BILLS (12-13) 149A 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: “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”. 1 BILLS (12-13) 149A 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. 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? 2 BILLS (12-13) 149A 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 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. 3 BILLS (12-13) 149A 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. 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.