Marriage (Same Sex Couples) Bill

Lord Fowler Excerpts

Monday 24th June 2013 Lords Chamber

[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 ---

[Lord Singh of Wimbledon]

My Lords, this amendment is also in my name. It is a pleasure to follow the noble Lord, Lord Cormack. I echo his views and those of the noble Lord, Lord Anderson.

Before I go to the substance of what I want to say, I want to make a quick comment on three days of debate in Committee in which amendment after amendment has been put forward expressing concerns relayed from the general public about freedom of expression and freedom of belief, particularly in the workplace. I agree that if all those on the receiving end of harassment in the past, of which we have had examples, and potentially in the future were lawyers with deep-lined pockets, they could address the issues much more easily. Unfortunately, most people are not lawyers and do not have deep-lined pockets and can easily be subjected to harassment. Amendments were brought to try to bring clarity and reassurance to such people but they have been brushed aside.

It is revealing to note that those supporting this legislation have focused their comments on the benefits that might accrue to the gay community, with little or no consideration as to the effects on wider society. In this House, we have a responsibility to the country to take a wider view. As regards the building blocks of the noble and learned Lord, Lord Mackay, in the 1960s and 1970s it became common to take out a wall between two adjoining rooms to give more space, generally without conducting any sort of structural survey. The result was often structural damage costing thousands of pounds. The Bill seeks to change the definition of marriage, and with it the structure, meaning and purpose of the family unit, without any consideration of the consequences for the structure and stability of society and, importantly, for the well-being of children.

It is important to look at this from the perspective of both types of relationship. Let us start with commitment to care and fidelity. In both formalised heterosexual relationships and same-sex relationships there is due emphasis on commitment. Heterosexual marriage, however, also requires an unequivocal pledge of fidelity to stay together to the exclusion of others to provide a stability that is critical for children. In same-sex marriage there is no parallel requirement of fidelity. There is no religious, social or legal sanction to prevent a party to the relationship having other liaisons with others of the same sex. This devalues the importance of commitment and fidelity in the eyes of children and can only add to the “me and my” culture and the ever increasing number of children taken into what we euphemistically call care.

The bonding between parents and children of natural birth parents starts from the very moment of birth. I am not saying for a moment that same-sex couples cannot be excellent parents, but heterosexual parents have an important and early advantage in giving a desired level of stability and support to children and in helping them to adjust to, and appreciate, those of an opposite sex to their own. What I am saying is that these two distinct forms of relationships, equally respected by law and society, are inherently different, and a different form of words to describe them simply makes for clarity. To my mind, gay people demean themselves when they seek to hide their separate identity under the guise of the heterosexual term “marriage”. Gay people have an absolute right to respect for their way of life, but they and their supporters should extend the same consideration to others and their institutions.

Legislation on important social change must take into account the implications of such change. The legislation before us was not put in any party manifesto; there was no consultation on its merits. The Prime Minister David Cameron explicitly ruled out shortly before the election that he would introduce the legislation. It was effectively introduced through the back door. The electorate as a whole has been treated with contempt. Those with religious beliefs have been treated with contempt. It is true that near absolute protection has been given to the Anglican Church—not out of respect but because of the complexities of the link between church and state, making it difficult to do anything different. Other religions, including my own, have been neither considered nor consulted. We were told on Wednesday that no offence was intended in dealing with other religions; it was simply too difficult. Is complexity a valid reason for not looking at the impact of legislation on other faiths?

It is beyond doubt that the implications of this major social change have not been properly considered and the Government should withdraw the Bill for proper consultation with the electorate and affected bodies. If not, they should have the courage to allow the electorate to have a say on the merits of this legislation—through a referendum on the lines suggested in the amendment. The Bill has caused an unprecedented fracturing of society; a commitment for all parties to accept the results of a referendum and the beginning of a healing process. If, however, the Government choose to ride roughshod over the concerns of millions and ignore public opinion, they and their supporters will pay a heavy price in the coming election.

[Lord Fowler]

My Lords, as with post-legislative scrutiny, I have some sympathy with the principle of referendums. I am totally unlike my noble friend Lord Cormack. We came into the House of Commons at the same time, in 1970. I am slightly unusual in being a pro-European who is in favour of referendums. In my 1970 election address, I said that before Parliament decided on entry into the Common Market there should be a referendum. Conservative central office was not very happy with that but there we are; it is one of those things.

The referendum took place before Parliament had taken a decision, so that Parliament could be guided. Here we are being asked to support a referendum in two years’ time—not even tomorrow, but in two years.

[Lord Anderson of Swansea]

My Lords—

[Lord Fowler]

Hang on! The noble Lord spoke for 20 minutes. I have spoken for one, so he might retain a little patience.

We are being asked to support a referendum in two years’ time—two years after both Houses on a free vote have overwhelmingly voted in favour of the legislation. That is the fact of the matter. All the arguments put forward by the noble Lord, Lord Anderson—

[Baroness O'Loan]

My Lords—

[Lord Fowler]

I shall give way in a moment. All the arguments put forward by the noble Lord, Lord Anderson, were made on Second Reading. He may not like it but they were rejected massively and overwhelmingly in both Houses of Parliament. I give way to the noble Baroness.

[Baroness O’Loan]

That is most gracious of the noble Lord. I would like to suggest that perhaps the vote on Second Reading in this House was not an overwhelming endorsement. There was rather a feeling in this House that the Bill should be given a Second Reading, the other place having voted so overwhelmingly in favour of it. It was a vote in favour of Second Reading rather than anything else, and I do not think that it is quite accurate to portray it as anything else.

[Lord Fowler]

My Lords, I do not think that the noble Baroness or anyone else has the right to keep on going back to the votes and saying, “Although we lost by two to one, actually it really was not right. They should have taken this into account and that into account”. The fact is that those results were massive and, in my opinion, almost unprecedented for a free vote.

The only point I want to make in what is intended to be a short speech is that all the arguments we have heard so far have been put before and have been rejected. I am sorry to put it in that way—

[Baroness O'Loan]

My Lords—

[Lord Fowler]

If the noble Baroness does not mind, I am not going to give way again.

I do not think that we can or should try to double-guess what is taking place in the other place, or the process that it goes by, or the way it comes to a vote. We will get into a terrible mess if we do that. Not surprisingly, this proposal is going to be seen as a wrecking amendment in the hope, I presume, that it can be defeated when it comes to a referendum. I leave aside the dispute about opinion polls, although every poll I have seen actually appears to suggest that there is a healthy majority in favour of this proposition and not the other way around.

My major reservation is this—it is a point that was touched on by the noble Baroness—concerns the role of this House. We do valuable work checking and improving legislation. What we do not do is stand in the way of legislation so clearly passed by the other place and, incidentally, endorsed in this House. That is what the debate about the future of the House of Lords was all about: what our place was. It was not a sort of double-guessing on major things that come from the House of Commons. I do not think we can possibly defer for two years a piece of legislation that has been—I say it again—overwhelmingly passed by both Houses. We would not dream of doing that for any other legislation I can think of, saying that we would have a referendum in two years’ time, although it has been passed in this way. I do not think that we should do it now. In this case, the proposition of a referendum is misapplied and wrong.

[Lord Browne of Belmont]

My Lords, I rise briefly to support Amendment 48. As has been made plain throughout the debates on the Bill, marriage is a vital institution and, as such, the subject of redefining marriage touches people’s deepest feelings and beliefs. It is not a change that should ever be countenanced without a clear manifesto mandate. I know that some noble Lords have tried to suggest that it is not always necessary to have a manifesto mandate. In response to that, however, I agree strongly with everything that the noble Lord, Lord Anderson of Swansea, has said.

There are some changes that perhaps it is possible to introduce without a mandate, although I have to say that it does not seem particularly like best practice unless one is responding to an urgent national security imperative. When it comes to changing the definition of something that has been defined one way for millennia and in relation to which there is a real sense that Parliament has not so much defined marriage, but rather reflected a pre-existing definition, it is absolutely imperative to have a manifesto mandate. I find it shocking that such an innovation should have been produced without one.

I know that there is a notion that the Conservative Party’s A Contract for Equalities is somehow a manifesto mandate, but I believe that that does not stand up to scrutiny. In the first instance, that document was not the manifesto. In the second instance, it talked in terms only of considering same-sex marriage, but did not make a pledge to redefine it. The change it said the party would “consider”, on page 14 of the document, was to reclassify civil partnership as marriage. That is a considerably more moderate proposal than what has been presented in this Bill. In the third instance, it was not published until three days before the election, long after postal voting had begun.

The problems associated with the failure to approach the very far reaching changes proposed by the Bill without respect for the basic rules of democracy have been greatly compounded by the subsequent disregard for constitutional due process: the lack of a Green Paper, a White Paper, a draft Bill and pre-legislative scrutiny. Of particular concern, however, has been the way in which the one consultation on the Bill was conducted. The noble Lord, Lord Anderson of Swansea, has already commented on that.