Marriage (Same Sex Couples) Bill

Lord Anderson of Swansea Excerpts

Wednesday 10th July 2013 Lords Chamber

[Lord Anderson of Swansea]

Not, my Lords, of insulting the people, who have never had a chance to speak on this and whose views are rather uncertain. The noble Lord, Lord Alli, has set out his litany of votes and I cannot gainsay that in any way, but I can certainly gainsay him on the polls which have been taken. If he is so confident about the view of public opinion, he should have no hesitation about going forward and agreeing to this referendum. Indeed, it is something which was discussed last Friday in the other place. The Foreign Secretary was really quite lyrical about referenda. Perhaps I may remind him of what he said:

“That is why every Member of the House who is a true democrat can and should unite behind the Bill”—

this was a referendum Bill on the EU—

“It is about letting the people decide … Ultimately, it would be up to the voters to decide, and that is the essence of democracy”.—[Official Report, Commons, 5/7/13; col. 1191.]

Certainly there is no constitutional objection to referenda on the part of the Government. I concede that referenda have mostly been held on constitutional issues, although there are examples in our history of referenda on issues that were manifestly not constitutional. The first referendum that I was aware of was in relation to the opening of public houses in Wales. Even those who want to stretch their imagination could hardly suggest that the opening of public houses in Wales is a referendum issue.

I follow the noble Lord, Lord Singh, and I adopt what he has said. This was an amendment which I broadly put forward myself in Committee. The only difference is that, having listened to the objections then, such as that it was just a delaying device and 2015 would be too late, the noble Lord has brought the date forward to 2013. However, I am not convinced that the wording is as it should be. As was said in Committee, it should probably be left to the Electoral Commission, which is the normal pattern. But I think that the noble Lord, Lord Fowler, did a great disservice to the amendment which has been put forward by distorting it in the way that he did, as if the current position is perfect and only some zealots wish to alter it: do you agree with the zealots or not? I think that this wording is fairly reasonable, and the only reason I object to it is that I think that it should come from the Electoral Commission and not be on the face of the Bill.

The basic argument for having a referendum is the fact that the Government have no mandate for this—certainly no mandate from the people. The commitment was not included in the 2010 Conservative, Liberal or Labour manifestos. The subsidiary argument is the speed of the passage of this Bill. Not only was it not mentioned in the manifestos, not only did a number of the relevant pressure groups not come to this view in respect of gay marriage until a year or two ago, but there has been an unholy haste about this Bill which is difficult to understand. It is rather as if there has been a mass conversion equivalent to that of, say, an African tribal leader who mass converts many of the members of his tribe.

Noble Lords have suggested that there have been occasions in the past when legislative changes have been made without a mandate. That is true, of course, but none has been as fundamental as that set out in the Bill before us today. Although laws defining marriage have changed incrementally over the years—the noble Lord, Lord Elystan-Morgan, gave a whole series of those—nothing has been as fundamental as this one: changing the basic definition of marriage. I suppose that a case could be made for an exception to the electoral mandate principle if it were apparent by other means that there was consensus in public opinion.

I concede that there have been majorities in both Houses, but there is no clear consensus in public opinion. It depends very much on the question that has been asked. Opinion polls have been fairly evenly divided. Some have suggested that there is a majority against, some that there is a majority in favour. If further proof of the absence of consensus were needed, however, let me quote from the Government’s own analysis of their consultation process:

“Overall, views were divided. Of the 228,000 responses to the consultation, 53% agreed that same-sex couples should be able to have a civil marriage ceremony and 46% disagreed ... However, these figures do not take account of those petitions we received, which were universally opposed”.

Moreover, the need for a referendum set out in my speech in Committee was compounded by other failures of due process. I shall not repeat what I said in Committee regarding the failures of due process during the passage of the Bill. I have made the point that the Government are not against referenda in principle. One argument advanced in our earlier debate was that it would not be appropriate to have a referendum when the Bill was passed with such a clear majority in another place. That, however, as the noble Lord, Lord Singh, has properly pointed out, misses the point. No one questions the majorities, the facts are there. If the referendum is opposed in order to make good the lack of any mandate, the votes of MPs on this issue are not relevant because there was no electoral mandate at the time for an issue which is manifestly a fundamental one.

Other noble Lords objected to the idea of having a referendum simply because they considered the redefinition promoted by this Bill to be a self-evidently good thing and recoiled at the idea that it should be subject to a vote. If it was, of course, such a manifestly good thing, why have so many colleagues come to this realisation so speedily and at such a late stage? Had this vote been taken three years ago, it would not have had those majorities—perhaps not even one or two years ago, so it is not such a manifestly good thing.

Another argument advanced by the Minister, and advanced earlier in this evening’s debate, was that referenda should be preserved for constitutional questions. Apart from the fact that Parliament is completely free to apply referenda whenever it sees fit, the key point is that the marriage Bill raises important constitutional questions. I refer to the implications for the establishment of the Church of England, as explained by the right reverend Prelate the Bishop of Chester in his important Second Reading speech. Moreover, Aidan O’Neill QC in his legal opinion on the Bill suggests that it risks partial disestablishment. The Government have made this a constitutional question by disregarding due process and by conducting a consultation which, in my judgment, was a bogus consultation that ignored many of the questions, because the majority were, in fact, against it.

To conclude, it is increasingly common to hear politicians express their profound concerns about the disconnect between political institutions and their passionate commitment to reaching out and listening to the people. This is an opportunity to do so. My judgment is that there is profound discontent and not just among the older generations on this issue.

I am still waiting to hear from the Minister why there is such unprecedented haste in pushing through this Bill. There must be some good reason, or some reason behind the reason, which I would like to hear. We should not seek to kid ourselves that we can proceed on this basis and expect anything other than unhappy consequences. Rather than this being a law that was developed in a proper way and that rests on a constitutionally appropriate foundation, everyone knows that it was pushed through without proper regard for constitutional convention. There was certainly no mandate and there has certainly been substantial haste, as yet unexplained.

To date, the Government have not provided any compelling reason for not supporting a referendum. If they believe that the tide of history over the past year or two since their damascene conversion is on their side and they have no constitutional objection to it—I cite the two referenda in general and the rather lyrical references to referenda in the speech of the right honourable Foreign Secretary last Friday—they should have no hesitation in providing for a referendum so that the people can decide on this issue.

[Lord Martin of Springburn]

My Lords, I have always looked forward to the wisdom of the noble Lord and of the noble Lord, Lord Waddington, and it is nice to see them disagree with one another and disagree so well. It is often the case that the Minister gets to the Dispatch Box and says, “Well, this amendment is not suitable but perhaps we can get something else”. I think that there should be some consultation with the people. For everyone arguing that this is a democratic process, which should therefore be good enough for the people, we should remember the problems that this generation and generations before us have had. In Northern Ireland, we had a Government who kept saying, “The majority rule and forget about the minority or about consulting with the people. We are the ones who will push through the legislation and that will be the end of it”.

I just point to several such matters. The noble Lord, Lord Fowler, will recall that the Scottish people were the first in the British Isles to get the poll tax. That was because of a democratic decision in the other place, even though some MPs, including me, said at the time, “You’re creating a rod for your own back”. However, it was not until the poll tax came to the rest of the United Kingdom that people readily acknowledged that we were wrong. The argument that it goes through both Houses and that is the end of it and people have to accept it, is nonsense. We could be creating very serious problems. Noble Lords should bear in mind that it is normally the case that the Opposition question the Government, if that is what they want to do. However, the Opposition are supporting, not questioning, the Government on this legislation. That is where I feel that there should be some consultation.

Noble Lords will recall that the last time that the Labour Party and the Conservative Party got together, it was when the Conservative Party supported the then Labour Government in going into Iraq and seeking to remove Saddam Hussein. At the time, the Liberals said that there was a feeling out there in the country that this was wrong. Ever since then, we have been asking ourselves whether or not it was the right thing to do. I am on my feet not because there needs to be a referendum but because we need to find some way of consulting the people about the difficulties that we have got here. We are not passing a complete piece of marriage legislation. The Government have been shrewd enough to exclude the Church of England and the Catholic Church and to say, “We are not forcing you to do this”. Therefore we are not getting a piece of marriage legislation in the normal sense of the word. Of course the dates are down here in the amendment, but amendments can be changed or replaced by something more suitable to the Government and ultimately to the House. Let us find a way of consulting the people about what we are putting through both Houses.