Relevant document: 4th Report from the Delegated Powers Committee
Clause 2 : Marriage according to religious rites: no compulsion to solemnize etc
Moved by Baroness O'Loan
13: Clause 2, page 4, line 9, at end insert—
“( ) For the purposes of section 149 of the Equality Act 2010, no regard may be had by any public authority to—
(a) any decision by a person whether or not to opt-in, conduct, be present at, carry out, participate in, or consent to the taking place of, relevant marriages; or
(b) the expression by a person of the opinion or belief that marriage is the union of one man with one woman.”
My Lords, I reiterate my membership of the Joint Committee on Human Rights, whose report on the issues on which I will speak is before your Lordships’ House today.
Amendment 13 provides for amendment to Clause 2(5) of the Bill. Despite all that was said on Monday in respect of the Equality Act, and I listened very carefully to all the contributions, there is a significant risk that religious organisations and individuals could be treated less favourably by a public authority in the exercise of its functions, for example, as regards funding, as a result of the public sector equality duty under Section 149 of the Equality Act 2010. This could occur in two rather different situations: first, following a decision by a religious organisation,
“not to opt-in … be present at, carry out, participate in, or consent to the taking place of”, same-sex marriages; and, secondly, following the expression by an individual or organisation of an opinion or belief that marriage is,
“the union of one man with one woman”.
This amendment would protect religious organisations and individuals from unfavourable treatment in both these circumstances.
Under Section 149 of the Equality Act, public authorities such as local authorities are under a duty to have due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it. In particular, public authorities must have due regard to the need to remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic. Since the enactment of the first public sector duty in 2001, there has been extensive litigation and an expansion of the discretion of public authorities in this context. The courts have consistently interpreted the duty of due regard as a duty to further equality of opportunity and not just a duty to avoid discrimination.
Public authorities have in practice used this discretion to pursue broad equality aims and the courts have been reluctant to second-guess the discretion of public authorities. Public authorities have, for example, denied public contracts to organisations which they regarded as unsuitable—for example, on race equality grounds, and the courts appear to have deemed this entirely lawful. As noble Lords will already be aware, the public sector equality duty now imposes duties on multiple grounds, which include sexual orientation and religion. This means that public authorities now have significant discretion in deciding how best to balance these grounds if they clash, and they will clash.
In relation to the first scenario—unfavourable treatment of a person following a decision not to opt in—the amendment is needed for three reasons. First, the Bill does not expressly state that a public authority will act ultra vires if it penalises a person following any of those decisions. Clause 2 protects from compulsion; it does not appear to protect religious organisations from being treated less favourably by public authorities under Section 149. The Government appear to think that less favourable treatment should be ultra vires. In the Secretary of State’s response to the Catholic Bishops’ Conference of England and Wales, she said:
“In all circumstances a person who has suffered detriment for the reason that they have not done one of the acts specified in Clause 2, will be able to rely on the protection in Clause 2 to show that such conduct is unlawful”.
“as the law stands, a public authority would in fact be acting unlawfully … if it attempted to treat a religious organisation adversely simply because that organisation refused, as is explicitly allowed in the Bill, to conduct same-sex marriages. If, for example, a local authority withdrew meeting facilities from a Church only because it did not offer same-sex marriage, that would be likely”— likely, my Lords—
“to be unlawful direct religious or belief discrimination”.—[ Official Report , Commons, Marriage (Same Sex Couples) Bill Committee, 5/3/13; col. 349.]
This is not clear in the Bill because an ordinary dictionary definition of “compelled” does not include treating someone less favourably. Nor is it at all clear, for example, that it would be unlawful direct religious discrimination for a local authority to withdraw meeting facilities from a church on the ground that it does not offer same-sex marriage. At most, it is likely to amount to prima facie unlawful indirect discrimination and that would then be subject to the justification defence. We know that the results which flow from judicial scrutiny of such defences are uncertain.
Secondly, Clause 2(5) and Clause 2(6) of the Bill provide explicit protection from Sections 29 and 110 of the Equality Act, despite the comprehensive protection from compulsion which Clause 2 is supposed to provide. The presence of these extra exemptions in Clause 2(5) and 2(6) casts serious doubt on the scope of the protection from compulsion. If it is necessary to have exemptions for these sections, it is also necessary to have a separate exemption for Section 149, to give the protection provided for in this new clause.
Thirdly, even if it were established that the actions of the public authority were ultra vires in the scenario described, such a clarification would come only as a result of a judicial review being taken by religious organisations, which would be time-consuming and expensive. What is more, domestic courts have been reluctant to second-guess the discretion of public authorities, where allegations have been made that more weight should be given to a particular ground of equality. The Secretary of State has been careful not to state that a judicial review of a public authority that engaged in this less favourable treatment would be successful. The Secretary of State has said only that the decision would be vulnerable to challenge. This amendment will provide the necessary clarification, and thus protect persons from unfavourable treatment, by making it explicitly clear in the Bill that public authorities cannot have regard to decisions by persons not to opt-in, conduct, be present at, carry out, participate in or consent to the taking place of same-sex marriages.
In relation to the second scenario, in which persons may be treated unfavourably under Section 149 following an expression of the opinion that marriage is the union of one man and one woman, the amendment is necessary for two reasons. First, the Government have repeatedly stated that teachers will not be required to promote or endorse views which go against their beliefs. The Minister stated at the Public Bill Committee:
“It is therefore perfectly lawful for a teacher in any school to express personal views on sexual orientation or same-sex marriage, provided that it is done … in an appropriate manner and context”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 28/2/13; col. 305.]
However it is not clear from the Bill that a teacher would be able to teach that marriage should be only between a man and a woman, because some parents, pupils or other teachers could find such teaching deeply offensive. The public sector equality duty could force a school to review, for example, its anti-bullying strategy to ensure that such expressions of opinion are not given. A teacher could thus be disciplined for expressing such an opinion to his or her pupils.
Secondly, if a school’s curriculum positively presents only opposite-sex marriage, there is a danger that the school could fall foul of the Section 149 positive duty on schools to advance equality of opportunity and to foster good relations between people with different protected characteristics. The public sector equality duty could consequently compel schools to endorse same-sex marriages, not just to teach the fact that they exist.
If the Government agree that less favourable treatment should be ultra vires, then the appropriate approach is to make clear this fact in the Bill, thus avoiding unnecessary litigation. It is unclear why the Secretary of State does not think that it would be “helpful to make legislative changes to the public sector equality duty” when a narrowly tailored amendment is possible, which would resolve the problem without adverse consequences for the public sector equality duty more generally. It is better to eliminate this uncertainty now by making this amendment than to leave uncertainty that is likely to be litigated on.
I move now to the issue of public function and Amendment 18. This amendment will introduce a definition in relation to the word “compelled” in Clause 2. It will provide protection for religious organisations when deciding whether or not to undertake an opt-in activity or an opt-out activity for the purposes of Section 29 of the Equality Act, the Equality Act more broadly, the Human Rights Act and judicial review. This amendment is necessary because religious organisations may be held to be exercising a public function when exercising their discretion to decide whether to opt in or out under Clause 2(1).
In relation to Section 29 of the Equality Act 2010 and the Equality Act more broadly, the exemption in Clause 2(5) to Section 29 of that Act constitutes one of the Government’s so-called quadruple locks. Clause 2(5) makes it clear that discrimination claims cannot be brought against religious organisations for refusing to marry same-sex couples, for example. However, the protection is incomplete. Clause 2(5) makes an exception for individuals only if they decide not to conduct a relevant marriage, not be present at, carry out or participate in a relevant marriage, or not to consent to a relevant marriage being conducted. This list of activities echoes exactly the activities listed under Clause 2(2). There is no reference to the activities listed under Clause 2(1). There is no protection under the Equality Act for persons, as defined in the Bill, who exercise the discretion given under Clause 2(1) and decide not to opt into providing same-sex marriages. This is an important omission.
Section 29 of the Equality Act covers the provision of services and the performance of public functions. It states:
“A person … concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service”, and that a person,
“must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination”.
Persons are therefore given this protection when performing Clause 2(2) activities because the Government consider those activities to involve either the provision of a service or the exercise of a public function. The protection from the threat of legal action under Section 29 ensures that persons will be truly free not to perform Clause 2(2) activities if they have a conscientious objection to so doing.
Why are persons not afforded the same protection when performing Clause 2(1) activities? It is entirely possible that a person as defined in the Bill, when deciding whether or not to opt into performing same-sex marriage ceremonies, will be performing a public function. If that is the case, it is imperative that protection is also provided for persons when performing these activities. In short, religious organisations are at risk of successful discrimination claims by virtue of Section 29. This lock will therefore provide very little protection indeed.
The reason why religious organisations are at risk of being held to perform a public function when exercising their discretion under Clause 2(1) is as follows. First, while it seems to be highly unlikely that in general a religious organisation would be regarded as a public authority, bodies that are not generally public authorities may nevertheless be regarded as hybrid authorities if they exercise some public functions. While giving evidence to the Joint Committee on Human Rights, the Secretary of State recognised that in the Church of England, the minister performs the function of a registrar, and thus performs a public function. It is possible she is under the misconception, however, that only the Church of England are in that position, and that in every other religious organisation, the minister performs the religious part of the ceremony, and a separate registrar performs the civil part. That is not true. In the Catholic Church, for example, a religious organisation which is going to have the option of opting in, the priest or another designated person acts as the authorised person performing the civil function. The priest conducts the marriage ceremony—the religious ceremony—and it is usually the priest who is the authorised person who also performs the administrative or civil aspect of the marriage. Therefore, despite the Secretary of State’s assertion, other religious organisations such as the Catholic Church also perform a public function when they conduct marriages. I apologise—I should have probably declared an interest as a Catholic.
Does the fact that religious organisations such as the Catholic Church, many minority churches, and many other churches, conduct marriages that are both religious and civil, make the religious organisation a hybrid public authority? The answer to this question may well be “yes”, because religious organisations perform a public function when conducting civil marriages. Jack Straw, when he was Home Secretary and the Minister presenting the Human Rights Bill in 1998, said in the House of Commons:
“There was a time when one could get married only in church but, these days, marriage is a matter of civil law—it is the exercise of a public right. The Churches are standing in the stead of the state in arranging the ceremony of marriage, which is recognised not only in canon law, but in civil law. In that instance, the Church is performing a function not only for itself, but for civil society”.—[Hansard, Commons, 20/5/98; col. 1017-18]
The Joint Committee on Human Rights makes recommendations on these matters at paragraphs 57 and 58, noting the clear disagreement in evidence to the Committee regarding whether this is a public function. The committee states:
“We believe that the solemnisation of legally-binding marriage by any religious organisation under the provisions of the Marriage Act 1949 may be a public function”.
This could render a religious organisation’s decision not to opt in to conducting same-sex marriages challengeable under the Equality Act 2010 on the grounds that the decision constitutes a public function. This argument is strengthened by Clause 11(1), which provides:
“In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples”.
What is more, because the discretion to opt in in Clause 2(1) will be a statutory discretion, the likelihood that the discretion will be regarded as a public function is significantly increased.
The Secretary of State responded to this concern by saying:
“In our view, the decision to opt-in or not is not a public function – it is not a function of a public nature. The fact that it would enable a religious organization subsequently to undertake a function that is arguably of a public nature (ie the legal solemnization of same sex marriages) does not make any conduct prior to that also a public function”.
In the Public Bill Committee the responsible Minister stated that a decision whether to opt in or not is a public function under Section 29 of the Equality Act. He stated that,
“a religious organisation’s decision whether to opt into conducting same-sex marriages is neither a service to the public or a section of the public, nor a public function”.—[ Official Report, Commons, Marriage (Same Sex Couple) Bill Committee, 5/3/13; col. 348.]
That assurance is welcome. It is not clear on the face of the Bill. Should a dispute arise before a court of law, a ministerial Statement provides no guarantee that a court will not find that a religious organisation has exercised a public function in deciding not to opt in under Clause 2(1); indeed, what the courts may consider to constitute a public function is not altogether certain. Without this amendment, a risk will remain that religious organisations that conduct legally recognised opposite-sex marriages could be regarded as exercising a public function in deciding whether or not to opt in.
The second reason is that religious organisations will be at risk of legal action under the Human Rights Act and/or by way of judicial review, on the grounds that exercising the discretion not to opt in could involve a public function. If it is genuinely the Government’s intention that religious organisations should not face legal action on the ground that they perform a public function when exercising their discretion under Clause 2(1), why not say so on the face of the Bill?
The Government have argued that making a specific statement on the face of the Bill that religious authorities are not, for these purposes, exercising public functions, would be unhelpfully confusing. The Secretary of State has written to the Roman Catholic Church, saying:
“To make a specific statement of the sort you have requested might … risk creating doubt about whether other decisions made by religious organisations are also public functions”.
With respect, this response is unconvincing. As we have seen, there is already uncertainty about which decisions are public functions. The proposed new clause would introduce a degree of clarity in one area of activity, and that can hardly be regarded as unhelpful. A risk, possibly a significant risk, has been identified. Even if litigation against a religious organisation may ultimately be successfully resisted, that will be so only after the organisation has incurred costs. Religious organisations should not be exposed to such costs, particularly if they are not public bodies, as the Government assert. The explicit protection provided in the amendment is clearly needed. I beg to move.
My Lords, I shall speak in favour of Amendment 13. As was mentioned on Monday and has been mentioned today, the public sector equality duty rightly requires public authorities to eliminate discrimination, work for equality of opportunity and foster good relations. It is a welcome measure that makes ours a fairer society.
However, we all know that those in authority can, and often do, misuse their authority to intimidate or bully others in employment or those who approach them for goods and services. As Shakespeare and Dickens observed, office can be intoxicating, particularly if you feel that you are working for the greater good. It can lead to a messianic zeal to convert others to your way of thinking. There is a real danger that if this legislation comes into force, some will use it to try to convert those who believe in traditional marriage to their way of thinking. I believe that the amendment is necessary to draw attention to and protect sincerely held beliefs that harm no one—beliefs that will with hindsight be seen as having important implications for family cohesion and the well-being of children. Clarity of the law benefits everyone; lack of clarity benefits only the lawyers.
I shall speak to Amendment 17. I thank the noble Baroness, Lady Berridge, for adding her name to it. I hope that I can be fairly brief. Despite assurances and the amendments made by the Minister in Committee and on Report in the other place, I believe that there is still uncertainty about the meaning of compulsion and the word “compelled”. The amendment is designed to remove that uncertainty. It aims to make things clear, and thus protect religious organisations and their members from all legal penalties. It would prevent public authorities treating such organisations less favourably if they decide not to opt in. For example, in some sphere completely unconnected and separate from marriage—such as the provision of a youth club or a night shelter—public authorities would be acting ultra vires if they penalised religious bodies for not opting in, and thus co-operating with the Bill when it becomes law.
It is important that such assurances should be plain in the Bill. My amendment tends to consolidate and reinforce the Government’s quadruple lock. I urge the Minister to take away all three amendments in this group to see whether they can result in improved amendments on Report.
My Lords, I declare an interest because I, too, was a member of the Joint Committee on Human Rights and had the great misfortune to find myself in a completely opposite place from the noble Baroness, Lady O’Loan, as she knows. During the 10 years I have been on that committee, I have never before had such an experience, where we were totally unable to secure a totally common position. Unlike previous committees, we decided not to take a vote, but to produce a compromise document. I did so in the spirit of conciliation and compromise, but I have to say that I do not agree with the views expressed by the committee in some of its parts.
I also do not agree with the very detailed speech made by the noble Baroness, Lady O’Loan. That would be quite impossible in a debate of this kind, before a body of people who have the great fortune not to be lawyers, judges, experts on the Equality Act or experts on the Marriage Act 1949, and who do not really understand the argument that the Catholic Church deployed and which has been deployed before us today.
I do not propose to answer that with the seriousness that it requires and I advise my noble and learned friend who is replying also, perhaps, not to answer every single point today. A sensible outcome of this might be to give a rebuttal in writing before Report stage on some of the detail. In my view, none of the amendments is necessary; all would create uncertainty and obscurity. The approach adopted by the church reminds me of a curious kind of person who goes around wearing trousers with not just one belt, not just two belts, not just—as in the case of this Bill—four belts, but also with a pair of braces. It is completely unnecessary.
I totally agree with the Government’s legal analysis, as expressed by the Minister in her evidence to us and in writing. On these issues, the Equality Act is quite clear. Of course, you can never prevent people bringing challenges in courts on any basis whatever; that is true of all legislation. I think that if these amendments were carried, it would create great uncertainty.
The document that is being discussed in the dinner hour, produced by the Office of the Parliamentary Counsel, When Laws Become too Complex, states:
“Good law is necessary, effective, clear, coherent and accessible. It is about the content of law, its architecture, its language, and its accessibility—and about the links between those things”.
That is all there in the architecture, language, content and accessibility of the Equality Act—this is a tribute to the Opposition, whose Act it was, with our support—and in the Explanatory Notes to the Bill. Quite honestly, if these amendments were accepted, it would create great uncertainty and damage the object of the Bill.
My Lords, I rise to speak to Amendments 17 and 18, which are in my name. Although they have both been given the heading, “Meaning of ‘compelled’”, each raises distinct points. First, I wish to state my appreciation that the Government are keen to listen to concerns over the current drafting of the religious freedom protections in the Bill. The Secretary of State said in the other place that she,
“would never introduce a Bill that encroaches or threatens religious freedoms”.—[ Official Report , Commons, 11/12/12; col. 157.]
The Government’s impact assessment helpfully outlined that the Bill should,
“ensure that protections are in place for religious bodies who do not want to perform same-sex marriages, not just from successful legal claims, but from the threat of litigation”.
I am grateful for the Government’s stated intentions but put my name to both these amendments as I believe that the Bill may encroach on such freedoms and that there is a threat of litigation.
I will deal first with Amendment 17. The Government have widely publicised the quadruple locks that supposedly protect religious individuals and organisations. One of those so-called locks is the protection from compulsion, which is supposed to ensure that religious individuals and organisations will not be required, under any circumstances, to conduct same-sex marriages if they object to them. This protection from compulsion is given for two different situations. First, in Clause 2(1), there is a prohibition against compelling any organisation to take the necessary procedural step of opting in, which would enable them to go on to conduct the actual ceremonies. Secondly, in Clause 2(2), there is a prohibition against compelling any person to “conduct” or “participate in” the same-sex marriage ceremony. At first sight, the lock appears comprehensive and wide-ranging, and the Government would have us believe that this is so. However, in reality, the lock is very narrow in scope because there is absolutely no definition in the Bill of “compelled”. That omission creates uncertainty and possibly limits the scope of protection offered by the clause.
This concern was recognised by the Joint Committee on Human Rights, of which I am a member, in its recent report on the Bill. The report is perhaps interesting in that it is unanimous, despite members of the committee holding different views on the principle of the Bill. Paragraph 69 recommends that the Government reconsider the issue,
“as to whether religious organisations”— or people—
“may suffer some form of detriment as a result of their position on same sex marriage in a number of contexts which fall outside the scope of the Bill”.
Such reconsideration would, in my view, include considering whether to bring forward amendments such as those that we see today.
The new clause proposed in Amendment 17 would clarify the meaning of “compelled” for the purposes of Clause 2 and thus ensure that the lock provides the breadth of intended protection. The need for clarification was made more evident by the Minister during the Public Bill Committee, when he said that the meaning of “compelled” was,
“absolutely not borrowed from the Matrimonial Causes Act”.—[ Official Report , Commons, Marriage (Same Sex Couples) Bill Committee, 28/2/13; col. 280.]
This statement makes it unclear where, if anywhere, the word “compelled” has a legislative precedent. In the limited case law that is available in other contexts, protection from compulsion essentially provides protection only from the imposition of a criminal penalty.
For example, individuals are protected from being compelled to incriminate themselves when giving evidence in court. Clause 2 is therefore likely to protect individuals and organisations from criminal punishment but it is unclear what else individuals and organisations are protected from. The Explanatory Notes state that compulsion,
“would include, but not be limited to, attempts to use criminal or civil law, contractual clauses, or the imposition of any detriment to force a person to carry out such an activity.”
However, Clause 2 as currently drafted does not reflect the Explanatory Notes and may not prevent public bodies treating religious organisations less favourably if they decide not to opt in to the same-sex marriage provisions.
I just want to ask my noble friend to look at history and recall the number of times—as I made clear in the earlier debate—promises have been broken with regard to the conscience. Time and again, from the Abortion Act onwards, people have been promised that they would be protected and that their right to a conscience would not be taken away. However, we have watched that happen for the past 50 years. We must look not just at the Bill when it comes to promises, but at this road full of broken promises that has led up to it.
I am grateful to my noble friend for her intervention and I will look back—I am afraid as a newer member of your Lordships’ House—at the history to which she refers.
The decisions where an organisation can be treated less favourably can be in situations where they are refused contracts, denied the use of public halls or denied funding. The Minister reiterated the narrowness of the behaviour covered in the Bill in the Public Bill Committee when he said that Clause 2 would have,
“the effect of preventing any type of conduct that would have the effect of forcing a person to do something protected under that clause”.—[ Official Report , Commons, Marriage (Same Sex Couples) Bill Committee, 28/2/13; col. 280.]
Therefore, as long as the local authority is merely registering disapproval of the organisation’s views, or penalising the organisation, but is not attempting to compel it to opt-in to provide same-sex marriage, then the religious organisation has no protection under the Bill as currently drafted.
However, the Government’s response is that the religious group need not worry as such detrimental behaviour falling short of forcing it to do anything would be unlawful discrimination by the local authority and the charity would have a remedy for this under the Equality Act. As I mentioned at Second Reading, expecting a charity to swap money, potentially from food banks, to legal fees to fight legal claims is not consistent with the state’s duty, performed in this instance by the local authority, to promote a plural civic square. Such funding reallocation is not, of course, in line with any growth in the big society and is diametrically opposed to the impact assessment of the Government which is the aim of removing the threat of litigation. The impact assessment means that the Government do not want religious groups being defendants in proceedings, so why are they advising the same religious groups to be the claimants in discrimination proceedings?
Just on a straightforward dictionary definition of compulsion, such unfavourable treatment as I have outlined is not, despite the Minister’s comments, covered. It is vital that the meaning of “compelled” is clarified in the Bill because the concept of compulsion is central to the Bill’s religious freedom protections and is not as readily understood as the Government assert.
In Committee on Monday there were many assertions about the effectiveness of the Equality Act, ranging from “foolproof” by the noble Lord, Lord Lester, to “shot through” by the noble and right reverend Lord, Lord Carey. This amendment would remove the need for a small charity to incur the expense of legal proceedings to establish that such detrimental behaviour is discrimination under the Equality Act. Surely the avoidance of litigation is a good thing.
This new clause will provide the necessary clarification and thus protect religious organisations from all legal penalties, criminal and civil, if they decide not to opt-in. It will ensure that religious organisations do not suffer at the hands of public authorities by making it clear that public authorities will be acting ultra vires if they penalise religious organisations for not opting-in. The onus is properly placed on the state not to act to the religious group’s detriment and not on the religious group to take action against the state. The new clause enshrines in statute the Government’s assurance that religious organisations will not be penalised in any circumstances for deciding not to opt-in to providing same-sex marriages if they object to them. Without further clarification in the Bill, the lock may not turn out to be much of a lock at all.
In relation to Amendment 18, it may be helpful if I turn from locks to keys. The key to a claim under the Human Rights Act, the Equality Act or judicial review is that the decision or action carried out by the religious organisation is clarified as a public function. Amendment 18 is necessary because, without it, religious organisations will be at risk of legal action on the ground that the decision to opt-in may be held to constitute a public function. As the noble Baroness, Lady O’Loan, has already explained, ministers in religious organisations outside of the established church can be authorised persons and thus conduct marriage ceremonies that are both religious and legally recognised. Such ministers, therefore, perform a public function. As the noble Baroness, Lady O’Loan, outlined, that was the understanding of the right honourable Jack Straw when he introduced the Human Rights Act and spoke in the other place. However, in the context of the established church, this was also the view obiter of four Supreme Court judges in the case of Aston Cantlow v Wallbank. In delivering his judgment, Lord Hobhouse said:
“Thus the priest ministering in the parish may have responsibilities that are certainly not public, such as the supervision of the liturgies used or advising about doctrine, but may have other responsibilities which are of a public nature, such as a responsibility for marriages and burials and the keeping of registers”.
“The parish priest, if he is also acting as the authorised person, is only performing a public function when he registers the marriage, not when he is conducting the liturgy. These are separate functions and we do not believe that the courts would have difficulty in finding them to be so”.
With respect, I disagree, and so do the lawyers. I put on record my thanks to Professor Chris McCrudden of Blackstone Chambers, a former professor of human rights law from Oxford, whose advice has been given to the Catholic Bishops’ Conference. I think that two or three comments will highlight the fallacy in the Government’s argument.
Only marriages valid under UK law, not merely religious marriages, should be entered on the register by a priest or an imam as the authorised person. If the priest conducted a marriage recognised under UK law during the liturgy, surely that was also the performance of a public function? Why does government guidance to authorised persons given in December 2012 outline the contracting and declaratory words that must be exchanged in the ceremony? It is because this is not just liturgy; it has to contain certain promises to be a marriage, and the authorised person performs the role for the state when he or she oversees and witnesses that these words are in fact included in the ceremony. Finally, if a spouse were to die after the ceremony but before the signing of the register, they are married under UK law. It is not merely the registering of the marriage which is the public function.
Perhaps the confusion has arisen for the Government in the name “registrar” in this context. When the state registrar registers births and deaths, they record merely the fact that an event has occurred, but their role in the marriage context is different. They witness and oversee the formation of the marriage, then later record the fact that the marriage has happened in the register. It is rather like the school classroom: the register is taken and that is recording merely the reality that you are physically present in the classroom. The religious and civil functions are not as easily separable as the Secretary of State would have us believe. A court is highly likely to find that the religious organisation is a hybrid body when officiating in marriage ceremonies.
In addition, the Joint Committee on Human Rights concluded that,
“the solemnisation of legally-binding marriage by any religious organisation under the provisions of the Marriage Act 1949 may be a public function”.
Given that it is highly likely that a religious minister conducting a legally recognised heterosexual marriage will be held to be exercising a public function, of course conducting same-sex marriages will also be a public function. So it is arguable that when religious organisations make the decision to move from performing only heterosexual marriages to performing same-sex marriages as well, that decision could also be a public function.
I am a little confused again. Is the noble Baroness saying that the quadruple lock is not secure? Unless I am absolutely wrong, I understood the position of the Church of England to be that the quadruple lock is robust and secure. I am not sure what she is arguing.
I thank the noble Lord for that helpful intervention. That has been the Government’s position looking at the established church but there is a different situation for those who are authorised people. Generally in our law, you can get married at the registry office, or at the hotel with the registrar there, or you can marry without any intervention of the state when the banns are read in the Anglican Church. In addition, there is a whole group of people and religious organisations—for example, the Catholic Church and Pentecostal churches—which do those marriages as authorised people. They can decide whether to opt in to do this. First, that places them in a different legal context for conducting marriages. Secondly, the Anglican Church can make no decision at all to opt in; in the Bill it is not allowed to. These groups in the middle, many of which are in the ethnic minority community, are in a very different legal position from the Anglican Church.
The risk that religious organisations face when they move from conducting only heterosexual marriages to also conducting same-sex marriages as a public function is exacerbated by the fact that the decision to opt in is not like a decision by a private members’ club where you can look at the rule book and say that the decision was made based on the rules. The discretion to make a decision is in this statute which lends to the argument that it is a public discretion that these organisations would be acting on. The Joint Committee on Human Rights did not come to a firm conclusion on this matter because of a divergence of opinion. However, I believe that helps the case for this amendment. The divergence of opinion makes this amendment necessary because the basis of litigation is a divergence of legal opinion. The Government need to give some reassurance to these religious organisations because without this amendment the lock provided in Clause 1 could be ineffective.
I apologise again to the noble Baroness. I am trying to get to the core of the mischief here and I am just not getting there. Is she saying that Church of England registrars are not covered by this and that this is for the general pool of registrars who are conducting the registration?
If you attend a Catholic church, the authorised person is the registrar. No one comes from the local authority’s office. That person performs that public function and the registry office is not involved. It is the obligation of the priest to fill out the register and to return it quarterly to the local authority’s office. No local authority official is present at all. Interestingly, the Catholic Church expressed concern to the Joint Committee on Human Rights—I have heard this concern from other religious organisations—that unless we get clarity in the Bill religious organisations may consider not conducting these marriages at all because they believe the only way to protect themselves is to not be the registrar. That, of course, would have resource implications for the Government.
I am asking the Government to throw away the public function key—the key to actions under the Equality Act, the Human Rights Act and judicial review—and avoid this threat of litigation which would discriminate against some of the nation’s smallest charities. The Joint Committee on Human Rights has urged the Government to consider formulating a new clause to provide additional reassurance to any religious ministers or office holders who perform the dual function of officiating on a marriage in a spiritual capacity as well as performing the public function of the registrar under the Marriage Act 1949.
We have ended up in a situation, by responding quite rightly to the concerns of the established Church, whereby other Christian denominations and other faith groups believe that they do not now have the same level of protection as the Church of England and the Church of Wales. It is important that other religious organisations and individual ministers of other faith groups have the same level of protection as the Government have now afforded in this Bill to the Church of England and the Church of Wales.
I want to try to bring two sides together on this issue. I hope people will recognise that I am entirely in favour of this legislation and I am a practising Catholic. so I understand exactly what has been said. I have great sympathy with what my noble friend Lord Lester has said about how this might be approached by the Government. Let me say two things to the Minister. First, there is a history here of promises made and broken, as my noble friend made clear. So even if this is absolutely okay, there is a feeling that it might not be okay and we have to recognise that fear.
Secondly, there is also a history of campaigning people who seek all the time to push their point further than is reasonable. For example, campaigners have recently argued that we should withdraw aid from youth clubs run by organisations that take a strong view about homosexual practice. That is a campaign that people have suggested—that if you take that view you should not get any help from the state for your youth club. I say to my noble friend that I understand the fears that people have on this issue.
The position of the Catholic Church is particularly difficult because we have a very odd and rather noble system in Britain that has come out of our history: to ensure that it was no longer true that only Anglicans could marry, we extended it to other people via the mechanism of enabling approved persons to act as registrars. There may be an issue here and it may be that the fears that people have are correct. However, I also recognise what my noble friend Lord Lester has said: sometimes, when we try to correct this, those of us who are not lawyers—and I am proud not to be a lawyer—add things that make it worse. That is the danger here. If we are not careful we will have a sort of argument of the deaf, with one side saying, “We want to do what you want, but if we do it that way we will actually make it more difficult for you”, and the other side saying, “You may say that but we’re still worried about it”.
I ask my noble friend to recognise that even those of us who are not just marginally but very much in favour of this legislation are concerned that we should be very careful about the nature of toleration. Unfortunately, “toleration” has become a very curious word. People talk about toleration as if it means tolerating views that you happen to agree with. One of the things that we have to do is produce legislation that enables a tolerant society to accept that some people have very different views. That is not helped, if I may say so, by some of the language used by people opposed to the Bill. Some disgraceful statements have been made by people who have really not come to terms with the fact that we live in a society that should be inclusive and accepting. The churches have sometimes spoken intolerably and intolerantly. However, the truth is that there is intolerableness and intolerance on the other side as well. I will give way to my noble friend .
I agree very much with my noble friend, whom I thank for giving way, but I hope that he was not suggesting that there has been intolerance in the debates in this House. That is something that he would find very hard to prove.
I listened to the whole debate almost without exception, and there were one or two sentences that I think ought to have been withdrawn by the people who made them because there was clearly a misunderstanding about the nature of what we are talking about. However, I do not in any way suggest that my noble friend spoke in that way. I am merely saying that there is a great need at this moment to make people relearn what toleration is. Toleration is accepting the views of people with whom you disagree fundamentally and totally. We need to do that in our society.
Let me be clear: I think the amendments are unnecessary, I do not see the legal basis for them and I am not worried about this issue. However, some people are worried about it. There is another word that I would like to bring into this: “courtesy”. There is a great need in our society for courteousness to other people, and there are people here who are legitimately worried. We need to ensure that there is no reason for them to be worried. I wonder if my noble friend might do the following, which is largely to follow what my noble friend Lord Lester said: not to argue this case because, frankly, a legal case of this sort across the Floor would be unhelpful for all of us, but to go back and produce a document that answers specifically the points that the noble Baroness, Lady O’Loan, has made, so that we know exactly where we are.
If there is a concern, the bit that seems to me to have had some truth about it is the nature of the official person—the point that the noble Lord, Lord Alli, was pursuing. I think he would agree that if the official person gets denominated in a particular way, what we all want in terms of a tolerant society could easily be overcast. I wonder if my noble friend might take it away in that way, instead of continuing the legal debate, and then come back with a document, which we might all peruse, and see whether we could not, at least on this, come to a common view across the House.
I apologise to the noble Baroness for taking more than my usual length of time to understand the issue. I think I now understand where the issue arises. What worries me is the nature of what the noble Baroness seeks. It seems to me that she wants cast-iron guarantees and, although I am not a lawyer, I assume that we cannot give those in law. Certainly no government Minister, no Member of this House and no Member of the other place can give cast-iron guarantees that any religious organisation will not be subject to vexatious legal actions.
I agree with the noble Lord, Lord Deben, that there is a whole range of people thinking of ways to progress their own politics through the courts, and when they have not succeeded either at the ballot box or in Parliament, they continue to do so. I can put it no better than the noble Lord, Lord Lester, in Monday’s Committee in his rather complex and detailed legal argument. He said:
“The fact that idiots in the public sector or private sector misunderstand it is no reason for us to have to amend this Bill to deal with such idiots”.—[Hansard, 17/6/13; col. 69.]
The question is not whether these people will take up a nuisance case; that is a matter for them in a democratic society. They must have the right to take up that nuisance case. I like it no more than anyone else, but they have that right in a democracy. The clear intention of this House and of the other place can be in no doubt. We have specifically created a process to opt in so as to protect religious organisations. The Minister in the Commons made it quite clear during the Commons Committee stage when he said:
“The imposition of any penalties on or subsequent unfavourable treatment of a religious organisation or individual in order to compel that organisation to opt in to same-sex marriage is already unlawful under the Bill”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee; 28/2/13; col. 280.]
The locks in this Bill are strong and robust. The intention of this House has to be beyond question. I believe those locks are secure, and I am not sure that we can help the noble Baroness with an assurance that there will be no legal action over these cases.
I will respond to the noble Lord, Lord Alli. I am not seeking a cast-iron guarantee. I have previously been a lawyer, so I know how people can look at us, but there seems to be a case for some sensible, straightforward language in the Bill that could avoid—as we have put it—a situation in which small charities have to take discrimination claims to deal with that kind of behaviour, and it would provide that reassurance.
My Lords, I entirely understand the concerns that have been expressed by the noble Baronesses, Lady Berridge and Lady O’Loan, and others. My view is that those concerns are unwarranted. As I understand it, three issues have been raised. The first is the public sector equality duty, under Section 149 of the Equality Act, which requires:
“A public authority must, in the exercise of its functions, have due regard”, to equality considerations. “Due regard” must require primary consideration to be given to other legislation—in particular, the legislation before us. I regard it as unlikely in the extreme that this public sector equality duty could impose a duty or even confer a power on a public authority to penalise a person or a body for declining to be involved in same-sex marriage, when the whole point of this legislation, and a fundamental feature of it, is that a person should not be compelled to do so for religious reasons. It would be extraordinary for a court to rely on a public sector equality duty.
The second concern was about Clause 2(6) and the exclusion of public functions, and that this does not cover the decision whether to opt in. There is a good reason for that. In very simple terms, marrying a person may well be a public function, as Clause 2(6) recognises. However, a decision to opt in or not is not the exercise of a public function. It is not, of itself, a service to the public but a decision whether to rely upon and maintain a statutory immunity given by this legislation. Any argument to the contrary would conflict with the content and purposes of this legislation, and so is extremely unlikely to be accepted.
The third concern that we are dealing with in this group of amendments is the suggestion that the legislation should clarify the meaning of “compulsion” in Clause 2(1). For a public authority to impose a detriment on a person for refusing to undertake an opt-in activity or to refrain from undertaking an opt-out activity would plainly amount to compulsion in this context. The reason for that is very simple: it would impose legal pressure on that person when one of the central purposes of this legislation is to protect religious freedom.
I entirely understand—I hope courteously—noble Lords’ concerns. The noble Lord, Lord Deben, rightly reminds us that we should be courteous about this, but let us not just be courteous but realistic about the risks and concerns that have been expressed.
My Lords, I courteously recognise the forensic skills and deep legal knowledge of the noble Lord, Lord Pannick, and of my noble friend Lord Lester. However, my noble friend Lord Deben mentioned times in the past when assurances were given, in good faith, from Dispatch Boxes in both Houses, but have not measured up. Therefore, the recognition of the noble Lord, Lord Pannick, of the validity of the concern of the noble Baroness, Lady O’Loan, and my noble friend Lady Berridge, should be taken a step further. I should like to make a suggestion that builds upon what the noble Lord, Lord Deben, said. He and I do not agree on the fundamentals of the Bill, but he made a conciliatory and helpful speech this afternoon and we should thank him for that.
I inferred, from the speeches of the noble Baroness, Lady O’Loan, and my noble friend Lady Berridge that neither is likely to push this to a Division today. I hope that is the case. As I said on Monday, this House is at its best when it has long debates in Committee and votes on Report, when there has been proper opportunity to reflect on what has been said. I shall not be able to be present later today, for which I apologise. I hope that after this, when my noble friend Lady Stowell responds to this debate, she will undertake not only to reflect most carefully on what has been said by the noble Baroness, Lady O’Loan, and my noble friend Lady Berridge, but to call them in, with others who share their concerns, to ensure that on Report we will be able to make it plain in the Bill, beyond any shadow of a doubt, that the assurances that have been given will not only be honoured but be capable of being honoured.
I withdrew an amendment on Monday night following assurances from the noble Baroness, Lady Royall, and my noble friend Lady Stowell, when I sought to add Roman Catholic priests to the definition of the clergy. I did so for many of the same reasons advanced by my noble friend Lady Berridge. There is concern—real worry and anxiety—in this House and in the country. The Bill will make its way to the statute book; of that I have no doubt. I regret that but, as a good democrat, I accept it. However, I want it to give the strongest possible protection to those who in all conscience cannot accept the fundamental statement that same-sex marriage is the same as marriage between a man and a woman. I urge my noble friend, when she comes to wind up this debate—
I hope I am not interrupting at the wrong moment, but will my noble friend agree that we have to think carefully about the role of judges and the role of the legislature? It is the legislature’s role to make the law and the judges’ role to interpret it. Having heard, for example, the noble Lord, Lord Pannick, with whom I entirely agree, I cannot imagine—I do not know what these breaches of faith in the past amount to; no one has explained what they are talking about—that the independent judiciary would not interpret the legislation as it is now drafted in accordance with its object and purpose. Were there to be any breach of assurances by Ministers, under the Pepper v Hart regime that could, if necessary, be brought to the attention of the courts and they would take that into account. Should we not, when we are making laws, try to make them clear, but at the same time recognise that in the end they are to be interpreted by a wise, independent, enlightened judiciary?
Of course, but it is not unknown for a wise, enlightened, independent judiciary, which I strongly defend, to conclude that Parliament has not indeed been clear, and therefore it is very important that Parliament should be clear. We talked about locks, triple locks and quadruple locks. I think that there are very few locks that my noble friend Lord Lester and the noble Lord, Lord Pannick, are not capable of unpicking. We want to bear that in mind. It is very important indeed that this Bill, when it passes on to the statute book, has the full guarantees which I am sure my noble friend, in all honesty, wishes it to have.
To return to the point that I was making when my noble friend Lord Lester so courteously interrupted me, I hope that my noble friend, when she comes to wind up, will not only reflect on the concerns, and undertake further to reflect after this debate, but that she will give an opportunity for the noble Baroness, Lady O’Loan, my noble friend Lady Berridge and others to meet her and her officials to discuss these points in detail.
My Lords, although this has been an immensely courteous debate, I would start by wholeheartedly agreeing with the statement from the noble Lord, Lord Deben, about the need for tolerance and respect for the views of people with whom we fundamentally disagree, both inside and outside this House. It is important that all sides of the House recognise that.
The noble Lord, Lord Cormack, quite rightly said that it is important for Parliament to be clear so that the judges can take a view as regards what happens in the courts. From this side of the House we believe that the Bill as drafted is absolutely clear, including the meaning of the word compelled as referred to in Amendment 17. We believe that it would be readily understood and interpreted by the courts as such and that it needs no specific definition in this context. As my noble friend Lord Alli said, the Minister in the other place has given some helpful assurances about the Government’s intention regarding protection against compulsion, which I am sure the noble Lord will reinforce today, as well as clarifying that the definition has not been borrowed from the Matrimonial Causes Act.
Clarity is important but, as I said, there is already clarity in the Bill. That is not to say that I dismiss the concerns expressed around the House today. I am sure that the Minister will be able perhaps to assuage those concerns today; but if not, that he will come back on Report and, in the mean time, perhaps put something in writing. The suggestion made by the noble Lord, Lord Lester, that there should be something substantive before Report was a good one.
On Amendments 13 and 18, I say to the noble Baroness, Lady O’Loan, that I was confused about whether she was speaking on behalf of the Joint Committee on Human Rights. It is clear from the exchanges across the Chamber that there were disparities of view in the committee.
I beg the noble Baroness’s pardon. It is interesting that both noble Baronesses, and the noble Lord, are members of the committee.
We are clear that Amendments 13 and 18 are unnecessary. We believe that they would add confusion to the law. As the noble Baroness said, the public sector equality duty is a duty to have “due regard”, not a duty to act. The due regard must balance discrimination on the grounds of sexual orientation equally with discrimination on the grounds of religious belief. It would not permit a public body, even with the intention of eliminating discrimination on grounds of sexual orientation, lawfully to treat a religious organisation less favourably on account of its beliefs about same-sex marriage. Furthermore, the authority would be in breach of the clear protections in the Bill that will permit religious organisations to remain outside the system of same-sex marriages.
As the noble Lord, Lord Lester, said, the Equality Act 2010 is a carefully crafted piece of legislation, thanks to many noble Lords present in the Chamber today. It established a balance between protection against discrimination on grounds of religion or belief and protection against discrimination on grounds of sexual orientation. To single out one belief—that marriage should be between a man and a woman—risks undermining the protection afforded to religion as a whole, with its entirety of beliefs and practices, because it sets up this one belief as requiring explicit protection. Therefore, Amendment 13—and Amendment 18, which seeks to achieve a similar effect—would prove unhelpful and unnecessary.
My Lords, I will start by thanking the noble Baroness, Lady O’Loan, my noble friend Lady Berridge, and the noble Lords, Lord Singh and Lord Hylton, for bringing the amendments before your Lordships’ House in Committee. It has given us an opportunity for a very useful debate, which has been conducted in a very courteous fashion. It was clear that genuine concerns were being expressed. What is interesting is that there is no distinction anywhere in the debate between the objectives of what noble Lords wish to see. It is very clear that religious freedom, including the rights of religious organisations that do not wish to opt in, should be secured.
I will take the advice proffered by my noble friend Lord Lester and not reply to every point. However, it is important that I reply to some of them. My noble friend referred to Pepper v Hart, but we cannot get to that stage if we do not in fact say anything. I will also take up his suggestion, echoed by my noble friend Lord Deben, of putting in written form the points that were raised and my responses.
Amendment 13 seeks to ensure that no religious organisation or individual is penalised by a public authority simply because it has exercised its rights under the Bill to not offer or facilitate same-sex marriages, or because it has expressed the view that marriage should be only between a man and a woman. My noble friend Lady Berridge indicated that there was an anxiety that other religious denominations wished to have the same kind of safeguard and security as has been afforded to the Church of England and the Church in Wales. As I indicated to my noble friend Lord Cormack when he moved an amendment on Monday, there is a historic reason for the distinction for the Church of England and the Church in Wales: namely, the duty on priests in these churches to marry people in their parish. This duty is not incumbent on priests, ministers or imams in other religions and faiths.
The specific context of this amendment is Section 149 of the Equality Act 2010, which places a duty on public authorities to,
“have due regard to the need to … eliminate discrimination … advance equality of opportunity … and … foster good relations between persons who”, hold or do not hold particular protected characteristic.
It is absolutely right—I think that this has been echoed on all sides of your Lordships’ House—that religious organisations and individuals should be free to express their beliefs about same-sex marriage, and to make the decisions protected by this Bill about whether to conduct or participate in same-sex marriages, without fear of repercussion or penalty of any kind. I hope I can clarify for your Lordships that, as the law stands, a public authority would in fact be acting unlawfully if it attempted to rely on the public sector equality duty to treat a religious organisation adversely simply because that organisation did not wish to conduct same-sex marriages, as is explicitly allowed under this Bill.
A policy of penalising people or organisations which have religious or philosophical beliefs with which a public authority disagrees would in itself be discriminatory. One element of the duty is to have due regard to the need to eliminate unlawful discrimination. It is not meant to be itself an instrument to discriminate unlawfully. For a local authority, for example, to withdraw meeting facilities from a church because it decided not to offer same-sex marriage would be likely to be unlawful direct discrimination because of religion or belief. We believe that it would be subject to successful legal challenge, a point made by the noble Lord, Lord Pannick.
The noble Baroness, Lady O’Loan, commented that there is nothing in the Bill which states that it would be unlawful for a public authority to punish a religious organisation which had not opted in. The courts have considered the question of whether a local authority can use equality legislation to punish an organisation with views of which it disapproves. In the case of Wheeler v Leicester City Council, the council banned a rugby club from using its ground after some of its members attended a tour of South Africa. It used the then Race Relations Act to justify its decision. The case went to the House of Lords, which held that the decision was irrational and that it was an improper purpose, because the members of the rugby club were legally entitled to go on a tour, just as an organisation is entitled not to opt in. I believe that the reasoning in that case to have a clear read-over in this particular case. Similarly, a local authority could not have a policy of refusing to promote staff who have expressed a belief that marriage should only be between—
My Lords, obviously they cannot yet have been sacked because of this legislation, because it is not yet an Act. As my noble friend may recall, we debated the position of registrars at some length on Monday evening. The explanation given then was that registrars perform a public function. As was pointed out by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, judges, who also exercise a public function, are not allowed to pick and choose which cases come before them. Similarly, a local authority could not have a policy of refusing to promote staff who have expressed a belief that marriage should only be between a man and a woman. This would be unlawful direct discrimination, and the equality duty requires public authorities to have due regard to the need to eliminate such discrimination. The equality duty cannot make lawful an otherwise unlawful or oppressive act.
My noble friend Lady Berridge quoted the impact assessment regarding the threat of litigation. It is of course not possible completely to rule out any possibility of somebody bringing legal proceedings. I think it was the noble Lord, Lord Alli, who pointed out—and as my noble friend Lord Lester quoted on Monday—some authorities do idiotic things. No legislation can provide for every eventuality. However, we believe that the Bill minimises this possibility as far as possible by making it absolutely explicit that those relying on Clause 2 are permitted to refuse to be involved in solemnising same-sex marriages. There would indeed be no cause of action. We believe that an application for strike-out could be made early in any proceedings, as there would be no reasonable prospect of success in such claims. The noble Baroness, Lady O’Loan, said that the inclusion of Clause 2(5) and (6) and the protection they provide undermine the protection which we believe is already in place with regard to Section 149 of the Equality Act 2010.
The amendments to the Equality Act 2010 in Clause 2 provide that it is not unlawful discrimination to refuse to carry out acts specified in Clause 2(2). These specific exceptions are provided to ensure that the Equality Act is not in conflict with the protection provided in Clause 2, so that the law is clear and consistent. This aspect of the Equality Act is the only area of legislation which requires this explicit treatment, as otherwise it would conflict with Clause 2.
We should also remember, as the noble Lord, Lord Pannick, indicated, that the equality duty is a duty only to have regard. It is not in itself a duty to act, but rather a duty to think. It does not require that particular action is taken or that any specific objective or outcome is achieved. As the noble Lord said, “having regard” also means that we have to have regard to primary legislation, such as what would be in this Act if the Bill is enacted. I hear what my noble friend Lady Knight says about concerns that sometimes guarantees do not always seem to follow through many years later. However, what we are dealing with here—I think that the noble Lord, Lord Pannick, made this point—is a fundamental part of the architecture of this legislation: namely, that there should be religious freedom not to opt in. Therefore, it would be unthinkable for a court not to have regard to a fundamental piece of the legislation we are passing. I certainly hear what the noble Baroness—
Does my noble and learned friend also agree that the Human Rights Act compels this legislation to be construed compatibly with religious freedom as defined in the European convention?
Indeed, my noble friend is right. Article 9 of the European Convention on Human Rights gives that right to freedom of religious belief and expression. The noble Baroness, Lady O’Loan, said that sometimes the courts are reluctant to second-guess public authorities. It is highly unlikely that the court would do something which is in direct contradiction of what Parliament has clearly expressed and intended not just in the Bill but in all the statements that have been made by Ministers and, indeed, by almost everyone who has participated in these debates.
It is also important to note—again, this point was made by my noble friend Lord Lester and picked up by my noble friend Lord Deben—that amendments can sometimes have unintended and adverse consequences. I know that is certainly not the intention of the noble Baroness who moved this amendment, but the equality duty applies to and protects equally various protected characteristics, including religion or belief so a public authority has to bear in mind the impact of its policies on people holding different religious or philosophical beliefs, such as the belief that marriage should be only between a man and a woman. If, as the amendment proposes, a public authority is prevented from having any regard to individuals’ or organisations’ beliefs about same-sex marriage, it would be unable to consider how its own decisions could potentially discriminate against, or otherwise disadvantage, people who believe that marriage should be only between a man and a woman. That would remove an important protection for people who hold such a belief. I know that this is not what the noble Baroness intends but it illustrates the fact that when you try to solve one problem you can create another.
As I say, I recognise the concerns that some public bodies might be overzealous or mistaken in their exercise of the equality duty or misuse it to the detriment of those who do not agree with same-sex marriage. As I have indicated, no Government can give a copper-bottomed guarantee that some public authorities will not act irrationally. It is important that we ensure that public authorities understand their responsibilities under the Equality Act 2010 correctly, and how these relate to beliefs about marriage. With that in mind, the Equality and Human Rights Commission has undertaken to review its guidance for public authorities to ensure that the position is as clear as possible. As I have said, while I appreciate the intention behind this amendment, it is unnecessary and could have adverse consequences quite at odds with its intention.
I turn to Amendment 17. The concept of compulsion is readily understood in its natural meaning, and to subject anyone to any type of detriment or unfavourable treatment because they refuse to participate in any way in religious solemnization of same-sex marriages would clearly be understood as a violation of their legal right under this Bill not to participate. We are therefore confident that Clause 2 provides strong and effective protection to ensure that religious organisations and their representatives cannot be forced to participate in same-sex marriages against their belief. The Explanatory Notes to the Bill set out the position, as quoted by my noble friend Lady Berridge: the concept of compulsion is a broad one, which would include, but not be limited to, attempts to use criminal or civil law, contractual provisions or the imposition of any detriment to force a person to carry out the activities protected in Clause 2. The clause provides no specific remedy, but makes clear that no attempt at such compulsion would be upheld.
Less favourable treatment by a public authority of a person or organisation who does something which the Bill makes clear they are legally entitled to do would, in itself, clearly be unlawful and open to judicial review. The imposition of any penalties—civil or criminal —on a religious organisation or representative in order to compel them to opt in, or to participate in, religious solemnisation of same-sex marriages is clearly unlawful under the Bill.
Clause 2 will clearly prevent criminal or civil action being taken against any religious organisation or representatives merely for refusing to undertake acts protected under this clause. This includes, but is not limited to, disciplinary or other action taken in the employment context. In all circumstances a person who has suffered a detriment simply because they have not done one of the acts specified in Clause 2 will be able to rely on the protections in that clause to show that such conduct is unlawful and to obtain a remedy within the context of the particular claim.
Finally, Amendment 18 is again unnecessary as the Bill already makes clear that the decision to opt in or not is an internal doctrinal decision. It is a matter for the religious organisation involved and—as the noble Lord, Lord Pannick, clearly said—is not a public function. The amendment seems to acknowledge this because, as it says itself, it is drafted for the avoidance of doubt. The activities mentioned Clause 2 (1) are obviously activities which are private in nature, carried out by religious organisations which are of course not public authorities. The Government are confident that no religious organisation or representative could be susceptible to judicial review or challenge under the Human Rights Act 1998 or Equality Act 2010 in this regard.
I know that the noble Baroness, Lady O’Loan, and my noble friend Lady Berridge referred to the Joint Committee on Human Rights. We will give proper consideration to the points raised and respond to the Committee, but we again believe that this is a case where adding words to the Bill might simply increase what there is to argue about, and potentially water down the protection already provided, by casting doubt generally on what functions of a religious organisation are or are not considered to be a public function.
This is made clear if we actually look at the activities which constitute “opt-in activities”. These include decisions by the relevant governing authority of a religious organisation to give written consent for marriages of same-sex couples to take place and an application by such an organisation to the superintendent registrar for the solemnisation of marriages of same-sex couples to take place in a place of worship. These are clearly private functions. If, for example, the Bill were to explain that a decision by a religious organisation to apply to register one of its religious buildings for the solemnisation of same-sex marriages is not a public function, this would raise the question as to whether such an application in respect of opposite-sex marriages is currently a public function. I hope that this again illustrates the law of possible unintended consequences. However, I accept the suggestions that have been helpfully made. We will seek to put together a letter or document to respond to the different points that have been made. If, on receipt of that—
If my noble friend had allowed me to finish the sentence that I had started when he intervened, I would have said that, having received it, those who wish to pursue this matter further in discussion with myself and my noble friend Lady Stowell—
My Lords, I do not wish to be consulted, but I suggest that the document or letter is put into the Library so that it is in the public domain. Otherwise it will not appear in Hansard.
My noble friend has taken part in the debate and I usually make it a matter of practice to send a copy to everyone who has taken part. The noble Baroness, Lady Royall, makes a constructive suggestion. I will make sure that it is put in the Library and if, on the basis of the letter and follow-up, it is thought that a discussion would be necessary or wanted, I would certainly be happy to accommodate that. In the light of these comments and the reassurances that we have sought to give, I hope that the noble Baroness will feel able to withdraw her amendment.
My Lords, I thank noble Lords who took part in this debate. The noble Lords, Lord Lester and Lord Alli, and various other noble Lords have emphasised the need for clarity in legislation. The Bill, as drafted in the House of Commons, is already subject to amendment by the Government. It is clear that there are situations in which law which is drafted in the first instance by draftsmen requires clarification. That is why the House exists.
This particular piece of legislation falls at the interface of a number of different human rights—rights of religion and other rights. That is why it is so difficult for the House. The Bill seems to be based on the assumption that the act of marrying is separate from the act of registering a marriage, and the noble Baroness, Lady Berridge, demonstrated quite clearly that that is not the case. It is one single act. It is that which raises the whole spectre of public function. I raised this issue and specifically asked the Minister at Second Reading about the risk attached to the public function obligations of religious organisations that are in that hybrid position—those other than the Church of England and the Church in Wales. I did not get any answer to that question.
In the context of the Bill, we are looking not only at the acts of marriage but at the unintended consequences of the legislation before your Lordships’ House. They go much further than the act of conducting or permitting the conducting and so on of a marriage. They go to the whole remit of public authorities in funding, enabling and resourcing organisations such as youth clubs and schools, and in teachers’ ability to speak freely. We have a number of amendments still to come before the Committee in this context. My amendments would have dealt with some elements of these issues but there are other amendments that relate to them. I put it to the Committee that the issues are not quite as clear as some noble Lords would wish to state.
The fact is that there is a clear distinction in the legislation between the Church of England, the Church in Wales and other churches that solemnise marriage, which is that the Church of England and the Church in Wales are not in a position in which they will decide whether to opt in or out without further legislative process outwith this Parliament. That is what makes the difference and it is why we have the quadruple lock for the Church of England, which is not a sufficient lock for other churches. That is why I have tabled these amendments.
I do not wish to be in any way contentious or to delay the House but I cannot help remembering that the Catholic adoption agencies that have now closed as a consequence of legislation were also argued for on the basis of religious freedom. That argument was lost and there is no religious freedom there in the provision of services. It is profoundly important that we ensure that we do not further create very difficult situations. I will therefore, for the moment, withdraw and not move my amendments but reserve the right, having heard what the Minister had to say, to come back to the House on Report. I beg leave to withdraw the amendment.
Amendment 13 withdrawn.
Amendment 14 not moved.
Moved by Lord Carey of Clifton
15: Clause 2, page 4, line 20, at end insert—
“( ) A person does not contravene section 29 only because the person—
(a) does not conduct a service of blessing for a relevant marriage, or
(b) is not present at, does not carry out, or does not otherwise participate in, a service of blessing for a relevant marriage, or
(c) does not consent to a service of blessing for a relevant marriage being conducted, for the reason that the marriage is the marriage of a same sex couple.”
My Lords, before I address the amendment, perhaps I may refer to an earlier speech by the noble Baroness, Lady Berridge, in which she referred to me personally, I think in relation to Amendment 9. What she did not know was that I had withdrawn my name from that amendment and I think that the reference should have been to the noble Lord, Lord Dear.
The Government have been at great pains to stress that the Bill constitutes no threat to religious liberty in the sense of how religious organisations conduct themselves. I am greatly reassured by the Government’s comments and we have heard them repeated this afternoon. Nevertheless, it is an important test of the Bill that religious liberty, so defined, can stand varied tests in line with the view expressed by the Secretary of State for Culture, Media and Sport in the other place. She said:
“Our proposals will ensure that all religious organisations can act in accordance with their beliefs because equal marriage should not come at the cost of freedom of faith, nor freedom of faith come at the cost of equal marriage”.—[Hansard, Commons, 5/2/13; col. 128.]
The Minister, the noble Baroness, Lady Stowell of Beeston, told us that,
“no religious organisation or individual can be forced to conduct or participate in a religious marriage ceremony of a same-sex couple. The religious freedom of those organisations and individuals is protected”.—[ Official Report , 3/5/13; col. 939.]
I welcome those statements. It is absolutely right that no religious body or minister of religion should be compelled to choose between a readiness to act in violation of their faith by withdrawing from the provision of marriages or getting into trouble with the law.
In following through on this intention, however, it is important for the Government to recognise that marriage ceremonies are not the only relevant service that a religious body or minister of religion might be asked to conduct. Increasingly today people who marry outside a religious context come afterwards to a place of worship asking for a blessing. If Members of the Committee are not sure what I am getting at, they may go online and type in “blessings” and see a very good one on the Church of England site, which I have used in the past after a civil marriage. I am particularly thinking of the predicament of nonconformist and minority ethnic churches.
A blessing ceremony may sound less weighty than a marriage ceremony but the Government must understand that officiating at a blessing would be just as problematic for a faith community whose celebrants could not officiate at a same-sex marriage ceremony without violating their conscience as would officiating at a marriage ceremony. Doing so would involve the religious body or minister of religion authenticating, celebrating and affirming something that their conscience forbids them from doing. The provision of a blessing ceremony in such a context would involve the minister of religion and the religious body in question acting in direct violation of their religious identity. Such a religious body or minister of religion would have to decline to provide such a service in just the same way that they would have to decline to marry a same-sex couple.
As things stand, however, if the Bill becomes law, Section 29 of the Equality Act means that religious bodies that cannot perform same-sex marriage blessings will be in just as much trouble as a church that could not provide same-sex marriages, were it not for the fact that Section 29 is being amended for that purpose by Clause 2. The point that I am making, with apologies to the noble Lord, Lord Lester, who is not in his seat, has no belt and no braces whatever. It is entirely vulnerable. If the Government—
I thank the noble and right reverend Lord for giving way. I know that he will know the Church of England a lot better than I do but in order to conduct a religious blessing, let us say of a civil partnership, in a religious building, it is up to the House of Bishops and the General Synod to approve a liturgy. Without that approval there is no approved blessing by the Church. There is surely, therefore, a mechanism because if I am a priest I cannot conduct a blessing without a liturgy and, therefore, the synod would have to have pre-agreed that it was permitting the blessing, and without such a blessing it could not do so.
Yes. I thank the noble Lord for that intervention but I am referring to nonconformist churches which have liturgies that are laid down. In some cases, the very fact of an extempore liturgy is a liturgy itself. The point is whether it is done in a house or a church is immaterial. I am referring to a specific area that is not covered by the Bill. Such bodies would therefore be vulnerable to litigation.
That would not be possible in the Church of England, for example, where there can be no blessing without the liturgy. That could never be the case until the liturgy is approved by the synod.
The noble Lord is exactly right but I am not talking about the Church of England because there are liturgies for blessing. I am talking about other areas of church life.
Amendment 15 addresses this problem by amending Clause 2, which already inserts an appropriate protection into Section 29 of the Equality Act with respect to marriage provision. It uses an identical form of words to extend a similar protection in relation to the provision of same-sex marriage blessing ceremonies. In amending Section 29, as Amendment 15 makes clear:
“A person does not contravene Section 29 only because the person (a) does not conduct a service of blessing for a relevant marriage, or (b) is not present at, does not carry out, or does not otherwise participate in, a service of blessing for a relevant marriage, or (c) does not consent to a service of blessing for a relevant marriage being conducted, for the reason that the marriage is the marriage of a same sex couple.”
I cannot conceive of any reason why the Government or any Member of your Lordships’ House, who agrees with the Government’s commitment to protecting religious bodies and ministers of religion from officiating at same-sex marriages, could oppose Amendment 15. It applies exactly the same principles to the increasingly important area of blessing ceremonies that seem to have been overlooked in the drafting of this Bill.
I commend Amendment 15 to the House and hope that the Government and all sides of the House will feel able to support it. I beg to move.
My Lords, this is entirely misconceived. This Bill is not about blessings. The church has a right to bless or not as it likes. In my case I am referring to the Catholic church, and not the Church of England, and you can bless without any difficulty. The idea that somehow by refusing a blessing you would be subject to the law because of this Bill seems totally fallacious. You might be subject to the law according to other
Acts, but we have not found that, and if you want to change those Acts, no doubt that would be sensible. But really, this is otiose. That is what worries me. It seems perfectly proper that people who disagree with the vast majority of both Houses on this subject will seek proper protection in areas where one might be uncertain. However there is also a degree of courtesy—I am sorry to have raised that word because it will now dog me for the rest of my life—about not loading this Bill with all kinds of statements about how you do not want to be pressed in this or that way.
It is quite clear what a blessing is. It is something which the churches give as a generous offering to people who ask for it. There is no compulsion; they do not have to do it. If they refuse it, as they can in many cases, there is no question of there being any recourse to law. My father was an Anglican clergyman; he would give blessings in certain circumstances and not in others. That was because in some circumstances he thought they were suitable, in others he thought they were not. Nobody could, would, or should ever have taken him to court. Imagine the court case: “Well, old father, what did you do this for?” and the response, “These two people have been living with other people as well at the same time and so I decided not to give them a blessing”. On what possible basis does the court then say, “You should have given them a blessing”?
I say to the noble and right reverend Lord, Lord Carey, that we have to be very careful. There is a great deal of unhappiness among decent people about the attitude of some churchmen to this Bill. Therefore, for goodness’ sake, do not let us load this Bill with all sorts of bits and pieces which are not necessary. Let us protect people where the Bill affects them. Do not let us try to protect people where the Bill does not affect them, otherwise we will be doing something which is the bane of American legislation: because there is no concept of the Long Title, you can add anything you like to any Act. You say, “If you want me to vote for this, I want you to include my bit about a bridge in my constituency”. I fear that this is precisely that kind of addition. It seeks to squeeze something into the Bill which has nothing to do with it at all.
Lastly, I will say why this is very serious. If we are to take seriously the contention of some churchmen that same-sex marriages are uniquely unacceptable, those same churchmen have to be very careful that they do not spread that unacceptability to other things. A blessing is manifestly something which the churches have used to overcome the reality of pastoral care as against the reality of doctrinal belief. It ought to stay there. The last place where it ought to be reflected is in the legislation of this House and of this Parliament. Blessing is a mechanism whereby the Church of England, for example, has overcome the fact that doctrinally it believes that marriage is indissoluble, but on the other hand it has to deal with marriage as it is. That is what blessing is. Do not, for goodness’ sake, try to muck this up by adding to this Bill something which is entirely extraneous.
My Lords, this amendment is concerned with Section 29 which is related to the exercise of public functions. Whether you give a blessing or not is plainly not a public function, it is a religious function.
It is subject to a higher authority, no doubt, but that higher authority is not the Queen’s Bench Division, the administrative court and the Court of Appeal. It would be very damaging indeed to religious bodies for this legislation to suggest that Section 29 could apply to the exercise of what are plainly and simply religious functions.
My Lords, the noble Lord, Lord Deben, used the word “courtesy”. I wish to make a plea for clarity. I have said already twice during our debates that I utterly support the rights of religious organisations to take a very different view of same-sex marriage than me, as passionately as I believe that public functions need to be open to all. I regret that none of the Methodist mafia is here today—they are usually around when I need one of them—but I want to make a particular point about the nonconformist churches. We spend an awful lot of time talking about the Church of England for obvious reasons, but I do not want any of the nonconformist churches to be left in any doubt that they will be subject to some kind of compulsion when the Church of England will not be. That is absolutely not the case.
One of the reasons I wished that the noble Lord, Lord Griffiths of Burry Port, or the noble Baroness, Lady Richardson of Calow, were here would be to confirm my understanding that—on a slightly different point—the Methodist church, at its conference, is being asked to uphold the view that it will not bless civil partnerships. That is its right and, along with any other church, it will have the right to exercise the same judgment in relation to same-sex marriage.
I want to go slightly further; I hope that churches that take those decisions make it known publicly and loudly that that is their decision. I have spent my life very seriously observing the rights of religious people and trying not to offend them. It is not my intention, as a gay person, ever to offend somebody who holds that religious viewpoint, but I would like churches to make it abundantly clear to me, as a gay person, what their view is, so that I may lead my life in a way that does not directly offend them.
My Lords, I agree with the noble Lord, Lord Deben, that, as legislators working on the Bill, our duty is to protect those who will be affected when it is enacted and not others. Section 28 of the Equality Act 2010 provides for a clear exemption for services provided in relation to marriage and civil partnership from the Section 29 duty not to discriminate. This will not change under this Bill. I therefore expect the Minister to confirm that a refusal to conduct a blessing of a same-sex marriage would be considered a “related service”, and thus protected under existing provisions within the Equality Act 2010. Therefore we believe that Amendment 15 in the name of the noble and right reverend Lord, Lord Carey, is unnecessary.
My Lords, I thank the noble and right reverend Lord, Lord Carey, for flagging this issue so that all of us can answer it with clarity. Amendment 15 seeks clarity that the refusal by a religious organisation or its representative to conduct a service of blessing of a marriage of a same-sex couple would not be considered unlawful discrimination under the Equality Act 2010. The amendment distinguishes between the legal act of solemnisation of a marriage and a religious blessing which does not have legal effect. The amendment is intended to ensure that there is no requirement to conduct such blessings. As with the last group of amendments, we are in agreement on the aim of protecting religious organisations, and I am glad that the noble and right reverend Lord was reassured by much of the previous debate, on that matter.
As the noble and right reverend Lord recognised, the Government are determined that, in opening up the institution of marriage to same-sex couples, they will protect and promote religious freedom, as other noble Lords have said. The Bill ensures that religious organisations and their representatives will not be forced to conduct or participate in same-sex marriage ceremonies. The quadruple lock in this respect amends the Equality Act 2010 to make clear that it is not unlawful discrimination for a religious organisation or representative to refuse to marry a same-sex couple, and I remind the noble and right reverend Lord that these protections apply beyond the Church of England, as my noble friend Lady Barker made very clear.
The amendment is unnecessary because it is already covered by the Bill, and I thank my noble friend Lord Deben and other noble Lords for their support. Clause 2(2) provides that a person cannot be compelled to carry out, attend or take part in a “relevant marriage”. A relevant marriage is defined in Clause 2(4)(a)(iv) as “including any ceremony” connected with the solemnisation of a marriage of a same-sex couple according to religious rites as well as—this is most important—a religious ceremony after a civil marriage of such a couple. The existing religious protections in Clause 2 therefore apply to a blessing of a marriage, which is the same target of this amendment.
In addition, as the noble Lord, Lord Pannick, and the noble Baroness, Lady Royall, explained, and I can confirm, in any event, the conduct of a service of blessing is not something on which the Equality Act 2010 bites, as being purely a religious matter outside of the scope of that Act in the same way that baptisms or the provision of communion are religious issues not covered by discrimination law. So any kind of blessing of a marriage which has no legal effect would not be covered by discrimination law and does not need protection in the way that the amendment envisages.
I am not sure if my noble friend was in his place for the earlier debate, but we had quite an extensive discussion. He may be interested in reading the letter that will be put together by my noble and learned friend.
Yes, it comes free. When the noble Baroness replied to the noble Lord, Lord Tebbit, she may have had in mind not only what was said in the previous debate but also the fact that at common law, as was said in that debate, it is quite clear that for a public authority to misuse its powers punitively is itself a public law wrong. The case quoted was that of Wheeler, but there have been others such as, for example, when Rupert Murdoch was penalised by a public authority so far as advertising was concerned. It was also when Shell was penalised because of a boycott. They were cases where public authorities were doing public law wrongs, and in my opinion that would apply equally at common law so far as this is concerned.
I find it amazing that my noble friend Lord Lester knows what is inside my head when I myself do not necessarily know what is inside it, and I appreciate his understanding. Coming back to the amendment that we are addressing here, I hope that the noble and right reverend Lord is reassured by what I have said, and by what other noble Lords have said in addition, and that he will be willing to withdraw his amendment.
My Lords, I am grateful for this brief debate and I agree with the noble Lord, Lord Deben, that courtesy and respect are very much at the heart of what the House of Lords does and the way in which we do our business. However, as a House we have to listen to the concerns of many of the people out there; people who we know. I can assure noble Lords that I did not concoct this amendment because I was personally associated with it. I did so because of the many concerns that people have. I would differ from the noble Lord, Lord Deben, in his view that this is quite different from the Marriage Act 1949. It is not, because the people who do the blessings are doing so over the marriage itself. Nevertheless, what I gained from this brief debate is a clear assurance that people have nothing to fear. That is now on the record, particularly the view of the noble Baroness that it is unnecessary because it is covered by the Bill. With that assurance, I beg leave to withdraw the amendment.
Amendment 15 withdrawn.
Amendments 16 to 19 not moved.
Clause 2 agreed.
Clause 3 : Marriage for which no opt-in necessary
Moved by Lord Harrison
19A: Clause 3, page 4, line 38, at end insert—
“(cc) a marriage of any couple conducted according to the usages of an approved organisation;”
My Lords, I shall speak also to Amendments 22A and 27A. I am so sorry that the noble and right reverend Lord, Lord Carey, has departed because I was reminded during the course of the debate today that one of the shorter and most interesting aphorisms of William Blake was, “Damn braces: Bless relaxes”. Given the necessity for belt and braces which has been expressed by so many colleagues, perhaps it would have been apposite today. I, too, seek a blessing for the amendment that I would like to introduce.
The amendment would allow humanists to have a wedding fashioned to reflect their humanist beliefs. It would allow those marrying to have a celebrant who is himself or herself a humanist—one of their own kind. The amendment would also allow such humanist marriages to be open to both gay and heterosexual couples, which is consistent with the Bill, for which I am a strong advocate. Indeed, it would have allowed me and my wife, who have been happily together for 40 years, to have celebrated our own commitment and unshakeable love in a marriage of true minds. This amendment is, indeed, an affair of the heart, which brings heartache to none.
This amendment is in line with a succession of reforms over the centuries that have responded to inequalities of the law, or rather to growing sensitivity to such inequalities. The modern law started with Lord Hardwicke’s Act of 1753, but since then there have been 45 items of primary legislation that are still on the statute book, 27 of them in the present reign, as well as many that have been completely repealed. Many of them widen the choice of methods by which one can marry, gradually relaxing the original rule that virtually everyone had to marry at their parish church.
Today, any Christian denomination, or indeed other religion, can register its place of worship for the solemnisation of marriage. At the most recent count in 2010, there were in excess of some 30,000 registered places of worship. This total excludes the Church of England and the Church in Wales. They range from the Methodists with more than 7,000, the Catholics with 3,600, to more minor denominations such as the Unitarians with 176 and the Countess of Huntingdon’s Connexion with 15. They take in the main non-Christian religions. The Muslims have more than 900 places registered for marriage while devotees of Krishna are content with but one. Then there are the spiritualists with 323 places registered for marriages and there is the somewhat bizarre Aetherius Society with one place registered for weddings, whose website proclaims that its philosophy and teachings come largely from highly advanced intelligences from higher planes of Mars, Venus, Jupiter and Saturn, and that these cosmic masters, or gods from space, visit earth probably in flying saucers.
Every religious taste appears to be accounted for, but as the census reminds us, at least a quarter of us have no religion. What of us? Many of us are reconciled to settle for the one size fits all civil marriage introduced in 1836 in the most significant by far of those Acts that have since vanished from the statute book. Indeed, civil marriage by registrar now accounts for two out of every three marriages. For most people, it is perfectly satisfactory, but if you want to have a ceremony that reflects your own belief, then the registry office can be very unsatisfactory.
The fundamental restriction that it may not include any religious content now under the current laws of equality and human rights means that it may not either include on the part of the registrar or any other participant any content distinctive of a non-religious belief, such as humanism—added to which, of course, the presiding registrar may in fact be an ardent Christian, Muslim, or indeed a member of the Aetherius Society.
The most significant group by far of non-religious people in England and Wales who hold a positive non-religious belief are the humanists. They find it vexing that while marriages according to all religious beliefs are legally recognised, those conducted by humanists are legally invalid. A humanist ceremony may express their profoundest sentiments and commitment to each other, but it counts for nothing in the eyes of the law. To be legally married, you have to go off to a registry office and go through a second procedure.
Moreover, the British Humanist Association finds that there is a growing demand for its marriage ceremonies. The British Humanist Association will be known to many of your Lordships for its funeral ceremonies, which are highly regarded, to the extent that they are now copied with more or less success by funeral directors and even by some clergy. Its marriages, of which it conducts more than 600 a year, are notably even more special. They express humanist values and beliefs, but are individually shaped around the commitments that the humanist couple wish to make to each other in front of their families and friends. Some of your Lordships will have seen the eloquent testimonies from couples who have had such BHA weddings and how much they mean not only to the couples themselves, and to other humanists present, but even how highly they are regarded by their religious relatives who attend. If we want to underpin the importance of marriage in these changing times, one way is to make more marriages like these humanists ones. I speak as someone who has had the joy and honour of being a celebrant and conducting such a humanist marriage, albeit informally.
In order to clarify humanism and the kind of marriage we would want, I will describe what makes it distinctive. The marriage is conducted by a celebrant who shares the beliefs and values of the couple. The celebrant spends time with the couple prior to the marriage itself to know them better and better to shape the subsequent marriage. The marriage ceremony in general reflects specific humanist convictions; for example, that there is no supernatural side to this reality and that human beings in the here and now are the source of value and meaning. These are specific non-religious belief elements. Beyond the general reflection of humanist values that underlie the ceremony, the order of service is created in line with the specific beliefs and values of the couple. This itself reflects a humanist conviction about the creation of meaning in human lives. The marriage is conducted in a place of particular meaning or significance to the couple.
Scotland is relevant only because it shows the pent-up demand for humanist marriages. Since they were legalised in 2005, humanist ceremonies have soared from a few hundred a year to approaching 3,000. In 2011, there were 2,846 humanist marriages, but only 1,729 Roman Catholic ones. Only Church of Scotland and civil marriages are more popular. In 2011, humanist marriages amounted to 8.5% of all marriages and 18% of all religion or belief marriages. Moreover, if one looks at the past few years, since humanist weddings became well established, the picture is striking. In the latest three years for which figures are available—2009 to 2011—the total number of marriages in Scotland has been rising again, by 1,611, with humanist ceremonies contributing 942 marriages, 58% of that increase. Humanists stand ready to boost the pattern and practice of marriage in this country.
It is difficult to think of any reason why England and Wales should be different from Scotland. I mentioned in passing that Ireland has recently legislated to recognise humanist marriages, that a similar change has occurred in Iceland, and that Norway, Ontario, Australia and New Zealand already have such humanist marriages.
In the other place, humanist marriage was strongly supported at the Report stage of the Bill but encountered an obstacle when the Attorney-General pronounced that the version of the amendment under debate there fell foul of the European Convention on Human Rights. That version mentioned humanists specifically and the Attorney-General ruled that it would give rise to claims by other non-religious belief organisations of discrimination. As it happens, the British Humanist Association has legal advice that no such claim could have succeeded. Be that as it may, my present amendment has been redrafted to be proof against any such objection and Matrix Chambers has provided the BHA with written advice to that effect.
The present draft refers not to humanist organisations but to those advancing a non-religious belief. It might be thought that this would open the field to bodies other than humanists—there have been silly scare stories in the press about Jedi weddings and the like—but in fact it is difficult to think of any other organisation with a belief system that can meet the criteria set out in the amendment.
The British Humanist Association, which was set up in 1896 as the Union of Ethical Societies, has been running well established services offering humanist marriage for a long time. It trains, accredits, insures and provides continuing professional education for hundreds of celebrants throughout the country. These ceremonies attract a very high level of satisfaction—more than 95% of clients give them a five out of five rating. On the basis of extensive and impassioned testimony from couples who have had them, these weddings are profoundly valued as reflecting the beliefs of those who have been married and allowing them to have ceremonies devised in collaboration with the celebrant to meet their own wishes. Many are equally as eloquent about how the need to have a legal registration of their marriages detracted from the magic of the occasion. One couple wrote:
“The registry office procedure was something we had to do, not something we wanted to do. It would have been wonderful not to have to do this simply to satisfy the legal requirement as it meant nothing of significance to us and was an additional expense and inconvenience”.
Such testimony, along with the Scottish experience, shows that there is a pent-up demand for humanist weddings. Reform is supported by the public. According to a recent YouGov poll, four times as many people supported legal recognition of humanist weddings as opposed it.
It is a reform that disadvantages no one. Its cost to the public purse is close to zero. In an age of equality, it removes an unnecessary barrier based on religion or belief and it will, in no small way, strengthen the institution of marriage. The British Humanist Association has had meetings with the Government Equalities Office. I pause to thank the Secretary of State in the other place for being particularly helpful and wanting to see this legislation through when it comes here. We have had discussions with the Ministry of Justice and the Church of England. I thank colleagues from the Church of England who have had the opportunity to go into discussions with the British Humanist Association to ensure that what comes before your Lordships is appropriate and useful. The British Humanist Association tells me that it is unaware of any objection from any of them that it does not believe it has now met in the current draft. None the less, I would be very happy to consider further changes on Report. I particularly welcome the advice of colleagues from around the House so that we can look at this again, if necessary, and pursue it further.
I will conclude with a quotation from a letter from a couple from south-east London who recently had a humanist marriage:
“A humanist wedding offered us the chance to make the wedding ‘ours’, it enabled us to construct our own vows and create a ceremony that felt immediately very personal to both of us and our guests, it also portrayed exactly what marriage meant to us and how we see our marriage growing in the future ... We arranged a special ‘legal’ ceremony for the day before … our 10 minute ceremony felt rather hasty and impersonal, it certainly didn’t leave me with any feeling of having just made an important commitment to my husband. It was, as they say, a piece of paper … I personally don’t see why our [humanist] ceremony should be any less valid than any other ... our guests would attest to it being one of the most emotionally meaningful ceremonies they’ve ever witnessed, [and to] feeling like they all now play a part in supporting our relationship”.
I beg to move.
My Lords, I rise to speak briefly in support of my noble friend’s amendments and of this Bill. The noble and right reverend Lord, Lord Carey, asked noble Lords a few moments ago to listen to the people out there. We live in an increasingly diverse society and are observing shifts in our lifetime from one generation to another. When most of us were young, it was assumed that most people were Christians—or at least claimed to be. Nowadays, among young people at least, the opposite is true, and surveys and polls show that the majority are not religious. Even in the census, which was very conservative, 25% of us said we had no religion. Among the under-50s, more than 40% said so.
There are, of course, those who do not welcome this move away from religion. One consequence is that among young people with no religion—I suspect among older people, too—many nevertheless have strong beliefs and commitments that are not necessarily religious but still provide answers to questions about the importance of relationships, respect for others and moral standpoints. I would maintain that most young people have strong moral commitments at the personal and social level. What for many previous generations was expressed in Christianity, many young people today express in beliefs about respect for each other, the world and future generations.
This is relevant to the amendments that we are debating. These young people, when they marry, often wish to do so in a ceremony that expresses their humanist commitments and beliefs, and their respect for other people. Just as for many religious people the idea of a wedding in a register office is a mere legal formality compared to the vows they make to each other and to God in a church wedding, so for these young humanists it is second best to settle for a civil wedding conducted by a registrar who, regardless of his faith or lack of it, is not allowed by law to give expression to any religious belief, including humanism.
The Bill is about equal marriage. It is also about equal weddings and allowing this growing segment of our population—already growing in size, as my noble friend said—to conduct their own legally recognised weddings within the framework of their own humanist beliefs and commitments. The proposal has wide support. In Scotland, as my noble friend said, humanists conduct more weddings than any religious body apart from the Church of Scotland. A YouGov poll tells us that more than half the population support the proposal, with only 6% strongly opposed and another 6% tending that way. I understand that the Church of England told the British Humanist Association last week that they would not oppose it.
The British Humanist Association was accommodating in drafting the amendments proposed at earlier stages of the Bill and in responding to suggestions made at meetings with government Ministers and officials. The difficulties that were expressed then now seem to have been resolved. The amendment breaks no new ground in being based on an organisation rather than a building: the Jews and Quakers are already in this position. The principal concern expressed by officials at Church House last week to the British Humanist Association was that the public nature of marriage should be preserved. That is something that we can surely all endorse but it does not require a registered building, only that the place intended for the wedding is known and open to all who wish to attend. The amendment specifies “with open doors” and the location for all weddings is already included in the notice of marriage required under the Marriage Act 1949.
The proposal is not for a celebrant-based system; what the amendment says about nominating registering officers is precisely what the law says about non-Anglican churches nominating their clergy as such. There are no implications for the safeguards for religions not wishing to conduct same-sex marriages.
I am told that Bills about marriage come along about once in a generation. Let us not, through excessive caution, allow the injustice of the present system to wait for another generation to be put right.
Whenever I am asked what my religion is I reply, “I am a Church of England atheist”. I hasten to say that this is not some glib witticism, but a true reflection of my position. I do not believe in God and I am a member of the All-Party Humanist Group. However, the King James Bible, the Cranmer prayer book and Hymns Ancient and Modern are a part of my DNA. Their role in our history and their language are part of what makes our country what it is today. Consequently, when noble Lords talk about traditional marriage, I understand and respect where they are coming from.
I am a little concerned, as was my noble friend Lord Deben, that a number of religious believers in your Lordships’ House may, with the greatest courtesy, have been attempting to load up the Bill. I shall concentrate my remarks on the allegation that this amendment undermines, as it were, the whole basis of the law on marriage. As the law stands, any religion may conduct legally recognised marriages so long as they have use of a registered place of worship. Any sect of any religion that can afford a building can register it as a place of worship, and then re-register it for marriages without any obstacle whatever. In effect, provided you are a religion, you get a bisque.
Putting aside the 11 main Christian denominations—the noble Lord, Lord Harrison, made reference to this—there are almost 4,500 places registered for the solemnisation of marriage by minor Christian groups, and more than 650 by non-Christian groups. Many of these, to put it as kindly as I can, are a little eccentric. The noble Lord, Lord Harrison, referred to the Aetherius Society, which believes that gods from outer space visit the earth in flying saucers—and, yes, the Aetherius Society is registered to perform marriages.
This amendment simply proposes approval for organisations that, unlike religious bodies, which sail through unimpeded, meet a number of serious criteria. The first one in Amendment 22A—it is printed on the Marshalled List so I will not tire the Committee by reading it all out—makes a series of requirements. They must be registered charities of good repute, they must have been established for at least 10 years, the ceremonies must be rooted in their belief, written procedures must exist and so on. In other words, a simple visit from a flying saucer will simply not suffice for the humanist group. A serious list of terms and conditions is set out in the proposed new clause.
On the registration of buildings, to which the noble Baroness has just referred, I think this is a bit of a red herring. Any marriage needs to be preceded by a public notice—either banns in a parish church or a notice under Section 27 of the Marriage Act 1949. The amendment ensures not only that the place is known but that the marriage is to be celebrated under open doors. I believe, therefore, that this objection is without substance. The proposal is organisation-based in the same way that the law already recognises the organisations of Jews and Quakers. I recognise that what we, as humanists, are seeking to do is, as it were, to slipstream in behind the Bill, which I strongly support.
In conclusion, I say with respect that the two main Christian religions in our country are in some danger of falling out of step with civil society. For example, any corporation that made it clear that women were excluded from top positions in its organisation would find itself in court. Consequently, the debate about women bishops now going on in the Church of England raises a few eyebrows in this day and age. Most young married couples are involved in family planning and yet, as I understand it, the Roman Catholic Church continues to regard this as a mortal sin.
Perhaps a Church of England atheist is not the ideal person to give advice to churches about how they should be coping with modern society. However, in the matter of same-sex marriage and humanist marriage, I believe that both of the main churches, and indeed the minority ones, are out of step with civil society. The noble Lord made reference to Scotland, where humanist marriages have now been legal for more than a decade and where there are already more humanist marriages each year than there are Roman Catholic marriages. I understand that it is predicted that by 2015 they will have overtaken the Church of Scotland itself.
Frankly, if I personally were in charge of marketing in any of our principal churches, I would be a little worried. However, that is, of course, a matter for them. The worrying thing for me is the way in which they have been able, with the greatest courtesy, to mobilise objections and amendments to this particular piece of legislation, which I strongly support.
On the question of religions falling out of step with civil society, religions are there to give values to society, lasting and ethical values, on which society should be based for its own good so that responsibility and consideration of others is there. I see dangers in civil society falling out of step with that guidance.
With the greatest respect, I agree except that I would put it the other way around. The danger that I see for religions, particularly the one to which I feel sentimentally attached, the Church of England, is that they will fall out of step with civil society. For example, the progress that has been made over the past 100 years in rights for women is widely supported in civil society. Therefore, as I said earlier, it seems a little odd to see the Church of England debating whether women should be bishops. It is, of course, a matter for them and for their religious beliefs.
I apologise, but the noble Lord refers to religions—he has clarified the issue now—and gives the example of women. Women were given full equality in the Sikh religion from day one.
It is not a question of marketing. Religions and value-based systems should not go for marketing. They are offering something, and that must not go with the tide. That is absurd.
As I say, I am not the best person to be advising churches on how to handle the like. However, religions evolve and have, over the centuries, evolved along with society. I would suggest that they might be wise to do so.
In conclusion, I say to the Minister that I very much hope that she will be able to give consideration to this matter. I recognise that we are attempting to slipstream behind the Marriage (Same Sex Couples) Bill, which I strongly support, and which has been strongly supported both in this House and in the other place. We also know—I think we all know this—that even with a piece of legislation of this kind, which is non-party and free vote, officials look to their Ministers for guidance. I have no doubt that if my noble friend the Minister and the Secretary of State in the other place were to suggest to their officials that they would like to find a way of accommodating humanist marriage within the Bill, they could and would do just that. I very much hope that the Government will move such an amendment on Report.
In the mean time, if I may paraphrase a lyric from Hymns Ancient and Modern, I can assure the House that we in the humanist movement,
“will not cease from mental fight”, until we have achieved full recognition in the law for humanist marriage.
My Lords, I greatly appreciate both the humour of the noble Lord, Lord Garel-Jones, and the courtesy of the noble Lord, Lord Harrison, and the noble Baroness, Lady Massey. Conversations have just been referred to. There has indeed been a conversation, as the noble Lord, Lord Harrison, said, but it was only a few days ago and it was just with officials. There is not yet, I think, a formal Church of England view on this matter. Your Lordships should take account of that in hearing what I have to say.
Personally, I am open to this proposal. Nevertheless, I have a serious question as to whether it is right—to use the phraseology of the noble Lord, Lord Garel-Jones—to slipstream this into this Bill, which is about same-sex marriage. I have three reasons for seeking to avoid confusion at this point.
First, as has been recognised already, this amendment would intrude a celebrant-based recognition, or at least a partly celebrant-based recognition, into the marriage law of England and Wales. I declare an interest: according to the law of England and Wales, I am one of the persons in this Chamber who can and do solemnise marriages in the Church of England, in parish churches and, with the most reverend Primate the Archbishop of Canterbury’s special licence, anywhere at any time, which is more than civil marriage allows; that is an aside. There is nothing wrong with the celebrant system—
I thank the right reverend Prelate for allowing me to interject on the subject of the celebrant-based system. This amendment is not about introducing a celebrant-based system into the arrangements for humanist marriages. It is quite important that the right reverend Prelate does not develop an argument about the celebrant-based system when actually this amendment does not seek to do that. It seeks to follow the Scottish arrangements for humanist weddings.
I am grateful for that point of information and I accept that clarification.
The other issue I was going to put before the House is the professional quality of our registrars, and a very significant change in breaking what is a monopoly of either clergy of religious faith communities or our registrars. That sort of change needs more consultation than has taken place thus far on this issue. I repeat that I am actually open to the issue in principle but I do not think it is right to put it into this Bill.
I must confess some confusion—even Church of England bishops can be confused sometimes—at the way in which many humanists wish to have what seems to be a non-religious church. I see that the noble Lord, Lord Garel-Jones, is assenting. For me, that is, in the words of Alice, “curiouser and curiouser”, but it will be for the House to decide whether or not to slipstream this in. There is a question mark on this Bench.
My Lords, I would like up to pick up on the right reverend Prelate’s last point about the curious distinction between a humanist celebration of marriage and one for those of us of faith. I refer back to the very important point made by the noble Lord, Lord Harrison, about those of us of faith who have been very moved by humanist funerals, where without the liturgy and the solemn elements that are very important to those of us of faith, it has been possible to absolutely capture in a particular style and format that is relevant—in the case of a funeral, for the family and friends of the bereaved, and, we hope in the future, in the case of a marriage, to the absolute wishes of the couple—in a form that is almost like liturgy. I suspect that the humanists would not like that word but it gives a sense of the importance of the act that the couple are about to go through.
The case studies that the British Humanist Association has sent through have drawn the distinction very clearly between the clinical process that can happen in a civil registry office versus the extremely moving ceremony that a humanist celebrant can create with a couple to mark the day in the way that they want. I would regret it if we picked up the French style of having to have two ceremonies. In France, of course, they celebrate both in style; weddings go on for whole weekends there, it is never just one event. But I have been very moved by the accounts in these case studies where it is absolutely apparent that the handfasting and the words that the couple have chosen mean as much to them as the marriage ceremony means to me as a Christian. If this Bill is about the coalition’s commitment to equality, and indeed the previous Government’s commitment to equality, now is the time to address this and accept that this organisation should be considered an approved organisation.
To reassure the right reverend Prelate, I know the Watford Area Humanists quite well—I suspect that the noble Lord, Lord Garel-Jones, does as well—and I am constantly assured of their sincerity and seriousness in the not just debate they engender locally but in understanding the role that they are performing for the rites of passage within our community for those who do not have a faith. I can think of no better organisation to be able to celebrate a marriage and I really hope that, despite the Government’s concerns, it can be looked at.
Wearing my Liberal Democrat hat, I would like to add that the party has been very clear for some time that this is something we would like to see.
The noble Baroness is very persuasive and I am not at all against what is proposed. But perhaps I might intervene in the mini-debate that my noble friend had with the noble Lord, Lord Singh. The element that my noble friend has not given credit to is that whereas people in his position regard society as being the final moral authority, those in religious faiths see a higher authority but are apt not to mention the fact quite enough. We are trying to handle this in a faith where we acknowledge one leader and one saviour, and trying to reconcile what is proposed now with what he taught us.
My Lords, as I said at Second Reading, I am a secularist, but I accept that many people are religious. We have spent a lot of time previously talking about the necessary protections to ensure that people who are religious have their right to a religious conscience properly protected. We have spent a lot of time on that again today. I do not object to that because I accept that people feel strongly about their religion and, while I am not religious myself, I accept the right of people to preach their religion if they want to. My only objection is if there is an attempt to impose those beliefs on people like myself who do not accept them.
One of the reasons I have been a member of the Humanist Society for a long time now is because there seem to be people in that society who are concerned with human values, tolerance, good will among people, and so on, but who nevertheless do not go along with what I can only regard as the supernatural part of most religions. Also, in my view many religions, including the main ones, are often rather bad when it comes to women’s rights. Women have made enormous progress in the past century in securing equality and a lot of it has been against some of the major religions.
This amendment draws attention to the requirements many people who are not religious may have which can be met by the Humanist Society. It seems to me to be a very good idea to have the possibility of what the Humanist Society provides for people who want to have a proper ceremony when they marry. The Humanist Society has developed arrangements to train people to provide that sort of service to members of the society. My noble friend Lord Harrison has made a very strong case this afternoon and so have other people. I hope, therefore, that what he is proposing is seriously considered because we are talking about a lot of people. Far more people are non-religious than are practising religious people and therefore we have a right to be considered.
My Lords, I am a lapsed humanist. When I was at Cambridge I was a member of the most privileged club which was the Cambridge Humanists and I lapsed because it was too religious. My most memorable experience was asking EM Forster to give a lecture. He said he would give a lecture on whether Jesus had a sense of humour. I said, “That is a splendid subject”. I was just thinking that now you could not give a lecture like that. You could give one on whether God had a sense of humour. I am not sure you could give one on whether the Prophet had a sense of humour. But certainly the proposition at the time was very interesting in Cambridge.
I completely agree with the speeches in favour of these amendments for all the reasons that have been given. One further reason why I am in favour is because both the Equality Act and Article 9 of the European Convention on Human Rights recognise the rights not only of those of religious belief but also of those of no belief, and the Strasbourg Court has repeatedly explained that in a plural society agnostics, atheists and non-believers have as much right as believers of all kinds to equality of treatment. I have no doubt that there is inequality of treatment at the moment between humanists as a belief system and others. If you look at those registered as religions, they include, for example, theosophists. It is very difficult to distinguish between a theosophist and a humanist except that one believes in God and the other does not. And Buddhists and Jainists are registered but they are not theistic religions. I believe that, in terms of equality and common sense, we must move on this, and not only because my party thinks so.
My noble friend Lord Deben said that unlike the United States we have orderly systems in this country when we legislate and I am a bit concerned that in the other place they do not seem to take Long Titles seriously. I cannot imagine that these amendments would have slipped through if this legislation had been introduced into this House because, as the Long Title says, the Bill is to make provision,
“for the marriage of same sex couples in England and Wales, about gender change by married persons”, et cetera. It says nothing at all about the rights of humanists or anybody else. Therefore, being boring about it, this falls completely outside the purpose of this Bill. I do not want to do anything to jeopardise the coming into force of this Bill but the poor old British Humanist Association has already gone through hoops to get to the position we are in. Originally, it tabled amendments just for humanists and then the Attorney-General said, “That is discriminatory”. It quite rightly changed the amendments to include all belief systems and now I am saying that this is not an appropriate vehicle for doing so.
It seems to me that there must be movement on this and if this Bill is not to be the vehicle, then either there has to be a Private Member’s Bill with government support on this separate issue to comply with Article 9 and 14 rights or some kind of inquiry leading to action. Noble Lords—the noble Lord, Lord Alli, in particular—will recall that we had similar problems when we introduced the concept of religious discrimination but did not include discrimination based on sexual orientation. He, with my support, found an ingenious way round that with a regulation power which enabled us to deal with homosexuality as well as with religion. Although that may not be the right way forward here, the Government need to be imaginative and think of ways of giving effect to the object of these amendments without being able to support them in this Bill.
My Lords, I am not a humanist; I am afraid I am a closet believer in God. But I wanted to add my support to the legislation for humanist marriage and the inclusion of this amendment in the Bill. The Bill is about equal marriage, and allowing fellow citizens to conduct their own legally recognised weddings within their own framework of humanist beliefs seems to me to be a proposal that we should support.
I also believe that there is popular support for this proposal. I suspect the other place was minded to move forward with this but the Attorney-General’s advice at the last minute that the amendments as drafted would breach the European convention and put the quadruple lock at risk meant that there was insufficient time to deal with this. As with so many other issues, the ball is now in our court. I understand that these amendments have been changed to address the issues raised by the Attorney-General and I have seen and even read the advice from Matrix Chambers to support that case. There is huge support for this in my own party, in the Liberal Democrats and on the Cross Benches. I think that this House is minded to pass this and would like the Government to find a way to make this happen. The Government should put their best minds together to see whether we can get these amendments through. On behalf of those who have worked in this area for many years, waiting for a Bill to come along that will allow this to happen, I ask the Minister to look carefully at this.
My Lords, before the Minister replies to the debate, I would like to follow up the observations made by my noble friend Lord Lester. This touches on the “slipstream” argument brought forward by my noble friend Lord Garel-Jones. I must admit that I am having difficulty enough coming to terms with the Bill as it is and is likely to become, without any further amendments to it of any kind, as I made clear at Second Reading. I believe that what is proposed in the Bill will lead in due course to a fundamental alteration of the concept of marriage in the Church of England such as I have been brought up to know it and indeed as has been the case for many years.
This is clearly not the Bill for an amendment of this kind. None the less, when this matter was considered in the other place in March this year, the Parliamentary Under-Secretary of State for Women and Equalities—I am indebted to the Library for a briefing note on this subject—talking about the inability to hold legally valid humanist marriages in England and Wales, said that the Government would,
“consider amendments to marriage law when an appropriate legislative opportunity arises”.
The Minister felt that this Bill was “not the right vehicle” for the proposed change, and that it,
“must not be thrown off its path by attempts to make wider changes to fundamental marriage law in England and Wales”.—[ Official Report , Commons, Marriage (Same Sex Couples) Bill Committee, 12/3/13; col. 475-76.]
I am afraid that that is not the immediate problem. The problem is the impact on this legislation and whether this legislation is the right vehicle for the sort of amendment that is being proposed. That is certainly not the case; we are talking about same-sex couples getting married and the opportunities that the Bill would provide for that to take place both in a civil setting and, if the Church of England later agrees, in a Church of England setting.
Since it is indicated by the quotation that I have offered to the Committee that the Government are prepared to give consideration to the claims of the British Humanist Association, I hope that the Minister will give a clear indication of just what the Government have in mind when they say they will give consideration to these propositions.
My Lords, I have no specific expertise on humanism and am not a humanist myself. Indeed, I am grateful to the noble Lord, Lord Garel-Jones, for revealing to me that what I might well be is a Church in Wales atheist.
I doubt that at this stage I can add much to the powerful and convincing arguments made by the noble Lord, Lord Harrison, and others in favour of these amendments. I have been very struck by what we have heard about the number of humanist weddings and the seriousness and sincerity with which they are approached, as well as by the number of other organisations that can already conduct weddings, which was explained to us by the noble Lord, Lord Harrison.
I say solely that I add my voice in support of the case that has been made, and I hope that the Government will be able to look carefully and sympathetically at it with a view to fulfilling the sincere desire of humanists to have humanist weddings recognised as legal marriages, as they already are in Scotland. I recognise that this would involve stretching the Bill rather beyond what was originally envisaged, but it would be preferable to take the opportunity presented by the Bill or find a another way of doing it rather than waiting yet another 19 years for the next marriage Bill to come along.
My Lords, this has been an excellent debate. I say to the noble Lords, Lord Lester and Lord Eden, that the amendments that were tabled in the other place and those that have been tabled here have been accepted as being within the scope of the Bill, so we are perfectly entitled to discuss them as being legitimate within this piece of legislation.
We on these Benches support Amendments 19A, 22A and 27A. I am a humanist. I am not a lapsed one, though I have veered between being a member of the National Secular Society and a member of the British Humanist Association all my life.
I also need to declare an interest in that one of my sisters is a British Humanist Association-accredited celebrant. One of the things that I would like to say to the right reverend Prelate, who has made very generous remarks during this debate, is that the ceremonies that my sister conducts are in every way as professional, carefully constructed, personal and beautiful as any other funeral, marriage or naming celebration that you could wish for. The standard of training and accreditation that the BHA undertakes is exceptional, and it has a commitment to ensuring that, were this to become part of our legislative framework for marriage, its celebrants would of course match the very best of the registrars. So that is not an issue here. I am very proud of my sister and her calling, and I think she has every right to conduct marriage ceremonies.
If either of my children wanted to be married at a humanist wedding service, at the moment they would have to go to Scotland, Australia, the United States, Sweden or, more recently, Ireland. In England and Wales they would have to have a civic ceremony and then a ceremony organised by a humanist celebrant with all the spirituality and commitment that they will have chosen to have in that ceremony. Their choice is restricted by—I have to say this although it might seem a slightly odd expression coming from this side of the House—the closed shop that we find in the old-fashioned rules on marriage in this country, to say nothing of the fact that they would have to pay twice for the pleasure of getting married.
This is an issue that the Government should embrace. The Red Tape Challenge, a commitment to competition and, indeed, the Minister’s commitment to equality should lead one to the view that this is an area where there is injustice and unfairness and it needs a remedy. I hope that she will accept the principle behind the amendment or, even better, accept the amendment itself, or that the Government will come forward with an amendment at a later stage that will achieve the objective of remedying this injustice. Bearing in mind, as noble Lords have already said, that it is 19 years since the previous marriage Bill, one cannot blame the humanists for thinking it reasonable not to have to wait another 19 years before this anachronism is addressed. Indeed, legal recognition for humanist marriages was given in Scotland in 2005.
Given that legal recognition for humanist marriages is the party policy of the Liberal Democrats, is supported by the Labour Party on this side of the House and by our shadow Cabinet, and was supported in the Commons by MPs on all sides, the amendment to recognise humanist weddings as legal marriages was one of the first to be tabled when the Bill received its Second Reading in the Commons. In Committee, the amendment to give legal recognition to marriages conducted by humanists and religious charities, meeting certain conditions, was introduced but fell after a 7-7 tie on the voting Committee, which was resolved against by the casting vote of the chairman—as it would be, and I accept that those are the rules. However, that shows that there is significant support for this issue.
The redrafted amendment on Report addressed all the concerns raised in Committee as well as further concerns raised afterwards by government officials, and was debated. Again there was strong support from all sides, but the amendment was withdrawn after the Attorney-General and the Secretary of State stated that the measure would not be compatible with the Human Rights Act and that passing the amendment could lead to a declaration from the Government to that effect. The Government published their legal arguments as to why that was so and specifically asked that the legal arguments should represent the comprehensive statement of the Government’s concerns.
The British Humanist Association has taken all of this on board and the amendment before us now addresses all the matters raised in the Government’s document. Written advice from Professor Aileen McColgan of Matrix Chambers has confirmed that the revised amendment addresses all the points of law that were raised in objection to the Government. I will not go through all the proposals now because I think that the House fully understands the issues.
It is time to stop giving reasons for not allowing humanist weddings and to give reasons why they should happen and to give proposals on how we can find a way through this. I finish with a quote from something circulated in the evidence that the British Humanist Association gave.
I wonder if the noble Baroness can explain the position on Long Titles, because it may well be that her party will form part or the whole of a future Government. On the question of Long Titles, I realise that the pass was sold in the other place, and that therefore it is quite okay for us to debate this. However, in terms of House of Lords procedure, how can the matter possibly be within this Long Title? Is not the better point that there should be a Private Member’s Bill, with government support, that deals with this as a discrete issue and that can get through speedily?
The point that I was making at the outset of my remarks—the noble Lord is an expert at getting legislation through this House—is that if it has been accepted by the clerks at both ends of this building, in the Commons and in the Lords, then it is within the scope of the Bill. We can have discussions about Long Titles and their meanings, and indeed we occasionally do, but it seems to me that this is fairly straightforward. It is accepted by the clerks in the Commons and in the Lords. It is therefore before us and is a legitimate thing for us to discuss.
I thank the noble and learned Lord for that remark. That is indeed the case.
I conclude my remarks by quoting from somebody who got married. He said:
“I got married twice in a week. My first marriage was conducted by someone who had interviewed my wife and me twice, at length, before the wedding; who spent hours (and several emails) exploring the key elements of the connection we wished to celebrate during the ceremony; and offered her guidance when we requested it, based on her knowledge of us as individuals and as a couple”.
Actually, that is exactly what a vicar would do—of course it is. He went on to say:
“My second wedding–to the same woman, I should hasten to add–happened two days later. It was conducted by an official who had met us for the first time minutes before, and was conducted with the polite efficiency of a market research interview. My first wedding was conducted by a Humanist Celebrant; my second by a registrar. Needless to say, when I think of my wedding, and the vows I committed to, the second set I gave that week rarely cross my mind. Yet it is this exchange currently recognised in UK law”.
The question that I put to your Lordships’ House is: which date do you think that couple celebrate when they celebrate their wedding anniversary?
My Lords, I am grateful to the noble Lord, Lord Harrison, for introducing the amendment and for explaining how important it is to humanists that they be allowed to conduct their own marriage solemnisations, according to their beliefs, by someone who shares their beliefs and in any place of their choosing, which could include the outdoors. I have no doubt that a celebration conducted by the sister of the noble Baroness, Lady Thornton, in the way that she described is one that would be enjoyed by those involved.
I am grateful to all noble Lords who have contributed to this debate and talked about the importance of humanist weddings being able to take place. I feel that this issue warrants a careful reply from me. I want to cover quite a bit of ground in my reply, so I hope that the House will indulge me if I am not as speedy as noble Lords might like me to be, but I think this is important.
First, it is important for me to remind noble Lords about the purpose of this Bill. It is about allowing people to marry who currently cannot marry, and the only people who cannot marry at this time are gay and lesbian couples. When we decided as a Government to bring forward legislation to allow that to happen, we decided to do so by making as little change as possible to existing marriage law. The noble Baroness, Lady Thornton, has described quite clearly how different humanists might celebrate their weddings, so I will not go through all the details. However, it is important to make the point that humanists can marry in England and Wales. They might not be able to have at this time the wedding celebration that they would like but, even if they do not want to follow the route that the noble Baroness suggested, where some people go first to a register office and then have a separate celebration, because humanists are non-religious, they have the option, within a civil marriage at a register office, of being able to adapt that service to include vows and readings that reflect their humanist beliefs and values. Although that might not be ideal, they are not alone in sometimes having to adapt their arrangements.
The noble Baroness needs to acknowledge that humanism is a system of belief. It is quite wrong to suggest that, because humanists do not want to have a religious wedding, somehow it is all right for them to have an adapted civil service. That is not the point here. The point is that humanists want to have a ceremony that is a humanist ceremony, based on their beliefs and their value system.
I accept that point. Forgive me if I was suggesting anything that was not respectful of what humanists are seeking to achieve. I absolutely understand the point that the noble Baroness is making. I was trying to explain that some people who follow a religious faith might argue that because humanists, although belonging to a belief organisation, are not religious, they have some opportunity to adapt a civil ceremony in a way that a religious person would not be able to.
I understand the point that the noble Lord is making. As I said when I began, there is quite a lot for me to cover in responding to this issue. I beg the noble Lord’s indulgence to allow me to go through my response. I assure him that I will cover everything, giving this matter the justice and the seriousness that it deserves. The point I was trying to make, which has been mentioned in different debates over the past few weeks in the context of this Bill, is that, for a range of people who want to get married, not just humanists, not everyone is able to have a religious ceremony or the ceremony that they desire. For instance, we heard only the other night, when the noble Lord, Lord Martin, was speaking, about a Scottish MP, a member of the Church of Scotland, who was therefore not able to marry in St Mary Undercroft and had to go to a register office first. I am simply making the point to the noble Lord that things are not so straightforward. It is not the case that everything is okay in one scenario and different in another. However, let me move on. I was just trying to make that point.
On my original point about the Bill and allowing same-sex marriage, although it might seem a counterintuitive thing for me to say, clearly for us to allow same-sex marriage to take place is a big change, but we are able to make that change in the framework of existing marriage law.
We are proposing this under the existing requirement in Section 27 of the Marriage Act 1949. We did so on the advice of colleagues from the church and also from Ministers in order to ensure that this would not require major change.
I will cover that point in the course of my response.
The point still stands—I will explain why in a moment—that in order to allow organisations to marry in the way that is covered in this amendment, although it seems like a small change, it requires a change in existing marriage law that has wider implications for our system of regulation of marriage law in England and Wales. The noble Lord, Lord Harrison, and other noble Lords have referred to the contribution that my right honourable friend the Attorney-General made during the debate on Report in the other place when he made it clear that if the amendment that was being debated at that time was passed, it would make the Bill incompatible with the European Convention on Human Rights. The amendment in the name of the noble Lord, Lord Harrison, is broader in scope and therefore does not raise the concern that the Attorney-General raised during the debate in the other place. However, at that time and consistently, the Government have been clear that the proposals put forward by the British Humanist Association have wider implications for marriage law. The Government are concerned because of those wider implications. There has been a lot of focus on the Attorney-General’s response to that specific amendment put forward on Report, and how that would have made the Bill at that time incompatible with the European Convention on Human Rights. However, that was not the only issue that the Government have raised, and continue to raise, about this proposal. I will explain all this in the course of my response.
I am sorry to interrupt and I hope I am not being a nuisance by doing so. Is not one reason in favour of these amendments that they would make our law compatible with Articles 9 and 14 of the convention by removing a discrimination which needs to be removed?
I was trying to make the simple point that the concern that the Attorney-General raised at that time has been addressed. That amendment was very narrowly defined around humanist belief. This amendment is much broader in scope because it is not narrowly restricted just to the British Humanist Association. However, that does not remove from what is at issue for the Government: that by introducing a change this amendment would have wider implications for marriage law in England and Wales. I intend to explain this to noble Lords.
As we have acknowledged throughout our debates on the Bill, marriage is clearly an important institution and a legal recognition through which the state confers rights and obligations. We therefore need to regulate carefully the process by which we allow this important legal status to be established.
I am very puzzled by what the noble Baroness is saying. She is now saying that there are other grounds. In the Commons—and it is on the record in Hansard—the Minister specifically said that the letter that she would send to the British Humanist Association would be comprehensive and would cover all the Government’s concerns. This amendment and the discussions that the British Humanist Association has had since then, in good faith, have met all those points. I am very puzzled as to why the noble Baroness is now leading us into what sounds like the answer, “The Government have concerns about other matters”. It seems like we will never reach the end of this.
I do not have the copy of Hansard in front of me for the debates that took place in the other place. However, I am confident that my right honourable friend the Secretary of State, Maria Miller, made it clear in those debates that there were other concerns about this proposal that went beyond those raised by the Attorney-General on that specific amendment at that time. In the letter that my right honourable friend sent to Kate Green, she was also clear that there were issues of principle which went beyond the narrow point that the Attorney-General raised in those debates.
Beyond civil marriages, which now form the majority of marriages, where we give other organisations—that is, other religious faiths—this power to marry, the authorisation is subject to specific safeguards that are well established and embedded in current law. In the case of religious ceremonies—though I absolutely understand that the British Humanist Association is not a religion but a belief organisation—registration is generally linked to a particular building or, in the case of Quakers and the Jewish religion, by a longstanding arrangement that took account of the particular position of those religious organisations. Historians in this House will know that the Marriage Act 1753 recognised the Jewish faith and Quakers as having a special status, which they have retained since that time.
For every other religion except the Church of England and the Church in Wales, a building must first be registered as a place of worship, then a place of marriage. If that is agreed to, the supervising registrar attends all marriages for a year to ensure that compliance with all regulations takes place, including safekeeping of duplicate marriage registers in the relevant premises to accurately register marriages. Religious faiths have very little freedom because the integrity of marriage in England and Wales relies on this system to ensure that marriages are not registered that should not be, and that status is accurately recorded.
The amendment of the noble Lord, Lord Harrison, would mean that eligible non-religious belief organisations could hold marriages wherever they wished and have greater freedom to appoint those who conduct and register marriages. As the noble Lord says, the amendment does not specifically define the British Humanist Association but goes wider in order to address the concerns that were raised by the Attorney-General.
I will be absolutely clear on the point that the noble Baroness was pressing me on earlier. Our concerns are not about entry to the system of marriage, but spring from opening a new route to marriage and a new system of regulation. In the course of this debate, noble Lords have expressed views on religious groups who can marry now. However, the key point is that they must all comply with the existing system in terms of their being approved. I do not suggest for one moment that there is any concern about any of the groups we may be discussing. However, the reason why the system we have is so important, and why we consider that there would be wider implications if we were to change the way in which we authorise people to marry, is because that could have an impact on things such as, for example, the way we are able to police sham marriages conducted by criminal wedding arrangers.
The noble Lord is shaking his head. I stress that I understand the reason why the amendment is drafted as it is, but because it would allow for other organisations there are implications that we need to consider.
Are these implications deal breakers or are they administrative and technical details that could be cleared up? Is the noble Baroness going to say anything positive here?
The responsibility I have as the Minister responding to this debate is to make clear that something which on the face of it seems quite straightforward would significantly change our marriage law. We have to consider the implications of that before a decision could be made as to whether to change this law. The system we have of registering and authorising people to marry based on religious premises has been in existence since 1898. To introduce a new system for new organisations to be authorised in a different way is a significant change. If we are going to make that change we need to make sure that we have properly considered all the implications.
There is huge respect for the Minister in this House and for the way in which she has conducted the passage of the Bill. We all want the Bill to go through. However, the noble Baroness should take the temperature of the House and of the other place. There is a will in both Houses that this should go through. You see this sometimes when the Front Bench are making their response: the explanation of why it should not go through has been crafted by the Civil Service and does not feel like one any of us understand. The unintended consequence argument, the argument that it could delay the Bill and a whole range of financial arguments are the standard set of arguments put forward generally to stop amendments going through. We would be very sympathetic if we understood what was worrying the Government about this amendment but as yet I, like many others, am lost as to what it is that cannot be done in the timeframes that we are talking about.
Before my noble friend replies to that, she will, I am sure, have observed that not a single voice in your Lordships’ House has been raised against these amendments. She will have observed that the right reverend Prelate, while unable yet to tell us precisely what the position of the Church of England would be, spoke with, one could say, sympathy towards the position. I think what we are all asking is that if the Ministers, both my noble friend and the Secretary of State in the other place, were to say to the civil servants that they would like to find a way of accommodating this, we know that they could it. We would really like an explanation as to why that cannot be done.
I was about to conclude my remarks in any case. I am grateful to my noble friend. The noble Lord is right that there has been a great deal of support from all sides of the House, as there was in the other place. Of course I acknowledge that but I am still obliged as the Minister responsible for the Bill to explain when an amendment is put forward that it will have a significant effect—as we think this one could have—so that noble Lords are aware and properly apprised of the seriousness of the issues at stake. While the British Humanist Association and a lot of this House feel strongly that this change should be made, there has not been the kind of consultation and proper consideration of the impact of making that change and that has to take place.
I am trying to helpful. Why can the Government not adopt the same approach as the previous Government on sexual orientation discrimination, or that of the present Government on caste discrimination, and say that there should be a proper consultation and then have a power included in the Bill to deal with this by regulations with the affirmative resolution procedure, with proper exceptions put in for things such as sham marriages?
I am not in a position to offer to noble Lords today the kind of specific response that my noble friend has suggested.
I have sat listening to this for an extremely long time. I do not have any views at all about whether humanists should have a marriage. I have heard very good reasons why they should and I have not heard any reasons why they should not. That seems to me quite an interesting point. No one has stood up and said there should not be a humanist marriage. Can the Minister at least say—and it is 7.45 pm—that she will take it away and have a look at it. Then she could come back on Report or before and say, “No, we are not going to do it”. She is not going to make any progress in the House at this moment with her arguments, because nobody is going to accept them if the Government do not go away and have another look at it.
Very briefly, before I finally sit down, of course everybody would support humanist marriages. The point is—please let me finish making this point—that it would require a change in law that would have implications that have not been fully thought through. That all said, having listening to the debate today, I will of course report back to my ministerial colleagues and ensure that they reflect further on the points made in this debate.
My Lords, I am in severe danger of letting the nice side of my character come to the fore at this conclusion to the debate. I sincerely thank those from all sides who have risen to support the amendment. I thank the right reverend Prelate for his constructive approach. I invite him to have discussions with me and the British Humanist Association himself, rather than sending an official.
I have watched the Minister struggle. I would like to struggle with her. I want to get round a table and discuss this matter and find the solution that this House most clearly needs. In the mean time, I beg leave—and give notice that I shall bring it back it back on Report—to withdraw this amendment, showing the nice side of my character to the whole House.
Amendment 19A withdrawn.
Clause 3 agreed.
House resumed. Committee to begin again not before 8.49 pm.