My Lords, I rise to speak to Amendments 17 and 18, which are in my name. Although they have both been given the heading, “Meaning of ‘compelled’”, each raises distinct points. First, I wish to state my appreciation that the Government are keen to listen to concerns over the current drafting of the religious freedom protections in the Bill. The Secretary of State said in the other place that she,
“would never introduce a Bill that encroaches or threatens religious freedoms”.—[Official Report, Commons, 11/12/12; col. 157.]
The Government’s impact assessment helpfully outlined that the Bill should,
“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”.
I am grateful for the Government’s stated intentions but put my name to both these amendments as I believe that the Bill may encroach on such freedoms and that there is a threat of litigation.
I will deal first with Amendment 17. The Government have widely publicised the quadruple locks that supposedly protect religious individuals and organisations. One of those so-called locks is the protection from compulsion, which is supposed to ensure that religious individuals and organisations will not be required, under any circumstances, to conduct same-sex marriages if they object to them. This protection from compulsion is given for two different situations. First, in Clause 2(1), there is a prohibition against compelling any organisation to take the necessary procedural step of opting in, which would enable them to go on to conduct the actual ceremonies. Secondly, in Clause 2(2), there is a prohibition against compelling any person to “conduct” or “participate in” the same-sex marriage ceremony. At first sight, the lock appears comprehensive and wide-ranging, and the Government would have us believe that this is so. However, in reality, the lock is very narrow in scope because there is absolutely no definition in the Bill of “compelled”. That omission creates uncertainty and possibly limits the scope of protection offered by the clause.
This concern was recognised by the Joint Committee on Human Rights, of which I am a member, in its recent report on the Bill. The report is perhaps interesting in that it is unanimous, despite members of the committee holding different views on the principle of the Bill. Paragraph 69 recommends that the Government reconsider the issue,
“as to whether religious organisations”—
or people—
“may suffer some form of detriment as a result of their position on same sex marriage in a number of contexts which fall outside the scope of the Bill”.
Such reconsideration would, in my view, include considering whether to bring forward amendments such as those that we see today.
The new clause proposed in Amendment 17 would clarify the meaning of “compelled” for the purposes of Clause 2 and thus ensure that the lock provides the
breadth of intended protection. The need for clarification was made more evident by the Minister during the Public Bill Committee, when he said that the meaning of “compelled” was,
“absolutely not borrowed from the Matrimonial Causes Act”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 28/2/13; col. 280.]
This statement makes it unclear where, if anywhere, the word “compelled” has a legislative precedent. In the limited case law that is available in other contexts, protection from compulsion essentially provides protection only from the imposition of a criminal penalty.
For example, individuals are protected from being compelled to incriminate themselves when giving evidence in court. Clause 2 is therefore likely to protect individuals and organisations from criminal punishment but it is unclear what else individuals and organisations are protected from. The Explanatory Notes state that compulsion,
“would include, but not be limited to, attempts to use criminal or civil law, contractual clauses, or the imposition of any detriment to force a person to carry out such an activity.”
However, Clause 2 as currently drafted does not reflect the Explanatory Notes and may not prevent public bodies treating religious organisations less favourably if they decide not to opt in to the same-sex marriage provisions.