Indeed, my noble friend is right. Article 9 of the European Convention on Human Rights gives that right to freedom of religious belief and expression. The noble Baroness, Lady O’Loan, said that sometimes the courts are reluctant to second-guess public authorities. It is highly unlikely that the court would do something which is in direct contradiction
of what Parliament has clearly expressed and intended not just in the Bill but in all the statements that have been made by Ministers and, indeed, by almost everyone who has participated in these debates.
It is also important to note—again, this point was made by my noble friend Lord Lester and picked up by my noble friend Lord Deben—that amendments can sometimes have unintended and adverse consequences. I know that is certainly not the intention of the noble Baroness who moved this amendment, but the equality duty applies to and protects equally various protected characteristics, including religion or belief so a public authority has to bear in mind the impact of its policies on people holding different religious or philosophical beliefs, such as the belief that marriage should be only between a man and a woman. If, as the amendment proposes, a public authority is prevented from having any regard to individuals’ or organisations’ beliefs about same-sex marriage, it would be unable to consider how its own decisions could potentially discriminate against, or otherwise disadvantage, people who believe that marriage should be only between a man and a woman. That would remove an important protection for people who hold such a belief. I know that this is not what the noble Baroness intends but it illustrates the fact that when you try to solve one problem you can create another.
As I say, I recognise the concerns that some public bodies might be overzealous or mistaken in their exercise of the equality duty or misuse it to the detriment of those who do not agree with same-sex marriage. As I have indicated, no Government can give a copper-bottomed guarantee that some public authorities will not act irrationally. It is important that we ensure that public authorities understand their responsibilities under the Equality Act 2010 correctly, and how these relate to beliefs about marriage. With that in mind, the Equality and Human Rights Commission has undertaken to review its guidance for public authorities to ensure that the position is as clear as possible. As I have said, while I appreciate the intention behind this amendment, it is unnecessary and could have adverse consequences quite at odds with its intention.
I turn to Amendment 17. The concept of compulsion is readily understood in its natural meaning, and to subject anyone to any type of detriment or unfavourable treatment because they refuse to participate in any way in religious solemnization of same-sex marriages would clearly be understood as a violation of their legal right under this Bill not to participate. We are therefore confident that Clause 2 provides strong and effective protection to ensure that religious organisations and their representatives cannot be forced to participate in same-sex marriages against their belief. The Explanatory Notes to the Bill set out the position, as quoted by my noble friend Lady Berridge: the concept of compulsion is a broad one, which would include, but not be limited to, attempts to use criminal or civil law, contractual provisions or the imposition of any detriment to force a person to carry out the activities protected in Clause 2. The clause provides no specific remedy, but makes clear that no attempt at such compulsion would be upheld.
Less favourable treatment by a public authority of a person or organisation who does something which the Bill makes clear they are legally entitled to do would,
in itself, clearly be unlawful and open to judicial review. The imposition of any penalties—civil or criminal —on a religious organisation or representative in order to compel them to opt in, or to participate in, religious solemnisation of same-sex marriages is clearly unlawful under the Bill.
Clause 2 will clearly prevent criminal or civil action being taken against any religious organisation or representatives merely for refusing to undertake acts protected under this clause. This includes, but is not limited to, disciplinary or other action taken in the employment context. In all circumstances a person who has suffered a detriment simply because they have not done one of the acts specified in Clause 2 will be able to rely on the protections in that clause to show that such conduct is unlawful and to obtain a remedy within the context of the particular claim.
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Finally, Amendment 18 is again unnecessary as the Bill already makes clear that the decision to opt in or not is an internal doctrinal decision. It is a matter for the religious organisation involved and—as the noble Lord, Lord Pannick, clearly said—is not a public function. The amendment seems to acknowledge this because, as it says itself, it is drafted for the avoidance of doubt. The activities mentioned Clause 2 (1) are obviously activities which are private in nature, carried out by religious organisations which are of course not public authorities. The Government are confident that no religious organisation or representative could be susceptible to judicial review or challenge under the Human Rights Act 1998 or Equality Act 2010 in this regard.
I know that the noble Baroness, Lady O’Loan, and my noble friend Lady Berridge referred to the Joint Committee on Human Rights. We will give proper consideration to the points raised and respond to the Committee, but we again believe that this is a case where adding words to the Bill might simply increase what there is to argue about, and potentially water down the protection already provided, by casting doubt generally on what functions of a religious organisation are or are not considered to be a public function.
This is made clear if we actually look at the activities which constitute “opt-in activities”. These include decisions by the relevant governing authority of a religious organisation to give written consent for marriages of same-sex couples to take place and an application by such an organisation to the superintendent registrar for the solemnisation of marriages of same-sex couples to take place in a place of worship. These are clearly private functions. If, for example, the Bill were to explain that a decision by a religious organisation to apply to register one of its religious buildings for the solemnisation of same-sex marriages is not a public function, this would raise the question as to whether such an application in respect of opposite-sex marriages is currently a public function. I hope that this again illustrates the law of possible unintended consequences. However, I accept the suggestions that have been helpfully made. We will seek to put together a letter or document to respond to the different points that have been made. If, on receipt of that—