This is an important issue. I can assure my noble friend and all noble Lords that the Government are fully committed to consider our responsibility, and the responsibility of local authorities, to the Traveller community. I hope this debate has helped somewhat to illustrate an understanding of the Government's approach to this issue. I also hope it has reassured my noble friend that we share the same objectives in terms of improving outcomes for the Traveller community. The Government’s reforms have struck a careful balance between meeting the needs of the Traveller community while—and this is an important point as anyone who has served in local government will know—in considering and balancing the rights and merits of the Traveller community, it is also important to do so in the interest of the wider community as a whole. This particular measure will assist in ensuring that the planning system applies fairly and equally to all.

Lord Avebury: My Lords, in the few minutes that remain, I thank my noble friend the Minister warmly for his comprehensive reply to the points that have been raised in this debate; the noble Baroness, Lady Whitaker, whose invaluable work on Gypsies and

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Travellers is applauded by everybody; and the noble Lord, Lord Beecham, for the most important questions that he asked. We did get an answer on guidance; I understand from the Minister that it will appear before the Summer Recess. When the package of guidance on PPTS appears as promised, it will be part of that suite.

I am still very concerned that the victims, if I may put it that way, of temporary stop notices will have no right of appeal or a mechanism by which they can challenge the use of such notices. My noble friend rather avoided the questions about legal aid which both I and the noble Lord, Lord Beecham, put to him. However, since the order was first published, the fresh group of cancellations of legal aid affects this matter as well as many other important issues. The victim of a temporary stop notice will have no right of appeal or redress whatever and, as the noble Lord, Lord Beecham, said, he will face a huge fine if he fails to comply.

My noble friend also did not answer the question we put to him about the failure of the Department for Communities and Local Government to publish any statistics on progress towards the obligation on local authorities to provide by 31 March this year a five-year deliverable supply of land for caravan sites. We are now almost at the end of June, and as I have said, not a single authority has actually done this. My noble friend did not challenge that statement, not because he is unaware of the situation on the ground, but because DCLG does not bother to collect the statistics. I have to say that although I am grateful to my noble friend for setting out what the Government are doing in other areas, such as NOMS collecting statistics on offenders and the DWP collecting them on universal credit, that demolishes the argument put to me by Brandon Lewis that the department does not wish to collect statistics on the performance of local authorities in providing planning permissions because it would be a top-down approach.

On the amount of money that is available, a question also asked by the noble Lord, Lord Beecham, we applaud the £60 million that has been allocated by the Government for new sites and refurbishment. As I understood my noble friend, that was planned to produce 628 new pitches and 400 refurbished pitches by 2015. While my noble friend obviously cannot do it this evening, I hope that he will be able to tell me on another occasion how much of that money has been spent. Of the £60 million that has been allocated to local authorities and social housing agencies, has a single site been identified? If so, has planning permission been granted and what progress has been made towards the achievement that the £60 million is intended to produce?

8.45 pm

Lord Ahmad of Wimbledon: Perhaps I may assure my noble friend and other noble Lords that I shall write in that regard after the debate.

Lord Avebury: That will be very helpful, and I am sure that the noble Baroness, Lady Whitaker, and the noble Lord, Lord Beecham, would also like to be informed about what is being done with the £60 million. I could have asked about what is to happen after 2015

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because although the money will provide that number of pitches, it will not by any means cure the problem of unauthorised sites. As my noble friend said, the position has been improving, but it is not fully resolved. The reason people camp on unauthorised sites is not because they want to abuse the planning system, but because there is simply nowhere else they can go. I must say that until we have the properly delivered programme of sites which the Government set out in their policy on PPTS, we will still have a long way to go. In the mean time, I beg leave to withdraw the Motion.

Baroness Stowell of Beeston: My Lords, I am sure that the noble Lord could expand his views for a couple of minutes more.

Lord Avebury: If the noble Baroness wishes, there are some other questions that cropped up during the course of the debate on which it would be useful to have a few words. The noble Lord, Lord Beecham, asked what other considerations would be taken into account in deciding whether temporary planning permissions should be granted. I am also interested in that question. I can see that when a caravan is parked on a totally unsuitable site such as a playing field, urgent action needs to be taken. If a caravan is parked on the green belt, that might also be a factor to be taken into consideration.

I wonder if my noble friend the Minister has considered the suggestion made by Councillor Ric Pallister of South Somerset District Council. He has suggested that, where it is necessary to remove a person from a totally unauthorised and inappropriate site such as a playing field, a temporary permission might be granted on another piece of land, which is not unsuitable, for a period of 28 days. That would enable the persons in receipt of the temporary stop notice to draw breath and look around for whatever alternative accommodation might be available. It would be helpful if the Minister could think about that. I am not asking for a reply now but, perhaps, when he writes to us, he could cover that point as well.

I beg leave to withdraw the Motion.

Motion withdrawn.

Marriage (Same Sex Couples) Bill

Committee (1st Day) (Continued)

8.50 pm

Amendment 6

Moved by Lord Martin of Springburn

6: Clause 1, page 2, line 3, at end insert—

“(6) Within three months of the passing of this Act the Secretary of State must, by order or regulations, create a statutory list of religious bodies owning or controlling premises who notify him that they do not wish to be eligible to undertake an opt-in activity for the purposes of section 2.

(7) Any body listed in the statutory list created by subsection (6) may not undertake an opt-in activity for the purposes of section 2.

(8) The Secretary of State must, by order or regulations, amend the statutory list in subsection (6) if any body notifies him that they wish to be included or removed.”

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Lord Martin of Springburn: My Lords, I note that the noble Lord, Lord Morrow, is not here but I understand that the amendment is the property of the House and that I am entitled to move it. I seek some information from the Minister on this issue.

The amendment says that, within three months of the passing of this Act, the Secretary of State must make an order or regulations,

“to create a statutory list of religious bodies owning or controlling premises”.

It is the controlling of premises about which I am interested in getting some information from the Minister.

I was interested in what the noble and learned Lord, Lord Wallace, had to say about Church of England clergy. It occurred to me that this legislation may be re-enacted north of the border and I wonder how this will affect Church of Scotland ministers. As the Minister knows, there is a Church of Scotland church in Pont Street—I believe it is called St Columba’s. There is also the Crown Court Church in Covent Garden, where Scottish Members are always welcomed at the beginning of each new Parliament for what, north of the border, we call a kirkin. It would be interesting if it means that there is an established churches’ ruling down here which will not apply to Church of Scotland ministers but the legislation that comes in north of the border is slightly different. How might that apply to Church of Scotland ministers who are practising in London or in other parts of the country? I shall leave the noble and learned Lord to ponder on that. I do not need an answer right away.

Where this amendment caught my eye was on the controlling of premises. I, of all people, never believe everything that is in the newspapers. In fact, I once advised a younger Member to check even the date on a newspaper and to use some other means to make sure that it was accurate. However, it has been recorded in at least two newspapers that I know of that government Ministers have approached the authorities of this House with regard to the Chapel of St Mary Undercroft, which some of us know affectionately as St Stephen’s Crypt. The story in the newspapers suggested that, in order to give equality to same-sex marriages, the crypt could perhaps be turned into a prayer room rather than being a place of worship controlled by the Church of England.

First, I would point out to the noble and learned Lord and other noble Lords that I am not in the business of trying to scupper or put blockages in the way of legislation that has come from the other House and been approved by this House. However, I am entitled to ask questions. Those who wish to be married in that church can get a full marriage only if they are members of the Church of England and are seeking to have a Church of England priest to marry them. If a member of the Catholic Church wishes to get married in the crypt, a small service has to take place further up the road at Westminster Cathedral and then a fuller service can take place in the crypt. It is said that this is about giving everybody equality, but equality is not practised currently and I am not seeking that equality. My point in raising this is that the Church of England has full authority in that little church, for which we all have great affection. I understand that it is a peculiar,

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a Church of England term which means that the monarch can have some say in the matter. If am wrong in these things, I am sure I will be corrected.

I ask the Minister because I do not have full regard for what is printed in the press. That is why I am on my feet tonight. If there is any feeling that changes should be made for that little crypt of St Stephen’s, then it should be the membership of this House and the Members of the other place who make inquiries about this matter, not Ministers, who are often quick when it suits them to say, “Well, we are the Executive and there are matters for the House and for the membership of both Houses”. I would take a very dim view if a Minister had gone to anyone who has any authority over St Mary Undercroft without consulting me or anyone else through those who represent us here—perhaps the Lord Speaker or the Chairman of Committees.

This throws up another matter, on which I may be less qualified to speak. The legislation says that the Church of England shall be exempt. If anyone in government is able to change the place of worship of the Church of England here in the Palace of Westminster, they would be able to do so in any other place of worship within the Church of England. As a Catholic, I wanted a Catholic marriage in a Catholic church when I married 45 years ago. I do not deny anybody the right to argue with a lot of this legislation. However, same-sex couples feel that as Christians there is no reason why they should not be able not only to get married within the rites of the Church of England, and indeed the Catholic Church, but also to take advantage of the fact that they would then be able to get married in the church itself, rather than a hotel or anywhere else.

It is not the right of government to make approaches. If those articles are correct the approaches were made before Second Reading in the other place. To me, that is wrong. If it is true, then Ministers or a Minister have overstepped themselves. If it is not true, then when he replies the Minister can put my mind at ease. I beg to move.

9 pm

Lord Alli: By adding a new layer to the process the amendment in the name of the noble Lord, Lord Morrow, has managed to find another ingenious way to thwart any religious organisation that wishes to opt in. I am not sure what purpose it serves except to give additional strength to those who oppose opting in, even when religious organisations have given consent.

This gives me the opportunity to ask the Minister whether he might look into an issue raised with me regarding shared religious premises. The example given to me is that of a building that is primarily used by a religious organisation, but rented out once a week to another religious organisation. There is a worry that, under the current drafting of the Bill, if the first organisation applies to conduct same-sex marriages in that building then the tenant could object, preventing their being able to register the building. I wonder whether the noble and learned Lord might look at this and let me know whether that is the correct interpretation. I do not need an answer today. I am happy for the noble and learned Lord to write to clarify the situation.

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Baroness Royall of Blaisdon: My Lords, I appreciate that this is a probing amendment, but it has thrown up some interesting questions from the noble Lord, Lord Martin of Springburn. I believe that the proposal in the amendment would be an unnecessary additional hurdle for religious organisations. The legal protections in the Bill relating to the opt-in process, combined with the protections under the Equality Act 2010, are in our view perfectly sufficient to protect religious organisations that decide not to opt in to same-sex marriage from legal challenge.

I suggest that the process Amendment 6 proposes would have the effect of interfering in the internal governing processes of religious organisations. It would allow governing authorities to bind future authorities’ decision-making abilities by placing additional barriers in the way of their taking a decision to opt in to same-sex marriage in the future. I am also concerned that such a system could stifle the ability of a religious organisation to respond to the changing nature of its religious community. In addition, we believe it to be unnecessary in the light of the legal protections afforded by the opt-in system in the Bill as well as by the existing legal framework.

The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, I am grateful to the noble Lord, Lord Martin of Springburn, for giving us an opportunity to debate the substance of this amendment as well as the specific points he raised. I substantially agree with the point made by the noble Lady, Baroness Royall. I even suggest that this would be an additional bureaucratic burden. We believe that the provision is not necessary. There is no need for any religious group to take any action whatever if it does not wish to solemnise the marriages of same-sex couples. Unless a group takes the positive step of opting in, it will not be able to solemnise the marriages of same-sex couples.

I take this opportunity to make it absolutely clear that there is no requirement in the Bill to opt in. That is the position in the Bill as currently drafted. If there was a list it could lead to some confusion if, for some reason, a religious organisation did not apply to be recognised on it. Therefore, not only is it not necessary, it could have unintended and undesirable side-effects.

In answer to the noble Lord, Lord Alli, the position with regard to shared buildings is that the requirement for all religious organisations formally sharing a building to consent to registering that building for the marriage of same-sex couples is a vital protection. It allows religious organisations to choose to conduct same-sex marriages and helps to protect those that do not wish to do so. We are giving religious organisations the option of consenting to the registration without having to agree to conduct marriages themselves. This provides a way in which each organisation can respect the beliefs of the other. The Bill is not only about choosing to conduct same-sex marriages but about protecting religious freedom. We are seeking to ensure that the protections provided by the giving of consent in the main opt-in also apply to organisations that happen to share their buildings.

I am not sure that that fully addresses the point but the basic structure is that if there is a sharing arrangement—and there is statute for church buildings

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to be shared—and one religious organisation decides not to opt in and does not consent to the registration of the building for same-sex marriages, same-sex marriages could not take place there. Alternatively, the religious organisation could consent to the building being used for same-sex marriages although it would not itself permit same-sex marriages. But I will look carefully at what the noble Lord, Lord Alli, said and if he feels that I have not addressed the point, I will certainly write to him.

The noble Lord, Lord Martin, raised two very interesting issues. My understanding is that the position with regard to marriages in the Church of Scotland—it is not just St Columba’s, Pont Street and Crown Court in Covent Garden; there are Church of Scotland congregations in places such as Corby, I think—is that marriages solemnised by the Church of Scotland in England and Wales are under the law of England and Wales and accordingly the procedures set out in the Bill regarding the opting-in by religious organisations would apply to the Church of Scotland. That would ultimately be a matter, I suspect, for the General Assembly of the Church of Scotland. Obviously, what happens with legislation north of the border is a matter for the Scottish Government. I understand that they plan to publish a Bill relatively soon. Of course, there is a difference between marriage in Scotland and in England: in Scotland it is a licensing of those who perform marriage as opposed to the place of marriage being of crucial importance with regard to religious organisations, as in England.

That takes us on to the question of St Mary Undercroft in the Palace of Westminster. The noble Lord, Lord Martin, said that his understanding was that a marriage there could be solemnised only by the rites of the Church of England and by a Church of England priest. That is certainly my understanding. I had a colleague who wished to be married by a Church of Scotland minister there and had to have a civil ceremony beforehand and then have a blessing by a Church of Scotland minister—so much for humanism. It would not be possible under this Bill for the marriage of a same-sex couple to take place in St Mary Undercroft using the rites of the Church of England. The marriage of same-sex couples according to the rites of the Church of England can take place only when the General Synod of the Church of England and Parliament pass the appropriate measure; it would be a matter for them. The Chapel could not be used for the marriage of a same-sex couple in accordance with other religious rites unless it had first been approved as a place of worship and then registered for the solemnisation of same-sex marriages with the consent of the relevant authorities.

What may have triggered what the noble Lord read in the newspapers is that this matter was raised in debates in the House of Commons and the Parliamentary Under-Secretary of State at the Ministry of Justice, Helen Grant, made a commitment to consider the matter in Committee. Officials made contact with the Office of the Lord Great Chamberlain to clarify the position on this issue. It is clear that the use of the Chapel is not a matter for the Government but for the Church of England and the House authorities.

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Lord Martin of Springburn: I thank the noble and learned Lord. That clarifies the matter. So once again the papers have got it wrong and the true story is that clarification was sought from the Lord Great Chamberlain and the case is perhaps as I stated it, but no Minister has made any approach to seek to get the Crypt—as we call it—turned into a prayer room rather than a church.

Lord Wallace of Tankerness: The position is as I understand the noble Lord to have described it: to my knowledge and that of my noble friend, no Minister has made an approach of the kind the noble Lord describes. As I indicated, the issue having been raised in Committee, the Minister Helen Grant undertook to consider it. Officials approached the Office of the Lord Great Chamberlain—possibly not the Lord Great Chamberlain himself—to seek clarification, and the position on the use or non-use of St Mary Undercroft is as I have set out. I hope that gives clarity.

Lord Martin of Springburn: My Lords, I withdraw the amendment.

Amendment 6 withdrawn.

Clause 1 agreed.

Amendments 7 to 9 not moved.

Clause 2 : Marriage according to religious rites: no compulsion to solemnize etc

Amendment 10

Moved by Lord Dear

10: Clause 2, page 2, line 13, at end insert “or

( ) to express agreement with a relevant marriage,”

Lord Dear: My Lords, I rise briefly to deal with Amendments 10, 12 and 14. I said when I spoke to Amendments 7 and 8 that they were paving amendments. In many ways they lead on to what the three amendments in this group now seek to deal with.

I listened very carefully to what the noble Baroness, Lady Barker, said when she spoke to Amendments 7 and 8. I have a great deal of sympathy with her. She might be surprised to know just how much common ground there is between us and be reassured by that comment.

Amendments 10, 12, and 14 are concerned with freedom of speech. The Bill seeks to protect the civil liberties of those who do not want to participate in religious same-sex marriages, stating that they cannot be compelled to do so or be punished for not doing so. Equality laws, we have heard today, will be amended so that, for example, a church minister who refuses to conduct a same-sex marriage will not breach the goods and services provisions of the Equality Act of 2010. However, the Bill’s existing safeguards do not deal with speech; they deal only with conduct. The evidence is overwhelming that it is the verbal expression of beliefs about marriage that tends to get people into trouble.

I was reminded to go back to the period just before Christmas, when I successfully introduced an amendment to remove the word “insulting” from Section 5 of the

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Public Order Act 1986, quite rightly leaving threatening and abusive conduct in place. Therefore, the expression of a mere view, even though some found it insulting, was not an offence in the criminal law under that section. I quoted very heavily then from the judgment of Lord Justice Sedley in the case of Redmond-Bate v Director of Public Prosecutions. The words that he used were very similar to those used by the noble and learned Baroness, Lady Hale, in the Williams case—a judgment I have already referred to; I will not go over that ground again.

Apart from the small amendment to the law on inciting homophobic hatred—Amendment 53, which we dealt with just before the dinner break and which applies, as we know, only to the criminal law—the Government, as far as I can see, have declined to address the problem of speech. Amendments 10, 12 and 14 add protection for freedom of speech, so that no person would be compelled to express agreement with same-sex marriage or be punished for expressing their disagreement to it.

I give three quick examples of what I have in mind here. Under Amendment 10, church staff who explain the church’s view to a same-sex couple who apply for a wedding cannot be sued. Under Amendment 12, employees can disagree with same-sex marriage without risk of being punished by their employers. Under Amendment 14, churches and religious organisations that refuse to endorse a same-sex wedding cannot be sued under the Equality Act for discrimination.

I think it is self-evident. I will not take up the time of the House any more, other than to give one quote from the Joint Committee on Human Rights, which said, in commenting on this general area of the law, that,

“we have heard arguments on both sides as to whether religious organisations and individual ministers may suffer some form of detriment as a result of their position on same sex marriage in a number of contexts which fall outside the scope of the Bill’s current protections. We note the concern that the Bill may create a number of legal uncertainties, which may only be resolved through litigation with its attendant costs”.

My Amendments 10, 12 and 14 seek to plug some of those gaps. I beg to move.

9.15 pm

Baroness Thornton: My Lords, these amendments are very similar to those we debated before the dinner break and, in a way, similar to the ones that we will be debating next concerning registrars and public servants. Our view is that the equality legislation—and freedom of thought, speech and belief protected by that legislation—covers these points. I can see why the noble Lord may wish to probe that, and I am sure that the Minister has more than adequate answers to it, but we do not think that the amendments are necessary.

Baroness Stowell of Beeston: The amendments of the noble Lord, Lord Dear, provide an opportunity for me again to make clear what is allowed under the law in terms of belief and expression of belief. I do not accept his argument that the law deals only with conduct and not with freedom of speech, because it explicitly does. People are clearly able to express themselves,

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to hold religious beliefs and express those beliefs, and to do so freely. Nothing in the Bill restricts anyone’s right to express a view on marriage or anything else.

As I said before, I understand that some people are uneasy about the impact of the important change that we are making in the Bill by extending marriage to same-sex couples, but they really have nothing to fear. The law is clear. I understand that there is concern out there but it is my job here to respond to that and to say as clearly as I can that in law there really is nothing to fear. The Equality Act 2010 works in a balanced way to ensure that reasonable discussion of any topic is not restricted. The law comes into play only if someone is subjected to a detriment or is harassed because of a protected characteristic.

The noble Lord’s amendments would provide that a person other than a registrar, superintendent registrar or the Registrar General may not be compelled to express agreement with a religious marriage ceremony of a same-sex couple. Nothing in the Bill or elsewhere requires anyone to express support for marriage of same-sex couples, nor is there anything that prohibits disagreement with same-sex marriage. Nothing requires religious ministers or teachers—if that is what the noble Lord has in mind—or anyone else to express agreement with religious marriage ceremonies of same-sex couples. Religious ministers are free to preach about their views of marriage and those of their faith, and teaching must be factual and appropriate, but that does not involve teachers having to say they believe things that they do not believe.

Expressing disagreement with something is not in itself harassment or discrimination under the Equality Act. Under that Act, it is how people are treated that matters. Accepting this amendment would risk creating doubt as to whether other topics of conversation, such as views on civil partnerships or homosexual relationships generally, need similar protection.

As we have already discussed, we have amended the Public Order Act. I covered that in great detail in previous debates and I shall not go over it again. I can only conclude by saying that the amendments are unnecessary and potentially damaging to the balanced way in which the Equality Act protects people from discrimination and harassment. For those reasons, I cannot accept the amendments. I hope that I have been able to give the noble Lord the assurance that he is looking for and that he feels able to withdraw the amendment.

Lord Dear: Does the Minister think that the law is so adequate that these words are irrelevant or does she think that the words should not be incorporated in the Act at all?

Baroness Stowell of Beeston: I think it is both. They are not necessary and by being specific in this way, as I tried to explain, we create doubt about people expressing other views that are not spelt out. Once we become specific, arguably we remove people’s protection to say other things that they are legitimately able to, because the law does not out spell out specifically that they are protected in doing so. There is a potential risk there with the amendments as well.

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Lord Dear: My Lords, I am partly confused and certainly not in agreement with what I think I heard the Minister saying. I feel that we have already heard that the Equality Act has been shot through a number of times as being inadequate. A number of cases have been cited. Clearly, the freedoms it set out to offer have not always been available and for the first time—

Lord Lester of Herne Hill: I am sorry to interrupt the noble Lord but I strongly object to what he has just said. There is no evidence that the Equality Act has been shot through with anything or has failed to work properly. I have already said in a previous short speech that the Human Rights Act solves the problem but he does not seem to have followed what I said, so I will say it again. The Human Rights Act says that all legislation, old and new, must, if it is possible to do so, be construed compatibly with the convention rights. Those rights include freedom of conscience, religion and belief and freedom of expression. If we wanted to get into a real muddle, we would start writing stuff into this Bill which then has to be read down by the courts. The best thing to do is to go for legal certainty and my view is that the law is quite certain on that.

Lord Dear: Of course, I defer to the noble Lord’s view on this but nevertheless we have heard of a number of cases in your Lordships’ House tonight where people have expressed a view and been sued for it. I do not in that sense move away altogether from the point I am trying to make. There are people out there who are now very concerned about opening their mouths and saying anything at all, for fear of being dubbed homophobic. There will certainly be more if this Bill comes into law in its present form. Although I am more than happy to withdraw my amendment at this stage, I will seek return to it on Report and may very well seek to divide the House.

Amendment 10 withdrawn.

Amendment 11

Moved by Baroness Cumberlege

11: Clause 2, page 3, leave out lines 21 and 22

Baroness Cumberlege: My Lords, I will also speak to Amendment 16. The Bill as drafted does not allow registrars to refuse to conduct civil same-sex marriages on the grounds that they have a conscientious objection to doing so. I am very grateful to the right reverend Prelate the Bishop of Leicester for putting his name to these amendments. Sadly, he is not here this evening but he is represented by the right reverend Prelate the Bishop of Hereford, who I am delighted to have supporting this clause. The proposed new clause in Amendment 16 will allow registrars to conscientiously object in limited circumstances. It will also ensure that all same-sex couples who wish to marry will be able to do so. There is only one reference to registrars in the Bill. It states that for the purposes of Clause 2(4)(b),

“‘person’ … does not include a registrar, a superintendent registrar or the Registrar General”.

This means that registrars will not be afforded the protection from compulsion that religious individuals have in relation to same-sex marriages in the religious context.

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It is unclear to me why the drafters chose to mention registrars in a clause that deals only with marriages according to religious rites, termed relevant marriages within the clause, and not in a separate clause that deals with civil same-sex marriages. I find this particularly surprising given the recent decision of the European Court of Human Rights in Eweida and Others v United Kingdom. The noble Lord, Lord Anderson, mentioned it earlier. Miss Ladele was a registrar with a conscientious objection to performing civil partnerships. She was subjected to disciplinary proceedings because of her religious beliefs. Following the Ladele case, and, I have to say, the Government’s huge expense and the following media circus, one would have expected a more explicit reference to registrars in a clause dealing with registrars as a whole, not a small reference in a clause dedicated to marriages according to religious rites.

The absence of protection for registrars in the civil context contrasts markedly with the protection from compulsion that is given to the clergy or others within religious organisations. Why should the religious rights of the individual take precedence only in the context of religious marriages? Both the minister conducting the religious marriage and the registrar conducting the marriage in a register office carry out the same public function: both conduct legally recognised marriage ceremonies. Indeed, the Minister responsible for the Bill in the House of Commons said,

“Marriage is, in my view, a single institution that can be entered into either in a civil ceremony or in accordance with religious rites or usages”.—[Official Report, Commons, 26/2/13; col. 186.]

Our amendment and proposed new clause will permit all registrars, civil and religious, to exercise their right to freedom of conscience and religion while ensuring that same-sex couples are able to access civil or religious marriage ceremonies.

A conscientious objection clause such as the one we propose is not unprecedented. It will not have a detrimental effect on the Bill. Section 4 of the Abortion Act 1967, for example, allows for individuals with a conscientious objection to abstain from participating in abortions. Section 38 of the Human Fertilisation and Embryology Act 1990 allows any person to object to participation in the treatment and development of human embryos. Schedule 2(3) of the National Health Service regulations allows medical staff to refrain from providing contraceptive services—my noble friend Lord McColl knows more about this than I do. Under the Motor-Cycle Crash-Helmets (Religious Exemption) Act 1976, Sikhs do not have to wear helmets, while atheist teachers are not required to conduct collective services or to teach religious education.

These are just a few examples of conscientious objection clauses that already exist. The Government have provided no good reason for distinguishing between the individuals in those contexts and registrars in the same-sex marriage context. The Minister, in his response to the Public Bill Committee, said it is because “they are different”. That is not a satisfactory answer. Like registrars, all medical professionals and teachers provide a service and perform a public function. Why, then, should registrars be treated differently? Teachers perform different functions to medical professionals, and medical

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professionals perform a different function to research scientists experimenting with human embryos. Why does it matter that they are different? What justifies this difference in treatment?

Subsection (1) of our proposed new clause draws partly in its phrasing on the conscientious objection clause in the Abortion Act, as does the requirement in subsection (3) that the,

“objection must be based on a sincerely held religious or other belief”.

Subsection (4), also like the Abortion Act, places the,

“burden of proof … on the person claiming to rely on it”.

Therefore, only individuals with a genuine, sincerely held religious or other belief may refuse to conduct same-sex marriages, and only if they can prove that their refusal is based on genuinely held religious or other beliefs. That is not an easy test to satisfy.

A conscientious objection clause in this area would not be completely unprecedented, either. While the Civil Partnership Act 2004 does not have an explicit conscientious objection clause, it does not require all registrars to be designated civil partnership registrars. The legislation simply requires registration authorities to ensure that there is a sufficient number of civil partnership registrars for the area. Across the United Kingdom, registrars’ beliefs have been accommodated by local authorities, allowing those with sincerely held religious objections not to be designated as civil partnership registrars. By doing this, local authorities protect both the rights of same-sex couples and registrars.

9.30 pm

Ladele—a case mentioned earlier by the noble Lord, Lord Anderson of Swansea—was the exception. Miss Ladele’s local authority forced her to choose between her job and her faith. By doing so, it sparked an unnecessary controversy that has been extensively reported in the press and appealed all the way up to the European Court of Human Rights. Forcing Miss Ladele to make this difficult decision was unnecessary, because the local authority had enough registrars to cope with the demand for civil partnerships. Her conscientious objection had not prevented any couple entering a civil partnership. Her opposition was not known to the public or any service users until she was dismissed. Moreover, she did not use her belief as a platform from which to make a political point.

The case and the controversy could have been avoided if her local authority had taken the same approach as many others across the UK and allowed her to continue in her employment without conducting civil partnerships. Our amendment would merely legislate for and endorse the approach that has already been adopted by both sensible and tolerant authorities who were prepared to live and let live. Without our new clause, that sensible result will not be achievable in the context of same-sex marriages, because all registrars will automatically be required to conduct same-sex marriages without any further action, such as designation, having to be taken. By placing this clause in the Bill, we will prevent further cases like Ladele.

Baroness Thornton: The noble Baroness keeps referring to the case of Miss Ladele but has failed to inform the House that that lady lost her case all the

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way up to the European Court. In other words, our equalities legislation was held to be true right up to the European Court.

Baroness Cumberlege: My Lords, my point was that it never needed to have come to court.

Our new clause would produce largely the same result as the Civil Partnership Act, because subsection (2) would not allow individuals to exercise a conscientious objection if doing so would result in same-sex couples being unable to access marriage ceremonies. If sufficient numbers of registrars are not available in any district, a registrar with a conscientious objection would come under a duty to conduct same-sex marriages. Therefore, no same-sex couple would be prevented from marrying by reason of this amendment. This tackles the Minister’s concern that religious individuals might apply for positions as registrars in order to conscientiously object and prevent same-sex couples getting married—although this is unlikely. Our new clause would prevent this, because the registration authority would be able to compel such individuals to conduct the marriages if another registrar is unable to do so.

Not only is our new clause practical and consistent with precedents set in this area, it is necessary. There are currently a number of registrars who wholeheartedly embrace civil partnerships but, by reason of their religious or other beliefs, do not believe that marriage should be extended to same-sex couples. There are also some registrars who, following the Civil Partnership Act, were accommodated by their local authorities and who believe that only opposite-sex couples can marry. Without this new clause there will inevitably be legal disputes in the future, which the Government surely wish to avoid.

During the Public Bill Committee, the honourable Member for Bristol West said:

“There is plenty of time, given that they work in local government, for them to think through the implications of Parliament changing this law and … to apply for redeployment elsewhere in the public service: in the library service, or somewhere else where they have to serve the customers fairly and equally”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 26/2/13; col. 226.]

In other words, tough luck: if registrars do not want to perform same-sex marriages, they should go and find employment elsewhere. That cannot be right. Why should a person who until now has perfectly performed all the functions asked of him or her be forced to resign over this crucial matter of conscience, especially given that such a function was never envisaged as part of their role when they were initially employed? It would be unfair to expect them to do so.

Baroness Thornton: Will the noble Baroness inform the House whether a proposed new clause would open the door to registrars conscientiously objecting to other things such as mixed-race marriages? Where would the noble Baroness draw the line?

Baroness Cumberlege: My Lords, this debate is about same-sex marriages. That is what I am addressing. Surely we should not force people into such an impossible position.

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Baroness Thornton: It is a legitimate question. If the amendment were agreed, would the noble Baroness be opening the door to other conscientious objections—for example, to mixed-race marriages?

Baroness Cumberlege: My Lords, this Bill is not about mixed-race marriages but about same-sex marriages. That is what I am addressing.

Lord Martin of Springburn: Does the noble Baroness know of any religious faith that would object to a mixed-race marriage?

Baroness Cumberlege: No, my Lords, I do not know of any. I have just a little more to say before I finish. Our proposed new clause will promote rather than hinder tolerance, because individuals will be more likely to live in harmony, even if their thoughts and beliefs are entirely contradictory. Harmony, broad-mindedness and tolerance are more likely to be achieved if both those who do and those who do not believe that same-sex marriages should be available feel that their beliefs are equally valued and protected.

In conclusion, our proposed new clause strikes a sensible balance between the rights of those wishing to get married and the rights of those with conscientious objections to conducting same-sex marriages. It will allow individuals conscientiously to object only in certain limited circumstances. It will not allow anyone with a conscientious objection to communicate that objection to anyone wishing to get married at a register office. It will not allow any registrar to make their beliefs publicly known through their work. It will allow registrars quietly to refrain from conducting same-sex marriages only where there are enough other registrars to cover demand. Surely this is a better approach.

Earlier this evening, the noble and learned Baroness, Lady Butler-Sloss, talked about a middle way. I agree with her. This House encourages tolerance. Our amendment would protect the rights of individuals with conscientious objections, and also allow same-sex couples to get married. To me, that is the middle way. I urge the Minister—

Lord Alli: I have a question for the noble Baroness. If I understand her proposed new clause correctly, at the beginning there is a conscientious objection subsection. There is also an obligation on public authorities to provide registrars. The proposed clause then states that if there are not enough registrars in the area, the conscience exemption is dropped and the registrar will have to perform the marriage regardless. That is the worst of both worlds. There is the illusion of a conscience exemption, but if there are not enough registrars, the poor person about whom the noble Baroness spoke will have to perform the marriage in any case. Perhaps the noble Baroness will tell me if I got that right or whether she has a different interpretation.

Baroness Cumberlege: The noble Lord, Lord Alli, got it absolutely right. I will draw my remarks to a conclusion.

Lord Carlile of Berriew: I apologise for intervening at this late stage of my noble friend’s speech, but I would like to be clear about the consequences of what

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she is saying. Does she propose that a registrar who is opposed on conscientious grounds to divorce should have the right to refuse to marry people who are entering into a second marriage after divorce?

Baroness Cumberlege: No, my Lords, I am not going into divorce. I am trying to keep my proposed amendment quite narrow. I am trying to find a middle way, a way that allows registrars to have a conscientious objection because they are not bit parts in this exercise—they are intrinsic to it. I think they should have that right, just as doctors, teachers and everybody else that I have mentioned do. I also understand, having been in local government and knowing how registrars work, the issue of having to work out the workforce that is required to carry out these functions. I am saying that if a registrar is trying to exercise a conscience clause—the clause that we are here trying to give that person—but there is a shortage of registrars within that area, I am afraid that he or she would be compelled to do it.

The Lord Speaker (Baroness D'Souza): My Lords, if this amendment is agreed to I cannot call Amendment 11A by reason of pre-emption.

Lord McColl of Dulwich: My Lords, I support Amendment 16 of the noble Baroness, Lady Cumberlege, and I do so very much as a doctor. In another place at Report, the Minister, Mr Hugh Robertson, rejected the suggestion that space should be made for registrars with a conscientious objection to officiating at same-sex marriage ceremonies. This will mean that once the Bill is passed, those registrars will be confronted with the choice of either acting in violation of their conscience or losing their livelihood and vocation. The Minister said:

“I do not believe it is appropriate or right to allow marriage registrars to opt out of conducting same-sex marriages either permanently or on a transitional basis. Like it or not, they are public servants who should carry out the will of Parliament, and allowing exemptions according to conscience in my view”—

said the Minister—

“sets a difficult precedent”.—[

Official Report,

Commons, 20/5/13; cols. 963-64.]

I have to say to that Minister, like it or not, that there are already precedents in this country to accommodate the consciences of public servants who are paid by the taxpayer, as the noble Baroness has already said. Quite rightly, the conscientious objections of doctors who are public servants and paid for by the taxpayer are respected so that they do not have to perform abortions if this violates their consciences. This has been operative since 1967. No one ever told me as a doctor that I must choose between being willing to act in violation of my conscience to perform an abortion or being sacked and losing my livelihood and vocation. I was always rather thankful for that arrangement.

Moreover it is not just public servant doctors whose consciences are protected. Teachers have the same kind of protection and for much longer. Quite rightly, the law makes space for atheist teachers so that they do not have to lead school assemblies or teach religious education. We do not tell atheist teachers that they must either be willing to lead a religious assembly or lose their livelihood or vocation. That again would be deeply illiberal.

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It seems to me that the Minister, certainly in another place, has a problem. There is no new precedent in the excellent amendment of the noble Baroness, Lady Cumberlege. It is simply a continuation and reaffirmation of the very important liberal, democratic principle that we allow mainstream conscientious objections of public servants.

The other point that the Minister made during Report in another place was that the Government had received no representations from the national panel for registration asking for conscientious objections. Moreover, the panel has sent noble Lords a briefing ahead of today’s debate which repeats that very point. I have to say I find it deeply disturbing that a body, which is, I presume, supposed to represent the interests of all registrars should be content to affirm the passage of legislation that will effectively say to registrars with a conscientious objection, “Choose between either being willing to violate your conscience or lose your job”. If it is supposed to represent the interests of all registrars, it does not seem to be doing a very good job. This has been underlined by paragraph 25 of the European Court of Human Rights judgment in the Ladele case, which states:

“Some other United Kingdom local authorities”—

that is, other than Islington, where Miss Ladele worked—

“took a different approach, and allowed registrars with a sincerely held religious objection to the formation of civil partnerships to opt out of designation as civil partnership registrars”.

Exactly the same point was made by paragraph 23 of the Employment Appeal Tribunal document on the same case. These other authorities found it necessary to make these accommodations with respect to officiating at civil partnership ceremonies only because there is a widespread conscientious objection problem, which obviously applies equally to same-sex marriage, about which the national panel appears to be unaware.

9.45 pm

Moreover, on 14 February, Mark Jones, the solicitor for Lillian Ladele, gave evidence to the Commons committee and made it plain that he was aware of a number of registrars who had major concerns about the implication of the change in the law. We also know it is a big issue because of the Lillian Ladele case itself. The courts found against her because they were asked to interpret a law that did not explicitly provide a conscience exemption. It did, however, provide scope for an exemption in practice because registrars are separately designated marriage registrars and civil partnership registrars. The reason why Ladele got into difficulty was because her employer insisted that all registrars were designated as both marriage and civil partnership registrars. If marriage is redefined, there will be absolutely no chance of protection for registrars without Amendment 16 because there will not be a separate different-sex marriage and same-sex marriage designation—there will just be a marriage designation.

If the Government were to reject Amendment 16, in order to be logically consistent they would have to end the practice of making space for atheist teachers and doctors whose consciences do not permit them to perform abortions. That would be unthinkably illiberal

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and so, too, would it be for us not to pass Amendment 16. I strongly commend this amendment to the Committee and urge the Government to support it.

The Lord Bishop of Hereford: My Lords, I also support the amendments in the name of the noble Baroness, Lady Cumberlege. As she said, the right reverend Prelate the Bishop of Leicester regrets not being able to be here this evening. As the noble Baroness made very clear, and as the noble Lord, Lord McColl, made clearer still, the amendment we are considering is a natural development of other legislation, other exemptions and other conscience clauses, and provides protection that I, along with others, think would be helpful and an improvement to the Bill.

The noble Baroness, Lady Cumberlege, said that the absence of protection for registrars in the civil context contrasts markedly with the protection from compulsion that is given to the clergy or others within religious organisations. This protection has the potential to generate conflict between religious individuals and religious organisations, which will always be resolved in favour of individuals because the Bill will accord the religious freedom of individuals greater weight than the institutional autonomy of religious organisations.

The Bill effectively makes it impossible for religious organisations that have opted in to providing same-sex marriage to compel their members to conduct the ceremonies. If this conscientious objection clause was broader and protected individuals in circumstances where the state is involved, the interference would be justified. The fact that this protection applies only within religious organisations and interferes only with the inner workings of religious organisations seems to me unreasonable. Therefore, the interference cannot be justified. It is to that effect that I was very grateful that both the noble Baroness and the noble Lord, Lord McColl, made reference to five examples—if I was counting correctly—of exemptions already in law. Conscience clauses exist, as we have heard, in the Abortion Act, for doctors; in the Human Fertilisation and Embryology Act; in National Health Service contracts; in the law on motorcycle crash helmets; and for atheist teachers.

Only last week, there was a report from the Joint Committee on Human Rights, which was addressing the legal scrutiny of this Bill. It included the following comments:

“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”.

It went on to say that,

“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”.

I would be very grateful to hear the Minister’s comments on this recommendation.

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Reference has been made already by the noble Lord, Lord McColl, to the national panel for registration. Quite a few of us will have received a briefing about that, which includes two paragraphs about a conscience clause. The first says:

“We are strongly opposed to any ‘conscience clauses’ enabling Registrars to ‘opt out’ of marrying same sex couples. We consulted widely within the LRS”—

the local registration service—

“during the consultation on equal marriage and we want to assure you that no member of the LRS has called for a conscience clause”.

Again, I would be very grateful if the Minister would let us know how that consultation was held, how many people were consulted and what proportion responded. I wonder whether some of those who might have wished to respond in another context or in another survey might have felt disinclined to do so because there is no conscience clause at the moment and because they did not therefore want, as some might put it, to put their head above the parapet.

In the second paragraph, the advice from the National Panel for Registration was:

“Registrars are local authority employees and are expected to carry out all the function that their role covers. At present this includes delivering civil partnership ceremonies. We do not believe that delivering equal marriage ceremonies will be any different. Allowing some Registrars to opt out of civil marriage for same sex couples would be discriminatory and cause serious administrative difficulties in delivering services”.

I have to say that that paragraph puzzles me in two regards. The first is when it states:

“We do not believe that delivering equal marriage ceremonies will be any different”.

That makes me wonder what we are all doing today and what this Bill is about if the panel is correct. Secondly, I am puzzled because, on the one hand, the panel is saying that it is not aware of any registrars wanting a conscience clause, yet, on the other, it is saying that if there were to be a conscience clause it would,

“cause serious administrative difficulties in delivering services”.

Yet, in areas where there are only a few registrars or even, as the panel might think, none, it is hard to see quite how it would be so difficult to deliver the services. That is rather contradictory.

I shall also quote the evidence given to the Commons Public Bill Committee on 14 February. Among the witnesses was the Dean of St Albans, the Very Reverend Jeffrey John. Jim Shannon asked him:

“Do you feel that registrars should have equal protection?”.

The reply of the Dean of St Albans was:

“I would not be against that, personally, I have to say. I think it would be sensible if local councils and so on made individual provision for registrars who seriously find that a difficulty, rather than simply sacking them. I would want to treat that on a humane, ad hominem basis”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 14/2/13; col. 151.]

I am delighted to agree with him on those points. That is another reason why I hope your Lordships will agree to ask the Minister to respond warmly and positively to the amendments in the name of the noble Baroness, Lady Cumberlege.

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Perhaps I may also refer to Amendment 53 and simply say how much I appreciated the Government making matters expressly clearer on that issue and going a long way in the direction that I and a number of others in this Committee would wish, for clarity’s sake. I hope that over this issue we will have a conscience clause and be able to establish a category. Even if the registrars are correct, there may not be many people in it. What is at issue is the category itself and protection for people, even if it is only a few people. We need to protect them and this seems to be the right way of doing it.

Baroness Butler-Sloss: My Lords, I have some hesitation in following the three very able speakers, with all of whom I have previously entirely agreed on almost every subject. However, there is a difficulty here. There should be a distinction between those who are in post now and those who will be in post. The transitional arrangements suggested by the human rights committee seem to be the right way forward and an appropriate compromise.

We have to recognise that one of the major jobs of a marriage registrar is to marry people, whereas, for doctors, abortion would not be a major part of their work. For atheist teachers and so on, it is not so difficult to come to arrangements. However, it is a particularly difficult situation if a new marriage registrar says, “I come in on terms whereby I am not prepared to do part of my job”, particularly in areas where there may not be many of them. However, there is a wholly different argument for those registrars who are already in post. The amendments we are considering have gone too far but the Government ought to look at some form of protection for registrars who are currently in post and who joined their local government service at a time when the idea of same-sex marriage was pie in the sky. I urge the Government to provide for a halfway, compromise situation that would meet what was specifically needed here.

10 pm

Lord Anderson of Swansea: My Lords, I hope that the Government will listen to the points that have been made and recognise that there is a real problem here. The Government can, after all, be magnanimous. They have had substantial majorities in favour of the Bill, both in the other place and here. Now they can listen to the clear case for the protection of those who will be adversely affected if this Bill, as no doubt it will, becomes law. I hope also that the Opposition will recognise our proud tradition, over the centuries and beyond, of trying to support radicals; those who are against the wind, those who have a legitimate conscientious objection.

I do not agree with my noble friend on the Front Bench who was trying to reduce to absurdity the idea of where we draw the line, of what happens if someone objects to mixed-race marriage. There was not an objection. Even in apartheid South Africa, if one were white one could find a church in which to marry a black woman, or the other way round. It is rather like asking what would happen if a registrar objected to marrying someone with ginger hair. Of course, one can raise an objection of that sort and try to draw a

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silly distinction, but there must surely be a point where reasonable people accept that there is a substantial body of opinion which is in favour of traditional marriage, and if it is at all possible, as in the terms of the amendment, one should seek to accommodate it.

The noble Baroness, Lady Cumberlege, should be congratulated on the balanced and tolerant way in which she moved her amendment. The good sense of the people should be accommodated because there is not only the problem which the noble and learned Baroness, Lady Butler-Sloss, mentioned: that the contract of an existing registrar will have been altered by statute to their detriment. This will not have been part of their original terms and contract of employment, so they would stand being faced with the awful choice of either going against their conscience or losing their job. Surely there should at least be some transitional arrangements to allow for this. Furthermore, looking at this in a practical way, one asks how many people are likely to be affected by this. What will the demand be for same-sex marriages? The evidence from other jurisdictions is that demand will be relatively small. I concede that the evidence points to the fact that there was a more substantial demand in the initial stages, because of the pent-up demand from those who wished, for example, to transfer from civil arrangements to a full marriage position; but afterwards, there was a relatively small number.

If it is the case—I think it is very likely to be the case—that only a small number will wish to enter into a same-sex marriage, then that is surely manageable and should be managed by reasonable accommodations and by good will on the part of the Government and those who seek to legislate. I am not even sure of the concession made by the noble Baroness that someone might be compelled to officiate if there is not someone actually available within Islington or wherever. If it is likely to be the case that only a small number are going to be affected, in larger jurisdictions there will be more than one registrar in any event, and it is surely not beyond the wit of an accommodating and understanding local authority to make arrangements with an adjoining local authority. In so many other areas of competence, local authorities co-operate.

I fear that there is a whiff in the Government of “The juggernaut moves on. We shall insist that these people conform, jump to attention, do what we say they will do, or they will properly be dismissed”. There surely must be a more tolerant attitude, as we have had over the years, to people who have an established objection of conscience. Certainly, over the years my party has recognised that the establishment has always railed against those who AJP Taylor called troublemakers, because troublemakers lead to progress. We have always respected those who stand against the wind of public opinion or of legislation of this nature. If we have reasonable good will and magnanimity, we will seek to accommodate that small minority of people rather than say, “You must conform or else”, or otherwise seek to reduce to absurdity their own position.

My own judgment is that we can find the good will that dealt with the sort of problems we faced in the previous century when there was a majoritarian approach. The Liberal Democrat approach was rather to encourage politicians to introduce laws that, yes, were mandated

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by the majority, but with sensitivity to minorities where there might be negative or unfortunate effects. When it became apparent that a law designed for and supported by the majority—this one is perhaps supported by the majority but it is designed for a minority—might have negative effects, the answer was not to abandon the law or put the minority outside its scope, which could negatively impinge upon it, but to provide different treatment under the law.

One saw the same authoritarian approach with the then Government’s attitude towards the adoption agencies of the Roman Catholic church. With a degree of good will, they could have been accommodated. The Catholic agencies could have referred same-sex couples who wished to adopt to other agencies that would help them, but no, the authoritarian bandwagon rolled on and the effect was negative in respect of children. Many of the agencies were forced to close. People may have felt better inside at that, but the unfortunate losers were the children who had been cared for extremely well by those Roman Catholic agencies.

The truth is that a law designed for a majority, or in this case a minority, can have perverse and unintended consequences for minorities. Similarly, a law designed for one minority can have perverse and unintended consequences for other minorities. In my judgment, with good will, they should and can be provided with appropriate accommodations. The simple effect of this legislation will be that if you are a registrar, you are religious or your identity is such that you cannot in all conscience officiate at a same-sex marriage without acting in violation of that identity, you have an awful choice to make. You can either officiate and act in violation of your identity and your conscience or you can lose your livelihood. Surely that goes against all the traditions of this country when an easy way out can be found.

The fact is that many employed by public authorities have their consciences respected. Examples have been given—I will not go over them again—of atheist teachers. The noble Lord, Lord McColl, cited an example from his own experience of doctors and abortion. If we pass this Bill unamended, the effect of it will be that every registrar with a sincerely held objection to same-sex marriage must either act in violation of their identity and be willing to officiate at such marriages or lose their vocation. That is the blunt choice. I end by saying that it would be a frightening and illiberal Britain which would force them to do such a thing. Just as we make space for atheist teachers and for doctors and nurses, surely we should make space for registrars.

Of course the job of registrars is to officiate at marriages, but I would submit that the number of same-sex marriages is likely to be very small indeed. I recall that during the Committee stage in another place, the Minister was asked the following by Tim Loughton MP:

“Why is that the principle that a surgeon who has strong Catholic views is allowed to pick and choose whether to perform abortions or other surgery, if the same principle cannot be applied to a Catholic registrar with strong views, allowing them to pick and choose whether to perform that other public service? What is so essentially different that we protect one but not the other?—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 26/2/13; col. 234.]

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The Minister responded by saying that they are different functions: one is an abortion; the other is a same-sex marriage. That is hardly an adequate answer. Surely there is an inconsistency in the Government’s position—in both cases public servants perform a public function for which the public pay. Merely saying that they are different functions is inadequate. Registrars should have their conscience accepted as well.

Those of us who were brought up just after the Second World War recall the statements attributed to some of the awful chairmen of conscientious objectors tribunals. Imagine them saying to a young man who, on conscientious grounds, did not wish to go to war, “you cannot pick and choose”. I think of Crito and Plato in this context—you cannot pick and choose. This has shades of some of those awful chairmen of tribunals. I hope that this House, consistent with its traditions of individual liberty and freedom of conscience, will support this worthwhile amendment.

Lord Alli: My Lords, I understand that it might seem unfair to the right reverend Prelate, or to the noble Baroness, Lady Cumberlege, that registrars who do not approve of gay marriage should have their jobs put at risk. However, it is their refusal to do their job, not their religious belief, that creates the issue.

However, I was rather taken by the intervention of the noble and learned Baroness, Lady Butler-Sloss, and I think it does us credit to look at some of those transitional arrangements to see what can be done. I also agree with the noble Baroness, Lady Barker, that this House has at its core the belief that every citizen in this country has a right—regardless of creed, colour, background, religion or sexual orientation—to have equal access to the services that we pay for. It is something that we debated at great length during the passage of the Equality Act (Sexual Orientation) Regulations 2007. As a House, we put beyond doubt that no one should be denied equal access to services simply because of the way they were born. This provision flies in the face of that principle.

To the noble Lord, Lord Anderson of Swansea, I say that it cannot be right, equally, for public servants to pick and choose which laws they will and will not implement. That is a recipe for chaos. I think my noble friend on the Front Bench was saying that this would open the door to allow Hindus, for example, to refuse to marry people who marry outside the caste. It would also open the door for Catholic registrars to have the right to refuse to marry divorcees. It would give registrars the delegated powers of this House and of the other place. That is not something that we should permit, no matter how tempting the case.

The other uncomfortable feeling I have is the notion that simply having a strong religious belief against gay marriage entitles you to be exempt from the law, but that having the opposite and equally strong religious conviction does not. The right reverend Prelate knows that the church was very happy to ensure that the provisions of this Bill could come into force only when religious organisations, such as their own, decided they should. There is no conscience clause there: no individual priest or cleric who is a registrar is allowed to opt in, no matter how strong their conscientious

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belief that same-sex marriage should be allowed to be performed in religious settings. If a conscience clause is so desirable, I make this offer to the right reverend Prelates the Bishop of Hereford and the Bishop of Leicester. If you are prepared to accept a conscience clause on this side, help me to craft a conscience clause for the clerics and priests in the Church of England who wish to opt in to registrar marriages. You have got your lock: attacking ours is not, in my view, a clever move.

10.15 pm

The Lord Bishop of Hereford: I do not think that the initiative for the quadruple lock came first from the Churches. Rather, it was an offer made to us because of our concerns about the legislation and appeals to Europe. Those were the concerns that lay behind that.

Lord Alli: I will repeat my offer. I am really happy to work with the right reverend Prelate the Bishop of Hereford, or the right reverend Prelate the Bishop of Leicester. If a conscientious clause to allow registrars to opt out in civil marriage is so important, I will work with him to craft a similar clause to allow registrars in the Church of England to opt in. Conscience is not a one-way street. It goes both ways. If you want to opt out, we must come back and question why we cannot opt in. It is about more than just one conscience. We all have a conscience and mine tells me that this amendment is wrong in principle.

Lord Brown of Eaton-under-Heywood: My Lords, I, too, confess to having some sympathy with the amendment, particularly as diluted by the noble and learned Baroness, Lady Butler-Sloss. However, I hasten to add, I do not have enough sympathy actually to support it. It would represent the thin end of a dangerous wedge and set a troubling precedent. I recognise of course that there are some limited exceptions to the obligations on doctors and certain others but I think that, without exception, they relate to cases where there is some physical relationship between the person being exempted from a public duty and somebody else.

The closer analogy is perhaps with incumbent judges. It has never been suggested that judges should be free on grounds of conscientious objection to refuse to take certain cases. Proposed subsection (3) in the amendment refers to “religious or other belief”. Suppose that a judge strongly objects to indeterminate sentences, whole-life tariffs, automatic sentences, rules such as “two, three strikes and you’re out” or, in days past, to divorcing people. Catholic judges were from time to time, as the noble and learned Baroness will confirm, obliged to pronounce in divorce cases. Indeed, those of us who sat here as Law Lords, and then across the square as Supreme Court judges, routinely as part of our duties sat on Privy Council appeals. From time to time we would be confronted with final appeals, often from the Caribbean, in capital cases. Is it suggested that it would have been open to a member of the court to decline to take such a case on the grounds of a religious or other strongly held belief?

Very simply, public servants should almost without exception—save in these physical relationship cases—serve the public according to the law as democratically

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enacted. They should not seek to shed what they regard as their less palatable duties on to long-suffering colleagues.

Lord Anderson of Swansea: Am I correct in saying that it is not a question of a judge declining to sit on a particular case? If a judge had a particularly well founded objection in principle, and that was well known, it is likely that the case would not in fact be allocated to him.

Lord Brown of Eaton-under-Heywood: I do not believe that to be so.

Lord Mackay of Clashfern: I am not so sure about that. Those who arranged the judicial calendar did have some regard to questions of that sort when there were a number of judges to be allocated.

I want to draw attention to the facts found in the Ladele case about certain local authorities. It was found practical, in some local authorities, to respect the conscientious objection of particular registrars. If it is possible to do that and still provide the service, it seems to me that the provisions of the European Convention on Human Rights apply in respect to religious belief. As I understand it, people’s religious beliefs are to be given effect except when they conflict with the rights and obligations of others. Where a local authority was able to make that kind of adjustment it was perfectly reasonable for it to do so, and that is what it did. I think this clause as proposed is intended to do that.

I agree that it may be wise to restrict it to those who are already registrars, as the changes to the law affect their situation. However, the idea that it should be ruled out altogether because you could object on other grounds strikes me as not a particularly attractive argument. I remember having a discussion about this very sort of thing with the noble Baronesses on the Front Bench when the Equality Act 2010 was a Bill. I did not get any further with them then than I am likely to now.

Baroness Barker: My Lords, I listened to this debate with great care. It is one of the most important we have had. It was very telling that the noble Baroness, Lady Cumberlege, refused to consider the application to other groups of the principle that she invites us to accept. I thought that was very, very telling. Going back to the points I made earlier today, I defend the right of religious organisations not to like gay people, and to treat gay people differently. I defend their right to do that. I do not defend the right of individual public servants to determine the level of service given to a member of the public according to their private views.

I listened to the noble Lord, Lord Dear, talking about his earlier amendment, which had a similar effect. He talked about a situation in which public servants remove themselves and walk away. How would you feel, as a member of the public turning up for a service that you and everybody else are supposed to be allowed to have, if the person behind the desk walks away? How would you like that to happen to you on one of the most important days of your life? Would

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you like to have a really important ceremony in your family officiated by somebody who quite plainly does not like you?

Lord Anderson of Swansea: Surely there is not likely to be any situation in which a couple go to a registrar who is seated at a desk and that registrar walks away from them. The position is clear. The authority would know in advance who is coming, and there would be no insult to the individual couple because a registrar there would have no objection in conscience. There is no way in which an individual couple could be injured in the way the noble Baroness describes.

Lord Dear: If I may respond, that situation is really an exercise of emotion rather than fact. The likelihood of a registrar suddenly seeing a gay couple in front of them and turning on his or her heel and walking away is so fanciful as to be almost ludicrous. I would expect to find that people signal their objection before the likelihood occurs. A registrar in this position would signal that, from a matter of conscience, they cannot conduct that marriage. They would make that known to whoever runs that office and somebody else would be in place. I certainly do not envisage—and I certainly would never support—a registrar turning on their heel on the wedding day, walking off and leaving the vestry or the registry office completely open. That is not within my frame of reference at all.

Baroness Barker: But you are left with the possibility. What happens in a rural area where there are not that many registrars and a lot of people of a particular religious belief who do not agree with this?

Lord Dear: With the greatest respect, we are trying to get to the facts in all these debates. If I may say so, the noble Baroness is painting a picture that is so unlikely to happen as to be almost irrelevant.

Baroness Barker: But which is none the less possible.

Baroness Cumberlege: I live in a rural area and I looked into this. In rural areas particularly, registrars work in teams. It is like a team ministry in the church: a number of registrars serve several different registry offices. That is certainly what happens in my area.

Baroness Barker: None the less, I return to the point: the noble Baroness wishes to put in legislation the potential for some of our citizens to be treated as second-class. That, I am afraid, is not acceptable. In this House we sit and debate whether legislation should be introduced partially, in stages or whatever; we decide what the law is, what is fair and what all our citizens have the right to expect. Why should this be different?

Baroness O'Loan: My Lords, can the noble Baroness explain what in this amendment makes her think that the scenario that she painted could happen? As I read the amendment, it is very clear in saying that there will be a registrar—if there is a registrar who does not wish to conduct the marriage, another registrar will be provided, but there will be a registrar. It would help if the noble Baroness could explain why she thinks that would not help.

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Baroness Barker: Because the potential exists for that to happen. To go back to some recent examples, what if, prior to the implementation of this, a local authority could see this coming and proceeded to employ a lot of people who had an objection to performing this kind of ceremony? I just do not like that we are going to set down in law the fact that some of our citizens will be treated differently in the public space. I accept that they will be treated differently in the religious setting, but in terms of public services that is wrong.

Baroness Berridge: My Lords, it is clear from all these debates and amendments that the feelings on either side are incredibly deeply held. As a member of the Joint Committee on Human Rights, I can tell your Lordships that we were trying to put forward proposals that were proportionate, reasonable and—in my view; obviously I am not speaking on behalf of other members of the committee—sought to strike some kind of balance. The proposal that has been put forward is limited and reasonable.

I have been sent the same e-mail about the governing body of registrars, saying that there was not a problem, so I specifically asked Members of the other place if they had received representations. The Member for Bermondsey, Mr Simon Hughes, said he had received letters from individual registrars asking him to make some provision in the Bill. Obviously no member of the committee is going to put forward a proposal that is not based on some form of evidence, so there were those concerns.

Secondly, I have read many papers during my time on that committee but I recall reading that in Holland—one of the most liberal societies in continental Europe—they have made some provision for freedom of conscience among their registrars. So I ask my noble friend the Minister, when considering the proposal, to look at what Holland has done to try to balance these rights.

10.30 pm

Lord Browne of Belmont: My Lords, I am pleased to support Amendment 16, in the name of the noble Baroness, Lady Cumberlege. As a former teacher, I am well aware that for many years the law has respected the conscientious objection rights of atheist teachers, who are not required to officiate at religious assemblies or to teach RE if they do not wish to do so. This respect for conscience in the workplace is despite the fact that, first, teachers are public servants, paid for by the taxpayer, and secondly, that religious assemblies and RE are public services. I have to say that this is absolutely right. Imagine living in a country, the laws of which were such that they would say to atheist teachers, “You must be willing to officiate at a religious assembly or lose your job and your livelihood”. That would be totally wrong.

The truth is that if the Marriage (Same Sex Couples) Bill is introduced unamended, far from creating the difficult precedent that the Minister in the other place suggests, we would be departing from an important liberal democratic precedent that makes it plain that there is space for different people, with different beliefs and identities, to be employed in the public sector.

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I am well aware of the national registration panel’s briefing, which we have heard about this evening. In response, I should like to make two points. First, it does not seem very well connected to registrars. It is clear from the judgment in the Ladele case that there are a number of local authorities that make use of the fact that they do not have to designate all registrars as both marriage and civil partnership registrars precisely because conscientious objection is a concern for at least some registrars. I find it very strange that the panel seems unaware of, or is at least unwilling to acknowledge, this practice.

It is very important to remember that when, in 2005, your Lordships’ House scrutinised what was then the Civil Partnership Bill, the flexibility arising from the dual designation system was apparent and an expectation of reasonable accommodation in practice was expressed by the Labour Minister at the time, which was in sharp contrast to the Conservative Minister today. On 13 July 2005, the late Earl Ferrers said to the then Minister, the noble and learned Baroness, Lady Scotland:

“Is the noble Baroness saying that, although we must have tolerance, understanding and everything like that given the fact that other people have views different from ours, a registrar who holds certain beliefs, feels that they cannot carry out that part of their duty and says so will not be threatened with dismissal? As I understand it, they can be, for not doing their work. That is just as intolerable and non-understanding as the other way round”.

To this, the noble and learned Baroness, Lady Scotland, said:

“There are the Employment Equality (Religion or Belief) Regulations, which should preserve the opportunity for those who work to adhere to those religious beliefs. When many public functions are performed, there are a number of people of different beliefs, orientation and structures who can fill the place … Those who manage such situations sensibly if there is a conscientious genuine belief usually make alternative practical arrangements so that there is not embarrassment for the people who come forward for the service, and so that there is not the struggle of conscience for the person who legitimately wants to carry out a good job. Usually, both can be accommodated. In terms of delivery of a service in accordance with the law, public authorities must be able to make provision to enable the law of this land to be enforced”.—[Official Report, 13/7/05; col.1154.]

Secondly, I am disturbed that the panel brushes aside the hugely important issue of conscientious objection on the basis of administrative complexity. This is a very small price to pay for upholding our liberal democratic traditions. The noble and learned Baroness, Lady Scotland, did not take this view of reasonable accommodation and although Islington Council deliberately choose not to with respect to Lillian Ladele, the fact that other local authorities have satisfactorily provided reasonable accommodation suggests to me that it is eminently possible.

The marriage Bill before us today, however, presents a much worse threat to freedom of conscience than the Civil Partnership Act. The truth is that, although there was nothing in the Civil Partnership Act to stop local authorities like Islington insisting that all registrars were designated as both marriage and civil partnership registrars, the fact that local authorities do not have to do this means that there is potential for adopting a more enlightened approach. This has clearly happened in some areas, as the noble and learned Baroness, Lady Scotland, rather suggested it should. There will,

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however, be no scope for this in relation to the marriage Bill because people will continue to be designated simply as marriage registrars. There will not be an option of being designated as a different-sex marriage registrar or a same-sex marriage registrar. In effect, the line adopted by Islington, with no potential for reasonable accommodation, will be extended right across the board.

The national panel for registrars may not be bothered about conscience but I believe that we, as part of the Parliament of a leading liberal democracy, have a duty to be bothered. I submit that the marriage Bill would be dangerously illiberal without Amendment 16, and I commend it to the Committee.

Baroness Noakes: My Lords, I shall be brief because I am sure that we want to hear from the Front Benches fairly soon. I have been slightly disturbed by this debate, in part because one of the precedents that has been used to support this conscience objection is abortion. To try to equate the conscience provisions allowed in respect of abortion with those that might be put in place for civil marriage is to compare chalk and cheese. It is very inappropriate to try to do that.

The Lord Bishop of Hereford: I am sorry to interrupt the noble Baroness and take up more time but I do not think that any of us is equating. The point we are making is that legislation already exists for conscience on principle and religious belief. That is the point. There is no equating.

Baroness Noakes: I completely understand that but the examples given are relatively few. One of them is abortion and it is very different from same-sex marriage, which concerns two people who love each other wishing to formalise their relationship. We cannot compare that with the circumstances that led to the law allowing conscience objections in relation to abortion.

Similarly, we are not talking about teachers dealing with the law of the land. Teachers have been given a conscience opt-out in relation to something that is not the law of the land. If the Bill is passed, as I hope it will be, it will become the law of the land and same-sex marriage will become part of the law of the land, and public servants should, in general, be required to comply with the law of the land.

I understand what the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lady Berridge said in relation to the Joint Committee on Human Rights—there might be a need for transitional provisions—but I cannot see that there is a need for the provision put forward by my noble friend Lady Cumberlege. I am not sure that a transitional provision is needed. It will depend on whether a number of people are genuinely affected by this, and I do not think that we have conclusive evidence of that. We have heard that in the past some local authorities have made arrangements on a transitional basis with those who have had problems in applying the law in relation to civil partnerships, but it may well be that we can achieve any transitional issues that arise through non-legislative means. Putting something in the Bill would seem to elevate the fact of same-sex marriage to

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something way beyond where it needs to be, when it is, as I said, simply about two people who want to formalise their relationship in accordance with the law of the land.

Lord Carlile of Berriew: My Lords, I have listened to this debate with some concern because we have heard references to conscience in a space in which conscience may not belong at all. We have heard about shades of grey in this debate; this evening, we have had shades of brown. I strongly agreed with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, when he referred to the judiciary. What occurs in these situations? Things may have changed a little since the noble and learned Lord, Lord Mackay of Clashfern, was Lord Chancellor. Perhaps in those days county court judges in Welshpool, Caernarfon or Lambeth were able to pick and choose their way through cases they liked or did not like. However, if I may respectfully say so, the reality is that a judge is a very senior form of public official who hears the case that is presented before him by an often hard-pressed and unsympathetic listing officer. It is form of appointment, as a doctor’s appointment might be.

Equally, if somebody wishes to enter into a civil marriage, what qualifications are needed? They have to establish that they are 16 or over, free to marry and not closely related. There is no issue of conscience involved in that. Then they have to make a convenient appointment to attend before the registrar who, like a judge hearing a case, happens to be on duty on that day. They have to produce some documents—it is a bit like opening a bank account—including their passports, birth certificates and a utility bill or bank statement. Once the appointment has been made with those documents, they attend and there is no liturgy whatever. They are required to exchange promises if they are marrying, but there is no set form. Of course, the registrar helps out if required but they can write their own promises and exchange them quickly and informally. Where is the conscience aspect of this? The registrar is simply a public official providing the statutory facility to enter on a register the names of two people who wish to be married. That is the beginning and end of it. It could not be more different from going to see a vicar, priest, rabbi or imam to seek a marriage founded on a religious belief.

I have huge respect for my noble friend Lady Cumberlege and it is with great regret that I disagree with her so profoundly. However, on this subject, I think we are allowing this debate to trespass into an area in which it does not belong. I urge your Lordships to reject this amendment accordingly.

Lord Elton: My Lords, it is trespassing very close on bedtime, too, so I will not take much of your Lordships’ time. I have an amendment in this group which I think your Lordships have forgotten. It is very short and I will try to be the same myself. I start by picking up what the noble Lord has just said. You make an appointment before you go to see the registrar. You do not walk in the front door and say, “I would like now to be married. This is my happy day”. Therefore the scenario the noble Baroness painted could not occur.

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Baroness Brinton: That is not true.

Lord Elton: Heads are being shaken all around. I would like to hear.

Baroness Brinton: I apologise for intervening. It is quite possible not to be married by the registrar who you see in the previous meeting. It also quite possible for people to have names that do not distinguish their gender.

Lord Elton: The registrar they meet will be able to distinguish their gender and he will put that into the machine and the right people will be there.

Baroness Brinton: Why?

Lord Elton: That is what the amendment would provide, which is what we are talking about. Let us not spend too long on this. I have an amendment which simply gives an exemption to the registrar and the superintendent registrar but leaves the service under the control of somebody who is committed to both sorts of marriage, which seems to me is absolutely essential.

There were objections about this opening the door to all sorts of things. The noble Baroness, Lady Thornton, suggested objections to mixed-race marriages. I think that her Amendment 16 lacks a definition. It should define acceptable grounds for religious and conscientious objection. It could be a referral to marriages carried out under the appropriate clause of the Bill. That would close that door and restrict it entirely to this. One does not have to be an enemy of the Bill to see merit in what my noble friend proposes. There is merit in protecting the consciences of people who do a good public service and who, like other people in public services, should be allowed to do it within the limits of their conscientious beliefs.

If we are coming to a compromise, the noble and learned Baroness, Lady Butler-Sloss, has put her finger on it, as has the Joint Select Committee, and there should be an exemption—I think it is called grandfathering—for people already in post before this Bill becomes an Act. I have said my piece. My noble friend is in the right area but it needs to be focused.

10.45 pm

Baroness Thornton: My Lords, the noble Lord, Lord Elton, is of course right. It is time we moved on and went home.

Amendments 11 and 11A remove registrars’ exemption from the list of individuals who may not be compelled to perform same-sex marriage, meaning that the registrars would have the right to refuse to solemnise same-sex marriage. Amendment 16 provides for registrars to refuse to perform or be involved in performing same-sex marriage on the ground of sincerely held belief. However, it places a corollary duty on the registration authority to provide a sufficient number of registrars to perform marriages of same-sex and opposite-sex couples.

I agree very strongly with my noble friend Lord Alli, the noble and learned Lord, Lord Brown, and the noble Baroness, Lady Barker, who got it just about right. I find it strange that noble Lords are rubbishing

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the public statement from the national panel for registration because they do not like it. The national panel is a national association of registrars which said that it consulted during the consultation on equal marriage among its members and has given us its legitimate view, for which I am very grateful, as it is very helpful. Noble Lords should hear what that statement says, which is that the national panel is not asking for a conscience clause on the conduct of equal marriage.

I am also slightly puzzled about the evidence from the Joint Committee on Human Rights, which I read over the weekend. For once the committee is very ambiguous about its thoughts on this. Some noble Lords who have spoken today are also on the committee and clearly have very strongly held views. I respectfully suggest that if the committee wants to be more decisive, it needs to go back and have another look at this. I am not sure that the views that it has taken so far have helped the House. If it has reached that position, we need to look at its evidence and see it for what it is—an ambiguous report.

This amendment goes against the principle that we upheld consistently—and voted for—when we were in Government that public services should be delivered in accordance with the laws passed by Parliament and without discrimination. Freedom of belief is a hallmark of democracy and individuals should be able reasonably to express views that relate to same-sex marriage in a professional manner. Public services should also be delivered in a non-discriminatory way.

Registrars provide a public service, implementing the marriage laws as passed by Parliament. Registrars have never previously been given an opt-out on things like performing civil partnerships or remarrying divorced couples—even on the grounds of profoundly held religious belief. Registrars are public servants and it is right that they have a duty to dispense their responsibilities and to deliver services without discrimination. The recent case of Ladele at the European court—a registrar who wanted an opt-out from performing same-sex civil partnerships—shows that in this respect UK domestic law stands up to the challenge under European law. The court found that Mrs Ladele could be required by her employer to register civil partnerships. Performing same-sex civil marriage ceremonies should be no different.

On Amendment 16, I am very pleased that the noble Lord, Lord Elton, seems to recognise that the risks I drew to the attention of the House are legitimate. Notwithstanding that the noble Lord, Lord Martin, and my noble friend Lord Anderson disagreed with me, surely it is our job to test legislation and the amendments to legislation to see whether they pose risks or have unintended consequences. It is very clear that this amendment could open the door to the conscientious objection of registrars to performing civil marriages on a range of issues beyond the gender of the parties, involving, for example, the remarrying of divorced couples or interfaith relationships. We believe that this is an unacceptable risk.

Maria Miller has written that the locks in the Bill specifically exclude,

“registrars and superintendent registrars, making clear that these public servants will have to be ready to take part in marriages of same sex couples. We need to ensure that we strike the right balance between an individual’s right to express their religious

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beliefs at work and the rights of people not to be discriminated against because of sexual orientation, and we think that the Bill properly draws that balance. The recent case at Strasbourg of Ladele ... showed that in this respect, UK domestic law stands up to challenge under the Convention”.

The Secretary of State is right and we should not accept these amendments.

Lord Wallace of Tankerness: My Lords, I start by thanking my noble friend Lady Cumberlege for introducing this amendment, which has certainly given rise to a good debate. There are clearly some strongly held views on both sides and some powerful arguments, too. I have listened carefully but it is important that I set out and clarify the Government’s position. The noble Baroness, Lady Thornton, has just quoted the Secretary of State, so it may not come as a huge surprise but it is important to give the reasons why we take that view. As the noble Baroness indicated, it is a view that was argued on behalf of the United Kingdom in the European Court of Human Rights in the Ladele case, and the court found that our law at present regarding civil partnerships falls within what is legitimate under the European Convention on Human Rights.

Marriage registrars are public officials performing statutory duties on behalf of the state. We believe that it is an important principle that they should perform their duties in accordance with the law, as decided by Parliament, and without discrimination. I noted—I hope reasonably accurately—what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said: that public servants should, with very limited exceptions, serve the public according to the law as democratically decided. That is fundamentally the Government’s position. If this Bill is passed, the marriage of same-sex couples will be lawful in England and Wales, so marriage registrars must perform their duties in relation to the solemnisation of marriages between both opposite and same-sex couples, without discrimination.

I paid attention to the parallels made with areas such as abortion and conscientious objection in religious education, which were powerfully and sincerely argued. However, it is too simplistic to draw a parallel between a conscientious objection regarding a doctor not performing an abortion and one where a registrar seeks conscientious objection not to perform a same-sex marriage. They are not comparable. For some people with a very strong religious conviction the right to life is paramount and in such circumstances, the argument that the state should not require them to act against their conscience is highly persuasive. I do not think that anyone would reasonably say that same-sex marriage can be seen in the same terms. That was picked up by the noble and learned Baroness, Lady Butler-Sloss, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and my noble friend Lady Noakes.

The most significant difference in terms of the Abortion Act exception is that medical staff do not discriminate on the basis of their patient’s personal characteristics. They do not pick and choose which patients to treat on that basis; for example, on the basis of a particular person’s race or religion. The exception being sought for registrars does precisely that, on the basis of the couple’s sexual orientation. Moreover, for medical staff who object to taking part in abortions that is only a small part of their daily

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duties, but for a registrar conducting marriage ceremonies, conducting marriage ceremonies is at the heart of what they do.

Reference was also made, not least by the noble Lord, Lord Browne of Belmont, to teachers. I understand that the exception there is not framed as a conscience clause, as such. The provision relating to the ability of teachers to opt out of teaching RE is set out in Sections 59 and 58 of the School Standards and Framework Act 1998. These specify that if you teach at a non-faith maintained school, you are not required to teach RE and cannot suffer any detriment because of that refusal. If you teach at a foundation or voluntary-controlled faith school and are not a reserved teacher, you are not required to teach RE, and, again, cannot suffer any detriment because of that refusal. If you teach at a voluntary-aided faith school, refusal to teach RE in accordance with the religious tenets of the school might well affect your remuneration or promotion, or you might not be employed in the first place. Unless a teacher is specifically appointed to teach religious education they cannot be compelled to do so, regardless of whether they are an atheist or not. Therefore, while I hear the arguments and understand where they are coming from, the parallels are not particularly helpful in dealing with what we are discussing.

The Government are clear that in extending marriage to same-sex couples, the Bill should protect and promote religious freedom. That is why, as we heard again today, it contains a quadruple lock of religious protections. However, the functions performed by marriage registrars are civil in nature. This is also the case in relation to their functions when they have a role in religious marriage ceremonies, such as taking notice of marriages, issuing certificates and being present in cases where there is no authorised person. I am grateful to my noble friend Lord Carlile of Berriew for describing what can happen when making an appointment, and later with the ceremony. Some would say that the example given by my noble friend Lady Barker would be unlikely, because by that stage people would know what was about to happen. Nevertheless, it could still be the case that someone would turn up for their initial appointment and suddenly find themselves met by someone who refuses to see them and take their details. The personal hurt that that could cause should not be underestimated.

Lord Elton: My Lords, the protection extends to conducting the marriage, not preparing for it.

Lord Wallace of Tankerness: My Lords, following that logic, surely a conscientious objection must be as much to facilitating a marriage as performing it—otherwise, it puts into question what the nature of the conscientious objection is.

As public officials, marriage registrars must perform their duties for all members of the public, without discrimination on grounds of sexual orientation or any other matter. They should not be able to pick and choose which members of the public they provide their services to. Amendment 16 refers to,

“consent to the taking place of, a relevant marriage ceremony to which he has a conscientious objection … The conscientious objection must be based on a sincerely held religious or other belief”.

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The noble Lord, Lord Alli, and my noble friend Lord Carlile of Berriew picked up on the point that that could include the marriage of divorcees. No doubt the right reverend Prelate will correct me if I am wrong, but certainly until relatively recently it was the position of the Church of England that it would not marry divorcees. Therefore, in many cases divorcees who could not marry had little choice but to go to a registrar. If the registrar adopted the same religious view as that taken by the Church of England and sought exemption through conscientious objection, it would beg the question of how the couple could ever find someone to marry them unless perhaps they found a non-Church of England church that would be willing to do so. The door is open to that kind of religious and conscientious objection. It is not a reasonable position that a public official should refuse to provide a service to a member of the public.

The right reverent Prelate the Bishop of Hereford and my noble friend Lady Berridge referred to the fact that the JCHR had reported on this. I rather share the view of the noble Baroness, Lady Thornton, that the position is slightly mixed. This is not a criticism, because clearly the committee heard difficult, competing evidence, and no doubt competing views such as those heard by the Committee this evening. Of course, the Government will give a considered response to the JCHR. It is a very tight timescale, but we would aim to do so before Report. I hope we can do that.

The Government are confident that the Equality Act 2010 provides the right balance between protecting the right of freedom of expression and the right to manifest one’s belief, alongside the need to protect the rights of others. As was said on a number of occasions in this debate, the European Court of Human Rights, in the Ladele case, supported this view. I will not go over all the details; they were well rehearsed. The United Kingdom refuted the case put by Ms Ladele when she went to the European Court of Human Rights. We argued that our law strikes the right balance between an employee’s right to express their religious beliefs at work and the rights of people not to be discriminated against because of sexual orientation. We believed our law was compatible with the convention and that the Court of Appeal made the right decision under domestic law and the convention, given the particular circumstances of the case. As has been noted, the Court of Human Rights generally upheld that view and noted that the court generally allows national authorities a wide margin of appreciation when it comes to striking a balance between competing convention rights. It held that the national authorities in this case, the local authority employer and the domestic courts, did not exceed that margin of appreciation available to them.

11 pm

We recognise the concern that a marriage registrar who held a belief that marriage should be only between a man and a woman could find him or herself in a difficult position once marriage is extended to same-sex couples. Much has been said, too, in the debate about the national panel for registration, which represents the local registration service across England and Wales

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at a national level. Reference has also been made to the briefing that has been provided. In a letter to the Secretary of State as recently as 7 June, 10 days ago, the head of registration, coroner’s services and lead manager for cultural services, Jacquie Bugeja—I hope I do not do a disservice to her name—said:

“Secondly we have concerns that during the Bill’s passage there may have been repeated attempts to insert a conscience clause to enable registrars to opt out of marrying same-sex couples. As you are aware registrars are local authority employees and are expected to carry out all the functions that their role covers. At present this includes delivering civil partnership ceremonies. We do not believe that delivering equal marriage ceremonies will be any different and we strongly oppose the idea of such a conscience clause. Allowing some registrars to opt out of civil marriage for same-sex couples would be discriminatory and would cause administrative difficulties in delivering services. We consulted widely within the LRS during the consultation on equal marriage and we want to ensure you are aware that no member of the LRS has called for a conscience clause”.

I am happy to put this letter in the Library so that other noble Lords can see it.

I think the noble Lord, Lord Browne of Belmont, queried the position taken by the national registration panel and the right reverend the Prelate the Bishop of Hereford asked what evidence we had of the consultation, which it undertook itself—it was not the Government’s consultation. It had discussions within the service both during and since the public consultation on equal marriage. As a national representative body for registrars, I believe we have to accept its assessment of the view of its members.

Marriage registrars are public officials performing statutory functions on behalf of the state. Conducting marriage ceremonies is clearly part of their functions. It would not be right to allow them to discriminate by providing their services to some individuals but not to others—I recognise the comments that have been made—not even on a matter of conscience. I have no doubt we will return to this on Report, but in the mean time I ask my noble friend to withdraw her amendment.

Baroness Cumberlege: My Lords, I would like to start by thanking all noble Lords who have taken part in this debate. I would particularly like to thank the right reverend Prelate the Bishop of Hereford. I thought it was very interesting how he introduced the House of Lords and Commons Joint Committee on Human Rights and I would like to thank my noble friend Lady Berridge for also commenting on that, especially as she was part of that particular committee.

I want to be brief but I just want to raise the issue that the noble and learned Baroness, Lady Butler-Sloss, mentioned. I do not want to be ungracious. I think there really is a very, very difficult position in terms of transitional arrangements and I hope that the Government will choose to address that. I do not think that it goes far enough. Talk to a number of these registrars and they are very committed people who see themselves as having a vocation. To try and stop young people who want to enter into this field in the future would be a great disservice. I hope that in thinking about their careers in the future, we will introduce this conscience clause because I think it might be necessary in terms of recruitment.

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The noble Lord, Lord Anderson, mentioned small numbers and practicalities and I thank him very much for his support. I endorse again what my noble and learned friend Lord Mackay of Clashfern said about the approach already adopted by sensible and tolerant local authorities which allow those who hold objections to be accommodated. We are asking that the same should apply in the case we are discussing. We are not asking for a change in that but that that situation should continue in the future.

I say to the noble Lord, Lord Alli, that we are not refusing any couple same-sex marriages. We are trying to accommodate them as well as looking after the interests of registrars, many of whom I know would benefit from a conscience clause. I say to the noble Lord, Lord Browne of Belmont, that it was very interesting to hear about teachers and the situations they face. I do not agree with my noble friend on the Front Bench about doctors. Many doctors, particularly surgeons, choose which operations they want to perform. Not only do they do that, but many doctors also have a right to refuse to give contraceptive advice, so I think there is a parallel issue there.

My noble friend Lord Elton wants a stronger definition of what constitutes acceptable grounds for conscientious objection. Proposed new subsection (4) of our Amendment 16 places the burden of proof of conscientious objection

“on the person claiming to rely on it”.

Therefore, only individuals with a genuine and

“sincerely held religious or other belief”

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may refuse to conduct same-sex marriages, and may do so only if they can prove that their objection is based on genuinely held religious or other beliefs. That is not an easy test to satisfy but I very much want to accommodate my noble friend and see whether we can go further on this.

Finally, I thank my noble and learned friend Lord Wallace of Tankerness for his summing up. Of course, I am very disappointed with it but I was interested in what he said about the national panel for registration. I have found it extremely difficult to get hold of the panel. When I rang it up, the staff said that they were too busy and discontinued the line. When I rang later, they said that the person I needed to talk to was not there. The panel does not have a website. It is extremely hard to find out with whom it consulted and how many people it represents. There is a paucity of knowledge which no doubt we will build up when we come to Report. I will read Hansard very carefully but I will certainly consider the possibility of bringing back this amendment, or, I hope, a much more perfected one, on Report. I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

Amendments 11A and 12 not moved.

House resumed.

House adjourned at 11.08 pm.