Clause 8 - Power to allow for marriage of same sex couples in Church in Wales

Marriage (Same Sex Couples) Bill – in a Public Bill Committee at 4:00 pm on 5th March 2013.

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Photo of Kate Green Kate Green Shadow Minister (Equalities) 4:00 pm, 5th March 2013

I beg to move amendment 2, in clause 8, page 8, line 17, leave out ‘may’ and insert ‘shall’.

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

With this it will be convenient to discuss amendment 3, in clause 8, page 8, line 20, leave out ‘may’ and insert ‘shall’.

Photo of Kate Green Kate Green Shadow Minister (Equalities)

We can deal with these amendments with great speed. Hon. Members will recall the discussion that took place during the oral evidence session when we heard from representatives of the Church in Wales in relation to clause 8, which recognises the special position of that Church following its disestablishment in 1929. That position has required certain explicit provisions in the Bill.

We quite understand and accept the need for a specific procedure to enable the Church in Wales to conduct same-sex marriages should it decide that it wishes to do so sometime in the future. However, in keeping with a theme that we have been discussing throughout our debates, it seems right that it should be a matter for the Church in Wales to determine for itself when and whether to carry out same-sex marriages. It would be a matter of regret if, the Church having made that decision, the Lord Chancellor were to then take an opposite view and seek to prevent the Church’s decision being given effect.

The amendments are therefore very simple. They would make it so that, should the Church make a decision to conduct same-sex marriages, the Lord Chancellor will not have the option to go through the necessary procedures to give effect to that decision; he will be required to do so. I hope that the amendments will be seen by all members of the Committee as being very much in the spirit of the discussions we have had about its being right for religious bodies to have the  freedom to make decisions for themselves. I hope that they will be accepted by the Minister and supported by the whole Committee.

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

I want briefly to speak in support of the amendments. First, I want to praise the Government for listening to the Church in Wales throughout the development of the Bill. Clause 8 shows that they have listened, and they have got away from some of the more difficult conversations that were had following early announcements about the Bill. I share the fear raised by my hon. Friend the Member for Stretford and Urmston that we seem to be leaving open a tiny possibility that the Lord Chancellor could prevent the Church’s decision being given effect. We want to make it absolutely clear that the Church in Wales, as it has itself requested, is able to make its own decisions. Its representatives asked specifically for this measure in the evidence sessions, and have done so in writing as well. Carrying on the position of listening to the Church and allowing it to determine its own affairs is very much in the spirit of the conversation so far. I urge the Government to support the amendments.

Photo of Helen Grant Helen Grant The Parliamentary Under-Secretary of State for Women and Equalities

I am grateful to the hon. Members for Stretford and Urmston and for Cardiff South and Penarth for their amendments. It was a great pleasure to hear the excellent evidence given to the Committee by the Rt Rev. John Davies and his colleagues. I understand why the Church in Wales might need reassurance from the Government that the Lord Chancellor will make an order when requested to do so. I know that my stance will be a disappointment, but I am afraid that I must resist the amendments. However, I am glad to have the opportunity to explain why, in our view, the amendments are not needed and to offer reassurance to the Committee and to the Church in Wales on this issue.

As the Bill stands, if the governing body of the Church in Wales passes a resolution to enable same-sex marriages, the Lord Chancellor must have due regard to the resolution that is made. He cannot simply ignore or refuse it: to do so could be deemed irrational and unreasonable, and would leave the Government highly vulnerable to legal challenge for unjustifiably restricting the religious freedom of the Church in Wales to conduct marriages of same-sex couples when it had chosen to do so.

It could be, however, that the Lord Chancellor considers that the terms of that resolution make it difficult for him to make an order; for example, the terms in which a resolution is expressed might be inadvertently unlawful. In such a case the Lord Chancellor would enter into discussions with the Church in Wales to agree a resolution that enables the Church to conduct same-sex marriages in the way that best meets its needs. In our view, it would not be appropriate for the Lord Chancellor’s hands to be bound at the outset, forcing him to make an order even if he was sure for good reasons that that order would not enjoy the support of Parliament.

To provide a little further assurance, we have listened carefully to everything that has been said. We have worked closely with the Church in Wales and have tried to put it in a position in law where it feels protected and provided for, by creating a tailor-made solution. During our evidence session with him I do not recall John Davies  appearing in any way to be unhappy with the clause as drafted, although I accept that he expressed a preference for a change of wording, which the Government are resistant to for the reasons I have given this afternoon.

I do not think that there can be any be doubt that the Lord Chancellor will, in practice, be bound, when properly requested by the Church in Wales, to make an appropriate order; he could not properly do otherwise. However, for the technical reasons that I have given, I must resist the amendments.

Photo of Kate Green Kate Green Shadow Minister (Equalities)

I am both disappointed and surprised at the Minister’s response. It is clear that the Church in Wales had hoped to see the Government accept the proposed amendments. The Church’s representatives were explicit in Committee that replacing the word “may” with “must” or “shall” in subsections (2) and (3) would recognise the Church’s right to determine its own affairs in relation to this matter.

I am sure that we have all noted the assurances the Minister has offered about the likely intentions and motives of future Lords Chancellor. However, we cannot know that a future Lord Chancellor would act in accordance with the values that we hope he or she would have.

I am surprised that the Minister feels that the amendments to this clause cause a particular difficulty for the Lord Chancellor. It seems as if an extra layer of prohibition is potentially being put on the Church in Wales and I am sure that it is not the Minister’s intention to add any more locks than are necessary for any religious body. Indeed, a running theme of our discussion on earlier amendments was that those locks presented in the Bill are recognised broadly, although not unanimously, as sufficient by the Committee. It is unfortunate that in practice an additional lock on the Church in Wales may be introduced.

I am struck by the wording of clause 8(1), which states:

“This section applies if the Lord Chancellor is satisfied that the Governing Body of the Church in Wales has resolved that the law of England and Wales should be changed”.

Clearly, it is unlikely that he would be satisfied if an ultra vires or illegal resolution had been made by the Church. In refusing to accept the amendments in my name and that of my hon. Friends, a further control is being put on the Church in Wales. Even if they pass a perfectly lawful and satisfactory resolution, they would not have certainty that the Lord Chancellor would be obliged to give effect to it.

Photo of Hugh Robertson Hugh Robertson The Minister of State, Department for Culture, Media and Sport

I thank the hon. Lady for the way in which she is presenting her case. As the hon. Member for Rhondda will know, one always has, when taking decisions as a Minister, half an eye on judicial review. I stand here as a Minister who has been judicially reviewed on four separate occasions. It is a relatively cheap and easy procedure. If the Church in Wales thought that the Lord Chancellor’s decision was in any way unreasonable, they could easily judicially review that.

Photo of Kate Green Kate Green Shadow Minister (Equalities)

I would certainly not wish to be the right hon. Gentleman, should he be a future Lord Chancellor, making that decision at additional risk of a further judicial review. I note that he argues that it is a cheap  and easy procedure, but my understanding of his Government’s intentions is that they are about to make it a bit more complicated, expensive and difficult to access. I am not sure, therefore, that the Church in Wales will draw great comfort from his assurance. Indeed, it feels wrong to assert that the right to give effect to a legitimately taken decision could be achieved only by going through judicial review. That is cart before the horse. If the Church in Wales’ governing body has made a valid decision in accordance with how it makes decisions, it would be wrong for the Lord Chancellor to review that, perhaps arbitrarily and thus potentially subject to judicial review. Why do they have to go through that extra hoop?

My hon. Friends and I do not wish to be difficult on the amendment, but I am disappointed and I feel that the representatives of the Church in Wales may feel disappointed too.

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

Does my hon. Friend agree that the Church has made clear—certainly in conversations with me, and no doubt with her too—that they wish to see this change? I am sorry if that was not clear to the Minister and the Committee, but they have specifically asked for this change. The Church in Wales will be disappointed if the amendment is not agreed, particularly given the spirit created by the clause in the first place.

Photo of Kate Green Kate Green Shadow Minister (Equalities)

If the Under-Secretary can give us categorical assurances that the concerns of the Church in Wales will be met on Report, we may consider withdrawing the amendment. In the absence of such assurances—I see no sign that the Minister is in a position to give them—with regret I will press the amendment to a vote.

Photo of Helen Grant Helen Grant The Parliamentary Under-Secretary of State for Women and Equalities

I am quite content to confirm that we will look at the issue very carefully.

Photo of Kate Green Kate Green Shadow Minister (Equalities)

I am grateful to the hon. Lady, and I very much hope that that means that we will see an amendment on Report. We will obviously come back to this matter at that time in light of today’s discussions. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 ordered to stand part of the Bill.

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

Adjourned till Thursday 7 March at half-past Eleven o’clock.