My Lords, I am deeply concerned about the potentially divisive nature of this Bill. Mention was made a number of times at Second Reading and has been made again in the two days when we have been considering amendments of the serious potential for unintended consequences. We need to consider this very carefully indeed. There is a huge risk that faith communities and church congregations find themselves in dispute as a consequence of this Bill where no dispute existed previously.
Given the strong differences of views on same-sex marriage, there is enormous scope for minority elements within congregations to seek to register premises for same-sex weddings against the wishes of their denomination or majority. The vague drafting of this clause leaves too much to chance. Under the Bill as drafted, it is not clear what “recognised” actually means. What does it mean for members of a religious organisation to recognise an authority that is competent to give consent on this issue? Who are the members of a religious organisation? It is impossible to catalogue the variety of ways in which churches and religious bodies identify their membership. What mechanisms are local authorities and courts to use in attempting to address this question?
The governance arrangements that exist within different churches can be quite complex and sometimes unclear. Some churches may require a member to have fulfilled a formal process. Some will use written lists. Others will use an electoral roll. Even these lists might not reflect the number of people in attendance at any meeting. Some churches are structured in such a way that it is considered best not to have a formal system of membership. Church structures are very complicated. It is possible for the situation to become confusing, with claim and counterclaim being made about who possesses authority to speak for the organisation in binding its membership to conducting same-sex marriages.
There will be huge pressure on churches which do not want to opt in. Local authorities may be strong advocates of same-sex marriage and may happily take the consent of a liberal faction as being binding on the whole organisation. It is necessary to set out clear statutory principles to handle inevitable disputes. Local authorities must hold the tools to assess or reject applications to register a building for same-sex marriages, but the local registry office that receives the application has no legal basis on which to determine an application.
It could be very easy to register the church for same-sex marriages, just by the proprietor making an application accompanied by something that seems to show consent. Consent may be given by a wing, a faction, a sub-committee of a denomination, but that does not mean they are representative or legally and morally competent to give consent. It is not clear what constitutes evidence of consent? Under the Bill, a letter is sufficient, but given the internal complexities involved, have the Government considered any additional requirements to verify the issue of consent? Is there any guidance on the consequences of the local authority wrongly approving an application?
It is unrealistic to expect that all local authorities will have a grasp of the internal politics and structures of every religious body. Without a clear framework they will not have the ability to ascertain who exercises the proper legal responsibility for such decisions within each of a wide range of churches with their innumerable variations of governance, locations, interests, hierarchies and systems.
The purpose of Amendment 20 is to define “recognised” and “members” and the consent that would apply to issues on registering buildings, filling gaps in the Bill and reducing the potential for problems down the line. It promotes consistency across the boundaries of different local authorities. It provides mechanisms for achieving clarity when there are opposing claims about who is legally able to speak on behalf of a particular church or faith organisation.
The amendment makes it clearer whether applications are in line with the respective church’s typical decision-making methods. Because of the sensitivities involved, in the event of an unresolved dispute, Amendment 20 would require the Secretary of State to become involved and therefore establish a uniform approach across central and local government. The Government have created the problem by their drafting, so they should take ultimate responsibility for solving individual problems that may arise.
If it is evident that proper processes have been ignored or deliberately manipulated, the Secretary of State should have the power to order a ballot of church members, as set out under the amendment. In such a ballot, a majority vote of two-thirds would be required to authorise the religious body to either opt in or opt out of the same-sex marriage registration system. This, of course, may come with its own complications, which is why it is so crucial to attempt to define in statute what constitutes membership.
Two words have been repeated again and again in debate on the Bill: “divisive” and “discriminatory”. It is possible that, despite reassurances, if the Bill is introduced, it will create more discrimination than it seeks to solve and cause divisions where none existed before. The amendment proposed by the Minister—Amendment 21—is helpful but it needs to go further. I hope the Minister will give this amendment very serious consideration.