Marriage (Same Sex Couples) Bill
Lord Anderson of Swansea Excerpts(10 years, 9 months ago)
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Lord Glenarthur
I very much support my noble and learned friend. The debates at Second Reading and in Committee referred to the word “marriage” as being the point at issue and how it could be described in the Bill. The problem with the Bill has been the word “marriage” and it is difficult to find another solution to that problem. For those who have concerns about finding a way to redefine marriage, which the Bill tries to do, it seems sensible, notwithstanding all the sensible comments of my noble and learned friend about the relevance of children to all this, to have a form of words that qualifies marriage under all its circumstances rather than totally redefines it. I very much support the amendment.
Lord Anderson of Swansea
My Lords, it is good to follow the noble and learned Lord, who describes himself as an ordinary person but who happens to be a former Lord Chancellor, one of the most distinguished lawyers in this country. I congratulate the noble and learned Lord on his diligence and ingenuity. I wish that I had thought of the amendment, in which he reproduces the title of the Bill. He clearly sees both sides and has made a serious effort to build a bridge between what might otherwise have become a very polarised debate. Yet, he has given both sides the substance of what they seek.
There are those who believe in traditional marriage, the definition that has existed since time immemorial, and others who wish to extend the definition to include same-sex couples. The Government wish to change that definition with all deliberate speed. I shall not linger on this matter but the deliberate speed is something that puzzles many of us, given that it looks as if the Government were converted to this idea only some time after the election manifestos of three years ago. Now there is nothing stopping them in their haste to get the Bill onto the statute book. Tradition has to be got rid of speedily.
For some, marriage is not just a ceremony with an approved form of words and mutual vows but a sacrament that has existed for many years. I, for example, look forward to my wife and I renewing our vows in a church with the local vicar on the occasion of our golden wedding anniversary in September. For us, our marriage 50 years ago was not some simple ceremony but a form of sacrament before God. Some hold that dear for that reason. For others who have come to their view only over the past year or two—and I include the Government and the official Opposition—the extension of the definition is necessary for equality. Perhaps that is as part of a Damascene conversion as they did not think so a year or two ago.
The amendment of the noble and learned Lord allows two things. Same-sex couples will be able to say in all honesty that they are married and truthfully assert that status when they discuss their marriages with other people. At the same time, the proposal recognises that same-sex marriages cannot be the same as traditional marriages. The noble and learned Lord mentioned characteristics such as non-consummation, adultery, being physically different, and the effect on children, a subject in which he has had a close interest. It is therefore absurd to try to make the same that which is essentially different. The amendment therefore allows for same-sex couples to be distinct but at the same time to be married and to be able to say so when they discuss their relationship with other people. It is an ingenious effort to bridge the gap, which I wholeheartedly support and commend to your Lordships’ House.
Lord Lester of Herne Hill
My Lords, we all agree that marriage is a vital institution. The exclusive commitment of two individuals to each other nurtures mutual love, support and stability. For those who choose to marry and their children, marriage provides legal, financial and social benefits and, in return, legal, financial and social obligations.
Two competing views of marriage were helpfully identified by Justice Alito in his opinion in the United States case of Windsor on 26 June, in which he dissented from the majority—the majority having decided that the denial by the Defense of Marriage Act of federal benefits to same-sex couples lawfully married under New York law was unconstitutional.
In his dissent, Justice Alito referred to the traditional conjugal view that sees marriage as,
“an intrinsically opposite-sex institution—the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so … Throughout human history and across many cultures, marriage has been viewed as an exclusively opposite–sex institution and as one intrinsically linked to procreation and biological kinship”.
That is the view of my noble and learned friend Lord Mackay and others who have spoken so far.
Justice Alito then referred to what he called the newer view that is the consent-based vision of marriage,
“a vision that primarily defines marriage as the solemnization of mutual commitment—marked by a strong emotional attachment and sexual attraction—between two persons. At least as it applies to heterosexual couples, this view of marriage now plays a very prominent part in the popular understanding of the institution … Proponents of same-sex marriage argue that because gender differentiation is not relevant to this vision, the exclusion of same-sex couples from the institution of marriage is,
what he describes as,
“rank discrimination”.
The Bill removes that rank discrimination by securing equality for same-sex couples according to the newer view of consent-based marriage while protecting the traditional conjugal view of opposite-sex marriages for religious organisations such as the Church of England, the Catholic Church and others which do not wish to celebrate or solemnize same-sex marriages. It protects freedom of religion in that important way.
The supporters of this group of amendments—I shall make only one short speech on all of the amendments, which are grouped together on an industrial scale—do not like the Bill and seek to substitute for the phrase “the marriage of same sex couples” the phrase “marriage (same sex couples)”. They believe strongly in the traditional conjugal view of marriage as being much better, as we have heard, for the upbringing of children and they do not believe that the marriage of same-sex couples is to be regarded equally. They reflect their deeply held religious beliefs that I understand and fully respect.
However, these amendments would obscure the main purpose of the Bill, which is to enable same-sex couples to marry in accordance with the newer view of consent-based marriage because they are excluded under the traditional conjugal view of marriage. There should be no hierarchy that puts traditional marriage above consent-based marriage, whether in the definition of the marriage of same-sex couples or whether they are to be treated equally in all respects with the marriage of opposite-sex couples.
The attempt to define same-sex marriage differently from opposite-sex marriage while claiming that they are somehow equal would inevitably be seen by ordinary men and women in the street—and by me, as a not very ordinary man in the street, I suppose—as attempting to give the traditional view of marriage a superior status. It is essential to be sure that the marriage of same-sex couples is not regarded as less worthy than the marriage of opposite-sex couples. That is why I cannot support these amendments.
Baroness Butler-Sloss
It happened with abortion but, if I may say so, it was not a marriage. We all know how special marriage is; for goodness’ sake we would not all be here, voting in different ways, if we did not think that marriage mattered in a special way. It is for that reason, despite what the noble Lord, Lord Lester, says.
Lord Anderson of Swansea
Is the distinction not this: that there is no mainstream church, be it a Christian church or a Muslim group, in this country which believes in the principles of racist intolerance, whereas there are many mainstream people, Muslim and Christian, who do believe in traditional marriage? It is quite a simple distinction, which perhaps the noble Lord will consider.
The Lord Bishop of Chester
My Lords, as a bishop of the Church of England who is constrained by the church not to conduct same-sex marriages, the vision of the noble Lord, Lord Alli, has stimulated me briefly to rise to my feet. I suppose that I should declare an interest, given that I am a sort of registrar. Perhaps I am the only one here, as a bishop of the Church of England.
This is a modest amendment, as has been pointed out, but it has a certain symbolic importance. A lot turns on the status of the issues that we talk about, and that has dogged our debates throughout. The noble Lord, Lord Lester, asked why there is an exception in this case. However, the law does make exceptions in relation to the strongly held beliefs of a significant number of members of a religious body in relation to sexual orientation. The law allows religious bodies to have single-gender priesthoods or whatever. We have agreed exceptions in that area that we have not agreed in other areas, such as divorce. That is why the parallel between same-sex marriage and divorce—I think that the noble Lord, Lord Pannick, raised that point—does not quite follow. It depends on what one regards as the status of the different issues. For example, as I pointed out at Second Reading, historically the canons of the Church of England have never banned clergy from remarrying divorced people. A different status applies in this instance.
One of the problems is that a lot of people here feel—and I understand why—that this whole issue is a no-brainer, and that anyone who is opposed to same-sex marriage is almost de facto and de jure homophobic. That rather destroys the concept of reasonable debate. I find that that happens in the Church of England over the issue of women bishops: if you are opposed to that, somehow a glaze goes over people’s eyes and they cannot speak to you at all. As the noble Lord, Lord Deben, said, it is about having tolerance in the democracy in which we live. The issue is a small one.
As I understand it—though I speak as a fool in the presence of so many lawyers—the principle in this country is that we do not legislate retrospectively unless there is a compelling reason to do so. I do not think that a compelling reason to force existing registrars to conduct same-sex marriages has been demonstrated in our debate. In that spirit, I hope that we can accept the amendment.
Lord Anderson of Swansea
My Lords, the question has been posed whether it was reasonable for an existing registrar to have anticipated that at some date unspecified in the future the law in respect of same-sex marriage might be altered.
Let us consider a registrar who is now, perhaps, 45. Almost 10 years ago we had the Civil Partnership Act. During the passage of that Bill through this House the noble and learned Baroness on our Front Bench said in terms that there would be no relevance for marriage. That was said clearly in terms. If that same registrar—who might have been put off by the possibility of same-sex marriage—had looked at the manifestos of the different parties at the last election, not one of which mentioned same-sex marriage, should he nevertheless have anticipated that there was a faint possibility of that happening? Of course not. It is wholly unreasonable, even in the light of the recent past and the stampede over the past years, to imagine that someone would have anticipated that the situation would change.
Effectively, we are talking about tolerance, generosity and whether the way of the majority—the 3:1 balance we had in the last vote—will be juggernaut-like and we will go on nevertheless.
The noble Lord, Lord Lester, talked about victims. He talked about the victimhood, if I can repeat that word, of the couple who are not married because the registrar has an objection. However, what is certain is that a registrar will be a victim because—given the identikit of the person I have mentioned, who is perhaps in mid-life, has been a registrar for a number of years and did not anticipate the change—his job will go. Being a registrar does not provide specific training for anything else. He will face the fact that the terms and conditions of his employment, on which he embarked some years ago, have been fundamentally altered. However, there is no reasonable prospect of victimhood for the gay couple who quite properly ask to be married, because there can be a reasonable accommodation. There will be a team or group of registrars in a particular district, and the couple can avoid the one individual who has a conscientious objection and, without any fuss, move their case to someone else. After all, I suspect that, after the initial surge of gay people who want to get married, there will be very few cases and relatively few registrars involved. If the district is very small, an arrangement can be made with an adjoining district—as in other areas of local government administration—for the relatively small number of cases that occur.
The noble Lord, Lord Pannick, took a fairly absolutist view, in my judgment. Public officials enforce the law; the registrar is a public official; he enforces the law or he takes the consequences. However, I think that there are other public officials for whom accommodations are found in statute. Doctors, given our National Health Service, are also public officials in the broad definition of the term, and so are teachers. Given that teachers overwhelmingly receive their salaries from the state, their terms and conditions of employment come from the state, yet we find exception for them.
In effect, the number of registrars likely to be involved is small. This is a transitional arrangement. For me, this is a test case of the absolutism, tolerance and generosity of the Government. Equally, it is a test case for the Opposition, who are currently cheerleaders—although perhaps I should refrain from using that word—for the Government. The proud tradition of my party over the centuries has been to look after the small person, the “village-Hampden” or the person with a conscientious objection who might be hurt by changes. I hope that we shall not abandon that proud tradition and will accept this small, transitional and quite proper amendment.
Baroness Berridge
My Lords, I rise to support this amendment, which is recommended in the report of the Joint Committee on Human Rights in relation to the Bill. I serve on that Joint Committee.
In Committee, your Lordships heard emotional exchanges about what was or could be the experience for gay couples seeking a civil marriage if there was any form of conscientious objection. Those scenarios were upsetting. The argument that public services should be available to all service-users is compelling but I do not believe that it is unassailable. A number of individual registrars who are currently in post did, indeed, contact their MPs to say that they would consider resigning their posts should they not be allowed to object, on the basis of conscientious objection, to performing these ceremonies. I asked Simon Hughes MP, who serves on the committee, specifically about that question, as no Select Committee of this House should make recommendations that are unsupported by evidence.
I believe that the distinction between choice and conscience is important here, in that if people say that their conscience does not permit them to do this, that means that it does not allow them even to enter a process of choice. They are not expressing a mere preference. Neither time nor expertise allows me to go into that issue in any greater depth. I am sad that the noble Baroness, Lady O’Neill, is not in her place on the Cross Benches; I am sure that she could elucidate that point more eloquently than I can. However, there is a difference between choice and conscience.
I believe that it is this Chamber’s role to reach an accommodation that will enable same-sex couples to marry under the new law without causing the possible dismissal of a small number of public servants. I should be grateful if my noble friend the Minister would clarify whether the role of the registrar is limited just to the action of registration, as this matter caused some confusion in Committee when your Lordships considered the role of authorised persons. As regards Ms Ladele, I believe there is an arrangement in the Civil Partnership Act whereby certain personnel do not have to conduct civil partnership ceremonies if their local authority permits them not to do so. I leave it to the Front Bench, with its expertise, to clarify those two matters.
Given that the parameters of culture are changing so rapidly, I believe this amendment to be a suitable compromise between two different groups of our citizens, each with deeply held convictions. The ability of all citizens to access public services is not violated by certain public servants having a limited exemption. Having heard the arguments and circumstances outlined in Committee, I repeat that the exemption must be applied carefully and sensitively. It is not a perfect solution for either side but it is a sensible and reasonable compromise in the circumstances.
Marriage (Same Sex Couples) Bill
Lord Anderson of Swansea Excerpts(10 years, 10 months ago)
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Lord Anderson of Swansea
There may be differences on the detail in relation to the nature of the review and its timing—as the noble Lord, Lord Fowler, has said—but I hope that my facial expression as conveyed by television will indicate that I am in broad agreement with the principle of the noble Lord, Lord Dear.
I pose a simple question to the Minister in this respect. What do the Government lose by acceding to the request for a review after a reasonable interval? They have given assurances that there will be no adverse consequences to any individual and that all the litany of adverse consequences on people in this country and abroad will not come to pass because they have a watertight Bill. If they are so confident of those assurances that there is no possible harm to those who wish to express their deeply held views, why are they likely to contest this in principle?
In the past, when we have cited problems which have arisen—perhaps in Washington state, the Netherlands or in Sweden—it has been easy for the Government’s spokesman to argue: “Our position is different. We are not Sweden and we are not the Netherlands”. Let us concede that this is a laboratory experiment. We do not in fact know how watertight the reassurances that the Government have given will be. We do not as yet know what will actually happen in practice. After a reasonable interval, we can review and find out whether the assurances are indeed as watertight as the Government claim. Therefore I support the principle that there should be some form of review and I hope that the Government will accede to it.
Baroness Royall of Blaisdon
My Lords, in my view this amendment is absolutely unnecessary in the terms put forward by the noble Lord, Lord Dear. I think that the process that the noble Lord suggests is flawed and unnecessary. However, I am a great fan of post-legislative scrutiny and I know that the committee looking into the Mental Capacity Act is doing a splendid job. I think that every Act should be subject to pre-legislative and post-legislative scrutiny as a matter of course, so I would not be against post-legislative scrutiny, but I am utterly against the sort of judicial process that the noble Lord speaks of.
I say to my noble friend Lord Anderson that I find it slightly offensive that he talks of this Bill as a sort of laboratory experiment. I recognise that it brings about a profound change in our society—from my perspective, a very welcome change—but it is certainly not a laboratory experiment. I wish to put that on record.
I say to the noble Lord, Lord Dear, that his suggestion would be completely impractical. The first same-sex marriages will not take place until about a year after the Act has passed. A review in two years’ time would be completely mad. I have discussed this with the Minister and I think that there will be some standard post-implementation evaluation of the Bill, which will be very welcome, but that will rightly not take place for some time. I ask the noble Lord whether he looked at his own marriage one or two years after he entered wedded bliss. I suspect not. In same-sex marriages we tend to think about the seven-year itch, which is a long time after the two years that the noble Lord is talking about.
The thing that would interest me in 10 years’ time would be to go back to noble Lords who are currently against or have deep concerns about the Bill to see whether their views of same-sex marriage have changed. I would wager that the same acceptance that we now have on all Benches for civil partnerships—
Lord Anderson of Swansea
The difference is that, whatever reasonable time one chooses, this is not about looking at the nature of marriage or the changes brought about; it is about looking at the protections that have been promised and whether or not they are effective. That is the real purpose of a review, whether it be a post-legislative review or something else, at the appropriate time.
Baroness Royall of Blaisdon
I understand what my noble friend is saying and, as I say, in terms of post-legislative scrutiny I think that that is not a bad thing to look at. However, I point out that views of civil partnerships over the past nine years have changed profoundly and I think that we will find that views of same-sex marriage will change also. Many of the fears that people expressed at the time of the Civil Partnership Bill were very much the same as the concerns being expressed about the same-sex marriage Bill.
The noble Lord, Lord Dear, cited statistics about Spain and the Netherlands. He has his set of statistics and we have ours. I do not have my own statistics to hand. It would be extremely helpful if the Minister could, in due course, write with our interpretation of those statistics so that they, too, are on record.
“Referendum provisions
(1) A referendum is to be held in England and Wales on the issue of same sex marriage.
(2) The referendum is to be held on 7 May 2015.
(3) If the Secretary of State is satisfied that it is impossible or impracticable for the referendum to be held on 7 May 2015, or that it cannot be conducted properly if held on that day, the Secretary of State may by order appoint a later day as the day on which the referendum is to be held.
(4) Any day appointed by order under subsection (3) must be before 1 June 2016.
(5) Where a day is appointed under subsection (4), the Secretary of State may by order make supplemental or consequential provision.
(6) The Secretary of State must by order make provisions for the conduct of the referendum.
(7) An order under this section may not be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.
(8) The question that is to appear on the ballot papers is—
“At present, the law in England and Wales defines marriage as the union of a man and a woman. Should the law be changed to define marriage as the union of two people—whether a man and a woman, or woman and a woman, or a man and a man?”.
(9) Those entitled to vote in the referendum are the persons who, on the date of the referendum, would be entitled to vote as electors at a parliamentary election in any constituency.”
Lord Anderson of Swansea
My Lords, Amendment 48 stands in my name and those of the noble Lords, Lord Cormack and Lord Singh, both of whom are present this evening.
If Amendment 48 were adopted, after this Bill reached the statute books there would need to be a referendum of the people of England and Wales in which a simple majority supported the redefinition of marriage proposed by this Bill before the new legislation could take effect. The proposed new clause sets out the date—of course, that of the general election, to ensure a good turnout in the referendum. In my judgment, the question is a fair and simple yes or no to the proposed change.
I readily admit that there was a time when referendums were alien to our British tradition. Those of my grandparents’ generation never got to vote in any referendums. Of course, things have changed in recent years. Leaving aside the vote on Sunday opening of public houses in Wales, there was in 1975 the Common Market referendum; in 1979 the first devolution referendums; in 1997 the second devolution referendums; in 2011 the Welsh Assembly referendum; and of course there was the referendum on PR for Westminster elections in May 2011. If the Prime Minister has his way, in 2017 there will be a further referendum on our future membership of the European Union. That proposed referendum is on a relatively complex matter. By contrast, the referendum on this Bill would be a simple choice. In my view, there is a far greater public interest on this issue than in several of the other referendums. There is a clear constitutional precedent for the use of referendums now in decision-making and clearly the Government have no objection in principle to the use of referendums.
What is it about this particular issue that merits the provision of a referendum? I give three main reasons. First, there is the magnitude of the change. In the first instance, we need to recognise the very radical nature of the change proposed by the Bill. While there is no denying that aspects of marriage have changed over the years, the basic definition that it is a lifelong commitment of a man and a woman in a potentially procreative context has not changed for millennia. Indeed, there is a very real sense in which marriage predates the state and in which our marriage laws do not so much define marriage as reflect a pre-existing definition. In that context, seeking to redefine marriage is revolutionary: first, because marriage has been defined in one way for so long; and secondly, because we are seeking to use a political means to redefine something that was not defined politically in the first place. Many champions of the limited state would suggest that we should respect the boundary between civil society and the state and not engage in such projects. However, if one is to do so, the need for a very clear mandate becomes particularly developed.
Secondly, there is the magnitude of the change in the absence of that electoral mandate. Surely no person speaking on behalf of the Government can plausibly claim that there is an electoral mandate for this change. We need to understand that there has been no mandate. It is one thing to seek to introduce a more modest change without an electoral mandate but to engage in this kind of fundamental change without such a mandate is frankly shocking. There was no manifesto commitment from any party within the coalition or from my own party without. Some have sought to point to the Conservative Party’s A Contract for Equalities as justification but that will not do. It was an entirely separate document from the 2010 manifesto, published just three days before the election and long after postal voting had begun. Moreover, that contract did not commit to redefine marriage, only to consider reclassifying civil partnerships as marriage—something that would have involved only amending the Civil Partnership Act, not rewriting the Marriage Act. Equally, during that election campaign the then leader of the Opposition told Sky News that he had no plans to redefine marriage. Of course, during the passage of the Civil Partnership Act it was made clear from the then Government’s Front Bench that that did not constitute a step towards equal marriage. Thus, the strength of particular pressure groups appears to be quite formidable.
Thirdly, there is the violation of constitutional due process. In this mandate-less context for a very far-reaching change, one would have expected the Government to tread with some deliberate care and to strive to make up for the lack of an electoral mandate by being careful to do everything very properly: conducting a number of high-quality consultations, perhaps publishing a Green Paper and then a White Paper, or perhaps establishing a royal commission. One would certainly have expected a draft Bill and some form of pre-legislative scrutiny by a Joint Committee of both Houses. The only thing we got was a single and very flawed consultation process. In the first instance of that process, all submissions were anonymous so there was nothing to stop people with strong views making multiple submissions. Moreover, the anonymity also means that we have no way of knowing what proportion of submissions came from abroad, perhaps in response to a particular foreign pressure group. That should certainly be considered in light of the fact that those submissions were not made by British citizens who stand to be affected by any change in our domestic law.
Lord Fowler
My Lords, as with post-legislative scrutiny, I have some sympathy with the principle of referendums. I am totally unlike my noble friend Lord Cormack. We came into the House of Commons at the same time, in 1970. I am slightly unusual in being a pro-European who is in favour of referendums. In my 1970 election address, I said that before Parliament decided on entry into the Common Market there should be a referendum. Conservative central office was not very happy with that but there we are; it is one of those things.
The referendum took place before Parliament had taken a decision, so that Parliament could be guided. Here we are being asked to support a referendum in two years’ time—not even tomorrow, but in two years.
Lord Fowler
Hang on! The noble Lord spoke for 20 minutes. I have spoken for one, so he might retain a little patience.
We are being asked to support a referendum in two years’ time—two years after both Houses on a free vote have overwhelmingly voted in favour of the legislation. That is the fact of the matter. All the arguments put forward by the noble Lord, Lord Anderson—
Lord Wallace of Tankerness
My Lords, I of course recognise that there are differences. The Government fully recognise that that there are different concerns within different religions, but I do not believe for one moment that they have been ignored. No religion will be obliged to conduct a same-sex marriage against the views and wishes of that religion. We have tried to build in as many safeguards as possible to do that. It is something to which we are acutely sensitive and we wish to ensure that adequate protection is given.
It is important to remember that civil partnerships were introduced to give same- sex couples equivalent rights and responsibilities at a time when marriage was not available to them. Despite the opposition at the time, their introduction led to greater acceptance and inclusiveness for same-sex couples in wider society.
History shows that undertaking important social change to extend fundamental rights to minority groups who experience inequality and social injustice is not always easy. Not all is necessarily favoured by the majority, but certainly the opinion polls that I have seen from more recent times show that there probably is a majority. I believe that providing for a referendum on same-sex marriage in this Bill would delay progress in removing a current and manifest unfairness. I therefore ask the noble Lord to withdraw his amendment.
Lord Anderson of Swansea
If there is a majority, as the noble and learned Lord suggests, what fear does he have about testing the real opinion of the people of this country? If he is concerned about delay, why not bring it forward, even before the date of the election? The election date was mentioned only because it would ensure a good turnout, which perhaps an earlier referendum would not. The noble and learned Lord suggested, for example, that in the past we have had referendums only on constitutional issues. Yet he supported a proposal that ensures that even trivial transfers of powers to Brussels will trigger a referendum. That is hardly consistent with what he suggests.
I know that we could go on debating this, but I will end by first thanking all those who contributed to this short debate, particularly my co-sponsors, the noble Lords, Lord Cormack and Lord Singh. To the noble Lord, Lord Dobbs, I say that even if noble Lords do not have a vote on this, they do not have a vote in general elections at the moment. It is hardly illogical that noble Lords do not have a vote in a referendum on this matter. It is consistent, but if the noble Lord wishes to move an amendment and it is accepted, so be it.
It was highly simplistic of the noble Lord to suggest that gay equality is the same as black and white equality. I was a leader of the anti-apartheid movement in Europe over a number of years, because I could see no difference at all between blacks and whites, as there was in the Group Areas Act in South Africa and so on. However, in my judgment, there are serious differences between a traditional marriage and a gay marriage and it is wrong to equate them. It is naive and simplistic to suggest otherwise.
To the noble Lord, Lord Fowler, I say this: if he thinks that there will be delay, again he might suggest that the date of the referendum be brought forward. Even he cannot suggest that the Government now have a mandate for this change. No one has answered what is perhaps a key question: why the hurry? Why, after all these years when there has been no change, are the Government in such a rush? There must be some plausible reason. I cannot see any serious reason for it, but equally why are the Government so afraid of giving people a voice?
Finally, I remind the Minister that many noble Lords chose not to vote against the Bill at Second Reading—I can attest this from my own knowledge—either because of their view that the House should show restraint when there has been a majority in the other place, or because of the view that we are principally a revising Chamber. It would have been inconsistent to prevent scrutiny, but they would look again at the matter when it came to the vote on Third Reading. I am not convinced that the Government have made any serious concessions—certainly in respect of the conscience matters, although I am ready to look again at the list that the Minister gave me during an earlier debate.
If the Government have failed to make other serious concessions relating to existing and future registrars, teachers, the public sector duty and so on, then Amendment 48 will inevitably become more attractive. In the mean time I shall not press it at this stage. I shall again ask the Government to give a simple answer to the question: why the hurry? I shall reflect further on the position, and beg leave to withdraw the amendment.
Marriage (Same Sex Couples) Bill
Lord Anderson of Swansea Excerpts(10 years, 10 months ago)
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Lord Anderson of Swansea
My Lords, I hope that the Government will listen to the points that have been made and recognise that there is a real problem here. The Government can, after all, be magnanimous. They have had substantial majorities in favour of the Bill, both in the other place and here. Now they can listen to the clear case for the protection of those who will be adversely affected if this Bill, as no doubt it will, becomes law. I hope also that the Opposition will recognise our proud tradition, over the centuries and beyond, of trying to support radicals; those who are against the wind, those who have a legitimate conscientious objection.
I do not agree with my noble friend on the Front Bench who was trying to reduce to absurdity the idea of where we draw the line, of what happens if someone objects to mixed-race marriage. There was not an objection. Even in apartheid South Africa, if one were white one could find a church in which to marry a black woman, or the other way round. It is rather like asking what would happen if a registrar objected to marrying someone with ginger hair. Of course, one can raise an objection of that sort and try to draw a silly distinction, but there must surely be a point where reasonable people accept that there is a substantial body of opinion which is in favour of traditional marriage, and if it is at all possible, as in the terms of the amendment, one should seek to accommodate it.
The noble Baroness, Lady Cumberlege, should be congratulated on the balanced and tolerant way in which she moved her amendment. The good sense of the people should be accommodated because there is not only the problem which the noble and learned Baroness, Lady Butler-Sloss, mentioned: that the contract of an existing registrar will have been altered by statute to their detriment. This will not have been part of their original terms and contract of employment, so they would stand being faced with the awful choice of either going against their conscience or losing their job. Surely there should at least be some transitional arrangements to allow for this. Furthermore, looking at this in a practical way, one asks how many people are likely to be affected by this. What will the demand be for same-sex marriages? The evidence from other jurisdictions is that demand will be relatively small. I concede that the evidence points to the fact that there was a more substantial demand in the initial stages, because of the pent-up demand from those who wished, for example, to transfer from civil arrangements to a full marriage position; but afterwards, there was a relatively small number.
If it is the case—I think it is very likely to be the case—that only a small number will wish to enter into a same-sex marriage, then that is surely manageable and should be managed by reasonable accommodations and by good will on the part of the Government and those who seek to legislate. I am not even sure of the concession made by the noble Baroness that someone might be compelled to officiate if there is not someone actually available within Islington or wherever. If it is likely to be the case that only a small number are going to be affected, in larger jurisdictions there will be more than one registrar in any event, and it is surely not beyond the wit of an accommodating and understanding local authority to make arrangements with an adjoining local authority. In so many other areas of competence, local authorities co-operate.
I fear that there is a whiff in the Government of “The juggernaut moves on. We shall insist that these people conform, jump to attention, do what we say they will do, or they will properly be dismissed”. There surely must be a more tolerant attitude, as we have had over the years, to people who have an established objection of conscience. Certainly, over the years my party has recognised that the establishment has always railed against those who AJP Taylor called troublemakers, because troublemakers lead to progress. We have always respected those who stand against the wind of public opinion or of legislation of this nature. If we have reasonable good will and magnanimity, we will seek to accommodate that small minority of people rather than say, “You must conform or else”, or otherwise seek to reduce to absurdity their own position.
My own judgment is that we can find the good will that dealt with the sort of problems we faced in the previous century when there was a majoritarian approach. The Liberal Democrat approach was rather to encourage politicians to introduce laws that, yes, were mandated by the majority, but with sensitivity to minorities where there might be negative or unfortunate effects. When it became apparent that a law designed for and supported by the majority—this one is perhaps supported by the majority but it is designed for a minority—might have negative effects, the answer was not to abandon the law or put the minority outside its scope, which could negatively impinge upon it, but to provide different treatment under the law.
One saw the same authoritarian approach with the then Government’s attitude towards the adoption agencies of the Roman Catholic church. With a degree of good will, they could have been accommodated. The Catholic agencies could have referred same-sex couples who wished to adopt to other agencies that would help them, but no, the authoritarian bandwagon rolled on and the effect was negative in respect of children. Many of the agencies were forced to close. People may have felt better inside at that, but the unfortunate losers were the children who had been cared for extremely well by those Roman Catholic agencies.
The truth is that a law designed for a majority, or in this case a minority, can have perverse and unintended consequences for minorities. Similarly, a law designed for one minority can have perverse and unintended consequences for other minorities. In my judgment, with good will, they should and can be provided with appropriate accommodations. The simple effect of this legislation will be that if you are a registrar, you are religious or your identity is such that you cannot in all conscience officiate at a same-sex marriage without acting in violation of that identity, you have an awful choice to make. You can either officiate and act in violation of your identity and your conscience or you can lose your livelihood. Surely that goes against all the traditions of this country when an easy way out can be found.
The fact is that many employed by public authorities have their consciences respected. Examples have been given—I will not go over them again—of atheist teachers. The noble Lord, Lord McColl, cited an example from his own experience of doctors and abortion. If we pass this Bill unamended, the effect of it will be that every registrar with a sincerely held objection to same-sex marriage must either act in violation of their identity and be willing to officiate at such marriages or lose their vocation. That is the blunt choice. I end by saying that it would be a frightening and illiberal Britain which would force them to do such a thing. Just as we make space for atheist teachers and for doctors and nurses, surely we should make space for registrars.
Of course the job of registrars is to officiate at marriages, but I would submit that the number of same-sex marriages is likely to be very small indeed. I recall that during the Committee stage in another place, the Minister was asked the following by Tim Loughton MP:
“Why is that the principle that a surgeon who has strong Catholic views is allowed to pick and choose whether to perform abortions or other surgery, if the same principle cannot be applied to a Catholic registrar with strong views, allowing them to pick and choose whether to perform that other public service? What is so essentially different that we protect one but not the other?—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 26/2/13; col. 234.]
The Minister responded by saying that they are different functions: one is an abortion; the other is a same-sex marriage. That is hardly an adequate answer. Surely there is an inconsistency in the Government’s position—in both cases public servants perform a public function for which the public pay. Merely saying that they are different functions is inadequate. Registrars should have their conscience accepted as well.
Those of us who were brought up just after the Second World War recall the statements attributed to some of the awful chairmen of conscientious objectors tribunals. Imagine them saying to a young man who, on conscientious grounds, did not wish to go to war, “you cannot pick and choose”. I think of Crito and Plato in this context—you cannot pick and choose. This has shades of some of those awful chairmen of tribunals. I hope that this House, consistent with its traditions of individual liberty and freedom of conscience, will support this worthwhile amendment.
Lord Alli
My Lords, I understand that it might seem unfair to the right reverend Prelate, or to the noble Baroness, Lady Cumberlege, that registrars who do not approve of gay marriage should have their jobs put at risk. However, it is their refusal to do their job, not their religious belief, that creates the issue.
However, I was rather taken by the intervention of the noble and learned Baroness, Lady Butler-Sloss, and I think it does us credit to look at some of those transitional arrangements to see what can be done. I also agree with the noble Baroness, Lady Barker, that this House has at its core the belief that every citizen in this country has a right—regardless of creed, colour, background, religion or sexual orientation—to have equal access to the services that we pay for. It is something that we debated at great length during the passage of the Equality Act (Sexual Orientation) Regulations 2007. As a House, we put beyond doubt that no one should be denied equal access to services simply because of the way they were born. This provision flies in the face of that principle.
To the noble Lord, Lord Anderson of Swansea, I say that it cannot be right, equally, for public servants to pick and choose which laws they will and will not implement. That is a recipe for chaos. I think my noble friend on the Front Bench was saying that this would open the door to allow Hindus, for example, to refuse to marry people who marry outside the caste. It would also open the door for Catholic registrars to have the right to refuse to marry divorcees. It would give registrars the delegated powers of this House and of the other place. That is not something that we should permit, no matter how tempting the case.
The other uncomfortable feeling I have is the notion that simply having a strong religious belief against gay marriage entitles you to be exempt from the law, but that having the opposite and equally strong religious conviction does not. The right reverend Prelate knows that the church was very happy to ensure that the provisions of this Bill could come into force only when religious organisations, such as their own, decided they should. There is no conscience clause there: no individual priest or cleric who is a registrar is allowed to opt in, no matter how strong their conscientious belief that same-sex marriage should be allowed to be performed in religious settings. If a conscience clause is so desirable, I make this offer to the right reverend Prelates the Bishop of Hereford and the Bishop of Leicester. If you are prepared to accept a conscience clause on this side, help me to craft a conscience clause for the clerics and priests in the Church of England who wish to opt in to registrar marriages. You have got your lock: attacking ours is not, in my view, a clever move.
Lord Brown of Eaton-under-Heywood
My Lords, I, too, confess to having some sympathy with the amendment, particularly as diluted by the noble and learned Baroness, Lady Butler-Sloss. However, I hasten to add, I do not have enough sympathy actually to support it. It would represent the thin end of a dangerous wedge and set a troubling precedent. I recognise of course that there are some limited exceptions to the obligations on doctors and certain others but I think that, without exception, they relate to cases where there is some physical relationship between the person being exempted from a public duty and somebody else.
The closer analogy is perhaps with incumbent judges. It has never been suggested that judges should be free on grounds of conscientious objection to refuse to take certain cases. Proposed subsection (3) in the amendment refers to “religious or other belief”. Suppose that a judge strongly objects to indeterminate sentences, whole-life tariffs, automatic sentences, rules such as “two, three strikes and you’re out” or, in days past, to divorcing people. Catholic judges were from time to time, as the noble and learned Baroness will confirm, obliged to pronounce in divorce cases. Indeed, those of us who sat here as Law Lords, and then across the square as Supreme Court judges, routinely as part of our duties sat on Privy Council appeals. From time to time we would be confronted with final appeals, often from the Caribbean, in capital cases. Is it suggested that it would have been open to a member of the court to decline to take such a case on the grounds of a religious or other strongly held belief?
Very simply, public servants should almost without exception—save in these physical relationship cases—serve the public according to the law as democratically enacted. They should not seek to shed what they regard as their less palatable duties on to long-suffering colleagues.
Lord Anderson of Swansea
Am I correct in saying that it is not a question of a judge declining to sit on a particular case? If a judge had a particularly well founded objection in principle, and that was well known, it is likely that the case would not in fact be allocated to him.
Baroness Barker
My Lords, I listened to this debate with great care. It is one of the most important we have had. It was very telling that the noble Baroness, Lady Cumberlege, refused to consider the application to other groups of the principle that she invites us to accept. I thought that was very, very telling. Going back to the points I made earlier today, I defend the right of religious organisations not to like gay people, and to treat gay people differently. I defend their right to do that. I do not defend the right of individual public servants to determine the level of service given to a member of the public according to their private views.
I listened to the noble Lord, Lord Dear, talking about his earlier amendment, which had a similar effect. He talked about a situation in which public servants remove themselves and walk away. How would you feel, as a member of the public turning up for a service that you and everybody else are supposed to be allowed to have, if the person behind the desk walks away? How would you like that to happen to you on one of the most important days of your life? Would you like to have a really important ceremony in your family officiated by somebody who quite plainly does not like you?
Lord Anderson of Swansea
Surely there is not likely to be any situation in which a couple go to a registrar who is seated at a desk and that registrar walks away from them. The position is clear. The authority would know in advance who is coming, and there would be no insult to the individual couple because a registrar there would have no objection in conscience. There is no way in which an individual couple could be injured in the way the noble Baroness describes.
Lord Dear
If I may respond, that situation is really an exercise of emotion rather than fact. The likelihood of a registrar suddenly seeing a gay couple in front of them and turning on his or her heel and walking away is so fanciful as to be almost ludicrous. I would expect to find that people signal their objection before the likelihood occurs. A registrar in this position would signal that, from a matter of conscience, they cannot conduct that marriage. They would make that known to whoever runs that office and somebody else would be in place. I certainly do not envisage—and I certainly would never support—a registrar turning on their heel on the wedding day, walking off and leaving the vestry or the registry office completely open. That is not within my frame of reference at all.