Yesterday, 2 December, there was a short debate in the House of Lords on a Question tabled by Baroness Thornton (Lab) and asked on the day by Lord Dubs (Lab), asking His Majesty’s Government whether they conducted an equality impact assessment following the judgment in R (Harrison & Ors) v Secretary of State for Justice [2020] concerning humanist marriages.
The initial response of Lord Ponsonby of Shulbrede) (Lab), Parliamentary Under-Secretary of State, Ministry of Justice was:
“My Lords, under the previous Government, the High Court found in Harrison a difference of treatment in weddings law towards humanists. However, it also found that the then Government had demonstrated that the difference in treatment was justified given the legitimate aim to address differences in treatment as part of wholesale reform. As a new Government, we need properly to consider these important issues and will set out our position in due course.”
Lord Dubs (Lab) suggested that the High Court having ruled that the lack of legal recognition for humanist marriages was discriminatory and the last Government having done nothing about it, it was “time for this Government to go through the process of having an impact assessment”. While Lord Ponsonby agreed with Lord Dubs’s general point, “we will assess marriage in the round, including humanist weddings, and we will announce when we do that in due course”.
Lord Birt (Crossbench) pointed out that in Scotland, where humanist weddings have been legal for almost 20 years, “data from the National Records of Scotland show that more Scots now choose a humanist wedding than those who marry in all other religions combined” and suggested that the humanist option should no longer be denied to those who want to wed in England.
To which Lord Ponsonby replied that:
“Scotland was able to accommodate humanist weddings within its existing legislative framework for weddings because it operates an officiant-based model, whereby regulation of weddings takes place via the officiant. In contrast, in England and Wales, we have a buildings-based scheme. It is in that difference that Scotland was able to make this accommodation, and that factor will be taken into account in the review to which I have already referred.”
Despite pressure from all sides of the House, he stuck to the line that the recommendations of the Law Commission on reforming weddings law had to be considered in the round.
Comment
Dismissing the claim in Harrison, Eadie J concluded her judgment like this:
“128. The Claimants’ challenge is to the Defendant’s failure to extend legal recognition to humanist marriages. That failure has, however, to be seen in context. This is an area of social policy where a margin of judgment is properly to be allowed. Although that does not mean that taking no action would be justified, or that the balance might not shift over time, addressing the differences in treatment identified by the Claimants would not be straightforward and this justifies the aim of considering the appropriate remedy as part of a more wholesale reform. Although I may deprecate the delay that has occurred since 2015, [when the Law Commission first published Getting Married: A Scoping Paper] I cannot ignore the fact that there is currently an ongoing review of the law of marriage in this country that will necessarily engage with the wider concerns that have been raised. Given these circumstances, at this time, the Defendant has demonstrated that a fair balance has been struck between the individual rights of the Claimants and those of the broader community.
But that was in 2020. Is it still a “fair balance” ten years on from the Law Commission’s scoping paper? While it is undoubtedly true that the recommendations of the Law Commission are for wholesale reform and will require a major piece of legislation to implement them, one can understand why Baroness Thornton, Lord Dubs and others are getting restive.
Thanks, two questions from a non-lawyer. First, what was/is the Church of England’s position on the proposal for humanist weddings? From memory, I recall it had objections. Second, Lord Birt says that ‘the humanist option should no longer be denied to those who want to wed in England.’ But humanist weddings do take place in England, do they not? Can you shed light?
The Religion Media Centre>Factsheet of 2020 quotes the The Church of England responded to the 2014 consultation by saying the Church of England was “sympathetic to the case”.
“The Church of England is very well aware from its own experience that a marriage ceremony where the officiant shares openly the beliefs of the couple can be a source of strength in a marriage and would not wish to deny that opportunity to couples who profess humanist beliefs,” the submission said.
It did, however, note that some humanist material was allowed in civil register office weddings, whereas all religious content was prohibited and any change in the law should not “exacerbate” this existing “imbalance”.
I think that the issue is that there is no provision under the Marriage Act 1949 for humanists to conduct their own ceremonies – as they can do in Scotland – because in England & Wales, weddings have to take place in an approved building, and humanists don’t have any buildings to register.
In Scotland, weddings have to be conducted by an approved celebrant and there is no requirement about buildings. (My wife and I were married in Skye in 2006 by the local registrar out of doors at Armadale Castle: that would have been impossible in England. And, incidentally, it rained!)
Thanks, Frank and David. This confirms to me the need to move to a continental-style marriage registration system where civil marriage is exclusively registered by the state (via existing Register offices) and then people can choose whether also to hold a religious/philosophical/other ceremony at the church/building/
field/forest/seashore of their choice. This would involve removing (if I understand this correctly) the automatic (constitutional?) right of CofE clergy to register marriages and the (statutory?) right of other denominations to do the same. This simply bypasses the buildings v officiant distinction. I got married in the Netherlands. We all assembled at the town hall for a cheerful civic ceremony led by the affable registrar, then drove three blocks to the Reformed Church where we had a (to us) a much more wonderful religious ceremony. Others could have held a (to them, also much more wonderful) humanist ceremony. Simple, neat, and clear about differentiated authorities (which, of course, is why many English people, especially CofE leaders, will recoil from it).
I don’t think that it’s even necessary to move to the continental system of obligatory civil marriage. All that’s needed is to introduce a celebrant-based system on the Scottish and Northern Irish model. I’ve got nothing against faith communities being able to solemnise marriages if that’s what the parties prefer, but I do have a problem with a system based on buildings.