8 July 2013 : Column 1

House of Lords

Monday, 8 July 2013.

2.30 pm

Prayers—read by the Lord Bishop of Chester.

Lord Mackay of Drumadoon took the oath.

Child Safety: Video Games


2.36 pm

Asked by Baroness Massey of Darwen

To ask Her Majesty’s Government what age restrictions are applied to the sale of video games; and how they will encourage parents to safeguard children against inappropriate materials.

Baroness Garden of Frognal: My Lords, in 2012, we brought into force changes to the Video Recordings Act so that, unless they are entirely suitable for all audiences, video games must carry age ratings. The ratings system used is the pan-European game information, PEGI. It is an offence to sell PEGI 12, 16 or 18-rated games to those younger than the rating. The age ratings empower parents to make informed decisions about the suitability of games for their children.

Baroness Massey of Darwen: I thank the Minister for that comprehensive reply. I am sure that she is aware that some video games are extremely pornographic and violent and that, even for adults, there should be enforced regulation on them. Is she further aware that some parents and other adults buy these games for children inadvertently because the labelling is unspecific and unclear? Will she explain how the Games Rating Authority is dealing with putting better controls for parents on those games?

Baroness Garden of Frognal: The noble Baroness makes some valid points there. The PEGI ratings now have traffic light warnings to try to make it clearer which are the particularly inappropriate games for children. It is also trying to make clear that the age-rating symbols relate to the content of the game, not to the playability, because that has also been a misunderstanding. There are prominent statements on the website, askaboutgames.com, which has had a quarter of a million visitors since it was set up, and which has a great many explanatory aspects. The noble Baroness is right that there are different sorts of unsuitability—but there are symbols on the PEGI guidance as to whether the game involves violence, pornography, fear, and so on, which again should guide both parents and young people.

Lord Storey: My Lords, the Minister will be aware that parents generally have regard to the classification of films by the British board. That is probably a result of widespread consultation with parents. Will the games industry regulatory body have the same consultation with parents to ensure that they understand how the labelling and marking works?

Baroness Garden of Frognal: My noble friend makes a valid point. Of course, we need to get the communication to parents as accurate as we can. The difference between film classification and games classification is that games are interactive, children are playing them with people on screen, and the graphics have become ever more lifelike and realistic since the days when they were little cartoon characters, so it is really important is that both children and parents are aware of what these games mean.

The Earl of Listowel: My Lords, is the Minister also concerned about the number of children who become so engrossed in these games that they neglect their friendships, their schoolwork and their sports? Is advice being given to parents about tackling the problem, and are services available to parents when children are so engrossed in games that they neglect the rest of their lives?

Baroness Garden of Frognal: The noble Earl is right to highlight the addictive nature of some of these games. There are various parental controls. There can

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be timings, for instance, put on the games to ensure that children automatically have a break after a certain length of time. However, a lot of this will be up to parents, and the more guidance we can get to them the better because, as the noble Earl knows, these games can be addictive and can cause children to spend an awful lot of time on them.

Baroness Uddin: My Lords, does the Minister accept that, while it is very important to ensure that parents take their full responsibility, parents must know the fullest amount of information available about the illegality of some of these games? I note the fact that this is not all the Government’s responsibility, but what is her department doing to ensure that information is communicated to parents? Also, many parents do not speak good enough English, so how would she ensure that broader ranges of parents are aware of these games being illegal?

Baroness Garden of Frognal: There are also a great many initiatives from internet service providers, which are collaborating very constructively with the Government. There is the Internet Watch Foundation, for instance; we are also working with the Child Exploitation and Online Protection Centre, CEOP, to try to make sure that there are mechanisms within the games, which can be controls. If there are ways in which children can be identified from playing the games, they will be prevented from doing that. It is ongoing work, and we are working very constructively with all those concerned to make sure that the information gets out correctly.

Lord Eden of Winton: My Lords—

Baroness Howe of Idlicote: My Lords, would the Minister—

The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford): Forgive me, but it is this side and then we will come to the noble Baroness, Lady Howe.

Lord Eden of Winton: I am grateful, my Lords. Very quickly, while welcoming very much the answers that my noble friend has given, I wonder whether she is aware that, whether or not these games are good in intent for children, they are very attractive to them. Placing the onus on the parents is therefore rather a heavy duty, and we should not leave them alone. Will she give consideration to tackling this problem at source, with the producers and purveyors of these products being taxed or their products made less attractive to them financially in some way?

Baroness Garden of Frognal: As I made reference to before, we are working very constructively with the internet service providers’ industry, which is as concerned to make sure that inappropriate materials are not accessed by young people online. The providers are very well aware of the damage that it can do to young children to find themselves, perhaps inadvertently, drawn into a game which shows extreme violence or engenders extreme fear. It is a matter for all parties to work together on this one.

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Baroness Howe of Idlicote:My Lords, to finish what I was saying, would the Minister further urge the games regulator, the GRA, to consider following the example of the BBFC by promoting understanding of classification through a programme of specific visits to schools, along with education through its website and apps?

Baroness Garden of Frognal: Again, the noble Baroness makes a very helpful point. There is a lot of information going out to schools in the form of posters. Of course, internet safety is one part of the school curriculum that tries to ensure that young people themselves are aware of what the dangers are. We are getting co-operation, and indeed funding, from the providers.

Lord Stevenson of Balmacara: I do not know whether I heard the noble Baroness correctly. I think she said that traffic lights were being introduced on to the packaging for these things. It strikes me that indicating red for danger or red for encouragement might be a difficulty in this area. My main point is that PEGI is an industry-led body and that one increasingly finds that in video games inserts are being used from films and related materials. Is there not a case for trying to get co-ordination across this, and having some sort of accommodation with the BBFC?

Baroness Garden of Frognal: The BBFC is indeed involved in this. It has just become the independent reviewer of the content of mobile operators and, as the noble Lord says, there is some overlap between what goes on in the film industry and what goes on in the video games industry. It is a question all the time of trying to keep one step ahead of cunning children, who have a tendency to be one step ahead of their parents.

Education: Sex Education


2.44 pm

Asked by Baroness Gould of Potternewton

To ask Her Majesty’s Government which organisations and individuals have challenged their proposed changes to sex education.

The Parliamentary Under-Secretary of State for Schools (Lord Nash): My Lords, as part of the national curriculum review, the Government received representations from organisations and individuals on the draft curriculum for science, which includes information on reproduction and the human life cycle. A number of organisations, including the Sex Education Forum, were signatories to a letter to the Times on 15 April outlining concerns that the science programme of study omitted detail on reproduction and growth. I assure noble Lords that we have taken their representations on board, and revised programmes for study have been published this morning.

Baroness Gould of Potternewton: I thank the Minister for his reply. I have some inkling of what is in the Statement, although I look forward to reading the document in full. Does he accept that the proposed

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watering down of the biological sex education content within that document means that many pupils will leave primary school with little knowledge of the human life cycle? Within that context, does the document state explicitly that the menstrual cycle shall be taught without details of hormones? Can the Minister indicate how that is going to be monitored in schools? If a teacher does in fact mention hormones, are they likely to be disciplined?

Lord Nash: My Lords, in the new curriculum there is as much, if not more, about reproduction and the life cycle as in the previous curriculum. Key stage 2 science includes changes experienced in puberty, but this Government believe that it is right that teachers should make the final decision about when and how that content is covered. Of course, Ofsted inspects to ensure that pupils receive the right cultural, moral and social experience.

Baroness Walmsley: How many young people themselves have been consulted about the content of this curriculum? If a lot of young people had been, I am sure they would have told the Government that they want to know the information in time, before the hormonal changes take place. Timeliness is related not only to puberty but to contraception, sexual health and the prevention of unwanted teenage pregnancy.

Lord Nash: My noble friend is quite right in her observations. The non-statutory notes and guidance specifically say that pupils should draw a timeline to indicate stages in the growth and development of humans, and should learn about the changes experienced in puberty.

Baroness Massey of Darwen: Have comments by the National Youth Parliament been taken into account? Could the Minister give us a hint as to the Government’s response?

Lord Nash: We have taken its comments into account, but I am afraid that I will have to write to the noble Baroness in detail to answer her question.

The Earl of Listowel: What progress are we making in terms of how our closest neighbours deal with teenage pregnancy? What are we learning from them in their teaching of sex education?

Lord Nash: Our teenage pregnancy rates are now at their lowest level in more than 40 years, and data for 2011, released by the Office for National Statistics in February this year, showed a continuing decline. The Government believe that the best protection is a good education, and we believe that our curriculum reforms will strike the right balance to allow all schools to improve their focus on the issues that are relevant to the circumstances.

Baroness Brinton: My Lords, I am sure that the House is pleased that the Government have put more about sex and relationships into the curriculum, but surely some concerns must remain if academies can

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choose not to teach it. How are the Government going to ensure that academies teach young people about sex and relationships?

Lord Nash: My noble friend is quite right that academies are not obliged to teach sex education, although, if they do, they have to have regard to the Secretary of State’s guidance on these matters. I repeat the point that Ofsted inspects for all social, moral and cultural provision in schools, and we will be ensuring that it focuses on this point.

Japanese Knotweed


2.49 pm

Asked by Baroness Sharples

To ask Her Majesty’s Government what progress has been made in eliminating Japanese knotweed in the United Kingdom.

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley): My Lords, we commenced a controlled release of Aphalara itadori to tackle Japanese knotweed in 2010. The signs are encouraging for the establishment of this highly specialist psyllid. Aphalara successfully overwintered but numbers remained low and so additional releases were made in spring 2012 and spring 2013. No non-target impacts have been observed by the programme of close monitoring.

Baroness Sharples: Will the psyllid really be enough to kill off this pernicious weed? There are increasing reports of wretched owners of land who have had their land affected by Japanese knotweed and have been refused mortgages. Why can we not give them natural Roundup which is unpolluted? I managed to kill off my knotweed a number of years ago.

Lord De Mauley: My Lords, experience from around the world has shown that biocontrol tends to take five to 10 years from the initial releases to achieve effective control. Despite poor summer weather since its release, Aphalara has shown that it can survive in small numbers and overwinter in the wild here. The question is how we can encourage it to achieve survival in larger numbers.

My noble friend mentions mortgages, and we are aware that some mortgage lenders have become reticent to lend if Japanese knotweed poses a threat to the property concerned. We have undertaken some work to estimate the impact of this. The RICS believes that recent concerns by valuers and lenders are often based on misunderstandings, and it consulted on that in 2011 in order to help valuers and mortgage lenders to understand the implications. Cornwall council has also provided guidance for mortgage lenders.

On the use of Roundup, I understand that others have also had success with it. Of course, it needs to be applied with care, and we are also looking carefully at a couple of other possible biocontrol options.

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Lord Dubs: My Lords, if the Government are not willing to legislate, can the Minister at least urge local authorities to co-operate locally? When a resident spots knotweed in an adjacent property, the local authority can be helpful in identifying the owner of that property so that something can be done about it. At the moment, some local authorities wash their hands of the problem.

Lord De Mauley: Yes, my Lords. I understand the point that the noble Lord makes. We have to balance, on the one hand, a determination to control this odious invasive species and, on the other, an imperative not to unnecessarily penalise people who are simply not in a position to do anything about it. However, I take the noble Lord’s point.

Baroness Gardner of Parkes: I did not take in the name of the treatment—it was “apha” something—but is there any risk of it becoming like the Hawaiian cane toad of Australia and proving to be a menace in itself?

Lord De Mauley: Yes, my Lords. It is called Aphalara itadori and my noble friend is entirely right. On top of research work that has already been done testing it against more than 90 plant species, we are going through a phased release over five years to make absolutely sure that it focuses entirely and exclusively on Japanese knotweed. That is a really important point.

The Countess of Mar: My Lords, Japanese knotweed is frequently found on publicly owned land, such as railway property and council land. In view of the fact that the Government seem to be totally unable to enforce regulations regarding ragwort, how can any rulings be given on Japanese knotweed?

Lord De Mauley: The noble Countess has a point but this Question is about the use of a biocontrol against it. She mentions Network Rail, which, as a matter of interest, is a member of the project consortium for the natural control of Japanese knotweed and is fully involved in discussions about how the trial proceeds. Along with Defra, it sponsored the Environment Agency knotweed code of practice, published in 2006. It has been a major funder of the research and was among the instigators of the project.

Lord Davies of Oldham: My Lords, the Minister will be aware that the Royal Horticultural Society calls this plant “a real thug”. It does so because of the immense damage that it does. There was a person in my neighbourhood whose house was worth £350,000 but was sold for £50,000 because the weed had invaded the premises. We are also well aware that Network Rail spends a very large sum of money every year protecting the permanent way from knotweed. I fear that the Minister is talking rather gently about a very severe problem, and I hope that he will inject some urgency into the Government’s response.

Lord De Mauley: My Lords, I am aware of frankly tragic stories about people having trouble selling properties and obtaining mortgages, and I have huge sympathy for them. That is why this work is so important.

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Lord Greaves: My Lords, I congratulate the noble Baroness, Lady Sharples, on her persistence in this matter, which is vital, and I congratulate the Government on the continuation of the experiments with the psyllid Aphalara itadori. Is it not the case that under the Wildlife and Countryside Act 1981 it is already an offence to plant or cause this species to grow in the wild? Is it not time that that was strengthened and that allowing this plant to grow on your land without taking steps to remove it became an offence?

Lord De Mauley: My noble friend is certainly right that it is an offence to allow it to be introduced into the wild but we think that that is a step too far. It is a real challenge to get it under control and we want to find an effective biocontrol before we consider a move such as that suggested by my noble friend.

Lord Glenarthur: My Lords, can my noble friend say to what extent the spread of this knotweed has developed throughout the whole of the United Kingdom and to what extent the devolved Administrations are playing their part in trying to eradicate it?

Lord De Mauley: That is also an important point. The Welsh Government are a member of the project consortium for the natural control of Japanese knotweed and have been a major funder of the research. The licensing authorities in England and Wales work closely together to ensure a consistent approach. We have kept the Scottish Government updated at key points in the project, although, to answer my noble friend’s first question, Japanese knotweed is not such a significant problem in Scotland.

Lord Howarth of Newport: What do the Japanese do about it?

Lord De Mauley: My Lords, they are blessed with this psyllid, Aphalara itadori, and that is where we got it from. The issue is to ensure that it is as effective under our conditions as it is under Japanese conditions.

Baroness Byford: My Lords, is it not important that the Government take great precautions to prevent the importation of things such as Japanese knotweed? Such things do not just arrive; they are brought in. I know that there have been discussions at European level on the control of imports of plants; for example, Ash plants that might affect our trees, and many others. That is crucial because once Japanese knotweed gets hold, you cannot stop it.

Lord De Mauley: My noble friend is quite right. A non-native species risk assessment of Japanese knotweed has been carried out under the GB non-native species mechanism. It is one of more than 50 risk assessments on plants that have been published. Japanese knotweed is assessed as high risk. There are many others. My noble friend will be aware that we are doing considerable work bearing down on pests such as this which are coming at us from abroad.

Baroness McIntosh of Hudnall: Will the noble Lord explain to those of us who are enthusiastic gardeners but have never seen Japanese knotweed what we should

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be looking out for? On a more serious note, is he confident that public information—for example, in garden centres and other places where people purchase plants—is at a sufficiently high level to ensure that people who should be aware of what to look out for know what they should be looking for?

Lord De Mauley: My Lords, I quite agree with the noble Baroness that public awareness is one of the most important aspects. I will resist the temptation to describe the appearance of Japanese knotweed in front of your Lordships.

Noble Lords: Oh!

Lord De Mauley: All right then. Defra is helping with the start-up of local action groups which are being established across England to reduce or eradicate invasive non-native plants, including Japanese knotweed. One of the objectives of these groups is to raise awareness of the environmental, social and economic problems that invasive non-native species can cause. They are raising awareness on a local and national scale with landowners, volunteers, potential partners and other interested parties. I should also say that information on GB non-native species is available on the secretariat website, which includes an identification sheet.

Legal Aid, Sentencing and Punishment of Offenders Act 2012: Part 1


3 pm

Asked by Lord Bach

To ask Her Majesty’s Government what assessment they have made of the impact on the not-for-profit sector of the first three months of implementation of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The Minister of State, Ministry of Justice (Lord McNally): My Lords, post-legislative scrutiny of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will take place, as is normal, three to five years after Royal Assent. However, the Ministry of Justice will carry out a variety of exercises to monitor the impact of the Act from now on.

Lord Bach: My Lords, I am grateful to the Minister. However, does the evidence available not point clearly to a world where not-for-profit organisations will be decimated, and their clients—often the poor, disadvantaged and sometimes disabled—will no longer have access to legal advice? Just look at what is happening already. Birmingham Law Centre is closing, the well renowned Mary Ward Centre in London, which had 800 welfare benefit cases last year, has precisely nought at the moment, and Coventry Law Centre—I declare my interest as patron of that organisation, which has a superb reputation—has had to turn away from reception at least 350 people who had housing, immigration, debt, employment and family legal issues. I put it to the Minister that this is not good enough for a country

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that, until this legislation, could pride itself that its legal system tried to be fair to everyone. What are the Government going to do about it?

Lord McNally: My Lords, the Act has been in force for 99 days. It is difficult to get an accurate picture of what is happening in this sector because of a surge of applications before 1 April. However, as I said, the department is carrying out a variety of checks and researches on the impact and we will keep a careful study of what happens.

Lord Marks of Henley-on-Thames: My Lords, can my noble friend say at this stage how far organisations such as Citizens Advice appear to be coping with the changes? In particular, what, if anything, are the Government doing to assist Citizens Advice and others in the sector to introduce new methods of working to help them provide their services where legal aid is not available?

Lord McNally: My Lords, I think we have had these figures before, but since 2010 the Government have provided around £160 million to support the not-for-profit sector, £107 million for the transition fund administered by the Cabinet Office and £20 million via the advice services fund 2011. In 2010-11, the income of the national citizens advice organisation was £62.3 million, with one of its largest grants being £18.9 million from the Department for Business, Innovation and Skills. However, Citizens Advice is also getting contracts under the new Legal Aid Agency civil contracts; 35 such contracts were granted to citizens advice bureaux.

Lord Goldsmith: My Lords, is the Minister able to help us on this despite the fact that the post-legislative scrutiny has not taken place? In addition to the places that my noble friend Lord Bach referred to, the Fulham Legal Advice Centre closed last month, I understand as a result of losing the money which used to come from those areas of work that have been taken out of scope under LASPO. Half the caseworkers in the Surrey Law Centre, which I believe serves the Lord Chancellor’s own constituency, are being made redundant through lack of funds. I declare an interest as chairman of the Access to Justice Foundation and president of the Bar Pro Bono Unit, both of which are involved in providing support to the not-for-profit sector in giving free legal advice. Can the Minister also confirm that these problems are happening against a background of increasing demand? There has been a 100% increase in inquiries to the LawWorks inquiry line and a 26.7% increase in inquiries to the Bar Pro Bono Unit. Will the Minister say what more the Government will do, rather than simply leaving it for three to five years to do a review?

Lord McNally: On the contrary, I thought that I had made it clear in my Answer that we are not leaving it for three to five years. The intention is to monitor and review the impact of LASPO on all the affected groups outlined in the equality impact assessment. The Legal Aid Agency, Her Majesty’s Courts and Tribunals Service and providers will complement the use of administrative data with bespoke research exercises where appropriate. We have worked with the Legal Services Board and the Law Society to carry out a

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survey of providers of legal advice that will provide a baseline against which changes might be measured in the future. Ad hoc reviews are also conducted where a provider stops undertaking legal aid work.

I am not pretending that law centres have not been hit by this change. However, as I indicated in the previous answer, we have given a lot of money to the transition fund to help law centres and other not-for-profit sectors to reorganise so that they remain effective.

Lord Naseby: Is it not extraordinary that lawyers in the United Kingdom appear to think that around £220 million—the saving required—is a figure that should be brushed aside, and that after just three months there should be a review of the whole process? I urge the Minister to give a strong answer to the judiciary’s response to the consultation, particularly given that the response stated:

“Many young and talented lawyers are no longer choosing to practise in crime”,

which in the long term will affect the quality of the defence and prosecution barristers involved in criminal trials. Is it really the responsibility of the legal aid budget to fund that dimension of legal practice?

Lord McNally: Welcome though my noble friend’s intervention was, he is treading on areas that we will be debating on Thursday, when we have a very full and interesting debate on legal aid. I will say, however, that the noble Lord, Lord Bach, spent most of the last year predicting a perfect storm when LASPO came into effect. In fact, there has not been a perfect storm: the market is adjusting and advice is being given. However, the not-for-profit sector has had to make the adjustment that many others, including my own department, have had to make in the face of economic realities.

Children and Families Bill

Order of Consideration Motion

3.08 pm

Moved by Lord Nash

That it be an instruction to the Grand Committee to which the Children and Families Bill has been committed that they consider the Bill in the following order:

Clauses 1 to 6, Schedule 1, Clauses 7 to 12, Schedule 2, Clauses 13 to 72, Schedule 3, Clauses 73 and 74, Schedule 4, Clauses 75 to 87, Schedule 5, Clause 88, Schedule 6, Clauses 89 to 98, Schedule 7, Clauses 99 to 112.

Motion agreed.

Marriage (Same Sex Couples) Bill

Report (1st Day)

3.08 pm

Clause 1 : Extension of marriage to same sex couples

Amendment 1

Moved by Lord Mackay of Clashfern

1: Clause 1, page 1, line 5, at end insert “and shall be referred to as “marriage (same sex couples)”.

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( ) Marriage between opposite sex couples shall be referred to as “marriage (opposite sex couples)”.”

Lord Mackay of Clashfern: My Lords, I should first declare an interest. I am the honorary president of the Scottish Bible Society and a member of various Christian groups. I have also been for quite a long time a member of Barnardo’s, which has a certain amount of interest in this area of the law.

The purpose of the first amendment, and of the second amendment that is to be taken with it, is to recognise in the Bill the distinction that exists in fact between marriage for same-sex couples and marriage for opposite-sex couples. I have used only language that occurs already in the Bill. It is striking that the Bill is called the Marriage (Same Sex Couples) Bill. Therefore, I cannot see that what I propose can be objectionable to anybody who wishes to further the Bill in the future. If it is appropriate to refer to what is now being introduced as the Marriage (Same Sex Couples) Bill, it must surely be right to use that name to refer to what exists already in the law, and will continue to exist in the law after this Bill becomes an Act, as I certainly expect that it will.

It seems to me obvious that there is an important distinction between these two types of marriage. My understanding is clear that the Government wish to afford the gold standard to same-sex marriage. That means using the word “marriage” to describe what is involved, which I accept for the purposes of this amendment. Therefore, I cannot see that it in any way degrades what is asked for and granted to same-sex couples in the Bill. The Bill makes distinctions between same-sex marriage and opposite-sex marriage in a number of respects. I need not mention the more technical ones, but there is a fundamental difference in relation to the consummation of the marriage and on the effect to a child of being born to a member of a same-sex couple. That has a very important effect on children.

My understanding is that opposite-sex marriage is a uniquely well designed system for the bringing into the world, and the nurture in the world, of children because opposite-sex marriage involves a direct link between the child and two parents, which arises from the nature of the child’s birth. That, I think, is not in any way replicated in any other form of marriage. Of course, it is possible for children to become children of a marriage in various ways—for example, by adoption and by in vitro fertilisation, which have their own characteristics. Those of your Lordships who sat on the Human Fertilisation and Embryology Bill Committee some time ago, which sought to amend the 1990 Act, will remember hearing people born by means of IVF give very cogent and sensitive evidence on the difficulty of getting information that that had happened and of tracing their roots. I am sure your Lordships are aware that tracing one’s roots and being able to say something about one’s ancestry can be an important factor in the nurture and development of children and, indeed, in the well-being of adults, as people have a great interest in that.

It seems to me essential to recognise that distinction in the Bill as a matter of ordinary drafting. This is not a marriage Bill; it is a Bill which adds to the existing

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structure a new concept, as I think we should recognise throughout the Bill. It is recognised in the Bill’s Title and is reflected in the heading of various documents, including today’s Marshalled List. In my submission, it is vital that we do not lose sight in future of that aspect of what people have called “traditional marriage” as it is an extremely valuable part of the arrangements that we have had for the birth and nurture of children.

I said in Committee and I say again that the protection of children by marriage, when it works, is extremely important and so far the state has not been able to devise a system which is equally effective. I speak in the presence of people who know much more about this than I do, but I believe that when the natural family fails a child and he has to go into care—which sadly happens, though fortunately not in the majority of cases—one of the difficulties as a matter of practice is to get a bond between a child and a particular individual in, for example a local authority. That is for the very practical reason that local authority staff change and take over different responsibilities and so on. I am sure that that is not the only difficulty, but it is certainly an important one.

I have said that the Bill deals with same-sex marriage and opposite-sex marriage differently in various places and mentioned the technical situation of a child born to a member of the marriage. That child does not enjoy the protection of the marriage on birth. It may be possible for the child to be adopted by the couple, but that is a different process. It is not a direct result of being born to a partner in the marriage. However, perhaps the most striking difference in treatment between same-sex marriage and opposite-sex marriage is in relation to the churches and religious organisations. The nature of the treatment in these two groups is very different indeed. Therefore, it seems only sensible to recognise as a matter of definition what it is that the different treatment applies to.

In my submission, this is the minimum that will secure recognition in the Bill of the distinction between the two. I believe that it completely meets the aims which were intimated as part of what this Bill is about in the sense that it gives marriage with the gold standard to same-sex couples, while retaining, without differentiating to any extent between the two as a value judgment, the essential distinction. This is not a matter of arbitrariness, but of simple fact. Recognising that fact in the Bill seems to me to bring it much closer to what ordinary people—and I count myself in that category—understand the Bill to do. Trying to make out that the two are the same seems to many people, including myself, to be an exercise in fantasy. The factual position is that there is a fundamental distinction which no majority in Parliament or elsewhere can annihilate.

Your Lordships will understand that Amendment 2 is complementary. Later amendments are consequential if the first two are accepted. I am sorry that there are so many of them. This is the minimum that seems to work, although I and other noble Lords think that it may be possible to go further. The later amendment of the noble Lord, Lord Armstrong, to which I and others have added our names, indeed goes further

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than the minimum. However, my amendment is the essential minimum and if your Lordships were to accept it, a question would remain as to whether the Bill should go further. I beg to move.

Lord Glenarthur: I very much support my noble and learned friend. The debates at Second Reading and in Committee referred to the word “marriage” as being the point at issue and how it could be described in the Bill. The problem with the Bill has been the word “marriage” and it is difficult to find another solution to that problem. For those who have concerns about finding a way to redefine marriage, which the Bill tries to do, it seems sensible, notwithstanding all the sensible comments of my noble and learned friend about the relevance of children to all this, to have a form of words that qualifies marriage under all its circumstances rather than totally redefines it. I very much support the amendment.

Lord Anderson of Swansea: My Lords, it is good to follow the noble and learned Lord, who describes himself as an ordinary person but who happens to be a former Lord Chancellor, one of the most distinguished lawyers in this country. I congratulate the noble and learned Lord on his diligence and ingenuity. I wish that I had thought of the amendment, in which he reproduces the title of the Bill. He clearly sees both sides and has made a serious effort to build a bridge between what might otherwise have become a very polarised debate. Yet, he has given both sides the substance of what they seek.

There are those who believe in traditional marriage, the definition that has existed since time immemorial, and others who wish to extend the definition to include same-sex couples. The Government wish to change that definition with all deliberate speed. I shall not linger on this matter but the deliberate speed is something that puzzles many of us, given that it looks as if the Government were converted to this idea only some time after the election manifestos of three years ago. Now there is nothing stopping them in their haste to get the Bill onto the statute book. Tradition has to be got rid of speedily.

For some, marriage is not just a ceremony with an approved form of words and mutual vows but a sacrament that has existed for many years. I, for example, look forward to my wife and I renewing our vows in a church with the local vicar on the occasion of our golden wedding anniversary in September. For us, our marriage 50 years ago was not some simple ceremony but a form of sacrament before God. Some hold that dear for that reason. For others who have come to their view only over the past year or two—and I include the Government and the official Opposition—the extension of the definition is necessary for equality. Perhaps that is as part of a Damascene conversion as they did not think so a year or two ago.

The amendment of the noble and learned Lord allows two things. Same-sex couples will be able to say in all honesty that they are married and truthfully assert that status when they discuss their marriages with other people. At the same time, the proposal recognises that same-sex marriages cannot be the same as traditional marriages. The noble and learned Lord

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mentioned characteristics such as non-consummation, adultery, being physically different, and the effect on children, a subject in which he has had a close interest. It is therefore absurd to try to make the same that which is essentially different. The amendment therefore allows for same-sex couples to be distinct but at the same time to be married and to be able to say so when they discuss their relationship with other people. It is an ingenious effort to bridge the gap, which I wholeheartedly support and commend to your Lordships’ House.

Lord Lester of Herne Hill: My Lords, we all agree that marriage is a vital institution. The exclusive commitment of two individuals to each other nurtures mutual love, support and stability. For those who choose to marry and their children, marriage provides legal, financial and social benefits and, in return, legal, financial and social obligations.

Two competing views of marriage were helpfully identified by Justice Alito in his opinion in the United States case of Windsor on 26 June, in which he dissented from the majority—the majority having decided that the denial by the Defense of Marriage Act of federal benefits to same-sex couples lawfully married under New York law was unconstitutional.

In his dissent, Justice Alito referred to the traditional conjugal view that sees marriage as,

“an intrinsically opposite-sex institution—the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so … Throughout human history and across many cultures, marriage has been viewed as an exclusively opposite–sex institution and as one intrinsically linked to procreation and biological kinship”.

That is the view of my noble and learned friend Lord Mackay and others who have spoken so far.

Justice Alito then referred to what he called the newer view that is the consent-based vision of marriage,

“a vision that primarily defines marriage as the solemnization of mutual commitment—marked by a strong emotional attachment and sexual attraction—between two persons. At least as it applies to heterosexual couples, this view of marriage now plays a very prominent part in the popular understanding of the institution … Proponents of same-sex marriage argue that because gender differentiation is not relevant to this vision, the exclusion of same-sex couples from the institution of marriage is,

what he describes as,

“rank discrimination”.

The Bill removes that rank discrimination by securing equality for same-sex couples according to the newer view of consent-based marriage while protecting the traditional conjugal view of opposite-sex marriages for religious organisations such as the Church of England, the Catholic Church and others which do not wish to celebrate or solemnize same-sex marriages. It protects freedom of religion in that important way.

The supporters of this group of amendments—I shall make only one short speech on all of the amendments, which are grouped together on an industrial scale—do not like the Bill and seek to substitute for the phrase “the marriage of same sex couples” the phrase “marriage (same sex couples)”. They believe strongly in the traditional conjugal view of marriage as being much better, as we have heard, for the upbringing of children and they do not believe that the marriage of same-sex couples is to

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be regarded equally. They reflect their deeply held religious beliefs that I understand and fully respect.

However, these amendments would obscure the main purpose of the Bill, which is to enable same-sex couples to marry in accordance with the newer view of consent-based marriage because they are excluded under the traditional conjugal view of marriage. There should be no hierarchy that puts traditional marriage above consent-based marriage, whether in the definition of the marriage of same-sex couples or whether they are to be treated equally in all respects with the marriage of opposite-sex couples.

The attempt to define same-sex marriage differently from opposite-sex marriage while claiming that they are somehow equal would inevitably be seen by ordinary men and women in the street—and by me, as a not very ordinary man in the street, I suppose—as attempting to give the traditional view of marriage a superior status. It is essential to be sure that the marriage of same-sex couples is not regarded as less worthy than the marriage of opposite-sex couples. That is why I cannot support these amendments.

3.30 pm

The Earl of Listowel: My Lords, I listened with great interest as the noble and learned Lord, Lord Mackay of Clashfern, presented his case, particularly to what he said about children and families and the importance for children to grow up in a very strong environment, ideally with a father and a mother. I do not think that he said that specifically, but he talked about children coming into the care system and the difficulties at finding someone who will make a real commitment to the child. In my own family, marriage was fairly relaxed from a religious point of view, but it was there in preparation for having a child and gave us children a secure base to look forward to.

I listened to the noble Lord, Lord Lester, speaking about the old view and the modern view of marriage. The old view is there for families and to give a strong framework in which children can grow up, and the modern view is much more about individual adults choosing what is best for them and what they feel most comfortable with. I am reminded of a report from the Children’s Society—the Good Childhood inquiry—some time ago, which drew attention to exactly that change and shift in adults, and the unfortunate consequence for children, with so many children nowadays growing up without contact with their fathers. That freedom of choice for adults has become a very unhappy situation for many children who do not have that security of having a father around.

This is such a difficult question and it is helpful that the noble and learned Lord has tabled the amendment. It is important to distinguish between this new version of marriage that we are discussing today, and traditional marriage, especially as there is some misunderstanding about the impact of same-sex parenting and heterosexual parenting on child development. There are strong feelings on both sides, and some say now that the question is quite finalised: we all know that same-sex parenting has the same outcomes for children as heterosexual parenting. However, I think that there are a number of difficulties about that particular point

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of view, and I would say briefly that same-sex parenting has been around for only a short time; it is a new phenomenon, so scientifically there has not been the time for extensive or controlled research to verify either way, or to provide data on these outcomes. We will come back to this later in the debate, but I support strongly what the noble and learned Lord proposes, and I hope that the Minister will feel inclined to accept it.

Baroness Butler-Sloss: My Lords, I am grateful to the noble and learned Lord across the Chamber. I want to make a brief point to the noble Lord, Lord Lester. If the noble and learned Lord, Lord Mackay, had asked for the phrase, “traditional marriage”, the point made would have some benefit and would be something that we should perhaps take into account. But the amendment refers to “same sex couples” and “opposite sex couples”, so how on earth can anyone suggest anywhere that one sort of couple is better than another sort of couple? They just happen to be different—different and equal. So I cannot see how the noble Lord, Lord Lester, can make the point that one group will be downgraded because they are the same sex and another will not be downgraded because they are opposite. That is not an argument that can be used in the present wording—very clever and careful wording, if I may respectfully say so—of the noble and learned Lord’s amendment.

The Lord Bishop of Chester: My Lords, I find myself asking, what would actually change in the Bill if we accepted the amendment? As I understand it, there would be recognition of difference yet equal treatment of the two types of couple. That is what would happen. Therefore, I ask the noble Lord, Lord Lester, who we all respect so greatly, is it the case that the couples would not be regarded equally when, in fact, the treatment of the couples would be exactly equal in law? The noble and learned Baroness, Lady Butler-Sloss, made a similar point. Would accepting the amendment of noble and learned Lord, Lord Mackay of Clashfern—there are two Lord Mackays now in the House—accord either of these forms of marriage a superior status, as was alleged? I do not see that on the face of the Bill. It simply accepts a certain difference.

Behind this lies a seductive aspect of the Equality Act itself, that any differentiation amid the protected characteristics is all the same. Therefore, the difference between a woman of childbearing age and a woman beyond childbearing age is just the same as the difference between a man and a woman. That is plainly not the case. There is a greater distinction between a man and a woman biologically than between a woman of childbearing age and one who is not. An element of recognition of difference within equal treatment in law is entirely consistent with the purposes of the Bill.

Lord Waddington: I read on Saturday a speech made by the most reverend Primate the Archbishop of Canterbury. I will not trouble the House with much of the speech, but it contained this particular passage:

“The opposition to the Bill, which included me and many other bishops, was utterly overwhelmed … There was noticeable hostility to the view of the Churches”.

I was not surprised by what I read. There are many of us not of the church who have experienced the

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same hostility to our views. I hope that supporters of the Bill do not forget that a substantial proportion of the population were, and are still, greatly disturbed that the Government should have introduced a measure that rejects the traditional view of marriage. Many of us are surprised that, far from trying to meet the concerns of such people, the Government have turned down every opportunity to soothe the susceptibilities of those who find the concept of same-sex marriage difficult to stomach.

Surely the Bill should not reach the statute book without the Government doing something to acknowledge that, until recently, it was almost universally accepted—it was certainly so accepted by the previous Government—that marriage could be only between a man and a woman. The views of those who still hold that belief are therefore worthy of respect and should be acknowledged in the Bill. The best way of doing that is not just by a declaration in the form set out in Amendment 4, but by a clear statement that the marriage of a same-sex couple and the marriage of an opposite-sex couple are equally valid but clearly different. The differences have been gone over time and time again since Second Reading and I will not go into them now, but they are different.

I do not think that so far this burying of traditional marriage, and putting something entirely new in its place, has yet been fully recognised by the populace. I wonder how many realise that this legislation authorises in law a man who is married to another man to be called a husband, and a woman married to another woman to be called a wife. Wife in its old meaning has been abolished by a little-read schedule to the Bill and, no doubt, the proper use of the term will soon disappear. These are dramatic changes—changes that pay no regard to the normal use of the English language, tradition, common sense or common courtesies. It is up to those initiating such change to try and make it reasonably palatable for those who were brought up to accept that marriage is the union of a man and a woman. I hope that, even at this late hour, the Government will recognise that they have some obligation in this matter.

Lord Pannick: My Lords, I do not support the amendments because each of them would wrongly suggest to the happy couple entering into a state of matrimony—to their families, their friends and to the world at large—that theirs is not a marriage like any other. The amendments would suggest that it is a distinct form of marriage to be placed in a category of its own. Since the very purpose of the Bill is to recognise same-sex marriages as the voluntary union of one man with another or one woman with another, in the same way as the voluntary union of a man and a woman, it would surely be bizarre in the extreme for us churlishly to take away by a subsection part of the recognition and status that the Bill will accord.

No one would seriously suggest, I assume, that there should be a legislative provision that states that marriage between divorced persons shall be referred to as marriage (divorced couples). The whole point of the Bill is that all lawful marriages, which will include marriages between same-sex couples, are marriages—

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although, as we all know from our personal experience, each and every marriage is unique.

The noble and learned Lord, Lord Mackay of Clashfern, emphasised that there are some respects in which the Bill treats a same-sex marriage as different from a marriage of an opposite-sex couple. But the whole point of the Bill, surely, is that, notwithstanding those differences, the Bill will implement the basic and vital principle that a same-sex marriage is a marriage with the same status and consequences as any other.

I entirely understand why those who are fundamentally and sincerely opposed to the Bill should wish to introduce these amendments. But they should recognise why those of us who support the Bill regard them as simply incompatible with the fundamental purpose of the legislation.

Lord Mackay of Clashfern: The noble Lord said that the two types of marriage are to have exactly the same consequences. I think I heard him correctly.

Lord Pannick: I said that I understood the noble and learned Lord’s point that the Bill in various respects, which he referred to, treats same-sex marriage and opposite-sex marriage as distinct in various respects. But I made the point that the purpose of the Bill is nevertheless to recognise that each category should be accepted as a lawful marriage for the purposes of the law of England.

Lord Mackay of Clashfern: The noble Lord will be able to say which of my amendments in any way detracts from that. I understood him to say in his earlier submission that there was no difference in consequence. There is a very vital difference in consequence in this respect: a child born to a woman in a same-sex marriage is not a child of the marriage.

Lord Pannick: I respectfully object to the suggestion that a Bill with these purposes and valuable effects should distinguish between same-sex marriage and opposite-sex marriage and necessarily imply a division between them. That is what I object to.

Lord Cormack: My Lords, I added my name to the amendment because I felt that it was not churlish, derogatory or demeaning. In fact, it indicates that those of us who have profound misgivings about the Bill have done all that we can to acknowledge the validity of the arguments of those who are its champions. All the amendment does is repeat certain words that are in the Bill. The noble Lord, Lord Pannick, or any other noble Lord can talk until he is blue in the face without altering the fact that there is a difference between a same-sex marriage and a marriage between a man and a woman. All this amendment does is acknowledge that. It concedes the word “marriage”.

3.45 pm

In the first series of amendments in Committee, the noble Lord, Lord Hylton, and I spoke to an amendment which used the word “union”. The noble Lord, Lord Alli, and others told us that that was offensive, although he recognised that we had not meant it to be. An amendment of the noble Lord, Lord Armstrong of

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Ilminster, was a little stronger than the one moved this afternoon by my noble and learned friend Lord Mackay. The noble Lord, Lord Hylton, and I have not tabled our amendment again, and nor has the noble Lord, Lord Armstrong of Ilminster, tabled his. We have coalesced—and coalition is a good thing, so we are told—behind my noble and learned friend Lord Mackay in supporting his amendment. We have done so because we think that it demonstrates and underlines equality while recognising difference. That is the sole point and purpose of his amendment.

To the noble Lord, Lord Alli, for whom I have developed a very real regard during these debates, I say that this concedes that we have given up the fight against using the word “marriage”. However, we believe very strongly and very profoundly that there is an undeniable difference between the coming together of a man and a woman and the coming together of two men or two women. All we ask of those noble Lords who are enthusiastic about this Bill is in effect to meet us halfway. We have conceded on the word “marriage”. That will go into the new dictionary with its various definitions. All we want is recognition on the face of the Bill that there is a distinction and a difference between different sorts of union, but there is a pervading equality. It is a very modest amendment, and a very simple one.

I very much hope that the House will support the amendment because I know, as do noble Lords on all sides of the House, that throughout this country there are many people with real concerns about the social change implicit in enacting this Bill. None of us can prove what the majority view is, and we have already rehearsed that argument. Many people say that it is a generational thing; I do not know. What I do know is that my sons and daughters-in-law take the same line as I do on this, and assure me that most of their friends do likewise. That is anecdotal, and it proves absolutely nothing save to underline the fact that there are concerns. Let us meet those concerns with this extremely modest proposal.

Lord Alli: My Lords, I fear that my response will disappoint the noble Lord, but let me try to explain why. The amendment seeks to create two classes of marriage. It is conceived from the notion, as the noble and learned Lord said, that what same-sex couples want is use of the word “marriage”. It simply misses the point. What same-sex couples want is marriage itself. They want to share with opposite-sex couples the joy of married life, and to be treated equally by the state and by society. They do not want to be “married (same sex couples)”, and I suspect that opposite-sex couples do not want their union bracketed, either.

The noble and learned Lord has gone to a huge amount of trouble to identify and draft amendments to ensure that the brackets are in the right places and the sexual orientation identifiers placed at any and all opportunities. The question that perplexes me is: why is that necessary? Why does the noble and learned Lord want to pick out gay couples in such a public and conspicuous way? I understand that those opposed to same-sex marriage, having lost the vote at Second Reading, now want a second—and, judging by the Marshalled List, a third, fourth, fifth and sixth—bite

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of the cherry. “Give them marriage”, says the noble and learned Lord, “but not the name. Call it something else: ‘traditional marriage’ and ‘marriage (same sex couples)’—anything but marriage itself”. That is a new battle; in that way we can preserve the inequality between same-sex and opposite-sex marriage.

If we do that, what of international recognition? This amendment would allow other countries to treat same-sex couples differently from opposite-sex couples. Those countries will say, “We recognise only marriage (opposite sex couples)”. We will draw in statute a difference for others to exploit. That is a bad idea. The word “marriage” should be able to be used by couples regardless of their sexual orientation.

I have a great deal of respect and admiration for the noble and learned Lord and agree with much of what he says on many occasions, but I find myself diametrically opposed to his view on this matter. I do not think that the noble and learned Lord or other noble Lords who have spoken in support of this amendment will ever see this Bill as I do. The amendment that the noble and learned Lord has crafted is a means of dividing us, not uniting us. It pours salts on to wounds at a time when we should be healing. It will allow others—not noble Lords in this place—to create mischief where none was intended. It will be argued that Parliament made the distinction so must have had a purpose in doing so. There the discrimination begins.

We have an obligation in this House to make good and to rebuild once this Bill is passed. This amendment would leave a scar on the Bill for another day, and another battle to be fought. For those reasons, and many more, I hope that this amendment will be defeated. Two classes of marriage, however well disguised, is the very opposite of what this Bill is designed to do. Giving us the use of the word “marriage” with one hand and taking back its exclusivity with the other would be a fatal blow to the intentions of the Bill. Just to be clear, I do not find the amendment acceptable in any shape or form. I hope for the reasons that I have tried to express that the noble and learned Lord will understand why I do not share his view.

Lord Skelmersdale: Is the logic of the noble Lord’s position that this Bill should not be called the Marriage (Same Sex Couples) Bill but the Marriage (Amendment) Bill? Would he be interested in putting down an amendment, if it is not too late, to that effect?

Lord Alli: My Lords, I will resist the temptation of adding a single additional amendment to the 135 on the Marshalled List. Perhaps I will look at that again at the end of the second day of Report.

Lord Deben: My Lords, it is always with very great care that one clashes with the noble and learned Lord, Lord Mackay, particularly when one has to suggest to him that there is an illogicality in the argument that he has put forward. He said, on the one hand, that there is a whole range of differences between same-sex marriage and opposite-sex marriage. In that, he is not only right but obviously right. He then attached to that the reason for making this distinction in the Bill, but it is a distinction that does not need to be in the

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Bill because, as he says, it is universally recognised. Therefore, making the distinction in the Bill must be for a different purpose.

As we have heard the debate continue, we have moved from the careful language of the noble and learned Lord to expositions which explain the purpose of the amendments. When they are referred to as modest amendments, I think only of the modest proposal which, in Dean Swift’s writing, went rather further than that title suggested. This modest amendment is here for a purpose. It is to say now what has so far not been able to be said more directly, which is, “Wait a moment, it is not quite what you say”. We will have made sure that in the Bill, and therefore in the Act, we make a distinction that can be referred to and used not only internationally, as the noble Lord, Lord Alli, said, but at home.

I think that Christians should be even more strongly opposed to this than others because the Bill is specifically designed to give us an absolute right to maintain our view about marriage. It does so on the basis that it gives the state an absolute right to maintain its view about marriage. That was, after all, something that was started back in the days of Henry VIII, when the state said that it could make its own decisions about what marriage meant, even though that meant disagreeing with the highest powers in the church.

I am not suggesting that the state should go any further in its relationships with the church than Henry VIII did, but I am suggesting that this is an historic decision and one that we should respect. The church, under the quadruple lock, is absolutely able both to perform and to give its teaching about marriage. That is a teaching which I wholly support. As a convert, I have to, otherwise I would not have made that decision and choice. However, I also believe that parliamentarians have a duty to the whole nation, and those in the whole nation who seek marriage do not seek marriage followed by brackets. Indeed, I think that opposite-sex couples ought to object to this. Why should they have marriage so defined?

I turn to the second argument, which is that in the very clear words quoted by the noble Lord, Lord Lester, there is now a different way of looking at marriage from the historic one. That was rapidly picked up by those who want to support the amendment. I hope that we will think carefully about this. Differentiating between same-sex marriage and opposite-sex marriage because you think that the one is about a new view of marriage and the other is about an old view is of course not correct. If you wanted to distinguish between the new view and the old view of marriage, you would have to have more brackets. You would have to have “(traditional) marriage” for opposite-sex marriage and “(new) marriage” for opposite-sex marriage. No one in this House would suggest that as one approaches the registry office or the smart hotel, one should go up with a list of alternatives, asking, “Am I going in for marriage-light or marriage-heavy? Am I taking marriage in this way or that way?”. From much of my experience of some 35 years in surgeries as a Member of Parliament—more, if you take in the period of candidacy—I do not think that anybody would understand having to fill in a form on that basis.

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4 pm

We come back to the reason, which is very simple. People want to say on the face of the Bill that they do not accept that this is marriage, and they want to find the nicest way of doing so. I give that to them but in my view the noble Lord, Lord Cormack, gave it away. What he said was, “We tried here and we did not get that, so we tried at another point and we did not get that. We tried at another point again and we did not get that, so we have a new wheeze, which is here and has moved farther towards it”. I beg the House to realise that if we accept the proposal that the noble and learned Lord, Lord Mackay of Clashfern, put forward so elegantly and with such absolute honesty, we are actually undermining the whole purpose of the Bill. In that sense, and not in any other, it is a wrecking amendment because it would mean that what we have sought to do would be undermined.

I want to say one last thing. I hope that those who are thinking of supporting this amendment will just remember what they are having to live down. This country has a terrible history of the way it has treated gay people. There are other countries which have a terrible present in the way they treat gay people. If you think that we are going too far, then put that down to making up for not getting there much earlier. Put it down to all those years in which gay people were subject to punishment of a criminal kind. Put it down to all those years of the jokes at school and university which so hurt gay people. Put it down to what we have done in the past to gay people and, if we go a bit further than you would like this time, then say, “I really have a lot to make up for”.

The Earl of Listowel: My Lords, before the noble Lord sits down, he has made many important points but in his first point I think he was saying that there is no risk of confusion in the public mind and no need for this differentiation because it is all clear. However, is there not a risk in terms of raising children? There is a real question in the public mind about having children raised by, for instance, two men or two women and about children being raised without a father. I must not go on, of course, and this is a simple question. However, there is confusion, and is not the benefit of this amendment that there would be less confusion?

Lord Deben: I very much thank the noble Earl for that question. It would be germane if we were in France and debating the French changes, because France changed the law about adoption. The whole system was changed. We, of course, are not changing the law, as that provision is already there and is not altered at all. If that was where we were and what we were doing, there would be a different argument because I have to tell the House that I have a huge problem with the creation of babies in a world in which there are so many babies waiting for adoption. I have not yet come to believe that there is enough evidence to say that same-sex adoption is the same as or equal to opposite-sex adoption, but none of those issues is before us today. If they were, we would have a different argument. Because they are not, the proposed change is naked and unashamed. It is not about children or

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any of those things. It is about two different sorts of marriage and the difference will be upheld by those of ill will and by some of those of ignorant will, and we should not have it.

Lord Fowler: My Lords, I have had great respect for my noble and learned friend Lord Mackay of Clashfern ever since we sat in Cabinet together, but on this proposition I am afraid I cannot support him. He seems essentially to be making a division between one group and another when the whole aim of the Bill is to eliminate divisions and to seek to create some equality. To that extent, the amendment goes against the spirit of the Bill, which both Houses of Parliament have given massive majorities, and I think there is a limit to the number of times that we can debate the Second Reading in this House.

I have been told by, among others, my noble friends Lord Waddington and Lord Cormack that we must listen to what is being said outside this House. I agree, but that is an argument that goes both ways. We should also take into account what gay and lesbian people feel about the way that they have been treated and whether this is yet another attempt to create an underlying division between them and the rest of society. The reason they will feel that—and this is a point that my noble friend Lord Deben referred to in his excellent speech—is the discrimination and prejudice that they have faced over the years in this country. Of course it is true that homosexuality is no longer an offence in the United Kingdom, but let no one believe for a moment that the prejudice has vanished with it. It is true that it is not so bad here as in some notoriously homophobic countries overseas. I have just returned from Russia, where I have been looking at exactly these kinds of issues and where a new law has been passed to stop gay issues being discussed, making gays and lesbians subject to attack.

However, we still have a mountain of prejudice to overcome here in this country. A few days ago I was listening to a much respected figure in the HIV world who said that if he was walking down the road in this country arm-in-arm with his male partner, he could not be sure that he would not be verbally or even physically abused. That is Britain as it stands today, viewed from his eyes. I listened to the gay footballer Robbie Rogers—a committed Christian, incidentally—who came out only after he had left British football. One cannot speculate too much about the reason for that or about the reaction that he would have received had he done so before.

We can listen to the YouGov survey on behalf of Stonewall, which showed that over the past five years 2.5 million people of working age have witnessed verbal homophobic bullying at work, 800,000 people of working age have witnessed physical homophobic bullying at work and two-thirds of people aged 18 to 29 say that there was homophobic bullying in their school. That is not a record that this country can be remotely proud of. It is that sort of thing that underlies my opposition to my noble friend’s amendment.

The overriding goal of policy today should not be to underline differences but to underline the goal of equality of treatment. That intention was overwhelmingly backed by the votes of both Houses of Parliament,

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and I certainly do not believe that we should try now to unpick the votes of the two Houses at Second Reading in this amendment.

Lord Richard: My Lords, I have an enormous respect for the noble and learned Lord, Lord Mackay, as he knows, but as a long-standing judge he also knows that when one says, “With the greatest respect”, one knows precisely what the phrase means. I have great respect for him and his argument but I am afraid that, on this, he is wrong. He is wrong because the reintroduction of a distinction that the Bill takes out is dangerous, destructive, divisive and debilitating.

I listened to this debate with great care and, with great respect to the noble Lord, Lord Cormack, he let the cat out of the bag when he stood there and said, “We have given you marriage, now give us the distinction”. That is a contradiction in relation to the Bill; the whole point of the Bill is that there is no distinction in relation to marriage. Marriage is something that will be available to gay couples in the same way that it is available to non-gay couples.

As I say, I have listened to this debate and it has gone round and round, but I have little doubt which way I shall vote if a vote takes place.

Baroness Kramer: My Lords, I have not spoken before in this debate; it has taken an exercise of will power, but I have been conscious that time is an issue, and that is true for many of my colleagues on these Benches. I moved the first civil partnership motion at my party’s conference in 2001, having turned to my noble friend Lord Lester for legal advice. I am happy and honoured that that process played a role in bringing us to the incredibly important civil rights legislation that we have in front of us today. I did so motivated by close family and friends who are bisexual, gay and straight but who believe that these changes are extremely important.

What drove me to speak today on the amendment moved by the noble and learned Lord, Lord Mackay, were the comments of the mother of a good lesbian friend who said to me, “Why is it so important to those people”—she means the noble and learned Lord, Lord Mackay, and others, and she means no disrespect—“to mark out my daughter as different and to mark out her relationships as different?”. There are many differences, and others have described them. Every marriage is different and many of us fall into a variety of different categories. However, there are those we choose to mark out, and it is a choice—there is nothing inevitable about marking out a difference. That choice says something about the values of the society of which we are a part and something about ourselves. I have struggled today to understand why creating and reinforcing that sense of us and other is so important, and it seems to me to lie behind those amendments.

I promised that I would be brief. I spent some years, as noble Lords will know, in the United States, so perhaps I come to some of these issues of civil rights with a slightly different perspective. I am conscious of the dissenting view of Justice John Marshall Harlan in 1896 in Plessy v Ferguson. It was that Supreme Court ruling that created the basis for separate and equal. I thought I would read noble Lords one of his sentences, slightly paraphrasing. He said, “The thin disguise of

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equal”, and have we not heard today that these changes still permit equal? However, he said, “The thin disguise of equal will not mislead anyone”, and I believe that the changes proposed today will not mislead anyone. They are not a mechanism for recognising the common institution of marriage, which unites every adult engaging in a committed, loving and public relationship and who chooses to express that through marriage, whether it is with a person of the same sex or a person of the opposite sex. I ask that this House recognises that the thin disguise of equal is not where we should be on this crucial piece of civil rights legislation.

4.15 pm

Lord Elystan-Morgan: My Lords, I respectfully disagree with the noble Lord, Lord Deben, who made an excellent speech. Although I agree with his basic submission, I disagree with his argument that this is a wrecking amendment. It is not a wrecking amendment, but it is an amendment that, if carried, could defeat the whole purpose and objective of this legislation. It is on that basis that we should look at it this afternoon.

The issue is important but simple: whether you elongate the institution of marriage to include same-sex marriage as one indivisible institution, or draw a dividing line through it—a frontier line that will create two categories of marriage, one a gold standard and one a standard of baser metal. That is the issue.

There are three arguments that can be put very briefly in favour of opposing the amendment and accepting the elongated institution argument. First, marriage has passed through many different phases, definitions and concepts in the past 200 years. Before the 1836 legislation, all people who wanted to get lawfully married had to be married in the Church of England. Many, like my forebears, found that extremely distasteful but that was it—it was a fait accompli. Before the Married Women’s Property Act 1882, a married woman could not hold property; it became her husband’s upon marriage. All that she could cling to was what was called her paraphernalia. That changed everything. Before 1991, where two persons were married and no separation order had been made by the courts, a man could rape his wife and she would have no redress. Do you think that did not change the institution immensely? One may point to a number of other phenomena that have in total, and in many cases individually, changed the situation fundamentally. That is the first argument: there have been changes in the law that have fundamentally metamorphosed the whole concept of marriage.

Secondly—I say this with very great diffidence as a Welsh Presbyterian—there have been changes in the spiritual world as well. The Book of Common Prayer justifies marriage in three ways: first, for the procreation of children; secondly, so that the temptations of adultery and fornication should be removed; and thirdly, so that there should be a lifelong, devoted, loving partnership between two people. As far as the first is concerned, you might say that people who are beyond child-bearing age are logically in breach of that precept, but nobody in his or her senses would argue that. However, I know many young people who, for professional reasons, have married on the basis that they will not have children. That is the clearest understanding and agreement

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between them. Do you say that their marriage should be placed in some hermetically sealed compartment on that account? I would not argue that. Essentially, is one not justified, to a large extent, in saying that the essence of marriage today for so many people is that lifelong commitment of love, affection and loyalty? If that be the case, one can say, yes, in the spiritual world, too, there have been massive changes that have been accepted by society.

There is a third justification. Many Peers have already spoken of the days before 1967, when homosexuality was a very grave offence. I remember well over 60 years ago, when I was a young law student, going along to the assizes and seeing the local vicar, the nonconformist minister, the accountant, the solicitor and many similar people of high standing in society, all being sent to prison for four or five years for what we would today call “lavatory cases”. I remember thinking, “There must be some better way of dealing with this problem”.

I have argued with myself a great deal over the past few weeks as to where I stand in relation to this matter. I have asked myself whether this change—the concept of single-sex marriage, which is of course a massive change—is of such magnitude as to demean and in some way unsettle and undermine the concept of marriage. I have asked myself whether it any way demeans or changes my own marriage. I was supremely happily married for 48 years to a very splendid lady, who died six years ago. I am sure that if she were alive today, she would say to me, “Yes, there is a third argument: the argument of reasonableness and tolerance”.

As a community we have treated these people abominably, in a way that is a disgrace to our religion and to so many things that we believed we stood for as a community. Now we have a chance to make up for that, and we will do exactly that by elongating and not dividing.

Lord Phillips of Sudbury: My Lords, I apologise to my noble and learned friend Lord Mackay of Clashfern. British Rail prevented me from being here when he opened this debate. However, I have had the advantage of long discussion with him concerning his reasons for putting forward the amendment and I support it.

This is not an easy debate. I am sure that there are many in the House now who sway this way and that. The issues are highly complex and diverse and we have heard some outstanding speeches today. However, I disagree totally with one of the things that my noble friend Lord Fowler said when he put it to the House that if we passed this amendment it would add directly to homophobia in this country. If I was even a little in agreement with him on that, I would not be standing and speaking here. However difficult it is to assess the reactions of the great people of this country to matters such as this, far from increasing homophobia, Amendment 1 could ease the passage and consequences of this profoundly important measure for the millions of our decent, not prejudiced and not homophobic countrymen who currently believe that we may be foisting on them what they would call an untruth—they might call it dishonest or a public relations exercise.

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Whether we like it or not, millions of our decent fellow-citizens will agree totally about same-sex couples having the same esteem, love and life-long commitment, and so on, but, as has been said many times, and so one need not elaborate on it, they believe that unions between same-sex couples and opposite-sex couples are different and that they have profoundly different potential consequences. To say that many opposite-sex couples are disabled, too old or disinclined to procreate is not an answer to the fundamental factual and real difference. That is where, I repeat, millions of our countrymen sit at this time. The noble Lord, Lord Pannick, talked about an inferior status, but they do not want to create anything of the sort. Nobody is interested in belittling the commitments made by homosexuals; there are a few, but, I maintain, not many. However, what they do say is, “Why are we pretending that it is exactly the same when it is profoundly different in one particular?” Why not use the word “marriage”, since that is the important thing, and then have the qualification? It is not even as though the qualification is very novel: it is in the Title of the Bill as we sit here. I believe that in time—and I do not think that it will be a long time—people will concentrate on the word “marriage” and the bracketed bit, frankly, will fade into lesser and lesser significance as the public mind progresses.

One might ask, “Why have that wording?” I actually believe—this is the nub of it—that we will ease the passage of this important measure if we put Amendment 1 in the Bill. We will salve the present discontent that so many people feel about the Bill as it stands. That is why I shall vote for Amendment 1.

Baroness Howarth of Breckland: Before the noble Lord sits down, does he not think that that has already been achieved by the lock? I am always interested when the right reverend Prelates join in the debate. The only other intervention I have made in these debates was to ask the most reverend Primate the Archbishop of York whether, if the Bill goes through, the Church of England will marry gay couples. We know the answer to that. Those people who object already have a huge lock—I am not sure that I am happy about that in itself—and that holds enough.

Lord Phillips of Sudbury: The noble Baroness raises an interesting point. The quadruple lock is important to people of religious faith. However, I am not talking just about people of religious faith. The current objection goes way beyond that category.

Lord Winston: Is the noble Lord aware of the research on children who are being raised by people who are gay—either lesbian or male homosexual? There is now a large and incontrovertible body of research evidence—particularly from Professor Golombok of the University of Cambridge—which shows that on average such children do better than children who are born in the normal way of current marriage. That is an important point as several noble Lords have raised the issue of procreation. We have to understand that there is no evidence at all that children are worse off as a result of having parents who are in a gay partnership.

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Baroness Northover: I remind noble Lords that we are at Report stage and that interventions, if they must happen, should be very brief—namely, a quick question of clarification rather than, in effect, another speech. I also remind my noble friend that those who speak in each debate should be here at the beginning. I realise that there are problems with trains. Nevertheless, there are a lot of noble Lords seeking to get in.

Lord Phillips of Sudbury: If I may answer briefly the noble Lord, Lord Winston—

Noble Lords:No.

Lord Davies of Coity: My Lords, Amendment 1 is very simple and I give it wholehearted support. Some things have been said during the debate on which I want to comment. The noble Lord, Lord Fowler, talked about prejudice. Yes, there is prejudice. For example, there is prejudice about capital punishment and there is prejudice about the European Union. We do not ban them. In fact, we might be having referendums on them shortly. Nevertheless, there is prejudice.

This amendment is a simple one. It distinguishes between natural relationships between men and women on the one hand and relationships between men and between women on the other. That is fine. However, everyone has a vested interest in this debate. I have one, for example, and the noble Lord, Lord Alli, has one as well.

I have been married to my wife for 53 years and have four daughters. My second daughter wanted a second child and tried IVF nine times before she succeeded in having one. When I went to the IVF clinic, I saw the faces of women who wanted nothing else but to have children. This amendment protects those children as well as giving members of the gay community the opportunity to marry. They want to have that opportunity and they will get it. However, a marriage between a man and a woman has to be identified because it is natural and should exist separately in the way that this amendment provides for.

4.30 pm

Lord Elton: My Lords, my father told me that when this House was evacuated from this Chamber to let the House of Commons sit here, the Lords moved to the Robing Room. The space there was limited by the voting lobbies on either side, the rails below the Throne and the Bar at the bottom of the House. He said that the result was not really a Chamber but a rather comfortable drawing room, in which one could not have oratory but only talk to each other. He thought it was a great pity that the Lords returned to this Chamber. We have heard a lot of oratory today and I think sometimes it moves people to go a little further than they intended. For instance, my noble friend Lord Deben said that anyone who opposed the amendment did so out of ignorance or something—

Lord Deben: I am sorry. If that was said, it was a mistake. I said that, were we to pass this amendment, some people outside, either through ignorance or bad will, would use it in a way which would be damaging and divisive.

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Lord Elton: I am delighted. I can move swiftly on to my other small, brief point, which is simply that after a battle the battlefield is covered with broken lances, some of which are worth picking up and mending. We have to distinguish between “equal” and “the same” and the difference has to be understood. Underlying this there is an assumption that if something is different it cannot be equal. I ask your Lordships to look at other noble Lords around the Chamber for a moment or two and remember that this is a House of Peers. We are all equal and, by gum, we are all different.

Lord West of Spithead: My Lords, in the mid-1990s I was the Naval Secretary with responsibility for naval personnel and the Special Investigation Branch. On taking up that post, I discovered the degrading treatment that was meted out to people suspected of being gay, who had anonymous phone calls made about them. It was still illegal to be gay in the services. I was shocked and appalled at how gay people were treated. I stopped that behaviour immediately and then pushed very hard to allow them to be accepted in the Armed Forces. Thank goodness, that happened because it worked brilliantly and it is a good thing to have done. We have a terrible baggage from how we have treated homosexuals and lesbians in this country, as was said by the noble Lords, Lord Deben and Lord Fowler, and others. I am afraid that this is a wrecking amendment. When I came into the Chamber, I did not know how I would vote on the amendment. However, having listened to the arguments put forward, I fear that this is a wrecking amendment. The noble Lord, Lord Pannick, is absolutely right: every marriage is different. Will this demean my marriage? It will not do so at all. I believe that the people we are discussing should have the opportunity.

Baroness Howarth of Breckland: My Lords, I have not made a speech in this debate, just two short interventions, and I wish to speak briefly now. Having talked to dozens of gay people recently and to my ordinary friends who wanted to discuss the Bill, it is clear that the only thing gay and lesbian people want is to be treated as ordinary people. They do not want to be (extraordinary) people. People who are on the receiving end of prejudice, particularly when they are practising Christians and live profoundly Christian lives, know what those brackets mean. They mean that you are different; you are not ordinary. Being ordinary means living in your community and bringing up children—maybe lots of children. It means going to church regularly and being accepted on the same basis as every other Christian in your community. It means sharing with your fellows on an equal basis. Gay and lesbian people do not want brackets as they make them different and will make them even more different as they travel across the world. I beg your Lordships, in common decency, to give gay people what they want: simply to be ordinary.

Baroness Thornton: My Lords, I ask your Lordships not to be seduced by the honeyed words and assurances of the noble and learned Lord, Lord Mackay of Clashfern, of whom we are all extremely fond and for whom we have the most enormous respect. However, assertions about consummation

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and children, for which there is really no evidence, are nothing to do with this Bill. The effects of these amendments are the same as those introduced in Committee at the beginning: that one form of marriage is different and therefore probably inferior to another. This completely flies in the face of the Bill’s purpose.

We are all much aware of the noble and learned Lord’s concern about family and children, because he has spoken about them many times in this Chamber. However, with respect, these are not the issues being discussed in this Bill. I agree with many noble Lords who said that this will probably be known as the “brackets” amendment. We do not want or need brackets in this Bill, because its very purpose is to provide for the state to recognise equally the relationships of couples who wish to make a loving and lifelong commitment to each other, regardless of whether they are members of the same sex or of the opposite sex.

I accept that this purpose moves the statutory concept of marriage beyond that which proponents of traditional marriage agree. This amendment is about creating two classes of marriage. I congratulate my noble friend Lord Anderson, who spoke of celebrating his special wedding anniversary, but I hope that I will live long enough to celebrate silver wedding anniversaries of same-sex marriages which will take place next summer. My noble friends Lord Alli and Lord Richard, and the noble Lords, Lord Fowler, Lord Deben, Lord Pannick and Lord Lester, put the case powerfully and well.

I am surprised by the opposition to equality of marriage from the noble Earl, Lord Listowel, given his work with children, for which he is famous in this House. If he had discussed this with young people, as I have, he may find that in most cases they really do not understand what the fuss is about or what the problem is here. I do not think that the problems faced by the types of young people the noble Earl helps and supports are a result of, for instance, the proposal for same-sex marriage. That cannot be the case.

I would say to the noble Lord, Lord Waddington, that I have not seen any hostility to the church during the course of these discussions. My noble friend Lady Royall and I have met both the Church of England and the Roman Catholic Church on several occasions throughout the course of this Bill. They were friendly exchanges and friendly discussion. We disagree with each other on some of this Bill, but I have not seen any unfriendliness, nor do I think that the dismal picture that the noble Lord paints will come to pass.

I do not think that the word “wife” will be abolished. As a wife, I certainly do not think so and I hope that nobody will put any ideas into my husband’s head. We wives are probably very safe with the passage of this Bill. My noble friend Lord Alli asked the question, “Why do same-sex couples have to have bracketed marriages?”. I agree with him that it is a bad idea. We should defeat this amendment.

Baroness Stowell of Beeston: My Lords, I am grateful to my noble and learned friend for introducing his amendment and for all the contributions to the debate. One or two noble Lords referred to this issue as being complex. I disagree with them. What is before us is

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very simple. There is one institution of marriage, it is one of the most important institutions that we have, and we want gay and lesbian couples to be a part of it in exactly the same way as any other couples who wish to be married. These amendments create two separate, potentially legal institutions and, therefore, undermine the fundamental purpose of the Bill, as other noble Lords, including the noble Lords, Lord Pannick, Lord Alli, Lord Deben and Lord Richard, have said.

Every time that we have introduced a change in support of gay rights, it has been hard-fought for and not always been easy to progress. None the less, it has made it easier to take the next step. Each step makes it easier for gay men and women to live their lives in the same way as straight men and women. I noted what the noble Baroness, Lady Howarth, said about gay men and women wanting to live ordinary lives. The more that we allow them to do so, and to see them doing so, the more it leads us to believe that we should remove from them any barriers to being able to do just that.

The creation of civil partnerships was a massive step forward. Through them, we gave gay couples equal rights. I was not in Parliament at the time, but I guessed that Parliament decided that the difference between us justified keeping gay men and women out of the institution of marriage. However, over the past eight or nine years, as we witnessed civil partnerships taking place and have become familiar with couples in civil partnerships, we as a society have realised that the exclusion of gay men and women from marriage is not justified.

My noble friend Lord Cormack said that he wanted us to reach a compromise and that the amendment represented that. I say to him and to all noble Lords who support him and these amendments that the time for compromise is over. We now understand that serious relationships between gay men and between gay women are no different from serious relationships between straight men and women. I have said many times during the passage of the Bill that gay couples want to settle down for exactly the same reasons as all other couples do. They are two people who love each other, want to commit to each other, want to provide security and stability for each other, and want to be a team, a partnership and to support each other. Like straight people, that is what leads gay people to want to marry. There is no difference there between us.

My noble and learned friend Lord Mackay pointed to differences and raised the issue of procreation and children to illustrate his argument. The Bill as it stands distinguishes between same-sex couples and opposite-sex couples only as far as is necessary to achieve a practical result. My noble and learned friend talked at length about children. In response, I should make just a few points. The first, which is really important, is that if we enact the Bill, the children of same-sex couples will be able to enjoy the same status as other children. That is a fantastic thing to be able to achieve. It will mean that children at school will not be treated differently, as their parents will be married in the same way as other parents may be.

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4.45 pm

My second point is that the Bill does nothing to change the parental status and responsibility for children born to a woman married to a woman or a child adopted by two men. I set out this in great detail in a letter to the right reverend Prelate the Bishop of Guildford after the debate on parental responsibility in Committee. The paragraph in Schedule 4 to the Bill which refers to parental responsibility does only one thing—it makes clear a statement of biological fact. A child born to a woman married to a woman is not biologically linked to both spouses. However, it is important to stress that, through this Bill, everything that already exists in law about parental responsibility for children—whether they are children born through IVF or adopted—or any other measure that safeguards their future, which is important, will not change; we are not changing anything in that regard.

The noble Earl, Lord Listowel, referred to the importance of both parents of a child being able to provide support to that child and the child succeeding. He questioned whether there was any evidence about how a child thrives in the family of a same-sex couple. I should say to the noble Earl and to all noble Lords that there is clear evidence that the children of same-sex couples do very well indeed. Research shows that they do better than children of opposite-sex couples. So there is evidence there. There is no evidence to suggest that a child who is part of a family where the parents are a same-sex couple should give any cause for concern.

My noble friend Lord Waddington said that we have rejected the view that marriage can only be between a man and a woman and that it was only right, therefore, that we consider these amendments because we were not taking that belief into account. I disagree with that. As I said at Second Reading, this Bill is as much about protecting religious freedom and the belief that people should be absolutely free to hold and express the view that marriage should be between a man and a woman. However, for all the reasons expressed by many noble Lords during today’s debate, we are not going to legislate in a way that creates two separate types of marriage.

The key point I want to make is that gay men and women want to marry because they support the institution of marriage and want the stability and security it offers. They do not want to change it. They want society to recognise their commitment to each other in exactly the same way as it does for every other couple.

The Government want to make that happen. As I said at the beginning, there is one institution of marriage and we are opening the door to it. We do not want to open a separate door marked “same-sex couples”. There will be only one door and all couples will be invited to walk through it.

The Earl of Listowel: I thank the noble Baroness for her reply to my question about research into outcomes for children of same-sex couples. It is encouraging and reassuring, to some extent, that there is positive research about the experiences of two women bringing up a child. However, is she aware that it is still early days in terms of research? We have not, for instance, looked very deeply at what happens to children being brought up by two men. We have not looked at issues around

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lower income couples and the outcomes for them. Surely we need to keep in mind, and be critical about, all the research because we know, for instance, about poor outcomes for boys who grow up without fathers. We need to look at the research critically because it is still early days.

Baroness Stowell of Beeston: I would disagree with the noble Earl’s suggestion that there is a difference in outcomes for children of same-sex couples, but that is a debate for another day. That argument, and the points he makes are not relevant to the amendments before us, which are about creating two different types of marriage. We are saying that there is only one institution of marriage, and both gay and straight couples who want to get married should be able to be part of that one institution on equal terms.

Lord Mackay of Clashfern: My Lords, I am obliged to all those who have taken part in this debate, whether supporting or opposing my amendment. It is interesting to hear what people have to say. I quite understand that the noble Lord, Lord Alli, does not like the brackets, but they have been put in by Government in the Bill’s Title. I thought, what else can I do but accept the Government’s guidance on the matter? However, I think perhaps that that is not the noble Lord’s most important point.

My noble friend Lord Deben, in a characteristic speech, said that the distinction between the two types of marriage was universally recognised, so why should it be recognised in the Bill? If it is universally recognised, surely it would be right to recognise it in the Bill because it is founded on the absolute fact of what occurs. The two are distinct. I do not try to separate them; I just distinguish because they are distinct in fact, and nobody can alter that. The idea that I am trying to wreck the Bill is not correct, I am sorry to say—well, perhaps I am not sorry; I should be glad to say that it is certainly not correct. I want to recognise in the Bill a distinction which, according to my noble friend Lord Deben—and who higher an authority?—is universally recognised. It damages the Bill in the eyes of ordinary people when it is not seen that that is recognised.

My noble friend said that I went on at length about children. I am sorry if I went on too long, but it is a very important factor. Children are very much at the centre of the institution of marriage as it was—and is until the Bill is passed. They are very much at the centre, and indeed, as your Lordships know, in relation to divorce and all that, elaborate provisions were made for children. Children are very important to marriage. There is a statement about children in the Bill which I regard as very important. Paragraph 2(1) of Part 2 of Schedule 4 states:

“Section 11 does not extend the common law presumption that a child born to a woman during her marriage is also the child of her husband … Accordingly, where a child is born to a woman during her marriage to another woman, that presumption is of no relevance to the question of who the child’s parents are”.

Therefore, the situation is that when two women are married under the Bill, and one of them has a child, that child has the same status as if the woman were single. If that is not a distinction—it should be recognised at some point, whether in brackets or otherwise—I do

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not know what an important distinction can be. If the Government want to improve on the brackets, I shall be happy that they should do so, but I believe that there is a universally recognised distinction between the marriage of two men or two women on the one hand and the marriage of a man and a woman on the other. These are facts that depend on something outside, and impossible to move, or remove by this legislation. The Bill would be improved by people realising what it does and recognising this universally understood distinction.

My noble friend Lord Lester quoted from the dissenting judgment of one of the Justices of the Supreme Court of the United States. He distinguished between the two types of marriage: the one slightly older and the more recent one. I want to include in the Bill recognition of that distinction. The quotation of the noble Lord, Lord Lester, seemed to imply the necessity for some form of sexual relationship in both types of marriage. I pointed out, and I think it has been accepted so far, that same-sex marriage is not gay marriage—it is quite wrong to describe it thus. It includes gay marriage, of course, but it is wider because it involves same-sex couples, whether gay or not. Platonic relationships are perfectly possible under the Bill.

Lord Lester of Herne Hill: I am grateful to the noble and learned Lord. The reason I was quoting Justice Alito was simply to say, as he did, that the choice is for the legislature, and that we have in the Bill protected both kinds of marriage. That is why I did so.

Lord Mackay of Clashfern: Exactly, the choice exists. We have chosen—I want to make it clear that we have chosen—to embrace both in our definition of marriage because that is what I am doing. The idea that my noble friend Lord Lester suggested, that I preferred one to the other or said that one was superior to the other, is quite unfounded so far as these amendments are concerned. There are later amendments that may go further, but this amendment strikes me as the absolute minimum to recognise the distinction that exists in fact. I moved the amendment and I would like to seek the opinion of the House.

4.57 pm

Division on Amendment 1

Contents 119; Not-Contents 314.

Amendment 1 disagreed.

Division No.  1


Ahmed, L.

Allenby of Megiddo, V.

Anderson of Swansea, L.

Armstrong of Ilminster, L.

Berridge, B.

Blencathra, L.

Boothroyd, B.

Brennan, L.

Brougham and Vaux, L.

Browne of Belmont, L.

Butler of Brockwell, L.

Byford, B.

Campbell-Savours, L.

Cathcart, E.

Chester, Bp.

Clarke of Hampstead, L.

Cobbold, L.

Cormack, L. [Teller]

Cox, B.

Cumberlege, B.

Dannatt, L.

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Davies of Coity, L.

Dear, L.

Donoughue, L.

Eames, L.

Eaton, B.

Eccles of Moulton, B.

Eccles, V.

Eden of Winton, L.

Edmiston, L.

Elton, L.

Falkland, V.

Flight, L.

Fookes, B.

Framlingham, L.

Freeman, L.

Gardner of Parkes, B.

Glasgow, E.

Glenarthur, L. [Teller]

Gordon of Strathblane, L.

Greenway, L.

Hameed, L.

Hollins, B.

Howie of Troon, L.

Hylton, L.

Imbert, L.

Inglewood, L.

James of Blackheath, L.

Kilclooney, L.

Kirkhill, L.

Knight of Collingtree, B.

Leach of Fairford, L.

Lewis of Newnham, L.

Lindsay, E.

Listowel, E.

Liverpool, E.

Lothian, M.

Luce, L.

Lyell, L.

Lytton, E.

McAvoy, L.

McColl of Dulwich, L.

Macfarlane of Bearsden, L.

Mackay of Clashfern, L.

Maginnis of Drumglass, L.

Mancroft, L.

Marlesford, L.

Martin of Springburn, L.

Mawhinney, L.

Mawson, L.

Miller of Hendon, B.

Montgomery of Alamein, V.

Montrose, D.

Morrow, L.

Naseby, L.

Neville-Jones, B.

Nicholson of Winterbourne, B.

Northbourne, L.

O'Cathain, B.

O'Loan, B.

Palmer, L.

Patel of Blackburn, L.

Pearson of Rannoch, L.

Pendry, L.

Phillips of Sudbury, L.

Quirk, L.

Rooker, L.

Rowe-Beddoe, L.

St John of Bletso, L.

Saltoun of Abernethy, Ly.

Seccombe, B.

Selkirk of Douglas, L.

Selsdon, L.

Sharples, B.

Shaw of Northstead, L.

Simon, V.

Singh of Wimbledon, L.

Slim, V.

Snape, L.

Stewartby, L.

Stoddart of Swindon, L.

Swinfen, L.

Temple-Morris, L.

Tenby, V.

Thomas of Swynnerton, L.

Tombs, L.

Trefgarne, L.

Trenchard, V.

True, L.

Ullswater, V.

Vinson, L.

Waddington, L.

Wade of Chorlton, L.

Walker of Aldringham, L.

Walpole, L.

Walton of Detchant, L.

Williams of Crosby, B.

Williams of Elvel, L.

Wilson of Tillyorn, L.


Aberdare, L.

Addington, L.

Afshar, B.

Allan of Hallam, L.

Alli, L.

Andrews, B.

Anelay of St Johns, B. [Teller]

Armstrong of Hill Top, B.

Ashdown of Norton-sub-Hamdon, L.

Ashton of Hyde, L.

Astor, V.

Attlee, E.

Avebury, L.

Bach, L.

Baker of Dorking, L.

Bakewell, B.

Barker, B.

Barnett, L.

Bassam of Brighton, L.

Bates, L.

Beecham, L.

Benjamin, B.

Berkeley of Knighton, L.

Billingham, B.

Bilston, L.

Birt, L.

Black of Brentwood, L.

Blackstone, B.

Blair of Boughton, L.

Blood, B.

Boateng, L.

Bonham-Carter of Yarnbury, B.

Borrie, L.

Brabazon of Tara, L.

Bradley, L.

Brinton, B.

Brittan of Spennithorne, L.

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Brookeborough, V.

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Caithness, E.

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Cameron of Lochbroom, L.

Carlile of Berriew, L.

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Christopher, L.

Clancarty, E.

Clark of Windermere, L.

Clement-Jones, L.

Clinton-Davis, L.

Collins of Highbury, L.

Colville of Culross, V.

Cope of Berkeley, L.

Corston, B.

Courtown, E.

Coussins, B.

Craigavon, V.

Crawley, B.

Crickhowell, L.

Cunningham of Felling, L.

Davies of Abersoch, L.

Davies of Oldham, L.

Davies of Stamford, L.

De Mauley, L.

Deben, L.

Deighton, L.

Desai, L.

Dholakia, L.

Dixon-Smith, L.

Donaghy, B.

Doocey, B.

Drake, B.

Dubs, L.

Eatwell, L.

Elder, L.

Elis-Thomas, L.

Elystan-Morgan, L.

Evans of Temple Guiting, L.

Falkner of Margravine, B.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Faulks, L.

Fellowes of West Stafford, L.

Fellowes, L.

Filkin, L.

Flather, B.

Foulkes of Cumnock, L.

Fowler, L.

Freud, L.

Gale, B.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gibson of Market Rasen, B.

Giddens, L.

Glendonbrook, L.

Glentoran, L.

Golding, B.

Goldsmith, L.

Goodhart, L.

Goodlad, L.

Gould of Potternewton, B.

Grabiner, L.

Grade of Yarmouth, L.

Greaves, L.

Green of Hurstpierpoint, L.

Greengross, B.

Grey-Thompson, B.

Grocott, L.

Hamilton of Epsom, L.

Hamwee, B.

Harries of Pentregarth, L.

Harris of Haringey, L.

Harris of Richmond, B.

Harrison, L.

Hart of Chilton, L.

Haskel, L.

Hattersley, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henley, L.

Hennessy of Nympsfield, L.

Higgins, L.

Hill of Oareford, L.

Hilton of Eggardon, B.

Hogg, B.

Hollick, L.

Hollis of Heigham, B.

Hope of Craighead, L.

Howarth of Breckland, B.

Howarth of Newport, L.

Howe of Aberavon, L.

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Howe, E.

Howells of St Davids, B.

Hoyle, L.

Hughes of Stretford, B.

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Hunt of Kings Heath, L.

Hunt of Wirral, L.

Hussein-Ece, B.

Irvine of Lairg, L.

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Joffe, L.

Jolly, B.

Jones of Cheltenham, L.

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Judd, L.

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Kidron, B.

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Laming, L.

Lane-Fox of Soho, B.

Layard, L.

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Leicester, Bp.

Lester of Herne Hill, L.

Levy, L.

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Lister of Burtersett, B.

Lloyd of Berwick, L.

Loomba, L.

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Lucas, L.

McDonagh, B.

MacGregor of Pulham Market, L.

McIntosh of Hudnall, B.

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Maclennan of Rogart, L.

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Maddock, B.

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Mandelson, L.

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Monks, L.

Morgan of Drefelin, B.

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Morgan, L.

Morris of Bolton, B.

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Neuberger, B.

Newby, L. [Teller]

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Noakes, B.

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Nye, B.

Oakeshott of Seagrove Bay, L.

O'Donnell, L.

O'Neill of Clackmannan, L.

Ouseley, L.

Palmer of Childs Hill, L.

Pannick, L.

Patel of Bradford, L.

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Perry of Southwark, B.

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Prosser, B.

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Ramsay of Cartvale, B.

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Rogers of Riverside, L.

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Shackleton of Belgravia, B.

Sharkey, L.

Sharp of Guildford, B.

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Younger of Leckie, V.

5.13 pm

Amendment 2

Tabled by Lord Mackay of Clashfern

2: Clause 1, page 1, line 6, leave out “The marriage of a same sex couple” and insert “A marriage (same sex couple)”

Lord Mackay of Clashfern: My Lords, I give notice that, following that vote, I will not move a large number of other amendments in my name.

Amendment 2 not moved.

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Amendment 3

Moved by Baroness Cumberlege

3: Clause 1, page 2, line 7, at end insert—

“(6) Any duty of a person employed as a registrar of marriages on the date this Act comes into force (“relevant registrar”) to solemnize marriages is not extended by this Act to marriages of same sex couples if the relevant registrar has a conscientious objection to doing so.

(7) Nothing in subsection (6) shall affect the duty of a relevant registrar to carry out any other duties and responsibilities of his employment.

(8) The conscientious objection, under subsection (6), must be based on a sincerely held religious or other belief concerning only the marriage of same sex couples and in any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.”

Baroness Cumberlege: My Lords, in Committee, I introduced an amendment that allowed civic registrars to exercise a right to conscientiously object to conducting same-sex marriages. Although there was some support for that amendment—in fact, there was quite a bit—I sensed there would be much more support for a transitional amendment that would protect only registrars in office now; they would be protected only once the Bill becomes law. These men and women are already in post and were, in effect, exempt when the law on civil partnerships was introduced in 2004. I am very grateful to the noble Lords who have put their names to this much narrower and more focused amendment, and to those who wished to put their names down. They were restricted by the fact that only four names are allowed.

We understand the nervousness about allowing future registrars to object conscientiously, but why not take those who are in office now? Without protection, those registrars will be faced with an impossible position: resign and face possible unemployment, given how difficult it is to find a job in today’s labour market; or stay and act against their conscience. The lack of protection is unfair and inconsistent with other areas of law, and it will unduly limit the freedom of thought, conscience and religion.

We need to be fair to all. We need to ensure that those who wish to can exercise a conscience clause and that those who want a same-sex marriage can marry. Nothing in the amendment would prevent couples of the same sex marrying. In the spirit of tolerance and respect, we have considered and dealt with almost every concern put to us in this House and the other place. The noble Baroness, Lady Thornton, asked whether a previous amendment would open the door to registrars conscientiously to object to other things, such as mixed-race marriages. That was never our intention, and this amendment makes it clear beyond doubt that registrars will be able to object conscientiously only to same-sex marriages. We have done so by making it absolutely clear in proposed new subsection (6) that the conscientious objection applies only to the solemnisation of marriages. That is reinforced by proposed new subsection (8), which states that the religious or other belief on which the conscientious objection must be sincerely held must concern only the marriage of same-sex couples. Any other conscientious objection to marriage will not be covered by our amendment, so it will not allow registrars to object to conducting marriages for any other reasons.

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The noble Baroness, Lady Barker, seemed concerned about the scope of our previous amendment. She was under the impression that it would allow registrars conscientiously to object to more than the conducting of marriage. She was concerned that a registrar could, for example, sit in a register office at interview and refuse to assist any same-sex couple. Again, that is not what we intended. Therefore, our amendment has been revised to make it abundantly clear in proposed new subsection (6) that a registrar may conscientiously object only to conducting a same-sex marriage. Proposed new subsection (7) puts that beyond doubt by stating that any other activities will not be covered. Our amendment will not allow registrars to treat same-sex couples differently; it will merely allow them to refrain from solemnising their marriages.

I stress that our amendment is not unprecedented; it is nothing new. My noble friend, replying to the debate in Committee, attempted to draw a distinction between our conscience clause and others found in English law. I drew the attention of the House to numerous other cases, such as a doctor’s right to refuse to give contraceptive advice, a person’s right not to participate in work involving the treatment and development of human embryos, and the right of a Sikh not to wear a motor cycle helmet or a safety helmet.

Although the protection for teachers is not explicitly framed as a conscience clause, such as in our amendment, it operates like one nevertheless, because it also allows atheist teachers to refuse to conduct religious education without suffering any detriment. That operates at voluntary-aided faith schools and, interestingly, at non-faith schools. I am not saying that the registrar scenario is like that of a doctor not giving contraceptive advice or a teacher refusing to teach religious education.

Those conscience clauses and others—of which there are many—are all different, and they all allow a person to refrain from undertaking different activities. The difference did not prevent conscience clauses in those cases, so why does it in this case? What makes registrars so different as to warrant their forcible registration? Is the belief about marriage not as valuable as a belief about contraception? Is the belief about marriage not as worthy of protection as a teacher’s conscientious objection to teaching religious education? It is not, with the greatest respect, an answer to say that they perform a civil or a public function because doctors, medical professionals, teachers and so on, all of whom have the right to object conscientiously to some activities, also perform public functions for civil society. Not only is it therefore not fair to force all registrars currently in employment to conduct same-sex marriages if they conscientiously object to them, it is also unnecessary.

I am grateful to my noble friend for copying to noble Lords a letter from the chairman of the national panel for registration, but it takes us no further. Jacquie Bugeja, with whom I had a very interesting and long conversation, does not tell us in her letter, when referring to three consultation meetings, how many registrars attended each meeting. Only one or two registrars could have turned up, for all we know. Were the

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registrars who were not present asked for their opinion? For those who were, was there a general discussion or a confidential questionnaire? What was the format? In conversation, Jacquie could not tell me how many registrars were canvassed for their views. She said that it was left to local discretion within a local authority and that there was no follow-up by the panel.

We have not been able to find the minutes of the meeting of 2 June 2012. If there was no confidential questionnaire, registrars could have been reluctant to voice opinions. They could have risked disciplinary action being taken against them or being dismissed, as experienced by the unfortunate Miss Ladele. The second meeting was simply for 10 managers, whom we know are fearful that a conscience clause might cause them managerial inconvenience. Who attended the most recent regional meetings, held last month? Was it again just the managers, and how and where were those meetings held? What was the format and where are the minutes published for such an important issue?

The letter makes a series of unsupported statements, including that for the past 176 years registrars have been carrying out their duties and have never wanted a conscience clause. Of course they have not; they have never needed one. Local authorities up and down the country were able to accommodate their registrars’ conscientious objections. When an authority did not, it was taken to the European Court of Human Rights. The Joint Committee on Human Rights recognised the argument that registrars currently in office would not be free to hold to their beliefs if they were automatically designated as same-sex registrars. I welcome this conclusion and I urge noble Lords to support and accommodate the registrars currently in office. It is the right and the fair thing to do. In the spirit of tolerance and freedom of the individual, which is the hallmark of this House, let us together protect the registrars’ freedom of thought, conscience and religion. With this very modest but important amendment, we seek to do that. I beg to move.

Baroness Williams of Crosby: My Lords, I am a signatory to this amendment. I realise that the time is going by and I shall make my remarks in support of my noble friend Lady Cumberlege brief ones. Interestingly, there is a real dilemma here about both equality and liberty. Although the amendment is brief and limits itself to a modest request, it has considerably greater implications than may at first be realised.

A registrar is the first step towards a career in public life for a great many people. It is a job which they do for the community and one in which they reflect their community’s interests and concerns. It is a crucial step on the path towards the integration of different minorities, regardless of religion, language or earlier origin. It is therefore all the more important in communities where a large minority is present—let us say Muslims, or other religious groups—to make it possible for them to become registrars. To my regret, this amendment is limited quite deliberately to those already in office. I personally think that it would be better if it applied to anyone applying for this job, which, I repeat, in my view at least is the very first rung of a professional career in public life.

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I shall take this one step further. There are some religions that, for deeply held principles, very strongly cannot accept the idea of single-sex marriage. That includes most of the Muslim faith and those who are supporters of Orthodox Jewry. It seems only right that registrars who hold those faiths, and who have done their job properly and intend to go on doing it well, should not be excluded from entry into that profession or, even worse, forced out of it when they have already been in it for several years and have performed satisfactorily. I can think of almost nothing crueller than to announce that after two or three years a registrar who has been behaving himself or herself in an upright and proper manner should be compelled to leave their job, often at a time when they have children and other responsibilities, because of this legislation. I cannot for the life of me believe that most people in this Chamber who believe in equality and human rights would want to see that happen.

Frankly, I do not understand why this relatively limited change could not be made easily to permit people to make this decision on conscientious grounds— for example, as my noble friend said, in cases of giving advice on contraception or taking part in abortion. This very limited right, linked to one particular thing, would allow their conscience to be exercised.

I have two important points to add on this. The numbers concerned would be relatively small. I have recently looked at the record following the passage of gay rights in Spain, and one is talking of a few score people every year. That means that any decent register office could easily, by dint of rotation or of acceptance, treat this rather in the way that they do, quite properly, in the case of a registrar or an assistant registrar who becomes pregnant, covering for them in their enforced absence. That happens to all of us virtually every day of the week in existing forms of employment. It happens to civil servants, lawyers, teachers and doctors, and there is no reason on earth why it could not happen to registrars.

I have to say to the Minister that I find this insistence on such people not being able to have a conscientious objection puzzling, given that we know in advance that certain religions will find this very hard to accept. On the kinds of grounds that my noble friend has already talked about, it would seem sensible to make this exception in such cases.

I believe that this is genuinely a conflict about equality and liberty. I personally believe very strongly that opening the doors of becoming a registrar to people of all races and religions of this country is an important tool in advancing the integration of our communities. I point particularly to those communities in the Pennines and other parts of the country where there may be a very substantial minority, or even sometimes a majority, of Muslim British citizens, and we should ensure that they, too, are treated in an absolutely equal way.

I strongly commend my noble friend’s amendment. I add one thing to what she said about attempting to discover the opinions of registrars. It is always a mistake to ask the opinions of managers about the views of the people they manage, unless you have a proper method of discovering what they are. Surely we

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know from the sad history of Mid Staffs that one of the things you should not do if you smell difficulties is to talk to the top management and assume that they truly reflect what the ordinary, everyday workforce thinks, because often they have a very strong in built desire to avoid any problems of managerial difficulty, which they always see as too big an obstacle. I strongly support my noble friend’s amendment.

5.30 pm

Baroness Butler-Sloss: My Lords, I too have put my name to this amendment. It is a narrow and transitional amendment and does not in any way affect the fundamental underlying purpose of this Bill. Marriage registrars carry out a particularly attractive job. On the number of occasions where I have been to a civil ceremony, I have watched, with mounting enthusiasm, the way in which the registrar has made the marriage ceremony a really important occasion. I assume—and, indeed, I hope, since this Bill will become law—that the majority of registrars will give the same enthusiasm and pleasure to the single-sex couple as I have seen them do in those services. I am about to go to yet another great-nephew’s wedding, which will be a civil ceremony.

However, when a number of registrars took the job, the idea that marriage would be between single-sex couples was not even a blink on the horizon. I can understand perfectly well that those who come in in future will take a job in which they recognise that they will marry everybody, whether that is two males, two females or a male and a female. For those already in the post, for the reasons that the noble Baronesses, Lady Cumberlege and Lady Williams of Crosby, have both put forward, this is a small and special group. It would be particularly sad if, having given to the minority in this country the right to marry in the same way as the majority, we cannot recognise that there remains a minority who cannot take it. Are we to say that that minority, those who came into post before one ever thought there would be same-sex marriages, is not to be recognised at all?

As has already been said by the noble Baroness, Lady Cumberlege, what will these people do if they cannot marry but are ordered to do so? If this Bill will not permit them by the amendment to say no, will they have to resign? Will they get a job in this time of stringency and austerity in which we now live, when the job market is difficult? I ask the House to think about a small minority who would have had no idea that this would happen, and whose Christian beliefs would not permit them to marry the couples who will be able to marry by this Bill.

Lord Lester of Herne Hill: Will the noble Baroness explain why, when we brought in the race and gender discrimination and other controversial legislation, we never made transitional provision for those public officers to be able to discriminate, as they had been before, that we should now do so with this form of discrimination?

Baroness Butler-Sloss: It happened with abortion but, if I may say so, it was not a marriage. We all know how special marriage is; for goodness’ sake we would

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not all be here, voting in different ways, if we did not think that marriage mattered in a special way. It is for that reason, despite what the noble Lord, Lord Lester, says.

Lord Anderson of Swansea: Is the distinction not this: that there is no mainstream church, be it a Christian church or a Muslim group, in this country which believes in the principles of racist intolerance, whereas there are many mainstream people, Muslim and Christian, who do believe in traditional marriage? It is quite a simple distinction, which perhaps the noble Lord will consider.

Lord Pannick: My Lords, I—

Baroness Butler-Sloss: I had just about finished, but I had not actually sat down. I just want to say that I think this is a rather special, entirely transitional and narrow matter which I ask the House to treat with some degree of sympathy. It is rather different from the last vote that we had, which was on an important and fundamental point. There is nothing fundamental about this; it is a matter of helping a small minority.

Lord Mackay of Clashfern: My Lords, I put my name to this amendment too. I do not think that the fact that it is a public office is a distinction that is important. The important thing is that the law is changed after somebody has taken a job, and that law affects the conscientious view that that person has of the job. The nearest thing that came to my mind, in my own experience and connection with this, was when Sunday trading was introduced, again on a free vote. Those who were employed were given terms in relation to that. It seems to me that some such allowance is only fair, and fairness should apply in public offices as well as in private offices.

Lord Pannick: I apologise to the noble and learned Baroness. For my part, I cannot accept that a public official is entitled to protection against the requirement to perform his or her basic obligations in relation to the official duties which they are contracted to perform. As was pointed out in Committee, a judge or a magistrate who administers the law of the land cannot refuse to administer laws to which he or she objects. The law may well be clarified after that judge or magistrate has been appointed. No doubt some registrars have a conscientious objection to marrying divorced couples; I cannot see that a conscientious objection to same-sex marriage is any different.

Of course, as has been pointed out, the law does allow, in various contexts, for conscientious objections, including doctors and abortion and teachers and religious education. Sunday trading was mentioned by the noble and learned Lord, Lord Mackay of Clashfern. The difference, as I see it, is that the registrar is performing the function of the state, and the function of the state in this respect is to marry people. The law, not the registrar, determines who is eligible to marry. It is unfortunate if registrars take the view that they cannot continue to perform this role, but no one is asking them to approve of or bless same-sex marriage; all that they will be required to do is to perform the official function that they have contracted to undertake.

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Lord Elton: Before the noble Lord sits down, I wonder if he could enlighten me; I am only an ignorant layman. Am I right or wrong in believing that judges can in fact pass a case to another judge if they have difficulties with it, such as we have been talking about?

Lord Pannick: I am not aware that judges have an ability to refuse to hear and determine cases on the basis that they disapprove of the particular law of the land that they are charged with the duty to enforce. They accept as part of the job that their job is to apply the law; the law is made by Parliament.

Lord Deben: I believe that on this occasion we should remember what we have just done. We have just asked those who disagree with the view that I and others have taken, to understand why it is that marriage has to be the same for both single-sex and opposite-sex couples. Those of us who have done that have now got to think carefully about opposing this amendment. I support this amendment because I think generosity ought to be at the heart of everything that we do. I do not understand why it is unreasonable to say that those people, who took on a job with particular rules and very clear circumstances, should now be unable to carry through that job in the context of wider views and beliefs. It seems to me a very small thing indeed, but it is crucial to say this about the society we live in.

I remember the disgraceful behaviour in a previous Bill because of which many children have not had the opportunity of being adopted because we did not allow those for whom this was a matter of belief to continue to run adoption agencies unless they were prepared to offer for adoption children from same-sex marriages. As all those agencies always passed people on to those adoption agencies that did do that, there was no reason to do it, except that sometimes we mistake toleration for agreement. In other words, what we mean by toleration is that we should tolerate those things with which we agree. I think toleration is about being prepared to tolerate those things with which we do not agree.

I cannot see the comparison between the judge and the registrar. The job of the judge is consistently and continuously to interpret the law. He or she knows from the moment when they accept being a judge that that is what their job will be. They know that in future there may well be laws with which they do not agree, so it is perfectly proper to insist that they should use their technical ability to impose sentences for things which perhaps they feel ought not to be crimes or, the other way, to be less strict on things which they think ought to have been much better assessed by Parliament. But that is not true of registrars who are now registrars. There must be many who never thought that this change would take place. It has been a remarkable change in human society. It is one I wholly approve of, but I cannot pretend that it has not been very rapid.

Therefore, I ask this House to accept this in the same spirit that we who have sought to get this Bill through have asked others to accept something that is so different from the way in which they have previously thought. I hope that we will be magnanimous and generous enough to say that this is, after all, something that could properly be done, because it will not be for

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ever; it is merely referring to those people who are now in place. I would have much more difficulty were it not doing that. It seems to me that we ought to be a society capable of including this because, if we are not, we give to those who do not want the changes here every reason to believe that we have put intolerance in the place of a liberal approach.

I hold it to be one of the great achievements that we have reached this way of looking at our fellow citizens. We ought also to think of those who through no fault or choice of their own were unable to imagine that they would now be asked to do this. After all, it is a terribly simple matter. We are just making sure that, when such a thing arises in a registrar’s office, Mrs Jones or Mr Smith is not asked to perform that particular ceremony. If this House cannot see that that is the same spirit as the spirit that puts this Bill through, we must be much mistaken.

Baroness Richardson of Calow: My Lords, I recognise what the noble Baroness said about how important it is for a marriage to be conducted in a very proper way. Sometimes the presence of a registrar can make a marriage very special, but the registrar is invited to register a marriage, not to make it or to bless it. If he or she does not register it, someone else will have to. It is not going to make a difference to whether that marriage takes place. We need to have concern for smaller registry offices that do not have a huge number of registrars and which would have to make a rota that took into account people’s sensitivities. This is going a step too far.

Lord Alli: My Lords, we debated at Second Reading and in Committee the rights of this group of employees not to conduct same-sex marriages. I understand that it might seem unfair to some that registrars who do not approve of gay marriage should have their jobs put at risk if they refuse to marry same-sex couples. Registration is the core of what those public employees do. It is not an add-on. It is their refusal to do a substantial part of their job that creates the issue, not their religious belief. We divide church and state, and I think it is dangerous to let church bleed into state functions. I believe that every citizen of this country has a right, regardless of colour, creed, background, religion or, indeed, sexual orientation to have equal access to the goods and services offered by the state. We all pay for them.

5.45 pm

Lord Deben:That would be a reasonable argument and one that I would support for people in future, but does the noble Lord accept that there ought to be some generosity towards those who have chosen this profession and for whom the matter of registration—and it is that—stretches their beliefs to a degree that means that they cannot do it? It is not for us to decide what is a proper belief; that is one result of a division between church and state. We ought to be able to allow the small number of those for whom this is true to continue in their jobs until they move on.

Lord Alli: I do not believe that it should be up to public servants to pick and choose which laws they will and will not implement. This is not a religious ceremony.

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Baroness Williams of Crosby: Would the noble Lord, Lord Alli, consider looking at other countries and at what has happened in cases where public servants have questioned the conscience of the state in asking them to do things that they believed to be deeply wrong? How much we all feel in debt to those brave people who stood up in countries such as Germany in the 1930s, and elsewhere, because they believed they had a conscientious objection to what the state was ordering them to do.

Lord Alli: I understand the point the noble Baroness, Lady Williams of Crosby, is making, but it undermines her argument when she and the noble Baroness, Lady Cumberlege, seek to rubbish the national panel for registration and the opinions it gave and question the core of what registrars are saying. They are saying that they do not want this.

In Committee, I said that we have to divide church and state, and this is the other side of the coin. If the noble Baroness, Lady Williams of Crosby, wants me to accept what she just said, would she accept that the church has made it very clear that it wants an absolute opt-out? It has insisted, quite rightly, and I am happy that it has done so, that any individual priest or cleric, no matter how strong their belief in same-sex marriage, should not be allowed to opt in until the religious organisation has agreed. There is a blanket exemption, so if I were a priest—the Bishop of Salisbury—and I deeply believed that I should be allowed to marry gay couples, why could I not opt in? There is a blanket ban from the churches. Individual opt-in and opt-out are not on the table. The churches themselves ruled it out at the beginning of this process. No priest can opt in; no registrar can opt out. If we accept the case for religious organisations barring individuals from opting in, we, too, must accept the case for civil registrars not being able to opt out. We have discussed this issue at length; we need to resolve it today.

Lord Lester of Herne Hill: My Lords, I cannot remember whether the Race Relations Act 1976 had already come into force when I got married 41 years ago in the Brixton register office. However, suppose that that Act had not come into force at that time. In Brixton, there are a lot of black people. If I had wanted to marry a black person and we turned up at the Brixton register office, where the registrar looked at us and said, “I’m very sorry, but I have a conscientious objection to mixed marriages. I don’t wish in any way to undermine you, but I just can’t do this”, that would be impermissible. A public servant who is performing statutory duties must not discriminate on any forbidden grounds.

Lord Cormack: Will my noble friend concede that there is a difference between racism, which is bigotry, and a deeply held belief?

Lord Lester of Herne Hill: My Lords, I understand the difference. Bigots normally have deeply held beliefs. My point is not about the sincerity of the belief but the discriminatory conduct of a public officer. We have never before, in the various phases of introducing and enacting—