Marriage (Same Sex Couples) Bill

Lord Dear Excerpts

Monday 17th June 2013 Lords Chamber

[Viscount Astor]

My Lords, it seems to me that we are trying to find a form of words that does not increase the level of discrimination. The amendment in the name of my noble and learned friend Lord Mackay offers that and I shall be most interested to hear what my noble friend on the Front Bench has to say about it. It seems to me that it could provide a way forward without producing further discrimination. I believe that if we added the words “traditional marriage” to the Bill, we would be going down entirely the wrong route. What is the definition of “traditional marriage”? How do we describe it? Is it when the bride wears white? Is it a traditional marriage when the bride goes up the aisle with two children whom she has already had out of wedlock? We would be going down a road that, as legislators, we should not follow, and I believe that it would be a grave mistake. We should find a form of words that both sides can live with.

[Lord Dear]

My Lords, Amendment 9 in this group is in my name and I should like to speak to it now. I have a great deal of sympathy with what the noble and learned Baroness, Lady Butler-Sloss, said. She really focused, as did the most reverend Primate the Archbishop of York, on the blurring of the wording before us in the Bill.

There has been some comment about the difference between equality and sameness, and we touched on that at Second Reading. What we have heard today has, very largely, been two alternative points of view. One is that out of civil partnership might have arisen something which itself would grow into the dignification of something similar to marriage, and the other is a fusion—which is what the Bill is really talking about—of two completely different strands into the one nomenclature of marriage. It is that point that I wanted to mention in introducing Amendment 9 and to offer a way forward—a compromise to where we are now.

The Government say that the Bill is about ensuring equality, fairness and respect for same-sex couples who wish to have their relationship recognised in marriage, and I agree with that. I hope the Government will also accept that there also needs to be equality, fairness and respect for those who hold a different opinion. Much has been said about protecting churches and individual clergy from being forced to officiate at same-sex marriages. I believe I am right in saying that there is nearly universal agreement in your Lordships’ House on the important principle of protecting religious liberty in that regard.

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[Lord Dear]

First, I hope that the noble Lord will clear up the point about whether I am being mischievous. I hope that he will say in the Chamber that I am not. Secondly, subsection (2) of the new clause proposed by Amendment 9 states simply:

“A ‘traditional marriage’ is one where the basis of the marriage is the voluntary union of one man and one woman for life, to the exclusion of all others”.

[Lord Alli]

My Lords, I think I am right—I hope that the noble and right reverend Lord, Lord Carey, will correct me if I am wrong—that in an e-mail purporting to come from the noble and right reverend Lord, he described his own amendment as mischievous and dangerous. It was not I who used those words.

Attempts to create inequality in the Bill seem to be the sole object of these amendments. To create a separate term or register would be both divisive and unnecessary. I hope that noble Lords will think again and not press their amendments. I suspect that there is no appetite for them in the House.

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[Baroness Stowell of Beeston]

I think my noble and learned friend referred to this point in an earlier intervention. I will probably cover it a little later, but I think he is referring to Clause 11(1), which states:

“In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples”.

That does not introduce a distinction between two different kinds of marriage.

As I understood the noble Lord, Lord Dear, to say, Amendment 9 in his name is intended to define the marriage of a man and a woman as a traditional marriage, and have that marriage registered as such by the Registrar General in a separate register. Traditional marriage of the type he is putting forward could be formed only by opposite-sex couples. Therefore, this amendment would create an unwelcome distinction in the institution of marriage. As I stated at Second Reading, the introduction of same-sex marriage does not redefine any existing or future marriage of a man and a woman. It is not necessary to protect that status.

[Lord Dear]

Does the noble Baroness agree that what I propose is, in very simple terms, a purely permissive provision that would retain the new legal definition of marriage as introduced by the Bill? It goes very much with the Government’s line on this and does not seek to change it at all. It would simply set up within that new definition the possibility of the couple getting married declaring their marriage in a form which is acceptable to them and having that registered in a register—a side register, if you like—that the registrar can keep. As I say, the provision would work permissively within the Bill and not upset it at all, but would satisfy the 98%, shall we say, who want the comfort of staying with what they understand to be traditional marriage.

[Baroness Stowell of Beeston]

Although I understand perfectly what the noble Lord is saying, the amendment would still create that separation and distinction that somehow one group is different from another and, therefore, we have to keep them apart. That is what we are trying to avoid. That is what we do not want to do.

Amendments 33 and 34 give us an opportunity to discuss—

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[Baroness Berridge]

My Lords, I wish to speak briefly to Amendment 54, which is in my name, and, obviously, to government Amendment 53. Much has been said in your Lordships’ House of the need to preserve free speech but, as I outlined in my Second Reading speech, the role of the state goes beyond that. To ensure free speech, there has to be an encouragement and a protection of dissent in the public space. I am grateful to my noble friend the Minister for bringing forward Amendment 53, which was promised in the other place on Report, and was a concern outlined in the recent report of the Joint Committee on Human Rights that was published last Friday. I am a member of that committee, and there were very divergent opinions on the principle of the Bill, but we managed to come up with a report of the whole committee about the concerns that remain about the Bill.

I am grateful that the Government have brought forward this amendment to deal with some of the concerns around free speech. It is particularly important when on our statute book there are crimes that can be committed, with the force of criminal law being brought to bear on them, when there is hate speech with a particular mens rea of intending to stir up hatred against, for instance, somebody on the grounds of sexual orientation. I draw attention to what the noble and learned Baroness, Lady Butler-Sloss, outlined: this is a necessary safeguard when we look at what people on the ground are actually doing. Members of the other place have already referred to an incident a few weeks ago, when the police were called to a heated exchange around the matters that we are considering. We have to bear in mind that the effect of this legislation, and the potential effect on free speech, has to be policed on our streets by ordinary police constables. Amendment 53 ensures that they have clear guidance around what is and is not a criminal offence. It specifically states the caveat that it is not just about stating your belief that marriage is between one man and one woman. It is allowing that criticism to take place and thereby not breaching criminal law once the criticism is made. That dissent in the public space is to be welcomed.

In my speech at Second Reading I drew attention to the exchanges that took place between David Lammy MP and David Burrowes MP on these issues. One of the things that are becoming very difficult in speaking on this issue is the analogy, which was the cause of the dispute in the other place, around sexual orientation, same-sex marriage and racism. I am surprised to see the nature of the exchanges we are having today. If that is what ends up taking place in this debating Chamber, what will be happening on our streets when passions get inflamed around this issue? I welcome the Government’s amendment and believe that it brings in an important safeguard.

[Lord Dear]

I shall speak to Amendments 7 and 8, which stand in my name in this grouping. I ask noble Lords to consider the words which case law has held to be paramount in this, that beliefs must be,

“worthy of respect in a democratic society and not incompatible with human dignity”.

They are words protected by the European Convention on Human Rights, and they cover both religious and philosophical beliefs. There are a clutch of cases which I could quote here, but I will refer briefly to only two of them.

The first is Grainger plc & Others v Nicholson in 2009. The court held that strong philosophical belief about climate change, for example, affected how the claimant lived. It went beyond mere opinion. It was setting out that opinion is one thing, which is not protected by the law, but that serious beliefs which stand above that should be so protected. That case really became the bedrock of this particular set of cases. In a 2005 case in the House of Lords, Regina v Secretary of State for Education and Employment and others ex parte Williamson, the noble and learned Baroness, Lady Hale, said that:

“A free and plural society must expect to tolerate all sorts of views which many, even most, find completely unacceptable”.

Agreeing with that judgment, the noble and learned Lord, Lord Walker, in accepting pacifism, vegetarianism, and teetotalism as beliefs, went on to say that they are not just religious beliefs,

“but equally … may be based on ethical convictions which are not religious but humanist”.

I galloped through that just to say that the words,

“worthy of respect in a democratic society”,

have a solid bedrock in both European law and the law of this country.

The reason for tabling these two amendments is to focus on the fact that the Government have repeatedly insisted that this legislation before us will not penalise those who believe that marriage is only between a man and a woman. As the noble Baroness, Lady Cumberlege, has already said, the obvious case to cite at that juncture is that of Adrian Smith and the housing trust. That has been mentioned several times in previous debates on this subject. I will not go into it again but that case, and others, indicate the fragility of the position of those who seek to express a firmly held view, without any intent of causing any disruption beyond—

[Baroness Barker]

I wonder if the noble Lord, Lord Dear, would care to acknowledge that Adrian Smith actually won his case. The reason why he did not win substantial damages was because he did not take the case within the time limit. But he did win his case.

[Lord Dear]

Adrian Smith won his case under contract law. He was awarded only £98 for loss of earnings. I understand that he was advised by his lawyers that he would not have succeeded on a religious or belief discrimination claim.

Having mentioned the Adrian Smith case and the fragility which I think most would accept is there at present, my Amendments 7 and 8 are paving amendments, as much as anything, for Amendments 10, 12 and 14, which also stand in my name. They are put forward to your Lordships for consideration as alternatives, to put the Government’s assurances on a statutory footing. The amendments expressly state that,

“marriage was the union of one man and one woman”,

as a belief, and here I quote again,

“worthy of respect in a democratic society”.

As I say, that is the key test used by the European Court of Human Rights. The amendments go on to say “that no person” holding that belief “should suffer any detriment”, and ensure an ongoing recognition that there are different views on the issue and that the many who hold to a long-standing definition of marriage should not be disadvantaged.

Briefly, Amendment 7 requires that:

“Any person, in exercising functions under or in consequence of this Act”,

should have regard to the principle of not causing detriment to those who believe in “traditional marriage”. That would put, as an example, the Secretary of State under an obligation to have regard to this principle when making orders under the Act. It would apply to anyone involved in the registration of marriages, including staff handling applications from churches.

Amendment 8, as an alternative, tightens the focus down to:

“A public authority, or any person exercising a public function”,

having regard to the same principle. That would apply to public sector employers, including housing trusts, which might treat employees unfairly because of their beliefs about marriage. The amendment would also extend to all that is done, for example, by Ministers of the Crown, the National Health Service, local authorities, schools, police forces and so on. Individuals in all walks of life would be protected, from doctors to road sweepers, from nurses to government advisers, and from teachers to police officers.

[Baroness Thornton]

Is the noble Lord aware that the Equality Act 2010 does all of this? I recommend that he reads the guidance that accompanies that Act. The legislation received cross-party support in this House. It is a carefully balanced Act that already offers all the protections that the noble Lord mentioned.

[Lord Dear]

The point I would make is that the Equality Act is shot through—I am sorry, I shall retract that. The Equality Act attracts a mass of legislation in which actions are taken against individuals who are said to be in breach of the Act. These amendments will put into statutory form the words,

“worthy of respect in a democratic society”.

I suggest that they will cap off a large number of those actions. Putting it in simple terms, the Equality Act is not proving to be as watertight as it was first imagined to be.

[Lord Elton]

My Lords, am I not right in thinking that the case that was brought to the attention of the Committee a few moments ago by my noble friend Lady Cumberlege should have been protected by the Equality Act? However, that Act failed to provide any protection.

[Baroness Turner of Camden]

My Lords, perhaps I may say a word about Amendment 8 because I have some doubts about it. The first line of the proposed new clause states:

“A public authority, or any person exercising a public function, shall have regard to the following”.

That is followed by a list to which he should have regard. What does “shall have regard” mean? Does he have any enforcement powers? For example, could he so construct his activities that he was, in fact, forcing on people who did not want to receive it the belief in subsections (1)(b) and (1)(c), which state,

“that belief in traditional marriage is a belief worthy of respect”,

and,

“that no person should suffer any detriment because of their belief”?

As far as I am concerned, people can believe what they like. What I object to is an intention to impose those beliefs on people who do not accept them. I certainly would not be happy to accept that, because in subsection (1)(a) there is a provision about marriage being,

“the union of one man and one woman … to the exclusion of all others (‘traditional marriage’)”.

As I said before on the previous amendment we discussed, what about the position of people who divorce? A lot of people in this country get married, go through a divorce and then, perhaps, marry again. Is their second marriage traditional or not traditional? There are a number of questions raised by the wording here which make the proposed clause quite unacceptable, particularly to those who hold a fairly secular view so far as marriage is concerned. The wording is not really acceptable because, in my view, it could lead to the position where those who hold these beliefs could, in their capacity as public officials, seek to impose them on people who do not hold them at all.

[Lord Dear]

Perhaps I may respond to that. I refer the noble Baroness to the judgment in the case of Williamson. I shall quote rather more extensively from what the noble and learned Baroness, Lady Hale, said:

“Many would believe it to be wrong even if it was proven to work. Both are essentially moral beliefs, although they may be underpinned with other beliefs about what works best in bringing up children. Both are entitled to respect. A free and plural society must expect to tolerate all sorts of views which many, even most, find completely unacceptable”.

I rest my case.

[Lord Cormack]

My Lords, perhaps I may ask my noble friend a specific question, which has already been referred to by my noble friend Lady Cumberlege. A number of us received a letter from a clergyman of the Church of Scotland who, not in his official duties as a chaplain to the police but in, I believe, his blog, referred to his own personal belief in marriage as being the union of a man and a woman. He was subsequently dismissed from his post as a chaplain. What I want to know is this: are the provisions that the Government are putting forward in this Bill sufficient to prevent that sort of unseemly episode happening in the future?

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However, Amendments 7 and 8 have a much wider effect. Amendment 7 would apply to anyone exercising a function under or in consequence of this Bill, and Amendment 8 would apply in the same terms to all public authorities and those exercising public functions. Therefore, these amendments would, for example, allow a housing officer to decide who should be housed based on his or her belief. It would be quite wrong to refuse, on the basis of a personal belief, however strongly and sincerely held, to house a same-sex married couple or a couple where one of the partners was divorced and remarried. Public servants should not be able to pick and choose to which members of the public they will provide their services. However, to be clear, a housing officer, for example—

[Lord Dear]

I am grateful to the Minister for giving way. I specifically did not say that. My amendment, if adopted, would certainly not lead to the sort of conduct whereby a housing manager could decide that he did not much like single-sex marriages and therefore would not allocate a house. That was quite specifically not what I had in mind. It was that the housing manager should not be punished or be at detriment for holding those views when he stood back and said, “I don’t want to get involved in this. Somebody else should make this allocation”. That is the point I was making.

[Lord Brown of Eaton-under-Heywood]

Before the Minister answers that, I should like to be clear on whether the noble Lord, Lord Dear, is suggesting that it is open to a registrar who objects to same-sex marriages to desist from performing a same-sex marriage.

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[Baroness Stowell of Beeston]

I am afraid that it is not possible for me to respond directly to that question because the case is still live and subject to litigation. I hope that my noble friend will forgive me.

Amendment 8 in the name of the noble Lord, Lord Dear, seems to be aimed at addressing concerns aired here and in the other place that public authorities might overreact to expressions of belief in traditional marriage. This was raised by the noble Lord, Lord Anderson. Not only would the amendment require public authorities to treat people fairly but it would impose a specific duty in respect of this one belief, which could result in the marriage of same-sex couples being placed on a lower tier or being considered as somehow not of the same status as marriage of opposite-sex couples.

Together, Amendments 7 and 8 would allow the owner of a hotel approved for the solemnisation of marriages to refuse to host marriages of same-sex couples, and the registration authorities and even the courts would have to allow him to do so. We believe that that would be both confusing and wrong.

Amendment 9 would also require those exercising public functions to consider a particular belief about marriage, regardless of the function being exercised. This would be overburdensome and unnecessary. How would this be relevant for a person exercising parking or traffic enforcement functions or a person exercising functions relating to rubbish collection?

Another difficulty arising from both these amendments is that, by focusing on protecting a particular belief about marriage, they could cast doubt about the protection afforded to people who hold similar views on other issues, such as civil partnerships or same-sex relationships generally. Such a focus could suggest that such views were not protected by the Equality Act. The point there is basically that, if we are specific about this but not specific about other things, arguably we are then putting other beliefs in doubt.

We believe that the proper way to consider issues of protection of conscience in relation to people who exercise functions connected to marriage is to do so in each particular context: civil registration, employment, religious organisations and so on. That is what we have done. We will shortly debate the amendment from my noble friend Lady Cumberlege, which would introduce a conscience clause for civil registrars.

In the preparation of the Bill and during the debates here and in the other place, we have listened to concerns about whether the protections could be strengthened. One thing that we have done is to amend the Bill to provide additional protection for employed chaplains—for example, hospital or university chaplains—who do not wish to carry out or participate in the religious marriage ceremony of a same-sex couple.

Amendment 19 from the noble Lord, Lord Singh, seeks to amend the religion or belief provisions in the Equality Act to make explicit that a belief that marriage should be between a man and a woman is included within it. I am pleased to reassure the noble Lord that there is no need to change the Equality Act in the terms set out in the amendment. Amending the protected characteristic of religion or belief by specifying a particular belief about marriage would cast doubt, as I have just said, on other religious or philosophical beliefs that are also protected by the Equality Act, and could therefore lead to confusion about how the protected characteristic of religion or belief is generally protected.

Moving to Amendments 53 and 54, Amendment 53 is a government amendment, similar to one debated in the other place in Committee and on Report. The Government gave a commitment on Report in the other place that we would come back with our own amendment, and I am happy to do so now. This amendment is intended simply to put beyond doubt that the Public Order Act 1986 offences regarding stirring up hatred on the grounds of sexual orientation do not outlaw the reasonable expression of the view that marriage should be between a man and a woman, which remains a perfectly legitimate view. It is appropriate to make this amendment because there is already a similar provision in Section 29JA of that Act concerning discussions about sexual conduct or practices. The current wording of Section 29JA would not however cover discussion of same-sex marriage, and that is why we are making the amendment. It is conceivable that some people might be in doubt as to whether discussions of same-sex marriage were to be treated differently from discussions of sexual conduct and practices, in so far as those two topics are linked. For example, my noble friend Lady Barker referred to the demonstration in Brighton by a church on the day of the Gay Pride march. If the church wanted to demonstrate against same-sex marriage, it would be perfectly lawful. This amendment makes that clear. However, let me at the same time be absolutely clear and reassure the House that this amendment does not allow hate speech. If the manner in which something is expressed is threatening and intended to stir up hatred, that would still be an offence. The amendment refers to the content of what is said, not the manner in which it is said. It makes clear that that subject matter is a legitimate one for discussion and it is right to do that only because there is an existing provision covering discussion of sexual conduct or practices.

I turn briefly to Amendment 54 in the name of my noble friend Lady Berridge.

[Lord Dear]

Before the noble Baroness leaves the Public Order Act 1986, will she clarify that that Act relies on the definition of a public place within it and that it is therefore applicable only to the criminal law and not the civil law?

[Baroness Stowell of Beeston]

Yes, I can confirm that it relates only to criminal law.

Returning to Amendment 54 from my noble friend Lady Berridge—