My Lords, back to Europe, I am afraid, and the European Convention on Human Rights. In speaking to this amendment, I am grateful to the Public Bill Office for its assistance with the wording, in order to discuss this matter. It is, of course, a probing amendment and I shall not put it to a vote.
The amendment envisages the possibility of a future ruling from the European Court of Human Rights in Strasbourg that some part of the Bill is incompatible with the European Convention on Human Rights. I want to focus in particular on the possibility that it may rule that the opt-out provisions that protect religious groups from being forced to take part in same-sex weddings are a breach of the human rights of same-sex couples who want to get married.
Much has been said about the robustness of the Government’s legal mechanisms to protect places of worship that do not want to register same-sex weddings. Ministers, no doubt in good faith, have promised that their quad locks will prove watertight. Under their proposals, they say that no religious organisation or individual minister can be compelled to marry same-sex couples or to permit that to happen on their premises if they do not opt in.
The Government must recognise that there is an appetite to see churches compelled to opt in. When an Ipsos MORI survey asked whether religious organisations should be required to conduct same-sex weddings, 44% of 18 to 24 year-olds said yes, they should. Of course, that is not the view of the Government or the majority in this House, but we keep being told how important it is that we take into account the views of young people. That survey suggests that there would be a significant demand to test the limits of the quad locks, so any concern that those quad locks might have weaknesses must be properly addressed, in particular those relating to the European Convention on Human Rights.
Strasbourg has been consistent in saying that gay marriage is not a right found within the convention, a view upheld as recently as 2012, but there are features of the convention that, in relation to the Bill, cause great unease about the future. If Strasbourg were ever to find that there is a right to same-sex marriage, the protections provided by the Government’s quad locks would be completely undermined—or I believe they would. Article 12 of the convention holds that men and women of marriageable age have the right to marry and to found a family. That is the only article that explicitly refers to gender, showing that marriage is understood to be between a man and a woman. However, one of the convention’s most notable features, frequently reiterated in judgments, is that it can be interpreted according to what the court calls emerging consensus and common values in international law. It is said to be a living instrument governed not just by the wording of the convention agreed decades ago but by present-day standards. In other words, it changes its mind about what the words mean.
Three years ago, in the case of Schalk and Kopf v Austria, Strasbourg ruled against an Austrian same-sex couple who were arguing that the convention must be adapted to fit in line with apparently changing social views on same-sex marriage. At the time, the court was not persuaded that social attitudes had changed enough for same-sex marriage to be regarded as mandatory. It interpreted the right to marry in Article 12 as being limited to unions of persons of the opposite sex. It justified its ruling by reference to the fact that there is no European consensus in support of gay marriage.
However, the court left open the potential for future claims on the basis of Article 12. I quote from the ruling:
“Regard being had to Article 9 of the charter, therefore, the court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex. Consequently, it cannot be said that Article 12 is inapplicable to the applicants’ complaint. However, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the contracting state”.
So the current position of Strasbourg, and the current European climate, is that Article 12 does not impose an obligation to grant same-sex couples the right to marry. However, clearly that could change and, if it did, the whole legal landscape would change with it. In that new legal landscape, the so-called quad locks could look pretty obsolete, especially for the Church of England, which, as an emanation of the state, has a duty to marry anyone in the parish.
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Aidan O’Neill QC has issued a written legal opinion calling into doubt many of the assurances that we have heard from the Government. He points out that, even under Strasbourg’s current agnostic stance on same-sex marriage, once the state introduces same-sex marriage, the court imposes a stricter burden on that state. He says that,
“differentiation in treatment between opposite sex and same-sex marriage would be subject to particularly strict scrutiny by the Strasbourg court and the offending state would have to show particularly convincing and weighty reasons to justify any such a difference in treatment”.
So we cannot be sure that the court will be happy with the difference in treatment enshrined in this Bill, whereby a same-sex couple are much less likely to be able to get married in a church than an opposite-sex couple.
Regarding the future approach of the court, Mr O’Neill also says that,
“it has to be acknowledged that this is an area in which rapid developments have taken place in the jurisprudence of the court, such developments being justified by the court on the basis that the convention is a ‘living instrument’ and that there has been a shift in current European consensus on this issue. Should the court detect further shifts in the European consensus then doubtless we can anticipate further changes in its case law”.
Some say that the Article 9 right to freedom of religion would protect religious freedom in any clash with Article 12. However, the recent ruling against the registrar Lillian Ladele shows only too well the European court’s unsympathetic approach to religious beliefs about marriage.
Aidan O’Neill has put his professional reputation on the line by providing a written opinion expressing grave reservations about this Bill in relation to Strasbourg. We do not know whether he personally supports the Bill or not—although I understand that he is in a civil partnership—but his measured views about the risks generated by this Bill should not be ignored.
The Church of England keeps being prayed in aid in support of the quad locks, but in its briefing paper it said that it doubts,
“the ability of the Government to make the legislation watertight against challenge in the European courts”.
What about the hundreds of other denominations and religions, including the Sikhs, of which many are deeply unhappy with the position? The Catholic Church has strongly criticised the quad locks, as have many smaller denominations that submitted memoranda to the Public Bill Committee in the other place. As these are people whose fundamental liberties are at stake, we really should pay more attention to whether they are satisfied with the protections that we are offering them.
If Strasbourg ever finds that there is a right to same-sex marriage, the protections provided by the Government’s quad locks would be severely undermined. Even if it does not, the refusal of churches—especially the state church—to solemnise same-sex marriages could still end up being ruled on by the European Court of Human Rights and the court will take a more interventionist view regarding differences in treatment of same-sex couples within England and Wales once same-sex marriage is legal here.
If this shift in Strasbourg jurisprudence takes place, all the ministerial assurances in the world will in fact be worthless. We should take a long, hard look at what else could realistically be done to safeguard the long-term position of the churches. It matters a great deal to these people. As the House knows, I am not religious, but I think that we should do everything that we can to protect the civil liberties of religious people and, indeed, of others. In the face of the evidence of risk, ministerial assurances are really not enough. I look forward to hearing whether the Government have really considered the unpredictability of the European court and what that could mean for the future, and what we can do about it. I beg to move.