My Lords, Amendment 48 stands in my name and those of the noble Lords, Lord Cormack and Lord Singh, both of whom are present this evening.
If Amendment 48 were adopted, after this Bill reached the statute books there would need to be a referendum of the people of England and Wales in which a simple majority supported the redefinition of marriage proposed by this Bill before the new legislation could take effect. The proposed new clause sets out the date—of course, that of the general election, to ensure a good turnout in the referendum. In my judgment, the question is a fair and simple yes or no to the proposed change.
I readily admit that there was a time when referendums were alien to our British tradition. Those of my grandparents’ generation never got to vote in any referendums. Of course, things have changed in recent years. Leaving aside the vote on Sunday opening of public houses in Wales, there was in 1975 the Common Market referendum; in 1979 the first devolution referendums; in 1997 the second devolution referendums; in 2011 the Welsh Assembly referendum; and of course there was the referendum on PR for Westminster elections in May 2011. If the Prime Minister has his way, in 2017 there will be a further referendum on our future membership of the European Union. That proposed referendum is on a relatively complex matter. By contrast, the referendum on this Bill would be a simple choice. In my view, there is a far greater public interest on this issue than in several of the other referendums. There is a clear constitutional precedent for the use of referendums now in decision-making and clearly the Government have no objection in principle to the use of referendums.
What is it about this particular issue that merits the provision of a referendum? I give three main reasons. First, there is the magnitude of the change. In the first instance, we need to recognise the very radical nature of the change proposed by the Bill. While there is no denying that aspects of marriage have changed over the years, the basic definition that it is a lifelong commitment of a man and a woman in a potentially procreative context has not changed for millennia. Indeed, there is a very real sense in which marriage predates the state and in which our marriage laws do not so much define marriage as reflect a pre-existing definition. In that context, seeking to redefine marriage is revolutionary: first, because marriage has been defined
in one way for so long; and secondly, because we are seeking to use a political means to redefine something that was not defined politically in the first place. Many champions of the limited state would suggest that we should respect the boundary between civil society and the state and not engage in such projects. However, if one is to do so, the need for a very clear mandate becomes particularly developed.
Secondly, there is the magnitude of the change in the absence of that electoral mandate. Surely no person speaking on behalf of the Government can plausibly claim that there is an electoral mandate for this change. We need to understand that there has been no mandate. It is one thing to seek to introduce a more modest change without an electoral mandate but to engage in this kind of fundamental change without such a mandate is frankly shocking. There was no manifesto commitment from any party within the coalition or from my own party without. Some have sought to point to the Conservative Party’s A Contract for Equalities as justification but that will not do. It was an entirely separate document from the 2010 manifesto, published just three days before the election and long after postal voting had begun. Moreover, that contract did not commit to redefine marriage, only to consider reclassifying civil partnerships as marriage—something that would have involved only amending the Civil Partnership Act, not rewriting the Marriage Act. Equally, during that election campaign the then leader of the Opposition told Sky News that he had no plans to redefine marriage. Of course, during the passage of the Civil Partnership Act it was made clear from the then Government’s Front Bench that that did not constitute a step towards equal marriage. Thus, the strength of particular pressure groups appears to be quite formidable.
Thirdly, there is the violation of constitutional due process. In this mandate-less context for a very far-reaching change, one would have expected the Government to tread with some deliberate care and to strive to make up for the lack of an electoral mandate by being careful to do everything very properly: conducting a number of high-quality consultations, perhaps publishing a Green Paper and then a White Paper, or perhaps establishing a royal commission. One would certainly have expected a draft Bill and some form of pre-legislative scrutiny by a Joint Committee of both Houses. The only thing we got was a single and very flawed consultation process. In the first instance of that process, all submissions were anonymous so there was nothing to stop people with strong views making multiple submissions. Moreover, the anonymity also means that we have no way of knowing what proportion of submissions came from abroad, perhaps in response to a particular foreign pressure group. That should certainly be considered in light of the fact that those submissions were not made by British citizens who stand to be affected by any change in our domestic law.
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Compounding the lack of regard for the electorate and the failure to bother with a manifesto mandate, the Government first intimated that the consultation would be on how, not whether, to redefine marriage. After protests, it was agreed that the first question should ask people whether they supported a redefinition
of marriage. Mindful of that first question and the fact that it was answered by the Coalition for Marriage petition, the coalition asked the Government in turn whether signatories to the petition could be counted as submissions in the process. They were assured that signatories would be counted as submissions to the consultation and signatories acted accordingly. That assurance proved wholly worthless and was totally abandoned by the Government.
It does not take much to imagine the outrage of those who were so advised when the Government announced after the conclusion of the consultation that it was not counting the 500,000 Coalition for Marriage signatures that were delivered to them as submissions to the consultations. The only words of explanation provided were that of course the Government took the petition signatories into consideration but not as submissions to their consultation, and that, back to their earlier message, the consultation was never about the “whether” but about the “how”. The end result was that the Government could claim that 53% of submissions were in favour of redefining marriage.
Had the 500,000 petition signatures been included, they would have provided a far more robust source of data since each signature came with a name and an address proving that they were British resident citizens. The result would have then been 83% against. As it was, the so-called consultation carried out by the Government proved worthless and totally bogus. As if that was not enough, the Government then announced that they intended to make the changes they proposed even more radical by extending the project from the redefinition of civil marriage to the redefinition of marriage per se. Seldom can a Bill with such far-reaching consequences be developed with such scant regard for constitutional propriety.
We come to parliamentary scrutiny, over which I will go fairly speedily. At Second Reading in another place, Members of Parliament were given only four minutes to deliver their speeches. They were in fact all whipped to attend. When it went to Committee, instead of allowing all Members to speak, vote and move amendments, which the other place had done on much lesser issues, the Bill was committed to a Committee of just 19 Members. By convention, Bills affecting the constitution—I submit this is certainly such a Bill—are debated by a Committee of the whole House. This was sent to a Public Bill Committee and the Second Reading Division was not accurately reflected in the allocation of Committee seats. Fifteen of the 19 on the Committee had voted for the Bill. Unsurprisingly, no amendments were made. The assumption was, and remains, that the Government had got it essentially right from the start. Spokesmen for the Government and the Opposition were joint cheerleaders for the Bill. Of the words spoken at Committee, 60% came from three dissenters. The Opposition moved only 15 amendments in five days of debate, 11 of them being discussed in a single 30-minute debate.
Then, in a development that beggars belief, the programme Motion on Report allocated just two and a quarter hours to debate amendments on what has been one of the main areas of debate in this House—all the conscience and religious liberty issues—but four
and a half hours were given to humanist weddings and transsexual benefits. Numerous Members wanted to speak during the debate on the very vital conscience amendments but were unable to do so because there was inadequate time. Eight amendments were selected but there was time to divide on only three. By contrast, despite the four and a half hours allocated, there were no Divisions at all on humanist weddings and transsexual benefits. There were suggestions that this was a free vote, but one Front-Bencher was compelled to remove his name from all amendments on Report and there was clear evidence of substantial pressure put on Members. A cross-party group of MPs was so aggrieved about the way in which the Bill was handled in the other place that they took the unusual step of writing to Peers to highlight the problems.
Of course, it can be argued that there has also been unseemly haste in your Lordships’ House. Only two days were originally scheduled for Committee. Of those two original days, one debate went beyond 11 pm and the other beyond midnight. It was assumed that this third day would be relatively short, but it is now 10.20 pm and a number of amendments remain to be debated. Only two days have been scheduled for Report, on 8 and 10 July.
I submit that when we have regard for the way in which this Bill has been handled, it far from dignifies our constitution by affirming good practice. Surely any constitutional observer would be puzzled by the speed. Will the Minister answer this simple question: what is the reason for the hurry? Why, after all the long debate and the long period in which there has been a simple and agreed definition of marriage, is the juggernaut now rolling at such speed? What is the reason for the speed? Even Stonewall came round to support for so-called equal marriage only a couple of years ago. Does Mr Cameron have the zeal of a convert? Why is he so desperate to complete all the stages before the Summer Recess, which has run over the timetable for a number of other Bills that many would consider far more relevant and important than this? Is it because this is such a neuralgic issue for his party and for Conservative activists that he is desperately anxious to put the issue behind him, recognising that we are now less than two years from the next general election? Perhaps the Minister can give some objective reason for the hurry, which is highly unusual for any Bill.
In short, it is very clear that when we put together the three considerations that I have reflected upon today—the magnitude of the change in question, which renders a democratic mandate imperative; the lack of any democratic mandate; and the compounding of the grievance resulting from the lack of any democratic mandate because of the multiple offences of due process in the passage of this Bill—we find ourselves with a very serious problem. We can kid ourselves, pretending that it is acceptable to build far-reaching changes on this slim and shaky foundation, and proceed speedily, regardless of the consequences. However, that would surely be unwise.
It is in that context that I believe Amendment 48 is of great consequence. As I noted at the outset, if your Lordships’ House supports Amendment 48 it will not
stop this Bill becoming law, but there must be a referendum that secures majority support before the law can take effect—which Amendment 59 provides for. It would be an opportunity for the people to have their say, not on the question of homosexuality but on the question of their views on traditional marriage. That will serve two purposes. First, it will compensate for the lack of an election mandate, so vital in the context of such a far-reaching and radical measure. The debate in your Lordships’ House has revealed some disagreement about the state of public opinion. Different opinion polls on this issue have been cited by my noble friend and myself. If the Government are so confident that they have the majority of the public on their side, surely they should have no fears about asking that same public to express their views. There is also the additional advantage for the Government that a referendum in favour of the Bill would cement the change in our law. No future Government would dare to be bold enough to seek to reverse that which the people had endorsed.
Secondly, it would also make up for the lack of respect for constitutional and due process that has been exhibited massively in the development of this Bill to date. As we know, the Prime Minister would like to have a referendum on our membership of the European Union. I submit that having a referendum on this marriage question is just as important if we are to address the constitutional problems that have surrounded the development of the Bill. By the European Union Act of two years ago, the Government have ensured that there will be a referendum on even relatively trivial transfers of power to Brussels—what a sense of priorities. Some might argue that this is not a constitutional issue; I completely disagree.
Finally, the marriage issue lends itself to a referendum because referendums work well only when the presenting dilemma can be encapsulated in a simple question. That is eminently the case here: “Do you believe that the definition of marriage should change from that between a man and a woman for life, to that between two people for life?”. In my judgment, the text satisfies the test for holding a referendum that it is a matter of major public concern and it is easy to understand the choice. This would have the additional safeguard that it would result from a settled view of the British people, rather than from the spurious government consultation process that I have outlined. I beg to move Amendment 48.