I am grateful to my noble friend for her intervention and I will look back—I am afraid as a newer member of your Lordships’ House—at the history to which she refers.
The decisions where an organisation can be treated less favourably can be in situations where they are refused contracts, denied the use of public halls or denied funding. The Minister reiterated the narrowness of the behaviour covered in the Bill in the Public Bill Committee when he said that Clause 2 would have,
“the effect of preventing any type of conduct that would have the effect of forcing a person to do something protected under that clause”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 28/2/13; col. 280.]
Therefore, as long as the local authority is merely registering disapproval of the organisation’s views, or penalising the organisation, but is not attempting to compel it to opt-in to provide same-sex marriage, then the religious organisation has no protection under the Bill as currently drafted.
However, the Government’s response is that the religious group need not worry as such detrimental behaviour falling short of forcing it to do anything would be unlawful discrimination by the local authority and the charity would have a remedy for this under
the Equality Act. As I mentioned at Second Reading, expecting a charity to swap money, potentially from food banks, to legal fees to fight legal claims is not consistent with the state’s duty, performed in this instance by the local authority, to promote a plural civic square. Such funding reallocation is not, of course, in line with any growth in the big society and is diametrically opposed to the impact assessment of the Government which is the aim of removing the threat of litigation. The impact assessment means that the Government do not want religious groups being defendants in proceedings, so why are they advising the same religious groups to be the claimants in discrimination proceedings?
Just on a straightforward dictionary definition of compulsion, such unfavourable treatment as I have outlined is not, despite the Minister’s comments, covered. It is vital that the meaning of “compelled” is clarified in the Bill because the concept of compulsion is central to the Bill’s religious freedom protections and is not as readily understood as the Government assert.
In Committee on Monday there were many assertions about the effectiveness of the Equality Act, ranging from “foolproof” by the noble Lord, Lord Lester, to “shot through” by the noble and right reverend Lord, Lord Carey. This amendment would remove the need for a small charity to incur the expense of legal proceedings to establish that such detrimental behaviour is discrimination under the Equality Act. Surely the avoidance of litigation is a good thing.
This new clause will provide the necessary clarification and thus protect religious organisations from all legal penalties, criminal and civil, if they decide not to opt-in. It will ensure that religious organisations do not suffer at the hands of public authorities by making it clear that public authorities will be acting ultra vires if they penalise religious organisations for not opting-in. The onus is properly placed on the state not to act to the religious group’s detriment and not on the religious group to take action against the state. The new clause enshrines in statute the Government’s assurance that religious organisations will not be penalised in any circumstances for deciding not to opt-in to providing same-sex marriages if they object to them. Without further clarification in the Bill, the lock may not turn out to be much of a lock at all.
In relation to Amendment 18, it may be helpful if I turn from locks to keys. The key to a claim under the Human Rights Act, the Equality Act or judicial review is that the decision or action carried out by the religious organisation is clarified as a public function. Amendment 18 is necessary because, without it, religious organisations will be at risk of legal action on the ground that the decision to opt-in may be held to constitute a public function. As the noble Baroness, Lady O’Loan, has already explained, ministers in religious organisations outside of the established church can be authorised persons and thus conduct marriage ceremonies that are both religious and legally recognised. Such ministers, therefore, perform a public function. As the noble Baroness, Lady O’Loan, outlined, that was the understanding of the right honourable Jack Straw when he introduced the Human Rights Act and spoke in the other place. However, in the context of the established church, this was also the view obiter of
four Supreme Court judges in the case of Aston Cantlow v Wallbank. In delivering his judgment, Lord Hobhouse said:
“Thus the priest ministering in the parish may have responsibilities that are certainly not public, such as the supervision of the liturgies used or advising about doctrine, but may have other responsibilities which are of a public nature, such as a responsibility for marriages and burials and the keeping of registers”.
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In a recent letter to the Catholic Bishops’ Conference of England and Wales, the Secretary of State stated that:
“The parish priest, if he is also acting as the authorised person, is only performing a public function when he registers the marriage, not when he is conducting the liturgy. These are separate functions and we do not believe that the courts would have difficulty in finding them to be so”.
With respect, I disagree, and so do the lawyers. I put on record my thanks to Professor Chris McCrudden of Blackstone Chambers, a former professor of human rights law from Oxford, whose advice has been given to the Catholic Bishops’ Conference. I think that two or three comments will highlight the fallacy in the Government’s argument.
Only marriages valid under UK law, not merely religious marriages, should be entered on the register by a priest or an imam as the authorised person. If the priest conducted a marriage recognised under UK law during the liturgy, surely that was also the performance of a public function? Why does government guidance to authorised persons given in December 2012 outline the contracting and declaratory words that must be exchanged in the ceremony? It is because this is not just liturgy; it has to contain certain promises to be a marriage, and the authorised person performs the role for the state when he or she oversees and witnesses that these words are in fact included in the ceremony. Finally, if a spouse were to die after the ceremony but before the signing of the register, they are married under UK law. It is not merely the registering of the marriage which is the public function.
Perhaps the confusion has arisen for the Government in the name “registrar” in this context. When the state registrar registers births and deaths, they record merely the fact that an event has occurred, but their role in the marriage context is different. They witness and oversee the formation of the marriage, then later record the fact that the marriage has happened in the register. It is rather like the school classroom: the register is taken and that is recording merely the reality that you are physically present in the classroom. The religious and civil functions are not as easily separable as the Secretary of State would have us believe. A court is highly likely to find that the religious organisation is a hybrid body when officiating in marriage ceremonies.
In addition, the Joint Committee on Human Rights concluded that,
“the solemnisation of legally-binding marriage by any religious organisation under the provisions of the Marriage Act 1949 may be a public function”.
Given that it is highly likely that a religious minister conducting a legally recognised heterosexual marriage will be held to be exercising a public function, of course conducting same-sex marriages will also be a public function. So it is arguable that when religious
organisations make the decision to move from performing only heterosexual marriages to performing same-sex marriages as well, that decision could also be a public function.