Marriage (Same Sex Couples) Bill

Lord Pannick Excerpts

Monday 3rd June 2013 Lords Chamber

[Lord Pannick]

My Lords, I warmly welcome the Bill for the reasons stated by the Minister and the noble Baroness, Lady Royall, in their admirable speeches opening the debate.

I much regret that the noble Lord, Lord Dear, should think it appropriate to seek to deny a Second Reading to a Bill which has received overwhelming support in the other place on a free vote. The noble Lord emphasised what he described as the majority view in the country at large. I have to tell him and others who share his views that the world out there has moved on and that for most people, particularly those under 60, the sexuality of their neighbours is neither a concern nor a threat, as the noble Baroness, Lady Kennedy, said. It bemuses people that any element of unequal treatment should remain in our society simply by reference to people’s sexual orientation.

Many people outside the House listening to the debate or reading it in Hansard in due course will wonder why the noble Lord, Lord Dear, and his supporters, all of whom rightly value the institution of marriage, seek to deny the same happiness, fulfilment and status to other people simply by reference to their sexual orientation. I am a paid-up member of the married club and glad to be so. It is precisely because of the value of marriage that it should not be denied to same-sex couples. There is no question of the Bill being introduced on a whim, as the noble Lord suggested. It is being introduced on a fundamental question of principle to address a wrong that needs to be addressed.

I wish to comment on a theme which appears to drive the Bill’s opponents. The noble Lord, Lord Dear, referred to what he described as centuries of tradition and the concept of marriage as we have always known it, and the noble Lord, Lord Waddington, made similar points. This is to treat the law of marriage like the law of the Medes and the Persians which, according to the Book of Daniel, chapter 6, verse 8—the devil can quote scripture—“altereth not”. The reality is that the law of marriage in this country has altereth a lot. It has altereth a lot from time to time according to changes in social conditions and social attitudes. The noble Baroness, Lady Barker, made this point in her powerful contribution to the debate.

Prior to legislation in 1907, a man could not marry his deceased wife’s sister. Prior to 1921, a man could not marry his deceased brother’s widow. Other prohibited degrees were removed in 1931. All of this information is in the valuable Halsbury’s Laws of England edited by the noble and learned Lord, Lord Mackay of Clashfern. The Gender Recognition Act 2004 allowed a transsexual to marry in his or her acquired sex even though, I remind the noble Lord, Lord Waddington, procreation is plainly not possible in such circumstances. The minimum age for marriage has been altered from time to time; the law related to the validity of non-Anglican marriages has developed over time; the law of divorce has been amended from time to time; other incidents of marriage have been the subject of change. Until case law in the 1990s when the first judgment in the modern era was given by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, the law proceeded on the basis that a husband could not be criminally liable for raping his wife if he had sexual intercourse with her without her consent.

It is, therefore, simply unsustainable for critics of the Bill to suggest that there is anything unprincipled in Parliament amending the law of marriage in a fundamental manner to recognise social developments and to do it in accordance with basic principle.

I will make one other point if I may. I have provoked the noble Lord.

[Lord Dear]

As we are both Benchers of Gray’s Inn, the noble Lord would have to go a long way to provoke me. Before we go any further, may I ask the noble Lord if he has taken notice of the fact that at no stage in my address did I say that because the law and custom of marriage were well established we should continue in the same vein? The main thrust of my address was that sufficient research has not been carried out into the laws of unintended consequences. Could he address that?

[Lord Pannick]

I cannot address every point made by the noble Lord. If he fails, as I hope he does, to prevent the House from debating the detail and the arguments in Committee and on Report, I very much hope that the House will address every point made by him. I focused on his completely unsustainable suggestion that there are “centuries of tradition” and that the concept of marriage as we have always known it is being removed. I am quite happy to try to deal with every point if noble Lords want me to make a speech of 30 or 40 minutes but I will not trespass on the tolerance of the House to do so.

I do not accept that there are unintended consequences. I will deal finally with just one suggestion of an unintended consequence made by the noble Lord and other critics—that the Bill is going to force religious bodies to conduct same-sex marriages contrary to their religious principles. The noble Baroness, Lady Kennedy, mentioned that we both gave oral evidence on this subject to the House of Commons Public Bill Committee. I explained my view that there was no realistic possibility whatever that any court, domestic or European, would compel a church or other religious body to conduct a same-sex marriage ceremony contrary to the doctrines of that religious faith. The reason is very simple: under this Bill, a same-sex couple will be able to enter into a civil marriage. Their only reason for wanting a religious ceremony would be to gain a religious benefit. All, and I mean all, case law confirms that courts will leave religious bodies to decide on the allocation of religious benefits. None of the other legal concerns raised by the opponents of the Bill seems to have any basis whatever.

I am confident that this House will give a Second Reading to the Bill tomorrow and I very much look forward to a reasoned debate in Committee on all questions of detail.