Marriage (Same Sex Couples) Bill

Lord Lester of Herne Hill Excerpts

Wednesday 19th June 2013 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I declare an interest because I, too, was a member of the Joint Committee on Human Rights and had the great misfortune to find myself in a completely opposite place from the noble Baroness, Lady O’Loan, as she knows. During the 10 years I have been on that committee, I have never before had such an experience, where we were totally unable to secure a totally common position. Unlike previous committees, we decided not to take a vote, but to produce a compromise document. I did so in the spirit of conciliation and compromise, but I have to say that I do not agree with the views expressed by the committee in some of its parts.

I also do not agree with the very detailed speech made by the noble Baroness, Lady O’Loan. That would be quite impossible in a debate of this kind, before a body of people who have the great fortune not to be lawyers, judges, experts on the Equality Act or experts on the Marriage Act 1949, and who do not really understand the argument that the Catholic Church deployed and which has been deployed before us today.

I do not propose to answer that with the seriousness that it requires and I advise my noble and learned friend who is replying also, perhaps, not to answer every single point today. A sensible outcome of this might be to give a rebuttal in writing before Report stage on some of the detail. In my view, none of the amendments is necessary; all would create uncertainty and obscurity. The approach adopted by the church reminds me of a curious kind of person who goes around wearing trousers with not just one belt, not just two belts, not just—as in the case of this Bill—four belts, but also with a pair of braces. It is completely unnecessary.

I totally agree with the Government’s legal analysis, as expressed by the Minister in her evidence to us and in writing. On these issues, the Equality Act is quite clear. Of course, you can never prevent people bringing challenges in courts on any basis whatever; that is true of all legislation. I think that if these amendments were carried, it would create great uncertainty.

The document that is being discussed in the dinner hour, produced by the Office of the Parliamentary Counsel, When Laws Become too Complex, states:

“Good law is necessary, effective, clear, coherent and accessible. It is about the content of law, its architecture, its language, and its accessibility—and about the links between those things”.

That is all there in the architecture, language, content and accessibility of the Equality Act—this is a tribute to the Opposition, whose Act it was, with our support—and in the Explanatory Notes to the Bill. Quite honestly, if these amendments were accepted, it would create great uncertainty and damage the object of the Bill.

[Baroness Berridge]

My Lords, I rise to speak to Amendments 17 and 18, which are in my name. Although they have both been given the heading, “Meaning of ‘compelled’”, each raises distinct points. First, I wish to state my appreciation that the Government are keen to listen to concerns over the current drafting of the religious freedom protections in the Bill. The Secretary of State said in the other place that she,

“would never introduce a Bill that encroaches or threatens religious freedoms”.—[Official Report, Commons, 11/12/12; col. 157.]

The Government’s impact assessment helpfully outlined that the Bill should,

“ensure that protections are in place for religious bodies who do not want to perform same-sex marriages, not just from successful legal claims, but from the threat of litigation”.

I am grateful for the Government’s stated intentions but put my name to both these amendments as I believe that the Bill may encroach on such freedoms and that there is a threat of litigation.

I will deal first with Amendment 17. The Government have widely publicised the quadruple locks that supposedly protect religious individuals and organisations. One of those so-called locks is the protection from compulsion, which is supposed to ensure that religious individuals and organisations will not be required, under any circumstances, to conduct same-sex marriages if they object to them. This protection from compulsion is given for two different situations. First, in Clause 2(1), there is a prohibition against compelling any organisation to take the necessary procedural step of opting in, which would enable them to go on to conduct the actual ceremonies. Secondly, in Clause 2(2), there is a prohibition against compelling any person to “conduct” or “participate in” the same-sex marriage ceremony. At first sight, the lock appears comprehensive and wide-ranging, and the Government would have us believe that this is so. However, in reality, the lock is very narrow in scope because there is absolutely no definition in the Bill of “compelled”. That omission creates uncertainty and possibly limits the scope of protection offered by the clause.

This concern was recognised by the Joint Committee on Human Rights, of which I am a member, in its recent report on the Bill. The report is perhaps interesting in that it is unanimous, despite members of the committee holding different views on the principle of the Bill. Paragraph 69 recommends that the Government reconsider the issue,

“as to whether religious organisations”—

or people—

“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”.

Such reconsideration would, in my view, include considering whether to bring forward amendments such as those that we see today.

The new clause proposed in Amendment 17 would clarify the meaning of “compelled” for the purposes of Clause 2 and thus ensure that the lock provides the breadth of intended protection. The need for clarification was made more evident by the Minister during the Public Bill Committee, when he said that the meaning of “compelled” was,

“absolutely not borrowed from the Matrimonial Causes Act”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 28/2/13; col. 280.]

This statement makes it unclear where, if anywhere, the word “compelled” has a legislative precedent. In the limited case law that is available in other contexts, protection from compulsion essentially provides protection only from the imposition of a criminal penalty.

For example, individuals are protected from being compelled to incriminate themselves when giving evidence in court. Clause 2 is therefore likely to protect individuals and organisations from criminal punishment but it is unclear what else individuals and organisations are protected from. The Explanatory Notes state that compulsion,

“would include, but not be limited to, attempts to use criminal or civil law, contractual clauses, or the imposition of any detriment to force a person to carry out such an activity.”

However, Clause 2 as currently drafted does not reflect the Explanatory Notes and may not prevent public bodies treating religious organisations less favourably if they decide not to opt in to the same-sex marriage provisions.

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[Lord Cormack]

My Lords, I courteously recognise the forensic skills and deep legal knowledge of the noble Lord, Lord Pannick, and of my noble friend Lord Lester. However, my noble friend Lord Deben mentioned times in the past when assurances were given, in good faith, from Dispatch Boxes in both Houses, but have not measured up. Therefore, the recognition of the noble Lord, Lord Pannick, of the validity of the concern of the noble Baroness, Lady O’Loan, and my noble friend Lady Berridge should be taken a step further. I should like to make a suggestion that builds upon what the noble Lord, Lord Deben, said. He and I do not agree on the fundamentals of the Bill, but he made a conciliatory and helpful speech this afternoon and we should thank him for that.

I inferred, from the speeches of the noble Baroness, Lady O’Loan, and my noble friend Lady Berridge that neither is likely to push this to a Division today. I hope that is the case. As I said on Monday, this House is at its best when it has long debates in Committee and votes on Report, when there has been proper opportunity to reflect on what has been said. I shall not be able to be present later today, for which I apologise. I hope that after this, when my noble friend Lady Stowell responds to this debate, she will undertake not only to reflect most carefully on what has been said by the noble Baroness, Lady O’Loan, and my noble friend Lady Berridge, but to call them in, with others who share their concerns, to ensure that on Report we will be able to make it plain in the Bill, beyond any shadow of a doubt, that the assurances that have been given will not only be honoured but be capable of being honoured.

I withdrew an amendment on Monday night following assurances from the noble Baroness, Lady Royall, and my noble friend Lady Stowell, when I sought to add Roman Catholic priests to the definition of the clergy. I did so for many of the same reasons advanced by my noble friend Lady Berridge. There is concern—real worry and anxiety—in this House and in the country. The Bill will make its way to the statute book; of that I have no doubt. I regret that but, as a good democrat, I accept it. However, I want it to give the strongest possible protection to those who in all conscience cannot accept the fundamental statement that same-sex marriage is the same as marriage between a man and a woman. I urge my noble friend, when she comes to wind up this debate—

[Lord Lester of Herne Hill]

I hope I am not interrupting at the wrong moment, but will my noble friend agree that we have to think carefully about the role of judges and the role of the legislature? It is the legislature’s role to make the law and the judges’ role to interpret it. Having heard, for example, the noble Lord, Lord Pannick, with whom I entirely agree, I cannot imagine—I do not know what these breaches of faith in the past amount to; no one has explained what they are talking about—that the independent judiciary would not interpret the legislation as it is now drafted in accordance with its object and purpose. Were there to be any breach of assurances by Ministers, under the Pepper v Hart regime that could, if necessary, be brought to the attention of the courts and they would take that into account. Should we not, when we are making laws, try to make them clear, but at the same time recognise that in the end they are to be interpreted by a wise, independent, enlightened judiciary?

[Lord Cormack]

Of course, but it is not unknown for a wise, enlightened, independent judiciary, which I strongly defend, to conclude that Parliament has not indeed been clear, and therefore it is very important that Parliament should be clear. We talked about locks, triple locks and quadruple locks. I think that there are very few locks that my noble friend Lord Lester and the noble Lord, Lord Pannick, are not capable of unpicking. We want to bear that in mind. It is very important indeed that this Bill, when it passes on to the statute book, has the full guarantees which I am sure my noble friend, in all honesty, wishes it to have.

To return to the point that I was making when my noble friend Lord Lester so courteously interrupted me, I hope that my noble friend, when she comes to wind up, will not only reflect on the concerns, and undertake further to reflect after this debate, but that she will give an opportunity for the noble Baroness, Lady O’Loan, my noble friend Lady Berridge and others to meet her and her officials to discuss these points in detail.

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[Lord Wallace of Tankerness]

My Lords, obviously they cannot yet have been sacked because of this legislation, because it is not yet an Act. As my noble friend may recall, we debated the position of registrars at some length on Monday evening. The explanation given then was that registrars perform a public function. As was pointed out by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, judges, who also exercise a public function, are not allowed to pick and choose which cases come before them. Similarly, a local authority could not have a policy of refusing to promote staff who have expressed a belief that marriage should only be between a man and a woman. This would be unlawful direct discrimination, and the equality duty requires public authorities to have due regard to the need to eliminate such discrimination. The equality duty cannot make lawful an otherwise unlawful or oppressive act.

My noble friend Lady Berridge quoted the impact assessment regarding the threat of litigation. It is of course not possible completely to rule out any possibility of somebody bringing legal proceedings. I think it was the noble Lord, Lord Alli, who pointed out—and as my noble friend Lord Lester quoted on Monday—some authorities do idiotic things. No legislation can provide for every eventuality. However, we believe that the Bill minimises this possibility as far as possible by making it absolutely explicit that those relying on Clause 2 are permitted to refuse to be involved in solemnising same-sex marriages. There would indeed be no cause of action. We believe that an application for strike-out could be made early in any proceedings, as there would be no reasonable prospect of success in such claims. The noble Baroness, Lady O’Loan, said that the inclusion of Clause 2(5) and (6) and the protection they provide undermine the protection which we believe is already in place with regard to Section 149 of the Equality Act 2010.

The amendments to the Equality Act 2010 in Clause 2 provide that it is not unlawful discrimination to refuse to carry out acts specified in Clause 2(2). These specific exceptions are provided to ensure that the Equality Act is not in conflict with the protection provided in Clause 2, so that the law is clear and consistent. This aspect of the Equality Act is the only area of legislation which requires this explicit treatment, as otherwise it would conflict with Clause 2.

We should also remember, as the noble Lord, Lord Pannick, indicated, that the equality duty is a duty only to have regard. It is not in itself a duty to act, but rather a duty to think. It does not require that particular action is taken or that any specific objective or outcome is achieved. As the noble Lord said, “having regard” also means that we have to have regard to primary legislation, such as what would be in this Act if the Bill is enacted. I hear what my noble friend Lady Knight says about concerns that sometimes guarantees do not always seem to follow through many years later. However, what we are dealing with here—I think that the noble Lord, Lord Pannick, made this point—is a fundamental part of the architecture of this legislation: namely, that there should be religious freedom not to opt in. Therefore, it would be unthinkable for a court not to have regard to a fundamental piece of the legislation we are passing. I certainly hear what the noble Baroness—

[Lord Lester of Herne Hill]

Does my noble and learned friend also agree that the Human Rights Act compels this legislation to be construed compatibly with religious freedom as defined in the European convention?

[Lord Wallace of Tankerness]

Indeed, my noble friend is right. Article 9 of the European Convention on Human Rights gives that right to freedom of religious belief and expression. The noble Baroness, Lady O’Loan, said that sometimes the courts are reluctant to second-guess public authorities. It is highly unlikely that the court would do something which is in direct contradiction of what Parliament has clearly expressed and intended not just in the Bill but in all the statements that have been made by Ministers and, indeed, by almost everyone who has participated in these debates.

It is also important to note—again, this point was made by my noble friend Lord Lester and picked up by my noble friend Lord Deben—that amendments can sometimes have unintended and adverse consequences. I know that is certainly not the intention of the noble Baroness who moved this amendment, but the equality duty applies to and protects equally various protected characteristics, including religion or belief so a public authority has to bear in mind the impact of its policies on people holding different religious or philosophical beliefs, such as the belief that marriage should be only between a man and a woman. If, as the amendment proposes, a public authority is prevented from having any regard to individuals’ or organisations’ beliefs about same-sex marriage, it would be unable to consider how its own decisions could potentially discriminate against, or otherwise disadvantage, people who believe that marriage should be only between a man and a woman. That would remove an important protection for people who hold such a belief. I know that this is not what the noble Baroness intends but it illustrates the fact that when you try to solve one problem you can create another.

As I say, I recognise the concerns that some public bodies might be overzealous or mistaken in their exercise of the equality duty or misuse it to the detriment of those who do not agree with same-sex marriage. As I have indicated, no Government can give a copper-bottomed guarantee that some public authorities will not act irrationally. It is important that we ensure that public authorities understand their responsibilities under the Equality Act 2010 correctly, and how these relate to beliefs about marriage. With that in mind, the Equality and Human Rights Commission has undertaken to review its guidance for public authorities to ensure that the position is as clear as possible. As I have said, while I appreciate the intention behind this amendment, it is unnecessary and could have adverse consequences quite at odds with its intention.

I turn to Amendment 17. The concept of compulsion is readily understood in its natural meaning, and to subject anyone to any type of detriment or unfavourable treatment because they refuse to participate in any way in religious solemnization of same-sex marriages would clearly be understood as a violation of their legal right under this Bill not to participate. We are therefore confident that Clause 2 provides strong and effective protection to ensure that religious organisations and their representatives cannot be forced to participate in same-sex marriages against their belief. The Explanatory Notes to the Bill set out the position, as quoted by my noble friend Lady Berridge: the concept of compulsion is a broad one, which would include, but not be limited to, attempts to use criminal or civil law, contractual provisions or the imposition of any detriment to force a person to carry out the activities protected in Clause 2. The clause provides no specific remedy, but makes clear that no attempt at such compulsion would be upheld.

Less favourable treatment by a public authority of a person or organisation who does something which the Bill makes clear they are legally entitled to do would, in itself, clearly be unlawful and open to judicial review. The imposition of any penalties—civil or criminal —on a religious organisation or representative in order to compel them to opt in, or to participate in, religious solemnisation of same-sex marriages is clearly unlawful under the Bill.

Clause 2 will clearly prevent criminal or civil action being taken against any religious organisation or representatives merely for refusing to undertake acts protected under this clause. This includes, but is not limited to, disciplinary or other action taken in the employment context. In all circumstances a person who has suffered a detriment simply because they have not done one of the acts specified in Clause 2 will be able to rely on the protections in that clause to show that such conduct is unlawful and to obtain a remedy within the context of the particular claim.

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[Baroness Northover]

I am not sure if my noble friend was in his place for the earlier debate, but we had quite an extensive discussion. He may be interested in reading the letter that will be put together by my noble and learned friend.

[Lord Lester of Herne Hill]

My Lords—

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[Baroness Northover]

Yes, I can confirm that.

[Lord Lester of Herne Hill]

My Lords—

[Lord Carlile of Berriew]

My noble friend is able to offer free advice on this.

[Lord Lester of Herne Hill]

Yes, it comes free. When the noble Baroness replied to the noble Lord, Lord Tebbit, she may have had in mind not only what was said in the previous debate but the fact that at common law, as was said in that debate, it is quite clear that for a public authority to misuse its powers punitively is itself a public law wrong. The case quoted was that of Wheeler, but there have been others such as, for example, when Rupert Murdoch was penalised by a public authority so far as advertising was concerned. It was also when Shell was penalised because of a boycott. They were cases where public authorities were doing public law wrongs, and in my opinion that would apply equally at common law so far as this is concerned.

[Baroness Northover]

I find it amazing that my noble friend Lord Lester knows what is inside my head when I myself do not necessarily know what is inside it, and I appreciate his understanding. Coming back to the amendment that we are addressing here, I hope that the noble and right reverend Lord is reassured by what I have said, and by what other noble Lords have said in addition, and that he will be willing to withdraw his amendment.

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[Lord Lester of Herne Hill]

My Lords, I am a lapsed humanist. When I was at Cambridge I was a member of the most privileged club which was the Cambridge Humanists and I lapsed because it was too religious. My most memorable experience was asking EM Forster to give a lecture. He said he would give a lecture on whether Jesus had a sense of humour. I said, “That is a splendid subject”. I was just thinking that now you could not give a lecture like that. You could give one on whether God had a sense of humour. I am not sure you could give one on whether the Prophet had a sense of humour. But certainly the proposition at the time was very interesting in Cambridge.

I completely agree with the speeches in favour of these amendments for all the reasons that have been given. One further reason why I am in favour is because both the Equality Act and Article 9 of the European Convention on Human Rights recognise the rights not only of those of religious belief but also of those of no belief, and the Strasbourg Court has repeatedly explained that in a plural society agnostics, atheists and non-believers have as much right as believers of all kinds to equality of treatment. I have no doubt that there is inequality of treatment at the moment between humanists as a belief system and others. If you look at those registered as religions, they include, for example, theosophists. It is very difficult to distinguish between a theosophist and a humanist except that one believes in God and the other does not. And Buddhists and Jainists are registered but they are not theistic religions. I believe that, in terms of equality and common sense, we must move on this, and not only because my party thinks so.

My noble friend Lord Deben said that unlike the United States we have orderly systems in this country when we legislate and I am a bit concerned that in the other place they do not seem to take Long Titles seriously. I cannot imagine that these amendments would have slipped through if this legislation had been introduced into this House because, as the Long Title says, the Bill is to make provision,

“for the marriage of same sex couples in England and Wales, about gender change by married persons”,

et cetera. It says nothing at all about the rights of humanists or anybody else. Therefore, being boring about it, this falls completely outside the purpose of this Bill. I do not want to do anything to jeopardise the coming into force of this Bill but the poor old British Humanist Association has already gone through hoops to get to the position we are in. Originally, it tabled amendments just for humanists and then the Attorney-General said, “That is discriminatory”. It quite rightly changed the amendments to include all belief systems and now I am saying that this is not an appropriate vehicle for doing so.

It seems to me that there must be movement on this and if this Bill is not to be the vehicle, then either there has to be a Private Member’s Bill with government support on this separate issue to comply with Article 9 and 14 rights or some kind of inquiry leading to action. Noble Lords—the noble Lord, Lord Alli, in particular—will recall that we had similar problems when we introduced the concept of religious discrimination but did not include discrimination based on sexual orientation. He, with my support, found an ingenious way round that with a regulation power which enabled us to deal with homosexuality as well as with religion. Although that may not be the right way forward here, the Government need to be imaginative and think of ways of giving effect to the object of these amendments without being able to support them in this Bill.

[Lord Alli]

My Lords, I am not a humanist; I am afraid I am a closet believer in God. But I wanted to add my support to the legislation for humanist marriage and the inclusion of this amendment in the Bill. The Bill is about equal marriage, and allowing fellow citizens to conduct their own legally recognised weddings within their own framework of humanist beliefs seems to me to be a proposal that we should support.

I also believe that there is popular support for this proposal. I suspect the other place was minded to move forward with this but the Attorney-General’s advice at the last minute that the amendments as drafted would breach the European convention and put the quadruple lock at risk meant that there was insufficient time to deal with this. As with so many other issues, the ball is now in our court. I understand that these amendments have been changed to address the issues raised by the Attorney-General and I have seen and even read the advice from Matrix Chambers to support that case. There is huge support for this in my own party, in the Liberal Democrats and on the Cross Benches. I think that this House is minded to pass this and would like the Government to find a way to make this happen. The Government should put their best minds together to see whether we can get these amendments through. On behalf of those who have worked in this area for many years, waiting for a Bill to come along that will allow this to happen, I ask the Minister to look carefully at this.

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[Baroness Thornton]

My Lords, this has been an excellent debate. I say to the noble Lords, Lord Lester and Lord Eden, that the amendments that were tabled in the other place and those that have been tabled here have been accepted as being within the scope of the Bill, so we are perfectly entitled to discuss them as being legitimate within this piece of legislation.

We on these Benches support Amendments 19A, 22A and 27A. I am a humanist. I am not a lapsed one, though I have veered between being a member of the National Secular Society and a member of the British Humanist Association all my life.

I also need to declare an interest in that one of my sisters is a British Humanist Association-accredited celebrant. One of the things that I would like to say to the right reverend Prelate, who has made very generous remarks during this debate, is that the ceremonies that my sister conducts are in every way as professional, carefully constructed, personal and beautiful as any other funeral, marriage or naming celebration that you could wish for. The standard of training and accreditation that the BHA undertakes is exceptional, and it has a commitment to ensuring that, were this to become part of our legislative framework for marriage, its celebrants would of course match the very best of the registrars. So that is not an issue here. I am very proud of my sister and her calling, and I think she has every right to conduct marriage ceremonies.

If either of my children wanted to be married at a humanist wedding service, at the moment they would have to go to Scotland, Australia, the United States, Sweden or, more recently, Ireland. In England and Wales they would have to have a civic ceremony and then a ceremony organised by a humanist celebrant with all the spirituality and commitment that they will have chosen to have in that ceremony. Their choice is restricted by—I have to say this although it might seem a slightly odd expression coming from this side of the House—the closed shop that we find in the old-fashioned rules on marriage in this country, to say nothing of the fact that they would have to pay twice for the pleasure of getting married.

This is an issue that the Government should embrace. The Red Tape Challenge, a commitment to competition and, indeed, the Minister’s commitment to equality should lead one to the view that this is an area where there is injustice and unfairness and it needs a remedy. I hope that she will accept the principle behind the amendment or, even better, accept the amendment itself, or that the Government will come forward with an amendment at a later stage that will achieve the objective of remedying this injustice. Bearing in mind, as noble Lords have already said, that it is 19 years since the previous marriage Bill, one cannot blame the humanists for thinking it reasonable not to have to wait another 19 years before this anachronism is addressed. Indeed, legal recognition for humanist marriages was given in Scotland in 2005.

Given that legal recognition for humanist marriages is the party policy of the Liberal Democrats, is supported by the Labour Party on this side of the House and by our shadow Cabinet, and was supported in the Commons by MPs on all sides, the amendment to recognise humanist weddings as legal marriages was one of the first to be tabled when the Bill received its Second Reading in the Commons. In Committee, the amendment to give legal recognition to marriages conducted by humanists and religious charities, meeting certain conditions, was introduced but fell after a 7-7 tie on the voting Committee, which was resolved against by the casting vote of the chairman—as it would be, and I accept that those are the rules. However, that shows that there is significant support for this issue.

The redrafted amendment on Report addressed all the concerns raised in Committee as well as further concerns raised afterwards by government officials, and was debated. Again there was strong support from all sides, but the amendment was withdrawn after the Attorney-General and the Secretary of State stated that the measure would not be compatible with the Human Rights Act and that passing the amendment could lead to a declaration from the Government to that effect. The Government published their legal arguments as to why that was so and specifically asked that the legal arguments should represent the comprehensive statement of the Government’s concerns.

The British Humanist Association has taken all of this on board and the amendment before us now addresses all the matters raised in the Government’s document. Written advice from Professor Aileen McColgan of Matrix Chambers has confirmed that the revised amendment addresses all the points of law that were raised in objection to the Government. I will not go through all the proposals now because I think that the House fully understands the issues.

It is time to stop giving reasons for not allowing humanist weddings and to give reasons why they should happen and to give proposals on how we can find a way through this. I finish with a quote from something circulated in the evidence that the British Humanist Association gave.

[Lord Lester of Herne Hill]

I wonder if the noble Baroness can explain the position on Long Titles, because it may well be that her party will form part or the whole of a future Government. On the question of Long Titles, I realise that the pass was sold in the other place, and that therefore it is quite okay for us to debate this. However, in terms of House of Lords procedure, how can the matter possibly be within this Long Title? Is not the better point that there should be a Private Member’s Bill, with government support, that deals with this as a discrete issue and that can get through speedily?

[Baroness Thornton]

The point that I was making at the outset of my remarks—the noble Lord is an expert at getting legislation through this House—is that if it has been accepted by the clerks at both ends of this building, in the Commons and in the Lords, then it is within the scope of the Bill. We can have discussions about Long Titles and their meanings, and indeed we occasionally do, but it seems to me that this is fairly straightforward. It is accepted by the clerks in the Commons and in the Lords. It is therefore before us and is a legitimate thing for us to discuss.

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[Baroness Stowell of Beeston]

I will cover that point in the course of my response.

The point still stands—I will explain why in a moment—that in order to allow organisations to marry in the way that is covered in this amendment, although it seems like a small change, it requires a change in existing marriage law that has wider implications for our system of regulation of marriage law in England and Wales. The noble Lord, Lord Harrison, and other noble Lords have referred to the contribution that my right honourable friend the Attorney-General made during the debate on Report in the other place when he made it clear that if the amendment that was being debated at that time was passed, it would make the Bill incompatible with the European Convention on Human Rights. The amendment in the name of the noble Lord, Lord Harrison, is broader in scope and therefore does not raise the concern that the Attorney-General raised during the debate in the other place. However, at that time and consistently, the Government have been clear that the proposals put forward by the British Humanist Association have wider implications for marriage law. The Government are concerned because of those wider implications. There has been a lot of focus on the Attorney-General’s response to that specific amendment put forward on Report, and how that would have made the Bill at that time incompatible with the European Convention on Human Rights. However, that was not the only issue that the Government have raised, and continue to raise, about this proposal. I will explain all this in the course of my response.

[Lord Lester of Herne Hill]

I am sorry to interrupt and I hope I am not being a nuisance by doing so. Is not one reason in favour of these amendments that they would make our law compatible with Articles 9 and 14 of the convention by removing a discrimination which needs to be removed?

[Baroness Stowell of Beeston]

I was trying to make the simple point that the concern that the Attorney-General raised at that time has been addressed. That amendment was very narrowly defined around humanist belief. This amendment is much broader in scope because it is not narrowly restricted just to the British Humanist Association. However, that does not remove from what is at issue for the Government: that by introducing a change this amendment would have wider implications for marriage law in England and Wales. I intend to explain this to noble Lords.

As we have acknowledged throughout our debates on the Bill, marriage is clearly an important institution and a legal recognition through which the state confers rights and obligations. We therefore need to regulate carefully the process by which we allow this important legal status to be established.

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[Lord Lester of Herne Hill]

I am trying to helpful. Why can the Government not adopt the same approach as the previous Government on sexual orientation discrimination, or that of the present Government on caste discrimination, and say that there should be a proper consultation and then have a power included in the Bill to deal with this by regulations with the affirmative resolution procedure, with proper exceptions put in for things such as sham marriages?

[Baroness Stowell of Beeston]

I am not in a position to offer to noble Lords today the kind of specific response that my noble friend has suggested.