amendment.

[Baroness Stowell of Beeston]

My Lords, I will begin by saying a couple of things to the noble Lord, Lord Anderson. He is absolutely right that we feel very strongly about the need to protect the freedom of speech, which is what we are doing through this legislation. He also talked about this being a serious amendment, and that he wishes the Government to take it seriously. I can assure him that not only do we take this amendment seriously but that we have taken seriously all amendments that have been tabled, both in Committee and on Report, and will continue to do so.

The noble Lord mentioned various examples to illustrate his argument that employees need additional protection. I responded to all of them at various stages of the Bill, so I will not do so again now. However, he said that people feel concerned that once the Bill becomes an Act—and we hope that it will become an Act—they will not be able to maintain what he described as a mainstream view. I understand that concern; however, not only will it be possible for people to maintain and express their belief, we recognise that that belief is a mainstream opinion. We are not trying to say that it is a sidelined opinion—it is an important belief that many people hold, and we would not want to say anything to undermine people who hold that belief, as we respect them.

On the noble Lord’s amendment and its proposal to amend the Employment Act 1996, we are not convinced that it is necessary, or desirable, to provide additional protection for employees in this way who express a belief that marriage should be only between a man and a woman. Discriminating against an employee because of this belief would already be unlawful under the Equality Act, as the noble Baroness, Lady Thornton, said. That existing protection strikes the right balance in providing protection for the employee, while also protecting other employees and customers from discrimination and harassment. It is important to understand that the Equality Act is there to strike a balance. Employers must have the right to ask their staff to do what is necessary to run their business, provided that it is reasonable and lawful. Therefore, if an employer does not think it right that an employee should express personal views on this or any other subject to customers, for example in a restaurant or hotel, he should be able to ensure that his employees perform their jobs in the appropriate way. To be clear, that does not mean that an employee has no right to hold the opinion or belief that they do.

Furthermore, if we are to pick out this particular belief for protection in the Employment Rights Act, what is the justification for stopping there? Other beliefs are equally worthy of protection, including the belief that marriage can be enjoyed equally by same-sex couples. The principle applies to an enormous range of beliefs which are entirely legitimate, although the expression of them might impede the performance of the job in question.

Employees are already protected under discrimination law. The Equality Act already provides comprehensive protection against unlawful discrimination—both direct and indirect—harassment and victimisation. It would be a matter of fact whether conduct of an employer constitutes a detriment and whether it is imposed because of the employee’s belief that marriage should be of one man with one woman. If there is direct discrimination, it would not be capable of justification and would be unlawful.

We believe that these amendments are unnecessary and potentially damaging to the balanced way in which the Equality Act protects people from discrimination and harassment. There is no need for further protection to be added to the Employment Rights Act. I hope, therefore, that the noble Lord feels able to withdraw his amendment.

[Lord Anderson of Swansea]

I hear the Minister and my noble friend Lady Thornton. I remind them that the law is not being introduced into a vacuum, but into an atmosphere where there is already active hostility to those who hold a traditional view of marriage. There is a very active lobby that would seek to take to court, or bring pressure upon, employers in that respect: that is a fact of life.

My noble friend says that we cannot legislate against idiots—I think that that was her phrase—and, of course, we cannot do that. However, the problem is that if points are raised by individuals against employees or if employers act in a way of which we do not approve, that still raises fears and is still expensive for those who are the object of that.

My noble friend also said that some of those cases have been won. For example, Mr Adrian Smith won a contract action against his employers, thanks to some good legal advice. However, that was a Pyrrhic victory, given that he lost his job. As a result he had minimal compensation; so it is not quite as simple as the Minister has said. I hear her, though I am not wholly convinced by her assurances. In the circumstances, I think that it is appropriate to withdraw the proposed amendment.

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[Baroness Thornton]

My Lords, the noble Lords, Lord Deben and Lord Lester, have put this very well indeed. I would add just one other matter. I find my noble friend’s view of the future rather depressing. I do not believe that people will argue and fight with each other about the existence of same-sex marriage. I simply do not believe that this is what will happen. Apart from the fact that in most cases this is a private matter between two people of the same sex or opposite sex, it is not the kind of issue that will raise the problems that my noble friend has suggested. I hope that, as the Bill moves forward in the next year, my noble friend will start to take a more optimistic view of it.

[Baroness Stowell of Beeston]

My Lords, I am grateful to all noble Lords who have contributed to this debate. I shall try to avoid repeating myself, because a lot of this amendment would lead me to do so. I will avoid doing that, if the noble Lord, Lord Anderson, will forgive me, and go directly to the central point of his amendment.

My first point is that an employer should have the right to ask his employees to do their job. Equally, he may not impose a requirement on them that would discriminate against them because of their religion or belief. Of course, it is open to private sector employers to make any adjustment they wish for their staff. It is quite possible, and perfectly lawful, for an employer to allow staff not to be involved in any activity that is objectionable to them—if the employer wishes. In this regard, private sector employers are not in the same position as public sector employers. As the noble Lord made clear, he does not include the likes of registrars in this debate in any case.

However, imposing a duty on employers to provide reasonable accommodation in respect of religion or belief would be a new concept in English law, as the noble Lord has already acknowledged, although he mentioned that it was common practice in the US. We would need to consider in detail how that duty would work in conjunction with the rules on indirect discrimination, and whether all other religious and philosophical beliefs should be equally protected—not just the belief that marriage should be of one man with one woman. That is not a task to be undertaken in this Bill, and I note the comments from my noble friends Lord Lester and Lord Deben about their view of this concept.

To pass this amendment would add a new burden on employers, who would have to work out what it means in their own particular context. It is probably worth pointing out that in his evidence to the Joint Committee on Human Rights, Robin Allen QC, on behalf of the Equality and Human Rights Commission, made clear that the existing legal protections contained within employment and equality law would be suitable to deal with any issues that may arise. He advised against including additional safeguards, such as a reasonable accommodation provision in this Bill.

So the current provision in legislation, which prohibits discrimination because of religion or belief, is fit for purpose. To impose a whole new duty of reasonable accommodation in this Bill is unnecessary. It could also be damaging to the balanced way in which the Equality Act operates, create uncertainty and add a new burden on employers who would have to make sense of it. I therefore ask the noble Lord to consider withdrawing his amendment.

[Lord Anderson of Swansea]

My Lords, if we truly believe in liberty of conscience, we can hardly be against an attempt to ensure that an employer seeks to accommodate, wherever reasonable, the views of an employee. I hear the noble Lord, Lord Deben, who tried to reduce to an absurdity the point that I was trying to make, but does he or does he not believe in the principle of seeking to accommodate, wherever practicable? Clearly, in many firms such an accommodation would not be practicable because of the number of individuals concerned but in the example of a car firm with perhaps 10 drivers, it is surely not unreasonable to ask an employer to ensure that the individual who has expressed such a view is not the one called upon to drive.

The noble Lord, Lord Lester, prayed in aid US precedence during a number of earlier debates on this matter. He quoted Brown v the Board of Education of Topeka. He or someone else mentioned Plessy v Ferguson, the separate but equal case in relation to the railroad. There were a number of other cases to the same effect but the noble Lord is less willing to quote US precedent when it does not happen to suit his purpose. Under the 1964 Civil Rights Act in the US, there is such a provision for reasonable accommodation. It has worked there successfully since that time and I have no reason to doubt that if we were to put such a measure into law today, it would work equally effectively in England and Wales and other common-law jurisdictions.

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Moved by

[Baroness Stowell of Beeston]

54: Clause 9, page 10, line 18, leave out “Registrar General” and insert “Secretary of State”

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Moved by

[Baroness Stowell of Beeston]

56: Clause 9, page 10, line 38, leave out from beginning to “provision” in line 42

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[Baroness Stowell of Beeston]

My Lords, I am grateful to the noble and learned Baroness, Lady Butler-Sloss, for introducing her amendment and for ensuring that we are, again, post-watershed. I did not design it this way but, as someone who used to work at the BBC, I am always so much happier when I know that we are compliant with broadcasting regulations.

I will start by addressing one angle that underpins this amendment and the debate associated with it, and that is about fidelity. It was something to which my noble and learned friend Lord Mackay referred. I want to be absolutely clear that the Government recognise the importance that couples, whether opposite-sex or same-sex, attach to fidelity in their relationships. The seriousness and the intention of same-sex couples wishing to make a commitment to each other are no less serious than that of opposite-sex couples. There is no difference in the intensity of the commitment and fidelity is every bit as important for same-sex couples who wish to marry as it is for opposite-sex couples.

The provisions in the Bill do not, in any way, imply that fidelity will be less important in marriages of same-sex couples than it is in marriages of opposite-sex couples. It is important to make that point, not so much in relation to what the noble and learned Baroness said today, but certainly following up on the debate that we had in Committee, and the comments of my noble and learned friend Lord Mackay, lead me to make that clear.

It is important to remember that betrayal in close relationships can, unfortunately, take many forms. A partner can be unfaithful by sharing confidences and not necessarily by sharing a bed. I make that point because I think that the noble and learned Baroness, Lady Butler-Sloss, said in Committee, when she was moving her amendment, that for her the opposite of fidelity was adultery. However, I would argue that the opposite of fidelity is infidelity, and infidelity takes many forms; it is not necessarily about adultery via a sexual act. Her amendment, as we have heard, seeks to create a new fact for divorce to sit alongside the current fact of adultery in the Matrimonial Causes Act 1973. This new fact would apply to sexual activity, similar to adultery, of a married person with someone of the same sex outside the marriage, and it would apply to all marriages, whether of same-sex or opposite-sex couples.

The effect of this definition is not clear as we do not know what sexual acts would be covered by the amendment. That point was made by the noble Lord, Lord Pannick. It is worth reminding ourselves that the definition of adultery that exists in law now took decades to be defined through case law; it was not something that was established overnight. If we are to introduce something called “similar to adultery”, as the noble Lord, Lord Pannick, has said, this lack of clarity would mean that all married couples, whether same-sex or opposite-sex, would not be clear about the grounds on which they could obtain a divorce. Neither same-sex nor opposite-sex couples would benefit from the extended facts to constitute adultery inserted by this amendment.

The provisions of the Bill on adultery provide that the same long-standing definition of adultery, set out in case law, will apply to both opposite-sex and same-sex married couples. I would argue against what my noble friend Lady Berridge and others said, that actually the Bill creates some inequality by keeping the definition as it is. We are not introducing a new inequality; we are continuing as we are now.

Without getting too graphic, the definition of adultery is very specific and relates to a sexual act between a man and a woman which is not physically possible between two men or two women. That act has been established by case law over decades, and because of that, it is not something that can apply to relations between people of the same sex.

I was going to offer some explanation as to how the law on adultery works. Noble Lords have covered this very well in the contributions that have already been made, but if the House will indulge me, I think it is worth being specific about this because after we had the previous debate I talked to one of the policemen as I was leaving the building. He had been very amused by our debate that evening and seemed to think that off the back of it adultery would not necessarily apply any more and that people would not be able to divorce each other on those grounds. I explained to him how adultery works. As he found that so interesting, I thought I might do it for the benefit of noble Lords.

As the law stands, if I was married to George Clooney and he was to have a sexual affair with, say, the noble Baroness, Lady Thornton, that would be adultery. If I was married to George Clooney and Mr Clooney had sexual relations with the noble Lord, Lord Alli, that would not be adultery because he would not be able to do the sexual act which is very specifically defined in law. Should I wish to divorce Mr Clooney on those grounds, I would do so on the grounds of unreasonable behaviour. In future, if the noble Lord, Lord Alli, was to marry Mr Clooney, and Mr Clooney was to have an affair with me—and who would blame him in those circumstances?—that would be adultery and the noble Lord, Lord Alli, should he choose to, would be able to divorce Mr Clooney on those grounds. If the noble Lord, Lord Alli, were married to Mr Clooney and Mr Clooney had an affair with, say, my noble friend Lord Black of Brentwood—

[Lord Black of Brentwood]

Hear, hear!

[Baroness Stowell of Beeston]

That would not be adultery, but the noble Lord, Lord Alli, would be able to divorce Mr Clooney, should he choose to, on the grounds of unreasonable behaviour. The point I am making is that the arrangements relating to how adultery works will remain the same in the future as they are now.

When a marriage breaks down, it is a very serious matter and of huge regret. The number of divorces on the grounds of adultery is falling. The latest figures show that 18% of divorces are on the grounds of adultery. The figure has fallen quite rapidly over the past 10 years. Adultery is not the grounds on which most people seek to divorce one another. We hope that all marriages, whether they are between a couple of opposite sexes or the same sex will continue, and that they will be faithful and remain happy and contented. If that is not the case, we believe that the existing provisions are perfectly adequate for divorce to take place, and I therefore hope that the noble and learned Baroness will feel able to withdraw her amendment.

[Baroness Butler-Sloss]

I thank all noble Lords for their contributions, particularly the noble Baroness, Lady Berridge, who put very well indeed the points that I put previously and did not put today. The particular point she made was about injustice. As the noble and learned Lord, Lord Mackay of Clashfern, said, inequality comes from this Bill. That is perhaps the most important reason for raising it.

I say to the noble Lord, Lord Deben, that it is not a funny matter, whatever his mother might think. I am talking about a really serious issue, although it was very attractively put by the Minister in her excellent exposition of the existing law, which I could not fault. The fact is that everyone thinks it is rather funny. There is the policeman saying it is rather funny, but we are dealing with a truly serious matter. One of the causes of the breakdown of marriages is the way in which one of the spouses goes off and prefers another person, male or female, to the person to whom he or she is married. That is the basis of the reason that I raised it.

Despite what the Minister and the noble Lord, Lord Pannick, said, no one is ever going to challenge this. All these divorces are undefended. They all go through in three months because almost never is there a defended divorce. I would be astonished if there was a line of case law on this unless somebody took it up, although that is very unlikely.

However, the alternative, which the Minister might just take back, even to the Law Commission, is to ask: as marriage is now for everyone, is it appropriate that we have adultery at all? Would it perhaps be better to have an equality whereby adultery was removed, and all relationships, whatever they may be, were dealt with by irretrievable breakdown of marriage and unreasonable behaviour? However, if adultery is to remain, it remains an inequality and an injustice. Like other noble Lords, I have received the most heartrending letters by e-mail from women who describe how they have been treated by a man who has gone off with somebody—with another man. The purpose of this amendment was to broaden the issue beyond same-sex marriage to heterosexual marriages in which one partner goes away with another man or another woman.

However, it is perfectly obvious, at 12.25 am, on the last amendment of the evening, that I would not put noble Lords through the burden of having an ineffective vote which I could not win, so I beg leave to withdraw the amendment.