My Lords, I will also speak to Amendment 16. The Bill as drafted does not allow registrars to refuse to conduct civil same-sex marriages on the grounds that they have a conscientious objection to doing so. I am very grateful to the right reverend Prelate the Bishop of Leicester for putting his name to these amendments. Sadly, he is not here this evening but he is represented by the right reverend Prelate the Bishop of Hereford, who I am delighted to have supporting this clause. The proposed new clause in Amendment 16 will allow registrars to conscientiously object in limited circumstances. It will also ensure that all same-sex couples who wish to marry will be able to do so. There is only one reference to registrars in the Bill. It states that for the purposes of Clause 2(4)(b),
“‘person’ … does not include a registrar, a superintendent registrar or the Registrar General”.
This means that registrars will not be afforded the protection from compulsion that religious individuals have in relation to same-sex marriages in the religious context.
It is unclear to me why the drafters chose to mention registrars in a clause that deals only with marriages according to religious rites, termed relevant marriages within the clause, and not in a separate clause that deals with civil same-sex marriages. I find this particularly surprising given the recent decision of the European Court of Human Rights in Eweida and Others v United Kingdom. The noble Lord, Lord Anderson, mentioned it earlier. Miss Ladele was a registrar with a conscientious objection to performing civil partnerships. She was subjected to disciplinary proceedings because of her religious beliefs. Following the Ladele case, and, I have to say, the Government’s huge expense and the following media circus, one would have expected a more explicit reference to registrars in a clause dealing with registrars as a whole, not a small reference in a clause dedicated to marriages according to religious rites.
The absence of protection for registrars in the civil context contrasts markedly with the protection from compulsion that is given to the clergy or others within religious organisations. Why should the religious rights of the individual take precedence only in the context of religious marriages? Both the minister conducting the religious marriage and the registrar conducting the marriage in a register office carry out the same public function: both conduct legally recognised marriage ceremonies. Indeed, the Minister responsible for the Bill in the House of Commons said,
“Marriage is, in my view, a single institution that can be entered into either in a civil ceremony or in accordance with religious rites or usages”.—[Official Report, Commons, 26/2/13; col. 186.]
Our amendment and proposed new clause will permit all registrars, civil and religious, to exercise their right to freedom of conscience and religion while ensuring that same-sex couples are able to access civil or religious marriage ceremonies.
A conscientious objection clause such as the one we propose is not unprecedented. It will not have a detrimental effect on the Bill. Section 4 of the Abortion Act 1967, for example, allows for individuals with a conscientious objection to abstain from participating in abortions. Section 38 of the Human Fertilisation and Embryology Act 1990 allows any person to object to participation in the treatment and development of human embryos. Schedule 2(3) of the National Health Service regulations allows medical staff to refrain from providing contraceptive services—my noble friend Lord McColl knows more about this than I do. Under the Motor-Cycle Crash-Helmets (Religious Exemption) Act 1976, Sikhs do not have to wear helmets, while atheist teachers are not required to conduct collective services or to teach religious education.
These are just a few examples of conscientious objection clauses that already exist. The Government have provided no good reason for distinguishing between the individuals in those contexts and registrars in the same-sex marriage context. The Minister, in his response to the Public Bill Committee, said it is because “they are different”. That is not a satisfactory answer. Like registrars, all medical professionals and teachers provide a service and perform a public function. Why, then, should registrars be treated differently? Teachers perform different functions to medical professionals, and medical
professionals perform a different function to research scientists experimenting with human embryos. Why does it matter that they are different? What justifies this difference in treatment?
Subsection (1) of our proposed new clause draws partly in its phrasing on the conscientious objection clause in the Abortion Act, as does the requirement in subsection (3) that the,
“objection must be based on a sincerely held religious or other belief”.
Subsection (4), also like the Abortion Act, places the,
“burden of proof … on the person claiming to rely on it”.
Therefore, only individuals with a genuine, sincerely held religious or other belief may refuse to conduct same-sex marriages, and only if they can prove that their refusal is based on genuinely held religious or other beliefs. That is not an easy test to satisfy.
A conscientious objection clause in this area would not be completely unprecedented, either. While the Civil Partnership Act 2004 does not have an explicit conscientious objection clause, it does not require all registrars to be designated civil partnership registrars. The legislation simply requires registration authorities to ensure that there is a sufficient number of civil partnership registrars for the area. Across the United Kingdom, registrars’ beliefs have been accommodated by local authorities, allowing those with sincerely held religious objections not to be designated as civil partnership registrars. By doing this, local authorities protect both the rights of same-sex couples and registrars.
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Ladele—a case mentioned earlier by the noble Lord, Lord Anderson of Swansea—was the exception. Miss Ladele’s local authority forced her to choose between her job and her faith. By doing so, it sparked an unnecessary controversy that has been extensively reported in the press and appealed all the way up to the European Court of Human Rights. Forcing Miss Ladele to make this difficult decision was unnecessary, because the local authority had enough registrars to cope with the demand for civil partnerships. Her conscientious objection had not prevented any couple entering a civil partnership. Her opposition was not known to the public or any service users until she was dismissed. Moreover, she did not use her belief as a platform from which to make a political point.
The case and the controversy could have been avoided if her local authority had taken the same approach as many others across the UK and allowed her to continue in her employment without conducting civil partnerships. Our amendment would merely legislate for and endorse the approach that has already been adopted by both sensible and tolerant authorities who were prepared to live and let live. Without our new clause, that sensible result will not be achievable in the context of same-sex marriages, because all registrars will automatically be required to conduct same-sex marriages without any further action, such as designation, having to be taken. By placing this clause in the Bill, we will prevent further cases like Ladele.