Marriage (Same Sex Couples) Bill

Lord Wallace of Tankerness Excerpts

Monday 8th July 2013 Lords Chamber

9: Clause 2, page 2, line 10, after “compelled” insert “by any means (including by the enforcement of a contract or a statutory or other legal requirement)”

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

My Lords, I think it might help your Lordships’ House, and the progress of debate, if I do not say anything at this time on the other amendments, and respond to these in light of the debate that takes place. That will probably mean that I do not repeat myself.

Government Amendments 9 and 10 clarify the meaning of “compelled” in Clause 2, which provides important protections for religious organisations and their representatives from participating in religious solemnisation of marriages of same-sex couples. They have been tabled in response to concerns raised in your Lordships’ House and in the other place that the protection from compulsion set out in Clause 2 may be narrow because the meaning of compulsion is not clear. A number of noble Lords have raised that concern, not least the noble Baroness, Lady O’Loan, my noble friend Lady Berridge and the noble Lord, Lord Hylton.

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[Baroness Royall of Blaisdon]

My Lords, I will briefly also congratulate the Government. With their Amendments 9 and 10 they have clearly assuaged the majority of people’s fears. My noble friend Lord Brennan said that they comprehensively assuaged fears, which must be a good thing. The proposal from my noble friend about guidance sounds entirely correct, but I know from long experience that sometimes guidance takes rather longer to draft than we might like. However, discussions about the guidance, even if it is not fully drafted, might be a way forward in this particular little logjam. I am very happy to support the amendments.

[Lord Wallace of Tankerness]

My Lords, I thank noble Lords who have spoken and who have welcomed the Government’s amendments. I am pleased that the amendments have given the reassurances that the noble Baroness, Lady O’Loan, spoke about, as did my noble friend Lady Berridge, and the noble Lord, Lord Brennan. Certainly, that was our intention, because we were conscious of the concerns that have been raised. I noticed that on the basis of that my noble friend Lady Berridge did not speak to Amendments 15 to 17. I also thank my noble friend Lord Lester for welcoming the Government’s response to the legislative report on the Bill from the Joint Committee on Human Rights. I can assure him that it has been placed in the Library, but I believe that the response is also available in the Printed Paper Office. I am glad that he welcomes these amendments and believes that the legal structure is in place to give the reassurances that have been sought. We have said on many occasions and from all parts of your Lordships’ House, not least from this Dispatch Box, that the security and protection of religious freedom that we wish to give to religious institutions is very much an important part of the architecture of the Bill. I hope that these amendments help to give that reassurance and to reinforce that protection.

Amendments 18 and 19, which the noble Baroness, Lady O’Loan, spoke to and the noble and learned Baroness, Lady Butler-Sloss, referred to, were rehearsed in Committee and I readily recognise the noble Baroness’s wish to explore the same ground again today. The intention of the amendments appears to be to ensure that any religious organisation or individual is not penalised by a public authority simply because they have expressed the view that marriage should be only between a man and a woman, or because they have decided not to participate in a religious solemnisation of marriages of same-sex couples.

It is important to remind ourselves that Section 149 of the Equality Act 2010 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 people who hold and do not hold particular protected characteristics. It applies to the protected characteristic of religion or belief, not just to sexual orientation, and, as we have already made clear, the belief that marriage should be of one man with one woman is a protected belief. Let me also make it clear that the equality duty is a duty to think, not to act or to produce a particular outcome; it does not require any particular outcome. If, for example, a public authority withdrew its facilities from an organisation or treated an employee less favourably, simply because of the expression of a belief about the marriage of same-sex couples, it would be acting unlawfully, both in failing to apply the duty properly and potentially committing an act of unlawful discrimination under the Equality Act.

Members of your Lordships’ House may recall that when we debated this in Committee, I referred to the decision of the Judicial Committee of your Lordship’s House in the case of Wheeler v Leicester City Council in 1985. That was a case in which the council banned a rugby club from using its ground after some of its members attended a tour of South Africa. The council was using a predecessor of a public sector duty to justify its actions. In that case, the House of Lords held that the decision was irrational; it also found that the decision was procedurally unfair and that therefore there was an improper purpose, which resulted in the council’s decision being quashed. I believe that the same reasoning would apply here.

The noble Baroness, Lady O’Loan, asked me about something that I said during my opening, when I moved the amendment. I am happy to repeat it. 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. That includes, but is not limited to—this picks up the point made by the noble Lord, Lord Brennan, that the words in brackets in the amendment are not exhaustive—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.

Furthermore, if a public authority is prevented, as Amendments 18 and 19 suggest, from having any regard to an individual’s or an organisation’s beliefs about the marriage of same-sex couples, it would be unable to consider how its own decisions could potentially discriminate against or otherwise disadvantage people who do believe that marriage should only be between a man and a woman. In fact, therefore, it could have the absolute opposite effect from that which I am sure that the noble Baroness seeks to achieve. I believe that that would be an unintended and harmful consequence of the amendment as drafted.

It is our view that an amendment of this kind would be unhelpful and unnecessary and that, rather than amending the legislation, the best way is to ensure that the equality duty is properly understood in the way that it is applied. We will seek to improve the guidance on its use; although, in all honesty, I cannot say that that will be made available before Third Reading. We are currently discussing with the Equality and Human Rights Commission how best to take forward our commitment to review the relevant guidance so as to include clear and helpful guidance for employers and public bodies in the context of this Bill when it is enacted. We will take that work forward as quickly as possible as part of the implementation of the Bill if enacted, although no timetable has yet been agreed. I believe that that is a sensible way to move forward.

[Lord Brennan]

I am grateful to the Minister for giving way. In the absence of the detail of the guidance, can he give the House a general assurance that the government guidance will make it clear to those responsible for applying the Equality Act that to do so in a way that raises the concerns that we are dealing with would be to act irrationally?

[Lord Wallace of Tankerness]

My Lords, it is very dangerous to try to draft guidance on the hoof, as it were. I think that I have expressed, both today and in Committee stage, in response to the amendments tabled by the noble Baroness—and, indeed, in a very detailed letter that I sent to those who had taken part in a similar debate in Committee and which is in the Library—the points that the Government believe are important and which provide the necessary protections. As my noble friend, Lord Lester, said in Committee, there is always the possibility of someone acting in an idiotic way. What we seek to do with the guidance most fundamentally is to try to eliminate—or to reduce to an absolute minimum—the number of times that anyone would act in an idiotic way.

I have one further point. I think that the noble Baroness, Lady O’Loan, raised the issue of the judgment in the case of Hans-Christian Raabe. I will quote from the High Court decision of Mr Justice Stadlen in order to allay, again, concerns that the duty is being misused.

In paragraph 256 of the judgment, his Lordship said:

“As I have said, there is in my judgment nothing to suggest that if Dr Raabe had expressed his opposition to same sex marriage and set out any religious basis for that opposition, that would have been considered by the Defendant or Mr Brokenshire to be a reason for revoking his appointment. In fact he did not set out any religious basis for the views expressed in the 2005 Paper and there is no reason to suppose that the revocation of his appointment would inhibit or deter any person who opposes same sex marriage on religious grounds from publicly expressing such views for fear of being rejected for a similar appointment in the future. Mr de la Mare pointed out the most obviously offensive features of the Paper did not form part of any religious belief”.

Therefore, it is very clear from his Lordship’s judgment that the concern which has been expressed did not form any part of that decision. In those circumstances, I again commend the government amendments to the House and hope that the noble Baroness, Lady O’Loan, will not pursue her amendments.

[Baroness O'Loan]

My Lords, I want to say something about the nature of the debate on the Bill in the House today and on previous occasions, as it is has been very acrimonious.

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Moved by

[Lord Wallace of Tankerness]

10: Clause 2, page 2, line 13, after “compelled” insert “by any means (including by the enforcement of a contract or a statutory or other legal requirement)”

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Moved by

[Lord Wallace of Tankerness]

70: Clause 11, page 12, line 15, at end insert—
“(4A) For provision about limitations on the effects of subsections (1) and (2) and Schedule 3, see Part 7 of Schedule 4.”

[Lord Wallace of Tankerness]

My Lords, the amendment is a response to the concerns expressed by my noble and learned friend Lord Mackay of Clashfern that Clause 11 as drafted is potentially misleading and would benefit from further clarity. Clause 11(1) provides that marriage, in the law of England and Wales,

“has the same effect in relation to same sex couples as it has in relation to opposite sex couples”.

Under my noble and learned friend’s Amendment 33, which we debated in Committee, he argued that the clause will be clearer if it stated that the provision is subject to the later provisions—namely, the provisions in Schedules 3 and 4. Following the debate, my noble friend Lady Stowell and I considered carefully the points that my noble and learned friend made. They have been discussed with parliamentary counsel, and we have agreed that it would do no harm to provide a signpost to those provisions in Clause 11. That is what the amendment is intended to do, and I believe that it provides the clarity which my noble and learned friend sought. I hope that he is satisfied that we have sought to address his concerns, and I beg to move.

[Lord Mackay of Clashfern]

Yes, I certainly am. This is a correct elucidation of the situation and I am very grateful to the Government for accepting the point that something required to be done.