Marriage (Same Sex Couples) Bill

Lord Alli Excerpts

Wednesday 19th June 2013 Lords Chamber

[Lord Waddington]

My Lords, the noble Lord, Lord Dear, brought to the attention of the House certain remarks made by my noble friend in her speech at Second Reading. I will remind the House of some of her words. In particular, she said:

“Teachers will be expected to teach the factual and legal position when teaching about marriage … but they will not be expected to promote or endorse views that go against their own beliefs”.—[Official Report, 3/6/13; col. 940.]

That surely means that the teacher must teach the new definition of marriage and must explain the significance of the change. That may be very difficult for some teachers. The Minister says that the teacher does not have to endorse the new definition, and by that I think she means to accept it as right.

[Lord Alli]

Teachers in any context need to teach the legal position. Is the noble Lord suggesting that they should not teach it, whatever the House decides? The law in terms of marriage is the law. That is a fact. Surely they have to teach the law?

[Lord Waddington]

I appreciate what the noble Lord has to say and he will be able to say it in his speech. I wish he would just hear me out on this little piece of the action. He surely must agree that this begs the question as to whether it is anything we should complain about; he surely must agree that the teacher must teach the new definition of marriage and must explain the significance of the change. The noble Lord must concede, whether he likes it or not, that that may be offensive to some teachers. It is no good the noble Lord shaking his head. I should have thought that after all our debates he knows how divisive this legislation is. Some people find it very difficult to accept that a marriage between two people of the same sex is a proper marriage. It is ridiculous him just shaking his head. We have to face the facts.

[Lord Alli]

I was shaking my head because I do not believe that it is difficult for a teacher to teach the facts. They may not like it, but I believe teaching is a fantastic profession and every teacher I have met is capable of distinguishing fact from opinion. People in this profession are capable of dealing with this issue because that is what they are trained to do.

[Lord Waddington]

A number of teachers will find it extremely difficult to have to explain the new regime. At Second Reading the Minister said that teachers do not have to “endorse” the new definition—by that I think she means accept it as right. She then went on to say that,

“the expression of personal beliefs should be done in a professional way and not in a way that would be inappropriate or insensitive to pupils”.—[Official Report, 3/6/13; col. 940.]

I wonder whether some people might judge that any statement to the effect that the only true marriage is one between a man and a woman is bound to be thought insensitive to some pupils and that therefore it should not be allowed. When we come to Section 403 of the Education Act 1996, which was again referred to by the noble Lord, Lord Dear, there is a strong case for giving some protection to safeguard the position of teachers who cannot in conscience teach that the union of two men or two women is a marriage.

As to conscientious objection, there was a debate about that the other night. One thing was not mentioned. The Equality and Human Rights Commission was reported on 12 July 2011 as saying that the court should have done more to protect Christians affected by equality laws. In the case then pending before the ECHR the commission was going to call on the European Court of Human Rights to back the principle that employers should do more to reasonably accommodate employees’ religious beliefs like they accommodate staff with disabilities. I am quoting from the commission. Later, for quite unexplained reasons, the commission beat a hasty retreat but we can take some comfort in the fact that for a short time it looked as if we were going to get somewhere. Surely if in the dark days of the war you could give people who had a conscientious objection to fighting the right to opt out of military service we could do something similar here.

There have been so many cases where the demands of equality have been allowed to trump the right of people to observe the dictates of their faith. There may be a case in every enactment for protection of those who would find observance difficult on grounds of conscience. I raised that matter in a Question in the House on 8 July 2010. Unfortunately, I got the usual expression of sympathy followed by a statement that the Government had not the slightest intention of doing anything.

I noted the words of my noble friend Lord Deben earlier this afternoon. He talked about tolerance. I do not see much tolerance in this place tonight—not on that side of the Chamber. The Government would be practising tolerance if they gave protection to teachers who find it difficult to teach the significance of the new law on marriage.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, perhaps I may put in my 10 cents-worth on this. I entirely agree with the noble Lord, Lord Alli, that the teacher must teach what the law is. There is no doubt about it. I have the utmost sympathy with what the noble Baroness, Lady Farrington, has said. As I have said previously, it is the duty of teachers to support the child, whatever type of relationship the parents with whom they are living may have. I have happily granted adoption orders to same-sex couples. They are or can be excellent parents—as good as any other. I start from that basis.

However, I have a concern. It is really what the noble Baroness, Lady Farrington, said about being a grandparent. I am a grandparent and my grandchildren ask awkward questions but the concern is about when the question is asked of a teacher. The teacher is there, trying very hard to give a neutral account of what the present law of marriage is. Then a child asks an awkward question and the teacher answers honestly. It could be a question such as, “What do you think about it, miss?”, and the teacher says, “I have to say that I am a member of the Church of England and my view is that I do not believe in same-sex marriage”. The child goes off and tells the mother, and the mother comes and complains to the school because a member of that family is in a same-sex relationship. That is what worries me. It is the perception; it is the interpretation. It is that which has gone beyond the ordinary, perfectly proper teaching of the teacher. It is for that reason that what the noble Lord, Lord Dear, is asking for is a necessary protection for teachers.

I do not support the noble Lord’s second amendment. I think that children should learn everything. When I was a judge, I remember the father of a Roman Catholic family, who was very devout, telling me that I should make an order that in the Anglican school to which he had sent his children they should not attend religious education because it was Anglican education, not Roman Catholic. I basically told him to get lost and that if he had chosen to send the child to that school it was right that the child should learn what the school was teaching. Children should be learning everything and they will then distinguish between matters.

However, the first of the two amendments of the noble Lord, Lord Dear, should not be dismissed out of hand. There is a problem here that has to be recognised.

[Lord Alli]

I wonder whether the noble and learned Baroness has seen the Secretary of State’s Second Reading speech in the other place and what the Minister in the other place said. The Minister said that,

“no teacher is under any duty to promote or endorse a particular view of marriage, and neither would they be as a result of any revised guidance in the future”.—[Official Report, Commons, Marriage (Same Sex Couples Bill Committee, 28/2/13; col. 311.]

If a loophole exists—and I have said this to the noble Lord, Lord Dear—we should try to close it, but it seems to me that the loophole is not there.

--- Later in debate ---

[Lord Alli]

My Lords, I shall be brief because I know that the Committee wants to make progress and there is still quite a lot to be done. This will be handled in exactly the same way as teachers currently deal with the issue of divorce. Teachers in schools up and down the country who hold deeply religious views and do not agree with divorce are free to express those views in the classroom. Nothing prevents them doing so. However, they are required to tell pupils the truth about the world we live in and that divorce exists. I do not think that that causes a problem. The principle applies and it can read across to another set of issues. Teachers have a much better grasp of this than perhaps we are giving them credit for.

[Lord Elton]

My Lords, there are a couple of things which have not been mentioned that we need to bear in mind before this is resolved. The first relates to classroom teaching. I must congratulate the noble Baroness, Lady Farrington of Ribbleton, on giving a perfect example of proper and professional conduct, and some perfect examples of how extremely awkward children can be. However, noble Lords have not actually grasped the fact that many teachers are required by their heads to teach to a particular programme which has been produced by a publisher, by some think tank in a comprehensive, or whatever. It will take an attitude to this which to some teachers will appear as though it is promoting a particular interpretation. Teachers need to be able not to have that forced on them.

The other thing is that, of course, a lot of a teacher’s life is spent in the staff room. No doubt they hold to the view that they are highly professional and will do exactly what the teacher the noble Baroness, Lady Farrington, told us about did under all circumstances, yet in the staff room may express views contrary to those that we are now going to be told are mandatory. If they express an objection to same-sex marriage which, as the noble Lord, Lord Dear, has said, is interpreted as being tantamount to homophobia, and that sort of conversation is held in the staff room, particularly of a large school, there will be those on the staff who will regard it as making them unfit to teach. Those teachers will find themselves under undesirable pressure. No doubt the Minister will take this away and think about it, and indeed all these exchanges will prove to be useful.

[Lord Eden of Winton]

My Lords, I believe that it was the noble Lord, Lord Dear, who said that this is something of knife-edge issue, and I sympathise with that observation. I hope that I will not embarrass her, but I find myself in considerable agreement with the noble Baroness, Lady Farrington of Ribbleton, and I certainly have a lot of sympathy for her whole approach to this subject. However, I have one deeply held anxiety which I would like to express very briefly in the hope that it will be allayed by the response of my noble friend the Minister.

It is not the objectivity of teaching that worries me. It is not the way that teachers will interpret or rehearse the law before their pupils or their classes that is my concern. On the whole, I have enormous respect for the teaching profession, having been associated with it for some time, and I think that teachers will do their job admirably. That is not my worry. My worry lies in what I think the noble Baroness, Lady Farrington of Ribbleton, said, and certainly others have mentioned; namely, the difference between what I would call the objective teaching or factual teaching, as the noble Lord, Lord Alli, said, and promotion. That is the knife edge. It is done so easily. It is done by emphasis and by inference. We know through our respective interests how easy it is, almost subliminally, to encourage a viewpoint that is held firmly by the particular promoter of that view. It is done carefully and sometimes not quite so carefully. This is my worry and I hope my noble friend will be able to reply.

I have seen, as other noble Lords have doubtless also seen—there is nothing peculiar about me, there is no reason why I alone should have seen this—material in the public domain which is promotional material advertising the good things about same-sex relationships. I have heard it said—I give no particular credence to this; it is hearsay—that teachers sometimes encourage pupils in their class to experiment, to find out in terms of sexual relationships, “what makes you happy”. This is what worries me. There is an undercurrent there of crusading on behalf of same-sex relationships which I think has no place in a school. I accept teaching factually; I do not accept promotion or promotional material.

[Lord Alli]

In the spirit of tolerance that the noble Lord, Lord Waddington, asked for, will the noble Lord accept that, for many of us, the use of the word “promotion” and the language that the noble Lord has just used is particularly emotive because of Section 28? Will he therefore accept, in the spirit of tolerance, that where the amendments are crafted in such a way that that phraseology is embedded in them, that is the reason for the perceived reaction that the noble Lord may get? Will the noble and learned Baroness, Lady Butler-Sloss, also accept that where there is a mischief we genuinely want to solve it, but if the language is inflammatory, if the arguments put forward are inserted into the Bill, it is very hard, in the air of tolerance, for us to have a proper and constructive discussion?

[Lord Eden of Winton]

I am very sorry to hear the noble Lord say that because I certainly do not want to offend him or anybody else of that persuasion. However, he is right to say that I am emotional about the issue, because I feel very strongly about it. I hope he will accept that there are strong feelings on the side that I represent, as strongly as he represents the feelings on his side. I cannot help that. I feel I have to express these views, because we are talking about legislation, which is likely to become the law of the land, in which case my views will be sublimated and the law takes over. Now is the time for me to express these views, and I hope I convey the feelings which I believe represent the views of others beyond this House. I hope that I will get a response from them.

We talk about teachers being required to teach the law correctly. What is the position of teachers in Church of England schools? They will also be required to do this. This is one of the areas of difficulty which I find being developed by the proposals in this Bill, which I hope will be satisfied, if not by the existing protections, at least by the amendment of my noble friend Lord Dear.

--- Later in debate ---

Moved by

[Lord Alli]

26A: Clause 10, page 11, line 1, leave out subsection (3)

[Lord Alli]

My Lords, the effect of Amendment 26A is to remove the schedule that converts same-sex marriages into civil partnerships in Northern Ireland and Scotland. The Bill makes legal same-sex marriages in England and Wales. I state from the outset that the amendment does not alter the laws of Scotland or Northern Ireland in relation to conducting same-sex marriages. These are prescribed matters for the Parliament in Scotland and the Assembly in Northern Ireland. I do not wish to trespass on their jurisdiction any more than the Bill already does. My intention is not to amend legislation in Northern Ireland or Scotland by the back door.

The effect of the schedule is to state that, even though a couple are lawfully married in England and Wales, they are deemed not to be married in Scotland and Northern Ireland. The Government’s view seems to be that a couple lawfully married in England should not be treated as such elsewhere in the union where such marriages are not performed. In particular, a couple of the same sex married in England and Wales should not be recognised as married but rather treated as civil partners, even if they have not entered into a civil partnership. If I were to get married in London and move to Belfast—I am sure the noble Lord, Lord Waddington, would be very pleased about that—the Bill would convert my civil marriage to a civil partnership.

I am not persuaded that the Government are right about this. As the union develops, with increased devolution of the nations and regions, we are all to a certain extent fumbling our way forward together. Our absence of a written constitution has the advantage of flexibility, but there is not always the certainty that would be helpful. There will be times when one of the regions or nations passes a law that does not sit comfortably with the laws of the other parts of the union. The question is how we should resolve that, and whether there are any precedents that might be helpful. I am not aware of any, and the Government are in danger of creating an unhelpful precedent.

In the absence of past guidance, it would be helpful to look at basic principles. A first principle must be that as our devolved union develops, it is very important that it should do so on the basis of what we have talked about this evening: namely, mutual respect. For example, it would be wrong for England to try to force another part of the union to pass laws on which it has devolved powers, but it would be quite appropriate for England to expect other parts of the union to respect English law. A law passed in one part of the union cannot simply be ignored in another part because it is unpopular there.

On the point in hand, it would be a constitutional nonsense for a couple to be deemed to be married in one part of the United Kingdom and not in another. If that were the case, it would be difficult to understand exactly what the union was for. I argue that it is up to the Secretaries of State for Scotland and Northern Ireland, and the Scottish and Northern Irish Ministers, to ensure that a couple married in England and Wales are treated as married in Scotland and Northern Ireland. It is not for us to presume to convert English and Welsh marriages to Scottish and Northern Irish civil partnerships. I hope that the Minister will agree and accept the amendment. I beg to move.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I welcome the opportunity to clarify how the Bill, which makes provision for marriage of same-sex couples under the law of England and Wales, affects Scotland and Northern Ireland. I assure your Lordships that the Government have had lengthy and considered discussions with Scotland and Northern Ireland Ministers and officials to ensure that where the Bill touches on devolved matters, it does so appropriately. I understand where the noble Lord, Lord Alli, is coming from on this but it is not possible for us to accept his amendment or, indeed, those spoken to by my noble friend the Duke of Montrose, which would cut across the approach that we have been discussing with the devolved Administrations.

Indeed, the effect of the amendment of the noble Lord, Lord Alli, would be to remove the relevant part of Schedule 2 to the Bill. It might be helpful if I explain the effect, and importance, of Schedule 2. Without the provisions in Schedule 2, if a same-sex couple married in England or Wales, their relationship would not have legal status if they subsequently travelled or moved to Belfast or Glasgow. It is not that their marriage in England or Wales would become a civil partnership; it would have no status whatever under the law of Scotland or Northern Ireland.

[Lord Alli]

But it does not have a legal status in Northern Ireland and Scotland because it is a marriage in England and Wales. What the Bill is proposing is for this Government and this Parliament to request—because that is all we can do—the devolved Administration in Northern Ireland and the Scottish Parliament to accord it a lower status in those territories.

[Lord Wallace of Tankerness]

My Lords, the position is that, as things stand at the moment, there is no provision in either Scotland or Northern Ireland for same-sex marriage. Therefore, if a same-sex couple who are married in England and Wales were to move to Scotland or Northern Ireland, their relationship would not have a legal status of marriage in Scotland or Northern Ireland because that provision does not exist. There is no such thing at the moment in Scotland or Northern Ireland as same-sex marriage. Schedule 20 to the Civil Partnership Act 2004 lists the overseas same-sex relationships which are treated as civil partnerships in the United Kingdom. This partly answers the question raised by the noble and learned Baroness, Lady Butler-Sloss.

At the moment, overseas same-sex marriages are not recognised as marriages in England, Wales, Scotland or Northern Ireland. They are treated as civil partnerships in the United Kingdom, and Section 213 of the Civil Partnership Act 2004, under which Schedule 20 has effect, also sets out the general conditions which must be met for such relationships to be recognised in the United Kingdom. If the amendment of the noble Lord, Lord Alli, were to be carried, we would have the slightly anomalous situation where a couple moving to Belfast or Glasgow would be in a worse position than a same-sex couple who married in Portugal, or elsewhere overseas where same-sex marriage is permitted, and then went to live in Scotland or Northern Ireland.

Under the current law, the 2004 Act, these same-sex marriages contracted, for example in Portugal, would be treated as a civil partnership. If this Bill becomes an Act, we do not wish to see a situation where a same-sex couple married in England would have lesser legal status in Scotland or Northern Ireland than a same-sex couple who married in Portugal. It is for that reason that Schedule 2 exists. As the noble Lord indicated, marriage and civil partnerships are devolved matters. The noble Lord asked why Secretaries of State for Scotland and Northern Ireland could not get together with Scottish or Northern Ireland Ministers to make them marriages. That is not how devolution works. Legislation would have to be passed by the Scottish Parliament or the Northern Ireland Assembly.

As the Bill anticipates, referred to by the noble Baroness, Lady Thornton, the Scottish Government have indicated that they will bring legislation before the Scottish Parliament to bring about same-sex marriage as a legal status in Scotland. That is why, if noble Lords look carefully at the provisions for Scotland in Schedule 2, the order-making power would not have effect if the Scottish Parliament passes legislation for same-sex marriage. In many respects, what is there is deliberately framed, recognising the likelihood that same-sex marriage legislation is to be brought forward in Scotland in the relatively near future.

It is probably also fair to say that same-sex marriage legislation does not appear to be on the horizon in Northern Ireland. That is why the position regarding Northern Ireland is that there is not an order-making power, which will lapse in Scotland when or if Scottish law changes, but rather one that sets out in primary legislation the same position for same-sex marriages contracted in England and Wales in Northern Ireland, as is the case for same-sex marriages contracted in other countries, such as Portugal. People there would be in the same position in Northern Ireland as they would at present.

Last week, the Scottish Parliament passed a legislative consent Motion to the provisions in this Bill which impinge and deal with devolved matters affecting Scotland. The question was asked what would happen if we could not get a legislative consent Motion from Northern Ireland. Our concern would be that this would risk leaving couples with no legal status in a part of the United Kingdom. This could have important European Convention on Human Rights implications. We would need to consider this carefully if this situation arose and whether amendments to the Bill would be needed.

I know that this is not what the noble Lord, Lord Alli, wishes to see, but given the devolution settlement, this Parliament should not legislate for same-sex marriages in Scotland or Northern Ireland and I do not think that anyone in this Parliament is arguing for it. However, in the absence of legislation there, it is important that we give couples who have contracted a same-sex marriage in England and Wales a legal status in Scotland and Northern Ireland. Without the schedule they would have no legal status, so we are putting them on a par with couples who are married in other countries which have passed legislation on same-sex marriage.

--- Later in debate ---

[Lord Wallace of Tankerness]

As ever, my noble and learned friend expresses it far more concisely than I do.

[Lord Alli]

My Lords, I thank the Minister for that reply but, as he probably recognises, I am not happy with it. If I got married in England or Wales, I would expect my marriage to be recognised in Scotland and Northern Ireland. It is the essence of the union. For us to have found a mechanism in the Bill to convert marriages into civil partnerships feels as though it was too difficult politically to keep them as marriages. It is clearly a nonsense for couples to be married in England and Wales, and then be treated differently in Northern Ireland and Scotland. For us, in this Parliament, to determine that a marriage in England and Wales should not be treated as a marriage in Scotland and Northern Ireland, without putting the question—as the noble and learned Lord, Lord Mackay of Clashfern, just indicated—to the Secretary of State for Scotland, and those Scottish Ministers for that order, or indeed to the Northern Ireland Secretary of State and Ministers, is for us to be complicit in perpetuating an inequality. Nevertheless, I will read what the Minister said and reflect, but I have no doubt we will return to this on Report. I beg leave to withdraw my amendment.

Amendment 26A withdrawn.

--- Later in debate ---

[The Lord Bishop of Guildford]

Again, I support a probing amendment. I am concerned that marriages between people of the same sex should enshrine the same standard of fidelity as marriages of heterosexual couples. As it stands, the Bill does not quite deliver this. Indeed, the Bill enshrines a very important inequality in the way that the virtue of fidelity is manifested in relationships. Marriage between people of the opposite sex is partially defined by the fact that sexual infidelity—adultery—is a recognised and long-standing ground for divorce, as has been expounded very eloquently by the noble and learned Baroness, Lady Butler-Sloss. This is not found in the Bill.

Faithfulness is intrinsic to the promises a married couple make to one another. I feel very strongly that, as we go forward in our scrutiny of the Bill, this House must find some way of including that faithfulness equally for all married couples, if we are looking to something that has been described as equal marriage. On the grounds of equality that is an omission and in terms of the social significance of faithfulness, which is central to marriage, this omission diminishes the status that couples of the same sex stand to receive from being married. As the Bill stands, such same-sex marriages could be accused of being of a lesser standard in terms of faithfulness than heterosexual marriage unless this point is attended to.

[Lord Alli]

I thank the noble and learned Baroness for bringing forward this amendment. I have listened to what she said most carefully and I can see the point she raises. Unfaithfulness is understandably a cause for which many people seek divorce but I do not think that anything in this Bill will prevent people divorcing their partners for unfaithfulness. In my view, marriage is a contract that varies in its nature, understanding and commitment from couple to couple. The issue and the importance of fidelity is one that, equally, varies from couple from couple, but it is fair to say that fidelity is a cornerstone of most religious marriages. I think the same should be said of civil marriage, too.

The definition of the sexual act that defines fidelity for heterosexuals is outdated and, in my view, very cumbersome. The noble and learned Baroness is very brave to bring the issue to this House. When one looks at penetration as part of that definition, or we try to import the definition of penetration from rape into this, it does not deal with lesbian couples, for example. So much of our sexual law is defined by the male and not by women that a complete class of marriage is ignored by what the noble and learned Baroness is trying to do. If we had had more and broader discussions on the Civil Partnership Act and over the Bill, we may find common ground, but simply importing the definition of penetration—anal, vaginal or oral—into this would leave lesbians at a complete disadvantage regarding fidelity. While I completely understand what is behind this, we come back to the definition of fidelity. I think the Government’s position has been not to disturb the current arrangements as far as possible, to avoid tampering with existing legislation. It is a much wider question, which I certainly welcome. There is no way anyone can accuse the noble and learned Baroness of being homophobic in her amendment.