Marriage (Same Sex Couples) Bill

Lord Stoddart of Swindon Excerpts

Monday 24th June 2013 Lords Chamber

[Lord Cormack]

My Lords, on these issues I do not often find myself more in sympathy with my noble friend Lord Fowler than with the noble Lord, Lord Dear—a man I admire very much. However, I am bound to say that I strongly agree with my noble friend Lord Fowler that all major legislation should be subject to proper post-legislative scrutiny. That is the job of Parliament, and as he said, this House is particularly well suited to carrying out that task.

I could not support this amendment because the noble Lord, Lord Dear, puts before us a wholly unrealistic proposition. We should not appoint a Lord of Appeal to do this. The timescale is wrong and, frankly, although I share the noble Lord’s real concerns about this Bill, which I have made plain in various interventions on Second Reading and in Committee, if this change comes about—and like the noble Lord, Lord Dear, I think that it will—it is an irrevocable change to our society. I agree with what the right reverend Prelate, who has temporarily left the Chamber, said in his speech a few moments ago. This is a real change to our society

Whatever a Lord of Appeal might say, he or she will not put the clock back. What those of us who believe firmly, strongly and deeply in traditional marriage must do is to use every opportunity that we have, as we have repeatedly been assured that the Bill will allow, to state our beliefs calmly, clearly and unequivocally, while in no sense attacking those who will avail themselves of the opportunities that the Bill will give them. That is what we must do: be positive in our defence of traditional marriage between a man and a woman. Nothing that any Lord of Appeal can say or do will begin to rival that as a way to champion traditional values.

Although I join my noble friend Lord Fowler in saying to the noble Lord, Lord Dear, that an amendment that wrote into the Bill the need for post-legislative scrutiny would certainly have my support, it probably does not need to be written in. An assurance from my noble friend would go some way to meeting my concerns in that regard. I do not believe that the amendment offers any realistic way forward.

[Lord Stoddart of Swindon]

My Lords, like the noble Lord, Lord Anderson, I agree with the amendment in principle, and any defects can be rectified at a later stage. One reason why there should be a post-legislative review is that we did not have any pre-legislation. That is the great defect. In a Bill of this sort with such far-reaching consequences, there should have been pre-legislation so that all the possibilities could have been ironed out over quite a long period and then a Bill which had considered all the consequences could have been brought before Parliament. Indeed, perhaps there would have been time to put it to the people in the manifestos—or perhaps, this will be discussed later—by way of a referendum. That is one very good reason why we should have post-Bill scrutiny.

The other reason is that the Bill, although it is short, is so complicated and has such far-reaching consequences—unintended consequences—that we ought to be able to have a post-legislative review of it to see whether it is working well and, indeed, whether it should be improved. For that reason, as I said at the beginning, I support the amendment moved by the noble Lord, Lord Dear.

[Baroness Cumberlege]

My Lords, I, too, support the noble Lord, Lord Dear, on the principle of the amendment. The noble Lord, Lord Stoddart, is absolutely right that in this amendment we can make up for past omissions—things that should have happened but have not. I am conscious that, at this moment, the Mental Capacity Act is subject to post-legislative scrutiny, which has been very successful. We have the principle already and I am sure that we have done it with other Acts in the past. The National Health Service, about which I know a bit, is simply an organ of the state, of Parliament, and it is endlessly under scrutiny. At the moment, the Care Quality Commission is going through the wringer, as we know, because people are so concerned that the regulator is not doing the job that people hoped it would.

Having listened to what the noble Lord, Lord Dear, had to say about the different cases, I find it interesting that throughout this Committee stage noble Lords—the noble Lord, Lord Lester, in particular—have assured us that there is no problem with this Bill because we have safeguards in both European and national legislation. Yet we hear of these cases all the time and this is before the Bill has been enacted. At least one of the safeguards that we could have is the principle laid down by the noble Lord, Lord Dear, that we should have some post-legislative scrutiny.

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[Lord Dobbs]

My Lords, I will attempt to be very brief, I promise that. We have a flexible and unwritten constitution, which means that proposing a referendum in these circumstances is unusual, irregular but not improper. However, in my view, it is wholly wrong. I endorse almost every word that the noble Lord, Lord Fowler, said in his objections to the amendment. I add that there is something strange. I do not understand why the amendment insists that Peers would be denied a vote in this referendum. It is restricted to those entitled to vote at parliamentary elections. However, that is not my fundamental objection to the amendment. The noble Baroness, Lady Thornton, is as outraged as I am about it.

At the heart of the Bill is that we will no longer discriminate against individuals because of what they were born. If the noble Lord, Lord Anderson, believes that that is revolutionary then so be it. I would not resile from that description. We would not be considering the amendment if we were changing the law to give women equal rights with men or black people equal rights with whites. Would we throw the entire principle of equal rights into doubt in those cases by insisting on a referendum? I think not. I suspect we would find such a suggestion appalling.

I asked myself a very simple question about the amendment, as with so many amendments that we have discussed. If we were to strip the word gay or same-sex from it and replace it with black, women or, indeed, Welsh, what would happen? There would be rivers of outrage flooding throughout the country. That is why I believe the amendment to be entirely misconstrued. To discriminate against people for the way that they were born is wrong. In my view, it is indefensible. No amount of referendering could ever make that right.

[Lord Stoddart of Swindon]

I support the amendment moved by the noble Lord, Lord Anderson. Together with him, I suggested this solution at Second Reading. The fact is that this bit of legislation has undoubtedly split the country. All of us have had very abnormal postbags and e-mails in this context. Indeed, I have had the biggest postbag since I proposed, promoted and got through this House a Bill to ban same-sex wards. It is quite obviously something that the public think very strongly about. It can only really be tested through a referendum because it not only makes such a difference to an institution that has been around for some thousands of years but has constitutional implications. Those are some of the reasons why there should be a referendum.

The political parties have had their say and are virtually unanimous. The Cabinet has had its say; whether that was unanimous I do not know. The wider Government have had their say. The House of Commons, albeit with a so-called free vote, has had its say, and has made a decision. The House of Lords is having its say. The only people who are not having a say—because they have never been given the opportunity—are the wider public and the people who are going to be affected by the Bill. That is why I believe that there should be a referendum.

There is another reason: I am not satisfied by the way that the Bill has been gestated. The noble Lord, Lord Anderson, asked, “Why the speed? What do the Government want to go so fast for?”. As it so happens, I have a newspaper cutting here, from the Sunday Telegraph, of a very interesting article by Mr Christopher Booker. I am not going to read the whole article out, as it is a bit late for that, but I will read a part of it. He writes:

“As I recounted here on February 9, the drive to get same-sex marriage into law was masterminded from 2010 onwards by an alliance between Theresa May, the Conservative Home Secretary, Lynne Featherstone, the Lib Dem equalities minister, and gay pressure groups, led by one called Equal Love. They pushed the issue forward, not in Westminster, but through the Council of Europe, culminating in March last year with a day-long ‘secret conference’ chaired by Miss Featherstone in Strasbourg. With the public excluded for the first time in the Council’s history, it was here that—with the active support of Sir Nicolas Bratza, the British president of the European Court of Human Rights (ECHR)—a deadline was set for their planned coup of June 2013. If, by this date, ‘several countries’ had managed to put gay marriage into law, Sir Nicolas pledged that his court would then declare same-sex marriage to be a Europe-wide human right”.

It seems to me that that was the gestation, or part of it, of this particular Bill. It almost sounds like a conspiracy, but I do not like using that word. Nevertheless, that is the article by Mr Christopher Booker, or part of it. I think it is good for this House to have heard it, because it gives the Government the opportunity to say whether Mr Booker’s article and his findings are correct. I therefore hope that that will help the noble Lord, Lord Anderson and of course, as I have already said, I will be delighted to support his amendment.

[Lord Aberdare]

My Lords, I hope that the House will forgive me for making a brief intervention at this stage. I am not convinced that this Bill is significantly more revolutionary than, for example, the introduction of civil partnerships. I believe it is a logical next step to take. Indeed, I agree with the noble Baroness, Lady Royall, that in 10 years’ time it may well be widely, if not universally, accepted as such. I also believe that it will ultimately have a positive impact on society and social cohesion. It will make the status of marriage, which I see as a vital building block of society, available to same-sex couples and parents, and remove any possibility of their being treated in a discriminatory way by comparison with opposite-sex married couples.

A number of noble Lords have spoken of the lack of an electoral mandate, but the Bill enjoys support across all parties. As the noble Lord, Lord Fowler, reminded us, it received a substantial majority in a free vote in the other place, and another large majority at Second Reading in this House. Whatever the process hitherto, the Bill is now receiving detailed scrutiny in your Lordships’ House, as indeed it should. I do not believe a referendum would be appropriate, or indeed that its cost would be justifiable. I welcome the Government’s initiative in introducing and pressing forward with this Bill, and I believe that the time is right.

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Moved by

[Lord Stoddart of Swindon]

48A: Before Clause 15, insert the following new Clause—
“The European Convention on Human Rights
In the event that the provisions of this Act are found by the European Court of Human Rights to be incompatible with the Convention for the Protection of Human Rights and Fundamental Freedoms, the Secretary of State shall act to withdraw the United Kingdom’s signature to the Convention.”

[Lord Stoddart of Swindon]

My Lords, back to Europe, I am afraid, and the European Convention on Human Rights. In speaking to this amendment, I am grateful to the Public Bill Office for its assistance with the wording, in order to discuss this matter. It is, of course, a probing amendment and I shall not put it to a vote.

The amendment envisages the possibility of a future ruling from the European Court of Human Rights in Strasbourg that some part of the Bill is incompatible with the European Convention on Human Rights. I want to focus in particular on the possibility that it may rule that the opt-out provisions that protect religious groups from being forced to take part in same-sex weddings are a breach of the human rights of same-sex couples who want to get married.

Much has been said about the robustness of the Government’s legal mechanisms to protect places of worship that do not want to register same-sex weddings. Ministers, no doubt in good faith, have promised that their quad locks will prove watertight. Under their proposals, they say that no religious organisation or individual minister can be compelled to marry same-sex couples or to permit that to happen on their premises if they do not opt in.

The Government must recognise that there is an appetite to see churches compelled to opt in. When an Ipsos MORI survey asked whether religious organisations should be required to conduct same-sex weddings, 44% of 18 to 24 year-olds said yes, they should. Of course, that is not the view of the Government or the majority in this House, but we keep being told how important it is that we take into account the views of young people. That survey suggests that there would be a significant demand to test the limits of the quad locks, so any concern that those quad locks might have weaknesses must be properly addressed, in particular those relating to the European Convention on Human Rights.

Strasbourg has been consistent in saying that gay marriage is not a right found within the convention, a view upheld as recently as 2012, but there are features of the convention that, in relation to the Bill, cause great unease about the future. If Strasbourg were ever to find that there is a right to same-sex marriage, the protections provided by the Government’s quad locks would be completely undermined—or I believe they would. Article 12 of the convention holds that men and women of marriageable age have the right to marry and to found a family. That is the only article that explicitly refers to gender, showing that marriage is understood to be between a man and a woman. However, one of the convention’s most notable features, frequently reiterated in judgments, is that it can be interpreted according to what the court calls emerging consensus and common values in international law. It is said to be a living instrument governed not just by the wording of the convention agreed decades ago but by present-day standards. In other words, it changes its mind about what the words mean.

Three years ago, in the case of Schalk and Kopf v Austria, Strasbourg ruled against an Austrian same-sex couple who were arguing that the convention must be adapted to fit in line with apparently changing social views on same-sex marriage. At the time, the court was not persuaded that social attitudes had changed enough for same-sex marriage to be regarded as mandatory. It interpreted the right to marry in Article 12 as being limited to unions of persons of the opposite sex. It justified its ruling by reference to the fact that there is no European consensus in support of gay marriage.

However, the court left open the potential for future claims on the basis of Article 12. I quote from the ruling:

“Regard being had to Article 9 of the charter, therefore, the court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex. Consequently, it cannot be said that Article 12 is inapplicable to the applicants’ complaint. However, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the contracting state”.

So the current position of Strasbourg, and the current European climate, is that Article 12 does not impose an obligation to grant same-sex couples the right to marry. However, clearly that could change and, if it did, the whole legal landscape would change with it. In that new legal landscape, the so-called quad locks could look pretty obsolete, especially for the Church of England, which, as an emanation of the state, has a duty to marry anyone in the parish.

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[Baroness Royall of Blaisdon]

Briefly, my Lords, the noble Lord speaks of the need to protect religious freedom. I am sure that everybody in this Chamber absolutely agrees with and espouses that. However, knowing the noble Lord’s view of the European Convention on Human Rights and his view of the Bill, it seems that he may be a little torn, if I may put it like that. In a way, he is using the Bill as a vehicle to withdraw the UK’s signature to the convention. He does not like the Bill, as has become apparent—

[Lord Stoddart of Swindon]

As a matter of fact, I am not opposed to the European Convention and the European Court of Human Rights. After all, I am old enough to have been around when the convention was drafted and signed by this country. I supported it then and, indeed, as long as the court does its job and does not try to increase its influence and powers, I remain in favour of it.

[Baroness Royall of Blaisdon]

I beg the noble Lord’s pardon. My entire hypothesis seems to be wrong, so I will merely say that I do not believe that this amendment should be accepted because, in any event, we should not withdraw from the European Convention on Human Rights. However, it is an entirely unlikely happening because the Bill as it stands does not offend against any element of human rights, freedom of speech or freedom of religion.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord for his amendment, which gives us a further opportunity to set out yet again how we believe that the European Convention on Human Rights supports rather than threatens the religious protections in the Bill. The noble Lord indicated in response to the noble Baroness, Lady Royall, that he is not opposed in principle to the European Convention on Human Rights, but I know that he has expressed some concerns about the development of the jurisprudence of the court. I am not sure whether he took part in the debate last Thursday when the House had an opportunity, during a debate introduced by my noble friend Lord Lester, to consider these human rights issues.

The Government have made it clear why we do not believe that there would be a reduction in the protection available to religious organisations and individuals as a result of the Bill. I am happy to repeat those assurances. Indeed, I have sought to do so in the previous debate in replying to the noble Lord, Lord Singh of Wimbledon. The noble Baroness, Lady Royall, has said it again. There is unanimity in this House on the wish to secure the protection of religious organisations and individuals.

Article 9 of the European Convention on Human Rights guarantees the right to freedom of religion. Any attempt to compel religious organisations to solemnise marriages that they consider to be doctrinally impermissible would quite clearly be an interference with their right—and indeed the right of their members to religious freedom. I believe that the religious freedoms contained in this Bill reinforce that protection.

The noble Lord, Lord Stoddart, suggests that if Strasbourg finds that there is a right to same-sex marriage, religious organisations would be forced to conduct such ceremonies. We do not believe that to be the case. Under this Bill, we will be providing same-sex civil marriage ceremonies, but the protection of Article 9 would mean that a couple could not force a religious organisation to marry them according to its right purely because they want a religious ceremony.

It is also worth noting that after many years since the introduction of civil unions for same-sex couples in a number of countries that are members of the Council of Europe, including the United Kingdom, there has been no decision of the Strasbourg court holding that there is right to a civil union, in other words to any legal relationship at all for same-sex couples.

Clause 2 of this Bill provides clear protection for individuals and religious organisations who do not wish to conduct or participate in a religious marriage ceremony on the grounds that it is the marriage of a same-sex couple. The case law of the European Court of Human Rights is equally clear that the question of whether, and if so how, to allow same-sex marriage must be left to individual states to decide for themselves. I simply believe that it is inconceivable that the court would require a religious organisation to conduct same-sex marriages in breach of its own doctrines. We believe the position is clear—and indeed has been strongly supported by a number of our most respected legal minds. In his written submission to the Public Bill Committee in the other place, the noble Lord, Lord Pannick, said:

“For the European Court of Human Rights to compel a religious body or its adherents to conduct a religious marriage of a same sex couple would require a legal miracle much greater than the parting of the Red Sea for the Children of Israel to cross from Egypt. The Court unanimously decided in Schalk and Kopf v Austriain 2010”—

the noble Lord, Lord Stoddart, also referred to this case—

“that there is no right to same sex marriage under the European Convention on Human Rights. It is in the realms of legal fantasy to suggest that the Court would impose an obligation on a religious body to conduct such a ceremony, especially when civil marriage will be available in this country for a same sex couple and when Article 9 of the Convention protects religious beliefs and practices”.

Indeed, the noble Lord, Lord Pannick, followed that up and confirmed his position in the oral evidence which he gave to that committee.

I briefly note the practical effects of the amendment. It would be extraordinary for a Secretary of State to be required, as this amendment would envisage, to act unilaterally to withdraw the United Kingdom from the convention without further reference to Parliament—although I accept that the noble Lord said it was a probing amendment. Furthermore, to make such a decision contingent upon the outcome of a court case dealing with unknown and unspecified issues would be equally extraordinary, particularly if the successful challenge related to a technical matter which could be readily remedied by legislation passed in Parliament.

Before I conclude, I refer to the point made by the noble Lord, Lord Stoddart, in a previous amendment, when he read a newspaper article which suggested that there had been some secret conference involving my right honourable friend the Secretary of State, Theresa May, my honourable friend Lynne Featherstone and the Council of Europe. I understand that this secret conference was an event attended by 300 people, invited by the Government of the United Kingdom, when the United Kingdom held the presidency of the Council of Ministers. Nicolas Bratza, who was then president of the European Court of Human Rights, spoke for five minutes. I am informed that the text of his speech is on the court’s website. He made it clear that the court’s case law had left the issue of gay marriage to be decided by national authorities.

Not just in this debate but in a number of debates during Committee we have sought to give reassurances that the protections for individuals and religious organisations are very real. I would hope that having had the opportunity to have this debate, the noble Lord will withdraw his amendment.

[Lord Stoddart of Swindon]

My Lords, I am most obliged to the Minister for his reply—both to the assertions of Mr Booker and to my own amendment. In relation to his reply, of course I accept his assurances. The problem is that throughout my life—it has been quite a long one—I have seen government assurances come and government assurances go. The European Court of Human Rights now has powers, translated into British law, which are very wide indeed. Some of its decisions in private and other cases have not been very friendly towards the Government and this country, if I might say that. We really do not know what will happen once the Bill is passed.