Marriage (Same Sex Couples) Bill

Lord Anderson of Swansea Excerpts

Monday 24th June 2013 Lords Chamber

[Lord Anderson of Swansea]

There may be differences on the detail in relation to the nature of the review and its timing—as the noble Lord, Lord Fowler, has said—but I hope that my facial expression as conveyed by television will indicate that I am in broad agreement with the principle of the noble Lord, Lord Dear.

I pose a simple question to the Minister in this respect. What do the Government lose by acceding to the request for a review after a reasonable interval? They have given assurances that there will be no adverse consequences to any individual and that all the litany of adverse consequences on people in this country and abroad will not come to pass because they have a watertight Bill. If they are so confident of those assurances that there is no possible harm to those who wish to express their deeply held views, why are they likely to contest this in principle?

In the past, when we have cited problems which have arisen—perhaps in Washington state, the Netherlands or in Sweden—it has been easy for the Government’s spokesman to argue: “Our position is different. We are not Sweden and we are not the Netherlands”. Let us concede that this is a laboratory experiment. We do not in fact know how watertight the reassurances that the Government have given will be. We do not as yet know what will actually happen in practice. After a reasonable interval, we can review and find out whether the assurances are indeed as watertight as the Government claim. Therefore I support the principle that there should be some form of review and I hope that the Government will accede to it.

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[Baroness Royall of Blaisdon]

My Lords, in my view this amendment is absolutely unnecessary in the terms put forward by the noble Lord, Lord Dear. I think that the process that the noble Lord suggests is flawed and unnecessary. However, I am a great fan of post-legislative scrutiny and I know that the committee looking into the Mental Capacity Act is doing a splendid job. I think that every Act should be subject to pre-legislative and post-legislative scrutiny as a matter of course, so I would not be against post-legislative scrutiny, but I am utterly against the sort of judicial process that the noble Lord speaks of.

I say to my noble friend Lord Anderson that I find it slightly offensive that he talks of this Bill as a sort of laboratory experiment. I recognise that it brings about a profound change in our society—from my perspective, a very welcome change—but it is certainly not a laboratory experiment. I wish to put that on record.

I say to the noble Lord, Lord Dear, that his suggestion would be completely impractical. The first same-sex marriages will not take place until about a year after the Act has passed. A review in two years’ time would be completely mad. I have discussed this with the Minister and I think that there will be some standard post-implementation evaluation of the Bill, which will be very welcome, but that will rightly not take place for some time. I ask the noble Lord whether he looked at his own marriage one or two years after he entered wedded bliss. I suspect not. In same-sex marriages we tend to think about the seven-year itch, which is a long time after the two years that the noble Lord is talking about.

The thing that would interest me in 10 years’ time would be to go back to noble Lords who are currently against or have deep concerns about the Bill to see whether their views of same-sex marriage have changed. I would wager that the same acceptance that we now have on all Benches for civil partnerships—

[Lord Anderson of Swansea]

The difference is that, whatever reasonable time one chooses, this is not about looking at the nature of marriage or the changes brought about; it is about looking at the protections that have been promised and whether or not they are effective. That is the real purpose of a review, whether it be a post-legislative review or something else, at the appropriate time.

[Baroness Royall of Blaisdon]

I understand what my noble friend is saying and, as I say, in terms of post-legislative scrutiny I think that that is not a bad thing to look at. However, I point out that views of civil partnerships over the past nine years have changed profoundly and I think that we will find that views of same-sex marriage will change also. Many of the fears that people expressed at the time of the Civil Partnership Bill were very much the same as the concerns being expressed about the same-sex marriage Bill.

The noble Lord, Lord Dear, cited statistics about Spain and the Netherlands. He has his set of statistics and we have ours. I do not have my own statistics to hand. It would be extremely helpful if the Minister could, in due course, write with our interpretation of those statistics so that they, too, are on record.

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Moved by

[Lord Anderson of Swansea]

48: Before Clause 15, insert the following new Clause—
“Referendum provisions
(1) A referendum is to be held in England and Wales on the issue of same sex marriage.
(2) The referendum is to be held on 7 May 2015.
(3) If the Secretary of State is satisfied that it is impossible or impracticable for the referendum to be held on 7 May 2015, or that it cannot be conducted properly if held on that day, the Secretary of State may by order appoint a later day as the day on which the referendum is to be held.
(4) Any day appointed by order under subsection (3) must be before 1 June 2016.
(5) Where a day is appointed under subsection (4), the Secretary of State may by order make supplemental or consequential provision.
(6) The Secretary of State must by order make provisions for the conduct of the referendum.
(7) An order under this section may not be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.
(8) The question that is to appear on the ballot papers is—
“At present, the law in England and Wales defines marriage as the union of a man and a woman. Should the law be changed to define marriage as the union of two people—whether a man and a woman, or woman and a woman, or a man and a man?”.
(9) Those entitled to vote in the referendum are the persons who, on the date of the referendum, would be entitled to vote as electors at a parliamentary election in any constituency.”

[Lord Anderson of Swansea]

My Lords, Amendment 48 stands in my name and those of the noble Lords, Lord Cormack and Lord Singh, both of whom are present this evening.

If Amendment 48 were adopted, after this Bill reached the statute books there would need to be a referendum of the people of England and Wales in which a simple majority supported the redefinition of marriage proposed by this Bill before the new legislation could take effect. The proposed new clause sets out the date—of course, that of the general election, to ensure a good turnout in the referendum. In my judgment, the question is a fair and simple yes or no to the proposed change.

I readily admit that there was a time when referendums were alien to our British tradition. Those of my grandparents’ generation never got to vote in any referendums. Of course, things have changed in recent years. Leaving aside the vote on Sunday opening of public houses in Wales, there was in 1975 the Common Market referendum; in 1979 the first devolution referendums; in 1997 the second devolution referendums; in 2011 the Welsh Assembly referendum; and of course there was the referendum on PR for Westminster elections in May 2011. If the Prime Minister has his way, in 2017 there will be a further referendum on our future membership of the European Union. That proposed referendum is on a relatively complex matter. By contrast, the referendum on this Bill would be a simple choice. In my view, there is a far greater public interest on this issue than in several of the other referendums. There is a clear constitutional precedent for the use of referendums now in decision-making and clearly the Government have no objection in principle to the use of referendums.

What is it about this particular issue that merits the provision of a referendum? I give three main reasons. First, there is the magnitude of the change. In the first instance, we need to recognise the very radical nature of the change proposed by the Bill. While there is no denying that aspects of marriage have changed over the years, the basic definition that it is a lifelong commitment of a man and a woman in a potentially procreative context has not changed for millennia. Indeed, there is a very real sense in which marriage predates the state and in which our marriage laws do not so much define marriage as reflect a pre-existing definition. In that context, seeking to redefine marriage is revolutionary: first, because marriage has been defined in one way for so long; and secondly, because we are seeking to use a political means to redefine something that was not defined politically in the first place. Many champions of the limited state would suggest that we should respect the boundary between civil society and the state and not engage in such projects. However, if one is to do so, the need for a very clear mandate becomes particularly developed.

Secondly, there is the magnitude of the change in the absence of that electoral mandate. Surely no person speaking on behalf of the Government can plausibly claim that there is an electoral mandate for this change. We need to understand that there has been no mandate. It is one thing to seek to introduce a more modest change without an electoral mandate but to engage in this kind of fundamental change without such a mandate is frankly shocking. There was no manifesto commitment from any party within the coalition or from my own party without. Some have sought to point to the Conservative Party’s A Contract for Equalities as justification but that will not do. It was an entirely separate document from the 2010 manifesto, published just three days before the election and long after postal voting had begun. Moreover, that contract did not commit to redefine marriage, only to consider reclassifying civil partnerships as marriage—something that would have involved only amending the Civil Partnership Act, not rewriting the Marriage Act. Equally, during that election campaign the then leader of the Opposition told Sky News that he had no plans to redefine marriage. Of course, during the passage of the Civil Partnership Act it was made clear from the then Government’s Front Bench that that did not constitute a step towards equal marriage. Thus, the strength of particular pressure groups appears to be quite formidable.

Thirdly, there is the violation of constitutional due process. In this mandate-less context for a very far-reaching change, one would have expected the Government to tread with some deliberate care and to strive to make up for the lack of an electoral mandate by being careful to do everything very properly: conducting a number of high-quality consultations, perhaps publishing a Green Paper and then a White Paper, or perhaps establishing a royal commission. One would certainly have expected a draft Bill and some form of pre-legislative scrutiny by a Joint Committee of both Houses. The only thing we got was a single and very flawed consultation process. In the first instance of that process, all submissions were anonymous so there was nothing to stop people with strong views making multiple submissions. Moreover, the anonymity also means that we have no way of knowing what proportion of submissions came from abroad, perhaps in response to a particular foreign pressure group. That should certainly be considered in light of the fact that those submissions were not made by British citizens who stand to be affected by any change in our domestic law.

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[Lord Fowler]

My Lords, as with post-legislative scrutiny, I have some sympathy with the principle of referendums. I am totally unlike my noble friend Lord Cormack. We came into the House of Commons at the same time, in 1970. I am slightly unusual in being a pro-European who is in favour of referendums. In my 1970 election address, I said that before Parliament decided on entry into the Common Market there should be a referendum. Conservative central office was not very happy with that but there we are; it is one of those things.

The referendum took place before Parliament had taken a decision, so that Parliament could be guided. Here we are being asked to support a referendum in two years’ time—not even tomorrow, but in two years.

[Lord Anderson of Swansea]

My Lords—

[Lord Fowler]

Hang on! The noble Lord spoke for 20 minutes. I have spoken for one, so he might retain a little patience.

We are being asked to support a referendum in two years’ time—two years after both Houses on a free vote have overwhelmingly voted in favour of the legislation. That is the fact of the matter. All the arguments put forward by the noble Lord, Lord Anderson—

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[Lord Wallace of Tankerness]

My Lords, I of course recognise that there are differences. The Government fully recognise that that there are different concerns within different religions, but I do not believe for one moment that they have been ignored. No religion will be obliged to conduct a same-sex marriage against the views and wishes of that religion. We have tried to build in as many safeguards as possible to do that. It is something to which we are acutely sensitive and we wish to ensure that adequate protection is given.

It is important to remember that civil partnerships were introduced to give same- sex couples equivalent rights and responsibilities at a time when marriage was not available to them. Despite the opposition at the time, their introduction led to greater acceptance and inclusiveness for same-sex couples in wider society.

History shows that undertaking important social change to extend fundamental rights to minority groups who experience inequality and social injustice is not always easy. Not all is necessarily favoured by the majority, but certainly the opinion polls that I have seen from more recent times show that there probably is a majority. I believe that providing for a referendum on same-sex marriage in this Bill would delay progress in removing a current and manifest unfairness. I therefore ask the noble Lord to withdraw his amendment.

[Lord Anderson of Swansea]

If there is a majority, as the noble and learned Lord suggests, what fear does he have about testing the real opinion of the people of this country? If he is concerned about delay, why not bring it forward, even before the date of the election? The election date was mentioned only because it would ensure a good turnout, which perhaps an earlier referendum would not. The noble and learned Lord suggested, for example, that in the past we have had referendums only on constitutional issues. Yet he supported a proposal that ensures that even trivial transfers of powers to Brussels will trigger a referendum. That is hardly consistent with what he suggests.

I know that we could go on debating this, but I will end by first thanking all those who contributed to this short debate, particularly my co-sponsors, the noble Lords, Lord Cormack and Lord Singh. To the noble Lord, Lord Dobbs, I say that even if noble Lords do not have a vote on this, they do not have a vote in general elections at the moment. It is hardly illogical that noble Lords do not have a vote in a referendum on this matter. It is consistent, but if the noble Lord wishes to move an amendment and it is accepted, so be it.

It was highly simplistic of the noble Lord to suggest that gay equality is the same as black and white equality. I was a leader of the anti-apartheid movement in Europe over a number of years, because I could see no difference at all between blacks and whites, as there was in the Group Areas Act in South Africa and so on. However, in my judgment, there are serious differences between a traditional marriage and a gay marriage and it is wrong to equate them. It is naive and simplistic to suggest otherwise.

To the noble Lord, Lord Fowler, I say this: if he thinks that there will be delay, again he might suggest that the date of the referendum be brought forward. Even he cannot suggest that the Government now have a mandate for this change. No one has answered what is perhaps a key question: why the hurry? Why, after all these years when there has been no change, are the Government in such a rush? There must be some plausible reason. I cannot see any serious reason for it, but equally why are the Government so afraid of giving people a voice?

Finally, I remind the Minister that many noble Lords chose not to vote against the Bill at Second Reading—I can attest this from my own knowledge—either because of their view that the House should show restraint when there has been a majority in the other place, or because of the view that we are principally a revising Chamber. It would have been inconsistent to prevent scrutiny, but they would look again at the matter when it came to the vote on Third Reading. I am not convinced that the Government have made any serious concessions—certainly in respect of the conscience matters, although I am ready to look again at the list that the Minister gave me during an earlier debate.

If the Government have failed to make other serious concessions relating to existing and future registrars, teachers, the public sector duty and so on, then Amendment 48 will inevitably become more attractive. In the mean time I shall not press it at this stage. I shall again ask the Government to give a simple answer to the question: why the hurry? I shall reflect further on the position, and beg leave to withdraw the amendment.

Amendment 48 withdrawn.