Examination of Witnesses

Part of Marriage (Same Sex Couples) Bill – in a Public Bill Committee at 9:40 am on 12 February 2013.

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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.