Amendment 17

Northern Ireland (Executive Formation) Bill - Committee (Continued) – in the House of Lords at 9:15 pm on 15th July 2019.

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Lord Morrow:

Moved by Lord Morrow

17: Clause 8, page 5, line 35, at end insert—“(1A) Any regulations under this section must include provision—(a) prohibiting any person or religious body being compelled by any means (including by the enforcement of a contract or a statutory or other legal requirement) to—(i) conduct a same-sex marriage,(ii) be present at, carry out, or otherwise participate in, a same-sex marriage,(iii) consent to a same-sex marriage being conducted, or(iv) permit premises to be used for a same-sex marriage ceremony,if the marriage is to be solemnised according to the rites of a religion;(b) prohibiting discrimination claims against a person or religious body for refusing to do anything listed within paragraph (a);(c) prohibiting discrimination claims in relation to employment for the purposes of an organised religion where a person refuses to employ or otherwise appoint a person married to a person of the same sex;(d) protecting freedom for discussion or criticism of marriage which concerns the sex of the parties to marriage, including urging persons to refrain from marrying a person of the same sex; (e) requiring the Secretary of State to issue statutory guidance supporting freedom of expression and freedom of conscience in educational institutions in relation to beliefs about the definition of marriage.(1B) Provision made under subsection (1A) shall provide no less protection for freedom of expression and freedom of religion than applies in England and Wales.”

Photo of Lord Morrow Lord Morrow DUP

My Lords, the main purpose of this amendment,

“prohibiting discrimination claims against a person or religious body for refusing to do anything listed within paragraph (a)”, is simply to ensure that there will be no fewer safeguards for free speech and religious liberty in Northern Ireland after same-sex marriage is introduced than there are here in England and Wales. I genuinely fear, and I believe it is a reasonable fear, that Northern Ireland will be poorly served in the protections given unless we make this amendment.

The extension of marriage in England and Wales was done by primary legislation, after many hours of debate in this House and the other place. For Northern Ireland, it will be done through regulations, which are not designed for highly controversial, sensitive and divisive subjects of this kind. They do not receive the level of scrutiny that this issue should. As all noble Lords know, there is no opportunity to amend regulations. Therefore, the regulations must contain adequate protections from the start. There was a public consultation on this issue in England and Wales before the legislation was even introduced. That consultation process raised areas of concern, such as religious liberty. These could then be given safeguards in the legislation and included in the scrutiny received in Parliament.

It seems that there will be no consultation before the Secretary of State is required to exercise this power. There is no time. There has never been a consultation on this issue in Northern Ireland, so the people of Northern Ireland are already being poorly treated.

Those of us who were part of the debate during the passage of the Marriage (Same Sex Couples) Act several years ago will remember the quadruple locks. Not all the quadruple locks will need to apply to Northern Ireland, but it will be vital that the necessary protections for religious liberty are in place. As things stand, there is nothing in Clause 8 to secure those protections, which must be integral to any introduction of same-sex marriage to Northern Ireland.

My amendment would require the Secretary of State’s regulations to include provision in certain key areas, but it is by no means comprehensive. The rushed nature of this process has made it impossible to think through the full implications, but these are areas that stand out.

There is particular concern about access to publicly owned facilities. There are churches in Northern Ireland, as here, that meet in council-run community centres or schools. Christian groups in Northern Ireland run events for children on premises owned by the public sector. The concern is that a council might, for example, make access to such facilities conditional on the church or religious body being willing to conduct same-sex marriages. Such stipulation must be explicitly ruled out. This is the focus of proposed new paragraph (a). This safeguard exists under the law in England and Wales. The language in the amendment of “compelled by any means” is taken directly from the 2013 Act. I simply want to ensure that Northern Ireland has the same level of protection.

Proposed new paragraphs (b) and (c), relating to discrimination law, are also designed to ensure that Northern Ireland matches England and Wales—and, indeed, Scotland. When same-sex marriage laws were introduced in the rest of the United Kingdom, a series of amendments was made to the Equality Act 2010. They protect religious organisations from discrimination claims for declining to participate in same-sex marriages, for declining to allow their premises to be used for same-sex marriage ceremonies and for not employing a person married to a member of the same sex. Similar protections must be written into the relevant Northern Ireland discrimination statutes. Without them, churches could be sued simply for requiring that their employees live in accordance with the doctrine of the church on sexual ethics. For example, I believe that the Church of England diocese of Southwell and Nottingham relied on just such a provision in the Pemberton case.

Also, when the 2013 Act was introduced, the Public Order Act 1986 was amended to ensure that criticism of same-sex marriage did not in itself amount to hate speech. Proposed new paragraph (d) requires such changes as are necessary to Northern Ireland law, including public order legislation, to protect the freedom to disagree. This is the core of any democracy. The introduction of same-sex marriage does not mean that everybody has to agree with it or that only one view may be expressed in the public square.

Finally, proposed new paragraph (e) deals with education. Following the introduction of the 2013 Act, the Government made it clear that teachers had the right to express their own beliefs on marriage. A fact sheet from the time said that,

“teachers have the clear right to express their own beliefs, or those of their faith, about marriage of same sex couples as long as it is done in an appropriate and balanced way”.

Guidance in 2014 from the DfE on the Equality Act 2010 said:

“No school, or individual teacher, is under a duty to support, promote or endorse marriage of same sex couples”.

There was also guidance from the Equality and Human Rights Commission repeating that assurance and adding:

“Governors, teachers and non-teaching staff in schools, parents and pupils, are free to hold their own religious or philosophical beliefs about marriage of same sex couples”.

The many people involved in education in Northern Ireland who hold to traditional views on marriage would appreciate similar reassurance and guidance. I beg to move.

Photo of Lord Hayward Lord Hayward Conservative 9:30 pm, 15th July 2019

My Lords, perhaps I may help to expedite matters at this point. I listened to the contribution from the noble Lord, Lord Morrow. It is important to note that we have disagreed on a number of aspects of the legislation over the past few days and will probably continue to do so. However, on this matter, as far as I am concerned, the intention is to take the protections we have both for those who hold religious views and individuals on the other side who may have particular views, and protect them as well. We are talking here about the same thing: taking what is essentially in place in England and Wales and transferring it across to Northern Ireland. I have no idea of precisely what the Minister is going to say, but it is my view and that of others from where we stand.

Photo of Baroness Barker Baroness Barker Liberal Democrat Lords Spokesperson (Voluntary Sector)

My Lords, I speak as someone who has had the great joy of recently being married under the legislation as it applies in England and Wales. I simply observe to the noble Lord, Lord Morrow, that, as someone who wished to be married, I had absolutely no wish to do so in a place or in circumstances that other people would have found offensive. That would have been deeply offensive to me. I wished to celebrate in my community, and I did. I was quite happy to abide by the laws of this country, which insist that my marriage had to be completely secular. It was a wonderful, wonderful experience and I hope that many other people, including my brothers and sisters in Northern Ireland, will be afforded the similar dignity.

Like the noble Lord, Lord Hayward, I think we are closer on this than we are on other issues, but my one concern is this. It is to be found in proposed new subsection (1A)(e) in the amendment, which refers to education. I understand that in the preceding proposed new paragraphs, the noble Lord, Lord Morrow, seeks to obtain the same provisions that obtain in England and Wales, but I am not sure that how the proposed new paragraph is worded is exactly the same. It may go further, because in England and Wales we debated the matter of schools elsewhere. I simply say to the noble Lord that I have concerns about that aspect of his amendment, but I hope that the Minister will be able to accept the majority of what the noble Lord has put forward and address this matter in his response.

Photo of Lord Browne of Belmont Lord Browne of Belmont DUP

My Lords, I support Amendment 17, to which I have added my name. Once again, we should be discussing a simple administrative Bill, but instead we find ourselves considering one that would impose huge cultural changes on Northern Ireland without the consent of the people and over the head of their devolved Government. I am sure I do not need to remind your Lordships that the Bill is being fast-tracked in a manner that noble Lords who sit on the Constitution Committee have criticised as constitutionally unacceptable.

However, those present for the debates on the Marriage (Same Sex Couples) Bill will recall the protections carefully carved out for religious liberty and free speech. As has been outlined, at present there is nothing in Clause 8 to secure such protections for the people of Northern Ireland. My noble friend Lord Morrow spoke about the need to uphold religious freedoms, but I wish to focus on freedom of expression. It is a right that belongs to everyone in Northern Ireland, regardless of their religion or philosophical views. Proposed new paragraphs (d) and (e) outline fundamental protections for free speech, which go to the heart of any democracy. Discussions about marriage arouse strong emotions, and this is especially true in the context of Northern Ireland, where not only are there large religious communities, but a wider culture that holds more strongly to traditional values around marriage and the family than other parts of the United Kingdom.

There should be absolute protection for such people to discuss and critique same-sex marriage in the classroom, the boardroom and, indeed, in the street. Proposed new paragraph (e) outlines a vital protection in the specific context of educational institutions. Universities, schools and colleges are platforms for discussion, debate and criticism of ideas, and this must not come under threat following any change in the law on marriage.

Earlier this year, robust new free speech guidance was issued for universities in this country. David Isaac, chair of the UK Equality and Human Rights Commission, underlined the continuing importance of this historical principle, saying:

“The free expression and exchange of different views without persecution or interference goes straight to the heart of our democracy and is a vital part of higher education. Holding open, challenging debates rather than silencing the views of those we don’t agree with helps to build tolerance and address prejudice and discrimination”.

I am sure we are all united on the right to free speech and against compelled speech. For these simple and fundamental reasons, I am happy to support Amendment 17.

Photo of Lord McCrea of Magherafelt and Cookstown Lord McCrea of Magherafelt and Cookstown DUP

My Lords, I join with my colleagues. I am a signatory to this amendment and rise to support it. Introducing same-sex marriage is a move that has been highly divisive in Northern Ireland. I acknowledge that, as in the rest of the United Kingdom, there are people who hold strong views concerning this. I certainly know that many in Northern Ireland believe strongly, as I do, that marriage is between a man and a woman and is the fundamental building block of our society, and therefore that the definition of marriage should remain unchanged. However, having listened to the debate and that in the other place, I realise that it seems this legislation is going to be forced on the people of Northern Ireland.

In a relatively short period, there has been an alarming abandonment of the teaching of scripture on marriage as ordained by God. This contempt for biblical marriage includes not only the abandonment of it as a divine institution but a direct attack on it in the promotion of same-sex marriage. This is spear-headed in open defiance of God’s moral law, and those who hold to the scripture view are held in utter contempt.

I do not wish in any way to be hurtful to any person, but I also have to be faithful to and express what I believe. That is why I am in this House. I was an elected Member in another place for some 25 years and was certainly known to express—genuinely, earnestly and honestly—what I believe. As a Christian minister, I believe that in Genesis, chapter 1, verse 27, under the inspiration of the Holy Ghost, Moses wrote:

“So God created man in His own image; in the image of God created He him; male and female created He them”.

This is a general statement of the creation of man in God’s image but stressing the distinction of gender. In Genesis, chapter 2, the Holy Spirit gives us further details not only of human creation but of the institution of marriage. The clear message is that God’s intention for marriage was that two human beings would come together. Chapter 2, verse 24, says:

“therefore shall a man leave his father and his mother, and shall cleave unto his wife, and they two shall be one flesh”.

Northern Ireland people have never been consulted on whether they want same-sex marriage. One of our most fundamental social structures is being changed over the heads of those whom it will affect. It is notable that, when same-sex marriage was introduced in England and Wales, strong safeguards were included in the legislation to protect those who did not want to be forced to go along with something they disagreed with. It is vital that the people of Northern Ireland are given the same legal guarantees.

I appreciate the words of the noble Lord, Lord Hayward, and the manner in which he has responded to the amendment. All this amendment seeks to do is address the free speech and freedom of religion concerns that inevitably arise when such a huge moral change is brought in. It will merely establish the same protections that those in the rest of the UK are afforded.

The Northern Ireland (Executive Formation) Bill requires the Secretary of State to introduce regulations to legalise same-sex marriage, but the simple fact is that regulations do not allow for the appropriate level of scrutiny and debate that such a monumental change requires. There is a real danger that, with this legislation and subsequent regulations being rushed through Parliament so quickly, those who object to the new law will be forgotten about and their freedom to disagree threatened.

Those who are against same-sex marriage may feel they have particular cause to be concerned in Northern Ireland if this amendment is not accepted. Even while the law has always been in line with their view, they have seen a Christian-run bakery hauled through the courts for its decision not to support a campaign for same-sex marriage. That case was pursued by a body, the Equality Commission for Northern Ireland, which should be protecting everyone’s freedom. Without robust reassurances, many will feel that the Equality Commission for Northern Ireland’s hostility to those with traditional beliefs about marriage will only increase. For example, many churches, as my noble friend has said, hold their services in community centres or school halls. They need to be reassured that they will not be forced to leave those premises because they hold to the biblical teaching that marriage is between a man and a woman.

The Marriage (Same Sex Couples) Act 2013 in England and Wales states on the face of the legislation that no religious organisation or minister can be compelled by any means to marry same-sex couples or to permit same-sex marriages on their premises. It also contains explicit protections to ensure that any person who publicly expresses disagreement with same-sex marriage cannot be accused of stirring up hatred under the Public Order Act. The Government equalities spokes- person at the time, the noble Baroness, Lady Stowell, said:

“A belief that marriage should be between a man and a woman is undoubtedly worthy of respect in a democratic society”.—[Official Report, 17/6/13; col. 75.]

It is vital that those who disagree with same-sex marriage feel that they are valued members of society and not in any way ostracised by the new law. I and my colleagues believe that this amendment will help that. Maria Miller, the Minister in charge of the 2013 Act, said:

“Whatever one’s view about the marriage of same-sex couples, it is legitimate and the Government will protect the right to express it”.—[Official Report, Commons, 16/7/13; col. 1027.]

This reasonable amendment is the least that can be done.

Photo of Lord Desai Lord Desai Labour

My Lords, no one can disagree with freedom of expression and the freedom of people to assert what they deeply believe in. At the same time, there is the freedom not to agree with the religion you are born under. Not all of us are Christians, and not all Christians hold to orthodox beliefs. My one concern—I can say only that it is a concern; it may be an extreme concern and noble Lords may dismiss it—is that, if there is such strong opinion against same-sex marriage in the church in Northern Ireland, if I were interested in having a same-sex marriage in a church, would I have to leave Northern Ireland and go somewhere else? Would there be a general strike against same-sex marriage by all religious bodies?

I do not know the answer to that, but I am concerned about it. This is expressed as being basically all about Christianity and its particular orthodoxies. I am not a Christian; I was born into a Hindu family, but I am an atheist, so it does not concern me. Nor am I interested in same-sex marriage—it is much too late for that. However, I am concerned to get an assurance from the Minister that, if he agrees to these amendments, there will be no compulsion on a couple in Northern Ireland to leave so that they can get married, that there will be some facilities available so that they can get what they want and have a same-sex marriage in a religious location.

Photo of Lord Bruce of Bennachie Lord Bruce of Bennachie Liberal Democrat Lords Spokesperson (Scotland) 9:45 pm, 15th July 2019

My Lords, I welcome the tone of this debate and accept that the main purpose of the amendment is to translate the rules as applied in the rest of the UK to Northern Ireland. To that extent, it is welcome. Indeed, there was strong debate around the idea that there was never any attempt to force anyone to be involved in same-sex marriage or be required to perform or officiate at such a marriage. That was absolutely clear. The law makes that clear and I accept it entirely.

But I have two concerns. I have a slight concern about proposed subsection (1A)(d) in the amendment, which relates to protecting freedom for discussion,

“including urging persons to refrain from marrying a person of the same sex”.

That could become a pressure or indeed the beginnings of trying to convert people away from the idea of same-sex marriages. I draw attention to Schedule 7 to the same-sex marriage Act, which states:

“for the avoidance of doubt, any discussion or criticism of marriage which concerns the sex of the parties to marriage shall not be taken of it felt to be threatening or intended to stir up hatred”.

So it is not in itself an expression of hatred, but it could be in the way that it is applied. I have a slight concern that the amendment is unclear.

The other concern is about the role of education, which has caused plenty of problems on the mainland, never mind in Northern Ireland, on issues relating to gay rights and so forth in general. In that context, there are two issues that I think the movers of the amendment can take comfort from but should be aware of. First, teachers need to teach the facts. It is important that in any context, particularly if it happens in Northern Ireland that same-sex marriage is legalised, the fact of the law and the rights of that should be made clear in schools even if the school has a religious connotation that says, “We in our faith don’t necessarily agree with it”. The school has to accept that it is the law and that people are entitled to get married in that context.

Secondly, it is of course right for a school with a religious background to want to communicate its religious beliefs—and nobody is challenging people’s right to believe what they do. Nevertheless, in the process of doing that, discussions about the issue of same-sex relationships should be done in an appropriate, reasonable, professional and sensitive way. Some of that is difficult to put into law. It is about the culture and the environment in which the issue is expressed.

Many of us would reasonably accept that the speed with which people have moved from resistance to same-sex marriage to wide acceptance has been remarkable. That is very welcome for those people who experienced frustration and prejudice in not being able to get married. I suspect that, in spite of the arguments to the contrary, things may move more quickly in Northern Ireland than some people think. The noble Lord indicated that progress has been made in that direction and it is one area where contributions from outside this House say that it is now an accepted fact.

The amendments are understood. They recognise that people have a right to believe and they should be allowed to preserve that belief, but the balance is that they have to be careful that they do not impose those beliefs or share them and use them to extend prejudice.

Photo of Baroness Smith of Basildon Baroness Smith of Basildon Shadow Leader of the House of Lords, Shadow Spokesperson (Northern Ireland), Shadow Spokesperson (Cabinet Office)

My Lords, in some ways the debate strayed further than the amendment itself. I was grateful to the noble Lord, Lord Hayward. His explanation of what he was seeking to do with the amendment before the Committee was very helpful. When the same-sex marriage legislation went through this House, there was a lot of debate about some of the issues that noble Lords from the DUP have addressed. It was made clear that that legislation is permissive. It is not compulsory: it is permissive.

I disagreed when the noble Lord, Lord McCrea, spoke about the fundamental building blocks of society. People in a committed, loving relationship should have the same opportunities as everyone, whether same-sex couples or couples of different genders, to be able to celebrate and demonstrate that commitment to each other as being a long-term, permanent commitment, and not be ostracised for doing so.

Having said that, I think the points about this being similar to the legislation in England and Wales were entirely well made, as the noble Lord, Lord Hayward, said. Like the noble Baroness, Lady Barker, the only part I have some concerns about is the educational institution. I was recently fortunate enough to meet the head teacher of Anderton Park School in Birmingham and was deeply impressed by her dignity and her commitment to her pupils. I would hate to think that we would be getting into a position where other head teachers who are trying to do their best for their pupils, trying to instil in them tolerance and a commitment to understanding society as it is, would face such difficulties as she and her staff have had to in very difficult circumstances.

I look forward to hearing what the Minister says but I would imagine that any legislation he is discussing with the noble Lord, Lord Hayward, and Conor McGinn from the other place would be along the lines of the legislation that we have here in GB.

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Parliamentary Under-Secretary (Northern Ireland Office), The Parliamentary Under-Secretary of State for Scotland

My Lords, this has been a thought-provoking discussion. I am often guided by my own beliefs and I recognise Ecclesiastes chapter 4, verses 9 to 10:

“Two are better than one … for if they fall, one will lift up the other”.

I am heartened by the remarks of the noble Lord, Lord Hayward, because I do not doubt that he will be working closely with Conor McGinn from the other place to ensure that what comes to this House carries with it the exact protections and care that we have seen in England and Wales and in Scotland. There are elements which need to be recognised in terms of the wider question of freedom of religion and freedom of expression, and I hope to see those protections coming through in an emerging amendment. As I said, the amendment from the other place has certain deficiencies and we hope to see those improved through the work which I do not doubt the noble Lord, Lord Hayward, among others, will help move forward.

It is important, again, that we balance rights, obligations and protections throughout, not least in schools, and we must make sure that we are teaching the reality of what is going on. We need to make sure that pupils understand the wider question of relationships before they ever engage in sex education. I draw a distinction between relationships and sexual elements; I think they need to be seen in that context. It is important to remember that these issues have been addressed previously in different parts of the United Kingdom. These are not new issues. The concerns of particular bodies are not new and on each occasion I believe that the different authorities, whether in Scotland or in England and Wales, have learned from the challenges and have ensured that the protections which they have put together are adequate to address the concerns raised by noble Lords.

I appreciate the concerns which noble Lords have expressed. They are right to recognise that there is throughout Northern Ireland and elsewhere a particular constituency which sees the faith-based approach to marriage as an integral part of it. I do not doubt the validity of that or the importance of recognising why that must be accepted and trusted, but at the same time the wider context needs to be considered. I hope the amendment we see coming forward addresses these issues. On that basis, we hope that this amendment can be withdrawn. My final point is: congratulations to the noble Baroness, Lady Barker.

Photo of Lord Morrow Lord Morrow DUP

My Lords, I have listened carefully to what has been said in response to this debate and sometimes I end up more confused, but that is maybe more to do with me than anyone else. I take some comfort from the fact that the noble Lord, Lord Hayward, has grasped exactly what we are trying to do here, and I will be watching the progress of this with deep interest. Maybe on this occasion I can look more to the noble Lord, Lord Hayward, for some protection because he has not tried to throw in other issues that are not there.

Amendment 17 withdrawn.

Amendments 18 and 18A not moved.

Clause 8 agreed.

Clause 9: International obligations in respect of CEDAW

Amendments 19 and 20 not moved.

Clause 9 agreed.