Marriage (Same Sex Couples) Bill

Debate between Lord Stoddart of Swindon and Lord Wallace of Tankerness

Monday 24th June 2013 Lords Chamber

[Baroness Royall of Blaisdon]

I beg the noble Lord’s pardon. My entire hypothesis seems to be wrong, so I will merely say that I do not believe that this amendment should be accepted because, in any event, we should not withdraw from the European Convention on Human Rights. However, it is an entirely unlikely happening because the Bill as it stands does not offend against any element of human rights, freedom of speech or freedom of religion.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Lord for his amendment, which gives us a further opportunity to set out yet again how we believe that the European Convention on Human Rights supports rather than threatens the religious protections in the Bill. The noble Lord indicated in response to the noble Baroness, Lady Royall, that he is not opposed in principle to the European Convention on Human Rights, but I know that he has expressed some concerns about the development of the jurisprudence of the court. I am not sure whether he took part in the debate last Thursday when the House had an opportunity, during a debate introduced by my noble friend Lord Lester, to consider these human rights issues.

The Government have made it clear why we do not believe that there would be a reduction in the protection available to religious organisations and individuals as a result of the Bill. I am happy to repeat those assurances. Indeed, I have sought to do so in the previous debate in replying to the noble Lord, Lord Singh of Wimbledon. The noble Baroness, Lady Royall, has said it again. There is unanimity in this House on the wish to secure the protection of religious organisations and individuals.

Article 9 of the European Convention on Human Rights guarantees the right to freedom of religion. Any attempt to compel religious organisations to solemnise marriages that they consider to be doctrinally impermissible would quite clearly be an interference with their right—and indeed the right of their members to religious freedom. I believe that the religious freedoms contained in this Bill reinforce that protection.

The noble Lord, Lord Stoddart, suggests that if Strasbourg finds that there is a right to same-sex marriage, religious organisations would be forced to conduct such ceremonies. We do not believe that to be the case. Under this Bill, we will be providing same-sex civil marriage ceremonies, but the protection of Article 9 would mean that a couple could not force a religious organisation to marry them according to its right purely because they want a religious ceremony.

It is also worth noting that after many years since the introduction of civil unions for same-sex couples in a number of countries that are members of the Council of Europe, including the United Kingdom, there has been no decision of the Strasbourg court holding that there is right to a civil union, in other words to any legal relationship at all for same-sex couples.

Clause 2 of this Bill provides clear protection for individuals and religious organisations who do not wish to conduct or participate in a religious marriage ceremony on the grounds that it is the marriage of a same-sex couple. The case law of the European Court of Human Rights is equally clear that the question of whether, and if so how, to allow same-sex marriage must be left to individual states to decide for themselves. I simply believe that it is inconceivable that the court would require a religious organisation to conduct same-sex marriages in breach of its own doctrines. We believe the position is clear—and indeed has been strongly supported by a number of our most respected legal minds. In his written submission to the Public Bill Committee in the other place, the noble Lord, Lord Pannick, said:

“For the European Court of Human Rights to compel a religious body or its adherents to conduct a religious marriage of a same sex couple would require a legal miracle much greater than the parting of the Red Sea for the Children of Israel to cross from Egypt. The Court unanimously decided in Schalk and Kopf v Austriain 2010”—

the noble Lord, Lord Stoddart, also referred to this case—

“that there is no right to same sex marriage under the European Convention on Human Rights. It is in the realms of legal fantasy to suggest that the Court would impose an obligation on a religious body to conduct such a ceremony, especially when civil marriage will be available in this country for a same sex couple and when Article 9 of the Convention protects religious beliefs and practices”.

Indeed, the noble Lord, Lord Pannick, followed that up and confirmed his position in the oral evidence which he gave to that committee.

I briefly note the practical effects of the amendment. It would be extraordinary for a Secretary of State to be required, as this amendment would envisage, to act unilaterally to withdraw the United Kingdom from the convention without further reference to Parliament—although I accept that the noble Lord said it was a probing amendment. Furthermore, to make such a decision contingent upon the outcome of a court case dealing with unknown and unspecified issues would be equally extraordinary, particularly if the successful challenge related to a technical matter which could be readily remedied by legislation passed in Parliament.

Before I conclude, I refer to the point made by the noble Lord, Lord Stoddart, in a previous amendment, when he read a newspaper article which suggested that there had been some secret conference involving my right honourable friend the Secretary of State, Theresa May, my honourable friend Lynne Featherstone and the Council of Europe. I understand that this secret conference was an event attended by 300 people, invited by the Government of the United Kingdom, when the United Kingdom held the presidency of the Council of Ministers. Nicolas Bratza, who was then president of the European Court of Human Rights, spoke for five minutes. I am informed that the text of his speech is on the court’s website. He made it clear that the court’s case law had left the issue of gay marriage to be decided by national authorities.

Not just in this debate but in a number of debates during Committee we have sought to give reassurances that the protections for individuals and religious organisations are very real. I would hope that having had the opportunity to have this debate, the noble Lord will withdraw his amendment.

[Lord Stoddart of Swindon]

My Lords, I am most obliged to the Minister for his reply—both to the assertions of Mr Booker and to my own amendment. In relation to his reply, of course I accept his assurances. The problem is that throughout my life—it has been quite a long one—I have seen government assurances come and government assurances go. The European Court of Human Rights now has powers, translated into British law, which are very wide indeed. Some of its decisions in private and other cases have not been very friendly towards the Government and this country, if I might say that. We really do not know what will happen once the Bill is passed.