My Lords, obviously they cannot yet have been sacked because of this legislation, because it is not yet an Act. As my noble friend may recall, we debated the position of registrars at some length on Monday evening. The explanation given then was that registrars perform a public function. As was pointed out by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, judges, who also exercise a public function, are not allowed to pick and choose which cases come before them. Similarly, a local authority could not have a policy of refusing to promote staff who have expressed a belief that marriage should only be between a man and a woman. This would be unlawful direct discrimination, and the equality
duty requires public authorities to have due regard to the need to eliminate such discrimination. The equality duty cannot make lawful an otherwise unlawful or oppressive act.
My noble friend Lady Berridge quoted the impact assessment regarding the threat of litigation. It is of course not possible completely to rule out any possibility of somebody bringing legal proceedings. I think it was the noble Lord, Lord Alli, who pointed out—and as my noble friend Lord Lester quoted on Monday—some authorities do idiotic things. No legislation can provide for every eventuality. However, we believe that the Bill minimises this possibility as far as possible by making it absolutely explicit that those relying on Clause 2 are permitted to refuse to be involved in solemnising same-sex marriages. There would indeed be no cause of action. We believe that an application for strike-out could be made early in any proceedings, as there would be no reasonable prospect of success in such claims. The noble Baroness, Lady O’Loan, said that the inclusion of Clause 2(5) and (6) and the protection they provide undermine the protection which we believe is already in place with regard to Section 149 of the Equality Act 2010.
The amendments to the Equality Act 2010 in Clause 2 provide that it is not unlawful discrimination to refuse to carry out acts specified in Clause 2(2). These specific exceptions are provided to ensure that the Equality Act is not in conflict with the protection provided in Clause 2, so that the law is clear and consistent. This aspect of the Equality Act is the only area of legislation which requires this explicit treatment, as otherwise it would conflict with Clause 2.
We should also remember, as the noble Lord, Lord Pannick, indicated, that the equality duty is a duty only to have regard. It is not in itself a duty to act, but rather a duty to think. It does not require that particular action is taken or that any specific objective or outcome is achieved. As the noble Lord said, “having regard” also means that we have to have regard to primary legislation, such as what would be in this Act if the Bill is enacted. I hear what my noble friend Lady Knight says about concerns that sometimes guarantees do not always seem to follow through many years later. However, what we are dealing with here—I think that the noble Lord, Lord Pannick, made this point—is a fundamental part of the architecture of this legislation: namely, that there should be religious freedom not to opt in. Therefore, it would be unthinkable for a court not to have regard to a fundamental piece of the legislation we are passing. I certainly hear what the noble Baroness—