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