Marriage (Same Sex Couples) Bill — Second Reading (2nd Day)
Baroness Noakes (Conservative)
My Lords, it is a privilege to start our second day of debate on this important Bill. Yesterday our debate was a wonderful demonstration of this House’s ability to tackle difficult issues with restraint and respect, and I hope that we may continue in that vein today.
There are three main reasons why I support the Bill. First, I support it because I am a firm believer in marriage. Enduring relationships between couples, based on love, respect and responsibility, are good for the people involved and, in turn, strong relationships are good for society. Couples who want to share their lives together do not have to get married, and the Bill will not change that, but many value the sustainability and stability that marriage offers. I believe that marriage is a great environment in which to raise children but, for all kinds of reasons, marriage today is not defined by children or even by the possibility of procreation. Marriage is a much bigger concept than that.
Being gay or lesbian is not a lifestyle choice but an essential fact about a small but significant minority. It is as natural for them to seek lifetime relationships with a person of the same sex as it is for most of us to share our lives with an opposite sex partner. As a happily married woman, I will gladly extend marriage to committed couples who happen to be of the same sex. I genuinely find it difficult to work out why other happily married people want to deny them the privilege of marriage, and I certainly reject the suggestion made yesterday that same sex couples should invent their own name in place of marriage.
My second reason is that same sex marriage has popular support. The House of Commons Library note on the Bill makes it clear that polls can be skewed by the questions asked, but the clear evidence from the various polls that have asked straightforward questions about same sex marriage is that there is a majority,
and an increasing one, in favour. The most important feature is that support is huge in the younger age groups, and only those over 65 show net opposition. I hope that noble Lords will reflect today that same sex marriage will have its greatest impact on age groups that are barely represented in your Lordships’ House.
Freedom is my third reason for supporting this Bill. We have to ask very serious questions about why the law should deny people the freedom to do things that they want to do. Of course, there are strong public policy grounds for stopping people from doing all sorts of things, but I struggle to see what public policy grounds should prevent same sex couples from being married. If we embrace the freedom to marry in the Bill, it will surely bring happiness to a minority. I have heard nothing in the debate thus far that points to clear and specific harm to other groups in society.
I could have seen a public policy reason for objecting to the Bill if it rode roughshod over the ability of the established religions to maintain their own concepts of marriage, but the quadruple lock arrangements in the Bill seem to me—and to the Church of England, if I read its announcement last month correctly—to provide robust protections for religious freedoms.
Marriage is a great institution that belongs to society as a whole, not to particular groups. Parliament is the right place to guard access to marriage. We have the privilege of a free vote and we must use it with wisdom, for the benefit of society, regardless of our personal preferences. If the noble Lord, Lord Dear, decides to divide the House, I hope that we will respect the clear decision of the other place on a free vote. We can then move on to the job that we are good at, as a revising Chamber, testing all the detailed concerns that have rightly been raised by noble Lords in this debate.
Lord Alli (Labour)
My Lords, gay men and women have waited for far too long to have the same rights as straight married couples—the right to say, “Not tonight dear, I have a headache”, or, “You don’t look fat in that dress”, the right to tell all those wonderful mother-in-law jokes, and even, in the case of the noble Baroness on the government Front Bench, the right to marry George Clooney.
Before I move to the substance of my speech, I want to pay tribute to two Prime Ministers. I start with my right honourable friend Tony Blair. It is his unstinting commitment to equality, taking us from the unequal age of consent through same sex couple adoptions, the repeal of Section 28 and civil partnerships, that has made it possible for us to be here today. I also want to pay tribute to the Prime Minister. Change requires personal courage and, on this issue, there can be no doubt that David Cameron has shown a huge amount of that. I also pay tribute to the others in the Conservative Party who have joined us on these and the Liberal Democrat Benches in our fight for equality. The vote in the other place was a source of real pride—to see so many MPs, and particularly so many Conservative MPs, add their voices to ours in a free vote—and I hope that we will see the same again today.
The Bill is not about the right of one group against the rights of another. It is about love. It is about who we love and about how we express that love between one another. Marriage is not a contract based on property. It does not belong to one group of people or one group of religious organisations. It is not a contract that is based on financial advantage or disadvantage. It is a contract of love and commitment.
Some of those who have opposed this Bill have spoken passionately on the basis of deeply held religious views. I am sincerely glad that the Government have listened to their concerns and put watertight protections into the Bill. However, the Bill is equally designed to allow those religious organisations that want to marry same sex couples to do so: the Quakers, the Liberal Jews, the Unitarian Church.
Many to whom I have spoken in the Church of England have argued that allowing same sex couples to marry would risk the breakdown of the Anglican communion—the African churches would pull away. Last week in Nigeria, a law was passed prohibiting gay marriage and banning gay organisations with a 14-year prison sentence for anyone who advocates gay marriage—that is, people like me making arguments like these. The church should not be opposing same-sex marriage because of the African churches; the church should be supporting it because of African churches.
I want them to show the same leadership that they have shown on issues such as tackling debt and poverty. That is a fight well worth fighting. If the most reverend Primate the Archbishop of Canterbury and others on the Benches Spiritual support civil partnerships, then I, like many gay people, wait with bated breath for the liturgy to allow civil partnerships to be blessed in churches. They have talked the talk; it is now time to walk the walk.
There are also those who say, “We don’t understand why you want marriage. Civil partnership is different but equal”. It is an understandable question. However, it is an emotional response. To find the answer, they need only to have listened to those powerful speeches of their noble friends on their own Benches: the noble Baroness, Lady Barker, and the noble Lords, Lord Black of Brentwood, Lord Smith of Finsbury and Lord Browne of Madingley, yesterday. Different, in this context, is not equal. Different is different and equal is equal.
There are also those who oppose the Bill because they just do not want change. They have by and large opposed every change in equality over the past 15 years. They are the people who campaigned for Section 28, and I heard echoes of it again last night as they spun the lie that teachers will be made to promote gay marriage. They are the people who campaigned against same sex couple adoptions, regardless of the interest of the child. They are the people who campaigned against civil partnership but find no problem with it now. For them, no argument will suffice.
That brings me neatly to the amendment of the noble Lord, Lord Dear. I am sure there are many like me who believe that this amendment is wrong in principle. It does not uphold the best traditions of this House in spirit or in the manner in which it has been managed. However, the noble Lord has put his amendment down, so vote we must. I hope that today
we will demonstrate to those who seek to wreck the Bill that they will fail. I ask noble Lords to vote for the Bill because everyone deserves the right to have their love recognised equally by the state and because religious organisations should have the right to marry same sex couples, but not the obligation to do so. I hope that noble Lords vote against the amendment because it is the right and decent thing to do.
Lord Carlile of Berriew (Liberal Democrat)
My Lords, in some very fine speeches yesterday we heard every legal, theological, ethical and procedural issue set out very cogently. I noted that in the very last speech at the end of yesterday’s proceedings my noble friend Lord Flight said:
“If there is one single point on which I think this Bill should not proceed, it is that the nation is absolutely divided”.—[Hansard, 3/6/13; col. 1046.]
Hearing that comment prompted me to remind myself at once that my noble friend Lord Flight really is the noted author of an irresistible page-turner entitled All You Need to Know About Exchange Rates. If in that context one always had to wait for consensus, we would surely be in a far worse position economically than we are now. I say to my noble friend and to others that Parliament has a duty to lead, as well as to follow.
The way in which I hope to enforce this debate is by evidence rather than by advocacy. Among the five challenging and always interesting daughters that my wife and I have between us, my oldest daughter is a 40 year-old respected academic with two fine children. She is engaged—to be married, they hope—to another professional woman with one child. Past relationships—including, in my daughter’s case, heterosexual relationships —have proved unsuccessful and unenduring for them both. Now, we have two articulate and clever women who at least have found constant love, and emotional and every fulfilment, in each other.
We as a family respect their wishes. Their wish is to be married and they will brook no other term for their intention. They believe and articulate that it is discriminatory and demeaning that their intended marriage should receive any less legal recognition than any other marriage in the country—indeed, in the world, as they would say. By their relationship, they have brought new stability and certainty for their children, all of whom want them to be married and wish to take a full part in their wedding. I agree with them when they ask what conceivable damage their marriage, if permitted, would do to any other marriage in the land. Is there any one of your married Lordships who would feel any less married if Anna and Joanna were permitted lawful wedlock?
Among the many objections that we have heard, we have heard a good deal about pressure on ministers of religion. That has been answered comprehensively, but quite apart from the answers that have already been given, including the quadruple lock, and the detailed answer on the law given by the noble Lord, Lord Pannick, and the noble Baroness, Lady Kennedy, do your Lordships really think that any gay couple would want to be married by a priest or other official of any kind who was opposed to single-sex marriage? Of course they would not.
Therefore, to opponents of the Bill, I suggest that this is far from the end of marriage as we know it. Indeed, it may be the reinvigoration of marriage in a way that we do not yet know. The Bill offers the prospect of strong new examples of marriage, such as my daughters, and an increase in family stability, which these additional marriages would bring.
Lord Birt (Crossbench)
My Lords, my upbringing was in the intense, enclosed environment of post-war Liverpool Catholicism. Until I went to university and until I was first exposed to the tentative calls for the decriminalisation of homosexuality, I had not the slightest idea what it was. I knew that Oscar Wilde had been imprisoned, but for what exactly was a mystery.
I was not alone. In the 1960s, on the first television programme that I ever produced, I worked with Kenny Everett—a supremely talented iconoclast, who was the programme’s main presenter. Kenny was only two weeks younger than me. He had lived on Merseyside but a mile away, although I had not known him, and he went to another Catholic school just down the road from mine.
In his teens, Kenny appreciated that he was different. He would tell me that he had experienced stirrings in the presence of handsome young men, but these feelings were unfathomable to him. It was not until later when he worked in London in his early 20s, and not until after he had indeed married, that he came finally to understand and slowly to embrace his true nature—the one with which he had been born. In the decades that followed I worked in broadcasting with many other people who were gay but who would not admit it. I recall vividly that in the 1980s a close and esteemed colleague came with tears in his eyes to tell me both that he was gay and that he was about to die of AIDS, which, tragically, he shortly did.
Even in the 1990s, friends and colleagues who were clearly gay were unwilling to acknowledge it, especially in public. Yet social and cultural attitudes have changed rapidly. One of the most profound and progressive changes I have witnessed in my lifetime is how many men and women are now unabashed about their homosexuality, and feel free to present their partners with pride and confidence. Openly gay couples are now commonplace in almost every section of society and almost every walk of life.
The introduction of civil partnerships was a vital step, allowing gay couples to enjoy the legal privileges afforded to heterosexual marriage. This Bill goes the whole hog and rightly allows gay couples who wish to do so to match opposite-sex couples, and make the powerful public statement of love and commitment that marriage proclaims.
On the question that so basically divides the two sides in this debate, I feel not a scintilla of hesitation or doubt. If gay couples want that option—that unequivocal equality with heterosexual partnerships—then they should have it. Of course same-sex marriage will not eliminate prejudice or discrimination, but it will certainly hasten the day when homosexuality is accepted as a wholly natural state.
Two parts of the Bill cause me sadness. Along with everybody else who has spoken, I accept the need for religious freedom. I accept it and I respect it. I recall the persecution of Catholics in this country. However, I do not have to admire the fruits of that freedom. The perspective of the other side of the argument is that the Bill entrenches and legitimises the discrimination that still exists in the established churches. The notion that a gay in a civil partnership may only be a bishop in the Anglican Church if he is celibate, for instance, I find both astonishing and repugnant. Yet over the past two days we have heard that there is already some diversity of opinion within the established church on the matter of gay marriage. I do not expect to see it in my lifetime, but the day will come when age-old discrimination within the churches against both women and gays—born of ancient attitudes, in different societies and in older times—will simply wither away. The inherent values of tolerance and respect, reflected in Christ’s essential teaching, will one day prevail.
My second sadness is that the Bill narrowly missed an opportunity to follow Canada, Australia, New Zealand and Ireland and allow the growing ethical but non-religious movement to which I proudly belong, the Humanists, to conduct legal marriage ceremonies. That is a regret and a missed opportunity. However, I recognise that this brave Bill brings us one historic step closer to a better world, and I wholeheartedly support it.
Lord Mackay of Clashfern (Conservative)
My Lords, I declare an interest as the honorary president of the Scottish Bible Society and as a member of various Christian groups. I thank my noble friend for the way in which he initiated this debate and the Bill team for its help in piloting me through the complexities of this legislation.
The issues in this debate are extremely important but also extremely sensitive. I intend to confine myself to analysis of certain aspects of the Bill as I understand it and, if I am wrong, I invite correction.
The principle of the Civil Partnership Act 2004 was to construct a legal relationship as closely as possible to the legal relationship of married couples, and that was successfully achieved. The principle of this Bill is to open the institution of marriage to same-sex couples. An institution is more than just a name: it is defined by its purposes and by the conditions under which it may be entered. The institution of marriage exists for the mutual support of the spouses and to provide a suitable environment for the natural procreation of children by the spouses and for their growth and development.
It was realised long ago that if spouses were too closely related there was a risk to their children from inbreeding and therefore the prohibited degrees of relationship were laid down under which it was not lawful to marry. The extent of the prohibition has varied over time but it has always included close relationship by blood. So important a purpose is the natural procreation of children in the institution of marriage that the prohibition applied even when the parties were well over the age of childbearing or unable to bear children for other reasons.
While the natural procreation of children may be a possibility for a man and a woman, it can never be for a same-sex couple. Therefore a union between them, however loving, cannot have this purpose. Therefore the union proposed for a same-sex couple must be different from marriage since it cannot have this purpose. Non-consummation is not a ground for declaring this union void. A marriage is voidable on the ground of non-consummation, and this implies that it will generally involve sexual intercourse between the parties. There is no such implication in the union proposed in this Bill. Sexual relations with a person of the same sex as the parties is not expressly mentioned as a ground of divorce here.
For all these reasons I conclude that the union open to same-sex couples in the Bill is not the institution of marriage but a new and different institution which deserves a name of its own.
Marriage has developed over the years. No previous development is anything like this. This is not a development; this is a new creation. The express purpose of the Bill is to open the institution of marriage to same-sex couples, including those in a platonic relationship. I am satisfied that the Government have done the best that can be done and that no amendment in Committee or on Report will achieve that purpose. Therefore, if the amendment of the noble Lord, Lord Dear, is pressed, I propose to vote for it.
I am here because the Writ requires my counsel. I know that our constitution allows the elected House, if it wishes, to prevail over my view and that of this House if that is its purpose.
Lord Aberdare (Crossbench)
My Lords, I already had doubts about what I would be able to add at this stage of the debate and they have not been at all allayed by the quality of the fine speeches we have already heard today, including a characteristically telling one from the noble and learned Lord, Lord Mackay of Clashfern. I shall just offer a few thoughts based on my personal experience of marriage.
Marriage matters immensely to me. My own marriage has been one of the most important and fulfilling aspects of my life, probably the most. It has brought me companionship, support, shared experience, enjoyment and many other benefits, including the pleasures of children and grandchildren, over more than 40 years. I do not suppose that there are many long-married couples who would say that their marriage had all been plain sailing, and I certainly would not make such a claim. But my wife and I made a commitment, to ourselves and to each other, in front of our assembled friends and family: a public expression of our desire and determination to make our marriage work for the long term. That commitment, both private and public, has given our relationship much greater strength to withstand the varied challenges that we have faced.
We in the UK have come a long way over the years in recognising and accepting those within our society whose preferences in love are for members of their own sex. Many of them form stable, long-term, deeply loving relationships, sometimes including children. So why should they too not enjoy the full benefits of
marriage, with the added commitment that it implies, with equal recognition of their status by the state and society and with that extra resilience in their relationship that my wife and I have enjoyed? I believe that they should, and that view has been reinforced by some of the powerful speeches that we have heard, such as those of the noble Baroness, Lady Barker, the noble Lords, Lord Black of Brentwood, Lord Smith of Finsbury, Lord Browne of Madingley and Lord Alli, and by some of the letters and e-mails that I have received. I would be proud to share my married status with same-sex couples with a similar commitment to stable and long-term unions.
Marriage is, after all, a human institution, in the sense that its nature and responsibilities and rights are defined by the state in statute. Those definitions, as we have heard, have been adapted over time as the needs and nature of the state have evolved. Of course there are also other definitions of marriage, notably those of different religious faiths. They have every right to their own views about what marriage means for them and their adherents. So I welcome the safeguards included in the Bill to ensure that no religious organisation or individual minister can be compelled to participate in a same-sex marriage ceremony. I was reassured by the speeches of the noble Baroness, Lady Kennedy, and the noble Lord, Lord Pannick, indicating that the “quadruple lock” will be robust, although it seems odd that we are being asked by the noble Lord, Lord Dear, to reject the Bill before this and other issues can be explored more thoroughly in Committee.
I also welcome Clause 8 of the Bill, which extends to the Church in Wales an equivalent right to that of other non-established churches and faiths, to make up its own mind on the question of same-sex marriages. I hope that the day may come before long when the Church in Wales decides that it is prepared to recognise such marriages.
Same-sex couples also have the option of civil partnerships, although it is surely anomalous for these to be available to them alone. If my wife and I had had that option as an alternative to marriage, I do not believe that we would have considered it for a moment, because a civil partnership simply does not bring with it those elements of public commitment and social recognition that are central to our view of marriage—what the noble Baroness, Lady Mallalieu, rather splendidly described as the superglue.
This debate has raised important issues that need more detailed review and scrutiny, exactly what this House is so good at, and why I believe that the Bill should now go forward into Committee. In principle, I strongly support the Bill, not just as an equality measure whose time is right, but because in my view it will strengthen and enhance the very institution of marriage by extending its availability to all couples who wish to commit themselves publicly to loving, supporting and caring for each other as long as they both shall live.
Lord Faulks (Conservative)
My Lords, this is a momentous piece of legislation, arguably the culmination of a development of the law that began with the Wolfenden report. Why is it so controversial?
The first reason is that many fear that there will be inadequate protection for religious organisations and individual ministers. There has been a plethora of legal opinions on this subject and I have read, I think, all of them. The main cause of legal alarm in this context is that the European Court of Human Rights, or even our courts interpreting the convention in accordance with the Human Rights Act, may penalise those who for religious reasons do not want to be involved in any way with same-sex marriage.
I do not share the enthusiasm of some noble Lords for the Strasbourg jurisprudence and have very considerable reservations about the Human Rights Act. One of my principal quarrels with the Strasbourg court is its repeated failure to afford individual states what is known as “the margin of appreciation”. Where Parliament has expressed a clear statutory intention or otherwise manifested its view in an unambiguous way, the European Court of Human Rights should be very slow indeed to interfere. However, despite such expressions of purpose—for example, on prisoner voting—Strasbourg has decided that our law is non-convention-compliant.
However, the court in Strasbourg has shown considerably more reluctance to interfere in areas of life where religious freedoms are involved. Article 9 of the convention guarantees the right to freedom of religion, and I agree with those distinguished lawyers who have advised on this point. The noble Lord, Lord Pannick, and the noble Baroness, Lady Kennedy, are very confident lawyers. They say that it is inconceivable that there should be a challenge. I am perhaps not as confident as they are—few lawyers are. However, the robustness of the challenge so far seems to be sound. The parliamentary draftsmen, by their so-called quadruple lock, seem to have skilfully ensured that the Bill is as Strasbourg-proof as it reasonably can be.
I have some residual anxiety because the convention is what is called in Strasbourg a “living instrument” and there is nothing to prevent the court taking a different view in the future, particularly if one has regard to the rather different approach that is adopted to precedent in Strasbourg compared with how our courts operate. However, no Government can legislate in complete certainty that a Bill will survive any legal challenge. It is almost certain that some litigation will be generated by these provisions. Of course, that is not desirable but it cannot be avoided where some who are genuinely alarmed at the change in the law and others who are merely mischievous may seek to use the courts. However, it seems most unlikely that these challenges will produce any success and they should peter out in due course. I do not agree with the scenario described by the noble Lord, Lord Davies of Stamford, of endless litigation costing millions of pounds. He did not identify the basis of such potential legal challenges.
As well as concerns about religious freedom, there is a substantial body of opinion which feels that this Bill undermines “traditional” marriage. This seems a highly respectable and understandable response to such a cultural change. But marriage has changed over the centuries and from generation to generation. I understand the anxieties of those who feel that it is being irrevocably altered, but surely my noble friend
Lord Jenkin is right that marriage will not be changed retrospectively or prospectively by this Bill. However, in our desire to embrace equality in this context, we must be careful that we do not create a new illiberalism. To describe those who oppose same-sex marriage as bigoted, even in the first draft of a speech, seems highly regrettable. Indeed, I salute the noble Lord, Lord Dear, for his tenacity and sincerity in opposing this Bill.
On the question of civil partnerships for opposite-sex couples, the Government have correctly changed their position to a consultation. I do not think that a party or a Prime Minister who brings forward this legislation can fairly be regarded as “obsessed” with gay marriage. In fact, one of the consequences that I envisage if this Bill becomes law is that the question of somebody’s sexual orientation will become less and less a matter of consequence or even—dare I say?—of interest.
Looking back at the debates that followed the Wolfenden report is a salutary experience. It was not my party that was responsible for the 1967 Act, and I am not altogether convinced—to put it mildly—that if it had been in power such legislation would have been passed. I am therefore particularly pleased that a Conservative-led Government are responsible for this landmark piece of legislation. I am not making a party-political point because I expect that the party opposite would have brought in similar legislation. But I ask the noble Baroness, Lady Thornton, in her winding-up speech, to confirm whether or not that would have been the case.
At a time when we as a Parliament are not highly regarded, we should be proud that there are young men and women—and not so young men and women—who will feel more and more that a society that benefits from their contributions in terms of both their talent and their taxes is now valuing them properly and no longer barring entry to what is to so many the central relationship of their life.
Lord Brennan (Labour)
My Lords, everything has been said on this subject already; or nearly everything. I am going to address the House on certain legal consequences of this legislation that I invite the House to consider very carefully. We have been fortunate in this debate to have heard remarkable and telling speeches about homosexual suffering in the past, and then liberation; about heterosexual culpability for persecution in the past, and then the sense of penitence. These are important sentiments. They describe the feelings of a civilised society, but they are not in themselves the foundations of law. This Bill may have a background about love, but we are here to make law.
I have three major concerns about this legislation. The first is the manner in which it has come to Parliament; the second is the complexity of the consequences of making same-sex marriages lawful; and the last is the “what next?” factor. First, how did we come to the position we are now in? You would think that legislation based on such controversy, such fundamental disagreement, each side respecting the views of the other, would have required and got extensive preparatory dialogue between government and public, between party and party, and between us in this House.
In particular, there should have been pre-legislative scrutiny. The more difficult the Bill, the more open the parliamentary process should be. But what has happened here? In 2004 we passed the Civil Partnership Act after seven days of debate in this House: five in Committee, Third Reading, and Report in between. The interests of lesbians and gays were addressed comprehensively. No one at that time, eight or nine years ago, suggested that there should be the kind of legislation that we have before us now. No one suggested then, in this House or the other place, that such legislation was necessary. Have matters changed in eight or nine years? If they have, then how, and why? What is the difference now? In 2010, my party passed major legislation, the Equality Act. In the spring of that year, Section 8 and ancillary provisions dealt with the protected interests of married couples and those in civil partnerships. No one suggested that we should introduce the present type of legislation. If not then, why now? On both of those occasions, the general picture presented to the public was “this far, and no further”.
We are a Parliament of the people. We are not a Parliament just for the people, paternalistically deciding what the law should be. We should do our best to represent the people’s wish and will as to what the law should be. I do not agree that the differential diagnosis of opinion polls is the basis for objective parliamentary assessment of what the public think. That comes from debate, electoral exposure and inquiry. The noble Lord, Lord Carlile of Berriew, says that Parliament should lead. Have a care, my Lords, when you are told that Parliament should lead. Parliament should serve, and lead in the service of the public. Here we are, with no election manifesto to support this change and a tide of history that began in the past 18 months that is described as so overwhelming that we have no choice but to accept it. Come now, let us be realistic. This deserves much more careful debate. “We are where we are”, say many, “let us get on with it and do what we can”. If the amendment of the noble Lord, Lord Dear, is not passed, we will face a Bill in Committee based on Clause 1: same-sex marriages are lawful. The rest of the Bill is consequential on that provision. If the Bill goes forward and someone calls a vote in Committee on whether Clause 1 stand part, are we to face the same criticism that that is frustrating the will of the Commons, that the Lords should get on with revision and not delay or even block it? I do not accept that. That is effectively preventing the House making a considered decision of its own on the Bill. That is not democratic. This is the other place, by the will of a Government without mandate to call for such change and to give a free vote to it, creating a new constitutional convention that prevents the House of which we are Members making a block. I do not accept that.
The second point is the complexity of consequences. Overnight and this morning, I have totted up well into double figures the numerous areas where amendments will be required to make this a coherent piece of legislative drafting. I have identified at least five fundamental differences between heterosexual marriage and homosexual marriage. We have to deal with these questions. They cannot be cast aside because we are concerned to satisfy the sentiment so eloquently expressed by so many. We are here to make law.
Lastly, there is the “what next?” factor. It is a simple argument to propose that here is a law that says that two people of the same sex can marry because of discrimination. Why cannot a third person demand the same right and want to join that union of two to make it a union of three? That is eminently simple to argue; it is based on discrimination; and I invite any subsequent speakers to explain, logically and rationally, why numerical limits overcome profound principles of discrimination, if that is what we are dealing with. Polygamy is not just on the same-sex side, it can be on the heterosexual side.
Next, there are the conscience clauses. I was reassured by the noble Lord, Lord Pannick, and the noble Baroness, Lady Kennedy—reassured, but not convinced. As the noble Lord, Lord Faulks, just pointed out, there are no guarantees in the law. I have learnt after many years in the profession, particularly as its chairman, that we are a profession where individually we repose a great deal of confidence in the value of our own opinions. We are trained so to argue. It would be naive to assume that the problems that have been raised by other barristers will not encounter serious disputation in our courts and in Strasbourg.
What lies ahead is the unknown. After 2004, 2010 and 2013, what will come next? We were warned that this House should not expose itself to the danger of being involved in a constitutional divide between this Chamber and the other Chamber. The risk of constitutional division is between Parliament and the people. That is what we should avoid. I invite your Lordships to remember your responsibilities as legislators. Sentiment is important; it is not determinative.
Lord Elis-Thomas (Crossbench)
My Lords, I agree with the last point that the noble Lord made. As for the rest of it, I understand the division between legislatures and the people in a rather different way. If I have one perspective, it is from First Great Western. As a commuter to this House from Cardiff Central, I have the opportunity to reflect, as I did last evening, as I did this morning and as I will do again tonight. I am still a working politician, elected to the National Assembly for Wales and representing part of a constituency that I also represented in the other place. Therefore, I have the dubious benefit of a dual mandate, although it seems to me that in this House a number of us have had that experience and a number of us have forgotten it or never had it. It seems to me that this House is in great danger of ignoring at its peril the realities of political and social change that is happening outside. That is what I want to address. I am not going to argue about the level of opinion polls, but I am going to argue about the significance of the size of the free vote and the majority in the House of Commons on this matter.
The second point which I am concerned about, as a former presiding officer in Cardiff, is that we are faced this evening with a device of a procedural Motion. Of course it is in order. This is a self-regulating House and we are very well advised by distinguished officials. I am not arguing with that. What I am saying is this: what is the logic of voting today to deny a Second Reading to a Bill, while at the same time continually defining ourselves as a revising Chamber? By what
logic can one revise a text of draft legislation, or anything else, by deleting it? It is like pushing the delete button before you have read the e-mail. That seems to me what this House is in danger of doing. It leaves no opportunity for proper scrutiny or amendment.
My noble friend Lord Aberdare has already referred to Clause 8. Clause 8 is very important to me. It is the devolution clause. It was brought to us from the Commons. It will enable the governing body of the Church in Wales—to which I was once nominated by the current Archbishop of Wales, and no doubt he regrets that; I no longer serve on that body—to resolve that the laws of England and Wales could be changed to allow for the marriage of same-sex couples according to the rites of the Church in Wales, were that body to agree.
This is a resolution for which I devoutly wish, along with my other noble friends on these Benches. If this Bill, including this clause, is to be derailed this evening, the opportunity for us Welsh Anglicans to determine our own rights, in a church disestablished since 1920, will be denied, and we will remain mere altar servers at the Bench of Bishops of the Church of England. If this happens, I can promise you that this issue will not go away. We will continue to campaign with Stonewall Cymru, gay Christians and others for the law of marriage to be devolved in Wales as it is in Scotland, and of course as it was in the golden age of medieval Welsh law under Cyfraith Hywel.
For all these reasons, I appeal to this House, and even to those of your Lordships who oppose the principle of this legislation, to allow us who want to debate it to debate the Bill further, because that debate will not go away until the equal relationship enjoyed by my son and my son-in-law can be free for everyone.
Lord Eden of Winton (Conservative)
My Lords, it seems a very long time ago, although it was only yesterday, that my noble friend Lady Stowell of Beeston introduced this Second Reading with her customary clarity, conviction and charm. In her concluding remarks, she acknowledged that same-sex marriage is new and different from what we have known up to now. She said:
“The Bill simply extends the opportunity”—
simply extends it—to marry to,
“all couples who … desire it for themselves”.—[ Official Report , 3/6/13; col. 942.]
The Bill therefore changes marriage as we have known it but to claim that this is a simple, de minimis matter is to ignore the inevitable consequences that will follow this change.
Perhaps it is now more clearly understood that marriage has a deep and profound meaning. From time immemorial, among people of all conditions, colours and creeds, marriage has been the solemn, public acknowledgement of the relationship and commitment between a man and a woman so as to legitimise the creation of any child arising from that union and to secure the cohesion and stability of the community in which they live. It is the recognition of that fact which has led the promoters of this Bill to include a variety of exceptions to accommodate the reality of any gay-couple partnership seeking marriage.
There can be no room for doubt that if this Bill becomes law, marriage as we have come to know it will be changed.
The noble Lord, Lord Alli, made what I acknowledge to have been a very forceful speech and I compliment him on it. I would like to be able to agree with it, if only for the sake of the harmony I wish to have with my many friends who are gay, but I cannot. He did, however, give extended publicity—he took a lot of trouble to do so and I am grateful to him for it—to the thoughtful and reasoned letter published by the Bishop of Salisbury. The bishop wrote:
“The possibility of ‘gay marriage’ does not detract from heterosexual marriage … Indeed the development of marriage for same sex couples is a very strong endorsement of the institution of marriage”.
Respectfully, and with great diffidence, I disagree. Same-sex marriage will detract from heterosexual marriage by signalling that marriage will no longer be about the joining of two people of opposite sexes in a commitment to a procreative institution.
The Roman Catholic Bishops’ Conference has sent out a publication in which it says:
“The fundamental problem with the Bill is that changing the legal understanding of marriage to accommodate same sex partnerships threatens subtly, but radically, to alter the meaning of marriage over time for everyone”.
As the noble and right reverend Lord, Lord Carey of Clifton, said yesterday in his powerful speech,
“should this Bill pass, marriage as we know it will be weakened and diminished”.—[ Official Report , 3/6/13; col. 1026.]
We should be warned by what has been happening in other countries which have already made this move. Sweden, a notably easy-going country in matters of this kind, has found that marriage counts for very little. I would like to be able to go all the way with those who say we should acknowledge that same-sex couples marrying would be the same as heterosexual couples marrying. I cannot, however, so I go some of the way with the view of the noble and right reverend Lord, Lord Harries of Pentregarth, who said that the Church of England should find a way of publicly affirming civil partnerships in a Christian context. I hope it might find a way of doing that.
I pause for a moment and acknowledge what noble Lords will recognise as an obvious biological fact: I am old. To some extent, though not entirely, nor to the degree which some of the Bill’s enthusiasts would have us subscribe, there is a generational issue here. It is very difficult to discern the attitude of the young. They are understandably preoccupied with the business of getting on with their own life and tackling the many problems they encounter on their way. On the whole, I detect a masterly indifference towards an issue such as this. However, I must be careful not to generalise. Today I received an interesting document, sent out by the Wilberforce Academy—an organisation I confess I had not heard of before—in which it describes itself as,
“a new generation of men and women of Christian conviction”.
It says that,
“a new generation is necessary to protect what we have and reclaim what has been lost and determine what the future should be”.
It sent out a briefing note on this Bill, which concludes:
“Passing this Bill does nothing to support families and the public good and should be rejected”.
My main reason for opposing this Bill and for being disquieted about its content is its likely impact on children. The values which will influence their own attitudes in life could be influenced by the Bill. Small children have a need for the warmth and love of their natural mother. Boys, as they struggle to find their way in an increasingly competitive and challenging world, need the guidance and sense of values given by their father. All children, of whatever age, benefit from the security, stability and discipline of a loving family home. Children experience many pressures in school and these could be made much worse if the sort of material I have seen being prepared by Stonewall for use in primary schools ever gains wider usage. It would cause confusion and distress.
We need to have answers about the legal position of teachers in schools with their own personal views, and about what can be taught in church schools, as referred to by the right reverend Prelate the Bishop of Exeter in his very profound speech yesterday. I can already foresee battalions of officialdom flexing their muscles at the prospect of fresh opportunities to pursue perceived breaches of political correctness. There is evidence that this is already taking place with a refusal of organisations to accept bookings because they have a pledged commitment to diversity.
I conclude by asking the same question that my noble friend Lord Flight asked at the end of his speech at the conclusion of yesterday’s debate. Where has all this come from? The Bill is being bounced on us in a most unseemly way. It has sent shock waves throughout the country, it is damaging, divisive and destructive, and it should have no place on the statute book of this kingdom.
Lord Jay of Ewelme (Crossbench)
My Lords, I will speak briefly but strongly in support of the Bill, and will make only three points. First, attitudes to social issues evolve, and society must evolve with them. I spent much of my working life in the Foreign Office. Two generations ago, women had to resign from the Foreign Office on marrying—today, that is unimaginable. I remember how a generation ago gay men and women, if discovered, had to resign from the Foreign Office—also unimaginable today. As Permanent Secretary at the Foreign Office some 10 years ago, I well remember attending a meeting open to all staff that was addressed by Ben Summerskill of Stonewall. He explained convincingly the benefits to us, and indeed to any organisation, of recognising diversity, whether gender, sexual or racial, thereby bringing out the best in individuals, institutions and our society.
Today it is entirely right and proper that we respect the right of those same-sex couples who wish to see their relationships regarded by society as marriage. I must say to the right reverend Prelates—and it is a rare privilege to be able to address so many at the same time—that I hope before long it will be possible for them to celebrate and to bless such unions themselves.
This leads me to my second point. I myself have been happily married for 38 years. Sadly, my wife and
I do not have children of our own, but we have nieces, nephews and godchildren who are happily married. I simply cannot see how those relationships are in any way diminished by recognising that loving relationships by same-sex partners should also be regarded as marriage. To share with others what we value ourselves is surely the sign of a civilised, tolerant and, yes, Christian society.
That brings me to my final point. In our society today, and in much of what we see happening elsewhere in the world, there is a growth of intolerance, divisiveness and conflict. The Bill before us goes in the other direction. It recognises the richness and diversity of human life, shows tolerance to others and reflects the evolution of our own society, reflected particularly in the views of the young, who are our future. It is a Bill whose time has surely come, and one that I am happy and proud to support.
Lord Cope of Berkeley (Conservative)
My Lords, we have criss-crossed the issues of principle over these two days, but I will not add to that element of the discussion. At this stage of this long debate, I want to stick to constitutional points. Various speeches, starting with the courageous speech of the noble Lord, Lord Dear, have referred to the constitutional position of the House of Lords. Doubt has been cast, by him and others, on the validity of the Commons’ decision. It is said that the Whips overdid it to such an extent that we should discount the Commons’ two-to-one support for the Bill, and should use our undoubted reserve power to refuse to discuss the Bill any further. That view is mistaken.
It exaggerates the Whips’ influence, particularly on a free vote on a matter of conscience, and I speak as a former government Whip in the Commons for eight years, during two Parliaments. It also discounts the constituency pressures on MPs. We have heard about the lack of commitment in the most recent manifestos, but it is not the previous election that focuses MPs’ minds on constituents’ views when deciding how to speak or vote; rather, it is the next election that they are looking at. That is why they pay careful attention to constituents’ views, late in a Parliament in particular, in politically uncertain times. There is no excuse for this appointed House to overrule the elected House and say that the Bill is so erroneous that we refuse to discuss it further.
Lord Waddington (Conservative)
Perhaps my noble friend will forgive me if I raise one point with him. Have there not been numerous occasions when this House, even when it was largely hereditary, rejected Bills that had come here from the House of Commons on Second Reading? I have a big memory of the War Crimes Bill that came here from the House of Commons having been passed there by an almighty majority, far greater that the majority given to this Bill in the House of Commons. Nobody in this place suggested that anyone would be behaving improperly if that Bill was rejected by this House. What has changed?
Lord Cope of Berkeley (Conservative)
I think that my noble friend exaggerates when he says that there have been numerous examples. There have been examples, of course, mainly
of Private Members’ Bills being defeated at Second Reading when they were being put forward by noble Lords in this House, but that is a different matter. I also draw my noble friend’s attention to the fact that Bills like the one to which he refers, the War Crimes Bill, have nevertheless become law without the House of Lords being able to contribute through a Committee stage to the detailed provisions of it. We have had numerous references in the debate to matters that require further discussion but by definition, if the Parliament Act is used, it is the Bill as it stands that becomes law in those cases.
Lord Elton (Conservative)
May I correct my noble friend? The Bill that is sent back from the House of Commons in its original form comes to this House in the next Session. It is then open to this House either to reject it again and it goes on the statute book as it is in its present state, or to take it through all its usual stages and for it be amended by this House in the normal way.
Lord Cope of Berkeley (Conservative)
I am aware of that. Nevertheless, it is entirely possible that it becomes law exactly in the position in which it now stands.
The question that underlies this is whether we or the House of Commons are the better judges of changing public attitudes on matters such as this. With our average age, I do not think that we are the better judges. As I have indicated, another theme of the debate is whether the safeguards for the churches, teachers and registrars are sufficient, and whether the Bill is properly drafted. That is for the House to consider in Committee. The Commons Committee stage has also been criticised, but that is not a reason to avoid a Committee stage here. It is a reason for having one, to consider the detailed provisions with care and the expertise that are available to this House. This revising Chamber should not block the Commons’ will so clearly expressed and refuse to consider what revisions may be desirable. I shall therefore vote against the amendment and for the Second Reading.
Lord Faulkner of Worcester (Labour)
My Lords, I congratulate the Minister on the way in which she introduced the Bill yesterday—a long time ago now. She did it with skill and great courage. I hope that she will have the opportunity to take the Bill through the House in Committee, and that later today the House will reject the amendment moved by the noble Lord, Lord Dear. I hope, too, that it will take careful account of the very wise words that we have just heard from the noble Lord, Lord Cope, about the consequences for this House of rejecting the Bill at Second Reading. I remind noble Lords that even the Hunting Bill, which had fewer supporters in the House than this Bill, was given a Second Reading and eventually failed in Committee. To deny this Bill a Second Reading would leave it open to the other place to reintroduce the Bill in exactly the form that it is in now, as the noble Lord, Lord Cope, said. That would be a dreadful mistake and would reflect very badly on this House.
I strongly support the Bill for two reasons. First, unlike some other speakers, I believe that it will strengthen marriage as an institution, not weaken it. Secondly, it
will demonstrate a commitment on behalf of Parliament as a whole to remove all remaining obstacles to treating gay and straight people in exactly the same way. I suspect that in five years’ time, or perhaps sooner, we will look back and wonder what on earth all the fuss was about. Our children and grandchildren rub their eyes in disbelief at how our generation still finds issues of sexuality so difficult to come to terms with.
I am not a member of the Church of England. I was brought up by parents who are both Nonconformists, and I would not presume to argue the finer points of Anglican theology with right reverend Prelates and other Members of your Lordships’ House who are steeped in that faith. However, it is worth drawing attention to the fact that there is more than one view about the Bill within the Anglican Communion. A number of noble Lords have drawn attention to the letter sent to my noble friend Lord Alli by the Bishop of Salisbury.
I will say a word about New Zealand; I think that only the noble Lord, Lord Birt, has mentioned it so far in the debate. The Marriage (Definition of Marriage) Amendment Bill was passed as recently as
“united in heart, body and soul … and in their union fulfil their love for each other”.
He said that they may also,
“provide the stability necessary for family life, so that children might be cared for lovingly and grow to full maturity”.
The evidence is that there are same-sex couples in long-term, committed relationships, and research shows that children may be cared for equally well by same-sex couples and by heterosexual ones. That point was made in a very powerful letter that we received from Dr Barnardo’s, which wrote to us about the Bill.
Certainly, nowhere in scripture is the concept of loving, committed, same-sex relationships envisaged. Equally, though, one cannot find a biblical text on the subject of nuclear bombs or genetic modification. One must look for the deeper biblical principles. I will quote Bishop Randerson again, who said:
“Such principles include love for God and neighbour. Such love encompasses the marriage relationship between a man and a woman, and may be found also in a same-sex context. The ethical criterion is to do with the quality of the relationship, not the orientation of the partners”.
Our current knowledge about sexual orientation has changed. Homosexuality is not a sin or an aberration, but is as natural for many in our society as heterosexuality is for others.
I conclude by quoting a few words from an e-mail I received last week from an American lady at the University of Minnesota, which has an exchange
agreement with our University of Worcester. I met this lady, called Linda, when her students were over here. She writes,
“We were recently granted equality in Minnesota and I honestly don’t have words to express the feelings of acceptance that the law had given me. To be treated just like everyone else is a joyous experience. My partner of twenty six years and I plan on marrying this summer. I humbly request that you vote to grant this right to all of the Lesbian and Gay citizens of the United Kingdom”.
That is certainly what I intend to do, and I hope that the House will have the opportunity to take this Bill forward.
Lord Vinson (Conservative)
My Lords, when the history of our times comes to be written, this debate will be a good example of the seismic shift in social customs that can happen over such a short period as a generation, albeit in this case accelerated by the European Convention on Human Rights.
Much has been said already, which I would not wish to repeat, but with gay marriage the coalition proposes to alter fundamentally the most important social structure ever known to mankind. The quest for fairness now moves on to demand uniformity. The ramifications of the Bill are endless. One can wholly sympathise with the homosexual wish for equivalence and fairness, but how can you make something equal that is inherently different? You cannot make something that is biologically different the same. It defies common sense. In practice, the redefinition of marriage will be one word with at least two meanings—one acceptable, and the other a muddle to others.
Many people say that this does not really matter, but equally many other people think that it does matter because it is confusing and, they believe, it weakens the whole nature of parenting and family, a point made to me time and again in the numerous letters that I have received. Not only will the word “marriage” be expected in future to cover numerous different sexual relations, but at the same time the terms “husband” and “wife” will lose their current meaning. They will become sexless words. We have already seen this used in this House; I refer to the marriage and civil partnerships debate of
All this is bound to have a destabilising and confusing effect on children and the existing concept of family. Marriage is not just a public expression of love between two people; it is also the joining together of two families through consanguinity or bloodline. By its nature, homosexual marriage can never do this. Consanguinity and procreation are the two deeply underlying structures that exist in marriage—the union between two families, two tribes, two dynasties, that are linked by their bloodline thereafter for mutual support and protection, to give security and succour to their members. Still today in India you will hear people say, “My grandchildren are my pension”.
When Beveridge introduced the welfare state, he foresaw that the national form of social security might well undermine the family. He was right. We increasingly
see the state taking over family care, looking after grandfathers and grandmothers in their dotage, rather than it being the duty of the offspring. As our nation’s ability to fund the welfare state comes increasingly into question and above all shows itself up as a hideously expensive substitute for our fractured western families, it is surely inappropriate at this time to weaken the nature of marriage and the family, which have always been the bedrock of society.
Every bit of modern research emphasises that children with stable family backgrounds are naturally advantaged. This should be encouraged by the state in every possible way. Teachers report that they are having to cope with children who are confused and have no natural sense of right and wrong, and find this a growing problem. The familial framework must be supported. There will come a time when the state cannot cope, and that might come sooner than we think.
Fifty years ago, those who criticised Christ were persecuted; today, those who promote Christ are prosecuted. Whatever the outcome of today’s debate, we must look for stronger safeguards that implement the deeply held traditional views of those who cannot accept change. We need the sort of legal protection given to conscientious objectors in the last war, which was fought to allow the very freedoms of expression and thought that are under attack today.
The consequences of the Bill could be profoundly damaging. If you mix up values and edges are no longer defined, it is like mixing many paints together; the end result is a dull, amorphous and confusing moral mess. The wider concept of family and marriage must be protected and clearly defined. These timeless institutions, the structure of every civilisation to date, should be reinforced, and we must be very careful not to harm them. For that reason, I will vote for the amendment.
Viscount Colville of Culross (Crossbench)
My Lords, I have listened with great respect and interest to the passion and concerns that arise from the redefinition of marriage set out in this Bill. I have spent the past few months researching a television proposal on the history of various Christian institutions, and one of the main areas of my research was the institution of marriage. As has been mentioned by many noble Lords, including the noble Lord, Lord Faulkner of Worcester, it is clear that over the 2,000 year-long history of Christian marriage it has been open to continual redefinition both by the church and the state.
I have gone back to the early church, in which marriage was seen as a contract between a man and a woman. It was adorned by Christ’s presence and commended by St Paul. But for nearly 1,000 years after Christ, there was no such thing as a church wedding; marriage remained a civil ceremony, even for Christians. The church recognised only baptism and the Eucharist as sacraments, which were performed inside the church, while marriage was often performed at a slight distance from the church building. I found proof of this in an English medieval liturgical text, the Sarum Rite, which suggested that marriage should take place in the church porch, rather than in front of the altar, as happens in church weddings today.
The big change came in the 11th century, when reforms initiated by Pope Gregory VII meant that the church started to take control and redefine marriage in many different ways. Most importantly, it laid down that marriage was now a sacrament, an eternal union of a man and a woman divinely dispensed, one of seven sacraments. The rules of marriage were changed, laying down in canon law that it was not possible to marry within seven degrees of consanguinity and even prohibiting marrying godparents or their children without the church’s dispensation.
The church control of marriage broke down when the reformation swept through northern Europe in the 16th century. The protestant reformers once again saw marriage as a contract. In England, marriage was no longer regarded as a biblical sacrament. In the Church of England’s 25th article of religion, this status was reserved only for baptism and the Supper of the Lord. A marriage was administered by the parties to the marriage, with the church merely blessing it.
In Archbishop Cranmer’s prayer book of 1549, the first prayer book in English, marriage was ordained for the procreation and nurture of children, and as a remedy against sin—but very significantly, also, for the,
“mutual society, help and comfort”,
of man and wife. In other words, for the first time in Christian liturgy, marriage was defined as about the happiness of two individuals.
These principles of marriage have been continually redefined over the last two centuries by both church and State. The supposedly lifelong nature of marriage was redefined by the state in 1857, with the passing of the Matrimonial Causes Act. Marriage was no longer eternal; it could end in divorce. The church’s control of marriage was broken by establishing a central divorce court in London unattached to the church. At the time, this change in the nature of marriage outraged many Anglicans, and some prominent clergy left the Church of England in protest, but divorce is now a feature in Anglican life. It is not just the state which has redefined marriage; so has the church. The 1549 prayer book made it clear that the wife was unequal to her husband, but this part of the marriage contract was redefined in 1927, when the Church of England introduced an alternative marriage service. It removed the wife’s vow of obedience in the marriage service and proposed instead that she should now make the same vow as her husband, to honour and love her spouse. But the ruling stirred huge debate in the national assembly of the church, with opposition being led by Lord Hugh Cecil and Athelstan Riley. The latter declared that “There can be no equality in matters of sexual morality between men and women as it pleased God to create a profound inequality between men and women”. This was said just before women were given universal suffrage in 1928.
As has been mentioned by many noble Lords, the stipulation in the 1549 prayer book that marriage should be for the procreation and nurture of children was also redefined at the beginning of the last century by changes in the Church of England’s view on the use of contraception in marriage at a series of Lambeth
conferences. In the 1908 conference, they referred to contraception with repugnance as “an evil which jeopardises the purity of family life”. In 1920, the bishops at the conference still expressed their grave concern at the spread of,
“theories and practices hostile to the family”.
They made no attempt to lay down rules to meet every case. But by 1930, there was an entirely different mood. The Lambeth conference acknowledged that there would be occasions when,
“a clearly felt obligation to limit or avoid parenthood”,
“a morally sound reason for avoiding complete abstinence”,
would justify contraception in the light of Christian principles. Despite much principled opposition, the Church of England had agreed a direct connection between contraception and accepting that sex within marriage was not only for the purpose of procreation.
In 2009, the Quakers made their own great leap of redefinition set out in this Bill. They agreed, as many noble Lords have already mentioned, to support same-sex marriage at their meetings. It seems that marriage has undergone many redefinitions over its huge history. Many were fiercely opposed at the time, but they went ahead anyway.
Looking to the future, I picked up on the concern of my noble friend Lord Dear, that this redefinition will lead to an increase of homophobic attacks, as has been happening in France, so I looked at what has happened in other countries which have introduced a same-sex marriage Act. Sweden did so in May 2009 and, according to the Swedish National Council for Crime Prevention, which is an agency of the Swedish Ministry of Justice, in 2008—that is a year before the Act was passed—there were 1,046 attacks, but in 2010, there were 750, a decrease of 28%. And this in a country which is becoming less tolerant as the riots across its cities last month have shown.
Considering the many redefinitions of marriage that we have seen over its long history, I think that this new redefinition should be debated by this House. I therefore reject the amendment.
Lord Bates (Conservative)
My Lords, it is in the nature of taking part in debates in your Lordships’ House that the longer the debate goes on, the less one feels like taking part and the more one feels like taking notes. The past two days have been an example of that.
I want to focus on one aspect. I am concerned that politicians and religious communities have spent far too much time making the case for what we believe marriage is not, and insufficient time in making the case for what it is, what it could be and what it should be.
Marriage and the family are the basic building blocks of our society. It is more than the ultimate B&B, taxi service and ATM. At its best it is a school, a hospital, a welfare system, a justice system, a library, a bank, a care system, and a playground. It is the place where we learn our values and how to interact with each other. Marriage is irreplaceable and those who doubt its value to society need only look at the alternative when the state is forced to take children into care.
Those who have the privilege of growing up in a stable home of that nature have higher health and wealth outcomes than their unmarried counterparts.
Marriages fail—more than one-third fail before their 20th anniversary—but businesses fail too, yet we have not found a better way of creating wealth and opportunity, although we have tried. If the parameters for marriage are expanded through this legislation, will it lessen or devalue my own marriage? The answer can only be that it will not. That can only be a matter for my wife and I—how we choose to honour the vows we made and the love we expressed for each other and how we do that each and every day. I do not make my marriage “more” by claiming that other relationships are “less”.
However, there is another concern which is real, and it is this. Could this legislation be portrayed or interpreted by some as an attack on the institution of marriage itself? I received a total of 164 communications on this matter, including 116 letters and 48 e-mails. Of the letters, 107 were against and only eight were in favour of the Bill. Of the e-mails, 24 were against and 24 were for the Bill. It would be difficult to pick up a common theme running through the letters and communications that I received but, if I were to do so, it would probably be people writing to say, “Marriage is sacred and special, and we’re worried that this Bill may damage it in some way”. I acknowledge that that impression is plausible, given how this measure has been presented, and that is why bringing forward a measure that was not in the manifesto should have been accompanied by the bringing forward of measures that were—for example, recognising the importance of marriage in the tax and benefits systems. Investment in marriage probably has the best multiplier effect on the health and wealth of society, yet so often we take it for granted.
However, there is also a responsibility on religious organisations, which, rather than lamenting that the end is nigh for marriage, should be celebrating more what marriage does and acknowledging the work of organisations such as Relate, founded by a clergyman, Herbert Gray, 70 years ago, or Care for the Family, founded by Rob and Di Parsons 25 years ago, which provide practical help to people to keep going through tough times. Marriage will survive and adapt in the future, as it has in the past, not because of any legislation that says so but because it manifestly works better than all the other systems that have been tried.
With that, I come to my closing remarks, which relate to the nature of the amendment. I have thought very carefully about the way that the amendment was put forward and about its appropriateness. Some of the arguments here have focused on the need to give this legislation more consideration. We need to check that the balances and safeguards that have been presented are adequate, and what better place to do that than in your Lordships’ House? That therefore suggests that the Bill should be allowed to proceed to Committee and Report, where we would be able to revise it.
The second point that I want to mention was made, I think, by the noble Lord, Lord Dear, who referred to the perhaps supine nature of some of our colleagues in the other place when they considered this matter. It
was suggested that they were conscious of their own careers and were informally whipped into the Lobbies. I wish that, for example, the government Chief Whip in the other place were here to give evidence about how uncontrollable the government Benches, in particular, are there, even with a three-line Whip, never mind a free vote. Therefore, claiming that this was anything other than a sincerely intended and deliberate statement of intent and desire would, I think, be wrong.
My final reason for not supporting the amendment—I speak as someone who has served as a member of the Whips’ Office at both ends—is that I think it is a tactical mistake. Some people, including me, have some very serious reservations about the Bill as it currently stands, and we would like to see those tested by Members of this House, through amendments tabled and reasoned, before we give our consent to the Bill at Third Reading. However, we are being put in the position of having to decide on a constitutional issue—namely, whether we should try, at Second Reading, to close off a Bill which has come to us from the other place with a majority of 225 on a free vote. Personally, I should like to see the Bill proceed to Committee and Report, and then to be able to offer my view at Third Reading, rather than have that debate and your Lordships’ scrutiny pre-empted.
Baroness Turner of Camden (Labour)
My Lords, I support the Bill. I do not understand why there is such opposition. Most people now accept equality as a desirable aspect of society. Achieving this has been a long struggle, and unfortunately there is still a criminal element which is responsible for homophobic violence. Yet most people, including those who oppose the Bill, would strongly deny homophobia. They accept that we now have civil partnerships. Those of us who always supported gay rights believe that we have won the popular argument. Then why not accept the Government’s Bill? Why not have same-sex marriages, if that is what two people who are deeply committed to each other really want? Why such strong opposition? It is strong enough to have kept us arguing for most of yesterday and a great deal of today.
Those who are opposed to the Bill tend to talk about their values. Do they think that people like me have no values? Of course we do. We believe in fairness, in tolerance, in compassion and, yes, in kindness to others who may be different but whose way of life harms absolutely no one.
This afternoon we heard the argument that somehow this damages the institution of marriage. I do not understand that at all. I believe in marriage. I am now a widow, but I was happily married for more than 40 years before my husband sadly died. He was an artist, and like most artists believed in equality. We had friends whom we knew were gay, and that was a matter for them. We liked them and supported the campaign for gay rights. My husband would certainly have supported my agreement with the Government’s Bill.
Those in opposition to the Bill who talk about tradition should remember that marriage itself has evolved over the years. It has evolved in order to come
to terms with the greater equality of women. In the 19th century a married woman was virtually her husband’s possession, with no rights outside the marriage and not very many within it, and no right of inheritance. Remember the novels of Jane Austen. Marriage has changed in order to deal with the change in the status of women in society. I believe that we should also come to terms with the change in society in relation to homosexual relationships.
There have been some religious objections, but the text of the proposed legislation attempts to make provision for those on an individual basis. That has been acknowledged in the Church of England’s briefing. I am a secularist, but I believe strongly in the right of those who are religious to practise and preach their religion. What I do not agree with is any attempt to impose a particular way of thinking or acting on others who do not share a particular religious view, which I think some in opposition to the Bill are attempting to do. We shall not let that happen.
Not all clerics are opposed to the Bill. If such clerics wish to officiate in a same-sex marriage they should be able to do so. We heard yesterday from Quakers, Methodists, and those of other faiths who support the Bill and agree with that point of view.
I realise, of course, that there are countries where the views I have expressed are not acceptable. Usually in such countries homosexuals are brutally persecuted, and women are treated dreadfully badly as well. We should be proud of the fact that over the years previous generations have changed society in this country very much for the better. That is a tradition which we should all support. Therefore, the Bill, which is in line with this reforming tradition, should be accepted and the amendment of the noble Lord, Lord Dear, should be thoroughly defeated.
Lord Glenarthur (Conservative)
My Lords, in the 36 or so years that I have been in your Lordships’ House I have come across many Bills from all quarters of the House with which I have profoundly disagreed. But none has made me as uneasy— and I use that word deliberately—as this one. The Government and others say that it is popular, but a great many of the people I know—and much more widely, and also among those who are long-term supporters of the Government—despair that such a measure should be brought forward. That is because the Bill goes to the very heart of individuals’ personal and deeply held views about what marriage is. As the noble Baroness, Lady Kennedy of The Shaws, said yesterday, and my noble friend Lord Eden of Winton said just now, perhaps these views vary because of differences in age.
Marriage is a unique bond, as important in a non-religious connection as it is in a religious covenant. Despite the safeguards for the religious aspects of marriage contained within the Bill, one of the key views was expressed to me by the Scottish Episcopal Bishop of Aberdeen and Orkney, someone well versed in the overall nature of marriage, whether religious or otherwise, as I sought to organise my own thoughts about this debate. It is a view which I share. It is that
the heart of marriage features both the complementarity as well as the difference between men and women. It cannot do that between those of the same sex whether or not deeply religious views are held.
As others have expressed over the past two days, marriage is a vital, life-giving institution in our society. It has evolved in its current form through a long and complex process, as the noble Viscount, Lord Colville of Culross, explained. It is an institution which recognises the complementarity and the difference between the sexes. Marriage offers a framework of stability for this and, when properly lived, has been proven to do so.
If one considers its ingredients, perhaps early on comes the simple fact of companionship. All of us who have been married learn over time that to make a marriage sustainable it needs hard work, give and take, forgiveness and many other aspects. That is well known to those who have been married for many years. However, there are other types of companionship relationships: caring for an aged parent, siblings living together when they are older, coping with a sibling or friend with a disability, and so on. There are also those who are simply friends and perhaps share a property. These might all be examples of great dependency and, indeed, interdependence, so might there be a case for same-sex marriage to be argued on a basis of mutual companionship? Perhaps, but it is hardly conclusive as none of these other companion relationships requires a marriage bond for them to work beneficially.
What about children? Of course people of the same sex can nurture children, but they cannot create them. It is the stability and complementarity of different sexes in a marriage that forms the bedrock of a child’s early years.
Is it not the case that the current movement towards same-sex marriages comes not just from a given equality perspective but because of a mistaken desire for institutionalised recognition within a time honoured structure; namely, marriage? I would argue, as have others, that marriage and the special meaning that the word conveys is not the means by which this should happen. In a same-sex marriage there simply is not the complementarity and difference that there is between a man and a woman that forms part of its essential structure and character. Indeed, it is the word “marriage” within this Bill that creates the problem to some, including me. Whereas it is the foot-of-the-door argument for those who endorse its purpose, to many, unwittingly, it seems to uproot the significance of marriage for those who think differently.
It is true, as the Government have argued in introducing the Bill, that the means by which the marriage bond has been recognised over centuries has changed and has evolved into a quite sophisticated legal contract, to say nothing of the religious covenant it is now. If marriage stands for stability through complementarity and difference between the sexes, then same-sex marriage cannot become that which it seeks to be. Furthermore, it risks destabilising an institution that at its heart honours stability.
High expectations are therefore placed on those who enter into the marriage bond, and those within it should model or, at the very least, aspire and work towards the ideals of faithfulness and security which
society requires for its stable balance. I would not dream of suggesting that faithful and secure modelling of a relationship between people of the same sex in civil partnerships does anything other than add to the well-being of society. Indeed, it seems to me that civil partnerships provide all that is necessary for same-sex partnerships. The point I want to emphasise is that no relationship between those of the same sex can equal or match that complementarity and difference to which I referred earlier which is found in marriage. It cannot create another human being, and that is what differentiates, and always should do, civil partnership from marriage.
It seems to me, and to a great many others to whom I have spoken, provoked no doubt by this Bill and the huge amount of mail that it has generated, that there is a manifest and meaningful difference between marriage and all other forms of relationship; that marriage should remain as it is, a bond of faithfulness and security, however difficult to achieve, but always to aspire to, legally binding and perhaps religiously covenanted, between a man and a woman. A civil partnership can continue to enjoy the brand of complementarity that its own circumstances brings, one hopes to the well-being of society. But marriage it most certainly is not and it cannot be made so.
I therefore believe that this Bill is fundamentally wrong and is likely to do considerable damage to, or certainly put at risk, a much respected part of the way society works and achieve nothing for same-sex partners that cannot be achieved already. It turns an aspect of society’s norms and values on its head and changes the well understood and accepted meaning of the word marriage in perpetuity. I fear for the future of family life if this Bill is passed. I shall certainly vote for the amendment.
Viscount Clancarty (Crossbench)
My Lords, the great majority of young people are baffled by the fuss over same-sex marriage. In terms of change happening, they do not see a huge gulf between civil partnerships and marriage, even as we need to acknowledge that the distinction is important for gays and lesbians who wish to be married. The latest YouGov poll for the Sunday Times last month had under-40s in favour of same-sex marriage by more than three to one. Indeed, some young people that I have talked to believe that same-sex marriage already exists in this country, and are surprised that this is not yet the case. Young people’s opinion is well in advance of the legislation itself.
There are some in favour of the Bill who have argued that, with the conditions attached, it takes a modest and reasonable step. I do not entirely agree with that assessment because real progress in human rights, which is what the Bill is about—a point made yesterday by the noble Baroness, Lady Lister of Burtersett—always enters new territory and is always difficult for some, if not, in this case, for the majority of young people. The Bill will redefine marriage but, I believe, for the better.
The institution of marriage as it stands is the last redoubt of discrimination against gays and lesbians. It reminds me of the latter-day struggles that women have had, long after they won the right to vote, to gain
access to the pubs and clubs, among other places, from which, in many communities, they continued to be excluded—excluding them from defining aspects of the culture. Whatever people think of marriage, and, as we have heard in this debate, there are those who are critical of marriage as a formal institution, the reality is that marriage is a defining aspect of our culture. However, just as we are in the process of restructuring our social and work meeting places, so we also need to redefine marriage to make it a more inclusive institution.
“Marriage between a man and a woman is the fundamental building block of human society”.
Apart from the highly questionable assertion that marriage in any form is the fundamental building block, I would argue that it is not the constituent sexes that make it a building block but the public act of commitment by two individuals to each other, as some brilliant, heartfelt speeches have already made clear. We should recall Elizabeth I’s dictum not to be making “windows into men’s souls”, a politic plea for religious tolerance in her own time that, in ours, should become an acceptance that there are many valid reasons why two people wish to get married. No church, whatever its policy, should have a monopoly over this institution, and Quakers and other churches that wish to perform same-sex marriages should be allowed to do so. This will be the meaning of equality.
As the mayor of New York, Michael Bloomberg, said in the Guardian:
“Religious tolerance is a vital part of a democratic society. But religious rules should never dictate society’s laws”.
Furthermore, those who see marriage in a traditional sense are missing the much wider picture that unusual or even themed weddings that do not have religious content in any formal manner are already taking place. Heterosexual couples are introducing their own personal or spiritual stamps on their marriages. Therefore, it seems doubly ironic that a gay or lesbian who is a practising Christian and has been going to church on a weekly basis over a long period of time may have no claim over having a church marriage, whereas a non-believer has. That is a matter for the church, though, and the speeches that we have heard over the past two days from Christians give me hope that things will change. As someone who is married and therefore part of the institution of marriage, I would be embarrassed if, at the very least, the opportunity presented by this Bill was not taken to allow others who have been excluded to now be able to participate.
On civil partnerships, I agree with what Peter Tatchell has said about equality. The important thing is get the Bill on the statute book. I suspect that it will become clear quite quickly that heterosexual couples will be at a disadvantage over the choice of form of union that they can opt for and that further legislation will be needed to correct this if the correction is not included in the Bill, which would be more efficient. It is perhaps most immediately important to ensure that heterosexual and gay couples have the same, equal rights in terms of survivor benefits.
Looking around the House, I think it would be fair to say that most of our marital choices have already been made, whether that means having married once, twice or more, or not—yet. But the young people of this country who are still to make these choices are very clear about how they feel about same-sex marriage and what they want us to do. If this House were to vote the Bill down—I say “were” because I do not believe that that will happen—it would show itself to be seriously out of touch with the youth of the country. I support the Bill and will vote against the amendment of the noble Lord, Lord Dear.
Baroness Jenkin of Kennington (Conservative)
My Lords, at this stage of such a very fine debate, with outstanding contributions and powerful arguments on both sides, finding something new to say is quite a challenge.
We have heard from a number of noble Lords with strong and long-standing marriages, including my noble kinsman, whose diamond wedding the rest of the Jenkin family were happy to celebrate last year. As a Conservative, with a mere silver wedding approaching, I strongly believe in marriage as a force for good and I lament its decline in our society. We know that married couples are twice as likely to stay together as those who cohabit. Now we have people who want to get married, to make a lifetime commitment, yet some of us are not sure whether we should allow that to happen. Let us be clear: marriage and the lifelong commitment it involves are far from easy, and a successful marriage takes work. We do not do enough to help floundering marriages and struggling relationships, such as strengthening them and rewarding people for doing the right thing. We should. But stopping gay people marrying is not part of that.
At the heart of this Bill is a straightforward proposition. If a couple love each other, why should the state stop them getting married unless there is a good reason? In this day and age, being gay is not a good reason—if indeed it ever was. Of course, for some religions and faiths, this goes beyond their beliefs. As a result, the Bill specifically protects the rights of those who do not agree and does not compel anyone to do anything. All religious organisations are free to choose whether to opt in or out. The Bill simply allows people to get married—a clear and simple objective, delivered in a way that promotes and protects religious freedom.
We have heard quotes from the correspondence we have all received. I would like to read a few remarks from an e-mail from a Church of England vicar, well known to me, which seem to get to the heart of the matter. He said: “I have come to the firm conclusion that there is nothing to fear in gay marriage and indeed that it will be a positive good, not just for same-gender unions but for the institution of marriage generally. The effect will be to place centrally in marriage the idea of a stable, loving relationship, rather than anything else. Rather than this being a dramatic change, it is actually a radical reform (in the proper sense of ‘radical’) recalling the institution to the heart of its real meaning”. Those are wise words and ones that I hope in due course his church and mine will come to accept.
The other main argument against the legislation is that it would undermine marriage. However, I have not heard a convincing explanation of how it would undermine marriage. Yes, it is controversial, but decriminalising homosexuality was controversial, as was equalising the age of consent. It was also controversial when the Labour Government rightly legislated for civil partnerships. Once those things were done and the world did not end, public opinion changed, and that is what will happen when this legislation is passed.
I am part of that changing public opinion. I am by nature a small “c” conservative. I do not like change. There is a part of me which longs for the simpler, safer world of my childhood. I admire those like my noble friends Lord Fowler and Lady Noakes and my noble kinsman Lord Jenkin who have been totally consistent in their approach, but to be honest I am not sure whether I would have supported this Bill 15 or 20 years ago. I was sitting on the steps of the Throne during yesterday’s debate next to the noble Lord, Lord Filkin, when his 2004 speech was quoted. He turned to me and said, “I was wrong. I have changed my mind”. He is right. Times have changed, and I have changed, and one of the reasons why I now support the Bill is because I have children in their twenties who, like many other young people in their teens, twenties and thirties—whose voice incidentally has been lacking from the national debate over the past few months—just do not understand what on earth the fuss is about. As others have said, the polls all show younger people to be overwhelmingly in favour of the Bill. My own sons have said that they are proud of me, their father, and indeed their grand- father, for supporting the Bill, and would have been ashamed had we voted against it. We need to recognise that for conservatism to work, we have to accept that the world changes. If we do not, we become an anachronism.
Lord Collins of Highbury (Labour)
My Lords, since 1997 the situation for lesbian, gay and bisexual people in Britain has changed significantly. With the exception of civil marriage, we have full legal equality. Much of that progress was made, I am proud to say, under the previous Government. However, I am also proud that across all political parties there is now a consensus that respects the right of lesbian and gay people to celebrate their relationships. Britain can now rightly claim to be a beacon to the world for the equality of gay people. On this final step I am immensely proud of our Prime Minister, who is prepared to stand up and be counted. His personal commitment to equality in marriage is something that I celebrate.
My husband—I can think of no better term for him—and I have taken every opportunity given to us to celebrate our 16-year relationship on an equal footing in civic society. When parliamentary opposition, particularly in this House, delayed progress on civil partnerships, we went ahead with a ceremony in London City Hall under the auspices of the GLA. After the Bill was finally passed, Rafael and I legally tied the knot in Islington Town Hall. It was a very moving moment for us, our family and our friends, to be part
of a ceremony that finally gave legal recognition to the inherent worth of a loving relationship between two people of the same sex.
I am glad that, some years later, some who opposed the civil partnership legislation have spoken in the debate and appear to have had a change of heart. I hope that it is because they are persuaded by seeing how the law has helped to transform the lives of lesbian and gay people in this country, rather than an attempt to frustrate this move to full equality.
In the debate, reference has been made to the Bishop of Salisbury, who wrote that open recognition and public support have increased in civil partnerships those very qualities for which marriage itself is so highly regarded: increasing commitment to working on the relationship itself; contributing to the well-being of both families of origin; and acting as responsible and open members of society. He went on to say that:
“Indeed the development of marriage for same sex couples is a very strong endorsement of the institution of marriage”.
I go with that.
The quadruple locks contained in the Bill provide extraordinarily robust protection for those religious bodies, including the Church of England, unwilling or unable to conduct same-sex marriage, without being accused of being homophobic. It is also, of course, a matter of religious freedom that those religions and churches that want to conduct same-sex marriages should be able to do so.
With so much to be proud of, why do we need this legislation? For me and Rafael, it is for our relationship to be equal in the eyes of the law. There is no doubt that the changes that we have seen so far have helped to shape more progressive attitudes but, in my view, far from inciting intolerance, this measure will go a long way towards challenging it. As my noble friend Lady Royall highlighted yesterday, a real problem remains. There are 20,000 homophobic crimes annually and 800,000 people in five years have witnessed homophobic bullying at work. An even more dreadful statistic is that 96% of young LGBT people in secondary schools routinely hear homophobic language. Three in five who experience homophobic bullying say that teachers who witnessed it never intervened.
We have heard lots of references to letters and e-mails, some of which I was proud to receive. Unfortunately, some of those letters and e-mails to me also provided evidence, which I am sure your Lordships have seen, of continued prejudice towards me and my community. Being defined as immoral and evil is just for starters. Statements made by many public figures recently have compared same-sex relationships with child abuse, slavery and bestiality. I have heard those comments. There is no point in noble Lords shaking their heads, those opinions still resonate in our society. Comments like that fuel aggression and homophobic bullying and cause damage to the self-esteem not only of people such as me but of young people in particular.
By passing the Bill, Parliament is sending a clear message: that lesbian, gay, bisexual and transgender people are equal and deserve the same rights and respect as every other citizen.
The Duke of Montrose (Conservative)
My Lords, we have just had a telling and detailed explanation of the road that we have travelled in getting equality for lesbian, gay and gender-transmuted people. We are certainly sad to hear that there is so much persecution going on. The only thing that one can say is that legislation is now in place that should deter that.
I am very grateful for all the briefings that we have received from all around on different aspects of the Bill. Once again, this House has provided a forum for an incredibly varied and passionate debate. It has incorporated the wisdom and experience of people from a great range of backgrounds and philosophies, and the passion with which each of those is held can be judged by the number of Members who have wanted to speak.
The Government claim to have consulted adequately, but our postbags reveal a wide unease about the effect of the Bill. Unfortunately, the purpose of the Bill can be read only as removing traditional Christian connotation from the concept of marriage in the law of the country. Some might regard that as a marvellous gesture towards multiculturalism, but the response of the noble Lord, Lord Singh of Wimbledon, yesterday and those of other faiths does not support that. Considering the way in which the Christian religion has inspired and shaped our culture and constitution, I would regard the Bill as a major departure introducing many pitfalls, some of which were outlined by the noble Lord, Lord Dear.
I feel that the confusion starts at the outset in that neither the Bill nor the statute law of England or Scotland defines marriage. We have relied on common law and the criteria and practice of the churches. The noble Lord, Lord Pannick, has outlined the way in which many of the parameters have changed, but up to this time marriage has not required a legal definition because there has been an historical consensus about its meaning. This Bill is a proposal to do away with the historical consensus and introduce a new meaning. This was laid out more eloquently than I could in the speech yesterday of the right reverend Prelate the Bishop of Exeter. It has also been voiced to me as a concern by the Scottish Law Society. If we have to go down this road, a Bill introducing a new concept of marriage should state clearly what its definitions and requirements are for any and all of the parties.
For me, another difficulty lies in the determination that there can be no difference between a heterosexual union and a homosexual union in law and that, once legislated for in statute, locks can be put in place that can ensure that the law will be able to treat the two categories differently. Surely that must be a target for constant challenge and can be considered as viable only in the short term.
Like my noble friend Lord Waddington, I regard it as of some consequence that only nine years ago we went to great pains to pass a viable Civil Partnership Act and to ensure that those taking on a committed same-sex relationship should be able to benefit from the same civil recognition and tax arrangements as those in a conjugal union. He mentioned the official view of the then government spokesman that this
“civil partnerships are different”.
She went on to say:
“it is right that we now take the additional step of introducing equal marriage”.—[ Official Report , Commons, 5/2/13; col. 134.]
If that was so firmly ruled out nine years ago, what reliance can we put on politicians and legal interpretations taking the same view on the differentiations and locks that they are so sure about today? Even the triple locks, such as they are, seem to be targeted to protect only religious officials, organisations and buildings.
As my noble friend Lord Tebbit mentioned, one of the responses that we have received is from a part-time chaplain to a local police force in Strathclyde—not a post that would be protected by the proposed measures—who has already been dismissed because on his private blog he said he was in favour of traditional marriage. Have the Government considered what might be needed to protect religious individuals who merely want to exercise their own freedom of speech and freedom of religion by expressing their favour for one kind of marriage or another?
For these reasons, many who have spoken wish to ask the Government to think again, and to produce a Bill that more adequately addresses the needs of the country. If the noble Lord, Lord Dear, calls his Division, I will support him.
Baroness O'Loan (Crossbench)
My Lords, this has been a difficult and challenging debate—on occasions even an emotional one—for many of us as we have listened to all the speeches. To take a position that is not in support of this Bill is not to be homophobic, although some might accuse us of it. We have a duty to do all we can to further equal treatment, to challenge homophobic behaviour and to celebrate difference and diversity. This Bill is a very uncertain instrument, but one thing is clear: it will change the definition and understanding of marriage, converting it into two different institutions.
As has been said previously, it is not the outcome of a manifesto commitment, of a referendum, of a Green Paper, of a White Paper and of normal consultation. In the 126 letters in my postbag yesterday, 120 were against this Bill and six were for it. One thing that was articulated repeatedly in those letters—they were not standard form letters; people had sat down and thought this out—was that the Government had not gone through the normal processes in approaching this matter. They simply issued a consultation on how marriage could be opened up to same-sex couples.
As we come to the end of this debate, we need to remind ourselves why we have legislative provision for marriage at all and why the state intervenes in people’s sexual relations. Bertrand Russell said:
“But for children, there would be no need of any institution concerned with sex”.
Let us think a minute about English law, under which a valid marriage is one man one woman, is a lifelong commitment, has an exclusive sexual aspect and has a
presumption that the husband is the father of the wife’s child and that the partners will remain loyal to one another. Normally, marriage involves being open to bringing children into the world and provides a legal context within which stability, care and protection can be provided for them. Marriage has been protected in law for that reason and, as others have said, it provides the basis for our complex inheritance laws.
It is not just a matter of domestic law. Article 12 of the European convention protects the right of a man and woman to marry. Article 23 on the International Covenant on Civil and Political Rights recognises the family as,
“the natural and fundamental group unit of society … entitled to protection by society and the State”,
“The right of men and women of marriageable age to marry and to found a family”,
and implying, in principle, the possibility to procreate and live together. If Parliament enacts this Bill, the content must be clear and unequivocal. It must leave no uncertainties capable of resolution only through the courts, often at great expense and distress to those involved.
The Government stated in December that:
“At its heart, marriage is about two people who love each other making a formal commitment to each other”.
Under English law, marriage is rather more complex than this. What is proposed will result in two different types of union that will bear the same name: marriage. The first will involve traditional legal marriage between a man and a woman. The second, legal marriage between same-sex partners, will be significantly different from opposite-sex marriage. Non-consummation will not be a ground on which such a marriage can be declared void. There will be no presumption that a child born to the family is a child of the family, and sexual infidelity with another same-sex partner will not constitute adultery. The formal proposed legal relationships of married same-sex couples cannot therefore be construed as being identical to those of married opposite-sex couples. There will be different consequences, not only for the couple but for any child who may be born to such a relationship.
It is not unequal, unfair or discriminatory to treat those in different circumstances differently. European law gives state authorities a wide margin of appreciation in deciding where to strike the balance between convention rights. In 2012, the European Court stated that there is no discrimination in excluding same-sex couples from marriage.
I want to move on to a number of questions for the Minister. Can she advise whether a member of a same-sex marriage whose partner has a sexual relationship with a member of the opposite sex will be able to divorce that partner for adultery, which goes to the heart of the commitment to faithfulness, as is the case for those in opposite-sex marriages? Can she also advise why the two types of marriage proposed are treated differently in the Bill, something that surely might ultimately give rise to action in the courts? If a wife in a same-sex marriage does not have the advantage of a presumption—we understand why—that a child whom she bears is a child of the marriage, what protections will exist for that child in law?
If a same-sex marriage does not have to be consummated, surely a partner in an opposite-sex marriage who wishes to remain married to his or her partner despite the fact that the marriage has never been consummated would have the right to bring a challenge in the European Court against the Government for discrimination in not according to them the protections afforded to those in same-sex marriages. There might be significant financial implications for a party married to someone who declines to consummate the marriage but is in all other respects a model spouse.
Under English law, religious marriages conducted in accordance with the law are also civil marriages. There are not two kinds of marriage. Rather, marriage may be contracted either through a religious ceremony, without the requirement that exists in other European countries for a separate civil marriage, or a civil ceremony. A number of churches, including representatives of the Church of England, have articulated uncertainties about attempts at compulsion that may be brought to bear if the Bill is enacted. Might some churches, reluctant to face the uncertainties and costs inherent in the possibility of third-party action against the United Kingdom in the European courts, simply decide that they will no longer act as registrars of marriages, so that couples will have to have a civil wedding as well as a religious wedding to have a legally valid marriage? What assessments have been made of the potential costs of any consequential necessity to employ additional registrars of marriage? It has been argued that a religious marriage involves a civil element that incorporates the provision of a public function. Where a church has stated that it will not marry same-sex couples, could it therefore be argued in the European Court that the UK is in breach of the non-discrimination laws applicable here and in Europe?
There has been significant concern in many quarters about the effectiveness of the so-called quadruple lock. There are those who also object to the fact that there is no discretion for the Church of England to determine whether it wishes to marry same-sex couples. Questions also arise about what might happen where an institution determines that it will not conduct same-sex marriages but a minister of that institution decides that, in conscience, he wishes to do so. The fact that the minister has conducted the marriage in defiance of his institution’s determination might be a disciplinary matter for the institution, but will the marriage be valid for the couple concerned, and how will they know? Clause 2(2) allows individuals to refuse to conduct a same-sex marriage even though organisations have opted in. There is no corresponding protection, as has been said, for many others who provide services in the context of marriage.
The Government consulted on whether civil partnerships should be extended to opposite-sex couples. Of those who responded, 61% thought they should. It has been said that a requirement to declare a civil partnership is in effect a requirement to declare sexual orientation. Opening civil partnerships to opposite-sex couples would remove this automatic interpretation of sexual orientation. Will the Minister explain why the Government have decided to maintain this discriminatory situation and provide assurances that the European
Court will uphold the right of the state to retain gender inequality in civil partnerships when they have legislated for equal marriage?
Statutory guidance requires that children learn about the nature of marriage and its importance for family and the bringing up of children. In the widened definition of marriage provided for in this Bill, there would be no exception for conscientious or religious belief: rather, there will be a duty on a teacher to promote positively marriage as newly defined. A teacher could be disciplined for conveying a belief against same-sex marriage in a way that a pupil might regard as discriminatory.
Finally, marriage receives modest support from government in the form, for example, of assistance for marriage counselling. Excluding same-sex couples from marriage counselling would be discrimination on the grounds of sexual orientation. The exceptions under the Equality Act 2010 do not apply to an organisation whose purpose is to provide services to a wider public constituency. Such organisations could be unable to access ongoing funding and might have to close. There is significant difficulty in accessing marriage counselling across England and Wales, given the long waiting lists. How do the Government propose to protect the ongoing provision of such services?
I was much impressed by the words of the most reverend Primate the Archbishop of Canterbury when he suggested yesterday that the better way would be to create a new and valued institution alongside marriage to strengthen us all. We have a duty to legislate in a way that gives certainty. Despite the Government’s intention, the Bill cannot, as drafted, provide equality. It also appears to have been the subject of hasty drafting that does not deal comprehensively with far too many issues.
Lord Norton of Louth (Conservative)
My Lords, I have sat here listening to every single speech yesterday and today. I sometimes think we should strike campaign medals.
The objections to the Bill have been on grounds of process—that it was not properly scrutinised in the other place and that it was in no party’s manifesto—and because of what the Bill seeks to achieve. The objections in regard to process can be dealt with briefly as they have been addressed by others. As the noble Baroness, Lady Mallalieu, observed, we have frequently complained that Bills arrive here from the House of Commons not having been properly scrutinised. It is a novel doctrine to say that we should reject them, not least given that our principal purpose—although not our only purpose—is to engage in legislative scrutiny. The point about the Bill not being a manifesto commitment was dealt with most effectively by the noble Lord, Lord Kerr of Kinlochard. Governments have a permissive mandate, not just a prescriptive one, and to reject this Bill because it was not a manifesto commitment would, again, inject a novel doctrine which would lead us to regularly reject a good number of Bills in each Parliament.
Furthermore, as my noble friend Lady Berridge noted, if we reject the Bill it becomes eligible next Session for passage under the Parliament Act. If the other place insists on the Bill, it can ensure that it is enacted in the form in which it left the Commons the
first time—in other words, the Bill as is now before us. This House may delay it, but it would have no effect on the content.
I turn to the arguments that focus on the content of the Bill. Many have justified the Bill on grounds of equality; I approach it from a different perspective. For me it is a question of freedom: freedom for those faiths which wish to conduct same-sex marriages, and freedom for those who wish to marry. Given that there are grounds for taking this as an issue of freedom, there would need to be compelling grounds to deny such freedom. What, then, are the arguments? We have heard that we should not favour a small minority against the wishes of the majority. The problems with this are twofold: one factual and the other a basic issue of principle.
The Ipsos MORI polls from early this century demonstrate a clear shift of opinion in support of same-sex marriage. I say to the noble Lord, Lord Brennan, that I prefer survey data as being somewhat more reliable than anecdote and assertion. We should regard the letters we receive as political intelligence, not somehow a reflection of public opinion. As my noble friend Lady Noakes has noted, all recent opinion polls where the question has been a simple, straightforward one of being for or against same-sex marriage have shown majority support. The recent YouGov poll is especially revealing. Not only is same-sex marriage supported, overwhelmingly so by those aged under 40, but also by women, by a margin of about two to one. Opposition appears to come predominantly from older males.
Lord Norton of Louth (Conservative)
I am inclined to say that you know who you are, my Lords.
Furthermore, in the poll the percentage strongly in support of same-sex marriage is notably higher than the percentage strongly opposed. As for those who claim that it will cost my party the next election, the poll shows that of those for whom it will be an important issue at the next election, more said that they would be more likely to vote for a party that supports same-sex marriage than those who said that they would be less likely to do so.
The issue of principle relates to writing off minorities because they are minorities, not least those which may not be popular with some sections of society. Homosexuals have been discriminated against and still are, appallingly so in many countries. To discriminate against a category of persons, to deny them freedoms accorded others because of the characteristics which they have not chosen but which set them apart, is fundamentally objectionable in a democratic society.
We are told that it is not up to Parliament to redefine marriage. This demonstrates ignorance of our constitutional arrangements and of our history. Parliament can redefine marriage and, as we have heard, Parliament has redefined marriage. It has done so frequently since the Marriage Act 1541, as illustrated by the noble Lord, Lord Pannick. Indeed, as we have heard, that is just as well, otherwise we should still be treating marriage as the transfer of the property of the woman from the father to the husband.
What are the grounds for saying that Parliament should not exercise its rights to extend the provision of marriage? It is claimed that permitting same-sex marriage devalues marriage. That is not an argument but rather an assertion of moral superiority. It rests in good measure on a rewriting of history—a point well made by the noble Baroness, Lady Neuberger, and indeed the noble Viscount, Lord Colville of Culross—and on biblical text. The Bible has been used to justify all sorts of discrimination that we now regard as morally abhorrent. As the right reverend Prelate the Bishop of Salisbury has noted, the text of the Bible has not changed, but our understanding has. In every sphere of life we are constantly learning, except, apparently, in this one respect, where we cling to a view held 4,000 years ago.
Much of the debate has been conducted as if we were the first nation contemplating the introduction of same-sex marriage. We can learn from what has happened elsewhere. Most of the nations that permit same-sex marriage are signatories to the European Convention on Human Rights. Their churches have not been forced to do anything by the European Court of Human Rights that they do not wish to do. We have heard assertions in this debate that the introduction of same-sex marriage has led to a decline in heterosexual marriage. I have the figures here, which are readily available in the briefing paper produced by the House of Commons Library. Some countries have seen a decline in traditional marriage, notably Portugal and Spain, but in Portugal that was happening before the introduction of same-sex marriage. In Belgium the figures for traditional marriages went up, not down. A study of the Netherlands found that trends in marriage and divorce did not change. In nations where it has been introduced, support for same-sex marriage has increased, and none of the dire consequences predicted as a result of the passage of this Bill appear to have been experienced. Of course, if anyone can show otherwise, they can bring it up in Committee.
The noble Lord, Lord Brennan, said, “What next?” Well, nothing, unless we will it. Things will not happen unless Parliament decides that something should happen. That is a key point. Nothing is suddenly going to translate from this action unless Parliament wants any further action to be taken. It is in our gift.
I end with the words of Paul Parker of the Quakers in Britain:
“For us marriage is not a mere civil contract, but a religious act. While we don’t seek to impose this on anyone, for us this is an issue of religious freedom”.
The principled case for supporting the Bill is, to my mind, compelling.
Lord Forsyth of Drumlean (Conservative)
My Lords, I will speak very briefly in the gap, of which I have given notice. I think I am entitled to four minutes, which is the time people in the other place—the elected Members—had to talk on a matter of this importance.
I am usually at one with my noble friend Lord Norton of Louth, but when he says that it is up to us to decide I say no, it is not. We can make laws, but they have to carry consent. Next week it will be 30 years since I was first elected to the other place. I have never known a measure—not even the poll tax—that has
produced such division and concern on both sides of the argument. It is important that we take account of that. What worries me about the Bill is the speed with which it has been whisked through the House of Commons and is now being whisked through here. I am told that we are going to be allowed two days in Committee. As the noble Lord, Lord Brennan, pointed out, the Civil Partnership Bill had far more than that—I think it had five days in Committee. The idea that we can deal with a matter of this importance in two days in Committee when we have had two days on Second Reading is ridiculous. What is the haste? What is forcing the pace of this matter?
On the letters and e-mails we have had, I acknowledge that some people who have written have used quite offensive terms. One of the qualities of the debate that we have had so far in this House has been the civilised and respectful way in which we have listened to the arguments. I would have preferred the House of Commons to have dealt with this matter in the normal way, as we have done on other controversial issues: a Private Member’s Bill, with the Government providing time, and with a Committee of the whole House. Instead, we had a Committee which was stacked and a guillotine—and, by the way, we had a manifesto commitment to end the automatic timetabling of Bills. This Bill, above all others, should not have been subject to a timetable motion.
In this House we are now faced with the question which I want to address. I will be supporting the amendment in the name of the noble Lord, Lord Dear, because the House of Commons needs to think again. It needs to produce a White Paper or a Green Paper, and the public need to be involved in this discussion so that it carries consent. At the end of the day, consent is the most important thing. Listening to the debate in this House, and to the right reverend Prelate, I believe that consensus can be achieved, but the Bill is no way to achieve it.
The Bill was certainly not a manifesto commitment. My noble friend says that it does not matter. Yes, it does. If it had been, it would have been quite wrong for us to vote for the amendment in the name of the noble Lord, Lord Dear. This House is entitled to vote for the noble Lord’s amendment because the House of Commons has not had an opportunity properly to consider it, and indeed, the Bill would not have come to this place had a deal not been done by the Labour Front Bench with the Government to support the Bill in return for a commitment to consider whether civil partnerships should be extended to heterosexual couples. That is a very important measure that could be taken, but we are told that it is very complicated, it will take a very long time, and they need that time. This is very complicated as well. We are entitled to vote for the amendment in the name of the noble Lord, Lord Dear, and I shall do so, because the process by which this Bill has been handled is inappropriate, and has left the country divided, bewildered and puzzled by something that has come out of a blue sky. That is not a proper way in which to make such a major social reform.
Baroness Neville-Jones (Conservative)
My Lords, I have also given notice that I wish to speak in the gap and gave notice, and shall do so briefly in view of the length of the
debate. I did not put my name down at the beginning, because frankly I did not know what I thought about this difficult legislation. I still have great difficulty with this Bill, though I have greatly benefited from the extraordinary quality of the debate.
Marriage is certainly much more than a wedding. As the noble Baroness, Lady O’Loan, pointed out, it has huge ramifications that have not been explored. How could they have been explored in the other place, given the bulldozer that applied? I entirely agree with what my noble friend has just said about the process to which this important legislation has been subjected. I come, however, to a different conclusion about what this House should do about it.
It would not be wise for us to reject this legislation at Second Reading. We have a duty and the right to take it through Committee. That is our function. I beg the Front Bench and the usual channels to afford us more than two days in Committee. If we reject the Bill now, it is a perversion of the function of this House, so I hope and expect that there will be more days available for discussion, given the extraordinary ramifications of this legislation. We need to know that the safeguards that have been claimed are robust. We need to know that the sorts of issues that have been raised can be pinned down and that we have definitions. We may call this thing marriage, but there will be two different categories, and we have to be clear about what the legal position is. I do not support the Bill as it stands, but I will not oppose it going to Committee.
Baroness Thornton (Labour)
My Lords, I am pleased to be here and that I heard the noble Lord, Lord Forsyth, coming over the hill as cavalry in aid of the noble Lord, Lord Dear. It is an honour to give the Opposition winding speech on this Second Reading debate in your Lordships’ House. I am not envious of the task that the Minister has in answering the substantial and passionate debate that we have had for the past two days. My noble friend Lady Royall outlined most eloquently in her opening remarks the reasons why Labour is supporting this Bill and the Government, but as in the Commons there will be a free vote. I shall not repeat all of her arguments.
When we are contemplating something new, I always think that international comparisons are helpful. Last month this House supported making caste discrimination part of our legislative equality framework. In doing this, and persuading the Government and the Commons that it was the right thing to do, we were blazing an international trail of which we should be proud. Today, we are not being so adventurous, because we are proposing that the UK will soon join those countries that have now signed same-sex marriage into law. They are Argentina, Belgium, Canada, Denmark, Iceland, the Netherlands, Portugal, Norway, Spain, South Africa, Sweden, Uruguay and now France.
I offer my congratulations to Vincent Autin and Bruno Boileau on their marriage last week. It was historic for being the first same-sex marriage to take place in France following President Hollande’s signing of the legislation into law. First and foremost, it was a momentous day for this couple, who on that day made
a loving and lifelong commitment to one another before their friends and family, just as I and many in this House have done over the years.
The objections to the Bill to bring same-sex marriage onto the statute book seem to fall into two or three categories. There are noble Lords who are uncertain that freedom of religion will be respected by the Bill. To them I say that the Government have built huge safeguards into the Bill, which, it is widely agreed, will do the job. The most reverend Primate and the right reverend Prelates who have spoken have woven brilliant theology and arguments against the principle of same-sex marriage, but as the noble Baroness, Lady Neuberger, my noble friend Lady Mallalieu and others have said, the state’s concept of marriage has been ever-evolving. It has long since diverged from religious teaching. They have not managed to unpick the locks, so to speak.
While lawyers can always find something to disagree about, I would encourage those noble Lords to read back the speeches of the noble Lord, Lord Pannick, and my noble friend Lady Kennedy of The Shaws, who have explained the strong assurances that legal security is provided by the Bill. Some concerns have been raised by noble Lords about the position of teachers and faith schools in reconciling their views of marriage with the new reality. My party is confident that the current law achieves the right balance in securing the right of faith schools to educate pupils in a way that is sensitive to the law of the land and also to students, some of whom may be gay or have parents of the same sex. I may never use these words again, but I agree with the evidence that Michael Gove gave to the scrutiny Committee stage in the Commons. However, it is right that these issues will be tested and scrutinised by this House in Committee, because it is right that these questions and concerns are allayed.
There are those who say that the Bill is in some ways anti-democratic, that it was not in manifestos, that there was no Green Paper—and, they add, let us rubbish the consultation—and they ask why it was not a Private Member’s Bill. The noble Lords, Lord Norton and Lord Kerr, covered the constitutional points, and I agree with their analysis. We have to look at the strength of feeling in favour of the Bill in the Commons. It is remarkable that the majorities at Second Reading and Third Reading were so large. It may serve the opponents’ purpose to suggest that some kind of secret Whip was applied, but I am with the noble Lords, Lord Cope and Lord Bates, about the whippability of such an issue.
Many MPs thought very hard about the Bill and had serious discussions with constituents before deciding how to vote, but each MP made a decision alone about whether to support it, and so must we. Rarely as parliamentarians do we have the opportunity, by the words that we use and the votes that we cast today, to affirm the equal respect that we have for our fellow citizens regardless of their sexuality and the equal respect that we have for their long-term and loving relationships.
We have also had a bit of scaremongering. Scaremongering to further an argument in which you passionately believe is a legitimate debating ploy, but
noble Lords are wise and experienced enough to recognise scaremongering when they see it. We can safely say that the noble Lord, Lord Tebbit, won the award for this one. In a short and sharp intervention, he managed with his usual skill to provide a scare for almost everything, including compulsory promotion of homosexual marriage and artificial insemination of the heir to the throne.
Baroness Thornton (Labour)
Yes, goal. I am happy to say that it is the Minister who answers the questions here.
The noble Lord, Lord Dear, also did quite well in the old scaremongering field when he said that some 8,000 amendments might be required by this legislation. I thought that that was remarkable and checked whether it is true. I am pleased to reassure the House that this seems not to be the case. The noble Lord seems to have confused the fact that there are indeed 8,000 references to marriage within the total library of legislation, without the need to amend them all. Furthermore, it is clear from discussion with the Bill team and reading the Bill that Clause 11 and Schedule 4 deal more than adequately with his concerns. I am sure that the Bill team will be happy to explain this to the noble Lord in due course.
Other noble Lords feel uncomfortable with what they see as a departure from traditional marriage. I do not doubt that this is how they feel, but I ask them to reflect a little deeper on those feelings. Is it habit and familiarity that make change uncomfortable and unsettling? This was referred to by the noble Baroness, Lady Jenkin. The Minister noted that we all move at a different pace when faced with change. As the noble Lord, Lord Deben, put it so eloquently, major social changes do not happen when the majority align themselves; they have almost always happened when a minority has stood up for what it believes to be right, put it to the public and in the end proved that it is right.
Unfortunately, some who profess to believe in equal rights for everyone, regardless of gender, race and sexual orientation, find it difficult fully to escape prejudices ingrained over many years when homosexuality was said to be at worst an abomination, or at least something to be very quiet and discreet about because it bordered on the shameful. To noble Lords who are finding the idea of same-sex marriage difficult to come to terms with, I make a plea that they should listen to their heart and indulge their generosity of spirit. Having heard the deeply personal speeches of the noble Lords, Lord Browne and Lord Smith, my noble friends Lord Alli and Lord Collins, the noble Lord, Lord Black of Brentwood, the noble Baroness, Lady Barker, and the noble Lord, Lord Carlile, it would be hard not to be moved—and it would be very hard-hearted not to support same-sex marriage.
The noble Lord, Lord Faulks, asked me a direct question: would my Government have brought in this legislation? Given that we brought forward all the
equalities legislation between 1997 and 2010, and given the presence of my noble friend Lord Alli over my shoulder, how could I say otherwise? It is the personal testimony not just of noble Lords who have faced discrimination and struggle because of their same-sex relationships, but of all noble Lords who have spoken of the love and strength they have found through their partners, civil partners, husbands and wives, that should secure our resolve to reject the amendment of the noble Lord, Lord Dear, and proceed with the Bill. I speak of my noble friends Lady Royall, Lord Brooke of Alverthorpe, Lord Young of Norwood Green and many others.
For many, marriage is the glue—my noble friend Lady Mallalieu called it the superglue—that binds together relationships and gives those in them the strength to face life’s challenges. To have the opportunity to extend this privilege to all couples who want to make that commitment is something that we must now embrace and celebrate as a means to a stronger and more loving society.
I look forward to the Bill receiving a Second Reading today and to getting on with the Committee stage, where I hope we will make progress with many of the issues raised by my colleagues and by noble Lords across the House. We on these Benches will look at pension rights, transgender couples, about which my noble friend Lady Gould spoke so passionately, and humanist marriages, which were referred to by the noble Lord, Lord Birt, and which we are keen to see introduced. Therefore, I urge the House to vote against the amendment of the noble Lord, Lord Dear, and to see the Bill through to its next stage. For the sake of clarity, if noble Lords support the continued passage of the Bill, the Lobby to go into is the Not-Content, and I look forward to seeing many of them there.
Baroness Stowell of Beeston (Conservative)
My Lords, I am grateful to all noble Lords who have spoken in the debate, and to the noble Baroness, Lady Thornton, for her support. We have had a comprehensive debate that has shown how this House takes its role seriously and is able to deal with controversial and sensitive issues in a measured way that respects differing views. What has come across strongly is that those who support the Bill and those who oppose it essentially agree on one crucial matter: the importance of marriage. We all agree that marriage is a cornerstone of our society that provides stability and brings families and communities together.
It will not be possible for me to refer to all noble Lords who have spoken in the debate, or to respond to all the points raised. I hope that noble Lords will forgive me for that. However, some key themes have emerged, and I will deal with those. A number of noble Lords, particularly the noble Lord, Lord Dear, questioned whether the process that had been followed for the Bill was right. My party was clear about its wish to consider the case of same-sex marriage in A Contract for Equalities, published alongside our election manifesto. The coalition agreement set out the Government’s commitment to push for,
“unequivocal support for gay rights”.
We have conducted the process of developing our proposals in a completely transparent way. We carried out the country’s largest ever public consultation, and
every response and petition was accounted for and considered with the utmost care. I say to noble Lords who raised questions about petitions that these were not ignored. They were all treated equally, commented on and flagged in the Government’s response to the consultation.
Some noble Lords questioned whether the Bill had had proper scrutiny in the other place. Convention tells us that it is not for this House to comment on how the other House conducts its business. However, it is worth noting that the Committee stage there was completed with half a day to spare. The Bill had two days of debate on Report on the Floor of the House, and was passed by a majority of two to one at Second and Third Readings. As many noble Lords argued, it is now for this House to scrutinise the Bill in detail.
Moving on from process, some noble Lords queried the robustness of the religious protections, including the quadruple lock, whereby no religious organisation or individual minister can be compelled to conduct a same-sex marriage; all will be free to refuse to do so. I say, first, that I am very grateful to the most reverend Primate and the right reverend Prelate the Bishop of Leicester for their acknowledgement of the work that the Government have done to ensure that the religious protections in the Bill are effective. The noble Lord, Lord Pannick, and the noble Baroness, Lady Kennedy, were very clear in their contributions about their view of the robustness of these religious protections. However, it is only right, because in my opening remarks I did not address some of the specific points that were raised by noble Lords in debate, that I should now do so.
The concern was raised that the European Court of Human Rights might order the Government to require religious organisations to marry same-sex couples according to their rites, in opposition to their religious doctrines. To suggest that this could happen is to rely on a combination of three highly improbable conclusions. First, the court would need to go against its own clear precedent that states are not required by the European Convention on Human Rights to provide marriage for same-sex couples, and that they have a wide discretion in this area. Secondly, the court would need to decide that the interests of a same-sex couple who wanted a particular religious organisation to marry them according to their rites outweighed the rights and beliefs of an entire faith and its members as a whole. Thirdly, the court would need to discount the importance of Article 9 of its own convention, which guarantees freedom of thought, conscience and religion. It would be rewriting the rules not just for one religious organisation in England and Wales but for all religious organisations in all 47 states of the Council of Europe.
Some noble Lords raised concerns that the Bill does not deliver equality. Indeed, they suggested that it creates new inequalities and argued that it redefines marriage because same-sex couples cannot procreate. I will return to the definition of marriage after dealing with some of the specific examples that were raised in this part of our discussion. The current definition of adultery has been developed in case law and does not cover relations between members of the same sex. At present, a married man who has a sexual relationship
with another man is not committing adultery. That would be the case only if he had sexual intercourse outside marriage with a woman. The Bill retains this definition. Like existing marriages, a same-sex marriage can be ended by divorce on the grounds of unreasonable behaviour in such circumstances.
As for consummation, that is not necessary for any marriage to be lawful and indeed not possible in some, which is why we allow for death-bed marriages. As consummation is a historical definition associated with procreation, it would not make sense to extend this concept to same-sex marriages and there is no need to do so. If for no other reason, the opportunity for noble Lords to debate these sorts of things in greater detail is a good reason for this Bill to get more scrutiny. I am sure that they will not be able to resist debating all this in great detail.
The noble Lord, Lord Tebbit, asked about the law of succession and its interaction with the Bill, and in particular whether a monarch in a same-sex marriage could succeed to the throne and whether his or her child, or the child of his or her partner, could succeed. The answer is that the Bill does not change anything in relation to the law of succession. Only the natural-born child of a husband and wife is entitled to succeed to the throne—not adopted children, children born as a result of artificial insemination or children born to only one party to a relationship. That is the position now and it will remain the case.
Baroness Stowell of Beeston (Conservative)
It is discriminatory now and we are not changing anything.
Some noble Lords expressed concern about the Bill’s impact on freedom of expression and freedom of conscience. Particular reference was made to whether teachers would be forced to promote same-sex marriage and be dismissed if they criticise it, whether employees will be barred from criticising same-sex marriage and whether registrars will have any choice but to conduct such marriages.
The position of teachers has been the subject of a lot of debate and scrutiny already in the other House. My right honourable friend Michael Gove, the Secretary of State for Education, who would like to think that he has the word “standards” stamped through him like a stick of rock, was clear in the evidence that he gave to the Public Bill Committee that there is a significant difference between a teacher explaining an issue and promoting or endorsing it. No teacher will be forced to promote or endorse same-sex marriage. Any teacher will continue to be able to state their own belief or that of their faith about same-sex marriage. However, teachers and schools will be expected to make clear as a matter of fact in teaching about marriage that the law in England and Wales enables same-sex couples to marry.
We do not consider that the Bill changes anything in this area and we are clear that the existing protections for teachers are sound. As I said yesterday, though, we are continuing to listen to, and discuss these concerns with, religious groups and others to ensure that we have done all we can to make those protections clear.
As for changing the Bill to ensure that employees cannot be dismissed or disciplined for criticising same-sex marriage, we do not consider that there is any need to do so. Indeed, there could be harm in making such an amendment by raising doubt in other areas, such as criticising homosexuality or civil partnerships. It is lawful to express a belief that marriage should be between a man and a woman, and it is lawful to do that whether at work or outside work. That is a belief that is protected under the religion or belief provisions of the Equality Act 2010, and penalising someone because of such a belief would be unlawful discrimination under that Act. This will still be the position once the Bill is enacted.
None the less, we have been considering what steps we can take to ensure that employers, and particularly public bodies, are completely clear about their responsibilities to respect the rights of people who believe that marriage should be between a man and a woman. With that in mind, the Equality and Human Rights Commission will be reviewing relevant guidance and statutory codes of practice to ensure that the position is completely clear.
On registrars, the Government remain of the view that public servants with statutory duties should not be able to exempt themselves from providing their services for same-sex couples.
Regarding the Government’s position on this important issue of same-sex marriage, at the moment those of us who love someone of the opposite sex can get married, and those of us who love someone of the same sex can be civilly partnered. In legal terms, there is little difference except in the way they are formed and the way they can be dissolved if that sadly becomes necessary. Yesterday I explained why marriage is important to us as a society. Others referred to it as a social good. We all agreed that the institution, the enterprise, the endeavour or whichever word we think best to describe it is a good thing, and that it is important. Some noble Lords, including the right reverend Prelates on the Bishops’ Bench, my noble friend Lady Cumberlege and others, have suggested that gay couples should have their own institution separate from marriage. My noble and learned friend Lord Mackay of Clashfern repeated that today, and made clear that he believes so on the grounds of procreation.
On the question of a separate institution, gay men and women already have their own institution called civil partnership. Like the Bill, the arrival of civil partnerships was a huge change. Unlike the Bill, which has 19 clauses, the Civil Partnership Act had 200 clauses and was contested strongly in debate in your Lordships’ House. After it was finally passed, same-sex couples had access to equal legal rights but they remained different. Marriage remained the preserve of couples made up of one man and one woman. It is the success of civil partnerships that has driven greater acceptance of same-sex couples. In an amazingly short space of time we hear people, including those who used to oppose them, say, “We can’t believe we were all so concerned at the time”. Civil partnerships have led many people—indeed, the majority—to say, “Do you know what? If civil partnership is marriage in all but name, why can’t gay men and lesbian women get married, if that’s what they want to do?”.
Another institution just for gay couples, as suggested by several noble Lords, is not going to make the demand for them to be able to get married go away. Another institution just for gay couples will not address the fundamental purposes at the heart of this Bill: the acceptance of gay, lesbian, bisexual and transgender people for who they are, and the preservation of marriage itself as a vital institution to our society.
In his powerful contribution, my noble friend Lord Black said that legislation drives social change, and up to now the Civil Partnership Act has been the best example of that. As some noble Lords pointed out during the debate, positive social change, when it favours minority groups, is not by definition about numbers. In 2010 the Government made a commitment to push forward unequivocally for gay rights in the coalition agreement. The fact that three years later we are legislating for same-sex marriage reflects the accelerating acceptance of same-sex couples and the possibility that change is possible.
The Bill does not change the religious doctrine or beliefs of any religious organisation that does not want to change them. The Bill protects and promotes religious freedom. Outside of religion, though, gay couples want to marry and many straight couples want them to be able to. The majority of people are ready to open the door to marriage and to welcome those who want to commit publicly to their partner, because they see that they want to do so for all the same reasons as them.
The right reverend Prelate the Bishop of Leicester asked yesterday,
“Do the gains of meeting the need of many LGBT people for the dignity and equality that identifying their partnerships as marriage gives outweigh the loss entailed as society moves away from a clear understanding of marriage as a desirable setting within which children are conceived and raised?”.—[Hansard, 3/6/13; col. 962.]
That may be a legitimate question for the church to ask itself when or if it ever considers whether to allow same-sex couples to marry. However, I would argue that, outside the church, people already understand that two gay men or two lesbian women marrying each other is the same as a man marrying a woman. They have accepted that it is okay for same-sex couples to marry and that them doing so will not redefine their own marriage, because they understand that gay men and women decide to enter a civil partnership for the same reason that a straight couple decide to marry. Same sex couples and opposite sex couples are different physically, but that which leads them to want the same is not different.
I urge this House to ensure that the protections that allow the church and other faiths to maintain their very legitimate belief in marriage being only between a man and a woman work properly. This House should also debate and scrutinise whether the Bill protects freedom of speech and freedom of expression; that is what we really need to ensure is the case. We need religious belief in marriage to sit comfortably alongside what the state allows in law, just as we already do for divorce, contraception and abortion. It is possible for us to allow something in law that not everyone agrees with and to respect our differences of view. The Bill, which allows same sex couples to marry, is, as I said
at the very start of the debate yesterday, also about protecting and promoting religious freedom. I say again that, if further changes are necessary to make those protections clearer, the Government will consider doing so.
There have been many powerful speeches but I hope that noble Lords will forgive me, and that my noble friend Lord Jenkin will not be embarrassed, if I say that I thought that his was one of the best. He said better than I ever could that this Bill will not redefine marriage because it will not redefine his own of 60 years, which has provided mutual comfort and support.
Over the past two days, we have heard lots of views about what marriage means and we have all expressed ourselves differently, but we all unite on three points of principle: marriage is a serious commitment between two people; we think that the institution itself is vital to our society; and we respect and must protect religious freedom and freedom of speech. The Bill supports all three principles. I hope that your Lordships’ House, building on its tradition of supporting social change, will wish to affirm that the Bill should have its Second Reading here. I urge noble Lords who support the Bill, and those who remain unsure and so want it to be scrutinised in detail before they decide, not to accept the amendment moved by the noble Lord, Lord Dear. If the noble Lord calls a Division, I urge all noble Lords to vote not content.
The Marquess of Lothian (Conservative)
There was a long discussion about the vote in the House of Commons being an all-party vote. I spent nearly 37 years there, and I know what is euphemistically called an all-party vote. I want my noble friend to assure the House tonight that when we are having a free vote in this House, it will be a genuinely free vote so far as the Conservative Members of this House are concerned, including Front-Bench Members.
Lord Dear (Crossbench)
My Lords, this has been a long and tiring debate, and one that has been a privilege in which to participate. I thank all Members of your Lordships’ House who have spoken, and in particular those who have offered such steadfast support to me, both before and during the debate. I am very grateful. As has just been confirmed, this is a free vote, and Peers across the House have supported my amendment. All of them recognise that it should not be a matter for party politics but a matter of principle.
It is interesting how in the course of this fascinating debate, over two days, the thrust of the debate, or the tide for and against, flowed backwards and forwards. Last night, the first half of that session was more or less in balance, while the second half of last night was discernibly running in my favour, as it were, and today the tide has turned and is running the other way. I make no criticism of that; it is the random way in which the speakers list is put together. Certainly, all of us agree that this is an issue of profound interest and importance and one that will affect every member of
our society. We cannot escape the fact that the Bill will completely alter the concept of marriage as we know it. The most reverend Primate the Archbishop of Canterbury and the right reverend Prelates, the Bishop of Leicester, the Bishop of Chester and the Bishop of Exeter, the noble and right reverend Lord, Lord Carey of Clifton, and the noble Lord, Lord Singh of Wimbledon, all explained their opposition to the Bill and the detailed practical and theological reasons that underpin their stance.
In the debate over the past two days, it appears to be an accepted fact that the process of the Bill was seriously and unusually flawed. Nobody has really challenged those facts, and I comment very briefly on them because they have been repeated several times already. It is useful to remember that there was no proper consultation or Green or White Paper. There was no manifesto or pre-legislative scrutiny. The Government consultation procedure was, frankly, a mockery, and the result was rigged, because whichever way you look at it the vote was 83% against the Bill. It was heavily constrained in its passage through the House of Commons, with some serious doubts about the process.
Here in your Lordships’ House our debate strangely never came to real grips with the consequences of the Bill should it become law. There was very little examination or comment about the major issues of employment, education, freedom of conscience or the rights and well-being of children, save the one intervention that I noted from the noble Lord, Lord Eden of Winton. Neither was very much time spent on the inevitable impact on the existing legal framework. All we knew for sure was that the Government had admitted that the impact on existing legislation would require at least 8,000 amendments. The noble Baroness, Lady Thornton, has just tried to put that into context.
I hope noble Lords will agree with my very unusual procedure of quoting five lines from my opening remarks yesterday, which can be found in col. 947 of Hansard. I reflected on the fact that the last country to change the law as we seek to do was Argentina, two years ago, and the results are just becoming apparent. A valued commentator in that country said this:
“It quickly became clear that legalising same-sex marriage required a revolution to our internal law. It impacted laws regulating public order, identity, gender, rules of kinship, filiation, marriage, names, marital property arrangements, divorce, alimony, parental rights, succession, domestic violence, adoption, artificial reproductive techniques, surrogate motherhood, liberty of conscience, criminal law, tax law and employment law, among other topics”.—[Hansard, 3/6/13; col. 947.]
Whether there are 8,000 or 800 amendments, that is the sort of change that we must expect as a result of the change in this law.
The major part of the debate that we have had here focused, perhaps unsurprisingly, on aspects of love and acceptance—and who, really, can deny the importance of that? The homosexual community is very small numerically but is none the less just as important and seeks society’s affirmation and social acceptability, which it claims would come from access to, and inclusion in, marriage as we know it. Civil partnerships already give legal equality, as we know; what is now being
sought is social inclusivity. I, like many others in your Lordships’ House, was moved by the speeches of, for example, the noble Lords, Lord Browne of Belmont, Lord Smith of Finsbury, and Lord Black of Brentwood, and the noble Baroness, Lady Barker. Their ability to speak as they did, and that those views can be accepted in public, was refreshing and commendable.
I have been one of many who have helped in some small way to further the steady growth of full integration of homosexuals into society from a position of illegality, through a phase of tolerance, if you like, into full recognition and acceptability. I am also aware of the very large number of others in society who recognise the huge change that is being sought by this Bill. Balancing the understandable fears and wishes of the majority against the understandable demands of a small minority is a difficult task, but in their haste to force this Bill through Parliament the Government will not satisfy either group. The noble Lord, Lord Alderdice, spoke convincingly of the dangers of forcing legislation on to the statute book without wide consultation and carrying all shades of public opinion with it. I wholeheartedly agree and have cited the current situation in France as one example.
There seems to be, if not general agreement, certainly some agreement that the Bill is in a mess, ill thought through and without proper process or popular mandate. The noble Lord, Lord Dannatt, went so far as to say that the progress of the Bill has to date been tantamount to an abuse of process. He might well be right.
Some argue that it should pass Second Reading and be ameliorated in Committee. We all know that it is constitutionally proper to force a vote at Second Reading. There are precedents for doing so, the most recent being the Health and Social Care Bill only two years ago. We know that such a move was endorsed by the 2006 Joint Committee on Conventions and I recognise and endorse the usual approach in your Lordships’ House to taking care and time to examine a Bill in detail, but not on this occasion. The structure of the Bill is too bad for that and I am certainly not alone in that view. A battery of big guns in your Lordships’ House agreed with me that the Bill is so fatally flawed that it is incapable of sensible amendment and should be voted down now and sent back to the drawing board.
Yesterday, the noble Marquess, Lord Lothian, the noble Lords, Lord Naseby, Lord Framlingham, Lord Tebbit, Lord Mawhinney, Lord Waddington, and Lord Anderson of Swansea, and others—all parliamentarians widely experienced in both Houses—supported the move to vote the Bill down now. We have heard the same today from the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Brennan, and—in his short intervention—the noble Lord, Lord Forsyth of Drumlean.
It might be a bold move—it probably is—but it is legitimate, it has a precedent and it is appropriate. Who is prepared to drive a steamroller over the address given by the noble Lord, Lord Brennan, himself at one time chairman of the Bar, who asked a series of questions about what the next factors are, whether we should dwell solely on emotion and avoid questions of law, and particularly the fact that Clause 1 of the Bill
gives no room for negotiation or manoeuvre when it gets to Committee. All the might of government has been thrown at this Bill. Every corner has been cut, yet it is ill constructed and does not have the stamp of democratic legitimacy.
Perhaps I may close in posing a few fundamental questions? Are noble Lords sure that the process has been properly handled? Are they sure that the Bill has democratic legitimacy? Are they sure that all the likely consequences have been thought through—remember Argentina? Are they sure that we know everything about the legal effects of the Bill? Are they sure that there will be no later attempts to widen the definition of marriage further, and are they happy for another Government on another occasion to ram a different Bill through in this way? If not this Bill, when would noble Lords vote against a Bill at Second Reading? If some of the answers are in the negative, I suggest that we vote the Bill down now and not waste further parliamentary time on it. I suggest that we send it back for proper, mature research, consultation and debate about the whole institution of marriage, taking into account, if you like, civil partnerships for both heterosexuals and homosexuals, because the issue is too important for all sections of society, gay or straight, to be introduced on a whim and handled in so cavalier a fashion.
How can we refuse a Second Reading? Rather, I ask noble Lords: how can we allow it to proceed? I ask your Lordships to agree my amendment and, in doing so, I beg leave to test the opinion of the House.