Marriage (Same Sex Couples) Bill

Lord Pannick Excerpts

Monday 8th July 2013 Lords Chamber

[Lord Waddington]

I read on Saturday a speech made by the most reverend Primate the Archbishop of Canterbury. I will not trouble the House with much of the speech, but it contained this particular passage:

“The opposition to the Bill, which included me and many other bishops, was utterly overwhelmed … There was noticeable hostility to the view of the Churches”.

I was not surprised by what I read. There are many of us not of the church who have experienced the same hostility to our views. I hope that supporters of the Bill do not forget that a substantial proportion of the population were, and are still, greatly disturbed that the Government should have introduced a measure that rejects the traditional view of marriage. Many of us are surprised that, far from trying to meet the concerns of such people, the Government have turned down every opportunity to soothe the susceptibilities of those who find the concept of same-sex marriage difficult to stomach.

Surely the Bill should not reach the statute book without the Government doing something to acknowledge that, until recently, it was almost universally accepted—it was certainly so accepted by the previous Government—that marriage could be only between a man and a woman. The views of those who still hold that belief are therefore worthy of respect and should be acknowledged in the Bill. The best way of doing that is not just by a declaration in the form set out in Amendment 4, but by a clear statement that the marriage of a same-sex couple and the marriage of an opposite-sex couple are equally valid but clearly different. The differences have been gone over time and time again since Second Reading and I will not go into them now, but they are different.

I do not think that so far this burying of traditional marriage, and putting something entirely new in its place, has yet been fully recognised by the populace. I wonder how many realise that this legislation authorises in law a man who is married to another man to be called a husband, and a woman married to another woman to be called a wife. Wife in its old meaning has been abolished by a little-read schedule to the Bill and, no doubt, the proper use of the term will soon disappear. These are dramatic changes—changes that pay no regard to the normal use of the English language, tradition, common sense or common courtesies. It is up to those initiating such change to try and make it reasonably palatable for those who were brought up to accept that marriage is the union of a man and a woman. I hope that, even at this late hour, the Government will recognise that they have some obligation in this matter.

[Lord Pannick]

My Lords, I do not support the amendments because each of them would wrongly suggest to the happy couple entering into a state of matrimony—to their families, their friends and to the world at large—that theirs is not a marriage like any other. The amendments would suggest that it is a distinct form of marriage to be placed in a category of its own. Since the very purpose of the Bill is to recognise same-sex marriages as the voluntary union of one man with another or one woman with another, in the same way as the voluntary union of a man and a woman, it would surely be bizarre in the extreme for us churlishly to take away by a subsection part of the recognition and status that the Bill will accord.

No one would seriously suggest, I assume, that there should be a legislative provision that states that marriage between divorced persons shall be referred to as marriage (divorced couples). The whole point of the Bill is that all lawful marriages, which will include marriages between same-sex couples, are marriages— although, as we all know from our personal experience, each and every marriage is unique.

The noble and learned Lord, Lord Mackay of Clashfern, emphasised that there are some respects in which the Bill treats a same-sex marriage as different from a marriage of an opposite-sex couple. But the whole point of the Bill, surely, is that, notwithstanding those differences, the Bill will implement the basic and vital principle that a same-sex marriage is a marriage with the same status and consequences as any other.

I entirely understand why those who are fundamentally and sincerely opposed to the Bill should wish to introduce these amendments. But they should recognise why those of us who support the Bill regard them as simply incompatible with the fundamental purpose of the legislation.

[Lord Mackay of Clashfern]

The noble Lord said that the two types of marriage are to have exactly the same consequences. I think I heard him correctly.

[Lord Pannick]

I said that I understood the noble and learned Lord’s point that the Bill in various respects, which he referred to, treats same-sex marriage and opposite-sex marriage as distinct in various respects. But I made the point that the purpose of the Bill is nevertheless to recognise that each category should be accepted as a lawful marriage for the purposes of the law of England.

[Lord Mackay of Clashfern]

The noble Lord will be able to say which of my amendments in any way detracts from that. I understood him to say in his earlier submission that there was no difference in consequence. There is a very vital difference in consequence in this respect: a child born to a woman in a same-sex marriage is not a child of the marriage.

[Lord Pannick]

I respectfully object to the suggestion that a Bill with these purposes and valuable effects should distinguish between same-sex marriage and opposite-sex marriage and necessarily imply a division between them. That is what I object to.

[Lord Cormack]

My Lords, I added my name to the amendment because I felt that it was not churlish, derogatory or demeaning. In fact, it indicates that those of us who have profound misgivings about the Bill have done all that we can to acknowledge the validity of the arguments of those who are its champions. All the amendment does is repeat certain words that are in the Bill. The noble Lord, Lord Pannick, or any other noble Lord can talk until he is blue in the face without altering the fact that there is a difference between a same-sex marriage and a marriage between a man and a woman. All this amendment does is acknowledge that. It concedes the word “marriage”.

--- Later in debate ---

[Lord Anderson of Swansea]

Is the distinction not this: that there is no mainstream church, be it a Christian church or a Muslim group, in this country which believes in the principles of racist intolerance, whereas there are many mainstream people, Muslim and Christian, who do believe in traditional marriage? It is quite a simple distinction, which perhaps the noble Lord will consider.

[Lord Pannick]

My Lords, I—

[Baroness Butler-Sloss]

I had just about finished, but I had not actually sat down. I just want to say that I think this is a rather special, entirely transitional and narrow matter which I ask the House to treat with some degree of sympathy. It is rather different from the last vote that we had, which was on an important and fundamental point. There is nothing fundamental about this; it is a matter of helping a small minority.

[Lord Mackay of Clashfern]

My Lords, I put my name to this amendment too. I do not think that the fact that it is a public office is a distinction that is important. The important thing is that the law is changed after somebody has taken a job, and that law affects the conscientious view that that person has of the job. The nearest thing that came to my mind, in my own experience and connection with this, was when Sunday trading was introduced, again on a free vote. Those who were employed were given terms in relation to that. It seems to me that some such allowance is only fair, and fairness should apply in public offices as well as in private offices.

[Lord Pannick]

I apologise to the noble and learned Baroness. For my part, I cannot accept that a public official is entitled to protection against the requirement to perform his or her basic obligations in relation to the official duties which they are contracted to perform. As was pointed out in Committee, a judge or a magistrate who administers the law of the land cannot refuse to administer laws to which he or she objects. The law may well be clarified after that judge or magistrate has been appointed. No doubt some registrars have a conscientious objection to marrying divorced couples; I cannot see that a conscientious objection to same-sex marriage is any different.

Of course, as has been pointed out, the law does allow, in various contexts, for conscientious objections, including doctors and abortion and teachers and religious education. Sunday trading was mentioned by the noble and learned Lord, Lord Mackay of Clashfern. The difference, as I see it, is that the registrar is performing the function of the state, and the function of the state in this respect is to marry people. The law, not the registrar, determines who is eligible to marry. It is unfortunate if registrars take the view that they cannot continue to perform this role, but no one is asking them to approve of or bless same-sex marriage; all that they will be required to do is to perform the official function that they have contracted to undertake.

[Lord Elton]

Before the noble Lord sits down, I wonder if he could enlighten me; I am only an ignorant layman. Am I right or wrong in believing that judges can in fact pass a case to another judge if they have difficulties with it, such as we have been talking about?

[Lord Pannick]

I am not aware that judges have an ability to refuse to hear and determine cases on the basis that they disapprove of the particular law of the land that they are charged with the duty to enforce. They accept as part of the job that their job is to apply the law; the law is made by Parliament.

[Lord Deben]

I believe that on this occasion we should remember what we have just done. We have just asked those who disagree with the view that I and others have taken, to understand why it is that marriage has to be the same for both single-sex and opposite-sex couples. Those of us who have done that have now got to think carefully about opposing this amendment. I support this amendment because I think generosity ought to be at the heart of everything that we do. I do not understand why it is unreasonable to say that those people, who took on a job with particular rules and very clear circumstances, should now be unable to carry through that job in the context of wider views and beliefs. It seems to me a very small thing indeed, but it is crucial to say this about the society we live in.

I remember the disgraceful behaviour in a previous Bill because of which many children have not had the opportunity of being adopted because we did not allow those for whom this was a matter of belief to continue to run adoption agencies unless they were prepared to offer for adoption children from same-sex marriages. As all those agencies always passed people on to those adoption agencies that did do that, there was no reason to do it, except that sometimes we mistake toleration for agreement. In other words, what we mean by toleration is that we should tolerate those things with which we agree. I think toleration is about being prepared to tolerate those things with which we do not agree.

I cannot see the comparison between the judge and the registrar. The job of the judge is consistently and continuously to interpret the law. He or she knows from the moment when they accept being a judge that that is what their job will be. They know that in future there may well be laws with which they do not agree, so it is perfectly proper to insist that they should use their technical ability to impose sentences for things which perhaps they feel ought not to be crimes or, the other way, to be less strict on things which they think ought to have been much better assessed by Parliament. But that is not true of registrars who are now registrars. There must be many who never thought that this change would take place. It has been a remarkable change in human society. It is one I wholly approve of, but I cannot pretend that it has not been very rapid.

Therefore, I ask this House to accept this in the same spirit that we who have sought to get this Bill through have asked others to accept something that is so different from the way in which they have previously thought. I hope that we will be magnanimous and generous enough to say that this is, after all, something that could properly be done, because it will not be for ever; it is merely referring to those people who are now in place. I would have much more difficulty were it not doing that. It seems to me that we ought to be a society capable of including this because, if we are not, we give to those who do not want the changes here every reason to believe that we have put intolerance in the place of a liberal approach.

I hold it to be one of the great achievements that we have reached this way of looking at our fellow citizens. We ought also to think of those who through no fault or choice of their own were unable to imagine that they would now be asked to do this. After all, it is a terribly simple matter. We are just making sure that, when such a thing arises in a registrar’s office, Mrs Jones or Mr Smith is not asked to perform that particular ceremony. If this House cannot see that that is the same spirit as the spirit that puts this Bill through, we must be much mistaken.

--- Later in debate ---

[Lord Cormack]

My Lords, I will not detain the House long. I do not disagree with what the noble Lord, Lord Dear, said, but I seek to sharpen up his amendment for two reasons. First, I have been approached by many people during the passage of the Bill through your Lordships’ House who believe very firmly that marriage is between a man and a woman and wish to see that recognised at all appropriate points, but have themselves not been able necessarily to sustain marriage for life.

It is a fact of life—the noble Lord, Lord Dear, briefly alluded to it—that many marriages do not stay the course. There are many in your Lordships’ House who have been married more than once. That does not in any sense weaken or invalidate the marriage, or make those noble Lords who have had more than one marriage believe less in marriage as an institution. But we live in a very different world from that of 1866 cited by the noble Lord, Lord Dear. Even within the clergy, I have many good friends, some highly placed within the Church of England, who have had a marriage that has come to grief. Some have remarried and some have not. In that spirit of tolerance, understanding and generosity, to quote my noble friend Lord Deben in a previous debate, it would be more inclusive just to omit those words. That does not in any sense weaken the thrust of the amendment of the noble Lord, Lord Dear; it merely brings it up to date and recognises the world in which we live.

My second amendment is slightly more playful in that I would take away the words “in a democratic society” because this belief is worthy of respect in all societies, democratic or not. We recognise that. It is certainly not an amendment to an amendment that I would press. However, I must say to your Lordships’ House that those of us who believe in traditional marriage but are not in any way opposed to equality—one must repeat that, as one has many times during these debates—feel that including something along these lines in the Bill could not do any harm and could be of some reassurance to many people outside this House. They are the sort of people referred to by the noble Lord, Lord Dear, and by the noble Lord, Lord Phillips of Sudbury, in what I thought was a very moving speech in an earlier debate this afternoon. I beg to move the amendment to the amendment.

[Lord Pannick]

My Lords, nothing in the Bill prevents the noble Lords, Lord Dear and Lord Cormack, believing and expressing a belief in so-called traditional marriage. Contrary to the speech of the noble Lord, Lord Dear, there is nothing in the Bill that “coerces” people to “jettison”—the noble Lord’s words—their beliefs in any of these respects. This has repeatedly been explained by noble Lords and to noble Lords during our debates on the Bill. If, as the noble Lord, Lord Dear, suggests, millions of decent people have concerns, they are completely unfounded and it does no service to them whatever to give credence to such basic misunderstandings.