The Marriage (Same Sex Couples) Bill passed its Committee Stage in the House of Lords after three days of debate on 17, 19 and 24 June, and in its amended form now proceeds to the Report Stage where it will be debated on 8th and 10th July. Religious groups have been active in advocating the lobbying of peers in advance of the debates.
During the three days in Committee, the only Amendments within the marshalled lists that were agreed were Government Amendments 21, 38, 42 to 44, 49 to 53, and 58. These were moved by Baroness Stowell of Beeston, the government equalities spokesperson with responsibility of taking the Bill through the Lords, and on the third day of debate, Lord Dear noted [24 June Col. 605],
“[i]t seems to me that the noble Baroness’s instructions are heavily annotated with, “Do not concede”. From my standpoint, and that of others who have spoken to me in the margins of Committee before this third day, it seems that the Government are putting some sort of stone wall around the Bill, and refusing to concede anything at all of any substance. . . . . .I would be delighted to know that the Government are going to take away substantial parts of this discussion to review before we come to Report.”
Earlier posts have summarized the debates of each day, here, here and here. However, it is the amendments that were withdrawn or not moved that are of interest, since these either clarify points of law that were unclear in the draft Bill as it was brought to the Lords, or remain contentious issue and to be debated at its next stage.
The Clauses below relate to the Bill as it was brought from the Commons.
Clause 1 : Extension of marriage to same sex couples
This was the concern of amendments 1, 4, 5 and 6, and given the nature of Clause 1, encompassed other areas of the Bill and other amendments. As noted in an earlier post, the debate considered the terminology used, [“marriage” vs “union”; “traditional marriage”; “matrimonial marriage”], clarified aspects of ecclesiastical law, [only CofE “clergy” under common-law duty to marry parishioners], and the avoidance of sanctions/penalties on those opposed to same-sex marriage.
With regard to the control of religious premises, the Advocate-General for Scotland clarified [19 June Col.99] that: i] marriages solemnised by the Church of Scotland in England and Wales fall within the law of England and Wales and as such the procedures set out in the Bill concerning the opting-in by religious organisations would apply to such premises of the Church of Scotland; ii] under the Bill, the Chapel of St Mary Undercroft could not be used for same-sex marriage using the rites of the Church of England, or in accordance with other religious rites.
Clause 2 : Marriage according to religious rites: no compulsion to solemnize etc
On Monday, amendments 10 and 11 were discussed, leaving 13 and 15 for the following session. These concerned free speech, and although the government considered that existing equality legislation protected freedom of thought, speech and belief, neither Lord Dear nor Baroness Cumberlege was entirely convinced and both indicated that they would return to it on Report.
In its attempt to clarify the issue of “acting as a public authority” in the context of this Bill, Amendment 13 sought to modify section 149 of the Equality Act 2010 and protect religious organizations and individuals from unfavourable treatment in scenarios such as: i] following a decision by a religious organization “not to opt-in … be present at, carry out, participate in, or consent to the taking place of” same-sex marriages; and, ii] following the expression by an individual or organization of an opinion or belief that marriage is “the union of one man with one woman”. Baroness O’Loan was supported in her amendment by Baroness Berridge [19 June Col.268] who cited Aston Cantlow v Wallbank and the opinion of Professor Christopher McCrudden to the Catholic Bishops’ Conference of England and Wales, here.
Reassurances were given by Lord Wallace of Tankerness that
“religious organisations and individuals should be free to express their beliefs about same-sex marriage, and to make the decisions protected by this Bill about whether to conduct or participate in same-sex marriages, without fear of repercussion or penalty of any kind”
citing as an example Wheeler v Leicester City Council. He also stated [at Col. ]
“My noble friend [Lord Lester of Herne Hill] referred to Pepper v Hart, but we cannot get to that stage if we do not in fact say anything. I will also take up his suggestion, echoed by my noble friend Lord Deben, of putting in written form the points that were raised and my responses.”
Although Baroness O’Loan withdrew her amendment, she reserved the right to come back to the House on Report.
In his Amendment 15, Lord Carey of Clifton expressed concern that although providing protection for churches and individuals who did not wish to undertake same-sex marriages, the blessing of same-sex unions was not so covered. However, Lord Pannick noted [19 June Col. 487]
“ . . . .this amendment [Amendment 15] is concerned with Section 29 which is related to the exercise of public functions. Whether you give a blessing or not is plainly not a public function, it is a religious function. . . . . . . . It would be very damaging indeed to religious bodies for this legislation to suggest that Section 29 could apply to the exercise of what are plainly and simply religious functions.”
With this assurance on the record, [19 June Col. 290], Lord Carey begged leave to withdraw his amendment.
Clause 3 : Marriage for which no opt-in necessary
Lord Harrison proposed Amendment 19A with a view to the inclusion of humanist ceremonies, noting that humanist ceremonies were legalized in Scotland in 2005, where in 2011 they exceeded Roman Catholic marriages, (2,846 and 1,729 respectively). In the Lower House, humanist marriage was strongly supported at the Report stage but the Attorney-General pronounced that the version of the amendment under debate fell foul of the European Convention on Human Rights – by mentioning humanists specifically, the A-G ruled that it would give rise to claims by other non-religious belief organisations of discrimination. However, advice obtained by the British Humanist Association disputes this claim.
The wording “an approved organization” in Amendment 19 avoided this specificity, and although supported by “lapsed humanists”, [Lord Lester of Herne Hill], “closet believers in God”, [Lord Alli], and in a personal capacity by The Lord Bishop of Guildford, the right reverend Prelate had a serious question as to whether it is right to slipstream this into this Bill, which is about same-sex marriage. The Minister and others were also of the opinion that this was not the correct vehicle for the proposed change. However, it is likely that this will be brought back at Report.
Clause 4 : Opt-in: marriage in places of worship
Moved by Lord Curry of Kirkharle, Amendment 20 had the intention of clarifying the meaning of “recognised” and “members” and the consent that would apply to issues on registering buildings, filling gaps in the Bill and reducing the potential for problems down the line. However, Lord Wallace of Tankerness stated that these issues had been addressed through Government Amendment 21 in relation to Jewish community, and more generally by Government Amendment 51. Furthermore a general reference to the governing authorities of religious organizations other than the Church of England, the Jewish religion and the Quakers is already included in the Bill, although not by specific reference, and as such no specific reference is required for Sikhs.
Clause 5 : Opt-in: other religious ceremonies was agreed, following agreement on Government Amendment 21, discussed above, with Clauses 6 and 7 not subject to any amendments. Lords Dear’s New Amendment 23 sought to protect schoolteachers, so that no teacher was required to endorse same-sex marriage if there was a conscientious objection to so doing, and the same teacher would not be deprived or disqualified by the same action. However, from the discussions in the Chamber he believed that there is sufficient doubt and concern on these issues (and those in Amendment 24 which was not moved) to carry those forward into later debates on the whole business of the classroom, teaching and parents.
Clause 9 : Conversion of civil partnership into marriage
Amendment 24C sets out a procedure for the conversion from civil partnership to marriage to take place under Clause 9 of the Bill and proposes an oath or affirmation to be made before three witnesses. However, government considered that there were already adequate powers in Clause 9 that would enable the making of provision for a ceremonial element to the conversion, which could consist of spoken statements and/or a requirement for the presence of witnesses. The detail of such procedures is at an early stage and it would be premature to be more specific.
Clause 10 : Extra-territorial matters
The effect of Lord Alli’s Amendment 26A would be to remove the Schedule that converts same-sex marriages into civil partnerships in Northern Ireland and Scotland, on the logic that these issues are prescribed matters for the Parliament in Scotland and the Assembly in Northern Ireland. Baroness Butler-Sloss expressed astonishment at the prospect of such a proposal, [19 Jun 2013 Col. 359] and Lord Wallace of Tankerness assured their Lordships [19 June Col. 360] that the Government have had lengthy and considered discussions with Scotland and Northern Ireland Ministers and officials to ensure that where the Bill touches on devolved matters, it does so appropriately. He also noted that such an amendment would create an anomaly since at present overseas same-sex marriages are not recognised as marriages in England, Wales, Scotland or Northern Ireland – they are treated as civil partnerships in the United Kingdom, and Section 213 of the Civil Partnership Act 2004, under which Schedule 20 has effect, also sets out the general conditions which must be met for such relationships to be recognised in the United Kingdom.
Whilst Lord Trefgarne’s probing Amendment 27 was claimed to properly drafted, it suffered from a lack of research on the laws relating to marriage at sea. This was clarified by Baroness Thornton who stated that although ships’ captains can perform marriages, they need a licence to do so, just like anyone else, [19 June Col.365]. Furthermore, Baroness Northover informed the House
“[a]t present, the validity of a marriage on board a British merchant vessel is governed by the law of the country in which that vessel is registered. In the law of England and Wales, the Marriage Act 1949 does not provide for marriages to take place on board UK registered vessels at sea, and the Foreign Marriage Act 1892 applies only to marriages outside UK jurisdiction.
Neither is it clear that the common law of England and Wales provides authority for the validity of marriages that are celebrated on merchant vessels at sea, although there are historic authorities which suggest that a marriage could be formed under the common law only if it was not possible to wait until the ship reached port. It is unclear whether those authorities still apply, given that there is now statutory marriage law covering both domestic and foreign marriages”.
The amendment would therefore enable marriages of same-sex couples to be conducted by the master of a British-registered vessel on the authority of a superintendent registrar’s certificate outside the territorial waters of England and Wales, a right not currently possessed by opposite-sex couples.
Clause 11 : Effect of extension of marriage
Lord Mackay of Clashfern proposed Amendment 33 since Clause 11 (1) was not correct as it stood, because there are all these provisions later in the schedules; therefore, the accurate enunciation of the law will be subject to the later provisions of this Bill. Baroness Stowell considered that the most sensible course of action would be for her to request Parliamentary Counsel to reflect on these points, followed by a letter to him as soon as possible, a copy of which would be placed in the Library.
Amendment 33A, tabled by Lord Stevenson of Balmacara, sought to ensure that the Bill would allow individuals who identify themselves as being non-gendered – neither male nor female – to marry. Baroness Northover stated [19 June Col. 369] that the law of England and Wales recognises only two genders—male and female, and although some do not see themselves as either, none the less everyone has a legal gender status of either male or female. However, by enabling same-sex couples to marry, the Bill will ensure that there will be no bar to an intersex person, or a person who identifies as non-gender, marrying anyone whom they choose.
Thanking the Minister for her understanding response, Lord Tunnicliffe suggested that it was perhaps the first time a Minister of the Crown has recognised this group in this House – an important first step in discussing this issue and addressing the needs of this group of people.
Schedule 3 : Interpretation of legislation
In moving Amendment 38, Baroness Northover spoke to the other government amendments in this group which relate to technical but important provisions of marriage law which determine when a marriage is void – i.e. considered never to have existed in the eyes of the law, i.e. Amendments 38, 42 to 44, 49, 50,52, 58 [19 June Col. 370].
Schedule 4 : Effect of extension of marriage: further provision
The Lord Bishop of Guildford’s Amendment 39 seeks to clarify the issue whereby the common-law presumption that a child born to a woman during her marriage is also the child of her husband is rendered inapplicable through paragraph 2 of Schedule 4. Amendment 39A has a similar aim. In addressing the right reverend Prelate’s concerns, i.e. what would happen if a second female partner is not registered as a parent, Baroness Stowell noted that Section 4A of the Children Act 1989 provides that a spouse or civil partner who is not the child’s parent or step-parent can obtain parental responsibility by agreement with the parent or by court order.
She stated that it was the government’s intention that this provision will help to avert unnecessary litigation and other claims about parenthood, which might otherwise arise as a result of a misunderstanding of the effect of the Bill. Given the complexity of the issue she undertook to write to the right reverend Prelate and to all noble Lords who participated in this debate and put a copy of that letter in the Library.
The final substantive debate of the second day was Baroness Butler-Sloss’s Amendment 40 which addressed the absence of adultery as a ground for divorce of same-sex marriages. In a powerful and informed speech, her ladyship noted [June 19 Col.375]
“Adultery remains a fundamental breach of the trust of those who make the commitment of marriage . . . . . . . so the behaviour of one party to a marriage who breaks the commitment to the other by engaging in a relationship with someone outside marriage strikes at the root of marriage and can be a devastating blow to the injured partner.”
She suggested that a petition for unreasonable behaviour as an alternative ground for divorce was not the answer as this did not encompass the notions of faithfulness and breach of trust central to adultery. The noble Baroness considered this to be profoundly unsatisfactory and profoundly unjust, and undermined the value of same-sex marriage, noting [June 19 Col.376]
“I assume that it is because there has not so far been a definition of consummation of a sexual relationship other than between couples of the opposite sex. This is a failure to come to terms with more than one type of sexual relationship and a broader definition of the consummation of a relationship.”
Although not moved, she spoke to Amendment 41, which concerned voidable marriages and raises the issue of non-consummation, saying
“If this Government are, as they should be, strong enough to provide a revised definition of consummation and non-consummation, they should deal with voidable marriages as well as adultery.”
However, some noble Lords considered that the concept of fidelity was now an outdated concept, and Baroness Thornton concluded by stating
“I do not accept the biological descriptions and solutions suggested by the noble and learned Baroness, Lady Butler-Sloss, [i.e. using s1(1) Sexual Offences Act 2003 as a template]. The Government have probably ended up in the right place.”
In moving his Amendment 45, which he expected to be “boring to most”, Lord Alli explained that it was about addressing an inequality in pensions in relation to survivor benefits that will affect a small number of people in a very unfair way. Reflecting an exemption in the Civil Partnership Act,
“the Equality Act allows occupational pension providers to ignore the service and contributions of gay employees prior to 2005 when it comes to paying out survivor benefits to civil partners”.
Although the majority of occupational pension schemes (including the Church of England Pension scheme) do not apply this provision, and pay out fully to survivors (on the basis of fairness), there are some that do not (mainly on cost grounds). Baroness Howe of Idlicote cited the Employment Tribunal case of Walker v Innospec Ltd  EqLR 72 which held that treating a gay employee less favourably than a straight colleague under an occupational pension scheme purely because of the gender of his or her partner, is direct discrimination on the grounds of sexual orientation .
However, the government was not supportive of this approach, and regardless of the scale of the cost, believed that it should not impose the additional unforeseen obligations on schemes on the principle that it is not introducing retrospective changes. Although Lord Alli noted that the government has conceded the principle in the public sector, government remained of the view that these private schemes are funded by businesses, and it does not believe that it should say what discretionary benefits they should offer.
Schedule 5 : Change of gender of married persons or civil partners
Amendment 46ZA, and Amendments 46ZB to 46ZG which were not moved concern technical aspects of gender recognition: spousal consent ; interim provisions during gender reassignment; and the application of the Gender Recognition Act 2004. Baroness Stowell explained that it was government’s concern to ensure that as many couples as possible are able to stay married if they wish to do so following one or both spouses obtaining gender recognition, [24 June Col. 520]. The Bill
“seeks to strike a fair balance between the Article 8 rights to respect for the private and family life of both spouses. The trans-spouse has a right to be granted their gender recognition without unnecessary delay, but the non-trans spouse also has a right to have a say in the future of their marriage following their spouse gaining gender recognition.”
Clause 14 : Review of civil partnership
In discussing Amendment 46A¸ Baroness Deech reiterated her views, expressed to the House on a number of occasions, of the unfair way in which carers and siblings are treated in law, compared with those in a sexual relationship, for which Clause 14 provides for a review of civil partnerships and a chance at last for fairness. She noted the case of the elderly sisters, Joyce and Sybil Burden, who were unsuccessful in their bid to be treated as civil partners in relation to inheritance taxation, Burden and another v United Kingdom Application No. 13378/05, (2007) 44 E.H.R.R. 51. .
When the issues was debated by the Upper House in relation to the Civil Partnership Bill, , an amendment to extend its ambit was adopted by 148 votes to 130, only to be overturned by when the Bill returned to the Commons. During Monday’s debate, a number of their Lordships expressed sympathy for those in such a situation, but Lord Alli and others voiced concern that the present Bill was not the correct vehicle to make such changes. However, Lord Mackay of Clashfern made the interesting observation [24 June Col. 537]
“It is important to remember that this Bill is not about gay marriage but same-sex marriage. As I pointed out, and I invited correction—so far I have not been corrected—it includes platonic relations between people of the same sex. Therefore, the idea that sexual relationships are fundamental to it is a mistake.”
For the Government, Lord Wallace of Tankerville, Advocate General for Scotland, said [24 June Col. 544]::
“… civil partnership … is not the appropriate place to open up these new, significant policy questions. The review is about civil partnerships. It would be inappropriate to open it up to look at unrelated issues of carers and family law, and particularly the question of tax and benefits”.
He also stated that it is not the Government’s understanding that the Clause 14 review provisions would extend to issues of cohabitation. Although Amendment 46A was withdrawn, it is likely that these issues will be discussed at the Report Stage.
The Lord Bishop of Ripon and Leeds moved Amendment 46B which was about education in church schools, mostly owned by the Church of England or the Roman Catholic Church, but also by some other denominations and in schools of faiths other than Christian. Baroness Stowell summarized the lengthy and wide-ranging debate noting [24 June Col. 566]
“a concern that schools’ freedom to teach their beliefs about marriage according to their religious tenets will be threatened by the effect that Clause 11 will have on the meaning of “marriage” in Section 403 of the Education Act 1996 and guidance made under it by the Secretary of State, to which schools must have regard.”
However, in withdrawing the amendment, the Bishop of Ripon and Leeds indicated that he still needs to be convinced that there is no incompatibility between the Bill and the requirements of the 1996 Act.
In moving Amendment 46C, The Lord Bishop of Leicester referred to the briefing of the Lords Spiritual to Peers at Second Reading, which said that the reasonable expression of opinions or beliefs on the nature of marriage ought not to be the subject of claims against individuals under existing discrimination or harassment provisions in the Equality Act 2010, as highlighted in recent high profile cases regarding the workplace context. However, Lord Pannick expressed the opinion [24 Jun 2013 Col. 601] that he could not see
“any realistic circumstances whatever in which the expression by a person of the opinion or belief that marriage is the union of one man with one woman does of itself amount to discrimination or harassment. It is simply inconceivable that any court could so find. This amendment would have a real disadvantage because it would wrongly imply that the mere expression of other views might amount to discrimination or harassment, contrary to all the principles of the equality legislation”.
Other noble Lords expressed similar concerns regarding possible unintended consequences of this amendment, and Baroness Stowell noted that during the previous week the government had introduced an amendment to the Public Order Act 1986 to put beyond doubt that “discussion or criticism” of same-sex or opposite-sex marriage shall not be taken of itself to be threatening or intended to stir up hatred. She continued
“it remains absolutely legitimate for people to have that belief and it remains absolutely legitimate for them to be able to express that belief. The Bill as we have drafted it protects the religious freedoms of faiths that want to maintain their existing belief in marriage being between a man and a woman”.
Lord Dear’s Amendment 47 concerning post-legislative scrutiny of the Act, if passed, received support from a number of peers, agreeing with the principle if not the detail. Lord Anderson of Swansea make a strong argument [24 June Col. 507]
“What do the Government lose by acceding to the request for a review after a reasonable interval? They have given assurances that there will be no adverse consequences to any individual and that all the litany of adverse consequences on people in this country and abroad will not come to pass because they have a watertight Bill. If they are so confident of those assurances that there is no possible harm to those who wish to express their deeply held views, why are they likely to contest this in principle?”
While indicating that government also agreed in principle to such a review, Baroness Northover stated
“the timing of such a review needs to be carefully considered, with some flexibility built into the process, which is why arrangements for review are typically not set out within a Bill. In line with established Cabinet Office procedures, a memorandum will be produced containing a preliminary assessment of how the Act has turned out in reality, measured by the objectives set out during the passage of the Bill – including, for example, the protections mentioned by the noble Lord, Lord Anderson.”
In withdrawing his amendment, [24 June Col. 612], Lord Dear alluded to the Bill’s complexity, the absence of “real pre-legislative scrutiny”, and it coming into the House of Commons “at a rate of knots”.
If any Amendment were to generate heated debate it was Lord Anderson of Swansea’s Amendment 48, which in combination with Amendment 59, would
“prevent the Bill being enacted before the next general election by adding a new provision calling for a referendum in England and Wales on proposals to make the marriage of same-sex couples lawful. Indeed, the next general election would be the earliest date which is provided for by the amendment, which also provides reasons to extend it until 2016,” [Lord Tankerness, 24 June Col. 625].
Unsurprisingly, the government did not support such an Amendment, believing that they should be uses “only in issues of substantial constitutional significance” such as proposals
“To abolish the Monarchy … To leave the European Union … For any of the nations of the UK to secede from the Union … To abolish either House of Parliament … To change the electoral system for the House of Commons … To adopt a written constitution … To change the UK’s system of currency”.
Withdrawing his Amendment, Lord Anderson indicated that he was convinced that the Government had made any serious concessions, certainly in respect of the conscience matters, and
“if the Government have failed to make other serious concessions relating to existing and future registrars, teachers, the public sector duty and so on, then Amendment 48 will inevitably become more attractive.”
The purpose of Lord Stoddart of Swindon’s New Amendment 48A was self-explanatory, and was to insert before Clause 15,
“The European Convention on Human Rights
In the event that the provisions of this Act are found by the European Court of Human Rights to be incompatible with the Convention for the Protection of Human Rights and Fundamental Freedoms, the Secretary of State shall act to withdraw the United Kingdom’s signature to the Convention.”
Whilst noting that in Schalk and Kopf v Austria, (Application no. 30141/04), the EctHR was not persuaded that social attitudes had changed enough for same-sex marriage to be regarded as mandatory, it left open the potential for future claims on the basis of Article 12, when there was European consensus on this issue. He also referred to the legal opinion of Aidan O’Neill QC which calls into doubt many of the Government’s assurances. [In an earlier post we reported that on 5 February DCMS released its response to the Opinion prepared for the Coalition for Marriage by Aidan O’Neill QC (a summary of which is available here) and an analysis of the various scenarios propounded by him].
There followed a further debate on the development of the jurisprudence of the ECtHR, and whether it protected or restricted religious freedom. Summarizing the protections, Lord Tankerness quoted Lord Pannick who said:
“For the European Court of Human Rights to compel a religious body or its adherents to conduct a religious marriage of a same sex couple would require a legal miracle much greater than the parting of the Red Sea for the Children of Israel to cross from Egypt . . . . . . ”
Schedule 7 : Transitional and consequential provision etc
Amendments 49 to 53 were agreed without debate.
In what he described as the last amendment that would be considered at any length in this Committee, Lord Mackay moved Amendment 55 in which he returned to his theme of differentiating between same-sex and opposite-sex marriages. The Amendment would change paragraph 13(2) of Schedule 27 to the Civil Partnership Act 2004 in order that same-sex marriage should not be closed to all of the present prohibited degrees on the grounds that one of the purposes of “ordinary marriage”, i.e. opposite-sex marriage is the “natural procreation of children” and “the institution is there to offer protection and safeguards to children”. He continued [24 Jun 2013 Col. 637]
“Same-sex marriage, as the Bill makes plain, does not embrace children in the same way as the natural child is embraced by the marriage of opposite-sex couples. All of this has a bearing on the relationships that are prohibited—the prohi]bited degrees. At the moment I can see no reason why brothers and sisters should not be able to have a same-sex marriage if they felt that they wanted to.”
However, he noted that at one minute to midnight it was not suitable to press is amendment, but felt that this needs to be considered wished to hear more about it before Report.
Both Amendment 56 on freedom of speech, moved by Lord Dear, and Amendment 56A on public sector equality duty, moved by Baroness O’Loan, were similar to Amendments moved that had been moved earlier.
Clause 16 : Orders and regulations
The final Amendment, Amendment 58, moved by Baroness Stowell of Beeston, was agreed and House adjourned at 12.22 am.
. Decisions of the Employment Tribunal are only binding on the parties. The case is subject to appeal, and the government has applied to be joined in support of his employer and pension provider.
 Under current rules, a spouse is not notified of her trans-partner’s gender recognition application. This is because the marriage must be annulled before a full gender recognition certificate can be issued. The process, as it stands, requires somebody to have annulled their marriage.
The one amendment to the Marriage (Same Sex Couples) Bill that is most needed, and which hasn’t been moved, is an amendment to prevent the beliefs of parents about same sex marriage being used against them in Childrens Act proceedings, in order to separate them from their children. I predict that there will be residence orders and contact orders denied, and children taken from their parents and put up for adoption without the parents’ consent, because of the parents’ beliefs about same sex marriage.
I know of a father who is at risk of never seeing his three year-old son again, if the relevant social worker gets her way, because the father is openly opposed to same sex marriage. I am willing to give the name and contact details to to any peer who is willing to mention his name on an occasion of Parliamentary Privilege, removing the “gag” on him publicising his plight under his own name.
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