Same-Sex Marriage Bill – some legal issues

On 3rd and 4th June, the Marriage (Same Sex Couples) Bill was debated in the House of Lords, and in particular the so-called “wrecking motion” proposed by Lord Dear that the Bill should not be given a second reading in the Upper House, here, here, and here.  Some noble Lords had questioned the propriety of challenging the Second Reading of a Bill before voting, i.e. without the opportunity of a “full and fair examination”.  However, although votes against a Bill at Second Reading are unusual they are not unknown, and the clerks had advised Lord Dear that this is a perfectly proper procedure [1].

In terms of the issues in question and the potential effect of the amendment, Lord Dear’s motion had a number of similarities with that of Baroness O’Cathain’s ‘Prayer to Annul’ debate  on 15 December 2011, here. This concerned the Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011 SI 2661 and as with the Marriage (Same Sex Couples) Bill, although the Church of England (and other religious bodies) opposed the measure per se, it accepted the government’s reassurances on the protection given to the Church within the Statutory Instrument.  Again, Baroness O’Cathain’s debate engaged a licit but little-used procedure [2], but the main point is that both interventions could have derailed the same-sex measure in question.  It might also be argued that if the former had been successful, the present Bill would not have been brought forward quite as readily by government.

The ‘Prayer to Annul’ debate focussed on whether churches would be obliged under UK law or the ECHR to perform civil partnership ceremonies between same-sex couples, and was notable in the differing legal opinions that were put forward, both before and during the debate in which two former Lord Chancellors took different views, and two members of the Bishop’s Bench put forward opposite arguments.

Comment

The Lords Second Reading of the Marriage (Same Sex Couples) Bill was not expected to initiate any detailed legal debate, as this generally occurs during a Bill’s line-by-line examination during its Committee stages. As we have noted, despite the oral and written evidence presented to the Commons Public Bill Committee and its lengthy consideration during nine separate meetings, no changes were made to the Bill as introduced.  Nevertheless, the debate on 3rd and 4th June included a few pointers towards issues that would be raised in its subsequent consideration.

Introducing the second reading, Baroness Stowell of Beeston suggested that the Bill is not just about allowing same-sex couples to marry, but it is also about protecting and promoting religious freedom, [3 June 2013, Col. 938]. In explaining the “quadruple lock”, she stated [Cols 939 and  940]

“First, it ensures that the Bill states explicitly that no religious organization or individual minister can be compelled to marry same-sex couples or to permit such a marriage to take place on their premises;

it provides an opt-in system for religious organizations which wish to conduct marriages for same-sex couples;

it amends the Equality Act 2010 so that it is not unlawful discrimination for a religious organization or individual minister to refuse to marry a same-sex couple; it ensures that the duty on the clergy of the Church of England and the Church in Wales to marry parishioners will not extend to same-sex couples, and that Anglican canon law, which says that marriage is a union for life of one man with one woman, is unaffected.”

With regard to personal beliefs, she reassured the House that

“[the] Bill does not in any way affect the perfectly legitimate expression of the perfectly legitimate belief that marriage should only be between a man and a woman. Teachers will be expected to teach the factual and legal position when teaching about marriage, as with any area of the curriculum, but they will not be expected to promote or endorse views that go against their own beliefs. It will be unlawful to dismiss a teacher purely for doing so”,

and in terms of freedom of expression,

“Freedom to express beliefs about marriage is not affected by this Bill. Discriminating against someone because they believe, or express the view, that marriage should be between a man and a woman only is unlawful under the Equality Act 2010. Article 9 of the European Convention on Human Rights also guarantees the right to freedom of thought, conscience and religion.”

In addition,

“Other changes made by the Government in response to issues raised include fine-tuning the religious protections in specific areas, such as to protect the position of chaplains employed by secular organizations and the Church of England’s ecclesiastical law”.

Baroness Kennedy of The Shaws and Lord Pannick had been invited before the Commons  Public Bills Committee and were both firmly of the view [3 Jun 2013, Col. 956] that “the protections provided by the Bill to churches, religious organisations and church ministers are strong and should reassure this House that there is no real risk of a successful challenge”.  Furthermore,

“Any requirement on a church, religious organization or minister to conduct same-sex marriage contrary to the religious convictions of its members would violate Article 9 of the European Convention on Human Rights.  . . . . . The case brought by the Muslim community against the Bulgarian Government  [3],  . . . . . . laid down an important principle: the autonomous exercise of religious freedoms, and that exercise by religious communities, is indispensable for pluralism in a democratic society and church ministers are strong and should reassure this House that there is no real risk of a successful challenge.”

Lord Pannick expressed the opinion [3 Jun 2013, Col. 962] that “there was no realistic possibility whatever that any court, domestic or European, would compel a church or other religious body to conduct a same-sex marriage ceremony contrary to the doctrines of that religious faith. He reasoned

“under this Bill, a same-sex couple will be able to enter into a civil marriage. Their only reason for wanting a religious ceremony would be to gain a religious benefit. All, and I mean all, case law confirms that courts will leave religious bodies to decide on the allocation of religious benefits. None of the other legal concerns raised by the opponents of the Bill seems to have any basis whatever.”

However, the Duke of Montrose made the valid point  [4 Jun 2013 c 1090], which  we noted in an earlier post, that

“ . . . . neither the Bill nor the statute law of England or Scotland defines marriage. We have relied on common law and the criteria and practice of the churches. The noble Lord, Lord Pannick, has outlined the way in which many of the parameters have changed, but up to this time marriage has not required a legal definition because there has been an historical consensus about its meaning.

This Bill is a proposal to do away with the historical consensus and introduce a new meaning.. . . . . . If we have to go down this road, a Bill introducing a new concept of marriage should state clearly what its definitions and requirements are for any and all of the parties, [emphasis added].

The Committee Stage of the Bill [HL] will commence next week, for which three days have been allocated, 17, 19 and 24 June.  The tabled amendments are listed here.


[1] The 2006 Joint Committee on Conventions affirmed that the House of Lords retains the power to reject government Bills in free-vote situations, examples being the War Crimes Bill and the Sexual Offences (Amendment) Bill, both of which occurred just over 10 years ago but both were free-vote issues without a mandate from a manifesto. More recently was a vote on the Health and Social Care Bill in October two years ago.

[2] If successful it would have annulled SI 2011/2661, irrespective of the tacit approval of the Lower House (i.e. through the absence of any objections within 40 days of the SI being laid).  Since the Parliament Acts do not apply to delegated legislation, measures that are rejected by the House of Lords cannot have effect even if the Commons has approved them.

[3] The Supreme Holy Council of the Muslim Community v Bulgaria (2005) 41 EHRR 3, para 93–96.

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