Legislative Scrutiny: Marriage (Same Sex Couples) Bill - Human Rights Joint Committee Contents


4  Wider implications of the Bill

Freedom of expression

70. During the passage of the Bill, there have been questions about the possible implications of the Bill for free speech. There is particular concern that the expression of opinion on same sex marriage by employees (and particularly those working in the public sector) may result in disciplinary proceedings or dismissal. In particular, there has been concern that criticism of same sex marriage by teachers could be considered unlawful discrimination based on sexual orientation.[83]

71. Freedom to express one's religious beliefs falls specifically within the scope of Article 9. It also falls under the general protection of free speech under Article 10. Freedom of expression constitutes one of the essential foundations of a democratic society.[84]

72. An interference with freedom of expression may be justified where remarks constitute an incitement to violence against an individual or a sector of the population. The Public Order Act 1986 prohibits hate speech on the grounds of race, religion and sexual orientation.[85] However, section 29JA of the Act makes clear that the discussion or criticism of sexual conduct or practices is not, in itself, to be considered as threatening or intended to stir up hatred.[86] In evidence, Professor McCrudden suggested that provision should be made to ensure that individuals who discuss or criticise same sex marriage are able to do so reasonably without fear of criminal prosecution.[87]

73. In evidence, the Secretary of State said that existing provisions within the law already offer clear protection for people to express their religious views.[88] However, the Government has committed to bringing forward a section 29JA amendment in the Lords.[89]

74. Individuals are entitled to promote their views on same sex marriage in a lawful manner. This is guaranteed by the rights to freedom of thought, conscience and belief and freedom of expression. We welcome the Government's commitment to bringing forward an amendment to ensure that the discussion or criticism of same sex marriage will be protected from any criminal sanction.

Employment

75. We heard evidence in relation to the possible impact of the Bill in a number of employment scenarios. This concerns conscientious objection issues directly connected to same sex marriage, as well as broader issues related to employees' expression of opinion about same sex marriage.

76. Professor McCrudden highlighted that employees, and teachers in particular, who are critical of same sex marriage may be exposed to unlawful discrimination claims based on sexual orientation under the Equality Act 2010. He suggested that the discussion or criticism of same sex marriage should be explicitly protected from any claim under the Equality Act to ensure protection for employees.[90]

77. Professor Rivers believed that clear guidance is needed on the proper design and reach of workplace equality and diversity policies, as well as the extent to which employers may restrict speech and association in this area.[91] Professor Rivers also suggested the need to consider the extent to which employers should make 'reasonable accommodation' on grounds of religion or belief for employees.[92]

78. We asked the Commission whether additional safeguards were required to protect the rights of employees against any unfair disciplinary or dismissal proceedings based on the manifestation of belief or the expression of opinion concerning same sex marriage, particularly to avoid difficult and stressful litigation. Robin Allen QC believed that the existing legal protections contained in employment and equality law are suitable to deal with issues that may arise, and advised against including safeguards in relation to employment law in this Bill.[93]

79. The Government had initially stated that the current legal framework was sufficient to deal with conscientious objection and other employment issues.[94] In evidence, we asked the Government whether further legislative provision or guidance is necessary to clarify how employment law should deal with these complex issues so that employers and employees know where they stand. The Secretary of State said that the Government is looking at ways to provide certainty in this area.[95] At Commons Report Stage, the Minister of State for Sport and Tourism stated that he wished to place on the record that, under the Equality Act 2010, it was unlawful to discriminate against someone because they held a belief that marriage should only be between a man and a woman, whether for religious or philosophical reasons. The Government's position remains that further protections are unnecessary in this regard.[96]

MARRIAGE REGISTRARS

80. The protections in the Bill for individual ministers do not extend to civil registrars. All registrars will be required to conduct same sex marriage ceremonies. The Government has stated that this is in line with the decision of the European Court of Human Rights in Ladele.[97] The Government has also suggested that it would be unlawful for a local authority to arrange its services so that marriage registrars who have a conscientious objection to same sex marriage could be relieved from performing this duty.[98]

81. At Commons Report Stage, the Minister of State for Sport and Tourism reiterated the Government's stance that it is essential for registrars, as public servants, to perform their statutory duties without discrimination. He said that it would not be appropriate to allow registrars to opt-out of conducting same sex marriages either permanently or on a transitional basis. The Minister also stated that the representative body for registrars did not ask for a conscientious objection.[99]

82. Professor Rivers believes that whilst the position may be in line with the European Court of Human Rights decision in Ladele, it does not necessarily mean that the balance is correct from the perspective of human rights and employment equality law more generally. He believes that the failure to provide any specific protection for dissenting registrars is regrettable, and suggests that a "reasonable accommodation" approach may be suitable in this context.[100]

83. Professor McCrudden also believes that a limited right to conscientious objection should be provided to allow registrars with a conscientious objection to be able to refuse to conduct same sex marriages, provided that this does not prevent same sex couples from accessing civil ceremonies or ceremonies in religious organisations that have opted-in to same sex marriage where a registrar is required to attend to register the marriage.[101]

84. We have heard significant arguments about whether existing employment and equality law provisions provide sufficient protection for employees who may wish to manifest their belief about same-sex marriage in the workplace. We note the particular concern for the position of teachers and civil registrars. Although we do not come to a final conclusion on whether additional protections are required, in part due to the complexity of the issues involved and the divergence of opinion upon them in the evidence we have received and in other material which we have considered during our scrutiny of this Bill, we recommend that the Government reconsider these issues with a view to bringing forward amendments in the House of Lords to put in place transitional arrangements which deal with these concerns for those in post as registrars at the time any legislation is passed. 

Teaching of Sex and Relationship Education

85. We heard evidence concerning the teaching of Sex and Relationship Education ("SRE") in schools. Section 403(1) of the Education Act 1996 provides that, where sex education is given, it is given in such a way as to encourage due regard for moral considerations and the value of family life. Current Statutory Guidance states:

    "Within the context of talking about relationships, children should be taught about the nature of marriage and its importance for family life and for bringing up children. The Government recognises that there are strong and mutually supportive relationships outside marriage. Therefore, children should learn the significance of marriage and stable relationships as key building blocks of community and society."[102]

86. The Guidance further states that pupils must be protected from teaching and materials which are inappropriate having regard to the age and the religious and cultural background of the pupils concerned. The Guidance make clear that teachers should be able to deal honestly and sensitively with sexual orientation, answer appropriate questions and offer support.[103] On the issue of personal, moral or religious convictions of teachers, the Guidance notes:

    "Parents and pupils may need to be reassured that the personal beliefs and attitudes of teachers will not influence the teaching of sex and relationship education within the PSHE framework. Teachers and all those contributing to sex and relationship education are expected to work within an agreed values framework as described in the school's policy, which must be in line with current legislation. Some teachers may need support and training to deliver the programme sensitively and effectively."[104]

87. Professor McCrudden is particularly concerned that faith schools may be required to promote or endorse same sex marriage as a result of current statutory requirements, and believes protections should be built into the Bill.[105]

88. Professor Rivers considered that the change in the legal definition of marriage by the Bill introduces an element of ambiguity into the current Guidance, which needs to be reviewed in order to make the position clear for all schools. He also suggested that section 403 of the Education Act needs to be amended to provide a level of protection for faith schools, and that there should be a statutory requirement on the Secretary of State to have due regard for the divergent views on the nature of marriage when issuing Guidance on this matter. Professor Rivers also highlighted that the teaching of SRE is another area where reasonable accommodation may be made for individual teachers who object to the content of teaching or the materials they are required to use.[106]

89. We wrote to the Secretary of State to ask for the Government's view on whether further Guidance could be helpful to clarify the SRE teaching requirements in relation to same sex marriage. In its response, the Government stated:

    "Across all education matters, the Government has been clear that trust needs to be placed in the hands of the professionals on the ground. Teachers are already very experienced in addressing sensitive topics in class and we therefore do not consider the provision of additional guidance pertaining to the teaching of same sex marriage to be necessary."[107]

90. The Secretary of State reiterated this position to us in evidence.[108] However, the Government committed to considering this issue further in the Lords.[109] We welcome the Government's commitment to review the protections that may be required in relation to the teaching of Sex and Relationship Education. In particular, we encourage the Government to consider whether specific protections are required for faith schools and for individual teachers who hold a religious belief about same sex marriage.


83   Professor McCrudden, Advice to the Catholic Bishops' Conference of England and Wales, paras 135-138 Back

84   Handyside v. the United Kingdom (Application no. 5493/72) 7 December 1976, para 49 Back

85   Public Order Act 1986 Parts III and IIIA  Back

86   Section 29JA Public Order Act 1986 Back

87   Professor McCrudden, Advice to the Catholic Bishops' Conference of England and Wales, paras 139-141 Back

88   Evidence session 2, 14 May 2013, Q.38 Back

89   HC Deb, 20 May 2013, col. 963 Back

90   Professor McCrudden, Advice to the Catholic Bishops' Conference of England and Wales, paras 135-136 Back

91   Professor Julian Rivers, Marriage (Same Sex Couples) Bill, Submissions to the Joint Committee on Human Rights, para 47 Back

92   Professor Julian Rivers, Marriage (Same Sex Couples) Bill, Submissions to the Joint Committee on Human Rights, para 53 Back

93   Evidence Session 1, 23 April 2013, Q.8 Back

94   Marriage (Same Sex Couples) Bill, Note for the Joint Committee on Human Rights, February 2013, paras 126-133 Back

95   Evidence session 2, 14 May 2013, Q.41 Back

96   HC Deb, 20 May 2013, col. 963-964 Back

97   Eweida and others v United Kingdom (Applications nos 48420/10, 59482/10, 51671/10 and 36516/10), 15 January 2013 insofar as it related to Lillian Ladele, a registrar of births, deaths and marriages for the London Borough of Islington.An appeal to the Grand Chamber has been refused.The Court considered that the applicant's refusal to conduct same sex civil partnerships was directly motivated by her religious beliefs and fell within the scope of Article 9 protection.The Court also took into account the fact that the applicant had been employed as a registrar prior to the introduction of civil partnerships.Balanced against these considerations, the Court considered the local authority's Equal Opportunities policy and its requirement that all employees act in way which does not discriminate against others. The Court concluded that, in this case, the State had not exceeded the discretion it enjoys to determine the right balance between manifesting religious belief and protecting the rights of others. The refusal by the local authority to allow the applicant to conscientiously object to registering civil partnerships was lawful. Back

98   Marriage (Same Sex Couples) Bill, Note for the Joint Committee on Human Rights, February 2013, paras 118-125 Back

99   HC Deb, 20 May 2013, col. 963-964 Back

100   ProfessorJulianRivers,Marriage(SameSexCouples)Bill,SubmissionstotheJointCommitteeonHumanRights,para53 Back

101   Professor McCrudden, Advice to the Catholic Bishops' Conference of England and Wales, paras 113-131 Back

102   DfEE, Sex and Relationship Education Guidance, (July 2000) DfEE 0116/2000. Back

103   DfEE,SexandRelationshipEducationGuidance,(July2000),Paragraphs1.30and1.32 Back

104   DfEE,SexandRelationshipEducationGuidance,(July2000)DfEE0116/2000,para.2.1 Back

105   Professor McCrudden, Evidence to the Joint Committee on Human Rights, para 11(a); Professor McCrudden, Advice to the Catholic Bishops' Conference of England and Wales, paras 105-112 Back

106   Professor Julian Rivers, Marriage (Same Sex Couples) Bill, Submissions to the Joint Committee on Human Rights, paras 56-63 Back

107   Letter from Rt Hon Maria Miller MP to Chair of the Joint Committee on Human Rights, 18 April 2013, Annex p.4 Back

108   Evidence session 2, 14 May 2013, Q.39 Back

109   HC Deb, 20 May 2013, col. 963 Back


 
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Prepared 14 June 2013