Marriage (Same Sex Couples) Bill

Lord Wallace of Tankerness Excerpts

Wednesday 19th June 2013 Lords Chamber

[Baroness Royall of Blaisdon]

I beg the noble Baroness’s pardon. It is interesting that both noble Baronesses, and the noble Lord, are members of the committee.

We are clear that Amendments 13 and 18 are unnecessary. We believe that they would add confusion to the law. As the noble Baroness said, the public sector equality duty is a duty to have “due regard”, not a duty to act. The due regard must balance discrimination on the grounds of sexual orientation equally with discrimination on the grounds of religious belief. It would not permit a public body, even with the intention of eliminating discrimination on grounds of sexual orientation, lawfully to treat a religious organisation less favourably on account of its beliefs about same-sex marriage. Furthermore, the authority would be in breach of the clear protections in the Bill that will permit religious organisations to remain outside the system of same-sex marriages.

As the noble Lord, Lord Lester, said, the Equality Act 2010 is a carefully crafted piece of legislation, thanks to many noble Lords present in the Chamber today. It established a balance between protection against discrimination on grounds of religion or belief and protection against discrimination on grounds of sexual orientation. To single out one belief—that marriage should be between a man and a woman—risks undermining the protection afforded to religion as a whole, with its entirety of beliefs and practices, because it sets up this one belief as requiring explicit protection. Therefore, Amendment 13—and Amendment 18, which seeks to achieve a similar effect—would prove unhelpful and unnecessary.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I will start by thanking the noble Baroness, Lady O’Loan, my noble friend Lady Berridge, and the noble Lords, Lord Singh and Lord Hylton, for bringing the amendments before your Lordships’ House in Committee. It has given us an opportunity for a very useful debate, which has been conducted in a very courteous fashion. It was clear that genuine concerns were being expressed. What is interesting is that there is no distinction anywhere in the debate between the objectives of what noble Lords wish to see. It is very clear that religious freedom, including the rights of religious organisations that do not wish to opt in, should be secured.

I will take the advice proffered by my noble friend Lord Lester and not reply to every point. However, it is important that I reply to some of them. My noble friend referred to Pepper v Hart, but we cannot get to that stage if we do not in fact say anything. I will also take up his suggestion, echoed by my noble friend Lord Deben, of putting in written form the points that were raised and my responses.

Amendment 13 seeks to ensure that no religious organisation or individual is penalised by a public authority simply because it has exercised its rights under the Bill to not offer or facilitate same-sex marriages, or because it has expressed the view that marriage should be only between a man and a woman. My noble friend Lady Berridge indicated that there was an anxiety that other religious denominations wished to have the same kind of safeguard and security as has been afforded to the Church of England and the Church in Wales. As I indicated to my noble friend Lord Cormack when he moved an amendment on Monday, there is a historic reason for the distinction for the Church of England and the Church in Wales: namely, the duty on priests in these churches to marry people in their parish. This duty is not incumbent on priests, ministers or imams in other religions and faiths.

The specific context of this amendment is Section 149 of the Equality Act 2010, which places a duty on public authorities to,

“have due regard to the need to … eliminate discrimination … advance equality of opportunity … and … foster good relations between persons who”,

hold or do not hold a particular protected characteristic.

It is absolutely right—I think that this has been echoed on all sides of your Lordships’ House—that religious organisations and individuals should be free to express their beliefs about same-sex marriage, and to make the decisions protected by this Bill about whether to conduct or participate in same-sex marriages, without fear of repercussion or penalty of any kind. I hope I can clarify for your Lordships that, as the law stands, a public authority would in fact be acting unlawfully if it attempted to rely on the public sector equality duty to treat a religious organisation adversely simply because that organisation did not wish to conduct same-sex marriages, as is explicitly allowed under this Bill.

A policy of penalising people or organisations which have religious or philosophical beliefs with which a public authority disagrees would in itself be discriminatory. One element of the duty is to have due regard to the need to eliminate unlawful discrimination. It is not meant to be itself an instrument to discriminate unlawfully. For a local authority, for example, to withdraw meeting facilities from a church because it decided not to offer same-sex marriage would be likely to be unlawful direct discrimination because of religion or belief. We believe that it would be subject to successful legal challenge, a point made by the noble Lord, Lord Pannick.

The noble Baroness, Lady O’Loan, commented that there is nothing in the Bill which states that it would be unlawful for a public authority to punish a religious organisation which had not opted in. The courts have considered the question of whether a local authority can use equality legislation to punish an organisation with views of which it disapproves. In the case of Wheeler v Leicester City Council, the council banned a rugby club from using its ground after some of its members attended a tour of South Africa. It used the then Race Relations Act to justify its decision. The case went to the House of Lords, which held that the decision was irrational and that it was an improper purpose, because the members of the rugby club were legally entitled to go on a tour, just as an organisation is entitled not to opt in. I believe that the reasoning in that case to have a clear read-over in this particular case. Similarly, a local authority could not have a policy of refusing to promote staff who have expressed a belief that marriage should only be between—

[Baroness Knight of Collingtree]

On that very point, why is it that registrars who from conscience, from their heart and beliefs, will not conduct this kind of marriage have been sacked?

[Lord Wallace of Tankerness]

My Lords, obviously they cannot yet have been sacked because of this legislation, because it is not yet an Act. As my noble friend may recall, we debated the position of registrars at some length on Monday evening. The explanation given then was that registrars perform a public function. As was pointed out by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, judges, who also exercise a public function, are not allowed to pick and choose which cases come before them. Similarly, a local authority could not have a policy of refusing to promote staff who have expressed a belief that marriage should only be between a man and a woman. This would be unlawful direct discrimination, and the equality duty requires public authorities to have due regard to the need to eliminate such discrimination. The equality duty cannot make lawful an otherwise unlawful or oppressive act.

My noble friend Lady Berridge quoted the impact assessment regarding the threat of litigation. It is of course not possible completely to rule out any possibility of somebody bringing legal proceedings. I think it was the noble Lord, Lord Alli, who pointed out—and as my noble friend Lord Lester quoted on Monday—some authorities do idiotic things. No legislation can provide for every eventuality. However, we believe that the Bill minimises this possibility as far as possible by making it absolutely explicit that those relying on Clause 2 are permitted to refuse to be involved in solemnising same-sex marriages. There would indeed be no cause of action. We believe that an application for strike-out could be made early in any proceedings, as there would be no reasonable prospect of success in such claims. The noble Baroness, Lady O’Loan, said that the inclusion of Clause 2(5) and (6) and the protection they provide undermine the protection which we believe is already in place with regard to Section 149 of the Equality Act 2010.

The amendments to the Equality Act 2010 in Clause 2 provide that it is not unlawful discrimination to refuse to carry out acts specified in Clause 2(2). These specific exceptions are provided to ensure that the Equality Act is not in conflict with the protection provided in Clause 2, so that the law is clear and consistent. This aspect of the Equality Act is the only area of legislation which requires this explicit treatment, as otherwise it would conflict with Clause 2.

We should also remember, as the noble Lord, Lord Pannick, indicated, that the equality duty is a duty only to have regard. It is not in itself a duty to act, but rather a duty to think. It does not require that particular action is taken or that any specific objective or outcome is achieved. As the noble Lord said, “having regard” also means that we have to have regard to primary legislation, such as what would be in this Act if the Bill is enacted. I hear what my noble friend Lady Knight says about concerns that sometimes guarantees do not always seem to follow through many years later. However, what we are dealing with here—I think that the noble Lord, Lord Pannick, made this point—is a fundamental part of the architecture of this legislation: namely, that there should be religious freedom not to opt in. Therefore, it would be unthinkable for a court not to have regard to a fundamental piece of the legislation we are passing. I certainly hear what the noble Baroness—

[Lord Lester of Herne Hill]

Does my noble and learned friend also agree that the Human Rights Act compels this legislation to be construed compatibly with religious freedom as defined in the European convention?

[Lord Wallace of Tankerness]

Indeed, my noble friend is right. Article 9 of the European Convention on Human Rights gives that right to freedom of religious belief and expression. The noble Baroness, Lady O’Loan, said that sometimes the courts are reluctant to second-guess public authorities. It is highly unlikely that the court would do something which is in direct contradiction of what Parliament has clearly expressed and intended not just in the Bill but in all the statements that have been made by Ministers and, indeed, by almost everyone who has participated in these debates.

It is also important to note—again, this point was made by my noble friend Lord Lester and picked up by my noble friend Lord Deben—that amendments can sometimes have unintended and adverse consequences. I know that is certainly not the intention of the noble Baroness who moved this amendment, but the equality duty applies to and protects equally various protected characteristics, including religion or belief so a public authority has to bear in mind the impact of its policies on people holding different religious or philosophical beliefs, such as the belief that marriage should be only between a man and a woman. If, as the amendment proposes, a public authority is prevented from having any regard to individuals’ or organisations’ beliefs about same-sex marriage, it would be unable to consider how its own decisions could potentially discriminate against, or otherwise disadvantage, people who believe that marriage should be only between a man and a woman. That would remove an important protection for people who hold such a belief. I know that this is not what the noble Baroness intends but it illustrates the fact that when you try to solve one problem you can create another.

As I say, I recognise the concerns that some public bodies might be overzealous or mistaken in their exercise of the equality duty or misuse it to the detriment of those who do not agree with same-sex marriage. As I have indicated, no Government can give a copper-bottomed guarantee that some public authorities will not act irrationally. It is important that we ensure that public authorities understand their responsibilities under the Equality Act 2010 correctly, and how these relate to beliefs about marriage. With that in mind, the Equality and Human Rights Commission has undertaken to review its guidance for public authorities to ensure that the position is as clear as possible. As I have said, while I appreciate the intention behind this amendment, it is unnecessary and could have adverse consequences quite at odds with its intention.

I turn to Amendment 17. The concept of compulsion is readily understood in its natural meaning, and to subject anyone to any type of detriment or unfavourable treatment because they refuse to participate in any way in religious solemnization of same-sex marriages would clearly be understood as a violation of their legal right under this Bill not to participate. We are therefore confident that Clause 2 provides strong and effective protection to ensure that religious organisations and their representatives cannot be forced to participate in same-sex marriages against their belief. The Explanatory Notes to the Bill set out the position, as quoted by my noble friend Lady Berridge: the concept of compulsion is a broad one, which would include, but not be limited to, attempts to use criminal or civil law, contractual provisions or the imposition of any detriment to force a person to carry out the activities protected in Clause 2. The clause provides no specific remedy, but makes clear that no attempt at such compulsion would be upheld.

Less favourable treatment by a public authority of a person or organisation who does something which the Bill makes clear they are legally entitled to do would, in itself, clearly be unlawful and open to judicial review. The imposition of any penalties—civil or criminal —on a religious organisation or representative in order to compel them to opt in, or to participate in, religious solemnisation of same-sex marriages is clearly unlawful under the Bill.

Clause 2 will clearly prevent criminal or civil action being taken against any religious organisation or representatives merely for refusing to undertake acts protected under this clause. This includes, but is not limited to, disciplinary or other action taken in the employment context. In all circumstances a person who has suffered a detriment simply because they have not done one of the acts specified in Clause 2 will be able to rely on the protections in that clause to show that such conduct is unlawful and to obtain a remedy within the context of the particular claim.

--- Later in debate ---

[Lord Cormack]

Perhaps I could remind my noble and learned friend of my other suggestion: that detailed conversations should be offered to the noble Baroness, Lady O’Loan, my noble friend Lady Berridge and others on this point.

[Lord Wallace of Tankerness]

If my noble friend had allowed me to finish the sentence that I had started when he intervened, I would have said that, having received it, those who wish to pursue this matter further in discussion with myself and my noble friend Lady Stowell—

[Baroness Royall of Blaisdon]

My Lords, I do not wish to be consulted, but I suggest that the document or letter is put into the Library so that it is in the public domain. Otherwise it will not appear in Hansard.

[Lord Elton]

May I suggest that all those who have taken part in the debate should have a copy sent directly? Could my name be added to that list?

[Lord Wallace of Tankerness]

My noble friend has taken part in the debate and I usually make it a matter of practice to send a copy to everyone who has taken part. The noble Baroness, Lady Royall, makes a constructive suggestion. I will make sure that it is put in the Library and if, on the basis of the letter and follow-up, it is thought that a discussion would be necessary or wanted, I would certainly be happy to accommodate that. In the light of these comments and the reassurances that we have sought to give, I hope that the noble Baroness will feel able to withdraw her amendment.

[Baroness O'Loan]

My Lords, I thank noble Lords who took part in this debate. The noble Lords, Lord Lester and Lord Alli, and various other noble Lords have emphasised the need for clarity in legislation. The Bill, as drafted in the House of Commons, is already subject to amendment by the Government. It is clear that there are situations in which law which is drafted in the first instance by draftsmen requires clarification. That is why the House exists.

This particular piece of legislation falls at the interface of a number of different human rights—rights of religion and other rights. That is why it is so difficult for the House. The Bill seems to be based on the assumption that the act of marrying is separate from the act of registering a marriage, and the noble Baroness, Lady Berridge, demonstrated quite clearly that that is not the case. It is one single act. It is that which raises the whole spectre of public function. I raised this issue and specifically asked the Minister at Second Reading about the risk attached to the public function obligations of religious organisations that are in that hybrid position—those other than the Church of England and the Church in Wales. I did not get any answer to that question.

In the context of the Bill, we are looking not only at the acts of marriage but at the unintended consequences of the legislation before your Lordships’ House. They go much further than the act of conducting or permitting the conducting and so on of a marriage. They go to the whole remit of public authorities in funding, enabling and resourcing organisations such as youth clubs and schools, and in teachers’ ability to speak freely. We have a number of amendments still to come before the Committee in this context. My amendments would have dealt with some elements of these issues but there are other amendments that relate to them. I put it to the Committee that the issues are not quite as clear as some noble Lords would wish to state.

The fact is that there is a clear distinction in the legislation between the Church of England, the Church in Wales and other churches that solemnise marriage, which is that the Church of England and the Church in Wales are not in a position in which they will decide whether to opt in or out without further legislative process outwith this Parliament. That is what makes the difference and it is why we have the quadruple lock for the Church of England, which is not a sufficient lock for other churches. That is why I have tabled these amendments.

I do not wish to be in any way contentious or to delay the House but I cannot help remembering that the Catholic adoption agencies that have now closed as a consequence of legislation were also argued for on the basis of religious freedom. That argument was lost and there is no religious freedom there in the provision of services. It is profoundly important that we ensure that we do not further create very difficult situations. I will therefore, for the moment, withdraw and not move my amendments but reserve the right, having heard what the Minister had to say, to come back to the House on Report. I beg leave to withdraw the amendment.