My Lords, this amendment is broadly in the same category as the previous ones and uses the phrase “reasonable accommodation”, which is well known in law. The purpose of this amendment is to protect employees from being compelled to act against their belief in traditional marriage, based on their conscientious objection.
For many centuries there has been a clear consensus throughout the United Kingdom, and indeed Europe and the Western world, that marriage is the union of one man and one woman. Until very recently—that is, until the galloping pace of the last year or two—that consensus went unchallenged. I assume that many doctoral students might find that an interesting example of pressure group activity.
Some have pointed to polls in an attempt to argue that there is now a consensus in support of same-sex marriage. The polls go in both directions, but at least we can conclude that there is a very substantial body of opinion—a very high proportion of the population—that remains in favour of traditional marriage. We therefore face the prospect of many of those people being unable in good conscience to embrace the new definition of marriage. How are we to respond to them? Freedom of speech is vital to everyone who subscribes to a traditional view, or where employment involves people being connected or intimately involved with marriage ceremonies.
I give the current Government credit for that. They have gone some way in an attempt to protect faith groups that are persuaded that marriage can only be between a man and a woman. In committee, the Minister emphasised that specific protections are in place to,
“ensure that religious organisations and their representatives who do not want to participate in same-sex marriage ceremonies cannot be compelled to do so”.—[Official Report, 17/6/13; col. 73.]
That was further elaborated today. The Minister added that,
“there are circumstances in which individuals need strong and effective protection in order for religious freedom to be safeguarded”.—[Official Report, 17/6/13; col. 74.]
Amen to that. However, with the exception of faith representatives who do not wish to solemnise same-sex marriages, the Bill currently contains no protection for other individuals; that is, individuals outside the ambit of the faith organisations. Therefore, for example, while a priest, minister, rabbi or imam is free to say that he does not believe in same-sex marriage and wants nothing to do with the ceremony, the Bill provides no protection at all for the chauffeur, seamstress, printer, photographer, caterer or marriage counsellor who may be no less committed to the principle of traditional marriage. Obviously, the normal legal principles would have to prevail—that is, that the relationship should not be too remote. This amendment therefore is based on the premise that not only church and faith leaders require strong and effective protection. In addition, a whole host of ordinary people will face crises of conscience. It is the job of this House and Parliament to protect minorities—sometimes difficult minorities, in my judgment.
11.15 pm
The Government have already proposed an amendment to the Public Order Act to confirm that the reasonable expression of the view that marriage should be between a man and a woman does not constitute incitement of hatred on the ground of sexual orientation. That is welcome but, as the Minister has acknowledged, it applies only to the criminal law. There is nothing in the amendment that would prevent a same-sex couple getting married. All it would do would be to place on an employer a duty to accommodate an employee who has a conscientious belief that marriage is,
“the union of one man to one woman for life”.
In practice, this would mean taking steps to ensure that an employee is not put under any pressure to assist with making arrangements for a same-sex wedding when to do so would go against his or her conscience. I recognise, of course, that there could be real problems in small firms, but this all has to be interpreted in a reasonable way. In Committee, the Minister cited the case of a chauffeur who objects to same-sex weddings. Yet, surely it would be wrong for a company employing, for example, 10 chauffeurs to pick on the one driver who in good conscience does not feel able to assist with a same-sex wedding. Surely, we must protect those in a minority position.
Reasonable accommodation has a long pedigree in other parts of the world. There is much case law on this in the United States. Title VII of the American Civil Rights Act 1964 requires that employers reasonably accommodate the sincerely held religious belief of employees unless doing so would impose an undue hardship on the operation of the employer’s business. This protection extends to manifestations of those beliefs. That is the interpretation of “accommodation” in the US. Are we to be less protective in this case than the US, which is also a common law jurisdiction? Without the protection contained in the amendment, employees will be faced with a stark choice of being forced to act against their conscience or losing their job. Surely, in a free and democratic society we would not want to see anyone placed in this position simply on account of their conscientious belief that only a
man and a woman can contract to a marriage. This, after all, is a view of marriage which until very recently was the orthodox mainstream view held almost universally by Members of your Lordships’ House and by the population at large, and is still embraced by most other countries. If there is a chance of reasonable accommodation, it is surely not unreasonable to ask an employer in those circumstances to take fully into account the views of individual employees and, so far as is practicable in all the circumstances, to make provision for that employee. I beg to move.