In today's Committee Stage of the Marriage (same sex couples) Bill, Baroness Stowell sought to reassure members of the Upper House that religious freedoms are well protected with this Bill. You can read her words here, together with interventions, culminating in amendment 5 being withdrawn.
My Lords, I am grateful to all noble Lords who have spoken in this very important and helpful debate. May I say first that I am grateful to the noble Lord, Lord Alli, for repeating what I said at Second Reading? The Bill absolutely makes it lawful, and continues to make it lawful, for people to believe that marriage should be only between a man and a woman. It is their right to express that belief and the Bill does nothing to change that. I am also grateful to the noble Baroness, Lady Thornton, and my noble friend Lord Lester for what they said about the Equality Act protecting people who have a range of religions beliefs but in this context hold the belief that marriage should be between a man and a woman and are free to express that belief. It is important that I continue to make that clear.
I also recognise, however, that people are looking for reassurance and want to know that it is perfectly legitimate to continue to hold the beliefs that they have always held, and that they will not be in any way disadvantaged because of these beliefs—or, indeed, that it would be unfair for people to criticise them in any way, although clearly it is free for anybody to express an opinion that is contrary to that view.
As the noble Baroness, Lady Thornton, mentioned, the Government are bringing forward an amendment to the Public Order Act. I will speak to that in a little more detail when I take the amendments in turn. We felt that it was important for us to do this as we recognised the need for assurance and because it was possible to make that amendment to the Public Order Act without causing any detriment to anybody. We really do understand that people are looking to us for assurance.
The amendments have clearly enabled us to explore issues of conscience in relation to the Bill, and it is right that we should do so. Let me start with Amendment 5, which was moved by my noble and learned friend Lord Mackay of Clashfern. He seeks to explore how the Bill could impact on those seeking appointment to a public office—such as appointment to the board of a non-departmental body. The amendment seems to be based on the premise that, should the Bill be enacted, anyone expressing a belief that marriage should only be between a man and a woman might somehow be excluded from appointment to public offices.
I can reassure noble Lords that this is certainly not the case. This Bill is not about forcing people of faith to change their religious views, practices or teachings about marriage. The belief that marriage should be between a man and a woman is, and will continue to be, mainstream and entirely lawful. Indeed, the Bill explicitly makes clear that such a belief is legitimate and mainstream through the specific protections it provides to ensure that religious organisations and their representatives who do not want to participate in same-sex marriage ceremonies cannot be compelled to do so.
Public appointees, like anyone else, are and will remain free to express their religious or philosophical beliefs as long as this does not affect their ability to do their job.
The noble Baroness is making a very important point. She will know that concern has been expressed about the conduct of various authorities in the past—certain councils, certain police authorities and so on. What assurance can she give the House, in the spirit of the assurances that she is now giving, that adequate guidance will be given to these authorities so that we do not have a repetition of how poor individuals have been pilloried in the past?
I am about to come to the specific examples that have been raised. I hope I will also give the noble Lord some comfort by saying that we are working with the Equality and Human Rights Commission to review its guidance and ensure that revised guidance is issued. It is also looking at its statutory codes in this area. I accept, as has been pointed out by noble Lords in this debate, that we need to make sure that public bodies in particular—although not just public bodies—are clear that it remains absolutely lawful for somebody to express their belief in this way. We want to make sure that that is clear to them. The Equality Act 2010 provides express prohibition against discrimination because of religion or belief. This includes a religious or philosophical belief that marriage should only only between a man and a woman. This protection applies in relation to public appointments and to employees.
I move on to Amendments 7 and 8, tabled by the noble Lord, Lord Dear. I am grateful for his explanation although, on the face of it, the scope of these amendments is not entirely clear. However, it would certainly include a range of public authorities and religious organisations, and would potentially extend to commercial service providers. Like the noble Lord’s amendment in the earlier group, these amendments would effectively create two tiers of marriage—a point made, I think, by the noble Baroness, Lady Turner—with marriages of same-sex couples on a lower tier. That would undermine the fundamental purpose of the Bill, which, as I made clear in earlier debates, is to extend the single institution of marriage to same-sex couples.
Of course, there are circumstances in which individuals need strong and effective protection in order for religious freedom to be safeguarded. For example, a clergyman should not be compelled to solemnise the religious marriage of a same-sex couple against his conscience. We all agree about that, and the Bill provides that protection through the explicit protections already contained in the quadruple lock.
However, Amendments 7 and 8 have a much wider effect. Amendment 7 would apply to anyone exercising a function under or in consequence of this Bill, and Amendment 8 would apply in the same terms to all public authorities and those exercising public functions. Therefore, these amendments would, for example, allow a housing officer to decide who should be housed based on his or her belief. It would be quite wrong to refuse, on the basis of a personal belief, however strongly and sincerely held, to house a same-sex married couple or a couple where one of the partners was divorced and remarried. Public servants should not be able to pick and choose to which members of the public they will provide their services. However, to be clear, a housing officer, for example—
I am grateful to the Minister for giving way. I specifically did not say that. My amendment, if adopted, would certainly not lead to the sort of conduct whereby a housing manager could decide that he did not much like single-sex marriages and therefore would not allocate a house. That was quite specifically not what I had in mind. It was that the housing manager should not be punished or be at detriment for holding those views when he stood back and said, “I don’t want to get involved in this. Somebody else should make this allocation”. That is the point I was making.
Before the Minister answers that, I should like to be clear on whether the noble Lord, Lord Dear, is suggesting that it is open to a registrar who objects to same-sex marriages to desist from performing a same-sex marriage.
I am grateful to the noble Lord, Lord Dear, for his intervention but I disagree that it is legitimate for, say, a housing officer to withhold his services or, rather, to withdraw participation in an aspect of his job on the basis of his religious beliefs, although he is absolutely within his rights to express his religious beliefs at work. In an earlier debate, the noble Lord and others, including my noble friend Lady Cumberlege, raised the case of Adrian Smith. We must not lose sight of the fact that, as my noble friend Lady Barker made clear, Adrian Smith won his case. I absolutely understand the point made by noble Lords that it is regrettable that people sometimes have to go through that process in order for the law to be made clear, and I wish that that never happened. However, I am grateful that the law exists, so that somebody with a strong case that they are being unlawfully discriminated against can be successful in bringing a case, as illustrated by that example.
In this area, it is also worth referring to another example—raised, I think, by the noble Lord, Lord Dear, but certainly by others—concerning the Reverend Brian Ross, who was a volunteer police chaplain for Strathclyde police. It is difficult to comment on an individual case without knowing the full facts but the religious protections in the Bill make it clear that belief that marriage should be between only a man and a woman is legitimate and mainstream.
The amendments of the noble Lord, Lord Dear, also appear to have the effect of elevating the belief that marriage should be between only a man and a woman over all other religious or philosophical beliefs which people hold and which are deserving of equal respect under the law. A belief that marriage should be between a man and a woman is undoubtedly worthy of respect in a democratic society. As such, it is already protected under the religion or belief protections in the Equality Act 2010 and under Article 9 of the European Convention on Human Rights. It is therefore unlawful to discriminate against someone simply because they hold this belief.
The determination of whether there has been unlawful discrimination under the Equality Act is always a matter of balance, depending on the facts of the case. The noble Lord’s Amendments 7 and 8 would, I believe, disrupt that balance. An employer must be able to insist that employees carry out their work in a reasonable and professional manner. If, for example, a chauffeur for a commercial car hire company arrived at a wedding and decided that he would not drive the couple because they were of the same sex, that would amount to unlawful discrimination and would leave the employer open to a claim on that basis. It would also affect the employer’s business. It is right that the employer should be able to take action against the employee in those circumstances. However, Amendment 7 would prevent the employer doing so and therefore I believe that it goes too far.
I am very interested that my noble friend has touched on the commercial world. Can she comment on the Christian organisation that had its conference at the Queen Elizabeth II Conference Centre banned with less than a day’s notice because the organisation’s support for traditional marriage was deemed to contravene the centre’s diversity policy?
Yes, my Lords. I would have come to that once we reached a later amendment. My noble friend Lord Waddington also raised that as an example but I shall deal with it here. Unfortunately, I understand that these cases are the subject of ongoing litigation, so it would not be appropriate for me to comment on them. However, the Equality Act protects against discrimination because of religion or belief in the provision of services. I regret that I cannot comment on that specific point but, again, I stress that the law is clear in this area.
I am sorry but I am not sure that I follow the noble Baroness. The law is clear that this should not have happened. Is that right or in what respect is it clear?
I am afraid that it is not possible for me to respond directly to that question because the case is still live and subject to litigation. I hope that my noble friend will forgive me.
Amendment 8 in the name of the noble Lord, Lord Dear, seems to be aimed at addressing concerns aired here and in the other place that public authorities might overreact to expressions of belief in traditional marriage. This was raised by the noble Lord, Lord Anderson. Not only would the amendment require public authorities to treat people fairly but it would impose a specific duty in respect of this one belief, which could result in the marriage of same-sex couples being placed on a lower tier or being considered as somehow not of the same status as marriage of opposite-sex couples.
Together, Amendments 7 and 8 would allow the owner of a hotel approved for the solemnisation of marriages to refuse to host marriages of same-sex couples, and the registration authorities and even the courts would have to allow him to do so. We believe that that would be both confusing and wrong.
Amendment 9 would also require those exercising public functions to consider a particular belief about marriage, regardless of the function being exercised. This would be overburdensome and unnecessary. How would this be relevant for a person exercising parking or traffic enforcement functions or a person exercising functions relating to rubbish collection?
Another difficulty arising from both these amendments is that, by focusing on protecting a particular belief about marriage, they could cast doubt about the protection afforded to people who hold similar views on other issues, such as civil partnerships or same-sex relationships generally. Such a focus could suggest that such views were not protected by the Equality Act. The point there is basically that, if we are specific about this but not specific about other things, arguably we are then putting other beliefs in doubt.
We believe that the proper way to consider issues of protection of conscience in relation to people who exercise functions connected to marriage is to do so in each particular context: civil registration, employment, religious organisations and so on. That is what we have done. We will shortly debate the amendment from my noble friend Lady Cumberlege, which would introduce a conscience clause for civil registrars.
In the preparation of the Bill and during the debates here and in the other place, we have listened to concerns about whether the protections could be strengthened. One thing that we have done is to amend the Bill to provide additional protection for employed chaplains—for example, hospital or university chaplains—who do not wish to carry out or participate in the religious marriage ceremony of a same-sex couple.
Amendment 19 from the noble Lord, Lord Singh, seeks to amend the religion or belief provisions in the Equality Act to make explicit that a belief that marriage should be between a man and a woman is included within it. I am pleased to reassure the noble Lord that there is no need to change the Equality Act in the terms set out in the amendment. Amending the protected characteristic of religion or belief by specifying a particular belief about marriage would cast doubt, as I have just said, on other religious or philosophical beliefs that are also protected by the Equality Act, and could therefore lead to confusion about how the protected characteristic of religion or belief is generally protected.
Moving to Amendments 53 and 54, Amendment 53 is a government amendment, similar to one debated in the other place in Committee and on Report. The Government gave a commitment on Report in the other place that we would come back with our own amendment, and I am happy to do so now. This amendment is intended simply to put beyond doubt that the Public Order Act 1986 offences regarding stirring up hatred on the grounds of sexual orientation do not outlaw the reasonable expression of the view that marriage should be between a man and a woman, which remains a perfectly legitimate view. It is appropriate to make this amendment because there is already a similar provision in Section 29JA of that Act concerning discussions about sexual conduct or practices. The current wording of Section 29JA would not however cover discussion of same-sex marriage, and that is why we are making the amendment. It is conceivable that some people might be in doubt as to whether discussions of same-sex marriage were to be treated differently from discussions of sexual conduct and practices, in so far as those two topics are linked. For example, my noble friend Lady Barker referred to the demonstration in Brighton by a church on the day of the Gay Pride march. If the church wanted to demonstrate against same-sex marriage, it would be perfectly lawful. This amendment makes that clear. However, let me at the same time be absolutely clear and reassure the House that this amendment does not allow hate speech. If the manner in which something is expressed is threatening and intended to stir up hatred, that would still be an offence. The amendment refers to the content of what is said, not the manner in which it is said. It makes clear that that subject matter is a legitimate one for discussion and it is right to do that only because there is an existing provision covering discussion of sexual conduct or practices.
I turn briefly to Amendment 54 in the name of my noble friend Lady Berridge.
Before the noble Baroness leaves the Public Order Act 1986, will she clarify that that Act relies on the definition of a public place within it and that it is therefore applicable only to the criminal law and not the civil law?
Yes, I can confirm that it relates only to criminal law.
Returning to Amendment 54 from my noble friend Lady Berridge—
Can my noble friend confirm, so far as the civil law is concerned, that what I said about the Human Rights Act, freedom of speech and freedom of religion applies equally to the civil law?
Absolutely. I am grateful to my noble friend for making that clear and glad to confirm that he is right.
I cannot accept Amendment 54 because the drafting could give the impression that the law is not to be applied even-handedly, which I know is not what my noble friend intended. It also goes further than we believe is necessary. I hope she will agree with me that our own amendment meets the need.
I therefore ask my noble and learned friend Lord Mackay of Clashfern to consider withdrawing his amendment.
Earlier the noble Baroness mentioned that if a chauffeur turns up at a wedding and will not take part any more because he finds that the people involved are gay, then the employer has some legitimate grounds for disciplining them. Suppose that same person had expressed a view, within the confines of his employment, that he thought gay marriage was wrong and was then asked to go on this particular trip, what would be the view then?
The chauffeur would be entirely legitimate in expressing the view, whether at work or outside work, that marriage should be only between a man and a woman. However, as I said to the noble Lord, Lord Dear, in the context of the example of a housing officer, it would not be legitimate for the chauffeur to withhold or withdraw from his employment, in terms of what he is paid to do, on the basis of that belief. His employer should be able to pursue that in a way he felt appropriate because he had employed that person to chauffeur people in accordance with the way in which such services are offered commercially.
I am sorry but the point I am making is: if the employer had deliberately asked that person to do something, knowing it was against his conscience, what would be the view?
He may have only one driver. It may be a very small firm and the only driver available is that driver. It is not possible for us to legislate. The employer might turn around and say that he has a team of people and that he is quite happy with that arrangement. Outside a public authority, I cannot give the noble Lord a definitive response to the kind of scenario that he is painting. It is absolutely clear that it would be legitimate for that person to express their view, but not for them to say that, because they hold that view, they therefore do not have to do what they are employed to do. I hope that is clear for the noble Lord.
Would it be legitimate for an employer to dismiss from employment as a chauffeur someone who had expressly told him at the time of employment that he was not prepared to convey people at a same-sex marriage?
We are now getting into so many different hypothetical scenarios—
Before the Minister answers that question, I wonder if I can give some free advice. The answer to that question is fact-sensitive. It all depends on the terms of engagement. There are cases that uphold freedom of conscience in certain situations but no one can give a categorical answer without knowing the facts of the particular case. There are plenty of former judges here to nod their disagreement if what I have just said is wrong.
I think I will take my noble friend’s free legal advice and refer the noble Lord, Lord Anderson, to it. On that basis, I hope that I will be able to convince my noble and learned friend, who is also a very experienced lawyer, to withdraw his amendment.
My Lords, I have been waiting for some time to intervene to prevent my noble friend having to answer all these questions but the priorities of the House required me to give effect to those who wanted to speak. We have had a very full debate and I thank my noble friend for the very detailed answers she has given on all the issues that have been raised. I am sure we will want to read very carefully what has been said. In the mean time, I am extremely happy to withdraw my amendment.
Amendment 5 withdrawn.