Marriage (Same Sex Couples) Bill

Lord Anderson of Swansea Excerpts

Monday 17th June 2013 Lords Chamber

[Lord Anderson of Swansea]

My Lords, I hope that the Government will listen to the points that have been made and recognise that there is a real problem here. The Government can, after all, be magnanimous. They have had substantial majorities in favour of the Bill, both in the other place and here. Now they can listen to the clear case for the protection of those who will be adversely affected if this Bill, as no doubt it will, becomes law. I hope also that the Opposition will recognise our proud tradition, over the centuries and beyond, of trying to support radicals; those who are against the wind, those who have a legitimate conscientious objection.

I do not agree with my noble friend on the Front Bench who was trying to reduce to absurdity the idea of where we draw the line, of what happens if someone objects to mixed-race marriage. There was not an objection. Even in apartheid South Africa, if one were white one could find a church in which to marry a black woman, or the other way round. It is rather like asking what would happen if a registrar objected to marrying someone with ginger hair. Of course, one can raise an objection of that sort and try to draw a silly distinction, but there must surely be a point where reasonable people accept that there is a substantial body of opinion which is in favour of traditional marriage, and if it is at all possible, as in the terms of the amendment, one should seek to accommodate it.

The noble Baroness, Lady Cumberlege, should be congratulated on the balanced and tolerant way in which she moved her amendment. The good sense of the people should be accommodated because there is not only the problem which the noble and learned Baroness, Lady Butler-Sloss, mentioned: that the contract of an existing registrar will have been altered by statute to their detriment. This will not have been part of their original terms and contract of employment, so they would stand being faced with the awful choice of either going against their conscience or losing their job. Surely there should at least be some transitional arrangements to allow for this. Furthermore, looking at this in a practical way, one asks how many people are likely to be affected by this. What will the demand be for same-sex marriages? The evidence from other jurisdictions is that demand will be relatively small. I concede that the evidence points to the fact that there was a more substantial demand in the initial stages, because of the pent-up demand from those who wished, for example, to transfer from civil arrangements to a full marriage position; but afterwards, there was a relatively small number.

If it is the case—I think it is very likely to be the case—that only a small number will wish to enter into a same-sex marriage, then that is surely manageable and should be managed by reasonable accommodations and by good will on the part of the Government and those who seek to legislate. I am not even sure of the concession made by the noble Baroness that someone might be compelled to officiate if there is not someone actually available within Islington or wherever. If it is likely to be the case that only a small number are going to be affected, in larger jurisdictions there will be more than one registrar in any event, and it is surely not beyond the wit of an accommodating and understanding local authority to make arrangements with an adjoining local authority. In so many other areas of competence, local authorities co-operate.

I fear that there is a whiff in the Government of “The juggernaut moves on. We shall insist that these people conform, jump to attention, do what we say they will do, or they will properly be dismissed”. There surely must be a more tolerant attitude, as we have had over the years, to people who have an established objection of conscience. Certainly, over the years my party has recognised that the establishment has always railed against those who AJP Taylor called troublemakers, because troublemakers lead to progress. We have always respected those who stand against the wind of public opinion or of legislation of this nature. If we have reasonable good will and magnanimity, we will seek to accommodate that small minority of people rather than say, “You must conform or else”, or otherwise seek to reduce to absurdity their own position.

My own judgment is that we can find the good will that dealt with the sort of problems we faced in the previous century when there was a majoritarian approach. The Liberal Democrat approach was rather to encourage politicians to introduce laws that, yes, were mandated by the majority, but with sensitivity to minorities where there might be negative or unfortunate effects. When it became apparent that a law designed for and supported by the majority—this one is perhaps supported by the majority but it is designed for a minority—might have negative effects, the answer was not to abandon the law or put the minority outside its scope, which could negatively impinge upon it, but to provide different treatment under the law.

One saw the same authoritarian approach with the then Government’s attitude towards the adoption agencies of the Roman Catholic church. With a degree of good will, they could have been accommodated. The Catholic agencies could have referred same-sex couples who wished to adopt to other agencies that would help them, but no, the authoritarian bandwagon rolled on and the effect was negative in respect of children. Many of the agencies were forced to close. People may have felt better inside at that, but the unfortunate losers were the children who had been cared for extremely well by those Roman Catholic agencies.

The truth is that a law designed for a majority, or in this case a minority, can have perverse and unintended consequences for minorities. Similarly, a law designed for one minority can have perverse and unintended consequences for other minorities. In my judgment, with good will, they should and can be provided with appropriate accommodations. The simple effect of this legislation will be that if you are a registrar, you are religious or your identity is such that you cannot in all conscience officiate at a same-sex marriage without acting in violation of that identity, you have an awful choice to make. You can either officiate and act in violation of your identity and your conscience or you can lose your livelihood. Surely that goes against all the traditions of this country when an easy way out can be found.

The fact is that many employed by public authorities have their consciences respected. Examples have been given—I will not go over them again—of atheist teachers. The noble Lord, Lord McColl, cited an example from his own experience of doctors and abortion. If we pass this Bill unamended, the effect of it will be that every registrar with a sincerely held objection to same-sex marriage must either act in violation of their identity and be willing to officiate at such marriages or lose their vocation. That is the blunt choice. I end by saying that it would be a frightening and illiberal Britain which would force them to do such a thing. Just as we make space for atheist teachers and for doctors and nurses, surely we should make space for registrars.

Of course the job of registrars is to officiate at marriages, but I would submit that the number of same-sex marriages is likely to be very small indeed. I recall that during the Committee stage in another place, the Minister was asked the following by Tim Loughton MP:

“Why is that the principle that a surgeon who has strong Catholic views is allowed to pick and choose whether to perform abortions or other surgery, if the same principle cannot be applied to a Catholic registrar with strong views, allowing them to pick and choose whether to perform that other public service? What is so essentially different that we protect one but not the other?—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 26/2/13; col. 234.]

The Minister responded by saying that they are different functions: one is an abortion; the other is a same-sex marriage. That is hardly an adequate answer. Surely there is an inconsistency in the Government’s position—in both cases public servants perform a public function for which the public pay. Merely saying that they are different functions is inadequate. Registrars should have their conscience accepted as well.

Those of us who were brought up just after the Second World War recall the statements attributed to some of the awful chairmen of conscientious objectors tribunals. Imagine them saying to a young man who, on conscientious grounds, did not wish to go to war, “you cannot pick and choose”. I think of Crito and Plato in this context—you cannot pick and choose. This has shades of some of those awful chairmen of tribunals. I hope that this House, consistent with its traditions of individual liberty and freedom of conscience, will support this worthwhile amendment.

[Lord Alli]

My Lords, I understand that it might seem unfair to the right reverend Prelate, or to the noble Baroness, Lady Cumberlege, that registrars who do not approve of gay marriage should have their jobs put at risk. However, it is their refusal to do their job, not their religious belief, that creates the issue.

However, I was rather taken by the intervention of the noble and learned Baroness, Lady Butler-Sloss, and I think it does us credit to look at some of those transitional arrangements to see what can be done. I also agree with the noble Baroness, Lady Barker, that this House has at its core the belief that every citizen in this country has a right—regardless of creed, colour, background, religion or sexual orientation—to have equal access to the services that we pay for. It is something that we debated at great length during the passage of the Equality Act (Sexual Orientation) Regulations 2007. As a House, we put beyond doubt that no one should be denied equal access to services simply because of the way they were born. This provision flies in the face of that principle.

To the noble Lord, Lord Anderson of Swansea, I say that it cannot be right, equally, for public servants to pick and choose which laws they will and will not implement. That is a recipe for chaos. I think my noble friend on the Front Bench was saying that this would open the door to allow Hindus, for example, to refuse to marry people who marry outside the caste. It would also open the door for Catholic registrars to have the right to refuse to marry divorcees. It would give registrars the delegated powers of this House and of the other place. That is not something that we should permit, no matter how tempting the case.

The other uncomfortable feeling I have is the notion that simply having a strong religious belief against gay marriage entitles you to be exempt from the law, but that having the opposite and equally strong religious conviction does not. The right reverend Prelate knows that the church was very happy to ensure that the provisions of this Bill could come into force only when religious organisations, such as their own, decided they should. There is no conscience clause there: no individual priest or cleric who is a registrar is allowed to opt in, no matter how strong their conscientious belief that same-sex marriage should be allowed to be performed in religious settings. If a conscience clause is so desirable, I make this offer to the right reverend Prelates the Bishop of Hereford and the Bishop of Leicester. If you are prepared to accept a conscience clause on this side, help me to craft a conscience clause for the clerics and priests in the Church of England who wish to opt in to registrar marriages. You have got your lock: attacking ours is not, in my view, a clever move.

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood]

My Lords, I, too, confess to having some sympathy with the amendment, particularly as diluted by the noble and learned Baroness, Lady Butler-Sloss. However, I hasten to add, I do not have enough sympathy actually to support it. It would represent the thin end of a dangerous wedge and set a troubling precedent. I recognise of course that there are some limited exceptions to the obligations on doctors and certain others but I think that, without exception, they relate to cases where there is some physical relationship between the person being exempted from a public duty and somebody else.

The closer analogy is perhaps with incumbent judges. It has never been suggested that judges should be free on grounds of conscientious objection to refuse to take certain cases. Proposed subsection (3) in the amendment refers to “religious or other belief”. Suppose that a judge strongly objects to indeterminate sentences, whole-life tariffs, automatic sentences, rules such as “two, three strikes and you’re out” or, in days past, to divorcing people. Catholic judges were from time to time, as the noble and learned Baroness will confirm, obliged to pronounce in divorce cases. Indeed, those of us who sat here as Law Lords, and then across the square as Supreme Court judges, routinely as part of our duties sat on Privy Council appeals. From time to time we would be confronted with final appeals, often from the Caribbean, in capital cases. Is it suggested that it would have been open to a member of the court to decline to take such a case on the grounds of a religious or other strongly held belief?

Very simply, public servants should almost without exception—save in these physical relationship cases—serve the public according to the law as democratically enacted. They should not seek to shed what they regard as their less palatable duties on to long-suffering colleagues.

[Lord Anderson of Swansea]

Am I correct in saying that it is not a question of a judge declining to sit on a particular case? If a judge had a particularly well founded objection in principle, and that was well known, it is likely that the case would not in fact be allocated to him.

[Lord Brown of Eaton-under-Heywood]

I do not believe that to be so.

[Baroness Barker]

My Lords, I listened to this debate with great care. It is one of the most important we have had. It was very telling that the noble Baroness, Lady Cumberlege, refused to consider the application to other groups of the principle that she invites us to accept. I thought that was very, very telling. Going back to the points I made earlier today, I defend the right of religious organisations not to like gay people, and to treat gay people differently. I defend their right to do that. I do not defend the right of individual public servants to determine the level of service given to a member of the public according to their private views.

I listened to the noble Lord, Lord Dear, talking about his earlier amendment, which had a similar effect. He talked about a situation in which public servants remove themselves and walk away. How would you feel, as a member of the public turning up for a service that you and everybody else are supposed to be allowed to have, if the person behind the desk walks away? How would you like that to happen to you on one of the most important days of your life? Would you like to have a really important ceremony in your family officiated by somebody who quite plainly does not like you?

[Lord Anderson of Swansea]

Surely there is not likely to be any situation in which a couple go to a registrar who is seated at a desk and that registrar walks away from them. The position is clear. The authority would know in advance who is coming, and there would be no insult to the individual couple because a registrar there would have no objection in conscience. There is no way in which an individual couple could be injured in the way the noble Baroness describes.

[Lord Dear]

If I may respond, that situation is really an exercise of emotion rather than fact. The likelihood of a registrar suddenly seeing a gay couple in front of them and turning on his or her heel and walking away is so fanciful as to be almost ludicrous. I would expect to find that people signal their objection before the likelihood occurs. A registrar in this position would signal that, from a matter of conscience, they cannot conduct that marriage. They would make that known to whoever runs that office and somebody else would be in place. I certainly do not envisage—and I certainly would never support—a registrar turning on their heel on the wedding day, walking off and leaving the vestry or the registry office completely open. That is not within my frame of reference at all.