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Baroness O'Loan: The noble Lord said that that would have been possible only in cases where one is lawfully permitted to say, “I cannot marry you”. The noble Lord said that it was for Parliament to decide. If that is the case, what we are trying to decide here is: what does Parliament want to decide? We cannot make a decision until we have decided it, so the question must be open. We have situations in which Parliament has decided that it is perfectly legitimate for someone to exercise their freedom of conscience—

A noble Lord: Ask the question.

Baroness O'Loan: I am asking the noble Lord the question. Surely the noble Lord will agree that there is an exception in that situation in which Parliament has decided. We could make another exception.

Baroness Northover: My Lords, before the noble Lord answers, I remind the House that noble Lords can be interrupted with a brief question for clarification. Noble Lords have an opportunity to make a speech—one speech.

Lord Lester of Herne Hill: My Lords, of course Parliament may decide to create an exception through this amendment. I am explaining why I could not support it. The first reason is that it would legitimise discrimination by public officers who are performing their statutory duties. My noble friend Lord Deben says, “Let’s show a bit of generosity”. I reply, yes, let us show a bit of generosity to those who would be the victims of this practice, who would find that they could not have a civil marriage registered by a public official—that is all it is—because of his or her conscientious objection.

Lord Deben: I am sorry, but surely that cannot be true, because the case would never get to that. You would know that if a same-sex marriage had been offered, there would be a registrar who would be willing to do that. It would be privately arranged; there would be no victim in this. That is clearly different from what my noble friend says.

Baroness Northover: My Lords, I apologise, but we are moving away from brief questions of clarification and on to debate, which is permitted in Committee, but we are now on Report. Noble Lords will have a chance to speak if they have not already done so.

Lord Lester of Herne Hill: My Lords, my last point is simply that this is a very old story. In the case of Ladele, which was one of the cases that went to the Strasbourg court, our courts decided that a registrar could not exercise conscientious objection in relation to civil partnerships. The Strasbourg court upheld our domestic courts’ judgment to that effect. My noble and learned friend Lord Mackay of Clashfern took objection to it and we debated it at the time. The current position is that, under Strasbourg law as well as domestic law, there is no right to conscientious objection in this context, and nor should there be.

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Baroness Knight of Collingtree: My Lords, in the first debate on the Bill, I warned that we were losing the right to have and live by a conscientious objection all the time. I gave a number of instances, one of which has been referred to today, which was the simple and widely known fact that all Catholic adoption agencies have had to close because they are not happy about putting a child in a home where there are two men or two ladies. I agree completely with what was said in the earlier debate about the monstrous way that we in this country and, I am afraid, other countries have treated homosexuals in the past. However, those who point out how wrong that was are saying, “But it’s only wrong up to a point. We can demand that other rules are made that aren’t fair”. More and more I come to the conclusion that one person’s human rights are the denial of another person’s human rights.

We agreed years ago—I think the first well known example occurred during the First World War—that people were able to have a conscientious objection to fighting. They were given other jobs, which were extremely important in the war effort, and that happened in the last war, too. We must guard and guide that trend. It is woefully and obviously wrong to say today that it is right that conscientious objections shall, in certain circumstances, be smothered. It has to be wrong. We must stand and defend those conscientious objections.

I am also very concerned about what the noble Baroness, Lady Williams, said. She pointed out, unless I misheard, that being a registrar was the first step to a whole career. The fact that apparently we can do nothing about these future circumstances must mean that many people will not be able to go into the career that perhaps they have planned for many years. I urge noble Lords to recognise that it is very dangerous for a free country to deny a person’s right to live by their conscience. We may not agree—it is not important at all—but everybody has a right to their conscience and to live by what it tells them. It is only fair to say that we must try to give the same human rights to everyone.

I know that the noble Lord, Lord Alli, is a fair man. I think that when he considers again his suggestion that just because you have a certain job you should be forced to act against your conscience, he will see that that is the wrong road to take. I support, with many congratulations, those noble Lords who put their names to this amendment, the aim of it and what will happen. I am quite sure that plenty of other registrars who do not hold the same view will be available, and couples who wish to be married will easily be able to be married by them.

Lord Higgins: My Lords, the crucial point is that we have to take account of the fact that some individuals may be affected. What representations have been made on their behalf is not the point. We need to allow for the fact that some such individuals may have serious grounds of conscience. I turn to the point made by the noble Lord, Lord Pannick. He says that these people have a contract, as registrars, to carry out marriages. However, the crucial point is that the marriage that they are now asked to carry out is not what they understood marriage to mean when they signed the contract. We have to take account of the fact that we

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are changing the rules after they have accepted the job. On a purely transitional basis, there is an overwhelming case for us to agree this amendment.

Lord Wills: Before the noble Lord sits down, is he saying that it is completely unreasonable to expect a registrar, in this modern day and age, not to have foreseen that the current measure would come before Parliament at some point in the foreseeable future? Does he think that that is an unreasonable proposition?

6 pm

Lord Higgins: I had already sat down. However, it seems to me that there is no reason to suppose that anyone would have anticipated this. When I led from the opposition Front Bench on same-sex partnerships, no one envisaged this; indeed, a number of people said that it was not going to happen.

The Lord Bishop of Chester: My Lords, as a bishop of the Church of England who is constrained by the church not to conduct same-sex marriages, the vision of the noble Lord, Lord Alli, has stimulated me briefly to rise to my feet. I suppose that I should declare an interest, given that I am a sort of registrar. Perhaps I am the only one here, as a bishop of the Church of England.

This is a modest amendment, as has been pointed out, but it has a certain symbolic importance. A lot turns on the status of the issues that we talk about, and that has dogged our debates throughout. The noble Lord, Lord Lester, asked why there is an exception in this case. However, the law does make exceptions in relation to the strongly held beliefs of a significant number of members of a religious body in relation to sexual orientation. The law allows religious bodies to have single-gender priesthoods or whatever. We have agreed exceptions in that area that we have not agreed in other areas, such as divorce. That is why the parallel between same-sex marriage and divorce—I think that the noble Lord, Lord Pannick, raised that point—does not quite follow. It depends on what one regards as the status of the different issues. For example, as I pointed out at Second Reading, historically the canons of the Church of England have never banned clergy from remarrying divorced people. A different status applies in this instance.

One of the problems is that a lot of people here feel—and I understand why—that this whole issue is a no-brainer, and that anyone who is opposed to same-sex marriage is almost de facto and de jure homophobic. That rather destroys the concept of reasonable debate. I find that that happens in the Church of England over the issue of women bishops: if you are opposed to that, somehow a glaze goes over people’s eyes and they cannot speak to you at all. As the noble Lord, Lord Deben, said, it is about having tolerance in the democracy in which we live. The issue is a small one.

As I understand it—though I speak as a fool in the presence of so many lawyers—the principle in this country is that we do not legislate retrospectively unless there is a compelling reason to do so. I do not think that a compelling reason to force existing registrars

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to conduct same-sex marriages has been demonstrated in our debate. In that spirit, I hope that we can accept the amendment.

Lord Anderson of Swansea: My Lords, the question has been posed whether it was reasonable for an existing registrar to have anticipated that at some date unspecified in the future the law in respect of same-sex marriage might be altered.

Let us consider a registrar who is now, perhaps, 45. Almost 10 years ago we had the Civil Partnership Act. During the passage of that Bill through this House the noble and learned Baroness on our Front Bench said in terms that there would be no relevance for marriage. That was said clearly in terms. If that same registrar—who might have been put off by the possibility of same-sex marriage—had looked at the manifestos of the different parties at the last election, not one of which mentioned same-sex marriage, should he nevertheless have anticipated that there was a faint possibility of that happening? Of course not. It is wholly unreasonable, even in the light of the recent past and the stampede over the past years, to imagine that someone would have anticipated that the situation would change.

Effectively, we are talking about tolerance, generosity and whether the way of the majority—the 3:1 balance we had in the last vote—will be juggernaut-like and we will go on nevertheless.

The noble Lord, Lord Lester, talked about victims. He talked about the victimhood, if I can repeat that word, of the couple who are not married because the registrar has an objection. However, what is certain is that a registrar will be a victim because—given the identikit of the person I have mentioned, who is perhaps in mid-life, has been a registrar for a number of years and did not anticipate the change—his job will go. Being a registrar does not provide specific training for anything else. He will face the fact that the terms and conditions of his employment, on which he embarked some years ago, have been fundamentally altered. However, there is no reasonable prospect of victimhood for the gay couple who quite properly ask to be married, because there can be a reasonable accommodation. There will be a team or group of registrars in a particular district, and the couple can avoid the one individual who has a conscientious objection and, without any fuss, move their case to someone else. After all, I suspect that, after the initial surge of gay people who want to get married, there will be very few cases and relatively few registrars involved. If the district is very small, an arrangement can be made with an adjoining district—as in other areas of local government administration—for the relatively small number of cases that occur.

The noble Lord, Lord Pannick, took a fairly absolutist view, in my judgment. Public officials enforce the law; the registrar is a public official; he enforces the law or he takes the consequences. However, I think that there are other public officials for whom accommodations are found in statute. Doctors, given our National Health Service, are also public officials in the broad definition of the term, and so are teachers. Given that teachers overwhelmingly receive their salaries from the state, their terms and conditions of employment come from the state, yet we find exception for them.

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In effect, the number of registrars likely to be involved is small. This is a transitional arrangement. For me, this is a test case of the absolutism, tolerance and generosity of the Government. Equally, it is a test case for the Opposition, who are currently cheerleaders—although perhaps I should refrain from using that word—for the Government. The proud tradition of my party over the centuries has been to look after the small person, the “village-Hampden” or the person with a conscientious objection who might be hurt by changes. I hope that we shall not abandon that proud tradition and will accept this small, transitional and quite proper amendment.

Baroness Berridge: My Lords, I rise to support this amendment, which is recommended in the report of the Joint Committee on Human Rights in relation to the Bill. I serve on that Joint Committee.

In Committee, your Lordships heard emotional exchanges about what was or could be the experience for gay couples seeking a civil marriage if there was any form of conscientious objection. Those scenarios were upsetting. The argument that public services should be available to all service-users is compelling but I do not believe that it is unassailable. A number of individual registrars who are currently in post did, indeed, contact their MPs to say that they would consider resigning their posts should they not be allowed to object, on the basis of conscientious objection, to performing these ceremonies. I asked Simon Hughes MP, who serves on the committee, specifically about that question, as no Select Committee of this House should make recommendations that are unsupported by evidence.

I believe that the distinction between choice and conscience is important here, in that if people say that their conscience does not permit them to do this, that means that it does not allow them even to enter a process of choice. They are not expressing a mere preference. Neither time nor expertise allows me to go into that issue in any greater depth. I am sad that the noble Baroness, Lady O’Neill, is not in her place on the Cross Benches; I am sure that she could elucidate that point more eloquently than I can. However, there is a difference between choice and conscience.

I believe that it is this Chamber’s role to reach an accommodation that will enable same-sex couples to marry under the new law without causing the possible dismissal of a small number of public servants. I should be grateful if my noble friend the Minister would clarify whether the role of the registrar is limited just to the action of registration, as this matter caused some confusion in Committee when your Lordships considered the role of authorised persons. As regards Ms Ladele, I believe there is an arrangement in the Civil Partnership Act whereby certain personnel do not have to conduct civil partnership ceremonies if their local authority permits them not to do so. I leave it to the Front Bench, with its expertise, to clarify those two matters.

Given that the parameters of culture are changing so rapidly, I believe this amendment to be a suitable compromise between two different groups of our citizens, each with deeply held convictions. The ability of all citizens to access public services is not violated by

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certain public servants having a limited exemption. Having heard the arguments and circumstances outlined in Committee, I repeat that the exemption must be applied carefully and sensitively. It is not a perfect solution for either side but it is a sensible and reasonable compromise in the circumstances.

Lord Mawhinney: My Lords, I commend my noble friend Lady Cumberlege for moving this amendment. I was equally impressed by the supportive speech made by the noble Baroness, Lady Williams of Crosby. While she was speaking, I was reminded of something which my noble friend Lady Stowell of Beeston said at Second Reading, and I will limit my comments to this one issue. I interrupted her when she said that she had great respect for those of us who had religious and conscientious views on the principle and substance of the Bill. I, perhaps ungraciously—if that is so, I apologise—and perhaps mischievously, said words to the effect that I wished I had a tenner for every time in the past 35 years I had heard a Minister say at the Dispatch Box how much he respected views with which he did not agree and then promptly ignored them. I remind my noble friend of that exchange because it seems to me that this is an excellent opportunity for her to demonstrate that she really does respect those whose views and consciences differ from those held by the majority in this House. An acid test of that respect would be to accept this amendment.

Lord Peston: My Lords—

Baroness O'Loan: My Lords—

Lord Peston: The noble Baroness has spoken.

Baroness O'Loan: No, I asked the noble Lord, Lord Lester, a question. I will speak briefly as this is a modest amendment. The question has been asked as to why registrars should be exempt. Three years ago, the leader of the Government said that there would be no legislation for same-sex marriage. Therefore, it is not inconceivable that the people employed in registry offices might have formed a legitimate expectation that that would be the case. We have to accept that a consequence of this legislation will be to exclude from being employed as registrars people in the Islamic, Sikh, Orthodox Jewish and Christian communities who have profound beliefs. We simply have to accept that consequence. It is for Parliament to legislate and if Parliament makes that decision, that is proper. However, we have to bear in mind that there is a significant problem for Islamic women who get married in a religious wedding, think they are married and then find that, because there has been no civil marriage, they are not married and can be set aside.

Marriage is a foundation stone for what stability remains in our society. We must do all we can to enable existing registrars, who may be members of those religions and who will be excluded from being employed as registrars—Muslims, Sikhs, Orthodox Jews and certain Christians—to continue to do their job. That spirit of generosity of which so many Members have spoken is very much part of the tradition of this House. I support this amendment because of its significance for those communities and because of the need to care for all the communities in our great country.

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6.15 pm

Lord Vinson: The noble Lord, Lord Lester, gave the impression that registrars who were not happy with same-sex marriage would make their feelings known. It would be much more sensible to allow registrars with deep religious convictions who feel that they cannot conduct same-sex marriages to say quietly when the roster of registrars is being sorted out, “Do you mind if I am off with a cold on Tuesday?” as everybody will understand why that is being done. We are talking about a very small exception here. The converse is to make such people conduct these ceremonies. We are told—it is true—that registrars conduct ceremonies with spirit and feeling. If ever I married again—God forbid—I would not want a registrar to conduct the ceremony through gritted teeth because he did not like doing it. This is a thoroughly sensible amendment. I remind all those who are against it of the very moving words attributed, I believe, to Christopher Fry about the downtrodden not treading down.

Lord Peston: My Lords, I reluctantly totally oppose this amendment. Those who are totally opposed to same-sex marriage have day in and day out taken up an enormous amount of your Lordships’ time in making their case. This is the dying embers of their attempts to go on making their case. It has nothing to do with tolerance. No one is remotely asking those registrars who oppose same-sex marriage suddenly to say that they are now in favour of it, as happened under the old Stalinist rules. No one is remotely asking them to do that. They can say what they truly believe for as long as they like and where they like. The noble Lord, Lord Pannick, made the central point—I would have thought that was enough to end the debate—when he said that all we are asking them to do is the job they are paid to do. That is the beginning and end of the story. There is nothing more to be said. This has nothing to do with tolerance. When I think of some of the things I have had to tolerate with which I do not agree, I shudder, but one does one’s job. As the noble Lord, Lord Pannick, so excellently said, we are not asking these people to change their minds. They can keep their views but they must do the job they are paid for.

Baroness Howarth of Breckland: I apologise to the noble Lord for interrupting but I am anxious to ask a simple question. I have been a public servant for many years and have had to make difficult assessments and understand the nature of different staff and what they bring to the job. The arguments about generosity and inclusiveness are extremely attractive, but how does a manager decide who has a genuine conscientious objection and who has not? Unless you have criteria and people have previously said something about where they stand on the issue, it will be very difficult to make that decision. Unless there is absolute clarity about the matter, some people will choose not to perform a ceremony because they do not want to do it as opposed to having a conscientious objection to doing it. What about all the other conscientious objections that people may have? Should they not be able to object to marrying people who have a serious criminal history? What if they discover that one of the marriage partners has been a paedophile? Do they have the right to voice a

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conscientious objection to marrying them? This argument could get us into enormous difficulties if we carry it through.

Lord Elton: My Lords, the noble Lord, Lord Peston, is right in one respect: we are making a meal of a very small issue. At Second Reading, the House agreed to swallow a camel. We are now straining at a gnat, if I may use an image which the right reverend Prelate will understand. The noble Lord, Lord Lester, quoted the Ladele case at Strasbourg. That case proved that there are registrars with conscientious objections and that if the law is not amended they will lose their case and their job.

It also proves that if there was one registrar who was able to go all the way to Strasbourg, then there must be at least a few dozen others who were not able to afford it. It is that handful that we are talking about. If you doubt that it is a handful, then listen to the national panel, who assure us that there is none, which means there can be only very few. This amendment is concerned only with seeing that for the remaining part of their careers those people do not suffer for what, in their eyes and certainly in mine as well, is an unavoidable injustice.

If we are all to be as generous and big-hearted as we say we want to be and get closer together, can your Lordships not find it within yourselves to look at these few people? We are looking for justice, not vengeance. Surely we can find in ourselves the guarantee that these people will not lose their jobs and their pensions because they have a belief that was valid for their job when they took it on and the job then changed.

Lord Walton of Detchant: My Lords, this may by no means be exact, but when the Abortion Act became law many years ago, it was quickly recognised that doctors, particularly obstetricians, who were of a particular religious faith, might well have a serious objection to carrying out abortion on ethical grounds. That was even if, on complete medical advice and investigation, patients had been shown to have fulfilled all the criteria established by law. Some could have argued that those refusing to conduct abortions were not fulfilling their terms and conditions of service within the National Health Service. That argument was not widely used, but on the other hand it was quickly recognised by the doctors’ regulatory authority, the General Medical Council, that it was proper for doctors of that particular religious persuasion, who had an immensely powerful objection to carrying out abortion, to be able to refuse to do so on religious and ethical grounds. However, they were advised that in those circumstances they should do their best to see that the individual in question who had fulfilled all the conditions set down by law should be referred to another consultant who might be willing to carry out that procedure.

To the best of my knowledge, registrars who are public servants do not have a regulatory authority. It may be argued that those who refuse to carry out and register a single-sex marriage on religious or conscientious grounds do not fulfil their existing terms and conditions of service. This is a simple amendment. It protects those registrars at present in post who object to carrying

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out single-sex marriages on powerful conscientious grounds. Once they have retired, the issue will no longer be with us. All registrars appointed in future will recognise that the terms of this law on single-sex marriage apply to them and they will not have the right to object on grounds of conscience. This amendment protects the ones who are at present in post and we should strongly support it.

Baroness Noakes: My Lords, it is distasteful to equate what happened in the Abortion Act with what we are dealing with here, which is two people coming together to formalise their loving relationship under law. We are talking about two completely different things. We are accustomed in this House to legislating on the basis of evidence. We have heard no evidence that this amendment is needed. I am sure that if registrars out there wanted this amendment they would have been flushed out by now. We have heard evidence to the contrary. The National Panel for Registration thinks that this is neither necessary nor desirable. This is another attempt to undermine the status of marriage being created by this Bill and which I support.

Lord Deben: I really do think that my noble friend has to withdraw that. I have fought in favour of same-sex marriage the whole way through. I am not trying to undermine it. I am standing up for toleration. Toleration, even if it is for two people, is worth while.

Baroness Noakes: I accept what my noble friend says about his position, but I do not think it is the position of those who put forward the amendment.

Baroness Barker: My Lords, I want to draw to the attention of the House something which has not been mentioned so far in all these debates. I listened with great care when the noble Baroness, Lady Cumberlege, introduced the amendment. She drew the attention of the House to subsection (7) of the amendment:

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

Registrars do not just officiate at weddings. They register births and deaths. If this amendment were passed, it would mean that for a generation we would continue to have acting as registrars people who could not bring themselves to extend the full respect and dignity to same-sex relationships that they do to others.

It may be the case that it is wrong to ask them to perform what is, in the end, not a religious ceremony in any way but a public ceremony. However, to me it is utterly intolerable that a gay person going to register the death of their partner in life should have to do so in the presence of somebody who cannot bring themselves to extend the respect to them that they would to anybody else.

Lord Touhig: My Lords, I had not expected to speak in this debate, although I have listened throughout. My mind goes back to 1967, when a dear friend of mine—and a friend for more than 40 years afterwards—introduced a Bill in the other House to decriminalise same-sex acts. Leo Abse was denounced and vilified, he had human excrement pushed through his letterbox, and it was an intolerable time for him and his family.

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I have too much respect and affection for Leo Abse to presume to say what his view would be today. I rather think he would support this Bill, but I know one thing. When he announced his retirement and spoke to a meeting of the Pontypool Constituency Labour Party, he said: “I have only one bit of advice for my successor. Tolerate everyone, tolerate everything, but do not tolerate the intolerant”. As I have witnessed this debate today, I have sensed a degree of intolerance. Wherever we stand on this issue, it is right and important that the majority tolerates the minority. I hope the House will recognise that as we bring this debate to a conclusion.

Baroness Thornton: The arguments of the noble Baronesses, Lady Cumberlege and Lady Williams, and the other movers have not convinced these Benches that the conscience clause amendment is a good idea, any more than we thought in Committee. Notwithstanding the appeal about registrars from the noble Lord, Lord Deben, I really am puzzled as to why he supports this amendment. I am not inviting him to explain again, but we need to be clear that this is not about tolerance and generosity.

In this House we have shown enormous tolerance and generosity to each other. Those of us who support this Bill have also shown huge tolerance and generosity—sometimes enormous generosity—to views that have been expressed which, if not offensive to people who are homosexual, are certainly hurtful to them. We have shown huge tolerance and generosity all the way through the debate. I draw to the right reverend Prelate’s attention that I have probably sat through every single moment of the discussion about this Bill. Nobody used the word “homophobic” until the right reverend Prelate used it today. That has not been mentioned in this Chamber—and that is right, because it is not appropriate that it should be mentioned at all.

6.30 pm

The noble Lord, Lord Elton, was right to say that we are having a long debate about this issue. But it is remarkable because the organisation that is responsible for the welfare of registrars—not just for their organisation but their professionalism and welfare—is not asking for this conscience clause in the Bill. It does not want it, and that is very significant. A noble Lord said, “If there was a registrar somewhere who really wanted to exercise conscience, do we not think that they would have showed themselves by now?”. It is significant that that is not the case.

I say to the noble Baroness, Lady Berridge, who mentioned the Joint Committee on Human Rights, that the supporters of the amendment, including the noble Baroness, have tried to rubbish what the National Panel for Registration has said in representing its members. I should point out that one could also say that whoever attends and speaks at the noble Baroness’s Joint Committee also influences what its reports say. However, I have not said it and I am not going to.

Our position on these Benches is that freedom of belief is a hallmark of democracy. We agree that individuals should be able reasonably to express views that relate to same-sex marriage, and no one is disputing that at all. However, registrars are public servants and

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have a duty to dispense their responsibilities and deliver services without discrimination. They have not previously been able to opt out of performing same-sex civil partnerships—they already perform them—and interfaith marriages or remarrying divorced couples, even on the grounds of profoundly held belief. The amendment is not acceptable because it could open the doors to allowing registrars to conscientiously object to performing civil marriages on a range of issues.

The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, I thank my noble friend Lady Cumberlege for moving the amendment, which has undoubtedly generated a good debate. Amendments 3 and 11 would provide a conscience clause for marriage registrars regarding their duty to conduct or participate in marriages of same-sex couples on the basis of a religious or other belief about such marriages. Specifically, Amendment 3 would amend Clause 1 to provide that for registrars who are already in post once this Bill comes into force the duty to solemnise marriages is not extended to same-sex couples. Amendment 11 removes “registrar” from the definition of “person” in subsection (4) of Clause 2 to protect registrars from being compelled to be present at religious same-sex marriage ceremonies, no doubt in circumstances where a particular religion has opted in. The amendment would apply only to registrars participating in religious ceremonies, not to the Registrar General or superintendant registrars.

This issue was much debated in Committee. Since then, I have had the opportunity, along with my noble friend Lady Stowell, to meet my noble friends Lady Cumberlege, Lord Elton, and Lady Williams, and the noble and learned Lord, Lord Lloyd of Berwick, to discuss these issues. As we indicated in our response to the Joint Committee on Human Rights, it is important to say that it did not come to a final conclusion on this issue, although it recommended that the Government reconsider the issue with a view to bringing forward amendments in your Lordships’ House to put in a transitional arrangement to deal with the concerns of those in post as marriage registrars. We have considered this position but, as I shall set out, we do not see a need for amendments to provide a conscience clause for marriage registrars, even on a transitional basis.

I therefore wish to reassure your Lordships’ House that the points made in the debate, particularly those made by my noble friend Lady Williams of Crosby about the impact on particular religions, have been considered. I admit that I felt slightly uncomfortable because the strongest support for the Government’s position perhaps came from two eminent lawyers, my noble friend Lord Lester and the noble Lord, Lord Pannick, and I wondered whether I was being too lawyerly about this issue. I tried to take on board the comments of my noble friend Lord Deben about being charitable and thinking generously but, at the end of the day, even with charity, there is an important matter of principle here. Marriage registrars are public servants performing statutory duties on behalf of the state. They should be expected to perform their duties in accordance with the law, without discrimination. An important distinction can be made between the conscience clauses with regard to

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abortion and circumstances in which we are asking people to perform duties on behalf of the state, without discrimination.

In extending marriage to same-sex couples, the Government have made it clear throughout that the Bill should protect and promote religious freedom. A substantial amount in the Bill does that. As the noble Lord, Lord Peston, said, registrars of whatever hue will still be able to express their views on same-sex marriage, but the right to freedom of religious expression has to be balanced with the need to protect others from discrimination. The recent judgment of the European Court of Human Rights in the case of Lillian Ladele, referred to by my noble friend Lord Lester, supports this view and the balanced position that we have taken.

Acceptance of the amendment would allow registrars to discriminate against people because of their sexual orientation. Functions performed by marriage registrars are entirely civil and secular in nature and they should not be allowed to pick and choose the members of the public to whom they provide that service. Treating members of the public less favourably than others because of their sexual orientation is fundamentally wrong, in the same way that it would be wrong to discriminate against them because of their race, religion or belief.

On the face of it, some powerful points were made, not least about doctors in relation to abortion. One should think about it for a moment—and perhaps I may put it in the following way. Let us imagine that a doctor were to say, “As a matter of conscience and belief, I am not going to perform an abortion on this person because of their race or ethnicity, but I will perform an abortion on another”. Perhaps that demonstrates the point that we are trying to make. It would not be the question of conscience about performing the act of solemnising a marriage that is at issue; it is the question of discrimination that is at the heart of this issue, and that is why the Government do not support the amendment.

I have been asked, “Where do you draw the line?”. I appreciate what my noble friend Lady Cumberlege said about the amendment being restricted to the solemnisation or belief that it is wrong to have a marriage of same-sex couples. There are other subjects—and I bow to the right reverend Prelate the Bishop of Chester, who said that divorce was not an issue in the canon law of the Anglican Church. However, it is my understanding that, until relatively recently, the Anglican Church did not marry people who had been divorced on grounds of adultery or other reasons, if a person’s original spouse was still alive. I think that that is now possible with the permission of the bishop. In those circumstances, if the Anglican Church was not going perform a marriage and the person had to go down the road of a civil marriage if they wished to contract a second marriage, where would we have been if the registrar had said, “I have profound beliefs against marrying divorcees, particularly if one of the grounds for divorce has been adultery”?

The Lord Bishop of Chester: I wish purely to clarify the matter. I know that I am speaking to a distinguished lawyer but the law of the Church has never prevented

8 July 2013 : Column 60

clergy from remarrying divorced people, and for the past 30 years of my ministry I have done so. It is true that 30 years ago I was in a minority and that there is now much greater encouragement, but in legal terms there never was a blanket ban on clergy remarrying because statute law permitted divorce.

Lord Wallace of Tankerness: I am grateful to the right reverend Prelate for clarifying that, but he said that 30 years ago he was in a minority and he may agree that some high-profile marriages of divorcees have taken place in the Church of Scotland because of the apparent rules of the Anglican Church. The point remains that there may have been people with profound religious views on why they should not remarry a divorcee who was divorced on the grounds of adultery, but if the route of a civil registry marriage had been cut off, they would have found life to be very difficult indeed.

Equally, I have heard what has been said about the National Panel for Registration. Concerns were expressed in Committee about the consultation that it had undertaken, and that is why my right honourable friend the Secretary of State sought further—

Baroness O'Loan: The Minister said that it would have been profoundly difficult if that route had been cut off. Does he think that this amendment would cut off the possibility of people of the same sex marrying?

Lord Wallace of Tankerness: I was making the point that there are a number of grounds on which one might say one had a religious belief. Are we to have a hierarchy of religious beliefs, some of which will allow a registrar to exercise a conscience clause and some of which will not? However, as the noble Baroness, Lady Richardson, said, there might be some areas of the country with a small number of register office staff where it could be difficult to find a registrar who would marry them.

We sought further information from the National Panel of Registration and its letter has been placed in the Library of your Lordships’ House. As my noble friend Lady Noakes indicated, there has not been a huge demand for this amendment, quite the contrary. It would be easy to dismiss this letter but very often the House calls for the views of bodies which represent particular organisations. The letter states:

“The objection to a conscience clause is based on Registrars being local authority employees who are expected (and willing) to carry out all the functions that their role covers. On a daily basis, Registrars deal with many scenarios that for those with strong beliefs (religious or otherwise) would possibly not be able to carry out. Examples include: registering the birth of a child from a same-sex couple; undertaking marriages for previously divorced persons; or carrying out civil ceremonies and registrations. Registration Services and, in particular, the Registrars, are passionate and proud about the services they deliver and the customers they work with. For the past 176 years, Registrars have been carrying out their duties and have never wanted a conscience clause, and do not see the need for one now … The beliefs we bring to work are respect and tolerance and we would wish that to continue”.

Lord Elton: Could my noble friend read on? Does it not say that,

“we leave beliefs at home”?

Does that not say a great deal about this?

8 July 2013 : Column 61

Lord Wallace of Tankerness: It does say that. It states:

“In the Registration Service we leave beliefs at home and deliver neutrally”.

That is the point made by the noble Lord, Lord Peston. The registrars are free to express their beliefs. There is nothing in this legislation that curbs their ability to hold these beliefs and to express them. However, in the performance of the duties they do on behalf of the state, we are saying that they should not be able to do that in a way that discriminates. It would not be appropriate for us to put on the statute book legislation in which the state legitimises discrimination.

Lord Higgins: If it is true, as the Minister says, that the Panel of Registration says there are no registrars who want this, we will pass the amendment and it will have no effect. The question is whether there are some who we do not know about who would wish to exercise their views as far as conscience is concerned.

On the other point, that they have taken on a job and they then find that it has changed, surely, on a transitional basis—and I stress that—they ought to be able to say, “We are perfectly happy to go on with the original contract”.

Baroness Farrington of Ribbleton: Perhaps I may I remind noble Lords that this is Report. People should ask very brief factual questions and no one should speak after the Minister has spoken except the mover.

Lord Wallace of Tankerness: My Lords, in response to my noble friend Lord Higgins, the national panel has made it clear that it is not seeking this. He said that if no one wants this, it does not matter. However, I believe that it does matter.

The points made by my noble friend Lady Williams are very challenging to someone who has natural liberal instincts about the individual but, at the end of the day, after a great deal of careful thought and examination, the principle that persuades me that we are right in this is that when someone performs a function on behalf of the state we should not put into legislation something which allows them to act in a discriminating manner. I ask my noble friend to withdraw the amendment.

Lord Lester of Herne Hill: Would I be right in saying that if this amendment goes through, there will be detriment to people seeking to marry?

Lord Wallace of Tankerness: I did not hear that.

Lord Lester of Herne Hill: Would I be right in saying that if this amendment goes through the result will be detriment suffered by some who are seeking civil marriage?

Lord Wallace of Tankerness: My Lords, that might be a possibility, particularly in areas where there are very few registrars, as the noble Baroness, Lady Richardson, pointed out.

8 July 2013 : Column 62

6.45 pm

Baroness Cumberlege: My Lords, I sense that the House will want me to be very quick, so I shall be. I thank all noble Lords who have taken part in this very interesting debate, albeit, I accept, on a very narrow subject. I particularly thank my noble friend Lady Williams for her powerful support for the amendment, and I thank my noble friend Lord Deben. The tenor of the amendment is about a bit of tolerance and generosity. This is the moment when perhaps we ought to be giving a little bit to some people who have a conscience clause.

I want to say something very briefly about marriage and about what the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Peston, said. To me, marriage is very important. I married when I was 17 and have to say that it was the best decision of my life. I love my husband to bits and he is great. I can remember every moment of that service. I even remember that the priest, very sadly, forgot to give me my passport. We were going on honeymoon and had to go back to collect it. Marriage is terribly important; we would not be having this Bill or these debates if people did not think it was very important. The people who conduct the marriage are equally important. I very much accept what my noble friend Lord Vinson said. If there is somebody who does not believe in it or who thinks that it is just something you have to go through, it is not the same as someone who really believes in it and wants to see a couple happily married and continuing in later life.

For those people who have a conscience clause, it is much fairer to the same-sex couples who are getting married to have somebody who believes in what they are doing and who rejoices with them in this very special event in their lives. I would love to go through all the arguments, but I will not do so. The managerial arguments are bogus because any good manager knows how to manage a workforce. There are women who inconveniently get pregnant and there are people who are ill, but you still have to manage your workforce, so I do not agree with some of those concerns.

It has been a very interesting debate. I am extremely disappointed by my colleagues on the Front Bench and my noble friends whom I hoped would give a little tonight. I hoped that we could have some accommodation in the spirit of generosity, but that is clearly not the case. Therefore, I want to test the opinion of the House.

6.48 pm

Division on Amendment 3

Contents 103; Not-Contents 278.

Amendment 3 disagreed.

Division No.  2


Ahmed, L.

Allenby of Megiddo, V.

Alton of Liverpool, L.

Anderson of Swansea, L.

Armstrong of Ilminster, L.

Berridge, B.

Bew, L.

Blackwell, L.

Blencathra, L.

Boothroyd, B.

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Brennan, L.

Bridgeman, V.

Brookeborough, V.

Brougham and Vaux, L.

Browne of Belmont, L.

Butler of Brockwell, L.

Butler-Sloss, B. [Teller]

Byford, B.

Cathcart, E.

Chester, Bp.

Clarke of Hampstead, L.

Cobbold, L.

Cormack, L.

Craig of Radley, L.

Cumberlege, B. [Teller]

De Mauley, L.

Dear, L.

Deben, L.

Deech, B.

Eames, L.

Eaton, B.

Eccles of Moulton, B.

Eccles, V.

Eden of Winton, L.

Edmiston, L.

Elton, L.

Flight, L.

Fookes, B.

Gardner of Parkes, B.

Greenway, L.

Hamilton of Epsom, L.

Hennessy of Nympsfield, L.

Higgins, L.

Hodgson of Astley Abbotts, L.

Hollins, B.

Hooper, B.

Howie of Troon, L.

Hylton, L.

Imbert, L.

Inglewood, L.

James of Blackheath, L.

Jordan, L.

Kilclooney, L.

Kirkhill, L.

Knight of Collingtree, B.

Lingfield, L.

Listowel, E.

Liverpool, E.

Lloyd of Berwick, L.

Lothian, M.

Luce, L.

Luke, L.

Lyell, L.

Lytton, E.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

Mackay of Clashfern, L.

Maginnis of Drumglass, L.

Mancroft, L.

Martin of Springburn, L.

Mawhinney, L.

Morrow, L.

Naseby, L.

Neville-Jones, B.

O'Cathain, B.

O'Loan, B.

Palmer, L.

Pearson of Rannoch, L.

Phillips of Sudbury, L.

Quirk, L.

Ribeiro, L.

Rowe-Beddoe, L.

Saltoun of Abernethy, Ly.

Seccombe, B.

Selkirk of Douglas, L.

Selsdon, L.

Shaw of Northstead, L.

Simon, V.

Stoddart of Swindon, L.

Swinfen, L.

Tenby, V.

Touhig, L.

Trefgarne, L.

True, L.

Truscott, L.

Ullswater, V.

Vinson, L.

Waddington, L.

Walpole, L.

Walton of Detchant, L.

Williams of Crosby, B.

Williamson of Horton, L.

Wilson of Tillyorn, L.


Aberdare, L.

Adams of Craigielea, B.

Addington, L.

Afshar, B.

Allan of Hallam, L.

Alli, L.

Alliance, L.

Andrews, B.

Anelay of St Johns, B. [Teller]

Armstrong of Hill Top, B.

Ashdown of Norton-sub-Hamdon, 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.

Best, L.

Billingham, B.

Bilston, L.

Birt, L.

Black of Brentwood, L.

Blackstone, B.

Blood, B.

Boateng, L.

Bonham-Carter of Yarnbury, B.

Borrie, L.

Brabazon of Tara, L.

Bradley, L.

Brinton, B.

Brittan of Spennithorne, L.

Brooke of Alverthorpe, L.

Brooke of Sutton Mandeville, L.

Brookman, L.

Brown of Eaton-under-Heywood, L.

Browne of Ladyton, L.

Cameron of Dillington, L.

Cameron of Lochbroom, L.

Campbell-Savours, L.

Carlile of Berriew, L.

Chalker of Wallasey, B.

Chidgey, L.

Christopher, L.

Clancarty, E.

8 July 2013 : Column 64

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.

Craigavon, V.

Crawley, B.

Crickhowell, L.

Cunningham of Felling, L.

Davies of Oldham, L.

Davies of Stamford, L.

Deighton, L.

Desai, L.

Dholakia, L.

Dixon-Smith, L.

Donaghy, B.

Doocey, B.

Drake, B.

Dubs, L.

Dykes, 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.

Filkin, L.

Flather, B.

Foulkes of Cumnock, L.

Fowler, L.

Freud, L.

Freyberg, L.

Gale, B.

Garden of Frognal, B.

Gardiner of Kimble, L.

Geddes, L.

Giddens, L.

Glendonbrook, L.

Golding, B.

Goldsmith, L.

Goodlad, L.

Gould of Potternewton, B.

Grabiner, L.

Green of Hurstpierpoint, L.

Grocott, L.

Hamwee, B.

Hanham, B.

Harries of Pentregarth, L.

Harris of Haringey, L.

Harris of Peckham, L.

Harris of Richmond, B.

Harrison, L.

Hart of Chilton, L.

Haskel, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Heyhoe Flint, B.

Hill of Oareford, L.

Hilton of Eggardon, B.

Hollick, L.

Hollis of Heigham, B.

Howarth of Breckland, B.

Howarth of Newport, L.

Howe of Aberavon, L.

Howe of Idlicote, B.

Howe, E.

Howells of St Davids, B.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Chesterton, L.

Hunt of Kings Heath, L.

Hunt of Wirral, L.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Joffe, L.

Jolly, B.

Jones of Cheltenham, L.

Jones of Whitchurch, B.

Judd, L.

Kennedy of Southwark, L.

Kennedy of The Shaws, B.

Kidron, B.

Kinnock of Holyhead, B.

Kinnock, L.

Kirkham, L.

Kirkwood of Kirkhope, L.

Knight of Weymouth, L.

Kramer, B.

Laming, L.

Lane-Fox of Soho, B.

Lee of Trafford, L.

Leitch, L.

Lester of Herne Hill, L.

Levy, L.

Liddle, L.

Lipsey, L.

Lister of Burtersett, B.

Loomba, L.

McAvoy, L.

McDonagh, B.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

Maclennan of Rogart, L.

McNally, L.

Maddock, B.

Mallalieu, B.

Mandelson, L.

Manningham-Buller, B.

Mar, C.

Marks of Henley-on-Thames, L.

Massey of Darwen, B.

Maxton, L.

Mayhew of Twysden, L.

Meacher, B.

Miller of Chilthorne Domer, B.

Monks, L.

Montrose, D.

Morgan of Drefelin, B.

Morgan of Ely, B.

Morgan, L.

Morris of Bolton, B.

Morris of Handsworth, L.

Moynihan, L.

Neuberger, B.

Newby, L. [Teller]

Newlove, B.

Noakes, B.

Noon, L.

Northover, B.

Nye, B.

Oakeshott of Seagrove Bay, L.

O'Donnell, L.

O'Neill of Clackmannan, L.

Palmer of Childs Hill, L.

Pannick, L.

Parminter, B.

Patel of Bradford, L.

Patel, L.

Peston, L.

Pitkeathley, B.

Popat, L.

Prosser, B.

Quin, B.

Radice, L.

Randerson, B.

Razzall, L.

8 July 2013 : Column 65

Redesdale, L.

Reid of Cardowan, L.

Rendell of Babergh, B.

Rennard, L.

Richard, L.

Richardson of Calow, B.

Risby, L.

Roberts of Llandudno, L.

Robertson of Port Ellen, L.

Rogers of Riverside, L.

Rooker, L.

Roper, L.

Rosser, L.

Rowlands, L.

Royall of Blaisdon, B.

Sawyer, L.

Scott of Needham Market, B.

Selborne, E.

Shackleton of Belgravia, B.

Sharkey, L.

Sharp of Guildford, B.

Sheldon, L.

Sherlock, B.

Shipley, L.

Shutt of Greetland, L.

Skelmersdale, L.

Smith of Basildon, B.

Smith of Clifton, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Stern, B.

Stevenson of Balmacara, L.

Stewartby, L.

Stone of Blackheath, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Strasburger, L.

Symons of Vernham Dean, B.

Taylor of Bolton, B.

Taylor of Holbeach, L.

Teverson, L.

Thomas of Winchester, B.

Thornton, B.

Tomlinson, L.

Triesman, L.

Tugendhat, L.

Tunnicliffe, L.

Turnberg, L.

Turner of Camden, B.

Tyler of Enfield, B.

Tyler, L.

Vallance of Tummel, L.

Verma, B.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Warnock, B.

Watson of Invergowrie, L.

Wheatcroft, B.

Wheeler, B.

Whitaker, B.

Wigley, L.

Wilkins, B.

Williams of Baglan, L.

Wills, L.

Winston, L.

Wood of Anfield, L.

Woolmer of Leeds, L.

Worthington, B.

Young of Hornsey, B.

Young of Norwood Green, L.

Young of Old Scone, B.

Younger of Leckie, V.

7.02 pm

Amendment 4

Moved by Lord Dear

4: After Clause 1, insert the following new Clause—

“Belief in traditional marriage

Nothing in this Act shall contradict the principle that a belief that marriage is the voluntary union of one man and one woman for life to the exclusion of all others is a belief worthy of respect in a democratic society.”

Lord Dear: My Lords, in moving Amendment 4, I draw attention to the fact that this is a more tightly drawn version of the two amendments that I spoke to in Committee—when I had a voice—on 17 June, which were then Amendments 7 and 8. Instead of getting into the detail, which I did then, on how employers or public sector bodies treat individuals, this amendment is simply a declaration that the belief in traditional marriage is worthy of respect in a democratic society. It makes it clear that it is vital for individuals claiming protection under human rights or discrimination law who are not card-carrying members of any particular religion, but it would be helpful to people who are religious as well.

There are basically two sets of words in this very short amendment. The first refers to the,

“belief that marriage is the voluntary union of one man and one woman for life to the exclusion of all others”,

and the second refers to,

“a belief worthy of respect in a democratic society”.

8 July 2013 : Column 66

The first set of words is the existing legal definition of marriage as,

“the voluntary union of one man and one woman for life, to the exclusion of all others”.

That is the definition found in case law as far back as 1866 in the case of Hyde v Hyde and Woodmansee, and was given by Lord Penzance in that leading case. Until now, every couple at the point of marriage declares that they are entering into marriage as defined by English law, which is, as I have said, a voluntary, lifelong and exclusive union. We know that things can go wrong in marriage and there is, of course, legal provision for divorce. Throughout history and across cultures, the definition of marriage has been understood in the terms that I have just repeated.

Even before the Bill becomes law, people who support traditional marriage are now often accused of discrimination. It is said—I cannot vouch for it, but it was sprayed all over the newspapers recently—that in a draft version of a speech by the Deputy Prime Minister some were described as bigots. They have certainly been likened in the House of Commons to racists and advocates of the slave trade. However, it is generally accepted that, no matter how one looks at the opinion polls and so on, a great many people in the UK do not accept the new gender-neutral definition of marriage proposed by the Bill. They may accept the Bill, and many do, but they object to the gender-neutral definition, which embraces them as well. I contend that they cannot be expected to jettison their deeply held beliefs overnight; nor, I suggest, is it the proper role of law to seek to coerce people to do so.

I was much impressed and heartened by the comments of the noble Lord, Lord Deben, who talked about generosity. I made a note of that at the time. It seems that those words have been played into. The word “generosity” and, later, the words used by the noble Lord, Lord Elystan-Morgan, “reasonableness” and “tolerance”, have been much in vogue over the past half hour or so in your Lordships’ House. I applaud that. What we are looking at is recognising the traditional view of marriage as held by many people, who still cling to that as the ideal. That takes care, very briefly, of the first part of my amendment.

I turn to the words,

“worthy of respect in a democratic society”.

That concept—those words—is the key test in human rights law. Case law from the European Court of Human Rights and, indeed, the highest courts in the UK, also hold that for a belief to be protected in law it must pass this legal threshold. Stating in the Bill that the belief in traditional marriage meets this test would provide very valuable help to everyone who holds that belief. It is particularly important for individuals who are not, as one may say, card-carrying members of any particular religion.

A great many people in this country have a deeply held belief in marriage that is not, to them, part of an overall religious or ethical belief system. The belief is more likely to be recognised and protected in law where it flows from an underlying, religious belief system. It is less likely to be afforded protection where a person holds a belief that could be written off as

8 July 2013 : Column 67

mere opinion. The case law on that I quoted extensively in Committee. I will not go through it again. The references can be found in


, when I quoted from Grainger plc & others v Nicholson and the Williamson case.

The words,

“worthy of respect in a democratic society”,

are the acid test. The Minister said in Committee:

“A belief that marriage should be between a man and a woman is undoubtedly worthy of respect in a democratic society”.—[Official Report, 17/6/2013; col. 75.]

There can be no objection, she said, to putting this in the Bill. The enacting of the Bill should make it abundantly clear that a belief in same-sex marriage is worthy of respect. Millions of people who hold to a traditional belief in marriage are left unsure today by what is going on in this House and in another place as to whether their belief is similarly worthy of respect. I contend that it is necessary and that it takes absolutely nothing away from the Bill, or what the Bill seeks to set out, to include the amendment.

The noble Lord, Lord Phillips of Sudbury, who is not in his place at the moment, spoke very powerfully about the millions of decent people who, as he put it, are not homophobic, who are concerned and confused by what the Bill will mean for them. They show a great deal of tolerance and understanding about why the Bill is coming in and in many ways support the general thrust. However, at the same time, the noble Lord talked about avoiding discontent in that very large number—my words, not his. What he was really saying was, “Don’t damage the purpose of the Bill in the eyes of the general public”.

The Bill will pass. That was evident from Second Reading and from today in the two votes that have taken place already. The Bill will pass, but it should be enacted in a climate of acceptance. With some people that will be a grudging acceptance, although not in my case, and with others a warm acceptance. However, it should come in in an atmosphere of acceptance and those words of tolerance and generosity that we have heard much play made of today. It should not come in in a climate where no concessions are allowed at all for those who seek to understand those millions of people outside who are confused and who look for some sort of reassurance—a safety net if you like—that they can quite properly express a view and a belief and not be punished for it. I beg to move.

Amendment 5 (to Amendment 4)

Moved by Lord Cormack

5: After Clause 1, line 4, leave out “for life to the exclusion of all others”

Lord Cormack: My Lords, I will not detain the House long. I do not disagree with what the noble Lord, Lord Dear, said, but I seek to sharpen up his amendment for two reasons. First, I have been approached by many people during the passage of the Bill through your Lordships’ House who believe very firmly that marriage is between a man and a woman and wish to

8 July 2013 : Column 68

see that recognised at all appropriate points, but have themselves not been able necessarily to sustain marriage for life.

It is a fact of life—the noble Lord, Lord Dear, briefly alluded to it—that many marriages do not stay the course. There are many in your Lordships’ House who have been married more than once. That does not in any sense weaken or invalidate the marriage, or make those noble Lords who have had more than one marriage believe less in marriage as an institution. But we live in a very different world from that of 1866 cited by the noble Lord, Lord Dear. Even within the clergy, I have many good friends, some highly placed within the Church of England, who have had a marriage that has come to grief. Some have remarried and some have not. In that spirit of tolerance, understanding and generosity, to quote my noble friend Lord Deben in a previous debate, it would be more inclusive just to omit those words. That does not in any sense weaken the thrust of the amendment of the noble Lord, Lord Dear; it merely brings it up to date and recognises the world in which we live.

My second amendment is slightly more playful in that I would take away the words “in a democratic society” because this belief is worthy of respect in all societies, democratic or not. We recognise that. It is certainly not an amendment to an amendment that I would press. However, I must say to your Lordships’ House that those of us who believe in traditional marriage but are not in any way opposed to equality—one must repeat that, as one has many times during these debates—feel that including something along these lines in the Bill could not do any harm and could be of some reassurance to many people outside this House. They are the sort of people referred to by the noble Lord, Lord Dear, and by the noble Lord, Lord Phillips of Sudbury, in what I thought was a very moving speech in an earlier debate this afternoon. I beg to move the amendment to the amendment.

Lord Pannick: My Lords, nothing in the Bill prevents the noble Lords, Lord Dear and Lord Cormack, believing and expressing a belief in so-called traditional marriage. Contrary to the speech of the noble Lord, Lord Dear, there is nothing in the Bill that “coerces” people to “jettison”—the noble Lord’s words—their beliefs in any of these respects. This has repeatedly been explained by noble Lords and to noble Lords during our debates on the Bill. If, as the noble Lord, Lord Dear, suggests, millions of decent people have concerns, they are completely unfounded and it does no service to them whatever to give credence to such basic misunderstandings.

7.15 pm

Lord Deben: As has been mentioned on several occasions, I want to expand on why I think this is a really dreadful amendment. It is dreadful for the reasons that my noble friend Lord Cormack has explained. He has amended the comments of the noble Lord, Lord Dear, because nobody really knows what people mean by traditional marriage. That is one of the difficulties. The amendment is a blunderbuss.

My problem is that if we put this into the Bill, that would suggest that somebody actually thinks it might

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need to be in the Bill. However, there is no reason for that. The noble Lord, Lord Pannick, is absolutely right about that. If we have to put this in, what other definitions of marriage will we have to put in? Do we say, “Nothing in this Act shall counteract the opinion that some people believe X, Y and Z”? All Acts would be interminable and intolerable if we added all the things that they did not have a reference to, but that is exactly what the noble Lord, Lord Dear, has put forward.

However, the problem is much more basic than that. There is a fundamental difference, although it is not something that is shared across every side, in arguing that in all circumstances we should be wary of not having a conscience clause. I am always in favour of conscience clauses because I never know when they will come for me. That is my honest view about conscience clauses. Therefore, I always want to lean over backwards towards people who are in a position—not one that they have chosen—where they may feel that their conscience prevents something. That is why I take that view. However, I do not believe that you can reasonably undermine the value of a Bill by putting into it a phrase that is designed to say, “Look, we’ve had to pass this Bill but a lot of us don’t really think like that. We’re not really on that side and we just want to—nudge, nudge—put this in to make sure that you realise that we weren’t really on that side”. That is a game to deny the reality of the Bill.

The Bill is a generous one and if it is too generous, it makes up for the exact opposite way in which we have acted until now. Please, do not allow the Bill to be undermined by an addition of this kind, which is already a matter of disagreements between the two people who are proposing it and which, after all, could be expanded to any lengths you like to include anybody who might feel that they had not had their particular views heard. It is not a sensible amendment and we should refuse it.

Lord Lester of Herne Hill: My Lords, the law on traditional marriage is contained in the Marriage Act 1949. Nothing in the Bill affects the rights and duties under the Marriage Act 1949 of what is called traditional marriage. If it did so, the amendment might have some kind of purpose, but it does not. If it does not undermine the ability to marry under the Marriage Act, does it create any sort of belief that that form of marriage is in some way undesirable? No, it does not. Nothing in the Bill suggests anything wrong with the traditional view of marriage. What it does do is to create another form of marriage and treat it as part of the concept of marriage. That does not undermine traditional marriage unless you take the view, as some do, that we should not have the Bill at all.

Baroness Royall of Blaisdon: My Lords, the noble Lord, Lord Dear, spoke of traditional marriage being worthy of respect. Indeed, traditional marriage, in his words, is worthy of respect. But, the great thing is that after the passing of this Bill, same-sex marriage will be equally worthy of respect. That will be a matter for celebration. This is because at the moment marriage is a voluntary union of one man and one woman, but with the passing of this Bill I am delighted that

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marriage will be extended to the voluntary union of one man and one man, and one woman and one woman. I think that we are really motoring along.

No one is asking people to abandon their beliefs. The Bill does not suggest in any way that they should or that they must, as has been said so many times in the debates thus far. The reality is that it is absolutely clear that alongside the protections in the Human Rights Act, the common law protection of freedom of speech and the existing protections in the Equality Act 2010, religion or belief will continue to ensure that it is unlawful for an employer, service provider, public body or anybody else to discriminate. There is absolute freedom of speech. The Minister could not have been clearer when she said in Committee that:

“The Bill absolutely makes it lawful, and continues to make it lawful, for people to believe that marriage should be only between a man and a woman”.—[Official Report, 17/6/13; col. 72.]

That is clear.

Baroness Knight of Collingtree: I am most grateful. I ask a very quick question, in the light of the fact that the noble Baroness just told the House that nobody will be forced to act against their conscience. Have we not recently passed an amendment which will make it very likely that a number of registrars will be forced to do so?

Baroness Royall of Blaisdon: My Lords, the issue pertaining to registrars is not to do with conscience but with the fact that registrars are public servants, and they are upholding the law. In being a registrar they are doing their duty as public servants. Their beliefs are nothing to do with their work as a registrar. This amendment is completely different. It is to do with freedom of belief and freedom of expression, which I believe are a hallmark of democracy. Individuals must be able to reasonably express their views on these issues, as indeed they are.

The amendment put forward by noble Lord, Lord Dear, and the amendment to that amendment put forward by the noble Lord, Lord Cormack, are not only unnecessary, but they could dovetail into some concerns expressed earlier by the noble Lord, Lord Elystan-Morgan. He was concerned about having a sort of gold hallmark of marriage, and then a sort of tarnished, baser metal marriage for same-sex couples. We want marriage for same-sex couples and heterosexual couples to have equality of esteem. They must have this. I am therefore against the amendment.

Baroness Stowell of Beeston: My Lords, I am grateful to the noble Lord, Lord Dear. In introducing his amendment he reminded us again that we should try to ensure that we are tolerant, generous and courteous, not only in our debates in this House but also in the legislation that we are bringing forward. I argue that we are doing just that. The noble Baroness, Lady Royall, just quoted something I said at an earlier stage. The Government are very clear that the Bill does not only allow same-sex couples to marry; it also protects religious freedom and ensures that no belief that anyone holds now is affected by the introduction of this Bill. As I said at earlier stages, we are clear that the belief that marriage should be of one man with one woman

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is protected under the Equality Act 2010. It meets the established criteria set out in case law.

The noble Lord, Lord Dear, referred to the case of Grainger plc v Nicholson, which specifically included beliefs worthy of respect in a democratic society. Equally, Article 9 of the European Convention on Human Rights guarantees that everyone has the right to freedom of thought, conscience and religion. This means that everyone has an absolute right to hold any belief. However, of course the right to manifest one’s belief is qualified, and the state can regulate that in certain circumstances where that is necessary for the protection of the rights and freedoms of others. As I have made clear, it is perfectly possible for somebody to not only have that legitimate belief but also to be free to express that belief. To follow up on the exchange that just took place between my noble friend, Baroness Knight, and the noble Baroness, Lady Royall, the difference is that what is not possible is for somebody to withhold their services because of the belief they hold. There is nothing to stop them from having that belief. The amendment is therefore unnecessary. It states something that is entirely true—that the Bill does nothing to undermine the principle that a belief that marriage is,

“union of one man and one woman for life to the exclusion of all others is a belief worthy of respect in a democratic society”.

Of course it is, and this Bill raises no doubt about it.

As has been pointed out, the view that a marriage of a same-sex couple, like the marriage of an opposite-sex couple, is a valid marriage is also a belief worthy of respect in a democratic society. As was said by the noble Baroness, Lady Royall, and my noble friend Lord Deben, if we are going to state that the one belief is worthy of respect, we ought to state that both are worthy of respect. As it stands, this amendment suggests that a belief of the kind it covers, concerning marriage between a man and a woman, is in some way superior to a belief that marriage of a same-sex couple exclusively and for life is to be welcomed as an equally valid relationship. Therefore the amendment goes against the entire point of the Bill.

I also caution the House on a further point of principle. We risk getting into rather dangerous territory if we start to set out in statute which beliefs are worthy of respect or protection in law. It may seem easy here, where there is absolutely no doubt that the belief concerned is mainstream and uncontroversial, but it would not be wise for legislation to list beliefs, just as we do not list religions. Otherwise we get into the arena of state-sponsored religions and beliefs. It would also be an impossible task to list all religions and beliefs that are protected, which would cast doubt about whether unlisted beliefs are protected. That point was made in this debate by some noble Lords who are lawyers.

I now touch on Amendments 5 and 6, put forward by my noble friend Lord Cormack. I will go not into detail, because they do not affect the fundamental point I am making, which is that these amendments are unnecessary. They risk creating the suggestion that a belief in the validity of the marriage of same-sex couples is to some extent less worthy than a belief that

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marriage should be of one man with one woman. As I have explained, it would be most unwise to seek to legislate for what is or is not a belief worthy of respect.

All that said, and just to be absolutely clear, of course none of that means that it is not absolutely legitimate for people to hold the view that a marriage should be between a man and a woman, and for them to be able to express that view. I have stated that many times and I will continue to do so, because it is such an important part of what we are ensuring will remain the case when, as we hope, the Bill becomes an Act of Parliament.

Finally, in response to the noble Lord, Lord Dear—

Lord Butler of Brockwell: My Lords, it would greatly reassure me if the Minister were to give an absolute assurance that somebody who says that they believe that marriage is the voluntary union of one man and one woman for life to the exclusion of all others is not in any danger of being charged with making a homophobic remark.

Baroness Stowell of Beeston: I can give your Lordships absolute, categorical reassurance that anybody who expresses that view is being absolutely lawful. What I cannot give the noble Lord categorical assurance on, which is something that we debated at length at earlier stages of the Bill, is that there may not be somebody out there who decides to try to take action against them. If they were to do that, the law would protect them, because the view that the noble Lord has just expressed is absolutely lawful. It is legitimate, and they can hold that belief and express it. Clearly, as noble friends who are lawyers have reminded me before, whenever a judge hears a case he has to take in all manner of different contexts in order to consider the way in which those words are expressed. But I believe that I can give the noble Lord the reassurance that he is looking for on that point.

Lord Elton: My Lords, on that point, could my noble friend tell me whether she had a letter from a Mr Tony Miano, which is relevant to this. If not, may I pass it to her to read before Third Reading?

Baroness Stowell of Beeston: If the gentleman that my noble friend refers to has written to me, the letter has not reached me, but I have seen a copy because I know it has been circulated widely. I am aware of it. What his experience tells us is the point that I just made, if I understand that experience rightly and it was as has been reported in the media. I was not there and do not have the full details of the event. If he expressed views as I have just explained, he was being absolutely lawful. I understand, according to news reports, that he was arrested, but no charges were brought against him because the law is clearly on his side.

My noble friend has just given me the opportunity to remind noble Lords of something. I was going to make this point in any case to the noble Lord, Lord Dear, because he said we are not making any concessions in this area. It is important to remind him and the House that we have amended the Public Order Act to make it absolutely clear in the provision that already

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exists in that Act that it is absolutely lawful for people in public discourse to express this view. We were happy to make that amendment to a section that already exists. That change has been made. On a general basis, I also point out to the noble Lord and the House that later we will debate an amendment we are moving in the context of greater clarity for the protection of religious freedom around the meaning of the word “compel”. We are listening and we are making changes where we think it is right to do so and no harm will be done. In that context, the proposal that the noble Lord has put forward is not necessary for all the reasons I have explained. I hope that he feels able to withdraw his amendment.

Lord Dear: My Lords, I am much reassured by what the Minister said. She mentioned the Public Order Act. Of course, that allows me to parade, after a defeat here, a success in removing the word “insulting” from Section 5 of the Public Order Act shortly before Christmas with a fairly substantial majority. That was taking the word “insulting” out but leaving in “threatening” or “abusive” words or behaviour in a public place. Amendment 4 is really aimed much more at comments made in private, not in a public place, as defined by the Public Order Act, which the noble Baroness alluded to.

I remained concerned. I mentioned before, as did others today, the large number of people who are concerned about a change to life as they see it, to put it in those terms. Certainly, from my own personal point of view, I would not withhold the words “worthy of respect” from same-sex marriage if this Bill becomes law. Undoubtedly, it will do. The moment it becomes law, I shall accord that respect, undauntedly, to those who are in a same-sex relationship as I do to those in a traditional relationship. I hope, too, that that will go for the vast majority of people in this country.

I am much reassured by the response given to the question posed by my noble friend Lord Butler of Brockwell because I was going to make the same point. He saved me from posing that question again and perhaps losing my voice in the process. I hope that, in future, we will find that this short debate has been unnecessary and that in fact the holding of a belief and espousing that belief into some sort of fairly anodyne comment—one not meant to insult, a simple “I believe X”—will not get those people into trouble. The Minister has been so fulsome in the way she responded to that question that I have great pleasure in withdrawing the amendment.

Lord Elton: Before the noble Lord does that, can I just remind him that we are actually debating the amendment to his amendment? The last word on that has not yet been said.

Lord Cormack: My Lords, I am most grateful for the generosity and courtesy of my noble friend Lord Elton. I will not detain your Lordships. I wish to withdraw the amendment to the amendment. Having understood that that desire is similar to that of the noble Lord, Lord Dear, we appear to be in accord.

Amendment 5 (to Amendment 4) withdrawn.

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Amendment 6 (to Amendment 4) not moved.

Amendment 4 withdrawn.

Consideration on Report adjourned until not before 8.35 pm.

Added Tribunals (Employment Tribunals and Employment Appeal Tribunal) Order 2013

Motion to Approve

7.35 pm

Moved by Lord McNally

That the draft order laid before the House on 24 April be approved.

Relevant document:1st Report from the Joint Committee on Statutory Instruments

The Minister of State, Ministry of Justice (Lord McNally): My Lords, I shall also speak to the draft Employment Tribunals and Employment Appeal Tribunal Fees Order 2013. The purpose of these orders is to make provision for fees to be paid by those who present claims or make appeals to employment tribunals and the Employment Appeal Tribunal. They also make provision for fees to be remitted or waived in full or in part if the person cannot afford to pay using the existing civil courts remission scheme.

Bringing a claim or an appeal to employment tribunals and the Employment Appeal Tribunal is currently free of charge. In 2012-13, the cost of running the employment tribunals system was £74.4 million. That cost was entirely met by the taxpayer. While the Government are committed to providing a fair system for those who need an independent tribunal to settle an employment dispute, we also believe that it is perfectly reasonable that those using the tribunals should contribute to their cost, where they can afford to do so. It is important that noble Lords understand that introducing fees into these tribunals is not an attempt to deter individuals from bringing claims—vexatious or otherwise—and given the mitigations in place we do not believe the provisions of this order will do so.

Employment tribunals were originally intended as the option of last resort in disputes when all other resolution services had failed. Over time that status has eroded and claims are now often launched prematurely, without exploring alternative options for resolving disputes. The introduction of fees can support a necessary change in the mindset of users and help to reset the system by encouraging individuals to stop and think about whether a dispute can be settled without recourse to a tribunal, and whether it is really necessary to submit a claim. Complementing that aim, mandatory early conciliation will be introduced in 2014, meaning parties will not be able to bring a claim to the tribunal without first having sought a conciliated resolution via ACAS.

The Government are also implementing a brand new simplified set of rules and regulations governing procedure in employment tribunals. The simplified rules attempt to roll back and reset unnecessary complexity in tribunal rules, creating increased clarity and

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understanding for the lay person. This ought to reduce claimants’ reliance on legal representation and help return employment tribunals to the role envisaged when they were first set up.

Responsibility for the wider employment law, including the rules, lies with the Department for Business, Innovation and Skills. Should issues arise in this debate that are beyond my remit I will ask my colleague, my noble friend Lord Younger, to respond in writing should it be necessary. I am confident that noble Lords will see that these proposals are not an attack on employment rights or on people with low incomes. They simply reset the system that this Government inherited and reduce the taxpayer subsidy of employment tribunals by transferring some of the cost to those who use the service, while protecting access to justice for all. Assuming parliamentary approval, the instrument is due to come into force on the day after it is signed and made. We are confident that, subject to that approval, fees will come into effect on 29 July this year.

I turn now to the provisions of each order. Parliament has already made provision for fees to be charged in tribunals under Section 42 of the Tribunals, Courts and Enforcement Act 2007. The added tribunals order provides for employment tribunals and the Employment Appeal Tribunal to fall within the provisions of Section 42 as added tribunals allowing the Lord Chancellor to prescribe fees by order for anything dealt with by them.

The fee structure provided in the fees order reflects the decisions made and announced after the Government’s consultation paper, Charging Fees in Employment Tribunals and the Employment Appeal Tribunal. We considered the views expressed by those who responded to the consultation, and settled on a final structure taking proper and full account of those views.

Part 2 of the order provides for claimants to pay an “issue fee” covering a contribution to the pre-hearing costs, and then a “hearing fee”, payable 3 or 4 weeks before a hearing, should that stage in proceedings be reached. It also outlines a number of application fees, payable by the party making the application, and a fee for judicial mediation, payable by the respondent.

Sections 5 to 10 provide the fees payable. Two levels of the issue and hearing fees are proposed, and are defined in the order as type A and B claims. Claims are allocated to type A or B depending on the nature of the complaints described in the claim form. Type A claims are those which are simpler for the tribunal to deal with and so cost less for a claimant to bring—namely, £160 at issue and £230 before the hearing. Type B claims are more complicated, requiring more tribunal time and resources to determine. Therefore they attract higher fees of £250 at issue and £950 at hearing. Where there is a mixture of type A and B claims within the same claim form, the higher fee will be paid.

Sometimes in the employment tribunal two or more claimants present their claims on the same form. The order defines this as a fee group, and the number of people in the fee group also affects the fee due to be paid. There are three bands of fees, increasing on a sliding scale depending on the number of individuals named within a form. If claimants present their claims in this way, the fee payable per person will usually be

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much lower—and will never exceed—the amount that they would have paid if they had sent their claim separately.

In certain circumstances, Article 12 provides a safeguard ensuring that no one in a fee group will have their claim struck out because of the failure of others in their group to arrange a group payment if they themselves are willing to pay the single fee.

Part 3 of the order provides for fees in the Employment Appeal Tribunal. A flat fee regardless of claim or appeal type will be required on instituting an appeal. A further flat fee will be required ahead of the full hearing of the appeal. Part 4 of the fees order provides for transitional arrangements and remissions. Fees will be charged from the date of the order, so that those who have commenced their claims or lodged their appeals before this date will not pay any fees. Schedule 3 of the fees order makes provision for a range of remissions or fee waivers based on the existing HMCTS civil courts scheme. This scheme will ensure that access to justice is protected by reducing or remitting fees for individuals who provide evidence of being in receipt of particular qualifying benefits, or that their income is below certain thresholds.

The Government are fully committed to ensuring that tribunals remain accessible and continue to provide an effective service which is responsive to users. This measure provides for the users of the Employment Appeal Tribunal to make a contribution towards the provision of that service and to better balance the cost of providing access to justice between the user and the taxpayer without restricting that access.

I therefore commend the orders to the House and hope that noble Lords agree that the measures which I have proposed today should proceed.

7.45 pm

Lord Beecham: My Lords, we live in a world where failed bankers and departing BBC executives are awarded compensation for their loss of employment running into millions or hundreds of thousands of pounds, often at the taxpayer’s expense. We seem to be about to live in a world where employees, often low paid, not only no longer receive legal advice or legal aid to pursue a claim arising out of their employment problems but will have to pay significant sums to have their case dealt with by an employment tribunal. It costs only between £35 and £70 to issue a money claim of up to £1,000 in the civil courts but, as the Minister confirmed, it will cost £160 to issue a type A claim—for example, for wage theft, withheld holiday pay or all manner of modest claims—in the employment tribunal, and a further £230 for a hearing, with higher fees where a number of claimants seek the same remedy.

In the more serious type B cases, to which the Minister referred—for example, for unfair dismissal, discrimination or equal pay—the fees rise to £250 to issue a claim and £950 for a hearing. The result is that it costs more for a type B hearing at an employment tribunal than it does to lodge an appeal in the Supreme Court, which costs £1,000, and even with a hearing the total Supreme Court costs are only £1,600—£350 more than for a hearing in the employment tribunal.

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The Government are anxious to market our courts to the likes of libel tourists or Russian oligarchs but evidently loath to facilitate access to justice for our own citizens seeking redress in the form of modest payments, frequently amounting to only a few hundred pounds, and often less than £100.

The Government’s own impact assessment demonstrates that 22% of employment tribunal claimants are disabled, with 40% of those claiming discrimination in that category. There is a rising number of claims stemming from pregnancy and maternity issues. Those are particularly vulnerable groups of people who will have to put up the money, disproportionate to any other form of civil litigation, to have their case heard.

In any case, the number of claims has fallen over the past two or three years, and the impact assessment shows a saving of only £12 million. The Minister is right when he refers to the overall cost being about £70 million, but the result of these measures will be, only if people pay the sums, to gather in only £12 million.

The proposed fees for multiple claims to which the Minister referred—for example, in relation to equal pay—compound the injustice. For example, seven supermarket workers claiming for an improper shortfall in their pay amounting to only, in one case, £313.90 between them will have to pay £320 to issue the claim and £460 for a hearing. Given the uncertainties, many people will simply be deterred from bringing a case, not least because the money has to be paid up-front, and in the absence of legal advice potential claimants will not have a ready notion of their prospects of success.

The response to the Government’s consultation paper on the issue contains an interesting passage which I quote in full:

“Employment Judges in Scotland consider that there is a significant risk that if a claim is for a small amount of money then a claimant will be discouraged from pursuing that claim, even although they are legally entitled to the sums due. For example, say an individual is entitled to one week’s wages in respect of holiday pay and the individual is paid just above the threshold which would allow them to qualify for remission. That person may decide that they will not pursue the sum due. This could have the consequence of encouraging a less than fair employer to routinely deprive employees of small sums of money to which they are entitled on the basis that the risk of them pursuing a claim will be small”.

The Government airily dismiss this response and disingenuously aver that claimants will not be deterred from lodging claims. What steps will they take and how soon to ascertain the actual impact of these changes? What do they propose to do about the startling fact revealed by the Ministry of Justice’s own study in 2009, which showed that 40% of awards in England and Wales are not paid at all and that fewer than 50% are paid in full?

In relation to concerns raised by Money Advice Group about the situation of claimants whose employers have ceased trading, and against whom claimants have to lodge a claim to access any payment from the National Insurance Fund, the Government said that they would explore the issue further. I invite the Minister to say whether they have reached a conclusion and, if so, what it is. If he is not in a position to do that

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tonight—and of course I understand that he may not be—no doubt he will write to me and place the answer in the Library.

Of course, not all claims are for monetary compensation. For example, for a claim under Section 12 of the ERA 1996 to determine the particulars of employment there is simply no monetary component, yet the fee, which will be significant for a number of claimants, will still have to be paid. It should also be noted that there are problems with the timescales—for example, in relation to the payment of the fee or in applying for remission of fees. As the Minister said, there is a remission scheme but this pitches the threshold very low. For example, no fee is payable if the disposable monthly income of the applicant and any partner is £50 or less, with a graduated cap beyond that. That is a very low threshold. Crucially, there will also be a capital limit of £3,000. Ironically, a claimant who, shortly before bringing a case because he is being dismissed, receives a redundancy payment—the claim may not necessarily be related to the dismissal but may relate to other matters—will have that payment counted towards the capital limit.

With a matter of only weeks to go before the new system becomes operational, I understand that there has been no user-testing of it, nor any detailed guidance published about how to apply for remission or appeal against refusal of remission. I do not know whether the noble Lord can enlighten us as to whether and when such testing has taken place or will take place, or when the guidance will be issued.

To be fair, there may be cases, usually affecting large claims, where respondent employers feel that it may be more economic to settle a claim even though it may be without merit. Recent changes in procedure initiated by Mr Justice Underhill may well mitigate this problem, and streamline and improve the management of cases, but in any event the fees for that type of case are unlikely to deter claimants who seek substantial sums from hoping to secure a settlement, while at the same time making it difficult for genuine claimants of moderate means and with more modest claims to pursue their remedy. For a settlement of £50,000, somebody may be prepared to gamble £1,200 or £1,500. Somebody seeking a payment of £50 or even £500 would be much less likely to stake a fee which is close to, or even exceeds, the amount claimed. It should also be stressed that the Gibbons report of 2007 made it clear that only a very small minority of claims could be described as vexatious.

My noble friend Lady Donaghy, with her long experience of ACAS, will no doubt comment on how the role of that organisation might be deployed to improve the working of the system, with or without the proposals in the regulations.

There would be little objection, perhaps, to a modest fee being levied that was much more proportionate to the amount claimed, as occurs in other jurisdictions. However, the Government’s proposal seems to be another in a long series of changes favouring defendants and making access to justice more difficult for ordinary people with meritorious claims. As such, it is deeply regrettable.

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Baroness Turner of Camden: My Lords, we have seen a series of government proposals over the past year, all designed to reduce employment rights and all apparently in the belief that this will promote employment. So a supine, disposable workforce is expected to result in increased employment. This is entirely wrong. We have legislation now making it more difficult for a dismissed worker to claim unfair dismissal. Already, a worker must be in the job for two years before any such claim can be made. Then a series of steps has to be taken before the case can get to a tribunal. The Government have admitted that they want to make access more difficult, and their policies certainly have done so. Now, the Government want to charge and a complicated system is being proposed.

Level A claims for unpaid wages, and smaller claims under category A, are to have an issue fee of £160 followed by a hearing fee of £230. For unfair dismissal, the charges are much greater, being £250 and then £950. We are told that vulnerable and poorer people will not have to pay but the TUC research indicates that a significant number of people on the national minimum wage and living wage rates will have to pay. It is clear that the Government are moving in the direction of the Beecroft proposals, which were widely condemned even by employers. The Government are trying to do that without seeming to do so. The scheme by which employees give up employment rights in return for shares in the employing company, which incidentally was voted down in this House when first proposed, is not meeting with much success even though the Government managed to get it through the Commons.

The latest proposal about charging for tribunal access is part of the same mindset. An employee seeking access to a tribunal following what he or she deems unfair may have been in the job for a number of years. Losing the job could have a distressing effect not only on the employee but the family, leading perhaps to further benefit claims as well as the illness of the dismissed employee. An appeal to an ET before a judge sitting alone will cost more money, and lay members, who bring experience and knowledge of workplaces, are being dispensed with. The Government are clearly expecting that the whole process will seem too complicated and costly for most employees and that there will be very few claims as a result—with no legal aid, of course, in employment cases. Furthermore, employers will be less inclined to seek resolution internally, as they will understand well enough that the complex procedures and costs awaiting employees claiming unfair dismissal will put off any but the most determined.

Do the Government really think that a frightened, submissive workforce is going to assist us in our present economic difficulties? Of course it will not. Growth requires a committed and enthusiastic workforce. These latest government proposals are completely and utterly unfair. They should be withdrawn.

Baroness Donaghy: My Lords, I am grateful to my noble friend Lord Beecham for raising these issues, and I will not cover the ground that he has already covered. During Committee on the Enterprise and Regulatory Reform Bill, I congratulated the noble Lord, Lord Marland, who was then taking the Bill

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through this House, on the fact that the proposals regarding ACAS were right. They laid emphasis on mediation and settlement, and aimed to enhance ACAS’s role. I said that this was the right thing to do and I still think that. Both sides would receive a reality check and be in a much better position to take appropriate action after the ACAS procedures—that is, until these proposals came along.

Unfortunately, alongside the much needed reform that came up in the hands of the noble Lord, Lord Marland, there come these punitive measures for applicants to employment tribunals. It is a classic result of two government departments approaching a problem and coming up with contradictory results. What kind of mood will the client and the employer be in when they get to ACAS? The employer will hold his ground in the hope that the entry fee to the employment tribunal will be sufficient to put the applicant off. The applicant will feel that the cards are stacked against him or her and will be in no mood for conciliation. That is how to sabotage a perfectly good reform.

Today, I spoke to John Cridland, the director-general of the CBI, about these proposals because I knew his views when we were on the ACAS Council together. The CBI agrees with charging for employment tribunals but wanted a lower fee of around £100 and rules that apply more generally to each applicant, rather than all the exemptions and ceilings.

The CBI view is that the high fee is unhelpful. The exemptions defeat the purpose of the exercise and the proposals are confusing. It believes that the Ministry of Justice has concerned itself with recouping charges for its own cost base rather than as a deterrent for vexatious claims. The Ministry of Justice is not focused on how to influence culture, and John Cridland expressed frustration at the poor implementation that he fears, as do I, will get in the way of conciliation. My view is that this apparent deregulation and cut in public expenditure will set up a whole complicated bureaucracy because of the complexity of the scheme, and applicants will not know to which category they belong. This is more red tape, not less.

8 pm

My noble friend Lord Sugar is unable to be here today. He has quite firm views about employment tribunals, and I undertook to give a flavour. My noble friend is concerned that there should be a real deterrent to vexatious claims but doubts whether the proposed figure will make any difference. He sees the need for reform in the area of case management—a clearer steer from the chairman of the employment tribunal about weak cases and unnecessary delays. My noble friend’s view is that a claim for tens of thousands of pounds will not be headed off by this proposal. He supports more conciliation and would not wish to discriminate against applicants with very small claims. I hope that I have reflected his view accurately.

This complicated and misguided proposal will not deter the headline-seekers or those who are sure that their employer will pay them off to the tune of £2,000 simply to avoid an ET. It will not deter a member of a trade union if they have trade union support. It may well deter the applicant whose claim is

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relatively small or who is relatively poor so that they cannot put up the money, or they think twice about it. So, it is the weaker who will pay the Ministry of Justice tax. At best this proposal is inept, and at worst it is a petty con trick.

Baroness Drake: My Lords, on any reading this order raises the barriers to an effective remedy to enforce employment rights for ordinary people. Yes, some employees will bring cases without merit but in my experience, from 27 years as first an ET member and then an EAT wing member, most claimants have a genuine belief that they have experienced a wrong in the workplace and been treated unfairly. Similarly, some employers behave badly—not all are models of paternalistic virtues facing difficult employees.

Employment tribunals used to be viewed as the last-resort mechanism, but the structural shift in the UK economy has also seen a corresponding decline in collective representation throughout the private sector. People no longer have access to a network of union representatives to help them pursue their workplace dispute. The tribunal system is often the only route open to them.

The order is concerned less with protecting access to justice and more with reducing the number of ET cases by pricing workers out of the system. In the order wesee the obstacles to access. The language in the Explanatory Memorandum reduces the enforcement of employment rights to a commercial transaction. Paragraph 4.19 of those notes observes that if some users’ expected costs of bringing a claim now exceed their expected benefits of doing so, the total volume of cases brought to the ET might reduce. Concepts such as “consumer surplus”, “level of utility” and “price elasticity of demand” are deployed to give a monetary value to claimants’ loss of satisfaction so that they will no longer choose to bring cases, thus reducing enforcing an employment right to something akin to purchasing a washing machine or an insurance policy.

The Explanatory Memorandum made depressing reading. It showed insensitivity to what drives some claimants. The motive is not always compensation. They can often feel frustrated and humiliated at the way they have been treated, and it becomes important to have a public record that they were badly treated. They may bring a case for unfair dismissal because they know that unless they can win that claim they cannot get a decent reference or a comparable job, and their “utility”, as the memorandum puts it, may be far greater than the financial value of any remedy if they win, the median value of which is only around £4,600.

For those on low incomes, filling in an ET1 application form to register their claim is a complex procedure, notwithstanding the proposed simplifications. A remission form has been added that has to be submitted with the claim, which itself has to be submitted within a statutory deadline. Add limited literary skills, English as a second language and a lack of confidence, and we can see how the very process itself will work against precisely the vulnerable people who are most likely to be taken advantage of in the workplace.

An employment tribunal claimant is more likely to be male and working full-time or unemployed, confirming

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that women in low-paid and part-time jobs are less likely to use the tribunal system to enforce their rights. This order will simply reinforce that.

For some types of cases, proportionality is lost. For claims on annual leave entitlements, unpaid wages, statutory redundancy payments or non-payment of the national minimum wage, the fees being set could be greater than the remedy being sought—even more so if you are a part-time employee.

The remission system will mean that significant numbers of individuals in couples earning national minimum wage rates will still have to pay fees to enforce their workplace rights, as will others on modest incomes. When it comes to equivalence, as other noble Lords have said, the proposed fees are higher than fees payable in the civil courts. For some, an appeal to the EAT will simply be out of their league, particularly when the cumulative effect of an issue fee, hearing fee, ET review fee, EAT lodge and hearing fees and their own legal costs are taken into account. That is deeply unfair. Appeals from employers could begin to dominate the EAT. Appeals to the EAT are on points of law, which require legal help and support to put forward.

Added to that is the uncertainty that the claimant may not get their money back for the fees paid if they win their case. Yes, it will be open to the ET to order an unsuccessful party to pay an amount up to the value of the fees—or less, the criteria are unclear—then add the possibility that the employer may not pay up on such a fees order, or even on any other element of the remedy, and the scales of justice start heavily to tilt against the claimant.

The Government are already facing two legal challenges, one from a trade union, the other from a firm of Scottish solicitors. The order could affect women disproportionately, particularly in multi-claimant equal pay cases. Take the level of fees, the way in which the fee group may operate and the fact that solicitors operating on a no-win-no-fee basis may be unwilling to pay fees up front because they become too expensive, and again, before the claimant can get their foot in the door of the tribunal, we see those doors slowly closing.

The Government want to encourage parties to settle at an early stage, but the fees could produce perverse incentives and negative behaviour, as my noble friend Lady Donaghy explained. Some employers could become less likely to agree a resolution. They may want to see the claimant’s money submitted first by registering the case, knowing that the claimant has to come up with the money. The worst employers may be emboldened to treat their employees badly, knowing that they may have to come up with significant amounts of money to pursue their case.

As for the vexatious employee, who seems to dominate this debate, employment tribunals already have case management powers, and can make orders for deposits and costs where a party is deemed to have acted vexatiously, abusively, disruptively or otherwise unreasonably or where the bringing of proceedings has been misconceived—that is a long list—and they are increasingly using those powers. Of course there is scope for improving the efficiency of the tribunal system—I sit in it, and could suggest several—and

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there are arguments for strengthening the judge’s case management powers. Parties should be encouraged to settle whenever possible, but employment judges already often encourage them to do so. However, the order will introduce unfairness and raise the barriers for ordinary people to get an effective remedy. It will not raise the barriers for the well paid executive, but it will raise them for the ordinary person.

Lord Monks: My Lords, we know that the Ministry of Justice is constrained by some very tight budgets and needs to save money. However, it is clear from these orders that it is proposing to save money very much at the expense of the low-paid and the most vulnerable in our society. The argument that was made by my noble friend Lord Beecham about the comparison with the fees at the Supreme Court tells its own story. The fees at the Supreme Court are disproportionately low compared to what will be the position in the tribunals. Therefore, I do not see the Minister’s argument that saving money has to be at the expense of those in the lower income parts of our society compared to those who are much better off and will be taking cases in the higher courts. The burden is in the wrong place.

Secondly, it is clear that this is all about deterring applicants. My noble friend Lord Young will remember debates on another regulation about raising the qualifying period for unfair dismissal. That took 3 million people out of the unfair dismissals scope virtually at a stroke. Now we have got this as well. As people have said, it is not going to deter the well paid executive who can see a crock of gold at the end of the case. Nor will it deter the union member, because we already know that unions are preparing to support their members in appropriate cases by covering the fees. It will be those who are on their own, probably low paid and vulnerable, and who will not find it easy to get a comparable job. They are being told to go away quietly. I think that is a green light to the heartless, careless, poor employer that they can now get away with it when previously they would have had to be more circumspect.

I do not put too much weight on the remissions scheme. The idea that if one has a £3,000 household investment income or savings certainly seems to be unfair because it lumps the household together for those calculations. I think it is still very much an attack on the low-paid, and the remissions scheme is nowhere near adequate to cover that. This is Beecroft by the backdoor. I know the Minister’s party colleague has been very strong in his condemnation of Beecroft, but why is it that these particular measures keep appearing, under a different guise for sure, and we keep seeing these attacks on employment rights in exactly the same spirit that Beecroft meant them in his original report.

I, too, add my voice to that of my noble friend Lady Turner in asking for these regulations to be withdrawn.

Baroness Whitaker: My Lords, I just want to speak briefly because I sat on employment tribunals for several years and I do not remember any vexatious claims. Although some were poorly argued, they would actually have done better with a lawyer. Of course

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conciliation is desirable where it can be arranged, but where it is not, I fear that these regulations will curtail access to justice. I am uneasy about the implication that assertion of rights is an unnecessary burden on business and therefore needs to be disincentivised.

There is exploitation and ill-treatment; I saw plenty of evidence of people sacked when pregnant or being sexually harassed. They were not glamorous bankers in the way that we read about them in the newspapers but, for instance, three cleaners whose lives were made a misery every day and people who were dismissed without a proper reason. The cases we found proved were brought by ordinary poor people who had lost their jobs. How could they afford to bring such cases under these regulations? I cannot imagine that they serve justice or provide that desirable balance between the interests of the employer and those of the employee; they distort it.

8.15 pm

Lord Lea of Crondall: My Lords, it seems that after 13 years of improving the quality of the contract of employment, and I mean everything from holidays and maternity rights through to the quality of access to justice, we have been going backwards since 2010. A more unequal society is the same as a less just society; a society which protects the strong at the expense of the weak. Of course, this can all be reversed; we hope that it will be in a couple of years with the election of a Labour Government, and on this side of the House, that is obviously the constitutional remedy to which we look forward.

I will make another point about the culture within which these proposals keep coming forward, whether it comes from the Department for Business or the Ministry of Justice makes no difference. We have lost the culture of the department for employment where people understand what creates some sort of balance in the labour market. We are, after all, looking for a labour market in which the quality of employment and jobs go along with the quality of the contract of employment. One cannot have satisfying, quality work without this being looked at in a holistic fashion.

I take this opportunity to put on record that, despite the fact that the Minister personally has a great commitment to some of these matters, the Ministry of Justice is the wrong culture within which to have a sensible picture of where we need to be going so far as the quality of the contract of employment is concerned.

Lord Young of Norwood Green: My Lords, my noble friends have made the key points, but I want to emphasise a couple of issues. The Government wanted to do something really positive and constructive, as my noble friend Lady Donaghy said, and they started to do it by enhancing the role of ACAS and encouraging mediation. We support that wholeheartedly. It is the right way forward. It is positive, it is constructive, it does not discriminate against people regardless of their income and it does not swing the pendulum towards employers, as I firmly believe the current proposals do.

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As regards reducing the number of claims or the claims that the Government believe should not be taken, it is interesting that the statistics demonstrate that the number of cases is coming down in any event. My noble friend Lady Drake brings a wealth of experience of employment tribunals and employment appeal tribunals. She pointed out that judges already have significant powers in dealing with vexatious claims, so that part of the problem could and should have been dealt with. In our view, this is an unfortunate piece of legislation that, as one of my noble friends said, does not reduce red tape. It adds complexity and tilts the balance against workers. I agree with my noble friends that this order ought to be withdrawn.

Lord McNally: My Lords, I thank all noble Lords who have taken part in this debate, many of whom I know have spoken from a wealth of experience of tribunals, ACAS and the trade union movement. It has been helpful to identify and address concerns. Doing so has enabled me to set on record why the Government have decided to introduce fees in the employment tribunal system and, crucially, what has been put in place to ensure that fees are not a barrier to those wanting to access the justice system.

In speaking to his amendment to the Motion on the fees order, the noble Lord, Lord Beecham, expressed regret that its provisions do not effectively protect access to justice, that some claimants will be deterred from bringing claims and that the remission system is inadequate. Neither I nor my government colleagues accept those arguments. We believe that the mitigations we have put in place will properly protect access to justice for those seeking to bring claims. The remission scheme will ensure that those on low incomes can apply to have their fee reduced or waived entirely and, given the importance of the issues at stake, the Government believe it is unlikely that fees alone will deter those with a strong case bringing a claim. These factors, together with the power for the tribunal to order reimbursement of fees paid, will help to ensure that access to justice is maintained for those who wish to bring a claim.

As I have mentioned, we hope that fees will encourage potential claimants seriously to consider options to resolve disputes outside the tribunal system. From 2014, mandatory early conciliation will mean parties cannot bring a claim to the tribunal without first having sought a conciliated resolution via ACAS. Any decrease in claims after the introduction of fees does not mean that claims are being deterred. It is more likely that disputes are being resolved without the need to use the tribunal, which benefits everyone.

The noble Lord, Lord Beecham, raised a number of issues. He asked whether fees should be charged for someone seeking a small amount. All claimants, irrespective of appeal or claim type should make a contribution to the cost where they can afford to do so, and everyone should also think carefully about entering into litigation irrespective of the remedy sought. Claimants should bear the cost of fees where they make an allegation in a claim and fail to pursue it or where the employer is judged to have acted lawfully.

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The noble Lord said that the employment tribunal is more expensive than the civil courts. The civil courts do not offer a reasonable comparator in this instance as they charge at up to five points in the court process and fees are set to recover the full cost. Civil courts process significantly higher volumes of claims and therefore have lower unit costs. In the civil courts, parties open themselves to much wider cost powers, so there are different issues to consider.

The noble Lord asked about the changes to the process for the enforcement of awards when fees are introduced. The enforcement of employment tribunal awards is fast-tracked through the civil courts. There are no plans to make any changes as part of the introduction of fees. However, separately the Government have commissioned new research covering England and Wales and Scotland, and the findings are due to be published next year.

The noble Lord asked whether there will be guidance for those paying fees. We will ensure that all users are clear on the obligation to pay fees or to apply for a remission. Existing HMCTS guidance for employment tribunals will be updated to highlight the stages at which fees are payable. There will be fees and remission leaflets to explain the fees payable, how to pay and where to apply for remission.

Lord Beecham: Can the noble Lord say whether they will be in force by 29 July? Will they be available by that date?

Lord McNally: If they are not, I will write and tell the noble Lord. The noble Lord also raised the question of whether the Government know what the impact will be. It is difficult to predict the impact that the introduction of fees will have on behaviour. It may be reasonable to assume that if people who are thinking about bringing a claim have to pay to do so, they will more carefully consider whether they wish to do so and their chances of success than they would if the process was free. If this is a valid assumption, we would expect the number of speculative claims—and therefore the number of claims overall—to fall. We will review the impact post-implementation to ensure that the remissions system acts to ensure that only those who can afford to pay fees do so. To ensure that the fee-charging process is simple to understand and administer, we will examine impacts on equality groups in the light of experience and will verify the amount of fee income raised.

The noble Lord asked how we will review fees. Fees will be kept under review as part of an ongoing review of fees across the justice system. The review will seek to ensure that the remission system acts to ensure that only those who can afford to pay do so. The noble Lord, Lord Beecham, asked if redundancy payments will be taken into account in a remission of application. No, this is considered a capital payment under the current scheme. We are considering whether to change this as part of our recent consultation on remissions.

The noble Baroness, Lady Turner, raised a number of matters. Let me make it clear: we do not want a frightened or submissive workforce, as she implied. We want a highly skilled, adaptable, highly productive workforce that can compete in the world. It is important that the noble Baroness understands that introducing

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fees into these tribunals is not an attempt to deter individuals from bringing claims, and we do not believe that the provisions in the order will do so. Given the importance of the issues at stake, we believe, as I said, that it is unlikely that fees alone—

Lord Lea of Crondall: The Minister says that it is not likely to deter people. However, the memorandum states that that is the intention.

Lord McNally: We will not play with words. Of course, numbers will fall, so in that sense it will deter people. It will enable people to make better-informed decisions about what they are doing.

I pay tribute again to the vast experience the noble Baroness, Lady Donaghy, has of ACAS. I believe that making ACAS a first stop is a step forward and one to be much welcomed. Like all Members of the House I always regret when we are not able to receive the wisdom of the noble Lord, Lord Sugar, in person, but I note that he is in favour of more conciliation. The noble Baroness asked if the introduction of fees undermines the aims of early conciliation. We do not believe so. Fees can encourage parties to resolve their disputes as early as possible. In addition, respondents will be aware of the financial implications of losing a claim, including the ability of tribunals to order them to reimburse a claimant’s fee. Therefore, if a respondent waits to see if the claimant pays the fee, it could increase the respondent’s own cost. The noble Baroness also asked if this is designed to prevent weak and vexatious claims. We do not intend fees to prevent claimants bringing forward claims they believe to be genuine. We intend only that users who can afford to do so should contribute to the cost. If fees were to discourage those bringing speculative claims from doing so, this would be a positive consequence.

The noble Baroness, Lady Drake, acknowledged that this is a simplified scheme, and that is to be welcomed. It neither tilts the balance against workers nor closes the tribunal door. The noble Baroness also made the point that it was particularly disadvantageous to vulnerable people. Our initial analysis suggests that BME groups, women, younger people and disabled people are more likely to fall into the lower income bracket, so these groups are more likely to qualify for partial or full fee remission. The Government believe that it is right and fair that users of the Employment Appeal Tribunal, as with the employment tribunals, make a contribution towards the cost of their case when they can afford to do so. There are clear public policy reasons not to place the full burden on the taxpayer to subsidise fully a user who has already had the benefit of a previous judicial decision.

The noble Baroness, Lady Drake, also asked how fees will incentivise business to settle if only the claimant pays fees. Businesses will be conscious of the financial implications of losing a case, as well as the wider power of the employment tribunal judiciary to impose financial penalties on businesses that act unreasonably. Businesses will also be aware of the power of the tribunal to order them to reimburse the fees paid by the successful claimant.

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The noble Lord, Lord Monks, intervened to tell us that, quite rightly, unions will support their members. I think that he was unfair in dismissing the impact of the remissions scheme. He asked whether we are trying to introduce Beecroft by the back door. No, we are not.

Is the court remissions scheme suitable to be used in employment tribunals? Yes, the remissions scheme is based on an individual’s ability to pay and the principles are the same as those that arise in the civil courts.

I fully acknowledge the point made by the noble Baroness, Lady Whitaker, that discrimination occurs in the workplace. That is why we need employment tribunals. There is a danger in overstating the impact of the decisions that we are taking tonight. I take on board the comments that have been made; however, as the noble Lord, Lord Young, said, this will enhance the role of ACAS. The truth is that people who wish to resolve an employment dispute have access to an independent tribunal, which is part of a justice system that is highly respected throughout the world. However, proceedings before the tribunals are costly and the Government believe that it is unfair that taxpayers have to shoulder all of that cost. To share the burden, we are proposing to charge fees to cover about a third of the cost of the tribunal. That, it seems to us, is both reasonable and right.

Those who can afford to will pay a fee dependent on the claim type they are bringing. Because of the remissions scheme we will put in place, no one should be denied access to the tribunal because they cannot afford it. The fees and the safeguards that we have built in represent a fairer way to share the costs of tribunals while fully preserving the principle of access to justice. I commend these orders to the House.

Motion agreed.

Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013

Motion to Approve

8.32 pm

Moved by Lord McNally

That the draft order laid before the House on 24 April be approved.

Relevant document: 1st Report from the Joint Committee on Statutory Instruments.

The Minister of State, Ministry of Justice (Lord McNally): I beg to move.

Amendment to the Motion

Tabled by Lord Beecham

At end to insert “but that this House regrets that the introduction of the draft order will limit access to justice and deter meritorious claims from people who have been wronged in the workplace; and will also create an inadequate remission system for low-paid and vulnerable claimants.”

Amendment not moved.

Motion agreed.

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8.33 pm

Sitting suspended.

Marriage (Same Sex Couples) Bill

Report (1st Day) (Continued)

8.35 pm

Amendment 7

Moved by Baroness Meacher

7: After Clause 1, insert the following new Clause—


(1) The Secretary of State may by regulations make provision for the Registrar General to approve and permit organisations that are registered charities principally concerned with advancing or practising a non-religious belief to solemnise marriages according to their usages on the authority of a superintendent registrar’s certificate, and for related purposes.

(2) The regulations shall specify that such marriages may not take place in register offices, but may in particular—

(a) define minimum requirements any such organisation must meet before it may be considered for such approval;

(b) define the procedures for the appointment of registering officers by such organisations, for the issue and custody of marriage register books, for the solemnisation and registering of marriages, and for related matters, and in these matters the regulations shall follow where convenient the several precedents to be found in the Marriage Act 1949;

(c) create criminal offences of a kind similar to, and with the same maximum penalties as, offences under Part IV of the Marriage Act 1949;

(d) include incidental or consequential provisions (which may include provisions amending an enactment);

(e) include transitional provision.

(3) The regulations under subsection (2)(a) must include provisions concerning whether an organisation—

(a) is a registered charity principally concerned with advancing or practising a non-religious belief;

(b) has been in continuous existence for at least 10 years;

(c) has been performing celebrations of marriage and other ceremonies for its members for at least five years, such ceremonies being rooted in its belief system;

(d) has in place written procedures for the selection, training and accreditation of persons to conduct solemnisations of marriages; and

(e) appears to the Registrar General to be of good repute.

(4) The regulations shall extend to England and Wales.

(5) The regulations—

(a) shall be made by statutory instrument, and

(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

(6) The Secretary of State must lay these regulations before Parliament within six months of this Act coming into force.”

Baroness Meacher: My Lords, the purpose of this amendment is to provide for humanist and other belief-based marriages to have legal recognition in England and Wales, which they have had in Scotland since 2005. I apologise to the Minister and your Lordships for the fact that I have been in five different countries over the past few weeks and have been unable to attend any of the previous sessions on the Bill. I pay tribute to the noble Lord, Lord Harrison, and the noble Baroness, Lady Massey, who tabled a similar amendment in Committee. I also convey the apologies

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of the noble Lord, Lord Garel-Jones, who is in hospital, I am sad to say. We were very keen to have his name on the amendment in view of the powerful speech he made in Committee.

It is gratifying that the humanist amendments have been supported on all sides of both Houses by people of religion and of no religion. Indeed, I hope the Minister will not mind if I quote her. She said that,

“of course everybody would support humanist marriages”.—[

Official Report

, 19/6/2013; col. 311.]

That, for me, is a tremendously valuable endorsement.

I applaud the Minister for tabling the government amendment, which takes a historic step towards eliminating the inequity in our system regarding humanist and other non-religious belief organisations. I offer the noble Baroness, Lady Thornton, my personal thanks for having worked very hard to ensure that belief-based marriages are given legal status. It is appropriate and helpful that the noble Baronesses, Lady Thornton and Lady Brinton, and the noble Lord, Lord Alli, have included their names on the government amendment, illustrating the strong support from all sides of the House for the key principle of our amendment, while acknowledging, probably very fairly, the Government’s commitment to a consultation on the issue.

Noble Lords may ask why I am moving this amendment, bearing in mind the fact that we have the government amendment. The answer is that the government amendment does not actually guarantee that humanist marriages will have legal status in England and Wales. The noble Lord, Lord Garel-Jones, said that,

“we in the humanist movement ‘will not cease from mental fight’ until we have achieved full recognition in the law for humanist marriage”.—[

Official Report

, 19/6/2013; col. 298.]

I feel a great duty to carry the torch for our dear colleague while he lies in hospital. It is very much in that context that I need to put some points on the record and seek some assurances from the Minister. In so doing, I seek to avoid a rerun of the Committee stage, albeit I was not here to listen to it, although noble Lords will be glad to hear that I have read it.

Religious marriages reflect the deepest beliefs and values of religious couples, but humanist beliefs and values are of equal importance to humanist couples. In an increasingly secular society, it is important that we do all we can to promote and recognise good values. Registry office marriages now account for two-thirds of marriages in this country. Those marriages may not involve the couple committing themselves in a ceremony to the all-important beliefs and associated values that they will need in times of trouble. If we want marriages to survive, we must nurture beliefs and values which will help couples to sort out their problems. There is also the equity issue. In the case of humanists, despite the cost and inconvenience, some have two marriage ceremonies to achieve the things they want: a meaningful wedding and one that has legal status. I hope that the Government accept that the inequity cannot continue beyond a short period to allow for a review and consultation.

Humanist marriage is well tried and tested. Scotland gave legal status to humanist marriages eight years ago and has some 3,000 such marriages each year.

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Humanist marriages account for 58% of the increase in marriages in Scotland in the last three years. All of them, of course, are belief and value-based marriages, and I am sure that noble Lords value that fact. Every year in England, the number of humanist marriages exceeds the number of Quaker or Unitarian marriages. Yet humanist marriages have no legal recognition, while these smaller minorities do have it. Legally recognised humanist marriages have strong support from the public, according to a YouGov poll—this is another important issue for the Government—with 53% in favour and only 12% opposed. Few policies, I suggest, have such a ringing public endorsement.

No one has any reason to fear the legal recognition of humanist and other belief-based marriages, again another important point. In particular, I do not believe that churches have anything to fear. Religious ceremonies already have the intrinsic characteristic of what, for me, is a good ceremony: a focus on important beliefs and values. I understand that the Church of England is relaxed about this amendment and I welcome that fact. I hope this also applies to the other great religions.

The professionalism of celebrants of humanist marriages and funerals is to be congratulated. Anyone who has attended a humanist marriage or funeral will attest that they are of the highest quality of ceremony that one could have. I have attended only two humanist funerals. They were professionally conducted, moving and memorable. Those who have been to other ceremonies have said the same to me.

Registrars suggest that this amendment represents a fundamental legislative change, but it is absolutely not. It builds organically on the existing law of the Marriage Act 1949. It is based upon the provisions that allow the Society of Friends to solemnise marriages, but adds some tighter controls which I would think the Government—and certainly I—welcome.

Let me refer to the Government’s objections to the earlier amendment. All these concerns have been fully addressed in this amendment. I believe that the Government accept that fact. The draft has been vetted and cleared by a number of marriage law experts, and we know from the opinion of Matrix Chambers that the amendment is compatible with the European convention. So there is no reason to reject the content of this amendment. We hope that regulations will reflect the essential points so carefully drafted for our Amendment 7. However, we understand the Government’s wish to undertake a consultation before introducing regulations to give legal status to humanist and other belief-based marriages.

I now turn to the Government’s amendment and hope the Minister can give us just four assurances. First, will she repeat in this House her officials’ assurances that they expect to complete the review, consultation and report well ahead of the end of 2014, which of course is the date given in the government amendment? Most importantly, can the Minister assure the House that regulations will be laid before the next general election? With eight years of experience of such marriages in Scotland and many decades of experience of analogous Quaker and Jewish marriages, I trust that this is not too much to ask. The important point here is that the

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amendment should not be kicked into touch. Can the Minister assure the House that the considerable and unique experience and expertise of the British Humanist Association will be fully taken on board in the review and consultation, and that the criteria set out in the amendment will be considered as a basic guide for the future regulations when the review is being undertaken? No one has criticised those principles and points in our amendment, and they would provide a good basis for future regulations. Finally, can the Minister confirm that it is not her intention that commercial organisations will be able to profit from the regulations on belief-based marriages?

In conclusion, I express my sincere thanks to the Minister for her support for humanist marriages and for ensuring that the Government take this matter forward. I beg to move.

8.45 pm

Baroness Stowell of Beeston: With the leave of the House, perhaps noble Lords will allow me to speak to my amendment now for the convenience of this debate and respond to any questions raised at the end.

The noble Lords, Lord Lester, Lord Pannick, and the noble Baroness, Lady Thornton, have also put their names to Government’s amendment. I welcome back the noble Baroness, Lady Meacher. I am sorry that she was unable to be here for the debates in Committee. I echo her good wishes for a speedy recovery to my noble friend Lord Garel-Jones who we are sad to be missing this evening.

When I responded to the debate on this issue in Committee, I undertook to have further discussions with colleagues about what the Government could do about the proposals put forward by the noble Lord, Lord Harrison. I recognised the strength of feeling in that debate and am pleased to bring forward on behalf of the Government amendments that provide for a statutory review, including a full public consultation, on whether belief organisations should solemnise marriage and, if so, what such a provision would look like. Crucially, the new clause provides the means to make any future changes by providing an order-making power that may amend any England and Wales legislation, both primary and secondary. In taking this approach, the Government’s amendment reflects the solution proposed by my noble friend Lord Lester in Committee, supported by the noble Lord, Lord Alli, among others. Since then, I have had the opportunity to speak to some Members of your Lordships’ House with an interest in this matter. My officials have also met the British Humanist Association and the noble Baroness, Lady Meacher. I am grateful to all noble Lords who have given up some of their time to engage in discussion with the Government, and to the British Humanist Association for its constructive approach to finding a way forward on this matter.

Perhaps I may say a little more about the government amendments and why they offer the best way forward in resolving this important issue. The arrangements for the review, which will be a statutory requirement, must provide for a full public consultation, and the Secretary of State must arrange for a report on the outcome of the review to be published by 1 January 2015.

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The new clause gives the Secretary of State power to make provision by order permitting marriages according to the usages of belief organisations. Our amendment defines a belief organisation as an organisation whose principal or sole purpose is the advancement of a system of non-religious beliefs which relate to morality and ethics. I note what the noble Baroness, Lady Meacher, said about the importance of belief organisations and their purpose.

Such an order may amend any England and Wales legislation, both primary and secondary, and may make provision for the charging of fees. The point about fees is a technical one: it merely enables the Registrar General to charge a fee, as she does currently, to cover her costs in administering the service.

An order must provide that no religious service may be used at any marriage solemnised under the provisions of the order. This is because it has been a principle since their introduction that civil marriage ceremonies should be clearly distinct from religious marriage ceremonies. We do not want this review to open up the system by which religious organisations carry out marriages which has been in place for years, and this Bill has been drafted on those foundations. The intention is to maintain the distinction so that no religious elements should be used in a marriage according to the usages of belief organisations. Any order made under this clause will be subject to the affirmative procedure. So, were the Secretary of State to take advantage of the order-making clause, both Houses of Parliament would have an opportunity to debate it and the order would be subject to the affirmative procedure.

Although the Government maintain that this Bill is not the right place to make broader changes to marriage law, as I have said already, it would be wrong not to recognise the strength of feeling in support of the humanists. A statutory consultation as a means to effect any change is the right way forward in responding to the support for humanists, ensuring that the wider public are able to contribute to the debate, and securing that arrangements for belief-based marriages are made on a sound footing and that any implications of them are fully understood.

The noble Baroness, Lady Meacher, referred to what is already in place in Ireland and Scotland. There the law has been changed to allow for humanist and other belief marriages, but they operate a different system to what we have in England and Wales. None the less, in both those countries the changes were subject to extensive dialogue over a period of time with interested parties to develop a solution that fits with their marriage law. It must be right that, if we are to change the law in England and Wales, we should do so only after proper consideration, as it has already been given in Scotland and Ireland, and therefore after a proper public consultation.

In addition to a public consultation, we also need to give consideration to the impact of the changes on the voluntary, private and local government sectors and on religious organisations, although, as the noble Baroness, Lady Meacher, said, we have not received any suggestion from the churches that they object to the amendment we are bringing forward in order to achieve proper consideration. Likewise, consideration

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must be given to what safeguards may be required and how these should be established and, in particular, how we ensure that the significant legal commitment made through marriage is properly regulated and recorded. Such fundamental public policy changes would normally be subject to these considerations and a review and consultation will allow us to do this.

Furthermore, we need to consider whether there are other belief organisations in addition to humanists which may wish to solemnise marriage, and therefore draw up criteria accordingly. I note what the noble Baroness said about the criteria in the amendment in her name. While we will, of course, have due regard to the proposals put forward by the BHA, we need to make sure that the criteria are set in a way that would allow belief organisations other than the BHA to conduct marriages should they wish to do so.

Let me now respond to some of the specific questions put to me by the noble Baroness. She asked me about commercial organisations. I can confirm that it is not our intention to allow commercial organisations to solemnise marriage. Marriage is an important institution and marriage for profit risks undermining key safeguards—for example, it could increase the instances of forced and sham marriages—if the emphasis is simply on increasing the numbers of couples going down the aisle, as it were, as opposed to undertaking proper checks on the couples. I hope I am able to reassure her on that point. She asked me about taking account of the expertise and experience of the British Humanist Association. I can certainly give her an assurance that we would want to give due weight to the expertise of humanist celebrants during the design of the review and consultation. We will also look carefully at the criteria set out in the amendment tabled by the noble Baroness as part of our work on this.

The noble Baroness sought further assurance about future timings. As I have said already, the clause states that the outcome of the review must be published by 1 January 2015. I stress that this is a final date for publication. I am confident that we will be able to provide a response before that time. Over and above that, it would be premature at this time to give a commitment to implementing the regulations. We must consult openly. Ministers will consider the results of the consultation and will, of course, have regard to the debates in both Houses during the passage of the Bill. It is clear that Ministers will have the power to make these changes. That is power that they do not have now, so the power will be there to make the change.

I am very grateful for the constructive approach that has been taken by all noble Lords with an interest in this matter. I believe that the Government’s proposed approach offers the best way to address this issue. When it comes to the right point on the Marshalled List, I hope to move the amendments then, and I shall commend them to the House. As I say, I will be happy to respond to any further points that are made in debate.

Lord Alli: My Lords, I have added my name to Amendment 7. I have made my strong support for the legalisation of humanist marriages clear and said in Committee that the ball is well and truly in our court.

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In our discussions in Committee, the noble Lord, Lord Lester of Herne Hill, like the lone ranger, and not for the first time in this Bill, rode over the hill to our rescue and gave us this formulation. I am more than delighted that the Government have tabled the amendment, bearing the names of the noble Lord, Lord Lester of Herne Hill, and my noble friend Lady Thornton. I pay tribute to the noble Baroness, Lady Stowell, for all her efforts in securing the change in policy. I know that she spent many hours negotiating with many different interests, and it is to her credit that we have this amendment.

I also pay tribute to my noble friend on the Front Bench, Lady Thornton. I know that it is a personal mission for her and I believe that many of us in Committee were moved by her interventions on this subject. I hope that my noble friend’s sister is as proud of her today as we are on these Benches. I urge all those who support humanist marriage to support the amendment.

Baroness Brinton: My Lords, I, too, added my name to Amendment 7, and attempted to put my name to some of the government amendments but was pipped to the post by others. I, too, offer my thanks to Julian Huppert MP who started the process in another place, to the noble Baroness, Lady Thornton, and to my noble friend Lord Lester for the work they have done in conjunction with the Minister. We are extremely grateful for the progress that has been made in the short time since Committee. The only point I would reiterate from the debate in Committee is that this Bill is very much about equality. So far the equality has been based on same-sex and heterosexual marriage. This issue is vital for people who do not follow a religion or faith to be able to celebrate their marriages in the way they wish. It is long overdue and I am delighted that the government amendments pave the way. I look forward to the first humanist-celebrant wedding that I will be able to attend.