Marriage (Same Sex Couples) Bill

Lord Brennan Excerpts

Tuesday 4th June 2013 Lords Chamber

[Lord Brennan]

My Lords, everything has been said on this subject already; or nearly everything. I am going to address the House on certain legal consequences of this legislation that I invite the House to consider very carefully. We have been fortunate in this debate to have heard remarkable and telling speeches about homosexual suffering in the past, and then liberation; about heterosexual culpability for persecution in the past, and then the sense of penitence. These are important sentiments. They describe the feelings of a civilised society, but they are not in themselves the foundations of law. This Bill may have a background about love, but we are here to make law.

I have three major concerns about this legislation. The first is the manner in which it has come to Parliament; the second is the complexity of the consequences of making same-sex marriages lawful; and the last is the “what next?” factor. First, how did we come to the position we are now in? You would think that legislation based on such controversy, such fundamental disagreement, each side respecting the views of the other, would have required and got extensive preparatory dialogue between government and public, between party and party, and between us in this House. In particular, there should have been pre-legislative scrutiny. The more difficult the Bill, the more open the parliamentary process should be. But what has happened here? In 2004 we passed the Civil Partnership Act after seven days of debate in this House: five in Committee, Third Reading, and Report in between. The interests of lesbians and gays were addressed comprehensively. No one at that time, eight or nine years ago, suggested that there should be the kind of legislation that we have before us now. No one suggested then, in this House or the other place, that such legislation was necessary. Have matters changed in eight or nine years? If they have, then how, and why? What is the difference now? In 2010, my party passed major legislation, the Equality Act. In the spring of that year, Section 8 and ancillary provisions dealt with the protected interests of married couples and those in civil partnerships. No one suggested that we should introduce the present type of legislation. If not then, why now? On both of those occasions, the general picture presented to the public was “this far, and no further”.

We are a Parliament of the people. We are not a Parliament just for the people, paternalistically deciding what the law should be. We should do our best to represent the people’s wish and will as to what the law should be. I do not agree that the differential diagnosis of opinion polls is the basis for objective parliamentary assessment of what the public think. That comes from debate, electoral exposure and inquiry. The noble Lord, Lord Carlile of Berriew, says that Parliament should lead. Have a care, my Lords, when you are told that Parliament should lead. Parliament should serve, and lead in the service of the public. Here we are, with no election manifesto to support this change and a tide of history that began in the past 18 months that is described as so overwhelming that we have no choice but to accept it. Come now, let us be realistic. This deserves much more careful debate. “We are where we are”, say many, “let us get on with it and do what we can”. If the amendment of the noble Lord, Lord Dear, is not passed, we will face a Bill in Committee based on Clause 1: same-sex marriages are lawful. The rest of the Bill is consequential on that provision. If the Bill goes forward and someone calls a vote in Committee on whether Clause 1 stand part, are we to face the same criticism that that is frustrating the will of the Commons, that the Lords should get on with revision and not delay or even block it? I do not accept that. That is effectively preventing the House making a considered decision of its own on the Bill. That is not democratic. This is the other place, by the will of a Government without mandate to call for such change and to give a free vote to it, creating a new constitutional convention that prevents the House of which we are Members making a block. I do not accept that.

The second point is the complexity of consequences. Overnight and this morning, I have totted up well into double figures the numerous areas where amendments will be required to make this a coherent piece of legislative drafting. I have identified at least five fundamental differences between heterosexual marriage and homosexual marriage. We have to deal with these questions. They cannot be cast aside because we are concerned to satisfy the sentiment so eloquently expressed by so many. We are here to make law.

Lastly, there is the “what next?” factor. It is a simple argument to propose that here is a law that says that two people of the same sex can marry because of discrimination. Why cannot a third person demand the same right and want to join that union of two to make it a union of three? That is eminently simple to argue; it is based on discrimination; and I invite any subsequent speakers to explain, logically and rationally, why numerical limits overcome profound principles of discrimination, if that is what we are dealing with. Polygamy is not just on the same-sex side, it can be on the heterosexual side.

Next, there are the conscience clauses. I was reassured by the noble Lord, Lord Pannick, and the noble Baroness, Lady Kennedy—reassured, but not convinced. As the noble Lord, Lord Faulks, just pointed out, there are no guarantees in the law. I have learnt after many years in the profession, particularly as its chairman, that we are a profession where individually we repose a great deal of confidence in the value of our own opinions. We are trained so to argue. It would be naive to assume that the problems that have been raised by other barristers will not encounter serious disputation in our courts and in Strasbourg.

What lies ahead is the unknown. After 2004, 2010 and 2013, what will come next? We were warned that this House should not expose itself to the danger of being involved in a constitutional divide between this Chamber and the other Chamber. The risk of constitutional division is between Parliament and the people. That is what we should avoid. I invite your Lordships to remember your responsibilities as legislators. Sentiment is important; it is not determinative.