I received in connection with this Committee stage a request to make it clear that I am against homophobic bullying in any way. I certainly want to make that abundantly clear. The function of ordinary marriage—the marriage of opposite sexes—includes protecting the children against any form of bullying and any form of homophobic bullying, and preventing them taking part in such bullying. We all know that children are quite quick to notice differences between their circumstances and those of other children, perhaps in the same class. That is often a source of improper bullying of one kind or another. I make it clear that I
regard one of the functions of opposite-sex marriage as protecting against all forms of damage to the children.
The noble Baroness on the opposition Front Bench referred, in the context of another amendment, to the presumption that when a child is born to a married woman the other party to the marriage is parent of the child. That presumption is set aside in this Bill—an important fact that must be taken into account. In opposite-sex marriage the three ways in which children of the marriage can be produced are by natural procreation, IVF or adoption. In same-sex marriage it will be by IVF or possibly full sexual relations, which according to the Bill may constitute adultery—which is slightly unfortunate from the point of view of the child being produced. According to the Bill, that child will have no relationship with the marriage at all. Of course, the other method is by adoption.
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 prohibited 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. A noble Lord pointed out earlier that of course you can end a relationship only with a divorce. That is absolutely true. The marriage relationship would be over and above the relationship between sisters or brothers. If they decided to end the marriage relationship that would be sad, but it can happen with same-sex and opposite-sex couples and it is sad whenever it happens. However, it could happen. One would not wish to contemplate that as happening very often, but of course it is certainly a possibility.
Against the background that all couples who love one another are able to marry—that is what we want—I find it difficult to see why brothers or sisters who are willing to marry should not be able to do so. The Bill needs to consider a little more carefully than it has done this provision raised by the noble Baronesses on the Front Bench in their amendment for no presumption in favour of a child born to a woman in a same-sex marriage. That child is left without any marriage connection at all as far as I can see. That seems to me highly unfortunate. Although it is important to consider the rights of adults in relation to same-sex marriage—that is what the Bill is primarily about—it is extremely important to think about future generations and the relationship with children as well as the prohibited degrees matters that I mentioned. I believe that the prohibited degrees were first inserted into the marriage institution for the primary reason of protecting against inbreeding with normal procreation. These reasons, of course, do not have any place in same-sex marriage, and therefore I think we need to look at the justification, if any, for the prohibited degrees, at least in their present form. I beg to move.
11.45 pm
Baroness Thornton: My Lords, in all the time that I have been in your Lordships’ House, I have enjoyed and loved the way that the noble and learned Lord, Lord Mackay of Clashfern, has often weaved a sticky web of legal mischievousness around issues that we
have had before us, and so he has done this evening. I look forward to the conversation that the two learned Scots before me are about to have on this issue.
Lord Wallace of Tankerness: My Lords, I welcome the interesting debate that my noble and learned friend Lord Mackay has generated. He is right to challenge us to consider it and I can indicate at the outset, although I will say more, that the Government do not feel able to support his amendment. It would permit siblings of the same sex to marry, and I assume that that could include uncles and nephews, grandfathers and grandsons and mothers and daughters. The Government do not feel able to accept the extension of marriage to close relatives. Clearly, as my noble and learned friend indicated, the origins of this go back to concerns about the need to prevent incest and potential inbreeding.
However, it is also fair to point out that, in terms of procreation, not all marriages, even heterosexual ones, are contracted for the purposes of procreation. It would almost be a logical extension of the argument that when an opposite-sex couple are past a certain age, or the woman passes a certain age and is incapable any longer of having children, perhaps the degrees of affinity regulations and prohibitions should fly off. Even just saying that indicates the real sensitivity around this and how it is difficult to readily accede the point being made by my noble and learned friend.
Before returning to some of the substance of his argument, I note that my noble and learned friend indicated in his opening remarks that he seeks by this amendment to restore Section 1 of the Marriage Act 1949 to what it was before the Civil Partnership Act 2004 amended it. It is important to point out that the 2004 Act created one gender-neutral list setting out the prohibited degrees of relationship. The amended Marriage Act makes it clear that no person can marry any relative listed in Schedule 1.
I am not founding my argument on this point because it is a technical matter which no doubt could be addressed. But in reverting back to the original Section 1 of the Marriage Act 1949, the amendment does not lead to any change in the relevant schedules, so that certainly could lead to confusion, although no doubt my noble and learned friend could do something about that if he wished to persist with this and bring forward amendments to the schedules as well. Paragraph 17 of Schedule 27 to the Civil Partnership Act 2004 replaced the two separate lists. Under the amendment, that single gender-neutral list would still stand and would need to be repealed and the original wording restored.
I have sought to indicate that the Government do not accept the principle of what my noble and learned friend is trying to achieve. He referred to platonic relationships. If this Bill is passed, it will be open to individual couples, whether of opposite sex or of the same sex, to determine whether to engage in sexual activity and to consummate their marriage. Couples are not required to consummate their marriage; there is only an option for opposite-sex couples to apply for an annulment if one party applies to have the marriage annulled on that basis.
On the point about two brothers being able to marry, as I indicated, the Marriage Act sets out the relationships of people who cannot marry each other. The Government want to ensure that same-sex couples are able to marry under the same provisions as opposite-sex couples. The provisions in the Marriage Act on prohibited degrees of relations are already capable of applying to same-sex couples and therefore no change from what was put in place for civil partnerships is required.
My noble and learned friend referred to the debate we had earlier on the amendment moved by the noble Baroness, Lady Deech. In my response to that I referred to tax issues. To be fair to my noble and learned friend, he did not use that argument. His argument was based more on grounds of principle. Nevertheless, the proposal would have consequences in terms of tax. However, I also think—I made this argument during that debate—that there are power relationships within families. Who is to say that pressure could not be brought to bear on a brother to marry another brother if it was thought that that would best serve his inheritance interests? You cannot tell what goes on in families. That is why my noble and learned friend is absolutely right to talk about the need to protect children. We are not necessarily talking about infant children or children under the age of 16, but within families lots of power can still be exerted when children are young adults or even older. While concerns about incest and inbreeding clearly lie at the heart of the prohibited degrees of marriage, there is also a recognition that within families powerful relationships can often be at play.
As I indicated, this amendment would allow father and son, mother and daughter, uncle and nephew, aunt and niece to marry. We think that the pressure is more relevant at an intergenerational level than at a sibling level, although that is not to say that it could not occur at a sibling level. Therefore, we should be very cautious about going down that road. Indeed, the noble Lord, Lord Alli, referred to civil partnerships in this connection. We believe that the nature of marriage is one which people recognise as being different from the relationship that exists between two close members of the same sex of a family. For these reasons, I ask my noble and learned friend to withdraw the amendment.
Lord Mackay of Clashfern: My Lords, if I had an answer, I would be happy to withdraw the amendment. The point I am making relates, for example, to brothers. The idea that this is something to do with pressure is ridiculous because, as we know, pressure is exerted in families far beyond same-sex relationships, and that has to be dealt with somehow. There are plenty of laws relating to undue pressure being put on people to get married or otherwise. What I am talking about is the marriage that was described by my noble friend at the beginning, where people love one another and wish to undertake the responsibilities of marriage.
I can understand that there are different considerations for different parts of the prohibited degrees, and that is why this needs to be considered. However, I have a feeling, and I may be entirely wrong—
Lord Wallace of Tankerness: I thank my noble and learned friend for giving way. Does he accept that if a man at, say, the age of 60 wished to marry his sister who was aged 60, where procreation and therefore inbreeding was not possible, the rules on the prohibition of close relationships should be set aside after a given age, if they love each other and want to make that commitment? Is that his argument?
Lord Mackay of Clashfern: This is a justification for same-sex marriage that has been put forward. That is what I am talking about. I said in my speech at Second Reading—I invited correction but so far that has not come—that the reason for the prohibited degrees applying across marriage generally is because the natural procreation of children was a central purpose. I quite understand that people far beyond the age of childbearing are subject to the rules, and if George Clooney does not hurry up, you never know what might happen. The rules are there because a central purpose of opposite-sex marriage is the normal procreation of children, and therefore the rules are put generally to the whole lot. That does not apply to same-sex marriage at all.
The idea of pressure is just as likely to occur in relation to people who are not directly related. Parents, particularly in some situations, try to persuade their daughter to marry X for reasons of their own rather than hers. That kind of pressure is something that has to be looked at. However, I do not see why such pressure should be particularly rife between brothers at full age and thus perfectly entitled to consider what they want to do. I cannot see that it is a reason for cutting brothers out. So far, I have not heard any reason that contradicts the general statement of principle which was made when introducing same-sex marriage into our law.
At midnight it is not suitable to press my amendment, but I think that this needs to be considered, and I would like to hear more about it before Report. On the technical point, what we have done is amend the statute and the schedule that works in accordance with the statutory provision. It does not matter because I can easily alter it, but the amendment was tabled with assistance, as noble Lords will understand. I do not say that they necessarily got it right, but I think it is right. Anyway, if it is wrong, I can easily put it right; it is a very technical point and my noble and learned friend has accepted that. However, the essential point needs to be considered carefully and I would like to hear more about it by Report. In the mean time, at one minute to midnight, I am happy to withdraw the amendment.
56: Schedule 7, page 56, line 6, at end insert—
“39A After section 26 (harassment) insert—
“26A Discussion or criticism of same sex marriage
For the purposes of this Act, and for the avoidance of doubt, discussion or criticism of same sex marriage shall not be taken of itself to be discrimination or harassment.””
Lord Dear: My Lords, I am conscious of the fact that a pumpkin will shortly come into your Lordships’ House. I would simply reflect that Amendment 56 is a freedom of speech amendment and sits closely to Amendment 46C, moved and debated in this Chamber by the right reverend Prelate the Bishop of Leicester. In fact, one is the obverse and reverse of the other. Had the time been different, I would have tried to distinguish between them, but having regard to the similarity of the amendments and the fact that we have already had a full debate on Amendment 46C—and particularly because of pumpkins in the air—I beg leave to withdraw the amendment.
Midnight
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall): My Lords, I am afraid I have to ask the noble Lord, in view of the fact that he has spoken to the amendment, if he would please move it before withdrawing it, in order to give noble Lords a chance to address it if they wish
Lord Dear: I beg your pardon. I beg to move.
Baroness Stowell of Beeston: I am grateful to the noble Lord. I am particularly grateful to him for drawing comparisons with the amendment that was put down in the name of the right reverend Prelate earlier this evening. I agree with him that it is very similar and the response and arguments that I would have made to the noble Lord, Lord Dear, are similar to those which I have made at length on several occasions in Committee.
I will take this opportunity to make a couple of points. First, I hope that if this Bill is to become an Act—and I certainly hope that it will—we arrive at a point where it is accepted that the law allows marriage of same-sex couples, and it is possible for us all to respect differences of view about whether marriage should be between a man and a woman. Although the noble Lord, Lord Singh, is no longer in his place, I take exception to his assertion earlier that we have brushed aside concerns about freedom of speech in Committee. I have been happy to respond comprehensively to the debates we have had on that matter. I take on board the serious concerns that people have had in this area, and hope that I have been able to offer reassurance to noble Lords.
By the same token, I was a little perturbed by the comment that the noble Lord, Lord Dear, made earlier about me not responding with any real scope for consideration of the debates that have taken place in Committee. As my noble and learned friend will be responding to the final amendment and this will be the last time I am on my feet in Committee, I point out that in addition to the list of amendments I referred to in response to the noble Lord, Lord Anderson, that we have already tabled to the Bill, during debates at Committee, I—or my noble and learned friend—have committed to respond to noble Lords on a range of different issues.
This is not an exhaustive list and I am sure we may have other meetings with Peers on other topics. I have, for example, already agreed to have a meeting with my noble friends Lady Cumberlege and Lord Elton to
discuss registrars. On the amendment earlier this evening about religious freedom for faith schools, I said that this was a matter that we continue to consider. In the debate earlier today about transgender matters, I said that I would write to the noble and learned Baroness, Lady Butler-Sloss, about her particular point. I am sure that the noble Baroness, Lady Thornton, my noble friend Lady Barker and I will probably meet to discuss that again. On the public sector equality duty and the definition of “compel”, we have agreed to write in detail to the noble Baroness, Lady O’Loan, about the points she raised. I add, because it was not mentioned during the debates last week, that I have already had a meeting with my noble friend Lady Berridge and the Secretary of State has already met the noble Baroness on that matter.
On humanists, I said that we would reflect further. On presumption of parenthood, I said that I would write in great detail to set out what is proposed in that very important area, which my noble and learned friend has just referred to again. On reviewing of the Act, which was an amendment from the noble Lord, Lord Dear, earlier today, my noble friend Lady Northover responded comprehensively. While there were differences in approach, it was clear that we were very committed to seeing the need for a review of the Act in future. On the debate about pensions, as the noble Lord, Lord Alli, was gracious to acknowledge in his response to me at the beginning of today’s debate, I took the time to speak to the Pensions Minister before the debate took place today.
I say all that because I want to put on record that we are listening, we continue to listen and the debates will continue. I am grateful to the noble Lord for saying that he will withdraw his amendment on freedom of expression.
56A: Schedule 7, page 56, line 6, at end insert—
“39A Section 149 (public sector equality duty): after subsection (9), insert—
“(10) Compliance with the duties in this section requires ensuring that a belief regarding the definition of marriage as being between a man and a woman is respected and that no person should suffer any detriment in respect of the holding or the reasonable expression of such a belief.”.”
Baroness O'Loan: I appreciate how late it is, and will be brief, but I do want to move Amendment 56A, which relates to Part 2 of Schedule 7, on the last page of the Bill. As I reflect on tonight’s debate, I would say to the Government that this may not be as simple as it seems. The reality is that, despite the repeated assurances of certain noble Lords, the United Kingdom has repeatedly been found to be in breach of its obligations under the convention and, more recently, under the Human Rights Act.
Along with the noble Lord, Lord Anderson, I would say to the Minister that there is both courage and common sense in considering the Bill again and in
bringing it back on Report with amendments. I have heard the Minister’s comments on that and have seen government amendments. I asked the question that the noble and learned Lord, Lord Mackay, asked at Second Reading. However, I did not get any response to any of my questions at Second Reading—a matter on which a number of noble Lords commented to me.
More remains to be done and I am pleased to hear the noble Baroness, Lady Northover, say that the door is open. However, I would like to see something rather than just ex post facto post-legislative scrutiny. We need more than that because there is an expectation in this House that the Bill will become law and I want to place on record that I was somewhat concerned at the earlier tenor of the debate. I understood that the process in this House was to raise issues in general at Second Reading, to put amendments in Committee and hear a government response, and to revert to unsolved issues on Report. Otherwise, surely, there would be no point in anything other than Second Reading and wherein would lie our scrutiny function? I would also like to place on record, in response to the noble and learned Lord, Lord Wallace of Tankerness, the fact that I and, I think, several other noble Lords have received a letter signed by a significant number of Members in the other place, saying that although it was broadcast as a free vote, it was not quite as free as it was made out to be.
The Bill as drafted is not limited in its consequences to the issue of conducting same-sex marriages, et cetera. It does not ensure that there can be no detriment to an individual or organisation in their interactions with a public authority, because it does not deal, in this context, with a Section 149 issue and does not deal with the risk of the attribution of discriminatory action against persons with a protected characteristic; namely, sexual orientation. I want therefore to speak very briefly about individuals who, for reasons of conscience, feel unable to promote same-sex marriage in the way that the law, currently, would appear to suggest that they might have to do.
Teaching sex and relationship education tends to be something which is asked of teachers who do not specialise in the topic but may be mathematicians, physicists or historians. SRE has to be taught and some staff must teach it. The risk for a teacher is that, directly or indirectly, something they say may be interpreted as relating to the subject matter of the Bill and may be interpreted as discriminatory by pupils of a homosexual orientation. The noble Lord, Lord Alli, was right when he said earlier that teachers of course have to act as professionals. They can develop rules; for example, that in their classroom no teacher or pupil can be asked a personal question. However, the reality is that a classroom of 30 or more teenagers is not the easiest place to operate. There may be pupils who see an opportunity to embarrass a teacher by asking repeated questions, by making suggestions or by their conduct generally as the teacher tries to ensure that all the children are kept safe, that there is no bullying and that the children actually learn. Teaching is not the easiest occupation.
We even have to take into account that a teacher may have to face what may be a mischievous, but nevertheless damaging, allegation of discriminatory behaviour which is completely unwarranted. We know that there are mischievous and unfounded allegations of sexual abuse of children in schools. I know that that is a difficult issue to introduce in this context but we need to be aware that working in the classroom is not as simple as some noble Lords appear to think it is.
Finally, it is my belief that this amendment, or a similar one, could be introduced to prevent the adverse and unintended consequences to which the noble and learned Lord, Lord Wallace of Tankerness, referred earlier. It would provide protection against detriment resulting from the operation of Section 149 for any person holding conscientious beliefs that marriage is between a man and a woman. It would not permit homophobic action, but it would provide a balancing between these difficult and sensitive competing rights.
Lord Alli: My Lords, I think we have debated this issue, like a number of others, over and over again, so I do not wish to detain the House for any longer than is necessary. However, I want to say that this is a good Bill and a balanced Bill. As the Minister said, there is some work to do before Report, but this is the last amendment in Committee. I put on record my thanks, and I am sure the thanks of many Back-Benchers, to the Front-Benchers of both parties for the way in which they have conducted this stage of the Bill. It does them credit, and this House too.
Baroness Thornton: My Lords, I shall address my remarks to the actual amendment, which is about the public sector equality duty. This amendment seeks to place an express requirement on public authorities to protect individuals who hold a view that marriage should be between a man and a woman under the public sector equality duty. This amendment misunderstands what the public sector equality duty does, and I am slightly surprised that the noble Baroness would suggest it. It is a duty to:
“have due regard to the need to:
Eliminate unlawful discrimination, harassment and victimisation and other conduct that is prohibited by the Act:
Advance equality of opportunity between people who share a characteristic and those who don’t:
Foster good relations between people who share a characteristic and those who don’t”.
It is not a duty to compel or ensure certain actions by a public body, as Amendment 56A would require. However, that due regard applies to religious belief in the same way that it applies to sexual orientation. No other beliefs or specific issues are singled out for special consideration under the public sector equality duty. Singling out one particular belief above any other risks undermining the equal balancing of protections for religious organisations and other protected characteristics, which is specifically enshrined by this duty. We suggest that this amendment is both unnecessary and potentially damaging to the protections—
Baroness O'Loan: My Lords, I did not deliver the speech I had intended to deliver, given the lateness of the hour. I therefore ask the noble Baroness whether she is aware of the increasing jurisprudence of the
European Court of Justice, which indicates that in balancing individual rights and rights which affect such issues as discrimination on grounds of sexual orientation, the courts actually give a greater measure of discretion to the state. It is therefore important that the state acts to protect individuals. I can make that argument at greater length if colleagues wish me to do so, but that is the point I ask the noble Baroness.
Baroness Thornton: I thank the noble Baroness for those comments, but there is nothing that she has just said that would take me away from the view which I have just expressed, because this is domestic law. I add that I think the Government team which has handled this Bill, led by the noble Baroness, Lady Stowell, has done a brilliant job in taking it through Committee. I look forward to the next stage.
Lord Martin of Springburn: My Lords, I have listened to many amendments in Committee. Like the noble Baroness, Lady O’Loan, I worry that it would be a great pity if someone in a local authority stated publicly that the most important thing to them was marriage between a man and a woman, and that somehow they were threatened with the loss of their job, but the local authority would not step in to try to defend them. I know it is late in the evening, but I have been here for the best part of the day, and if the Chief Whip will allow me—
Baroness Anelay of St Johns: For the assistance of Hansard, I make it clear that it was not the Government Chief Whip who made any comments. I would not want that to be recorded in Hansard.
Lord Martin of Springburn: I am sorry about that. I am behind the times. I worry, and I reflect on some of the cases. In one case it was not a local authority but a government agency—namely, a housing association—which disciplined someone because they had left a crucifix on their van. It was claimed that offence would be given to other drivers if that type of thing continued. I share the worries of the noble Baroness, Lady O’Loan.
12.15 am
Lord Wallace of Tankerness: My Lords, I am grateful to the noble Baroness, Lady O’Loan, for her further amendment regarding the public sector equality duty. It is similar, although not identical, to Amendment 13 in the name of the noble Baroness and that of the noble Lord, Lord Singh, which the Committee discussed at length last Wednesday. I certainly do not intend to rehearse all the points that were made then. I undertook, following that debate, to write to the noble Baroness on a number of points that were made in that debate—I think that that suggestion was made by the noble Lord, Lord Deben—and to circulate the letter to all those who took part. I also indicated that if the recipients of that letter wished to follow it up with a meeting, I would more than happy to do so. Certainly, if there are any further points arising out of the contributions to the debate that have been made this evening which require to be covered by that, I shall do so.
The amendment is couched in different terms from Amendment 13 and would have a slightly different effect but, again, the Government believe that it is unnecessary and potentially harmful. As we discussed last week, the public sector equality duty places a duty on public authorities to have due regard to the need to eliminate unlawful discrimination because of, among other matters, religion or belief. Where this is relevant to the exercise of their functions, public authorities are already required to have due regard to the possible impact of their policies on people who believe that marriage should be between only a man and a woman. The amendment is therefore unnecessary.
However, the amendment is also potentially harmful—the noble Baroness, Lady Thornton, was right to say that this is our domestic legislation. The amendment would mean that public authorities would be required to consider this particular belief about marriage, giving precedence to it over all the other beliefs to which they are required to have due regard whenever they take a decision, regardless of the context and the relevance to the decision.
Moreover, the public sector equality duty is a duty to have due regard. It is a duty to think; it is not a duty to act or to achieve a particular outcome. The amendment goes far beyond the duty to have due regard. It places a duty on a public authority to ensure that the belief that marriage should only be between a man and a woman is respected, and to ensure that no one expressing such a belief will suffer any detriment. That is of course a desirable outcome, but it is not clear to me how any single public authority, or indeed all public authorities working together, could ensure that that would happen. I take the point made by the noble Lord, Lord Martin of Springburn. It was in one of our first debates that my noble friend Lord Lester made the point—I think that the noble Lord, Lord Alli, then quoted it back—that you cannot legislate against some public authorities or some individual doing a daft thing; “idiotic” may have been the word that he used. Mention has been made of the case of the housing officer who lost his job for something that was put on a public website, when in fact the law actually protected him. When the case went for judicial review, the judge put it on the record that, had he taken the matter to an employment tribunal, he would have had more substantial damages than he was able to get under a judicial review. The law has worked. I say to the noble Lord, Lord Martin, that I think that we all get very frustrated sometimes when daft things are done, but we believe that the Bill ensures that those protections are in place. I do not believe that the way to deal with those occasions where public authorities have not applied the current laws properly is to start trying to meddle with the equality protections and to risk unintended consequences. Rather, we should address them by doing what we can to ensure that public authorities understand the nature of the requirements on them and what they mean in practice.
That is why, as I explained on Wednesday and as my noble friend Lady Stowell has also explained, the Government will work with the Equality and Human Rights Commission to ensure that its guidance for public authorities is as clear as possible, in particular by making it clear that the equality duty cannot be
used to penalise an organisation or individual for opposing same-sex marriage and indeed that to do so would be unlawful. I also remind the Committee of my commitment given last Wednesday that we will address issues relating to the equality duty when we respond to the Joint Committee on Human Rights before Report.
On behalf of my noble friends Lady Stowell and Lady Northover, I thank noble Lords for the kind words that have been said. I thank all Members of the Committee, because we have had some very important and worthwhile debates. I hope that the noble Baroness, Lady O’Loan, has received the further reassurance on this issue that she has sought. I therefore ask her to withdraw her amendment.
Lord Mackay of Clashfern: My Lords, before the noble Baroness withdraws her amendment, I would like to associate myself from this side of the House with her comments about the Front Benches on both sides.
Baroness O'Loan: My Lords, in withdrawing this amendment, I also express my appreciation to the Front Bench for the way in which they have conducted the debate. I reserve the right to bring this matter back, not in multiple amendments, but in an amendment on Report. I beg leave to withdraw the amendment.
Schedule 7, as amended, agreed.
Clause 16 : Orders and regulations
Clause 16, as amended, agreed.
Clause 19 : Short title and commencement
Bill reported with amendments.