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

Lord Lester of Herne Hill Excerpts

Thursday 15th December 2011 Lords Chamber

Lord Mackay of Clashfern: My Lords, it is absolutely plain that the noble Lord, Lord Alli, and those who supported him in the amendment moved in the debates on the Equality Act 2010—Section 202—were clearly of the view that no obligation should be placed upon any religious body to host a civil partnership if they did not wish to do so. That is absolutely plain. What is more, they were prepared to put into the amendment a statutory provision that declared that nothing in this Act would place an obligation on religious organisations to do so.

That amendment was made by the Equality Act 2010, but it was made to Section 6A of the Civil Partnership Act 2004. If you go along to the Printed Paper Office and ask for a copy of the 2004 Act, you will discover that it contains no Section 6A. That is because Section 6A was put into the Act by a regulation in 2005. That regulation was made under a provision in the Civil Partnership Act allowing statutory amendments to be made in respect of the Acts that were passed before the end of the Session in which the 2004 Act was passed. Therefore, any enactment contained in an Act passed before the end of 2004 can be amended by statutory regulation, using the affirmative procedure.

The point that arises in this case is a short one and I am not going to go into the opinions of the QCs. Noble Lords have had the great advantage of hearing another QC giving an opposite opinion—and it is not infrequent that that happens. I am going to give no opinion at all about the correctness or otherwise of the provision. They are practising QCs. They have signed their opinions, they are genuinely held and they illustrate a doubt—that is all—about the effect of the Equality Act on these regulations.

My point is that the amendment that the noble Lord, Lord Alli, and his colleagues put forward, which was accepted on a free vote in this House and the House of Commons, refers to nothing in this Act, but only to provisions in the 2004 Act. The opinion of these Silks is that the risk arises not from the provisions of the 2004 Act but from the provisions of the Equality Act 2010. To my mind, this issue can be completely set to rest by a simple amendment. Instead of saying “nothing in this Act shall”, the provision would say “nothing in this or any other Act shall”. The Government could do that without difficulty because I am sure we are all agreed that we mean to exclude any attack on the basis of the Equality Act.

[Lord Lester of Herne Hill]

Leaving aside altogether the argument about the declaratory provision, does the noble and learned Lord accept the opinion given, for example, by the Church of England's lawyers, with which I fully agree, that in any event, under the Equality Act, there could not conceivably be unlawful discrimination in the provision of goods, services and facilities, nor could there be a breach of a public sector duty because no public function is exercised by religious organisations? Therefore, quite apart from the belt-and-braces declaratory provision, there would be no conceivable case of unlawful discrimination.

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[The Lord Bishop of Blackburn]

My Lords, of course I share the concerns expressed by others about how these regulations might affect other churches. However, like my brother the right reverend Prelate the Bishop of Oxford, I should like to say how I think these regulations might affect the Church of England, although I shall perhaps be looking through a slightly different part of the lens.

At the moment, the Church of England, through the General Synod, has not expressed any desire at all for its churches to be used for registering civil partnerships. Therefore, it might be thought that I should be very content to rely simply on the provisions of the regulations that would require the consent of the General Synod to be given before any Church of England church could be approved for registering civil partnerships. However, it seems that this provision is not without difficulty. As your Lordships will know, we have special procedures in General Synod for matters that affect the doctrine or liturgy of the church. It could be thought by some that allowing churches to be used for civil partnerships would affect the doctrine or worship of the church. If so, those special procedures would come into play.

The provision in the schedule to the regulations talks simply about requiring the consent in writing of the General Synod without defining how that consent is to be obtained. If at some future date the proper consent of General Synod were obtained, there could still be difficulties for individual clergy. There are, as we have heard, a variety of legal opinions about whether a claim for discrimination against a priest who refused to allow his or her church to be used for registering a civil partnership would succeed. However, at the end of the day, clergy should not be put at risk of having to defend such claims, even if they seem unlikely and their prospect of success seems remote.

It seems clear, however, that an incumbent who refused to allow his or her church to be approved for civil partnerships would gain no protection from Regulation 2B, because the obligation not to discriminate comes not from the regulations but from the Equality Act. Regulation 2B would appear to be nothing more than window-dressing, and it shows how unsatisfactory these regulations are. There may be good intent but the promised conscience clause simply is not there. It cannot be there in regulations; either the Equality Act or the Civil Partnership Act needs to be amended to provide the necessary clause. I would want to see an express statutory conscience clause similar to that contained in Section 8 of the Matrimonial Causes Act 1965, which provides that no priest of the Church of England or the Church in Wales can be compelled to allow their church or chapel to be used for the solemnisation of a marriage of a divorced person whose former spouse is still living.

As the General Synod has not expressed any desire for Church of England churches and chapels to be approved for registering civil partnerships, there is surely no need for the Church of England to be included in these regulations at all. Indeed, it should be expressly excluded from them; otherwise, might it look as though Parliament is breaking what I understand to be the convention that it legislates for the Church of England only when the church has asked it to? If at some future date General Synod decided—

[Lord Lester of Herne Hill]

Can I take it from his speech that the right reverend Prelate disagrees with the legal advice given to the Church of England by its legal advisers?

[The Lord Bishop of Blackburn]

I think that the legal advice given to the Church of England in some areas may be open to question. Let us be honest: we have received various pieces of advice—noble Lords here have said that they have heard from many, many people, including lawyers.

If at some future date General Synod does decide that it wishes to allow its churches to be used for registering civil partnerships, then there is a simple procedure: we pass a Measure and we bring that Measure to Parliament using the established statutory procedure under the enabling Act of 1919 for Measures of the Church of England. Such a Measure could amend existing statutes and regulations as necessary to achieve the desired result, including the essential conscience clause of which I have spoken.

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[Lord Lester of Herne Hill]

My Lords—

[Lord Cormack]

My Lords—

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[Lord Collins of Highbury]

My Lords—

[Lord Lester of Herne Hill]

My Lords—

[Lord Lexden]

My Lords—

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[Lord Lester of Herne Hill]

I shall briefly say a few extra things. I am very conscious of time, and I am tempted to do what a former judge of the High Court used to do. He was famous for saying only “I agree”, and that was his judgment. I promise that I am going to make only a few extra points.

The first extra point that I must make is about the Merits Committee and the Joint Committee on Human Rights. The Joint Committee on Human Rights, on which I serve, is meant to scrutinise mainly primary legislation, not delegated legislation. We have an arrangement with the Merits Committee that if it spots a human rights issue that it thinks should be dealt with by the Joint Committee, it should be alerted to that so that it can consider it. Unfortunately, for whatever reason, that broke down in this case. I am going to ask the Joint Committee on Human Rights to ask the Lord Chancellor, when it sees him next week, whether government departments can take more responsibility and, where they spot issues of human rights in delegated legislation, to help the committee by identifying them. That means that noble Lords do not have the benefit of an opinion from the Joint Committee on Human Rights about compatibility with Article 9 and Article 14 of the convention.

Speaking for myself, I agree with my noble friend Lord Pannick that there is not the faintest chance of any violation of Article 9 or Article 14 by virtue of the Equality Act read with these regulations. On the contrary, I believe that the right view is that these regulations promote religious freedom and do so without discrimination.

Quite apart from the arguments that the noble and learned Lord, Lord Falconer of Thoroton, has fully deployed, with which I wholly agree, the point raised by my noble friend Lady Williams of Crosby was about the discrimination provisions of the Equality Act and whether, leaving aside the declaratory provision, there could conceivably be a discrimination case. In my view, the answer to that is totally correct. During the passage of the Equality Bill, I had responsibility for over a year for dealing with these issues from the Liberal Democrat Front Bench. My view is the same as that of the Church of England legal advisers, which is the further matter that I would like your Lordships to consider.

In the opinion that the Church of England was given, this was dealt with very shortly and very clearly in this way. It said:

“The question has been raised in Parliament and elsewhere of whether a religious denomination, or a local church, which declined to seek to have its premises approved for the registration of civil partnerships could be held to be discriminating in a way which is unlawful under the Equality Act 2010. The clear view of the Legal Office is that it could not. This is also the declared view of the Government’s lawyers. The clear view of the Legal Office is that it could not. This is also the declared view of the Government's lawyers. A key relevant provision is section 29 of the Equality Act which makes it unlawful for ‘a person (a “service-provider”) concerned with the provision of a service to the public or a section of the public’ to discriminate on various grounds, including sexual orientation, ‘against a person requiring the service by not providing the person with the service’. A Church which provides couples with the opportunity to marry (but not to register civil partnerships) is ‘concerned with’ the provision of marriage only; it is simply not ‘concerned with’ the provision of facilities to register civil partnerships. That would be a different ‘service’, marriage and civil partnership being legally distinct concepts. If Parliament were in due course to legislate for same sex marriage, as recently suggested by the Prime Minister, we would of course be in new territory. But that is a separate issue which would have to be addressed in the course of that new legislation”.

Then, for good measure, the opinion deals with the public sector duty:

“The non-discrimination requirement imposed by the Equality Act on service-providers does not include a requirement to undertake the provision of other services that a service-provider is not already concerned with providing just because the services that it currently offers are of such a nature that they tend to benefit only persons of a particular age, sex, sexual orientation etc. Thus, for, example, a gentlemen's outfitter is not required to supply women's clothes. A children's book shop is not required to stock books that are intended for adults. And a Church that provides a facility to marry is not required to provide a facility to same-sex couples for registering civil partnerships. The “public sector equality duty” (contained in section 149 of the Equality Act) also has no implications for a Church’s decision whether to make its premises available for the registration of civil partnerships. A Church is not exercising public functions in making such a decision so the duty is not applicable. The public sector equality duty will not prejudice denominations who conduct marriages (and whose buildings, unlike those of the Church of England, need to be registered for that purpose) but who do not wish to host civil partnerships. The registration of buildings for marriages is a purely administrative act by the registration authorities and does not involve them exercising a discretion or taking a decision. The public sector duty is therefore immaterial to the registration process. The Equality Act contains various exceptions for religious organisations (see Schedule 23). But given what is said above, it is not considered that a Church which solemnized marriages but did not wish to provide facilities for the registration of civil partnerships would need to rely on any of these since it would not be doing anything that even prima facie amounted to unlawful discrimination”.

[Lord Elton]

The noble Lord is kind to give way. I just want to observe that, like many before him and no doubt several after, he is proceeding to tell us what the result of a case would be. Does he not agree that the function of Parliament is to try to see that the law is so clear that no case would be brought? That is what my noble and learned friend’s proposal would provide.

[Lord Lester of Herne Hill]

I agree. I am seeking, using the Church of England opinion as a short way of doing so, to refer to the actual provisions in the Act to show that they are quite clear and have no application to anything that could give rise to a possible legal challenge.

[Lord Alton of Liverpool]

I am grateful to the noble and learned Lord. I want to revert to the point that the noble Lord, Lord Elton, just made. The phrase “for the avoidance of doubt” has been thrown around a lot during the course of the proceedings today. It seems there is a lot of common ground in your Lordships’ House on trying to find a sensible way forward. The noble and learned Lord, Lord Mackay of Clashfern, suggested earlier that, if vexatious litigation were to be brought forward in the future, then an amendment to the Equality Act should be brought to your Lordships’ House and enacted. Would the noble and learned Lord commit himself to supporting such an approach if vexatious litigation were to emerge as a result of the decision today, unlikely—I agree with him—though that is?

[Lord Lester of Herne Hill]

I should say that I am not a learned Lord. Whether I am a noble Lord is another matter.

[Lord Carlile of Berriew]

Just a busy one.

[Lord Lester of Herne Hill]

If there is vexatious litigation, it should be struck out by the court as vexatious and nothing more should be done about it. What I am endeavouring to say—I am not doing very well because I am quoting from a detailed opinion, but I thought the House deserved to have that opinion before it because of the authority that it gives—is that the clarity provision was not necessary because a proper construction of the provisions of the Equality Act makes it absolutely clear that any discrimination claim, either about the provision of services or about the public sector duty, would be doomed to failure.

There is one further point. In the case of Pepper v Hart, the House of Lords in its judicial capacity held that, were there any ambiguity in legislation, one could have regard to the parliamentary record to resolve the ambiguity. Quite apart from Section 13 of the Human Rights Act 1998, which the noble Lord, Lord Pannick, referred to, I have no doubt that, were there any ambiguity—in my view, there is none whatever—then the Supreme Court and the lower courts would have regard to statements made by the noble Baroness, Lady Royall, when she was leading for the previous Government, to the assurances given by the former Solicitor-General Vera Baird QC and to the statements that will be given shortly by my noble friend the Minister today. Those statements will all be one way. They will all indicate the true intention of the legislation. Therefore, were there to be any ambiguity, it would be resolved, if it had to be, judicially.

In my view, which is the same as that of the noble and learned Lord, Lord Falconer, the noble Lord, Lord Pannick, others who have spoken, the Church of England’s legal advisers and others, there is no conceivable doubt that a challenge would be hopeless. If, as a discrimination lawyer with 40 years’ experience, I were asked what my views would be about this, I would say, “You have not got a snowball’s chance in hell”.

[Lord Mackay of Clashfern]

The noble Lord mentioned the case coming to the Supreme Court. That would cost the church a penny or two.

[Lord Lester of Herne Hill]

No respectable member of the Bar, properly informed and reading the statute as a whole, if asked whether there was a reasonable chance of success, would be likely to say that there were. Anyone who brought such a challenge would have to find public funds or their own funds to do so and they would fail at first instance, in the Court of Appeal and in the Supreme Court.

[Lord Collins of Highbury]

My Lords—

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[Lord Henley]

My Lords, I confirm again to my noble friend that that is exactly what I said. Section 202 inserts an amendment into the 2004 Act but it is equally true that it is in the Equality Act; it is a vehicle for this. It is proper to say that it is Parliament’s intention that that is the position. I do not think I can be any clearer than that.

[Lord Lester of Herne Hill]

My Lords, since I raised the matter of Pepper v Hart—

[Noble Lords]

Sit down!