Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011

Lord Carlile of Berriew Excerpts

Thursday 15th December 2011 Lords Chamber

[Lord Anderson of Swansea]

My Lords—

[Lord Carlile of Berriew]

My Lords—

[Baroness Butler-Sloss]

My Lords—

[Lord Anderson of Swansea]

My Lords, this has been a remarkable debate. I only wish that there had been a similar debate in the other place, but there was not. We have heard two former Lord Chancellors taking different views, and two members of the Bishop’s Bench taking opposite views, in the same debate. The remarkable fact is that there has also been substantial common ground in almost all the speeches that have been made. First, this is clearly a highly sensitive issue involving deep matters of principle. Secondly, churches that do not wish to register civil partnerships should not be obliged to do so, but conversely churches that do wish to do so should be allowed to do so. The Government have made a serious attempt in these regulations to put these matters into law. Today’s decision clearly depends on a judgment as to whether, after the proper consultation by the Government, they have succeeded in that aim.

I shall briefly give my own explanation of this. It is clear that, because of the exemption to the Roman Catholic Church, the Church of England and the church in Wales, they have been largely satisfied that the safeguards are sufficient for them. It is also clear that there have been learned and weighty opinions on both sides of the argument. Professor Hill has been mentioned, as have Mr O’Neill and Mr Goulding. The advice of the noble Lord, Lord Henley, in his letter of 13 December, states that the lawyers appear to contradict one another.

For me the question is this: is there a doubt that the regulations have properly put into effect the views of the Government? If there is a doubt, is it a fanciful doubt or is it a serious doubt? Is there at the very least an arguable case that the Government have failed to provide adequate safeguards? The lawyers’ different views and the views expressed today suggest that there is a real, not a fanciful, doubt and the churches should not have to defend themselves against possible well resourced litigants.

I note the undertaking given by the Minister in his letter, which I have cited, that if, contrary to his view, there were to be a successful legal challenge, if one were to be brought, there would be an immediate review by government. That is welcome as far it goes, and I hope that in replying the Minister will put in his speech similar, or perhaps even stronger, undertakings. No Government can bind their successors and it is surely far better for the Government to end any possible doubt by taking these regulations back and by showing that there are amendments that close a possible loophole, thus preventing a serious legal challenge being made to them. The noble and learned Lord, Lord Mackay, has suggested one way in which this should be done. Mr O’Neill has suggested another way. That is the reasonable response which the House should make today.

[Lord Carlile of Berriew]

My Lords—

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[Lord Lexden]

My Lords—

[Lord Carlile of Berriew]

My Lords—

[Lord Dannatt]

My Lords—

[Baroness Verma]

My Lords, if the noble Lord, Lord Carlile, could speak, we could then hear from the Labour Benches.

[Lord Carlile of Berriew]

I was going to defer to my noble friend Lord Lester.

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[Lord Lester of Herne Hill]

I should say that I am not a learned Lord. Whether I am a noble Lord is another matter.

[Lord Carlile of Berriew]

Just a busy one.

[Lord Lester of Herne Hill]

If there is vexatious litigation, it should be struck out by the court as vexatious and nothing more should be done about it. What I am endeavouring to say—I am not doing very well because I am quoting from a detailed opinion, but I thought the House deserved to have that opinion before it because of the authority that it gives—is that the clarity provision was not necessary because a proper construction of the provisions of the Equality Act makes it absolutely clear that any discrimination claim, either about the provision of services or about the public sector duty, would be doomed to failure.

There is one further point. In the case of Pepper v Hart, the House of Lords in its judicial capacity held that, were there any ambiguity in legislation, one could have regard to the parliamentary record to resolve the ambiguity. Quite apart from Section 13 of the Human Rights Act 1998, which the noble Lord, Lord Pannick, referred to, I have no doubt that, were there any ambiguity—in my view, there is none whatever—then the Supreme Court and the lower courts would have regard to statements made by the noble Baroness, Lady Royall, when she was leading for the previous Government, to the assurances given by the former Solicitor-General Vera Baird QC and to the statements that will be given shortly by my noble friend the Minister today. Those statements will all be one way. They will all indicate the true intention of the legislation. Therefore, were there to be any ambiguity, it would be resolved, if it had to be, judicially.

In my view, which is the same as that of the noble and learned Lord, Lord Falconer, the noble Lord, Lord Pannick, others who have spoken, the Church of England’s legal advisers and others, there is no conceivable doubt that a challenge would be hopeless. If, as a discrimination lawyer with 40 years’ experience, I were asked what my views would be about this, I would say, “You have not got a snowball’s chance in hell”.

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[Lord Collins of Highbury]

My Lords—

[Lord Carlile of Berriew]

My Lords—

[Lord Dannatt]

My Lords—

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My hope is that there will be a positive outcome from today’s debate, an outcome in which this House reasserts the consensus which I referred to at the beginning of my contribution. It is a consensus that respects the right of lesbian and gay people to celebrate their relationships and respects the right of churches and synagogues to undertake civil partnerships, reflecting their commitment to the inherent worth of a loving relationship between two people of the same sex. It respects the right of religious freedom but also my right, as a gay man, to celebrate my relationship with my husband on an equal footing in our civic society.

[Lord Carlile of Berriew]

My Lords—

[Lord Dannatt]

My Lords—

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[Baroness Anelay of St Johns]

My Lords, perhaps I might at this stage respond to some of the comments made around the House. I know that there is a feeling that we have had a learned and full debate and that, after my noble friend Lord Carlile of Berriew has spoken—I understand he will speak just briefly—at that stage we might invite the Leader of the Opposition to make her winding-up speech.

[Lord Carlile of Berriew]

My Lords, if the opinion of the House is tested on this Motion to annul I shall be voting against the proposition of my noble friend Lady O’Cathain. I want to say at the outset of what I hope will be brief remarks that I am sure she knows that I have enormous respect for her. She and I have stood shoulder to shoulder on issues of conscience in this House and will do so again. However, I am bound to say that, in my view, this is about as far from an issue of conscience as we could get. This is a matter of law, essentially.

We have heard from some much more balletic legal minds than mine during the debate. Indeed, your Lordships may be under the impression that the head of the pin is extremely crowded. As my noble and, in some cases, noble and learned friends—and in the case of the noble Lord, Lord Lester, my noble and very busy friend—dance on the head of that pin, you will have observed that there is barely room for the legal books they are using.

All I will say as one of the QCs in your Lordships’ House is that I think the arguments have been very powerfully put before your Lordships by the noble and learned Lord, Lord Falconer, the noble Lord, Lord Pannick, the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord Lester of Herne Hill, and I agree with them. I hope that your Lordships are not going to fall into the trap of deciding how to vote if there is a Division on the basis that, because some lawyers disagree, we are all going to throw our hands up in the air and leave it to someone else to decide. Let us never forget that we are in the high court of Parliament. With all the knowledge in this Chamber, I venture that your Lordships are well able to reach a decision on the basis of the arguments that have been presented—and the arguments are absolutely overwhelming.

During my 40-odd years at the Bar I have advised on issues and gone into, for example, the Court of Appeal with what I had thought was a very arguable case, and found myself metaphorically blood-spattered on the floor within minutes, if not seconds. The legal analyses that we have heard in your Lordships’ House have plainly left us with the opinion—the only responsible opinion—that there is no realistic possibility whatever of religious organisations or priests being forced in any way to do anything in this context which is against their conscience.

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[Lord Framlingham]

The noble Lord will appreciate that the debate today has been legalistic—because this is obviously what this Chamber does—but the ramifications outside the Chamber may not be legalistic. On the point that the noble Lord is making about allowing, will he agree that to allow, although it is not to encourage or force on people, can sometimes have that effect. That is my concern having seen that many Acts of Parliament have had effects that we were not aware of. I believe that if we are not careful, this one will bring the kind of pressure to bear on Church of England priests that the right reverend Prelate the Bishop of Blackburn has indicated.

[Lord Carlile of Berriew]

I respectfully but absolutely reject the contention that has just been made. Indeed, it is somewhat similar to the contention made by my noble friend Lord Cormack, who spent a great number of years as a very distinguished Member of another place. He often had to wrestle between his principles and his interests, as all Members of Parliament do, and I doubt that he found it more difficult than any Church of England or other priest or other religious official would find it to stick to his conscience when his conscience told him what was right, particularly when supported by the institution to which he belongs.

Finally, my noble friend Lord Lester mentioned the decision of the House of Lords as a court in Pepper v Hart. That is the one matter that was omitted earlier and is of very great importance. In the event of somebody being prepared to take the financial risk of bringing what in reality would be a completely hopeless case before the courts, it is beyond peradventure that the statement that we know will be made by my noble friend Lord Henley from the Front Bench today, because we have been given a trail of it, would be cited in court and would be extremely influential in the determination of any ambiguity. I therefore respectfully suggest to your Lordships that we have actually taken a great deal of time today, albeit in a very interesting debate, in discussing something that is really not a problem at all.

[Baroness Royall of Blaisdon]

My Lords, we have heard today some extraordinarily powerful and important speeches. When we were in government, one measure that we were most proud of, rightly I believe, was the Equality Act 2010, which we managed to pass through Parliament just before the general election. We did so with the support of the Conservative Party and the Liberal Democrats, then both in opposition. The parties opposite were consistent in their support for the legislation; I thanked them for it then and I thank them for it now, although I am concerned about a few aspects of the Act that are being chipped away. But that is not an issue for today.

When my noble friend Lord Alli moved his amendment and it was adopted by this House during the passage of the Bill, I was not able to fully support him. But I am delighted that his amendment was adopted and has resulted in the regulations before us today. The overriding point about the regulations and the legislative clause in the Act to which they refer is that, as so many noble Lords have said, they are permissive. They permit churches and any other religious premises to enable two people to register as civil partners of each other under the terms of Section 6(3A)(a) of the 2004 Act.

I warmly welcome so many speeches today, but especially the contribution from the noble Baroness, Lady Richardson of Calow, who was absolutely right to point out very forcefully that the provisions are permissive. They do not in any way require churches to provide civil partnerships to take place. They do not order them to do so or compel them to do so; they simply make it possible for them to do so should they so wish.

The noble Baroness, Lady O’Cathain, argues that the proposals are not sufficient to protect faith groups from being compelled to register civil partnerships when it is against their beliefs. The noble Baroness is supported by a number of legal opinions. However, we believe that the legislation itself is clear. Section 202(4) of the Equality Act 2010 provides that the following should be inserted after Section 6(3) of the Civil Partnership Act 2004:

“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so”.

That expressly states the point—the wording is clear and the meaning is clear, and we believe that the effect is clear—and so do the regulations in front of us today, which state, in Regulation 2(3), that the following should be inserted into the Marriages and Civil Partnerships (Approved Premises) Regulations 2005:

“Nothing in these Regulations places an obligation on a proprietor or trustee of religious premises to make an application for approval of those premises as a place at which two people may register as civil partners of each other in pursuance of section 6(3A)(a) of the 2004 Act”.

Again, there is clear wording, clear meaning and clear effect.

The noble Baroness, Lady O’Cathain, has deployed legal opinions that support her view, quite properly, primarily those from Professor Mark Hill QC and Aidan O’Neill QC. But many noble Lords from all Benches have cited a number of different opinions today, and the speech from my noble and learned friend Lord Falconer of Thoroton was masterful and gave a very clear opinion. His responsible views were unequivocal and were supported by many noble Lords throughout the Chamber today.

It was useful and heartening to hear the views expressed by the right reverend Prelate the Bishop of Oxford, who confirmed that the necessary safeguards are in place according to the Legal Office of the General Synod of the Church of England. I hear of course the differing views expressed by the right reverend Prelate the Bishop of Blackburn, but I believe that many of the issues raised by the right revered Prelate the Bishop of Blackburn are matters for the General Synod itself, and not for this House or the Houses of Parliament. It is also important to consider a statement from the Catholic Bishops’ Conference of England and Wales, which takes a similar view to the Church of England:

“As the regulations require prior consent, the measure can have no impact on Catholic premises. The church welcomes the fact that the Government has made an explicit statement in the draft regulations that nothing in them creates any obligation to make an application for approval. This will help rebut any attempt to mount spurious cases of unlawful discrimination against churches which do not host civil partnerships”.

The Government’s clear view is set out in their summary of responses to their consultation on civil partnerships on religious premises, published last month, and I agree with the view expressed. The noble Lord, Lord Henley, Minister of State at the Home Office, says in a letter this week to Members of your Lordships’ House:

“I must stress that this provision is entirely permissive. We are entirely confident that faith groups will not be forced to host civil partnership registrations if they do not wish to do so”.

He goes further, by indicating further legislation if necessary. The Government’s clarity and confidence, which we as an Opposition share, is supported by the statutory body on discrimination, the Equality and Human Rights Commission, which states in its response to the consultation:

“The Commission is also pleased that this provision is voluntary, placing no obligation on religious communities to conduct such ceremonies where this would be against their conscience or religious beliefs”.

We have heard a plethora of legal opinions in this debate, but also the important views of many noble Lords who do not have legal experience. Most importantly, we have heard the views of my noble friend Lord Alli. When he moved the original amendment in your Lordships’ House, he could not have been clearer:

“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so”.

He has been equally clear today. These are compelling arguments, and I believe that they are conclusive arguments. There is nothing in the legislation or in these regulations which requires churches to host civil partnerships. The legislation and the regulations associated with it were designed to be permissive and not compulsory; they are written to be permissive and not compulsory; and they are best interpreted as being permissive and not compulsory. Some noble Lords have mentioned fear. Like the right reverend Prelate the Bishop of Oxford, I believe that we must act in a spirit of mutual respect and generosity.

If the noble Baroness, Lady O’Cathain, should test the opinion of the House today, we on these Benches will be opposing the noble Baroness and supporting the regulations. And yes, we have a Whip on, because we believe it is right to do so. I believe the record of my party, the Labour Party, on equality issues, is second to none, and we intend to maintain it in the Lobbies today if this matter does go to a Division.

The provision to allow, if they so wish, churches to host civil partnerships, is a good provision. The regulations are good regulations, and the original legislation—our own—was good legislation. I urge the House to support the regulations, and to sustain legislation of which this House should be proud in having played its part to get on to the statute book of this country.