Examination of Witnesses

Marriage (Same Sex Couples) Bill – in a Public Bill Committee at 12:00 pm on 14th February 2013.

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Brendan O'Neill and Mark Jones gave evidence.

3.41 pm

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

Thank you for being with us this afternoon. Would you kindly introduce yourselves for the record? We will then get straight down to questions.

Mark Jones: I am Mark Jones, a solicitor in private practice specialising in employment and discrimination law.

Brendan O'Neill: I am Brendan O'Neill, a journalist and editor.

Q 414

Photo of Kate Green Kate Green Shadow Minister (Equalities)

Can you tell me what you think would be the disadvantages of allowing same-sex couples to marry?

Mark Jones: I act for a number of individuals. As a solicitor in private practice I get calls and e-mails all the time from people who are concerned about their workplace situation. I also have a particular reputation that means a lot of people with religious conscience issues in the workplace approach me. Putting myself to one side and speaking on their behalf, the sort of problems we come across are workplace conversations, for example where somebody has asked their view: “What do you think about marriage? What’s your definition of marriage? How do you feel about same-sex marriage?” They give their honest view, whether informed by religious belief or not. Perhaps they say, “I believe that marriage is the union of one man to one woman for life, to the exclusion of all others.” The other person says, “I have a different view,” and perhaps takes offence and says, “I feel that you are a bigot because of your view.”

Q 415

Photo of Kate Green Kate Green Shadow Minister (Equalities)

But is that a reason not to let people marry? I accept that there may be argument and dissent, but is that a reason for preventing same-sex marriage?

Mark Jones: You asked me what problems could arise.

Photo of Kate Green Kate Green Shadow Minister (Equalities)

Yes, and I am now asking a follow-up.

Mark Jones: Okay, shall I not answer that?

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

Answer the first question first and we will see how we go.

Mark Jones: I’m grateful, thank you. The concern is that being described as a bigot, homophobic or a discriminator is obviously an extremely uncomfortable experience for that individual and creates a workplace conflict, which is often resolved by the person resigning.

As for your follow-up question, does allowing same-sex marriage create a problem for an individual? It does for an individual’s work situation—for example, a registrar whose personal conscience is that they are unable to form a same-sex union because they believe that it is contrary to their conscience. So for them, yes, I could see that it could cause a problem.

Brendan O'Neill: For me, the problem with same-sex marriage is that it intensifies state intervention into private life and into the area of love and commitment. Of course, I recognise that the state has always brokered and overseen marriage and has administrated it in recent times, but the Bill gives the state greater leeway to define the meaning of marriage—the moral meaning of it—which is something that it has not done previously. The meaning of marriage has always been decided by communities over great numbers of centuries. Now, you have a situation in which marriage is being thrown open to redefinition by the state, not simply brokering by the state, and I think that is a step too far for libertarians such as me.

Q 416

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

Beyond the marriage ceremony, where do you see that problems could arise as a result of the Bill, in terms of applications of the public sector equality duty, and other issues like that?

Mark Jones: Leaving aside the impact on registrars, for example, and looking at other workplace situations, the situation for teachers is the one that is most concerning, partly because it is closest to home: I am married to a teacher myself. As regards the public sector, I do not know whether the individuals here have had the opportunity to see the opinion of John Bowers, QC, but I have had the opportunity to read it, and he expresses some concern about the impact of the public sector equality duty upon people within the teaching profession.

There are two aspects. First, there is the element of whether somebody needs to present a positive image of same-sex marriage that they might feel personally uncomfortable with. That could be when answering questions from pupils—they may perhaps give the caveat of their own opinion, which of course may lay them open to taunting from individuals, such as being accused of being a bigot, or whatever—or in staff room discussions, where there is an exchange of views. In terms of a positive duty, the public sector equality duty introduces that positive obligation to present marriage in a particular way. I do not have an issue with marriage being presented positively, but for those who may draw a distinction between same-sex marriage and heterosexual marriage, I can see great difficulties.

Q 417

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

Beyond the schools, can you see it impacting in further ways? We have had the Adrian Smith case, and there are things like that that have been presented. Can you see it impacting in those ways?

Mark Jones: I can see that anywhere where there is a conversation. For example, in the Adrian Smith case, the gentleman made Facebook comments. The observation of the judge was that those were not inappropriate comments when made on Facebook, but they were viewed inappropriately and acted upon. There was also another case, Chondol v. Liverpool City Council, in which another gentleman, Mr Chondol, said to a person to whom the council was providing a service, “Do you believe in God or go to church?” He was disciplined for that, that being gross misconduct. In that case, the employment judge said that that expression and that view were not unreasonable, but because the employer had taken the view that it was an unreasonable view, and would have taken that view whether or not it was informed by a Christian belief, or any other belief—that difference of opinion—there was no element of discrimination. In any workplace in which there will be discussion and there could be a conflict of opinion, should people struggle to resolve that conflict because of their personal views, I can see difficulties: people will be criticised for having expressed perfectly reasonable, temperate views.

Q 418

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

What would you recommend for the Bill, to deal with those issues?

Mark Jones: I think that people need to be given some assurance that these are conversations that they do not need to be afraid of having. The vast majority of people are perfectly able to have those sorts of reasonable discussions.

Q 419

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

But in terms of legislation, is there anything that needs to be put in the Bill in relation to the Equality Act 2010, or anything like that?

Mark Jones: I would want to see provision for reasonable accommodation as a principle: that there is the ability for those views to be reconciled and that, whether or not somebody takes offence, it is a question of whether or not the view has been reasonably expressed and can be accommodated. Secondly, I think there should be provision for freedom of conscience, so that that conscience can be accepted in the workplace and so that a positive message is sent to people that you do not need to be ashamed about your views, and that although people may disagree with those views, nobody is going to penalise you for holding them.

Q 420

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Health), Shadow DUP Spokesperson (Transport), Shadow DUP Spokesperson (Human Rights)

Thank you, gentlemen, for coming along. On Tuesday we had a presentation by Lord Pannick and Baroness Kennedy. They gave a very clear legal opinion, stating that they felt that the quadruple lock was sufficient to protect religious opinion. What you have indicated to the previous questioner is that you feel that that protection is, perhaps, not in place in the way that it should be for those with issues of personal conscience. I am keen to get your thoughts on whether legislation can be put in place that will give protection to those with issues of individual conscience.

You have also talked about the timetable for the Bill. Do you think that there is enough time for the Bill to be considered fully in the time scale that we are looking at?

Mark Jones: I do not feel able to give a personal opinion on that. One thing that needs clarification is that the quadruple lock is about the Church’s position, not the position of individual employees in the workplace.

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

Mr O'Neill, do you have a comment on the quadruple lock?

Brendan O'Neill: I think it is a little bit of a red herring, if I may say so, because I think the authoritarianism that Mark is talking about reflects the authoritarianism that exists in the Bill itself. I think they are intertwined. The fact that it might be possible for people to be reprimanded for criticising gay marriage is, I think, a reflection of the fact that the gay marriage campaign has, in essence, been an authoritarian one. Right from the beginning, the ability of people to say, “I think same-sex marriage is ridiculous,” has been quite restricted. You are referred to as a bigot, hateful and homophobic simply for opposing a Government proposal to institute a new form of marriage. I think the potential authoritarian consequences that we are talking about reflect the fact that to overhaul marriage in this unilateral way is, in itself, an authoritarian step.

Q 421

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Health), Shadow DUP Spokesperson (Transport), Shadow DUP Spokesperson (Human Rights)

The issue of what happened to Lillian Ladele is one that many of us have some concern about. That lady had a contract with a council for something different from civil partnerships and suddenly found that her contract had been changed in the middle of that. A court case was taken that overruled her and disadvantaged her greatly. With that happening to someone who had employment before, with a different contract, can you understand the concerns that those with Christian beliefs and religious convictions have in relation to this  legislative change? How do you see that working for Christians? How can we assure Christians that the right legal protection is there for them?

Brendan O'Neill: I can see the concerns Christians have. I am not a Christian myself—I am an atheist—but I can see the concerns they have. What I am worried about is that in focusing on Christian concerns, we are overlooking the more subtle attack that is being launched, in my view, by this Bill, which is on the millions of people who are already married, who entered into marriage for very specific reasons and who one day in the near future will wake up in a different institution from the one they entered into. They will wake up in one that is about companionship, rather than about generational renewal and something more social. I am worried about the consequences of overhauling an institution for the people who are already members of it.

Mark Jones: As I was the lawyer for Ms Ladele, I might be able to add to that. It does greatly concern me. Obviously, I have to declare the interest that I am Ms Ladele’s lawyer, so I cannot claim complete impartiality in that area, but I think her case is one that is extremely concerning. As you say, her job changed and there was no idea that it was going to change in that way. She made her employer aware, before they decided to designate her as a civil partnership registrar, of the effect it would have, and they decided to make her a civil partnership registrar without any consultation with her at all. It was accepted that there would be no impact on service delivery, so there was no reason beyond an ideological one, because of the “Dignity for All” policy, to make her a civil partnership registrar or require her to do the services. Despite being designated, so she could do it, she was still allowed, initially, a dispensation so she did not have to.

When Ms Ladele explained her religious beliefs in a letter, which was described by the Employment Appeal Tribunal as temperate and reasonable, that was described by her employer as gross misconduct, and this was not just an ordinary employee; it was the assistant director of law within the council.

It may be that some of the eminent QCs who have spoken here would say, “Well, this is nonsense. It is like somebody complaining about the snow being cleared from outside the front of their path,” but as an individual employee without pro bono access to the leading QCs who can argue their corner and establish it, to be told by an assistant director of law that your expression of your temperate view is gross misconduct is terrifying. What are we telling an individual in the workplace to do in that situation? The majority of them simply resign quietly.

Q 422

Photo of Kwasi Kwarteng Kwasi Kwarteng Conservative, Spelthorne

We have gone on at some length about matters of individual conscience. I am particularly interested in what you have to say, Mr O'Neill, with regard to where you think this campaign for gay marriage was coming from, because the notes that we have seen say that you think that the campaign was rootless and you think that it says more about the political class than about any need, from the ground up, for this sort of legislation. I just thought that, in the brief time that we have, you might want to talk more about that.

Brendan O'Neill: I think same-sex marriage is an entirely invented, purely symbolic issue. It does not have any roots in social activism—there have been no public protests for gay marriage—and it does not have its roots in old-style gay rights activism, either. If you go back to original gay rights activism, it was more concerned with criticising the institution of marriage than it was with joining it, so it is a very new campaign. It is very rootless, very unhistorical. I think it is driven more by the needs of the political class today for an issue around which they can define their morality and say, “We’re good, we’re liberal, we’re the new Rosa Parks, the new Martin Luther Kings. Look what we’re doing.” I think that is why it animates only people within the political and media classes.

If you talk to ordinary people, they are so completely unmoved by this issue. I know there are lots of opinion polls that show a small majority think it is a good idea—55%, 50% and so on—but if you look at those opinion polls in detail, you will notice that larger majorities—78%—think it is not an important issue. Only 7% say that it is an issue that will determine how they vote in the next election. So yes, people are tolerant of homosexuals, which is a wonderful, great thing, but they are confused by the priority that is given to this issue.

I do not think that that is surprising, because this issue came out of thin air, and it is largely being pursued for the benefit of individual politicians and campaigners, rather than for the benefit of society. I think the political class has lost sight of the benefits of marriage for society in its rush to advertise that it is modern, new and liberal.

Q 423

Photo of Stephen Doughty Stephen Doughty Labour, Cardiff South and Penarth

By that logic, Mr O'Neill, Parliament would not spend half the time discussing half the issues that it does, because a lot of the public, 90% of the time, would not consider that a lot of the things that we discuss here are important. We still need to make laws on them and we still need to discuss them. It is a completely fallacious argument.

I really do have to take issue with the point that you make about the grass-roots nature of the campaign and where it came from. I have certainly had people—gay and lesbian people who want to get married—raise the issue with me on the doorstep. I had it during my by-election in November. They asked, “Why is this currently not allowed?” It might have been a different sort of campaign from traditional ones in the past, but surely when you have heard the evidence from some of the groups that have been here, who have indeed been campaigning around the issue, surely that contradicts what you are saying.

Brendan O'Neill: Those are not what I would describe as grass-roots campaigners. They are sharp-suited lobbyists, small groups of people who— [Laughter.] There is plenty of room for those people in the world, but they are not grass-roots campaigners by any stretch of the imagination. I am not just saying that gay rights campaigning has changed in the way it is carried out. I am saying that this represents a complete break with what gay rights activists called for in the past. If you look at the first gay pride parade in 1972, they described marriage as a prison for women, children and homosexuals, and they said that that prison needed to be abolished. So there has been a dramatic shift in what gay people are demanding.

The Stonewall rioters of 1969 said that all social institutions, including marriage, needed to be abolished. Now you have representatives of something called Stonewall coming in here and saying, “We really want to get married.” So we can at least talk about there being a severe break with the gay liberation politics of the past and what this campaign represents. I think that it is an elitist campaign that does not have any traction with the public.

Q 424

Photo of Desmond Swayne Desmond Swayne The Lord Commissioner of HM Treasury

An elderly couple in a same-sex relationship came to see me recently. They had been in a civil partnership since that institution became available, although their relationship was much older. They had kept their relationship secret throughout their professional lives, because it was unlawful. They were serving in the Royal Navy. They are very grateful for the changes that have been made, and for civil partnerships, but they wanted to get married. They complained that they could go to Spain and get married, so why could they not get married in the country that they had served throughout their professional lives? Do you not accept that it is a reasonable thing, however bourgeois it might be, for them to desire and a reasonable thing for me as a legislator to seek to accommodate? How will my accommodating them change in any way the marriage that I have?

Brendan O'Neill: If you read the Government’s consultation paper on same-sex marriage, it does not mention family, children or community, except when it twice talks about the transgender community. It does not mention the fundamental things that marriage was originally bound up with, which was about managing and organising the renewal of generations and interaction between generations. So I think you are right to say that you are elevating a bourgeois view of marriage, which is marriage as companionship, and which is marriage, as Cameron’s Government describes it, between two people.

For a great number of people out there, beyond your old couple, there are millions of people for whom marriage is about more than two people. It is about family, children and a community. It is about binding yourself together, not only to an individual, but to society itself. I think it is perfectly reasonable for you to pay attention to the old couple who came to see you. I think it is unreasonable for politicians to redefine marriage, as it is understood by millions of people, for the benefit of themselves and small groups of people out there.

Mark Jones: I suppose what I can pass on is what I was told this morning by a former registrar who decided to leave the service when she felt compromised. She was in touch with her former colleagues—there are a dozen or so within that particular service—and to all of them, including some who hold a religious belief and some who have no religious belief, she was explaining, “At the beginning of the service, we explain what marriage is. It is one man, one woman, voluntarily entered into for life, to the exclusion of all others, and there is a notice to that effect in every registry office in England and Wales.” The explanation that I was given is that there is extreme confusion—and actually, distress—for every single individual within that organisation about the definition. It is what they have based their understanding on. They have gone into the job, and that is the explanation they give at every marriage—presumably it is consistent with their belief, not a conflict of conscience—and now they will have to be saying something different.

It comes down to the starting point of, is it appropriate to redefine? What is the impact of that definition? I suppose the impact is on those who attach a value to the original definition. What value do we attach to the value that they attach to that?

Q 425

Photo of Ben Bradshaw Ben Bradshaw Labour, Exeter

Forgive me, Mr Jones, if I have misunderstood you, but you seem to be saying from your advocacy of a freedom of conscience clause, and the reference you made to the lady you had been representing, that you would advocate people being allowed to disobey the law, in effect, if it conflicted with their religious beliefs.

Mark Jones: Freedom of conscience would mean that it is consistent with the law. If there is not a provision, you would be requiring them to act in conflict with the law or with their conscience.

Q 426

Photo of Ben Bradshaw Ben Bradshaw Labour, Exeter

But you would like, in effect, for registrars not to have to perform same-sex marriages. Is that what you are saying?

Mark Jones: For example, you have the ability, for people who have a conscientious objection to abortion, that that can be accommodated.

Photo of Ben Bradshaw Ben Bradshaw Labour, Exeter

Can you answer my specific question?

Mark Jones: For the registrars in that situation, would I like those registrars to have to choose between their job and their conscience? No. I would like their conscience to be accommodated in the workplace.

Q 427

Photo of Ben Bradshaw Ben Bradshaw Labour, Exeter

So you would like them to be able to disobey the law. What about the provision of goods and services? Would you like to extend it to the provision of goods and services law?

Mark Jones: Would you like to give me a scenario? A bed and breakfast situation—

Mark Jones: That is not an employment context—I have to say that I have not been approached by anybody in that situation who has been conflicted.

Q 428

Photo of Ben Bradshaw Ben Bradshaw Labour, Exeter

Where would you draw the line in terms of allowing people to ignore the law because of their religious feelings or beliefs?

Mark Jones: If you make provision for conscientious objection, it is not ignoring the law. You are still within the law. If you do not make that provision, you are asking the person to either step outside of the law or take themselves out of the situation where they are in conflict with their conscience. In the bed and breakfast situation, I suppose you are saying, “If you cannot reconcile that with your conscience, stop running a bed and breakfast.” Should that person have the ability to turn somebody away because of their sexuality or any other reason? No. Personally, I have some discomfort about that, but I have not been presented with such a situation. No individual has approached me, who I can report to the Committee and say, “This is what I would need in order to accommodate that situation.”

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

A number of colleagues are still indicating that they want to speak, but we only have 10 minutes left.

Q 429

Photo of Stephen Williams Stephen Williams Liberal Democrat, Bristol West

This is for Mr O'Neill. I always raise my eyebrows or smile inwardly when a journalist or columnist refers to “ordinary people” and implies that politicians are out of touch. We call ordinary people “constituents”, and that is the advantage of being a constituency MP, particularly if you are like me, as I have lived in my seat all my adult life. I only open my front door and I am confronted with people’s opinions every single day that I am at home, so we do have a reasonable political compass as to what people are thinking. I was wondering what your evidence was—not only your opinion—for saying that there is no demand from gay, lesbian or bisexual people for equal marriage.

Brendan O'Neill: If you look at the way that this is compared with the civil rights movement in America in the 1950s and 1960s, the differences are astounding. In America in the 1950s and 1960s, there were mass protests. There were year-long boycotts. There was fighting. There were water cannons. People were arrested and put in jail. It was violent and it lasted for years. [Interruption.] I am explaining to you why I think there has been no real demand for it.

Here, on this issue, there has been no campaigning like that whatsoever. You just had a few campaigners say, “We would like to get married,” you had some national treasures, such as Elton John, agreeing with them, and all of a sudden it is the main political and moral issue of our time. The ease with which it became the key issue of our time is the most striking thing, which I think speaks to the way in which it plays a useful role for politicians more than it does any palpable thirst on the ground for marriage to be redefined in order to allow homosexuals to get married. There has been no visible obvious street fighting or protesting or marches or long fights for this right to get married. It came out of nowhere, which is why ordinary people or constituents or the public—whatever we want to call them—are quite perplexed by the issue and that is reflected in opinion polls that show that very small numbers of people think it is a political priority, which suggests to me that they are confused as to why it has been prioritised in the way that it has.

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

I have three questions left and about seven minutes, so please make the questions and answers brief.

Photo of Stephen Doughty Stephen Doughty Labour, Cardiff South and Penarth

To be honest, Chair, I am so bemused by the comments that you can carry on.

Q 430

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

You say that the Bill contains a redefinition of marriage and that it may well undermine marriage. Is that an undermining in law or in culture? How do you see that playing out?

Brendan O'Neill: There has been a collapse of what marriage represents in culture and in society. Fewer people are getting married than ever before. There are lots of divorces and so on. It is worth having a debate about that, but that needs to be kept separate from this campaign, which is redefining marriage. It redefines marriage away from its role as a communal thing through which people brought up the next generation and through which they tied themselves and their children into their community. It is redefining it away from that and towards  two people. If you look at the Government’s consultation prior to the Bill’s publication, it repeatedly mentions “two people”. It alienates marriage and turns it into an individualised, bourgeois institution of companionship, rather than what it was and what it is for millions of people, which is a social tool for bringing up the next generation.

Q 431

Photo of Simon Kirby Simon Kirby Conservative, Brighton, Kemptown

On that very point, if marriage is only about generational renewal, what do we say to couples who are too old to have children, who choose not to have children or who sadly are not able to have children? Indeed, what do we make of the special provision in the Marriage Act 1949 for deathbed marriages? Surely none of those are about generational renewal, but are marriages none the less.

Brendan O'Neill: I am not saying that it is only about generational renewal. I am saying that that is a key, important aspect of it for many people—[Interruption.] You can all roll your eyes and mock as much as you want.

Brendan O'Neill: No, but some people over here are. I am saying that for great numbers of people out there marriage is not just about two people; it is about generational renewal. Even when people get married and they do not have children or when people get married later in life, it is measured against the ideal of marriage, which, even through all the trials and tribulations it has gone through over the past 50 or 100 years, is still as a social mechanism for coming together to raise children—to raise the next generation. I think that politicians are creating a real rod for their backs if they undermine that institution without thinking about it very carefully first.

Mark Jones: I will make just one point. I am married. My wife and I cannot have children. Does that devalue our marriage? No. I am looked at pityingly occasionally by some people who wish we could have children, and I am looked at enviously by some people who do have children, but when my wife and I—apologies to my wife if she watches this—come together and there is a union, we are doing the same thing that other people do whose bodies have the ability to pass on their genetic material and create new life. It is that union of a man and a woman. That is something special about marriage. It is the wording used within the civil marriage service. Of course, there are arguments for changing that; society changes and perhaps you ought to reflect it. If I am somebody saying, “You know what? I am coming at this as a homosexual person. I would like my views to be adopted. I would like that to be considered,” that is perfectly fine, but I would be absolutely appalled if I felt that in order to accommodate me you were compelling somebody to act against their religious conscience. I would not want that done in my name.

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

Thank you very much indeed. Colleagues, our time has gone. I thank our last two witnesses for their expert and helpful evidence. It is much appreciated.

Ordered, That further consideration be now adjourned.— (Mr Swayne.)

Adjourned till Tuesday 26 February at five minutes to Nine o’clock.