Clarifications from withdrawn amendments, Same-Sex Marriage Bill, Day 1

In an earlier post, we identified that none of the amendments to the Marriage (Same Sex Couples) Bill, which was debated on 17 June, had been agreed and most were withdrawn at the end of the debate.  Some might question why these were placed initially and feel that the debate preceding their withdrawal was unnecessary. However, the majority of amendments debated were “probing amendments”, designed to explore areas of uncertainty within the Bill with a view to the Minister providing a statement regarding the intentions of government in relation to these areas, and giving an assurance that further clarification via an amendment is unnecessary. This was demonstrated a fortiori during Baroness O’Cathain’s “Prayer to Annul Debate” [HL Hansard 15 December 2011 Col 1408] on marriage and civil partnership ceremonies in religious premises, in which their Lordships were insistent on clarifications ‘for the avoidance of doubt’ and  that ministerial statements were made from the Dispatch Box.

Amendment 1 concerned the terminology used within the Bill and the ability to distinguish between same-sex marriages and opposite-sex marriages, an issue which is covered in other amendments, i.e. introduction of the term “traditional marriage” or “matrimonial marriage”.  Lord Mackay of Clashfern pointed out [at Col. 31]

“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 [i.e. replacing “marriage” with “union”]. When one looks at the debate here and in the other place, and reads the letters we have had . . . . . . .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.”

However, dabbling with semantics might have unwanted consequences, as the following exchange suggests, [at Col. 31]

Lord Carlile of Berriew: . . . . . .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”—

Noble Lords: Oh!”

The Archbishop of York, speaking in a personal capacity, made the interesting point regarding the blessing of same-sex relationships, [at Col. 46[

“What do you do with people in same-sex relationships that are committed, loving and Christian? Would you rather bless a sheep and a tree, and not them?”

Baroness Turner of Camden addressed the amendment from a point of logic, stating [at Col.29]

“[i]t seems to me 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.

Amendment 4 was concerned with why the term “clergy” within the definition of the Bill is limited to clergy of the Church of England and the Church in Wales.  The Advocate-General for Scotland (Lord Wallace of Tankerness) pointed out [at Col. 55] that this arose from the common-law duty to marry parishioners, which is applicable only to the clergy of the Church of England and the Church in Wales, and

“ . . . . . 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 who 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”.

Amendment 5 was introduced on the basis of a number of instances in which expressing views in relation to same-sex marriage had led to sanctions against people in various walks of life, and was intended to avoid any risk of that sort of thing happening in connection with those in public office. Lord Allii noted [at Col. 56] that at the second reading the Minister had 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.]”.

Although the amendment was withdrawn, a note of caution was expressed by Baroness Butler-Sloss, who said [at Col. 61]

“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 . . . . 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”.

Amendment 6 concerns the control of premises for conducting marriage ceremonies and states that within three months of the passing of this Act, the Secretary of State must make an order or regulations, “to create a statutory list of religious bodies owning or controlling premises”. It was felt that such a provision would add a further tier of control,and the Advocate-General for Scotland (Lord Wallace of Tankerness) assured the House [at Col. 98]

“I take this opportunity to make it absolutely clear that there is no requirement in the Bill to opt in. That is the position in the Bill as currently drafted. If there was a list it could lead to some confusion if, for some reason, a religious organisation did not apply to be recognised on it. Therefore, not only is it not necessary, it could have unintended and undesirable side-effects.”

He also addressed two important points [at Col. 99]

“ . . . . . . the position with regard to marriages in the Church of Scotland [such as St Columba’s, Pont Street, Crown Court in Covent Garden and elsewhere] is that marriages solemnised by the Church of Scotland in England and Wales are under the law of England and Wales and accordingly the procedures set out in the Bill regarding the opting-in by religious organisations would apply to the Church of Scotland. That would ultimately be a matter . . . . for the General Assembly of the Church of Scotland.”

and

“[i] t would not be possible under this Bill for the marriage of a same-sex couple to take place in St Mary Undercroft using the rites of the Church of England. The marriage of same-sex couples according to the rites of the Church of England can take place only when the General Synod of the Church of England and Parliament pass the appropriate measure; it would be a matter for them. The Chapel could not be used for the marriage of a same-sex couple in accordance with other religious rites unless it had first been approved as a place of worship and then registered for the solemnisation of same-sex marriages with the consent of the relevant authorities”.

Amendment 10: This amendment [and Amendments 12, and 14] are concerned with freedom of speech and Lord Dear’s view that the Bill’s existing safeguards do not deal with speech; they deal only with conduct.  He suggested that the evidence is overwhelming that it is the verbal expression of beliefs about marriage that tends to get people into trouble.  He quoted [at Col. 101] the Joint Committee on Human Rights, in relation to this general area of the law, that

“we have heard arguments on both sides as to whether religious organisations and individual ministers may suffer some form of detriment as a result of their position on same-sex marriage in a number of contexts which fall outside the scope of the Bill’s current protections. We note the concern that the Bill may create a number of legal uncertainties, which may only be resolved through litigation with its attendant costs”

However, it was the government’s view that equality legislation — and freedom of thought, speech and belief protected by that legislation — covers these points.  Although more than happy to withdraw his amendment at this stage, Lord Dear indicated that he would seek return to it on Report and may very well seek to divide the House.

Amendment 11

Addressed the issue that the Bill, as drafted, does not allow registrars to refuse to conduct civil same-sex marriages on the grounds that they have a conscientious objection to doing so.  However, Baroness Thornton stated [at Col.125] that the Minister has written that the locks in the Bill specifically exclude,

“registrars and superintendent registrars, making clear that these public servants will have to be ready to take part in marriages of same-sex couples. We need to ensure that we strike the right balance between an individual’s right to express their religious beliefs at work and the rights of people not to be discriminated against because of sexual orientation, and we think that the Bill properly draws that balance. The recent case at Strasbourg of Ladele … showed that in this respect, UK domestic law stands up to challenge under the Convention”.

However, Baroness Cumberlege stated [at Col. 130] that she would consider the possibility of bringing back this amendment, or  a much more perfected one, on Report.

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