Marriage (Same Sex Couples) Bill

Lord Alli Excerpts

Wednesday 19th June 2013 Lords Chamber

Given that it is highly likely that a religious minister conducting a legally recognised heterosexual marriage will be held to be exercising a public function, of course conducting same-sex marriages will also be a public function. So it is arguable that when religious organisations make the decision to move from performing only heterosexual marriages to performing same-sex marriages as well, that decision could also be a public function.

[Lord Alli]

I am a little confused again. Is the noble Baroness saying that the quadruple lock is not secure? Unless I am absolutely wrong, I understood the position of the Church of England to be that the quadruple lock is robust and secure. I am not sure what she is arguing.

[Baroness Berridge]

I thank the noble Lord for that helpful intervention. That has been the Government’s position looking at the established church but there is a different situation for those who are authorised people. Generally in our law, you can get married at the registry office, or at the hotel with the registrar there, or you can marry without any intervention of the state when the banns are read in the Anglican Church. In addition, there is a whole group of people and religious organisations—for example, the Catholic Church and Pentecostal churches—which do those marriages as authorised people. They can decide whether to opt in to do this. First, that places them in a different legal context for conducting marriages. Secondly, the Anglican Church can make no decision at all to opt in; in the Bill it is not allowed to. These groups in the middle, many of which are in the ethnic minority community, are in a very different legal position from the Anglican Church.

The risk that religious organisations face when they move from conducting only heterosexual marriages to also conducting same-sex marriages as a public function is exacerbated by the fact that the decision to opt in is not like a decision by a private members’ club where you can look at the rule book and say that the decision was made based on the rules. The discretion to make a decision is in this statute which lends to the argument that it is a public discretion that these organisations would be acting on. The Joint Committee on Human Rights did not come to a firm conclusion on this matter because of a divergence of opinion. However, I believe that helps the case for this amendment. The divergence of opinion makes this amendment necessary because the basis of litigation is a divergence of legal opinion. The Government need to give some reassurance to these religious organisations because without this amendment the lock provided in Clause 1 could be ineffective.

[Lord Alli]

I apologise again to the noble Baroness. I am trying to get to the core of the mischief here and I am just not getting there. Is she saying that Church of England registrars are not covered by this and that this is for the general pool of registrars who are conducting the registration?

[Baroness Berridge]

If you attend a Catholic church, the authorised person is the registrar. No one comes from the local authority’s office. That person performs that public function and the registry office is not involved. It is the obligation of the priest to fill out the register and to return it quarterly to the local authority’s office. No local authority official is present at all. Interestingly, the Catholic Church expressed concern to the Joint Committee on Human Rights—I have heard this concern from other religious organisations—that unless we get clarity in the Bill religious organisations may consider not conducting these marriages at all because they believe the only way to protect themselves is to not be the registrar. That, of course, would have resource implications for the Government.

I am asking the Government to throw away the public function key—the key to actions under the Equality Act, the Human Rights Act and judicial review—and avoid this threat of litigation which would discriminate against some of the nation’s smallest charities. The Joint Committee on Human Rights has urged the Government to consider formulating a new clause to provide additional reassurance to any religious ministers or office holders who perform the dual function of officiating at a marriage in a spiritual capacity as well as performing the public function of the registrar under the Marriage Act 1949.

We have ended up in a situation, by responding quite rightly to the concerns of the established Church, whereby other Christian denominations and other faith groups believe that they do not now have the same level of protection as the Church of England and the Church of Wales. It is important that other religious organisations and individual ministers of other faith groups have the same level of protection as the Government have now afforded in this Bill to the Church of England and the Church of Wales.

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[Lord Alli]

I apologise to the noble Baroness for taking more than my usual length of time to understand the issue. I think I now understand where the issue arises. What worries me is the nature of what the noble Baroness seeks. It seems to me that she wants cast-iron guarantees and, although I am not a lawyer, I assume that we cannot give those in law. Certainly no government Minister, no Member of this House and no Member of the other place can give cast-iron guarantees that any religious organisation will not be subject to vexatious legal actions.

I agree with the noble Lord, Lord Deben, that there is a whole range of people thinking of ways to progress their own politics through the courts, and when they have not succeeded either at the ballot box or in Parliament, they continue to do so. I can put it no better than the noble Lord, Lord Lester, in Monday’s Committee in his rather complex and detailed legal argument. He said:

“The fact that idiots in the public sector or private sector misunderstand it is no reason for us to have to amend this Bill to deal with such idiots”.—[Official Report, 17/6/13; col. 69.]

The question is not whether these people will take up a nuisance case; that is a matter for them in a democratic society. They must have the right to take up that nuisance case. I like it no more than anyone else, but they have that right in a democracy. The clear intention of this House and of the other place can be in no doubt. We have specifically created a process to opt in so as to protect religious organisations. The Minister in the Commons made it quite clear during the Commons Committee stage when he said:

“The imposition of any penalties on or subsequent unfavourable treatment of a religious organisation or individual in order to compel that organisation to opt in to same-sex marriage is already unlawful under the Bill”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee; 28/2/13; col. 280.]

The locks in this Bill are strong and robust. The intention of this House has to be beyond question. I believe those locks are secure, and I am not sure that we can help the noble Baroness with an assurance that there will be no legal action over these cases.

[Baroness Berridge]

I will respond to the noble Lord, Lord Alli. I am not seeking a cast-iron guarantee. I have previously been a lawyer, so I know how people can look at us, but there seems to be a case for some sensible, straightforward language in the Bill that could avoid—as we have put it—a situation in which small charities have to take discrimination claims to deal with that kind of behaviour, and it would provide that reassurance.

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[Lord Alli]

I thank the noble and right reverend Lord for giving way. I know that he will know the Church of England a lot better than I do but in order to conduct a religious blessing, let us say of a civil partnership, in a religious building, it is up to the House of Bishops and the General Synod to approve a liturgy. Without that approval there is no approved blessing by the Church. There is surely, therefore, a mechanism because if I am a priest I cannot conduct a blessing without a liturgy and, therefore, the synod would have to have pre-agreed that it was permitting the blessing, and without such a blessing it could not do so.

[Lord Carey of Clifton]

Yes. I thank the noble Lord for that intervention but I am referring to nonconformist churches which have liturgies that are laid down. In some cases, the very fact of an extempore liturgy is a liturgy itself. The point is whether it is done in a house or a church is immaterial. I am referring to a specific area that is not covered by the Bill. Such bodies would therefore be vulnerable to litigation.

[Lord Alli]

That would not be possible in the Church of England, for example, where there can be no blessing without the liturgy. That could never be the case until the liturgy is approved by the synod.

[Lord Carey of Clifton]

The noble Lord is exactly right but I am not talking about the Church of England because there are liturgies for blessing. I am talking about other areas of church life.

Amendment 15 addresses this problem by amending Clause 2, which already inserts an appropriate protection into Section 29 of the Equality Act with respect to marriage provision. It uses an identical form of words to extend a similar protection in relation to the provision of same-sex marriage blessing ceremonies. In amending Section 29, as Amendment 15 makes clear:

“A person does not contravene Section 29 only because the person (a) does not conduct a service of blessing for a relevant marriage, or (b) is not present at, does not carry out, or does not otherwise participate in, a service of blessing for a relevant marriage, or (c) does not consent to a service of blessing for a relevant marriage being conducted, for the reason that the marriage is the marriage of a same sex couple.”

I cannot conceive of any reason why the Government or any Member of your Lordships’ House, who agrees with the Government’s commitment to protecting religious bodies and ministers of religion from officiating at same-sex marriages, could oppose Amendment 15. It applies exactly the same principles to the increasingly important area of blessing ceremonies that seem to have been overlooked in the drafting of this Bill.

I commend Amendment 15 to the House and hope that the Government and all sides of the House will feel able to support it. I beg to move.

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[Lord Lester of Herne Hill]

My Lords, I am a lapsed humanist. When I was at Cambridge I was a member of the most privileged club which was the Cambridge Humanists and I lapsed because it was too religious. My most memorable experience was asking EM Forster to give a lecture. He said he would give a lecture on whether Jesus had a sense of humour. I said, “That is a splendid subject”. I was just thinking that now you could not give a lecture like that. You could give one on whether God had a sense of humour. I am not sure you could give one on whether the Prophet had a sense of humour. But certainly the proposition at the time was very interesting in Cambridge.

I completely agree with the speeches in favour of these amendments for all the reasons that have been given. One further reason why I am in favour is because both the Equality Act and Article 9 of the European Convention on Human Rights recognise the rights not only of those of religious belief but also of those of no belief, and the Strasbourg Court has repeatedly explained that in a plural society agnostics, atheists and non-believers have as much right as believers of all kinds to equality of treatment. I have no doubt that there is inequality of treatment at the moment between humanists as a belief system and others. If you look at those registered as religions, they include, for example, theosophists. It is very difficult to distinguish between a theosophist and a humanist except that one believes in God and the other does not. And Buddhists and Jainists are registered but they are not theistic religions. I believe that, in terms of equality and common sense, we must move on this, and not only because my party thinks so.

My noble friend Lord Deben said that unlike the United States we have orderly systems in this country when we legislate and I am a bit concerned that in the other place they do not seem to take Long Titles seriously. I cannot imagine that these amendments would have slipped through if this legislation had been introduced into this House because, as the Long Title says, the Bill is to make provision,

“for the marriage of same sex couples in England and Wales, about gender change by married persons”,

et cetera. It says nothing at all about the rights of humanists or anybody else. Therefore, being boring about it, this falls completely outside the purpose of this Bill. I do not want to do anything to jeopardise the coming into force of this Bill but the poor old British Humanist Association has already gone through hoops to get to the position we are in. Originally, it tabled amendments just for humanists and then the Attorney-General said, “That is discriminatory”. It quite rightly changed the amendments to include all belief systems and now I am saying that this is not an appropriate vehicle for doing so.

It seems to me that there must be movement on this and if this Bill is not to be the vehicle, then either there has to be a Private Member’s Bill with government support on this separate issue to comply with Article 9 and 14 rights or some kind of inquiry leading to action. Noble Lords—the noble Lord, Lord Alli, in particular—will recall that we had similar problems when we introduced the concept of religious discrimination but did not include discrimination based on sexual orientation. He, with my support, found an ingenious way round that with a regulation power which enabled us to deal with homosexuality as well as with religion. Although that may not be the right way forward here, the Government need to be imaginative and think of ways of giving effect to the object of these amendments without being able to support them in this Bill.

[Lord Alli]

My Lords, I am not a humanist; I am afraid I am a closet believer in God. But I wanted to add my support to the legislation for humanist marriage and the inclusion of this amendment in the Bill. The Bill is about equal marriage, and allowing fellow citizens to conduct their own legally recognised weddings within their own framework of humanist beliefs seems to me to be a proposal that we should support.

I also believe that there is popular support for this proposal. I suspect the other place was minded to move forward with this but the Attorney-General’s advice at the last minute that the amendments as drafted would breach the European convention and put the quadruple lock at risk meant that there was insufficient time to deal with this. As with so many other issues, the ball is now in our court. I understand that these amendments have been changed to address the issues raised by the Attorney-General and I have seen and even read the advice from Matrix Chambers to support that case. There is huge support for this in my own party, in the Liberal Democrats and on the Cross Benches. I think that this House is minded to pass this and would like the Government to find a way to make this happen. The Government should put their best minds together to see whether we can get these amendments through. On behalf of those who have worked in this area for many years, waiting for a Bill to come along that will allow this to happen, I ask the Minister to look carefully at this.

[Lord Eden of Winton]

My Lords, before the Minister replies to the debate, I would like to follow up the observations made by my noble friend Lord Lester. This touches on the “slipstream” argument brought forward by my noble friend Lord Garel-Jones. I must admit that I am having difficulty enough coming to terms with the Bill as it is and is likely to become, without any further amendments to it of any kind, as I made clear at Second Reading. I believe that what is proposed in the Bill will lead in due course to a fundamental alteration of the concept of marriage in the Church of England such as I have been brought up to know it and indeed as has been the case for many years.

This is clearly not the Bill for an amendment of this kind. None the less, when this matter was considered in the other place in March this year, the Parliamentary Under-Secretary of State for Women and Equalities—I am indebted to the Library for a briefing note on this subject—talking about the inability to hold legally valid humanist marriages in England and Wales, said that the Government would,

“consider amendments to marriage law when an appropriate legislative opportunity arises”.

The Minister felt that this Bill was “not the right vehicle” for the proposed change, and that it,

“must not be thrown off its path by attempts to make wider changes to fundamental marriage law in England and Wales”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 12/3/13; col. 475-76.]

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[Baroness Stowell of Beeston]

The responsibility I have as the Minister responding to this debate is to make clear that something which on the face of it seems quite straightforward would significantly change our marriage law. We have to consider the implications of that before a decision could be made as to whether to change this law. The system we have of registering and authorising people to marry based on religious premises has been in existence since 1898. To introduce a new system for new organisations to be authorised in a different way is a significant change. If we are going to make that change we need to make sure that we have properly considered all the implications.

[Lord Alli]

There is huge respect for the Minister in this House and for the way in which she has conducted the passage of the Bill. We all want the Bill to go through. However, the noble Baroness should take the temperature of the House and of the other place. There is a will in both Houses that this should go through. You see this sometimes when the Front Bench are making their response: the explanation of why it should not go through has been crafted by the Civil Service and does not feel like one any of us understand. The unintended consequence argument, the argument that it could delay the Bill and a whole range of financial arguments are the standard set of arguments put forward generally to stop amendments going through. We would be very sympathetic if we understood what was worrying the Government about this amendment but as yet I, like many others, am lost as to what it is that cannot be done in the timeframes that we are talking about.

[Lord Garel-Jones]

Before my noble friend replies to that, she will, I am sure, have observed that not a single voice in your Lordships’ House has been raised against these amendments. She will have observed that the right reverend Prelate, while unable yet to tell us precisely what the position of the Church of England would be, spoke with, one could say, sympathy towards the position. I think what we are all asking is that if the Ministers, both my noble friend and the Secretary of State in the other place, were to say to the civil servants that they would like to find a way of accommodating this, we know that they could it. We would really like an explanation as to why that cannot be done.