Marriage (Same Sex Couples) Bill

Lord Dear Excerpts

Monday 24th June 2013 Lords Chamber

Moved by

[Lord Dear]

47: Before Clause 15, insert the following new Clause—
“Review of impact of same sex marriage
The Secretary of State must arrange—(a) for the operation and effects of this Act to be reviewed two years and five years after this Act is passed;(b) for the report on the outcome of the first review to be produced and published within thirty months of this Act being passed;(c) for the report on the outcome of the second review to be produced and published within five years and six months of this Act being passed; and(d) for both reviews to be conducted by a Lord Justice of Appeal taking appropriate evidence with particular regard to the impact of this Act on civil liberties and the rates of—(i) opposite sex marriage, and(ii) same sex marriage.”

[Lord Dear]

My Lords, by any stretch of the imagination same-sex marriage is something of a social experiment. Its consequences cannot accurately be foretold, certainly not in this country. Amendment 47 requires a review of the legislation to be conducted by a Lord Justice of Appeal, two years and again five years after the Act is passed, with reports published within six months of each of those two reviews. If the amendment is carried, the reviews are to focus particularly on the impact of the legislation, first on civil liberty and secondly on the rates of opposite and same-sex marriage.

The reasoning behind the amendment is that the impact of same-sex marriage on marriage rates should be reviewed, because evidence shows that redefining marriage undermines support for marriage in the wider society. I draw two examples. After same-sex marriage was introduced in Spain, marriages across the whole population plummeted by more than 20% in the following six years. It has been said that the relaxation of divorce laws that occurred at about the same time as the introduction of same-sex marriage had something to do with this fall. No doubt it did, but it could not account for the full extent of that 20% fall. Without going into the detail, the Netherlands also saw a significant fall in marriage rates after marriage was redefined there.

The focus of the reviews on the consequences of same-sex marriage for civil liberty will enable evaluation of the effectiveness of the Government’s quadruple lock. More broadly, many civil liberty concerns, some of which we have just heard again in the preceding amendment, have been raised with respect to the Bill, only to be largely dismissed by the Government and other supporters of the legislation. With the greatest respect for the Minister, I must say that we have now seen more than 50 amendments in Committee. On several occasions I would have expected words from the Front Bench along the lines of, “We will take away what has been said and consider it”, or, “We intend to review what has been said in the Chamber”, or, “I will take this away and discuss what he has said with the noble Lord”. I can think of only two examples of this taking place. If the Minister can disabuse me of the idea that only two or three amendments have received that sort of response, I will be delighted to know how many more there are.

It seems to me that the noble Baroness’s instructions are heavily annotated with, “Do not concede”. From my standpoint, and that of others who have spoken to me in the margins of Committee before this third day, it seems that the Government are putting some sort of stone wall around the Bill, and refusing to concede anything at all of any substance. Whether that is right or not—and I look forward to being disabused of that idea—I would be delighted to know that the Government are going to take away substantial parts of this discussion to review before we come to Report.

Putting that to one side, the reviews set out in the amendment will be able to consider the extent to which the Government’s assurances have been vindicated or contradicted by events. Concerns about the impact of same-sex marriage on civil liberty arise partly because of what has already happened. Again, we have just had a comment on that in the preceding amendment. Believers in traditional marriage have been punished, both in the UK under the current definition of marriage, and also internationally in those countries which have redefined marriage. We have heard the case of Aidan Smith, which has been much quoted in the last three days of Committee, and was referred to again by the right reverend Prelate the Bishop of Leicester.

There were three more examples in very quick time. The former leader of the SNP, Gordon Wilson, was voted off the board of Dundee Citizens Advice Bureau for supporting traditional marriage. Arthur McGeorge, a bus driver, faced disciplinary action by his bosses simply because he had shared during his break time at work a petition backing traditional marriage. The World Congress of Families wanted to hold a conference on redefining marriage at the Queen Elizabeth II Conference Centre, but it was banned by the Law Society and the conference centre, because, as they said, discussing the subject of redefining marriage would be a breach of diversity policies.

Elsewhere in the world—to get the drift of where all this is going—a Christian florist in Washington state who said that she could not provide flowers for a gay couple’s wedding because it was against her beliefs is being sued by the couple concerned. In Canada, a sports journalist, Mr Damian Goddard, was fired for tweeting that he supported traditional man-woman marriage. In April this year, New Zealand voted to redefine marriage, with the law taking effect from August this year. Within weeks of the vote, the charity, Family First New Zealand, a leading opponent of same-sex marriage, was told by the New Zealand Charities Registration Board that it would lose its charitable status because its activities did not provide public benefit.

This is the climate that we are in. My proposed new clause seeks to have the Bill reviewed at two stages when it becomes law—assuming that it does, and I am sure that it will. I say to the Front Bench that if the Government are so very confident that there is nothing to fear and that the Bill is watertight—and I would be delighted to find that that were the case—it follows that they should have no fear of demonstrating its success by those reviews. I am not so sure necessarily that that will follow. To go out to public consultation, to go out to opinion polls as to where this goes—we have heard this debated in your Lordships’ House in the past. On the one hand, 83% of people taking part in the consultation on the Bill were apparently against it. The ComRes poll and the bulging postbags that we have heard about all seem to show that the Bill is not a very good idea. On the other hand, the polls that have been put forward by Stonewall and others suggest that the Bill is probably a very good idea. Going out to the public in those sorts of ways is not going to produce much of a result. To measure the result of the Bill at the two-year point and the five-year point, and having it done independently and with judicial scrutiny, seems to me to be the way to resolve whether it is going to work and will allay a great deal of public concern which exists at the moment. I beg to move.

[Lord Fowler]

My Lords, I have not spoken previously in this Committee, but I am anxious to make amends to the noble Lord. When he spoke at Second Reading, someone in the public was watching the television and wrote to me complaining that my facial expressions seemed to indicate some disagreement with him. I very much apologise for that and, even better than that, I am glad to say that I have some sympathy with the principle of what his proposed new clause sets out—although I am bound to say that his remarks did their best to alienate me as I went along.

My view has always been that all Acts—or certainly all major Acts—should be subject to post-legislative scrutiny. It is one of the curiosities of this place that we sometimes, although not always, have pre-legislative scrutiny, which is doubtless of some value, but not the more important post-legislative scrutiny, seeing whether it has all worked out properly or at least as Parliament has intended. From that point of view, therefore, I have sympathy with what the noble Lord is proposing, although he did not much dwell on that aspect of it. Sadly, however, I cannot agree with the detail of the noble Lord’s amendment. A review after two years, for example, is frankly far too early for any sensible conclusion.

What is basically wrong is the process by which this post-legislative scrutiny will take place. Why do we need a Lord Justice of Appeal to carry it out? I have never heard of post-legislative scrutiny being carried out by a Lord Justice of Appeal. I would have thought that it was essentially a job for Parliament and, above all, for this House. This is what we do rather well. I find it extremely difficult to go along with the noble Lord. I cannot support him, but if he would join me in a general proposal—not just on this Bill, which would be foolish—to try to introduce post-legislative scrutiny to Acts generally then we would very much be on the same side.

Both on the detail and above all on the specifics of the way the noble Lord has set it out in this Bill, I cannot support the proposed new clause. I do not think that it adds up to what even the noble Lord really wants.

--- Later in debate ---

[Baroness Northover]

I think that I recognise the sort of change that happens in the first year and from the other little ones who come along after that.

I begin by agreeing with noble Lords that the Bill, if enacted, should be reviewed, as is standard practice for any significant legislation. Whether they are for or against the Bill, noble Lords are pushing at an open door. Let me address quickly the slightly different point made by the noble Lord, Lord Dear—the argument that there have been few changes to the Bill during its passage. I point him to the comprehensive answer that my noble friend Lady Stowell gave to counter that point when the noble Lord, Lord Anderson, made it earlier.

In terms of a review of how this legislation works, we agree with the principle. I welcome the support that has come from my noble friends Lord Fowler, Lord Cormack and Lady Cumberlege, my noble and learned friend Lord Mackay and the noble Baroness, Lady Royall. We would envisage post-legislative scrutiny covering issues such as an assessment of how the Act has worked in practice, which would no doubt address the kind of concerns that the noble Lord, Lord Dear, has mentioned, should they arise. We also envisage it covering: when and how different provisions have been brought into operation; any provisions that have not been brought into force, or enabling powers not used; details of the associated delegated legislation, guidance documents or other relevant material prepared or issued in connection with the Act; and any specific legal or drafting difficulties that had been matters of public concern. That was perhaps the kind of issue that the noble Lord, Lord Dear, was talking about—for example, where litigation has resulted, as the right reverend Prelate mentioned on the last grouping.

However, the timing of such a review needs to be carefully considered, with some flexibility built into the process, which is why arrangements for review are typically not set out within a Bill. In line with established Cabinet Office procedures, a memorandum will be produced containing a preliminary assessment of how the Act has turned out in reality, measured by the objectives set out during the passage of the Bill—including, for example, the protections mentioned by the noble Lord, Lord Anderson. That would be part of the way in which the Act would be reviewed. It will then be a matter for a Select Committee to determine whether it wants to go on to hold a wider post-legislative inquiry into the Act. I thank my noble friends for the support they have given on the process. The convention is that a review is undertaken three to five years after Royal Assent—perhaps earlier than the noble Baroness indicated—in order to provide sufficient time for the new law to bed in and operate as intended. The scrutiny would be done at an appropriate time.

While I appreciate the intention behind this amendment, what is proposed instead by the amendment is something more complicated, as noble Lords have indicated, and not proportionate to what needs to be done, involving as it does two separate reviews and a potentially lengthy process, which would delay the answers that I am sure we would all be keen to hear. So, in essence, we are in agreement on the need for a review but not on the mechanics. That is why I ask the noble Lord to accept my reassurances and to withdraw his amendment.

[Lord Dear]

My Lords, I am particularly grateful to the noble Baroness, Lady Royall of Blaisdon, for deciding that I am sane and not mad.

[Baroness Royall of Blaisdon]

On this occasion.

[Lord Dear]

I have to say that I remain a little confused about this, but at a much higher level. Everyone on all sides of the House seems to say that the principle is very good. That started with the comments made by the noble Lord, Lord Fowler, and shortly after that by the noble Lord, Lord Cormack, and the noble and learned Lord, Lord Mackay. If the principle is right, perhaps we need not worry too much about the detail. I for one would not push the detail at all—whether it is one year or five years, or indeed whether it is a Lord Justice of Appeal or not.

I thought that those who spoke in support of the amendment in specific terms—the noble Lords, Lord Anderson and Lord Stoddart of Swindon, and the noble Baroness, Lady Cumberlege—in effect all said the same thing, which is that there has been no real pre-legislative scrutiny at all. We know that the Bill came into the House of Commons at a rate of knots. For that reason alone, it is well worth while looking at the workings of the Bill once it becomes an Act of Parliament and goes through into society.

The point has been made several times on both side of the House. The Bill is so complicated and so fundamental to society—“building block” was mentioned—and there is so much concern about it outside that the argument can be carried quite easily that we need to look at its workings at some stage in the future. I do not want to get into the detail; this is something of a probing amendment in any case and I am more than happy to withdraw it at this stage.

Amendment 47 withdrawn.

--- Later in debate ---

Moved by

[Lord Dear]

56: Schedule 7, page 56, line 6, at end insert—
“39A After section 26 (harassment) insert—
“26A Discussion or criticism of same sex marriage
For the purposes of this Act, and for the avoidance of doubt, discussion or criticism of same sex marriage shall not be taken of itself to be discrimination or harassment.””

--- Later in debate ---

[Lord Dear]

My Lords, I am conscious of the fact that a pumpkin will shortly come into your Lordships’ House. I would simply reflect that Amendment 56 is a freedom of speech amendment and sits closely to Amendment 46C, moved and debated in this Chamber by the right reverend Prelate the Bishop of Leicester. In fact, one is the obverse and reverse of the other. Had the time been different, I would have tried to distinguish between them, but having regard to the similarity of the amendments and the fact that we have already had a full debate on Amendment 46C—and particularly because of pumpkins in the air—I beg leave to withdraw the amendment.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)]

My Lords, I am afraid I have to ask the noble Lord, in view of the fact that he has spoken to the amendment, if he would please move it before withdrawing it, in order to give noble Lords a chance to address it if they wish

[Lord Dear]

I beg your pardon. I beg to move.

[Baroness Stowell of Beeston]

I am grateful to the noble Lord. I am particularly grateful to him for drawing comparisons with the amendment that was put down in the name of the right reverend Prelate earlier this evening. I agree with him that it is very similar and the response and arguments that I would have made to the noble Lord, Lord Dear, are similar to those which I have made at length on several occasions in Committee.

I will take this opportunity to make a couple of points. First, I hope that if this Bill is to become an Act—and I certainly hope that it will—we arrive at a point where it is accepted that the law allows marriage of same-sex couples, and it is possible for us all to respect differences of view about whether marriage should be between a man and a woman. Although the noble Lord, Lord Singh, is no longer in his place, I take exception to his assertion earlier that we have brushed aside concerns about freedom of speech in Committee. I have been happy to respond comprehensively to the debates we have had on that matter. I take on board the serious concerns that people have had in this area, and hope that I have been able to offer reassurance to noble Lords.

By the same token, I was a little perturbed by the comment that the noble Lord, Lord Dear, made earlier about me not responding with any real scope for consideration of the debates that have taken place in Committee. As my noble and learned friend will be responding to the final amendment and this will be the last time I am on my feet in Committee, I point out that in addition to the list of amendments I referred to in response to the noble Lord, Lord Anderson, that we have already tabled to the Bill, during debates at Committee, I—or my noble and learned friend—have committed to respond to noble Lords on a range of different issues.

This is not an exhaustive list and I am sure we may have other meetings with Peers on other topics. I have, for example, already agreed to have a meeting with my noble friends Lady Cumberlege and Lord Elton to discuss registrars. On the amendment earlier this evening about religious freedom for faith schools, I said that this was a matter that we continue to consider. In the debate earlier today about transgender matters, I said that I would write to the noble and learned Baroness, Lady Butler-Sloss, about her particular point. I am sure that the noble Baroness, Lady Thornton, my noble friend Lady Barker and I will probably meet to discuss that again. On the public sector equality duty and the definition of “compel”, we have agreed to write in detail to the noble Baroness, Lady O’Loan, about the points she raised. I add, because it was not mentioned during the debates last week, that I have already had a meeting with my noble friend Lady Berridge and the Secretary of State has already met the noble Baroness on that matter.

On humanists, I said that we would reflect further. On presumption of parenthood, I said that I would write in great detail to set out what is proposed in that very important area, which my noble and learned friend has just referred to again. On reviewing of the Act, which was an amendment from the noble Lord, Lord Dear, earlier today, my noble friend Lady Northover responded comprehensively. While there were differences in approach, it was clear that we were very committed to seeing the need for a review of the Act in future. On the debate about pensions, as the noble Lord, Lord Alli, was gracious to acknowledge in his response to me at the beginning of today’s debate, I took the time to speak to the Pensions Minister before the debate took place today.

I say all that because I want to put on record that we are listening, we continue to listen and the debates will continue. I am grateful to the noble Lord for saying that he will withdraw his amendment on freedom of expression.