Marriage (Same Sex Couples) Bill

Lord Bishop of Ripon and Leeds Excerpts

Monday 24th June 2013 Lords Chamber

[Lord Pannick]

My Lords, my understanding is that this amendment does not require the House to come to any view whatever on the merits or otherwise of the proposal. What it does is to recognise that there is to be a review of civil partnerships and it proposes that during the course of that review this topic should be included in the matters to be discussed, to be addressed and possibly to be the subject of future legislation.

The noble Baroness, Lady Deech, mentioned the case of Miss Burden and Miss Burden against the United Kingdom in 2008. I regret as much as the noble Baroness that I was unable to persuade the European Court of Human Rights to find that the less favourable treatment of these two ladies—it was severely less favourable treatment—was arbitrary discrimination contrary to the convention. It does seem to me as to many other noble Lords that since there is to be a review this topic should be covered.

My only quarrel with the speech of the noble Baroness, Lady Deech, is in her recitation of Irving Berlin’s song as support. She may recall that the lyric ends:

“And Lord help the sister, who comes between me and my man”,

which is perhaps not wholly appropriate in this context.

[The Lord Bishop of Ripon and Leeds]

My Lords, I too want to support the noble Baroness, Lady Deech, on this amendment and to thank her and the noble Baroness, Lady O’Cathain, for their persistence in pressing the unfairness of the present law with regard to both carers and also family members.

The noble Lord, Lord Pannick, made the point that the amendment does not require any particular answer to the questions but simply tries to ensure that they will get raised. The point of having a review of the Civil Partnership Act 2004 is that, following the passage of this Bill, the circumstances of civil partnerships will be different. We do not yet know in what way they will be different, but they will be different because many people who would otherwise have entered into civil partnerships will enter into marriages. That seems to me to be an ideal point at which to consider whether civil partnerships should be extended to carers and other family members. If that is not the point at which we ought to do it, perhaps the noble and learned Lord, Lord Wallace, can say what is the point at which we can tackle the unfairness which everyone seems to admit. We have had example after example of the unfairness of the present law. When are we going to be allowed to tackle that?

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Moved by

[The Lord Bishop of Ripon and Leeds]

46B: 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 (1C) insert—
“(1CA) Guidance under subsection (1A) must provide for education about the nature of marriage and its importance for family life and the bringing up of children to be given to registered pupils at schools which have a religious character in accordance with the tenets of the relevant religion or religious denomination.”
(3) After subsection (2) insert—
“(3) For the purposes of subsection (1CA)—
(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(3) 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.(4) Subsection (5) applies where—
(a) Academy arrangements have been entered into between the Secretary of State and another person;(b) the terms of the Academy arrangements have the effect of requiring that other person to have regard to guidance issued under subsection (1A) above; and (c) the Academy is designated as having a religious character by an order made by the Secretary of State under section 69, as applied by section 124B, of the 1998 Act or is treated as having been so designated by virtue of section 6(8) of the Academies Act 2010.(5) Where this subsection applies, subsection (1CA), and guidance issued under subsection (1A), are to be construed as if references to schools which have a religious character were references to the Academy.””

[The Lord Bishop of Ripon and Leeds]

My Lords, this amendment is about education in church schools, mostly owned by the Church of England or the Roman Catholic Church, but also by some other denominations and in schools of faiths other than Christian. Before I describe what the amendment is intended to achieve, I need to explain why it is needed.

Clause 11(2) of this Bill makes wide-ranging changes to the law of England and Wales and its effect is explained in paragraph 55 of the Explanatory Notes. It states that Clause 11(2),

“ensures that the law of England and Wales, including all existing and new England and Wales legislation, is to be interpreted as applying, where marriage is concerned, equally to same sex and opposite sex couples”.

Together with Schedule 3, this sets out the equivalence of all marriages in law. That seems perfectly clear. For legal purposes, the meaning of marriage is changed, so that where an Act of Parliament refers to marriage, it will mean marriage of same-sex couples and of opposite-sex couples.

Section 403 of the Education Act 1996 places a duty on the Secretary of State to issue guidance designed to secure that when sex education is given, pupils,

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

Governing bodies and head teachers of maintained schools, including all church schools and academies, are required to have regard to the guidance when formulating their policies for sex education. After the Bill passes, that reference to marriage in Section 403 will, rightly, be read as a reference to marriage as redefined by the Bill. In other words, the nature of marriage to which Section 403 refers will mean the union of any two persons regardless of gender.

This Bill also recognises—indeed declares—in Clause 1(3) that the doctrine of the Church of England remains that marriage is,

“the union of one man with one woman”.

That is also the doctrine of the Roman Catholic Church, most other churches and most other major religions in this country. The trusts of Church of England schools require education to be given in accordance with the tenets of the Church of England. Schools that belong to other denominations are in an equivalent position. As a result of this, church schools are recognised for their distinctive Christian ethos and the impact this has on standards and all-round education.

So far as teaching about the legal nature of marriage is concerned, there is no problem. Church schools, like any other schools, can and must teach their pupils that Parliament has legislated so that, as Clause 1(1) of the Bill states:

“Marriage of same sex couples is lawful”.

As at present, homophobic bullying must have no place in church or any other schools. Discrimination on grounds of sexual orientation is usually expressly forbidden within a school’s code of conduct and that must remain the case. The Church of England’s established policy is that pupils should have the opportunity to examine the full range of views on same-sex relationships—including different Christian views—and develop their own considered position. Within that atmosphere of open discussion, church schools must nevertheless be in a position to teach the nature of marriage in a way that is in accordance with the tenets of the Church of England.

The distinctive Christian ethos of church schools will be undermined unless that position is accommodated. Exactly the same goes for schools that belong to other religious traditions. The purpose of this amendment is simply to achieve that accommodation. It does not seek an exemption. No one is asking for a provision that would enable schools to operate outside the framework that the Secretary of State’s guidance provides. What I seek is a provision which ensures that the guidance itself expressly recognises the need for schools that have a religious character to teach the nature of marriage in a way that is in accordance with that character.

The meat of the amendment is the new subsection (1CA). The meaning of the provision is quite straightforward. It would require the guidance itself to address this particular issue. It would require it to do so by accommodating the need for schools that have a religious character to teach in a way that is consistent with their religious ethos, while continuing to operate within the statutory framework. Unfortunately the amendment needs to be quite a bit longer than that, to provide definitions that link it to other existing statutory provisions. It also needs to deal with the position of academies in a slightly different way, because of the legal basis on which they are established. In substance, it would put academies that have a religious character in the same position in this regard as other church schools.

When introducing the Bill, the Minister said that she wished to make clear from the outset that this Bill was,

“not just about allowing same-sex couples to marry; it is also about protecting and promoting religious freedom”.—[Official Report, 3/6/13; col. 938.]

The Government have very largely delivered on this commitment. Teaching about marriage in schools that have a religious character is one of the few issues of that nature that remain outstanding. I therefore hope that the noble Baroness will respond positively to this amendment, which is concerned with the same principles of religious freedom that she outlined at Second Reading.

[Baroness Cumberlege]

My Lords, I have also put my name to this amendment. My interests are in the Lords’ register. I am also the chairman of trustees of Chailey Heritage Foundation and a governor of Lancing College, though both are non-maintained schools. I start by thanking the right reverend Prelate for his clear introduction. Noble Lords who are now well-versed in this Bill will know that the House has already debated concerns about its possible effects on teachers. I am very grateful to the noble Lord, Lord Dear, and my noble friends Lord Eden of Winton, Lord Elton and Lord Waddington, and others, for addressing those concerns, which are well argued and strongly felt.

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[The Lord Bishop of Ripon and Leeds]

My Lords, I am grateful to all the noble Lords who have contributed to this debate, which was much wider ranging than I expected it to be, and particularly to the Minister for her careful response to the issues that were being raised. I am also fascinated to see how many of us were brought up in Lancashire and received our sex education, or lack of it, there. I suppose my school was technically in the county borough of Bolton, but it was more or less Lancashire.

This amendment is about the institutional religious character of schools. It is about ensuring that the statutory framework addresses and accommodates the school’s need to provide teaching that is in accordance with its religious tenets when it formulates its policy on teaching about sex and relationships. There is, rightly, guidance from the Secretary of State about that policy, and the school needs to take account of it. It should not have to rely on the Human Rights Act, but should actually have it built into the guidance. Since we have guidance, it ought to address this particular issue, rather than the church schools being left in a position of having to act in a way that is not clear within the guidance. I would hope that that does something to respond to the direct question which I was asked by the noble Baroness, Lady Richardson. I believe that there needs to be guidance to avoid criticism of the family relationships to which she referred. As the Minister said, the current requirement for guidance was inserted in the 1996 Act in 2000. My belief remains that there needs to be guidance on this matter to take note of the changes brought about by the Bill. We need to acknowledge that those are real changes; otherwise, there would be no point having the Bill. We need to respond to the particular needs of schools of a religious character, not least in terms of the tenets of their trust deeds. It is not for the Secretary of State to say what those tenets are; they are declared by the relevant church and school in the trust deeds.

We may need to come back to this matter at a later stage. I still need to be convinced that there is no incompatibility between the Bill and the requirements of the 1996 Act. However, for the moment, I beg leave to withdraw the amendment.

Amendment 46B withdrawn.