Marriage (Same Sex Couples) Bill – in a Public Bill Committee at 8:54 am on 12th February 2013.
Colleagues, we have a lot to get through, so we will make progress.
Welcome to our next set of witnesses. Thank you very much for being here with us this morning. Could you kindly introduce yourselves for the record?
Archbishop Peter Smith : I am Archbishop Peter Smith, Archbishop of Southwark, on the other side of the river, and vice-president of the Bishops Conference of England and Wales. On my right is Professor Chris McCrudden of Blackstone Chambers, who is our legal adviser on the Bill. On my left is Charles Wookey, who is assistant general secretary to the conference.
Thank you. Unless you want to make an opening statement, we will go straight to the questions. Are you happy with that, Archbishop?
But the 29-page paper you submitted to us makes an argument, essentially, that it is a moral disorder and that therefore same-sex marriage will undermine society. I would have thought that it goes to the very heart of the matter whether you believe that homosexuality is curable or not.
Archbishop Peter Smith : We have not mentioned homosexuality as such in our paper or in our public pronouncements on this. What we have been saying right from the start is that marriage, for millennia, has been between a man and a woman. It is about the complementarity of the two sexes. That is the important and fundamental issue when it comes to marriage. Men and women are different. It is not rocket science, looking around this room, to look at each other and say, “We are different” without going into all the gory details.
Tall people and short people are different. That does not necessarily mean that you should only have tall people marrying short people or fat people marrying thin people. Difference is neither here nor there, I would have thought.
In olden teaching, it was that homosexuality was a choice; it was something that somebody had voluntarily chosen to adopt. Then I could understand why you would say, “All right, we believe that no homosexuals should be allowed to enter into relationships.” If you no longer believe that it is curable or that it is a matter of choice, it seems to me fundamentally cruel to deny lifelong companionship to two people just because they are of the same gender.
Archbishop Peter Smith : No, because we said that that was the thin end of the wedge and that that would end up going to marriage. There was a different way of dealing with the request from same-sex couples to have equivalent rights to those who are married—man and woman. Those rights were given, quite clearly, in that Act.
Just from personal experience, at the end of last year I was asked to go on a debate about this on Radio Wales. One of the others on the debate was a prominent Catholic homosexual. When I stated the Church’s position, I thought, “We are going to have a real ding-dong here, possibly.” But when he was asked what he thought of what I had said, he said, “I fully agree with the Archbishop.” He said, “I am fully accepted in my parish. People know who I am and what I am. I have no problem with that. I have been welcomed and respected. As a homosexual, I do not approve of this move to gay marriage.”
It is a reasonable assumption that same-sex marriage will become the law of the land sometime later this year. What will be the guidance that the Catholic Education Service gives to Catholic schools to teach children about marriage in this new context?
Professor McCrudden: The question partly relates to the guidance given by the Secretary of State, so there are two separate elements to it. What are the implications for teachers of the Bill—and presumably the Act—as it currently stands? There is then the separate question of the effect of the Bill on the guidance that the Secretary of State is required to produce. Obviously Catholic schools are required to take that guidance into account. Our fear—our concern—is that clause 11 of the Bill in particular, when read together with the power given to the Secretary of State to issue guidance, essentially changes the nature of the guidance. That currently causes problems. The brief answer to your question is that the guidance to be given in Catholic schools will have to wait until we see precisely which amendments or otherwise are going to be brought in by Parliament to that particular aspect of the Bill. I can go into more detail on that if you prefer.
Specifically, will children attending Catholic schools be told that people—possibly parents of children in the class—are committing a sin if they enter into a same-sex civil marriage?
Professor McCrudden: I think I have made the point that it will partly depend on the question of the guidance, and the interpretation of the guidance, currently issued by the Secretary of State. The question is whether that very general provision in clause 11 of the Bill materially affects the current interpretation of the guidance, because it changes the definition of marriages. Secondly, and more particularly for the future, there is the question of whether future Secretaries of State issuing the guidance will either be required to or will choose to alter the guidance.
Archbishop, you have just acknowledged that the Roman Catholic Church opposes civil partnerships, as indeed you have opposed every reform that has brought equality to lesbian and gay people in this country for the last 20 years. Why should we believe that your opposition to this is about marriage, rather than about your disapproval of lesbian and gay relationships?
Archbishop Peter Smith : It is clearly about the nature of marriage, because marriage is between a man and a woman, and always has been. That is the key issue, and we keep getting diverted on to questions of equality or religious freedom. The nub of the argument is who by their natural being can be married.
But wouldn’t your opposition to this on the basis of marriage be more credible, and carry more authority, if you had been supportive of civil partnerships and all the other reforms that have benefited lesbian and gay people in this country?
Archbishop Peter Smith : The Church’s teaching is quite clear on this, on the Church’s attitude to homosexuality. It says quite clearly in the catechism of the Church that homosexual people must be respected, and dealt with sensitively. Morally speaking, however, we say sexual relationships outside marriage—of whatever kind—are not right and they are not moral. So the Church’s teaching on this is very consistent. We are not trying to do down homosexuals; I know many homosexuals and I get on very well with them. However, at the end of the day we as bishops and as a Church have a duty to teach what Christ taught, rooted in his background of the Old Testament, and it is not for us as bishops to change that teaching.
Sorry, that was not my question. You talked about treating gay and lesbian people with respect, but you have opposed the Supply of Goods and Services Act, and you have opposed legislation that has provided equality, not for relationships, but for lesbian and gay people as individuals.
We are here today to talk about this particular Bill. I think this is important, and that the answers have been given.
May I ask you the same question I asked the representatives of the Church of England? If an opposite-sex couple marry in a Catholic church and subsequently one member of that couple undergoes gender reassignment, do they remain married in the eyes of the Catholic Church? Under this law, they will in the eyes of the law.
Parliament redefined marriage about 177 years ago in 1836. Was it right to do so, and if so, why is it not right to do so today?
I think you will find that it is the Act that gave Catholics the right to marry in their own church.
Archbishop Peter Smith : But it did not say that two people of the same sex could marry. The point is that various aspects of the marital relationship have changed over the years. Donkeys’ years ago, very often a woman was regarded as the chattel of the man, and that was wrong as we look back now with a more enlightened view. Never at any stage, until now, has it ever been suggested that marriage can be between other than a man and a woman. That is the key issue. It is the consequences of that that we want to talk about with this Bill.
The list of countries that already have same-sex marriage includes not only societies that we might think of as typically being very progressive, such as Scandinavia, the Netherlands or Belgium, but Spain and Mexico, which have significant Catholic populations. What is your assessment of how same-sex marriage has operated in those countries, and can you identify any problems in those countries with how the law has operated?
Archbishop Peter Smith : It is still not entirely clear and it varies from country to country, but I am told that there have been considerable difficulties over this in Canada in regard to teachers and people who have said in their personal blogs that they oppose the very notion and principle of same-sex marriage, and they have been disciplined. I have not got concrete evidence from the few countries that have brought this in.
Professor McCrudden: The common issue is that all those countries have sought to protect the religious freedom of particular Churches. Each country has dealt with it in a somewhat different way, because of the different traditions in those countries. The issue, if I could guide the Committee a little, is whether the protections that the Government intend to introduce will work in the domestic context. In that, it is quite difficult to have a comparative experience that is particularly useful, because each country deals with it in a somewhat different way.
Thank you very much for coming along, gentlemen. I support wholeheartedly your assertion that marriage should be between one man and one woman. I respect that. Archbishop, you clearly stated that marriage is between a man and a woman, as the Bible teaches. Do you feel that the majority of your Church supports that?
May I ask you a further question? If the legal definition of marriage changes, the law will require that children learn about gay marriage as part of sex education. Do you feel that there should be an exemption for Roman Catholic schools and for faith schools?
My second question was about the teaching. If the legal definition of marriage in law is changed, children will be required to learn about gay marriage as part of sex education. Do you feel that there should be an exemption for Roman Catholic or faith schools?
Professor McCrudden: We are back to the same question about the guidance. I will answer the question in this way, at a bit greater length. Section 403 of the Education Act 1996—I am sorry to be technical about this—says that the Secretary of State has a duty to give guidance, which must be taken into account by schools, including Catholic schools, on the nature of marriage and its importance for family life and the bringing up of children. Clause 11 of the Bill says:
“In the law of England and Wales”—
this obvious includes section 403—
“marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples.”
In other words, the nature of marriage in section 403 must be read subject to this new provision. Clause 11 effectively amends section 403. That interpretation is strengthened by clause 11(2). That means that the duty on the Secretary of State to issue guidance is effectively—although not in terms—amended to require the Secretary of State to issue guidance on the nature of marriage between opposite-sex and same-sex couples.
If the guidance simply said that it is a question of schools descriptively telling pupils that the law has changed, that of course causes no problems. The problem is that the guidance is specifically to be set in the context of a moral discussion about these issues—those are the terms of the Education Act 1996. In particular, it is a question of the importance of marriage, which clearly brings a normative question into play. Given that there is an effective amendment to section 403, the question arises about whether that will cause a problem in practice in schools. Your question implies that you have identified that it does.
We will be suggesting two different kinds of amendment to safeguard the position. First, an amendment to ensure that the current guidance is interpreted in particular schools to reflect the importance of the ethos of that school. Secondly, an amendment to ensure that section 403 cannot be interpreted to give the Secretary of State the power to impose a particular meaning of marriage, in terms of what is required, if that is contrary to the ethos of the school.
May I ask you the same question I asked the representatives of the Church of England? Are you satisfied that the quadruple lock in the Bill will prevent a successful legal challenge that would compel religious organisations to conduct same-sex marriages?
Professor McCrudden: The answer is no, but the reasoning for that answer is quite complicated—hence the 29-page memo that was commented on earlier—so you must bear with me.
The problem arises as a result of clause 2(1), which, as you are aware, states: “A person”—including a religious institution—
“may not be compelled to…undertake an opt-in activity, or…refrain from undertaking an opt-in activity.”
The question is whether there is a risk to the Catholic church, which I understand will not exercise a power to opt in, and whether that decision not to opt in is reviewable in any respect. I remind you that the impact assessment that was produced by the Department for Culture, Media and Sport states:
“There will be protections for religious bodies who do not want to perform same-sex marriages, not just from successful legal claims, but from the threat of litigation.”
The question is whether there is a credible—not certain—challenge that can be mounted to the decision by the Church not to opt in. The answer is, yes there is. I can go into some considerable detail on the reason why, but the short answer is, no we are not satisfied.
Despite what you have just said, I remain significantly unconvinced. My fundamental concern goes back to the fundamental principles of the Bill. The Bill is laid out as a permissive measure to allow for civil marriage and for those religious organisations that want to conduct marriages to do so—it is not mandatory, it is not forcing you to do it, so why is the Church, the Catholic Church in particular, spending so much time worrying about it? That is a question that a lot of people would ask. It is a question that a lot of people ask me: “Why are you spending so much time worrying about it? It doesn’t affect you.”
Where has there been successful legal challenge in European countries that have same-sex marriage so far?
Professor McCrudden: The more substantive answer is that different countries organise their relationship with the Churches in different ways. The question is whether—in terms of this Bill, in this context, in domestic courts in particular—there is a substantial risk. I am very happy to go into this in considerable detail, as I hope the Committee will, but in terms of the legal advice provided, the answer is that the position is not secure. In other words, why is the Church concerned? The Church is concerned because there is a possibility of review in the domestic courts. I am not for the moment talking about the European courts, though that is a separate question we can get on to. The question is whether there is significant risk in the domestic courts of decisions by the Church not to opt in being reviewable. The answer is yes.
So the answer is that, in the 10 years that Spain has had same-sex marriage, and other countries in Europe have had same-sex marriage, there has not been a successful legal case suing the Catholic Church to offer same-sex marriage. On the domestic issue, to pick up Professor McCrudden’s point, has the Catholic Church in the United Kingdom ever been forced to offer marriage to divorcees against its will by a domestic legal action?
Professor McCrudden: Is no, but irrelevant. If I may explain why, legally, the question is different—we are concerned to try to help the Committee on the details—it is because under the Human Rights Act there is specific protection, rightly, for non-discrimination. Under article 14, read with article 8 and particularly with article 12, which has been interpreted by the Court of Human Rights and is therefore applicable in the British context under the Human Rights Act, there is particular protection on the grounds of sexual orientation. The reason why that is the case is because of the importance that the Court attaches, particularly, to discrimination on the grounds of sexual orientation. We have no problem with that. It does, however, create a significant difference in terms of risk, in terms of challenges based on discrimination on sexual orientation, from what it does on other grounds.
I was going to ask Siobhain McDonagh to ask her question now, but Stephen Doughty is giving me such grief, he must come in right now.
Thank you, Mr Streeter, it is on this point in particular.
I wonder what you made of the noble Lord Pannick’s evidence to the Committee. He said very clearly:
“For the European Court of Human Rights to compel a religious body or its adherents to conduct a religious marriage of a same sex couple would require a legal miracle much greater than the parting of the Red Sea”.
He gave a clear position there, and I wonder what you made of his arguments.
Professor McCrudden: With respect, first of all, I have not read Lord Pannick’s evidence to the Committee, and I suspect he has not read ours, because it only came to you last night. I have to say that I have enormous respect for Lord Pannick, and I have acted with him and we are in the same chambers, so this is an intra-Blackstone debate that is coming about. The point is not for the moment with regard to clause 2(2), but with regard to clause 2(1). Lord Pannick’s evidence relates to whether or not you can be compelled under clause 2(2). The issue we are raising is whether or not there is a way in which the Church, in deciding not to opt in, is challengeable. It is quite clear that the Government have considered this issue and sought to address the problem with regard to 2(2).
To give a particular example, you have seen there is an exception for non-discrimination—an amendment to section 29 of the Equality Act 2010, with regard to clause 2(2). There is not an amendment with regard to 2(1). Why? The assumption has to be that the Government have decided that the exercise of the option under clause 2(1) is not a public function. That is, in our view, a questionable assumption and we have set out, again in some detail, the reason why it is a questionable assumption. I can go into the reasons for that in a moment.
Did you say you submitted this evidence to the Committee last night?
Your Grace, I am sorry, but I cannot let the comment go that Catholics who support gay marriage or gay people, or oppose the Church’s teaching on abortion or divorce, would probably leave the Church. I think all those things, and I am never going to leave the Church. I am a practising Catholic, and I have to say to you that there are vast numbers of people, certainly in parishes all round south London, who share my particular view.
I am concerned that you have presented today a view of the Church to many people who will not be cognisant of the Catholic Church that is different from how it operates. Catholic schools have always been able to explain their view on abortion, divorce and all sorts of things at the same time as carrying out their responsibilities to young people in teaching sex education and in moral teachings. There is no dilemma about that. We all understand it, but it has been done with kindness and courtesy. What disappoints me is the way that we are falling into legalese to show the Church in a very unkind and uncaring way.
Professor McCrudden: Of course, that is correct. The reason why we are before the Committee regards the problems that the Bill may cause. I am afraid to slip into legalese again, but one of the questions is the effect of the Bill on the guidance. That does not relate to abortion and those other questions; it relates specifically to marriage. That is why it is different.
I have a lot of sympathy with the previous point, having been brought up as a Catholic.
Society has moved on in its attitudes to the level of discrimination we accept in the provision of services and so on. Obviously a lot of people have expressed concerns to MPs that people will not be allowed to exercise their consciences, as they see it. What are your comments about that? What would you expect of someone who provides a public service? The example has been given of a Catholic hotelier who already does civil partnerships. Would you expect them to accept the law of the land? Generally, what is your view about whether people in that position should reflect society’s new norms about discrimination?
Archbishop Peter Smith: Obviously we must all accept what the law says, in the sense that will be the legal position if, as may well be the case, this Bill goes through. It redefines marriage. We accept that that will be the law of the land. It does not mean that we approve of it, and I will have some very fierce reasons for not accepting it in moral terms. I will ask Professor McCrudden to comment on this, but we are concerned about the possible difficulties with freedom of expression.
Professor McCrudden: There are several issues that arise with regard to Ms Ellison’s question. One is that the point about reflecting the norms of society means that public authorities are also likely to want the norms of society to be reflected. One of our concerns is with regard, for example, to section 149 of the Equality Act. Taking the interpretation that you have just put forward—that the Church should get its act together and reflect changes in mores—that may well be a position that public authorities will also take.
The problem is that section 149 of the Equality Act, in terms of the public sector equality duty, means that they may well try to penalise the Church for deciding not to opt in. That has particularly important implications with regard, for example, to relationships between public authorities and the Church over grants and contracts. One of the concerns that we have is not just about individual freedom of expression—although we have concerns there as well in terms of the Public Order Act 1986 and incitement to hatred provisions—but more generally about relations between the Church institutionally and public authorities, given the problems that section 149 will now seem to create.
Reversing a question that is often put to us, what would be your view if a Catholic who takes your view on this applied for and got a job as, say, a public registrar after the legislation was passed and then said, “It’s against my conscience”?
To clarify, I am asking whether you regard it as reasonable for somebody to knowingly seek a conflict with a job they are applying for.
Professor McCrudden: I need to put in a caveat here. First, as well as representing the Church, I have also been involved in representing Miss Ladele. The Committee should know that because obviously I am representing the Church here but it does have implications. I have cleared this with my clients, but nevertheless the Committee should know this.
There are two different questions. The first is whether existing registrars should be able to gain an exemption, and as you know the Ladele case was of that kind in the civil partnership context. As you also know, the European Court of Human Rights has recently held against Miss Ladele in that, despite the fact that—this is relevant for the Committee’s considerations—the Court of Appeal had decided, and the Court of Human Rights accepted, that it would have no effect whatever on the delivery of the service. Therefore, one question relates to existing registrars. The second, and the thrust of your question, relates to new registrars who are coming into place.
Thank you. We have three questions left; Ben Bradshaw, Jonathan Reynolds and then Chris Bryant.
Archbishop, you referred earlier to marriage being an institution that went back millennia, exclusively between a man and a woman. Have you studied the tradition of same-sex unions going back millennia, including those conducted by the early Church?
One of the themes that seems to be coming out of the evidence sessions that we have held this morning, has been how we will address some of the anomalies that might be created by the Bill. Therefore, what would be your view on any amendments that changed the legal definition of adultery or non-consummation of a marriage as grounds for divorce? Accordingly, what would be your view on any amendment that extended civil partnerships to heterosexual couples?
Archbishop Smith, in relation to the transgender provisions in the Bill and to pick up a point made earlier by the hon. Member for Stretford and Urmston, you indicated that the person changing gender would be legally married but questioned whether it would be possible to do that. Can you tell me whether that person and that couple would still be treated as part of the Catholic community and welcomed with dignity and respect?
Archbishop Peter Smith: They would certainly be part of the Catholic community, but we would not approve—the Church teaches clearly that you cannot change gender. I know that that is not the current mores out in secular society. As a priest or bishop, if somebody came along and said that they had changed their gender, I would have to say to them from the Church’s point of view, “You cannot get married.”
But your point earlier was that you would none the less welcome them with respect and dignity.
I was interested to hear you state explicitly earlier that marriage is always between a man and a woman, and just now, you answered the right hon. Member for Exeter. I can certainly recall being taught at school that three Roman emperors married other men, but why did the Theodosian penal code of 340 AD explicitly ban same-sex marriage on pain of death if it had not been happening at all?
It is a brilliant question, but it has nothing to do with the Bill.
I am sorry, but I am afraid I disagree with how you are chairing this, Mr Streeter.
Bishop, it seems slightly odd that you have been asked about adultery but said that the Church has no position on adultery, and you have no view on the historic teaching of the patristic fathers. In your evidence, you personally said that you have moral objections to the Bill, but you have not yet articulated them. Would you like to do so?
Archbishop Peter Smith: This is what I cannot understand. We have said right from the start that historically, marriage has always been between a man and a woman, for obvious reasons. A man and a woman have complementary genders. They are designed to come together in a loving partnership. Their love for each other issues, in ordinary circumstances, in the production of new life. It is that context—that loving relationship for life of husband and wife, mother and father—that all the social reports of recent years say is the best environment in which to bring up children. A psychologist will say that we as children need that complementary relationship looking after us.
So as a moral argument, then, the marriage of the Prince of Wales while his wife’s partner is still alive—both of them being divorcees—is immoral?
Thank you very much, Archbishop, and your team, for your answers. That concludes our session for now. We are very grateful to you for coming, and we appreciate your answers.
We will suspend the hearing for 10 minutes for a pit-stop. We will start again at 10.29 sharp.