Marriage (Same Sex Couples) Bill

Lord Bishop of Leicester Excerpts

Wednesday 10th July 2013 Lords Chamber

Moved by

[The Lord Bishop of Leicester]

95: After Clause 14, insert the following new Clause—
“Amendment of Education Act 1996
(1) Section 403 of the Education Act 1996 is amended as follows.
(2) After subsection (1B) insert—
“(1BA) Nothing in subsection (1B) prevents teaching the tenets of the relevant religion or religious denomination concerning marriage and its importance for family life and the bringing up of children to registered pupils at schools which have a religious character.”
(3) After subsection (2) insert—
“(3) For the purposes of subsection (1BA)—
(a) a school has a religious character if it is designated as a school having such a character by an order made by the Secretary of State under section 69 of the School Standards and Framework Act 1998 (“the 1998 Act”); and (b) “the relevant religion or religious denomination” means the religion or denomination specified in relation to the school under section 69(4) of the 1998 Act.”

[The Lord Bishop of Leicester]

My Lords, I will speak to Amendment 95, and I am glad to do so after a dinner break which I hope will have had the effect of moving noble Lords to see that this amendment merits the support of all sides of the House, whatever our disagreements may have been in the many days of debate thus far.

This amendment would ensure that there is no conflict between the guidance issued by the Secretary of State on the teaching of sex and relationships education, which includes teaching on the importance of marriage, and the obligation of schools of a religious character to teach in accordance with their trusts. It will ensure that while such schools will continue to have guidance issued by the Secretary of State about the teaching of marriage as it will be defined by the Bill, it does not prevent them, within the context of sex and relationships education, in the words of the amendment, also from,

“teaching the tenets of the relevant religion or religious denomination concerning marriage and its importance for family life and the bringing up of children”.

It is important to stress what this amendment is not about. It is not about seeking opt-outs for teachers, pupils or schools of a religious character from teaching about marriage as the Bill defines it. I, personally, would have no part in proposing that. Nor is it about seeking so-called protections for schools or teachers from the need to promote same-sex marriage. Many in this Chamber and outside, as I know from many conversations, still remain haunted by the ghosts of Section 28. To anyone who is feeling so haunted this evening, I offer the rites of exorcism. Let me be crystal clear: this amendment is categorically not about turning back the clock to those regrettable times. It is about reconciling two principles that have been the cause of many heated debates in this House: the principles of equality in marriage and respect for religious freedom. The focus of the amendment is on schools of a religious character, and how teaching on marriage will and should take place once the Bill becomes law.

An earlier version of the amendment was tabled in Committee by my friend the right reverend Prelate the Bishop of Ripon and Leeds. During the debate on that amendment it was unfortunate that the substance of the proposal was lost amid extended discussions about protections for teachers and schools and freedom from coercion about what to teach. I will address some of those misconceptions shortly but for now I will ask your Lordships not to be distracted by matters that have already been gone over at length and settled. They are not any part of the aim or purpose of this amendment.

This amendment seeks to bring clarity and to resolve a conflict between what schools of a religious character are legally obliged to do on the one hand—to meet the terms of their trusts—and what on the other hand they will be legally obliged to have regard to in terms of statutory guidance from the Secretary of State about the teaching of marriage. The Bill as it is sets both legal obligations on potentially a collision course. The substance of my case for the amendment is that without it, governing bodies of schools of a religious character will be left in a dilemma as to how marriage should be taught and may even be encouraged, through their legal obligations, to require teachers, who must teach according to the tenets of the faith, to disregard the Secretary of State’s guidance altogether. No one in this House, not least those on these Benches, would like to see a situation arise in which schools of a religious character are left in any confusion or doubt, or in which they might frame a policy about teaching marriage that ignores the existence of same-sex marriage entirely. I therefore hope that the amendment will command the support of noble Lords on all sides of this debate.

I shall not repeat in detail the points made in Committee by the right reverend Prelate the Bishop of Ripon and Leeds. The situation can be summarised as follows. All schools of a religious character, whether Church of England, Roman Catholic, Methodist, Jewish or other faiths, of which there are several in my own diocese of Leicester, are legally required to ensure that teaching takes place in the school according to the tenets of the respective faith. Church of England schools, for example, are established on trusts that require them to provide education in accordance with the tenets of the Church of England. They are legally obliged to comply with that requirement in their trust deeds, and a failure to do so would result in the governors acting unlawfully.

As far as teaching sex and relationships education goes, all maintained schools are required to “have regard to” guidance issued by the Secretary of State for Education under Section 403 of the Education Act 1996. That guidance says that pupils must,

“learn the nature of marriage and its importance for family life and the bringing up of children”.

I will clarify the point here, which is the very specific area of sex and relationships education. The principal provision of Section 403 of the Education Act 1996 requires SRE to be,

“given in such a manner as to encourage pupils to have due regard to moral considerations and the value of family life”.

Section 403 then builds on that general requirement by requiring the Secretary of State of State to issue guidance on the nature of marriage, and so on, and requiring heads and governing bodies to have regard to it. We are not talking here about teaching the tenets of the religion in a general sense but in this very specific area of sex and relationships education and moral considerations on the value of family life. That is why this particular area impinges on the tenets of the religion in a way that education generally does not. That is the reason to address this situation specifically.

After the Bill becomes law, the references in the guidance will of course be taken to mean marriage as the Bill defines it, which as anyone observing these debates will surely know by now, is not exactly how the tenets of the great majority of the world faiths define it. This leaves schools of a religious character with two competing legal duties. One says that the teaching has to be according to the tenets of the faith, while the other says that they must have regard to the guidance.

Why might that be a problem? Some may wonder why schools cannot just teach both alongside each other in a sensible way. That, of course, is certainly the approach we want to see in Church of England schools. However, the crucial point is that there are strong legal grounds to conclude that the obligation to comply with the terms of the trust deeds of a school of a religious character outweighs the duty to have regard to the Secretary of State’s guidance. One is a duty to comply and the other is a duty to have regard. Unless Members of the House accept the amendment and resolve the conflict in the Bill, there is nothing to stop some schools of a religious character making a decision on legal grounds to set aside the guidance altogether. I am sure that noble Lords are aware of the diversification of provision being pursued by the Department for Education and the potential for a wider range of providers to enter the system. I contend that this makes it more necessary than ever to ensure that governing bodies are not tempted to set aside the guidance in this way. The amendment will give necessary space for schools of a religious character to stay within the terms of the statutory framework and significantly reduces the risk of them declining to teach about the changed legal nature of marriage at all.

--- Later in debate ---

It is on that basis and after much careful consideration within government that we have come to the conclusion that we have. I recognise that this will be disappointing news. However, by being as clear as I can about the other efforts that we will make to ensure that there is clarity in schools, I hope that this is of some comfort to the right reverend Prelate who moved the amendment and to all those who supported it in the Chamber this evening.

[The Lord Bishop of Leicester]

My Lords, I am grateful to all those who have spoken in what has been a serious and gracious debate. I know that I speak for my noble friend the most reverend Primate in expressing gratitude for the tributes that have been paid to his leadership, particularly at the General Synod, and in so many other ways. It is a leadership for which we are growing more and more appreciative, both in the church and in the nation. I thank the Minister for the care, attention, accessibility and understanding that she has unfailingly shown in the conversations that we have had leading up to this debate. I also thank the noble Baroness, Lady Royall, for helpful conversations in which we have been able to make clear our genuine concerns.

I think that it was Paul Newman in “Cool Hand Luke” who said: “What we have here is a failure to communicate”. At times in this debate it has felt a bit like that because, as those who listened carefully to what was said in support of the amendment know, what I am trying to do is to ensure that the Bill prevents faith schools from opting out of teaching about same-sex marriage. We really are on the same side of the argument and it seems at times that this message has not been heard.

I shall make some specific responses to certain noble Lords. To the noble Lord, Lord Pannick, I would say that Section 403 is the only education provision that refers to marriage and it is the meaning of that word that is being altered by this Bill. We do not need to amend other legislation, as he has suggested, because other education legislation does not deal with marriage. Therefore, the amendment does not run counter to the Bill. It says that there is room for both religious and legal understandings of marriage and that they can live alongside each other in religious schools.

I would just clarify the question that the noble Lord, Lord Elystan-Morgan, put to us. The position is that there is a difference between a requirement to have regard to statutory guidance and an obligation to comply with the terms of a trust deed. The latter is an unqualified legal obligation. The former is a duty to have regard and is therefore weaker, hence the danger of some religious groups going their own way if the potential conflict is not resolved. That is the point that I tried to make.

On the point made by the noble Baroness, Lady Farrington, the concern is not that the Bill is changing what goes on in homes and communities but that it changes the law. We need to ensure that the new law and teaching about marriage in church schools can happily coexist. I do not believe that this amendment in any way erodes, undermines or attacks the central purpose of the Bill; rather, it strengthens it.

Having said all that, I know that it is late and that we have much more work to do. The Minister has given what I take to be an undertaking that, if it comes to a conflict, the Government recognise that the trust deed overrides the requirements of the Secretary of State’s guidance. On that basis, I beg leave to withdraw this amendment. I reserve the right to consider the implications of this debate further in case we want to bring some of this back at Third Reading.

Amendment 95 withdrawn.