Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill

Lord Cashman Excerpts

2nd reading (Hansard): House of Lords
Friday 18th January 2019 Lords Chamber

[Lord Cashman (Lab)]

My Lords, it is a pleasure to speak in this debate and to recognise the exceptional work done by Tim Loughton, the cross-party work in the other place and the work done by the noble Baroness, Lady Hodgson, in introducing this important Bill. It is important because it strikes at my very heart—or, dare I say, raison d’être—which is equality and fairness. Equality and fairness define the society in which we live, especially minorities, who are so often misrepresented and defamed.

I am pleased that the noble Lord, Lord Hayward, whom I congratulate on the work he is doing on the Northern Ireland same-sex marriage Bill, reminded me of 1994 when we sat in the Gallery for the age of consent debate. I had forgotten that I was sitting with Boy George, but I remembered that I was sitting with the noble Lord. His father said to him that he did not mind what he did, but he did not want to see him in public again with Boy George. When I led the campaign against Section 28 and I was featured on the evening news, my father, an old docker, said to my mother, “I don’t mind him being gay, but does he have to go on the news about it?” How times have changed. They have changed because people have had the courage to leap forward where others have hesitated, to give a voice to the voiceless and to recognise those who might otherwise remain invisible in our society.

This is a simple Bill. It addresses inequalities and unfairness. I welcome Clause 3, but we need to proceed carefully. As the noble Baroness, Lady Hodgson, said, to lose a child is calamitous to a parent. Therefore, in considering whether there needs to be registration below the threshold of 24 weeks, I suggest that this should be a discretionary rather than a mandatory process, because it may ask some parents to face something which is too difficult.

On Clause 2 and the resistance of the Minister in the other place to accept a time limitation to bring forward these measures, I urge the noble Baroness, Lady Hodgson, and Tim Loughton, when the Bill finally resurfaces, to stick to this timetable. I am desperately worried—this is no reflection on the brilliant civil servants that we have—about capacity in our departments. I am particularly worried at this moment about capacity in the Home Office, dealing as it has to with the repercussions of Brexit or possibly no Brexit. An example, which I offer the House as a warning, is that, during the passage of the Policing and Crime Act in January 2017, I introduced an amendment, which the Government accepted, to widen the pardons and disregards to include the criminal records of homosexual and bisexual men who were convicted of actions that are no longer crimes. More than two years down the line, nothing has been delivered. In August 2018, a letter from the then Minister stated that work was under way. Here we are, six months later, and still no work has been done. I know the Minister the noble Baroness, Lady Williams of Trafford, is committed to this, but we do not want commitments; we need delivery. So it is vital that we stick to this.

I equally have to associate myself with the eloquent and powerful contribution of my noble friend Lord Collins of Highbury on unfinished business. In 2006, something happened that I never believed would happen in my lifetime. I stood with Paul Cottingham as we undertook a civil partnership. At that time, I had shared 23 years with him. The ability to commit yourself in public to someone you love is indescribable. Some people wish to do that in a church because of their faith and belief. It is shameful that a church that professes love excludes such people who wish to practise their love and commitment within their faith. We should allow all churches to celebrate and solemnise—all faiths and none. We must move forward.

In view of the time, I wish to move on very swiftly. Civil partnerships and marriages—relationships—are the building blocks of our society. I have never really understood why people want to build civilised, strong societies and to deny commitment. Some heterosexual couples do not believe in the institution of marriage, and therefore including them in the right to civil partnership is vital. I urge the Government not to go down the easy route of transferring civil partnerships into marriage or of dissolving partnerships and passing them into marriage. That would be wholly wrong.

I offer my two final points to the Government, who may not wish to come back with an immediate reply because of the sensitivity and misrepresentation on the issue. We have had a consultation on the Gender Recognition Act. I wonder whether the Government might wish to look at the approach undertaken by the New Zealand Government where changing one’s sexual identity, one’s gender, can be addressed by seeking a change in the birth registration. That is one route that the Government might wish to look at. They should certainly look at the New Zealand experience.

Finally, I wish to thank—not finally; politicians use that word far too often when we actually mean we are thinking—the noble Baroness, Lady Featherstone, for the generous and open way she has always worked on equality issues and for the ground-breaking and courageous work she undertook in making same-sex marriage a reality.

I said finally, but this is finally. We cannot go on denying people in Northern Ireland, a part of the United Kingdom that we vociferously defend as part of our union, the same rights as are afforded in the rest of the United Kingdom. I congratulate the noble Baroness, Lady Hodgson, and I look forward to working with her.

Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill

Lord Cashman Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 1st February 2019 Lords Chamber

[Baroness Barker (LD)]

My Lords, I thank the noble Baroness, Lady Hodgson, for struggling in today; she is clearly not on top form. I thank her very much for the comprehensive way in which she took us through the amendment. Noble Lords know that I not only support her Private Member’s Bill but I wish to see it enacted as quickly as possible, because there are a great many couples in this country for whom this is very important legislation.

However, as I have already flagged to the noble Baroness in preparation for today, I have one or two misgivings about aspects of the Bill and her amendment. It is important, however well disposed one is to a piece of legislation, that it is subject to proper scrutiny. It is the noble Baroness’s misfortune that her Bill comes in the middle of a slew of government Bills taking Henry VIII powers to realms previously unimagined.

The noble Baroness will have seen the report issued on 29 January from the Delegated Powers and Regulatory Reform Committee, and the Constitution Committee’s report published yesterday. They are both very forthright in their views on the Henry VIII powers in the Bill and the scope for Ministers to make regulations. I am indebted to Mark D’Arcy of the BBC, who described the Constitution Committee of your Lordships’ House as a body in which the raising of an eyebrow was considered a severe criticism—by this stage, I think it is pushing chairs through windows. The committee is very sceptical about the scope, extent and reason for the Henry VIII powers in the Bill.

I will come on to the second area when we get to Amendment 3, but I wish simply to address proposed new subsection (3), which would be introduced by Amendment 1, which the noble Baroness just moved. It states:

“The Secretary of State may, by regulations, make any other provision that appears to the Secretary of State to be appropriate in view of the extension of eligibility to form civil partnerships in England and Wales to couples who are not of the same sex”.


That is very widely drawn. I have one particular concern, which I raised on previous occasions.

As the noble Baroness knows, I do not believe it is in any way appropriate for civil partnerships to be extended to siblings. It seems it is possible to read this subsection as enabling siblings—a brother and sister—to form a civil partnership for the reasons the noble Lord, Lord Lexden, has explained concerning property and inheritance. I believe that is very deeply wrong, because I do not believe that a body of legislation devised for consenting adults to form voluntary relationships is in any way appropriate to be applied to relationships that are consanguineous and cannot be broken. That raises the possibility of women, although it could apply to men, coming under pressure in their families to protect family property by forming a civil partnership.

Therefore, it is not just important but necessary that we look again at the drafting of subsection (3). Perhaps the noble Baroness can explain why she believes it to be necessary in the form it is in when she replies. If it is to go ahead, at the very least the Committee would have to be satisfied that it is not the intention that the law will apply to sibling couples and that it cannot be interpreted in that way. That is a very important reassurance, which would have to be made in the strongest of terms for me to consider allowing this to pass. That apart, and in all other respects, the noble Baroness’s amendment is helpful, and I would wish to support it.

[Lord Cashman (Lab)]

My Lords, I refer to my interests as recorded in the register. I too will speak to Amendment 1. I thank the noble Baroness, Lady Hodgson, for introducing her amendments. I am particularly concerned by the Delegated Powers and Regulatory Reform Committee’s report, and its reference to the Bill conferring,

“no fewer than four Henry VIII powers”.

It also refers to the contribution made by the Minister in our previous debate.

Like the noble Baroness, Lady Barker, I fully welcome the extension of civil partnerships and will do all I can to bring that about, but I am worried. The regulations have the power to do good, but also to undo the good that has been done. Proposed new subsections (1) and (2) are absolutely right because subsection (2) contains a sunset provision—a time limit on when the Secretary of State might lay regulations. However, I am concerned about proposed new subsection (3), by which the Secretary of State may, by regulations,

“make any other provision that appears to the Secretary of State to be appropriate”.

That is far too widely drawn. If we are to go down that route, I would like a time limit on when they can be implemented. Similarly, proposed new subsection (6) says:

“Before making regulations under subsection (5), the Secretary of State must consult such persons as the Secretary of State considers appropriate”.


That seems wholly wrong. Instead of widening consultation it could limit it. Therefore, I have concerns about that.

I will not detain the Committee much further, but I must refer to proposed new subsection (7). On all of these I look forward to the Minister’s reassurances on the use of such regulations. Excuse me—the noble Baroness, Lady Hodgson, seems to have great powers of projection; her cold seems to be catching. However, he says, taking a very deep breath, the subsection says:

“The Secretary of State may, by regulations, make any provision that the Secretary of State considers appropriate in order to protect the ability to act in accordance with religious belief in relation to civil partnership”.


The making of “any provision” is far too wide. I would like to see that qualified. Perhaps the noble Baroness, Lady Hodgson, could indicate what actions would need to be taken to protect the ability to act in accordance with religious belief, since I remain to be convinced that such a subsection is necessary.

[Lord Lexden (Con)]

My Lords, I say to the noble Baroness, Lady Barker—my friend in many contexts, but not in that of sibling couples and civil partnerships—that I would be pleasantly astonished if my noble friend failed to give her the reassurances she sought. It is clear that the Government have no intention of extending civil partnerships in the way I would wish. I set out at length at Second Reading the unfairness and injustice sibling couples who are committed to each other in strong, stable and platonic associations have endured for far too long because they are denied civil partnerships. I will not repeat the points I made then. I should be very interested to hear what my noble friend has to say, but I do not expect the pleasant surprise I wish for.

I have not tabled amendments to this important Bill that would cause proceedings on it to be extended. I simply say this to the Government, assuming that I am right: committed, platonic sibling couples, some of whom have shared their lives for 50 years and more, look on with astonishment and anger as a political party that ought to value the family units they have created together does nothing to relieve them from the constant anxieties they endure in the absence of joint legal rights.

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[Lord Berkeley of Knighton (CB)]

My Lords, I am grateful to my noble and learned friend Lord Brown for his reassurance on the point that was raised. The reason I am grateful is that when I attended and listened to the debate in which the noble Lord, Lord Lexden, made a very moving speech—I would love to see some form of protection for siblings of the kind that he mentioned—I felt that the noble Baroness, Lady Barker, won the day with her comments and reservations. It is reassuring to have this advice from the noble and learned Lord.

[Lord Cashman]

My Lords, in responding, perhaps the Minister might refer to the Delegated Powers and Regulatory Reform Committee’s report, not least, if she has it in front of her, paragraph 27. It deals with the committee having stated that it was,

“puzzled that the Memorandum fails to mention that Ministers already have power to remedy by secondary legislation the ECHR-incompatible provisions in the 2004 Act”.

The Minister might want to refer to that and, equally, to paragraph 31, regarding the concerns raised by that committee and its recommendations.

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[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I want to take this opportunity to commend my noble friend Lady Hodgson of Abinger, who is quite a trooper when it comes to pressing on regardless. I wish her well and hope that she has good rest over the weekend, having fought the good fight today to bring further equality with civil partnerships for opposite-sex couples.

I fully support my noble friend’s amendments. As she said, the Government had some concerns about the drafting of Clause 2, but not the intentions behind it. I am pleased that the drafting of this amendment has been improved in a way that is satisfactory both to the Bill’s sponsors and to the Government. I hope that we have arrived at an amendment that works for everyone and is able to deliver a comprehensive and effective opposite-sex civil partnerships regime at the earliest opportunity.

The Government are committed to equality for all, and we were pleased last October to announce our intention to extend civil partnerships to opposite-sex couples. As my noble friend has outlined, the amendments make it possible to equalise access to civil partnerships between same-sex and other couples by amending the eligibility criteria in the Civil Partnership Act 2004 through regulations.

A couple of noble Lords mentioned that the Delegated Powers and Regulatory Reform Committee and the Constitution Committee expressed concerns about the drafting of Clause 2. I hope that our amendments go some way towards alleviating those concerns. The new clause now sets out in much greater detail how we envisage the delegated powers would be exercised, including dealing with issues such as parental responsibility, the effect of a legal change of gender, the financial consequences of a partnership and any conversion entitlements. I take the point made by the noble Baroness, Lady Barker, and the noble Lords, Lord Collins and Lord Cashman, about Henry VIII powers, but I hope that I can satisfy them at least in part. The noble Lord, Lord Cashman, is shaking his head—but perhaps when I have said what I have to say he will be happier.

The powers are needed to give opposite-sex couples equivalent rights and benefits to those enjoyed by same-sex couples. Simply changing the eligibility criteria in the Civil Partnership Act 2004 would not ensure this. Both the noble Baroness, Lady Barker, and the noble Lord, Lord Cashman—and, I think, the noble Lord, Lord Collins—were concerned about subsection (3) and the possibility of extending civil partnerships to siblings. We have no intention of using the subsection to extend civil partnerships to siblings or family members. My noble friend Lord Lexden, who lives in hope that one day we may do so, has clarified that. Subsection (1) makes it clear that the extension of eligibility applies to opposite-sex couples only, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, and, as drafted, would stand in the way of extension to siblings.

The noble Lord, Lord Cashman, asked me about other European countries—I am sorry, it was the noble Lord, Lord Collins. I do not know why I am mixing the two of them up today. Both their names begin with C. They are the dynamic duo.

[Lord Cashman]

It might help the Minister if she realises that the noble Lord, Lord Cashman, has rather less hair than the noble Lord, Lord Collins.

[Baroness Williams of Trafford]

I know. I have observed that over time—but I am still mixing the noble Lords up.

I do not know the answer the question about other European countries, so I shall write to the noble Lord before Report and place a copy of the letter in the Library.

Any regulations made in the exercise of all these powers will be subject to affirmative resolution and therefore to parliamentary debate and approval.

The noble Baroness, Lady D’Souza, asked whether one could have a civil partnership and a marriage. It is not possible to marry if you are in a civil partnership: nor is it possible to form a civil partnership if you are already married. However, it is possible to convert a civil partnership into a marriage—but the civil partnership would then end.

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[Lord Faulkner of Worcester (Lab)]

My Lords, first, I apologise to the noble Baroness and to the Committee for being unable to speak at Second Reading, although I was present for a large part of the debate. My amendment is very simple and I hope it will be seen by the Committee as an attempt to build on the success of the Marriage (Same Sex Couples) Act 2013, which many of us in this Chamber view as one of the great successes of the coalition Government. The noble Baroness, Lady Stowell, who took it through on behalf of the Government, won huge plaudits at the time for the way she did that and for the way in which she won over some sceptical Members of the House as the Bill went forward. There was, however, a major flaw in that Act. It included what in today’s parlance would be called a backstop, but I remember that at the time it was called a “triple lock”. This effectively ruled the Church of England out of the Bill’s provisions. It continued the ban on same-sex couples marrying in Church of England churches.

I took advice this morning from the Public Bill Office, to which I express my deep gratitude, as to whether it would be possible to propose a simple amendment to the Bill to effectively change that so that, at some point in the future—I look at the right reverend Prelate, because I think that it will be in his hands and the hands of members of the Church of England—there will be an opportunity to say that, because the Marriage (Same Sex Couples) Act has been such an unqualified success and is already allowing thousands of same-sex couples to enjoy the opportunity to be married and live together, it should be possible for the Church of England to follow the lead set by the Anglican Churches in Scotland, the United States, Canada and other countries and permit same-sex couples to marry in church. The amendment provides the opportunity for that debate, and I hope very much that the Committee will look sympathetically on what I am proposing. I beg to move.

[Lord Cashman]

My Lords, I am pleased to add my name to this amendment and I echo the words of my noble friend. It is vital to remember that this change will not compel the Church of England to solemnise same-sex marriage. Instead, it simply means that if the Church were to change its position at any time, as some of us hope it will, and decide to authorise its clergy to solemnise same-sex marriage, it would not have to appeal to Parliament to change the law to allow it to do so. It rightly places this decision in the hands of the religious institution rather than Parliament. I have to reflect at this point that other religions are not so prohibited and are allowed to make their decisions. As a born-again atheist—although one right reverend Prelate informed me that I was not a born-again atheist but probably a “recovering Catholic”—I go to great lengths to defend the rights of religion and belief, because the basis upon which any civilised society is formed is defence of the rights of the other, even if the other is in complete opposition to you.

I have witnessed, in this country and around the world, how religious belief has been used to deny people basic equality—equality of rights, civil rights. I want us to come to a time when that history is far, far behind us. I witness how religion and personal, private religious belief is still being extended into the public and political domain to deny others basic human rights. I have to ask myself and imagine what would have happened if, instead of my wonderful civil partnership with the late Paul Cottingham, we had wanted to marry in the Church of England. I would have faced discrimination, as people of faith in the so-called LGBT, lesbian, gay, bisexual and trans community, often do, because the views of religious people are used to deny that group and other groups equality, as I said. But what about when those people of faith and of belief are discriminated against and denied their place within their own faith and belief community? It makes no sense to me whatever.

Neither does the use of religious principle, selectively implemented to justify such discrimination, make sense. I remember being mentored, before a television debate, by the late Bishop of Bath and Wells, Jim Thompson. He schooled me rather brilliantly and said, “When they use the Levitical code, remind them how the modern Church has dissociated itself from strands of the Levitical code, particularly in relation to women, people with disabilities, the eating of pork and shellfish et cetera”. When we use religious principle selectively, I would argue that we undermine those principles.

Therefore, without wishing to preach—dare an atheist do that?—I look to those progressives within religious institutions, not only in this country but across the world, and the incredible work that they are undertaking within their institutions and within those religious bodies to move forward. We need to do everything to support them. I believe that this amendment goes along that route. It is not about telling them what they should do, but telling the Government that they should remove the obstruction to a religious institution, in this instance the Church of England, if it so decides, going along the route to solemnise same-sex marriage, and thereby welcome into the body of that Church people regardless of whom they wish to love consensually.

[Lord Scriven (LD)]

My Lords, I want to follow the noble Lord, Lord Cashman, because I have experience of this. Let us be clear about the prejudice of not being able to be married in the Church of England. I married just over 16 months ago. I and my husband, like every other couple, went into this with a sense of enjoyment and excitement, wishing to reaffirm our love of 23 years in the eyes not just of society but also, because of David’s view on religion, of the Church. We were denied. The law of this country denied us that right. We were not equal in the eyes of the law. So when we talk about same-sex marriage, it is not equal in law at the moment because of the provision concerning the Church. How do you think that makes me feel? We are not talking here about an abstract concept; we are talking about humans. It made me feel, in my country, not equal, not worthy of the Church rejoicing in my love, not worthy of being born in the eyes of God and being seen as equal.

The powerful nature of that prejudice is deep. It has an effect on human individuals beyond just feeling that an institution cannot marry them. It devalues the very love that I, my husband and others have. As the noble Lord, Lord Cashman, said, this amendment does not order the Church to accept me. It puts down in legislation the provision that if the Church so decides, as faith evolves—if it understands that the love between me and my husband, that love in all same-sex marriages, is equal to that of any other—it can bring my marriage and others into its arms.

It is for that reason that I ask noble Lords to support this, because it has a profoundly human effect. I hope that the Church welcomes this with open arms, although I understand that for some—not for all—there may be some theological reason why this cannot be done at the moment. As debates go on within the synod and the Church, this amendment gives the provision to do at some later date what other churches have done—to accept me, my husband and other same-sex couples as equal. If not, the prejudice that we have received will continue to be hurtful and enshrined in law.

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[The Lord Bishop of Chelmsford]

My Lords, I will first make it clear, lest it be misunderstood, that the Church of England seeks to welcome all people, including LGBTI+ people, including those in civil partnerships and same-sex marriages. The reason we are having this discussion is that there are questions about how this welcome can be expressed, but I deeply regret a situation where anyone, because of their sexuality, feels excluded, alienated or hurt in the way that I know some are.

As I shall go on to explain, the Church of England is at the moment in the middle of a process which is examining how we give expression to this welcome. I hope noble Lords will understand my comments in this context, because I still regret that this amendment has been tabled. It introduces a discordant note into your Lordships’ consideration of a Bill which is otherwise uncontentious and likely to receive clear support. Moreover, an exemption from one piece of legislation can challenge inclusion in another. The Marriage (Same Sex Couples) Act 2013 seeks to strike a balance between the right of individuals to marry a person of the same sex, and the rights of churches and other religious bodies—and of their ministers—to act in a way consistent with their religious beliefs. Nobody is prevented from entering into marriage with a person of the same sex, but no religious body or minister of religion is compelled to solemnise such a marriage.

In its second report on the then Marriage (Same Sex) Couples Bill, the Joint Committee on Human Rights said that religious liberty, as granted under Article 9 of the European Convention on Human Rights is,

“a collective as well as individual right. Religious organisations have the right to determine and administer their”,

doctrinal and,

“own internal religious affairs without interference from the state. The European Court of Human Rights has held that the autonomy of religious organisations is ‘indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 of the Convention affords’”.

The Joint Committee went on to say that the Government have an obligation to protect the rights of religious organisations of freedom of thought, conscience and religion. It concluded that this was a justification for the provisions now contained in the 2013 Act, which provides for religious organisations to decide whether or not to conduct same-sex marriage.

The 2013 Act treats the Church of England and—the noble Baroness is right—the Church in Wales differently from other churches and religious organisations. Nevertheless, as the Government made clear in 2013 and as the Joint Committee on Human Rights accepted, both Churches are free to decide whether to solemnise same-sex marriages. Any such decision would be implemented through the particular legislative processes rather than through the opt-in mechanism provided in the 2013 Act that applies to other religious organisations. However, the Joint Committee concluded that this difference in treatment was justified because of the particular legal position of the Church of England and the Church in Wales—this is the crucial point—whose clergy have a duty under common law to marry parishioners. The 2013 Act accordingly contains specific provision so that the common-law duty of the clergy is not extended to same-sex marriages. As I understand it, that appears to be the main target of the amendment.

I accept—of course I do—that many noble Lords deeply regret the Church of England’s current position on the marriage of same-sex couples. However, that position is based on the doctrine of the Church of England set out in canon law—which in turn forms part of the law of England—and in the Book of Common Prayer. However, the Church of England is currently engaged in what is called the Living in Love and Faith project, which is driven by a desire to learn how relationships, marriage and sexuality fit within the bigger picture of humanity, made in the image of God and redeemed by Christ. It is no secret that there are differing, strongly held views within the Church of England on these questions—I am putting it mildly. We recognise that they are vital matters which affect the well-being of individuals and communities, but we are in the middle of this process and we are waiting to see what will emerge.

Were the Church of England’s doctrine that marriage is between one man and one woman to be changed, that could be achieved only by specific ecclesiastical legislation, passed by the General Synod and then by Parliament. This amendment, which I am pleased to hear is not intended to compel the Church—I thank noble Lords for making that point—would not remove the need for that legislative process to happen, so I believe it would only make matters more difficult for the Church, not easier. Even for those within the Church who want to see change, this is not the way to help that. Instead, by requiring the removal of provisions from the 2013 Act, it will put marriage legislation at odds with ecclesiastical law, and it is impossible to know how the courts would resolve that situation. But, more significantly, it would unbalance the 2013 Act so that it ceased to respect the right to freedom of thought, conscience and religion. I therefore hope the noble Lord will not press this amendment.

[Lord Cashman]

My Lords, before the right reverend Prelate sits down, I would like his reaction to the fact that what is proposed is not at odds with—I forgot the phrase he used—religious law. It does not compel the Church of England to do anything but rather removes the legislative barrier from the Church progressing down the route if it so chooses to solemnise. The right reverend Prelate says that he regrets that we are bringing this amendment forward; I also regret that we have to bring forward an amendment that addresses such basic inequalities in the second decade of the 21st century.

I would welcome the right reverend Prelate’s response to some research carried out by the Stonewall Group—I declare an interest as the founding chair and co-founder of Stonewall—which found that:

“A third of lesbian, gay and bisexual people of faith … aren’t open with anyone in the faith community about their sexual orientation … One in four trans people of faith (25 per cent) aren’t open about their gender identity in their faith community … Only two in five LGBT people of faith … think their faith community is welcoming of lesbian, gay and bi people”,


and:

“Just one in four LGBT people of faith … think their faith community is welcoming of trans people”.


Are those levels of perceived hostility and discrimination acceptable, and does the right reverend Prelate agree with me that the Church, by completing its internal discussions on this important issue, could send a very important signal that everyone—people who believe in the same beliefs and the same religion—is welcome within the Church and that there is no prohibition to them being a full and fully partaking member of that community?

[The Lord Bishop of Chelmsford]

I had sat down, but if I may, I shall respond briefly. I think the noble Lord’s question goes rather beyond what is proposed here, but I want him to know that the Church of England works closely with Stonewall to address many of the issues he identified, which I am aware of and very much hope that the Church of England will address. However, I stand by what I said: I do not believe that the amendment will help in the process that the Church of England is part of, although I understand why it has been proposed.

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[The Lord Bishop of Chelmsford]

I was pleased to hear how it was being put forward; that is certainly not how those in the legal department of the Church of England have read it. I do not feel legally qualified to make further comment, but it is clearly a concern within the Church, and I think I am right to say that it would be a concern even for those who would like change, because it would introduce compulsion. That would be very unhelpful, particularly as the Church of England is in the middle of a process of discussion of the issues.

[Lord Cashman]

My Lords, perhaps I may be able to help the noble Lord, Lord Elton. As it stands, as I said earlier, the Marriage (Same-Sex Couples) Act 2013 does not allow for clergy of the Church of England to solemnise, but it makes provision for other religions, including Quakers and Judaism, to opt in. There is no obligation; there is an opportunity to opt in to solemnise. They are not obliged. If as individuals or a group they do not wish to solemnise, there is no obligation to do so.

[Lord Collins of Highbury]

My Lords, I have added my name to this amendment and support it whole- heartedly, and I do not believe that we are striking a discordant note. I think the opposite. We are asking a question to which people are seeking an answer. I do not profess for one moment that we necessarily have it right, but it is really important that we have this debate, especially as we are now talking about marriage being dissolved so that people can go into another form of relationship. The nature of relationships is changing, and the state is catching up.

I say from the outset that no politician or parliament should dictate to a religious organisation what it should or should not do. In fact, that is precisely why we tabled the amendment. In the 2013 Act, we had what people have called the triple or quadruple lock. People said that it was unacceptable. The debates on the 2013 Act are fresh in my mind and some of them I found personally difficult, but I recognise that the Church of England in particular has been on a journey, travelling quite fast and, in my opinion, in the right direction. I also remember the debates on the Civil Partnership Act, when the Church of England opposed it. I know that the most reverend Primate has apologised for some of the positions that the Church took when that Act was proposed, referring to those debates.

I do not know whether the Church has been issuing information about the amendment but, for the first time in my life, I have received emails from local vicars across the country expressing disquiet—who do I think I am forcing this abominable Act on the Church? As I said, I do not want to force anything on any religious institution, but I recognise that people of faith are gay. That is not restricted to lay people, it embraces everyone.

On Second Reading, I deliberately quoted the most reverend Primate in my speech. I think it is worth repeating because it goes to the heart of the debate on the Bill. I said:

“In his recent book … the most reverend Primate … tells us that the Bible’s teaching on marriage is profoundly positive but, he notes, the social reality in modern Britain is radically changed today, with cohabiting, blended, single-parent and same-sex configurations. He continues: ‘If fluidity of relationships is the reality of our society, then this should be our starting point for building values, because all values must connect with where people are and not where other people might like them to be’”.


That is the question for the Church of England. If it does not catch up, people will go somewhere else. My noble friend would certainly welcome many such people, keen for their values to be recognised, into his church. Of course, the most reverend Primate talked about those values. As I said at Second Reading:

“According to the most reverend Primate himself, ‘in Christian understanding, the core concepts of households and family include holiness, fidelity, hospitality and love above all, because God is holy, faithful, welcoming and overflowing in love, and any human institution that reflects these virtues also in some way reflects God’”.—[Official Report, 18/1/19; col. 427.]


When we adopt the Bill, I am sure that civil partners will reflect those values; many people in same-sex marriages certainly hold those values, as we have heard. If the Church does not catch up with them, they will go somewhere else.

I recognise that the Church is on a difficult journey because of the strong beliefs referred to by the right reverend Prelate. Clearly, there are divisions there, as there are in our society, but I know that the journey we have been on since the introduction of civil partnership has transformed our society. I remember the debates on the same-sex marriage Bill. People said that it would be a disaster, that society would collapse and that the situation would be terrible. Well, that has not happened. People recognise the value of those relationships in making a much stronger society where we can love in communities.

Instead of setting a discordant note, I hope that asking the question today will help not only the Church of England but other religious institutions to catch up with the reality: people of the same sex can love each other in a very rewarding way.

[Baroness Williams of Trafford]

My Lords, I thank all noble Lords who contributed to the debate. In particular, I thank the right reverend Prelate the Bishop of Chelmsford for his remarks, which give everyone hope in the context of today’s debate. I recognise the depth of feeling among Members of both Houses and people around Parliament, but I am afraid that I must resist the amendment in the names of the noble Lords, Lord Faulkner of Worcester and Lord Collins of Highbury.

As noble Lords have said, the amendment seeks to amend the Marriage (Same Sex Couples) Act 2013 to remove the exemption for members of the clergy from solemnising the marriage of same-sex couples. The 2013 Act provided an opt-in system so that same-sex marriages can occur only on religious premises, or under religious rites, where the governing religious body has expressly consented. There is no requirement to give such consent.

We have always been clear that no religious organisation should be forced to marry same-sex couples—I think the noble Lords made that clear—or to host civil partnerships. A number of religious organisations have chosen to opt in by providing blessings and, again, the right reverend Prelate the Bishop of Chelmsford gives us hope when he talks about the process of living in love and faith that the Church of England is currently going through. We hope that more organisations will do that in the future, but it is right that it should remain a decision for them. It is not for the Government to mandate this through regulations.

The noble Lord, Lord Collins of Highbury, raised this issue at Second Reading. He urged the Church of England to permit same-sex couples to have a blessing of their marriage. In response, the right reverend Prelate the Bishop of St Albans said:

“I will resist the temptation to widen the debate beyond the scope of the Bill … I do so because I want us to focus absolutely on what we are trying to deliver”.—[Official Report, 18/1/19; col. 432.]


That is a good message for today but it does not preclude our having other debates on the points made by the noble Lord. I do not, however, believe that they are relevant today. Indeed, the danger is that they will confuse matters if we go beyond the scope of what we are trying to do.

This is a multifaceted Private Member’s Bill and we should keep it as simple as possible. I hope the noble Lord will withdraw his amendment.

[Lord Cashman]

My Lords, I should like to make two points. First, my name is also attached to the amendment. Secondly, inequality, by its very nature, is multifaceted. We should not back away from the challenge that it presents.

[Baroness Williams of Trafford]

I apologise to the noble Lord; I completely forgot to mention him.

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[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, I acknowledge the sensitive nature of the issues we are debating. Over my years as a Christian minister, I have found that gracious words have the power to heal and that unguarded words have the power to hurt. I do not wish to be offensive to anyone by my words, but I want to be honest in the expression of my heartfelt beliefs. I do not doubt the sincerity of others who hold a different view, but respect goes two ways. It must be given not only by those on one side of the argument but also by those on the opposite side of the argument. I trust that those who hold biblical views on marriage are treated with equal respect.

Until recent years, throughout the United Kingdom marriage was recognised to be a lifelong and exclusive union between one man and one woman. It was generally accepted that marriage was instituted by God in the beginning and was God’s gift to the whole of society. However, we are faced with a clause which has been commended to the Committee today. I want to draw attention to what I believe is a fundamental consequence to which this Committee needs to give serious consideration.

During the recent debate on leaving the European Union, it was stressed over and over again by Members across the House that the imperative was not to undermine the Belfast agreement and that there were grave dangers in so doing. Indeed, some Members of your Lordships’ House warned of the dangers to the hard-won peace in Northern Ireland and of the possibility of a return to violence.

Under the devolution settlement and the Belfast agreement, it is clear that legislating for same-sex marriage in Northern Ireland is the responsibility of the Northern Ireland Assembly. Indeed, the Belfast agreement states:

“The Assembly will exercise full legislative and executive authority … within the responsibility”,


devolved to it. It is acknowledged that, under that arrangement, key decisions are taken on a cross-community basis, which includes the provision for a petition of concern to be brought by a significant minority of Assembly Members—that was a vital ingredient of the Belfast agreement. The devolution settlement was founded on the much-heralded Belfast agreement. Members of this House cannot have it both ways, one moment proclaiming the virtues of the Belfast agreement and strict allegiance to it and the devolution settlement, and the next casting them all aside in the dustbin whenever it suits.

It can rightly be said that, at present, the devolved Government are not meeting in Northern Ireland. That is the fault not of the people of Northern Ireland but of those who pulled it down at their whim for their own political ends. When same-sex marriage was brought to the court, it ruled that it was for the Northern Ireland Assembly, not a judge, to decide social policy. There are those in your Lordships’ House who are seeking a way forward to have devolved government restored, and I must faithfully state to this House that to override the Northern Ireland Assembly on this most sensitive matter could not only hasten the demand for direct rule—and many are now calling for that—but could destroy the restoration of devolved government for a generation. One could rightly ask: what is the use of having devolved government when, at the whim of Westminster, it will decide contentious issues that must be resolved between the peoples of Northern Ireland from the ground up rather than by dictation from the top down? What this amendment proposes is in reality an imposition on the people of Northern Ireland, not devolution. Indeed, this House needs to think long and hard before it rubbishes the hopes of devolution being returned.

[Lord Cashman]

My Lords, I am pleased to rise in support of the amendment to which I have added my name. I congratulate the noble Lord, Lord Hayward, on his introduction of this amendment. He covered a wide range of issues and principles with which I absolutely agree, not the least being that in a United Kingdom equal rights should apply equally across the entire union and not be administered separately.

It has been asked: what is the use of having a devolved Government? I might argue: what is the use of having a devolved Government when they do not govern? This situation has now been going on for two years and this House has consistently called for it and other issues to be dealt with.

The Belfast agreement has, quite rightly, been referred to. In our debates on—one might say “sadly”—exiting the European Union, I referred to the effect on human rights, not least in relation to the Belfast agreement and the Republic of Ireland. On the Belfast agreement, I was much reassured by Karen Bradley, the Secretary of State for Northern Ireland—you do not often hear Labour politicians saying that—when she confirmed that Parliament remains competent to legislate on this matter. On 20 February 2018, in a Written Answer to Conor McGinn MP, she said:

“In accordance with the Belfast Agreement”,


marriage,

“is a devolved matter which should be addressed in the NI Assembly; but the power of the Westminster Parliament to legislate remains unaffected. If this issue were to be raised in Westminster, the Government’s policy is to allow a free vote on matters of conscience such as equal marriage”.

So there we have it: this would not undermine the Belfast agreement. It is high time that Parliament took action on this matter. We have waited too long.

Is Northern Ireland ready for equal rights in terms of equal marriage? I say by way of slight digression that I warmly refer to the work that I did with the noble Lord, Lord Lexden, on this issue. Indeed, we began to commission a Private Member’s Bill on it from a friend of ours at the University of York, but the noble Lord, Lord Hayward, made a wonderful start ahead of us.

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[Lord Lexden]

My Lords, I shall be very brief. The case for change has been powerfully outlined by my noble friend Lord Hayward, and endorsed by my very great friend on this issue, the noble Lord, Lord Hayward. This is a day of muddle and confusion. I mean the noble Lord, Lord Cashman. How could I make such a fundamental mistake? I align myself with their comments and repeat what has been a theme of so many comments: this could be the moment when the Government associate themselves firmly with the proposition, which many have been waiting a long time to see adopted, that human rights must extend fully and consistently throughout the length and breadth of our land. Was that not the noble aim of the Human Rights Act 1998?

[Lord Cashman]

My Lords, if noble Lords will allow me, there is a wonderful song, which I think is from “Cabaret”, called “Mr Cellophane”. I feel like the noble Lord, Lord Cellophane—“they look right through you”. It was remiss of me in my contribution not to specifically mention the professor the noble Lord, Lord Lexden, and I worked with on trying to bring forward a Bill on this very subject. It was of course Professor Paul Johnson of the University of York.

[Lord Kilclooney (CB)]

My Lords, the Northern Ireland Assembly approved same-sex marriage but it was rejected by the procedures of the Northern Ireland Assembly by a petition of concern. When we drew up the Belfast agreement and the petition of concern was created, it was intended to be used so that one political party would not impose its will on another on issues such as economics, social policy or constitutional politics. I do not think it was ever considered the means for one community to impose its moral standards on another. The basic problem here is that the petition of concern has been used to negative the decision of the Assembly. What needs to be addressed is whether the petition of concern should be amended to ensure that it is not used by any religious minority to impose its will on others.

Civil Partnerships, Marriages and Deaths (Registration etc) Bill

Lord Cashman Excerpts

Report stage (Hansard): House of Lords
Friday 1st March 2019 Lords Chamber

[Baroness Brinton (LD)]

My Lords, I want to make a brief contribution. I absolutely support the points made by the noble Lords, Lord Faulkner and Lord Collins. I speak as a heterosexual pew member of the Church of England. I echo the comments made in the letters read out by the noble Lord, Lord Faulkner: many of us look forward to the day when same-sex marriage can be solemnised in the Church of England. I am reminded of two friends of mine and my noble friend Lady Barker’s who chose to leave the Church of England and have their marriage solemnised in the Unitarian Church. It was a very moving event where God recognised their sincere and solemn relationship.

I completely understand the problems inside the Church of England. I am appalled that there are members of the Church who would write to the noble Lord, Lord Collins, in those terms, describing him and his relationship as an abomination. That is certainly not where the Church comes from at all.

I support the amendment as a facilitator for the moment at which the Church of England and the Church in Wales want to say, “Yes, we will move it”. We will be removing one hurdle here in Parliament to make that journey faster and smoother.

[Lord Cashman (Lab)]

My Lords, I am in favour of this amendment. I commend and congratulate my noble friend Lord Faulkner on the passionate way in which he introduced it, referring to the personal experiences of people who have written to him. I equally commend the contribution of my noble friend Lord Collins of Highbury.

I was very fortunate to have a civil partnership with the wonderful Paul Cottingham. Before he died, on one of those chemotherapy afternoons where the head cannot quite come up from the sofa, I was stood behind him doing the ironing—this is an insight into my domestic life—because I find that it clears the mind. I looked at this man who I had spent 31 years of my life with, and who I knew did not really have much longer to live. I said to him, “Paul, will you marry me?” Without a moment’s hesitation, he looked up and said, “Today’s not a good day, sorry. No”. But what if the answer had been different? Does it matter to people like me, who are not of religious persuasion or religious belief? It matters because one has to think, “What if that were me?” What if my faith and the roots of my relationships were absolutely within my faith community? What if I were not allowed to participate with the love and support of that community? Would it matter? The answer is yes. And if I would not want to experience that in the celebration of the person I love, how dare I allow another to experience it?

I welcome the changes that have happened in this country. They actually happened in advance of public opinion, which took courage and leadership. It is interesting that all the other religions and faiths do not need the legal protection that the Church of England has been given. As my noble friend referred to, that sends a worrying signal to the worldwide Anglican Communion. It reinforces the concept that it is okay and legitimate to discriminate against people on the grounds of their sexual orientation. We have witnessed enough atrocities across the globe to have evidence of that.

The amendment is simple. It takes on board the concerns of the Church of England and it forces the Church to do nothing. It allows what I would call a free sprint, once it gets over the internal obstacles that it needs to dismount. What would it achieve? As I have said, it would send a signal that discrimination on the grounds of sexual orientation and difference is coming to an end, as is alienation within faith communities.

Research carried out by Stonewall—I refer to my entry in the register of interests as its founding chair—should, if nothing else, accelerate the desire of the Church of England to bring forward change. One-third of lesbian, gay and bisexual people of faith are not open with anyone in their faith community about their sexual orientation. One in four trans people of faith are not open about their gender identity in their faith community. Only two in five LGBT people of faith think that their faith community is welcoming of lesbian, gay and bi people. Lastly, just one in four LGBT people of faith think that their faith community is welcoming of trans people. For no other reason than that, I hope noble Lords will give support to this amendment.

[The Lord Bishop of Oxford]

My Lords, those were extremely moving speeches. I thank the noble Lords, Lord Faulkner, Lord Collins and Lord Cashman, and the noble Baroness, Lady Brinton, for the contributions they have made in the Chamber today and the moving way in which they have spoken. I thank them for sharing their personal experiences so movingly, and for the important and necessary articulation of the views they have heard within the broader Church of England in favour of movement and inclusion. I deeply regret the language used in writing to the noble Lord, Lord Collins, and others; it has no place in the contemporary Church.

The Church is committed to listening carefully to the wisdom of the nation, to the wisdom in our continued debate in this Chamber and to the voices of LGBTI people at all levels in the life of the church. We are committed in our public statements to the inclusion and welcome of all. I and the Church collectively remain deeply conscious of our imperfections and the journey that we still have to travel. We recognise that discrimination is still experienced; I accept the validity of the Stonewall research just cited, and it distresses me beyond words.

As noble Lords are aware, together with other Churches and faith communities across the world, the Church of England is exploring these issues in depth—and, I accept, at length. My colleague the right reverend Prelate the Bishop of Newcastle chairs our pastoral advisory group, and last week brought a helpful series of pastoral guidelines to the General Synod. My colleague the right reverend Prelate the Bishop of Coventry chairs a process of exploration under the title Living in Love and Faith, which was referred to by noble Lords. Both processes are due to report to the General Synod in 2020. It is true that these proposals will contain resources for reflection. They may not contain recommendations for action but they will be followed by further work, debate and proposals to be tested by the General Synod in due course—as soon as possible, I hope.

Recently, I issued a pastoral letter with my fellow bishops to our own diocese of Oxford under the title, Clothed with Love. We are taking pastoral steps in the diocese to encourage greater inclusion and support within the Church’s existing guidelines. That letter has been warmly welcomed by many LGBTI clergy and laity, and more widely across the Church by those who want to see further change. It has led to many fruitful conversations. However, it is also a sign of where the Church is, and of the deep views held in good conscience on the issue, that the same letter has dismayed and unsettled some others who fear that the Church will change what is regarded as essential and core doctrine. The correspondence illustrates the need for further deep and respectful dialogue within the Church, and I remain committed to that.

My response to the amendment is that, as a Church, we need more time for deeper reflection and prayer; for listening, recognising the urgency of the situation; for listening to those outside and within the Church; and for developing our responses. I am grateful for the intention behind this amendment and the opportunity to air these issues in this Chamber. Nevertheless, I need to resist the amendment on two grounds, both of which have been referred to.

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[Lord McCrea of Magherafelt and Cookstown]

I thank the noble Lord for that; it is the very point I was coming to. I said that there was another point in the questions of the noble Lord, Lord Hayward. It is a question not only of when the Assembly will come back but of when the legislation will take place. But that is what devolution is all about: deciding in the Assembly, not the understanding of this House in deciding for the Assembly. That is what the Assembly is all about. It makes the decision; when a matter comes to the floor of the Assembly, it is a decision for the elected representatives of the people of Northern Ireland. It is at election time that the electorate decide who will be their elected representatives. I shall not dictate to this House, but I make no apology for stating that I genuinely believe, with all my heart and deep conviction, that the scriptures of holy truth clearly say that marriage is a covenant entered into by one man and one woman. That is what I believe.

Before this debate, we started with a reading of God’s word. After the reading of God’s word we prayed and asked God to guide us in our counsel according to His will. “According to His will” are His words. I know that others may suggest that they do not accept that and I accept that that is the reality. However, I also believe with all my heart that God’s word gives us authority and declares on the issue of marriage.

In a previous debate, the noble Lord, Lord Kilclooney, referred to the petition of concern. My noble friend Lord Morrow rightly said that it was not my party that brought the petition of concern into existence. However, in response to what was stated in the previous debate, if the petition of concern had been exercised in the Assembly illegally, it would have been overturned. But it was not exercised illegally; it was exercised in accordance with the law. Therefore, I have to say that it is for the Northern Ireland Assembly to decide this issue. This House should not cherry pick what it believes should be devolved; that was decided under the devolution settlement. I warn noble Members not to pull the rug away completely and close the door of the Assembly. Many are asking: if these issues are removed from the Assembly and its elected representatives, is there any reason why an Assembly should exist at all?

[Lord Cashman]

My Lords, I shall speak briefly in this debate and pick up on the point noted by the noble Lord, Lord McColl of Dulwich, who said that one should approach these matters with absolute sensitivity. The noble Lord, Lord Hayward, was right to say that things have changed. Indeed, in the 2015 Assembly elections, out of the 90 Assembly Members elected, 55 declared that they would vote in favour should such a measure on equal marriage come before them. We know that polls can be skewed by the question asked, but a Sky poll in Northern Ireland indicated that 76% of the population of Northern Ireland would be in favour of same-sex marriage.

I speak in a similar vein to how I spoke earlier on the issue. This was highlighted by the noble Baroness, Lady Brinton, and my noble friend Lady Thornton: it is the principle of equality. If we are a union, we are a United Kingdom and all rights should apply equally across that union. I absolutely accept the principle that you cannot devolve equality or human rights and I believe we are talking about a human right. It was suggested that it should be left to the Assembly, but there is no Assembly. And when there is no action, action must be taken to address the inequality. Some have said that one cherry picks. If we look at the issue we are talking about—the right to marry in a same-sex relationship—I do not believe it is a cherry. The concept of all people being treated equally across the United Kingdom is not fruit to be picked from a tree. It is the root and the branch of democracy. It is what keeps us together.

Therefore, this is an extremely sensible amendment. I take on board what the noble Lord, Lord Hayward, said about wanting the Bill to proceed. Like him, I place on record my thanks to Love Equality and Amnesty International, and to all those who have written to me to say that they care about equality for other people in Northern Ireland.

[Lord Elton]

My Lords, we have been speaking at length about the constitution and we have gone a good deal wider than the terms of the Bill. I want to heighten just one point about devolution. I echo my noble friend Lord McColl and my noble and learned friend Lord Mackay on the need for sensitivity. I think the amendment goes more to the heart of doing harm than is intended. Proposed new subsection (3) states:

“If a Northern Ireland Executive is formed within the period of 12 months beginning with the day on which this Act is passed, a statutory instrument containing regulations under this section must be laid before the Northern Ireland Assembly”.


That is a direct statement that, even if the Assembly returns, direct rule will be exercised on this devolved matter. I am sure my noble friend does not want to make a pugnacious statement, but if he proceeds with this I think he will find that he has engendered more opposition than he deserves.