Legislative Scrutiny: Marriage (Same Sex Couples) Bill Written Evidence Contents
Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) ...... 2 Letter from the Chair, to Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport (BILLS (12–13) 130) ...... 37 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) ...... 43 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149) ...... 86 Letter from the Chair, to Professor Christopher McCrudden, Counsel, Blackstone Chambers, (BILLS (12–13) 150) ...... 113 Letter from the Chair, to Professor Julian Rivers, University of Bristol (BILLS (12-13) 151) ...... 115 Letter from the Chair, to Mark Hammond, Chief Executive, Equality and Human Rights Commission, and Mr Robin Allen QC (BILLS (12-13) 152) ...... 116 Letter to the Chair, from Professor Julian Rivers, University of Bristol (BILLS (13–14) 002) ...... 117 Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A) .... 118 Supplementary written evidence from Professor Christopher McCrudden, Counsel, Blackstone Chambers (BILLS 13–14) 003) ...... 138 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006) ...... 142 Letter to the Chair, and supplementary written evidence from Mark Hammond, Chief Executive, Equality and Human Rights Commission (BILLS (13–14) 007) ...... 166 Letter to the Chair, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture, Media and Sport (BILLS (13–14) 016) ...... 180 Supplementary written evidence from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture, Media and Sport (BILLS (13–14) 016A) ...... 180
Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106)
You will have seen that Maria Miller has made, on the front of the Marriage (Same Sex Couples) Bill, the statement affirming its compatibility with the Convention Rights.
We have given careful consideration to the human rights implications of the Bill’s measures. I thought it would be helpful, given the Committee’s interest in this Bill and its relationship to human rights obligations, to send you a separate summary of the issues which the Government Equalities Office has identified, and which formed the basis on which Maria Miller signed the statement.
I am sending a copy of this letter and the attachment to the Chair and members of the Public Bill Committee, and placing copies in the House Libraries.
5 February 2013
Marriage (Same Sex Couples) Bill Note for the Joint Committee on Human Rights
Introduction
1. This note discusses human rights issues arising from the Marriage (Same Sex Couples) Bill (“the Bill”) in relation to its compatibility with the European Convention on Human Rights (“the Convention”). The Articles of the Convention of most relevance to the Bill are Article 9 (freedom of thought, conscience and religion), Article 12 (right to marry), and Article 14 (prohibition of discrimination) (read with Article 8 (right to respect for private and family life), Article 9, Article 12, Article 1 of the First Protocol (“A1P1”) (protection of property) and Article 2 of the First Protocol (“A2P1”) (right to education)).
2. The consideration of issues below is done generally by reference to the Article most likely to be engaged and is not repeated in respect of each Article that might also be argued by a claimant, unless different considerations apply. Accordingly, if an Article 14 read with Article 9 claim is most likely to succeed, we have not in general separately considered an Article 9 claim on the same facts (to avoid unnecessary repetition and undue length in the note). Unlike other forms of discrimination that fall within Article 14, in almost every case in which there is discrimination on grounds of religion there will be a breach of a substantive right, namely Article 9. The converse is also true. In almost every case where there is no interference with
2 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106)
Article 9 rights, there will not be discrimination on grounds of religion under Article 14.
Summary of the Bill
3. The main purposes of the Bill are:
To extend marriage to same sex couples in England and Wales.
To permit marriage of same sex couples by way of a civil ceremony and to allow religious organisations to determine whether to permit marriage of same sex couples according to religious rites and usages (except in the case of the Church of England).
To provide protection against successful legal challenge for organisations and individuals who do not wish to marry same sex couples.
4. Other key purposes of the Bill are:
To allow same sex couples who have registered a civil partnership to convert that relationship to a marriage.
To allow certain individuals to change their legal gender without having to end an existing marriage.
To recognise extra-territorial marriages of same sex couples as marriages under the common law.
5. The Bill has 18 clauses and 7 Schedules. In this note we have considered the Schedules along with the clauses in the Bill which bring them into effect. It is divided into three Parts: Part 1 (marriage of same sex couples in England and Wales); Part 2 (other provisions relating to marriage and civil partnership); and Part 3 (final provisions).
Clause 1
6. Clause 1 provides that marriage of same sex couples is lawful and sets out the ways in which such marriage can be solemnized. It makes clear that no Canon of the Church of England is contrary to the Submission of the Clergy Act 1533 regarding making provision about marriage being the union of one man with one woman. It also provides that the duty on a member of the clergy of the Church of England or the Church in Wales to solemnize marriages (and any corresponding right of people to have their marriages solemnized by such clergy) is not extended by the Bill to marriages of same sex couples.
Clause 2
3 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106)
7. This clause provides religious protections so that:
(a) a person or religious organisation may not be compelled to carry out an opt-in activity (defined to mean the various types of activity relating to the decision of a religious organisation to opt in to solemnizing marriage for same sex couples);
(b) a person may not be compelled to conduct, be present at, or otherwise participate in a religious marriage ceremony of a couple because the marriage is of a same sex couple; and
(c) a person or religious organisation may not be compelled to consent to a religious marriage ceremony because the marriage is of a same sex couple.
8. It also amends the Equality Act 2010 (“the EA 2010”) to provide an exception under that Act so that a person may lawfully not conduct, be present at, or otherwise participate in a religious marriage ceremony of a couple because the marriage is of a same sex couple; and so that a person or religious organisation may lawfully not consent to a religious marriage ceremony because the marriage is of a same sex couple.
Clause 3
9. Clause 3 substitutes a new paragraph 26 in Part 3 of the Marriage Act 1949 (“the MA 1949”) concerning marriage of same sex couples for which no opt-in is necessary.
Clause 4 and Schedule 1
10. This clause (and Schedule) inserts a new paragraph 26A into Part 3 of the MA 1949 concerning the opt-in to marriage of same sex couples in places of worship. Schedule 1 makes amendments to Part 3 of the MA 1949 regarding registration of buildings etc.
Clause 5
11. Clause 5 inserts a new paragraph 26B into Part 3 of the MA 1949 concerning the opt-in to marriage of same sex couples and other religious ceremonies (Quaker, Jewish, and for housebound and detained persons).
Clause 6
12. This clause amends Part 5 of the MA 1949 concerning the opt-in to marriage of same sex couples and armed forces chapels.
4 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106)
Clause 7
13. Clause 7 sets out provision for the opt-in in respect of ‘deathbed marriages’ of same sex couples.
Clause 8
14. This clause provides a power for the Lord Chancellor to make an order to allow the Church in Wales to marry same sex couples, if he is satisfied that the Governing Body of the Church in Wales has resolved that the law should be changed to allow such marriages according to the rites of the Church in Wales.
Clause 9
15. Clause 9 provides that parties to an England and Wales civil partnership and to specified civil partnerships formed outside the UK may convert their civil partnership into a marriage. It gives a power to the Registrar General to make regulations for the purpose of converting civil partnerships registered in England and Wales; and a separate power to the Secretary of State for the purpose of converting civil partnerships formed under an Order in Council made under section 210 or 211 of the Civil Partnership Act 2004 (“the CPA 2004”) (registration at British consulates etc. or by armed forces personnel).
Clause 10 and Schedule 2
16. This clause (and Schedule) provides for the recognition of extra-territorial marriages. It deals in particular with the treatment of English and Welsh marriages of same sex couples in Scotland and Northern Ireland.
Clause 11 and Schedules 3–4
17. Clause 11 (and the Schedules) provide that marriage has the same effect in relation to same sex couples as in relation to opposite sex couples. In particular, all England and Wales legislation (whenever passed or made) has effect subject to this, subject to any contrary provision. Schedule 3 sets out provisions concerning marriage-related terminology, including the extension of the meaning of “husband”, “wife” etc. Schedule 4 provides for where the general rule set out in clause 11 does not apply, regarding private legal instruments, presumption of legitimacy, divorce and annulment of marriage, jurisdiction in matrimonial proceedings, the state pension, and occupational pensions and survivor benefits.
Clause 12 and Schedule 5
5 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106)
18. This clause (and Schedule) provides for amendments to the Gender Recognition Act 2004 (“the GRA 2004”) that will allow couples in “protected marriages” to remain in their marriage where one party to the marriage changes legal gender.
Clause 13 and Schedule 6
19. This clause (and Schedule) provides for consular marriage overseas, certificates of no impediment and armed forces marriages. It repeals the Foreign Marriage Act 1892.
Clauses 14–18 and Schedule 7
20. These clauses (and Schedule) set out the powers to make transitional and consequential provision and the final provisions.
Considerations of general application to the Bill
21. The Bill extends marriage in England and Wales to same sex couples, permitting such marriage either through a civil ceremony or with religious rites on religious premises. It therefore enhances the rights of same sex couples. It also respects the wishes of those same sex couples who want to marry through a religious ceremony, and permits religious organisations and individuals to solemnize such marriages, if they wish to. At the same time, it protects religious organisations and individuals who do not wish to conduct such ceremonies. As such, it is in line with the principles of the Convention, both in terms of the aim of providing equal treatment to same sex couples and in terms of securing religious freedom, both for those in favour of same sex marriage and for those opposed to it.
Analysis of Articles engaged by the Bill’s provisions
Article 9
Introduction
22. Article 9(1) provides that everyone has the right to freedom of thought, conscience and religion. Article 9(2) provides that freedom to manifest one’s religion or beliefs shall be subject only to such limitations as meet the criteria in that provision.
23. What counts as “manifesting” a religion or belief has been limited by the courts so that it does not cover every act which is motivated or influenced by a religion or belief. Protected acts are those intimately linked to beliefs or creeds such as acts of
6 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) worship and devotion which are the aspects of the practice of a religion or belief in a generally recognised form.
24. Measures which prevent a person from manifesting their belief in a way that is recognised under Article 9 or penalising them for doing so will generally constitute a limitation of the person’s right which will require justification. Requirements to act in a particular way will not necessarily constitute an interference with Article 9 rights notwithstanding the person’s objection to them on grounds of principle.
25. Where the State imposes restrictions on manifestations of belief these may be justified if they are prescribed by law and necessary in a democratic society:
in the interests of public safety;
for the protection of public order, health or morals; or
for the protection of the rights and freedoms of others.
26. The exercise that the courts must carry out is to decide whether the means are proportionate to the aim of the interference.
Marriage of same sex couples according to religious rites and usages (clauses 1 - 8 and Schedule 1)
27. Article 9 provides protection for both individuals and churches and other religious organisations. The provisions of the Bill which concern marriage of same sex couples according to religious rites and usages clearly engage Article 9 as being concerned with the right to freedom of religion.
28. The Bill provides for a process to allow religious organisations to opt in to solemnizing marriages of same sex couples. It also provides protection for those organisations that do not wish to solemnize such marriages. There is therefore potential interference with the Article 9 right in various circumstances considered below.
Individuals who cannot be married in the religious ceremony of their choice because a religious organisation has decided not to opt in
29. Any compulsion by a State on a religious organisation to engage in a practice contrary to the beliefs of its members would engage the Article 9 rights of the organisation and its members.
30. We consider that it could not be proportionate to interfere with the religious freedom of religious organisations by requiring them to solemnize marriages that
7 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) they consider to be doctrinally impermissible. In reaching this conclusion, we note the importance of the rights under Article 9 and the case law of the ECtHR. As the case law makes clear, “[t]he autonomous exercise of religious communities is indispensable for pluralism in a democratic society”.1 It also positively anticipates that accommodations might be required to facilitate “conscientious objection”.2 The ECtHR has not in the past been sympathetic to “conscientious objections” in the context of employment, but principally on the basis that one is not required to accept or remain in particular employment.3 This is plainly not relevant in the context of the practices of a religious organisation where it may be appropriate to permit conscientious objections.
31. A religious marriage solemnized in a church or other religious building is wholly different to the position considered in the application to the ECtHR by Lillian Ladele, a marriage registrar employed by the London Borough of Islington, who was designated as a civil partnership registrar even though she objected to that because of her religious beliefs4 (the position of marriage registrars is considered separately below). A religious body or individual solemnizing a marriage is, at least in the eyes of some, celebrating a sacrament. Although marriages solemnized according to religious rites and in a religious building may by virtue of the arrangements under the MA 1949 create legally binding marriages, the celebrants are also conducting “acts of worship or devotion forming part of the practice of a religion or belief”5 which will fall within the protection of Article 9.
32. It is therefore considered that any requirement upon a church or other religious organisation to marry same sex couples, contrary to its religious doctrines, would infringe their Article 9 rights (and those of any person compelled to take part, for example a minister). The Bill does not require that any religious organisation or individual must solemnize marriages of same sex couples and so there is no infringement.
33. We consider the risk of success of any challenge brought by a same sex couple under Article 9, in order to establish their right to marry according to religious rites in a particular church or other religious building, is so small as to be negligible in significance. In balancing the rights of a same sex couple and a religious organisation’s rights under Article 9 (in particular, in relation to a matter such as
1 The Supreme Holy Council of the Muslim Community v Bulgaria [2004] ECHR 690, para 93-96 2 For example, Thlimmenos v Greece [2000] ECHR 162 3 For example, X v Denmark (1976) 5 DR 157, Ahmad v the United Kingdom (1982) 4 EHRR 126, Kontinnen v Finland (1996) 87-A DR 68 and Stedman v the United Kingdom [1997] ECHR 178, but note Eweida and others v UK [2013] ECHR 37 at para 83 where the ECtHR held that the better approach would be to weigh the option of resignation in the overall balance when considering whether the restriction was proportionate. 4 Ladele v the United Kingdom Application no. 51671/10, now reported at [2013] ECHR 37 (c.f. Lillian Ladele v the London Borough of Islington [2009] EWCA Civ 1357). 5 Pichon & Sajous v France Application no. 49853/99 (2 October 2001)
8 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) marriage, so closely touching upon a religious organisation’s beliefs), we think the domestic courts (and also the ECtHR) would be bound to give priority to the religious organisation’s Article 9 rights, since to do otherwise would almost inevitably constitute a breach of that organisation’s rights. In our view, any interference with the rights of the same sex couple which results would be justified. The legitimate aim would be the protection of the rights and freedoms of others (the religious organisation and its members) in terms of protecting their Article 9 rights as to what takes place on their premises according to their rites. We think the measure is proportionate in that couples have the choice of a religious ceremony where a religious organisation has opted in to that process, so there is no blanket ban on such ceremonies. In addition, the requirement of the consent of the religious organisation and individuals is also proportionate in our view.
34. The availability of an opt-in for most religious organisations does not alter this balance and does not mean that States must compel organisations to provide marriage ceremonies for same sex couples. This would accord insufficient weight to the Article 9 rights of the religious organisation, its ministers and its members.
35. We note in this context the case of Gas and Dubois v France,6 which concerned the right to adopt of the lesbian partner of a couple who had registered a Pacte Civil de Solidarité (PACS). It was reported in the UK press that the ECtHR had ruled in this case that “if gay couples are allowed to marry, any church that offers weddings will be guilty of discrimination if it declines to marry same-sex couples”.7 This is incorrect: the ECtHR did not consider (and indeed has never done so) the issue of religious marriage ceremonies for same sex couples.
Individuals unwilling to solemnize marriages of same sex couples according to religious rites and usages
36. Merely permitting the solemnization of marriages of same sex couples according to religious rites on religious premises, as with marriages of opposite sex couples, would not, however, infringe the Article 9 rights of any religious organisation. The Bill sets out a process for allowing religious organisations to opt in to marrying same sex couples.
37. Where an organisation has opted in to the process of conducting same sex marriage ceremonies, there may be individual ‘unwilling’ ministers and “authorised persons” who do not wish to solemnize or participate in such marriages. (An
6 [2010] ECHR 444 7 http://www.dailymail.co.uk/news/article-2117920/Gay-marriage-human-right-European-ruling- torpedoes-Coalition-stance.html
9 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) authorised person is appointed by the Registrar General under section 43 of the MA as being able to oversee and register a marriage conducted by a minister; they effectively perform the role of a registrar for marriages in registered buildings (though not Anglican, Quaker or Jewish) where the trustees or governing body wish for such a person to be appointed.) The Bill provides protection for such individuals in clause 2.
38. An ‘unwilling’ individual will be protected from claims made by a same sex couple under Article 9. In addition, a religious organisation will not be able to require that an individual minister affiliated to it should conduct marriages of same sex couples, if they do not wish to. In such circumstances, the organisation will be able to arrange for another minister to conduct such a ceremony. The ‘unwilling’ individual is not imposing their own views on the organisation and its members by such a refusal, they are simply not willing to compromise their own beliefs by carrying out such marriages themselves. Accordingly, we consider that the rights and freedoms of others (the religious organisation and its members) are not infringed by this conduct.
Individuals who wish to solemnize marriage for same sex couples according to religious rites and usages but are prevented from doing so
39. Within those religious organisations which do not opt in, individuals may wish to solemnize such marriages but be prevented from doing so, which may engage their Article 9 rights. We consider that any interference in the rights of the individual would be justified. The legitimate aim would be the protection of the rights and freedoms of others (the religious organisation and its members). In our view, the measure is proportionate in that an individual has a choice as to which organisation they should be affiliated to and so it is open to them to be affiliated to an organisation which shares their views on marriage of same sex couples. It would not be proportionate for a ‘rogue’ individual to be able to impose their views on the organisation which they represent, by marrying a same sex couple according to religious rites when the religious organisation does not believe that such marriage is doctrinally permissible. This differs from the position of an ‘unwilling’ minister as described above, since in that case the individual is not imposing their views on the organisation which they represent.
The Church of England (clause 1)
40. The Bill specifically provides that no Canon of the Church of England is contrary to section 3 of the Submission of the Clergy Act 15338 by virtue of its stating that
8 Section 3 provides: “Provided alway that no canons constitucions or ordynance shalbe made or put in execucion within this Realme by auorytie of the convocacion of the clergie, which shalbe contraryaunt or repugnant to the Kynges prerogatyve Royall or the customes lawes or statutes of this Realme; any thyng conteyned in this acte to the contrarye herof notwithstondyng”.
10 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) marriage is the union of one man with one woman. This preserves the status of Canon law by ensuring that it is not in conflict with the general law. The Bill also sets out that no duty on any member of the clergy to marry extends to marriage of same sex couples (nor any corresponding right of persons to be married by such clergy). Part II of the MA 1949 (marriage according to the rites of the Church of England) is not amended to enable marriage of same sex couples and other provisions under which the Church of England may marry couples are similarly not extended. The Bill therefore treats the Church of England differently to other religious organisations, which are permitted to opt in to a process for solemnizing marriage for same sex couples. This is because different issues apply to the Church of England, as set out below.
41. First, the Church of England as the Established Church is under a duty to marry a parishioner in their parish church (or one in which they have a qualifying connection).9 A clergyman who refuses to marry a person who is entitled to be married in his or her church could be subject to ecclesiastical discipline for failing to carry out the duties of a clergyman. The right of every parishioner to be married in his or her parish church stems from establishment of the Church of England and the Church of England is therefore in an unusual position. (For the position of the Church in Wales see below.)
42. Secondly, the Canons of the Church of England are part of the law of England, in so far as they are consistent with civil law, by virtue of the position of the Church of England as the Established Church. Canon law includes Canon B30, which sets out the fundamental position of the Church of England in respect of the nature of marriage, namely that it is:
“[...] in its nature a union permanent and lifelong, for better for worse, till death them do part, of one man with one woman [...]”.10
43. The Church of England has made clear that it is not in favour of marriage of same sex couples. Having regard to their specific circumstances in relation to marriage law, it would not be possible for it simply not to opt in to the process for solemnizing marriage for same sex couples, as other religious organisations may choose to do. This is because the right of every parishioner to be married in his or her parish church would then be engaged as regards same sex couples as well as opposite sex couples. Accordingly, the Bill makes clear that there is no duty on a member of the clergy to solemnize marriages of same sex couples. Clause 1 also provides that no conflict between the civil law and Canon law arises.
9 Agar v Holdsworth (1758) 2 Lee 515; Church of England Marriage Measure 2008 (2008 No.1) 10 Canon B available at http://www.churchofengland.org/about-us/structure/churchlawlegis/canons/section-b.aspx
11 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106)
44. The Church of England has expressly requested that the Bill should not enable them to opt in. If they were in future to change their views on marriage for same sex couples, they could bring forward to the General Synod an Amending Canon to amend their Canon law, and a Church of England Measure to change the Book of Common Prayer and amend the MA 1949 and other relevant legislation as necessary. A Measure has the same force as an Act of Parliament; a resolution of both Houses of Parliament and Royal Assent is required. Given the unique position of the Church of England and the deference likely afforded by Parliament, it is considered that this requirement is proportionate and necessary.
45. Although this potentially limits the choice of same sex couples and also the powers of individual clergymen, any interference is justified. As noted above, any requirement upon the Church of England to marry same sex couples, contrary to its religious doctrine, would infringe its Article 9 rights.
46. It is important to recognise that, should any challenge be made before the ECtHR, in considering the margin of appreciation in this area there is a unique relationship between Church and State in England and Wales. The Bill strikes a balance between conferring a right for same-sex couples to marry but at the same time ensuring that the requirements of our civil law do not conflict with the doctrine of the Church of England. Marriage legislation safeguards their particular position and their religious practices in relation to solemnization of marriages. The margin of appreciation must depend on the particular conditions within a State, which in the UK’s circumstances includes these complex issues. Legislating to interfere with these practices against the religious beliefs of the Church of England would in our view be unjustified.
The Church in Wales (clauses 1 and 8)
47. The Church in Wales is in the same position as the Church of England as regards marriage law and the MA 1949 applies, as extended by the Marriage (Wales and Monmouthshire) Act 1962, in the same way as it applies to the Church of England (subject to certain exceptions) despite the disestablishment of the Church of Wales by virtue of the Church in Wales Act 1914.
48. The Church in Wales therefore has a duty to marry parishioners in their parish church, just like the Church of England. The Bill makes clear that there is no duty on a member of its clergy to solemnize marriages of same sex couples. As described above, this is because the right of every parishioner to be married in his or her parish church would otherwise be engaged as regards same sex couples as well as opposite sex couples. In addition, Part II of the MA 1949 (marriage according to the rites of the Church of England), which applies to the Church in Wales, is not
12 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) amended to enable marriage of same sex couples and other provisions under which the Church in Wales may marry couples are similarly not extended.
49. The disestablishment of the Church in Wales has the effect that it will not be able to amend legislation in the future should it change its mind and decide that it does wish to carry out marriage of same sex couples. To enable any opt-in by the Church in Wales, the Bill provides a power for the Lord Chancellor, being satisfied that the Governing Body of the Church in Wales has resolved to opt-in, to make an order amending legislation for this purpose. Similarly to the position of the Church of England described above, this process would require parliamentary approval but, given the position of the Church in Wales and the safeguards in the operation of the power (only on the resolution of the Governing Body of the Church in Wales), it is considered that this approach is proportionate.
Opt-in procedure for religious organisations solemnizing marriages of same sex couples (clause 5)
50. Religious organisations (other than the Church of England, Church in Wales, Jews and Quakers) will be able to opt in to solemnizing marriages of same sex couples by specially registering their building with the consent of their governing body. This builds on the existing law tying the solemnization of marriage to particular premises.
51. Jews and Quakers do not register their buildings in this way under the current law and can solemnize marriages in any place. They will be able to opt in by giving the consent of their governing authority before the superintendent registrar issues the certificates authorising the marriage. The opt-in respects the existing practices of all religions and enables those organisations which want to opt in to do so, whilst providing protections for those that do not. Therefore the religious freedom of all organisations is respected and not interfered with any more than necessary.
Consent when building is shared by more than one religious organisation (clause 4 and Schedule 1)
52. The Bill provides that where a building is shared by more than one religious organisation under a formal sharing arrangement as provided for in the Sharing of Church Buildings Act 1969 (“the SCBA 1969”), the governing authorities of all religious organisations sharing the building will need to consent to the registration of the building for the purpose of solemnizing marriages of same sex couples (see new section 51A of the MA 1949 inserted by Schedule 1).
13 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106)
53. This requirement that all sharers consent protects the Article 9 rights and religious freedoms of those religious organisations that do not want to opt in nor be involved in marriages of same sex couples.
54. New section 51A of the MA 1949 enables the Secretary of State to make regulations which deal with sharing arrangements, including where there is no formal sharing arrangement under the SCBA 1969. The power will be used to protect the rights of religious organisations by balancing the rights of sharers in relation to solemnizing marriages of same sex couples. The Secretary of State will consider compatibility with the Convention when making the regulations and they will be subject to the affirmative procedure.
Withdrawal of consent by religious organisations to solemnizing marriages of same sex couples (clause 4 and Schedule 1)
55. The Bill provides that the registration of a building for the purposes of the solemnization of marriages of same sex couples may be cancelled if the relevant governing authority gives written consent (new section 43C of the MA 1949). However, where more than one church shares a church building, the consent of all governing authorities is not required for withdrawal (new section 51A of the MA 1949).
56. This protects the Article 9 rights of religious organisations and their members by ensuring that no religious organisation which shares a building is required to allow it be used for marriage of same sex couples (even where they have previously consented to the registration for those purposes).
Article 12
Introduction
57. Article 12 provides that men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
Marriage of same sex couples
58. The right to marry under Article 12 does not guarantee the right to marriage for same sex couples.11 In Schalk and Kopf v Austria the ECtHR held open the possibility that it might extend its interpretation of Article 12 to include marriage of same sex couples, but currently the issue of whether to allow such marriages falls within States’ margin of appreciation. As such, Article 12 does not impose an
11 Schalk and Kopf v Austria [2010] ECHR 1996 (para 61)
14 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) obligation to grant same sex couples the right to marry.12 (A right to marry for same sex couples also cannot be derived from Article 14 read with Article 8, since the Convention is to be read as a whole and its Articles should therefore be construed in harmony with one another.)
59. The ECtHR noted in Schalk that there is an emerging European consensus towards legal recognition of same sex couples. But there is not yet a majority of States providing for legal recognition of same-sex couples and so it stated that the area in question must still be regarded as one of evolving rights with no established consensus, where States must also enjoy a margin of appreciation in the timing of the introduction of legislative changes.13 To date we are aware of only eight States14 (out of 47) that have implemented legislation permitting marriage for same sex couples.
60. An application was made to the ECtHR in February 2011 by individuals involved in the Equal Love campaign.15 As part of this application, four same sex couples claim breach of Article 12, alone or in conjunction with Article 14, because they cannot marry. We are not aware of the ECtHR’s decision on the admissibility of this application.
Gender recognition (clause 12 and Schedule 5)
61. Gender recognition is governed by the GRA 2004. Pursuant to the GRA 2004 a transgender person may make an application for a Gender Recognition Certificate (“GRC”) to the Gender Recognition Panel (“the Panel”) to change their legal gender (“the acquired gender”). The issue of a full GRC entitles the recipient to full legal recognition in his or her acquired gender. If the applicant meets the evidential requirements in the GRA 2004 and is not married or in a civil partnership, the GRC which is issued will be a full GRC. If the applicant meets the evidential requirements in the GRA 2004 and is married or in a civil partnership, then an interim GRC will be issued. Under the Matrimonial Causes Act 1973 (“the MCA 1973”), where an interim GRC is issued, a marriage becomes voidable. Following this, if the applicant applies to the court within six months of the interim GRC being issued, the court can grant a decree of nullity and issue a full GRC. An application to void a marriage can also be made if the respondent to the application is a person whose gender at the time of the marriage had become the acquired gender pursuant to the GRA 2004.
62. The consequence of the current provisions is that in order to obtain a full GRC any existing marriage or civil partnership of the applicant must be ended. This
12 Schalk (para 63) 13 See Courten [2008] ECHR 1546 and M.W. v the United Kingdom [2009] ECHR 1113 14 Belgium, Denmark, Iceland, Netherlands, Norway, Portugal, Spain and Sweden 15 http://equallove.org.uk/the-legal-case/
15 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) approach has been held to be lawful by the ECtHR (see Parry v the United Kingdom,16 in which the ECtHR applied its ruling in Goodwin v the United Kingdom17 that in recognising a change of gender it was a matter for individual States how to deal with subsisting marriages). Given that States are entitled not to permit marriages of same sex couples it must be permissible for them not to allow individuals to remain married to someone who would be regarded as being of the same legal gender as them once they have gone through the gender recognition process.
63. Under the Bill, a married couple whose marriage is registered in England and Wales or outside the UK (referred to in the Bill as “protected marriages”) will be able to remain in their marriage even when one spouse obtains a full GRC. The evidential requirements in section 3 of the GRA 2004 are amended to require applicants to submit a statutory declaration as to whether they are married and where that marriage is registered.
64. A result of this provision is that the applicant’s spouse (“the non-trans spouse”) could find themselves in a marriage with a person of the same sex as a result of his or her spouse’s change of gender. To ensure this only occurs where both the applicant and non-trans spouse wish to stay married, the non-trans spouse will also have to make a statutory declaration as part of the GRC application process indicating that he or she wishes to remain married once a full GRC is granted to the applicant (with additional provision to allow them to withdraw this consent before a full GRC is issued). Where no statutory declaration is made at the time of the application for a GRC or the non-trans spouse indicates to the Panel that he or she does not consent to the marriage continuing, an interim GRC will be issued. If, within six months of the issue of the interim GRC, a statutory declaration from the spouse is submitted to the effect that he or she now consents to the marriage continuing, a full GRC will be issued and the couple can remain married. Applicants and their spouses will be entitled to be notified when a full GRC is issued to prevent fraud. If a statutory declaration from the non-trans spouse has been obtained fraudulently, this will render the marriage void.
65. Although this engages the Article 12 rights of both the applicant and non-trans spouse as concerning the right to marry (and also both parties’ Article 8 rights in terms of private and family life), we consider that there is no interference and therefore no breach of the Convention rights of either spouse. The key here is choice: the Bill protects the rights of couples who wish to remain married following the issue of a full GRC, while at the same time protecting the right of the non-trans spouse to leave a marriage if the trans spouse is seeking to obtain a GRC.
Article 14
16 [2006] ECHR 1157 17 [2008] ECHR 61
16 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106)
Introduction
66. Article 14 provides that the enjoyment of the Convention rights shall be secured without discrimination on any ground “such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
67. The ECtHR has consistently held that Article 14 complements the other substantive provisions of the Convention and its Protocols and it has no independent existence. The principles of the application of Article 14 are that there must be a difference in treatment of persons in relevantly similar situations, in the enjoyment of rights guaranteed under the Convention, for there to be a breach of that Article. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the legitimate aim that is pursued. However, States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (Burden & Burden v the United Kingdom18), including distinctions of legal treatment (Marckx v Belgium19).
68. The ECtHR has held that differences based on sexual orientation require particularly serious reasons by way of justification (see Karner v Austria20; L and L & V v Austria21; and Smith and Grady v the United Kingdom22). On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy (see, for instance, Stec and Others v the United Kingdom23). The scope of the margin of appreciation will vary according to the circumstances; one of the relevant factors may be the existence or non- existence of common ground between the laws of States (see Petrovic v Austria24).
69. Administrative difficulties would not normally suffice as a justification as in Darby v Sweden25 where this was the sole basis for barring non-residents who worked in Sweden from an exemption to church tax available to residents in Sweden. Nor can justification for interferences with rights be derived purely from negative attitudes that a particular minority might arouse—see Smith and Grady where this was rejected as a justification for the UK’s ban on homosexuals in the army. A certain allowance is, however, given to States as regards the timing of changes which reflect
18 [2006] ECHR 1064 19 [1979] ECHR 2 20 [2003] ECHR 395 (para 37) 21 [2003] ECHR 20 (para 45) 22 [1999] ECHR 72 (para 90) 23 Application no. 65731/01 and 65900/01 24 [1998] ECHR 21 25 [1990] ECHR 24
17 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) a shift in society’s attitudes, as in Petrovic where the ECtHR would not criticise the Austrian government for extending parental leave to fathers as well as mothers in a gradual manner.
Civil partnerships for opposite sex couples
70. The Bill does not permit the extension of the civil partnership regime under the CPA 2004 to opposite sex couples. They will remain available only to same sex couples. Under current law, marriage is limited to opposite sex couples and civil partnership is limited to same sex couples i.e. there are two distinct regimes. But under the Bill, these regimes will not be distinct.
71. As noted above, an application was made to the ECtHR in February 2011 by individuals involved in the Equal Love campaign. As part of this application, four opposite sex couples claim breach of Article 8, alone or in conjunction with Article 14, because they cannot enter into a civil partnership. No notification of the ECtHR’s decision on admissibility has been received by the Government regarding this application.
72. Just as there is no right of same sex couples to marry pursuant to Articles 8 and 12, we do not consider that there is a right of opposite sex couples to enter a civil partnership protected by Article 8. However, an opposite sex couple would be likely to be able to show that the difference in treatment with a same sex couple is at least within the ambit of Article 8, as concerning family life.
73. The couple would then need to show that the treatment is based on a personal characteristic or status. In this case, difference in treatment on grounds of sexual orientation would fall within Article 14 (see for example Sutherland v the United Kingdom26).
74. As for justification of any interference, the opposite sex couple who wish to enter a civil partnership could argue that, if the choice of marriage or civil partnership is available to same sex couples, there is no reason why that choice should not also be available to opposite sex couples. They may not wish to marry because of marriage’s history or past religious associations, but may nevertheless wish to be accorded the rights and recognition available to civil partners.
75. In response, we consider that it is within the margin of appreciation of a State to recognise different forms of relationship for same sex and opposite sex couples. In the past (and prior to the CPA 2004) it was not unlawful for opposite sex couples to enjoy greater recognition of their relationship than same sex couples. That was a choice States were permitted to make. We consider that, equally, it is not unlawful
26 [2001] ECHR 234
18 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) for same sex couples now to have more options available to them in terms of the recognition of their relationship. That is so, in particular, given the historical context, namely that civil partnerships are relationships that were specifically created for same sex couples to give them similar recognition to that given by marriage, and were never intended for opposite sex couples as an alternative to marriage.
76. The Government’s view is that marriage is the status which is regarded by the State as being the more desirable for couples to enter, and that opposite sex couples should therefore be encouraged to marry rather than enter civil partnerships. In addition, equivalent legal status to that of a civil partnership can be gained through a civil marriage ceremony. There is no evidence of material harm to an opposite sex couple who cannot enter into a civil partnership. The only complaint an opposite sex couple could have would be an objection to marriage as a concept, rather than in terms of any practical consequences that might arise.
77. We consider that there must be a significant margin of appreciation in this area, given that there is no consensus within States about the provision of civil unions (that are not marriage) to opposite sex couples. Given the lack of material harm, and the only possible objection being to marriage as a concept, we consider that it would be within the margin of appreciation for a State to determine that it is not obliged to create a new form of legal relationship for opposite sex couples to counter that objection.
Individuals who cannot be married in the religious ceremony of their choice because a religious organisation has decided not to opt in (clauses 1–8 and Schedule 1)
78. A refusal by a church or other religious organisation to marry a same sex couple could engage the couple’s rights under Article 14 (read with Articles 12, 9 and possibly Article 8).27 The couple would be likely to be able to show that the difference in treatment to that of an opposite sex couple is in the ambit of those Articles, as concerning marriage, religion and family life.
79. The couple would then need to show that the treatment is based on a personal characteristic or status. In this case, difference in treatment on grounds of sexual orientation would fall within Article 14.
80. As for justification of any interference, the Article 9 rights of the church or religious organisation concerned (which are considered in detail under the Article 9 analysis above) would be highly material. Article 9 is given particular weight under the Convention and this is reflected in the Human Rights Act 1998 (section 13). It is considered highly likely that a refusal by a church or other religious organisation to solemnize a marriage of a same sex couple, so as to comply with the doctrine of its
27 Schalk (paras 94-95)
19 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) religion or the strongly held and faith-based convictions of its members, would be regarded by any court as justified.
81. Indeed, a requirement that a church or other religious organisation solemnize marriages of same sex couples, contrary to their religious doctrine, could be regarded as discriminatory under Article 14 read with Article 9. Treating churches and religious organisations that have doctrinal objections to marriage of same sex couples in the same way as those that do not, in the context of whether or not they should themselves solemnize such marriages, is to fail to make a distinction between the two which could result in a discriminatory outcome.
Armed forces marriages (clause 6 and Schedule 6, Part 3)
82. The Bill amends Part 5 of the MA 1949 so as to enable a naval, military or air force chapel in England and Wales to be registered, on application by the Secretary of State, for the solemnization of marriage of same sex couples. By contrast with registration of chapels for marriage of opposite sex couples, this will not permit marriages according to the rites of the Church of England or the Church in Wales. The reasons for this exclusion are discussed above.
83. A further difference is that the Bill enables the Secretary of State to make regulations about the registration of chapels for marriage of same sex couples. In addition to procedural matters, it is provided that such regulations may require consents to be obtained before an application for registration is made. This reflects the fact that each chapel is used for worship by several religious organisations, some of which may have doctrinal objections to its use for marriage of same sex couples. In relation to shared civilian places of worship the Bill meets that concern as described above by requiring that in certain circumstances all of the organisations using the building must individually consent to its registration for marriage of same sex couples (which thereby meets the Article 9 rights of those organisations and their members); a power is given to the Secretary of State to make regulations where there is no formal sharing arrangement. Since military chapels are Crown land, used for the purposes of the State, it is necessary not only to accommodate the concerns of the religious organisations which use them but also to ensure that the State itself does not infringe Article 14 (in conjunction with Article 9) by making its chapels available for marriage only for opposite sex couples. The regulation-making power is designed to offer maximum flexibility in balancing these considerations, following consultation with the organisations concerned. The Secretary of State will consider compatibility with the Convention when making the regulations and they will be subject to the affirmative procedure.
84. Similar considerations apply to Part 3 of Schedule 6 to the Bill, which confers power to make an Order in Council authorising marriages of armed forces
20 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) personnel overseas and accompanying civilians, including marriages of same sex couples. Again it will be necessary to ensure that any such provisions, by virtue of applying only to same sex couples, do not involve infringement of Article 14 (in conjunction with Article 9) by the State.
Presumption on birth of child to married woman (Schedule 4, Part 2)
85, Clause 11 of the Bill sets out a general rule of equivalence between marriages of same sex and opposite sex couples. Schedule 4 paragraph 2 makes clear that the common law presumption that a child born to a woman during her marriage is also the child of her husband (often referred to as “the presumption of legitimacy”) is not extended by clause 11. Therefore, where two women are married to each other and one of the parties to that marriage gives birth to a child, the other party will not be presumed to be the parent of that child by virtue of the common law presumption. There may be other ways in which the party to the marriage who does not give birth to the child is treated in law as the parent,28 but in all such cases it is not the common law presumption of legitimacy that treats her as the parent of that child.
86. We acknowledge that there is a possibility that it might be argued that an individual’s rights under Articles 8 and/or 14 (read with Article 8) of the Convention could be engaged by these provisions. We consider it extremely unlikely that such an argument would be successful and that, in any event, such an argument would be based upon a false premise. This provision will not change the current situation or actually what the legal position is once the Bill comes into force. Instead the provision simply clarifies what the legal position will be in terms of the common law presumption. Even if the presumption did apply to a marriage between two women (which we do not consider it would do because the presumption is about fatherhood and the Bill does not change the law on fatherhood), it would be rebutted by the factual scenario. Therefore, this provision does not interfere with that woman’s right to a family life. It should also be noted that there will still be ways in which a woman married to another woman can become the legal parent of the child her wife gives birth to.29 We are therefore satisfied that this provision does not amount to a breach of rights under Articles 8 and/or 14 of the Convention.
Adultery (Schedule 4, Part 3)
87. Schedule 4 paragraph 3 of the Bill makes an amendment to section 1 of the MCA 1973, which sets out the five facts for proving the ground of divorce (irretrievable
28 For example, the amendment made by Schedule 7 paragraph 36 of the Bill to section 42 of the Human Fertilisation and Embryology Act 2008 provides that, where a woman is in a civil partnership or a marriage with another woman at the time of treatment with donor sperm, her civil partner or wife will be treated as the child’s parent unless it is shown that she did not consent to her treatment. 29 As set out in footnote 28.
21 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) breakdown of a marriage). The amendment sets out that adultery can only be committed through conduct with a person of the opposite sex, whether the adultery relates to a marriage of a same sex or opposite sex couple.
88. This could potentially engage an individual’s Article 14 rights (read together with Article 12) as it has a different impact on same sex couples than on opposite sex couples. Although Article 12 makes no express reference to divorce, this was considered in Johnston v Ireland30 and F v Switzerland31 (in the former, the ECtHR rejected the complaint that impediments to the right to divorce breached Article 12, whereas in the latter it emphasised that divorced persons should not be unduly restricted from remarrying). Accordingly, the case law suggests that the proposed definition of adultery as evidence for proving the ground of divorce would not be covered by Article 12 and therefore the Convention would not apply. However, if it is covered, any difference in treatment between same sex couples and opposite sex couples in that regard could potentially engage Article 14. A same sex couple would need to show that the treatment is based on a personal characteristic or status. In this case, difference in treatment on grounds of sexual orientation would fall within Article 14.
89. Under current law, where a marriage is validly formed and existing as a matter of law, it may be terminated by a court following a petition for divorce. The sole ground on which a petition for divorce may be presented is that the marriage has broken down irretrievably. Irretrievable breakdown may be established only by proof of one or more of five facts as specified in statute32:
(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) that the respondent has behaved in such a way that the petitioner finds it intolerable to live with the respondent;
(c) that the respondent has deserted the petitioner for a continuous period of at least two years;
(d) that the parties have lived apart for a continuous period of two years and the respondent agrees to a decree being granted;
(e) that the parties have lived apart for a continuous period of at least five years.
90. Adultery is defined under common law as consensual sexual intercourse between a married person and a person of the opposite sex33 who is not their spouse. There
30 [1986] ECHR 17 31 (1987) 10 EHRR 411 32 Section 1 MCA 1973 33 W v W (nullity) [2000] 3 FCR 748
22 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) must at least be partial penetration of the female by the male for the act of adultery to be proved.34 Although indecent behaviour, short of sexual intercourse, is not adultery, an inference of adultery may be drawn by the court.35 In addition to the actual act of adultery, it must also be shown separately that the petitioner finds it intolerable to live with the respondent.
91. Conduct not amounting to adultery may amount to behaving in such a way that the petitioner cannot reasonably be expected to live with the respondent. This is judged in the context of the two individual parties and the test applied is whether a right-thinking person, looking at the particular husband and wife, would ask whether one could reasonably be expected to live with the other taking into account all the circumstances of the case and the respective characters and personalities concerned.36
92. The provisions on adultery in the Bill mean that there is no substantial difference in treatment between same sex and opposite sex couples, since divorce will be available to both in respect of the same form of behaviour (that is extra marital sex with a person of the opposite sex). It is likely that reliance on evidence of adultery will be less common in respect of divorce of a couple in a same sex marriage. On that basis, our view is that there is no interference and therefore no breach of the Convention.
93. However, it might be argued that there ought to be a difference in the definition of adultery in respect of a marriage of a same sex couple to reflect the circumstances of the relationship. This is because Article 14 is also violated when States, without an objective and reasonable justification, fail to treat differently persons whose situations are significantly different. It could be argued that the sexual act required in order to prove adultery should be the same as the sexual act which is inherent to the marriage, which would obviously differ depending on whether the marriage is of a same sex or opposite sex couple.
94. As to whether any interference is justified, we consider that the aim is legitimate in that there should be clarity in the law as to what constitutes adultery (separate from unreasonable behaviour which already covers a wide range of behaviour). Evidential difficulties introduce an element of uncertainty to what would constitute adultery for same sex couples which would leave the grounds for divorce (potentially for both same sex and opposite sex couples) uncertain. Same sex couples will be able to divorce relying on evidence that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with them. Since the petitioner must under current law already show that they find it intolerable
34 Dennis v Dennis [1955] P 153 at 160 35 Elwes v Elwes (1796) 1 Hag Con 269 at 278 36 Buffery v Buffery [1988] FCR 465
23 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) to live with the respondent in addition to proving the actual act of adultery, the evidence relating to adultery could be seen as additional rather than absolutely necessary in order to obtain a divorce.
Non-consummation (Schedule 4 Part 3)
95. Under Schedule 4 paragraph 4, it is provided that it will not be possible for a same sex couple to annul their marriage on the ground of non-consummation. This is different to the provision for opposite sex couples, who are able to annul their marriage under section 12(a) or (b) of the MCA 1973, where the marriage has not been consummated owing either to the incapacity of either party to consummate it or to the wilful refusal of the respondent to consummate it.
96. This could potentially engage an individual’s Article 14 rights (read together with Article 12) as it has a different impact on same sex couples than on opposite sex couples. As set out above in relation to adultery, Article 12 makes no express reference to the termination of a marriage, whether by divorce or annulment. Our view is that it is likely that not providing non-consummation as a ground on which a marriage of a same sex couple is voidable would not be covered by Article 12 and therefore the Convention would not apply. However, if it is, any difference in treatment between same sex couples and opposite sex couples in that regard could potentially engage Article 14. A same sex couple would need to show that the treatment is based on a personal characteristic or status. In this case, difference in treatment on grounds of sexual orientation would fall within Article 14.
97. Non-consummation as a ground on which a marriage is voidable is a provision which can be traced back hundreds of years, ultimately deriving from religious doctrine on the nature of marriage. Its legal significance arises from theories of marriage as having the purpose of producing legally recognised descendants of the partners, or of providing sanction to their sexual acts together, or both, and amounts to treating a marriage ceremony as falling short of completing the creation of the state of being married. Thus in some traditions, a marriage is not considered a binding contract until and unless it has been consummated. For example, Catholic Canon law defines a marriage as consummated when the “spouses have performed between themselves in a human fashion a conjugal act which is suitable in itself for the procreation of offspring, to which marriage is ordered by its nature and by which the spouses become one flesh”.37 Within the Roman Catholic Church, a marriage that has not yet been consummated, regardless of the reason for non- consummation, can be dissolved by the Pope.
37 Canon 1061 para 1 – see http://www.vatican.va/archive/ENG1104/_P3V.HTM
24 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106)
98. We therefore consider that consummation is in fact a concept that can only be applied to sexual conduct with a person of the opposite sex, since it historically concerns the possibility of procreation.
Conversion of a civil partnership to a marriage (clause 9)
99. The Bill provides that for civil partnerships registered in England & Wales (or in some cases if it was registered abroad), the couple will have the option to convert the partnership into a marriage. The effect of converting the relationship will be that any rights, responsibilities and benefits accrued during the civil partnership which are matched by rights, responsibilities and benefits within marriage would continue once the couple were married, and they will be treated as accruing from the date of the original civil partnership (rather than the date of conversion).
100. The Bill does not make this conversion process available in relation to civil partnerships registered outside of England & Wales (though it will be available in respect of civil partnerships registered at British consulates or by armed forces personnel where couples have jointly elected England and Wales as the relevant part of the UK). Marriage is a devolved matter, and it is for the devolved administrations in Scotland and Northern Ireland to determine whether or not the conversion process should be available. In Scotland it is proposed to introduce marriage for same sex couples with a similar conversion process. At present, the position in Northern Ireland is that marriage for same sex couples and an equivalent conversion process for existing civil partnerships is not proposed.
101. The consequence of this would be as follows: if Couple A, who live in London, have a civil partnership registered in England and Wales, they will be able to convert that partnership into a marriage in England and Wales. By contrast Couple B would not be permitted to convert a civil partnership into a marriage if that partnership were registered in Northern Ireland. It would not matter for these purposes if Couple B also live in London and wish the conversion to a marriage to take place in England and Wales.
102. As noted above, the ECtHR has affirmed in Schalk that there is no right to marriage for same sex couples pursuant to the Article 12, or Article 14 read with Article 8. Nor is it unlawful discrimination to treat same sex couples differently to opposite sex couples by permitting only the latter to marry. It would not, therefore, be unlawful per se for Northern Ireland to refuse to register marriages of same sex couples or to refuse to permit couples to convert civil partnerships into marriage.
103. A more difficult question is whether it would constitute unlawful discrimination pursuant to Article 14 (read with Articles 8 and/or 12) to treat Couple A and B differently (i.e. to treat same sex couples who reside in England and Wales
25 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) differently depending on whether their civil partnership was registered in England & Wales or in Northern Ireland).
104. It is likely that Couple B would be able to establish that the difference in treatment with Couple A would fall within the ambit of Articles 8 and/or 12. It concerns matters related to marriage which fall within the ambit of the right to family life and the right to marry.
105. Couple B would then need to show that the treatment is based on a personal characteristic or status. The question would be whether having a civil partnership registered in Northern Ireland, as compared to a civil partnership registered in England & Wales, constitutes “other status” within the meaning of Article 14.
106. In a number of cases it has been held that the application of different legal regimes to the different jurisdictions within the UK does not mean that individuals subject to those regimes have different “status” from one another so as to enable them to bring a claim for breach of Article 14. This was held to be the case when an objection was made to anti-terrorism legislation in Northern Ireland that was different to the legislation in place in England & Wales (Magee v the United Kingdom).38 It was also held to be the case where an objection was made to different penal regimes in Scotland as compared to England and Wales (Nelson v the United Kingdom).39 The ECtHR held that the difference in treatment in such cases resulted not from some different status of the individuals, but from the fact that they were arrested and detained in different regions. An inevitable consequence of a devolved system of government is that there will be different laws applicable to different jurisdictions. That does not, in itself, mean that the difference in treatment is on the basis of a different status as between individuals so as to fall within Article 14. We consider that the courts are likely to treat the place where a civil partnership was registered as being an administrative matter that flows from the devolution of power to the different jurisdictions within the UK rather than a matter giving rise to a personal “status” within the meaning of Article 14.
107. If a court concluded that Article 14 was engaged, we think that the courts would find that any difference in treatment was justified. As noted above, it would not be a breach of the Convention for Northern Ireland to refuse to recognise marriage of same sex couples. As the ECtHR held in Schalk, different jurisdictions are entitled to take different views on that question reflecting their particular social and cultural values. Permitting a civil partnership registered in Northern Ireland to be converted into a marriage would, in effect, be to recognise a Northern Irish civil partnership as a marriage. That would be inconsistent with a decision by Northern Ireland not to recognise the marriage of same sex couples. It is considered that this
38 [2000] ECHR 216 39 [2008] ECHR 247
26 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) would be regarded as a sufficient justification for the difference in treatment of Couple A and B. That would mean that there is no breach of Article 14 in treating Couple A and B differently.
Gender recognition (clause 12 and Schedule 5)
Devolution
108. As explained above, the Bill proposes to allow married couples to remain married even where one party is issued with a full GRC. The provision only extends to marriages registered in England and Wales and outside the UK as marriage and the registration of marriages are devolved in relation to Scotland and Northern Ireland. The devolved administration in Scotland proposes to introduce marriage for same sex couples and in the process to allow a couple where one party to the marriage obtains a full GRC to remain in their marriage. The position in Northern Ireland may be different if the devolved administration decides not to reissue marriage certificates to a same sex couple following the grant of a GRC to one party to the marriage. Under the Bill, the position would be that those couples whose marriage certificates were issued in Northern Ireland will not be able to remain married if a full GRC is issued. The trans spouse will be issued with an interim GRC and will need, as now, to end their marriage in order to obtain a full GRC.
109. The position is straightforward in relation to those couples with Northern Ireland marriage certificates who are resident in Northern Ireland. In effect they will be in the same position as any other same sex couple resident in Northern Ireland. The ECtHR has held in Parry that this is lawful.
110. The Bill will have a different impact on couples who are resident in England and Wales but have marriages registered in Northern Ireland. So, under the Bill a couple who live in England and Wales and whose marriage is registered there (Couple A) will be able to remain married even if one party to the marriage is issued with a full GRC. By contrast a couple who live in England and Wales, but whose marriage is registered in Northern Ireland (Couple B), would be required to terminate their marriage if one spouse wishes to be issued with a full GRC. Allowing for any other effect would amount to the law of England and Wales having an impact in a devolved area (marriage registration).
111. Couple B might wish to argue that there has been a difference in treatment within the ambit of Articles 8 and/or 12 of the Convention. The difference in question is between Couple A and B’s respective ability to remain married if one spouse is issued with a full GRC. The difference would be said to relate to the rights to private and family life (Article 8) and marriage (Article 12).
27 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106)
112. As to whether the difference amounts to discrimination on the basis of a characteristic protected by Article 14, and whether it is justified, the issues are similar to those regarding the bar on the conversion of civil partnerships registered in Northern Ireland to marriages, considered above. As in that case, we think that the courts are likely to conclude that a difference in treatment of Couples A and B based upon the place where their marriage was registered does not constitute a difference in “status” within the meaning of Article 14.
113. We consider that any interference with Couple B’s rights would be found to be justified. If a couple whose marriage was registered in Northern Ireland but who no longer chose to live there could remain married following the issue of a full GRC to one party to that marriage, their Northern Irish marriage would continue notwithstanding that it was between a same sex couple. That would not be consistent with the current law in Northern Ireland which, in not allowing same-sex marriage, is nonetheless compatible with Article 12. It would, in effect, enable a couple who married in Northern Ireland to avoid the full effect of the Northern Ireland marriage laws when they live in England and Wales. For these reasons, we consider that it would be justified and proportionate to refuse to permit a Northern Ireland registered marriage to continue once a full GRC has been issued to one party to the marriage. That is the case even if it meant treating Couple A and Couple B differently, notwithstanding that both now reside in England & Wales.
Civil partnerships
114. As explained above, the Bill only allows married couples in protected marriages to remain in their marriages. It does not extend to couples in civil partnerships because opposite sex civil partnerships will still be unlawful. If a couple are in a civil partnership registered in England and Wales, and wish to remain in their union following one of the parties’ application for a GRC, the Panel will advise them to take up the option of converting the partnership into a marriage before the trans party applies for a full GRC. Once the civil partnership has been converted the couple will be able to remain married following the issue of the full GRC as set out above. The couple will also have the option of converting their civil partnership to a marriage within six months of the issue of the interim GRC.
115. As above, couples in civil partnerships may seek to argue that refusing to permit them to remain in a civil partnership if the trans partner is to be given a full GRC falls within the ambit of Articles 8 and/or 12. The difference relates to private and family life (Article 8) and marriage (Article 12).
116. Where a couple in a civil partnership is treated differently to a couple in a marriage, that is a difference which a couple might seek to establish on the basis of
28 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106)
“other status” pursuant to Article 14 as it relates to a difference based on marital status.40
117. As to justification of any alleged interference, the issue will be broadly similar to whether it is justified to refuse to permit opposite sex couples to register civil partnerships. This is considered above. On the assumption that this will be justified for the reasons given then it will be lawful to refuse to permit a couple to remain in a civil partnership following the issue of a full GRC to one partner.
Marriage registrars
118. Under the Bill, marriage registrars whose role it is to register marriages for civil purposes pursuant to the MA 1949 will be responsible for marriages of same sex couples as well as opposite sex couples. The Bill does not make provision for the conscientious objection of those registrars whose religious or philosophical beliefs mean that that they do not want to solemnize marriage of same sex couples.
119. Following the recent judgment (published on 15 January 2013 and not yet final) of the ECtHR in Ladele, refusing to permit civil partnership registrars to conscientiously object to registering civil partnerships is lawful pursuant to both the EA 2010 and the Convention.
120. There is also no requirement under Article 14 read with Article 9 to allow for conscientious objection in the case of marriage registrars whose religious or philosophical beliefs mean that that they do not want to conduct same sex marriage ceremonies. We consider that any interference is justified by the legitimate aim that public officials should offer their services to all without discrimination based on the sexual orientation of customers. There is a balance to be struck between the rights of same sex couples in this regard and the rights of those who believe, whether or not motivated by religion, that homosexual acts are morally wrong or that same sex relationships should not be promoted. But there can be little doubt that promoting equality and tackling discrimination because of sexual orientation is a legitimate, indeed a weighty, aim for a public authority—the ECtHR held that this aim was legitimate in Ladele. The ECtHR has held on many occasions that particularly convincing and weighty reasons are necessary to justify subjecting individuals to differences in treatment on the grounds of their sexual orientation.
121. As for proportionality, Ms Ladele argued that there were “less severe and intrusive means available to Islington” and services could have been arranged so that
40 See P.M. v the United Kingdom (2006) 42 EHRR 45 in which the ECtHR held that difference in treatment as between a married and unmarried father fell within Article 14, where both were separated from the mother and living apart from their child; though see also, for example, Lindsay v the United Kingdom (Application no. 11089/84 (11 November 1986)).
29 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) other registrars, without her beliefs, would register civil partnerships. However, Islington argued that it was entitled to conclude that it would undermine its pursuit of its aim if it were to make exceptions for employees as to the work they were required to perform because those employees did not wish to provide services to same sex couples. The ECtHR held in Ladele that there is a wide margin of appreciation for national authorities when it comes to striking a balance between competing Convention rights (cf Evans v the United Kingdom)41 and that Islington did not exceed the margin of appreciation in this case.42 Similar considerations would apply to registrars in relation to marriage of same sex couples.
122.Arising from this, there is a question as to whether it would be open to local authorities to arrange their services so that they can permit those marriage registrars with a conscientious objection to marriage of same sex couples to conduct only opposite sex marriage ceremonies.
123. In Ladele the Court of Appeal held that it would constitute a breach of the Equality Act (Sexual Orientation) Regulations 200743 (now broadly replicated in the EA 2010) for Islington to arrange its services so as to permit Ms Ladele to refuse to register civil partnerships because of her views on same sex relations. (This issue was not considered by the ECtHR in its judgment.) If that reasoning is applied to marriage of same sex couples, it means that a marriage registrar whose role will encompass conducting same sex and opposite sex marriage ceremonies, because of the change of definition of marriage, cannot lawfully refuse to marry same sex couples while marrying opposite sex couples.
124. There may be criticism of the Court of Appeal’s conclusion that there will be less favourable treatment of a same sex couple even where they are able to register their partnership on the day and in the manner they wish, without knowing of the internal arrangements as to who should act as their civil partnership registrar. However, it is arguable that the prohibition on discrimination requires offering services equally to all, and that offering services in a different way (including their being provided by different personnel), in and of itself, constitutes less favourable treatment. That is so even if the couple are able to get married at the time and place they choose.
125. Accordingly, it appears that it would be unlawful for a local authority to arrange its services so that marriage registrars who have a conscientious objection to marriage for same sex couples would not have to conduct such marriages.
Other ‘conscience’ issues
41 [GC], no. 6339/05, para 77, ECHR 2007-I 42 Para 106 43 S.I. 2007/1263
30 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106)
126. There may be other scenarios where a belief that marriage can only be between a man and a woman could potentially give rise to a claim of breach of Article 9 or Article 14 read with Article 9. They could involve either the public or the private sector. Three particular areas are considered below.
127. In general terms, it should be for a tribunal or court to consider the facts in each individual case, in particular what views have been expressed, the context in which they were expressed, the nature of the disadvantage imposed by the employer or other body and the justification which is put forward for it. The tribunal or court can then decide whether the actions of the employer or other body are proportionate and in pursuit of a legitimate aim. We do not consider that expressing views that marriage should be between a man and a woman, made in an appropriate setting and in non-inflammatory language, would justify the employer or other body subjecting a person to a detriment. Accordingly, subjecting someone to a detriment is likely to be held to be unlawful and no amendment to the current law is required to protect individuals expressing such views. In that case, there is no breach of the Convention.
128. A claimant may argue that a claim concerning ‘conscience’ falls within the ambit of Article 9, given that it relates to a religious (or indeed a non-religious) belief about the nature of marriage. They are likely to claim that the discriminatory treatment was based on their religion or belief. Cases of this kind are therefore likely to focus on the question of justification of any interference.
Employment
129. An example of a potential employment issue could be a marriage guidance counsellor who does not wish to provide counselling to same sex couples (see McFarlane v the United Kingdom)44.
130. There are instances in which employers are able to justify dismissing or taking disciplinary actions against an employee because of views expressed outside of their employment. See, for example, Redfearn v Serco45 where an employer dismissed a driver for children and adults with special needs when it was discovered that he was standing to be a BNP counsellor.46 The claim illustrates that it may, in certain cases, be justified for an employer to dismiss employees based on beliefs expressed outside work provided there is a legitimate concern as to how they might act during their employment.
44 Application no. 36516/10 now reported under [2013] ECHR 37 (c.f. McFarlane v Relate Avon Ltd [2010] ICR 507). 45 [2006] EWCA Civ 659 46 The ECtHR recently ruled in favour of Mr Redfearn on a separate issue regarding the length of employment required before a claim for unfair dismissal can be made.
31 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106)
131.However, it is difficult to see how an employee simply expressing the view their religious teaching states that marriage should be between a man and a woman could be said to interfere with their ability to carry out their work or that it could be said to be so offensive that it would affect the reputation of the employer to continue to employ them. If there is no suggestion that the employee holds homophobic views or that expressing views as to religious teaching on marriage indicates that they may act inappropriately or in a discriminatory manner towards an individual because of their sexual orientation, then the employer is unlikely to be able to show that it is acting in a proportionate manner in pursuit of a legitimate aim and any dismissal would be unlawful.
132. See in particular the recent decision in Smith v Trafford Housing Trust,47 where an employee was demoted because of comments on his personal Facebook page regarding civil partnerships on religious premises. The High Court found in favour of Mr Smith, showing that the expression of such views in non-inflammatory language outside of work is acceptable.
133. It should be noted that the same issues as those outlined above would arise in relation to expressions of other views, for example if a person preaches that civil partnerships are contrary to religious teaching or that people (whether in a same sex or opposite sex relationship) should not have children outside marriage etc. In any particular case, if an employee was disciplined or dismissed for expressing such views, the same legal framework, and in particular the question of justification and proportionality, would apply.
Education
134. There may be parents who do not want their children to learn about marriage of same sex couples at school. A number of domestic provisions would apply to that situation.
135. First, the Sex and Relationship Education (SRE) Guidance48 issued by the Department for Education (DfE) emphasises that pupils must be protected from teaching and materials which are inappropriate having regard to the age and the religious and cultural background of the pupils concerned. It should be noted that section 403(1) of the Education Act 1996 (“the EA 1996”) provides that, where sex education is given, it is given in such a way as to encourage due regard for moral considerations and the value of family life. Section 403(1A) provides that Secretary of State must issue guidance designed to secure that, when sex education is given to registered pupils at maintained schools, they learn about the nature of marriage and its importance for family life and the bringing up of children.
47 [2012] EWHC 3221 (Ch) 48 https://www.education.gov.uk/publications/standard/publicationdetail/page1/dfes%200116%202000
32 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106)
136. In terms of domestic discrimination law, section 89(2) of the EA 2010 provides that the EA 2010 does not apply to “anything done in connection with the content of the curriculum”. So the subject matter itself would not give rise to a claim for religious discrimination against a child whose parents did not believe in same sex marriage, and the parents could not object to children being taught that marriage of same sex couples is lawful as part of the curriculum. However, the parents would be permitted to request that their child is exempted from sex education classes (if the school is a maintained school) pursuant to section 405 of the EA 1996 except insofar as the education is comprised in the National Curriculum. If, however, a lesson is not part of sex education, the parents would have no right to withdraw their child. Any action by a school resulting from withdrawal of a child from a lesson which is not part of sex education would not be on the basis of the child’s religious beliefs, but the unauthorised withdrawal from school, and would not therefore constitute unlawful discrimination.
137. However, the way in which the subject of marriage for same sex couples is taught could be caught by the EA 2010. Accordingly, if a school (or someone authorised by the school) conveyed its belief in a way that involved haranguing, harassing or berating a particular pupil or group of pupils, then this would be unacceptable in any circumstances and is likely to constitute unlawful discrimination. None of this, however, is a problem particular to beliefs about the nature of marriage. The same issues would arise if a pupil was bullied or mocked for expressing any other religious or philosophical beliefs, and there is no basis for altering the law specifically to deal with marriage for same sex couples.
138. Parents might attempt to argue that the classes constitute “political indoctrination” which is prohibited pursuant to section 406 of the EA 1996. Assuming, however, that the lesson is properly taught and does not constitute “the promotion of partisan political views” within section 406(1)(b), it would not fall foul of the EA 1996.
139. There may also be a claim under A2P1 of the Convention, since parents might attempt to argue that requiring their child to attend lessons about, for example, the history of the homosexual civil rights movement constitutes a failure to “respect” their right to ensure education is in conformity with their religious and philosophical convictions. However, we consider that such an argument is likely to fail. The case law of the ECtHR has interpreted the requirement to “respect” the rights of parents in A2P1 in such a way as to impose a high threshold on parents to establish a breach (see Folgero v Norway49 in which the ECtHR considered the limits of the requirement to respect parental views). The Convention certainly does not require all educational provision to occur in a way which parents agree is consistent with their religious and philosophical convictions. Provided that the lessons are taught in a
49 (2008) 46 EHRR 47
33 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) balanced way and do not constitute political indoctrination, requiring a pupil to attend will not breach A2P1.
140. Furthermore, objections by parents to a curriculum can occur for all manner of reasons. There is no reason to treat objections to teaching about marriage for same sex couples as a different category. It would be peculiar if pupils were not exempted from lessons which consider civil partnerships, the history of the homosexual civil rights movement or same sex relations more generally, but that if marriage for same sex couples is mentioned parents are permitted to withdraw their children from the class. Provided the teaching occurs in a manner which is sensitive, does not constitute political indoctrination and is not dismissive of the views of those that consider, on the basis of sincerely held religious or philosophical beliefs, that marriage should be a union between a man and a woman, we do not consider that there is any reason why a school should not include, as part of its curriculum, teaching about marriage for same sex couples.
141. In light of the above, we consider that any interference with the rights of the parents and/or child is justified.
Fostering
142. Potential fosterers may consider that it is their belief about marriage which gives rise to their not being considered suitable as fosterers (see Johns v Derby CC).50 However, views on marriage of same sex couples per se are unlikely to justify a refusal to allow individuals to act as foster parents. It is difficult to see why a person who considers that marriage should be between a man and a woman, but exhibits no discriminatory views about sexual orientation, would be unsuitable to be a foster parent simply because of their attitude to marriage of same sex couples. The High Court in Johns held that “the local authority is entitled to explore the extent to which prospective foster carers' beliefs may affect their behaviour, their treatment of a child being fostered by them”.51 Accordingly, it is not necessarily inappropriate for a local authority to ask about attitudes to marriage of same sex couples; but if a person expresses views that marriage should be between a man and a woman, that is in itself unlikely to affect their treatment of a foster child (though see below for further in this regard). A refusal is therefore likely to be unlawful.
143. It should be noted that there is a two stage approval system for foster parents. First, a person applies to be assessed and approved as a foster parent per se, under the Fostering Services (England) Regulations 2011.52 At that stage their views on
50 [2011] EWHC 375 51 Para 97 52 S.I. 2011/581
34 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) same sex marriage are unlikely to justify a decision that they are not suitable to be foster parents, as described above.
144. Second, a local authority looking to place a particular child with foster parents makes a decision about where to place that child. The local authority is under a duty in section 22C of the Children Act 1989 to place the child in the most appropriate placement available, and under the duty in section 22(3)(a) of that Act to safeguard and promote the child's welfare. So the local authority might legitimately decide that a child of a same sex couple could not be placed with those foster parents if their views on same sex marriage would affect the child, or for example frustrate contact between the child and his parents. This would not be a decision that they were unsuitable to be foster parents, but a decision that it was not appropriate for them to foster a particular child. This is in line with the Johns case, in that the foster carer’s beliefs in that particular case may affect their behaviour and treatment of the child.
State pension (Schedule 4, Part 5)
145. The Bill will extend the derived entitlement to the state pension to members of same sex married couples, on the same basis as civil partners and men married to women. The differences in treatment thereby created are a result of the pre- existing preferential treatment of women married to men in relation to entitlement to a derived rights state pension. We consider the avoidance of creating a new difference in treatment based on gender between male and female civil partners to be proportionate and therefore not a breach of Article 14 read with A1P1.
Occupational pensions and survivor benefits (Schedule 4, Part 6)
146. Occupational pension schemes that are or were contracted-out are obliged to ensure surviving spouses of scheme members receive a portion of the Guaranteed Minimum Pension (“GMP”) payable to the scheme member. The portion depends on whether the survivor is a widow of a marriage with a person of the opposite sex (50% of any GMP accrued since 1978), or widower or surviving civil partner (50% of GMP accrued since 1988). The Bill will extend the entitlement to post-1988 GMP to widows and widowers of a marriage with a person of the same sex. Contracted-in occupational pension schemes are not obliged to provide survivor benefits; however if they do these must be provided to civil partners as well as widows or widowers but only in relation to pensionable service after 2005. The Bill will make the same provision for widows and widowers of a marriage with a person of the same sex.
147. We consider that treating widows and widowers of a marriage with a person of the same sex in the same way as surviving civil partners in relation to contracted-out benefits is compatible with Article 14 as read with A1P1 given the Government’s
35 Letter to the Chair and submission, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture Media and Sport (BILLS (12–13) 106) wide margin of appreciation in the consideration of A1P1 rights and the existing differences of treatment which mean that any option adopted would create further differences. In relation to non-contracted-out benefits, survivors of a marriage with a person of the same sex will be treated in the same way as survivors of a civil partnership; equal survivor benefits to those available in relation to a marriage with a person of the opposite sex are only required in relation to post-2005 pensionable service because the Government considers that the relevant time for comparison under Article 14 read with A1P1 is the time the benefits accrued and not when they are paid, which reflects the nature and funding of occupational pension schemes.
36 Letter from the Chair, to Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport (BILLS (12–13) 130) Letter from the Chair, to Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport (BILLS (12–13) 130)
The Joint Committee on Human Rights is scrutinising the compatibility of the Marriage (Same Sex Couples) Bill with the requirements of human rights law. The Committee is grateful for the detailed memorandum you have provided on the Government's consideration of the Bill's provisions in light of the European Convention on Human Rights.
There has been considerable debate about the Bill. The Committee would like to explore further some of the issues that have been raised. I would be grateful if you could provide me with the answers to the following questions which would assist the Committee with its work. The Committee hopes that this information will be of benefit to both Houses as the Bill progresses.
Protection for religious organisations and individual ministers
The Government has outlined its intention to protect religious organisations from successful legal challenge, and has referred to the 'quadruple lock' of measures contained in the Bill. However, concerns have been expressed that religious organisations and individual ministers may find themselves having to conduct same sex marriages, possibly as a result of successful legal challenge. There are also concerns about the potential for case law of the European Court of Human Rights to evolve in relation to same sex marriage and about the possible impact this may have on religious organisations.
Ql: What level of certainty can the Government provide that the protections contained in the Bill for religious organisations and individual ministers that do not wish to conduct same sex marriage are robust, and will remain so for the foreseeable future?
Q2: Does the Government accept that it may be required to review this legislation and, if necessary, strengthen its protections for freedom of religion in the future, particularly to respond to any legal developments in this area?
Potential implications of the Bill in relation to the rights to manifest one's religion or beliefs and to freedom of expression
As regards freedom of expression, the Committee considers that it is essential that individuals who express views on either side of the debate are not vilified or silenced.
37 Letter from the Chair, to Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport (BILLS (12–13) 130)
There has been much discussion about the potential consequences of the Bill for the rights to manifest one's religion or beliefs and freedom of expression in relation to same sex marriage.
Questions have been raised about the possible implications of the Bill: for teachers, particularly those teaching Sex and Relationship Education with respect to the duty under section 403(1) of the Education Act 1996, and the statutory guidance under section 403(lA) to encourage due regard for moral considerations and the importance of family life; for chaplains and others involved in the delivery of public services; and more broadly in the workplace. There are concerns that employees could face disciplinary sanctions for expressing opposition to same sex marriage. There is also concern about the extent to which obligations under the Equality Act 2010 (particularly section 29 which prohibits discrimination in the exercise of public functions and section 149 which requires public bodies to have due regard to the need to eliminate discrimination) will affect public sector employees' rights to manifest their religion or beliefs and to freedom of expression in relation to same sex marriage.
It is clear that the law contains a level of protection for religious beliefs and practices, and for freedom of expression. Recent cases such as Eweida and others v the United Kingdom and others and Smith v Trafford Housing Trust have highlighted the balance that is to be struck between an individual's freedom to manifest his or her religion or beliefs and with the rights of others and other legitimate aims set out in Article 9(2) ECHR.
The Government has set out its position in relation to these concerns during debates and in several documents related to the Bill, including its memorandum to the Committee. However, concerns remain about potential scenarios and possible legal challenges.
Q3: Does the Government accept that there is reasonable concern about potential situations, such as those outlined above, that may arise as a result of the legislation, and about the prospect of future litigation based upon it?
Q4: To address any such concerns, does the Government consider that it may be necessary to provide further protections in the Bill to protect the freedom to manifest religious beliefs and freedom of expression in relation to same sex marriage?
Q5: Does the Government consider that specific guidance could be helpful, for example, on the teaching of Sex and Relationships Education in relation to same sex marriage; on the position of chaplains working in the public sector; and for public sector employers?
38 Letter from the Chair, to Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport (BILLS (12–13) 130)
Effect on marriage where one partner changes gender
The Bill will enable a person to change their legal gender without having to end their existing marriage, as they must do at present. At present, an interim Gender Recognition certificate may be used by either party to a marriage as evidence in support of an application to annul the marriage under Section 12(g) of, or paragraph l1(l)(e) of Schedule 1 to, the Matrimonial Causes Act 1973.
Q6: Will it remain possible for one party to apply to annul a marriage under Section 12(g) at or paragraph l1(l)(e) of Schedule 1 to, the Matrimonial Causes Act 1973?
Premises
The Marriage Act 1949 allows a building that has been certified as a place of religious worship under Section 2 of the Places of Worship Registration Act 1855 to be registered for the solemnisation of marriages. There is no requirement for buildings of the Church of England or Church in Wales, Jewish Synagogues and meeting houses of the Society of Friends to be registered. Questions have been raised concerning the position of churches or chapels that are owned by the Crown and administered by the Church of England, for example St Mary Undercroft.
Q7: Can the Government list all faith groups that have registered buildings for the purpose of solemnisation of marriage under the Marriage Act 1949, and provide information on the number of registered buildings of each faith group?
Q8: Why does the Government consider that there is a need for premises to be registered by faith groups (other than Anglicans, Quakers and Jews) for the purpose of conducting marriages? Does the Government have any plans to change the registration requirements under the Places of Worship Registration Act 1855 and the Marriage Act?
Q9: Can the Government clarify the position in relation to churches and chapels owned by the Crown and administered by the Church of England? As the opt-in mechanism under the Bill does not apply to the Church of England, does this mean that same sex marriages cannot be conducted on such premises?
Civil Partnerships
The Government has made clear its intention that civil partnerships will not be extended to opposite sex couples. When civil partnerships were introduced, they were created to allow same sex couples to have equivalent access to the rights,
39 Letter from the Chair, to Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport (BILLS (12–13) 130) responsibilities and protections afforded to opposite sex couples by marriage. However, it could be said that with the introduction of same sex marriage, the problem that existed at the time of the Civil Partnership Act 2004 would be removed and the justification for maintaining a difference in treatment between same sex and opposite sex couples would be less clear. There must be a justification for excluding opposite sex couples from the statutory benefits, legal protections and exemptions that apply to civil partners. This raises an issue as to whether there is unjustified discrimination against unmarried but cohabiting opposite sex couples who could claim that their relationship is analogous to that of civil partners but who are unable to contract civil partnerships.
The Government states that any difference in treatment of opposite sex couples is justified because unmarried opposite sex couples are free to marry, and have therefore chosen instead the less favourable legal treatment of their unmarried relationship. The Government also justifies the difference of treatment by relying on its policy of promoting marriage.
A decision of the Supreme Court of Canada (Miron v Trudel) held that there are two problems with the "choice" justification. First, heterosexual couples who choose not to marry may do so for very personal reasons of conscience and belief, for example because of the historical .implications of the term "marriage" and the historical nature of the institution as a property transaction in which the woman was treated as property. Second, being unmarried may not always be a choice made by both partners in an unmarried relationship: some are unable to persuade their partners to enter into marriage.
Ql0: Does the Government accept that a large and growing number of opposite sex couples choose not to marry but live in stable, loving long-term relationships raising children? If so, what is the justification for denying such couples the legal benefits and protections available to same sex couples through civil partnerships?
Pensions
Widowers are entitled to survivor's pension rights based on contributions from 1988, whereas widows receive their rights from 1978. On the introduction of civil partnerships, the Government decided to treat civil partners as widowers for the purposes of the state pension. The provisions of this Bill will extend entitlement to the state pension to same sex married couples on the same basis as civil partners and widowers. The Government states that the differences in treatment are a result of the pre-existing preferential treatment of women married to men in relation to entitlement to a state pension.
40 Letter from the Chair, to Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport (BILLS (12–13) 130)
Q11: Does the Government plan to equalise state pension entitlement for same sex married couples, civil partners and widowers with the benefits enjoyed by widows?
In the context of occupational pension schemes, Schedule 9 paragraph 18(1) of the Equality Act 2010 allows employers and pension funds to exclude civil partners from spousal benefits attributable to service prior to 5 December 2005.
Under the provisions of the Bill, the surviving spouse of a same sex marriage will be treated in the same way as surviving civil partners. Depending on the provisions of the scheme, pension rights of same sex spouses may not be the same as pension rights of opposite sex spouses.
Further, a married transgender couple will be treated as same sex spouses, which means that the benefits that have been accrued during their marriage as an opposite sex couple may be significantly reduced if the occupational pension scheme in question does not treat same sex spouses and opposite sex spouses in the same way.
Such less favourable treatment requires robust justification to be compatible with human rights law. In the absence of such justification, there is a significant risk that the difference in treatment between same sex married couples and transgender couples on the one hand, and opposite sex married couples on the other, is incompatible with Article 14 ECHR in conjunction with property rights under Article 1 Protocol 1.
Q12: What is the Government's justification for the difference in treatment in this regard between same sex married couples, transgender married couples and civil partners on the one hand, and opposite sex married couples on the other?
Q13: Has the Government considered amending Schedule 9 paragraph 18(1) of the Equality Act 2010 to ensure that same sex married couples, transgender married couples and civil partners can access pension rights on the same basis as opposite sex married couples?
Q14: What is the Government's justification for the potential loss of accrued pension rights in relation to transgender married couples?
Consultation
41 Letter from the Chair, to Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport (BILLS (12–13) 130)
There has been some criticism that the Government did not adequately consult in advance on the proposed legislation or allow a draft Bill to be subjected to full pre- legislative scrutiny.
Q15: Why did the Government consider it unnecessary to publish a White or Green Paper, or Draft Bill, to allow time for full consultation and consideration of the proposals?
Q16: What consultation has the Government carried out with minority faith groups such as, but not exclusively, Sikh, Hindu, Muslim, Jewish, and smaller Christian denominations, to consider the impact, if any, of the legislative proposals on those faith groups and their activities?
Q17: Can the Government provide the Committee with a list of faith groups which responded to the consultation, and a summary of the responses from each faith group?
I would be grateful if you could reply by Monday 15 April 2013
20 March 2013
42 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147)
1. The Joint Committee on Human Rights (‘the Committee’) has decided to undertake a period of oral evidence gathering in order to scrutinise the Marriage (Same Sex Couples) Bill (‘the Bill’) prior to its Report stage in the House of Commons. I have been invited by the Committee to present evidence regarding the Bill and its human rights implications to inform its analysis. I am grateful to the Committee for this opportunity.
2. I am a legal academic and a practicing barrister. I have been Professor of Human Rights and Equality Law at Queen’s University, Belfast since 2011, having previously been Professor of Human Rights Law at the University of Oxford. I am also William W Cook Global Law Professor at the University of Michigan Law School. I am a member of Gray’s Inn and a member of Blackstone Chambers.
3. My recent legal practice has involved representing clients as Junior Counsel in several cases in the domestic courts and before the European Court of Human Rights (‘ECtHR’) involving the relationship between judicial review, domestic equality law, the Human Rights Act 1998, European Union law, and the European Convention on Human Rights (‘ECHR’). I am Junior Counsel in Ladele v United Kingdom before the ECtHR.
4. I am currently instructed by the Catholic Bishops’ Conference of England and Wales (‘CBCEW’) to advise on human rights issues that arise under the Bill, in the form reported to the House of Commons by the Public Bill Committee, and to suggest appropriate amendments to meet any human rights concerns.
5. The CBCEW is the permanent assembly of Catholic Bishops and Personal Ordinaries in England and Wales. The membership of the Conference comprises the Archbishops, Bishops and Auxiliary Bishops of the twenty-two Dioceses within England and Wales, the Bishop of the Forces (Military Ordinariate), the Apostolic Exarch of the Ukrainian Church in Great Britain, the Ordinary of the Personal Ordinariate of Our Lady of Walsingham, and the Apostolic Prefect of the Falkland Islands. Its interest in the Bill relates among other issues to the potential impact of the Bill on freedom of religion.
6. I was instructed to provide written advice to the CBCEW concerning the effect of the Bill on the religious freedoms of the Catholic Church, Church-related institutions and bodies, and individuals, as well as issues of religious discrimination that may arise. With the permission of the CBCEW, I attach the written advice I was have given to the CBCEW. I would be grateful if the Committee would regard this Appendix as an integral part of my evidence to the Committee.
43 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147)
7. Whilst the opposition of the Catholic Church to the principle of the Bill (that the definition of ‘marriage’ in civil law should be extended to include ‘same-sex marriage’) is well known, the House of Commons has, by a majority, now accepted this principle. I was instructed to address concerns over the human rights implications of the Bill for the Catholic Church as it is currently drafted, rather than to suggest amendments that would question the principle of the Bill.
8. As a guide to the issues that the Committee is seeking to scrutinise, the Committee referred me to its 20 March 2013 letter to the Minister regarding the Bill. Of the issues identified in this letter as being of interest to the Committee, my advice to the CBCEW is particularly relevant to the first and second of these, that is to ‘the protection for religious organisations and individual ministers’, and to the ‘potential implications of the Bill in relation to the rights to manifest one’s religion or beliefs and to freedom of expression.’ I have no instructions concerning, and do not wish at this time to comment on, the other major issues identified by the Committee.
9. The issues raised by the Committee’s letter under the heading of ‘the protection for religious organisations and individual ministers’ are addressed in paragraphs 27 to 104 of my advice regarding the religious freedom not to solemnize same-sex marriages. As the Committee will see, I consider that this issue raises questions under the Human Rights Act 1998, Article 9 ECHR (freedom of religion), and Article 14 ECHR (freedom from religious discrimination) read with Article 9.
10. My advice is that the protection from ‘compulsion’ in Clause 2(1) and 2(2) is unclear and the ‘locks’ provided are insufficiently robust. Without further amendments, religious organisations will be at risk of unfavourable treatment by public authorities, and other legal action (such as judicial review) if they decide not to opt-in to providing same sex marriages. This risk is particularly acute given that (as will often be the case) marriages conducted in Catholic Churches also constitute valid civil marriages for legal purposes.
11. The issues raised by the Committee’s letter under the heading of the ‘potential implications of the Bill in relation to the rights to manifest one’s religion or beliefs and to freedom of expression’ are addressed in the remainder of the advice. They overlap, to some extent, the issue of protection for religious organisations. There are three principal human rights issues identified:
(a) Religious freedom in education: This raises issues under Article 9 and Article 2 of Protocol 1 (right to education in accordance with the religious preferences of parents). My advice is that unless protections for faith schools are built into the Bill, these schools may be required to promote or endorse same sex marriage by reason of current and/or future guidance from the Secretary of State. This issue arises because the change in the
44 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) definition of marriage will effectively amend the Secretary of State’s powers in this respect. (See further paras 105 to 112 of my advice.)
(b) Registrars and conscientious objection: This raises issues under Article 14 ECHR, and (separately) EU Directive 2000/78 EC, read with the EU Charter of Fundamental Rights. My advice is that registrars who have a conscientious objection, based on a genuine religious or other belief, that only opposite sex couples can marry, should, on human rights grounds, be able to remain as registrars without being required to conduct same sex marriages to which they object, provided this protection is proportionate, that is provided it only operates as long as there are enough registrars in the area to cope with the demand for same sex marriage, thus providing a balanced way of protecting both the rights and freedoms of registrars and those of same sex couples. (See further paras 113 to 131 of my advice.)
(c) Freedom of expression of those who oppose same sex marriage: This raises issues under Articles 10 ECHR (freedom of expression) by itself, and read with Article 14, and Article 9. My advice is that, in order to ensure the appropriate degree of protection of freedom of expression, individuals should be protected from actions for unlawful discrimination under the Equality Act 2010, and from the threat of criminal sanctions under the Public Order Act when discussing or criticizing same sex marriage in a reasonable and proportionate way. (See further paras 132 to 141 of my advice.)
12. There are three cross cutting issues that are also considered in my advice that I should draw to the Committee’s attention. These cross cutting issues are relevant to each of the areas of concern identified above.
(a) The first is that there is a common underlying issue of legal principle that binds together the disparate issues discussed above: how far should those who oppose same sex marriage on the grounds of religious or other beliefs be effectively removed from taking part in, or be silenced when engaging in, activities in the public sphere? My advice is that, taken as a whole, there is a significant risk that the effect of the Bill may be to reduce rather than enhance the religious ‘pluralism’ of the public sphere that the ECtHR considers the foundation of a democratic society. (See further paras 7 to 17 of my advice.)
(b) The second cross cutting issue relates to the positive obligations on the United Kingdom arising from the ECHR to ensure that others (including private parties) do not abridge the rights that flow from this commitment to religious pluralism in the public sphere. States have a positive obligation to ensure that third parties do not abridge the rights of religious organisations and to take practical measures of protection required to protect such organisations. In that context, the Government’s commitment, in the Impact Assessment that accompanied the publication of the Bill, to ‘ensure that protections are in place for religious bodies who do not want to perform same-sex marriages, not just from successful legal claims, but from the
45 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) threat of litigation’ (emphasis added) takes on an added importance. (See further paras 142 to 146 of my advice.)
(c) The third cross cutting issue concerns the assessment of the jurisprudence of the European Court of Human Rights. My advice is that the current interpretation of Article 9 by the ECtHR provides considerably less protection, and that the Court’s jurisprudence regarding Article 14’s prohibition of discrimination on grounds of sexual orientation is considerably more advanced, than the Government admits, with significant implications for the areas of concern identified above. (See further paras 18 to 26 of my advice.)
13. I look forward to the opportunity to discuss these issues further with the Committee in the oral evidence session to which I have been invited, and to answer any questions or clarify any issues arising from my advice that members of the Committee wish to raise at that time.
15 April 2013
Appendix: Human Rights Implications of the Marriage (Same Sex Couples) Bill: Advice to the Catholic Bishops’ Conference of England and Wales
Introduction
1. I am instructed by the Catholic Bishops’ Conference of England and Wales (‘CBCEW’)53 to advise on human rights issues that arise under the Marriage (Same Sex Couples) Bill (‘the Bill’), in the form reported to the House of Commons by the Bill Committee, and to suggest appropriate amendments to meet any human rights concerns. I am asked, in particular, to provide written advice concerning the effect of the Bill on the religious freedoms of the Catholic Church, Church-related institutions and bodies, and individuals, as well as issues of religious discrimination that may arise. To avoid unnecessary repetition, I refer to the Catholic Church in what follows simply as ‘the Church.’
2. I am instructed that the aim of the CBCEW in requesting this advice is to enable the CBCEW to contribute constructively and in an informed manner to the public debates on the human rights compatibility of the proposed legislation so that Parliament may take its views into account when debating the legislation at Report and Third Reading in the House of Commons, and subsequently in the House of
53 The Catholic Bishops' Conference of England and Wales is the permanent assembly of Catholic Bishops and Personal Ordinaries in the two member countries. The membership of the Conference comprises the Archbishops, Bishops and Auxiliary Bishops of the 22 Dioceses within England and Wales, the Bishop of the Forces (Military Ordinariate), the Apostolic Exarch of the Ukrainian Church in Great Britain, the Ordinary of the Personal Ordinariate of Our Lady of Walsingham, and the Apostolic Prefect of the Falkland Islands.
46 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147)
Lords. I have been instructed that the CBCEW may choose, therefore, to make this advice public.
3. I am instructed to review the Bill’s compatibility in these respects not only with the European Convention but also with other relevant UK international and EU human rights obligations. I have been asked to advise on whether the legislative provisions present a risk of incompatibility with these human rights provisions, or, if no risk is present, whether they nevertheless raise human rights concerns. In what follows, therefore, I am not primarily concerned to identify breaches that I consider certain to occur. I am concerned to identify, rather, whether there are sufficiently credible risks resulting from the passage of the Bill in its current form for Parliament to be asked to address them.
4. This advice takes into account the letter that the Secretary of State sent to Archbishop Smith, dated 1st February 2013, the Bill Committee debates, in particular the assurances given by the Ministers responsible for the Bill in Committee, and the DCMS’s ‘Marriage (Same Sex Couples) Bill: Note for the Joint Committee on Human Rights (February 2013)’ (‘the Note for the JCHR’).
5. Whilst the opposition of the Church to the principle of the Bill (that the definition of ‘marriage’ in civil law should be extended to include ‘same-sex marriage’) is well known, the House of Commons has, by a majority, now accepted this principle. I have, therefore, been instructed to suggest amendments that are good faith efforts to address concerns over the human rights implications of the Bill as it is currently drafted, rather than to suggest amendments that would question the principle of the Bill.
II. Summary
6. The specific human rights concerns identified subsequently fall, broadly, into four categories:
(1) Religious freedom not to solemnize same-sex marriages
This issue raises questions under Article 9 ECHR (freedom of religion), and Article 14 ECHR (freedom from religious discrimination) read with Article 9. My advice is that the protection from ‘compulsion’ in Clause 2(1) and 2(2) is unclear. Without further explanation on the face of the Bill, religious organisations will be at risk of unfavourable treatment by public authorities, and other legal action (such as judicial review) if they decide not to opt-in to providing same sex marriages. This risk is particularly acute given that (as will often be the case) marriages conducted in Catholic Churches also constitute valid marriages for legal purposes.
47 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) (2) Religious freedom in education
This raises issues under Article 9 ECHR and Article 2 of Protocol 1 (right to education in accordance with the religious preferences of parents). My advice is that unless protections for religious schools are built into the Bill, religious schools may be required to promote or endorse same sex marriage by reason of current and/or future guidance from the Secretary of State. This issue arises because the change in the definition of marriage will effectively amend the Secretary of State’s powers in this respect.
(3) Registrars and conscientious objection
This raises issues under Article 14 ECHR, and (separately) EU Directive 2000/78 EC, read with the EU Charter of Fundamental Rights. My advice is that registrars who have a conscientious objection, based on a genuine religious or other belief, that only opposite sex couples can marry, should be able to remain as registrars without being required to conduct same sex marriages to which they object, provided this protection only operates as long as there are enough registrars in the area to cope with the demand for same sex marriage, thus providing a balanced way of protecting both the rights and freedoms of registrars and those of same sex couples.
(4) Freedom of expression of those who oppose same sex marriage
This raises issues under Articles 10 ECHR (freedom of expression) by itself, and read with Article 14, and Article 9. My advice is that individuals should be protected, on grounds of freedom of expression, from actions for unlawful discrimination under the Equality Act 2010, and from the threat of criminal sanctions under the Public Order Act when discussing or criticizing same sex marriage in a reasonable and proportionate way.
III. Meaning and implications of ‘freedom of religion and belief’
7. Each of these issues raises detailed and complex questions of law and legal practice. These differ from issue to issue; in particular, each raises questions concerning the drafting of different parts of the Bill and their interaction with domestic and European Convention and (in one respect) EU human rights law. Despite these differences, there is a common underlying issue of legal principle that binds these issues together: how far should those who oppose same sex marriage on the grounds of religious or other beliefs be effectively removed from taking part in, or be silenced when engaging in, activities in the public sphere?
8. Since many of the detailed concerns, as set out above, involve issues of freedom of religion and belief, and since public discussion surrounding the Bill indicates, I am
48 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) instructed, that there are differing understandings of what freedom of religion requires, it will be helpful if I clarify initially what I understand freedom of religion means, understood legally, and what it requires from the state. This understanding of the idea of freedom of religion is informed by, but not limited to, judicial interpretations of Article 9 of the European Convention on Human Rights (‘ECHR’). The European Court of Human Rights (ECtHR) is one of several sources of legal requirements regarding freedom of religion, but there is also a growing corpus of judgments from the CJEU.
9. There are three aspects of the legal concept of freedom of religion and its relationship to the public sphere. First, religion is as an aspect of an individual’s identity and belief system. Freedom of religion and belief, in this sense, is conceived to be an individual human right; the primary legal issue is how far the choices that an individual makes, based on this set of religious beliefs, are protected or constrained by law. Freedom of religion and belief, in this sense, encompasses two elements: the freedom to believe or not to believe what a religion teaches, and the freedom to manifest or not to manifest that belief in certain actions.
10. Religious freedom also has a second associational (or ‘institutional’) dimension. Freedom of religion and belief in this sense involves the freedom of individuals to come together in formal or informal ways, to practice their religion in common with each other, and to manifest their beliefs collectively. This relationship might (or might not) be formalized by the formation of a church. Seen in human rights terms, the issue becomes one of what rights the religious community or association or church has, when it acts in a way that impinges on, or operates in, the public domain.
11. There is also a third aspect of freedom of religion and belief: ‘freedom from religion and belief’, or at least freedom from a set of religious and other beliefs imposed as an exercise of state authority. Churches should not seek to impose their religious views on others through the exercise of state authority; theocratic states are widely considered to be contrary to contemporary understandings of freedom of religion. Equally, the state should not seek to impose its beliefs on those who hold contrary beliefs, or on individuals who dissent from the state’s policies, unless there are strong reasons (such as harm to others) justifying this imposition.
12. None of these features of freedom of religion and belief is absolute. This is true in two senses. First, other aspects of the public good will play a legitimate role in limiting freedom of religion in particular respects. Second, the three aspects of freedom of religion identified may, on occasion, conflict with each other, and compromises will therefore be necessary.
13. Broadly, two different models of accommodation are possible. Under the first approach, religion is present in the public as well as private spheres of activity, and is
49 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) even to some extent encouraged in the public domain, not least because religious belief is seen as making an important contribution to public debate and public discourse, but there is a broad tolerance accorded to other viewpoints. The first approach is pluralistic, and based on tolerance of dissenting views.
14. The second approach views the purpose of freedom of religion and belief as essentially only there to protect private choices operating in the private sphere, and views the participation in the public sphere of religions, and those who are religious, with suspicion, particularly where they seek to manifest beliefs that are contrary to a dominant (or emerging) social consensus.
15. The European Court of Human Rights (‘ECtHR’) has made clear that, under the ECHR, the first, ‘pluralistic,’ approach is the basic approach that States should aim to achieve. In its foundational Article 9 case, Kokkinakis v Greece (1994) 17 EHRR 397, at para 31, the Court framed freedom of religion as follows:
‘freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.’
This adoption of pluralism as the guiding standard has important implications for the role of the State. The Grand Chamber stated in Sahin v Turkey (2007) 44 EHRR 5, at para 107:
‘the Court has frequently emphasised the State’s role as the neutral and impartial organizer of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society [...] [T]he role of the authorities [...] is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other’ (emphasis added).
Public authorities, therefore, should not “remove the cause of the tension by eliminating pluralism” simply preferring one belief rather than another where they clash.
16. There is a final important aspect of both Article 9 and Article 14 read with Article 9 that has important implications for human rights assessments of the Bill. Both Article 9 and Article 14 involve two broad sets of obligations on the state: a negative obligation that the state should not itself abridge these rights (this would include where, for example, the courts are the source of the breach by imposing obligations on religious organisations that are contrary to Article 9), and (by analogy
50 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) with the positive obligation on the state under Article 10, Platform ‘Ärzte für das Leben’, (1991) 13 EHRR 204 and Article 14, Belgian Linguistics Case, (1979-80) 1 EHRR 251), a positive obligation on the state to ensure that others (including private parties) do not abridge these rights. States have a positive obligation to ensure that others do not abridge the rights of religious organisations, and to take practical measures of protection required by the situation to protect such organisations.
17. The underlying approach that should be adopted in any human rights scrutiny of the Bill concerned with the right to freedom of religion, in the senses identified above, is how far the Bill advances or retards the ‘pluralism’ of values in the British public sphere. My advice is that in the four respects identified in paragraph 6 above, the state will not meet its positive obligation to secure religious pluralism in the public sphere due to the way in which the Bill is drafted, thus raising important human rights concerns which should be brought to Parliament’s attention.
IV. The European Convention of Human Rights and the Bill
18. The European Convention on Human Rights plays two different roles in the context of discussions on the Bill. First, it establishes the principle that freedom of religion is an important human rights concern that States should take seriously, and further establishes that States’ obligations regarding freedom of religion should be seen as centrally concerned with ensuring pluralism and tolerance in the public sphere for protected beliefs: the Convention sets the standard that States should aim to achieve.
19. The Convention plays an important additional role in the discussion of the Bill: providing a set of detailed rules (mostly derived from interpretations of the ECtHR) which are available to be used in litigation. These rules are relevant in two different ways: in the context of litigation against the United Kingdom before the Court in Strasbourg, and in the context of litigation in United Kingdom courts under the Human Rights Act, where the ECtHR’s jurisprudence is highly persuasive, if not determinative.
20. In both ECtHR and domestic judicial contexts, the relevance of the Convention rules to the Bill is twofold. On the one hand, the Convention (particularly Article 9) may be seen as establishing a shield, providing protections for freedom of religion and belief that complement the protections inserted in the Bill (such as the ‘quadruple locks’). On the other hand, the Convention, particularly Articles 8 and 12, taken alone and/or in combination with Article 14, may be used as a sword to attack protections for freedom of religion that the Bill seeks to incorporate because they have gone ‘too far’. I address both these issues below when dealing with specific issues, but here I seek to explain the general approach to these issues taken by the ECtHR.
51 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147)
21. Turning to the role of Article 9 in providing necessary protection for freedom of religion, the Secretary of State has consistently argued that Article 9 of the ECHR will serve as a strong protection of the Church’s and individual’s freedoms of religion and belief. I disagree. The problem in deciding between these different views is that, as the “Note to the JCHR” itself admits, at para 35, ‘the ECtHR did not consider (and indeed has never done so) the issue of religious marriage ceremonies for same sex couples.’ In other words, in assessing possible risks, there is often a dearth of legal rules deriving from the Court’s jurisprudence on which to rely. In practice, Article 9 has proven to provide very weak protection in analogous contexts, both when applied by the ECtHR, and (as a consequence) when being applied by British courts under the Human Rights Act. There is an important gap, therefore, between the standards identified by the Court (such as the importance of pluralism) and the extent to which the Court is willing to impose those standards on States through the development of specific rules.
22. The weakness of Article 9, in practice, lies in: (a) the narrow approach that the ECtHR has taken to the interpretation of what a protected ‘manifestation’ of religion covers; (b) the uncertainty over what views are to be regarded as acceptable in a democratic society and consistent with human dignity; and (c) the extent to which freedom of religion and belief is often ranked as significantly less weighty than other rights when it comes into apparent conflict with them.54 When claims are made, therefore, that Article 9 provides strong practical protections (as opposed to important principles), my advice is that these claims should be taken with a large pinch of salt, unless ‘freedom of religion’ is interpreted very narrowly indeed, effectively protecting religion (and religious institutions and individuals) only when they have been relegated to the private sphere of activity.
23. The European Convention on Human Rights provides, therefore, an important standard with which the United Kingdom must comply, but the detailed ways in which that standard is to be achieved are frequently uncertain. Parliament clearly has a responsibility to comply with the rules that the Convention requires, but it also has a responsibility to consider whether British law should go further in certain respects than the Court in Strasbourg may require in order to meet the required standard. The ECtHR has consistently stated that clear and proportional choices as to how to secure the pluralistic principle of freedom of religion should be made at the national level, which may then be subject to scrutiny by the Court. The more that states, such as the United Kingdom, suggest that the ‘margin of appreciation’ should apply, the greater the obligation that hard choices are confronted initially at the national level, rather than left to Strasbourg, where the protection in practice is weak.
54 See, e.g. Lewis, ICLQ (2007) 56(2) 395 at 398: ‘the margin granted to States when restricting […] consensual homosexual conduct in private (under Article 8) has been much narrower (and hence the intensity of scrutiny and level of protection afforded by the Court has been higher) than in cases involving religious manifestation and expression (under both Articles 9 and 10).’
52 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147)
24. I turn now to the issue of whether the Convention can be used to attack the protections incorporated in the Bill for religious freedom. The area of human rights law has been one of the most dynamic and fluid areas of legal development in Britain, and in Europe generally, not least over the past fifteen years. This is because both the British and European courts consider human rights law to be a ‘living tree’, the interpretation of which develops over time to accommodate changing mores. What may appear, therefore, to be ‘inconceivable’55 interpretations of human rights and equality law are unlikely to remain so for long, as mores change. Parliament must legislate taking this fact into account, rather than presuming that currently ‘inconceivable’ interpretations will continue to be ‘inconceivable’.56
25. In its responses in Parliament, the Government has consistently sought to minimize the dynamic nature of Article 14 of the Convention prohibiting discrimination, particularly in the context of claims of discrimination on grounds of sexual orientation. For example, at para 67 of its ‘Note for the JCHR’, the Government states: ‘The ECtHR has consistently held that Article 14 complements the other substantive provisions of the Convention and its Protocols and it has no independent existence,’ seeking to make an argument that Article 14 would not be interpreted to limit the rights of religious organisations. This is misleading: provided the claim is within the ‘ambit’ of another Article (such as Article 12, or Article 8), then the claim under Article 14 is, indeed, independent. The Government’s interpretation would effectively deprive the Article 14 prohibition of discrimination of any autonomous significance.
26. In short, the Government has sought to play up the strength of protections available under Article 9, and to play down the extent to which the ECtHR has developed Article 14’s protections regarding discrimination on the basis of sexual orientation, whilst the reverse would be a more accurate description of the actual practice of the Court. v. Religious freedom not to solemnize same-sex marriages
27. I am instructed that one of the principal concerns of the CBCEW is that there may be sustained attempts using human rights and equality law to limit the institutional freedom of religion of the Church with respect to its opposition to carrying out same-sex marriages itself. This may occur either directly by challenging any decision by the Church not to opt-in, or indirectly through penalising the
55 Letter to the Editor, The Times, 4 February 2013 (by Baroness Kennedy QC, Lord Lester QC, and Lord Pannick QC). This letter is considered further below. 56 One example must suffice: in the space of just six years the European Court of Human Rights has moved from considering prohibitions on adoption by an unmarried, homosexual individual not to be a violation of the Convention in Fretté v. France (26 Feb. 2002) to accepting that it was a violation in E.B. v. France (22 Jan. 2008).
53 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147)
Church or Church-related bodies because of the Church’s position. This issue raises concerns under Article 9 ECHR (freedom of religion), and Article 14 ECHR (freedom from religious discrimination) read with Article 9.
28. The Government has sought to reassure religious organisations that they will not be required under any circumstances to conduct same sex marriages if they object to them, and I am instructed that the CBCEW has welcomed the Government’s intention to protect religious organisations.
29. The Secretary of State’s commitment to the Church’s religious freedom in this context is set out in the Impact Assessment that the Government published to accompany the Bill. This states: ‘There will be no requirement for any religious body to marry same-sex couples if they do not wish to, nor will there be any requirement for a religious organisation to permit the marriage of same-sex couples on their religious premises, if they do not wish to allow this.’
30. The statement continues: ‘[T]o meet [this] objective [...], no religious body will be required to marry or permit the marriage of same-sex couples on its premises if it does not wish to [...]’. The Impact Assessment goes on to commit the Government to ‘ensure that protections are in place for religious bodies who do not want to perform same-sex marriages, not just from successful legal claims, but from the threat of litigation.’57
31. Ministers have provided assurances that these fears are groundless because sufficient protections have been provided in the Bill as drafted to address these concerns. For the reasons that follow, my advice is that the assurances provided by the Secretary of State and by the responsible Ministers in Committee are not yet sufficiently credible for the Church to be assured that these commitments have been met, and that there is therefore a significant issue regarding the adequacy of the protection for freedom of religion.
Protections for religious organisations against ‘compulsion’
32. Clause 2 of the Bill sets out one of the main ways in which the Government has sought to protect religious organisations, by providing that religious organisations may not be ‘compelled’ to opt-in, and by providing that religious organisations may not be ‘compelled’ to conduct same sex marriages. Protection from ‘compulsion’ is central to the protection provided for religious individuals and organisations in the Bill—it constitutes one of the quadruple locks that the Government has so widely publicised.
57 Impact Assessment, Marriage (Same Sex Couples) Bill, 17 January 2013, page 5 (emphasis added).
54 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147)
33. Clause 2, subsections (1) and (2) provide as follows:
(1) A person may not be compelled to— (a) undertake an opt-in activity, or (b) refrain from undertaking an opt-out activity.
(2) A person may not be compelled— (a) to conduct a relevant marriage, (b) to be present at, carry out, or otherwise participate in, a relevant marriage, or (c) to consent to a relevant marriage being conducted, where the reason for the person not doing that thing is that the relevant marriage concerns a same sex couple.
34. My advice is that these provisions do not adequately address the problem of how best to protect freedom of religion, because it is unclear what the protection from being ‘compelled’ means in these circumstances. There is no definition of ‘compelled’ in the Bill. This creates uncertainty and potentially limits the scope of protection that is afforded by the clause. If, as seems likely to have been the case, consideration was given to drafting a definition of ‘compel’ but this was rejected because it would be too difficult to capture the full meaning of the term, this would imply that clarifying the uncertainty of the term is left to future litigation. Given the centrality of the concept to the protections for religious freedom incorporated in the Bill, the CBCEW would be justified in concluding that this is an unsatisfactory approach for the Government to take, and provides insufficient protection. For the reasons stated below, it is, arguably, quite limited in the scope of its protection. Clause 2(1), the protection from ‘compulsion’ to ‘opt-in’, may not, in particular, provide the robust protection promised.
35. The problem in determining the meaning of ‘compulsion’ in this Bill is increased by confusion as to whether the term ‘compel’ derives from any previous legislation, and if so, which. If it were clear which statutory precedent was used, then that might provide a basis for understanding the meaning of ‘compulsion’ in the context of this Bill. Apart from the Civil Partnership Act (in which ‘compel’ is used, but with a narrower scope than in this Bill, apparently) the obvious possible source of the word is the Matrimonial Causes Act 1965, section 8(2), in which the word ‘compel’ is used in a somewhat similar context to that in the Bill,58 with antecedents stretching back several hundreds of years.59 In Committee, however, the responsible Minister explicitly denied that this was the source from which ‘compel’ derived,60 thus
58 ‘No clergyman of the Church of England or the Church in Wales shall be compelled - (a) to solemnise the marriage of any person whose former marriage has been dissolved and whose former spouse is still living; or (b) to permit the marriage of such a person to be solemnised in the church or chapel of which he is the minister.’ 59 Lord Hardwicke’s Marriage Act 1753 (26 Geo. II. c. 33), section 13: ‘No suit shall be in the Ecclesiastical Court to compel a marriage, by reason of any contract.’ 60 Mr Robertson: ‘we have absolutely not borrowed from the Matrimonial Causes Act’, Bill Committee, Seventh Sitting, 28th February 2013.
55 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) introducing further confusion as to what ‘compel’ means. Does it mean the same as in the Matrimonial Causes Act or not?
36. Some members of the Bill Committee appeared to be puzzled why the Catholic Church is dissatisfied with the protections in Clause 2 when the Church of England regards them as satisfactory. It is important to bear in mind that there is a critical difference between the position of the Church of England and all other Churches under the Bill as it now stands. As its Note to the JCHR stated, at para 44, the Church of England ‘expressly requested that the Bill should not enable them to opt in’, and for that reason, at para 40, the Bill ‘treats the Church of England differently to other religious organisations, which are permitted to opt in to a process for solemnizing marriage for same sex couples.’ The Catholic Church is therefore intensely concerned with the adequacy of the protections provided in Clause 2(1); the Church of England is not, because it is not given any discretion to opt-in in the first place.
37. There are several problems with the protections provided in Clause 2. The limited case law that is available, in which a protection from ‘compulsion’ in other contexts has been judicially interpreted, seems to indicate that a protection from ‘compulsion’ could be very narrow in scope, essentially only providing protection from the imposition of criminal punishment,61 and this is how the term is primarily used in the Civil Partnership Act 2004 (for example, section 130(2)). The responsible Minister has provided assurances in Committee that the Government intends the Bill to provide greater protection than this. Mr Robertson said this: ‘The word “compelled” [...] not only prevents criminal penalties, but has the effect of preventing any type of conduct that would have the effect of forcing a person to do something protected under that clause.’62
38. The Government’s intention to provide broader protection than simply protection against criminal punishment is indicated not only by the Minister’s statement, but also by the fact that the exception to the Equality Act 2010 incorporated in the Bill, which provides that it is not contrary to section 29 of that Act to refuse to solemnize a same-sex marriage, is headed: ‘no compulsion to solemnize etc’ (emphasis added), implying that the Government wishes to protect churches from discrimination complaints if they decide to refuse to solemnize same sex marriages, and that such a complaint would constitute ‘compulsion’. But, in introducing this specific and limited exception to section 29, which I examine further subsequently, the Government has introduced a further uncertainty into the meaning of ‘compulsion’. Simply put, the issue is why it is necessary to have both the exception to section 29, and Clause 2(2). On the one hand, if it is necessary to provide explicitly on the face of the Bill for an exception to section 29, then we have to
61 See, e.g. V v. C [2002] CP Rep 8 (Court of Appeal, Civil Division), in which the meaning of compulsion was considered in the context of the privilege against self-incrimination. 62 Mr Robertson: Bill Committee, Seventh Sitting, 28th February 2013.
56 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) assume that without such an explicit exception, the protection against compulsion in Clause 2 would not by itself have been enough to ensure protection against section 29. On the other hand, the Minister in Committee said explicitly that ‘compel’ in Clause 2 includes the imposition of civil penalties, of the type that an unamended section 29 would give rise to.63
39. What the Government intends the protection against compulsion to cover is therefore left unclear. Does the protection against ‘compulsion’ protect a religious organisation from being treated less favourably by a public body that objects to the religious organisation’s decision not to opt-in? The assurance that the Minister provided on this point is less than clear. Mr Robertson assured the Committee: ‘The imposition of any penalties on or subsequent unfavourable treatment of a religious organisation or individual in order to compel that organisation to opt in to same-sex marriage is already unlawful under the Bill as drafted [...]’. The Minister also stated that Government intends the protection to have “the effect of preventing any type of conduct that would have the effect of forcing a person to do something protected under that clause”.64
40. Even assuming that the courts accepted this interpretation (which is not certain), several questions arise. Does the protection from ‘compulsion’ prohibits less favourable treatment being accorded not only ‘in order to compel that organisation to opt-in,’ and not only where the effect is to ‘force’ the Church to change its doctrine, but also where the action is taken simply to penalise that organisation for not opting in? In other words, if a public body did not intend to change the religious organisation’s stance, but simply wanted to register its disapproval of that stance, would this be prohibited? An organisation penalised for not opting-in by being denied access to grants, for example, would not necessarily be being ‘forced’ to do anything; it would simply be penalised for not opting-in. The Minister gave no assurance that this would be prohibited under Clause 2(1).
41. Does the protection against ‘compulsion’ protect a religious organization from other legal action being taken against it in connection with its decision not to opt-in, for example exposure to judicial review of the decision not to opt-in? The Minister refused to give any assurances that it was the Government’s intention that such litigation would breach the prohibition against ‘compulsion’. The Minister (Mr Robertson) said this: ‘I understand the concerns that unnecessary and misconceived legal actions are unwelcome in any situation. I entirely understand that.’ However, ‘no law can, of course [...] prevent an individual from filing an application with the court.’ Instead, all the Minister was prepared to say was that ‘the protections provided to religious organisations and individuals under the Bill as drafted mean that any challenge against a religious organisation or governing body for not opting into conducting same-sex marriages would be
63 Bill Committee, Seventh Sitting, 28th February 2013. 64 Mr. Hugh Robertson: Bill Committee, Seventh Sitting, 28th February 2013.
57 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) bound to fail. (…) The question is whether such a case would succeed. In this case, we are absolutely confident that it would not. The Committee does not have to take our word for it, because that position was supported by both Lord Pannick and Baroness Kennedy.’65
42. There are, however, at least four problems with the Minister’s assurances reproduced in the previous paragraph. First, the Minister gives the wrong impression when he says that ‘no law can [...] prevent an individual from filing an application with the court’. Whilst perhaps technically the case, there are numerous statutory provisions explicitly preventing particular decisions being called into question in any court.66
43. Second, the Minister did not deny the likelihood that such litigation was likely; in failing to provide explicit protections against the dangers (which he accepts) of ‘misconceived’ litigation, the Minister thereby fails to honour the commitment in the Government’s Impact Assessment, to ‘ensure that protections are in place for religious bodies who do not want to perform same-sex marriages, not just from successful legal claims, but from the threat of litigation’.67 Instead, the Minister relied on the Court’s power to strike out an application at an early stage: ‘Should a claim be issued, an application for strike-out could be made at an early stage as there would be no cause for action’.68 An application may only be struck out, however, when ‘the statement of case discloses no reasonable grounds for bringing [...] the claim’ (emphasis added).69 Predicting ahead of time that ‘no reasonable grounds’ could be identified on which to base an application seems somewhat over-confident of the Minister, given the speed with which this area of law is changing, as we shall see subsequently.
44. Third, although the Minister claims support for his position from Lord Pannick QC, Lord Pannick said nothing in his evidence to the Bill Committee about whether ‘any challenge against a religious organisation or governing body for not opting into conducting same-sex marriages would be bound to fail’ (emphasis added).70 Lord Pannick’s position related to a somewhat narrower issue, and in any event he appeared to be operating under a misapprehension.
45. Lord Pannick addressed the issue of whether a ‘complainant who is a member of the Catholic Church, and who says that they wish to enter into a same-sex marriage but are not able to do so under Catholic doctrine’ would succeed in challenging the Church’s
65 Bill Committee, Seventh Sitting, 28th February 2013. 66 For example, Falkland Islands Constitution Order 2008/2846, Schedule 1; Foreign Compensation Act 1969 c. 20, s. 3; Arms Control and Disarmament (Inspections) Act 1991 c. 41, s. 2; Chemical Weapons Act 1996 c. 6, s. 25; Landmines Act 1998 c. 33, s. 13; Nuclear Explosions (Prohibition and Inspections) Act 1998 c. 7, s. 6; Chemical Weapons (Overseas Territories) Order 2005/854, Schedule 1; Landmines Act 1998 (Overseas Territories) Order 2001/3499, Schedule 1. 67 Impact Assessment, Marriage (Same Sex Couples) Bill, 17 January 2013, page 5 (emphasis added). Others have also accepted that such litigation is likely: Baroness Kennedy QC, in her oral evidence to the Bill Committee specifically denied that ‘there will be no attempts to mount legal actions—I suspect there will’, she said, Bill Committee, First Sitting, 12th February 2013. 68 Bill Committee, Seventh Sitting, 28th February 2013. 69 CPR, rule 3.4(2). 70 Bill Committee, First Sitting, 12th February 2013.
58 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) refusal to conduct such a marriage.71 Lord Pannick’s view was that the correct legal response to such a person (and one he suggested the courts would adopt) was ‘that they are perfectly entitled under current English law to have a marriage. What they are not entitled to is a marriage under Catholic doctrine, but that is purely a religious matter’. This appears to respond to the issue under Clause 2(2), but not the issue under Clause 2(1).
46. In any event, Lord Pannick appeared to be operating under a misapprehension, in that he appears to have failed to appreciate that at the moment many marriages conducted in Catholic Churches are not ‘purely [...] religious’. They are also civil marriages, recognised as such by the state. He also appeared to consider the Church’s concern as relating specifically to the position of Church of England ministers, but as we have seen, the issue under Clause 2(1) does not apply to the Church of England. My advice is that Lord Pannick’s evidence (which, of course, was not in the form of a detailed legal opinion prepared after due consideration of the opposing arguments, and on the basis of instructions) has been accorded excessive weight by the Government and should not be relied on.
47. Finally, the provisions of Clause 2(1) state that ‘[a] person may not be compelled to [...] undertake an opt-in activity,’ but it is unclear what the mechanisms of enforcement are for this provision. First, who has the right to enforce this provision? It is not framed in terms of a ‘person’ (which would include the Church) having a statutory right to enforce it. Could the Church seek an injunction against a local authority, based on only the provisions of Clause 2(1), if the local authority sought to withdraw contracts in order to penalise the Church for exercising its discretion not to opt-in? Assuming that it would be interpreted as establishing such a right (which is by no means certain) it is also unclear against whom the right is enforceable. Is it enforceable against public bodies only, or against everyone? What if a private firm was pressured into not accepting advertising from the Church in order to register the firm’s disapproval? Would that refusal by the firm be actionable by the Church, and if so in what forum? Does Clause 2 create a private cause of action, a form of statutory tort? It is entirely unclear.
48. Instead of relying on the uncertain term ‘compel’, and its uncertain status, it would be preferable for this blanket (if uncertain) protection to be supplemented by more targeted protections on the face of the Bill directed at preventing specific, credible risks of unacceptable pressure, in particular pressure to opt-in. An amendment should provide the necessary clarification and thus at least protect religious organisations (a) from all legal penalties—criminal and civil—for deciding not to opt-in; (b) from any other legal actions being taken against them (such as judicial review) for deciding not to opt-in; and (c) by making it clear that public authorities will be acting ultra vires if they penalise religious bodies for deciding not to
71 Bill Committee, First Sitting, 12th February 2013.
59 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) opt-in. It should also provide greater clarity as to the mechanism of enforcement available to religious authorities.
Exception to Section 29 of the Equality Act 2010
49. We have seen that Clause 2(5) inserts an exception to section 29 of the Equality Act 2010 into that Act, and I have advised that in doing so it has introduced further confusion as to the meaning of ‘compulsion’.
50. That problem aside, there are other significant issues that arise from the proposed exception. Broadly speaking, section 29 does two, rather different, things. It prohibits discrimination by a ‘service provider’, and it prohibits discrimination ‘in the exercise of a public function’. It is unclear which particular provisions of Section 29 are thought likely to give rise to successful litigation if an exception is not included.
51. It is not made clear on the face of the Bill whether the Government considers it necessary to provide an exception to section 29 because the solemnization of a marriage, etc is regarded as the provision of a ‘service’, or because it is considered to involve the exercise of a ‘public function’. The Explanatory Notes do not provide any explanation.
52. The issue is important because the proposed exception to Section 29 of the Equality Act 2010 only applies to the range of activities listed in Clause 2(2), not those listed in Clause 2(1). As to whether an opt-in activity constitutes a service, Mr Robertson stated in Committee: ‘a religious organisation’s decision whether to opt into conducting same-sex marriages is [not] a service to the public or a section of the public [...]. For that reason, the decision is not within the scope of section 29 of the Equality Act [...]’ He continued: ‘The fact that undertaking an opt-in activity would enable a religious organisation subsequently to offer services to the public does not make any prior conduct also a service’.72
53. Even assuming that a religious organization would not be considered by the courts to be a ‘service’ provider for the purpose of the activities referred to in Clause 2(1), the question arises whether these activities could nevertheless be considered to involve the exercise of a ‘public function’. If they do involve the exercise of a public function, then a religious organization deciding not to opt-in would be at risk of a successful discrimination claim, by virtue of section 29(6).
54. The Minister responded to this point as follows: ‘a religious organisation’s decision whether to opt into conducting same-sex marriages is neither a service to the public or a section of the public, nor a public function. For that reason, the decision is not within the scope of section 29 of the Equality Act [...]’ He continued: ‘the fact that undertaking an
72 Bill Committee, Ninth Sitting, 5th March 2013.
60 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) opt-in activity would enable a religious organisation subsequently to conduct same-sex marriage, which has legal effect, does not make any prior conduct a public function.’73
55. My advice is that this is by no means certain. As we shall see, the issue of whether decisions by religious authorities to opt-in are ‘public functions’ arises not only in this context, but also in the context of the operation of the Human Rights Act 1998, and common law judicial review. I shall turn to this issue next. For the sake of convenience, it will be assumed that if a decision to opt-in involves the exercise of a public function under the Human Rights Act this will effectively also determine the similar issue arising in ‘ordinary’ judicial review and under section 29 of the Equality Act (as mentioned above), although even that assumption is not beyond doubt.
56. Given that I conclude that there is a significant risk that a decision not to opt-in could be considered to be a ‘public function’ for the purposes of the Human Rights Act, my advice is that an amendment is necessary to the Equality Act 2010. There are two major alternatives: either to insert, on the face of the Bill, a specific exception in section 29 of the Equality Act 2010 for religious organisations when deciding not to opt-in, or to insert a clause that provides explicitly that religious organisations are not performing public functions or providing services when deciding not to opt in.
Decision whether to opt-in may constitute a ‘public function’
57. Unlike the (limited) exceptions dealing with section 29 of the Equality Act, no exception is provided in the Bill regarding the provisions of the Human Rights Act 1998. We shall see that there is an issue regarding the liability of the Government under the European Convention on Human Rights in Strasbourg, but there is also (separately) the question of the (possible) liability of religious authorities under the Human Rights Act 1998 in the domestic courts. The issue I consider initially is whether a decision by a religious authority not to opt-in is reviewable under that Act in the domestic courts.
58. It is important to stress that the primary concern I address here is not ‘the risk of success of any challenge brought by a same sex couple under Article 9, in order to establish their right to marry according to religious rites in a particular church or other religious building’, which is the primary focus of the Government’s Note to the JCHR. This Note spends several paragraphs reassuring churches that the risk of a successful challenge is negligible.
59. The Church’s primary concern relates, I am instructed, to challenges to its statutory discretion whether to ‘opt-in’ to the conduct of same-sex marriages. This
73 Bill Committee, Ninth Sitting, 5th March 2013.
61 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) issue is dealt with in a brief paragraph of the Note to the JCHR that manages to miss the point of the Church’s concerns. At para 34, the Note states: ‘The availability of an opt-in for most religious organisations [...] does not mean that States must compel organisations to provide marriage ceremonies for same sex couples. This would accord insufficient weight to the Article 9 rights of the religious organisation, its ministers and its members.’ The primary concern of the Church, I am instructed, is not that the State would ‘compel organisations to provide marriage ceremonies for same sex couples’, but rather that the courts would be used to challenge the Church’s decision not to opt- in, for example, by non-governmental organisations seeking a Declaration that the process by which the Church’s decision not to opt-in was flawed, or that the considerations taken into account in making the decision not to opt-in were impermissible. It does not appear to me that such a Declaration could legitimately be regarded as ‘compulsion’ (a Declaration does not ‘force’ any action to be taken) but it would nevertheless have significant legal and political consequences.
60. There are two key questions that arise under the Human Rights Act in this context. The first is whether there is an arguable case that the discretion accorded to religious authorities to opt-in involves the exercise of a public function for the purposes of the Act. The second is whether there is an arguable case that the discretion accorded to religious authorities exercising a public function to opt-in breaches the substantive provisions of the European Convention on Human Rights included in the Human Rights Act, given that the Bill permits religious authorities to discriminate on grounds of sexual orientation. I shall consider the ‘public function’ issue first, and deal with the substantive issue subsequently.
61, It seems highly unlikely that, in general, the Church would be regarded as a ‘public authority’ for the purposes of the Human Rights Act. However, bodies that are not, generally, public authorities may nevertheless become subject to the Human Rights Act if they are regarded as ‘hybrid’ bodies, that is, if they exercise some public functions. In such a case, the exercise of the public function is subject to the Human Rights Act, whilst the exercise by the body of its other (non-public) functions will not be covered by the Act.
62. The relevant question is whether, given that the Church frequently conducts marriages that are both religious and civil, this makes the Church a ‘hybrid’ public authority in the sense that it is carrying out a public function, namely conducting ‘civil’ marriages. If this is the exercise of a public function, this could render the Church’s decision not to opt-in to conduct same-sex marriages challengeable under the Human Rights Act. The gloss in Clause 11(1) (which provides that ‘In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples’) may strengthen that argument.
62 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147)
63. The Secretary of State has responded to this concern as follows: ‘In our view, the decision to opt-in or not is not a public function—it is not a function of a public nature. The fact that it would enable a religious organization subsequently to undertake a function that is arguably of a public nature (ie the legal solemnization of same sex marriages) does not make any conduct prior to that also a public function. So we do not think these decisions would be susceptible to a claim under the Human Rights Act.’
64. In Committee, the responsible Minister stated that a decision whether to opt-in is not a ‘public function’ under section 29 of the Equality Act. He also stated that, for the same reasons, such a decision would not constitute a decision of a public nature under the Human Rights Act either. He stated: ‘a religious organisation’s decision whether to opt into conducting same-sex marriages is neither a service to the public or a section of the public, nor a public function. For that reason, the decision is not [...] within the scope of the Human Rights Act.’ He continued: ‘Such decisions are therefore not susceptible to claims under [...] the Human Rights Act.’74
65. My advice is that the courts would not necessarily adopt the same position as that adopted by the Secretary of State and the responsible Minister. The Government acknowledges that the legal solemnization of same sex marriages is ‘arguably of a public nature.’ It is also the case that the solemnization of opposite-sex marriages will also be ‘arguably of a public nature’, for the same reasons. Indeed, I suggest that it is clear and that there is very little doubt that these are, indeed, public functions.
66. I am strengthened in this regard by the speech in May 1998 of the Minister who was responsible for presenting the Human Rights Bill in the House of Commons, the Home Secretary (Mr Jack Straw):
Mr. Straw. (…) Before I speak on the amendments, it may be helpful if I say how the Government think that the Bill will operate in relation to the Churches. Much of what the Churches do is, in the legal context and in the context of the European convention on human rights, essentially private in nature, and would not be affected by the Bill even as originally drafted. For example, the regulation of divine worship, the administration of the sacrament, admission to Church membership or to the priesthood and decisions of parochial church councils about the running of the parish church are, in our judgment, all private matters.
In such matters, Churches will not be public authorities; the requirement to comply with convention rights will not bite on them. We do not believe that, for example, the Church of England, the Church of Scotland or the Roman Catholic Church, as bodies, would be public authorities under the Bill. I was asked to clarify that by many people, not least the Cardinal Archbishop.
74 Bill Committee, Ninth Sitting, 5th March 2013.
63 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147)
On the occasions when Churches stand in place of the state, convention rights are relevant to what they do. The two most obvious examples relate to marriages and to the provision of education in Church schools. In both areas, the Churches are engaged, through the actions of the minister or of the governing body of a school, in an activity which is also carried out by the state, and which, if the Churches were not engaged in it, would be carried out directly by the state.
We think it right in principle—there was no real argument about it on Second Reading—that people should be able to raise convention points in respect of the actions of the Churches in those areas on the same basis as they will be able to in respect of the actions of other public authorities, however rarely such occasions may arise.
(…)
Mr. Andrew Rowe (Faversham and Mid-Kent)
The Church has the power to marry in a way that the state recognises, but the choice to get married in a church is entirely voluntary. Does that not alter the case?
Mr. Straw
The hon. Gentleman makes an interesting point. There was a time when one could get married only in church but, these days, marriage is a matter of civil law—it is the exercise of a public right. The Churches are standing in the stead of the state in arranging the ceremony of marriage, which is recognised not only in canon law, but in civil law. In that instance, the Church is performing a function not only for itself, but for civil society.75
67. My advice is that it does not seem at all unlikely that the step that allows a religious organisation to move from the exercise of one public function (solemnizing opposite sex marriages) to the exercise of another public function (solemnizing same-sex marriages), would also be regarded as the exercise of a public function, particularly since that step (opting-in) is itself provided for in legislation.
68. The idea of what constitutes a ‘public function’ in these circumstances is notoriously uncertain. The Joint Committee on Human Rights (correctly, in my view) stated the problem as follows:
‘We are concerned that, as the law stands, the only guidance that can be given on the important issue of whether a body should be considered a functional public authority for the purposes of the HRA is to seek further “specialist legal advice”. It is currently
75 Hansard, House of Commons, 20 May 1998, at cols 1017-18, emphasis added.
64 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147)
impossible for the Government, or any other body, to provide comprehensive and accessible advice on the application of the Human Rights Act. We consider that this represents a serious failure to achieve the aspiration of a human rights culture in which Convention rights are secured for individuals without the need for formal legal proceedings or the involvement of legal advisers’ (emphasis added).76
69. My advice, therefore, is that there remains at least a significant risk that religious organisations which conduct legally-recognised opposite sex marriages could be regarded as exercising a ‘public function’ in deciding whether or not to opt-in, for the purposes of the Human Rights Act 1998 (and section 29 of the Equality Act, and ‘ordinary’ judicial review). This could result in a legal challenge to a decision not to ‘opt in’. An obvious solution would be to provide an explicit statement on the face of the Bill that ‘opting-in’ is not the exercise of a ‘public function’.
70. The Government argues that making a specific statement on the face of the Bill that religious authorities are not (for these purposes) exercising public functions would be unhelpfully confusing. The Secretary of State has written to the Church that: ‘To make a specific statement of the sort you have requested [that the Bill provide explicitly that a decision whether to opt-in is not a public function] might [...] risk creating doubt about whether other decisions made by religious organisations are also public functions.’ This is an unconvincing response. As we have seen, there is already uncertainty as to what decisions are public functions; introducing a degree of clarity as to at least one area of activity can hardly be regarded as unhelpful; uncertainties will remain as regards other activities, it is true, but a clarification of the type suggested is unlikely to increase uncertainty as regards these other activities.
71. To conclude: a significant risk has been identified; even if litigation against the Church may ultimately be successfully resisted, it may only be after the Church has incurred significant costs, since I consider that a ‘reasonable’ case may well be possible, such that the case might not be struck out immediately. The CBCEW may legitimately consider that religious organisations should not be exposed to such costs, particularly if they are not public bodies, and that more explicit protections are therefore needed. If so, an amendment on the face of the Bill is much the preferable course of action for Parliament to adopt. There is ample precedent, for example, for a provision to be inserted in the Bill providing that ‘a decision by a person not to undertake an opt-in activity shall not be questioned in any legal proceedings whatsoever.’77
Substantive issues under the HRA and the European Convention
76 Joint Committee on Human Rights, The Meaning of Public Authority under the Human Rights Act, HL Paper 77; HC 410 (Session, 2006-7), at page 47. 77 See above, fn at para 42.
65 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147)
72. Such an amendment is even more important given the uncertainty over the substantive legal risks under the Convention and the Human Rights Act (that is, leaving aside the question of ‘public function’).
73. There are at least two substantive questions that arise. The first issue is whether there is an arguable case that a religious authority exercising public functions in a discriminatory manner (as described above) would itself be found to be acting unlawfully in domestic litigation under the Human Rights Act. My advice is that there is such a risk.
74. The second issue is whether, in instituting the system of ‘protections’ in the Bill that explicitly permit religious authorities to discriminate in circumstances where the Church is recognised by the State as operating as a proxy for the State, the United Kingdom would itself be found to be acting unlawfully under the Convention in breach of its positive obligations by facilitating discrimination by a third party, even if the activities of the religious authorities are not themselves regarded as involving the exercise of a public function. This issue may arise both under the Human Rights Act or directly in Strasbourg.
75. The Note to the JCHR assumes that the primary issue in this context is whether the Church would be forced directly by a judicial decision in Strasbourg to conduct same-sex marriages, whereas a primary concern of the Church is that, given its current delegated legal functions, the ‘protections’ provided may not withstand future scrutiny if a case were to be taken against the United Kingdom. What is feared, therefore, is that the Church would be forced to retreat from officiating at marriages that have a dual public and religious character. This issue is never addressed by the Note to the JCHR.
76. My Advice is that there is an arguable case, a significant risk at least, that the protections provided by the Bill may in time be regarded as incompatible with the Convention, under Article 8 alone, or (more likely) under Article 14 taken with Articles 8 and/or 12, on the ground that the Bill adopts a regime that discriminates on grounds of sexual orientation in the provision of a public service, namely the solemnization of marriages by religious authorities that also constitute civil marriages.
77. It is important to be clear what the legal issues are that I focus on in the following paragraphs. I do not suggest that the European Court of Human Rights ‘would require a faith group to conduct same-sex marriages in breach of its own doctrine’ in the stark way in which the issue was framed in their Letter to The Times by Baroness Kennedy QC, Lord Lester QC, and Lord Pannick QC, and quoted to that effect by the Secretary of State in the House of Commons at Second Reading. Indeed, I agree with the thrust of that Letter, not least because a ‘faith group’ as such would not be
66 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) before the European Court, since the Court only decides cases directly against Member States, and therefore the Court could not itself require a faith group to do anything.
78. That technical point aside, I also agree more broadly that a challenge to a Member State’s decision to allow churches to continue not to conduct same-sex marriages would probably not at the moment be a breach of a positive obligation under Article 12, because the Court has held in Schalk and Kopf v Austria, Application no. 30141/04, 24 June 2010, that there is no right to same sex marriage under Article 12, as things stand today.
79. However, the authors of the Letter to The Times, and the Secretary of State, give too much weight to the supposed finality of the European Court’s decision in Schalk and Kopf v Austria to support their conclusion that such an event is ‘inconceivable’. Although the decision of the Court was that there was no right under Article 12 to same sex marriage, there are several reasons that call into question the claim that it is ‘inconceivable’ that in the future a right to same sex marriage may be developed by the Court, and that states could be required to ensure that state-recognised religious marriages are conducted without discrimination on grounds of sexual orientation.
80. First, marriage rights contained in Article 12 are not restricted to opposite-sex couples ‘in all circumstances’ even now. The Court held in Schalk and Kopf:
‘Regard being had to Article 9 of the [EU] Charter [of Fundamental Rights], therefore, the Court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex. Consequently, it cannot be said that Article 12 is inapplicable [...] However, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State’ (emphasis added).78
81. The Government’s Note to the JCHR recognises this uncertainty rather more forthrightly than does the Letter to The Times, stating (at para 58), that ‘In Schalk and Kopf v Austria the ECtHR held open the possibility that it might extend its interpretation of Article 12 to include marriage of same sex couples, but currently the issue of whether to allow such marriages falls within States’ margin of appreciation’ (emphasis added).
82. This is hardly a firm guarantee of future non-interference, as it appears to indicate (correctly) that if there is a significant change in the European consensus on the matter, the legal interpretation may well change, as it has in other areas in the past. It is also the case that this area of litigation is likely to expand considerably in the near future, giving increased opportunities for the Court to alter its position
78 At paragraph 61.
67 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) over time. There are already at least two cases before the Court at the moment, in which the Court may develop the law further.79 In addition, as the Note to the JCHR itself identifies, at para 60, four same sex couples involved in the Equal Love campaign have applied to the Court in February 2011 claiming breach of Article 12, alone or in conjunction with Article 14, because they cannot marry, and these applications are still pending.
83. Second, the Court now recognizes that same-sex couples can establish family life, under Article 8 of the Convention. There is, therefore, the opportunity to argue that same sex marriages may come within the ambit of the right to family life, even if it does not come within the ambit of Article 12.
84. There is a third reason for an increased risk under Article 12 read with Article 14 as regards the United Kingdom specifically. This is because, by changing the domestic law on ‘marriage’ as such, the Government opens up the prospect that a discrimination claim against the United Kingdom could succeed because the claimed discrimination would then come ‘within the ambit’ of Article 12. Previous case law has involved the question whether Member States must introduce same sex marriage, not how it legislates for same sex marriage once it has decided to introduce same sex marriage. A similar issue arises in the context of abortion: the Court has never held that a Member State must introduce a law permitting abortion, but it has held in several cases that once a Member State introduces a law permitting abortion it must be applied in a fair way (see the jurisprudence discussed most recently in P and S v Poland, Application No. 57375/08, 30 October 2012).
85. Fourth, although the Government has argued that the chance of a successful challenge to the protections accorded in the Bill under the ECHR is low, on the basis that Article 9 (protecting freedom of religion) would protect the safeguards, there is simply no precedent from the Court of Human Rights on the acceptability under the Convention of balancing religious protections with sexual orientation equality in the context of a same sex marriage law that has been introduced by a Member State. The recent judgments by a Chamber of the Court of Human Rights illustrate, however, that Article 9 does not provide significant protection when there is a clash between it and equality on the basis of sexual orientation.80
79 Chapin & Charpentier v. France (No. 40183/07) (communicated), and Fedotova & Shipitko v. Russia (No. 40792/10). 80 Eweida and Others v United Kingdom (Application nos. 48420/10, 59842/10, 51671/10 and 36516/10). A registrar (Ms. Ladele) was disciplined after she refused to carry out civil partnership ceremonies but she failed in her application to the ECtHR under Article 14 taken in conjunction with Article 9. Mr. McFarlane (a counsellor) was dismissed after colleagues became concerned that he would not provide sexual therapy to same sex couples given his religious beliefs. Mr. McFarlane failed in his application both under Article 9 and Article 14 in conjunction with Article 9.
68 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147)
86. The Court often accords Article 9 rights relatively little weight, and accords a Member State a considerable margin of appreciation in deciding how to protect that right. Much greater weight is given to equality on the basis of sexual orientation, and the margin of appreciation is correspondingly significantly reduced. Differences in treatment based on sexual orientation can be justified only with very considerable difficulty, as indicated by the current case law of the Court. The Government cannot therefore argue convincingly that the Court would necessarily accept the safeguards put in place to protect the position of religious organisations.
87. In its Note to the JCHR, the Government accepts, at para 68, that the ECtHR has held ‘that differences based on sexual orientation require particularly serious reasons by way of justification’ but argues that ‘a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy’, citing Stec v United Kingdom, (2006) 43 EHRR 1017, and stating that the ‘scope of the margin of appreciation will vary according to the circumstances’. This statement is liable to mislead, however. The implications of Stec for the issue of same sex marriage are much less clear when it is understood that in Stec the Court applied the margin of appreciation not to the question of whether the United Kingdom had to move to equality in the future (it did), but only to the speed with which the United Kingdom was moving to equality. This is hardly reassuring to the Church.
88. There is a fifth reason for concern relating not to litigation in Strasbourg, but to litigation under the Human Rights Act. Setting out its analysis of the human rights implications of the Bill in its Note to the JCHR, the Government resorts to the ‘margin of appreciation’ no fewer than 12 times in the course of a short document, without once pointing out that where challenges are made under the Human Rights Act in domestic courts, the margin of appreciation does not in any event apply in the context of justifications, and therefore the issue of proportionality is likely to be directly addressed by the domestic court, with the uncertainty that such an assessment almost inevitably introduces. The proposed ‘protections’ may turn out not to be safeguards at all.
89. Seventh, in its Note to the JCHR, at para 80, the Government states that ‘Article 9 is given particular weight under the Convention and this is reflected in the Human Rights Act 1998 (section 13)’. This, too, is misleading. Section 13 was inserted during the passage of the Human Rights Bill when detailed proposed amendments to protect freedom of religion were withdrawn on the assurances of the then Secretary of State that what became section 13 of the Act was sufficient protection. As is now well known, section 13 has become a dead letter in practice. As Mark Hill QC, Russell Sandberg, and Norman Doe authoritatively state in their study, Religion and Law in the United Kingdom, at page 61: ‘In practice, it seems that the section is a dead letter: section 13 hardly features in higher court judgments concerning freedom of religion.’ Section 13 does not provide the robust protection that is necessary.
69 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147)
90. The eighth reason for a degree of scepticism as to whether the protections provided to the Church’s position are sufficiently robust to withstand attack under the Human Rights Act concern the issue of whether the Church’s views on homosexuality are protected by Article 9. As the Note to the JCHR states, at para 69, it is arguable that a ‘justification for interferences with rights [cannot] be derived purely from negative attitudes that a particular minority might arouse.’ This is a potentially important caveat to the Government’s reassurances, because it appears to refer to a restriction on the right to freedom of religion that is now apparent in the British courts’ interpretation of that right: the development of a threshold requirement as to what constitutes a ‘religious belief’ that qualifies for protection. To be protected, beliefs must be ‘worthy of respect in a democratic society and [...] not incompatible with human dignity’. This is the test set out in Campbell and Cosans v United Kingdom.81 On the basis of this test, where a belief is considered to be inconsistent with ‘human dignity’, it does not come within the ambit of Article 9’s protection.
91. The tests of what is ‘worthy of respect’ and ‘not incompatible with human dignity’ are highly controversial, and not fully tested. For example, when the ECtHR adopted this test in Campbell and Cosans, the Court developed the test in the context of interpreting the limits of philosophical ‘convictions’ in Article 2, Protocol 1, under which the State shall respect the right of parents to ensure their children’s education in conformity with the parents’ own religions and philosophical convictions. Some British judges have also expressed concern with the Campbell and Cosans threshold test. Rix LJ has said that ‘[r]eligion is a controversial subject and there would be many who would argue that undoubted religious convictions are not worthy of respect or are not compatible with human dignity. It is in part to guard against such controversy that the Convention guarantees religious freedom.’82 Lord Walker has also said, and this more generally, that ‘the requirement that an opinion should be “worthy of respect in a ‘democratic society’” begs too many questions.83
92. Nevertheless, this threshold test has proven popular in the British courts when dealing with difficult freedom of religion cases. In particular, it was accepted and applied in R (Williamson and others) v Secretary of State for Education and Employment, on the issue of corporal punishment in some Christian schools, by Lord Nicholls,84 who held that ‘[t]he belief must be consistent with basic standards of human dignity or integrity’. This was expressly also accepted by Lord Walker, despite the reservations expressed above,85 and Baroness Hale,86 who also made clear her view that the ‘dignity’ test did apply to religious beliefs and did not only apply to philosophical
81 (1982) 4 EHRR 293, para 36. 82 Williamson and Others v The Secretary of State for Education and Employment [2003] QB 1300 (CA), para 151. 83 Williamson and Others v The Secretary of State for Education and Employment [2005] 2 AC 246, para 60. 84 Ibid, para 23. 85 Para 64. 86 Para 76.
70 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) beliefs. Lord Nicholls applied this threshold in the context of Article 3, which forbids torture and inhuman or degrading treatment or punishment: ‘Manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment would not qualify for protection.’ Subsequently, however, the concept of dignity has been used as a threshold test well beyond the context of Article 3. In the Court of Appeal in Ladele v Islington London Borough Council Lord Neuberger MR regarded this dignity test as ‘support[ing] the view that Mrs Ladele’s proper and genuine desire to have her religious views relating to marriage respected should not be permitted to override Islington’s concern to ensure that all its registrars manifest equal respect for the homosexual community as for the heterosexual community’.87
93. My advice is that there is a risk, which the Government does not address, that the Church’s position, refusing to countenance same-sex marriage, could be portrayed as being contrary to ‘dignity’, with the courts being asked to view it as unacceptable prejudice against homosexuals, and thus not within the range of ‘acceptable’ religious views that would be protected by Article 9. By apparently adverting to this issue in para 69 of its Note, without exploring its implications, and without reassuring the Church that its views would not be held to be incompatible with ‘dignity’, the Government has failed to address a key issue.
94. It is possible for Parliament to clarify that at least under the Human Rights Act religious authorities exercising the discretion not to opt-in are not exercising a public function, and that would at least minimize the likelihood of litigation directed against the Church under that Act. If it fails to do so, then my advice is that there is a significant risk of litigation directly against these religious authorities, which could involve significant expense for the Church.
Implications of the Public Sector Equality Duty
95. As is explained above, despite the Clause 2 protections, the Bill contains an explicit exception regarding section 29 of the Equality Act. There is no exception, however, as regards section 149 of the Equality Act 2010. Under section 149, most public authorities, such as local authorities, are under a duty to have ‘due regard’ to the need to ‘advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it.’ In particular, public authorities must have ‘due regard’ to the need to ‘remove or minimize disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic’. John Bowers QC, in his advice to the Coalition for Marriage of the 1st February 2013, has emphasised how section 149 has important implications for school authorities as public authorities, and may well affect how such bodies are required to present material to pupils concerning same sex marriage.
87 [2009] EWCA Civ 1357, para 55.
71 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147)
96. My advice concerns another potential effect of section 149. The Bill appears to do nothing to prevent public authorities from penalising a decision by a religious organisation not to opt-in to same sex marriage, on the basis that section 149 authorises such treatment. It is not at all clear that Clause 2(1) protects religious organisations from such less favourable treatment. As we have seen, the Government considered that there is a need to insert an exception for section 29, even though Clause 2 prevents ‘compulsion’. If it is necessary to have an exception for section 29, why not for section 149?
97. In its response, the Government appears to have misunderstood the CBCEW’s concern about the use of section 149 of the Equality Act 2010 as narrower than it is. The Government states that the CBCEW’s concern is that ‘a public authority [should] not use a religious organisation’s opposition to marriage of same sex couples as a reason for deciding not to enter an agreement or partnership with that organisation.’ Put more precisely, I am instructed that the CBCEW’s concern is that the Bill does nothing to prevent religious organisations which do not opt-in to same sex marriage from being treated less favourably by public authorities, for example by refusing to award public contracts or grants to religious organisations, on the basis that the public authority is given discretion to do so under section 149.
98. The Secretary of State is undoubtedly correct that the public sector equality duty is, of course, a duty to have ‘due regard’, that this ‘would not make unlawful an otherwise wrong or oppressive act’. She is also possibly, although not necessarily, correct that it ‘applies to religion or belief in the same way as to sexual orientation’, and that the treatment that the Church is concerned that public authorities might engage in ‘would be vulnerable to challenge by the religious groups on other judicial review grounds’.
99. However, my advice is that since the enactment of the first public sector duty in 2001, there has been extensive litigation, which has significantly expanded the discretion of public authorities to which the duties apply. In particular, the courts have consistently interpreted the duty of ‘due regard’ more robustly than the Government acknowledges by interpreting it as a duty to further equality of opportunity, and not just as a duty to avoid discrimination. Public authorities have, in practice, used this discretion to pursue broad equality aims, including by denying public contracts to organisations that the public authority regarded as unsuitable (on equality grounds) for the public authority to be associated with, and this appears to be entirely legal.
100. The fact that the public sector duty now imposes duties on multiple grounds (race, gender, sexual orientation, religion, etc), means that public authorities have a significant discretion how best to balance these grounds if they are perceived to clash; my advice is that it is not at all clear that the public authority’s exercise of its
72 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) discretion to make clear its opposition to the Church’s decision not to opt in to conducting same sex marriage by refusing to enter into contracts with that body would be unreasonable or otherwise ultra vires.88 The domestic courts have also been reluctant to second guess the discretion of public authorities where allegations have been made that more weight should have been given to a particular ground of equality.89
101. The Secretary of State is careful not to state that a judicial review of a public authority that engaged in this less favourable treatment would be successful, only that the decision would be ‘vulnerable to challenge’ (emphasis added). Contrast this with the statement of absolute certainty that challenges against religious authorities would be doomed to fail. The failure to reassure those concerned that the actions of the public authority would be clearly ultra vires is itself a legitimate reason for concern.
102. In addition, the Secretary of State asserts that, in the Government’s view, ‘similar reasoning would apply in such a case as arose in Wheeler v Leicester City Council’. This is not in any way reassuring. The Wheeler case was decided in 1985 before any of the modern public sector duties at issue were enacted; the first of the modern duties was not enacted in Britain until after the Stephen Lawrence Report in 2001. The Wheeler case was not, therefore, an interpretation that squarely addresses the problem raised in its modern statutory context.
103. In Committee, the responsible Minister sought to provide further reassurance. He stated: ‘as the law stands, a public authority would in fact be acting unlawfully [...] if it attempted to treat a religious organisation adversely simply because that organisation refused, as is explicitly allowed in the Bill, to conduct same-sex marriages. If, for example, a local authority withdrew meeting facilities from a Church only because it did not offer same- sex marriage, that would be likely to be unlawful direct religious or belief discrimination’.90 In providing this reassurance, the Minister appears to be acting under a misapprehension. It is not at all clear that if a local authority withdrew meeting facilities from a Church because it did not offer same-sex marriage, that would amount to unlawful direct religious or belief discrimination. At most, it is likely to amount only to prima facie unlawful indirect discrimination, which would then be subject to a justification defence. Given the approach that the Court of Appeal adopted in Ladele, according the local authority a very wide justification defence, my
88 The Government has argued before the European Court of Human Rights, as recently as last September, in the Ladele case, that the decision of Islington Borough Council to prefer to follow one aspect of its equal opportunities policy (on sexual orientation) even where this conflicted with another aspect of its equal opportunities policy (on religion) was nevertheless entirely legitimate. 89 The Courts have made it crystal clear, as Aikens LJ said in R (Brown) v Secretary of State for Work and Pensions [2009] PTSR 1506 that: ‘the weight to be given to the countervailing factors is a matter for the public authority concerned, rather then the court, unless the assessment by the public authority is unreasonable or irrational ... .’ [at para 82]. See, most recently, R (Coleman) v London Borough of Barnet Council and Another [2012] EWHC 3725 (Admin) for a review of the authorities. 90 Bill Committee, Ninth Sitting, 5th March 2013.
73 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) advice is that it is by no means certain that a court would necessarily find against the local authority.
104. Even if it were to be established that the actions of the public authority were ultra vires, such a clarification would only be as a result of a judicial review being taken by a Church-related body, which would be time-consuming and expensive. If the Government agrees that the less favourable treatment should be ultra vires, then the appropriate approach is to make this clear on the face of the Bill, thus avoiding unnecessary litigation. It is unclear why the Secretary of State ‘[does] not think it would be helpful to make legislative changes to the public sector equality duty’, when a narrowly tailored amendment is possible that would resolve the problem, without adverse consequences for the public sector equality duty more generally.
VI. Schools and the Secretary of State’s guidance
105. The Secretary of State is under a statutory duty to issue guidance on ‘the nature of marriage and its importance for family life and the bringing up of children’ under Section 403 of the Education Act 1996. Section 403 goes beyond an obligation on schools to teach children about the law of the land; it requires children to be taught about the value or benefit of the institution of marriage for family life and for the bringing up of children. It requires, in other words, schools to promote and endorse marriage, and not just tell pupils that marriage exists as a legal institution.
106. The statutory change in the definition of marriage may result in religious schools being compelled to teach a definition of marriage as important for family life and the bringing up of children that is contrary to their own understanding of that institution and thus impact on previously accepted and protected religious freedoms. This raises important issues under Article 9 regarding Church authorities responsible for running faith schools, and under Article 2 of Protocol 1, which provides that ‘the State shall respect the right of parents to ensure such education and teaching in conformity with their religious and philosophical convictions.’
107. The Secretary of State has responded to these concerns as follows: ‘[...] there is no need to provide additional protection as the Bill will not in itself make any change to the way teachers teach. But we do recognize, of course, that when providing factual information about marriage to pupils, schools will need to reflect the fact that marriage in England and Wales is open to both opposite sex and same sex couples. And as now, as part of sex and relationship education, schools will continue to teach pupils about the nature and importance of marriage for family life and bringing up children.’
108. In Committee, Mr Robertson said this: ‘The wording of section 403(1A) is clear. The Secretary of State issues guidance to ensure that pupils “learn”—it is worth paying attention to that word—“the nature of marriage and its importance for family life and the
74 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) bringing up of children”. The Secretary of State does not issue guidance to ensure that teachers promote or endorse any particular view of marriage. Guidance is already interpreted by schools with a religious character according to their ethos, and that is reflected in the sex and relationships education policies that they produce. Nothing in the legislation affects schools’ rights to teach marriage according to their character, and the additional protections are therefore unnecessary.’91
109. My advice is that neither response fully addresses the CBCEW concerns regarding the effect of the Bill on the Guidance that the Secretary of State issues, because it is unconvincing to imply that nothing has changed legally. This concern is reinforced by the possible effect of Clause 11(1) of the Bill, which provides that ‘In the law of England and Wales’ which will include section 403 of the Education Act 1996, ‘marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples.’ The ‘nature of marriage’ in section 403 must, therefore, be read subject to this new provision, a view that John Bowers QC also adopts in his advice to the Coalition for Marriage. This interpretation is strengthened by the provisions of Clause 11(2) that ‘The law of England and Wales (including all England and Wales legislation whenever passed or made) has effect in accordance with subsection (1)’.
110. The reassurances provided fail to address the central point of concern, namely that the definition of ‘marriage’ would be changed by the Bill. This means, therefore, that the duty on the Secretary of State to issue Guidance is effectively amended to require the Secretary of State to issue guidance on ‘the nature of marriage between opposite sex and same sex couples and its importance for family life and the bringing up of children.’ Section 403, as amended, provides therefore, that the Guidance should not only ensure that schools describe the nature of marriage defined in this way, but also that schools should teach ‘the importance [...]’ of marriage defined in this way, for family life and the bringing up of children, which may imply endorsement, or even promotion of this understanding of the meaning of marriage. The CBCEW would be justified in considering that this may well pose a problem for a Catholic school with a designated religious character as it involves promoting or endorsing same sex marriage, which would be contrary to its Catholic religious character.
111. If this is the case, my advice is that it would be important to address two different concerns on the face of the Bill, the first relating to the effects of the Bill on the existing Guidance, the second relating to future Guidance. It is important to ensure that the existing Guidance is not interpreted in the way feared. It would also be important to ensure that a future Secretary of State (perhaps in a new Government) who might see his or her responsibility when issuing Guidance differently from the policy of the present Secretary of State and attempt to lay down the content of the curriculum more prescriptively in the way feared.
91 Bill Committee, Eighth Sitting, 28th February 2013.
75 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147)
112. To ensure against both eventualities, an amendment would be needed to ensure that schools with a designated religious character are not compelled to promote or endorse an understanding of marriage that runs contrary to its religious ethos under either current or future guidance. This would not affect guidance issued by the Secretary of State that requires schools to teach children about the legal status of marriage (i.e. that it is legally open to both opposite sex and same sex couples). However, if a Secretary of State issued guidance that dictated that all schools should teach the importance of same sex marriage this should not apply to schools if it would contrary to the designated religious character of the school.
VII. Right of conscientious objection by marriage registrars
113. There are two separate issues that arise under human rights law, broadly understood. The first issue is whether under the ECHR there is an obligation on the United Kingdom to permit this type of conscientious objection, and the Government argues in its Note to the JCHR at para 120, based on the Ladele case in the ECtHR, that there is no ‘requirement under Article 14 read with Article 9 to allow for conscientious objection in the case of marriage registrars whose religious or philosophical beliefs mean that that they do not want to conduct same sex marriage ceremonies.’
114. The Ladele judgment was delivered by the Fourth Section of the Court on the 15th January 2013 and is not yet final. The applicant has recently requested that her case be referred to the Grand Chamber. However, my advice is that unless and until the ECtHR reconsiders Ladele, this Chamber decision stands as the relevant precedent and accords the United Kingdom a broad margin of appreciation under ECHR law in deciding how to balance ‘the rights of those who believe, whether or not motivated by religion, that homosexual acts are morally wrong or that same sex relationships should not be promoted.’ It is therefore the case that, as things stand at the moment, there is no ECtHR authority that local authorities responsible for providing civil marriages must permit this type of conscientious objection to civil marriage registrars.
115. Leaving aside the questions that this issue raises under the ECHR, it raises an important (separate) question arises under European Union human rights law, one which the Government does not address. This is because a marriage commissioner who was refused permission by the local authority to be allowed to continue in post without carrying out same sex marriages would be able to claim that she had been discriminated against on grounds of religion in her employment contrary to EU Directive 2000/78 EC, implemented in Great Britain in the Equality Act 2010. The Court of Appeal in Ladele addressed the issue under domestic equality law and under the ECHR, but not under EU law. There has been no decision by the Court of
76 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147)
Justice of the European Union on the issue. The issue is not acte clair, and would eventually require a reference to the CJEU by the domestic courts.
116. If such a reference were to be made, this would require important issues to be considered: the role of the general principle prohibiting religious discrimination in EU law contrary to the fundamental rights of the individual (Case 130–75 Vivien Prais v Council of the European Communities [1976] ECR 1589); and the role of Articles 10 (including in Article 10(2) ‘the right to conscientious objection’), 21 and 22 of the EU Charter of Fundamental Rights (O.J. (2010/C 83/02), 30.03.2010), which the Lisbon Treaty made legally binding on the United Kingdom when it is implementing EU law.
117. The combined effect of these general principles and the Charter suggest that the interpretation of EU Directive 2000/78 EC, and the Equality Act 2010, as a law of a Member States partly falling within the scope of EU law, will now be subject to closer judicial scrutiny and evaluation from an EU fundamental rights perspective, and that the CJEU could reach a different conclusion from that reached by the ECtHR in Ladele. It cannot simply be assumed that any decision by the CJEU would be the same as that by the ECtHR: the European Union is a very different entity from the Council of Europe and, importantly, under EU law, the margin of appreciation developed by the ECtHR does not apply in the same way.
118. The recent decision of the CJEU in Joined Cases C-71/11 and C-99/11, Y and Z v Germany, 5 September 2012 (Grand Chamber) is relevant. The Grand Chamber interpreted an EU Directive providing for religious protections by drawing on the EU Charter of Fundamental Rights; it did not accord the Member State any significant margin of appreciation. More specifically, Advocate General Bot, at para 100 of his Opinion, stresses the importance of religious freedom in a way that is directly relevant to the position of marriage registrars under EU law:
‘By requiring [a person] to conceal, amend or forgo the public demonstration of his faith, we are asking him to change what is a fundamental element of his identity, that is to say, in a certain sense to deny himself. However, no one has the right to require that’ (emphasis added).
119. As the Government’s Note to the JCHR itself points out a second issue arises under the ECHR, one that the ECtHR did not consider in Ladele: whether local authorities should have the discretion whether or not to permit this type of conscientious objection, even though the local authority is not legally obliged to do so. The Civil Partnership Act 2004 does not have an explicit conscientious objection clause, but it grants local authorities discretion whether or not to require all registrars to be designated civil partnership registrars. The legislation simply requires registration authorities to ensure that there are a sufficient number of civil partnership registrars for the area to carry out that function. Across the United
77 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147)
Kingdom, registrars’ beliefs have been accommodated by some local authorities which have allowed registrars with sincerely held religious objections to the formation of civil partnerships not to be designated as civil partnership registrars. Under the Bill, this approach has not been adopted; instead, all existing marriage commissioners will automatically be required to conduct same-sex marriages.
120. The question that arises is whether, as the Government put it in its Note to the JCHR, ‘it would be open to local authorities to arrange their services so that they can permit those marriage registrars with a conscientious objection to marriage of same sex couples to conduct only opposite sex marriage ceremonies’ (para 122). Based on the considered judgment of the Court of Appeal in Ladele, and after pointing out various possible difficulties with this interpretation, the Government concludes that it ‘appears that it would be unlawful for a local authority to arrange its services so that marriage registrars who have a conscientious objection to marriage for same sex couples would not have to conduct such marriages’ (para 125).
121. The Government reaches this conclusion on the basis that in Ladele ‘the Court of Appeal held that it would constitute a breach of the Equality Act (Sexual Orientation) Regulations 200743 (now broadly replicated in the EA 2010) for Islington to arrange its services so as to permit Ms Ladele to refuse to register civil partnerships because of her views on same sex relations’ (para 123). There is considerable doubt whether this decision is correct as a matter of domestic law, but the Government correctly draws the conclusion that ‘[i]f that reasoning is applied to marriage of same sex couples, it means that a marriage registrar whose role will encompass conducting same sex and opposite sex marriage ceremonies, because of the change of definition of marriage, cannot lawfully refuse to marry same sex couples while marrying opposite sex couples.’
122. This issue raises questions under domestic law but it also raises issues under the ECHR and under EU law: whether provisions of domestic law that impose a blanket ban, preventing local authorities from permitting civil registrars from claiming conscientious objection in any such circumstances, would be contrary to ECHR and/or EU law. Even if it were the case that the ECHR and EU law did not require States to permit the type of conscientious objection involved in the Ladele case as a general right available to all marriage registrars, this separate question arises and may well be litigated.
123. A third question that arises under both ECHR and EU law is the discrimination in the Bill between those who are responsible for officiating at marriages conducted in registry offices, and those who are responsible for officiating at marriages conducted in churches. Clause 2(4) allows individuals connected to a religious organisation which has opted-in to same sex marriages to refuse to conduct or be present at a same sex marriage ceremony on grounds of conscience. Clause 2(4)(a) provides explicitly that these protections do not extend, however, to include ‘a
78 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) registrar, a superintendent registrar or the Registrar General’. The government thus seeks to protect individuals from being ‘compelled’ to conduct same sex marriages on grounds of conscience even if their religious organisations have opted-in; but it has failed to protect individuals in other circumstances, where the state is involved.
124. The responsible Minister sought, in the Committee debates, to distinguish the two sets of individuals. He argued that the reason why Registrars should not be able to exercise a conscientious objection is because ‘[r]egistrars are public servants who perform statutory duties. […] It is an important principle that public servants should perform their duties without discrimination.’ He stated: ‘A registrar who marries a couple is conducting a civil marriage ceremony on behalf of the state, not performing a religious function.’92 These statements are intended, I understand, to distinguish Registrars from those conducting marriages in churches that have opted in.
125. However, the Government appears to be acting under a misapprehension regarding the position of those responsible for officiating at marriages conducted in churches. As I have stressed above, in many circumstances the person officiating at the ceremony in a Church building will, at the same time, also be exercising ‘statutory duties’, and will also be ‘conducting a civil marriage ceremony on behalf of the state’, as well as performing a religious function. Given that, my advice is that the discrimination between the two sets of individuals appears questionable on human rights grounds, raising issues under Article 14 taken together with Article 9.
126. Apart from the argument just considered, the responsible Minister relied on two further arguments to justify why civil registrars should not be able to exercise a right to conscientious objection. First, the ‘Church of England made very, very clear in its evidence session that it was entirely happy with the protections and specifically asked us not to change them in any way.’93 Rather than assisting the Government, however, this argument appears to place the Government in further legal difficulty, since it appears to indicate that the Government accords more weight to the preferences of the Church of England in this matter than it does to those churches that have taken a contrary position in an area in which the Established position of the Church of England is not germane. This appears to amount to a clear example of a religious preference between religions that Article 9 and (particularly) Article 14 were designed to prevent.
127. The second argument that the Government relies on is that the ‘representative body for registrars did not ask for a conscience objection.’94 Without knowing what consultative exercise, if any, was undertaken, and the extent to which those consulted were representative of the views of registrars, it is difficult to say whether
92 Bill Committee, Sixth Sitting, 26th February 2013 93 Bill Committee, Sixth Sitting, 26th February 2013 94 Bill Committee, Sixth Sitting, 26th February 2013
79 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) those civil registrars who would wish to exercise a conscientious objection are a minority among civil registrars as a whole. In any event, it is contrary to the protection of freedom of religion in its individual form for the preferences of an organisation representing members of a profession to be relied on by Government to limit the fundamental rights of a minority of individual members of that profession. The ECtHR has made clear that the collective preferences of a trade union, for example, cannot justify the suppression of the human rights of individual workers, Sørensen & Rasmussen v Denmark, Applications nos. 52562/99 and 52620/99, 11 January 2006 (Grand Chamber).
128. To the extent that the CBCEW consider that civil registrars should be able to exercise a right of conscientious objection in these circumstances, my advice is that a narrowly tailored amendment should be introduced to meet the legal problems identified above. A conscientious objection clause, such as this, is not unprecedented. Section 4 of the Abortion Act 1967, for example, allows for individuals with a conscientious objection to abstain from participation in abortions.95 The Government has provided no convincing reason for distinguishing between doctors in that context, and civil registrars in the same-sex marriage context.
129. A limited right to conscientious objection could be included that would apply to those who officiate at civil and religious marriages, and it would apply in respect of the actual solemnisation of the marriage and not to any other tasks undertaken that are associated with the solemnisation of marriage. As in the Abortion Act, the objection would have to be based on a sincerely held religious or other belief, placing the burden of proof on the person claiming to rely on it.
130. It is recommended, further, that the right to conscientious objection should be proportionate, also taking into account the rights of same sex couples, and only permitting registrars to exercise their right to freedom of conscience where doing so would not prevent same sex couples from accessing civil ceremonies, or religious marriage ceremonies in churches that have opted-in. Individuals would not be permitted to exercise a conscientious objection if doing so would result in same sex couples being unable to access this service. If sufficient numbers of registrars were not available in any district, a registrar with a conscientious objection would come
95 Apart from the Abortion Act 1965, there are the following provisions: the right of any person conscientiously to object to participation in work involving the treatment and development of human embryos (Human Fertilisation and Embryology Act 1990, section 38); the right of medical staff not to advise on or provide contraceptive services, subject to a duty to make a prompt referral to another provider who does not have such conscientious objections (National Health Service (General Medical Services Contracts) Regulations, SI 2004/291, Schedule 2, paragraph 3); the excusing of jurors from the important civic responsibility of jury service on grounds of conscientious objection (Practice Direction (Jurors) [1973] 1 WLR 134); the right of Sikhs not to wear motorcycle crash helmets (Motorcycle Crash Helmets (Religious Exemption) Act 1976) or safety hard hats in the workplace (section 11 of the Employment Act 1989).
80 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) under a duty to conduct the same sex marriage. Therefore, no same sex couple would be prevented from marrying by reason of this amendment.
131. This addresses the Minister’s concern that religious individuals might apply for positions as registrars just so they can conscientiously object to same sex marriage and prevent same sex couples from getting married: the registration authority should be able to compel such individuals to conduct the marriages if another registrar is unavailable to do so. Local registration authorities should also be able to take account of conscientious objections before employing individuals if employing an individual with a conscientious objection would affect its duty to ensure that there are enough registrars in the area to conduct same sex marriages.
VIII. Freedom of expression issues
132. The fourth substantive issue I have been asked to address concerns the implications of the Bill for freedom of speech. I am instructed that there is a concern that individuals, if they express an opinion against same sex marriage either inside or outside the workplace following the passage of this Bill, may be subjected to some form of detriment. This concern gives rise to issues under the rights to freedom of expression, and freedom of thought, conscience and religion. There have already been cases in which individuals have expressed opinions about same sex relationships, outside work, and have had disciplinary action taken against them as a result. One such case is Smith v Stafford Housing Trust [2012] EWHC 3221, in which Mr Smith posted a comment on Facebook critical of same sex marriage, after which his employer demoted him and reduced his pay. Even though he was ultimately successful in his legal action against his employer, the damages were minimal, he did not get his original job back, and his wages were not restored to the original amount.
133. It is difficult to be comprehensive about the circumstances that may give rise to a breach of (in particular) freedom of expression as a result of such detrimental treatment, but I am instructed that two particular circumstances may be identified which are of particular concern: (1) where an individual (for example a teacher) is accused of ‘discriminating’ against a person because he or she has expressed a view against same sex marriage; and (2) where an individual is prosecuted for a criminal offence, such as incitement to hatred on grounds of sexual orientation because he or she has expressed a view against same sex marriage.
134. The human rights issue that both these circumstances give rise to is the application of Article 10. The approach that would be taken under the Convention and under the Human Rights Act is likely to be that adopted by the ECtHR in Vejdeland v Sweden, Application No. 1813/07, 9 February 2012. In deciding that the criminal conviction of those who had distributed what the authorities considered
81 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) homophobic leaflets in a school was compatible with Article 10, the Court applied a proportionality test. The Court reiterated its consistent case law that:
‘freedom of expression is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.’
‘Discrimination’
135. The risk that teachers (or other employees) may be limited in their freedom of expression both inside and outside school as far as discussion of same sex marriage is concerned arises because criticism of same-sex marriage by teachers in the school context could be considered to be unlawful discrimination based on sexual orientation under the Equality Act 2010. A claim for ‘harassment’ is excluded in the schools context, so far as sexual orientation is concerned, but claims for ‘discrimination’ are not. By analogy with the judicial interpretation of ‘discrimination on the grounds of sex’ as including some conduct that would also fall under ‘harassment’,96 the use of ‘offensive’ language may be held to amount to sexual orientation discrimination. Also, under EU anti-discrimination law, the Court of Justice has held that, in some circumstances, offensive statements may amount to discrimination.97 John Bowers QC has raised similar issues in his advice to the Coalition for Marriage.
136. The Secretary of State has responded to these concerns as follows: ‘Our clear understanding is that discussion or criticism of same sex marriage would not be ‘of itself’ discrimination under the current law. This would only happen if the discussion or criticism took place in an inappropriate manner or context which resulted in discrimination against, or a detriment to, a particular pupil or group of pupils. The same is true of discussion or criticism of same sex relationships generally. We believe the existing provisions within the Equality Act are sufficient to protect teachers. Nothing in the Bill affects people’s ability to hold and express their belief that marriage should be between a man and a woman. Teachers are perfectly entitled to give their own view, or that of their faith, in appropriate context and in a balanced and respectful way. We therefore do not think an amendment is necessary.’
137. My advice is that the Secretary of State’s assurances do not fully meet the concerns identified and therefore fail to protect freedom of expression sufficiently. In particular, the question that is likely to arise is whether the expression of particular views about the superiority of opposite sex marriage to same sex marriage
96 Stewart v Cleveland Ltd [1996] ICR 535, especially at page 542 at B-D. 97 Case C-54/07, Firma Feryn.
82 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) may be regarded as itself resulting in a detriment to a particular group of pupils, namely those who are homosexual or those who are raised in families in which the parents are in a same sex marriage. This may create a chilling effect on teaching in particular contexts. One of the ways in which this can best be addressed is by putting the Secretary of State’s reassurances on the face of the Bill, ensuring freedom of expression by protecting discussions of same sex marriages from being regarded as unlawful discrimination, or otherwise subject to dismissal or disciplinary proceedings.
138. As far as conformity with the freedom of expression under the ECHR is concerned, there is an additional potential problem. Were such speech to be regarded as directly discriminatory under domestic equality law, there is no opportunity for the court or tribunal to apply a proportionality test in the particular circumstances of the case. This is because, under the Equality Act 2010, unlawful direct religious discrimination is incapable of justification, and the court or tribunal is therefore unable to undertake the type of balancing that the ECtHR in Vejdeland v Sweden regarded as necessary in order to ensure that freedom of expression was appropriately protected.
Incitement to hatred
139. The possibility that an individual might be subject to criminal prosecution because of views he or she expresses in opposition to same sex marriage arises particularly because of legislation criminalizing incitement to hatred on grounds of sexual orientation. Section 29B of the Public Order Act 1986 outlaws the use of threatening words or behaviour with intent to stir up hatred on the grounds of sexual orientation.
140. I am instructed that the CBCEW sought to persuade the Secretary of State to introduce an ‘avoidance of doubt’ provision to ensure that discussions related to same sex marriage would not in themselves constitute offences of incitement to hatred on grounds of sexual orientation. The Secretary of State responded as follows: ‘We are currently discussing with the Home Office and Ministry of Justice the possibility of amendments to the protection of freedom of expression clauses in section 29J and/or 29JA of the Public Order Act 1986 which you raised with us. We were not able to complete these discussions before introduction of the Bill. [...] We will continue these inter-departmental discussions as the Bill progresses.’
141. During Committee stage in the Commons, however, the responsible Minister resisted an equivalent amendment, on the ground that ‘a simple expression of a view [...] is entirely legitimate. It could not in any way constitute an offence under that section.’ He continued: ‘I am happy to put on record [...] that the criticism of marriage of same-sex couples could never in itself fall foul of the offence.’ Indeed, he told the Committee ‘that
83 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) we cannot put forward measures if they are deemed by the Government’s Law Officers to be unnecessary. It simply cannot happen.’98 If that were the case, however, it seems unlikely that ‘avoidance of doubt’ provisions would ever be found on the statute book, but a recent search conducted of the Westlaw database discovered hundreds of such provisions currently in force.
IX. Threat of litigation
142. In the course of considering each of the four substantive concerns under the Bill identified in para 6 above, I have stressed that the danger to freedom of religion that the Bill poses is not necessarily that litigation against the Church or religious individuals would succeed, but that the threat of litigation may itself produce such a chilling effect as to endanger the pluralistic public space that the ECHR requires. The Government itself recognises the potential for litigation to be brought that, though it may ultimately fail, would occasion considerable expense on the part of the Church or religious individuals. The Government has committed itself to ‘ensure that protections are in place for religious bodies who do not want to perform same-sex marriages, not just from successful legal claims, but from the threat of litigation’ (emphasis added).
143. One particular type of litigation that would be a significant risk would be the use of judicial review proceedings against the Church or Church-related institutions. As the Government itself has itself recently recognized,99 judicial review ‘comes at a substantial cost’ to respondents, including the ‘effort of defending the legal proceedings’, and the potentially ‘negative effect on decision makers,’ sometimes leading decision makers ‘to be overly cautious in the way they make decisions, making them too concerned about minimising, or eliminating, the risk of a legal challenge’. If, as the Government acknowledges, the Church is not a public body, the exposure to such risk is even less justifiable. The Government is no doubt conscious that it has an obligation not just to refrain from itself abridging the Church’s freedom of religion. As we have seen, it also has a positive obligation to protect the Church from others’ attempts to abridge the Church’s freedom of religion, and this includes through litigation.
144. One way of seeking to limit such litigation is by providing as much clarity as possible on the face of the Bill. This is particularly important given that the legislation is likely to provide the legal framework for marriage for many generations to come. It is a truism that whilst the Executive proposes, and the Queen-in-Parliament enacts legislation, it is the courts that are responsible for interpretation of that legislation. But Parliament is able, and has the responsibility, to influence this interpretation by clear and unambiguous drafting. My advice is that the Church cannot rely on the
98 Bill Committee, Eighth Sitting, 28th February 2013. 99 Ministry of Justice, Judicial Review: Proposals for Reform (December 2012), at paragraphs 34-35.
84 Written evidence submitted by Professor Christopher McCrudden (BILLS (12–13) 147) courts to give any weight to Ministerial assurances in the long term if the provisions of the Act itself are not crystal clear in reflecting those assurances.
145. My further advice is that the Church cannot rely on previous presumptions at common law that the courts will not intervene in the internal affairs of churches, or in the detailed relationship between religion and the public sphere. The Secretary of State has stated in her letter, in general terms, that: ‘We consider that the right of a religious authority to act in accordance with its own teaching, especially when the law specifically says that it can, is beyond any doubt’ (emphasis added). My advice is that whilst those assurances may have been convincing in the past, such assurances are no longer as convincing, in light of judicial decisions over the past decade.100
146. To the extent that Parliament fails to adopt the amendments suggested above, there will, in my view, remain a significant degree of uncertainty on critical issues of concern to the Church, and this is likely to encourage litigation. I am not aware of how the Government plans to meet its commitment to ensure protections are put in place from ‘the risk of litigation’ in these circumstances, but it is clearly important that it should do so. One possible approach, for example, would be to indemnify religious authorities in relation to any exposure to legal costs and expenses incurred in the course of legal proceedings brought against them in their capacity as religious authorities exercising the power to opt-in or opt-out of same sex marriage provision.
15th April 2013
100 In the JFS case [2009] UKSC 15 the Supreme Court held that a Jewish religious school could no longer admit pupils to the school on the basis of Orthodox Jewish religious principles (halacha) because these religious principles were held to be racially discriminatory, despite explicit exceptions in legislation protecting such schools from being found to be discriminating on religious grounds.
85 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149)
Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149)
Thank you for your letter of 20 March 2013 setting out various questions about the Bill.
I attach answers to these questions in an Annex.
I am of course happy to respond to follow-up or additional questions at the forthcoming oral evidence session.
18 April 2013
ANNEX: Marriage (Same Sex Couples) Bill Answers to Questions raised by the Joint Committee on Human Rights
Protection for religious organisations and individual ministers
Q1: What level of certainty can the Government provide that the protections contained in the Bill for religious organisations and individual ministers that do not wish to conduct same sex marriage are robust, and will remain so for the foreseeable future?
Article 9 of the European Convention on Human Rights (freedom of thought, conscience and religion) guarantees the right to freedom of religion. Any attempt to compel religious organisations to solemnize marriages that they consider to be doctrinally impermissible would interfere with their right to religious freedom. The protections contained in the Bill reinforce that protection.
Clause 2 of the Bill protects religious organisations and their representatives who do not wish to conduct or participate in a religious marriage ceremony on the ground that it is a marriage of a same sex couple.
The Government is confident that the religious protections contained in the Bill are robust. This opinion has also been supported by eminent lawyers, notably, as regards protection for religious organisations and individuals, Lord Pannick QC and Baroness Kennedy QC who each gave oral evidence to the Public Bill Committee, with Lord Pannick also providing written evidence which noted that:
86 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149)
“For the European Court of Human Rights to compel a religious body or its adherents to conduct a religious marriage of a same sex couple would require a legal miracle much greater than the parting of the Red Sea [...]“
Lord Lester QC also joined with these peers in a letter of 4 February 2013 to The Times which refuted the claims of opponents to same sex marriage that the religious protections would be vulnerable to challenge under the European Convention on Human Rights and noted that it would be:
“simply inconceivable that the Court [European Court of Human Rights] would require a faith group to conduct same sex marriages in breach of its own doctrines.‘’
The letter to The Times also cited the case of Schalk and Kopf v Austria [2010] ECHR 1996 in which the European Court of Human Rights stated that Article 12 of the Convention (the right to marry) does not impose an obligation on contracting States to grant same sex couples access to marriage; and confirmed that it would not rush to substitute its own judgment in place of that of national governments who, in its own words, “are best placed to assess and respond to the needs of society”.
Further, the memorandum submitted to the Public Bill Committee by the Equality and Human Rights Commission (MB 24) addressed the question as to whether the possibility of a legal challenge in the European Court of Human Rights means that the Bill is fundamentally flawed and should be dropped, by referring to its legal advice from Robin Allen QC and Jason Coppel which explained:
‘No legislation could realistically prohibit or prevent that (a legal challenge). It is simply our view based on the application of very basic principles of human rights law and the relevant jurisprudence of the ECtHR that such applications would not succeed. Fear [sic] to the contrary are misplaced and can be properly set aside.’
Where a religious organisation has opted into conducting same sex marriages, there may be unwilling or dissenting ministers who do not wish to solemnize or participate in such marriages. Dissenting ministers will be protected under Article 9 of the Convention and clause 2 of the Bill reinforces this protection.
It is also worth noting that, in their oral evidence to the Public Bill Committee, representatives of Liberal Judaism, the Society of Friends and the General Assembly of Unitarian and Free Christian Churches, all of whom have said they would opt in to same sex marriage, made clear that they would not compel any of their ministers to conduct such marriages if they were unwilling. Equally, in our numerous meetings with other religious stakeholders, no group has expressed any desire to compel an individual minister to conduct such marriages against his or her will.
87 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149)
Q2: Does the Government accept that it may be required to review this legislation and, if necessary, strengthen its protections for freedom of religion in the future, particularly to respond to any legal developments in this area?
No one can say how future case law on same sex marriage might develop in the European Court of Human Rights or over what period, or the extent to which other States which are party to the Convention might introduce same sex marriage and at what pace. But the Government can only sensibly establish statute legislation in the light of existing case law and principles of human rights law. As indicated in the answer above, we consider that the Bill’s provisions in this respect are robust.
The Government will of course keep any legal developments in this area under review and will respond accordingly.
Potential implications of the Bill in relation to the rights to manifest one’s religion or beliefs and to freedom of expression
Q3: Does the Government accept that there is reasonable concern about potential situations, such as those outlined above [regarding teachers, chaplains and others involved in delivery of public services; and employees in the workplace] that may arise as a result of the legislation, and about the prospect of future litigation based upon it
Certainly, concerns have been expressed by various commentators, both before and after introduction of the Bill, about the position of teachers, chaplains, public sector workers and employees generally, particularly as regards their freedom to express views that are critical of same sex marriage.
One such commentator is Aidan O’Neill QC, who advised the Coalition for Marriage on various hypothetical scenarios. The DCMS published a response to these concerns on 5 February 2013.
It might be helpful if we again set out why we consider these concerns are ill- founded. This government position was reflected during debates on these matters in the Public Bill Committee, particularly during the 8th and 9th Committee sittings, on a number of amendments relating to freedom of speech in employment services, public spaces, teaching and the public sector equality duty.
Teachers
Teachers will continue to have the clear right to express their own beliefs, or those of their faith—such as that marriage is between a man and a woman—as long as it is done in an appropriate and balanced way. No teacher will be required to promote
88 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149) or endorse views which go against his or her beliefs. The particular hypothetical scenario which Aidan O ‘Neill considers, of a teacher being disciplined for refusing to use materials (i.e a book about a prince who marries a man) she believes will go against her belief, is not one that is particular to same sex marriage, since it could apply to homosexuality generally or civil partnerships, nor is the approach of the courts likely to be altered depending on whether same sex marriage is or is not permitted. The materials that teachers and schools use to support teaching, for any subject or topic, are a matter for local determination.
Public sector chaplains
It is incorrect to assert, as Aidan O’Neill does, that public sector chaplains could be sacked for expressing the belief that marriage should be between a man and a woman. He considers the hypothetical case of a hospital chaplain who is sacked by the NHS Trust which employees him, when it learns he has been preaching this belief at his church. This view is mainstream and entirely lawful and will remain so should same sex marriage be permitted. Expressing a lawful view about marriage, even if it is at odds with the employer’s policy, would not affect the chaplain’s ability to carry out his work or the reputation of his employer, so dismissing him or her would be unlawful.
Other public sector workers and employees
Aidan O’ Neil and other commentators have raised concerns that the public sector equality duty will be used ‘selectively’ to penalise those expressing a view that same sex marriage is wrong. We set out below, in the answer to Q5, why the Government considers this will not be the case.
Q4: To address any such concerns, does the Government consider that it may be necessary to provide further protections in the Bill to protect the freedom to manifest religious beliefs and freedom of expression in relation to same sex marriage?
The Government is committed to protecting freedom to manifest religious beliefs and freedom of expression. Alongside the common law protection of freedom of speech, the existing protections in the Equality Act 2010 regarding religion or belief will continue to ensure that it is unlawful for an employer, service provider or public body to discriminate against a person who reasonably expresses a belief that marriage should be between a man and a woman. We therefore consider that additional protections are not necessary. Nothing in the Bill will impact on the freedom of people to express the view that marriage should be between a man and a woman. Such belief is mainstream, reasonable and entirely lawful.
89 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149)
As set out in the examples in the answer to Q3 above, employees will continue to be free to reasonably express their religious or philosophical views, including at work, as long as this does not affect their ability to do their job. We believe the protections we have in place, backed up by existing case law, safeguard their position.
As regards manifestation of religious beliefs, the Government does not consider that it would be appropriate for a public sector employee such as a marriage registrar to be able to refuse to conduct same sex marriages on grounds of conscience. As public employees with statutory functions, registrars should be required to carry out their tasks without discrimination because of their customers’ sexual orientation.
Q5: Does the Government consider that specific guidance could be helpful, for example, on the teaching of Sex and Relationships Education in relation to same sex marriage; on the position of chaplains working in the public sector; and for public sector employers?
The Bill will give same sex marriage the same legal status as marriage of opposite sex couples. Current guidance for the teaching of sex and relationship education secures that pupils learn the nature of marriage and its importance for family life. Teachers will need to ensure they reflect the updated legal nature of marriage in teaching should the Bill become law, but their underlying duties remain the same and these are covered by the current guidance.
Across all education matters, the Government has been clear that trust needs to be placed in the hands of the professionals on the ground. Teachers are already very experienced in addressing sensitive topics in class and we therefore do not consider the provision of additional guidance pertaining to the teaching of same sex marriage to be necessary.
With regard to guidance for public authorities, we know that there are concerns, particularly from religious groups, that some public authorities may try to rely on section 149 of the Equality Act 2010 (the public sector equality duty) to penalise employees or religious organisations who are opposed to same sex marriage.
A policy which penalises people or organisations for their religious or philosophical views merely because the public authority disagrees with those views would amount to unlawful discrimination because of religion or belief under the Equality Act 2010. The public sector equality duty could not be used to justify what would otherwise be unlawful or oppressive action.
In addition, the duty is not a duty to achieve a result, namely to eliminate unlawful discrimination or to advance equality of opportunity and good relations between
90 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149) persons of different protected characteristics. Instead, it is a duty to have due regard to the need to achieve these goals. A decision maker is not required to make a decision solely on the basis of an assessment of equality issues. He or she should also have regard to all countervailing factors as are relevant to the function which the decision-maker is performing. The equality duty in any event concerns protected characteristics such as religion or belief, not just sexual orientation.
During the Commons Committee stage of the Bill, the Minister for Sport and Tourism (Hugh Robertson MP) also committed to write to the National Lottery distributors to remind them of their responsibility to act within the letter of the law, with a view to ensuring that no-one could threaten to withhold lottery money from an organisation merely because it did not approve of same sex marriage.
Effect on marriage where one partner changes gender
Q6: Will it remain possible for one party to apply to annul a marriage under section 12(g) of, or paragraph 11(1)(e) of Schedule 1 to, the Matrimonial Causes Act 1973?
It will still be possible for one party to apply to annul a marriage under section 12(g) of, or paragraph 11(1)(e) of Schedule 1 to, the Matrimonial Causes Act 1973. Those provisions ensure that the issue of an interim gender recognition certificate to either party to a marriage is a ground for that marriage being voidable.
The changes this Bill makes will enable the Gender Recognition Panel to issue full gender recognition certificates to applicants in protected marriages where the couple indicate that they wish to stay married. However, we recognise that couples in protected marriages may still decide that they do not wish to remain married following one spouse obtaining gender recognition. With that in mind the Panel will still be able to issue interim gender recognition certificates to couples in protected marriages who do not wish to stay married following one party obtaining gender recognition and to couples in non-protected marriages. Section 12(g) of, or paragraph 11(1)(e) of schedule 1 to, the Matrimonial Causes Act 1973 will continue to apply in such cases.
Premises
Q7: Can the Government list all faith groups that have registered buildings for the purpose of solemnization of marriage under the Marriage Act 1949, and provide information on the number of registered buildings of each faith group?
The table below lists in alphabetical order all the faith groups that have buildings registered for marriages under section 41 of the Marriage Act 1949 (or in some
91 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149) cases certified as a place of worship only), together with the number of buildings registered for each of the faith groups. It does not include any buildings of the Church of England or the Church in Wales because neither of those organisations is obliged to register buildings for marriage.
Table 1: List of bodies with buildings registered for marriages under section 41 of the Marriage Act 1949
Body Number of registered Notes buildings Aetherius Society 1 Antiochian Orthodox 1 Apostolic Church 107 Assemblies of God 504 Baha’is 1 Baptist 2223 Brethren 373 Buddhists 11 Byelorussian Autocephalic 1 Orthodox Calvinistic Methodist 796 Celestial Church 15 Christadelphians 138 Christian Bodies (Other) 2886 Includes 1841 buildings described as “Christian”, “Free” and “Independent”. The total for this group includes “Other” Christian bodies which have 10 buildings or more registered for the solemnisation of marriage. Further details can be provided if required. Christian Fellowship 50 Church of Christ 42 Church of God 21 Church of the Nazarine 56 Congregation of Yahweh 1 Congregationalist 560 Countess of Huntingdon’s 15 Connexion Das Dharam 1 Devotees of Krishna 1 Disciples of Baba Gobind 1 Daa Ji Eikoko Iesu No Mitama 1 Kyokai
92 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149) Body Number of registered Notes buildings Elim Pentecostal 121 Evangelical 197 Fellowship of Independent 97 Evangelical Churches Followers of Guru Das 3 Greek Orthodox 31 Gujarati 2 Hindus 70 Jains 3 Jehovah’s Witnesses 848 Jews 0 245 certified places of worship, no requirement to register for marriages Kshatryna Sabna London 1 Bhagat Namdev Mission Latter Day Saints 18 Lutherans 15 Maktar Tarighat Ovesyi 1 Soudi Methodist 5469 Moravians 17 Muslim 219 New Testament Church 59 of God Nirankaries 2 Open Brethren 56 Pentecostal 228 Presbyterian 140 Protestant Dissenters 12 Ramgarhia 1 Ravidasia 5 Roman Catholic 3189 Salvation Army 689 Shree Swaminarayan 1 Siddhant Sajivan Mandal Shri guru Ravidasia 2 commuity Sikh 190 Society of Friends 0 67 certified places of worship, no requirement to register for marriages Spiritualists 323 Ukraine Autocephalic 1 Unitarian 144 United Reformed 1401 Unsectarian 38
93 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149) Body Number of registered Notes buildings Valmiks 5 Wesleyan 102 Zoroastrians 1
Q8: Why does the Government consider that there is a need for premises to be registered by faith groups (other than Anglicans, Quakers and Jews) for the purpose of conducting marriages? Does the Government have any plans to change the registration requirements under the Places of Worship Registration Act 1855 and the Marriage Act?
Along with the introduction of civil registration in 1837, there was a specific provision in the Marriage Act 1836 which allowed for the registration of a building certified as a place of worship to be registered for marriages. In 1836, as now, the requirement to register a building for marriage did not extend to the Anglicans, those of the Jewish religion and the Society of Friends (Quakers). This requirement is therefore a historical and fundamental aspect of English marriage law. The Government has no plans to change the certification requirements of the Places of Worship Registration Act 1855.
Certification of a building as a place of religious worship under the Places of Worship Registration Act 1855 is a pre-requisite for its registration under section 41 of the Marriage Act 1949. The origins of the Places of Worship Registration Act 1855 pre-date civil registration with introduction of the Toleration Act of 1688. This extended a measure of tolerance to Protestants who dissented from the Established Church to meet together as a congregation or assembly for religious worship. The same measure of toleration was extended to the Roman Catholics by statutes in 1791 and 1812 and to adherents to the Jewish religion in 1846. Finally in 1855 it was extended to all denominations.
The Government believes that this system works well in practice.
Q9: Can the Government clarify the position in relation to churches and chapels owned by the Crown and administered by the Church of England? As the opt-in mechanism under the Bill does not apply to the Church of England, does this mean that same sex marriages cannot be conducted on such premises?
There are a variety of circumstances where the Crown may own a chapel which is administered by the Church of England – for example, military chapels or the chapel in the Palace of Westminster.
94 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149)
The Bill amends Part 5 of the Marriage Act 1949 so as to enable a naval, military or air force chapel in England and Wales to be registered for the solemnization of marriages of same sex couples according to religious rites. This will not permit marriages according to the rites of the Church of England or the Church in Wales. While religious protection is a key part of the Bill’s approach, since military chapels are Crown land, used for the purposes of the State, it is necessary not only to accommodate the concerns of the religious organisations which use them but also to ensure that the State itself does not infringe Article 14 of the European Convention on Human Rights (prohibition of discrimination) (in conjunction with Article 9). The regulation-making power is designed to offer maximum flexibility in balancing these considerations, following consultation with the organisations concerned.
There has been a specific enquiry to the Speaker of the House of Commons about the status of St Mary Undercroft and whether it could be used by faiths other than the Church of England, including faiths that would be willing to conduct same sex marriages. That chapel has particular status and this is being considered by the House authorities and nothing said below should be taken to apply specifically to St Mary Undercroft.
The Bill will not authorise marriages of same sex couples according to the rites of the Church of England or Church in Wales. However, there are some circumstances where a building will be shared by more than one organisation including those Churches where the building is not owned by any of the sharers – for instance university chapels, hospital chapels or Royal Peculiars. These arrangements will usually be subject to section 6(4) of the Sharing of Church Buildings Act 1969. The Bill specifies that buildings used as mentioned in section 6(4) will be considered subject to a formal sharing arrangement; and registration for the purposes of same sex marriage under new section 43A of the Marriage Act 1949 will require the consent of the governing authorities of the religious organisations that use the building.
The Church of England, though not conducting same sex marriages themselves, could consent under new section 44A (6) (a consent to use) to the registration of the building for that purpose.
Civil partnerships
Q10: Does the Government accept that a large and growing number of opposite sex couples choose not to marry but live in stable, loving long-term relationships raising children? If so, what is the justification for denying such couples the legal benefits and protections available to same sex couples through civil partnerships?
95 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149)
We recognise that a growing number of opposite sex couples cohabit, but we do not consider that extending civil partnerships will necessarily result in all opposite sex cohabitants who choose not to marry entering into such legally recognised relationships.
A civil partnership, in the same way as marriage, involves people making a formal commitment to each other and taking on rights and responsibilities for their legal relationship with each other. Opposite sex couples already have the option of marriage (entered into through a civil or a religious ceremony) open to them to gain legal recognition of their relationship. Some couples believe that marriage is not for them and we believe that they should be free to make such a decision.
The Civil Partnership Act 2004 had one purpose—to allow same sex couples equivalent access to rights, responsibilities and protections as opposite sex couples have when they marry; and so it was not intended for opposite sex couples. Civil partnerships were not designed as an alternative to marriage for opposite sex couples, as they already had marriage as a way to have their relationship legally recognised.
Introducing civil partnerships for opposite sex couples would not provide any protection for couples who choose not to enter into a formal commitment. Separate legislation would be required to amend the law in respect of cohabiting opposite sex couples who do not marry. The Government announced in September 2011 that it does not intend to change the law on cohabitation in this parliamentary term.
Extending civil partnerships to opposite sex couples would require careful consideration, including consultation of those likely to be affected and a full assessment of the potential impact in terms of costs, benefits and existing legislation. For example, whilst same sex civil partnerships registered in England and Wales are treated as such by the other countries in the United Kingdom, there is no guarantee that opposite sex civil partnerships would be legally recognised outside England and Wales.
Pensions
Q11: Does the Government plan to equalise state pension entitlement for same sex married couples, civil partners and widowers with the benefits enjoyed by widows?
In relation to state pensions, the remaining differences in treatment will relate to access to the lower-rate basic pension for a person whose (still living) same sex married spouse or civil partner, or a married man whose wife was born before April 1950; and to additional state pension inheritance for survivors who reached pension
96 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149) age before April 2010 but whose deceased same sex married spouse, civil partner or wife (of a man) died while still under pension age. In all other circumstances, widows, widowers (of same sex and opposite sex marriages) and surviving civil partners are treated the same.
These residual differences are the effect of the legislation passed in 1995 to bring about equal treatment between men and women from 2010. By definition they are self-limiting because they can only apply to the cohorts described above, and (subject to the Government’s proposals for state pension reform becoming law) will not affect anyone reaching state pension age after 5 April 2016. We therefore have no plans to change the existing rules.
The difference in treatment in respect of survivor’s rights from 1978 for widows as compared to 1988 for widowers and surviving civil partners relates to the guaranteed minimum pension (GMP) that pension schemes contracted-out of the state earnings-related pension scheme before 1997 are required to pay.
The difference in treatment of widows and widowers in relation to GMPs is in part related to historical social attitudes and in part to past decisions about restructuring to maintain affordability, and it was considered fairest to treat civil partners the same as widowers.
It should be noted that this does not result in an overall difference in survivor benefits, because the GMP is offset against the amount of inheritable additional state pension (AP) that would have been payable, had the deceased not been contracted- out. As the gross inheritable amount (i.e. before any deduction for contracting-out) is based on accruals from 1978 onwards for widowers and surviving civil partners as well as widows, the difference in the amount of inheritable GMP is effectively made up through the state scheme.
Q12: What is the Government’s justification for the difference in treatment in this regard between same sex married couples, transgender married couples and civil partners on the one hand, and opposite sex married couples on the other?
The Government considers that equal treatment in relation to same sex married couples, transsexual married couples and civil partners compared to opposite sex married couples as regards survivor’s pension rights only applies in relation to contributions paid after the time when civil partners were given comparable status in law to married couples (that is, 5 December 2005). This is because it is well established that payments from an occupational pension scheme are deferred pay,101 and that the acquisition of entitlement to pensions benefits on retirement occurs
101 Barber v GRE [1990] ICR 616.
97 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149) during the member’s working life, and can be directly attributed to periods of employment prior to retirement. Thus, provided pension rights accrue in a way which is lawful at any particular point during a person’s pensionable service, it cannot be said that unlawful discrimination arises simply by virtue of revisiting the matter at the later date when the resulting benefits are paid. All that has happened is that there is a delay, which is inherent in the nature of a pension scheme, between the date the rights accrue and the date of payment of the resulting benefit.
In relation to compatibility with the European Convention on Human Rights and in particular Article 14, we consider the European Court of Human Rights would follow the reasoning of the Court of Justice of the European Union.102 Therefore, the relevant time for comparison as regards equality of treatment for survivors of a same sex marriage or a transsexual marriage or a civil partnership and survivors of an opposite sex marriage will be the time at which benefits accrue, not when they are paid. The date on which civil partnerships came into force is the relevant time because that was the date that same sex partners could form a legal partnership equivalent in legal standing to that of a marriage. The reason for treating same sex marriage couples as civil partners is that they could have the option either of getting married or of forming a civil partnership. The legislation therefore treats them equally.
The practical reason for the original civil partnerships exception was that pensions schemes can only plan for any increased potential liability at the time the member's benefits accrue; which they could only do from the date it was possible for same sex partners to form a legal union.
However, the exception sets out the minimum that pension schemes have to do to comply with equality law should they wish to provide survivor benefits. It does not stop them treating all members – whether in a civil partnership, opposite sex marriage or a same sex marriage exactly the same. We estimate that some two- thirds of pension schemes do treat people in civil partnerships and opposite sex marriages exactly the same.
Q13: Has the Government considered amending Schedule 9 paragraph 18(1) of the Equality Act 2010 to ensure that same sex married couples, transgender married couples and civil partners can access pension rights on the same basis as opposite sex married couples?
This exception was introduced to prevent schemes from having retrospective financial obligations towards surviving civil partners that they would not have taken into account in their schemes funding assumptions because civil partnerships did not exist when those assumptions were made.
102 Ten Oever (C-109/91)
98 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149)
We need to balance the interests of all parties involved in a pension scheme. So while we are committed to equal treatment for same sex couples, we do not believe it would be right to put the significant additional and retrospective financial burdens on schemes that would arise from removing the Equality Act 2010 exception. We are very conscious that defined benefit schemes already face difficult economic conditions. We estimate that in total, the impact on both contracted-in and contracted-out private sector schemes could amount to as much as £90 million. There would also be very substantial costs for public service schemes.
Q14: What is the Government’s justification for the potential loss of accrued pension rights in relation to transgender married couples?
The Government’s position is that it is the scheme member who accrues rights, not any spouse of the member. Thus we do not consider that an opposite sex couple, or in particular the wife of that couple, has any accrued rights to be affected by a change of legal gender by the husband. Article 1 of Protocol 1 to the European Convention on Human Rights (protection of property) is not engaged during the lifetime of a scheme member in relation to any interest in the benefits that the scheme member’s spouse may have.
However, we recognise that the Government’s policy of treating same sex marriages the same as civil partnerships for occupational pension survivor benefits could create a problem in relation to survivor benefits for the very small group of women whose husbands change legal gender during their marriage. It has been put to us that this could deter a transsexual person from seeking to change their legal gender, because of the financial impact it may have on their wife.
An amendment to our current proposed policy on this was debated during Commons Committee; and we have agreed to look again at this issue.
This includes consideration of the practical issues for both individuals and schemes. But we would also not want to make a change that would result in significant costs - to pension schemes and the public purse.
Consultation
Q15: Why did the Government consider it unnecessary to publish a White or Green Paper, or Draft Bill, to allow time for full consultation and consideration of the proposals?
A Green or White Paper was unnecessary as we were clear in our intention to introduce same sex marriage in order to remove an unjustified unfairness and to strengthen marriage. The issue was about how to do this, not whether.
99 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149)
The commitment to review a change in the law was included in the Conservative Party’s “Contract for Equalities” which sat alongside its election manifesto. In September 2010, the Liberal Democrats endorsed same sex marriage at their Party Conference.
The Government carried out the biggest ever consultation from March to June 2012. All 228,000 responses were considered, as well as the more than 500,000 petition signatures. In December 2012 the Government published its response to the consultation.
This Bill is relatively short and on a single issue and was developed following significant consultation. The Bill already has been, and will continue to be, subject to significant scrutiny as it proceeds through both Houses of Parliament, as part of the usual process of making legislation. The Public Bill Committee proceedings were able to finish with half a day to spare; and two days have been programmed for Commons Report stage.
Q16: What consultation has the Government carried out with minority faith groups such as, but not exclusively, Sikh, Hindu, Muslim, Jewish and smaller Christian denominations, to consider the impact, if any, of the legislative proposals on those faith groups and their activities?
There has been extensive ongoing contact by Ministers and officials with various minority faith groups from the start of this process and this is continuing. Please note that for the answer to this and the following question, we have not included, as “faith groups or organisations”, Atheism UK, the British Humanist Association or the National Secular Society.
The then Minister for Equalities, Lynne Featherstone MP, met the Christian Institute, Evangelical Alliance, Unitarian and Free Christian Churches, Quakers, Liberal Jews and the Board of Deputies of British Jews in October 2011 to discuss developing proposals following her announcement in September 2011, and the Prime Minister’s in October 2011, regarding the intention to publish a consultation on equal civil marriage the following March.
Also in October 2011, officials attended a multi-faith network meeting which included representatives from Churches Together in Britain and Ireland, the Islamic Cultural Centre Regent’s Park, Muslim Council of Britain, Mosques and Imams National Advisory Board, Board of Deputies of British Jews, Hindu Forum of Britain and the Inter Faith Network office; this was followed by further pre- consultation meetings with the Hindu Forum in November 2011, the Sikh Forum in December 2011; and, during the consultation, meetings in May 2012 with the Evangelical Alliance and the Interfaith Community which involved representatives from the Sikh faith, Quakers, Unitarian and Free Christian Churches, Vishnu Hindu Parishad UK and the Baha’i Community.
100 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149) Following the consultation, there were further discussions between Ministers and the Chief Rabbi Jonathan Sacks, the Unitarian and Free Christian Churches, Liberal Judaism and the Evangelical Alliance in December 2012.
In December 2012 and January 2013, prior to the introduction of the Bill, officials had meetings with: the Quakers, Liberal Jews, Unitarians, United Reformed Church, British Sikh Consultative Forum, Orthodox Coptic Church, Methodists, Board of Deputies of British Jews and the Chief Rabbi.
In April 2013 following the Public Bill Committee, officials have had further meetings with the United Reformed Church, Methodists, Baptist Union of Great Britain, Churches Together in Wales, Sikh Council UK, the Affinity group of churches, the Board of Deputies of British Jews and the office of the Chief Rabbi.
We received written responses to the consultation from the Board of Deputies of British Jews, British Sikh Consultative Forum, Church of Jesus Christ of Latter-Day Saints, Coptic Orthodox Church, Evangelical Presbyterian Church in England and Wales, Free Presbyterian Church of Scotland, Hindu Forum, Independent Methodist Churches, Lye Women’s Muslim-Christian Dialogue Group, London Beth Din (and the Rabbinical Council of the United Synagogue), Manchester Rabbinical Council, Methodist Church in Britain, Muslim Council of Britain, Muslim Council of Scotland, National Association of Orthodox Jewish Schools, Quakers, Reformed Episcopal Church, Sikhs in England, Unitarian and Free Christian Church, Vishwa Hindu Parishad UK (also called the Hindu Council UK) and Young Friends Quakers..
Q17: Can the Government provide the Committee with a list of faith groups which responded to the consultation, and a summary of the responses from each faith group?
We received responses from the following faith organisations: Board of Deputies of British Jews, British Sikh Consultative Forum, CARE, Catholic Bishops Conference of England and Wales, Changing Attitudes, Christian Concern, Christian Voice, Church in Wales, Church of England, Church of Jesus Christ of Latter-Day Saints, Churches Legislation Advisory Service, Coptic Orthodox Church, Evangelical Alliance, Evangelical Presbyterian Church in England and Wales, Free Presbyterian Church of Scotland, Hindu Forum, Independent Methodist Churches, International Ministerial Council of Great Britain, Keep Marriage Special, London Beth Din (and the Rabbinical Council of the United Synagogue), Lye Women’s Muslim-Christian Dialogue Group, Manchester Rabbinical Council, Maranatha Community, Methodist Church in Britain, Muslim Council of Britain, Muslim Council of Scotland, National Association of Orthodox Jewish Schools, Quakers, Quest, Reformed Episcopal Church, The Sibyls, Sikhs in England, Unitarian and Free Christian Church, Vishwa Hindu Parishad UK and Young Friends Quakers.
101 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149)
Responses received using the web form were anonymous. However, where a respondent made themselves known in their reply they have been included in the above list.
Summaries of those responses, in the form of selected quotations, are set out below:
Board of Deputies of British Jews
“There is no consensus of views in the Jewish community, as there are a variety of opinions on the matter of same-sex marriage”.
“There should be no obligation on religious organisations or ministers of religion to conduct same-sex ceremonies. Furthermore, we also affirm that no religious organisation or leader should face successful legal challenge for failing to perform a same-sex ceremony or for preaching their religious belief that marriage should only be between a man and a woman.”
British Sikh Consultative Forum
“The word ‘marriage’ in western history has its origins from union between man and woman solemnised through some form of religious or spiritual recognition”.
“There would be no objection if all unions were called civil partnership or some other term and the word marriage is left with religious institutions as a union between different genders recognised or solemnised by religious institutions.”
“We do not think that the State should discriminate on any ground where State benefits, responsibilities and support measures are concerned. It should offer equal financial and other supportive measures regardless of whether a union is a marriage or civil partnership.”
“We urge the State to respect the fine balance between Church and State, religion and secular Government”.
CARE
“CARE is very much committed to the institution of marriage as it is currently understood – the voluntary union for life of one man and one woman to the exclusion of all others”.
“Mindful of the fact that civil partnerships provide same-sex couples with the same substantive civil and legal rights as married couples, and that only a tiny proportion of people are interested in accessing same sex marriage, the polling and survey data does not support the Government’s radical and completely un-mandated proposals”.
“Whilst government can provide churches with an assurance that any primary legislation it introduces will not make provision for same sex marriage in church, they cannot guarantee that a successful human rights case will not be taken to court.”
102 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149) “Marriage should be preserved as a heterosexual relationship for heterosexual couples. If the law was to change the idea that civil partnerships could be restricted to same sex couples would be so transparently unsustainable in terms of human rights law that it would, in CARE’s view, amount to an effective commitment to the redefinition of marriage and civil partnerships with all the attendant cost implications, albeit with a slight time delay with respect to the redefinition of the latter”.
“The proposal would involve removing the terms ‘husband’ and ‘wife’ from official data held by the immigration and tax authorities. They would also require the massive re- writing of legislation which would not be without cost.”
“Whilst the proposal infers that legal challenges of churches that continue to marry heterosexuals but won’t marry same sex couples will happen, it does not recognise the cost to the churches concerned. It also makes a commitment that cannot be made, namely that no church should face a successful challenge.”
Catholic Bishops Conference of England and Wales
“There is a common and instinctive understanding of the meaning of marriage, shared by people of any religion and none. It pre-dates the Church, and its essence is captured in the commonly understood definition of marriage as the voluntary union for life of one man and one woman to the exclusion of all others”.
“Marriage, and the family life which is integral to it, has and continues to form a real unit which must be protected by society because together they constitute the living nucleus of the succession (procreation and education) of human generations”;
“The proposal for same-sex marriage legislation is based only on two very brief Party Conference announcements. There has been no Royal Commission, no manifesto commitment, no Green Paper and no White Paper”.
“Changing the legal definition of marriage would deliver no legal or material benefits for same-sex couples which have not already been provided by the Civil Partnership Act”.
“By creating new legislation the government would move the whole framework of marriage in such a way that issues which could not come before a court today could be contested at any point in the future.”
“Given that the Civil Partnership Act is now in force, there is a clear logic in restricting civil partnerships to same-sex couples and marriage to opposite sex couples. That is the current legal status. However, if the law were to change, the result would be that marriage would be open to opposite sex and same-sex couples but civil partnerships would be restricted only to same-sex couples. This is likely to be challenged in the European Court of Human Rights.”
“The government’s proposed safeguards for the institution of marriage as understood and conducted on religious premises are not proof against subsequent changes to legislation, and are at early risk of challenge in the European Court of Human Rights”.
Changing Attitudes
103 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149) “Marriage is the universal recognition given in society to the legal and relational commitment made by two people who love one another and wish to create a relationship of fidelity, recognised and respected by society”.
“The distinction between civil partnerships and marriage perpetuates discrimination rather than creating equality in love and commitment for same-sex couples.”
Christian Concern
“The European Court of Human Rights (ECHR) recently ruled that governments are not required to legislate for same-sex marriage as ‘the procreation of family in the traditional sense is, in principle, a weighty and legitimate reason which might justify a difference in treatment’”.
“Heterosexual marriage is a life-long commitment between a man and a woman. It’s geared towards procreation and is the best environment for raising children, which benefits society. Two men or two women cannot create a child. Such a union will always deny a child either a mother or a father which is never right. Therefore such relationships should not be given the same backing from the State or legal status”.
“Restricting same-sex marriage to civil premises is likely to be illegal under European law. Once allowed in churches, no one can guarantee that churches will be able to refuse to provide such services and not be successfully sued”.
“Hundreds of pieces of legislation will have to be amended as both the common and legal definition of the word ‘marriage’ will have to be changed. The word ‘marriage’ appears 3,258 times in legislation. Many other legal concepts and terms will also have to be amended such as ‘husband and wife’, ‘consummation’ and ‘adultery’”.
“In Canada legalising same-sex marriage has led to supporters of polygamy demanding in the courts for their unions to be recognised.”
“Redefining marriage will cost billions of pounds and is not an electoral priority at a time when many service providers are having their funding cut back.”
Christian Voice
“Marriage was instituted by God and affirmed by Jesus Christ as one-flesh union between a man and woman. The United Kingdom has a Christian constitution and no earthly government has the power to change what God has set in place”.
“Marriage, based on the one-flesh union of male and female, is the bedrock of society and the intended place for raising children”.
“The European Court has established that same-sex marriage is not a human right and the British public are opposed to it”.
“The present system of civil partnerships already gives homosexual couples all the benefits of marriage.”
104 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149)
Church in Wales
“The Church in Wales is in an almost identical position to the Church of England with regard to the solemnisation of marriages. The Church in Wales’ concerns about the legal implications are therefore the same as those of the Church of England.”
“It is not at all clear in what ways same-sex marriage will be different in substance from existing arrangements for civil partnerships. They already appear to be in all respects the same, in the rights and responsibilities conferred on the parties.”
“The purpose of retaining the category of civil partnership alongside same-sex marriage is unclear, given that it is not proposed that heterosexual couples will be allowed to enter into civil partnerships.”
Church of England
“We disagree with the proposition on the following grounds: the intrinsic nature of marriage, as enshrined in human institutions since before the advent of either church or state, is the union of a man and a woman; marriage affords many benefits to society, which include mutuality, fidelity and biological complementarity with the possibility of procreation; marriage is a central and unique social institution, not to be confused with the particular ceremony through which it is entered into.”
“In addition it is not clear what additional new rights, opportunities or responsibilities if any the introduction of same-sex marriage would achieve given that the legal inequalities between heterosexual married couples and same-sex partners have already been addressed through the introduction of civil partnerships”.
“As the law currently stands, the Government would probably be able to justify the difference in treatment on the basis that civil partnerships for same-sex couples only were a social measure designed to confer legal benefits on same-sex couples that they would not otherwise be able to acquire and that they therefore amounted to a proportionate means of pursuing a legitimate aim. But if the law were changed so that same-sex couples were able to marry, the legitimate aim of providing civil partnerships for same-sex couples only would cease to exist. Or at least it would change very substantially, such that, even if limitation of civil partnerships to same-sex couples pursued a legitimate aim of providing a legal status for same-sex couples who did not wish to marry, the exclusion of opposite sex couples from civil partnerships would not seem to be proportionate.”
“The Church of England’s unique place in the current marriage law of England means that the proposals will potentially have a very significant impact on our ability to serve the people of the nation as we have always done.”
Church of Jesus Christ of Latter-Day Saints
“The promotion and protection of marriage—the union of one man and one woman as husband and wife—is a matter of the common good and serves the wellbeing of the couple, of children, of civil society and mankind.”
105 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149) “We believe that changing the definition of marriage would have far-reaching negative implications for the nation, both legal and social.”
Churches Legislation Advisory Service
“Our member Churches are by no means unanimous on the matter ”.
“In conclusion, therefore, we would argue that whether the introduction of same-sex marriage is advisable or not—and on that we take no view, given that our member Churches are not of one mind on the matter—the consultation is based on an entirely false dichotomy between ‘civil’ and ‘religious’ marriage and also on a lack of clarity about what defines a ’marriage’ and distinguishes it from an act of registration. On each of these counts it is therefore flawed.”
Coptic Orthodox Church
“Marriage, as it stands, benefits society in many ways by being a monogamous loving relationship that allows for a wonderful union that potentially brings forth a new life, and celebrates the distinguishing and complementary differences between a man and a woman”.
“There is no apparent benefit to society arising from the redefinition of ‘marriage’ to incorporate ‘civil marriage’, as Civil Partnerships currently allow for equal rights and responsibilities”.
“To alter this definition is to undoubtedly directly impact religious institutions, undermine the sanctity and uniqueness of ‘marriage’ and infringe upon freedom of religious practice.”
Evangelical Alliance
“For some 2,000 years the orthodox Judeo-Christian view that marriage is uniquely concerned with the conjugality of maleness and femaleness for the purpose of life-giving and companionship has been regarded as intrinsic to the human condition”.
“Rather, marriage between a man and a woman has a unique place in law because of its potential to produce children, because of the proven benefits it brings both to children and to society, and because of the web of intergenerational structure it provides”;
“Same-sex couples can already obtain all the legal benefits of marriage by entering a civil partnership”;
“The proposed change would have a momentous impact on corporate and individual freedom of religion and/or freedom of conscience.”
“The pre-election manifestos of the governing parties did not include any commitments to redefine marriage.”
106 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149)
Evangelical Presbyterian Church in England and Wales
“The Bible clearly teaches that marriage is the union of one man and one woman, to the exclusion of all others, for life until separated by death”;
“Marriage is the only context in which sexual intimacy and union is right, and the proper sphere for the upbringing of children”
“The scope of marriage is determined by God alone.”
Free Presbyterian Church of Scotland
“Marriage must be between one man and one woman. We take this position, not because it is traditional, but because it is the one which God has revealed in the Bible”.
Hindu Forum
“The existing provisions under civil partnership do not preclude any significant legal rights that are conferred by a civil marriage”.
“We consider it our duty to stress that marriage is an institution that has a central role in the perpetuation of religious values among its adherents. And more importantly we see it as the source for the survival of human race.”
Independent Methodist Churches
“The Civil Partnership ceremony was intended to be the equivalent of civil marriage ceremony. On that basis, there is no need to change the definition of marriage to encompass same-sex relationships”.
“There is no demand for such a change from the majority of the UK population (whether they are prepared to acquiesce is another matter)”.
“Neither of the Coalition partners mentioned this issue in their manifestos before the 2010 General Election, so the Government cannot claim a mandate from the electorate.”
International Ministerial Council of Great Britain
“Marriage has been universally practised by peoples from the beginning of the human race as the union of a man and a woman for the benefit of the participants and of society and for the procreation of children.”
Keep Marriage Special
“Governments cannot redefine marriage because it was instituted by God when He created the first man and woman. For this reason marriage is the fundamental unit of society. It would be foolish and dangerous to change it”.
107 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149) “Because neither of the governing parties’ manifestos contained a commitment to same sex ‘marriage’ it is profoundly undemocratic to consult on ‘how to implement’ this before asking whether voters want it.”
“If the only basis for marriage is the desire of the parties to get married then there is, according to the logic of this proposal, no reason not to open up marriage to more than just same sex couples. Polygamy, polyandry and incest would all be permissible”.
“Changing the definition of marriage would make employment difficult for many people, who on grounds of conscience, cannot accept same-sex ‘marriage’. This would include registrars, marriage counsellors and teachers”.
“The costs are unrealistic. The quantified costs focus almost exclusively on the need to change public sector IT systems and marriage registry documentations and training”
“It [Impact Assessment] does not consider the cost of discrimination claims against institutions and individuals likely to be targeted by homosexual rights activists for failing to recognise same-sex ‘marriages’”.
London Beth Din (and the Rabbinical Council of the United Synagogue)
“Marriage, by definition in Jewish (Biblical) Law, is the union of a male and female”
“Any attempt to redefine this sacred institution would be to undermine the concept of marriage”.
Lye Women’s Muslim-Christian Dialogue Group
“Marriage has been seen as between a man and a woman throughout history and across a wide variety of cultures and religions. It is not the role of politicians to erase the essential complementarity of the marriage relationship”.
“Marriage is the bedrock of society and the foundation of stable families: having a mother and father is best for the development of a child’s identity and social relationships”.
“Same-sex couples already have the status and legal rights of marriage in civil partnerships.”
“The cost of legal protection and time spent in courts by those who for reasons of conscience offend against such laws has not been included.”
“This proposal did not feature in any of the major political parties’ 2010 election manifestos; it is being forced upon the electorate in a thoroughly undemocratic way.”
Manchester Rabbinical Council
“As those charged with the responsibility of upholding traditional Orthodox Judaism we state that the accepted morality in western society has been based upon principles
108 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149) enunciated in the Bible, through which it is clear that marriage is between male and female.”
“There is an assumption made in these proposals that it is possible to distinguish between religious and civil marriage. We wish to counter that it is not possible, from the perspective of Jewish teaching, to draw such a distinction.”
Maranatha Community
“It is universally accepted that the marriage-based family is the foundation of a civilised society”.
“At a time when the family is under immense pressure, it would be an act of gross irresponsibility to attempt to redefine the nature of marriage, which has been accepted over the centuries as the life-long union between a man and a woman for the procreation and healthy upbringing of children”.
“All evidence points to the need for children to have a mother and a father – a male and female role model”.
“There is little evidence of any strong desire among British people to redefine marriage.”
“Massive social and health costs are not accounted for, in the government’s Impact Assessment or elsewhere. The effect of the proposed changes on children has been entirely overlooked.”
“Government has no mandate for such a fundamental change: none of the three main parties included this proposal in their manifesto”.
“There is no compelling need for haste in instituting same-sex marriage in the UK given that civil partnerships already confer essentially the same rights and duties as marriage”.
“It is incorrect to say that the change will strengthen marriage: if it is enacted, there will be no reason in principle why polygamy (or indeed any other kind of alternative arrangement) should not also be made lawful.”
Methodist Church in Britain
“In line with scripture and church tradition our Standing Orders state our belief ‘that marriage is a gift from God and that it is God’s intention that a marriage should be a life-long union in body, mind and spirit of one man and one woman’”.
“But our main concern is the way that Government is assuming the right to define what is religious; religions must be free to themselves define the religious nature of all aspects and rituals of life”.
“For the purpose of religious freedom, if the Government allows marriage of same-sex couples in civil venues, then it must allow religious bodies to make the same choice”;
109 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149) “We object to the attempt made to define religion in terms of buildings and activities such as hymns and religious readings; for us and for almost all religions the whole of life is religious, including a civil marriage, especially if between religious believers”.
Muslim Council of Britain
“In Islam, the institution of marriage is considered as a union between a man and a woman”.
“In Islamic thought, marriage is considered as a union in terms of complementarity”.
“Having outlined the sacredness of the institution of marriage in Islam, as is the case in all other faiths, we do not believe the government has a mandate to make such a radical change to such an important institution as marriage”.
“The European Court of Human Rights has upheld the right of states to retain marriage as the union between a man and a woman.”
“We are not convinced that the above exemption is sustainable in the long run in the face of any future legal challenge”.
Muslim Council of Scotland
“The definition of marriage is a union of a man and a woman to live in tranquillity, compassion, kindness and form a human family, father, mother and children”.
“The family as such is the institution created by God with the creation of mankind, it is not an invention of society, but it preceded society. Thus the society and Government representing this society do not have the authority to change that definition of marriage.”
National Association of Orthodox Jewish Schools
“As those charged with the responsibility of upholding traditional Orthodox Judaism we state that the accepted morality in western society has been based upon principles enunciated in the Bible, through which it is clear that marriage is between male and female.”
“Notwithstanding assurances to the contrary, we are gravely concerned that the religious freedom of our synagogues to maintain the definition of marriage as being solely between male and female will be open to challenge under equalities legislation”.
“As those responsible for upholding traditional orthodox Jewish teaching in Jewish education and Jewish schools we are concerned that our schools will become open to challenge in regard to the content of their teachings on the nature of marriage.”
Quakers
110 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149) “Since 2009, Quakers in Britain have sought a change in the law so that same sex marriages can be prepared, celebrated, witnessed, reported to the state, and recognised as legally valid, in the same way as opposite sex marriages”.
“To us, marriage is a celebration of the committed relationship of two people who have found love for each other. Our testimony to equality demands that it should be available for all committed couples who seek it”.
“We consider that any legislation for equal marriage should include the liberty of Quakers to conduct marriages in our Meeting Houses.”
Quest
“Equality is for all, religious institutions don’t have the monopoly on marriage.”
“I think it’s a priority to counteract the lies that are being spread about gay people and religious marriage services. These are being used to scare and monopolise attention away from this which is essentially a legal upgrade.”
Reformed Episcopal Church
“While we appreciate that the published proposals do not extend to ‘religious marriages’ we nevertheless have serious misgivings about the intended redefinition of marriage which hitherto has been universally accepted in all cultures and faiths as involving the union of a man and a woman.”
The Sibyls
“Married trans people who believe in the sacred nature of their marriage vows, or who are unwilling to risk financial loss in terms of pensions for their spouses, have refused to take this step [obtaining a GRC], which appeared to have been imposed to prevent same-sex marriage by default.”
Sikhs in England
“Throughout history and in virtually all human societies marriage has always been the union of a man and a woman. Marriage reflects the complementary natures of men and women. Although death and divorce may prevent it, the evidence shows that children do best with a married mother and a father.”.
“If marriage is redefined, those who believe in traditional marriage will be sidelined. People’s careers could be harmed, couples seeking to adopt of foster could be excluded and schools would inevitably have to teach the new definition to children. If marriage is redefined once, what is to stop it being redefined to allow polygamy?”
“Civil partnerships already provide all the legal benefits of marriage so there's no need to redefine marriage.”
Unitarian and Free Christian Church
111 Letter to the Chair, from Rt Hon Maria Miller MP, Secretary of State for Culture, Media and Sport, and Minister for Women and Equalities (BILLS 12–13 149) “The General Assembly has expressed its support for full equality for lesbian, gay, bisexual and transgender people”.
“This position reflects our longstanding acceptance of the equal validity of same sex relationships in the same way as opposite sex and that they should be celebrated as part of the life of our community of faith”.
“We would welcome the opportunity for couples to convert a civil partnership into a civil marriage, however, in line with our views on religious marriage consider there should be the option of a religious ceremony as well as a civil ceremony as proposed.”
“The proposals relating to gender recognition address an injustice which undermines family life by requiring marriages or civil partnerships to be ended even if the couple wished to stay together if one of the couple wishes to change their gender”.
Vishwa Hindu Parishad UK
“Since times immemorial, the institution of marriage has been given the highest importance in Hindu society, as a pillar for creating and maintaining a healthy family, and in turn a healthy society. The scriptures recognise the importance of marriage for the procreation of, and the nurture and physical and emotional well-being of, the progeny”.
“We agree that unions of individuals should be recognised in law, but are of the opinion that the term marriage should apply to the union of two individuals of opposite gender.”
Young Friends Quakers.
“In relation to marriage we feel that the state should not be precluding same-sex couples from civil marriage. We therefore welcome the proposals that the government has made as the first steps towards marriage equality.”
112 Letter from the Chair, to Professor Christopher McCrudden, Counsel, Blackstone Chambers, (BILLS (12–13) 150) Letter from the Chair, to Professor Christopher McCrudden, Counsel, Blackstone Chambers, (BILLS (12–13) 150)
Thank you for giving evidence to the Joint Committee on Human Rights on the Marriage (Same Sex Couples) Bill. The Committee would like to explore some issues that it did not have time to address in the evidence session. I would be grateful if you could provide me with the answers to the following questions.
The Public Order Act 1986 Your advice states that individuals should be protected from the threat of criminal sanctions under the Public Order Act when discussing or criticising same sex marriage.
Q1: In your view, to what extent does section 29JA of the Public Order Act already provide this protection from criminal prosecution for individuals who express critical views of same sex marriage?
Q2: To what extent is further legislative provision necessary?
Sex and Relationship Education (“SRE”) There is concern that Catholic schools may be required to promote or endorse same sex marriage due to the requirements of current statutory guidance on SRE.
Q3: To what extent do you consider that the Department of Education, in consultation with relevant stakeholders, should review this matter and, if necessary, issue further Guidance to teachers and schools to clarify the position in relation to teaching SRE in faith schools? To what extent might your concerns about the potential implications for faith schools be adequately addressed in this way rather than through legislative provision?
Public Sector Equality Duty (“PSED”) You have expressed concern that the Bill does not address section 149 of the Equality Act 2010 concerning PSED. Your advice states that PSED could be read in such a way as to require public bodies to promote same-sex marriage, and as a result public bodies may penalise a decision by a religious organisation not to opt-in to the solemnisation of same-sex marriage. In giving evidence to the Committee, the EHRC suggested that it may be preferable to consider such concerns as part of the Government’s current review of the PSED.
Q4: To what extent would you be satisfied if the Government, in consultation with relevant stakeholders, considers this issue, and
113 Letter from the Chair, to Professor Christopher McCrudden, Counsel, Blackstone Chambers, (BILLS (12–13) 150)
any appropriate measures, as part of its overall review of the PSED?
Q5: To what extent could your concerns about the PSED be addressed through Guidance from the Government to public bodies?
30 April 2013
114 Letter from the Chair, to Professor Julian Rivers, University of Bristol (BILLS (12-13) 151) Letter from the Chair, to Professor Julian Rivers, University of Bristol (BILLS (12-13) 151)
Thank you for giving evidence to the Joint Committee on Human Rights on the Marriage (Same Sex Couples) Bill. The Committee would like to explore some issues that it did not have time to address in the evidence session. I would be grateful, therefore, if you could provide me with the answers to the following questions.
Sex and Relationship Education (“SRE”) There is concern that faith schools may be required to promote or endorse same sex marriage due to the requirements of current statutory Guidance on SRE.
Q1: To what extent do you consider that the Department of Education, in consultation with the relevant stakeholders, should review this matter and, if necessary, issue further Guidance to teachers and schools to clarify the position in relation to teaching SRE in faith schools? To what extent might the concerns about the potential implications for faith schools be adequately addressed in this way rather than through further legislative provision?
Public Sector Equality Duty (“PSED”) In your submission to the Public Bill Committee, you express concern about the possible implications of the PSED. You state that the PSED could be read in such a way as to require public bodies to promote same sex marriage, and as a result religious organisations and individual ministers may be penalised or suffer some form of detriment. In giving evidence to the Committee, the EHRC suggested that it may be preferable to consider such concerns as part of the Government’s current review of the PSED.
Q2: To what extent would you be satisfied if the Government, in consultation with relevant stakeholders, consider this issue, and any appropriate measures, as part of its overall review of the PSED?
Q3: To what extent could your concerns about the PSED be addressed through Guidance from the Government to public bodies?
30 April 2013
115 Letter from the Chair, to Mark Hammond, Chief Executive, Equality and Human Rights Commission, and Mr Robin Allen QC (BILLS (12-13) 152) Letter from the Chair, to Mark Hammond, Chief Executive, Equality and Human Rights Commission, and Mr Robin Allen QC (BILLS (12-13) 152)
Thank you for giving evidence to the Joint Committee on Human Rights on the Marriage (Same Sex Couples) Bill. I am writing to follow up on one question in relation to the legal opinion of Aidan O’Neill QC, who was instructed by the Coalition for Marriage to advise on a series of scenarios related to legalising same sex marriage. The Government published its response to this advise in two documents: A response to Aidan O’Neill QC’s legal opinion and Analysis of Aidan O’Neill QC Scenarios available at: https://www.gov.uk/government/publications/marriage-same-sex-couples-bill
The joint legal opinion published by the Commission advises that the Government’s analysis of these scenarios is correct.
Q1: Are there any areas in which the EHRC holds a different opinion from that set out in the Government analysis of the Aidan O’Neill QC scenarios?
Q2: Does the Commission wish to comment further on the human rights and equality implications of the scenarios identified in the legal opinion of Aidan O’Neill QC?
30 April 2013
116 Letter to the Chair, from Professor Julian Rivers, University of Bristol (BILLS (13–14) 002) Letter to the Chair, from Professor Julian Rivers, University of Bristol (BILLS (13–14) 002)
Thank you for your letter of 30 April. My answers to your questions are as follows:
Q1: To what extent do you consider that the Department of Education, in consultation with relevant stakeholders, should review this matter and, if necessary, issue further Guidance to teachers and schools to clarify the position in relation to teaching SRE in faith schools? To what extent might the concerns about potential implications for faith schools be adequately addressed in this way rather than through further legislative provision?
A: The legislation affects the teaching of SRE in all schools, not only faith schools. The Guidance needs revision to take account of this. However, a review of Guidance by itself is insufficient. The Guidance requires proper statutory underpinning referring to the designated religious ethos of schools (if any) as well as to the diversity of views on the nature of marriage. See further pars. 56–60 of my written submissions.
Q2: To what extent would you be satisfied if the Government, in consultation with relevant stakeholders, considers this issue, and any appropriate measures, as part of its overall review of the PSED?
Q3: To what extent could your concerns about the PSED be addressed through Guidance from the Government to public bodies?
A: The problem is not with the PSED as such, but with the use which may be made of it in defending public body decision-taking on the basis of equality and diversity policies which have an exclusionary effect on religious groups and organisations opposed to same-sex marriage. This would raise complex questions of indirect discrimination by public bodies on grounds of religion or belief. While the review is timely, and Guidance may be of use, clear statutory protection needs to be given to religious groups and organisations to ensure that their position on same-sex marriage is not relevant to public body decision-taking which affects them. See further paras 48–52 of my written submissions.
My written submissions are attached. I am happy to answer any further questions the Committee may have.
2 May 2013
117 Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A)
Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A)
1. These submissions are not concerned with the basic principle of the Marriage (Same Sex Couples) Bill. Instead, they address the question of the extent to which the Bill in its current version (23 April 2013) is compatible with the European Convention on Human Rights, and in particular the rights to freedom of religion (article 9) and non-discrimination on grounds of religion (article 14 in the ambit of article 9).
2. The question of Convention-compliance in this area is complex, since it concerns the interaction of two sets of rights: non-discrimination rights on grounds of sexual orientation, with religious liberty and religious non-discrimination rights. The legal implications of the relevant rights in both these areas are still unfolding and evolving, and when these rights come into conflict with each other, there is a range of possibilities for their reasonable reconciliation. This places a particular responsibility on Parliament to get the balance between the relevant Convention principles right, and to express that balance in clear statutory rules.
3. In balancing rights, states enjoy a certain margin of appreciation before the European Court. This is only relevant in respect of the domestic legislative process when assessing the risk that future litigation may result in an adverse European Court judgement. Neither the possibility of post-legislative judicial review, nor the likely operation of the margin of appreciation in such a context, are relevant to the primary responsibility of Parliament to ensure that in its judgement the legislation is clear and compliant with human rights.
General Principles
4. The European Court has repeatedly affirmed that:
‘freedom of thought, conscience and religion is one of the foundations of a "democratic society" within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.’103
5. In order to warrant protection, religious beliefs must reach ‘a certain level of cogency, seriousness, cohesion and importance’. However once this level has been
103 Kokkinakis v Greece (1993), para. 31.
118 Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A) attained the state is obligated to refrain from any judgment as to the value of those beliefs or their expression:
‘[The Court] recalls that, but for very exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate.’104
6. This freedom is enjoyed both by individuals and by religious groups in their own right. The Court has frequently stated that:
‘The autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 of the Convention affords.’105
7. Individual religious liberty and the autonomy of religious communities give rise to a duty of neutrality and impartiality on the part of the state in its relations with religions:
‘[...] in exercising its regulatory power in this sphere and in its relations with the various religions, denominations and beliefs, the State has a duty to remain neutral and impartial... What is at stake here is the preservation of pluralism and the proper functioning of democracy [...]’106
8. The case of Religionsgemeinschaft der Zeugen Jehovahs v Austria (2008) clearly demonstrates the distinct but related roles of articles 9 and 14 as they apply to religious groups. The failure to grant any sort of legal entity status to a religious group, thus refusing it access to basic private law rights such as the right to own property and employ people is a violation of article 9. Further privileges, such as exemption from military service, reduced tax liability, involvement in the education system and membership of public boards raise a question under article 14 in the ambit of article 9, not under article 9 considered by itself.107 Historic privileges accorded to established churches or other religious groups with an historic presence in a state can therefore give rise to a violation of the Convention if they are not available to other groups on comparable terms or if the differential treatment is not otherwise objectively and reasonably justified. For example, differential tax
104 Hasan v Chaush v Bulgaria (2000), para. 78. 105 Hasan & Chaush v Bulgaria (2000), para. 62. 106 Metropolitan Church of Bessarabia v Moldova (2001), para. 116. 107 The Government’s Note to the JCHR (February 2013), para. 2, is therefore incorrect to state that ‘in almost every case in which there is discrimination on grounds of religion there will be a breach of a substantive right, namely article 9.’
119 Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A) advantages to older churches may be justified if the sums allocated are designed to assist in the maintenance of historic buildings.108
9. Religious organisations have no independent Convention right to exercise governmental or administrative functions. But many European states do operate systems in which religious and governmental functions are intertwined, particularly in matters of family life and education. Where the state decides to allow religious marriages to have civil legal effect, the power to celebrate a dual religious/civil marriage is brought within the ambit of article 9 and must be made available to all groups on a non-discriminatory basis. The Court has recently found that the discriminatory exclusion of Reformed Churches from the power to celebrate civil marriages in Croatia violates the Convention.109 The Convention rights of individuals are also violated if they are prevented from accessing a legally-binding religious marriage by laws which discriminate on grounds of religion.110
10. Acts of conscientious objection may fall outside of the scope of article 9 if they are merely motivated by a religious belief and not a ‘manifestation’ of religion within the protection offered by the article. However, in Bayatyan v Armenia (2010), the Court departed from a long-standing line of case-law to find for the first time a right of religiously-based conscientious objection to military service. It is also implicit in the judgement in Eweida and others v United Kingdom (2012) that the refusal to conduct civil partnership ceremonies on account of religiously grounded views on same-sex relations falls, prima facie, within the protection of article 9. That case also confirmed that article 9 rights are enjoyed within the workplace, bringing Convention jurisprudence in that respect into line with other articles such as 8, 10 and 11. Rights of conscientious objection must also be granted on a non- discriminatory basis.111
11. From a Convention perspective the United Kingdom is obligated to make a civil partnership regime available to same-sex couples and is free to introduce same-sex marriage. Convention case-law on same-sex family rights is evolving rapidly. The Court has confirmed that ‘the rapid evolution of social attitudes’ warrants the conclusion that same-sex couples, along with any children in the household, enjoy ‘family life’ for the purposes of art. 8.112 Same-sex couples do not have the right to marry under article 12, but they do have the right to enter into a form of recognised partnership akin to marriage. The Convention is a ‘living instrument’, and one can envisage the possibility that a sufficiently broad European consensus will one day
108 Iglesia Bautista el Salvador v Spain (11 Jan. 1992). 109 Savaz Crkava ‘Rijek Zivota’ v Croatia (2010). 110 O’Donoghue v United Kingdom (2010): violation of article 14 in the ambit of article 9 in the fact that legislation to prevent sham marriages unjustifiable excluded marriages taking place in the Church of England. 111 Löffelmann v Austria (2009); Gütl v Austria (2009); Lang v Austria (2009). 112 Schalk & Kopf v Austria (2010), para. 93.
120 Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A) move the Court to approve a development bringing same-sex marriage within the ambit of article 12.113 In any case, this will occur in respect of any jurisdiction which introduces same-sex marriage:
‘The Court reiterates that the prohibition of discrimination enshrined in Article 14 extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require a State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide.’114
Differential access by same-sex couples to any aspect of the law of marriage will therefore fall to be considered under article 14 in the ambit of article 12.
12. In broad terms the Bill therefore fulfils a legitimate aim without being required by the Convention. However, in carrying out that aim, the United Kingdom is obligated to respect religious liberty and non-discrimination rights. Article 9 rights may be subject to limitations according to the normal proportionality test: such limitations must be prescribed by law, pursue a legitimate aim, and be necessary in a democratic society. It is worth noting that in considering whether limitations of article 9 rights are proportionate the Court has stressed the foundational importance of religious liberty to democratic society:
‘in a democratic society it may be necessary to place restrictions on freedom of religion to reconcile the interests of the various religious groups [...] However, the list of these restrictions, as contained in Articles 9 and 11 of the Convention, is exhaustive and they are to be construed strictly, within a limited margin of appreciation allowed for the State and only convincing and compelling reasons can justify restrictions on that freedom.’115
13. Statements by the Court about the breadth or narrowness of the margin of appreciation are not always easy to reconcile with each other. The Court has both insisted that differences of treatment on grounds of sexual orientation require particularly serious reasons by way of justification and that the margin of appreciation is wide in the development of same-sex relationship rights.116 One would have thought that cases raising questions both of religion and sexual orientation would warrant particularly anxious scrutiny, but the court has stated that states enjoy a wide margin of appreciation in balancing competing Convention rights.117
113 Schalk & Kopf v Austria (2010), paras. 61-62. 114 X v Austria (2013), para. 135. 115 Svyato-Mykhaylivska v Ukraine (2007), para. 137. 116 Eweida and others v United Kingdom (2013), para. 105. 117 Eweida and others v United Kingdom (2013), para. 106.
121 Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A)
14. The proposed opt-in system for religious bodies represents a difference of treatment on grounds of sexual orientation within the ambit of article 12. However, there can be no reasonable doubt that this difference is justified by the obligation to respect the article 9 rights of those bodies.
15. In evaluating the compatibility of the Marriage (Same Sex Couples) Bill with Convention rights, it is important to distinguish three areas of potential concern: (1) the extent to which the Bill sufficiently protects the right of religious organisations and their representatives to manifest their religious beliefs by deciding whether or not to opt-in or opt-out of solemnizing same-sex marriages; (2) the extent to which the Bill raises questions of discrimination on grounds of religion in the regime for the conduct of legally-binding marriages and civil partnerships by religious organisations; (3) wider concerns of religious liberty and conscience which may be raised by the legislation’s further impact on the law.
I. Protections for collective religious liberty
16. There is widespread agreement that the Bill should protect the right of religious organisations and their representatives to manifest their religious beliefs by deciding whether or not to opt-in or opt-out of solemnizing same-sex marriages. The ‘quadruple lock’ announced by the Government consists of specific regimes for the Church of England and Church in Wales, protection for religious organisations to opt-in or opt-out as they see fit, protection for individual ministers to participate as they see fit, and protection from potential challenges under the Equality Act 2010. To some extent these protections overlap; they are intended to do so to ensure robust protection.
17. It is questionable whether the Bill, as currently drafted, gives adequate expression to the ‘quadruple lock’. There are two major concerns. These are: (a) inadequate protection offered to organisations and individuals from any potential legal duty to participate in the solemnization of same-sex marriages; (b) inadequate protection offered from challenges based on equality and/or human rights law to the refusal to solemnize same-sex marriages. There are also (c) four minor limitations of religious liberty rights which require consideration.
(a) Insufficient protection from any potential legal duty
18. It is the point of the ‘quadruple lock’ that the freedom of religious organisations to opt-in or opt-out should be guaranteed by multiple safeguards. Clause 2(1) refers to the organisational decision whether or not to offer same-sex marriage in principle; clause 2(2) refers to the carrying-out of that decision in individual cases.
122 Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A)
Obligations to opt-in, or participate in, same-sex marriage may arise from a range of sources: the internal rules of the organisation, conditions of employment or office- holding, general public law principles as well as specific requirements of equality and human rights law. Clauses 2(1) and 2(2) should provide protection from any potential source of obligation.
19. In this light, the phrase, ‘a person may not be compelled to [...]’ in clauses 2(1) and 2(2) is very narrow. The natural meaning of compulsion implies the presence of obligation and coercion, or the threat of sanction, possibly even criminal sanction. The words do not seem apt to cover, for example, declaratory relief or an order quashing an internal decision of a religious body. It is not difficult to conceive of forms of action in which members of religious organisation seek to challenge the internal decision-taking or cases in which ministers of religion are subject to detriment on account of their conscientious stance.
20. European Convention case-law gives some assistance in setting the level of detriment which would amount to an infringement of article 9 rights. It is worth noting that in Thlimmenos v Greece (2000), the court found a violation of the Convention when a Jehovah’s Witness could not qualify as an accountant as a further consequence of an earlier conviction for refusing military service. Refusing access to a professional qualification is a detriment which does not, of itself, amount to ‘compulsion’. Being required to pay a church tax which is disproportionate to the civil benefits one receives in return can also amount to a violation of article 9.118 Cases on the registration of religious groups show that private law disadvantage, such as the inability to hold property in a corporate name, or indeed any biased interference by the state in the life of the organisation can amount to a violation of article 9.119 Eweida’s case shows that not only the loss of a job, but being offered an alternative position on identical pay, can amount to a violation of article 9. In short, forms of detriment which fall short of ‘compulsion’ may give rise to a violation of article 9 rights.
21. Other statutory examples of similar sections are also much broader. The Abortion Act 1967, section 4, states that ‘no-one shall be under any duty whether by contract or by any statutory or other legal requirement’. In relation to Sikhs and safety helmets, the Employment Act 1989 disapplies any ‘requirement’ which would be imposed ‘by virtue of any statutory provision or rule of law’. In relation to shop workers opting-out of Sunday working, the Employment Rights Act 1996 states that they have a right not to suffer ‘detriment’. The Civil Partnerships (Approved Premises) Regulations use the idea of ‘obligation’ instead: “Nothing in these Regulations places an obligation on a proprietor or trustee of religious premises to
118 Darby v Sweden (1990) as subsequently interpreted in Bruno v Sweden (2001) and Lundberg v Sweden (2001). 119 E.g. Metropolitan Church of Bessarabia v Moldova (2001).
123 Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A) make an application for approval of those premises as a place at which two people may register as civil partners [...] ” (Reg. 2B).
22. The wording of such legislation seems much more appropriate to ensure protection from all forms of action, whether private or public. If their liberty is to be fully protected, neither religious organisations, nor individual ministers, should be under any duty, whether by contract or by any statutory or other legal requirement to offer or participate in same-sex marriages in the ways identified in clauses 2(1) and 2(2). Even this does not extend to cover all forms of imaginable detriment, and it may be that the clauses need to be drafted even more broadly to cover other likely problems which the Bill gives rise to (see, further, paras. 48–52 and 54 below).
23. Advice given to the Equality and Human Rights Commission suggests that this principle should not be applied to the relationship between religious organisations and their ministers.120 If a religious organisation decides to opt-in, it is not clear that the individual dissenting minister should continue to have the right at law to refuse to participate. It is true that where individuals have come into conflict with the religious organisations by which they are employed, or of which they are members, the Convention organs have typically upheld the collective freedom of the organisation to act according to its beliefs and ethos on the grounds that the rights of the individual are secured by the right of exit.121 However, recent cases have affirmed that just as individuals enjoy Convention rights in relation to secular employers, so they enjoy such rights in relation to religious employers.122 There may be a difference between clergy and laypeople here.123 In spite of this caveat, it is almost certainly correct that a religious organisation has a right to insist on conformity to its doctrine and ethos by its ministers, and that the law would be vulnerable to a Convention claim should a religious organisation wish to exercise that right.124 However, the Government has also indicated that no religious organisation wishes to do so.125 The position is therefore similar to other ‘hard- wired’ opt-outs such as those relating to the Church of England and the Church in Wales.
(b) Insufficient protection from challenges based on equality and/or human rights law
24. In accordance with the ‘quadruple lock’, clause 2(5) overlaps with clauses 2(1) and 2(2). It could be argued that it is direct discrimination on grounds of sexual orientation contrary to the Equality Act 2010 s. 29 to restrict marriage and related
120 Robin Allen QC and Jason Coppel, Joint Advice to the EHRC (11 Feb. 2013), paras. 32-38. 121 Hautaniemi v Sweden (11 April 1996). 122 Schüth v Germany (2010); See also Obst v Germany (2010); Siebenhaar v Germany (2010). 123 Fernandez Martinez v Spain (2012), para. 83. 124 The Government’s view in its Note (February 2013), para. 38, is therefore incorrect. 125 Answers to Questions, p. 2.
124 Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A) services to other-sex couples. Clause 2(5) recognises the potential equality argument. It must be read against the background of Equality Act 2010 sched. 23 para. 2 which allows organisations relating to religion or belief to discriminate under certain conditions on grounds of religion or belief, or sexual orientation, in the provision of goods and services, the disposal of premises, and the terms of association. In relation to sexual orientation, these exceptions only apply if necessary to comply with the doctrine of the organisation, or to avoid conflict with strongly held convictions of a significant number of the religion's followers. Schedule 23 para. 2 does not apply to the exercise of public functions and it does not apply to individuals.
25. Clause 2(5) adds to the protection offered by schedule 23 para. 2 by ensuring that individuals and organisations refusing to participate in same-sex marriage ceremonies are not subject to section 29 Equality Act 2010. However as currently drafted it offers no protection to religious organisations in their internal decision- taking whether or not to opt-in or opt-out. If that decision-taking process is an exercise of a public function, then Schedule 23 para. 2 offers no protection either.
26. The Government has taken the view that the conduct of legally-binding marriages is not a public function. This is open to serious doubt. The administration of marriages having civil effect is a textbook example of a public or governmental function carried out by religious bodies. This was stated obiter by four of the five members of the House of Lords giving judgment in Aston Cantlow v Wallbank.126 An authorised minister of religion stands in the place of a registrar when conducting a marriage, and is thus a state official for these purposes. The European Court also tends to assume that the conduct of marriages with civil legal effect is a governmental or administrative function.127 The better view is that in conducting legally-binding marriages, religious organisations are exercising a public function on behalf of the state.
27. It is a nice question whether the decision whether or not to extend one’s power to marry people by taking on a new power to marry two people of the same sex is itself an exercise of a public function. Clause 2(5) needs to be drafted to prevent that question being litigated at the cost of religious organisations. There would appear to be no loss in ensuring that the exemption from the operation of section 29 Equality Act extends to the opt-in decision-taking process (referred to in clause 2(1)) as well as the actual conduct of marriages (referred to in clause 2(2)).
28. The question of whether the conduct of marriages is a public function arises also in the context of the Human Rights Act 1998. Religious bodies become ‘hybrid’ to
126 [2004] 1 A.C. 546 per Lords Nicholls at [13], Hobhouse at [86], Scott at [130] and Rodger at [170]. 127 See Serif v Greece (1999), paras. 50-52.
125 Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A) the extent that they marry people. The terms on which marriage is offered to ‘a section of the public’ is therefore subject to the obligation under Human Rights Act 1998, s. 6 (1), to be carried out in conformity with Convention rights. This raises several thorny and unresolved questions of human rights law—not only the ambit of the public function test, but the interrelationship with article 9 rights in the conduct of public functions by religious bodies. The risk of litigation is real. Nowhere in clause 2 is the potential Human Rights Act 1998 argument recognised. Clause 2 needs supplementing with an exceptive clause similar to 2(5) but referring to any obligation arising under the Human Rights Act 1998. Again, there would seem to be no loss in clarifying that there shall be no human rights based challenge to the decision of a religious organisation or its representatives not to offer same-sex marriages.
(c) Four minor religious liberty concerns
29. Clause 8 allows the Church in Wales to ‘opt in’ to the celebration of same-sex marriages if it should resolve to do so. It does so by conferring a power on the Lord Chancellor to make provision by order. There was discussion in Committee about whether the Lord Chancellor should be under an obligation (‘shall’ not ‘may’ make an order). Such wording would clarify what is arguably a legal requirement under the Convention: a Government which refused to allow one specific religious body to celebrate same-sex marriages while in general making this possible would be discriminating in the ambit of articles 9, 8 and potentially 12. This should be made clear on the face of the legislation.
30. Clause 8(3) grants the Lord Chancellor a power to amend primary legislation to the end of enabling the Church in Wales to celebrate same-sex marriages. Such legislation could conceivably include Part II Marriage Act 1949 (marriage by banns), and may have the effect of weakening the ‘lock’ of clause 1(2) in relation to the Church of England. It would be preferable not to confer such a wide-ranging power at all, or at least to clarify that such a power should not be exercised to affect the position in law of any other religious body or denomination.
31. Under clause 9 a civil partnership may be converted into a marriage. By clause 9(7)(b) the conversion is deemed to be effective from the date of formation of the partnership. Thus it will be possible for a same-sex couple to enter into a civil partnership on religious premises, and subsequently convert their partnership into a marriage. In law, they will be treated as having married on the religious premises. This could create a difficulty for a religious body which is prepared to celebrate civil partnerships but not same-sex marriages. This point becomes more pressing if, as will be argued below, it is a requirement of Convention principle to open up civil partnerships fully to formation by religious ceremony. It exposes a tension between the religious characterisation of the relationship and the subsequent retrospective
126 Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A) legal characterisation of that relationship. If the freedom of the religious organisation is to be fully protected, there ought to be a narrowly-tailored exception preventing the conversion of civil partnerships which were concluded on religious premises and where the religion concerned is not prepared to celebrate same-sex marriages from having retrospective effect. The conversion should only have prospective effect.
32. Under clause 12 and schedule 5 an opposite-sex couple may marry by a religious ceremony according to a religion which does not recognise same-sex marriage. One party may undergo reassignment surgery and the other party consent to the continuance of the relationship as a marriage. According to new s.11A(2) the continuity of the marriage is not affected. Once again this exposes the tension between religious and legal characterisations of the relationship. If one takes the logic of the Government’s original argument that there is a difference between ‘civil marriage’ and ‘religious marriage’ seriously, and if the integrity of the religious body’s conception of marriage is to be fully respected, the ‘religious marriage’ in this case ought to be dissolved as under current law and the couple required to enter into a civil partnership or a new same-sex marriage by civil ceremony. However, the Government’s distinction is a spurious one. There is no obvious solution to the tension except for the religious organisation to take the view that (from a religious point of view, although not a legal one) the marriage has been ended. The limitation of liberty here seems unavoidable.
II. Potential discrimination in the arrangements for solemnizing marriages
33. The Bill creates a distinction between the arrangements for religious groups wishing to opt-in to same-sex marriage and those wishing to offer civil partnership ceremonies. This may not be Convention-compliant. The Bill also builds on the existing arrangements for the solemnization of marriages by religious organisations, arrangements which appear increasingly problematic from the perspective of Convention rights.
34. As introduced, the Civil Partnership Act 2004 did not allow for formation by way of religious ceremony or on religious premises. It was conceived as a purely secular arrangement which individuals might choose to mark by a (legally irrelevant) religious ceremony if they wished. That has now been amended to allow for formation on religious premises, but still with constraints on the religious elements of the ceremony. Under Civil Partnership Act 2004, s. 2(5), it is still the case that no religious service is to be used while the registrar is officiating at the signing of the document. Religious premises may now be registered, which allows for a limited form of religious involvement. The key difference with secular ceremonies is that whereas for secular ceremonies, the introduction, any interval and conclusion to the
127 Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A) proceedings must also be entirely non-religious, on religious premises only the proceedings themselves need to be non-religious.128
35. The introduction of same-sex marriage renders this arrangement problematic. For as long as the law draws a clear distinction between marriage and civil partnership as related but different forms of relationship, it is possible to justify the differences between the degree of involvement of religious groups. The rationale for allowing religious groups to solemnize marriages could be found in their historic and ongoing role in the lives of religious adherents. The formation of a new type of legal relationship (civil partnership) could be seen as a creature of secular government which was discontinuous with that historic role of religious organisations. Any religious ceremony need only be offered as a supplement without legal significance. This distinction is reinforced by the European Court’s consideration of civil partnership under article 8, not article 12.
36. Once same-sex marriage is created, with a right of religious organisations to opt- in to offering it, the justification for the necessarily non-religious nature of civil partnership collapses. The partial provision made by way of designation of premises only highlights the incoherence. The new regime will therefore create a distinction between religious organisations which are willing to offer same-sex marriage and those which would only be prepared to offer civil partnerships but not same-sex marriages. It is at least possible that some religious organisations may be willing to offer civil partnership ceremonies but not marriages, since the arguments for some legal recognition of civil partnerships are different from those for treating a same-sex relationship as identical to marriage. It is hard to see any objective justification for this difference of treatment.
37. The Bill also highlights a broader question of the Convention-compatibility of the arrangements by which different religious groups solemnize marriages. The Bill is closely modelled on the current arrangements, and therefore re-enacts the historic discrepancies within those arrangements. The current law contains broad distinctions between four groups: (a) Church of England and Church in Wales; (b) Jewish religion, Society of Friends; (c) other religious denominations; (d) religion or belief groups who do not ‘worship’. Jews and Quakers may marry their adherents with fewer administrative restrictions than other religious denominations. The registered premises and authorised person model which applies for other religious denominations may be particularly hard for Muslims to comply with. At least, this is one possible factor in the substantially lower registration rate of mosques. The requirement that premises be first registered as places of public religious worship
128 See, by implication, Sched. 2 para. 11(4) as compared to Sched. 2A para. 15, Marriages and Civil Partnerships (Approved Premises) Regulations 2005/3168 as amended by the Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011/2661.
128 Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A) has the effect of excluding religious groups which do not worship.129 The complete exclusion of non-religious belief groups who wish to have the power to marry their adherents also seems increasingly arbitrary.
38. In short, the historic compromises and arrangements entered into as the celebration of marriage was regularised and pluralised in the 18th and 19th centuries have been looking increasingly problematic from the perspective of Convention obligations of non-discrimination in the relationship between the state and religious groups. Such historic residues are common across Europe, but over time they are coming under increasing scrutiny and pressure from non-mainstream groups.130
39. The Bill re-enacts and thus strengthens those problematic arrangements, instead of taking the opportunity to develop a more uniform model for the interaction of state and religions in this area. Such a model might amount to complete separation,131 or, more plausibly, a single celebrant-based approach with uniform civil preliminaries.132 As well as securing a non-discriminatory regime for state-religion collaboration in marriage it would also be likely to reduce the risks of litigation for religious groups. If the Government had engaged in fuller pre-legislative consultation, these options could have been properly explored. They still warrant fundamental reconsideration of the Bill in its wider legal context. By contrast, if the Bill is enacted in broadly its current form it is all the more important that its reliance on the current distinctive model of state-religion collaboration is combined with robust protection for religious liberty and non-discrimination rights.
III. Wider questions of religious liberty and conscientious objection
40. The Bill may also indirectly cause new restrictions on freedom of thought, conscience and religion. For the best part of a decade, equality law has prevented distinctions being drawn between civil partnership status and marriage status in public and commercial life. The case-law has already given examples of individuals who have conscientious objections to their legal obligations in this respect. However, the introduction of civil partnership status in 2005 did not imply that civil partnership and marriage were morally and legally indistinguishable. This Bill inevitably implies the stronger claim that same-sex partnerships are morally indistinguishable from marriage. The pool of potential conscientious objectors is thereby made much greater.
129 This is currently subject to legal challenge: R (Hodkin) v Registrar General of Births, Deaths and Marriages [2012] EWHC 3635 (Admin). 130 The eventual collapse (from a Convention point of view) of Austria’s restrictive approach to the registration of religious organisations only came in 2008. 131 As envisaged in Marriage Act 1949, s. 46. 132 As proposed by the Government in 2002: Civil Registration: vital change (Cm 5355).
129 Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A)
41. The Government insists that the belief that marriage should be between a man and a woman is ‘mainstream, reasonable and entirely lawful’.133 Equally, there are those who think that such a view is discriminatory. Should the Bill be passed, the belief that marriage is between a man and a woman will not be the view of the law. It is entirely possible that within a few years, under the influence of the new law, it will be seen as that of a minority: unreasonable and incompatible with the law. In its 2013 Annual Report, the US Commission on International Religious Freedom notes concerns about limitations on individual freedom in the United Kingdom arising from police discretion and employment practices in respect of diverging views on homosexuality.134 That divergence, and the attendant risks, are only likely to increase.
42. It is one thing to identify a general risk to freedom of thought, conscience and religion, another to address its legal sources and provide appropriate legal remedies. The Government has taken the view that—with the exception of those directly involved in solemnizing same-sex marriages—the existing legal protections for individuals and groups arising from human rights and equality legislation are sufficient, and sufficiently clear. There are two reasons for thinking that this view may be overly optimistic. First, Convention rights are in tension, and there will be a range of views as to how to balance them in any specific context. Secondly, previous experience with case-law concerning conscientious objection clauses show that courts are unwilling to go beyond the ordinary meaning of the legislative rules.135 If no specific provision is made, courts—both domestic and European—will be slow to develop additional protections for groups and individuals. Protection for conscientious objection can only be guaranteed where detailed legislative provisions are in place.136
(a) Protection against viewpoint discrimination
43. It is a requirement of freedom of religion or belief in the wider sense that one should be legally protected from the imposition of burdens and detriments simply on account of the views one holds, and expresses, or the association one might have with others holding and expressing those views. In a free society, one should not have to suppress one’s views to avoid detrimental action by others. Indeed, religious organisations are encouraged by the Charity Commission to be explicit:
133 Answers to Questions raised by the JCHR (18 April 2013), p. 4. 134 USCIRF is an independent, bipartisan U.S. federal government commission that monitors the universal right to freedom of religion or belief abroad. It makes policy recommendations to the President, the Secretary of State, and Congress. The 2013 Annual Report can be found at http://www.uscirf.gov/reports-and-briefs/annual-report.html (accessed 30 April 2013). References to UK at pp. 284-5. 135 See, for example, R v Salford AHA ex parte Janaway [1989] AC 537; Doogan v Greater Glasgow and Clyde Health Board [2012] SLT 1041. 136 See, by analogy, the provisions concerning Sikhs wearing safety helmets on construction sites in Employment Act 1989, ss. 11 and 12.
130 Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A)
‘Organisations whose aims include advancing religion are encouraged to be open and transparent about views presented by the organisation that, in a secular context, could be viewed as discriminatory. This is not to say that these views cannot be held, but that charities whose aims include advancing religion should be open about their views so that members of the public are able to make an informed choice about whether they attend or support organisations holding those views.’137
44. Public order law may be applied in a way which is excessively restrictive of freedoms of religion and expression. The judgement of Lord Coleridge CJ in R v Ramsay & Foote that ‘if the decencies of controversy are observed even the fundamentals of religion may be attacked’ is generally praised for moving the criminal law of blasphemy away from a content-based test.138 It would be extremely regrettable if public order law, or other areas of law, came to be informed by a new ideology resulting in content-based restrictions on ‘decently controversial’ discussion of questions either of religion or of sexuality and sexual ethics. The risk that this might happen should not be dismissed as fanciful.
45. In the context of the recent offence of incitement to hatred on grounds of sexual orientation, a precautionary section was added to the Public Order Act 1986 stating that ‘In this Part, for the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred.’139 This precautionary section is restricted to Part IIIA, which itself creates a very narrow offence of ‘threatening words or behaviour’ (excluding ‘abusive’ and ‘insulting’ words or behaviour) ‘intended to stir up hatred’ (excluding ‘likely to’).
46. The precautionary section provides no protection from the much broader s. 5 offence of using threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. Section 5 has warranted the police in taking action against fairly mild expressions of opinion, and courts may be unwilling to constrain that discretion.140 The welcome recent removal of the word ‘insulting’ from the law has a gone a considerable way to addressing widespread and growing concerns about its excessive use.141 However, in the light of the view reportedly expressed by the current DPP, Keir Starmer QC, that all previous convictions could equally well be characterised as ‘abusive’142 there is still a need for specific Guidance in this area.
137 Supplementary Guidance on Public Benefit and the Advancement of Religion, para. E3. 138 (1883) 15 Cox C.C. 231. 139 Public Order Act 1986, s. 29JA. 140 See, e.g., Hammond v DPP [2004] EWHC 69 (Admin). 141 Crime and Courts Act 2013, s. 57. 142 Reported in an article by Lord Dear, Telegraph, 10 December 2012.
131 Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A)
47. It may be that the more major threat of viewpoint discrimination arises from over-zealous employers. The recent case of Smith v Trafford Housing Trust143 shows that employers may treat even the private expression of ‘discriminatory views’ as sufficient to ground disciplinary action against employees. While employment law provides some protection, not least from discrimination on grounds of religion or belief, the Bill may indirectly appear to give support to such action. Clear Guidance is needed on the proper design and reach of workplace equality and diversity policies as well as the extent to which employers may restrict speech and association in this area.
(b) The Public Sector Equality Duty (PSED)
48. The central difficulty in balancing religious liberty and homosexual equality rights is the boundary between (i) cases of unlawful discrimination against individuals and groups on account of their religious or belief-based views on matters relating to sexual orientation; and (ii) cases of justified indirect discrimination, where the adoption of a legitimate policy by a private or public body creates difficulties of conscience for individuals and groups, but is arguably proportionate in the context.
49. This boundary is particularly problematic in the public sector, since as an organ of the state a public body may consider itself bound to uphold the new view of marriage. In Ladele’s case, the European Court accepted that that Islington’s policy of being ‘an employer and a public authority wholly committed to the promotion of equal opportunities and to requiring all its employees to act in a way which does not discriminate against others’ was a legitimate one. It should be noted that this policy was not simply directed to guaranteeing the effective protection of equality rights by prospective civil partners. It was directed to securing the full adherence of every employee to the authority’s equality policy. The public sector equality duty includes an obligation to have due regard to the need to ‘foster good relations’ by ‘tackling prejudice’ and ‘promoting understanding’.144 This could easily be read in such a way as to authorise public bodies actively to promote the new view of marriage—and require their employees to do so as well. Recent cases have emphasised the rigour with which the PSED must be exercised.145
50. Public bodies are also bound not to act incompatibly with Convention rights.146 In this respect, the Human Rights Act 1998 gives a statutory basis to the decision of the House of Lords in Wheeler v Leicester City Council.147 However, the significance of the human rights framework to the PSED should not be overstated. Even in the period immediately after Wheeler was decided, a decision by Lewisham LBC to cease
143 [2012] EWHC 3221 (Ch). 144 Equality Act 2010, s. 149. 145 Brown v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin). 146 Human Rights Act 1998, s. 6(1). 147 [1985] A.C. 1054.
132 Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A) trading with Shell only failed a legal challenge because the proper motive of improving race relations in the area was mixed up with the improper motive of changing Shell’s policy towards South Africa.148 Relevant human rights will now include a duty of non-discrimination on grounds of sexual orientation within the ambit of the right to marry. It is true that the PSED does not permit conduct which would otherwise be prohibited by the Act.149 But cases of conscience are likely to present as potential indirect discrimination on grounds of religion or belief involving the application of a restrictive ‘equality’ policy by a public body. The existence of the PSED would be most likely to figure as part of the justification for the policy, and questions of balancing abstract rights (i.e. litigation) would be hard to avoid.
51. The problem is thus not with the PSED as such. Rather, there is a specific problem in which it could play a part: what policies may public bodies lawfully adopt to promote the new view of marriage, in a social context in which that view is contested as a matter of religion and conscience? For example, religious organisations might hire premises from a public body, or might offer public services in partnership with a public body. In the former case, public authorities are under duties of non-discrimination on grounds of religion or belief. The adoption of a policy requiring all groups using public space to adhere to equality standards which are only appropriate for the public body itself ought to be straightforwardly discriminatory, although even here there is room for argument. By contrast, where the religious body provides a public service in partnership with a public body, requiring adherence to an equality and diversity policy is clearly legitimate. The question then becomes how to prevent the creation of overbroad policies by public bodies which pay insufficient regard to the ethos of the religious group and produce unnecessary tension, exclusion and litigation.
52. The limits of what a public body can lawfully require of religious organisations by way of fidelity to a public ethos of ‘non-discrimination’ are quite unclear and need urgent clarification. This could be addressed in part in the course of the overall review of the PSED, as well as in the formulation of Guidance. But, as indicated above, the real problem is the risk of potentially complex litigation around indirect discrimination against religious organisations in the context of equality policies. This should be addressed on the face of the Bill, either by broadening the protections of clauses 2(1) and 2(2) to catch all detrimental action on grounds of the organisation’s position on same-sex marriage, or by way of a separate clause ensuring that that position is never relevant to a public authority’s decision-taking.
(c) Reasonable accommodation
148 R v Lewisham LBC ex parte Shell [1988] 1 All E.R. 938. 149 Equality Act 2010, s. 149(6).
133 Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A)
53. The potential problems for individual employees, or for that matter, service providers, is part of a much wider debate about the extent to which ‘reasonable accommodation’ on grounds of religion or belief is already—or should become— part of the law.150 It should be noted that the decision in Eweida effectively requires a policy of reasonable accommodation on the part of employers. Once one accepts that individual and groups have article 9 rights in the workplace, restrictions require justification by reference to the doctrine of proportionality. In other words, they must be the least necessary to achieve their legitimate aim and represent a fair balance of interests. The Government has decided that registrars should not benefit from the specific protection of clause 2(2), which leaves them in the same position as other employees. From the perspective of Convention rights, the adoption of a requirement that all registrars should be willing to carry out same-sex marriage ceremonies is almost certainly within the margin of appreciation granted by the European Court in Ladele. That does not mean the balance is correct from the perspective of human rights and employment equality law more generally. The failure to provide any specific protection for dissenting registrars is regrettable if one takes as one’s starting point the principle that public offices should be as open as possible to everyone. Reasonable accommodation is, for example, the approach represented by the Lord Chancellor (Tenure of Office and Discharge of Ecclesiastical Functions ) Act 1974, which clarified doubts about whether a Roman Catholic could hold that office. Given that reasonable accommodation incorporates a test of practicability, it is not clear what purpose is served by a blanket exclusion.
54.As far as chaplains in public institutions are concerned, the balance clearly lies in favour of accommodation. The narrow compulsion test set out in clause 2(2) does not protect a minister whose chaplaincy application is refused, or position terminated, on grounds of his or her opposition to same-sex marriage. It would be hard to describe this as ‘compulsion’ to participate in same-sex marriages. Such a detriment would not even impose an unlawful ‘duty to participate’. Depending on the facts of the case, this may be in breach of equality law requirements, but, in the spirit of the ‘quadruple lock’, it would be better to address this risk specifically, either by ensuring expressly that no person (other than a registrar) shall suffer any detriment on grounds of non-participation in same-sex marriage. Once again, tricky questions about the interplay between indirect discrimination and public body equality policies need clear resolution on the face of the Bill.
55. Religious organisations benefit from exemptions from equality law requirements in relation to goods and services, use of premises and terms of association under Sched. 23 para. 2. As Hall v Bull [2012] EWCA Civ 83 confirms, organisations with commercial objects and individuals do not benefit from any equivalent exemption. Again, from a Convention rights point of view the basic structure of analysis is given
150 Overview of recent developments and debate in Katayoun Alidada, ‘Reasonable Accommodations for religion and belief’ [2012] E.L. Rev. 693.
134 Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A) by proportionality, and it is unlikely that the application of uniform obligations of non-discrimination in a commercial context would be found incompatible by the Court.151 However, the case of Hall v Bull has the additional dimension of affecting article 8 rights to privacy and home, and it is at least arguable that the balance of Convention rights requires an exception for those offering services to the public in their own home. The judgement of the Supreme Court may shed further light on this.
Education
56. Education in general—and religious/moral education in particular—is highly complex from a human rights perspective. It represents a meeting point between the rights of children, their parents or guardians,152 teachers, private (often religious) organisations,153 as well as the legitimate interests of the state. The European Court has recognised this complexity by according states a considerable degree of discretion in managing divergent religious and ethical views. The basic principles are that knowledge should be conveyed in an ‘objective, critical and pluralistic manner’ and that ‘indoctrination’ must be avoided.154 Teaching about one religion in a way which excludes reference to a minority strand within that religion which is represented in society and the school is incompatible with the Convention.155 Exemptions from aspects of school life must be practically workable if they are to mitigate an imbalance in the curriculum.156
57. Faith schools have a designated ethos which may affect a number of aspects of school life, including religious education, sex and relationships education and the curriculum more broadly. Curriculum content is expressly excluded from the reach of equality law.157 Concerns have been expressed that a future Secretary of State might use the power under s. 403 Education Act 1996 to issue guidance requiring the promotion of same-sex marriage. This might be of concern not only to faith schools wishing to teach in conformity with their religious precepts, but also to parents whose children attend maintained schools without any designated ethos. It should be noted that the statutory obligation of governing bodies and head teachers is to ‘have regard’ to this guidance, not to follow it in all respects, and that as well as ensuring that pupils receiving sex education ‘learn the nature of marriage and its importance for family life and the bringing up of children’ they are also ‘protected from teaching and materials which are inappropriate having regard to [their] age and [...] religious and cultural background’.
151 See Kustannus v Finland (1996). 152 Article 2 First Protocol ECHR is lex specialis to article 9 in this respect. 153 Verein Gemeinsam Lernen v Austria (1995). 154 Kjeldsen et al. v Denmark (1979-80), para. 53. 155 Hasan and Eylem Zengin v Turkey (2008). 156 Folgerø v Norway (2008). 157 Equality Act 2010, s. 89(2).
135 Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A)
58. The current Guidance states that:
‘[...] pupils should be taught about the nature and importance of marriage for family life and bringing up children. But the Government recognises ... that there are strong and mutually supportive relationships outside marriage. Therefore pupils should learn the significance of marriage and stable relationships as key building blocks of community and society. Care needs to be taken to ensure that there is no stigmatisation of children based on their home circumstances.’158
The concern to teach sensitively about married and non-married relationships is balanced by other paragraphs which more directly promote marriage as currently defined:
‘[Sex and relationship education] is about the understanding of the importance of marriage for family life, stable and loving relationships, respect, love and care. It is about the teaching of sex, sexuality and sexual health. It is not about the promotion of sexual orientation or sexual activity—this would be inappropriate teaching.’159
The rights of parents in this area are expressly acknowledged:
‘Sexual orientation and what is taught in schools is an area of concern for some parents. Schools that liaise closely with parents when developing their sex and relationship education policy and programme should be able to reassure parents of the content of the programme and the context in which it will be presented.’160
59. The change in the legal definition of marriage introduces an element of ambiguity into the Guidance. The Guidance therefore needs reviewing to guide all schools— not just faith schools—on how to treat the diversity of views as to what marriage, as the preferred form of sexual relationship, actually is.
60. In this respect the Guidance also needs statutory underpinning. Given the likelihood that ‘marriage’ for the purposes of section 403 will be understood according to its new legal definition, the section should be clarified in two respects. First, it should be expressly stated that the designated ethos of a school is relevant to the appropriateness of teaching and materials. Secondly, the statute should expressly recognise that ‘the nature of marriage’ is now a matter of social controversy, by requiring the Secretary of State in issuing such guidance to have due regard for divergent views on the nature of marriage. This would ensure that
158 Sex and Relationship Education Guidance, DfEE 0116/2000, para. 4. 159 Para. 9. 160 Para. 1.31.
136 Written evidence submitted by Professor Julian Rivers (BILLS (2013–14) 002A)
‘marriage’ for the purposes of future educational guidance could not be read straightforwardly to refer only to the new legal definition. If, as the Government maintains, the view that marriage between a man and a woman is ‘mainstream, reasonable and entirely lawful’, that basic stance should be expressly represented in the statute.
61. Parents and guardians have the right to exempt their children from sex education.161 Exemptions are not an ideal way of securing rights of conscientious objection, but are nevertheless a useful safety valve should such teaching become unbalanced or inappropriate. The OSCE/ODIHR Guiding Principles on Teaching about Religions and Beliefs in Public Schools (2007) state that conscientious opt-outs are ‘precisely what the right to freedom of religion or belief (and the parallel right of parents to raise their children in accordance with those beliefs) is intended to protect.’162 It is worth noting that problems from a Convention rights point of view may arise if controversial matters of sex education are spread throughout the curriculum in such a way as to make the right of parental withdrawal unworkable.
62. As far as teachers are concerned, s. 59 (2) School Standards and Framework Act 1998 provides a detailed conscience clause in matters of religion:
‘No person shall be disqualified by reason of his religious opinions, [...] from being a teacher at the school, or from being employed or engaged for the purposes of the school otherwise than as a teacher [...] No teacher at the school shall receive any less remuneration or be deprived of, or disqualified for, any promotion or other advantage [...] by reason of his religious opinions [...]’
A Convention-compliant interpretation of that section presumably already includes religiously-grounded opinions on questions of human sexuality within the meaning of ‘religious opinions’. This point should be made explicit.
63. One can envisage potential problems with individual teachers who object to the content of teaching programmes or materials they are required to use. Assuming that the selection of materials has been made properly and in accordance with the school’s ethos, policy and the Secretary of State’s guidance, this raises questions of reasonable accommodation not essentially different from those considered above.
2 May 2013
161 Education Act 1996, s. 404. 162 http://www.osce.org/odihr/29154 (accessed 30 April 2013), at 71.
137 Supplementary written evidence from Professor Christopher McCrudden, Counsel, Blackstone Chambers (BILLS 13–14) 003) Supplementary written evidence from Professor Christopher McCrudden, Counsel, Blackstone Chambers (BILLS 13–14) 003)
1. Dr Hywel Francis, the Chair of the Joint Committee on Human Rights, wrote to me on the 30th April 2013, posing various questions and asking whether I could provide answers to these questions by the 8th May 2013. In this Supplementary Evidence I have identified the questions asked, followed by my response. I would, of course, be willing to address any further questions that the Committee may wish me to consider.
Public Order Act 1986
‘Q. 1: In your view, to what extent does section 29JA of the Public Order Act already provide this protection from criminal prosecution for individuals who express critical views of same sex marriage.
Q. 2 To what extent is further legislative provision necessary.’
2. Section 29B(1) provides: ‘A person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up [...] hatred on the grounds of sexual orientation.’ Section 29AB provides that ‘“hatred on the grounds of sexual orientation” means hatred against a group of persons defined by reference to sexual orientation (whether towards persons of the same sex, the opposite sex or both).’
3. There are, therefore, several safeguards against the offence abridging the right to freedom of expression. As the Joint Parliamentary Committee on Human Rights said, in their scrutiny of the 2008 Act said ‘[...] the new offences [...] are narrowly defined so as to apply only to threatening words or behaviour intended to incite hatred against people on the basis of their sexuality.’
4. In addition, Section 29JA provides that ‘for the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred.’ Section 29L(1) provides that ‘No proceedings for an offence under this Part may be instituted [...] except by or with the consent of the Attorney General.’
5. There are two different issues. The first is whether there is a risk that the substantive offence would be interpreted in this way. My advice to the CBCEW was that there is a danger that the offence established in section 29B(1) may be considered in practice to restrict the expression of views that are hostile to same sex marriage.
138 Supplementary written evidence from Professor Christopher McCrudden, Counsel, Blackstone Chambers (BILLS 13–14) 003)
6. The issue of what is ‘threatening’ is potentially quite subjective, and whether someone has an intention to ‘stir up hatred’ would be based on inference for surrounding context. There would, therefore, be a risk that the subjective assessment of a particular person’s publicly stated opposition to same sex marriage might be interpreted in context as ‘threatening’ and ‘intended to stir up hatred.’
7. The persistent analogy by some supporters of same sex marriage that those who oppose it are homophobic and that opposing a change in the law permitting same sex marriage is equivalent to opposing the abolition of miscegenation laws in South Africa or the southern states of the United States makes a view more likely in the future that expressing opposition to same sex marriage is ‘threatening’ and ‘intended to stir up hatred’.
8. The second issue is whether, if there is a risk that it may be so interpreted, the protections provided are sufficient to safeguard against that risk. If section 29JA is a necessary protection at all, it should be made clear in that it covers discussion of same sex marriage. At the moment, it only covers ‘the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices.’ It is not at all clear that opposition to same sex marriage would be interpreted as being covered by ‘the discussion or criticism of sexual conduct or practices’. Not to include it incite further uncertainty as to what it covers.
9. During Committee stage in the Commons, the responsible Minister resisted an amendment. He stated: ‘I am happy to put on record [...] that the criticism of marriage of same-sex couples could never in itself fall foul of the offence.’163 It would be desirable, to further ensure the protection of freedom of expression, if this assurance were to be made clear on the face of the Bill. If this is not done, then the second best approach would be to ensure that, at the very least, this assurance is incorporated in revised guidance by the Crown Prosecution Service.
Sex and Relationship Education
‘Q 3: To what extent do you consider that the Department of Education, in consultation with relevant stakeholders, should review this matter and, if necessary, issue further Guidance to teachers and schools to clarify the position in relation to teaching SRE in faith schools? To what extent might your concerns about the potential implications for faith schools be adequately addressed in this way rather than through further legislative provision?’
10. I do not consider that concerns about the potential implications for faith schools would be adequately addressed by the Department of Education issuing further
163 Bill Committee, Eighth Sitting, 28th February 2013.
139 Supplementary written evidence from Professor Christopher McCrudden, Counsel, Blackstone Chambers (BILLS 13–14) 003)
Guidance to teachers and schools to clarify the position in relation to teaching SRE in faith schools.
11. This is because, as I argued in paragraph 110 of my legal advice to the CBCEW, the Bill changes the definition of ‘marriage’ in section 403 of the Education Act 1996. Clause 11(1) of the Bill is quite clear. This provides that ‘In the law of England and Wales’ which will include section 403, ‘marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples.’ The ‘nature of marriage’ in section 403 must, therefore, be read subject to this new provision, a view that John Bowers QC also adopted in his advice to the Coalition for Marriage. This interpretation is strengthened by the provisions of Clause 11(2) that ‘The law of England and Wales (including all England and Wales legislation whenever passed or made) has effect in accordance with subsection (1)’.
12. The problem for faith schools, therefore, lies in the legislation. Existing Guidance by the Secretary of State will be interpreted, and any future Guidance would be bound to reflect, this new legal position. My advice continues to be further legislative provision on the face of this Bill is necessary to address these concerns.
Public Sector Equality Duty
‘Q. 4: To what extent would you be satisfied if the Government, in consultation with relevant stakeholders, considers this issue, and any appropriate measures, as part of its overall review of the PSED?
Q. 5: To what extent could your concerns about the PSED be addressed through Guidance from the Government to public bodies?’
13. The problem I have addressed in my legal advice to the CBCEW is a discrete problem with the Bill currently before Parliament and should be addressed in that context.
14. This is because the issues raised concern the adequacy of the ‘quadruple locks’ that the Government relies on for the protection of religious organisations. I have identified considerable uncertainty about the extent to which the protection from ‘compulsion’ in Clause 2 of the Bill is adequate to protect religious organisations from unfavourable and detrimental treatment. In that context, various possible scenarios were considered, including (but not restricted to) the potential use of the Public Sector Equality Duty against religious organisations.
15. As can be seen, therefore, the problem lies in the inadequacy of the protection against ‘compulsion’ in the Bill, not in the Public Sector Equality Duty as such. A similar issue arises under the Human Rights Act and under the Equality Act more
140 Supplementary written evidence from Professor Christopher McCrudden, Counsel, Blackstone Chambers (BILLS 13–14) 003) broadly, as I have argued. These potential problems need to be addressed as a whole on the face of the Bill, for example, by providing a comprehensive definition of ‘compel’ on the face of the Bill, and if necessary providing an amendment (for the purposes of this Bill only) to section 149 of the Equality Act, rather than leaving to be (only partially) addressed (with wholly uncertain results) in a general review of the Public Sector Equality Duty.
8 May 2013
141 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006)
Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006)
1. Introduction
1. The Equal Rights Trust (ERT) is an independent international organisation whose purpose is to combat discrimination and promote equality as a fundamental human right and a basic principle of social justice. ERT is the only international human rights organisation which focuses exclusively on the rights to equality and non- discrimination as such. Established as an advocacy organisation, resource centre, and think tank, ERT focuses on the complex relationship between different types of discrimination, developing strategies for translating the principles of equality into practice. In working to accomplish this mission, from time to time we submit legal opinions to governments and parliaments concerning the implementation and enforcement of equality rights.
2. ERT welcomes the Marriage (Same Sex Couples) 2013 (the Bill), which opens up the institution of marriage to couples of the same sex and thereby removes the current discrimination against persons on grounds of their sexual orientation with regard to the ability to marry the person they love. Subject to the comments and recommendations set out below, we believe that the adoption of this Bill would address one of the few remaining areas of legal inequality on grounds of sexual orientation in the United Kingdom. Therefore, as a result of this Bill’s adoption, the United Kingdom would have some of the strongest and most progressive legislation protecting the rights of lesbian, gay and bisexual people.
3. Notwithstanding ERT’s overall support for the Bill, however, we believe that there remain a number of provisions within the Bill which do not fully comply with the rights to equality and non-discrimination as set out in international human rights law, and which render the Bill unnecessarily weaker as a result. In our view, by adopting the recommendations set out in this submission, the Committee would significantly strengthen the Bill and ensure that it is fully compliant with the rights to equality and non-discrimination as protected by international human rights law.
4. In analysing the Draft Bill, ERT has applied the standards contained in the Declaration of Principles on Equality.164 The Declaration of Principles on Equality was drafted and signed by 128 human rights and equality experts from over 40 different nations. It reflects a moral and professional consensus on the right to equality. The 27 principles of the Declaration take their starting point from the United Nations Declaration on Human Rights providing that “all human beings are born free and
164 Declaration of Principles on Equality, The Equal Rights Trust, London, 2008.
142 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006)
equal in dignity and rights”.165 The principles are based on concepts and jurisprudence developed in international, regional and national contexts and are intended to assist the efforts of legislators, the judiciary, civil society organisations and anyone else involved in combating discrimination and promoting equality. The Declaration has been described as “the current international understanding of principles on equality”166 and has been fully endorsed by the Parliamentary Assembly of the Council of Europe, which has recommended to member states to take it into account when developing their national legislation and policies.167
5. In addition to the Declaration of Principles on Equality, ERT has also referred, where relevant, to international human rights law, and in particular to the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights. The evolution in the Court’s jurisprudence in relation to same sex couples, culminating in Schalk and Kopf v Austria168 makes clear that the relationship between same sex couples is protected by the “right to respect for family life” in Article 8. Further, although the Court also stated that the recognition of same sex marriages falls within the margin of appreciation of states, this will, of course, be subject to developments within the member states of Council of Europe. As a greater number of member states provide for the recognition of same sex marriages, this margin of appreciation will decrease in scope. As the margin of appreciation decreases, the Court’s Article 14 jurisprudence on discrimination is likely to apply to English law in this area.
2. Differences between Civil Marriages and Religious Marriages / Marriages Solemnised by Religious Organisations: Clauses 1 to 8 and Schedule 1
6. Clauses 1 to 8 of, and Schedule 1 to, the Bill open up the institution of marriage to persons of the same sex and make amendments to a number of pieces of legislation, primarily the Marriage Act 1949, with the effect of permitting civil same sex marriages in register premises, approved premises, and for persons who are housebound or detained; and religious same sex marriages where the religious organisation “opts in” to conducting such marriages.
7. The piecemeal development of marriage law in England and Wales has resulted in a number of different ways by which a marriage may be conducted. These were set out in the consultation document produced by the Government Equalities Office, as follows:
165 Article 1 of the Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc A/810 at 71 (1948). 166 Naz Foundation v. Government of NCT of Delhi and Others 160 Delhi Law Times 277 (2009), Para 93. 167 Parliamentary Assembly of the Council of Europe, Recommendation: The Declaration of Principles on Equality and activities of the Council of Europe, REC 1986 (2011), 25 November 2011. 168 Application No 30141/04, 24 June 2010.
143 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006)
a) Marriages according to the rites of the Church of England or Church in Wales;
b) Marriages according to the rites of the Society of Friends (the Quakers);
c) Marriages according to the Jewish religion;
d) Other religious marriages in a registered building and in the presence of an authorised person;
e) Marriages in a register office conducted by a superintendent registrar and registered by a registrar;
f) Marriages on approved premises conducted by a superintendent registrar and registered by a registrar; and
g) Marriages for the housebound or detained, as well as “death bed” marriages.169
8. These various methods of conducting marriages may be broadly divided into three categories:
(i) Marriages which are entirely “religious” in their nature. This category would include (a), (b) and (c) in that the marriage is conducted by a religious celebrant and the involvement of the state is limited solely to recognition of the marriage thus conducted;
(ii) Marriages which are partly “religious” and partly “civil” in their nature. This category would include (d) in that the marriage is conducted in a religious building by a religious celebrant, but the presence of a person authorised by the Registrar General is required; and
(iii) Marriages which are entirely “civil” in their nature. This category would include (f), (g) and (h) in that there is no religious element involved and the marriage is conducted in the presence a public servant (i.e. a superintendent registrar).
169 Government Equalities Office, Equal Civil Marriage: A Consultation, March 2012, Para 2.4.
144 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006)
9. ERT proposes to address each of these three categories separately, as each raises different issues in relation to the rights to equality and non-discrimination, though some general principles can be said to apply to marriage generally and therefore to all three categories.
2.1. The Regulation of Marriage is a Public Function
10. In the view of ERT, international and regional human rights law (including the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights) and English law clearly recognise that the regulation of marriage is a public function.
11. Marriage between two persons has long been recognised under English law. Until the Marriage Act 1753, the state had no involvement in the conduct of marriage save that it recognised marriages conducted in accordance with the Canons of the Church of England. Since then, the state’s involvement in marriage has changed dramatically. The Marriage Act 1753 set down legal requirements for a marriage to be valid. Such requirements included that the marriage should take place in a church or chapel and be conduced by a minister, and that a formal marriage announcement (banns) or licence should be obtained prior to the marriage taking place. Under the Marriage Act 1836, the state has conducted civil marriages itself. Today, the law on marriage is entirely set down in statute and dozens of separate pieces of legislation, in areas as diverse as wills and the administration of estates, inheritance, housing and tenancies, criminal justice, immigration and social security, refer to marriage and to persons who are married.
12. The state therefore has an indispensable role in relation to marriage in that it (a) recognises marriages conducted by certain religious organisations, (b) conducts marriages, and (c) regulates the position of married persons through legislation in areas such as those listed above. The effect is that the conduct, recognition and regulation of marriages are roles of the state. The exception to this is that, through various provisions of the Marriage Act 1949, the capacity to conduct marriages can be delegated to religious organisations either entirely (in the case of the Church of England, the Church in Wales, the Society of Friends (the Quakers) and the Jewish religion) or partially (all other religions).
13. Principle 8 of the Declaration of Principles on Equality defines the scope of the rights to equality and non-discrimination as “all areas of activity regulated by law”. As the law regulates the conduct of marriages, the rights to equality and non- discrimination apply in this field. Principle 8 of the Declaration reflects the scope of Article 26 of the International Covenant on Civil and Political Rights (ICCPR) which states that:
145 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006)
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination[...]170
14. The United Nations Human Rights Committee has interpreted Article 26 as “prohibit[ing] discrimination in law or in fact in any field regulated and protected by public authorities”.171
15. English law itself also recognises that international and domestic human rights law, and in particular the European Convention of Human Rights, applies to the conduct of marriages as a function of the state (or public function). For example, upon the introduction of the Human Rights Act 1998—which incorporated the European Convention on Human Rights into national law—the then Home Secretary, Jack Straw, during the Committee debate of the Bill in the House of Commons stated that:
Much of what the Churches do is, in the legal context and in the context of the European Convention on Human Rights, essentially private in nature, and would not be affected by the Bill even as originally drafted. For example, the regulation of divine worship, the administration of the sacrament, admission to Church membership or to the priesthood and decisions of parochial church councils about the running of the parish church are, in our judgment, all private matters.
In such matters, Churches will not be public authorities; the requirement to comply with convention rights will not bite on them. We do not believe that, for example, the Church of England, the Church of Scotland or the Roman Catholic Church, as bodies, would be public authorities under the Bill. I was asked to clarify that by many people, not least the Cardinal Archbishop.
On the occasions when Churches stand in place of the state, convention rights are relevant to what they do. The two most obvious examples relate to marriages and to the provision of education in Church schools. In both areas, the Churches are engaged, through the actions of the minister or of the governing body of a school, in an activity which is also carried out by the state, and which, if the Churches were not engaged in it, would be carried out directly by the state.172 (Emphasis added.)
16. In the same debate, the Home Secretary stated:
170 G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966). 171 Human Rights Committee, General Comment No. 18: Non-discrimination, U.N. Doc. HRI/GEN/1/Rev.1 at 26, 1994, Para 12. 172 Hansard HC Deb, 20 May 1998, vol 312, col 1017.
146 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006)
There was a time when one could get married only in church but, these days, marriage is a matter of civil law—it is the exercise of a public right. The Churches are standing in the stead of the state in arranging the ceremony of marriage, which is recognised not only in canon law, but in civil law. In that instance, the Church is performing a function not only for itself, but for civil society.173 (Emphasis added.)
17. The conduct of marriages is also recognised as a public function by the Equality Act 2010. Section 29 of the Act prohibits discrimination in the provision of services. Section 31(1) of the Equality Act defines “provision of a service” as including the “the provision of a service in the exercise of a public function” and section 31(4) defines “public function” as “a function that is a function of a public nature for the purposes of the Human Rights Act 1998”. That the conduct of marriages is regarded as a provision of a service is explicitly, though indirectly, recognised through Part 6 of Schedule 3 to the Act which provides an exception to section 29 in that refusal of religious organisations to solemnise a marriage on grounds of the gender reassignment of one or both of the participants will not constitute unlawful discrimination.
18. The Marriage (Same Sex Couples) Bill itself recognises that the conduct of marriages is the provision of a service through subclause 2(5) which inserts a new Part 6A into Schedule 3 to the Equality Act 2010 which will extend the exception to section 29 in that refusal of a person to (a) conduct a relevant marriage, (b) be present at, carry out, or otherwise participate in, a relevant marriage, or (c) consent to a relevant marriage being conducted on grounds that marriage is between two persons of the same sex will not constitute discrimination. “Relevant marriage” is defined in subclause 1(4) as any religious marriage and so the exception will not apply to civil marriages.
19. It is clear, therefore, that the conduct of a marriage, wherever it takes place, and whoever is conducting the marriage, is the provision of a service and, indeed, a public function, and is therefore within the scope of international human rights law.
2.2. Marriages which are Entirely Religious in Nature
20. Marriages which are entirely religious in nature are those which are conducted by the Church of England, the Church in Wales, the Society of Friends (the Quakers) and the Jewish religion. They are entirely religious in nature in that the marriage is conducted in a religious building by a religious celebrant with no state involvement, save that the state recognises the marriage that has been thus conducted. Thus, while these marriages are entirely religious, as the paragraphs above make clear, these institutions are undertaking a public function on behalf of the state, by virtue of the state recognition of the marriages which they conduct.
173 Ibid., col 1017 to 1018.
147 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006)
21. In the view of ERT, by permitting these religious organisations to refuse to conduct same sex marriages, the Bill allows these institutions to directly discriminate on the basis of sexual orientation. The Bill expressly permits the different and unfavourable treatment of lesbian, gay and bisexual people in the exercise of marriage by these institutions. While ERT accepts that these institutions should be free to determine the doctrines applicable to marriage in accordance with the tenets of their religion, such religious freedom does not extend to acts which constitute public functions. To the extent that these institutions are undertaking a public function, they are bound by obligations under international and domestic human rights law not to discriminate on grounds of sexual orientation.
22. Principle 5 of the Declaration of Principles on Equality provides a definition of direct discrimination:
Direct discrimination occurs when for a reason related to one or more prohibited grounds a person or group of persons is treated less favourably than another person or another group of persons is, has been, or would be treated in a comparable situation; or when for a reason related to one or more prohibited grounds a person or group of persons is subjected to a detriment. Direct discrimination may be permitted only very exceptionally, when it can be justified against strictly defined criteria.174
23. This definition reflects the current understanding of direct discrimination in international law. For example, the United Nations Committee on Economic, Social and Cultural Rights, in interpreting the prohibition against discrimination in Article 2(2) of the International Covenant on Economic, Social and Cultural Rights, has provided the following definition:
Direct discrimination occurs when an individual is treated less favourably than another person in a similar situation for a reason related to a prohibited ground; e.g. where employment in educational or cultural institutions or membership of a trade union is based on the political opinions of applicants or employees. Direct discrimination also includes detrimental acts or omissions on the basis of prohibited grounds where there is no comparable similar situation (e.g. the case of a woman who is pregnant).175
24. Similarly, European Union law defines discrimination as: “where one person is treated less favourably than another is, has been or would be treated in a comparable situation [on a prohibited ground].176
174 See above, note 1, Principle 5. 175 Committee on Economic, Social and Cultural Rights, General Comment 20: Non-discrimination in economic, social and cultural rights, UN Doc. E/C.12/GC/20, 2009, Para 10. 176 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, Article 2(2)(a); Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and
148 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006)
25. The European Court of Human Rights has used the following formulation: “differences in treatment based on an identifiable characteristic, or “status” ... of persons in analogous, or relevantly similar, situations.”177
26. These definitions are reflected in English law via section 13 of the Equality Act 2010 which provides:
13 Direct Discrimination
(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
27. The Bill, by permitting religious institutions to “opt out” of the provision of same sex marriages, allows these institutions to treat lesbian, gay and bisexual people less favourably on the basis of their sexual orientation in respect of marriage. By allowing the specified institutions to refuse to provide same sex marriages, the Bill has the effect of denying lesbian, gay and bisexual persons the ability to express their emotional, affectional and sexual attraction to a person of the same sex through marriage in one of these institutions, in a way which is not denied to heterosexual people.
28. Principle 5 of the Declaration of Principles on Equality provides that direct discrimination “may be permitted only very exceptionally, when it can be justified against strictly defined criteria”.
29. The sole justification which has been put forward for the differential treatment between opposite sex marriages and same sex marriages is the protection of religious freedom. ERT accepts that the protection of religious freedom is a legitimate aim in international human rights law and, in fact, is explicitly recognised under, for example, Article 18 of the International Covenant on Civil and Political Rights and Article 9 of the European Convention on Human Rights.
30. ERT believes, however, that the debate about the need for religious organisations to “opt out” of the requirement to conduct same sex marriages has placed insufficient emphasis upon the public function that the religious organisation is carrying out. The evolution of English marriage law is such that the religious occupation, Article 2(2)(a); Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, Article 2(a); and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), Article 2(1)(a). 177 See, for example, Carson and Others v United Kingdom (Application No. 42184/05), 16 March 2010, Para 61. See also D.H. and Others v the Czech Republic (Application No. 57325/00), 13 November 2007, Para 175; and Burden v United Kingdom (Application No. 13378/05), 29 April 2008, Para 60.
149 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006) ceremony and the public function of conducting a marriage are fused together. This conflation of these two actions has resulted in a failure properly to appreciate the clear distinction between the private, religious act and the public function which a religious institution is carrying out when performing a marriage recognised by the state. While the individual religious organisation is entirely free to determine its doctrines – including the necessary criteria for persons wishing to marry under its doctrines – when acting as a private institution, the public function of conducting a marriage recognised by law must be conducted without discrimination.
Recommendation 1: The Bill and any other relevant legislation should be amended so as to provide that the Church of England, the Church in Wales, the Society of Friends (the Quakers) and the Jewish religion must not discriminate against same sex couples when carrying out their public function of conducting marriages on behalf of and in the stead of the state. These religious organisations should, however, be free to conduct religious marriages which are not automatically recognised by the state (and therefore not public functions) according to their own doctrines.
2.3. Marriages which are Partly Religious in Nature and Partly Civil in Nature
31. Marriages which are partly religious in nature and partly civil in nature are those conducted by all other religions under section 44 of the Marriage Act 1949. Whilst the ceremonies are religious and conducted by a religious celebrant, the marriage must be conducted in the presence of either (a) a registrar of the registration district in which the registered building is situated, or (b) an authorised person whose name and address have been certified [...] by the trustees or governing body of that registered building or of some other registered building in the same registration district.178
32. For the same reasoning set out in section 2.2 of the submission above, ERT believes that, to the extent that they take advantage of the privilege to conduct marriages on behalf of the state, rather than conducting marriages which are purely religious, religious organisations are fulfilling a public function. As such, they assume the responsibilities that lie with carrying out public functions, including the obligation to respect and protect the rights to equality and non-discrimination.
Recommendation 2: The Bill should be amended so as to provide that all other religious organisations must not discriminate against same sex persons when carrying out the public function of conducting marriages on behalf of and in the stead of the state. These religious organisations should, however, be free to conduct religious marriages which are not
178 Section 44(2) of the Marriage Act 1949.
150 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006) automatically recognised by the state (and therefore not public functions) according to their own doctrines.
2.4. Marriages which are Entirely Civil in Nature
33. ERT notes that the Bill will treat same sex marriages and opposite marriages conducted in civil ceremonies as equivalent for all purposes and that there is no exception to the Equality Act 2010 for civil marriages.
34. ERT welcomes the provisions in Part 1 of Schedule 7 to the Bill which will provide that all premises currently approved to conduct opposite sex marriages under section 26(1)(bb) of the Marriage Act 1949, as amended by section 3 of the Bill, will automatically be approved to conduct same sex marriages, and that in future, any applications for approval will be for both opposite sex and same sex marriages. Proprietors or trustees of approved premises—whether already approved or approved in the future—will not, therefore, be able to refuse to permit same sex marriages to take place on those premises.
3. Jurisdictions Recognising Same Sex Marriages (Clause 10 and Schedule 2)
35. Section 10(3) and Schedule 2 to the Bill contain provisions on how same sex marriages conducted in England and Wales are to be recognised in Scotland and Northern Ireland.
36. Paragraph 1(1) of Schedule 2 provides that the Secretary of State may pass an order providing that the law of Scotland will recognise such a marriage as a civil partnership in Scotland. Such an order may only be made if same sex marriage is not lawful in Scotland (paragraph 1(3)). The Scottish Government announced in July 2012 that it would introduce legislation to allow same sex marriage in Scotland and in December 2012 published the Draft Marriage and Civil Partnership (Scotland) Bill for consultation with a view to introducing a Bill in the Scottish Parliament during this legislative session. It is therefore unlikely that the order-making power provided in paragraph 1(1) will need to be used.
37. Paragraph 2(1) of Schedule 2 provides that under the law of Northern Ireland, a same sex marriage is to be treated as a civil partnership. In October 2012, the Northern Ireland Assembly voted by 50 to 45 against a motion calling for the introduction of same sex marriages. It therefore appears likely that Northern Ireland will be the only constituent country in the United Kingdom which will not conduct or recognise same sex marriages and will instead treat such marriages entered into in the rest of the United Kingdom as civil partnerships.
151 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006)
38. ERT notes the government’s explanation in the consultation and the consultation response that marriage is a devolved matter in respect of Northern Ireland.179 However, ERT would remind the Committee that responsibility for the implementation of international human rights law ultimately lies with the United Kingdom government, and it is therefore for the United Kingdom government to ensure that the rights to equality and non-discrimination are protected across the full jurisdiction, including Northern Ireland, regardless of any legislation concerning devolution.
39. ERT believes that there is a significant risk that the Bill as currently drafted creates a discriminatory anomaly in that marriages between opposite sex couples will be treated as marriages in Northern Ireland while marriages between same sex couples will be treated as civil partnerships.
40. ERT would remind the Committee that although Article 12 of the European Convention on Human Rights does not compel states to introduce same sex marriage, the European Court of Human Rights stated in Schalk and Kopf v Austria (2010)180 that:
[T]he Court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex. However, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State.181
41. Therefore, in the view of ERT, while a state is free to regulate same sex marriage in allowing it or not, where a state has decided to provide for same sex marriage, these marriages fall within the ambit of Article 12. Thus, the positive decision by a state to permit same sex marriages extends the right to marry under Article 12 to include same sex couples. Moreover, the European Court of Human Rights, again in Schalk and Kopf v Austria, recognised that same sex couples have a right to family life under Article 8 of the European Convention on Human Rights. As the regulation of marriage is clearly connected to an important aspect of family life, these marriages also fall within the ambit of Article 8.
42. As the regulation of same sex marriages falls within the ambit of Articles 8 and 12, the non-discrimination provisions of Article 14 must apply. As a consequence, a state is not permitted to regulate same sex marriages in a discriminatory manner any more than it is permitted to regulate opposite sex marriages in a discriminatory manner.
179 Government Equalities Office, Equal Civil Marriage: A Consultation, March 2012, Para 2.37; HM Government, Equal Marriage: The Government’s Response, December 2012 Para 9.4. 180 See above, note 5. 181 Ibid., Para 61.
152 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006)
43. Under Article 1 of the European Convention of Human Rights, the United Kingdom has undertaken to “secure to everyone within [its] jurisdiction the rights and freedoms defined in Section I of this Convention”. Therefore, while we note the government’s position that the regulation of marriage is a devolved matter, we urge the Committee to consider this contention in light of the primary obligation of the state to protect the human rights of all persons within its jurisdiction. ERT therefore calls on the Committee to consider whether the devolution of the regulation of marriage is compatible with the obligations of the state to protect the rights arising under Article 14 in conjunction with Articles 8 and 12 of the European Convention.
Recommendation 3: The Committee should consider the extent to which the state should be permitted to devolve the regulation of marriage, where such devolution may result in differential and discriminatory treatment of some persons within its jurisdiction, on the basis of their sexual orientation and/or place of residence.
4. Differences between Opposite Sex Marriages and Same Sex Marriages (Clause 11 and Schedules 3 and 4)
4.1. Presumption on Birth of Child to Married Woman (Schedule 4, Part 2)
44. The presumption of legitimacy is a longstanding rule of English common law, concisely stated by the Lord Chief Justice of the Court of Common Pleas when delivering the unanimous opinion of the judges in the Banbury Peerages Case:
[T]he birth of a child from a woman united to a man by lawful wedlock is, generally, by the law of England, prima facie evidence that such a child is legitimate.182
45. The presumption is a rebuttable one, the burden being on the party who submits evidence that the child is not that of the husband to prove, on the balance of probabilities, that the child is not that of the husband.183
46. Part 2 of Schedule 4 to the Bill provides that the common law presumption of legitimacy (the presumption that a child born to a woman who is married is the child of her husband) will not apply to marriages between two women. The effect is that where, in a marriage between two women, one of the women gives birth, there will be no common law presumption that her wife is a parent of the child. The Bill seeks
182 (1811) 1 Sim. & St. 153, per Sir James Mansfield CJ. 183 Section 26 of the Family Law Reform Act 1969.
153 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006) to partially remedy this differential treatment through an amendment to section 42 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) as follows:184
Section 42 of HFEA 2008 (current) Section 42 of HFEA 2008 (as amended) Woman in civil partnership at time of Woman in civil partnership at time of treatment treatment or marriage to a woman (1) If at the time of the placing in her of the (1) If at the time of the placing in her of the embryo or the sperm and eggs or of her embryo or the sperm and eggs or of her artificial insemination, W was a party to a artificial insemination, W was a party to a civil partnership, then subject to section civil partnership or a marriage with 45(2) to (4), the other party to the civil another woman, then subject to section partnership is to be treated as a parent of 45(2) to (4), the other party to the civil the child unless it is shown that she did not partnership or marriage is to be treated as consent to the placing in W of the embryo a parent of the child unless it is shown that or the sperm and eggs or to her artificial she did not consent to the placing in W of insemination (as the case may be). the embryo or the sperm and eggs or to her artificial insemination (as the case may be). (2) This section applies whether W was in (2) This section applies whether W was in the United Kingdom or elsewhere at the the United Kingdom or elsewhere at the time mentioned in subsection (1). time mentioned in subsection (1).
47. Thus, while the amendment to section 42 of the HFEA 2008 will ensure that the wife of a woman who gives birth will be in an equivalent position to a husband of a woman in an opposite sex relationship who gives birth where the child was conceived through assisted reproduction under the HFEA 2008, it will not provide such equivalence where the child was not conceived through assisted reproduction under the HFEA 2008. The wife of a woman who chooses to conceive in other ways—for example through an informal agreement with a sperm donor—would not enjoy the presumption of parentage.
48. Moreover, ERT notes that the presumption of parentage as currently defined (and as left unchanged by the Bill in its current form) presents a number of other problems of discrimination in the context of the wide range of familial relationships which exist today. At present for example, the law creates a clear distinction on the basis of marital status between the fathers of children born in a marriage and fathers who are not married to the mother of their child. In addition, irrespective of the amendment to the HFEA noted above, the Bill is silent on the question of the presumed parentage of men in same sex relationships. Yet ERT notes that, for reasons connected with the nature of childbirth itself, it is not possible to conceive
184 The amendment is made by paragraph 36 of Schedule 7 to the Bill.
154 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006) of how the presumption of legitimacy could be expanded to include male parents in same sex relationships without creating other inconsistencies in the law.
49. ERT believes that the presumption of legitimacy is an anachronism, out of place in a modern system of family law. It predates both the scientific techniques which allow parentage to be established without doubt and the social advances which recognise as normal a far wider range of family relationships than solely those consisting of a married relationship between men and women. In addition, as exemplified above, the presumption discriminates both on grounds of marital status and sexual orientation. We note that, while some of the discriminatory impacts of the presumption can be addressed through amendment to the law, it is not possible to conceive of how the presumption could be amended to ensure its full consistency with the right to non-discrimination, without nullifying the presumption’s essential nature and purpose .
50. We are therefore of the view that the consideration of this Bill presents an opportunity to consider removing the presumption from English law. We note however that the presumption cannot be viewed in isolation, as it is intimately bound up with the law more generally on parentage and affiliation, legitimacy and legitimation. ERT therefore believes that, prior to the deletion of the presumption, a comprehensive review of the law on parentage and affiliation, legitimacy and legitimation should be undertaken with a view to identifying a suitable replacement for the presumption which is consistent with the rights to equality and non- discrimination.
Recommendation 4: The presumption of legitimacy should be removed from English law. Prior to any Act removing the presumption, there should be a comprehensive review of the law on parentage and affiliation, legitimacy and legitimation in order to identify a suitable replacement which is compatible with the rights to equality and non-discrimination.
4.2. Divorce and Annulment of Marriage (Schedule 4, Part 3)
51. The effect of Part 3 of Schedule 4 to the Bill is two-fold: first, adultery will be defined in statute as only comprising sexual activity between two persons of the opposite sex; second, non-consummation of a marriage, whether through incapacity or wilful refusal, will result in the marriage being voidable only if it is an opposite sex marriage and not a same sex marriage.
4.2.1. Adultery
52. Paragraph 3 of Schedule 4 will insert new subsection (6) into section 1 of the Matrimonial Causes Act 1973. This subsection will define adultery as sexual activity
155 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006) between two persons of the opposite sex, giving statutory footing to the current definition in the common law.185 This amendment to the Matrimonial Causes Act 1973 represents a departure from the original consultation which indicated that case law would be allowed to develop to provide a definition of what constitutes adultery in the context of a same sex marriage.186
53. In the view of ERT, the distinction which this provision creates – between sexual acts outside of marriage between persons of opposite and same sex – is, essentially, an irrelevant one when considering the nature and effect of adultery as commonly understood. Moreover, while we note that there will be occasions where persons in opposite sex marriages wish to claim adultery where their husband or wife has had sexual relations with a person of the same sex, this distinction treats less favourably homosexuals seeking divorce on the basis of their spouse alleged adultery, as the homosexual spouse would ordinarily have engaged in extramarital sex with a same sex partner. The effect of the amendment is to create a definition of adultery which will leave many persons in a same sex marriage unable to rely upon section 1(2)(a) of the Matrimonial Causes Act 1973 where their husband or wife has committed “adultery” with someone of the same sex. Therefore, it is our view that this distinction directly discriminates on grounds of sexual orientation. (It should however be noted that the opposite is true in respect of those who are accused of adultery: the amendment would directly discriminate against heterosexuals who are themselves accused of adultery as compared to homosexuals accused of adultery.)
54. Principle 8 of the Declaration of Principles on Equality provides that the rights to equality and non-discrimination apply “in all areas of activity regulated by law” which undoubtedly includes the regulation of family law, including divorce law and the grounds upon which divorce may be granted.
55. ERT sees no justification for this differential treatment. Persons in same sex marriages will be disadvantaged in that, in a large proportion of cases where their husband or wife has sexual relations outside of marriage, they will be unable to rely on this fact within section 1(2)(a) of the Matrimonial Causes Act 1973. In 2011, this section was relied upon in 15% of all divorces in England and Wales, a total of 17,302 divorces.187 It is therefore reasonable to predict that there are likely to be many persons in same sex marriages in the future who wish to divorce on grounds of “adultery” but will be unable to do so due to the restrictive definition in the Bill.
56. ERT notes that the alternative ground of “unreasonable behaviour” provided in section 1(2)(a) of the Matrimonial Causes Act 1973 will be available to a person in a
185 Dennis v Dennis [1955] 2 All ER 51. 186 See above, note 6, Para 2.16. 187 Office for National Statistics, Divorces in England and Wales – 2011, 2012, available at: http://www.ons.gov.uk/ons/rel/vsob1/divorces-in-england-and-wales/2011/stb-divorces-2011.html
156 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006) same sex marriage who wishes to divorce their partner if they have had sexual relations outside the marriage. However, the fact remains that in many cases where a person has sexual relations outside of a same sex marriage, the other person in that marriage will be unable to rely on the ground of adultery, while relatively few people in opposite sex marriage will find themselves so restricted.
57. Moreover, ERT reminds the committee that one of the key principles behind the introduction of this Bill was to remove the segregation of opposite sex and same sex couples and to allow all couples to enter into a single non-segregated institution. The symbolism behind the distinction created by this amendment—that adultery is something that only heterosexuals can do, and, implicitly, that adultery by a heterosexual is more serious than adultery by a gay man or lesbian—seriously undermines this principle. It indicates that sexual infidelity is less of a concern for same sex marriages than opposite sex marriages, and is likely to contribute to the perpetuation of the stereotype of promiscuity amongst LGB people.
58. ERT therefore urges the Committee to amend this provision of the Bill to ensure that adultery is defined as including sexual activity outside of marriage with a person of the opposite sex or the same sex.
Recommendation 5: The Bill should be amended so as to provide that adultery includes sexual activity with a person of the opposite or the same sex.
4.2.2. Consummation
59. Paragraph 4 of Schedule 4 will amend section 12 of the Matrimonial Causes Act 1973 to provide that non-consummation will only render voidable an opposite sex marriage and not a same sex marriage. As with the provisions relating to adultery, this represents a departure from the original consultation which indicated that case law would be allowed to develop to provide a definition of what constitutes consummation between two men or two women.188
60. The current standard definition of what will constitute consummation is sexual intercourse through penile penetration of the vagina which is “ordinary and complete” and not “partial and imperfect”.189 A marriage is voidable regardless of whether the non-consummation is due to incapacity of either party190 or the wilful refusal of the respondent in nullity proceedings.191
188 See above, note 23. 189 DE v Attorney General (1845) 163 ER 1039. 190 Section 12(1)(a) of the Matrimonial Causes Act 1973. 191 Section 12(1)(b) of the Matrimonial Causes Act 1973.
157 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006)
61. ERT believes that the amendment to the law relating to consummation of marriages made by the Bill constitutes direct discrimination on grounds of sexual orientation. (We also note that the law on consummation as it stands at present constitutes discrimination on grounds of disability, where such disability means that the person is incapable of sexual intercourse which satisfies the definition of consummation.)
62. As noted above, Principle 8 of the Declaration of Principles on Equality provides that the rights to equality and non-discrimination apply “in all areas of activity regulated by law”. This undoubtedly includes the regulation of family law, including the grounds upon which a marriage is voidable.
4.2.2.1. Sexual Orientation
63. Direct discrimination is defined in Principle 5 of the Declaration of Principles on Equality as follows:
Direct discrimination occurs when for a reason related to one or more prohibited grounds a person or group of persons is treated less favourably than another person or another group of persons is, has been, or would be treated in a comparable situation; or when for a reason related to one or more prohibited grounds a person or group of persons is subjected to a detriment.192
64. Under the Bill, a person in a same sex marriage will be explicitly disbarred from citing non-consummation of the marriage, whether through incapacity or wilful refusal, as ground for annulling the marriage, whereas a person in an opposite sex marriage will be able to do so.
65. Decrees of nullity have a number of important effects in law, including permitting the courts to make financial provision orders (section 23 of the Matrimonial Causes Act 1973), property adjustment orders (section 24 of the Act), pension sharing orders (section 25 of the Act), and orders with respect to children under the Children Act 1989.
66. Thus, the inability of a person in a same sex marriage to annul that marriage where it would be voidable if it were an opposite sex marriage is undoubtedly “less favourable treatment” or a “detriment” in that it deprives them of an important legal remedy with potentially significant consequences.
192 See above, note 1, Principle 5.
158 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006)
67. This “less favourable treatment” or “detriment” is inextricably linked to the sexual orientation of the person as it is only persons in same sex marriages—where the parties will inevitably be homosexual (or bisexual) who will be unable to take advantage of the remedy.
68. The government has not put forward any justification for this differential treatment, save that they were dissuaded from their original proposals not to change the law and to let case law develop naturally by consultation responses from the Catholic Bishops’ Conference of England and Wales and the Family Law Bar Association, amongst others, that “it would not be acceptable to leave such uncertainty in the law”.193
69. Principle 5 of the Declaration of Principles on Equality provides that “direct discrimination may be permitted only very exceptionally, when it can be justified against strictly defined criteria”.
70. The government has not sought to justify this differential treatment between same sex marriages and opposite sex marriages; nor can any reasonable justification be put forward. While ERT believes that the state is entitled to regulate family law, and to set down (or not set down, as the case may be) particular grounds which render a marriage voidable and subject to annulment, it is not entitled to do so in a way which directly discriminates on grounds of sexual orientation without providing a justification against strictly defined criteria.
71. ERT again reminds the committee that one of the key principles behind the introduction of this Bill was to remove the segregation of opposite sex and same sex couples and to allow all couples to enter into a single non-segregated institution. The symbolism that consummation is something that is only relevant to opposite sex marriages, and, thus, that the sexual aspect within a marriage is more important to heterosexual people than LGB people denies the sexuality of LGB people. Indeed, the combined effect of the segregation between opposite sex marriages and same sex marriages in respect of the law on adultery and consummation enforces the legal notion that only sexual activity between two persons of the opposite sex is valid and that a different sexual culture exists within the LGB community that does not exist amongst heterosexuals.
72. ERT therefore concludes that, if marriage law is to continue to include provisions on consummation, they should be non-discriminatory in their application and therefore apply both to opposite sex and same sex marriages. This can be done in a number of ways such as:
193 HM Government, Equal Marriage: The Government’s Response, December 2012, Para 9.9.
159 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006)
a) Not including any provisions on consummation and, instead, leaving the definition of consummation to the judiciary;
b) Replacing paragraph 4 of Part 3 of Schedule 4 to the Bill with a simple paragraph which provides that, for the purposes of consummation, sexual intercourse may be between two persons of the same sex as well as two persons of the opposite sex; or
c) Replacing paragraph 4 of Part 3 of Schedule 4 to the Bill with a statutory definition of consummation inclusive of a number of sexual practices.
Recommendation 6: The concept of consummation should apply both to same sex marriages and to opposite sex marriage.
4.2.2.2. Disability
73. Notwithstanding the implementation of Recommendation 6, ERT believes that the law on consummation will continue to discriminate, as it does already, against persons with a disability, where that disability means that they are incapable of sexual intercourse which satisfies the definition of consummation (hereafter ‘the disability’).
74. “Disability” is defined in section 6(1) of the Equality Act 2010 as any “physical or mental impairment” which has “a substantial and long-term adverse effect on [the person’s ability to carry out normal day-to-day activities”. This definition would include persons who were physically unable to engage in sexual intercourse, as well as persons with psychological or emotional disorders which prevented them from engaging in sexual intercourse, such as genophobia.
75. The definition of consummation in the present law treats less favourably persons with certain types of disability and thus persons with a protected characteristic, by reason of that characteristic (disability). The category of disabled persons treated less favourably is those with a disability which prevents them from completing an act qualifying as consummation. As defined presently, a person in a marriage with certain types of disability will never be able to consummate the marriage, thereby rendering the marriage voidable for its entirety, and the person would thus be in a position where the other party to the marriage could seek to annul the marriage at any time. The inability of a person with this kind of disability to consummate a marriage undoubtedly is the reason for their less favourable treatment compared to a person without that disability, in that it leaves them in a significantly weaker position before the law. Not only will the marriage be voidable for its entirety as opposed to valid under the law—an important symbolic difference—but that person is thereby left vulnerable to nullity proceedings being brought against them at any point during the marriage with the range of potentially significant consequences listed above.
160 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006)
76. The government has not sought to justify this differential treatment between persons with this type of disability and persons without disability, nor can any reasonable justification be put forward. ERT believes that the state is entitled to regulate family law, and to set down (or not set down, as the case may be) particular grounds which render a marriage voidable and subject to annulment. However, it is not entitled to do so in a way which puts a certain protected group at a disadvantage, unless the creation of this disadvantage can be objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.
77. ERT therefore concludes that the Committee should take this opportunity to revisit the law on consummation and to use the Bill to amend the law so as to ensure that it does not discriminate against persons with particular disabilities.
Recommendation 7: The law on consummation should be amended so as to ensure that it does not discriminate against persons with particular disabilities which prevent them for “consummating” a marriage.
4.2.2.3. Consummation generally
78. As a result of the government’s express statement in its response to the consultation that “there is no intention to remove references to non-consummation from legislation”,194 ERT has not sought to argue that the concept of consummation should be removed from English law, but merely that if it is to remain, it should be non-discriminatory in its application.
79. The Committee may, however, wish to address the law on consummation more generally as part of its consideration of the Bill, and to consider the advantages and disadvantages of retaining non-consummation of a marriage as grounds for its annulment, particularly given the difficulty of formulating the law such that it applies in a non-discriminatory manner.
5. Differences between Opposite Sex Couples and Same Sex Couples in Access to Civil Partnerships
80. Civil partnerships were established by the Civil Partnership Act 2004 and are limited to couples of the same sex.
81. In its consultation, the government stated that they did not intend to open up access to civil partnerships to opposite sex couples.195 In response to the question of whether access to civil partnerships should be opened up to opposite sex couples, 61% of respondents answering that question stated that they should be, and only
194 See above, note 30. 195 See above, note 6, Para 2.20.
161 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006)
24% stated that they should not be.196 Despite the vast majority of respondents supporting the opening up of access to civil partnerships to opposite sex couples, the government’s response was that their position had not changed and the Bill does not provide access to civil partnerships to opposite sex couples.
82. ERT strongly believes that the prohibition of opposite sex couples from entering into a civil partnership constitutes direct discrimination against heterosexual persons on grounds of sexual orientation. Principle 5 of the Declaration of Principles on Equality provides the following definition of direct discrimination:
Direct discrimination occurs when for a reason related to one or more prohibited grounds a person or group of persons is treated less favourably than another person or another group of persons is, has been, or would be treated in a comparable situation; or when for a reason related to one or more prohibited grounds a person or group of persons is subjected to a detriment. Direct discrimination may be permitted only very exceptionally, when it can be justified against strictly defined criteria.197
83. This definition reflects definitions found in international human rights law and which are summarised in paragraphs 22 to 25.
84. ERT believes that the case law of the European Court of Human Rights strongly suggests that this direct discrimination would be found to constitute a violation of Article 8 of the Convention, when taken in combination with Article 14.
85. Article 8 provides that “[e]veryone has the right to respect for his private and family life” and the Court has recently stated in Schalk and Kopf v Austria198 that “family life” includes cohabiting opposite sex couples and same sex couples living in stable de facto partnerships.199 The legal recognition and regulation of opposite sex couples and same sex couples therefore falls within the ambit of Article 8.
86. The Court has stated that “in order for an issue to arise under Article 14 there must be a difference in treatment of persons in relevantly similar situations”200 and the court has held that same sex couples “are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship”.201 Conversely, opposite sex couples must be held to be in a “relevantly similar situation” to same sex couples as regards their need for legal recognition and protection of their relationship.
196 See above, note 30, p. 42. 197 See above, note 1, Principle 5. 198 See above, note 5. 199 See above, note 5, Para 94. 200 See above, note 5, Para 96. 201 See above, note 5, Para 99.
162 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006)
87. A difference of treatment between same sex and opposite sex couples will constitute a violation of Articles 8 and 14 if:
[I]t has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.202
88. The European Court of Human Rights has held that “differences based on sexual orientation require particularly serious reasons by way of justification”.203
89. The explanation in the government’s consultation response as to why the prohibition on access to civil partnerships for opposite sex couples is necessary is that civil partnerships were not intended or designed to be an alternative to marriage and that they should not be seen as an alternative to marriage for opposite sex couples.204 Furthermore, the government stated that “it has not been made clear what detriment opposite sex couples suffer by not having access to civil partnerships.”205
90. These justifications have been elaborated upon in two recent comments on the Bill. The first, provided by the Secretary of State for Culture, Media and Sport, during Second Reading of the Bill, when specifically asked why opposite sex couples would not be permitted to enter into civil partnerships, was that “we do not feel that there is significant demand for the extension of civil partnerships in the way [the questioner] describes”.206 This justification can be described as the “insignificant demand” justification.
91. The second was provided by the Prime Minister during Prime Minister’s Questions on 6 February 2013 when he stated that:
I am a marriage man. I am a great supporter of marriage. I want to promote marriage, defend marriage, encourage marriage, and the great thing about last night’s vote is that two gay people who love each other will now be able to get married. That is an important advance. We should be promoting marriage, rather than looking at any other way of weakening it.207
202 See above, note 5, Para 96. 203 See above, note 5, Para 97. 204 See above, note 5, Para 7.8. 205 See above, note 5, Para 7.9. 206 Hansard HC Deb, 11 December 2012, col 160. 207 Hansard HC Deb, 6 February 2013, vol 558, col 269.
163 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006)
92. ERT understands this to mean a concern that there would either be a reduction in the number of marriages, or a reduction in the social value of the institution of marriage. This justification can be described as the “promoting marriage” justification.
93. The case law of the European Convention of Human Rights is clear that it is not sufficient merely that a justification be put forward, but that the differential treatment must “pursue a legitimate aim [and] [...] there [must be] a reasonable relationship of proportionality between the means employed and the aim sought to be realised.”
94. In respect of the first justification—the “insignificant demand” justification, no purported legitimate aim has been put forward or even suggested by the government. Indeed, ERT is unaware of any justification of “insignificant demand” having been put forward, let alone accepted, in the case law of the European Court of Human Rights as a legitimate justification.
95. ERT accepts that the second justification put forward, “protecting and promoting marriage” as understood in paragraph 45 may be considered a legitimate aim. However, we do not believe that there is a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”208 for two reasons:
(i) Same sex couples will continue to have access to civil partnerships after the Marriage (Same Sex Couples) Bill comes into force. The government specifically rejected the option it had of removing the civil partnership regime, either by permitting existing civil partnerships to continue but to prohibit any further ones from taking place, or by converting all existing civil partnerships into marriage. ERT believes that it is inconsistent to say both that permitting opposite sex couples from entering civil partnerships would weaken marriage and that permitting same sex couples to enter either civil partnerships or marriage would not weaken marriage. To put it another way, if the ability of same sex couples to have the option of either marriage or civil partnership does not weaken marriage, then the same must be true of opposite sex couples. As a result of this inconsistency, there can be no “reasonable relationship of proportionality”;
(ii) The government has produced no evidence to suggest that opening access to civil partnerships would weaken marriage. If the government’s belief is that there is no “significant demand” for civil partnerships for opposite sex couples, then this would be evidence that the extension would not, in fact,
208 See above, note 5, Para 96.
164 Written evidence submitted by the Equal Rights Trust (BILLS (13–14) 006)
weaken marriage or impact upon the number of opposite sex marriages that took place.
96. ERT is therefore of the view that the continued prohibition on opposite sex couples being able to enter into civil partnerships constitutes differential treatment on grounds of sexual orientation where there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised” and therefore would potentially constitute a violation of Articles 8 when taken in combination with Article 14 of the Convention.
97. ERT is aware that amendments to the Bill have been tabled in the House of Commons by Tim Loughton, Caroline Lucas, Craig Whittaker, Stewart Jackson, Mark Durkan, and Greg Mulholland which would have the effect of opening civil partnerships to opposite sex couples. ERT therefore recommends that the Committee agree to these amendments and ensure full equality for all couples in access to civil partnerships.
Recommendation 10: The Bill should be amended as per New Clauses 10 and 11 tabled by Tim Loughton, Caroline Lucas, Craig Whittaker, Stewart Jackson, Mark Durkan, and Greg Mulholland, i.e. the following new clauses should be inserted into the Bill:
New Clause
Part 1 of the Civil Partnership Act 2004 To move the following Clause:— ‘(1) Part 1 of the Civil Partnership Act 2004 is amended as follows. (2) In section 1, subsection (1), leave out “of the same sex”.’.
New Clause
Part 2 of the Civil Partnership Act 2004 To move the following Clause:— ‘(1) Part 2 of the Civil Partnership Act 2004 is amended as follows. (2) In section 3, subsection (1), after “if—”, leave out— “(a) they are not of the same sex”.’.
May 2013
165 Letter to the Chair, and supplementary written evidence from Mark Hammond, Chief Executive, Equality and Human Rights Commission (BILLS (13–14) 007) Letter to the Chair, and supplementary written evidence from Mark Hammond, Chief Executive, Equality and Human Rights Commission (BILLS (13–14) 007)
Many thanks for the opportunity to give oral evidence to the Joint Committee on Human Rights on the Marriage (Same Sex Couples) Bill on 23 April and for your subsequent letter dated 30 April 2013. I am writing, as requested, to respond to the two questions in your letter.
Q1. Are there any areas in which the EHRC holds a different opinion from that set out in the government analysis of the Aidan O'Neill QC scenarios?
Q2. Does the Commission wish to comment further on the human rights and equality implications of the scenarios identified in the legal opinion of Aidan O'Neill QC?
In drafting the Equality and Human Rights Commission's initial legal opinion on the Marriage Bill, Robin Allen QC gave careful consideration to the Aidan O'Neill QC scenarios. The Commission concurs with Mr Allen's view that the positions set out by DCMS are correct and would not wish to record any disagreement with what it has said.
The Commission's legal opinion sets out in some detail why each of the scenarios, related to teachers, registrars and so on, would not have the outcome suggested by Mr O'Neill. This opinion is attached to this letter and is available here: http://www.equalityhumanrights.comllegal-and- policy/parliamentarybriefings/marriage-same-sex-couples-bill-2012-13/
I hope this helps clarify matters. The Commission would be pleased to provide a supplementary explanation or analysis of any specific point covered by Mr O'Neill, if that would be helpful to your committee.
8 May 2013
Joint Advice to the EHRC on the Marriage (Same Sex Couples) Bill from Robin Allen QC and Jason Coppel
Instructions
1. We are instructed to advise the Equality and Human Rights Commission ("EHRC") on the human rights implications of the Marriage (Same Sex Couples) Bill ("the
166 Letter to the Chair, and supplementary written evidence from Mark Hammond, Chief Executive, Equality and Human Rights Commission (BILLS (13–14) 007)
Bill")',209 which had its second reading in the House of Commons on 5 February 2013.
2. If passed as an Act of Parliament in its current form, the Bill would extend the concept of marriage in domestic civil law so that it included same sex as well as opposite sex couples.210 The Government's original position, expressed in Equal Civil Marriage: a consultation, published by the Government Equality Office in March 2012 ("the consultation paper"), was that the marriage of a same sex couple should be capable of being contracted solely in a civil ceremony. A marriage of a same sex couple was not to take place by a religious ceremony, or by a civil ceremony on religious premises, even where the religious organisation in question was willing to conduct such a ceremony.
3. However, as a result of representations made by the EHRC amongst others, the text of the Bill adopts a different position, and will, in summary, save in certain specific defined circumstances, permit a same sex marriage having civil law validity to take place by a religious ceremony or in a religious setting, where both the consent of the religious organisation in question, and any office-holder of that organisation conducting the ceremony, have been obtained. The Bill contains protections to prevent any religious organisation and any individual religious office-holder from being compelled to consent to, or to conduct, the marriage of a same sex couple (clause 2).
4. The key specific exceptions to this new possibility concern the Church of England, and to a lesser extent, the Church in Wales. They derive from the particular status and obligations of these two churches which in turn reflect the long religious history of this country. The Church of England as the established church of England (but not Wales) has certain common law obligations and the Church of Wales (though disestablished in other ways) also retains certain obligations.
5. In order to place those organisations (ie the Churches of England and of Wales) on the same footing as other religious organisations and thus ensure likewise that they are not compelled to conduct same sex marriage ceremonies, the Government decided in drafting this Bill that these exceptions are necessary.
6. The key problem in drafting the Bill may be summarised in this way by reference to the Church of England—
209 The Bill can be found at http://services.parliament.uk/bills/2012- 13/marriagesamesexcouplesbill/documents.html 210 The historic definition of marriage is the union of one man and one woman; marriage would remain a monogamous union but the requirement of the parties to the marriage to be of different genders will go.
167 Letter to the Chair, and supplementary written evidence from Mark Hammond, Chief Executive, Equality and Human Rights Commission (BILLS (13–14) 007)
1) There is a common law obligation on a Church of England parish priest (incumbent) to marry a different sex couple one of whom resides in the parish (or otherwise meets the specific requirements);211
2) The doctrine of the Church of England remains that marriage is the union of opposite sex couples;
3) Parliament has to all intents and purposes ceded to the General Assembly of the Church of England the power to make laws for the Church of England which have doctrinal consequences;
4) Government does not wish (and probably could not) make laws which have doctrinal effect for the Church of England contrary to the views and intentions of the General Assembly.212
7. That is why, for example, clause 1(4) of the Bill disapplies, in the case of same sex couples, the common law obligation on the Church of England to marry any couple in the parish who wished to be married. It is also why, according to the Government, it has been thought necessary to draft the Bill in such a way as to afford different treatment to the Church of England and the Church in Wales, with regard to the process by which those organisations may opt-in to same sex marriage.
8. There are two issues in particular that have given rise to particular concern amongst those considering the Bill that we propose to address—
1) Whether the provisions of the Bill that aIm to prevent religious organisations and individual office-holders from being compelled to conduct, or to permit, same sex marriage ceremonies, are compatible with the human rights of same sex couples and will therefore survive challenge in the domestic courts and/or in the European Court of Human Rights ("ECtHR");
2) Whether the enactment into law of same sex marriage would be likely to lead to the disciplining, including dismissal, of any teacher who refused to convey a view of marriage which extended to same sex couples, or of a registrar who refused to conduct a same sex marriage ceremony.
9. Our view, in summary, on these issues is as follows:
211 Argar v Holdsworth (1758) 2 Lee 515; R v James (1850) 3 Car & Kir 167, CCR; Legal Opinions concerning the Church of England (Church House Publishing, 8th Edn, 2007), pp. 376-382; see also Halsbury's Laws of England (online version) (5'" Edition 2009), volume 72 Matrimonial and Civil Partnership Law at [57] (visited 10'" February 2013). 212 The process by which legislation for the Church of England is made is set out in Halsbury's Laws of England, Ecclesiastical Law (Volume 34 (2011) 5th Edition).
168 Letter to the Chair, and supplementary written evidence from Mark Hammond, Chief Executive, Equality and Human Rights Commission (BILLS (13–14) 007)
1) It does not breach the rights of same sex couples to restrict their opportunities for a religious marriage ceremony to those organisations and individual office-holders who consent to such a ceremony. We consider it to be extremely unlikely that any different view would be taken by the courts, including the ECtHR when considering the provisions of the European Convention on Human Rights ("ECHR");
2) The enactment into law of same sex marriage will not change the longstanding position in employment law, that teachers can be required to teach a curriculum accurately whether or not they agree with its contents. It has always been the case that in certain circumstances employees (including teachers and registrars) can be disciplined for actively promoting a particular viewpoint without the permission of, or contrary to the wishes or instructions of, their employer. Thus, if the Bill were to be enacted, a registrar could be disciplined for refusing to conduct a same sex marriage and a teacher could be disciplined for refusing to teach any relevant part of the curriculum that concerned the law on marriage. In neither case would there be a contravention of the person's human rights.213
10. We set out the reasons for these views in more detail below. We should make clear that in formulating this Joint Advice we have considered an Advice of Aidan O'Neill QC on some issues raised by the legalisation of same sex marriage ("the O'Neill Advice") and the response of the Department of Culture Media and Sport ("DCMS") to the O'Neill Advice.
Protections for religious organisations
11. The Convention rights relevant to the present context are:
— The right to marry under Article 12 ECHR.
— The right to freedom of thought, conscience and religion under Article 9 ECHR.
— The right to freedom of expression under Article 10.
— The prohibition of discrimination by Article 14 ECHR.
12. It is for states to determine exactly what marriage entails within a particular state; the ECtHR has recently confirmed that the right to marry in Article 12 ECHR does not require Contracting States to provide for access to marriage by same sex couples: Schalk and Kopf v Austria (2011) 53 EHRR 20, [57]. It remains a matter for
213 As always the context in which a breach of the ECHR is said to arise is important. As these cases may engage with rights of freedom of expression the context in which a teacher expresses his or her views may be very important. Our opinion in this paragraph is given in relation to a deliberate and maintained refusal to conform to the relevant institution's curriculum.
169 Letter to the Chair, and supplementary written evidence from Mark Hammond, Chief Executive, Equality and Human Rights Commission (BILLS (13–14) 007) national regulation by the Contracting States whether to allow same sex marriage:
[61]. Therefore, the outcome of the case was that Article 12 did not require Austria to grant a same sex couple access to marriage: [63]. However, if (as the Bill generally proposes) the definition of marriage under English and Welsh law is redefined by legislation so as to include same sex couples in our view the ECtHR would consider that within England and Wales a same sex couple could rely upon the right to marriage in Article 12.
13. We recognise that same sex couples who did not like the exceptions in the specific enactments proposed in the new Bill might seek to challenge those exceptions by reference to Article 12. However we are firmly of the view that a challenge to the new law under Article 12 alone would fail; this is because the Bill confers the right for same sex couples to marry and the restrictions, which the Bill proposes should be imposed, on the exercise of that right, are essentially very limited and do not, in any sense, render the right to enter into a same sex marriage an illusory or ineffective right. It is clear beyond doubt that if the Bill were passed same sex marriages will be capable of being conducted by civil ceremonies in thousands of venues up and down the country, and indeed will also be capable of being conducted in at least certain religious settings.
14. We also recognise that a same sex couple who, because of these exceptions was unable to marry by a religious ceremony of their choice, might wish to contend that they were the victims of discrimination falling within the ambit of the right to marry in Article 12, and contravening Article 14.
15. Their argument might be that it was not open to them to have a religious ceremony in circumstances where such a ceremony would be open to an opposite sex couple. This argument would no doubt be based on the well-established principle that even though the ECHR does not require the conferral of a particular right, if a Contracting State decides to confer such a right, it must do so in terms that do not give rise to unlawful discrimination contrary to Article 14.214 It is indeed the law under the ECHR that while it is entirely open to the UK to prohibit access to marriage by same sex couples (as is currently the position), once it decides to permit access to marriage by same sex couples, it must do so on a basis that does not discriminate against same sex couples contrary to Article 14.
16. In that context, same sex couples could seek to draw a comparison with opposite sex couples for the purposes of seeking to complain of discrimination on
214 See, for instance, the recent judgment ;;erife Yigit v Turkey (2011) 53 EHRR 25, in relation to social security benefits in which the ECtHR stated at [58] that - "although art.1 of Protocol No.1 does not include the right to receive a social-security payment of any kind, if a state does decide to create a benefits scheme, it must do so in a manner which is compatible with art. 14".
170 Letter to the Chair, and supplementary written evidence from Mark Hammond, Chief Executive, Equality and Human Rights Commission (BILLS (13–14) 007) grounds of sexual orientation contrary to Article 14. Thus, the ECtHR held in Schalk and Kapf that a same sex couple wishing to marry could not be prevented from relying on Article 14 by virtue of not being in an analogous, or relevantly similar, position as compared with an opposite-sex couple: [99].
17. We do not think that the success of such a claim would depend upon whether the religious organisation or office holder refusing consent was in some sense an emanation of the state. The complaint would be that by permitting religious organisations to opt-out of, or decline to opt-in to, same sex marriage, the state had legislated in such a way as to discriminate against same sex couples.
18. However, whilst we recognise that a complaint could be made pursuant to Article 12 read with Article 14, we advise that such a complaint would in our view certainly fail in the courts, including in the ECtHR for the following reasons—
1) Firstly it has to be recalled that Article 14 does not prohibit all differences in treatment of persons in comparable circumstances, but only such different treatment as is not objectively justified;
2) As to that, there is in our view a clear and obvious justification for the limited difference of treatment by the Bill of same sex and opposite sex couples; this justification is rooted in the state's obligation to protect the rights of religious organisations to freedom of thought, conscience and religion pursuant to Article 9 ECHR;
3) Though freedom to manifest thought, conscience and religion is not an absolute right, there are compelling and indeed overwhelming reasons why it would be a breach of the Article 9 rights of a religious organisation if it were to be compelled to conduct or permit a same sex marriage, contrary to its doctrinal beliefs; no person (or state) can compel a religious obligation to change its doctrinal beliefs215 and it is not necessary216 that such organisations should be compelled to change their practices of only conducting marriages in accordance with those beliefs where marriage between same sex couples will be readily obtainable in other ways;
4) It is thus plainly legitimate for the Government to frame the Bill so as to create (or perpetuate) a difference of treatment between same sex and different sex couples so as to avoid the position whereby a religious
215 The right in Article 9(1) ECHR to freedom of thought conscience and religion is absolute; it is only the right to manifest those beliefs in Article 9(2) that is qualified. 216 If as here there will be a multitude of opportunities for same sex couples to marry in civil ceremonies.
171 Letter to the Chair, and supplementary written evidence from Mark Hammond, Chief Executive, Equality and Human Rights Commission (BILLS (13–14) 007)
organisation was forced, contrary to its beliefs, to conduct or permit a same sex marriage ceremony.
19. Although arguments that a difference of treatment on grounds of sexual orientation is justified are generally scrutinised by the courts (including the ECtHR) with considerable care, we are confident that the protections for religious organisations within the Bill will survive that scrutiny. The domestic courts would afford a very wide discretionary area of judgment, and the ECtHR a very wide margin of appreciation, when considering a challenge to the provisions of a law enacted in the terms of the Bill.
20. We advise that this will be so because of the controversy surrounding this issue, the need to strike a balance between competing and incommensurable rights and the fact that the new law in the UK will be considerably more liberal than that in most other Contracting States in the Council of Europe.
21. Against that background, a justification advanced on the basis that religious organisations ought not to be compelled, contrary to their beliefs, to conduct or permit same sex marriage ceremonies, is in our view certain to be accepted, both by the domestic courts and by the ECtHR.
22. It follows that, in our view, the basic approach of the Bill is compatible with the Convention rights of same sex couples.
23. We add that, in our view, the Bill is compatible with the rights of religious organisations and office-holders, who could not realistically complain about a state of affairs whereby they were permitted, but not compelled, to conduct or consent to a same sex marriage.
24. These views do not mean that there would not be an attempt either by a same sex couple or a religious organisation to challenge the provisions of the Bill if enacted, here or in the ECtHR. No legislation could realistically prohibit or prevent that. It is simply our view based on the application of very basic principles of human rights law and the relevant jurisprudence of the ECtHR that such applications would not succeed. Fear to the contrary are misplaced and can be properly set aside.
Employment law implications
25. The second principal issue, on which debate surrounding the Bill has focused, concerns the position of public sector employees, in particular teachers and registrars, who have a conscientious objection to the marriage of same sex couples. These concerns are quite understandable given that this Bill proposes to make changes to a concept of such long standing and given that the idea of marriage as the
172 Letter to the Chair, and supplementary written evidence from Mark Hammond, Chief Executive, Equality and Human Rights Commission (BILLS (13–14) 007) union of one man and- one woman is a matter of doctrinal importance to a range of different mainstream religious organisations. The Bill obviously raises issues about the legal relationship between religious conscience and work practice and obligations.
26. This is not a new problem. It perhaps first became of importance since the second World War with the relaxation of the laws on Sunday trading and the concomitant that workers would be more frequently expected to work or to work longer on Sundays. This particularly affected some Christian workers. It has been an issue for Muslims who have wished to attend Friday prayers or for Jews who wished to cease work at dusk on Fridays. There are many examples of a similar kind.
27. The role of the law is to respect difference between peoples, whilst striking a balance between the beliefs of an employee and the reasonable needs of an employer. In some positions, a person's religious beliefs may be of the first importance to the job.217 In others the job is of such importance that the workplace rules are wholly indifferent to major aspects of religious practice.218 There is of course a range of circumstances in between and it is the role of new statutory provisions, which seek to regulate this territory, to do so in an appropriate and proportionate way.
28. Certain scenarios have been discussed in the O'Neill Advice and it has been suggested that if the Bill is enacted employees will face discipline, including dismissal, for continuing to hold and to express conscientious objections to same sex marriage. We shall consider the general nature of these objections, not from the point of view of marriage per se but—because these are essentially objections between religious and civil practice - from the point of view of the right to exercise religious difference at work.
29. Thus we make two preliminary points. First, the employment issues potentially raised by the Bill are by no means new. There are any number of issues on which the law has moved ahead of the religious beliefs held by certain organisations and individuals, including for example the legalisation of homosexuality, the introduction of civil partnerships and the availability of abortion: Conflict between the requirements of employers and the beliefs held by their employees is, accordingly, a longstanding phenomenon and has been accommodated by English law in a manner which, in almost all cases, has conformed with the ECHR (as confirmed by the
217 For instance it is recognised that in the religiously divided communities of Northern Ireland the legislature should not prevent religious schools from appointing to certain key posts workers who are of the same religious belief. This was made explicitly clear by Article 15 of Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation ("the Framework Directive"). 218 For instance it would be wholly inappropriate for members of the Ambulance or other first responder services to refuse on religious grounds to touch a person.
173 Letter to the Chair, and supplementary written evidence from Mark Hammond, Chief Executive, Equality and Human Rights Commission (BILLS (13–14) 007) recent ruling of the ECtHR in Eweida and others v United Kingdom (appl. 48420/10, judgment of 15 January 2013)). There is nothing intrinsically different about the issues raised by same sex marriage.
30. The second preliminary point is that under the Bill as currently drafted, with its protections against compulsion to conduct or consent to same sex marriage, it. remains an entirely lawful and legitimate philosophical/religious view that marriage should be restricted to opposite sex couples. It is expressly provided that religious organisations and their office-holders may continue to hold that view and cannot be subject to legal liability for so doing. The Bill affirms and does not undermine the idea that marriage is both a civil and a religious social construct. The Bill does not interfere but rather respects the diversity of opinion about marriage as a social construct while making a decisive change about marriage as a civil construct. Parliaments have the right and often the duty to revisit civil social constructs and this Parliament is well within its democratic right to do so in relation to marriage.
31. Against that background, we would analyse the principal implications of the Bill for teachers and other public sector employees as follows:
1) It is extremely unlikely that anyone could lawfully be disciplined or dismissed for holding or expressing, outside the workplace, the belief—specifically provided for in legislation—that marriage should be restricted to opposite sex couples. It is only in the rarest of situations that a constraint on freedom of expression outside the workplace on an issue such as this could be invoked.219 We consider that the law prohibiting unfair dismissal and discrimination on grounds of religious belief could successfully be invoked by any employee subject to discipline for these reasons unless the way in which the employee had expressed themselves was such as to raise difficulties beyond the fact that he held such views. An example would be if the employee expressed his views in an abusive or violent way.
2) However, a teacher will certainly be expected to comply with the requirement of his employer that he accurately conveys to his students the state of the law on same sex marriage. Such a requirement could not reasonably be said to conflict with any religious beliefs. Moreover, the imposition of such an occupational qualification would be wholly consistent
219 Generally the freedom of expression about issues arising at work includes the freedom to use very strong language in debate and argument without being subject to dismissal: Fuentes Baba v Spain (2001) 31 EHRR 50, though the ECtHR has also emphasised that in some circumstances there is an obligation on civil servants to exercise discretion: Guja v Moldova (2011) 53 E.H.R.R. 16. In Guja the ECtHR emphasised that employees owed to their employer a duty of loyalty, reserve and discretion, and that was particularly so in the case of civil servants, whose mission was to assist the government.
174 Letter to the Chair, and supplementary written evidence from Mark Hammond, Chief Executive, Equality and Human Rights Commission (BILLS (13–14) 007)
with Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and -occupation.220
3) Similarly, a teacher could be disciplined for conveying his belief against same sex marriage in such a way as to attempt to indoctrinate his students. The classroom is not the place for the proselytisation of particular religious doctrine - assuming of course that the school was not a religious organisation holding these beliefs so that such conduct was within the school's own ethos. Exactly the same position would currently pertain to a teacher in a non-faith school who, for example, actively promoted views against abortion.
4) In a faith school, which would be content for teachers to promote views against same sex marriage, and indeed may encourage them to do so, it is difficult to envisage any legal difficulties arising from such conduct. The religious view against same sex marriage is, after all, a lawful view, and, in general, faith schools are entitled to promote to their students the tenets of their faith.
5) So far as registrars are concerned, the Bill does not contain any protection for registrars who do not wish to conduct a civil marriage of a same sex couple, on the grounds of their religious beliefs. It follows that a registrar could be disciplined for refusing to comply with a requirement of his employer to conduct a same sex marriage ceremony. We agree with the Government's position that, in these circumstances, any interference with the religious freedom of a registrar (which is, at best, limited) would be justified by the objective of ensuring that state provided marriage facilities are open to all without discrimination. That position is consistent with the judgment of the Court of Appeal in Ladele v Islington LBC [2010]1 W.L.R. 955 [2010] P.T.5.R. 982; [2010] r.c.R. 532, as recently upheld by the ECtHR in Eweida and others.221
The relationship between religious organisations and their office-holders
32. The Bill also has implications for the relationship between religious organisations and their office-holders (which phrase we use to refer to those who have power or responsibility to conduct religious marriages and marriages recognised by civil law).
220 We note that Article 4 of this Directive enables member states of the European Union to provide that there shall be no actionable discrimination where by reason of the nature of the particular occupational activities a particular belief or opinion is necessary. This has been transposed into domestic law some years ago and is now to be found in schedule 9 to the Equality Act 2010. 221 Ms Ladele's application to the ECtHR complaining that the judgment of the Court of Appeal in her case contrary to the ECHR was heard with Ms. Eweida's; it was unsuccessful.
175 Letter to the Chair, and supplementary written evidence from Mark Hammond, Chief Executive, Equality and Human Rights Commission (BILLS (13–14) 007)
33. Clause 2 makes it clear that both the relevant organisation and the individual office-holder must consent to what is necessary for a same sex marriage to be conducted. The intended extent of this protection for such religious office-holders is clear. The relevant passage of the Explanatory Memorandum to the Bill states—222
29. Clause 2 protects individuals and religious organisations who do not wish to conduct or participate in a religious marriage ceremony on the ground that it is a marriage of a same sex couple.
30. Subsection (1) states that individuals and religious organisations may not be compelled to carry out an "opt-in activity", which is defined in subsection (3) to mean the various types of activity relating to the decision of a religious organisation to opt in to solemnizing marriage for same sex couples. Subsection (3) also states that they can carry out an "opt-out activity", defined to mean an activity which reverses or modifies the effect of an opt-in activity.
31. Subsection (2) makes clear that individuals (for example, members of the clergy, and individuals authorised under the Marriage Act to be present at the solemnization of marriages on religious premises) may not be compelled to carry out, attend or take part in a religious marriage ceremony of a same sex couple. It also makes clear that individuals (for example, members of a religious organisation's governing authority) and religious organisations may not be compelled to consent to religious marriage ceremonies of same sex couples being . conducted. In each case this must be where the individuals or religious organisations do not wish to carry out the specified conduct because it concerns the marriage of a same sex couple.
34. This raises the possibility that an individual office-holder could refuse to conduct a same sex marriage even though his religious organisation had ruled that doctrine did not preclude same sex marriage, and that its office-holders should conduct such marriages. The nature of the protection that such a person enjoys is not spelled out in this clause. Plainly, it is intended to prevent a same sex couple from seeking a court order that such a person should conduct their marriage contrary to their religious beliefs. This is evident from clause 2(5) which inserts a new exception to section 29 of the Equality Act 2010 as paragraph 25A of Schedule 6 to that Act. Section 29 gives rights to individuals not to suffer discrimination by those who provide services and so without this amendment to the Equality Act 2010 it might
222 See http://www.publications.pariiament.uk/pa/bills/cbill/2012-2013/0126/en/2013/26en.htm (visited 11th February 2013).
176 Letter to the Chair, and supplementary written evidence from Mark Hammond, Chief Executive, Equality and Human Rights Commission (BILLS (13–14) 007) have been thought that, notwithstanding clause 2, same sex couples could invoke section 29 against religious organisations or office-holders.
35. However on the present drafting of clause 2 of the Bill, the prohibition on compulsion of a religious office-holder could be read so as to include compulsion of the office-holder by his religious organisation as well as by a same sex couple. Though it must also be added that (contrary to the position in relation to a couple as explained in the previous paragraph) how such an office-holder is supposed to be able to defend his or her proposed rights, as now expressed in clause 2, against his employing religious organisation or the organisation of which he is a member,223 is not made clear.
36. In fact, we consider that this omission is probably intentional since we do not think that the draftsman could have intended to preclude by clause 2 a religious organisation from taking disciplinary action against an office-holder who refused, contrary to the doctrine and instruction of such an organisation, to conduct a same sex marriage.
37. Such a prohibition would amount to a novel interference in the freedoms of religious organisations which would be difficult to justify under Article 9 ECHR and also, in all probability, conflict with Article 4 of the Framework Directive which, broadly, permits churches and other organisations with a religious ethos to require their employees to act in accordance with that ethos.224
38. There is, in our view, much to be said for clarifying the drafting of clause 2 so that it is made clear that it does not unduly restrict the freedom of religious organisations to enforce doctrine and instruction amongst their office-holders and employees, particularly where they are responsible for consistent adherence to the organisations doctrine.225
223 It is clear that such a person may well be in an employment relationship with such a person even if they are described as being an office-holder: see Percy v Church of Scotland Board of National Mission [2006] 2 A.C 28 [2006]2 W.L.R. 353 2006 S.C (H.L.) 1 2006 S.L.T. 11 [2006] I.CR. 134 and Moore v President of the Methodist Conference [2011] EWCA Civ 1581; [2012] Q.B. 735; [2012] 2 W.L.R. 1119; [2012] 2 All E.R. 934; [2012] LCR. 432; [2012] LR.L.R. 229. 224 The conclusion to Article 4 reflects Recital 24 of the Framework Directive which states "The European Union in its Declaration No 11 on the status of churches and non confessional organisations, annexed to the Final Act of the Amsterdam Treaty, has explicitly recognised that it respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States and that it equally respects the status of philosophical and non- confessional organisations. With this in view, Member States may maintain or lay down specific provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity." 225 We recognise that it is possible that a same sex couple might be able to persuade the religious organisation of which they were members to take disciplinary action against a minister or other officeholder who did not comply with the organisation's doctrine on same sex marriage. We do not
177 Letter to the Chair, and supplementary written evidence from Mark Hammond, Chief Executive, Equality and Human Rights Commission (BILLS (13–14) 007)
Aidan O'Neill QC's Scenarios
39. Finally, in drafting this section of our Joint Advice, we have given careful consideration to the DCMS publications which address the O'Neill Advice, in particular the document entitled "Analysis of Aidan O'Neill QC Scenarios". We consider that the views expressed by DCMS are correct and would not wish to record any significant disagreement with what it has said.
Conclusions
40. In summary, therefore, we have concluded:
1) It does not breach the rights of same sex couples to restrict their opportunities for a religious marriage ceremony to those organisations and individual office-holders who consent to such a ceremony. It is extremely unlikely that any different view would be taken by the courts, including the ECtHR.
2) The enactment into law of same sex marriage will not change the longstanding position in employment law, that teachers can be required to teach a curriculum accurately whether or not they agree with its contents. It has always been the case that in certain circumstances employees (including teachers and registrars) can be disciplined for actively promoting a particular viewpoint without the permission of, or contrary to the wishes or instructions of, their employer. Thus, if the Bill were to be enacted, a registrar could be disciplined for refusing to conduct a same sex marriage and a teacher could be disciplined for refusing to teach any relevant part of the curriculum that concerned the law on marriage. In neither case would there be a contravention of the person's human rights.226
41. Overall, from the point of view of the maintenance of a culture of human rights and of respecting diversity and imposing the least constraint necessary in a democratic society, we commend the draftsmen of this Bill for their care and thoughtfulness. It is clear that it represents a very careful consideration of the protections which need to be afforded and the Government's intention to make a step change in the concept of a civil marriage. That is not to say it cannot be improved but the drafting reflects an obvious intention to exercise great care in
consider that clause 2 is intended to preclude this (nor that it would be contrary to Article 9 ECHR) but it would perhaps also be sensible to make this clear in an appropriate way. 226 As always the context in which a breach of the ECHR is said to arise is important. As these cases may engage with rights of freedom of expression the context in which a teacher expresses his or her views may be very important. Our opinion in this paragraph is given in relation to a deliberate and maintained refusal to conform to the relevant institution's curriculum.
178 Letter to the Chair, and supplementary written evidence from Mark Hammond, Chief Executive, Equality and Human Rights Commission (BILLS (13–14) 007) drawing the dividing lines between religious freedom, freedom of expression and a desired progress towards a more inclusive concept of marriage as a civil status.
42. If we can be of any further assistance, our Instructing Solicitor should not hesitate to contact us.
11 February 2013
179 Letter to the Chair, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture, Media and Sport (BILLS (13–14) 016) Letter to the Chair, from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture, Media and Sport (BILLS (13–14) 016)
Following my letter of 5 February accompanied by a note for the Committee on the human rights implications of the Bill’s measures, I attach a supplementary note on various Government amendments made at Report stage in the Commons, where they have human rights implications, I hope the Committee will find this helpful.
I am placing copies of this letter and attachment in the House Libraries.
6 June 2013
Supplementary written evidence from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture, Media and Sport (BILLS (13–14) 016A)
Introduction
1. The Government Equalities Office (part of the Department for: Culture, Media & Sport) submitted a note on 5 February 2013 to the Joint Committee on Human Rights shortly after introduction of the Marriage (Same Sex Couples) Bill in the House of Commons on 24 January 2013. This supplementary note addresses various Government amendments tabled at Commons Report on 20 and 21 May 2013, where they have human rights implications, and also a recent development in case law.
2. The Government is satisfied that these amendments are compatible with the Convention rights.
Employed chaplains (Article 9)
3. New subsection (5) of clause 2 of the Bill provides protection for employed chaplains of secular organisations who do not wish to conduct or participate in a religious same sex marriage ceremony. If (a) such an 'unwilling' individual belongs to a religious organisation which has opted in to the solemnization of same sex marriage and is employed as a chaplain by an organisation other than the religious organisation (e.g. the armed forces, a hospital or a university), (b) the employer has registered a chapel for the solemnization of same sex marriage and (c) the employer routinely provides for its employed chaplains to provide marriage services for its employees, then a gay or lesbian employee will not be able to bring a claim against the chaplain under the work provisions of the Equality Act (EA) 2010. Clause 2(5)
180 Supplementary written evidence from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture, Media and Sport (BILLS (13–14) 016A) provides an exception from the provisions of the EA 2010 which provide that an employee can be personally liable for unlawful acts committed in the course of employment. In such circumstances, the employer will be able to arrange for another individual to conduct such a ceremony. Therefore, for the same reasons outlined at paragraphs 36-38 of the main note, we consider that the rights and freedoms of the religious organisation and the gay or lesbian employee are not infringed by this conduct.
Church in Wales (Article 9)
4. Clause 8(2) has been amended to provide that the Lord Chancellor is required to make an Order as he considers appropriate to allow for the marriage of same sex couples according to the rites of the Church in Wales. The previous wording was permissive but this has now been amended to make clear that there is a duty on the Lord Chancellor. This was done in order to satisfy the Church in Wales that their religious freedom would not be infringed by their reliance on a Minister.
Registrars (Article 14 read with Article 9)
5. Following the judgment published on 15 January 2013 of the European Court of Human Rights (ECtHR) in Ladele v the United Kingdom, Ms Ladele (and the other unsuccessful applicants in related cases) applied to the ECtHR for a referral of her case to the Grand Chamber. The ECtHR decided on 27 May not to refer the case and so the judgment of the Chamber published in January has now become final.
Occupational pensions and survivor benefits (Article 14 read with Article 1 of the first Protocol)
Benefits dependent on marriage of same sex couples
6. Paragraph 17 of Schedule 4 to the Bill has been amended to provide an exception to the general approach taken to treat same sex married couples for the purpose of occupational pensions and survivor benefits in the same way as civil partners. The exception is provided where the survivor was in an opposite sex marriage which continued as a same sex marriage after their spouse changed legal gender. In that case, the scheme must provide a survivor's pension equivalent to that which would have been provided to the individual were they a surviving opposite sex spouse. This maintains the expectation that a spouse of the member had when they were in an opposite sex marriage.
Minimum pensions for widows and widowers—marriages where one spouse changes legal gender
181 Supplementary written evidence from Rt Hon Hugh Robertson MP, Minister for Sport and Tourism, Department for Culture, Media and Sport (BILLS (13–14) 016A)
7. Paragraphs 18 to 26 of Schedule 4 have been amended to make similar provision. Under the Bill, where one spouse in a marriage with a person of the opposite sex applies for a Gender Recognition Certificate, the marriage may continue as a marriage with a person of the same sex. It is proposed to treat a male surviving spouse of these marriages in the same way as surviving spouses of other marriages of same sex couples (which are aligned with requirements for widowers of opposite sex marriages and surviving civil partners); but an amendment has been made to make an exception to treat a female surviving spouse of these marriages in the same way as a widow of an opposite sex marriage.
8. This exception to the general rule seeks to ensure that the non-trans spouse is not disadvantaged as a consequence of their marriage becoming a marriage of a same sex couple. A widower whose marriage became a same sex marriage on the legal gender change of their spouse would have the same entitlement as they would have had, had their spouse not changed legal gender. Therefore the exception is only made for this group of widows.
9. This means that a woman whose husband has changed legal gender will be treated the same as if he had not changed legal gender. We consider that treating this particular group of female survivors of a same sex marriage differently from other female survivors of a same sex marriage is compatible with Convention rights. We consider that this group are not in a comparable situation to other female survivors of a same sex marriage in that these women were in an opposite sex marriage which has continued as a same sex marriage after the husband's legal gender change. The group is clearly distinguishable from other same sex couples (either civil partners or married couples) due to the unique characteristic that one of the spouses changed legal gender and the couple were previously in an opposite sex marriage. Civil partners and same sex spouses (where neither partner nor spouse has changed legal gender) have never had an expectation of survivor benefits based on accruals before 1988 (for contracted-out schemes) or 2005 (for contracted-in schemes), unlike wives in a same sex marriage, whose spouse changes their legal gender.
182