My Lords, I thank my noble friend Lady Cumberlege for moving the amendment, which has undoubtedly generated a good debate. Amendments 3 and 11 would provide a conscience clause for marriage registrars regarding their duty to conduct or participate in marriages of same-sex couples on the basis of a religious or other belief about such marriages. Specifically, Amendment 3 would amend Clause 1 to provide that for registrars who are already in post once this Bill comes into force the duty to solemnise marriages is not extended to same-sex couples. Amendment 11 removes “registrar” from the definition of “person” in subsection (4) of Clause 2 to protect registrars from being compelled to be present at religious same-sex marriage ceremonies, no doubt in circumstances where a particular religion has opted in. The amendment would apply only to registrars participating in religious ceremonies, not to the Registrar General or superintendant registrars.
This issue was much debated in Committee. Since then, I have had the opportunity, along with my noble friend Lady Stowell, to meet my noble friends Lady Cumberlege, Lord Elton, and Lady Williams, and the noble and learned Lord, Lord Lloyd of Berwick, to discuss these issues. As we indicated in our response to the Joint Committee on Human Rights, it is important to say that it did not come to a final conclusion on this issue, although it recommended that the Government reconsider the issue with a view to bringing forward amendments in your Lordships’ House to put in a transitional arrangement to deal with the concerns of those in post as marriage registrars. We have considered this position but, as I shall set out, we do not see a need for amendments to provide a conscience clause for marriage registrars, even on a transitional basis.
I therefore wish to reassure your Lordships’ House that the points made in the debate, particularly those made by my noble friend Lady Williams of Crosby about the impact on particular religions, have been considered. I admit that I felt slightly uncomfortable because the strongest support for the Government’s position perhaps came from two eminent lawyers, my noble friend Lord Lester and the noble Lord, Lord Pannick, and I wondered whether I was being too lawyerly about this issue. I tried to take on board the comments of my noble friend Lord Deben about being charitable and thinking generously but, at the end of the day, even with charity, there is an important matter of principle here. Marriage registrars are public servants performing statutory duties on behalf of the state. They should be expected to perform their duties in accordance with the law, without discrimination. An important distinction can be made between the conscience clauses with regard to
abortion and circumstances in which we are asking people to perform duties on behalf of the state, without discrimination.
In extending marriage to same-sex couples, the Government have made it clear throughout that the Bill should protect and promote religious freedom. A substantial amount in the Bill does that. As the noble Lord, Lord Peston, said, registrars of whatever hue will still be able to express their views on same-sex marriage, but the right to freedom of religious expression has to be balanced with the need to protect others from discrimination. The recent judgment of the European Court of Human Rights in the case of Lillian Ladele, referred to by my noble friend Lord Lester, supports this view and the balanced position that we have taken.
Acceptance of the amendment would allow registrars to discriminate against people because of their sexual orientation. Functions performed by marriage registrars are entirely civil and secular in nature and they should not be allowed to pick and choose the members of the public to whom they provide that service. Treating members of the public less favourably than others because of their sexual orientation is fundamentally wrong, in the same way that it would be wrong to discriminate against them because of their race, religion or belief.
On the face of it, some powerful points were made, not least about doctors in relation to abortion. One should think about it for a moment—and perhaps I may put it in the following way. Let us imagine that a doctor were to say, “As a matter of conscience and belief, I am not going to perform an abortion on this person because of their race or ethnicity, but I will perform an abortion on another”. Perhaps that demonstrates the point that we are trying to make. It would not be the question of conscience about performing the act of solemnising a marriage that is at issue; it is the question of discrimination that is at the heart of this issue, and that is why the Government do not support the amendment.
I have been asked, “Where do you draw the line?”. I appreciate what my noble friend Lady Cumberlege said about the amendment being restricted to the solemnisation or belief that it is wrong to have a marriage of same-sex couples. There are other subjects—and I bow to the right reverend Prelate the Bishop of Chester, who said that divorce was not an issue in the canon law of the Anglican Church. However, it is my understanding that, until relatively recently, the Anglican Church did not marry people who had been divorced on grounds of adultery or other reasons, if a person’s original spouse was still alive. I think that that is now possible with the permission of the bishop. In those circumstances, if the Anglican Church was not going perform a marriage and the person had to go down the road of a civil marriage if they wished to contract a second marriage, where would we have been if the registrar had said, “I have profound beliefs against marrying divorcees, particularly if one of the grounds for divorce has been adultery”?