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

Lord Falconer of Thoroton Excerpts

Thursday 15th December 2011 Lords Chamber

[Baroness Hamwee]

My Lords—

[Lord Falconer of Thoroton]

My Lords—

[Baroness Verma]

My Lords, to assist the House I suggest we hear from the Liberal Democrat Benches first, maybe then the Convenor of the Cross Benches, followed by the noble and learned Lord, Lord Falconer, and then the Bishops.

[Baroness Hamwee]

My Lords, we complain when primary legislation is not commenced or implemented. The first instinct of the noble Lord, Lord Alli, was absolutely right, though he then extended his arguments. We also complain when legislation is not clear. This is not the case today. The Merits Committee, of which I am a member, did not make a judgment on the merits of the substance of this order. It used its entirely standard language, drawing it to the special attention of the House on the grounds that,

“it gives rise to issues of public policy likely to be of interest to the House”.

That statement is quite uncontentious.

I can see from those already attempting to intervene that we will hear today closely argued analysis of a construction of the words “Act”, “authority” and “services”, and I am always glad to recruit such expertise to the cause. Essentially, however, the issue is, “Does the order do what Section 202 of the Equality Act provides?”. I believe that it does. Or, “Does it require any individual or organisation to do what they do not wish to do?”. I believe that it does not. The order cannot trump primary legislation, nor can it require what the Act itself precludes. As we have been reminded, primary legislation says that nothing places an obligation on religious organisations to host civil partnerships if they do not wish to do so. If there are differing views within an organisation, that is not a matter for government.

The noble Baroness uses in her prayer the word “pledge”. It is not a pledge—or rather, it is more than a pledge—because the words are in Section 202. That section is surely permissive: it is an opt-in, not an opt-out. We know there are objections to it, but that was a matter for 2010. I say that to those who would like to extend that section, as well as to those who would like to see it interpreted restrictively. To attempt now to reverse it, extend it or block it, is inappropriate.

I will be quick because there are so many noble Lords who wish to speak. I find it very difficult to see anxiety engendered among people with a particular view. I do not like to see people fed fear. I realise that something that may seem entirely reasonable to me may seem very prejudicial to you, whoever you and I are—that is, whichever side of the argument one is on. I will end by voicing what others might see as my own prejudices. That 46,000 couples have entered into civil partnerships is wonderful; 92,000 people have been able to give formal, legal expression to their relationship. It is a paradox that some who advocate celebrating marriage within a faith oppose extending it to other stable relationships. I welcome the order and look forward to taking forward Section 202.

[Lord Falconer of Thoroton]

My Lords, I speak as a lawyer today. I concede my obligation to the House to set out my genuine view, because this is a legal issue and because I was formerly the Lord Chancellor. The noble Baroness, Lady O’Cathain, and the noble Lord, Lord Alli, agree the basis upon which Parliament—not only this House—passed the amendment to the Civil Partnership Act which abolished the prohibition on civil partnerships being registered in places of religious worship. My noble friend Lord Alli said at the time that there was no disagreement about this.

From the outset I want to make very clear that the amendment does not place any obligation on any religious organisations to host civil partnerships in their buildings. We made that clear by including in the amendment the words:

“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”.

There is no doubt that that was the basis on which the provision was passed. If we have not given effect to that provision, we should not agree to these regulations. The only issue today is therefore whether as a matter of law we have given effect to it. It is for the House to make a decision about this. It is always possible to find a lawyer who says that something is arguable. It is for us to go through the provisions today and form a view about whether or not, contrary to our intention and to that of the House of Commons, we have somehow failed to achieve it.

I will very quickly go through the basic provisions so that we arrive at a clear answer. Section 2 of the Civil Partnership Act makes the moment at which a civil partnership occurs the moment at which the two partners sign the civil partnership document. Section 6 of the Act—this is, before the amendment—says that that signing can take place either at a registry office or at approved premises. It sets out provisions for premises to be approved by somebody called the registration authority. The registration authority is the local authority. The Civil Partnership Act gives the local authority discretion over whether or not they register premises. Section 6 of the Act as originally passed says that civil partnerships cannot be registered at religious premises. Section 2(5) says—and this provision remains—that there should be no religious element in relation to any registration of a civil partnership.

The amendment of the noble Lord, Lord Alli, which was supported by Parliament, did two things. First, it removed the prohibition on religious premises being used for civil partnerships. It retained the approval process, so that local authorities still approve whether premises—including religious premises—can be used for civil partnerships. Secondly, it added to the Civil Partnership Act words to the effect that for the avoidance of doubt, this does not compel any religious organisation to host a civil partnership ceremony if they do not want to.

That is the legal framework that we now have to look at. On the basis of that legal framework, my initial conclusion is that Parliament has made its intention absolutely clear: Parliament does not want to compel anybody to host registration of civil partnerships unless they want to.

I wondered what could conceivably be the argument that we have failed to express our intention clearly. I have read the two opinions that have been provided on this. I will do my best to summarise them fairly and set out why they are plainly wrong, although not lacking in bona fides. The first argument, which was advanced by Professor Mark Hill QC in his opinion dated 8 November, is that because the regulations say that—for the avoidance of doubt—the law does not compel anybody to host a civil partnership if they do not want to, the regulations saying it would not, alone, be enough. I completely agree with that. A regulation saying that hosting is not required would have no effect at all if the position was that the primary Act of Parliament did not get rid of the risk of any discriminatory legislation. However, the primary Act of Parliament does contain the prohibition, so it seems clear that Professor Hill is wrong about that.

I looked through Professor Hill’s opinion to find out what he said about the main provision in the Act, which appeared to be the critical provision. He said that Section 202, in referring to an Act, refers to the Civil Partnership Act and not to the Equality Act. I found that wholly unconvincing because the risk which the noble Baroness, Lady O’Cathain, and the QCs identify is that there are provisions in the Equality Act, except for the purpose of this argument, that might be said to create a risk of some sort of action arising from the fact that you perform civil partnerships but not marriages, or the other way round. It seems to me beyond argument that the intention of Parliament must have been to get rid of that risk by putting in the very same Act the phrase,

“For the avoidance of doubt, nothing in this Act”,

gives rise to the risk of any compulsion. For Professor Hill’s opinion to be correct, you have to assume that this House and the Commons were unaware of the risk that the Equality Act could give rise to litigation when they put into the very same Act a statement that said that allowing churches to host civil partnerships does not lead to any church being compelled to host one. I cannot think of a judge who would give effect to such a nonsensical argument.

8 November was the date on which the advice of Professor Mark Hill was obtained. His advice came under some legal attack. Noble Lords will know that the legal advisers of the Roman Catholic Church, the Church of England, the Home Office and the Equality Commission have all said that there is no legal risk. Reinforcement was obtained from Mr Aidan O’Neill QC. I am very grateful to the noble Baroness, Lady O’Cathain, for providing a copy of his advice. He gives a lot of ground in relation to it, recognising the difficulty that exists.

[Baroness Trumpington]

Could the noble and learned Lord please stop turning away?

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[Lord Falconer of Thoroton]

I apologise. Mr O’Neill says that since Section 3 of the Human Rights Act requires statutes to be interpreted as much as possible in accordance with the European Convention on Human Rights, that section might, arguably, give rise to the possibility that it could be construed away or read down. However Mr O’Neill, who I do not criticise at all, is an honourable man. He rightly sets out the basic law in relation to reading down under Section 3. He says that the only limitation on Section 3 of the Human Rights Act, on interpretive obligation, according to the House of Lords decision in Ghaidan, is that in reading words into the legislation, or in deleting offending words, the courts have to be satisfied that such emendation could not be said to “go against the grain” by overriding some cardinal feature of the legislation in question, or otherwise raise generally policy issues that a court cannot properly seek to resolve by a process of judicial rewriting. That is what Mr O’Neill, the person relied upon by the noble Baroness, Lady O’Cathain, said.

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[Lord Tebbit]

The noble and learned Lord has given a splendid exposition of the law of the United Kingdom. Can he assure us that there is no vestige of a chance that European law, either through Brussels law or the law that falls from the European convention, could override the British courts? After all, it, not this House, is now the ultimate authority on our legal affairs.

[Lord Falconer of Thoroton]

In general terms I can give no assurance that the European courts cannot override the British courts on this. Indeed, they can override this Parliament. However, with respect to the noble Lord, Lord Tebbit, that is not the issue that this House is addressing today. The House is addressing a simple issue of English law and it has been accurately put by the noble Baroness, Lady O’Cathain: does the legislation that we passed give effect to the intention of this House? That is a question of interpretation of English law. I have no doubt that it gives effect to it because it is so clear. I have read both opinions very carefully and my view is not shifted by them.

I make two further points. First, Professor Hill QC and the noble Baroness, Lady O’Cathain, who accurately reflected this argument, said that there was some risk that local authorities would try to punish churches that did not agree to host civil partnerships by saying that they could not have the authority to conduct marriages. I have absolutely no doubt that there is no foundation for that in even the existing law. Section 41 of the Marriages Act 1949 lays down a process whereby there is no discretion in the local registrar, who is a separate person from the local authority. The person who decides whether a church is entitled to solemnise a marriage is not the local authority but the Registrar-General. He has no discretion in that matter once it has been resolved in terms of the statutory requirements. The legal foundation of that does not exist.

The second point made by the learned professor is that the regulations—not the Act—say that an application can be made by a trustee or a proprietor of the church. He gives rise to the possibility of doctrinal debates in churches about this and one trustee applying when the congregation does not want it and the minister or the priest perhaps does not want it. That is a policy consideration that the state has been concerned about and has made specific provision for. The Government say in relation to their response:

“Following concerns about ensuring that the local congregation is made aware of an application in respect of the premises they use for worship, we will make clear in guidance and on the application form that best practice is for the proprietors or trustees of the premises to make their congregation aware … In addition, each application will be required to be advertised by a local authority and is subject to a period of 21 days’ public consultation, providing further safeguards against applications being made without the knowledge of the relevant congregation”.

I do not think there is any statute in the world that would be able to provide for disagreements within a church about doctrinal issues. What the state has done—and I commend the state for it—is to follow the approach taken in the Marriage Act in relation to the solemnisation of marriage, and this has caused no trouble over hundreds and hundreds of years.

My legal opinion is absolutely clear. Although I completely respect the sincerity of the noble Baroness and completely accept the bona fides of the QCs, there is nothing in what they say and you can be confident that, even though I can give no guarantees that nobody will bring litigation—there is bound to be somebody who will—it only requires one case to deal with it.

[Baroness Williams of Crosby]

Before the noble and learned Lord finishes his extraordinarily useful and helpful speech, could I ask him to come back for a moment to one of the issues raised by hundreds of my correspondents—many noble Lords will probably have similar numbers of correspondents on the subject; I have hardly ever seen so many except for health—which is whether the Equality Act, if approached on the grounds of discrimination, would be able to overcome the specific amendment to which he has referred on both major pieces of legislation? It would be helpful for all of us, in replying to that very powerful public opinion, to know the view of the noble and learned Lord—as the previous Lord Chancellor—on this topic.

[Lord Falconer of Thoroton]

My unequivocal view, which I have been trying to express, though rather badly, is that the provision that the noble Lord, Lord Alli, and I have quoted has the effect of making sure that no discrimination proceedings can be brought under the Equality Act or under the convention in English law as a result of a church saying no to civil partnerships being solemnised on their premises. That is the problem and I am absolutely clear that there is no possibility of discrimination legislation, based on the Equality Act, as a result of the drafting of Section 202.

There is also a broader point of principle. We should not, as a House, be knocked off doing what we decided to do by the opinions of two Queen’s Counsels. We should be clear that we achieved our intention. We used simple language. There is no doubt about what it means and I have absolutely no doubt that the courts will give it effect. I have reason to believe that it might be said that it would be quite easy to amend the provisions, using a provision of the Civil Partnerships Act under Section 259. This would take time, but it would be quite easy to do. It is, however, utterly unnecessary because we expressed our views utterly clearly and the courts will give effect to them.

[The Lord Bishop of Oxford]

My Lords, I, too, am most grateful to the noble and learned Lord, Lord Falconer, for an extraordinarily erudite narrative. I am also grateful to the noble Baroness for initiating the debate because it gives us the opportunity to look at this very important and sensitive issue of the regulations. I have been much exercised, as I am sure many of you have, by the conflicting opinions I have received. I very much wish the issue were clear-cut, and perhaps it really is. However, for reasons I will explain, I will not be able to join the noble Baroness in the Division Lobbies if she pushes it to a vote.

I say that with real regret, because I entirely share the noble Baroness’s passionate concern for safeguarding religious liberty which is one of the tap-roots for all liberty. Those who hold to the traditional ethical teaching on sexual morality of the Christian churches and many other faiths can too easily be accused of being homophobes. The implication is that, if persuasion does not work, we may have to resort to coercion, which would be a profoundly wrong approach.

The question before us today is whether these regulations do in fact interfere with religious freedom. Having considered the issues carefully and tried my best to understand the conflicting legal opinions of the distinguished lawyers with whom I have also been in touch, I am not persuaded that they do give us that danger. There could, in principle, be two possible arguments for opposing the regulations. The first would be to register opposition to the principle of allowing civil partnerships to be registered in places of worship. The second would be because, although the principle is accepted, these particular regulations were deficient.

On the first point, although it is history, it can be argued that the change in the law agreed by Parliament last year does have its curious features. To say, as the law now does, that civil partnerships can be registered in places of worship but without any religious element taking place in the registration is, on the face of it, quite odd. Moreover, denominations wishing to offer services of blessing following civil registration can already invite people to come to the church or synagogue after the registration and have that element there. Parliament rehearsed these arguments last year and was persuaded that, if people want to register their civil partnership and have a religious ceremony at the same time and in the same location, then legislation should not get in the way of their doing so. That was essentially for religious liberty reasons. The Quakers, the liberal Jews, the Unitarians and anyone else who wanted to host civil partnership registrations should be free to do so, but not forced to do so. I do not, therefore, see a sufficient case for opposing these regulations on the first of those two possible grounds.

For me and, I am sure, for all of us here, everything turns on the second issue which is whether these regulations and, indeed, the Equality Act to which they give effect, are defective. By defective, I mean whether what is meant to be an option would, in fact, become a duty. Will churches and chapels be at risk of litigation? We non-lawyers are in the hands of the experts here. I can muster only a 40 year-old Oxford law degree which is quite inadequate for the task. However, the advice of the legal office of the General Synod is clear that it will be perfectly lawful for churches, chapels and other places of worship to decline to register their places of worship as premises for civil partnerships. That advice has been unequivocally endorsed by the standing counsel to the Synod, Sir Anthony Hammond QC, who was previously Her Majesty’s Procurator General and Treasury Solicitor and Queen’s Proctor. It is also the view of the Government’s lawyers and other senior lawyers not unknown in these erudite precincts, one of whom we have just heard from.

In addition, for the Church of England and certain other denominations, there would have to be a policy decision at the national level from the relevant body—in our case the General Synod—before any church could seek to register. I know that the Christian Institute has commissioned legal opinion from the two separate QCs we have heard about, who take a different view to the lawyers I have mentioned. This is disturbing, and I look to the Minister in responding to this debate to read very carefully into the record his own understanding of the position. In particular, I would like to hear him assure the House that, in the wholly unexpected event of the courts taking a different view from the massed ranks of government lawyers, church lawyers and other lawyers to whom I have referred, we would have either primary or secondary legislation to sort the problem out. I am sure that assurance can be given.

I have the highest regard for the professionalism and integrity of the lawyers of the General Synod, who also advise the House of Bishops. In the light of their advice, it is not clear that there is anything in these regulations or last year’s legislation which needs to be changed. They appear to me to preserve the ability of the Church of England and all other churches and faiths to decide their policy on these matters in the light of their own beliefs and teaching. I regret coming to a different conclusion from the noble Baroness; I would like to have stood with her in support of religious liberty, which is essential to a civilised society, but on the balance of arguments I believe the safeguards are already in place.

Let me say one final word before I conclude. It is hardly a secret that the Church of England along with many other religious traditions continues to wrestle with the underlying ethical issues. We are likely to go on doing so for a considerable time. I have taken part in many of those internal debates and they are at their best when characterised by a spirit of restraint, mutual respect and generosity.

Given the litigious nature of our society, it is only right that we should look at regulations on a sensitive subject such as this with a good deal of care. I am grateful that so many noble Lords and noble Baronesses are here to do that. Nevertheless, I would urge from these Benches that this debate is characterised by that same restraint, mutual respect and generosity that I just mentioned. Those are the qualities by which religious, and indeed all, liberties are best nourished and protected.