Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011

Baroness Verma Excerpts

Thursday 15th December 2011 Lords Chamber

[Lord Falconer of Thoroton]

My Lords—

[Baroness Verma]

My Lords, to assist the House I suggest we hear from the Liberal Democrat Benches first, maybe then the Convenor of the Cross Benches, followed by the noble and learned Lord, Lord Falconer, and then the Bishops.

[Baroness Hamwee]

My Lords, we complain when primary legislation is not commenced or implemented. The first instinct of the noble Lord, Lord Alli, was absolutely right, though he then extended his arguments. We also complain when legislation is not clear. This is not the case today. The Merits Committee, of which I am a member, did not make a judgment on the merits of the substance of this order. It used its entirely standard language, drawing it to the special attention of the House on the grounds that,

“it gives rise to issues of public policy likely to be of interest to the House”.

That statement is quite uncontentious.

I can see from those already attempting to intervene that we will hear today closely argued analysis of a construction of the words “Act”, “authority” and “services”, and I am always glad to recruit such expertise to the cause. Essentially, however, the issue is, “Does the order do what Section 202 of the Equality Act provides?”. I believe that it does. Or, “Does it require any individual or organisation to do what they do not wish to do?”. I believe that it does not. The order cannot trump primary legislation, nor can it require what the Act itself precludes. As we have been reminded, primary legislation says that nothing places an obligation on religious organisations to host civil partnerships if they do not wish to do so. If there are differing views within an organisation, that is not a matter for government.

The noble Baroness uses in her prayer the word “pledge”. It is not a pledge—or rather, it is more than a pledge—because the words are in Section 202. That section is surely permissive: it is an opt-in, not an opt-out. We know there are objections to it, but that was a matter for 2010. I say that to those who would like to extend that section, as well as to those who would like to see it interpreted restrictively. To attempt now to reverse it, extend it or block it, is inappropriate.

I will be quick because there are so many noble Lords who wish to speak. I find it very difficult to see anxiety engendered among people with a particular view. I do not like to see people fed fear. I realise that something that may seem entirely reasonable to me may seem very prejudicial to you, whoever you and I are—that is, whichever side of the argument one is on. I will end by voicing what others might see as my own prejudices. That 46,000 couples have entered into civil partnerships is wonderful; 92,000 people have been able to give formal, legal expression to their relationship. It is a paradox that some who advocate celebrating marriage within a faith oppose extending it to other stable relationships. I welcome the order and look forward to taking forward Section 202.

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[Baroness Verma]

My Lords, perhaps we may hear from someone on the Conservative Benches and then come back to the noble Lord.

Lord Mackay of Clashfern: My Lords, it is absolutely plain that the noble Lord, Lord Alli, and those who supported him in the amendment moved in the debates on the Equality Act 2010—Section 202—were clearly of the view that no obligation should be placed upon any religious body to host a civil partnership if they did not wish to do so. That is absolutely plain. What is more, they were prepared to put into the amendment a statutory provision that declared that nothing in this Act would place an obligation on religious organisations to do so.

That amendment was made by the Equality Act 2010, but it was made to Section 6A of the Civil Partnership Act 2004. If you go along to the Printed Paper Office and ask for a copy of the 2004 Act, you will discover that it contains no Section 6A. That is because Section 6A was put into the Act by a regulation in 2005. That regulation was made under a provision in the Civil Partnership Act allowing statutory amendments to be made in respect of the Acts that were passed before the end of the Session in which the 2004 Act was passed. Therefore, any enactment contained in an Act passed before the end of 2004 can be amended by statutory regulation, using the affirmative procedure.

The point that arises in this case is a short one and I am not going to go into the opinions of the QCs. Noble Lords have had the great advantage of hearing another QC giving an opposite opinion—and it is not infrequent that that happens. I am going to give no opinion at all about the correctness or otherwise of the provision. They are practising QCs. They have signed their opinions, they are genuinely held and they illustrate a doubt—that is all—about the effect of the Equality Act on these regulations.

My point is that the amendment that the noble Lord, Lord Alli, and his colleagues put forward, which was accepted on a free vote in this House and the House of Commons, refers to nothing in this Act, but only to provisions in the 2004 Act. The opinion of these Silks is that the risk arises not from the provisions of the 2004 Act but from the provisions of the Equality Act 2010. To my mind, this issue can be completely set to rest by a simple amendment. Instead of saying “nothing in this Act shall”, the provision would say “nothing in this or any other Act shall”. The Government could do that without difficulty because I am sure we are all agreed that we mean to exclude any attack on the basis of the Equality Act.

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[The Lord Bishop of Blackburn]

My Lords—

[Baroness Verma]

My Lords, we have plenty of time. Perhaps we could hear from the right reverend Prelate and then from the noble Baroness.

[The Lord Bishop of Blackburn]

My Lords, of course I share the concerns expressed by others about how these regulations might affect other churches. However, like my brother the right reverend Prelate the Bishop of Oxford, I should like to say how I think these regulations might affect the Church of England, although I shall perhaps be looking through a slightly different part of the lens.

At the moment, the Church of England, through the General Synod, has not expressed any desire at all for its churches to be used for registering civil partnerships. Therefore, it might be thought that I should be very content to rely simply on the provisions of the regulations that would require the consent of the General Synod to be given before any Church of England church could be approved for registering civil partnerships. However, it seems that this provision is not without difficulty. As your Lordships will know, we have special procedures in General Synod for matters that affect the doctrine or liturgy of the church. It could be thought by some that allowing churches to be used for civil partnerships would affect the doctrine or worship of the church. If so, those special procedures would come into play.

The provision in the schedule to the regulations talks simply about requiring the consent in writing of the General Synod without defining how that consent is to be obtained. If at some future date the proper consent of General Synod were obtained, there could still be difficulties for individual clergy. There are, as we have heard, a variety of legal opinions about whether a claim for discrimination against a priest who refused to allow his or her church to be used for registering a civil partnership would succeed. However, at the end of the day, clergy should not be put at risk of having to defend such claims, even if they seem unlikely and their prospect of success seems remote.

It seems clear, however, that an incumbent who refused to allow his or her church to be approved for civil partnerships would gain no protection from Regulation 2B, because the obligation not to discriminate comes not from the regulations but from the Equality Act. Regulation 2B would appear to be nothing more than window-dressing, and it shows how unsatisfactory these regulations are. There may be good intent but the promised conscience clause simply is not there. It cannot be there in regulations; either the Equality Act or the Civil Partnership Act needs to be amended to provide the necessary clause. I would want to see an express statutory conscience clause similar to that contained in Section 8 of the Matrimonial Causes Act 1965, which provides that no priest of the Church of England or the Church in Wales can be compelled to allow their church or chapel to be used for the solemnisation of a marriage of a divorced person whose former spouse is still living.

As the General Synod has not expressed any desire for Church of England churches and chapels to be approved for registering civil partnerships, there is surely no need for the Church of England to be included in these regulations at all. Indeed, it should be expressly excluded from them; otherwise, might it look as though Parliament is breaking what I understand to be the convention that it legislates for the Church of England only when the church has asked it to? If at some future date General Synod decided—

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[Baroness Verma]

The noble Baroness, Lady Richardson, has been trying to get in for a long time. We will hear from the noble Lord, Lord Anderson, afterwards.

[Baroness Richardson of Calow]

My Lords, I rejoice that many Christians and some churches have acknowledged that for some men and women, a loving, committed, intimate, faithful relationship can happen only within a same-sex partnership. I want to delight in that. I want to celebrate it with ceremony and joy, and I want those couples to be encouraged to take their rightful place in creative responsibility and participation in all society. I also want to learn from them the things that God is saying about His grace being given to human beings who are made in His image in infinite variety.

I am well aware that my theological viewpoint is vehemently opposed by many people, including many in this House, but it is a legitimate viewpoint that I could argue with many people. I hope today that while it is obvious that this legislation for registration of civil partnerships in religious buildings is permissive, I do not want it to be made obligatory but neither do I want it to be prohibited. Many churches have the right through their decision-making processes to determine their own theological position and to be able to follow through with many people what is for them the root celebration of their whole being.

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[Baroness Butler-Sloss]

My Lords—

[Baroness Verma]

Let us hear from the noble Lord, Lord Anderson.

[Lord Anderson of Swansea]

My Lords, this has been a remarkable debate. I only wish that there had been a similar debate in the other place, but there was not. We have heard two former Lord Chancellors taking different views, and two members of the Bishop’s Bench taking opposite views, in the same debate. The remarkable fact is that there has also been substantial common ground in almost all the speeches that have been made. First, this is clearly a highly sensitive issue involving deep matters of principle. Secondly, churches that do not wish to register civil partnerships should not be obliged to do so, but conversely churches that do wish to do so should be allowed to do so. The Government have made a serious attempt in these regulations to put these matters into law. Today’s decision clearly depends on a judgment as to whether, after the proper consultation by the Government, they have succeeded in that aim.

I shall briefly give my own explanation of this. It is clear that, because of the exemption to the Roman Catholic Church, the Church of England and the church in Wales, they have been largely satisfied that the safeguards are sufficient for them. It is also clear that there have been learned and weighty opinions on both sides of the argument. Professor Hill has been mentioned, as have Mr O’Neill and Mr Goulding. The advice of the noble Lord, Lord Henley, in his letter of 13 December, states that the lawyers appear to contradict one another.

For me the question is this: is there a doubt that the regulations have properly put into effect the views of the Government? If there is a doubt, is it a fanciful doubt or is it a serious doubt? Is there at the very least an arguable case that the Government have failed to provide adequate safeguards? The lawyers’ different views and the views expressed today suggest that there is a real, not a fanciful, doubt and the churches should not have to defend themselves against possible well resourced litigants.

I note the undertaking given by the Minister in his letter, which I have cited, that if, contrary to his view, there were to be a successful legal challenge, if one were to be brought, there would be an immediate review by government. That is welcome as far it goes, and I hope that in replying the Minister will put in his speech similar, or perhaps even stronger, undertakings. No Government can bind their successors and it is surely far better for the Government to end any possible doubt by taking these regulations back and by showing that there are amendments that close a possible loophole, thus preventing a serious legal challenge being made to them. The noble and learned Lord, Lord Mackay, has suggested one way in which this should be done. Mr O’Neill has suggested another way. That is the reasonable response which the House should make today.

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[Baroness Noakes]

My Lords—

[Baroness Verma]

My Lords, may we hear from the Conservative Benches, then from the Liberal Democrats, and then from across the House?

[Baroness Noakes]

My Lords, I was pleased to be able to add my name to the amendment tabled by the noble Lord, Lord Alli, in the Equality Act and I am equally pleased to be standing here today supporting my Government in bringing forward the regulations, which will complete what we started. I am proud of the journey that my party has made from opposition to civil partnerships to full acceptance of and delight in seeing these regulations taken forward. I do not understand why, but we have a free vote on these Benches. I do not believe that it is a matter of conscience. I believe, as has been said today, that it is legal interpretation of whether these regulations give effect to what we are clear that Parliament thought that we had to do. We have the luxury of a free vote, and that as it happens is a nice thing, but it means that we must use our free vote wisely or we must be clear that we are using it in the right way.

I do not believe that the majority of my party now opposes civil partnerships. We want to see an end to the discrimination against couples entering civil partnerships whereby they are prohibited from celebrating it on religious premises when the religious body wishes to take part in it. We should do the right thing today and end that discrimination and not take fright at some highly disputed legal argument, especially given the Minister’s undertaking that should there be a legal problem the Government will ultimately deal with it. I hope that my noble friends will join me in supporting the Government if it proves necessary.

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[Lord Dannatt]

My Lords—

[Baroness Verma]

My Lords, if the noble Lord, Lord Carlile, could speak, we could then hear from the Labour Benches.

[Lord Carlile of Berriew]

I was going to defer to my noble friend Lord Lester.

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[Lord Dannatt]

My Lords—

[Baroness Verma]

My Lords, we will hear from the noble Lord, Lord Collins, and then from the noble Lord, Lord Dannatt.

[Lord Collins of Highbury]

My Lords, in my maiden speech to this House, my first thanks went to the officials and staff for their warm introduction. Not only did they make me feel extremely welcome, they made my husband Rafael feel extremely welcome, too. My second thanks went to your Lordships, not least for the fact that I was able to say “my husband”. These Benches have helped transform my life and the lives of countless lesbian and gay people in this country. I am immensely pleased that it is no longer just noble friends on one side of this House who applaud progress in this area but Peers on every side of the Chamber. That consensus is a sign of this House at its best.

I am therefore very sad that, despite this strong consensus, we have this Motion before us today—sad because it reflects neither the view of the majority of noble Lords nor the intent of the regulations arising from Section 202 of the Equality Act 2010. It is because I strongly support the principle of religious freedom that I welcomed the adoption of this section in the Act—that is, the freedom that would allow a church to say no to civil partnership ceremonies conducted in their premises or by their priests. Equally, if a religious institution or church does wish to celebrate a civil partnership, it should be able to do so. The unconditional right for lesbian and gay marriage through civil partnership can only be a civil one. That is a responsibility the state must ensure is provided without discrimination, fear or retribution. But just as I believe the Church should not interfere with the rights and responsibilities of civic society, I equally believe that the state should not interfere with the conduct of religion or ceremonies in places of worship.

As we have heard today, Section 202 is, as was always intended by those who supported it across the House, entirely permissive. We have heard clear legal opinion from the Church of England and the Government, and many prominent legal counsel have supported this view. The points made by Professor Hill, on which the noble Baroness relies, have also been considered, as we have heard, by Paul Goulding QC in a detailed written opinion, which I know many noble Lords will have seen. It is clear from Mr Goulding’s opinion that neither the regulations nor any part of the law would compel religious organisations to host civil partnerships against their wishes. In particular, he points to the provisions of the Equality Act which expressly state that. My noble and learned friend Lord Falconer argued this case so well in agreement with Mr Goulding’s opinion.

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[Lord Cormack]

My Lords—

[Baroness Verma]

My Lords, perhaps the noble Lord, Lord Dannatt, could speak first and then my noble friend Lord Cormack.

[Lord Dannatt]

My Lords, had I spoken earlier in this debate, I would have made a lengthy speech, much of which has been overtaken by the course of events, which would have been in support of the noble Baroness, Lady O’Cathain. I maintain my support for her today.

Much legal opinion has been expressed on both sides of the argument and a fair consensus would appear to have emerged, but I am left with a residual feeling of ambiguity. Ambiguity can give rise to unintended consequences, and it is unintended consequences that I am worried about. Those consequences arise from regulations that are not crystal clear and have worried a lot of ordinary decent people up and down this country, who have filled noble Lords’ postbags and mine in the past few days.

The noble Lord, Lord Henley, circulated his letter, which we received yesterday, in which he states—and we have heard it repeated already today—that,

“if a successful legal challenge were ever brought, I would like to provide reassurance that the Government would immediately review the relevant legislation”.

If we think that there is some doubt or ambiguity in this case, and if we think that ambiguity could lead to unintended consequences, there is an obligation on the Minister to activate that sentence in the last paragraph of his letter and, for the avoidance of doubt, to make it crystal clear—an expression that we have heard many times in this Chamber today—to people up and down the country, whoever they are, that they have nothing to fear from these regulations. Until I hear a commitment to the avoidance of doubt, I maintain my support for the noble Baroness, Lady O’Cathain.