House of Lords
Monday, 17 June 2013.
Prayers—read by the Lord Bishop of Liverpool.
My Lords, the National Autistic Society’s Push for Action campaign coincides with the Government’s review of the 2010 adult autism strategy. We are already taking forward some of the campaign’s recommendations, and we will consider others that fall to government during the review, the investigative stage of which is due to last until the end of October.
I must say that I am encouraged by the Minister’s words. Four years after Parliament passed the groundbreaking Autism Act, this National Autistic Society report reveals that despite some progress far too many autistic adults are missing out on everyday support. A shocking 70% of adults and their carers say they get no help from social services, and this is not always down to money. Indeed, economic modelling by Deloitte shows that every pound invested in services for autistic adults with moderate needs brings a return of £1.30. When the Government review the autism strategy, will they consider providing an innovation fund so that local councils can provide the cost-effective services that all autistic adults need and actually demand?
My Lords, we will certainly consider the idea of an innovation fund during the course of the review. We have allocated some central funding already to support the implementation of the autism strategy, for example in commissioning a range of training products from expert bodies to support local areas and professionals. I hope the noble Lord will agree that the strategy and the statutory guidance that goes with it mark a great step forward for adults with autism in England. We now need to take an honest look at how it is all working and come up with further ideas and actions as necessary.
My Lords, I declare an interest as president of Ambitious about Autism. Can my noble friend confirm that the Government’s review of the adult autism strategy will pay close attention to the kind of day support services, such as the NAS’s Horizons service, which the recent Deloitte report, Ending the Other Care Crisis, has demonstrated not only leads to increased quality of life and reduced dependency but has clear economic benefits?
My noble friend draws attention to a very important strand of support for people with autism. Many people with this condition can benefit from small amounts of advocacy, help and support often through less formal support networks and not necessarily through the local authority. We will certainly be looking at that area.
I declare my autism interest in the register to the House. Does my noble friend accept that the Department of Health is the lead department on the Autism Act, but that other departments have responsibilities as part of the strategy? He will be aware of the finding of the Upper Tribunal (Administrative Appeals Chamber) in a case against the Secretary of State for Work and Pensions that the case has to be made that autism is different. Can I ask him to make sure that that case is made by his department to all other government departments involved in the care of people with autism?
I can give my noble friend that assurance. The autism strategy is, of course, a cross-government strategy. A number of departments will look at their role in supporting it, including the Department for Work and Pensions and the MoJ. I am hopeful that when we come out in October with some considered proposals, my noble friend will take heart from the fact that this has involved all relevant government departments.
My Lords, one of the great concerns of people with autism is the transition arrangements between young people and adults, particularly the difficulties created now that education and social care provision are separated in adult education centres for these children and young people. What is intended to ensure that this does not continue to disadvantage these young people?
My Lords, the Children and Families Bill, which was introduced into Parliament this month, will usher in from next year new joint arrangements for assessing and planning commissioning services for children and young people with special educational needs. We realise the difficulties that young people with autism can face in making that transition to adulthood. Under the autism strategy, my department and the Department for Education funded the social policy research unit at the University of York to examine how statutory services are currently supporting young people on the autistic spectrum. Its report, published in February, points the way to some important lessons that we should take on board during the review.
My Lords, despite the strategy, only 63 out of 152 local authorities have a pathway to diagnosis. Will the Minister give an assurance that the department will produce a clear guide for CCGs on how to commission the right diagnosis and support services?
My Lords, we are indeed currently supporting, along with NHS England, a practical guide for CCGs to support health professionals and others in implementing the adult autism statutory guidance, as well as the NICE guidelines on recognition, referral and diagnosis, and the management of adults on the autism spectrum. This will be published later in the summer through the Joint Commissioning Panel for Mental Health.
My Lords, I was recently privileged to chair a commission that looked for the first time at the large numbers of people who grow into old age with autism. I would very much like the noble Earl to assure the House that these people will not be ignored, will also receive diagnosis, and that professionals will be trained to ensure that a preventive support system of care is introduced so that it is not always crisis-driven. Can he tell us that?
I agree with the noble Baroness that the needs of those with autism in older age should not be forgotten. We will meet the National Autistic Society, following the publication next month of its report on autism and ageing, to see how we can support the taking forward of this work, which builds on that done by the autism and ageing commission in this House. We are also looking at the whole issue of the training of health professionals, in particular the core curricula for doctors, nurses and other clinicians.
Royal Navy: Escort Vessels
My Lords, the Royal Navy continues to meet its operational commitments. Looking forward, we are introducing six new Type 45 destroyers and seven Astute class submarines. In addition, the first of the four Tide class Royal Fleet Auxiliary tankers will enter service in 2016. We are rebuilding our strike capability through the Queen Elizabeth class carriers and, with the Type 26 global combat ship, we have a new programme to develop more flexible frigates of the future.
My noble friend’s carefully crafted and well camouflaged reply hardly answers my specific Question. In 1982 at the time of the Falklands, we sent 22 escort vessels down there. Now, we probably have hardly 12 that we could put out operationally at any one time to meet all our worldwide commitments. The pressure is increasing, with Russia reviving its nuclear submarine patrols to the South Pole and China determined to become a major maritime power to support its growing overseas interests. In addition, the early warning Crow’s Nest radar system, to be integrated into our Merlin helicopters, apparently will not be ready until five years after our first new carrier is operational, thus increasing our position of vulnerability. Is the Navy not more concerned about the lack of escorts than anything else—and should not we be?
My Lords, I am grateful to my noble friend for his compliment about the carefully crafted response. SDSR set out how the Government would secure Britain in an age of uncertainty. Central to this is maintaining the trade routes and access to resources and protecting United Kingdom citizens, territory and trade from terrorism, piracy and unlawful restrictions on freedom of navigation. My noble friend mentioned Crow’s Nest. The final assessment phase was approved in January and is due to come into service in 2020, with a deployable capability shortly afterwards. Navy Command and Defence Equipment and Support is exploring whether funding can be made available sooner, to bring forward the in-service date by up to two years.
My Lords, the Minister, for whom I have great admiration, knows that we have insufficient escort hulls and need more. Nineteen are simply insufficient for our nation and paying off four Type 22 escorts in the strategic defence and security review—since when £12 billion of underspend has been created—was a terrible error. However, one must not dwell on these mistakes of the past. Does the Minister not agree that the £250 million per annum that we will pay BAE Systems not to build warships should perhaps be used to build escorts?
My Lords, I cannot comment on what the noble Lord says about BAE. However, I compliment him on his resolute lobbying for the Royal Navy to attend the Royal Australian Navy’s 100th anniversary. The noble Lord has had a word with me two or three times about it. I can now assure him that the Royal Navy has responded to his request and will attend the 100th anniversary. HMS “Daring”, a Type 45 destroyer, will also be out there.
My Lords, the Naval Service, which includes the Royal Navy, the Royal Marines and the Royal Fleet Auxiliary which supports them, is able to fulfil commitments around the globe and maintain a maritime presence in priority regions, such as the South Atlantic, the Gulf and the Indian Ocean. The Naval Service also safeguards the security of home waters, meets our defence commitments in the North Atlantic and the Caribbean, patrols the Antarctic waters and undertakes periodic deployments to other areas, such as the Far East and the Pacific.
My Lords, the Minister referred to the next generation of escort ships. Where are we with the development of Type 26 global combat ships? Are they still on target to come into service in the early 2020s; what does “the early 2020s” mean; and do we still intend to have 12 to 13 of these vessels?
My Lords, the Type 26 will be the workhorse of the future Royal Navy. It is in its assessment phase. I understand that the main investment decision will be made in the middle of the decade. The aspiration is that Type 26 will be in service by 2020, and the number we are hoping to have is 13.
My Lords, 3 Commando Brigade Royal Marines continues to provide a key element of our high-readiness response force. With the Royal Navy’s amphibious shipping, 3 Commando Brigade has strategic reach and is able to land and sustain from the sea a commando group of up to 1,800 personnel, together with protective vehicles and other equipment. Other elements of the Royal Marines continue to undertake a wide range of tasks, including protecting the nuclear deterrent and contributing to operations against piracy in the Indian Ocean.
Women: Board Membership
My Lords, the Government are supporting the voluntary, business-led strategy of the noble Lord, Lord Davies, to increase the number of women in UK boardrooms. At the time of the noble Lord’s latest report of April 2013, women had secured 34% of all FTSE 100 board appointments in the previous year. The UK corporate governance code now requires boards to report on their diversity policy. Headhunters have pledged to ensure that women make up 30% of longlists and, from October 2013, quoted companies will be required to disclose the gender balance at various levels within their organisation.
My Lords, this is not what the Cranfield review of women on boards says, which is that that in the past six months, progress in the number of female non-executive directors in FTSE 100 companies has reached a plateau; it is flatlining and stuck at between 26% and 30%. It also says that there has been a lack of progress at the executive-director level of FTSE 100 companies. A rise from 5.5% to 5.8% since 2010 is not impressive. What will the Government do next? It seems that they have got the low-hanging fruit on this issue. If they have set their face against quotas, what does the Minister suggest doing about the abysmal lack of gender diversity, about ageism and about the lack of ethnic diversity in the country’s boardrooms?
I start by paying tribute to the noble Lord, Lord Davies, the noble Baroness’s colleague, for all that he has done to flag up this issue, and for the way in which he has driven it forward. He in turn has thanked the media for what they have done to make sure that this moves forward. He is absolutely right that we need to continue to make progress. There was an indication of plateauing. The situation now seems to be improving again. Business needs to show that it is making progress—as the noble Lord, Lord Davies, says—so that the Government can say that no quotas are needed. However, they are there as a back-stop.
My Lords, my understanding is that the Government put a sword of Damocles over the industry by saying that if voluntary approaches—which I think we would all prefer—were not successful, they would look again at quotas. I believe that that was confirmed by both the Home Secretary and the Prime Minister. Will the Minister give assurances that the sword of Damocles is still in place and that the Government will be willing to let it fall if need be?
We are indeed pleased at the progress that is being made but the noble Baroness is absolutely right, as is the previous noble Baroness, that progress needs to continue. The Prime Minister said in February 2012 that further action has to be considered as a back-stop and Vince Cable said in April 2013 that the Government would, if necessary, adopt tougher measures. The warning is there. If there is continued progress, that is great. If not, there are sticks.
Does the noble Baroness agree that one of the problems is that the boards are not sufficiently flexible in what they see as the requisite experience for serving on boards? For example, many women who hold senior positions in the voluntary and charitable sector are never considered because their experience is not considered relevant.
The noble Baroness is right, and boards need to take a wider view in terms of the experience and expertise that are there. I should like to quote one of the remaining FTSE 100 companies, Melrose, which still has an all-male board. It is,
“a leading British-based investment company specialising in the acquisition and performance improvement of underperforming businesses”.
There are no women on its board. How is it to ensure that companies are geared to the 21st century if it is so outdated in its own approach?
The noble Baroness is right that flexible working both for women and men is something that companies need to look at to make sure that they do not lose the talent that they have brought forward. Businesses need to encourage all talent to join them and then they need to make sure that they continue to support people right the way through their careers and on to board level at the end.
Does my noble friend the Minister agree that it is the job of Government to encourage the sort of changes on boards that we are talking about but that it is not the job of Government to dictate? It is the shareholders who own the business who should decide who sits on the board.
My Lords, I think there is time for both if we have the noble Lord, Lord Pearson, very quickly and then Labour.
Noble Lords may not be aware of it, but it would make them mandatory. Can the noble Baroness tell us how the so-called “yellow card” issued by your Lordships’ House and seven other EU Houses of Parliament against that edict is progressing? Is subsidiarity winning or losing as usual on this one?
My Lords, I appreciate that the Government are very keen to get as many women as they can on to company boards but does exactly the same position apply to the appointment to public boards for which the Government are responsible? Perhaps she could tell us what is the Government’s strategy to get more women on to public boards?
The noble Baroness is quite right. We have an aspiration, as she probably knows, that 50% of appointments to public boards should be women by 2015. I have seen the figures that are just being finalised for the current state of affairs, and it is looking encouraging that we are moving in the right direction, but we are not complacent.
My Lords, in the financial year 2012-13, on average, visit visa applications were processed in under 10 working days—the exact figure is 9.17 working days. We measure this from the time that the customer submits their biometric information to when the application is ready for collection by the customer.
My Lords, the president of the China International Travel Service has criticised the Government’s changes to the visa system as making little difference in encouraging Chinese tourists to the UK and complains that the system is even more complicated than that to get into the US. Does the Minister accept that the potential loss of income to the UK economy remains at £1.2 billion? What urgent discussions will Ministers have with the Chinese authorities and tour operators to make it easier to apply for UK visas without compromising security, as other countries seem to be much more successful at doing this?
My Lords, I read the article containing Miss Yu’s comments. It is vital that the UK is seen as being open for visitors and business. That is very much the case as far as China is concerned. The President of China has talked about there being 400 million visitors from China by 2018. We need to recognise the need for a customer focus in our visitor offer. That is why the Government have broken up the UK Border Agency into two parts, one of which deals with immigration enforcement. The other, UK Visas and Immigration, is dedicated to delivering a high-quality customer service to those wishing to enter the UK.
Is my noble friend aware that the new fast-track system introduced in Colombo for prospective visitors, particularly from the business sector, is working well and is greatly to be welcomed? On behalf of those who are using it, I say a huge thank you to the Home Office for listening and implementing this new system.
I thank my noble friend as brickbats are often flung on Questions such as this. I emphasise that the Government are actively looking at ways in which we can improve the focus of UK Visas and Immigration. I have met Sarah Rapson, the new director-general of the service. The whole point behind the creation of this new service is to make sure that our offer to visitors is competitive and customer-oriented.
My Lords, may I ask the Minister particularly about business users? I declare an interest as the chairman of the Arab British Chamber of Commerce. Is he aware that we are getting an increasing volume of complaints from the countries of the Arab League about the delays in getting visas? Would he be kind enough to meet those of us who have concerns on this issue to discuss why this is the case and what can be done to ameliorate the position?
I certainly would be prepared to meet the noble Baroness and any people she wishes to bring along. As I have emphasised, we want to expedite visa processing. Ninety-four per cent of visas are processed within 15 days. That is a pretty good figure. It can be improved but 94% are processed within 15 days and, in the case of China, the figure is 99%.
My Lords, what arrangements are in hand to review the decisions of entry clearance officers? My noble friend will be aware that in the past immigration adjudicators overturned the decisions of entry clearance officers in many cases. How do we ensure that there is no bias in the way decisions are taken, particularly as regards family visits and visits to attend marriages and funerals, when people wish to be in the country for a very short period?
I am grateful to the noble Lord. He has a strong focus on this issue. Indeed, the noble Baroness, Lady Hamwee, is presenting a report, which we will be debating shortly, on the whole question of family visas. We need to make sure that we have a proper balance between safeguarding our own position and our commitments within the wider communities here in the United Kingdom and, at the same time, facilitating visits to this country.
My Lords, one of the concrete points made by the Chinese authorities in this article to which reference has been made is that a decreasing proportion of Chinese visitors to Europe—the European Union, broadly—are coming to this country, because they can get a Schengen visa for all of the continent, in effect, and the extra hassle of getting a visa for Britain deters people from adding Britain to the European tour, as it were. Will the Minister carry out a study as to whether our documentation could not be nearer in line with what is done for the Schengen countries without our sovereignty being impugned so that, as a result, a bigger proportion of the Chinese would be able to come to this country?
I think the noble Lord is very perceptive in anticipating future debates on this subject. This is clearly one of the difficulties that we have in not being party to the Schengen agreement. Given that the House, I am sure, would not welcome our incorporation into the Schengen agreement, we are seeking to discuss with others, including the Schengen countries, ways in which we can maximise the opportunities for visitors to come to this country.
My Lords, since the Secretary of State rightly disbanded the UKBA, what steps has she taken to address the dysfunctionality, not only in terms of immigration visas for visitors but throughout the whole system, to ensure that the immigration service universally provides an adequate service to people entering the United Kingdom?
My right honourable friend the Home Secretary is in Liverpool today addressing former UK Border Agency staff, and I have given a pretty clear indication that we want to make sure that, in future, this service reflects the needs of the customer.
Education (Amendment of the Curriculum Requirements for Second Key Stage) (England) Order 2013
Motion to Approve
Marriage (Same Sex Couples) Bill
Committee (1st Day)
Relevant document: 4th Report from the Delegated Powers Committee
Clause 1 : Extension of marriage to same sex couples
1: Clause 1, page 1, line 5, leave out “Marriage” and insert “Union”
My Lords, this amendment is partly probing and partly to do with language, and it may have some constitutional overtones. I have tabled it for discussion because I believe that it is not the business of government or of Parliament to change by legislation the long accepted meaning of words. As has already been said, the proposed change recalls Alice in Wonderland or, indeed, Orwell’s Newspeak. Certainly the meaning of words evolves, and sometimes changes direction almost completely. This, however, does not justify changing known meanings by law. To do so undermines confidence in all generally accepted meanings. It devalues language and the honesty of spoken and written meanings. On those grounds, I appeal to the Government and those behind the Bill to have second thoughts.
I should say something about the word “Union” in my amendment. It is a strong and honourable word. For example, the union between Scotland, England and Wales has been a strong one, originally uniting the Crowns and later the Parliaments of the two countries. I trust that it will not end in divorce. The United States has similarly stood the test of time and survived a terrible civil war. Even the Union of Soviet Socialist Republics produced a strong central power capable of threatening the rest of the world.
I said at Second Reading that civil partnership should be regarded as an honourable estate or status. I take the same view of unions between two persons of the same sex. Another speaker in that debate suggested that “espousal” would be appropriate to describe the intentional coming together of two men or two women. I suggest that such an expression is a little archaic and may not convey permanence or lifelong qualities. I submit that “Union” is a better and stronger word and has wholly honourable connotations. To have two different words to describe two very different kinds of relationship would be far clearer. It would also make things far more straightforward for teachers, parents and others who have to explain relationships to young people.
If “Union” had appeared in the Bill here instead of “Marriage”, the Government would have saved themselves a great deal of trouble. They would not have been faced with a petition from more than 650,000 people. They would not have aroused deep fears and anxieties throughout all parts of England and Wales, as we saw from the huge volume of letters sent to Members of both Houses. The Conservative Party would not have alienated many of their natural supporters.
Traditionally defined marriage had and has a sacramental character in many of the great religions. Leaving that point aside, it has represented the coming together of two families with their histories and traditions, and embraces the widest possible set of relationships surrounding and supporting the married couple and the children of their begetting. This is something immensely valuable that we should not risk devaluing. We should seek to avoid the problems beginning to re-emerge in countries that have thus far legislated for same-sex marriage.
I offer the amendment to your Lordships and the country in the hope of stimulating new and constructive thought. I beg to move.
My Lords, I went to the Public Bill Office last week to table this very amendment, only to find that the noble Lord, Lord Hylton, had beaten me to it. I therefore, of course, added my name to the amendment and was very glad to do so.
A couple of weeks ago we had an extremely moving debate, with some powerful speeches on both sides. I am bound to say that the result of that debate did not clearly reflect the division. I would much rather that we had not had a Division because I know that a lot of colleagues voted for constitutional reasons, believing that it was not right to seek to vote down something on Second Reading that had received such a large majority in another place. Yet I know from many personal conversations with colleagues in all parts of the House that there is deep concern and real unease about calling same-sex relationships “marriage”.
I detected a strong feeling in the House during that debate that same-sex relationships should be accorded a higher status than civil partnerships allow. It was implicit in the speech of the most reverend Primate the Archbishop of Canterbury, and it was certainly explicit in mine and in a number of others, that there should be a new definition for same-sex relationships which goes profoundly beyond civil partnerships and the civil privileges that that arrangement brings. A number of us referred to “union”, which the noble Lord, Lord Hylton, has clearly defined in his speech. Like him, I regard this amendment as a probing one. Indeed, I hope there will not be any votes during Committee on this Bill. This House is at its best when it reflects on the Committee stage and then votes, where appropriate, on Report. I certainly would not wish to press this amendment to any Division today, and I gather from what the noble Lord, Lord Hylton, said that he would not wish that.
However, I say to noble Lords in all parts of the Committee that surely we can find it within us to come up with a definition which gives to those who want to make a lifelong commitment to a same-sex relationship the same thing which marriage gives to heterosexual couples. As became clear during the debate a fortnight ago, there are differences that cannot be eradicated by the change of a name. The union between two men or two women can never be the same, in actuality or potential, as the union between a man and a woman. We all have to give and take in a debate of this nature. I would not only be content with, but would welcome, my church—the Church of England—blessing same-sex unions, and therefore giving them a recognition and permanence that they do not currently enjoy.
I ask friends in all parts of the House who are themselves gay—a number made very moving and powerful speeches in the last debate—to recognise that there is a strong feeling in this country that the relationship between a man and a woman is marriage and should remain marriage, and that we should look for some other definition beyond civil partnership for same-sex relationships. Whether there is a majority or not for that I do not know; only a referendum would tell. It is in that spirit, which I hope is one of understanding and tolerance, that I commend this amendment to your Lordships’ House, and hope that we can discuss it and perhaps come back to it on Report. I cannot speak for the noble Lord, Lord Hylton, but for my part, if another word was preferred to “Union” I would not object at all. “Union” is a good word—an honourable word of long estate—but something that can and should be seriously considered by your Lordships’ House. With those few words, I strongly support what the noble Lord, Lord Hylton has said.
My Lords, I did not speak at Second Reading, but I found myself in agreement with almost all those who spoke against the Bill. In particular I agreed with the speech of the most reverend Primate the Archbishop of Canterbury. My noble friend Lord Quirk also made a short and very effective speech. Like other noble Lords, I have received well over 100 letters from those who feel very strongly about the Bill; indeed, some have written to me more than once. They differ from the sorts of letters one gets on these occasions in that they are all clearly written from the heart. Equally, there are those who feel strongly the other way. I have received only a few letters from them. I do not know why there should be so few compared with the great mass of letters on the other side, but I have great sympathy with their views.
What has been missing in all this has been any attempt to find some sort of compromise between the two positions; in other words, a way of giving the gay community what it so obviously desires, without destroying the meaning of the word “marriage”. It seems like many weeks since I received a booklet which does exactly that. It is issued by ResPublica and written by Professor Roger Scruton. It is extremely well argued and, in my view, provides exactly the sort of compromise that is needed. I do not think it was mentioned on a single occasion at Second Reading, but it should have been.
It was with great joy, when I arrived in the House half an hour ago, that I found an amendment tabled in the name of my noble friend Lord Hylton and the noble Lord, Lord Cormack, expressing exactly the view which I would have expressed if I had spoken at Second Reading. I have not had time to develop the argument in support of the amendment but, with your Lordships’ permission, I will read just one short paragraph from the ResPublica British Civic Life document, which is entitled Marriage: Union for the Future or Contract for the Present:
“To the Churches, we recommend that they recognise that the demand for same sex marriage comes from a serious desire for permanent loving homosexual relationships to be recognised and embraced by society, by Christianity and by other faith groups. The demand for secular marriage equality is in part an appeal for religious acceptance, which the Government’s proposals cannot offer. We believe the Churches should consider offering not civil partnerships but civil unions”—
exactly what this amendment proposes—
“to same sex couples a celebration and a status that recognises a transition from partnership into permanence. And the churches and other faith groups should therefore grant civil partnerships a religious celebration and recognition making them a civil union. Churches should recognise not just that homosexual persons are as they are, but they also are owed recognition of the permanent relationships they choose”.
It is for those reasons that I will support this amendment as strongly as I can and hope that it will at least be considered by the Government.
My Lords, at Second Reading I suggested that the term for a same-sex marriage might be “espousal”, but I accept the point made by the noble Lord, Lord Hylton, that it is an archaic or anachronistic word. I also said at Second Reading that I intended to sound out the House on whether there would be much support for that nomenclature, and now I have to say that there was not sufficient support for me to feel that bringing it forward at this stage would be the right thing to do.
The reason that I want to persist in the suggestion that there should be a different word for same-sex unions is largely to do with reconciliation. This measure has excited more public interest and reaction than any other measure that I can recollect in recent times, and there is undoubtedly a widespread feeling among a large mass of our fellow citizens—decent people who are not remotely driven by prejudice—that, as the noble Lord, Lord Cormack, and I said at Second Reading, there is a fundamental physical difference between the two unions. It is not a difference either of status or esteem; nor a difference of stability or love, but none the less, it is a fundamental difference. What is quite interesting is that a number of the letters I have received have taken me up on the point that not all heterosexual unions have procreative potential. If a couple are coming together aged 96, there is not likely to be procreative potential. The same goes if one of the couple is unfortunately sterile. However, that escapes the point that same-sex unions can never have procreative potential.
Those who support using exactly the same language will ask, “What’s the point; what’s the difference; what are you trying to do?”. All I am trying to do is to reconcile the bulk of this country to this important, evolutionary change in our law. I sincerely believe that refusing to compromise in the matter of nomenclature would be a big mistake. After this measure has become law, we do not want a rumbling continuance of objection which could conceivably crystallise and increase. I am, therefore, still in favour of a different word. I would be willing to accept “union” which the noble Lord, Lord Hylton, suggested, though I would prefer the word “matrimony”, proposed in Amendment 46—which is part of this group—in the name of the noble Lord, Lord Armstrong of Ilminster. So I hope that we can find a compromise that will give honour to both sides—if I can call them that—although there are infinite shades of grey between the two extremes.
My Lords, I strongly support what my noble friend Lord Phillips of Sudbury has said. In my speech at Second Reading, I said that there is a great difference between a definition in law and the real meaning of words. This is one that troubles me considerably. I agree with him that Amendment 46, in the name of the noble Lord, Lord Armstrong of Ilminster, suggests a way forward particularly because the word “matrimony” in the Oxford English Dictionary derives from the Latin word “mater”, which means “mother”, and therefore has the meaning of children related to it. Whether or not a marriage produces children is, in a sense, irrelevant. The meaning of the word is there, and it is there for a particular purpose.
I have found it very difficult to work out the best word to use. I have problems with the equal use of the word “marriage”. I personally believe that marriage is between a man and a woman and, although I shall certainly obey the law, whatever it says, I shall never cease to believe that. Whatever we do in terms of same-sex marriages, we are not creating the same meaning, but a legal definition which will be applicable in this country and in this country only. We could be creating enormous problems of definition if, for example, a couple who, believing that they were married under this piece of legislation, were to go to another country which did not accept that definition of marriage—and Russia comes to mind, given what its parliament did the other day.
I hope that the Government will look closely at this to see whether there is a way of finding a distinction between what I call “real marriage”; what in some amendments is called “traditional marriage”; and what my noble friend Lord Cormack has called “union”. I am not sure that any of these words is quite correct, but I think we need to ensure that when this legislation is through, rather than continuing to have this divisive and abrasive distinction, we can have two definitions which can live happily alongside each other. In the course of debating this legislation, I hope we will come to that conclusion.
My Lords, as both the noble Lord, Lord Phillips, and the noble Marquess, Lord Lothian, referred to Amendment 46, which is in my name, I will take this opportunity to speak to it.
The Bill reminds me irresistibly of Humpty Dumpty, as other noble Lords have said it does them. Your Lordships will remember that, from his seat on the wall, Humpty Dumpty said to Alice:
“When I use a word, it means just what I choose it to mean—neither more nor less”.
A little later, he said:
“You see it’s like a portmanteau—there are two meanings packed up into one word”.
I should not of course think of casting the Prime Minister, with his many other qualities, as Humpty Dumpty but I am sure that the noble Baroness, Lady Stowell, and her colleagues will not have forgotten Humpty Dumpty’s fate. Sitting on his wall, he failed to assess the risk of falling off it and had a nasty accident. Unfortunately, he could not be saved, even though the military were called upon in aid of the civil power.
The Bill would change the meaning of the word “marriage”, which has hitherto denoted a loving and lifelong commitment between a man and a woman, often—although as the noble Lord, Lord Phillips has said, not always—leading to the procreation of children and the perpetuation of the human race. If and when the Bill becomes law, marriage would become a portmanteau word. Marriage between same-sex couples would be lawful as well as marriages between a man and a woman. The intention is that same-sex couples who choose to marry should enjoy equality of rights and equality of esteem with men and women who choose to marry. I have no problem whatever with that, although equality of rights is something that can be, and largely has been, achieved by changes in the law without any change of nomenclature while equality of esteem, although it may be assisted by a change in the law, will not be achieved by that alone.
My amendment today is concerned solely with the law. The Bill changes the meaning of the word “marriage”, which is where Humpty Dumpty comes in. It makes marriage between same-sex couples as lawful as marriages between a man and a woman. As the noble Lord, Lord Cormack, said, there still remain some ineluctable differences between the two kinds of marriage. The law will need to recognise, and be able to provide for, this distinction. The Bill already shows that some of the existing legislative provisions which apply to marriage, as we have known it, cannot apply to marriages between same-sex couples, although we should want them still to apply to marriages between a man and a woman. My amendment proposes that, for the purposes of the law, marriages between a man and a woman should be “matrimonial marriages”. This would mean no change in the meaning of the word “matrimony”, which would continue to mean what it has always meant: the act of two free persons mutually taking one another for husband and wife. I do not need to pray Humpty Dumpty in aid of my amendment.
There are precedents for a qualifying adjective for certain kinds of marriage. For instance, in continental legal systems—although not I think in English law—there used to be morganatic marriages, where a man and a woman were lawfully married but the children of the marriage were disqualified from inheriting the father’s hereditary honours. The amendment which I am proposing would provide a convenient means of distinguishing in legislation, where necessary, between marriages of a man and a woman—matrimonial marriages—and marriages of same-sex couples. The word and concept of marriage would apply to both kinds of marriage, but the amendment would provide a serviceable legal distinction for one kind of marriage. It implies no moral, ethical or value-based judgment, or discrimination, between the two kinds of marriage. I commend it to the House.
My Lords, I agree entirely with my noble friend Lord Phillips. We are talking about two types of union which are entirely different: different in the way in which the union is manifested, in the obligations that flow from that union, and in the sanctions that can be obtained if one party defaults.
At Second Reading my noble friend Lord Jenkin missed the point entirely, which is very rare for him. He did not think that lumping together these two unions was redefining marriage, and said that it was not going to redefine his marriage. With respect to my noble friend, that is not the point. What about those coming up to marriageable age who are contemplating whether to marry? Might not this mishmash of traditional marriage and the union of two people of the same sex, with the accent no longer on family, make some people wonder whether to go ahead? What will they feel when denied the opportunity to have a traditional marriage?
One of the strangest assertions I have heard during this debate is that marriage will be strengthened if we go ahead with this Bill. There is not a jot of evidence to support that proposition; in fact, all the evidence is to the contrary. Some of us may have heard Dr Patricia Morgan when she—
I was just getting to the experience of other countries, and it does seem that some people have been put off. Dr Patricia Morgan produced evidence to show that since gay marriage was introduced in Spain in 2005, the decline in heterosexual marriage has been precipitous. It has been just the same in Holland since 2001, and also in Scandinavia. There is not one example of this change going ahead and marriage increasing. The result has been exactly the opposite.
If we are repeating Second Reading speeches, the noble Lord knows that at the same time that same-sex marriage was introduced in Spain, the divorce laws were liberalised. That is what led to the decline in marriage, not the introduction of same-sex marriage.
I am afraid that the noble Lord is wrong about that. It was certainly true that in Spain there was a relaxation in divorce at the time of the introduction of same-sex marriage, but I am talking about new marriages. There was a big decline in new marriages in Spain since the change came about. So it seems obvious that if marriage between same-sex couples is to be allowed, at the very least it should be made clear that it is very different from traditional marriage.
My Lords, political decisions are often influenced by issues of conscience. Speaking for myself, I have never confronted a more difficult decision than the one about equal marriage in the Bill that confronts us today. I voted against the amendment of the noble Lord, Lord Dear, because I believe that the House had a duty to look scrupulously at and scrutinise carefully every detail of this complicated Bill. I also believe that it was wrong to try to nullify a decision made in the other House as a result of a substantial majority on a free vote. Since then, I have had to confront the outcome of that and, with others in this House, consider very carefully the proposals before the Committee.
In my view, marriage has been for a long time the foundation of family life in this country and elsewhere. In that case, I believe that it is indeed a framework for procreation and the raising of children. As we all know, among mammals, human beings take longer to reach maturity than virtually any other creature on the planet. It takes between 15 and 18 years for a child to mature—if one takes an optimistic view—and I think many of us recognise that nowadays the actual figure may be well over 20. What that means is that we are looking at a very different proposition from other mammals. We are looking at what has to be a very large part of a life’s commitment to raise children properly, which is a very substantial factor that we have not yet considered sufficiently.
As my noble friend Lord Alderdice has pointed out, the evidence from social workers and psychiatrists suggests—I will not put it more strongly than that—that it looks as if a marriage between a man and a woman is probably the best and most stable basis for raising children that we have so far invented. I would also suggest that there is another factor than simply the biological one. Of course, we know that there is a biological difference between the genders but it is also critical to say that there is a difference between the approaches of the genders to a whole range of issues. As the famous American writer Carol Gilligan pointed out in her book, In a Different Voice, women and men approach relationships, and very often their relationships with the whole of society, rather differently; above all, they complement one another. That is the basis of what is known in the churches as holy matrimony and something that we have to consider very carefully indeed.
Traditional marriage also gives equal value to parents of both genders. In a moving statement yesterday, Mr Lammy, the Member of Parliament for Tottenham, pointed out that there had been a serious devaluation of the role of fathers in our society, citing his own experience as the child of a single-parent family. Today hundreds of thousands of children—more than 1 million—are being brought up without fathers or mothers or another permanent, loving or male presence. Single-parent families often display truly amazing—indeed, nearly miraculous—commitment to their children. Many of them are the breadwinners as well as the main carers for their families. I am often breathless with amazement at the extraordinary courage and dedication that the heads of single-parent families bring to that duty. But often they find it utterly exhausting to try to handle the whole burden on their own. That is not to condemn in any way single-parent families but to say loudly and clearly that the role of fathers should once again be sustained by the state and by society because they are such a crucial element in sustaining a long-lasting and loving family between two parents.
However, of course there is a different side to the argument. The most reverend Primate the Archbishop of Canterbury said that he had been stunned by the quality of some of the relationships between gay men and lesbian women that he had come across. I accede to that completely. Among my own friends, some of the most remarkable examples of human union that I have ever come across are between my gay and lesbian friends and their partners. Therefore, why should there be any difference in the nomenclature? The distinction is perhaps best made by pointing out the very different roles, as has been done already by several speakers in this debate, of a marriage that is based on the outcome of procreation—the long-term maturing of children—and a relationship that is based on the huge, total and intimate relationship between two people who wish to live their lives together.
Quite straightforwardly, the churches have a great responsibility in being asked to be forgiven for some of the attitudes taken towards gay people in the past. The Christian churches are fundamentally about forgiveness—not about vengeance, but about forgiveness. Jesus Christ asked not only that human beings be forgiven but that human beings forgive one another for their mutual and reciprocal sins. I say loudly and clearly that the Christian churches, believing as they do in forgiveness, should ask forgiveness for the long, abusive and often cruel treatment of gay people over many years. I hope that that is something they will address now that they are under charitable and understanding leadership.
In conclusion, I strongly agree with the noble and learned Lord, Lord Mackay of Clashfern, and indeed with the noble Lord, Lord Armstrong of Ilminster, that we need different descriptions for what are essentially different commitments. Equality is about equality of respect and equality of dignity. I strongly support it and I have done all my life. But equality is not the same as sameness. That is the fundamental mistake in this Bill. Therefore, there is no reason why a different nomenclature describing different levels and different kinds of commitment should not be part of this Bill. I strongly urge that we find nomenclature that describes the real differences—equal differences, but differences nonetheless—between couples who are married according to the traditional method and couples who are married because they seek a life-lasting union under this Bill. I support the noble Lord, Lord Armstrong of Ilminster.
My Lords, when I came into the Chamber this afternoon, it never occurred to me that there might be something original to be said. Having listened, however, to all the speeches thus far, it seems to me that it is original to point out that the very purpose of this Bill—its underlying objective—is inclusivity; it is sameness; it is to eliminate, so far as possible, any differentiation in regard and in treatment of same-sex couples from heterosexual couples. It is to give same-sex couples the exact same status, benefits, comfort, joys, estimation, reputation—call it what one will—of marriage. The Bill is so called and the Explanatory Notes make that plain. With the greatest respect to those who move and support these amendments, they are calculated, if not indeed designed, essentially to undermine that core purpose of the legislation.
In truth, this is a root-and-branch attack on the Bill, almost in the same way as was advanced at Second Reading. I, too, regret I was unable to speak at Second Reading—I was in fact celebrating my own golden wedding. I am happy to say that my noble and learned friend Lord Lloyd of Berwick was among those who joined me in the celebration. He says today that to talk of civil unions, instead of using the language of marriage would be, and I think I quote him accurately, “to give the gay community what it so obviously desires”. With the best will in the world, it would not. They have civil partnerships. It is absurd to suggest, I would argue, that civil partnerships and civil unions are distinct.
I think that there is a misunderstanding between us about the difference between being equal and being the same. If you have two different things and put them together, you do not arrive at a larger quantity of the thing that was originally there; you arrive at something new. If you add one part of hydrogen to two parts of oxygen, you finish up with water.
Whatever you say in the law, there are two different categories here; what we are trying to do, in all charity, is to bring them together and bring some sort of reconciliation and mutual recognition of understanding, which is being made exceedingly difficult, if not impossible, by the way this thing has been introduced into Parliament and into public life. However, the fact remains that when you have one part hydrogen and two parts oxygen, you finish up with water and not hydrogen.
I, of course, need the most rudimentary lectures in any scientific subject you care to mention, but I appreciate—and it was said time and again at Second Reading—that there is a distinction between equality and sameness. However, that is no bar to giving the gay community—same-sex couples—the same term to celebrate and enshrine their faith in and commitment to each other. If the Bill goes through in its present form and those couples are henceforth asked, “Are you married?”, they will be able to say yes, but if the amendments that are now suggested go through, they will still have to say no, and I for one would regret that.
My Lords, I find myself in total agreement with the submissions made so clearly by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I have immense respect for and sympathy with those who stand firmly on each side of this argument. If it is proven that there can be no actual sameness in single-sex and dual-sex marriage, then on a very artificial basis the argument seems to be carried that way. There cannot be total sameness, and we all know that.
However, the question that we should humbly be asking ourselves this afternoon is: can there be so much in common that the idea of marriage can accommodate both in respect and in status? That, I think, is the real question. If the argument was that the Christian concept of marriage is now and always has been immutable, unchangeable and utterly the same from generation to generation, then my case would fail. However, is that in fact the case?
Prior to 1836, people could get married in this country only in the Church of England. My forebears were staunch Welsh Presbyterians but they had to submit to a ceremony that they regarded as wrong. Was that not a massive change in so far as the institution of marriage was concerned in 1836? I am sorry to pontificate about matters that are well known to many distinguished lawyers in this House but before 1882 and the Married Women’s Property Act of that year, a married woman could not hold substantial property in her own name. She could hold what I think was called her “paraphernalia” but other property became the property of her husband and she herself was essentially a chattel of her husband’s estate. Immediately after that Act of 1882, could anybody say that marriage had not changed at all, any more than one could say it after 1836?
Then, in 1925, the criminal law was substantially changed. Previous to that point, if a married woman was present when an offence was committed by her husband, there was a clear presumption—a rebuttable presumption, it is true—that she was acting under his dominion and under his orders. Would one not say that that substantially changed the situation of marriage in the criminal law?
The noble Lord is giving us a very fine history of a number of changes which have, by statute, been brought about in relation to the definition of marriage. Is he suggesting that any of those changes was of the scale and nature of the change now being proposed?
Ultimately, bearing in mind the whole ethos of society, it is a matter of judgment, whether the totality of these changes has substantially altered the institution of marriage. Prior to 1991 a husband could rape his wife provided they were still living together and no separation order had been made by a court. Was her position the same after 1991 as it was previously? One could give other less spectacular instances.
That is absolutely true. That is the assumption made in the Book of Common Prayer, which, as I understand it—I am a Welsh Presbyterian—says that there are three justifications for marriage. The first is the procreation of children, the second is the avoidance of the temptations of fornication and adultery, and the third is that there should be a lifelong relationship based on love, affection and respect. The first justification has been dealt with very properly by the noble Lord, Lord Phillips of Sudbury. Many people who are young and capable of procreating children now get married on the understanding that there will be no children in their relationship. Does one say that their union is less than a union of marriage? On the third point, about the creation of a lifelong union based on love, affection, respect and mutual dedication, is there a fundamental difference between that and the institution of marriage, as we say now? Nothing that I have said can prove the matter one way or the other. However, I make the obvious point that marriage is not an immutable institution. It has become elongated and greatly changed over the years, and will be changed again. Is it not possible to accommodate within that change the term “marriage” for people of the same sex?
I make one last point with regard to union. The noble Lord, Lord Hylton, said that there was a union of Scotland, England and Wales. It was never a union in relation to Wales, as I am the noble Lord, Lord Elis-Thomas, will agree. The preface to the Act of Union says the country, dominion and principality of Wales is now and always has been annexed, incorporated and included. It was a rape—certainly not a union.
My Lords, I was not at the Second Reading debate but I have read the 90 speeches since then. I am glad I was not there because I would have added even more to the length of the debates. I declare an interest: I am neither a believing Christian nor a believing Jew, and that no doubt colours the way in which I approach these matters. Many of those who have spoken already come from a strong religious tradition, which I fully respect, and which drives many of their views. As the noble and learned Lord, Lord Brown, has said, the main purpose of the Bill is to enable same-sex couples to marry, either in a civil ceremony or, provided that the religious organisation concerned is in agreement, on religious premises with the marriage being solemnised through a religious ceremony.
I promise to speak only once in relation to Amendments 7, 8, 9, 34 and 46. All are based on the idea that there is something called “traditional marriage”, defined as the union of one man and one woman for life to the exclusion of all others. What they mean by “traditional marriage”—as the noble Lord, Lord Elystan-Morgan, indicated in referring to the Book of Common Prayer—is a form of marriage that is biblically ordained in the Judeo-Christian tradition, which is a theistic tradition, although it does not represent the thinking of many Christians or Jews or many of those of no religious belief who are not affronted by the notion of same-sex marriage. Under the Bill, Christian churches, Orthodox Jews, Sikhs and Muslims are well protected from the risk of liability. However, that does not satisfy the movers of these amendments, who seek to write into the statute book a lesser status for same-sex marriage than for opposite-sex marriage by calling it “civil union” or some other term.
No, I will not, because I think all noble Lords in this Chamber regard marriage as the crowning of our relationships. As a man who has been married for 41 years, I certainly do, as do many gay people who are religious, or not religious but who regard marriage as the highest status they can aspire to. Therefore if you call it something less, such as civil partnership or civil union, it has a lesser status—not just a different status but a lesser one.
Will the noble Lord at some stage address the amendment of the noble and learned Lord, Lord Mackay of Clashfern? It is difficult to believe that his proposal for “marriage (same-sex couples)” could import a lower standard, because it includes the word “marriage”.
I will do my best. As the noble Lord, Lord Elystan-Morgan, has said, concepts of marriage have not been static in England or elsewhere. During the past three centuries, Parliament has made changes to the status of marriage. What was once traditional and discriminatory is no longer enshrined in English marriage law. The Bill is a further step in removing unjustifiable discrimination, not against Catholics, Protestant dissenters or Jews, but against homosexuals.
I think my noble friend Lady Williams will concede that gay and lesbian couples are just as able as heterosexual couples to love each other in long, enduring relationships. They are just as able to bring up children in the way good parents do, in lifelong relationships. Some noble Lords will have personal experience of their children in gay and lesbian relationships doing precisely that.
Traditionally, the law governing the registration of marriages was piecemeal, restrictive and discriminatory, beginning with the Act of Uniformity 1662 and Lord Hardwicke’s Marriage Act 1753, which abolished common-law marriages. In the 19th century, Parliament created exceptions, one by one, to that discrimination. Most recently, exceptions were made under the Places of Worship Registration Act 1855, not only for Protestant and Jewish dissenters but for other denominations and bodies, theistic and non-theistic, including Buddhists, Jains and Muslims, whose premises are registered for religious worship and the solemnisation of marriages.
Under Scots law, as the noble and learned Lord, Lord Mackay, knows well, marriages by cohabitation and repute could be contracted in Scotland until as recently as 2006. They were still regarded as marriages, even though they were irregular. A traditional marriage could also include a marriage between first cousins, an arranged marriage or a strange thing called a levirate marriage.
Until the Civil Partnership Act 2004, loving gay and lesbian couples could not get legal recognition for their enduring relationship. Now, they may do so. The Act has worked very well, even though it was strongly opposed at the time. However, even though the Civil Partnership Act gives them equivalent rights and duties to those of married couples, it forbids them from marrying and the words “civil union” add nothing to the notion of civil partnership. That is why it is a lesser concept.
A year before the Civil Partnership Act became law, there was an important case—which many of your Lordships will have heard of—Goodridge v Department of Public Health, in which the chief justice of the Supreme Judicial Court of Massachusetts, Margaret Marshall, presided. That court upheld the right to gay and lesbian marriage, rejecting the argument that some of your Lordships have made today and elsewhere, that civil union or civil partnership was good enough. The chief justice explained why, on grounds of due process and equal protection, the state did not have a rational basis for denying same-sex couples marriage. A majority of that court agreed that same-sex couples must not be assigned second-class status, which is what I suggest would be accomplished if any of these amendments were accepted.
The other place has formed a similar view about the need for same-sex couples to marry, as have the Government. I know of no judgment of our courts or of the European Court of Justice that suggests the need for amendments of this character. They would suffer from the serious vice of encouraging a belief in a need for a second-class status for same-sex couples to be enshrined in English law. If the House divides now or hereafter, I will have to vote against any of them.
Perhaps my noble friend might refer back to what the noble and learned Baroness, Lady Butler-Sloss, asked him, which was whether he objects to Amendment 46, in the name of the noble Lord, Lord Armstrong of Ilminster, which would give the term “matrimony” to a marriage between a man and a woman but would allow marriage to same-sex couples.
My Lords, I strongly support what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said. He crystallised exactly what the debate about this group of amendments is about. The rationale behind this Bill, the philosophy that underpins it, is the concept of equality of marriage. Without wishing to go over the same old ground that to a large degree we went over at Second Reading, the point is that gay people simply want the right to share in the same institutions, not the same institutions that are qualified in some way or another. With due respect to those who say that there is not much in it, there is a great deal in a name and it is much more than a matter of nomenclature, which I think is the phrase the noble Lord, Lord Phillips of Sudbury, referred to.
Words such as “union” and “espousal” will themselves turn rapidly into divisive terms. If I fill out one of those forms at a bank or somewhere else and they say: “Are you married?”, and I have to say: “No, I am espoused”, I shall feel in exactly the same state I was in under the existing law of civil partnerships. Therefore we do not want simply to replace one second-division label with another. I think that the noble Lord, Lord Phillips, was the first to raise the issue of esteem. I have to tell noble Lords that the issue of esteem and the use of the word “marriage”, unqualified by anything else, are inextricably linked.
I spoke in the debate two weeks ago. Other noble Lords talked about the postbags that they had had since then. I have had a very substantial postbag—more so than when I have talked here on other matters—from people who looked at the House and thought very well of our proceedings. A number of people wrote to say that we gave them the courage to come out. That is a remarkable thing. However, this amendment flies in the face of all that. It is a wolf of an amendment in sheep’s clothing. It strikes at the heart of the Bill and would go against the entire philosophy on which it is rightly based, which is full, unqualified equality for gay people.
My Lords, it is my understanding that what same-sex couples are asking for is not permission from the state to enter into loving, committed, lifelong relationships but the recognition by the state that the relationships they have entered into, or will enter into, are equally valid in bringing stability to society and in being a right and proper place for the upbringing of the children they take into their families. Therefore, anything other than marriage, which we have all said is the bedrock of our society and should be the basis for the ongoing upbringing of children, will not do.
My Lords, I feel deeply unhappy to be divided on this matter from so many of my traditional friends on these Benches, but divided I am. Many of these amendments seem to rely on an understanding of the word “marriage”. In many of them we get down to defining the term. A “traditional marriage” is said to be,
“the voluntary union of one man and one woman for life, to the exclusion of all others”.
That is stated in several of the amendments that we are discussing. We need to look at definition to see what it means.
I will start with,
“to the exclusion of all others”.
Surely the bar is set too high for most mortals, including even the clergy and—dare I say it?—royal princes. The failure to keep to such a high trajectory does not destroy the meaning of marriage, and should not destroy the purpose of the Bill.
We are told that traditional marriage should be for life. Again, sadly, this is not so. We do our best. We promise and intend to be married for ever, but divorce is no longer a matter of public shame, although I hope it is a matter of much private regret.
Therefore, all that seems to be left of the definition is that marriage should be between a man and a woman. Traditionally that has been indisputably true. How could it have been otherwise? Until very recently, homosexuality was punished by the full force of the law: incarceration, a criminal record, chemical castration in many cases, and almost total social exclusion. Of course marriage traditionally was between a man and a woman.
However, the definition does not hold water. There is no satisfactory definition in the amendments of traditional marriage. Going back in time, we find that marriage was about inheritance, power, social standing and securing property rights. Those with no power or little social standing did it to make it easier to have sex—let us be honest. It is only in our lifetimes that marriage has been broadly based on love and any sense of equality between a man and a woman. Even today, there are still many exceptions to that rule.
Marriage has always changed its foundations. It evolves and will continue to do so. I have considerable sympathy for many of the values that lie behind the amendments. For instance, we have all suffered for too long from the intolerance exemplified in political correctness. However, with the greatest respect to many of my colleagues, we cannot base a piece of legislation on a concept of traditional marriage that has no enforceable meaning.
My Lords, Amendment 34 is down in my name and that of my noble friend Lord Edmiston. I should like to convey his apologies for not being here today and although the words will be mine, the spirit will be ours.
When I spoke at Second Reading I think I was fairly clear. No one was confused. I was not in favour of this Bill. I had the pleasure of speaking immediately after my noble friend Lord Dobbs, and I am happy to do so again. I will come back in a few moments to something he said. I was not in favour of it because, as I pointed out, I had grown up in a home and environment where both Christian and Conservative principles and values had dominated. That was my view and I voted against the Bill receiving a Second Reading. However, I have been in this place long enough to know that when both Houses have spoken with such overwhelming majorities, we have got to address that issue. We then have the right to turn to how we can, if possible, make the legislation better.
I would like to say to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that I think he did some of us a slight injustice. We are not trying to rerun Second Reading and the concepts behind it by tabling these sorts of amendments. There is a difference between traditional marriage—as it has been referred to—and same-sex marriage, which the Government recognise in Schedule 4, Part 2 and Part 3 of the Bill. The word “marriage” is used to cover both. The noble and learned Lord, Lord Brown, may be interested to know that I did not attach my name to the amendment of the noble Lord, Lord Hylton, and my noble friend Lord Cormack precisely because I thought that, having been as outspoken as I was at Second Reading, I would be accused of trying to undermine the principle of the Bill in some other devious way. That is why I did not attach my name to that amendment although I support it.
My amendment and that of my noble friend Lord Edmiston addresses a separate point. We have spent more than an hour talking about the substance of marriage, and in some cases rehearsing Second Reading, but in reality—in biological reality if nothing else—there are differences between a marriage of a man and a woman and a marriage of two men or two women. I am staying well clear of the symbolism and the aspirations. I am simply stating a fact. My noble friend Lord Dobbs said that we must address the political correctness which has concerned and dominated us for too long. I want to agree with him but in a different context. When this House and the other place have passed legislation around religious hate crimes, racial hate crimes and the like, once the well-meaning, carefully written legislation was subjected to general use, those whose sense of political correctness exceeded that of most of us in this Chamber got to work. People, employees and workers, particularly in the public sector, were accused of all sorts of things in the name of that legislation and in many cases it took them months and a fortune to prove that what they were accused of was not in accordance with the law of the land. Their reputations never totally recovered. I foresee that possibility arising out of this legislation.
Your Lordships will notice that I have not addressed the substance of marriage and I have not tried to define it. I say to my noble friend the Minister that I would like the Bill to state that for the general public who are not involved in all this deep theological and, if I may say so, legal analysis, it is all right to say—
I commend the noble Baroness for her enthusiasm. I will give way in just a moment. I would like the ordinary men and women of this country to be able to say, “It is legally all right; I am not involved in hatred of any sort if I talk about a traditional marriage between a man and a woman or if I talk about a same-sex marriage between two men or two women”. The Bill needs to reassure people that they can state what is factually the case and not have their jobs or reputations put at risk because somebody interprets this legislation in the way that race and religious hatred legislation has been interpreted thus far.
My Lords, my noble friend will have heard the exception taken by a number of our noble friends and others to the term “traditional marriage”. The term “same-sex marriage” immediately identifies what the difference is. However, there are two well known terms in the history of the Church of England which do not carry any such connotations, each of which I think might appeal especially to the predilections of the two confronted parties—that is, “ancient” and “modern”. I do not know whether he would consider changing his proposed two terms at a later stage; I just put that in his mind.
I think not, because “ancient” and “modern” carry with them designations which are likely to complicate an already pretty complicated set of circumstances. I am just a simple Belfast boy and “traditional” and “same sex” seem to me to be a fair reflection. However, in the same spirit as that shown by the noble Lord, Lord Hylton, and my noble friend Lord Cormack, if somebody can find a better way to put in the Bill simple phrases that ordinary people can use to protect themselves against being charged with some sort of hatred, I would be very happy to consider that.
Is the noble Lord aware that the Government have tabled an amendment to deal with his precise point about free speech to make it clear that criticising same-sex marriage or otherwise will not in any way constitute a criminal offence? That is clearly spelt out in a later amendment.
My Lords, I am grateful to the noble Lord for his intervention. He knows, perhaps better than most in the House, that I have a fairly strong commitment to freedom of expression. That commitment to freedom of expression and the Government’s commitment to freedom of expression have been there for years. However, that has not stopped people being accused of hate crimes, race crimes and religious crimes. I do not believe that simply using the term “freedom of expression”, or repeating it, will be any more effective than it has been over the past 30 years. Something simple needs to be put in the Bill that everybody can understand and behind which everybody, whatever their view of the issue, can take refuge, if necessary.
I thank the noble Lord. I wanted to make a very brief intervention to bring your Lordships back to the discussion of Amendment 1 in the name of the noble Lord, Lord Hylton. It seems to me that that amendment cuts at the very heart of the Bill, for which we have already voted. Clause 1(1) states:
“Marriage of same sex couples is lawful”.
In other words, we are talking about the basis of the Bill that we have discussed and was voted for by a very large majority in both Houses. The amendment seeks to replace “marriage” with “union”, which then makes something quite different from what the Bill is all about. In my view, it is not an amendment at all, because a union of same-sex couples, as I understand it, is lawful anyway.
What we are talking about here is legislation for same-sex marriage, and amending that sentence in Clause 1(1) as proposed cuts at the very root of the legislation. That cannot be acceptable. If it were pressed, I certainly would not vote for “marriage” to be replaced by some other word. In fact, I cannot think of a word that would be at all suitable, because marriage is what we are talking about—marriage between same-sex couples, which we have already agreed in principle with a very large vote at Second Reading. I certainly do not want to repeat a Second Reading speech, although one could say quite a lot about traditional marriage because that also has been referred to in the debate. As far as I am concerned, the wording that was before us as concerns traditional marriage is very much based on a religious outlook, which I respect but do not share; and certainly it has a provision for a kind of opposition to divorce, which I do not share. Of course, I imagine that very many people in this House at some time have been in a divorce court and therefore would not qualify under the traditional marriage position outlined in some of the amendments before this House.
The main point that I want to make is that I do not see how Amendment 1, in the name of the noble Lord, Lord Hylton, can possibly be accepted because it cuts at the very root of this Bill, for which we have already voted. We have had our Second Reading debate and have already voted in this House and in the other House with a very large majority, so I do not see how that can possibly be an acceptable amendment.
My Lords, I would like to explain why I am against this group of amendments and why I support this Bill. I first declare an interest as a practising solicitor specialising in family matters, as a trustee of the Marriage Foundation—although I speak in a personal capacity and not on behalf of it—and as a person who has had only a civil marriage ceremony. A cynic may think that I am in favour of this Bill because it opens up another avenue of possible work for me, but the reason that I support it is precisely because I believe the reverse to be true.
Civil partnerships became legal in 2005. Seven years later, I am now dealing with a wave of cases for their dissolution, although I stress that they are no more prone to dissolution than marriages. I ask myself: would these partnerships have stood a greater chance of success had the parties been able to be married? If this could happen, I believe that there would certainly be no adverse consequences, and there may possibly be some positive ones.
The civil partnerships to which I refer often involve children of the union. It is, of course, the children who are the innocent victims of the breakdown of a partnership, however that partnership is described. It is my belief that every possible measure should be taken by this country to support commitment to stable relationships. Their breakdown and the fall-out for all concerned, financial and emotional, must be addressed because that is the real threat to the very fabric of our society.
The law in relation to breakdown of marriage has evolved fast during the 30 or so years during which I have been in practice. For example, when I started, prenuptial contracts were of little or no value. It was considered repugnant to public policy to contemplate the breakdown of a contract that is meant to be for life. A few years ago, the Supreme Court decided that there had to be very good reasons not to hold a man or woman to their bargain regulating the terms of the demise of their marriage, just as in any other contract—thereby, in effect, substantially upholding such contracts.
Marriage is clearly not for life. That is illustrated by the status of second marriages. Nobody questions the validity of the second marriage of a heterosexual couple, yet a homosexual marriage is not entitled even to a first chance. What would Humpty Dumpty call a second marriage? Would he call it a “union” or a “second attempt”? It is fanciful to think that if marriage is for life a second marriage should be given status, when a homosexual marriage is not given a chance.
Religious institutions should not be forced or coerced to perform rituals that are not within their beliefs, and the Bill is clear on this point. My husband and I do not share a common faith and were therefore joined in a civil service, like many others. No one questions the validity of our marriage.
I have listened to many of the arguments for and against allowing the Bill to proceed, but when I hear the pleas of those who wish to sign up to the commitment of marriage it is impossible to see why an obstacle should be put in their way and the description of a union as marriage should be permitted to apply only to heterosexual couples, particularly given the status of the institution enjoyed by them. Everything should be done to support the commitment that two people wish to make to each other. To do otherwise is discrimination, pure and simple.
The consequence of the Bill not proceeding—and that is what the amendments before us would effect—would be this country being behind others in this area. Same-sex couples will have to go abroad to get married and there will be all sorts of complications as to the status in this country of such foreign marriages. We should embrace anything that encourages commitments to lasting, stable and loving partnerships, however they are described. Their demise and resulting fallout is causing serious problems for our society, and that is where our focus should be, not on the label given to their inception.
In summary, anything that has or could encourage the commitment of partners to each other, for their children, for life and for society in general, should be applauded. I am therefore in favour of the Bill.
My Lords, I strongly support the speech of the noble Baroness, Lady Shackleton, and will be very brief.
I remember going to a wedding of a couple of men shortly after the Civil Partnership Act came into effect in 2005. It was regarded by most of us at the party following that event, including by myself, as a form of marriage, and was referred to as such on that occasion. I cannot remember any words such as “partnership” or “union” for that relationship when it was discussed. The natural description of the joining of a couple, whether of the same sex or different sexes, is surely “marriage”. That is the appropriate word in the Bill.
I conclude by mentioning the word “matrimony”, which has been referred to already and appears in the Bill. It is a word that means “mothership” and adopts the Latin word “mater”. The use to which “matrimony” has been put in the Bill cannot apply.
My Lords, two themes have run through the debate. On one there is almost universal agreement that we must seek to achieve equality. We also have to recognise that there are differences between the two forms of marriage. Having said that—and I am sorry that I do not carry the noble Lord, Lord Alli, with me—it seems to me that we need effectively to recognise both the need for equality and the point that I have just made. I led from the Front Bench on the Civil Partnership Bill, which was a great step forward. None the less, it is perhaps unfortunate that its terminology did not recognise the aspect of equality, and it has certainly not been recognised by the country as a whole. What we need, therefore, is some recognition that there are two forms of marriage. If we do that, marriage will appear on both sides of the equation, representing equality. As suggested in Amendment 34, we need to have traditional marriage on the one hand, and same-sex marriage on the other. If we do that, we can achieve both of the objectives we seek, and reconcile the differences which have otherwise been apparent in the debate. One hopes that both the gay community and the community as a whole will recognise the status of these two forms of marriage as equal. I see no reason why this can not be done.
My Lords, normally I agree with everything my noble friend Lord Higgins says. I am in profound disagreement with him today. He has emphasised that he believes that marriages between same-sex couples and heterosexual couples are different. There are all kinds of marriages that are different: marriages between divorced people; marriages with and without children; death-bed marriages. However, we do not find different terms for those. Noble Lords need to ask themselves serious questions about why they wish to continue to emphasise sexual orientation in the names that they give certain statuses. By perpetuating giving a different name to marriage in the context of gay and lesbian people, we are wishing to continue to regard them as different from us. Inclusion is what this Bill is about, and what we should be about in society generally, because that is what will make us a stronger society.
My Lords, the legislation itself refers to two different types of marriage. It is there in how it is written. I am concerned that the attempt to find some common ground between deep divisions is being interpreted as some sort of wrecking amendment. The idea of union is fine; it says everything. I cannot see any difference. The English language is very rich in giving precision to meaning, but sometimes it is not precise enough. We do not want to make it less precise. For example, the Indian languages Hindi and Punjabi have different words for “uncle” and “aunt” depending on which side of the couple they come from, the mother’s or the father’s. These words give precision so that you know what you are talking about. Here, if you use the words “union” and “marriage”, that is fine; we know what we are talking about. There is nothing to suggest that one is less equal than the other, which would be totally wrong.
My Lords, without wishing to prolong this debate, perhaps I may try to say a brief word on behalf of children. Many gay relationships—civil partnerships—have children within them. If anybody believes that within a gay relationship it is simple to create a family, they should think again and talk to some of those families. For both gay women and, perhaps more particularly, for gay men, having children by adoption is a most formidable task and one that is scrutinised with great care. What we are talking about here is not just the equality of the married couple or the partners to that relationship, but of their children as well. I would urge upon your Lordships that we should enable those parents to say to their children, “We are married”, and above all we should enable those children, when they are asked about the relationship of their parents, to say, “My parents are married”, not “My parents are espoused” or “My parents are unionised”—
My Lords, I have tabled Amendment 2 in this group. I was led to put this amendment down in an attempt to analyse what the differences are on this Bill. They are quite deep in this House, in the other place and in the country. I thought that something could possibly be done to try to bridge the divide.
The claim made by the proposers of the Bill is that whatever happens, the word “marriage” should be at the forefront of its title. Anything less takes away to some extent from that, although very worthy words have been proposed. When one looks at the debate here and in the other place, and reads the letters we have had—I thank the people who have sent many letters to me; I cannot possibly answer them all in view of my commitment to this—one can see that there is a feeling among many people in this country that same-sex marriage on the one hand and opposite-sex marriage on the other are different, and in a number of ways. They may have much in common and yet have distinctions.
I believe that the attempt to deal with this sort of thing in the descriptions given in the myth-busters document that was published along with the Bill did not really look at the main objection that people have, which is the fact that, over many centuries, marriage has signified a relationship between the opposite sexes. That is the fundamental point which a lot of people have grasped and held on to, in a way that is difficult for them to accommodate in any other context. When the myth busters got going, they used a technique which I remember being described by the great advocate Sir Milner Holland to the effect that if you cannot answer a point, the best thing to do is to set up a cockshy as close to the point as possible, knock it down with a great flurry and then pass on. That, in effect, is what has happened. The myth buster talks about the myth of having no development in marriage over the years. Anyone who has listened to this debate or read the volume to which the noble Lord, Lord Pannick, referred at Second Reading will know that there have been many developments in marriage over the years. The idea that there have been none is not the foundation of the argument at all; rather, it is that the fundamental distinction is between a marriage where the relationship is between people of opposite sexes and what is proposed in this Bill.
What I think might be of use in dealing with that is to recognise within the nomenclature of the Bill that there are two distinct provisions, one relating to same-sex marriage and the other to opposite-sex marriage. I did not put down the opposite-sex marriage amendment today because I saw that these other amendments about traditional marriage and so on had been tabled. There is reference to opposite-sex marriage in Clause 11, alongside same-sex marriage. Ultimately, it does not make any difference to the provisions. However, it does signify that the distinction between the two is understood by the legislature and that the title “marriage” is given to what the proponents of the Bill want, at the same time as recognising that those distinctions exist.
Reference has been made by my noble friend to children. One of the greatest matters to be concerned about these days is the way in which the abuse of our children has reached extraordinary lengths over quite long periods, with the authorities seemingly unable to extricate them from it. It is very distressing. It has nothing whatever to do with this Bill, but it has to do with the fact that we must think carefully about children. I feel particularly distressed because I had a part in the Children Act which, in a sense, is the foundation of the system whereby the state takes care of children. As far as I understand it, most of these abused children have been in the care system—I find this particularly difficult to take.
The provisions concerning children in this Bill need to be looked at. Part 2 of Schedule 4 says:
“Section 11 does not extend the common law presumption that a child born to a woman during her marriage is also the child of her husband … Accordingly, where a child is born to a woman during her marriage to another woman, that presumption is of no relevance to the question of who the child’s parents are”.
That seems to leave the position of the child very much in limbo. The idea that there is no difference at all between the two is not borne out by that kind of provision. We need to think about this as well the other matters that have been spoken about.
While I am on the subject, paragraph 3(2) of the same schedule says:
“Only conduct between the respondent and a person of the opposite sex may constitute adultery for the purposes of this section”.
As your Lordships may imagine, a child born of a woman who is a partner in a same-sex relationship is in a somewhat difficult position if it has been born by natural processes. The position of children in this area needs carefully to be considered.
When my right honourable friend the Secretary of State introduced this Bill in the House of Commons, she recognised the deep divisions over it. The best solution I can suggest for dealing with these divisions is to hope that Parliament might show that, in passing the Bill, it appreciates the distinction between same-sex and opposite-sex marriage, but that it has decided to produce a Bill which gives to same-sex couples the rights that belong to opposite-sex couples, subject to the modifications that the Bill makes to accommodate the distinction between the two.
My Lords, I apologise for not being here in your Lordships’ House at Second Reading. I thank noble Lords for their greetings on that occasion, when I was recovering from surgery. I am on the mend, although I am not quite there yet. I want to thank especially the noble Baroness, Lady Royall of Blaisdon, for the generous compliments in her speech.
I suggest that this legislation is an exercise in ideological redefinition. The amendments before us today are designed to limit this ideological damage. I will speak to the one amendment that probably does it better than the others. The legislation does not address the concrete disadvantages from which same-sex couples still suffer. It is a matter of deep personal regret and sorrow to me that homosexual people are still diminished, which is anathema to me and to the Primates of the Anglican Communion. In the 2005 Dromantine communiqué, we said that the diminishing of homosexual people is anathema to the Christian faith. However, it still happens, which is a deep regret for me. I want to tell them that I am sorry.
The great difference between this legislation and the reform that introduced civil partnerships is that the latter remedied certain concrete difficulties and disadvantages. What injustice would be remedied by some civil partnerships becoming marriages? That argument of remedying injustices does not seem to carry much weight; the argument lies somewhere else. Ministers of the Crown have argued that the legislation extends to an excluded minority a concrete privilege currently enjoyed by the majority. What is that privilege? The privileges that accompany marriage have already been extended to same-sex couples through civil partnership legislation. However, since marriage has been defined in law and practice as a relationship between a man and woman, marriage, as so defined, cannot in law be extended to same-sex couples.
The draft legislation presupposes an account of marriage that makes the gender of the partners incidental to the institution. This, to me, is a novelty. It does not correspond to marriage as it has been known in British law and society. This is not an extension of something that already exists but the creation of a new institution, under the aegis of existing marriage law, which is in fact quite different from it. We are somewhat ill prepared midwives at the birth of a new social institution. Why not give it a new name?
The interests served by the legislation before us are, I suggest, ideological and aimed at changing the way people think: hence the amendments before us today are rightly geared towards protecting individual freedoms in the face of a radically new ideology. The church shares, in the best traditions of this House, a passion for justice and a deep concern for the particular needs of minorities. These concerns have been met in the provisions of the civil partnership legislation. However, today, the question turns on two other interests of the church: first, an interest in the truthful description of anything; and, secondly, an interest in defending responsible practices of government against the sophistic abuse of language.
It matters that we recognise this as a new social institution. As a Christian, I would argue that being a man or a woman is not incidental to the human relations a person may engage in, but formative of them. In Christian understanding, the meaning of human sexual difference is in the good gift of God in creation. The maleness and femaleness of the human race are given to us. It is where we are placed, in common with the whole human race in every generation. Our role is to be thankful for it and to understand how it helps us to live the human lives that we are given. This task of appreciating our sexual difference weighs equally on married and unmarried, on gay and straight, and on children and adults—on all who have the gift of being human. Christians, in common with Jews and Muslims, understand marriage as essentially representative of this good gift of sexual difference. This understanding flows from an undivided and unbroken tradition that has sought to define the unity of the human race, uniting nations, religions, cultural traditions and periods of history.
In describing marriage as bound up constitutively and generatively with male-female relations, we describe a good form of life for which we can be unreservedly thankful. As with any aspect of creation, our interpretation of marriage is not final. Reality is deeper than its interpretation; there is always more to be learnt. Our thinking may be shaped by artists, working in whatever form, who represent to us some fragment of reality to be recognised. It will be shaped also by scientists, who model complex interactions and observations in formulae that render them intelligible. It may also be shaped by theologians, teaching us to thematise that which artists and scientists have shown within the larger picture of the goodness of God.
The unamended legislation uses the term “marriage” to describe a new entity. For me this entity is worthy in itself, but it is not equivalent to marriage as hitherto described. I have argued that this is not an area for state intervention. The work of government does not lie in teaching us how to interpret and think about reality. Yet we are here. The trouble with this undifferentiated use of the term “marriage” is that it will create confusion on the one hand, and erode freedom of conscience on the other. The amendment of the noble and learned Lord, Lord Mackay, seeks to remedy this. It calls both same-sex marriage and opposite-sex marriage “marriage”.
In contrast, the legislation to create civil partnerships was, for me, a proper exercise in formal terms of the authority of government. That legislation was precise in its use of language. It recognised the intrinsic difference between the loving, life-long commitment of same-sex couples and the loving, life-long commitment of male and female couples in marriage. I respectfully submit that those who sought to extend the scope of civil partnerships beyond same-sex couples would have made the legislation lack legal clarity. Its intention would have been blurred, if not thwarted. Those who resisted the extension of civil partnerships beyond same-sex couples were right, because it would have blurred the entire conversation and the entire discussion.
Without some clearer classification, as suggested in the amendment of the noble and learned Lord, Lord Mackay, we introduce a degree of ambiguity that is not common in law. This cannot help anyone, because Clause 11 still refers to “opposite sex”. We must be very careful about how we arrive at an answer. Responsible government is government under law. A responsible Government must prevent, as far as they can, the judgment that the law is an ass. I believe that fracturing the law of marriage into two alternative concepts of marriage inevitably inflicts damage of very serious proportions on English law, weakening the authority of the law as a whole. This damage can be lessened by the very honest amendment of the noble and learned Lord, Lord Mackay. This amendment seeks clarity and makes an important distinction. If it is accepted, as I sincerely hope it will be, it will go some way towards preserving the integrity of the law. I support the amendment, and I hope the House will have the same view.
If that was the definition, would the Church of England be prepared to marry couples in church? The great difficulty with civil partnership marriages for Christians—those who love the Lord deeply—is that there is no religious content. From the speeches just made, would the Church of England change its position if the amendment of the noble and learned Lord, Lord Mackay, was agreed?
I wish I was speaking on behalf of the Church of England. I am not. I am part of it. The noble Baroness knows as well as I do that decisions about liturgy and constitutions are not the privilege of bishops but of the General Synod of the Church of England. This matter will need to be discussed. Incidentally, I am one of those who has gone on record as saying that had civil partnerships been given enough space, the church would not have escaped the possibility of a conversation. What do you do with people in same-sex relationships who are committed, loving and Christian? Would you rather bless a ship and a tree, and not them? However, that is a big question, to which we are going to come. I am afraid that now is not the moment. We are dealing with the legislation as we have it. I am trying to make it slightly easier to work out what that difference is. Give me time, and one day I may come back and speak on this.
My Lords, I will be extremely brief. I am not sure whether I prefer the amendment set down by the noble Lords, Lord Hylton and Lord Cormack, or the one set down by the noble and learned Lord, Lord Mackay, but I believe that either of them would help bridge the divide. Therefore, I am generally in favour of both of them and would be happy with either.
The only point I want to make is to refer back to something that the noble Lord, Lord Carlile, said about children. I think that he rather oversimplified the matter. If a same-sex couple says to its children, “Yes, we are married”, and those children have had what I would call the benefit of religious education and say, “But we have been told that marriage is between a man and a woman”, this seems divisive and it would be very difficult to square the circle with them on that.
My Lords, I, too, am a trustee of the Marriage Foundation, which I should say is totally neutral on this subject. In any case, I am speaking personally.
To pick up a point made by the noble Baroness, Lady Williams, about children, when I was a family judge I tried cases where I placed children with gay couples, male or female. I had the utmost confidence that those children would be extremely well brought up. Nothing that we are discussing today, or indeed in this Bill, leads me to believe that whatever a same-sex couple’s relationship is called would have anything to do with the excellent way in which very many children are brought up by lesbian and homosexual couples. That is my own personal experience, sitting as a judge.
I did not speak at Second Reading; I thought that 90 speakers were enough. Like others, I have received more than 100 letters which my secretary has so far replied to, and many more e-mails. It might interest the House to know that 98% were opposed to this Bill, but the 2% in favour were also extremely persuasive. Listening to the earlier speakers, it seems clear to me that the word “union” will not be treated by those seeking marriage as the equivalent of “marriage”, for the reasons that have already been given. Since it is clear that this Bill is going through, it is time for us to try to find the best way forward.
Those who support the Bill are—to use the colloquialism—hooked on the word “marriage”. That we have to accept, but the Government need to recognise the strength of feeling of those who are opposed to the use of the word “marriage” simpliciter as recognising the marriage of couples of the same sex. We must find a middle way. I strongly support the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern, because this House urgently needs to seek reconciliation and find a compromise, as the noble Lord, Lord Phillips of Sudbury, said earlier. Somehow we have to allow the word “marriage” and somehow we have to distinguish between different sorts of marriage.
As the noble and learned Lord, Lord Mackay of Clashfern, has pointed out—and I aim to say in later amendments to this Bill—this is a question of equality but it is not a question of uniformity. You cannot have uniformity in this Bill together with what you get in the marriage of opposite-sex couples. One only has to look at Part 4 of the Bill, as the noble and learned Lord, Lord Mackay of Clashfern, has done, to see that there are differences. There is nothing wrong with differences in equality. As the most reverend Primate the Archbishop of Canterbury said at Second Reading, there is a danger of equating equality and uniformity in this Bill.
I cannot see how Amendment 2 can be objectionable to people. The “marriage” word is used and those who are in any marriage are equal, but the amendment recognises that there are differences. You cannot say that marriage for same-sex couples has in any way a lower status than marriage for heterosexual couples has. For goodness’ sake, at the end of the day we are legislators, if I might respectfully remind the House, legislating for what people on the ground will actually be doing. As the noble Baroness, Lady Shackleton, pointed out, there are all sorts of marriages: those who wish to marry; those who are already married—I have to confess that I have been married for very nearly 55 years, and to the same man; and marriages for the second or third time. We have to recognise this, but we also have to recognise that there is a difference, and although the noble Baroness, Lady Noakes, talked about different sorts of marriage, the different sorts of marriage that she mentioned were actually between male and female, because in those days they could be nothing else; they were all male-female.
This amendment would be a compromise in an otherwise deeply divisive Bill. I have to say to those who have been talking about the children, particularly the noble Lord, Lord Carlile, that perhaps most important of all—
I should like to ask the noble and learned Baroness a question. I have wanted to ask this of other members of your Lordships’ House who were speaking about the matter of calling a same-sex marriage a same-sex marriage rather than distinguishing it from what people are calling a traditional marriage. What is the noble and learned Baroness’s view about the fact that anyone who has a same-sex marriage would have to identify their sexuality by definition? Why should they have to do that?
You have to recognise the truth of it. The most reverend Primate pointed out the importance of truth. It is different. We have to look at some stage, as the noble and learned Lord, Lord Mackay, pointed out, at how we deal with the children of a couple who cannot have their own children as a couple.
I beg the noble and learned Baroness’s pardon, but in other parts of our legislation—in our equalities law—we protect people from having to declare their sexuality, because we think that that is the right thing to do. It is not a question of the truth or not the truth.
The declaration of sexuality would be relevant only at the moment of marriage. It would not be relevant to everybody else who meets them or knows it. They will be married. Perhaps the most important point made by the noble Lord, Lord Carlile, was about children. If we have marriage and same-sex marriage, so far as the children are concerned, it is marriage. They will say, “My parents are married”. It seems to me that the noble and learned Lord, Lord Mackay of Clashfern—
I apologise to the noble and learned Baroness, but I never answered her question when I was on my feet. She asked what I thought of Amendment 2. What I do not understand, either in Amendment 2 or in the speeches in support of it, is why it is necessary. The Bill begins by saying in Clause 1(1):
“Marriage of same sex couples is lawful”.
Subsection (2) refers to:
“The marriage of a same sex couple”.
We do not need to have sarcastic remarks about Lewis Carroll and Humpty Dumpty. The words could not be clearer. I do not understand why one needs to add anything. The Bill is about the marriage of same-sex couples and nothing else.
I am grateful to the noble Lord for being prepared to answer the question that I asked him some considerable time ago. The House needs to recognise the deep division that exists both in this House and in the country. From the quantity of e-mails and letters that I have received, I know that there are a number of people out there who are bitterly upset, bitterly distressed and angry at what has happened with this Bill. I support the noble and learned Lord, Lord Mackay of Clashfern, because the amendment is a compromise—it is an attempt at reconciliation. I do not support the word “union” for the very sensible reasons that have been given. I think that there has to be the word “marriage”—I am, with regret, converted to that now—but I believe that we have to seek a middle way. If we do not, there will be many people out there listening who will be even more upset than people in this House.
I should like to answer the question that was not put while I was speaking. The provisions in the Bill for same-sex and opposite-sex couples are different, and therefore it is only right that a distinction should be recognised in the Bill for that purpose. That would not make one any less lawful than the other or anything of that sort, but it would distinguish between the provisions that apply to same-sex couples and those that apply to opposite-sex couples. Nobody can deny that these provisions are different in the Bill.
So far as the noble Baroness, Lady Thornton, is concerned, there is no necessity to declare one’s sexuality in relation to same-sex marriage. As I pointed out at Second Reading—and I am sure that the noble Baroness listened carefully—there is no question of needing to be gay to engage in a same-sex marriage. Platonic relationships between people of the same sex would perfectly suit the Bill as it stands.
My Lords, it seems to me that we are trying to find a form of words that does not increase the level of discrimination. The amendment in the name of my noble and learned friend Lord Mackay offers that and I shall be most interested to hear what my noble friend on the Front Bench has to say about it. It seems to me that it could provide a way forward without producing further discrimination. I believe that if we added the words “traditional marriage” to the Bill, we would be going down entirely the wrong route. What is the definition of “traditional marriage”? How do we describe it? Is it when the bride wears white? Is it a traditional marriage when the bride goes up the aisle with two children whom she has already had out of wedlock? We would be going down a road that, as legislators, we should not follow, and I believe that it would be a grave mistake. We should find a form of words that both sides can live with.
My Lords, Amendment 9 in this group is in my name and I should like to speak to it now. I have a great deal of sympathy with what the noble and learned Baroness, Lady Butler-Sloss, said. She really focused, as did the most reverend Primate the Archbishop of York, on the blurring of the wording before us in the Bill.
There has been some comment about the difference between equality and sameness, and we touched on that at Second Reading. What we have heard today has, very largely, been two alternative points of view. One is that out of civil partnership might have arisen something which itself would grow into the dignification of something similar to marriage, and the other is a fusion—which is what the Bill is really talking about—of two completely different strands into the one nomenclature of marriage. It is that point that I wanted to mention in introducing Amendment 9 and to offer a way forward—a compromise to where we are now.
The Government say that the Bill is about ensuring equality, fairness and respect for same-sex couples who wish to have their relationship recognised in marriage, and I agree with that. I hope the Government will also accept that there also needs to be equality, fairness and respect for those who hold a different opinion. Much has been said about protecting churches and individual clergy from being forced to officiate at same-sex marriages. I believe I am right in saying that there is nearly universal agreement in your Lordships’ House on the important principle of protecting religious liberty in that regard.
Indeed, the Bill includes provisions that the matrimonial laws of the Church of England will be largely unaffected. In other words, the church law of marriage will remain in place. This is especially important because the Church of England has a unique privilege as the established church and a special common-law duty to provide services of marriage to people in parishes throughout the land. I know that the church is grateful for the steps taken by the Government in that regard. Time will tell whether those protections will stand the evitable challenges of the UK and European courts. Some of us are not altogether optimistic in that regard. Be that as it may, the Government’s intention is that the canon law of the Church of England remains intact.
The principle underlying this protection is one of freedom and liberty. That is a good and right principle that has widespread support in your Lordships’ House and in the country at large. That being the case, should we not also apply it to the non-established churches, to places of worship of a non-Christian faith and to couples who wish to enter into a marriage as traditionally defined? Under the Bill, a couple wishing to marry according to the current legal definition of marriage can technically do so only in a Church of England church. If betrothed couples wish to marry in a nonconformist church, a non-Christian place of worship or in a civil setting, they will be forced to use the new—let us call it gender-neutral—definition of marriage. For people of faith, deep questions of conscience arise, especially as that new definition of marriage will be the one used in the service of worship. This is causing deep hurt and offence.
We have already heard at least two references in your Lordships’ House today to the volume of letters and e-mails. I am something of a lightning conductor in this issue because of the amendment I moved at Second Reading, and my count is more than 1,000 letters and e-mails. My percentage count is exactly same as that of the noble and learned Baroness, Lady Butler-Sloss, with 98% against the Bill and 2% for it. I place no great emphasis on that other than to say that there is very deep concern out there and outside the Westminster village. For many people, many churches and those of other faiths, the Bill fundamentally alters the meaning of marriage.
I accept that churches are unlikely for the time being to be forced to marry people of the same sex. However, outside the Church of England they will be forced to marry people according to the new definition, which is what I want to focus on now. That will be the only option available to them. Churches, the non-Christian faiths and the couples themselves are being forced to publicly declare that their relationship equates to a new, gender-neutral definition. For many people—perhaps that 98% I mentioned—that is absolutely not what they want. It contradicts their most deeply held religious or philosophical beliefs. They want to enter into a marriage that accords to their own understanding of marriage and their most deeply held beliefs. That perhaps is not an unreasonable expectation.
All marriage ceremonies, however held, must include a declaration by each of the parties that there is no lawful impediment to marriage and that each consents to marry the other. Every couple who marry currently do so in the knowledge that they are entering an institution that is a voluntary union for life of one man and one woman to the exclusion of all others. It may be said that some people are free to attach their own meanings to their own marriages and can use whatever additional words or promises they want, but that is missing the point. The key element of marriage is that the couple are making a public declaration that they are married. That requires a public declaration of what marriage is, and we have heard a great deal about that this afternoon in your Lordships’ House.
Under the Bill, the definition changes so that marriage will be a gender-neutral institution. That is not what many couples want or believe about marriage. They should have the option of publicly declaring that their marriage is in accordance with the current law, which is consistent with their faith or beliefs. My amendment addresses this problem in a very simple, reasonable and non-destructive way. For marriages outside the Church of England, it introduces an optional form of words for the solemnisation of a marriage, which reflects the current legal definition of marriage—that is, the definition that is currently understood. I emphasise that this will apply only to couples who want to take that option.
This is about giving people a choice and respecting their different beliefs. It is a permissive measure. It does not affect the legalisation of same-sex marriage in any way; it does not take away Clause 1 of the Bill. It simply respects those who disagree by giving them the option to register a definition of marriage that reflects their beliefs—which are universally respected throughout the world, and, if I may say so, throughout history. With this amendment, non-established churches and those of other faiths at least have the option to offer couples a declaration of marriage that is acceptable to their beliefs and publicly recognised. It will be a significant help to those faith groups. Put simply, without this amendment couples who have a traditional view of marriage have three options. They can get married in the Church of England, not get married at all or get married in a ceremony where the declaration of marriage does not reflect their beliefs.
I will conclude by quoting again from the paper that I mentioned both in my opening remarks at Second Reading and when I wound up, when I talked about some research that had been carried out in Argentina. Noble Lords may remember that I indicated that Argentina was, to my knowledge, the last country to follow pretty well exactly the same steps that we took in legislating, and that two years on it is now in a position to measure the results. The results are huge in terms of unintended consequences. I will read from the very last paragraph of a paper by Dr Ursula Basset, which touches on much of what we have heard about the public view and getting uniformity of view and acceptability to this legislation. Dr Basset says:
“Argentina is moving toward uniformity. Previously, we had two brothers: Homonormativity and Heteronormativity. They both desired the “marriage word”. Homonormativity won, and redefined marriage to adapt it to its needs. The new definition and its consequences were imposed on the whole of society. Heteronormativity and its peculiarities were abolished as a rule, and Heteronormativity lived as an expatriate in its own land without any visible juridical recognition in society”.
The prose is a bit purple, but we can understand what it is saying. As two competing viewpoints jostle for a place in this nest that we are calling marriage, I contend that it is very important that there is a willing acceptance by the majority outside of what we are legislating about. I confidently commend Amendment 9 to noble Lords as one way forward to get that acceptance.
My Lords, I rise to speak against Amendment 1. I will also touch on Amendments 2, 9, 33, 34, 46 and 57.
The clear purpose of the Bill is to allow same-sex couples to marry. These amendments seek, in one way or another, to create two classes of marriage, which is exactly what the Bill is avoiding. This occurs in the amendment of the noble Lords, Lord Hylton and Lord Cormack, which replaces “marriage” with “union”; and in the amendment of the noble and learned Lord, Lord Mackay of Clashfern, by adding “marriage (same sex couples)”. Let me say to the noble and learned Lord that he did not do his cause justice by linking the abuse of children to a speech about same-sex marriage. Many of us found that absolutely offensive.
Let me make it absolutely clear that it had nothing to do with that. It is important—to me anyway—that children are considered. That is what I wanted to be considered. I do not link it to same-sex marriage at all. I never did and I do not think that anything I said could reasonably be so construed.
The noble and learned Lord should not have said it then. The amendment of the noble Lord, Lord Dear, and those of the noble Lords, Lord Edmiston and Lord Mawhinney, and the noble and right reverend Lord, Lord Carey, have opted for the term “traditional marriage”. In fact the noble Lord, Lord Dear, and the noble and right reverend Lord, Lord Carey, want a separate register too.
Perhaps I may interrupt. I withdrew my name from that amendment, even though I fully support my noble friend Lord Dear in what he has said. I was a teller when we had the debate and it was clear to me that, almost by three to one, we as a House declared our unanimity with the House of Commons. Therefore this debate is not about going over old ground again, but about finding a way forward to meet the deep discord and anger in the country. Many people are very worried about this Bill. How can we go forward together and find some unanimity of language? That is why the noble and learned Lord, Lord Mackay, is suggesting that amendment.
I thank the noble and right reverend Lord for that intervention. I had heard that he had withdrawn his name from the amendment. I think he described it as mischievous and dangerous and I very much agree with that, too. The noble Lord, Lord Armstrong of Ilminster, wants to use the term “matrimonial marriage” for opposite sex-marriage. All these amendments are cut from the same cloth with the same purpose: to create inequality in the use of the term marriage between same-sex couples and opposite-sex couples. I agree with the noble Lord, Lord Black of Brentwood, that these amendments are wolves in sheep’s clothing, designed to preserve marriage and the use of the term exclusively for opposite-sex couples, with the exception of the amendment of the noble Lord, Lord Dear, which seeks to introduce a new concept of traditional marriage.
I apologise for interrupting and I am grateful to the noble Lord for giving way. I appeal to him to accept that many people in this country are deeply troubled. Many wish to see a true equality and true equality is based on difference. Can the noble Lord not concede that it would be a good idea to find a formula that both would give him what he wants and would ease the minds and consciences of countless people outside this Chamber?
I do not accept the noble Lord’s premise. I understand that there is concern outside this Chamber, but the vast majority of people in this country want this measure to go through. Poll after poll, the majority in the other place and, I suspect, the majority here want it. The problem with the noble Lord’s suggestion is that it is diametrically opposed to what we wish for in terms of the use of the word marriage.
I am a little confused about what the noble Lord, Lord Dear, has in mind when talking about traditional marriage. Marriage not just predates Christianity, but is found in many different cultures and traditions and, as has been said, in many different forms. As an aside, the noble Lord may be interested to know that in ancient Rome, Emperor Nero was married to a man—a fine tradition, in my view, but perhaps not what the noble Lord had in mind.
First, I hope that the noble Lord will clear up the point about whether I am being mischievous. I hope that he will say in the Chamber that I am not. Secondly, subsection (2) of the new clause proposed by Amendment 9 states simply:
“A ‘traditional marriage’ is one where the basis of the marriage is the voluntary union of one man and one woman for life, to the exclusion of all others”.
My Lords, I think I am right—I hope that the noble and right reverend Lord, Lord Carey, will correct me if I am wrong—that in an e-mail purporting to come from the noble and right reverend Lord, he described his own amendment as mischievous and dangerous. It was not I who used those words.
Attempts to create inequality in the Bill seem to be the sole object of these amendments. To create a separate term or register would be both divisive and unnecessary. I hope that noble Lords will think again and not press their amendments. I suspect that there is no appetite for them in the House.
Perhaps I may make a point to the noble Lord. The homosexual community has long been a minority in our society and has protested, understandably loudly, at being unfairly treated. He has just pointed out that those opposed to the Bill are now a minority. Could he not extend the same generosity that he expects, and try to reach an accommodation in that direction?
I will repeat what I said to the noble Lord, Lord Cormack. These two concepts are diametrically opposed. What the noble Lord wishes to happen is completely opposite to what I wish to happen. At some point, when two sets of rights are in conflict, these great Houses of Parliament have to decide which rights are pre-eminent. If there was a course of action that we could find that would satisfy and accommodate everybody, there is nobody in the House, on any side of the argument, who would not work night and day to find it. However, these concepts are opposed. Therefore, our job as a Parliament is to say which is pre-eminent, the first or the second. I suspect that the public and Members of this House—
Is that quite right? The amendment of the noble Lord, Lord Dear, states:
“Nothing in this Act takes away the right of a man and woman to enter a traditional marriage”.
Nothing in the Bill takes away that right. It is not a question of one right trumping another. The rights of the traditionalists are protected completely under the Bill, and the rights of gay people are also protected.
Amendment 9, tabled by the noble Lord, Lord Dear, would create a separate register—so there is a difference in the noble Lord’s amendment, which would create a new category of marriage. More broadly on the noble Lord’s point, I contend that we have to consider the emotional response of the communities involved. The issue cannot be gauged simply by the words in the Act. I argue very strongly that it is not acceptable to have a differentiation in wording or name between different types of marriage. That would be exacerbated outside this Chamber the moment the legislation went through.
My Lords, I had not intended to intervene in this debate, but I will make two brief points. First, I am very uncomfortable with the references we have heard to a new definition of marriage. As I understand it, the aim of the Bill is to enable same-sex couples to share in the existing understanding and status of marriage. My understanding of my marriage is not primarily gender-based; it is based on the fact that I love my wife and wish to stay with her for the rest of my life. That has nothing to do with gender.
Secondly, I would love to find a compromise—I am a compromising sort of person, and I very much welcome the recognition of my noble and learned friend Lady Butler-Sloss that the word “marriage” is essential in whatever we end up with—but I find it extremely hard to imagine any compromise that would not formalise the idea that there are two different forms of marriage. Therefore, I tend to agree with the noble Lord, Lord Alli, that it is either one thing or the other.
My Lords, we have had a long and interesting debate about the definition of marriage and about this group of amendments. I accept fully that noble Lords are, with the best of intentions, trying to find a way through. However, we on these Benches think that the effect of all the amendments in this group would be the same. All, in different ways, seek to enshrine in law a distinction between what is referred to as “traditional marriage” or “matrimonial marriage” and the new, statutory definition of marriage that will be created under the Bill, which encompasses the union of both opposite-sex and same-sex couples. Whether those who tabled the amendments intended to or not, they were in effect making two classes of marriage. Trying to find different definitions—and in some cases, I fear, jealously guarding the word “marriage” for heterosexual couples—suggests that one form of marriage is inferior to another and that flies in the face of the Bill.
The noble and learned Lord, Lord Brown of Eaton-under-Heywood, was quite right in his remarks, as were other noble Lords, including the noble Lords, Lord Dobbs and Lord Black, the noble Baroness, Lady Richardson, my noble friend Lady Turner, the noble Baroness, Lady Shackleton, in her excellent speech, the noble Baroness, Lady Noakes, and the noble Lord, Lord Carlile. They all appreciated that while those who tabled the amendments have a strong personal belief about marriage, in some cases rooted in their religious faith, their amendments would undermine the purpose of the Bill.
It is important to make a distinction between something that has the effect of undermining a belief or an idea and something that undermines an individual’s ability to hold such a belief. I find it difficult to believe that, when the Bill becomes an Act and same-sex marriages are a routine matter, as they will be, the noble Lords who have been so nervous today will feel that something important or precious has been removed from their faith or their strong belief in marriage.
Article 9 of the Convention on Human Rights clearly enshrines an individual’s right to freedom of thought, conscience and religion. We must be absolutely clear in our protection of these rights. The Bill seeks to do that. The Bill does not in any way undermine those rights for individuals in relation to their belief about the appropriate nature of marriage. As the noble Baroness, Lady Richardson, said, its purpose is to provide for the state to recognise equally the relationships of couples, regardless of whether they are between members of the same sex or of opposite sexes, who wish to make a loving and lifelong commitment to each other.
By inserting a distinction between same-sex and opposite-sex marriage back into statute, whether by describing one as a “union”, as Amendment 1 would do, or as matrimonial marriage requiring special privileges, as Amendments 46 and 57 do, or by setting up a separate register, we would undermine the purpose of the Act, which is to remove the distinction in law between same-sex and opposite-sex relationships. Therefore, we on these Benches have no sympathy with, and do not support, any of the amendments in this group. I ask noble Lords not to be seduced by what I regard as the lethal combination of the noble and learned Lord, Lord Mackay of Clashfern, and the most reverend Primate the Archbishop of York. The way they described what they wish to achieve was seductive, but it would have the same effect on the Bill.
I think that the noble Baroness suggested that my amendment was designed to undermine the Bill, although I explicitly made clear that it was not. What would she think about giving ordinary members of the public the assurance that they can use certain phrases, by putting them in the Bill, to protect themselves against undue political correctness? My amendment has nothing to do with the substance that she has addressed so far in her speech.
I think that noble Lords’ concerns about free speech will be addressed at a later stage in Committee, in the next group of amendments but one. I am certainly happy to address those concerns. This group of amendments is about the substance and purpose of this Bill. The Government have addressed the freedom of speech issues; indeed, they are covered in this legislation and in the legislation that is already in existence.
My Lords, I am very grateful to all noble Lords. I think more than 30 noble Lords have contributed to this debate on the first group of amendments. We have covered quite a lot of ground and I hope noble Lords will forgive me if I start by reminding the House about the purpose of this Bill. All the amendments in this group go to the heart of the Bill. I acknowledge the point that my noble friend has just made and I will address his specific amendment and others in turn in a moment. The Bill, in part, is about safeguarding the future of the vital institution of marriage by making sure it reflects the modern and inclusive society that this generation of your Lordships’ House has helped create, and which younger generations value and want to see extended.
What we are looking for here is the acceptance of gay men and lesbian women for who they are. That means accepting their relationships on the same terms as we accept all relationships. I hope noble Lords will forgive me if I refer back to a couple of points I made at Second Reading. Clearly, I will not go over all the points I made then. The arrival of civil partnerships had a profound effect on how we, as a society, look at and consider gay couples. Civil partnerships allowed us to see that gay men and lesbian women want to be together for exactly the same reasons as straight couples. I know some noble Lords usually refer to the inability of gay couples to procreate as a way of saying that there must be a difference there because there is a physical difference. However, as other noble Lords have said today and in other debates, that is not a fair distinction. There are couples of the opposite sex for whom procreation is not an option. The longer George Clooney waits to pop the question, the less likely it is that that might be an option for me. If he were ever to extend his hand in marriage to me, I would not want noble Lords to diminish my union with him on the basis that procreation was not a possibility.
We understand that gay couples take their union—I use that word in the broadest sense, rather than specifically in response to the noble Lord, Lord Hylton—as seriously as a man and a woman who want to get married. That is why we have become accepting of them and, for many of us, why we are so comfortable with the idea of gay couples marrying just like the rest of us. I know many noble Lords have said today that there is a minority—some describe it as a majority—outside this House, and indeed there are some inside this House, who do not feel so comfortable. Of course I understand that. However, the evidence shows that the majority of people are quite content for marriage to be extended to gay couples. It is worth reminding ourselves of the speech that my noble friend Lord Norton of Louth made towards the end of Second Reading, when he went through all the various evidence out there. He made the very striking point that among the younger generation there is very high support for and acceptance of gay marriage.
It is also worth reminding ourselves that we can see that gay men and women do not want to change marriage. They just want to be part of something that they, too, believe is important to our society. In terms of the current legislation and civil partnerships, if someone asks a gay man or a lesbian woman whether they are married, to be really accurate they have to say, “Sort of”. They are not legally married, yet they want to be able to say yes. As my noble friend Lord Black made clear, as did the noble Lord, Lord Carlile, this is very important.
The most reverend Primate the Archbishop of York outlined very powerfully his belief in marriage. I welcome him back to your Lordships’ House. In response to him and to all noble Lords, it is important to say that it is vital that religious faiths remain free to practise in accordance with their doctrines. If, for them, that means that marriage is between a man and a woman, that is their fundamental right and the Bill does not change that. It is vital that people can believe that marriage should be between a man and a woman and be able to say that that is what they believe. Again, the Bill allows that, but in allowing gay men and lesbian couples to be married in civil ceremonies or by those religious faiths who choose to, the Government are clear that it is not right to distinguish between their status as married from that of marriages between a man and a woman. All of these amendments would create a distinction, a different tier or a separate institution, and that is contrary to what this Bill seeks to achieve.
I turn first to Amendment 1 in the names of the noble Lord, Lord Hylton, and my noble friend Lord Cormack. This has been commented on by several noble Lords. It goes to the heart of the Government’s policy intention in the Bill. It amends the first word in the first line so that a new institution of “union” would be created for same-sex couples. We disagree with that on principle but I note that it has attracted limited support from around the House. Amendment 2, in the name of my noble and learned friend Lord Mackay of Clashfern, while apparently less stark, has a similar intention of creating a subdivision of marriage by referring to “marriage (same-sex couples)” as a separate concept. My noble and learned friend argued that this distinction is necessary because until now marriage has been between a man and a woman only. My noble friend Lord Dobbs made the important point that the reason why marriage has been able to be only between a man and a woman until now is that the law has not allowed otherwise and because of the way in which we have considered gay people. I will return to my noble friend’s other amendments on the effect of terms in law because that comes a bit later.
We do not agree that extending marriage to same-sex couples requires a separate distinction or institution for them. There is only one institution of marriage. There is no middle way in this matter. We cannot bridge this divide—we can only remove it. We do not want to construct a new institution for same-sex couples, even a new institution that uses the word “marriage”. It would still be a difference for same-sex couples, and that is exactly what this Government are trying to avoid and to change through this Bill.
A curious aspect of this debate is that it is assumed that if there is a distinction between two possible definitions, one is necessarily inferior to the other, and that comes out very clearly. Would it meet her point if there was also an amendment which said the status of both forms of marriage is equal?
If anybody wished to table an amendment and your Lordships wanted to debate it, I would be happy to consider that debate and respond to it. However, the short answer is that it would not be acceptable because we want only one institution of marriage. That is what we are seeking to achieve. We do not want to distinguish between opposite-sex couples and same-sex couples.
I think my noble and learned friend referred to this point in an earlier intervention. I will probably cover it a little later, but I think he is referring to Clause 11(1), which states:
“In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples”.
That does not introduce a distinction between two different kinds of marriage.
As I understood the noble Lord, Lord Dear, to say, Amendment 9 in his name is intended to define the marriage of a man and a woman as a traditional marriage, and have that marriage registered as such by the Registrar General in a separate register. Traditional marriage of the type he is putting forward could be formed only by opposite-sex couples. Therefore, this amendment would create an unwelcome distinction in the institution of marriage. As I stated at Second Reading, the introduction of same-sex marriage does not redefine any existing or future marriage of a man and a woman. It is not necessary to protect that status.
Does the noble Baroness agree that what I propose is, in very simple terms, a purely permissive provision that would retain the new legal definition of marriage as introduced by the Bill? It goes very much with the Government’s line on this and does not seek to change it at all. It would simply set up within that new definition the possibility of the couple getting married declaring their marriage in a form which is acceptable to them and having that registered in a register—a side register, if you like—that the registrar can keep. As I say, the provision would work permissively within the Bill and not upset it at all, but would satisfy the 98%, shall we say, who want the comfort of staying with what they understand to be traditional marriage.
Although I understand perfectly what the noble Lord is saying, the amendment would still create that separation and distinction that somehow one group is different from another and, therefore, we have to keep them apart. That is what we are trying to avoid. That is what we do not want to do.
Amendments 33 and 34 give us an opportunity to discuss—
I am grateful to the Minister for giving way. Will she ask her advisers why the separate but equal doctrine that is being propounded in some parts of the House was struck down by the American Supreme Court in Brown v Board of Education as being inherently discriminatory?
I shall certainly seek advice on that, but I have a feeling that my noble friend would be able to help me answer the question he has posed. I will certainly endeavour to respond to that point while I remain on my feet.
Amendments 33 and 34 give us an opportunity to discuss Clause 11. It may be helpful if I explain briefly what Clause 11 does. It is a significant clause to ensure that existing and future legislation in England and Wales will be interpreted so that all references to marriage and related terms will be read as applying equally to same-sex married couples unless specifically provided otherwise. This is right and necessary to ensure that all married couples are treated generally in the same way. The clause also gives effect to Schedule 3, which makes further provision for the interpretation of references to marriage in both new and existing legislation in England and Wales. It also gives effect to Schedule 4, which sets out particular instances where the effect of Clause 11 would give the wrong result.
I turn to Amendment 33—
My Lords, I am grateful to my noble friend. I understand that she just wants marriage without any bells or whistles—just marriage. Will those people who are not politicians or lawyers, and who may use the phrase “same-sex marriage” or “traditional marriage”, now be exposed to the charge of committing a hate crime?
Absolutely not. I was going to come on to respond briefly to the points that my noble friend raised. However, I am happy to make clear now that I will move an amendment to make it absolutely clear that that is not the case—not that it would have been anyway, but I am happy to clarify that. Furthermore, nothing in the Bill prevents anybody using any kind of terminology they choose to use in the course of their conversations, whether in public or private. The Government seek to ensure that we do not introduce distinctive terms into this legislation which separate out different people. That is the key difference.
Amendment 33 in the name of my noble and learned friend Lord Mackay states that Clause 11 should be:
“Subject to the later provisions of this Act”.
However, as I said, Clause 11 gives effect to Schedule 4, paragraph 27(2)(a) of which makes Clause 11 subject to contrary provision made by,
“the other provisions of this Act”.
That achieves the effect that my noble and learned friend’s amendment appears to seek and so renders it unnecessary. My noble and learned friend also referred to the presumption of parenthood and to adultery and raised important points about both those matters. We shall discuss later amendments on these issues so it is probably more efficient for me to come back to those at the appropriate time.
As I have just said, we believe that Amendment 34 in the name of my noble friend Lord Mawhinney is unnecessary. Although we reject any designation that would create two tiers of marriage because there is only one form of marriage, Clause 11 does nothing to prevent anybody using any terms, including “traditional marriage” or “same-sex marriage”, if they choose to do so. As I have described, the clause interprets terms related to marriage for legal purposes; it does not prevent individuals or others making reference to, or supporting, traditional marriage. It is worth referring to the powerful intervention by my noble friend Lady Noakes on difference and the fact that there is a lot of difference in marriages, as other noble Lords have said. Some married people have no children, some stay married for life and others divorce. We do not apply different labels to those kinds of marriages and that is not something that we want to do in the Bill.
My Lords, I am very interested in what my noble friend said about people being able to say what they want without fearing retribution, as it were. I should like to bring to the noble Baroness’s attention the case of Adrian Smith, the housing officer who was demoted by a housing authority for expressing the view, in his own time and on his personal Facebook page, that same-sex marriage was an equality too far; and to that of Brian Ross, the police chaplain who was forced out of his job for stating his opposition to the same-sex marriage proposals. I could go on. Can my noble friend tell me where there are safeguards in the Bill to prevent that happening?
There are safeguards in the Bill as the Equality Act makes it clear that it is possible for people to express their religious or other beliefs in a manner that is absolutely of their choosing as long as that is done without inciting hatred or is not expressed in the workplace in a way that might damage an employer’s reputation. However, given that we shall come to a large group of amendments on this issue, and there is quite a lot that I can say at that point which I think will reassure my noble friend, I hope she will allow me to respond to that issue in more detail on that later group of amendments. I think that would be the best thing for me to do.
The amendments tabled by the noble Lord, Lord Armstrong of Ilminster, proposed that marriages for opposite-sex couples be classified as “matrimonial” marriages—again creating, I would argue, separate institutions for marriage of opposite-sex and same-sex couples. Others have commented on that word “matrimonial”, which does not seem to have attracted a great deal of support around the House. For us, again, as a matter of principle, that is something that we would be unable to accept. I know that the noble Lord is genuinely concerned that the current law on marriage might alter as it applies to opposite-sex couples when this Bill comes into force, but I can assure him that this is not the case.
The Government do not believe that any new legal status or subdivision for marriage is either necessary or right. There is one legal institution of marriage in England and Wales, which, through this Bill, all couples will be able to join by either a religious or a civil ceremony. The existence of marriage for same-sex couples does not alter the marriage of opposite-sex couples. Nothing in this Bill affects the marriage of opposite-sex couples in any way. Regrettably, these amendments would deny same-sex couples the fairness that this Bill is designed to achieve. I therefore ask the noble Lords not to press their amendments.
I repeat to noble Lords concerned about freedom of expression and freedom of speech matters that this Bill most clearly protects freedom of speech and freedom of expression.
My Lords, first of all, I thank noble Lords for wishing me well in my recovery and on being back in the House. To answer the noble and learned Lord, Lord Mackay, on the question of whether even in the Bill itself some distinction is drawn between same-sex marriage and opposite-sex marriage, I would say that a distinction clearly is made in Schedule 4, Part 3, on the divorce and annulment of marriage. It states under the heading “Divorce”:
“Only conduct between the respondent and a person of the opposite sex may constitute adultery for the purposes of this section”,
but when it comes to annulment, that does not happen, so already there is an acknowledgment of some kind of distinction between the two types of marriage. I do not think it is right to say that there is no distinction.
Furthermore, although Clause 11 says that marriage is being extended, the particular definition of marriage and the way in which the Church of England has perceived it and teaches it are also very different, so I am not so sure that you can deny that even in the Bill there are some distinctions.
The most reverend Primate referred to divorce and annulment. We are not changing the definition of “annulment” because it is an historical definition that is linked to procreation. As I said at Second Reading and again today, clearly there is a distinction between same-sex couples and opposite-sex couples because procreation is not available to same-sex couples. We are not seeking to change the definition of existing marriage law and how it applies to opposite-sex couples. We think it is perfectly proper for that distinction to remain as it is and not be changed in order to apply to same-sex couples, because that would render it meaningless.
Again, amendments on adultery are coming up. I do not know whether we will get to them today. I am really looking forward to that debate. It is going to be great. I urge noble Lords to come back on it. We should be selling tickets for it. I will be able to cover that issue in detail at that time.
Will my noble friend the Minister clarify the position on annulment? This matter appeared in a letter written to Peers. My understanding of annulment is that it is not connected to procreation. You can have an annulment of a marriage even if you get married at 65. It is not directly related to procreation.
If my noble friend will forgive me, although I responded to the most reverend Primate on this topic, this topic is quite a point of detail and we will be debating it later at great length, so rather than trying to flick through my briefing folder now to find specific answers, when we have that debate I will be absolutely prepared and armed to respond to her at that time.
The noble Lord has done me a great service because he reminds me that I was wrong in the connection that I made to procreation. That is why it would be much safer if we debated this matter when I have the right speaking notes in front of me. I am grateful to the noble Lord.
I can, however, respond to the question from my noble friend Lord Lester. This was a US Supreme Court case that ended the bussing of children to segregated schools in the USA. I am wary of making a direct read-across, but my noble friend makes a point that is very worthy of consideration: that separate but equal can be a cloak of inequality.
I think I have covered all the points raised in the debate, so I ask the noble Lords whose amendments we have been discussing not to press them.
My Lords, I am honoured and pleased that my amendment should have paved the way for such a profound, important and long-lasting debate. I think that very many of us have been doing our best to find a common ground for honourable, long-term relations between couples of whatever kind. I hope that the Government accept that point. For my part, I have come to the view that other amendments in this group, and indeed in the fourth group on the Marshalled List, point the way better than mine to the ways in which we can continue to seek improvements to the Bill both in Committee and in the later stages. I therefore beg leave to withdraw Amendment 1.
Amendment 1 withdrawn.
Amendment 2 not moved.
Amendment 3 had been withdrawn from the Marshalled List.
4: Clause 1, page 2, line 3, at end insert—
“(c) a priest of the Roman Catholic Church in England or Wales.”
My Lords, this is a very different, and rather more limited, amendment, but I think it has some importance. I had tabled it really as a probing amendment to try to get a clear answer from my noble friend who will be responding as to why clergy within the definition of the Bill are limited to clergy of the Church of England and the Church in Wales. Of course, one understands this in the case of the Church of England; it is the established church of the land. Welsh disestablishment happened a long time ago. It seems to me that there is one church in this country that deserves to be mentioned in the same clause: the Roman Catholic Church. I know very well that there are clear and honourable differences of opinion within the free churches. We heard eloquent speeches both today and on Second Reading from the noble Baroness, Lady Richardson, to indicate that she, as a former president of the Methodist Conference, takes a line that is clearly at variance with the official line of the Church of England and the Roman Catholic Church.
I am grateful for that clarification, although I know quite a number of free churches ministers of different denominations who would certainly line up behind the noble Baroness. However, if she or anyone else wished to table a further amendment to include the clergy of the free churches, I would raise no objection, but the Roman Catholic Church has made its position clear and unambiguous. That deserves recognition, and the priests of the Roman Catholic Church deserve the same degree of protection that is rightly being accorded to priests of the established church. It is in that spirit that I briefly commend the amendment to the Committee and hope that it will at least elicit some support. I beg to move.
My Lords, the amendment is an unnecessary and potentially confusing addition, because it would, as the noble Lord said, add Roman Catholic priests to the list of persons exempt from the common-law duty to marry parishioners under Clause 1(5). As he also said, the common-law duty extends only to members of the Church of England and to Wales clergy, not the Roman Catholic Church. It is not a question of not wanting to offer protection to the Roman Catholic Church; it is just that it is not necessary to do this against challenge on the basis of any such duty.
Priests of the Roman Catholic Church are already protected in Clause 2, as are clergy of all other religious organisations that may decide whether to opt into performing same-sex marriage. Clause 2 is absolutely clear. It states:
“A person may not be compelled to … undertake an opt-in activity, or … refrain from undertaking an opt-out activity … to conduct a relevant marriage … to be present at, carry out, or otherwise participate in, a relevant marriage, or … to consent to a relevant marriage being conducted”.
The clause makes specific provisions for individuals, other than registrars, to be able to refuse to perform or participate in performing a same-sex marriage. This will allow priests, ordinaries, altar servers, organists and many others to refuse to participate in such a service, even if their governing authority has decided to opt into same-sex marriage. That is clear and the provisions in the Bill are sufficient to allow the Catholic Church to not opt into same-sex marriage with full confidence of protection under the law.
My Lords, I thank my noble friend Lord Cormack for moving the amendment. As he indicated, it is a probing amendment, and I hope that from both the response of the noble Baroness, Lady Royall, and what I am about to say that he will be reassured that there is good reason why clergy of the Church of England and the Church in Wales are identified separately in the Bill.
As my noble friend indicated, the amendment would make plain that no duty of the Roman Catholic clergy to marry couples is extended by the Bill to same-sex couples. I am grateful for the opportunity to explain the position. In respect of this amendment, whatever his duties in the Catholic Church or under Roman Catholic canon law are, a priest of the Roman Catholic Church is under no legal duty according to English law to marry anyone. If a couple of some other faith, or who are for example simply not members of his congregation, come to him, he does not have to marry them.
However, there is a common-law duty to marry parishioners, which applies to the clergy of the Church of England and the Church in Wales. That duty arose because of the establishment of the Church of England and the previous establishment of the Church in Wales. The purpose of Clause 1(4) and (5) is to ensure that this duty does not extend to the marriage of same-sex couples.
However, given that no other religions are or have been established in England and Wales, no common-law duty arose in respect of the clergy of other religious organisations. It is therefore not necessary to have a provision in the Bill ensuring that such a duty is not extended to the marriage of same-sex couples. All other religious organisations are entirely free to decide whom they wish to marry according to their rites.
Therefore, Roman Catholic clergy, along with ministers of other religious organisations, are fully protected under Clause 2. The amendment would therefore achieve no change in the law but could produce confusion and doubt as to whether the clergy of the Roman Catholic Church might be under a legal duty to marry opposite-sex couples when, in fact, they are not.
I hope that that straightforward and simple explanation satisfies my noble friend. However, it has been important and worth while for him to have moved the amendment to provide an opportunity for that explanation to be given.
My Lords, I am grateful to my noble friend and the noble Baroness, Lady Royall. I have a number of Roman Catholic friends who have been somewhat concerned, and I am grateful that all this is now on the record. I am only too glad to beg leave to withdraw the amendment.
Amendment 4 withdrawn.
5: Clause 1, page 2, line 3, at end insert—
“(6) No person to whom subsection (7) applies may deprive another person of an office or appointment for holding or having publicly expressed the belief that marriage is, or should be, the exclusive union for life of one man and one woman, nor may such a circumstance applying to a candidate for such an office be taken into account as a factor against appointment.
(7) This subsection applies to those making appointments to any public office as defined in section 50(2) of the Equality Act 2010 or any appointment made by a person who is specified in Schedule 19 to that Act or any person exercising a function that is a function of a public nature for the purposes of the Human Rights Act 1998.
(8) A breach of subsection (6) may confer a cause of action at private or public law.”
My Lords, we heard earlier a number of instances, which I shall not repeat, in which expressing views in relation to same-sex marriage has led to sanctions against people in various walks of life. The amendment is, in effect, intended to avoid any risk of that sort of thing happening in connection with a public office. I beg to move.
My Lords, I wish to speak to Amendments 5, 7, 8 and 19, government Amendment 53 and Amendment 54. This group of amendments seeks to put into the Bill a series of protections for those who believe that same-sex marriage is wrong, who want to make clear that they believe it is wrong, and who are employed by public authorities or subject to the Equality Act.
Robust provisions in the Bill and that Act already give such protections. Indeed, the Minister made this clear at Second Reading and, if she does not mind, I shall repeat her words. She said:
“It is lawful to express a belief that marriage should be between a man and a woman, and it is lawful to do that whether at work or outside work. That is a belief that is protected under the religion or belief provisions of the Equality Act 2010, and penalising someone because of such a belief would be unlawful discrimination under that Act”.—[Official Report, 4/6/13; col. 1104.]
The Minister and the law cannot have been any clearer. In addition, as promised, the Government have brought forward—unnecessarily in my view—reassuring language in Amendment 53 regarding freedom of speech. As regards Amendment 37, which was tabled by the right reverend Prelate the Bishop of Leicester, and Amendment 56 of the noble Lord, Lord Dear, the Government are, in Amendment 53, giving the noble Lords all that they ask for but in more inclusive language. I hope that the right reverend Prelate, who is not in his place, will accept that and move on.
Given that the law is clear and the Government have strengthened the language on free speech, what are Amendments 37 and 56 for? I have a sneaking suspicion that their impact, like many others tabled throughout the Bill, will not be helpful but raise alarm with the public and insert inflammatory language to fix a mischief that never really existed. I accept that that is probably not intended by those who tabled those amendments. However, I call it the “Section 28” effect. What do I mean by that? The last time that such an impact was felt was after the introduction of Section 28 of the Local Government Act 1988. The inflammatory text damaged the reputations of the party opposite and this House. We have come a long way since then. I ask the Committee and the Government that where there is no mischief that they can identify please do not seek to remedy it, as is the case with these amendments dealing with public authority employees expressing their opinions on marriage. Please be wary of those offering helpful solutions, as some of us have had to live with the terrible consequences of those tactics as a result of Section 28.
My Lords, first, I apologise to the noble Lord, Lord Alli, and others on the other side of the House. My hearing aid, or my hearing, or both, gave way last time and I could not hear a word that was said. I was very fortunate to have a prompter near me. I do not think that anything I say now will provoke a large number of interventions but if that happens, I am now in better shape to deal with them.
The amendment deals with discrimination against someone because he expresses the view that marriage is the union of a man and a woman. I want to take this opportunity to mention something which has been very much on my mind. This sort of discrimination may become prevalent because it has got about the place that even before the Bill has become law, it is plain wrong to express support for traditional marriage. I hope others were as concerned as I was to read how the Law Society and the Queen Elizabeth II Conference Centre cancelled conferences to be held on their premises by Christian Concern to make the case for traditional marriage, with a very distinguished body of speakers. Each of those bodies had the nerve to say in its notification of cancellation that the nature of the event was,
“contrary to our diversity policy, espousing as it does an ethos which is opposed to same-sex marriage”.
It never seems to have occurred to the writers of those letters that they were quite deliberately interfering with the right of free speech in a country where free speech is greatly treasured as the hallmark of a free society. I hope that a clear message goes out from the Government today that the behaviour of those bodies was clearly unacceptable. We must safeguard free speech, whatever we do tonight.
My Lords, I wish to speak briefly to Amendment 54, which is in my name, and, obviously, to government Amendment 53. Much has been said in your Lordships’ House of the need to preserve free speech but, as I outlined in my Second Reading speech, the role of the state goes beyond that. To ensure free speech, there has to be an encouragement and a protection of dissent in the public space. I am grateful to my noble friend the Minister for bringing forward Amendment 53, which was promised in the other place on Report, and was a concern outlined in the recent report of the Joint Committee on Human Rights that was published last Friday. I am a member of that committee, and there were very divergent opinions on the principle of the Bill, but we managed to come up with a report of the whole committee about the concerns that remain about the Bill.
I am grateful that the Government have brought forward this amendment to deal with some of the concerns around free speech. It is particularly important when on our statute book there are crimes that can be committed, with the force of criminal law being brought to bear on them, when there is hate speech with a particular mens rea of intending to stir up hatred against, for instance, somebody on the grounds of sexual orientation. I draw attention to what the noble and learned Baroness, Lady Butler-Sloss, outlined: this is a necessary safeguard when we look at what people on the ground are actually doing. Members of the other place have already referred to an incident a few weeks ago, when the police were called to a heated exchange around the matters that we are considering. We have to bear in mind that the effect of this legislation, and the potential effect on free speech, has to be policed on our streets by ordinary police constables. Amendment 53 ensures that they have clear guidance around what is and is not a criminal offence. It specifically states the caveat that it is not just about stating your belief that marriage is between one man and one woman. It is allowing that criticism to take place and thereby not breaching criminal law once the criticism is made. That dissent in the public space is to be welcomed.
In my speech at Second Reading I drew attention to the exchanges that took place between David Lammy MP and David Burrowes MP on these issues. One of the things that are becoming very difficult in speaking on this issue is the analogy, which was the cause of the dispute in the other place, around sexual orientation, same-sex marriage and racism. I am surprised to see the nature of the exchanges we are having today. If that is what ends up taking place in this debating Chamber, what will be happening on our streets when passions get inflamed around this issue? I welcome the Government’s amendment and believe that it brings in an important safeguard.
I shall speak to Amendments 7 and 8, which stand in my name in this grouping. I ask noble Lords to consider the words which case law has held to be paramount in this, that beliefs must be,
“worthy of respect in a democratic society and not incompatible with human dignity”.
They are words protected by the European Convention on Human Rights, and they cover both religious and philosophical beliefs. There are a clutch of cases which I could quote here, but I will refer briefly to only two of them.
The first is Grainger plc & Others v Nicholson in 2009. The court held that strong philosophical belief about climate change, for example, affected how the claimant lived. It went beyond mere opinion. It was setting out that opinion is one thing, which is not protected by the law, but that serious beliefs which stand above that should be so protected. That case really became the bedrock of this particular set of cases. In a 2005 case in the House of Lords, Regina v Secretary of State for Education and Employment and others ex parte Williamson, the noble and learned Baroness, Lady Hale, said that:
“A free and plural society must expect to tolerate all sorts of views which many, even most, find completely unacceptable”.
Agreeing with that judgment, the noble and learned Lord, Lord Walker, in accepting pacifism, vegetarianism, and teetotalism as beliefs, went on to say that they are not just religious beliefs,
“but equally … may be based on ethical convictions which are not religious but humanist”.
I galloped through that just to say that the words,
“worthy of respect in a democratic society”,
have a solid bedrock in both European law and the law of this country.
The reason for tabling these two amendments is to focus on the fact that the Government have repeatedly insisted that this legislation before us will not penalise those who believe that marriage is only between a man and a woman. As the noble Baroness, Lady Cumberlege, has already said, the obvious case to cite at that juncture is that of Adrian Smith and the housing trust. That has been mentioned several times in previous debates on this subject. I will not go into it again but that case, and others, indicate the fragility of the position of those who seek to express a firmly held view, without any intent of causing any disruption beyond—
Adrian Smith won his case under contract law. He was awarded only £98 for loss of earnings. I understand that he was advised by his lawyers that he would not have succeeded on a religious or belief discrimination claim.
Having mentioned the Adrian Smith case and the fragility which I think most would accept is there at present, my Amendments 7 and 8 are paving amendments, as much as anything, for Amendments 10, 12 and 14, which also stand in my name. They are put forward to your Lordships for consideration as alternatives, to put the Government’s assurances on a statutory footing. The amendments expressly state that,
“marriage was the union of one man and one woman”,
as a belief, and here I quote again,
“worthy of respect in a democratic society”.
As I say, that is the key test used by the European Court of Human Rights. The amendments go on to say “that no person” holding that belief “should suffer any detriment”, and ensure an ongoing recognition that there are different views on the issue and that the many who hold to a long-standing definition of marriage should not be disadvantaged.
Briefly, Amendment 7 requires that:
“Any person, in exercising functions under or in consequence of this Act”,
should have regard to the principle of not causing detriment to those who believe in “traditional marriage”. That would put, as an example, the Secretary of State under an obligation to have regard to this principle when making orders under the Act. It would apply to anyone involved in the registration of marriages, including staff handling applications from churches.
Amendment 8, as an alternative, tightens the focus down to:
“A public authority, or any person exercising a public function”,
having regard to the same principle. That would apply to public sector employers, including housing trusts, which might treat employees unfairly because of their beliefs about marriage. The amendment would also extend to all that is done, for example, by Ministers of the Crown, the National Health Service, local authorities, schools, police forces and so on. Individuals in all walks of life would be protected, from doctors to road sweepers, from nurses to government advisers, and from teachers to police officers.
Is the noble Lord aware that the Equality Act 2010 does all of this? I recommend that he reads the guidance that accompanies that Act. The legislation received cross-party support in this House. It is a carefully balanced Act that already offers all the protections that the noble Lord mentioned.
The point I would make is that the Equality Act is shot through—I am sorry, I shall retract that. The Equality Act attracts a mass of legislation in which actions are taken against individuals who are said to be in breach of the Act. These amendments will put into statutory form the words,
“worthy of respect in a democratic society”.
I suggest that they will cap off a large number of those actions. Putting it in simple terms, the Equality Act is not proving to be as watertight as it was first imagined to be.
My Lords, perhaps I may say a word about Amendment 8 because I have some doubts about it. The first line of the proposed new clause states:
“A public authority, or any person exercising a public function, shall have regard to the following”.
That is followed by a list to which he should have regard. What does “shall have regard” mean? Does he have any enforcement powers? For example, could he so construct his activities that he was, in fact, forcing on people who did not want to receive it the belief in subsections (1)(b) and (1)(c), which state,
“that belief in traditional marriage is a belief worthy of respect”,
“that no person should suffer any detriment because of their belief”?
As far as I am concerned, people can believe what they like. What I object to is an intention to impose those beliefs on people who do not accept them. I certainly would not be happy to accept that, because in subsection (1)(a) there is a provision about marriage being,
“the union of one man and one woman … to the exclusion of all others (‘traditional marriage’)”.
As I said before on the previous amendment we discussed, what about the position of people who divorce? A lot of people in this country get married, go through a divorce and then, perhaps, marry again. Is their second marriage traditional or not traditional? There are a number of questions raised by the wording here which make the proposed clause quite unacceptable, particularly to those who hold a fairly secular view so far as marriage is concerned. The wording is not really acceptable because, in my view, it could lead to the position where those who hold these beliefs could, in their capacity as public officials, seek to impose them on people who do not hold them at all.
Perhaps I may respond to that. I refer the noble Baroness to the judgment in the case of Williamson. I shall quote rather more extensively from what the noble and learned Baroness, Lady Hale, said:
“Many would believe it to be wrong even if it was proven to work. Both are essentially moral beliefs, although they may be underpinned with other beliefs about what works best in bringing up children. Both are entitled to respect. A free and plural society must expect to tolerate all sorts of views which many, even most, find completely unacceptable”.
I rest my case.
My Lords, perhaps I may ask my noble friend a specific question, which has already been referred to by my noble friend Lady Cumberlege. A number of us received a letter from a clergyman of the Church of Scotland who, not in his official duties as a chaplain to the police but in, I believe, his blog, referred to his own personal belief in marriage as being the union of a man and a woman. He was subsequently dismissed from his post as a chaplain. What I want to know is this: are the provisions that the Government are putting forward in this Bill sufficient to prevent that sort of unseemly episode happening in the future?
My Lords, when we are looking at a Bill which has the intention of increasing respect for and giving rights to a minority, it is equally important to look at another minority who will be unable, from their personal conviction, to accept the validity of the consequences of this Bill. The Equality Act has its defects. I strongly supported it, particularly all those elements in relation to gay rights, and I would do that again here. I would take that right to the stake because while I do not agree with marriage, I certainly agree with equal rights.
What I am concerned about—I expressed the same concern during the passage of the Equality Bill—is the right of other people who are in minorities to express a view that is unpopular with many other people, particularly with other minorities. We are now in a new dimension in that we are going to have same-sex marriage. Whatever it is called, it will be marriage. However, there will be people out there who cannot take it. This Bill should recognise that situation, and however great the Labour Opposition think their Equality Act is, it does not necessarily cover every aspect of what we are concerned with today; that is, those who cannot tolerate marriage for same-sex couples. Even if it may be partially covered by the Equality Act, it would be highly wise to have something in this Bill that covers this issue.
I agree with the noble Baroness, Lady Turner, that these amendments may not offer the right wording, but we are in Committee. Surely we could produce, by Report, something that provides some degree of support for other minority groups.
My Lords, my noble friend Lady Thornton speaking from the Front Bench and my noble friend Lord Alli have argued, no doubt persuasively in their view, that the current protections are adequate: the Equality Act is in place. However, in my judgment that contention is belied, first, by the fact that a number of leading counsel take a contrary view and say that the protections are not adequate, and, secondly, by the fact of some of the cases, some of which have already been cited. We will come to the registrar later, as well as the chaplain to the police and other such cases. It would be helpful if we could have a response from the Minister that these cases would in fact have received protection under government Amendment 53 and any other protections which the Government may seek to provide.
My own starting point is clear: as a House, we should seek to protect minorities from what is, sometimes, the tyranny of the majority. We can refer to the wonderful literature on this, such as by Mill and de Tocqueville. I would recommend all colleagues to read and re-read what they say about the tyranny of the majority. Surely, part of our duty is to ensure—so far as we are able—that minorities are protected. In this case, we seek to protect and to give dignity and equal rights to a minority in our country. I would hope that those in this minority would also see the importance of giving protection to another minority—those who think highly of traditional marriage as defined.