Liberty s Second Reading Briefing on the Marriage (Same Sex Couples) Bill in the House of Commons

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1 Liberty s Second Reading Briefing on the Marriage (Same Sex Couples) Bill in the House of Commons February 2013

2 About Liberty Liberty (The National Council for Civil Liberties) is one of the UK s leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research. Liberty Policy Liberty provides policy responses to Government consultations on all issues which have implications for human rights and civil liberties. We also submit evidence to Select Committees, Inquiries and other policy fora, and undertake independent, funded research. Liberty s policy papers are available at Contact Isabella Sankey Rachel Robinson Director of Policy Policy Officer Direct Line Direct Line: Sophie Farthing Policy Officer Direct Line

3 Introduction 1. Liberty is delighted to give its support to the Marriage (Same Sex Couples) Bill. The Bill marks a historic moment for civil liberties in Britain and we commend this Government for recognising that, in a democratic, tolerant and truly free society the love and commitment shared by gay and straight couples must be given equal respect and status under the law. Protecting civil liberties means ensuring that every man and woman has the freedom to pursue personal fulfilment. For many people that means sharing their life with another safe in the knowledge that their union will be equally recognised and respected. Liberty is also deeply committed to religious freedom. Whilst we acknowledge the real concern felt by some about the impact of these changes on a treasured institution, we do not believe that this Bill represents any threat to our proud tradition of religious tolerance or the place of marriage within in our society. Those worried that that faith groups will be coerced into performing ceremonies can rest assured that the Bill has been carefully and cleverly crafted to ensure full protection for freedom of conscience and belief both for those faith groups who may wish to conduct same-sex marriages and for those who don t wish to do so. We also believe that by opening marriage up to same-sex couples, we can only enhance the valuable role this evolving institution has, and continues to, play in our society and our lives. 2. In the first section of this briefing we seek to explain the new and balanced system set out in the Bill. In Part 2 we place the Bill in the context of the gradual realisation of rights and freedoms for gay people in this country. Part 3 explores the balance the Bill strikes between two crucial aspects of our human rights regime, the right to freedom of religion and protection from discrimination. Annex 1 to this briefing considers the approach taken by democracies throughout the world to legalising gay marriage and Annex 2 contains the legal opinion of leading QC, Karon Monaghan, confirming that religious groups have nothing to fear from the legalisation of gay marriage. Part 1 - The Bill explained 3. Clause 1 legalises same-sex marriage, whilst setting out the first two, in a series of, measures providing absolute protection for faith organisations which do not wish to solemnize same-sex unions. Subclause 1(3) acknowledges the requirement that the Church of England s Canon Law be compatible with the general law of the 3

4 land. It provides specifically that Canon B30, which describes Holy Matrimony as a union between one man and one women, is to be accommodated and respected within the new legal landscape. Subclause 1(4) responds to the duty placed on clergy of the Church of England and the Church in Wales at common law to marry their parishioners. It makes clear that this duty does not apply to same-sex unions. 4. Clause 2 sets out further protection for religious organisations, or individual members of the clergy, that do not wish to perform functions in connection with same-sex marriages. No faith group or individual representative of a faith group will be required to solemnize the union of a gay couple, nor to take any of the administrative steps necessary to facilitate a same-sex marriage, such as applying to register a building for those purposes. Subclause 2(5) inserts a new provision into the Equality Act 2010 which places beyond doubt the fact that no aspect of our equality law can be interpreted as requiring religious groups or their representatives to carry out or otherwise facilitate a marriage they object to because it involves a same-sex couple. 5. The Bill sets out two very different regimes namely those marriages which can only be carried after an effective opt-in and those ceremonies for which no opt-in is required. 6. Clause 3 deals with marriages for which no opt-in is required, namely any secular ceremony, including that of a same-sex couple, carried out on approved premises (for example a hotel or stately home which has a license to conduct marriages) or in the office of a superintendant registrar. Where one or both parties to a marriage are housebound or detained, secular ceremonies can be conducted in the main place of residence of the detained or housebound individual without an opt-in. The only marriages which can be solemized on religious premises without an effective opt-in are marriages between a man and a woman. 7. Clauses 4 and 5 deal with marriages for which an effective opt-in is always required, namely same-sex marriages in places of worship or other religious ceremonies. The Church of England and the Church in Wales are specifically exempted from this regime. New section 26A to be inserted into the Marriage Act 1949, stipulates that an application for registration of a building for the religious marriage of a same-sex couple requires the consent of a faith group s governing authority. Schedule 1 sets out detailed provision for the registration of religious 4

5 buildings. Clause 5 makes specific provision for those types of religious same-sex ceremonies which may take place in buildings which have not been registered. This reflects the provision made under the Marriage Act for different sex marriages and is restricted to Quaker and Jewish marriage ceremonies, and marriages involving a couple one or both of whom are detained or housebound (save that the Church of England is exempted from this scheme). In all cases the consent of the governing authority of the religious group in question is still required. 8. Clause 6 makes specific provision for same-sex ceremonies in military chapels save for marriages in accordance with the rites of the Church of England and the Church in Wales. Clause 7 makes provision for the registration of marriages when one member of a couple is seriously ill, but again the Church of England and the Church in Wales are exempted from the scheme. 9. Clause 8 deals specifically with the Church in Wales. The Church of England has the power, through a Measure passed by its Synod, to amend primary legislation, providing that its Measure is subsequently approved by both Houses of Parliament. As a result, should the Church change its official position on same-sex marriages at some point in the future, there is a clear avenue by which it can trigger legislative reform. As the Church of Wales has no comparable power, clause 8 sets out a scheme whereby, if the Church were to change its position on same-sex marriage, the law could be changed without the need for primary legislation Clause 9 establishes that those couples who wish to do so may convert their civil partnership into a marriage. The clause makes provision for regulations which will set out the detailed process for conversion. Clause 10 read together with Schedule 2 make provision same-sex marriages carried out abroad to be recognised in this country. 11. Clause 11 is designed to ensure that once married, same-sex and opposite sex couples have the same legal rights and privileges, with Schedule 3 making some specific amendments to this effect. Subclause 11(5) makes clear that the equivalence positions set out in the Bill do not affect Measures, Canons or subordinate legislation of the Church of England. 1 By Order of the Lord Chancellor with regard to the terms of a resolution by the Governing Body. 5

6 12. Liberty is disappointed to see that Schedule 4, Part 6 of the Bill makes provision concerning occupational pensions which seeks to perpetuate an inequality facing same-sex couples currently contained in the Equality Act Schedule 9, paragraph 18 of the Equality Act provides that withholding a benefit, facility or service which would be available to a married person to somebody in a civil partnership in relation to rights accrued before civil partnerships were introduced in this country, does not constitute discrimination. In January this year, Liberty s client, John Walker, won his legal battle to secure equal pension benefits for his civil partner. The Employment Tribunal found that an occupational pension scheme providing that John s civil partner could only benefit from pension rights accrued since the time when civil partnerships became available in the UK was directly discriminatory. 2 With this decision in mind, we were particularly surprised and saddened to see, included in the Bill, an extension of this discriminatory provision to those in same-sex marriages. It is indefensible that an individual who has paid into a pension scheme in exactly the same way as his colleagues should loose out, simply because his spouse is a man rather than a woman. This represents ongoing, direct discrimination that the courts have recognised as such. If Schedule 4, Part 6 of the Bill remains in its current form, same-sex married couples will have to seek similar redress in the Courts to ensure they can access pension rights in a fair and equal way. This is an unnecessary and counterproductive anomaly in a Bill which otherwise makes landmark progress in equally respecting the rights of gay individuals. 13. Clause 12 marks another positive move for equal treatment in this country. Read together with Schedule 5 it would amend the Gender Recognition Act 2004 to ensure that where transsexual people change their legal gender, they do not need to end their marriages. Part 2 - Towards equal treatment: the Bill in context 14. Last year marked the 60 th anniversary of the conviction of Alan Turing, Second World War hero and father of computer science, on the grounds of his sexuality. In 1952, Turing was sentenced to chemical castration; he took his own life two years later. We have come a long way since the days when this kind of inhumane, homophobic mistreatment formed a part of our legal system. Over the 2 See Liberty s press release, available at: 6

7 past six decades a slow but steady march has brought us to a point where we can take the final, vital steps towards inclusivity and respect. 15. The emergence of a drive to reform a criminal justice system which sanctioned people for their sexuality - imposing cruel and humiliating punishments - began in the 1950s following a series of much published prosecutions of individuals for homosexual activity in the UK. The Wolfenden Committee, appointed by Churchill s Government in 1954, concluded that the criminalisation of homosexuality was an unnecessary infringement of civil liberty and recommended the decriminalisation of private sexual activity between two men aged 21 or over. 3 Unfortunately the Committee also recommended harsher penalties when the same activities were carried out in public places. 4 Nevertheless, the Report marked a milestone in the history of gay rights before its publication in 1957 there had been little public discussion of the criminalisation of men because of their sexuality. Reform of our discriminatory criminal law, however, did not make its way on the political agenda until the mid-1960s. In 1965, Conservative whip Lord Arran advanced a motion in the House of Lords calling for the implementation of the Wolfenden Committee s recommendations and the following year Labour MP Leo Abse sponsored a Private Members Bill which aimed to decriminalise private sexual activity between men aged 21 or over. The Sexual Offences Act received Royal Assent in 1967 with Harold Wilson s Labour Government allowing a free vote on the Bill. The legislation passed with significant support from the Labour benches, but also from a number of Tory MPs including future Prime Minister Margaret Thatcher During the 1970s, Liberty (then the National Council for Civil Liberties) launched reports into institutionalised discrimination in our public services, with investigations into police harassment of gay men, reports on attitudes in the teaching profession and test case litigation to establish the right of a lesbian midwife to become a health visitor. 6 In 1981, following intensive lobbying by Liberty and others the Criminal Justice (Scotland) Act 1980, came into force, extending the 3 See analysis on the National Archives webpage: 4 See analysis on the Parliament website: Regulating sex and sexuality: the 20th century, available at: 5 See historic Hansard, Commons debate, 3 rd July Available at: 6 See Liberty s gay rights timeline, available at: 7

8 decriminalisation provisions of the Sexual Offences Act 1967 to Scotland. Parallel provision was made in Northern Ireland the next year following the decision of the European Court of Human Rights in Dudgeon v United Kingdom which found that continued criminalisation represented a violation of the right to respect for private and family life. 7 Civil liberties activists continued to push for an end to exemptions to decriminalisation in the military and in 1984 Liberty delivered a body blow to homophobic censorship when it successfully challenged the decision of Customs and Excise Officers to confiscate one third of the stock of Gay s the Word bookshop in London Whilst significant strides were made during the 1970s and the early 80s the gay community remained marginalised. In response to a backlash against the publication and availability of gay literature in libraries, section 28 of the Local Government Act 1988 came into force. The section prohibited local authorities from promoting homosexuality or the acceptability of homosexuality as a pretended family relationship. In 1984 a modest proposal by the Criminal Law Revision Commission sought to equalise defences to the offence of buggery for homosexual and heterosexual offences. 9 In 1985 the Howard League for Penal Reform published an influential report recommending that provisions on consent for men and women be equalised. 10 Liberty and other civil liberties and equality groups continued to lobby for equality in the age of consent and a purging of remaining discriminatory offences from the statute book. In its draft Criminal Code published in 1989, the Law Commission added its voice to the debate recommending that the age of consent for gay men be lowered to In 1994, under John Major s Conservative Government, the Criminal Justice and Public Order Act made its way through Parliament. Conservative MP Edwina Curry tabled amendments which would have equalised the age of consent at 16; sadly the amendments were narrowly defeated notwithstanding substantial crossparty support including from figures such as former Prime Minister Tony Blair, former 7 (1981) 4 EHRR 149. The relevant legislation was an Order in Council, the Homosexual Offences (Northern Ireland) Order 1982, which came into force on 8 December See Liberty s gay rights timeline, available at: 9 House of Commons Research Paper 98/68, 19 June 1998: Age of Consent for Male Homosexual Acts, page House of Commons Research Paper 98/68, 19 June 1998: Age of Consent for Male Homosexual Acts, page House of Commons Research Paper 98/68, 19 June 1998: Age of Consent for Male Homosexual Acts, page 13. 8

9 leader of the Liberal Democrats Paddy Ashdown and current Foreign Secretary William Hague. 12 Following a free vote in the Commons a new age of consent of 18 was settled upon with support from the Prime Minister and most of the Cabinet. The 1994 Act also decriminalised homosexual acts in the armed forces or on merchant ships. 13 Two years later the European Commission of Human Rights ruled admissible the application of a 17-year old who sought to argue that continued inequality in the age of consent breached his right to respect for his private life and his right not to be discriminated against The pace of change picked up with a New Labour Government, which secured many significant advances in equality. In 1998 the Human Rights Act received Royal Assent, providing that all the rights and freedoms it protects be secured without discrimination. 15 The next year Liberty represented Graeme Grady and Jeanette Smith who were dismissed from the armed forces for their sexual orientation. The European Court of Human Rights ruled that their dismissal together with the intrusive investigations conducted by the armed forces were unlawful. 16 As the Human Rights Act came into force in 2000, the Sexual Offences (Amendment) Act 2000 finally equalised the age of consent at 16, in the same year the European Court of Human Rights ruled that the very existence of legislation prohibiting consensual acts between more than two men in private was inconsistent with the UK s obligation to respect the right to private and family life Progression towards equality continued a pace. In 2002, the Adoption and Children Act, secured the right of gay couples to adopt a child, the following year brought the long overdue repeal of section 28 of the Local Government Act 1988, accompanied by the Employment Equality (Sexual Orientation) Regulations 2003, providing significant protection against discrimination in the work place. The following year in a Human Rights Act ruling, the House of Lords found that that the Rent Act 1977 could be read compatibly with the protections enshrined in the Convention on 12 See historic Hansard, House of Commons, 21 February 1994, available at: 13 Section Application of Euan Sutherland, see Liberty s Gay Rights timeline, available at: 15 Article 14 of the European Convention on Human Rights as incorporated into UK Law by the Human Rights Act (1999) 29 EHRR In the case of ADT v UK App. No /97, Judgment of 31 July The European Court of Human Rights found that the existence of legislation prohibiting consensual sexual acts between more than two men in private, and the applicant s consequent conviction for gross indecency, violated his right to respect for his privacy. 9

10 Human Rights, ensuring that where one member of a same-sex couple dies, the remaining partner has the same rights as the surviving member of an opposite sex couple and would become a statutory tenant by succession also saw the Civil Partnerships Act receive Royal Assent and from 2005 gay couples, for the first time, were granted the right to formerly recognise and celebrate their relationship in the form of a civil union granting many - although not quite all - of the rights available to married couples brought the Equality Act (Sexual Orientation) Regulations which, along with the 2003 Regulations, were ultimately placed on a statutory footing as the outbound Labour Government pushed through the Equality Act Under the 2010 Act it is illegal to discriminate on the grounds of sexual orientation in the provision of goods or services, in education, when selling or letting land, or when exercising public functions. 19 The Act also places an equality duty on public bodies to proactively promote equality. 20 In October 2012 Liberty clients Michael Black and John Morgan won their case after being refused a room at a Berkshire Bed and Breakfast because they are a gay couple and in January this year another Liberty client, John Walker, was successful before the Employment Tribunal in his claim against discrimination on the grounds of sexual orientation under his occupational pension scheme The newly formed Coalition Government picked up the baton almost immediately, proving once again that respect for civil liberties and a rejection of discrimination has roots which run deeper than the ebb and flow of party politics. Liberty welcomed the Coalition s plans to bring into force a provision of the Equality Act 2010 providing for civil partnerships to take place on religious premises 22 and briefed in favour of provisions of the Protection of Freedoms Act 2012 providing for defunct and discriminatory records of offences between consenting men over 16 to be disregarded by potential employees and others. 23 Whilst Liberty lobbied for these records to be removed entirely as opposed to disregarded, these new provisions 18 Antonio Mendoza v Ahmad Raja Ghaidan [2004] UKHL Section 29, Equality Act 2010 makes it unlawful to discriminate in the provision of services (s29(1), Equality Act 2010) and in the exercising of public functions (s29(6), Equality Act 2010). 20 Section See Liberty s Press Release at: 22 Liberty s Response to the MOJ Consultation on Civil Partnerships on Religious Premises, available at: 23 See Liberty s Report Stage Briefing in the House of Lords, available at: human-rights.org.uk/pdfs/policy12/liberty-s-report-stage-briefing-freedoms-bill-hol-jan pdf. 10

11 undoubtedly went some way towards addressing a grave historic injustice. The Marriage (Same Sex Couples) Bill is further evidence that this Government is ready to advance the course of equal treatment in this area. 22. The Government s decision to allow same-sex couples to marry is not a mere semantic shift. It is a small legal amendment which will lead to huge positive social change. Liberty supported the introduction of civil partnerships as an important first step, but a regime which is separate but equal is not enough. In order to stop social marginalisation which persists the recognition and respect which flows from marriage must be extended to gay couples. This is why Liberty wholeheartedly supports the Bill and urges Parliamentarians to do the same. Part 3 - Balancing religious freedom and equality in the Bill 23. Liberty firmly believes that in British society there is room for both religious freedom and equal treatment, with both principles finding legal protection under our Human Rights Act. There is no reason for these two values, which have deep roots in our history, to come into conflict. The beauty of this Bill lies in its commitment to embracing equal treatment within a treasured social institution whilst steadfastly safeguarding religious freedom. Freedom of thought, conscience and religion 24. Article 9 of the Human Rights Convention 24 provides that everyone has the right to freedom of thought, conscience and religion. The right encompasses the freedom to change your religion or belief, either alone or in community with others, and to manifest your religion or belief, in public or private, in worship, teaching, practice and observance. The right can only be limited in law where it is necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. 25 The right is given extra weight by section 13 of the Human Rights Act, which provides that courts must have particular regard to Article 9 when considering any issue which might affect the exercise, by a religious organisation or its members, of the right to freedom of thought, conscience and religion. The effect of these two 24 The European Convention on Human Rights has been incorporated into domestic law by the Human Rights Act Article 9(2). 11

12 provisions is a robust protection for an important tenet of the British tradition of liberty. The role of the State under this right is simply to encourage religious tolerance. 25. Liberty has long advocated for the protection of religious freedom. There is no doubt Article 9 has played an important role in promoting and protecting religious freedom in modern Britain. In 2008 Liberty represented 14-year-old Sarika Singh, a pupil at Aberdare Girls School who was excluded from classes for wearing her kara a plain bangle widely accepted as a central tenet of the Sikh race and religion. Using the Human Rights Act, we successfully defended Sarika s right to wear her kara in the wider pursuit of freedom of thought, conscience and religion for everyone in Britain. 26 Similarly the European Court of Human Rights, in a landmark and hugely welcome judgment handed down earlier this year, found that a Christian British Airways employee banned from wearing a cross at work had suffered a violation of her right to freedom of religion and a breach of non-discrimination provisions under Article 14 of the Convention. The Court held that: the refusal by British Airways between September 2006 and February 2007 to allow the applicant to remain in her post while visibly wearing a cross amounted to an interference with her right to manifest her religion a fair balance was not struck this is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others Liberty was also recently granted permission to intervene in the challenge to the French law which has outlawed the wearing of clothing to conceal the face the so-called burqa ban. 28 In our submissions we have outlined the importance of the right to freedom of religion which, given the Convention s historical impetus, needs to be carefully guarded. 26 Watkins-Singh, R (on the application of) v Aberdare Girls High School & Anor [2008] EWHC 1865 (Admin) (29 July 2008). 27 Eweida and Others v United Kingdom (Applications nos /10, 59842/10, 51671/10 and 36516/10), paragraph 94. For the full European Court of Human Rights judgment, visit: 28 SAS v France, Application No /11. 12

13 Equal treatment 27. The Human Rights Convention was written following one of the most brutal periods of discriminatory treatment in modern global history. 29 The principle of nondiscrimination, enshrined comprehensively in the Convention, the Human Rights Act and our equalities legislation, provides for a person not to be discriminated against, whether on the grounds of race, sex, religion, language, sexual orientation or political opinion. Article 14 of the Convention prohibits discrimination in the application of human rights. While the article does not give a free-standing right to nondiscrimination, it does require that all the other rights protected by the Human Rights Act can be secured without discrimination. In this way, freedom from discrimination is the key to the effective protection of human rights for all, meaning, for example, that protection against torture does not apply only to people of certain faiths, the right to liberty is not dependent on nationality and the right to protest is not dependent on an individual s political views. Protection from legal challenges 28. While the right to religious freedom is not absolute (the Convention provides for this right to be interfered with where it is proportionate in order to, among other things, protect the rights and freedoms of others), allowing for same-sex marriage does not dilute the protection available to those organisations which are opposed to carrying out such ceremonies. Even before we consider the robust set of protections for faith communities at the centre of this Bill, our human rights framework provides real and robust protection for religious freedom. In an Opinion produced for Liberty by leading QC Karon Monaghan, this point comes across clearly: The Article 9 protection afforded religious organisations is strong [and] would provide real safeguards to a religious organisation that did not wish to conduct same-sex marriages on doctrinal grounds Indeed, quite the reverse of posing a threat to faith groups reluctant to conduct religious marriages the Legal Opinion (included at Annex 2 below) makes clear that 29 For a history of British involvement in the drafting of the European Convention on Human Rights and the events which led to its creation, see Oborne, P and Norman, J (2009) Churchill s Legacy: The Conservative Case for the Human Rights Act (Published by Liberty: London), available at 13

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