Marriage (Same Sex Couples) Bill

Lord Dear Excerpts

Monday 17th June 2013 Lords Chamber

Moved by

[Lord Dear]

10: Clause 2, page 2, line 13, at end insert “or
( ) to express agreement with a relevant marriage,”

[Lord Dear]

My Lords, I rise briefly to deal with Amendments 10, 12 and 14. I said when I spoke to Amendments 7 and 8 that they were paving amendments. In many ways they lead on to what the three amendments in this group now seek to deal with.

I listened very carefully to what the noble Baroness, Lady Barker, said when she spoke to Amendments 7 and 8. I have a great deal of sympathy with her. She might be surprised to know just how much common ground there is between us and be reassured by that comment.

Amendments 10, 12, and 14 are concerned with freedom of speech. The Bill seeks to protect the civil liberties of those who do not want to participate in religious same-sex marriages, stating that they cannot be compelled to do so or be punished for not doing so. Equality laws, we have heard today, will be amended so that, for example, a church minister who refuses to conduct a same-sex marriage will not breach the goods and services provisions of the Equality Act of 2010. However, the Bill’s existing safeguards do not deal with speech; they deal only with conduct. The evidence is overwhelming that it is the verbal expression of beliefs about marriage that tends to get people into trouble.

I was reminded to go back to the period just before Christmas, when I successfully introduced an amendment to remove the word “insulting” from Section 5 of the Public Order Act 1986, quite rightly leaving threatening and abusive conduct in place. Therefore, the expression of a mere view, even though some found it insulting, was not an offence in the criminal law under that section. I quoted very heavily then from the judgment of Lord Justice Sedley in the case of Redmond-Bate v Director of Public Prosecutions. The words that he used were very similar to those used by the noble and learned Baroness, Lady Hale, in the Williams case—a judgment I have already referred to; I will not go over that ground again.

Apart from the small amendment to the law on inciting homophobic hatred—Amendment 53, which we dealt with just before the dinner break and which applies, as we know, only to the criminal law—the Government, as far as I can see, have declined to address the problem of speech. Amendments 10, 12 and 14 add protection for freedom of speech, so that no person would be compelled to express agreement with same-sex marriage or be punished for expressing their disagreement to it.

I give three quick examples of what I have in mind here. Under Amendment 10, church staff who explain the church’s view to a same-sex couple who apply for a wedding cannot be sued. Under Amendment 12, employees can disagree with same-sex marriage without risk of being punished by their employers. Under Amendment 14, churches and religious organisations that refuse to endorse a same-sex wedding cannot be sued under the Equality Act for discrimination.

I think it is self-evident. I will not take up the time of the House any more, other than to give one quote from the Joint Committee on Human Rights, which said, in commenting on this general area of the law, that,

“we have heard arguments on both sides as to whether religious organisations and individual ministers may suffer some form of detriment as a result of their position on same sex marriage in a number of contexts which fall outside the scope of the Bill’s current protections. We note the concern that the Bill may create a number of legal uncertainties, which may only be resolved through litigation with its attendant costs”.

My Amendments 10, 12 and 14 seek to plug some of those gaps. I beg to move.

--- Later in debate ---

[Baroness Stowell of Beeston]

The amendments of the noble Lord, Lord Dear, provide an opportunity for me again to make clear what is allowed under the law in terms of belief and expression of belief. I do not accept his argument that the law deals only with conduct and not with freedom of speech, because it explicitly does. People are clearly able to express themselves, to hold religious beliefs and express those beliefs, and to do so freely. Nothing in the Bill restricts anyone’s right to express a view on marriage or anything else.

As I said before, I understand that some people are uneasy about the impact of the important change that we are making in the Bill by extending marriage to same-sex couples, but they really have nothing to fear. The law is clear. I understand that there is concern out there but it is my job here to respond to that and to say as clearly as I can that in law there really is nothing to fear. The Equality Act 2010 works in a balanced way to ensure that reasonable discussion of any topic is not restricted. The law comes into play only if someone is subjected to a detriment or is harassed because of a protected characteristic.

The noble Lord’s amendments would provide that a person other than a registrar, superintendent registrar or the Registrar General may not be compelled to express agreement with a religious marriage ceremony of a same-sex couple. Nothing in the Bill or elsewhere requires anyone to express support for marriage of same-sex couples, nor is there anything that prohibits disagreement with same-sex marriage. Nothing requires religious ministers or teachers—if that is what the noble Lord has in mind—or anyone else to express agreement with religious marriage ceremonies of same-sex couples. Religious ministers are free to preach about their views of marriage and those of their faith, and teaching must be factual and appropriate, but that does not involve teachers having to say they believe things that they do not believe.

Expressing disagreement with something is not in itself harassment or discrimination under the Equality Act. Under that Act, it is how people are treated that matters. Accepting this amendment would risk creating doubt as to whether other topics of conversation, such as views on civil partnerships or homosexual relationships generally, need similar protection.

As we have already discussed, we have amended the Public Order Act. I covered that in great detail in previous debates and I shall not go over it again. I can only conclude by saying that the amendments are unnecessary and potentially damaging to the balanced way in which the Equality Act protects people from discrimination and harassment. For those reasons, I cannot accept the amendments. I hope that I have been able to give the noble Lord the assurance that he is looking for and that he feels able to withdraw the amendment.

[Lord Dear]

Does the Minister think that the law is so adequate that these words are irrelevant or does she think that the words should not be incorporated in the Act at all?

[Baroness Stowell of Beeston]

I think it is both. They are not necessary and by being specific in this way, as I tried to explain, we create doubt about people expressing other views that are not spelt out. Once we become specific, arguably we remove people’s protection to say other things that they are legitimately able to, because the law does not out spell out specifically that they are protected in doing so. There is a potential risk there with the amendments as well.

--- Later in debate ---

[Lord Dear]

My Lords, I am partly confused and certainly not in agreement with what I think I heard the Minister saying. I feel that we have already heard that the Equality Act has been shot through a number of times as being inadequate. A number of cases have been cited. Clearly, the freedoms it set out to offer have not always been available and for the first time—

[Lord Lester of Herne Hill]

I am sorry to interrupt the noble Lord but I strongly object to what he has just said. There is no evidence that the Equality Act has been shot through with anything or has failed to work properly. I have already said in a previous short speech that the Human Rights Act solves the problem but he does not seem to have followed what I said, so I will say it again. The Human Rights Act says that all legislation, old and new, must, if it is possible to do so, be construed compatibly with the convention rights. Those rights include freedom of conscience, religion and belief and freedom of expression. If we wanted to get into a real muddle, we would start writing stuff into this Bill which then has to be read down by the courts. The best thing to do is to go for legal certainty and my view is that the law is quite certain on that.

[Lord Dear]

Of course, I defer to the noble Lord’s view on this but nevertheless we have heard of a number of cases in your Lordships’ House tonight where people have expressed a view and been sued for it. I do not in that sense move away altogether from the point I am trying to make. There are people out there who are now very concerned about opening their mouths and saying anything at all, for fear of being dubbed homophobic. There will certainly be more if this Bill comes into law in its present form. Although I am more than happy to withdraw my amendment at this stage, I will seek return to it on Report and may very well seek to divide the House.

Amendment 10 withdrawn.

--- Later in debate ---

[Lord Anderson of Swansea]

Surely there is not likely to be any situation in which a couple go to a registrar who is seated at a desk and that registrar walks away from them. The position is clear. The authority would know in advance who is coming, and there would be no insult to the individual couple because a registrar there would have no objection in conscience. There is no way in which an individual couple could be injured in the way the noble Baroness describes.

[Lord Dear]

If I may respond, that situation is really an exercise of emotion rather than fact. The likelihood of a registrar suddenly seeing a gay couple in front of them and turning on his or her heel and walking away is so fanciful as to be almost ludicrous. I would expect to find that people signal their objection before the likelihood occurs. A registrar in this position would signal that, from a matter of conscience, they cannot conduct that marriage. They would make that known to whoever runs that office and somebody else would be in place. I certainly do not envisage—and I certainly would never support—a registrar turning on their heel on the wedding day, walking off and leaving the vestry or the registry office completely open. That is not within my frame of reference at all.

[Baroness Barker]

But you are left with the possibility. What happens in a rural area where there are not that many registrars and a lot of people of a particular religious belief who do not agree with this?

[Lord Dear]

With the greatest respect, we are trying to get to the facts in all these debates. If I may say so, the noble Baroness is painting a picture that is so unlikely to happen as to be almost irrelevant.

[Baroness Barker]

But which is none the less possible.