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Marriage (Same Sex Couples) Bill: Evidence to the Joint Committee on Human Rights

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’) 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 ’ 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 , Bishops and Auxiliary Bishops of the twenty-two within England and Wales, the of the Forces (Military ), the Apostolic of the Ukrainian in , the Ordinary of the of , and the Apostolic 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 , 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.

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 BILLS (12-13) 147

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 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, BILLS (12-13) 147

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 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.

Christopher McCrudden 15th April 2013

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Appendix:

Human Rights Implications of the Marriage (Same Sex Couples) Bill: Advice to the Catholic Bishops’ Conference of England and Wales (15th April 2013)