Marriage (Same Sex Couples) Bill

Lord Mackay of Clashfern Excerpts

Monday 17th June 2013 Lords Chamber

[Lord Carlile of Berriew]

I thought that might draw a guffaw from the Labour side of the House; they know the dangers of it. Instead of that or any other constructed euphemism, those children should be able to say, “My parents are married”, just as other children can.

[Lord Mackay of Clashfern]

My Lords, I have tabled Amendment 2 in this group. I was led to put this amendment down in an attempt to analyse what the differences are on this Bill. They are quite deep in this House, in the other place and in the country. I thought that something could possibly be done to try to bridge the divide.

The claim made by the proposers of the Bill is that whatever happens, the word “marriage” should be at the forefront of its title. Anything less takes away to some extent from that, although very worthy words have been proposed. When one looks at the debate here and in the other place, and reads the letters we have had—I thank the people who have sent many letters to me; I cannot possibly answer them all in view of my commitment to this—one can see that there is a feeling among many people in this country that same-sex marriage on the one hand and opposite-sex marriage on the other are different, and in a number of ways. They may have much in common and yet have distinctions.

I believe that the attempt to deal with this sort of thing in the descriptions given in the myth-busters document that was published along with the Bill did not really look at the main objection that people have, which is the fact that, over many centuries, marriage has signified a relationship between the opposite sexes. That is the fundamental point which a lot of people have grasped and held on to, in a way that is difficult for them to accommodate in any other context. When the myth busters got going, they used a technique which I remember being described by the great advocate Sir Milner Holland to the effect that if you cannot answer a point, the best thing to do is to set up a cockshy as close to the point as possible, knock it down with a great flurry and then pass on. That, in effect, is what has happened. The myth buster talks about the myth of having no development in marriage over the years. Anyone who has listened to this debate or read the volume to which the noble Lord, Lord Pannick, referred at Second Reading will know that there have been many developments in marriage over the years. The idea that there have been none is not the foundation of the argument at all; rather, it is that the fundamental distinction is between a marriage where the relationship is between people of opposite sexes and what is proposed in this Bill.

What I think might be of use in dealing with that is to recognise within the nomenclature of the Bill that there are two distinct provisions, one relating to same-sex marriage and the other to opposite-sex marriage. I did not put down the opposite-sex marriage amendment today because I saw that these other amendments about traditional marriage and so on had been tabled. There is reference to opposite-sex marriage in Clause 11, alongside same-sex marriage. Ultimately, it does not make any difference to the provisions. However, it does signify that the distinction between the two is understood by the legislature and that the title “marriage” is given to what the proponents of the Bill want, at the same time as recognising that those distinctions exist.

--- Later in debate ---

[Baroness Butler-Sloss]

I am grateful to the noble Lord for being prepared to answer the question that I asked him some considerable time ago. The House needs to recognise the deep division that exists both in this House and in the country. From the quantity of e-mails and letters that I have received, I know that there are a number of people out there who are bitterly upset, bitterly distressed and angry at what has happened with this Bill. I support the noble and learned Lord, Lord Mackay of Clashfern, because the amendment is a compromise—it is an attempt at reconciliation. I do not support the word “union” for the very sensible reasons that have been given. I think that there has to be the word “marriage”—I am, with regret, converted to that now—but I believe that we have to seek a middle way. If we do not, there will be many people out there listening who will be even more upset than people in this House.

[Lord Mackay of Clashfern]

I should like to answer the question that was not put while I was speaking. The provisions in the Bill for same-sex and opposite-sex couples are different, and therefore it is only right that a distinction should be recognised in the Bill for that purpose. That would not make one any less lawful than the other or anything of that sort, but it would distinguish between the provisions that apply to same-sex couples and those that apply to opposite-sex couples. Nobody can deny that these provisions are different in the Bill.

So far as the noble Baroness, Lady Thornton, is concerned, there is no necessity to declare one’s sexuality in relation to same-sex marriage. As I pointed out at Second Reading—and I am sure that the noble Baroness listened carefully—there is no question of needing to be gay to engage in a same-sex marriage. Platonic relationships between people of the same sex would perfectly suit the Bill as it stands.

--- Later in debate ---

[Lord Alli]

My Lords, I rise to speak against Amendment 1. I will also touch on Amendments 2, 9, 33, 34, 46 and 57.

The clear purpose of the Bill is to allow same-sex couples to marry. These amendments seek, in one way or another, to create two classes of marriage, which is exactly what the Bill is avoiding. This occurs in the amendment of the noble Lords, Lord Hylton and Lord Cormack, which replaces “marriage” with “union”; and in the amendment of the noble and learned Lord, Lord Mackay of Clashfern, by adding “marriage (same sex couples)”. Let me say to the noble and learned Lord that he did not do his cause justice by linking the abuse of children to a speech about same-sex marriage. Many of us found that absolutely offensive.

[Lord Mackay of Clashfern]

Let me make it absolutely clear that it had nothing to do with that. It is important—to me anyway—that children are considered. That is what I wanted to be considered. I do not link it to same-sex marriage at all. I never did and I do not think that anything I said could reasonably be so construed.

[Lord Alli]

The noble and learned Lord should not have said it then. The amendment of the noble Lord, Lord Dear, and those of the noble Lords, Lord Edmiston and Lord Mawhinney, and the noble and right reverend Lord, Lord Carey, have opted for the term “traditional marriage”. In fact the noble Lord, Lord Dear, and the noble and right reverend Lord, Lord Carey, want a separate register too.

--- Later in debate ---

[Baroness Stowell of Beeston]

If anybody wished to table an amendment and your Lordships wanted to debate it, I would be happy to consider that debate and respond to it. However, the short answer is that it would not be acceptable because we want only one institution of marriage. That is what we are seeking to achieve. We do not want to distinguish between opposite-sex couples and same-sex couples.

[Lord Mackay of Clashfern]

Before my noble friend moves on from that point, am I not right that different terms are applied to same-sex and opposite-sex marriage at different points in the Bill?

[Baroness Stowell of Beeston]

I think my noble and learned friend referred to this point in an earlier intervention. I will probably cover it a little later, but I think he is referring to Clause 11(1), which states:

“In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples”.

That does not introduce a distinction between two different kinds of marriage.

As I understood the noble Lord, Lord Dear, to say, Amendment 9 in his name is intended to define the marriage of a man and a woman as a traditional marriage, and have that marriage registered as such by the Registrar General in a separate register. Traditional marriage of the type he is putting forward could be formed only by opposite-sex couples. Therefore, this amendment would create an unwelcome distinction in the institution of marriage. As I stated at Second Reading, the introduction of same-sex marriage does not redefine any existing or future marriage of a man and a woman. It is not necessary to protect that status.

--- Later in debate ---

Moved by

[Lord Mackay of Clashfern]

5: Clause 1, page 2, line 3, at end insert—
“(6) No person to whom subsection (7) applies may deprive another person of an office or appointment for holding or having publicly expressed the belief that marriage is, or should be, the exclusive union for life of one man and one woman, nor may such a circumstance applying to a candidate for such an office be taken into account as a factor against appointment.
(7) This subsection applies to those making appointments to any public office as defined in section 50(2) of the Equality Act 2010 or any appointment made by a person who is specified in Schedule 19 to that Act or any person exercising a function that is a function of a public nature for the purposes of the Human Rights Act 1998.
(8) A breach of subsection (6) may confer a cause of action at private or public law.”

[Lord Mackay of Clashfern]

My Lords, we heard earlier a number of instances, which I shall not repeat, in which expressing views in relation to same-sex marriage has led to sanctions against people in various walks of life. The amendment is, in effect, intended to avoid any risk of that sort of thing happening in connection with a public office. I beg to move.

[Lord Alli]

My Lords, I wish to speak to Amendments 5, 7, 8 and 19, government Amendment 53 and Amendment 54. This group of amendments seeks to put into the Bill a series of protections for those who believe that same-sex marriage is wrong, who want to make clear that they believe it is wrong, and who are employed by public authorities or subject to the Equality Act.

Robust provisions in the Bill and that Act already give such protections. Indeed, the Minister made this clear at Second Reading and, if she does not mind, I shall repeat her words. She said:

“It is lawful to express a belief that marriage should be between a man and a woman, and it is lawful to do that whether at work or outside work. That is a belief that is protected under the religion or belief provisions of the Equality Act 2010, and penalising someone because of such a belief would be unlawful discrimination under that Act”.—[Official Report, 4/6/13; col. 1104.]

The Minister and the law cannot have been any clearer. In addition, as promised, the Government have brought forward—unnecessarily in my view—reassuring language in Amendment 53 regarding freedom of speech. As regards Amendment 37, which was tabled by the right reverend Prelate the Bishop of Leicester, and Amendment 56 of the noble Lord, Lord Dear, the Government are, in Amendment 53, giving the noble Lords all that they ask for but in more inclusive language. I hope that the right reverend Prelate, who is not in his place, will accept that and move on.

Given that the law is clear and the Government have strengthened the language on free speech, what are Amendments 37 and 56 for? I have a sneaking suspicion that their impact, like many others tabled throughout the Bill, will not be helpful but raise alarm with the public and insert inflammatory language to fix a mischief that never really existed. I accept that that is probably not intended by those who tabled those amendments. However, I call it the “Section 28” effect. What do I mean by that? The last time that such an impact was felt was after the introduction of Section 28 of the Local Government Act 1988. The inflammatory text damaged the reputations of the party opposite and this House. We have come a long way since then. I ask the Committee and the Government that where there is no mischief that they can identify please do not seek to remedy it, as is the case with these amendments dealing with public authority employees expressing their opinions on marriage. Please be wary of those offering helpful solutions, as some of us have had to live with the terrible consequences of those tactics as a result of Section 28.

--- Later in debate ---

[Baroness Stowell of Beeston]

I think I will take my noble friend’s free legal advice and refer the noble Lord, Lord Anderson, to it. On that basis, I hope that I will be able to convince my noble and learned friend, who is also a very experienced lawyer, to withdraw his amendment.

[Lord Mackay of Clashfern]

My Lords, I have been waiting for some time to intervene to prevent my noble friend having to answer all these questions but the priorities of the House required me to give effect to those who wanted to speak. We have had a very full debate and I thank my noble friend for the very detailed answers she has given on all the issues that have been raised. I am sure we will want to read very carefully what has been said. In the mean time, I am extremely happy to withdraw my amendment.

Amendment 5 withdrawn.