I have a very simple question. Some people have alleged that the European Court of Human Rights—some people have inadvertently called it the European Court and got themselves in a terrible mess with the European Union and all the rest of it—would immediately, if the Bill goes through as is, want to determine that people could sue the Church of England, or the Roman Catholic Church or others, to force them to perform a same-sex marriage. You have written to us, and I have read that advice, but would you like to read it into the record, as it were?
Baroness Kennedy of The Shaws: David could probably do it more effectively than I could, in that my areas of human rights are much more directed towards criminal law. However, I really take a strong view that the margin of appreciation would be used. When you look at the case law that does exist on respecting religion and article 9 on faith, I just do not believe that the Court would in any way entertain any kind of challenge to this legislation.
I know that previous witnesses have taken issue with that view and have said, “This is the position just now. Who is to say that it won’t change?” but that is the nature of law. You cannot guarantee that circumstances in 20 or 40 years’ time are not going to involve an evolution of law. At this moment in time, however, it is absolutely clear that the idea there should be some kind of opt-in would have the support of the Court in that it is an appropriate balance to be struck between the respective rights. In my view, that would certainly be the position just now.
Lord Pannick: I agree. If I had a client who came to me and said, “I want to bring a case of this sort,” I would tell them in clear terms that it was absolutely hopeless, and it will be hopeless in 10 years’ time as well. Let me briefly explain why. It would be hopeless because the complaint could not be that I am unable, as a member of a same-sex couple, to get married in England and Wales, because I would under this Bill be able to get married, with all the benefits and advantages that marriage brings. What I would not be able to do, and therefore what I would have to be complaining about, is that I could not have a religious marriage and that I could not have a marriage according to the rights of my religion, which has chosen not to opt in. It is completely inconceivable that the European Court would tell a religious body how to conduct a religious practice in circumstances where there is no detriment to the individual other than a religious detriment. Of course, the Court may interfere in relation to matters that have a religious dimension, and we can all think of them—contraception, abortion, whatever—but this is a context where the complaint is “I cannot get a religious advantage,” and that is something that the Court, for all its jurisprudence, refuses to enter into for very obvious reasons.
But a civil partnership would only be available to a same-sex couple. Do you think it should be extended to opposite-sex or heterosexual couples? Might there be a challenge there?
Lord Pannick: As a matter of policy, I can see the advantages in extending civil partnership to opposite-sex couples. I would be doubtful that a complaint would succeed in Strasbourg even on the basis that an opposite-sex couple cannot enter into a civil partnership. The Government would say, and I think would succeed in the argument, that civil partnerships were created in order to address a particular problem at a particular time.
Let us go beyond the Church ceremony to people’s expression of their faith in schools, the workplace and other areas. In your wide experience of human rights and religious liberty, and in terms of the manifestation of faith issue that has been raised in recent court judgments, do you see any implications flowing from the Bill?
Lord Pannick: I think the Bill raises very different issues. As you obviously know, there are difficult cases where issues have to be addressed as to the extent to which someone’s wish to exercise their right to manifest their religion may conflict with other public policy concerns. The only context in the Bill where that may arise would be in the context of the registrar. As you know, Ms Ladele, the registrar, failed in her complaint in the Court of Appeal and failed in the European Court when she said that she had a religious objection to being involved in registering a civil partnership. Were a future Ms Ladele to say, “I am a marriage registrar and I have a religious objection to being involved in a same-sex marriage,” she would fail for the same reason. The reason she would fail is because if you want to perform the public function of being a marriage registrar, you really cannot say that you are not prepared to marry people who are marrying according to the law of the land in a civil marriage ceremony. It is nothing to do with a religious function.
What about the situation for registrars in nonconformist Churches who have received a licence to conduct marriages? Do you see any issues in the case of a local authority with an equality duty, which might seek to take away that licence from a registrar who does not want to perform same-sex marriages?
Lord Pannick: Is the context that he or she is not prepared to perform a religious marriage? If it is a religious marriage, I would take the view that the local authority would have no power whatever to penalise the individual for refusing to participate in the religious marriage ceremony of a same-sex couple.
I wonder what you make of those who are attempting to use legal arguments to oppose the Bill, in particular the arguments put forward by the Catholic Church. He went into some detail, and I am not in a position to question some of it. What did you make of the arguments?
Lord Pannick: I read the Catholic bishops’ submission this morning, and I respectfully take issue with them. I think the points they raise are not based on real legal concerns. There may well be policy objections to this Bill, and I am not commenting on that. What I do say is that there is no legal basis for the concern that the Bill if enacted would cause difficulties, other than for the marriage registrar, in the circumstances that I mentioned. I cannot see that it is realistic to think that the legal difficulties they raise are going to occur. As I understand it, they are concerned about the human rights implications—they are concerned that the person, particularly in the Church of England, who performs the marriage is performing a public function, and therefore the Human Rights Act 1998 would apply. I think that is extremely unlikely, in so far as they are performing a religious function.
In any event, for the reasons I have already given, it is not a breach of human rights for a person to refuse a religious marriage on religious grounds, so I do not agree with their concerns. I do not think they say that a court would uphold their concerns. They are expressing fears, but one could always devise fears in this area. Perhaps flippantly, I have said that the possibility of a court upholding these concerns is on a level with the Red sea parting. I am afraid that it is not a realistic concern about something that is going to occur in real life.
Baroness Kennedy of The Shaws: I want people to know that this has of course been a source of great debate in the circles of human rights lawyers. This may be surprising, but it actually is what they are talking about in the pubs on Fleet street—and in the wine bars. All I can tell you is that by and large the general view is that this is about an unease with a policy issue, rather than a very serious legal debate of substance. Most people feel that in the drafting of this Bill real protections have been created for religion, and for those who would find it conscientiously objectionable to participate and be involved in such a marriage ceremony.
Just a quick question on Mr Doughty’s point: as I understood Professor McCrudden’s argument, he thought that the nature of the Catholic Church not opting in might be challengeable as discriminatory. I think that was the broad thrust of it all. It is quite complex.
Lord Pannick: Again, my answer would be that the reply to any complainant who is a member of the Catholic Church, and who says that they wish to enter into a same-sex marriage but are not able to do so under Catholic doctrine, would be that they are perfectly entitled under current English law to have a marriage. What they are not entitled to is a marriage under Catholic doctrine, but that is purely a religious matter. No court is going to interfere with the way in which the Catholic Church organises its own doctrine when there are no adverse implications for the individual, other than religious implications.
Baroness Kennedy of The Shaws: David articulates it better than anybody, but we are not saying that there will be no attempts to mount legal actions—I suspect there will. However, the view is solidly held that these would not be successful. If you were giving advice behind the closed doors of your chambers, you would say: “You are not likely to win. In fact, you are very unlikely to win.”
Lord Pannick, I am intrigued by your analogy; you said that this would require a legal miracle much greater than the parting the Red Sea to allow the children of Israel to cross from Egypt. Moses, with the divine intervention of God, of course could part the Red Sea. I am ever mindful of the phrase, “Doctors differ and patients die.” Lawyers have different opinions as well, but hopefully nobody dies as a result of the decisions that lawyers make.
The Chairman is looking at me, so I want to make sure that I get a question in. I was at a meeting last week at which three human rights lawyers gave an opinion. There were questions from the floor. This was the day after the Bill’s Second Reading in the House of Commons. Two of the lawyers gave a different opinion from yours. You will be aware of Aidan O'Neill, QC; he is very eminent. He has given a different opinion as well. With respect, why should we believe your opinion, as against the opinion of all those other people who say something completely different?
Lord Pannick: I can only give you my opinion. You must make a judgment on the quality of the arguments that you have heard. I have looked at Aidan O'Neill’s opinion. He raises a number of possibilities as to the success of legal action. I do not think that even he suggests that any of these possibilities would result in adverse legal decisions. I have attempted in the notes I sent to the Committee to explain why, in my opinion, none of those concerns is justified. As Helena said, I like to think—and so does she—that the views we are expressing are the mainstream views of lawyers.
Miracles can happen—I am not suggesting to you that it is logically impossible—but from all my experience over many years of arguing human rights cases, the points that have been raised are absolute certain losses. You would get nowhere in a domestic court or the European Court. You would get nowhere in the domestic courts because the Bill sets out with absolute clarity a number of protections. You would get nowhere in the European Court for the reasons I have explained. It is up to you whether you accept that. I entirely understand that others have expressed different views, but I can only respond to what I understand to be the reasons why they have given those opinions. For my part, I find them wholly unconvincing.
I entirely agree with the distinction you make about why a religious detriment could be a defence for holding that ceremony within a church. The confusion and the grey area comes where a Church collides with a public sector, as it were. If we had time, I would want to explore two of those European Court judgments—the case of the registrar and the case of the Relate counsellor—which illustrate this. If one takes the example of a Church that uses a school or town hall for its services—as many do if they do not have their own churches. If that Church clearly advertises itself as one that does not hold same-sex marriages, what would the legal position be of the council, the school or whatever it might be, in saying: “You can no longer use those public premises for your church activities, because you do not agree with same-sex marriage under the public sector equality duty”?
Lord Pannick: If the council or the school were to be so ill-advised as to seek to penalise the religious body only because it was acting in accordance with the law of the land and declining to solemnise same-sex marriages on its premises, and was acting in accordance with rites that I suggest will be upheld by the European Court of Human Rights under article 9 on religious beliefs and manifestation of beliefs, I have no doubt whatever that any court would say that the school or local authority was acting unlawfully in so penalising a religious body.
Let me give an example that I raised earlier with the Education Secretary, which he did not answer: say a teacher is teaching religious education or sex education, and is challenged by a child who says, “Miss, what do you think about same-sex marriage?” and the teacher cannot say, “It’s entirely legitimate, in my view; it’s on a par with heterosexual marriage.” What would the status of that teacher be? Would he or she have a defence, or would they lay themselves open to disciplinary action by the school?
Lord Pannick: Again, I would be very surprised indeed if a teacher could be disciplined for informing a pupil of an appropriate age, in a balanced manner, in proper language, of the moral issues that they consider to arise from same-sex marriage. No doubt the teacher would want to explain, if the child was of an appropriate age, that the law allows for same-sex marriage, but that many religions think that it is inappropriate and therefore refuse to allow same-sex marriages. It is inconceivable in my view that a teacher could lawfully be disciplined for taking such action. Obviously, it depends on the context and on the language used. We are assuming a balanced presentation of issues, including real moral objections and religious objections to same-sex marriage. I cannot see that the teacher would lack legal protection. Indeed, at the moment your question assumes, if I may respectfully say so, that this Bill will change that position, but it will not. The teacher already has protection. If he or she does not, then something should be done about it. They do have protection now, and they will not have less protection under the Bill.
Baroness Kennedy of The Shaws: You would expect Catholic churches and Catholic schools to teach Catholic doctrine. You really would have to look at the circumstances, and it would only be, I imagine, circumstances where a teacher was really in some way driving a very unbalanced view and proselytising in some way that really did not present the issues fairly.
Lord Pannick: Section 403(1) of the Education Act 1996 says that where sex education is given, it should be given
“in such a manner as to encourage…due regard to moral considerations and the value of family life.”
That is what the teacher would be doing in a balanced way. He or she would explain the religious views of this matter.
You have both been crystal clear on religious rights to marriage. Can we return now to civil ceremonies? Do you agree that the Bill as drafted will perpetuate an anomaly, whereby opposite-sex couples are denied access to a civil partnership? Might the Bill be better if that anomaly was removed?
Lord Pannick: As a matter of policy, I see the strengths of the argument put forward by Helena Kennedy. Of course civil partnerships are relationships specifically created for same-sex couples and were never intended for opposite-sex couples. The question of policy is whether once we move to same-sex marriage that continues to make any sense. I think it is not a legal question, but a question of policy.
To go back to the issue of schools, if a teacher were to elevate one kind of marriage over another, is that not likely to amount to indirect or direct discrimination?
Lord Pannick: The teacher would not be discriminating, in the sense of providing any benefit or facility or service; he or she would be expressing a view. If that view were based on religious doctrine, and the teacher were to explain to the pupils—particularly in a religious school, such as a Catholic school—that the Catholic or Jewish doctrine, whichever it was, believes that marriage is, for religious reasons, something between two persons of opposite sex, I cannot myself see that any disciplinary action could properly be taken, as long as the teacher provides that information in a proper educational context. No doubt the teacher would want to explain to the pupil that others take a different view and that the law of the land allows same-sex marriage. I do not accept the premise of the question—that the teacher could lawfully and properly be disciplined for telling pupils what the religious view is.
Lord Pannick: This problem arises at the moment, does it not, if the teacher is talking to their pupils about abortion, contraception, or many other issues? These dilemmas are faced and teachers are not, as far as I know, disciplined. If they are, and local authorities act wrongly, the rights of the teacher have been vindicated.
The Equality and Human Rights Commission says that it already arises in terms of sexual orientation, and its view is that it may be unlawful direct discrimination on the grounds of sexual orientation if someone distinguishes on those grounds in a personal, social and health education class.
Which I did not want to ask, but I have been told that I am to ask another question. I want to check another anomaly and check that my understanding of the law is correct. At the moment, as I understand it, a same-sex couple who go for a civil partnership, whether in a registry office or a registered hotel or wherever, can use religious imagery, whereas a heterosexual couple getting married in a civil ceremony in a registry office or hotel—exactly the same places—are not allowed to. The registrar will tell the heterosexual couple that they cannot have “Stairway to Heaven” because although it is not generally reckoned to be a hymn it none the less refers to heaven; they cannot have “Angels”, because again, although it is not generally reckoned to be a hymn—it might be a hymn to love, I suppose—it refers to angelic presences; they are not allowed “Jerusalem”. Basically, “Jerusalem”—[ Interruption. ] I did not have any of those; we had “Moon River”. I am right that, in law, there is an anomaly at the moment, and that will not change in the future. Same-sex couples will still be allowed to have religious references in civil partnerships but straight couples will not.