Marriage (Same Sex Couples) Bill – in a Public Bill Committee on 14th February 2013.
We begin our proceedings in our final evidence session. We welcome our first set of witnesses. Thank you for being with us this afternoon and being prepared to give evidence. I ask you to introduce yourselves for the record and then we will move straight on to questions.
Robin Allen: My name is Robin Allen and I am head of Cloisters barristers chambers. I have worked in the field of equality and human rights since the mid-1970s, and have advised all the earlier commissions, the Equality and Human Rights Commission, the Equality Commission of Northern Ireland and a lot of others, on human rights and equalities issues. I have been particularly asked to advise the Equality and Human Rights Commission on the Bill.
Thank you very much. The first question is from Chris Bryant.
Are the provisions in relation to pensions in the Bill fair?
Rachel Robinson: Although we are incredibly supportive of the Bill as a whole, that is one area where we feel there is still a substantive inequality in it. Committee Members may know that Liberty recently represented before the employment tribunal John Walker, who challenged the decision of his occupational pension scheme provider to provide substantially less in survivor benefits for his civil partner than would have been available to a spouse in a mixed-sex relationship.
At the moment, the way that survivor benefits accrue in occupational pension schemes means that civil partners and, under the Bill, same-sex spouses would be entitled only to those benefits that have accrued since 2005. That creates real tangible inequality for same-sex couples. We think it is a shame, in a Bill that is in general so progressive and a positive step forward, to see that inequality perpetuated.
How many people do you think that applies to? Obviously, some occupational pensions have a more generous provision than the law requires them to have.
Rachel Robinson: Absolutely. We hear from the Government that two thirds of occupational pension schemes already provide equality parity in provision for same-sex and mixed-sex couples. We imagine that on that basis the liability to occupational pension schemes will be very limited. However, for the individuals who are affected, the personal impact will be great. For example, in the case of our client John Walker, the survivor benefit available to his civil partner would have been £500 per annum, as opposed to £41,000 per annum for a spouse. To help demonstrate the real inequality, had John Walker today decided to end his civil partnership and marry a woman he had just met, she would be entitled to the full amount of that survivor benefit, while his civil partner, with whom he has been in a relationship for a long time and made a civil partnership with as soon as it was possible, is not entitled to that. That is a real inequality.
Does anyone else wish to comment on pensions at this stage?
John Wadham: Obviously, the Equality and Human Rights Commission welcomes the Bill. It is a very important step forward to equalise relationships. Obviously, it would be sensible that the rest of the difficulties and discriminations were tidied up. So we take the same view that it would be sensible for the consequential equality issues to be dealt with within the pension schemes more generally.
May I follow this argument about pensions a little further? Would the change in the legislation that you are seeking provide for state pensions or only occupational pensions?
Rachel Robinson: Our concern here is with occupational pension provision. We do understand that there is an issue with differentiation between widows and widowers in other aspects of the regime, but as far as we are concerned the real substantive inequality here is with occupational pension schemes. We are only suggesting an amendment that equalises treatment within occupational pension schemes.
Would that be both public sector and private sector occupational pensions?
Rachel Robinson: We understand that at the moment for public sector pensions there is equality of treatment, or civil partners are treated in the same way as widowers. The real inequality is in the fact that for private occupational pension providers there is an exemption from the duty to make equal provision for same-sex and mixed-sex couples.
I do not think the Equality Act 2010 specifies that. I do not think it says specifically that it is private sector occupational pension scheme providers, does it?
Rachel Robinson: In our consultation with Government on this until very recently it has been clear, for example when we were taking forward our case challenging the same provision in relation to civil partnerships, that the liability they foresaw arising from the case was a liability to private pension schemes. I understand that recently there have been attempts to formulate an argument that there will be some impact on the public purse here. As far as we can see from our legal analysis, however, that is not the case. In fact, what we are looking at here is a small increase in liability to private pension firms, which, in any event, deal in risks and uncertainties. That is the nature of the work that they do.
I note what you say, and therefore I assume that you do not see this as especially burdensome on private occupational pension providers, not so much in terms of cost—although you might want to comment on the likely cost to them—but in terms of the management of their pension schemes.
Rachel Robinson: As far as we are concerned, there will be a very small increased liability. The Government’s concern about there being a retrospective liability on such schemes is rather misplaced, as far as we can see. It rather implies that there would be some way for such schemes to predict how many members of a particular scheme would be gay, how many would go on to form a civil partnership and how many would be survived to any significant extent by a partner, which are all incredibly speculative. Individuals who are in same-sex relationships pay in to their schemes in exactly the same way as everybody else, and it is simply unfair that they be asked to bear this additional burden and be treated in this unequal way.
The submission we have had from the Equality and Human Rights Commission, which I think is good and makes some interesting points, raises some concerns about the legal position for a minister in a Church that opts in but who does not want to conduct same-sex marriages. The submission states:
“However, our legal opinion suggests the bill in its present form could amount to the state acting unlawfully by interfering with the freedom of religious organisations...to enforce their religious doctrines within their particular organisation.”
Can you elaborate on that and what it would take to remedy that in the Bill, if it can be remedied?
Robin Allen: I think I was the author of that bit, so the baton has been handed to me. As you will know well from your earlier discussions, the Bill has been built on this idea of a quadruple of lock of freedom of conscience. The commission’s overarching view, as I understand it, and certainly we think this is overarchingly right and correct, is that the Bill treads a careful and thoughtful line in protecting freedom of conscience.
In clause 2, there is a provision that essentially says that a minister—I use the word minister to cover all sorts of religious persons who conduct ceremonies—cannot be compelled to conduct a ceremony that they do not agree with between same-sex couples. The situation that gave us some concern in the commission was that of a religious organisation that opts in for doctrinal reasons, so the doctrine of that particular religious organisation agrees with the concept of same-sex marriage, but a possible employee or office holder—call it what you will—who has the responsibility for conducting those ceremonies does not agree with that doctrinal change.
As things stand at the moment, on one reading of clause 2, that organisation would not be able to discipline or take action against that individual who was in doctrinal opposition with its organisation on this particular point. It may be that that is a policy decision for the Government to take in promoting the Bill, and that the best way to secure full protection of individual conscience is to have clause 2. But it is the point at which the individual conscience of a minister within a religious organisation comes into conflict with the doctrine of the organisation itself that we are a little concerned about.
I see the difficulty, because it could be said that a couple want to get married but the minister refuses. The couple then go to the organisation and say, “We can’t get married, even though you agree with this policy. What are you going to do about it?” The question then is what happens if the organisation removes that minister or disciplines them in some way? Is the individual who has a conscience problem being compelled in some form or another? That is the conflict.
Do you think that the legislation should clearly enable the organisation to discipline that individual? This brings in the bigger argument: in order to comply with the law, should a whole organisation— I am mostly talking about non-religious organisations; I realise you are talking about ministers—have to employ only people who are compliant and in favour of same-sex marriage? Or do you think we should, in your personal view, enable flexibility so that as long as an organisation offers that service, it does not require every single person employed by or affiliated to that organisation to go along with it? Do you think that is a sustainable situation, or should everybody have to comply, and therefore the organisation would have the power to discipline, backed up by the law?
John Wadham: The first question is quite right. If you are a member of a religious organisation or Church, you can request that organisation to marry you. In a sense, it is not for you to choose whether you have a particular minister, so to that extent I think the policy is correct. Individuals should not be able to go looking around for people who might have conscientious objections or religious beliefs contrary to the views of the organisation. In a sense, that is an issue for the organisation itself.
Our anxiety, however, is that irrespective of whether that couple can take proceedings or cause trouble, the organisation—as a religious organisation that establishes its own doctrine, or the doctrine is derived from the way in which it was set up—should be able to ensure that it can take action against its own employees and its own ministers. Our anxiety is that the Bill may prevent that from happening. From the point of view of the couple, we are not concerned. It is more about the freedom of the religion to organise its own affairs without the state—in this case the law—saying, “You are not allowed to discipline this person,” which would be a step too far. It would be an interference with religious freedom for that particular religious organisation.
So you favour 100% conformity by every member?
John Wadham: No. If the religious organisation does not want 100% conformity, that is entirely up to that organisation. But if it does want 100% conformity, it is not for the law to step in and say that they cannot have that. These two policy objectives could be resolved by amending the Bill so that you do not allow a same-sex couple to force an individual to marry them, but at the same time you allow the religious organisation to police its own ministers and staff. I think that that is possible. The two things are a bit mixed up and we are a bit anxious about that. But obviously, I would not want that to take away from the importance of the Bill.
I understand that. Conversely, then, we had cases in the European Court of Human Rights involving civil partnerships and a registrar who said that he or she—I cannot remember which—could not perform those ceremonies. You are not in favour of flexibility: if that authority had said, “We will accommodate her, and we will have six registrars who will do everybody and one who will only do some,” that would not be permissible, as far as you are concerned, and she should have been forced to do all or nothing, along with everybody else.
John Wadham: I do not think that those are parallel circumstances. A registrar’s responsibility, as a public official, is to deliver a service to the wider public. As for a member of a Church or a religion, the responsibility of that person is to follow the doctrine of the Church or religious organisation. Those are two different things. We are saying that it is for the religious organisation to be allowed to police those circumstances. That is not on a parallel with the Ladele point.
Robin Allen: I would add two things. I do not disagree with anything that has been said by Mr Wadham, obviously. One short point: it might achieve the aim that the commission has in mind here—I am not saying that it will definitively do that, because we have not had enough thinking time on this issue—if clause 2(2), which states that a person
“may not be compelled…to conduct a relevant marriage”,
contained the idea that, “A person may not be compelled by a couple wishing to get married”. That would certainly go some way in curing the defect that we think arises.
My second point is whether the points that we have articulated, and have been debating, mirror the situation for Ms Ladele. The short answer is that I agree entirely with Mr Wadham: they do not. Ms Ladele is a registrar of marriage, and all registrars of marriage are paid to work for the state in its various emanations to provide the service of conducting civil marriage ceremonies. The Bill redefines the concept of civil marriage. That is the answer, in short.
Thank you for coming along. I have a couple of questions for clarification. Recently, the Roman Catholic adoption agencies have made a clear stand on their concerns about adoption and about how the law will constrain and restrict them with regard to things that they feel, biblically and religiously, they cannot do. I would like your opinion on that.
Mr Allen, I think you mentioned giving some advice to the Northern Ireland Human Rights Commission. I had a meeting with that body back in early December, speaking with its members at some length. I would be keen to get your opinion, because obviously the Northern Ireland Assembly took a decision not to agree to same-sex marriage. What is your opinion today? I asked for its opinion and would like to get yours.
That is fair enough. I have already heard its opinion, so I was keen to see whether your opinion was similar, but you are not going to tell me that.
The Equality and Human Rights Commission is well known for intervening in cases where Christians and people with religious beliefs are taken to task on an issue, whatever it might be, whether it be foster care, provision of services in B and Bs, and so on. How many times have you supported a claim brought by a traditional Christian, and how many cases have you pursued against traditional Christians?
John Wadham: The answer to that is that, in the most recent case decided, which was the case of Eweida, we intervened in the European Court of Human Rights to support her case, and I am very pleased that she was successful. The commission has a very difficult job in the sense that it promotes equality and human rights across the board, so it wants to ensure that lesbians and gays have rights and equality, and are not discriminated against; but, as I have tried to indicate, the main point that we have debated so far is giving religious organisations as much freedom as we possibly can. That is our wish.
A year ago, I met with all of the Christian organisations, and many others, to work with them to try to support as many cases as possible in which they believed that their religious rights were being interfered with or that they were being discriminated against in relation to their religion. That has always been my approach during the period that I have been at the commission. It is also our public stance.
It is problematic that there are some religious individuals who have decided for doctrinal and other reasons to discriminate where it is unlawful, including, for example, the denial of access to bed and breakfasts. I am sympathetic to those who do that for those religious reasons, but it is unlawful, and it is unacceptable for gays and lesbians to be turned away from commercial premises for reasons that are not acceptable. It is possible, and I think we are trying our best to resolve those issues, but it is a hard job to do and we try and do it as best we can. Not everyone likes what we do, and we are criticised from all sides. I do not know whether that is a result or not.
I asked for the numbers. Perhaps if you do not have the details today, you could reply with the numbers of those traditional Christians that you have supported and those that you have not. It is in Hansard that the request has been made.
I asked you a question about Catholic adoption agencies and their concerns about how the measure will legally change their position in relation to adoption. Can you give us some reassurance on that?
John Wadham: The difficulty for the Committee with the Bill is that it is becoming a focus of a significant number of issues. As far as I understand it, there is no effect whatsoever in relation to the Catholic adoption agencies’ ability to promote their services or not. The issue here is about marriage for same-sex couples. As Robin has already said, this is an important development. It is an incredibly good Bill, and I would not want other issues to get in the way of the Bill going through Parliament and getting Royal Assent as soon as possible.
People have very real concerns.
John Wadham: I understand that there are genuine concerns. Collectively, this society is developing new ways of trying to support not only the rights of lesbians and gays, but also the freedom of religion of many different religious organisations. The Bill is an important part of that development, but it does not solve the other problems, which are still difficult to resolve.
If a foster couple belonged to a faith organisation that had opposed the legislation and they expressed their own opposition to same-sex marriages as being legitimate and, as a result, a local authority no longer used them as foster carers, would you support the foster carers? Would there be a case to be made in support of them?
John Wadham: The key issue in relation to adoption and foster care is the interests of the children. In a sense, it is possible—I hope it will continue to be the case—that the religious or political views of the foster parents or the potential adopters are irrelevant to whether they can look after the children. If foster parents, or those who want to adopt, actually say, “Some kinds of sexuality are unacceptable or not genuine,” there are real issues about whether the local authority or the organisation can place children with them. It is impossible to know what the sexual orientation of those children will be as they grow up or explore such issues, and that creates difficulties, but foster parents of all religions and of all persuasions can deal with that. Some individuals will not be able to do so, and that is a difficult assessment for the local authority. A person’s religious or political views, however, should not get in the way of them being able to look after children. The question is whether they will treat the children fairly and equally, and some people’s religious views prevent them from treating children equally. That presents a problem for the local authority.
That is my point. I entirely agree that the paramount consideration must be what is best for the child. I assume that the actual answer to my question is, yes, you would defend them. Can you define the threshold at which it becomes detrimental for the child to be in the care of parents who hold those views? Clearly, if they were to express those views by being malicious towards gay people generally, or, if the child turned out to be gay, they were prejudicial to the child, that would not be in the interest of the child.
But the point about parents holding the view that same-sex marriage is not legitimate is germane to this debate, which is about the principle. If people hold that view, at what point does it have serious repercussions on their ability to look after a child, even though they may be brilliant foster carers?
John Wadham: I have to answer the question in exactly the same way as the earlier question. The issue is not about people’s political or religious views, but about how they treat the children, so it is impossible for me to decide in advance. If somebody is opposed to the Bill, that does not make them unable to look after children, whether they are gay, lesbian or are developing their own sexuality. Of course, that is completely wrong. There will be circumstances in which people who have religious views will not be able to treat children fairly and equally, and that is when the local authority will not be able to place children with them.
Robin Allen: One of the subtleties of the Bill is that it allows for opt-ins and opt-outs, so individuals who hold different views about the nature of marriage from what civil marriage will become after the Bill is passed will not have a mark of Cain upon them for evermore. The Bill recognises that people have different views about what religious marriage is and what civil marriage should be. I do not think it is possible to state that there is a threshold at which holding those different views will cause difficulties in an adoption context.
Turn it around and look at it from the other point of view. Adoption decisions are never solely about the adoptive parents. They are almost always primarily about the children. [Interruption.] In law it certainly is true, and that is the important thing for you because you have got to get the law right, and you have got to state what the law is. The enforcement of the law is a different issue.
Thank you. We are going back to the Bill with Chris Bryant.
That seems like quite a challenge. Can I just ask the Co-op, because you are obviously an employer, what your answer to the question about pensions is, and what do you already provide to your staff?
Liz Bramley: We have a number of pension schemes, but our main pension scheme, which is open to all of our people, actually uses the terminology “qualifying partners”. In terms of how people nominate the benefits of their pension scheme, we already recognise any significant nomination that they have. I think we will have to go back and look because we have probably got some old schemes, and some schemes where the rules were written a very long time ago. I am not a pensions expert, but we can certainly investigate the impact of that, if it is of interest.
But survivor benefits would be exactly the same for whoever you nominate, regardless of whether they are your wife, or whoever else you nominate?
Which is exactly the same as the parliamentary pension, in fact.
May I ask your views on the implications of the Bill for transgender people?
Rachel Robinson: We understand that the provisions around pensions will have an impact for trans couples around occupational pensions. For example, a trans couple where one partner transitions to become the same gender will find themselves as same-sex spouses—after paying into the scheme in the same way as mixed-sex couples and expecting to receive survivor benefits—unable to receive those benefits. The Committee has already heard from a representative who deals specifically with the rights of the trans community. Our main and principled point about this is that we are pleased to see that trans couples will not have to end their marriage in order to legally transition. That is obviously an incredibly important point for us.
Do you think there is any need to reintroduce the fast-track procedure for gender recognition?
I asked if you felt there was any need for or any advantage to reintroducing a fast-track procedure for gender recognition, which used to exist under the Gender Recognition Act?
John Wadham: I think that it is good to see the measures in the Bill as they are, and I think they should have been implemented some time ago. Anything that we can do to resolve the difficulties experienced by some particular individuals who have been waiting for this—whether or not as a fast-track process—we should do quickly, as soon as the Bill gets Royal Assent.
Your organisation has in the past, I think, funded training for the British Humanist Association on religious freedom, which obviously would have an impact upon the redefinition of marriage and where we are in this debate today. Could you give us some indication of how you came to support that organisation and perhaps why not directly religious organisations?
ECHR funded training for the British Humanist Association on religious freedom. I wonder how that gives you balance and fair play for other organisations and how they see that?
John Wadham: During the first few years of the commission, we had a budget of about £10 million, which was given to us specifically to fund all organisations, including religious, humanist, secular and so on. We spent that money in the best way possible. The fact that we gave money to one organisation does not in any way suggest that we are beholden to that organisation any more than to any other. We gave money to other religious organisations. I am afraid I do not have the details in front of me, but obviously we can get back to you with that later.
Rachel Robinson: As a human rights organisation—as the commission decides and tries to provide support for fundamental rights across the spectrum of rights and freedoms—that is exactly what Liberty has done throughout its history. The question today has been quite specific, but we are very keen to get it across that, while we have this one concern about pensions, we are really delighted to see a Bill that marks a real landmark development in equal rights. We are delighted that the Government have gone to such efforts to ensure that the values, beliefs and traditions of religious organisations are protected and respected. We think that they have done that incredibly cleverly and in a fail-proof way, and we very much support the spirit of this Bill.
Can we get those figures, Mr Streeter, and listen to how the £10 million was spent? Just a breakdown of the organisations that benefited?
I am sure if Mr Wadham would like to send us those numbers that would be very helpful. Other than that, thank you very much indeed for coming today and giving us your evidence. It has been most helpful.