22 May 2013 Submission to the Joint Committee on Human Rights from the British Humanist Association

BILLS (13-14) 018 22 May 2013 Submission to the Joint Committee on Human Rights from the British Humanist Association. Proposal for short inquiry on the Law on Marriage as it Pertains to Non-Religious Beliefs The British Humanist Association (BHA) wishes to propose to the JCHR that, in the wake of the debate on legal recognition of humanist marriages in the House of Commons on 21 May 2013, the Committee could usefully conduct a short enquiry on the subject, with the focus on the legal and human rights questions raised in the debate. The BHA made a previous submission to the Committee in June 2009, updated material from which is repeated as background information in Annex 1 so that this Memorandum can focus on the immediate questions. At Annex 2 is a description of the BHA’s Humanist Ceremonies organisation. The problem that we suggest the Committee might examine is this. Humanists are followers of a non-religious belief that qualifies for the same legal treatment under human rights and equality and non-discrimination laws as any religion. However, for historical reasons the law on marriage discriminates against them. Any religion or religious denomination with a place of worship may register it for solemnisation of marriages and without further ado conduct weddings there that reflect their followers’ most profound beliefs. Humanists by the very nature of their beliefs have no places of worship and are thus unable to have comparable weddings. They have no alternative, therefore, if they wish to marry, than to have a civil ceremony in a register office or on “approved premises”. This will, however, be conducted by a registrar who may well not share their beliefs and who may not in any case for entirely proper reasons allow the ceremony to be any more distinctive of Humanism than it is of any religion. The law is therefore largely based on places where marriages may be solemnised. However, it has two important exceptions from this limitation: for Jews and for Quakers, who are free to conduct their marriages according to their own usages without restrictions as to place - or indeed to time of day. At the instigation of the British Humanist Association certain MPs therefore proposed as an amendment to the current Marriage (Same Sex Couples) Bill a new clause that provided that the Registrar-General might “by certificate approve organisations to solemnise marriages” of their members “according to their usages“, subject to certain conditions. These organisations would then “appoint persons to act as registering officers” who could then solemnise marriages subject to conditions closely modelled on those governing registering officers found elsewhere in the Marriage Act. Objections have been made to this proposal on three grounds: (a) that it represents a fundamental change in the law from a premises-based system to a celebrant-based system; (b) that the definition of the category of organisations that the Registrar-General might certify gives rise to difficulties, either of policy or of law; and (c) that the proposed amendment as drafted wrecks the so-called “quadruple lock” of safeguards for religious bodies from any compulsion to conduct same-sex marriages. The British Humanist Association denies the first allegation and seeks a way out of the difficulties of definition. We admit that the amendment was faulty in relation to the quadruple lock and provide herewith a corrected version of the relevant provisions. We invite the Committee to examine these three matters and make recommendations. A Celebrant-based System? Objectors in the debate on 21 May suggested that the proposed amendment represented a fundamental change in the legal basis for marriage from one of places where marriages may be solemnised to one of celebrants who may solemnise them. The British Humanist Association denies this contention: (a) The law already has significant exceptions from norm of being based on premises. As noted, Jews and Quakers may conduct marriages according to their usages with minimal or no restrictions save in respect of keeping registers and informing the Registrar-General. But there are other minor exceptions also: marriages by Archbishop’s special licence (Marriage Act 1949 sn 5(b)) and marriages of detained, housebound and terminally-ill persons (Marriage Act 1949 sn 26(1)(dd)) are not confined to places registered or approved for the solemnisation of marriage. (b) In any case, the amendment proposed to accommodate humanist marriage is not based on celebrants any more than the law about religious marriages. It is based on approval of organisations - just as the law already approves not just Jewish congregations and the Society of Friends but also churches and religious bodies other than the Church of England. These other churches etc must, if the presence of a registrar is not to be required, appoint authorised persons to be responsible for the legal registration of marriages and must certify their names and addresses to the Registrar-General (Marriage Act 1949, sn 43). This is the precise model on which the British Humanist Association’s proposal is based. Those who put forward this objection were, in our view, misled into drawing too close an analogy with the Scottish system, which is celebrant-based and does allow humanist marriages. It is not, however, the model for the proposal for England and Wales, which instead follows closely the precedents in the current law (and, incidentally, imposes greater requirements than are placed on the Jews and Quakers, e.g., in respect of the the form of words required and the presence of witnesses). BILLS (13-14) 018 Definition of Eligible Organisations The draft moved in the Committee stage of the Bill was in this form: The Registrar General may by certificate approve organisations to solemnise marriages according to their usages provided that any such organisation— (a) is a registered charity concerned with advancing or practising a religion or belief, including a non-religious belief; (b) does not possess or have the use of any registered place of worship; and (c) appears to the Registrar General to be of good repute. This had the virtue of a broad and non-discriminatory definition, including religious charities that had no registered places of worship. It might also have appealed to Muslims, whose marriages traditionally do not take place in mosques, subject to a further refinement of the drafting in (b) to say “does not possess or have the use of any place of worship registered for the solemnisation of marriage”, recognising the double registration system for places of worship. However, this aspect of the proposal attracted no attention or support either when canvassed to (for example) the Baha’is or in Committee. Moreover, at a subsequent meeting with Government officials we were strongly encouraged to limit the draft to humanist organisations on the grounds that it would otherwise admit some religious groups that might better be excluded on grounds of public policy. The amendment put forward at Report was therefore: (1) The Registrar General may by certificate approve organisations to solemnise marriages according to their usages provided that any such organisation— (a) is a registered charity principally concerned with advancing or practising the non-religious belief known as Humanism; (b) has been in continuous existence for five years; and (c) appears to the Registrar General to be of good repute. This was criticised in the debate by the Attorney-General on the basis that it would discriminate in a way contrary to Article 14 of the European Convention on Human Rights in favour of Humanism and against other non-religious beliefs and would therefore be open to legal challenge. We accept this criticism, albeit we note that the current law is open to exactly the same criticism since it discriminates unlawfully in favour of religious belief systems and against non-religious ones, of which Humanism is by far the most significant. As was observed by Lord Nicholls1 and 1 “[T]he difficult question of the criteria to be applied in deciding whether a belief is to be characterised as religious . will seldom, if ever, arise under the European Convention. it does not matter whether the . beliefs . are categorised as religious. Article 9 embraces freedom of thought, conscience and religion. The atheist, the agnostic, and by Lord Walker2 in a 2005 case before the House of Lords, the law is not normally interested in whether a belief is a religious one or not. Similarly, any other religion or denomination might bring a case on the grounds of the exceptional freedoms enjoyed by the Quakers and the Jews. Nevertheless, this presents a real difficulty, but one which we invite the Committee to agree is certainly soluble. The beginning of a solution lies in removing mention of Humanism from the amendment: (a) is a registered charity principally concerned with advancing or practising a non- religious belief; This, however, opens the proposal to all manner of miscellaneous bodies owing to the law’s wide (and arguably regrettable) interpretation of the word ‘belief’ in the European Convention on Human Rights.3 As Lord Walker stated in the case previously cited: “Pacifism, vegetarianism and total abstinence from alcohol are uncontroversial examples of beliefs which would fall within article 9.” If humanist marriages are therefore to be legally recognised, another route will have to be found to restrict the type of organisation that may be certified by the Registrar-General to solemnise marriages - a route that defines not the beliefs but the practices of the organisations in question. A beginning has been made already in version moved at the Report stage with the requirements as to continuous existence for five years and good repute. Possible additional restrictions to apply would include requirements: and the sceptic are as much entitled to freedom to hold and manifest their beliefs as the theist.

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