Marriage (Same Sex Couples) Bill

Lord Lester of Herne Hill Excerpts

Monday 8th July 2013 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I just wish to add that the process here has been admirable. Had we simply stuck with forcing through an amendment to do the trick, it would not have held in the other place. There would have been ping pong and no public consultation. Including sexual orientation discrimination in the 2006 Act and caste discrimination in the 2010 Act by regulation and consultation seemed to be the best way forward. I am extremely glad that that approach, which is in the amendment of the noble Baroness, Lady Meacher, and now reflected in the government amendment, does the trick.

The Minister has not mentioned Amendment 135, grouped here, which amends the Long Title. Although this sounds like me being a lawyer, I am very glad that it is there because I raised the point in the previous debate that, on the face of it, this was out of order. Once we amend the Long Title, it is in order and it means, in Amendment 135, that the Bill will also be for,

“permitting marriages according to the usages of belief organisations”,

and so on. I have one—not exactly caveat—point, which is that there are belief organisations and belief organisations. A line has to be drawn because there are some belief organisations that have no proper structure and may be in favour of witchcraft, paganism or matters of that kind. It will be necessary using the test of the European human rights convention or the Human Rights Act to make sure that the Government draw the line properly. A consultation is important to be sure of that. However, I congratulate the Government on doing this and the way in which it has been done. I think we will remember it in the future.

[Lord Birt]

My Lords, I, too, thank the Government for bringing forward the amendment, and all those who worked on all sides to make that possible. The amendment offers the possibility but—as the noble Baroness, Lady Meacher, makes clear—not yet a guarantee that humanists, and perhaps in due course other groups, will be able to conduct lawful marriages. As we have heard, that already happens in a fast-growing number of countries. Humanism is a movement. It is not bound together by belief in a supreme being or a formal body of doctrine, but by ethical conviction, a belief in rationality and the virtues of science, respect for nature and a commitment to optimise the sum total of human happiness here on earth.

The noble Baroness, Lady Meacher, mentioned this. Anyone who has ever attended a humanist ceremony of any kind will attest to its spiritual power, to the sense that it viscerally captures and conveys a strong sense of community feeling and the wonder of human existence. The noble Lord, Lord Norton, who I see in his place, spoke most eloquently—in one of the most powerful of many powerful speeches at Second Reading—explaining why overall he supported the Marriage (Same Sex Couples) Bill, emphasising that it extended freedom, the freedom of gays to marry. This amendment, it is hoped, paves the way for a further extension of freedom for humanists to marry as they would wish. Like everyone else, I congratulate the Government, and I look forward to the first gay humanist wedding.

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[Lord Brennan]

My Lords, the purpose of the legislature in this particular legislation is to achieve clarity, in so far as it can, so that its application in public life in this country will not produce dissension or disturbance. Therefore, when we look at the provisions of the Act, we should have in mind a saying of the American Supreme Court: “It is not for the courts to protect the people from the consequences of their political choices. It is for Parliament to legislate with clarity”.

I took part at Second Reading but not in Committee. That was to achieve two objectives. The first was some professional self-discipline; there is nothing less productive than lawyers telling the House what they think the law is or should be. Reserve is the order of the day when interpretation arises. Secondly, Committee was an opportunity for the Government to take the time that they said they would to consider concerns and produce remedies that they thought to be reasonable, in so far as remedies were required.

Government Amendments 9 and 10, I commend. They deal with the word “compel” and the concern about public function, and they deal with those matters comprehensively. I do not invite correction from my professional colleagues, but personally I cannot remember seeing in a statute—certainly not in one of this kind—the words “by any means”. That is an all-embracing, protective phrase and I commend the Government doubly for such a courageous use of language to achieve one of the protections that they said they wanted to achieve: institutional independence.

The phrase “by any means” is followed by some words in brackets. My noble friend Lord Alli has consigned the bracket to statutory ignominy. I prefer a comma; it is just as good. A comma relates to the effect of the legislation on compulsion on ordinary people in their everyday employment, and I invite the Minister to confirm that it is an example, not a definitive, sole exception. Therefore, Amendments 22 and 23, to which I put my name, I no longer consider to be necessary.

This generosity of spirit and this legislative wisdom should not stop here. The Government’s amendment to Schedule 7, dealing with the Public Order Act, remedies the concerns that those who express a public disagreement with same-sex marriage might be prosecuted under the Public Order Act, allowing for the expression of their views to be reasonable and not contrary to the Act. The amendments thus far have not involved the Equality Act, and the concern of many is not just Speakers’ Corner—homosexuality is a sin and so is adultery between opposite-sex people, or whatever it might be. The concern is that, when in the workplace, the expression of a genuine belief, whatever it might be—and let us not be distracted by the homosexual context of this—should not result in detriment to that person in their workplace or their ordinary life.

The Government said that the existing law can address these concerns. Indeed, on the third day of Committee on 24 June, the noble Baroness, Lady Stowell, said that, to avoid misapplication or misinterpretation of the equality law in this area, the Government, with the co-operation of the Equality and Human Rights Commission—I underline “and Human Rights”—will provide guidance to,

“provide adequate protections for religious organisations and individuals”,

and to say,

“why the equality duty cannot be used to penalise those who do not agree with same-sex marriage”.—[Official Report, 24/6/13; col. 603.]

I welcome that.

The Minister said that she would write to the noble Baroness, Lady O’Loan, which she has done, but without detail. There is time yet; Third Reading is next Monday. This topic must have been considered at some length. It is not complicated because the law appears to be straightforward, and so does the Government’s view, so let us have this guidance, at least in outline, in public by Third Reading. That will achieve two things. The outline will prevent further debate on this issue and will reassure all of us that the Equality Act will not be a secondary vehicle for public dissatisfaction and dissent on either side. I encourage the Government to take that action.

I have said nothing about the principle of this Bill. I have been talking about freedoms which we share: the homosexual right to freedom of certain kinds and the religious believer’s right to freedoms of certain kinds. This is a question of balance. I invite the Government to ensure that this Bill becomes law very soon with democratic balance, at least in the area of freedoms.

[Lord Lester of Herne Hill]

My Lords, like the noble Baronesses, Lady O’Loan and Lady Berridge, I am a member of the Joint Committee on Human Rights. Unlike them, I took the view, and take the view today, that the Bill is perfectly clear, even clearer with Amendments 9 and 10 for anyone who doubted it.

The Government responded to the Joint Committee on Human Rights report today. I do not know whether either noble Baroness has read the response but it has not been referred to so far. I have read it, and I am satisfied that it deals quite sufficiently with the doubts that were raised by the Catholic church through Aidan O’Neill QC and Professor Chris McCrudden, who is a member of my Chambers. I felt that the view expressed by the other side—by Robin Allen QC on behalf of the Equality and Human Rights Commission—was correct, but it became apparent that nothing would satisfy the noble Baronesses, Lady O’Loan and Lady Berridge, that there might not be issues that would still be raised. That is their view, and I respect it. I think the views that have been expressed raise fears that cannot be satisfied by language because, whatever we say in the Bill, I am sure that Members of the House will still raise question after question.

I entirely agree with the Government’s legal advice as expressed in the response to the Joint Committee on Human Rights, and I suggest that that response is placed in the Library so that people other than the Joint Committee on Human Rights can see what is said before Third Reading. No doubt it will also be repeated by the Minister in reply today, but it is helpful to have it as a matter of record.

I have been on that Joint Committee for 10 years and I am the last person standing out of the original members. In those 10 years, I have never known a situation like the one we were confronted with. We were deeply split and the only way in which we could produce a report was either by taking votes, as we used to do, which would have shown the differences, or by papering over the differences, which is what we did. Your Lordships should know that we were deeply split. The views expressed in the Chamber today reflect the ways in which we were split. I see that the noble Lord, Lord Faulks, is in his place. He, too, took an active part in those debates.

The Government have responded, and I congratulate them on the speed with which they have done so. I believe that what they have said is correct and that their citing of the law is also perfectly correct. I am glad that Amendments 9 and 10 have been moved. They are a bit verbose. I would have just said “by any means” without having to put words in brackets, but that is because I believe that at this time of night one should speak briefly and write briefly, if possible.

[Baroness Butler-Sloss]

My Lords, I have also put my name to the amendments in the name of the noble Baroness, Lady O’Loan. I share her view and the view of others and join in the congratulation of the Government on Amendments 9 and 10, which go a very long way and certainly meet Amendments 22 and 23. However, there is potentially a gap, shown by Amendments 18 and 19. I share the view of the noble Lord, Lord Brennan, and support his proposal that the guidance offered by the Government should be available. The gap that the noble Baroness, Lady O’Loan, has identified in Amendments 18 and 19 may well be met by that guidance, so it would be helpful for the Government to do that. I personally would wait to see that guidance before wishing to take Amendments 18 and 19 any further, although it is clearly not a matter for me but for the mover. However, the Government need to recognise that something needs to be said on paper to be sure that these points are met. To that extent, I differ from the noble Lord, Lord Lester.

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Reasonable accommodation has a long pedigree in other parts of the world. There is much case law on this in the United States. Title VII of the American Civil Rights Act 1964 requires that employers reasonably accommodate the sincerely held religious belief of employees unless doing so would impose an undue hardship on the operation of the employer’s business. This protection extends to manifestations of those beliefs. That is the interpretation of “accommodation” in the US. Are we to be less protective in this case than the US, which is also a common law jurisdiction? Without the protection contained in the amendment, employees will be faced with a stark choice of being forced to act against their conscience or losing their job. Surely, in a free and democratic society we would not want to see anyone placed in this position simply on account of their conscientious belief that only a man and a woman can contract to a marriage. This, after all, is a view of marriage which until very recently was the orthodox mainstream view held almost universally by Members of your Lordships’ House and by the population at large, and is still embraced by most other countries. If there is a chance of reasonable accommodation, it is surely not unreasonable to ask an employer in those circumstances to take fully into account the views of individual employees and, so far as is practicable in all the circumstances, to make provision for that employee. I beg to move.

[Lord Lester of Herne Hill]

My Lords, in my judgment this amendment suffers from the following problems among others. First, it imposes completely unnecessary burdens on employers; secondly, the burdens it imposes are unworkable; and, thirdly, it is discriminatory.

[Lord Deben]

My Lords, we have complained about many people suing, but this is an absolute opening for anybody to sue. I find it incredibly peculiar to say that an employer should organise his business so that somebody who objects to same-sex marriages could say that it was unreasonable to drive two people from one place to another. There is a limit to what can be reasonably considered a conscientious objection.

I voted for the case of registrars because I felt it was one end of the limit. I have to say that this really is ridiculous. It will open up the opportunity for people to sue the other way round on the basis of the most trivial issues. If a cook was able to say, “I am afraid that my petit fours cannot be used for the reception at a same-sex marriage”, we are making a laughing stock of the law. This is not just a bridge too far, it is a whole highway beyond where we should go.

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[Lord Anderson of Swansea]

My Lords, if we truly believe in liberty of conscience, we can hardly be against an attempt to ensure that an employer seeks to accommodate, wherever reasonable, the views of an employee. I hear the noble Lord, Lord Deben, who tried to reduce to an absurdity the point that I was trying to make, but does he or does he not believe in the principle of seeking to accommodate, wherever practicable? Clearly, in many firms such an accommodation would not be practicable because of the number of individuals concerned but in the example of a car firm with perhaps 10 drivers, it is surely not unreasonable to ask an employer to ensure that the individual who has expressed such a view is not the one called upon to drive.

The noble Lord, Lord Lester, prayed in aid US precedence during a number of earlier debates on this matter. He quoted Brown v the Board of Education of Topeka. He or someone else mentioned Plessy v Ferguson, the separate but equal case in relation to the railroad. There were a number of other cases to the same effect but the noble Lord is less willing to quote US precedent when it does not happen to suit his purpose. Under the 1964 Civil Rights Act in the US, there is such a provision for reasonable accommodation. It has worked there successfully since that time and I have no reason to doubt that if we were to put such a measure into law today, it would work equally effectively in England and Wales and other common-law jurisdictions.

[Lord Lester of Herne Hill]

The Equality Act 2010 is the best civil rights legislation in the world and is vastly superior to United States civil rights legislation.

[Lord Anderson of Swansea]

The noble Lord cites US precedent when it happens to suit his case. He is less ready to cite it when it does not, such as when considering the effect of the Civil Rights Act. However, I hear what has been said. Clearly, the proof of the pudding will be in the eating. We shall see how the Bill will affect others but I still think it is not unreasonable to ask employers to seek such a reasonable accommodation, wherever practicable. However, this time, I beg leave to withdraw the amendment.