My Lords, following that logic, surely a conscientious objection must be as much to facilitating a marriage as performing it—otherwise, it puts into question what the nature of the conscientious objection is.
As public officials, marriage registrars must perform their duties for all members of the public, without discrimination on grounds of sexual orientation or any other matter. They should not be able to pick and choose which members of the public they provide their services to. Amendment 16 refers to,
“consent to the taking place of, a relevant marriage ceremony to which he has a conscientious objection … The conscientious objection must be based on a sincerely held religious or other belief”.
The noble Lord, Lord Alli, and my noble friend Lord Carlile of Berriew picked up on the point that that could include the marriage of divorcees. No doubt the right reverend Prelate will correct me if I am wrong, but certainly until relatively recently it was the position of the Church of England that it would not marry divorcees. Therefore, in many cases divorcees who could not marry had little choice but to go to a registrar. If the registrar adopted the same religious view as that taken by the Church of England and sought exemption through conscientious objection, it would beg the question of how the couple could ever find someone to marry them unless perhaps they found a non-Church of England church that would be willing to do so. The door is open to that kind of religious and conscientious objection. It is not a reasonable position that a public official should refuse to provide a service to a member of the public.
The right reverent Prelate the Bishop of Hereford and my noble friend Lady Berridge referred to the fact that the JCHR had reported on this. I rather share the view of the noble Baroness, Lady Thornton, that the position is slightly mixed. This is not a criticism, because clearly the committee heard difficult, competing evidence, and no doubt competing views such as those heard by the Committee this evening. Of course, the Government will give a considered response to the JCHR. It is a very tight timescale, but we would aim to do so before Report. I hope we can do that.
The Government are confident that the Equality Act 2010 provides the right balance between protecting the right of freedom of expression and the right to manifest one’s belief, alongside the need to protect the rights of others. As was said on a number of occasions in this debate, the European Court of Human Rights, in the Ladele case, supported this view. I will not go over all the details; they were well rehearsed. The United Kingdom refuted the case put by Ms Ladele when she went to the European Court of Human Rights. We argued that our law strikes the right balance between an employee’s right to express their religious beliefs at work and the rights of people not to be discriminated against because of sexual orientation. We believed our law was compatible with the convention and that the Court of Appeal made the right decision under domestic law and the convention, given the particular circumstances of the case. As has been noted, the Court of Human Rights generally upheld that view and noted that the court generally allows national authorities a wide margin of appreciation when it comes to striking a balance between competing convention rights. It held that the national authorities in this case, the local authority employer and the domestic courts, did not exceed that margin of appreciation available to them.
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We recognise the concern that a marriage registrar who held a belief that marriage should be only between a man and a woman could find him or herself in a difficult position once marriage is extended to same-sex couples. Much has been said, too, in the debate about the national panel for registration, which represents the local registration service across England and Wales
at a national level. Reference has also been made to the briefing that has been provided. In a letter to the Secretary of State as recently as 7 June, 10 days ago, the head of registration, coroner’s services and lead manager for cultural services, Jacquie Bugeja—I hope I do not do a disservice to her name—said:
“Secondly we have concerns that during the Bill’s passage there may have been repeated attempts to insert a conscience clause to enable registrars to opt out of marrying same-sex couples. As you are aware registrars are local authority employees and are expected to carry out all the functions that their role covers. At present this includes delivering civil partnership ceremonies. We do not believe that delivering equal marriage ceremonies will be any different and we strongly oppose the idea of such a conscience clause. Allowing some registrars to opt out of civil marriage for same-sex couples would be discriminatory and would cause administrative difficulties in delivering services. We consulted widely within the LRS during the consultation on equal marriage and we want to ensure you are aware that no member of the LRS has called for a conscience clause”.
I am happy to put this letter in the Library so that other noble Lords can see it.
I think the noble Lord, Lord Browne of Belmont, queried the position taken by the national registration panel and the right reverend the Prelate the Bishop of Hereford asked what evidence we had of the consultation, which it undertook itself—it was not the Government’s consultation. It had discussions within the service both during and since the public consultation on equal marriage. As a national representative body for registrars, I believe we have to accept its assessment of the view of its members.
Marriage registrars are public officials performing statutory functions on behalf of the state. Conducting marriage ceremonies is clearly part of their functions. It would not be right to allow them to discriminate by providing their services to some individuals but not to others—I recognise the comments that have been made—not even on a matter of conscience. I have no doubt we will return to this on Report, but in the mean time I ask my noble friend to withdraw her amendment.