Marriage (Same Sex Couples) Bill

Nick Herbert (Arundel and South Downs) (Con): It is interesting how the debate about religious freedom has moved on during consideration of the Bill. Before, the debate was very much about whether the protections being given to religious institutions were sufficient, and there was a strong claim made that those protections would be challenged or would be too weak. Interestingly, by and large, that is not the substance of the new clauses and amendments tabled today. It seems to have been broadly accepted that the protections written into the Bill are indeed substantial.

Dr Thérèse Coffey (Suffolk Coastal) (Con): The religious institutions-the Church of England and the Roman Catholic Church-do not accept that the protections are there, and that is why amendment 4 has been tabled: to make that clear in the Bill.

Nick Herbert: I said "by and large". By and large, it is accepted by the religious institutions that they will not be forced to conduct same-sex marriages, which is of fundamental importance to those who, in conscience, object to the Bill, particularly religious groups. The Church of England, in its latest briefing, of which hon. Members from across the House will be aware, says:

"The ‘quadruple lock' does, in our view, achieve the Government's policy intentions in this area",

and that is important. The substance of the amendments tabled goes beyond the direct effect of whether religious organisations should be required to conduct same-sex marriages. It is common ground in this House that no religious institution should be forced to conduct such a marriage, and that is what the Bill achieves.

Instead, the amendments relate to the fear that my hon. Friends have expressed about whether there will be what they describe as a chilling effect, or interference with the reasonable exercise of conscience when people set out their views. Free speech is, of course, curtailed by legislation in all sorts of areas in this country. In the main, we would all agree on the areas in which it should be curtailed. We do not accept that people have the right to exercise free speech in a way that is inflammatory in respect of race relations-that is outlawed-or that is hateful. The House of Commons has passed successive measures to ensure that incitement to hatred-whether racial hatred or, most recently, hatred on grounds of sexual orientation-is outlawed, but the bar that we rightly set in that legislation was high. Members on all sides of the House of Commons felt at the time that it was perfectly proper that hatred towards gay people should be outlawed, but that reasonable comment and free speech, which may be unwelcome to people, should not be outlawed unless it actually incited hatred and violence in a way that properly brought in the province of the criminal law.

Those debates have given rise to a concern that the criminal law, or legislation, may be used in a way that steps further than the intention of Parliament. A number of cases have been cited in which public authorities have behaved in a way that hon. Friends-I think with some cause-fear has been heavy-handed, and in a way that interferes with the reasonable expression of views that may not be welcome to particular communities, but should not be classified as amounting to a criminal offence. That is my hon. Friends' concern, and I understand it. So often, this amounts to a question of the sensible application of the law by the public authorities-for instance, by the police. If it turns out that arrests can be made, or investigations pursued, that were not merited-and one of my hon. Friends gave an example of such a case-it is not necessarily that the law has drawn the line in the wrong place; it is that the application of the law has been unfortunate.

It should not be the purpose of any legislation to prevent the expression of what my hon. Friend the Member for Aldershot (Sir Gerald Howarth) described as forthright views, particularly in relation to schools. There is a case for the Government helping to explain what the proper balance is. My understanding is that teachers will be under a legal duty to teach the fact of the law of the land and that same-sex marriages are available to people and lawful, but they will also be able to exercise their conscience and say that the belief of the institution for which they work is that same-sex marriage is wrong.

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Most of us agree that there should be limits on that freedom, and that were teachers to overstep the mark and start discussing the issue in a way that was hateful or unpleasant and that was deeply upsetting to children, something should prevent that. The question is whether that is the proper realm of the criminal law or whether it amounts to good teaching, good practice in schools and the sensible intervention of head teachers. Further clarity from the Government about what is and is not to be permitted in schools would be welcome.

Mr Leigh: My right hon. Friend is making a thoughtful and interesting speech. The right hon. Member for Tottenham (Mr Lammy) seemed to imply that teachers should not be allowed to express a separate point of view. May we get this clear? My right hon. Friend thinks that if I am a teacher in a Catholic school and I say that same-sex marriage is wrong, I should be allowed to say that. If that is the case, why can he not accept one of the new clauses to make that absolutely clear?

Nick Herbert: I am waiting to hear what the Government say about the implications of the new clause, but I understand what my hon. Friend is trying to achieve. I agree that it is important that we have clarity in this area and I am sure the Minister will respond.

There should, however, be no doubt about the position of public employees in the application of the law of the land. It is much more clear-cut that registrars, for instance, should not be able to discriminate against people who are gay, as new clause 2 provides that they should, on the grounds that that would be to exercise their conscience. They are delivering a public service and the principle that this House has tended to apply-for instance, in relation to the provision of bed-and-breakfast accommodation-is that once the law is passed, it should be applied in an even-handed way. One has only to think through the implications of licensing an individual to exercise his or her conscience and to turn somebody away, decline to admit somebody for bed-and-breakfast accommodation or decline to conduct a same-sex marriage. One must think through the implications of other grounds on which they might decline such an application to realise the dangers of pursuing this approach.

What if a registrar were to turn down on the grounds of race an application from somebody to get married? What would we think about that? Is it the position of my hon. Friends or of any hon. Member in the House that that registrar should be free to do so? If it is not-I hear a deafening silence-why do we think a registrar should be free to do so in relation to same-sex marriage, when that same-sex marriage will be lawful, according to the Bill which we expect will be passed?

Richard Drax: Does my right hon. Friend think racism is the same as stamping on conscience and religious belief? Personally, I do not see how the two are connected.

Nick Herbert: My hon. Friend has a point to this extent: for example, the bar that we set in relation to racial hatred is the highest bar of all, and when we came to the incitement of hatred in relation to sexual orientation, a lower bar was set as to the speech that would be allowed. A stronger free-speech threshold was built in, precisely because it was recognised that religious organisations might otherwise have difficulty in expressing their objection to particular attitudes. That in itself is controversial.

I return to the question that I posed. If, in the case of an application to have a wedding, it is wrong for a registrar to turn someone away on the grounds that they are black or a member of an ethnic minority, why would it be right for a registrar to turn away a gay person? That is the essence of the question and that is why new clause 2, in seeking to protect the conscience of that registrar, who is performing a public service, goes too far and opens up the possibility that we would provide all sorts of protections for the exercise of conscience, most of which-maybe not all-Members of this House would find deeply unpalatable.

Mr Burrowes: I take seriously the views of my right hon. Friend and particularly welcome his comments about new clause 1. Like him, I wait to hear the Government's response on clearing up issues of guidance. With reference to new clauses 2 and 3, he should be careful not to misguide the House on the purpose of new clause 3. It is not about turning away any couple. No same-sex couple would be turned away and prevented from having their marriage registered. The point of the new clause is to enable registrars privately to express their objection. Another registrar would have to be available to conduct the marriage. Where would the discrimination or the grievance be for that same-sex couple?

Nick Herbert: I accept that distinction from my hon. Friend. The couple would not necessarily be turned away from the register office, but that individual would have been able to object to performing that service, whereas we would not accept such an objection in relation, for instance, to race.

Chris Bryant: I urge the right hon. Gentleman not to accept the point that has just been made by the hon. Member for Enfield, Southgate (Mr Burrowes), because there are plenty of local authorities where the register office has only one registrar. If that person turns the couple away, they have been turned away from the register office.

Nick Herbert: That is an interesting intervention. The hon. Gentleman will have his opportunity to speak.

In conclusion, we should not dismiss concerns about the reasonable expression of views with which the majority may disagree. Public attitudes to homosexuality have changed extraordinarily rapidly in this country. Not everybody approves of homosexuality, still less of same-sex marriages, but, as we have seen across the western world, the majority of the public now approve of homosexuality. That, in my view, has been a welcome change, and it seems increasingly clear that a majority are in favour of same-sex marriage. That trend is reflected across the western world. Since the vote on Second Reading of the Bill in February, two nations have passed same-sex marriage legislation, New Zealand and France, and last week two more states in the United States of America passed such legislation.

Attitudes are changing fast, but there are people who do not agree. It should be possible for them to disagree reasonably, but not in a way that is hateful or goes beyond the bounds of the proper exercise of free speech. That is the balance that we need to strike. My hon. Friends should remember that if a child in school is gay, just to hear that their teacher disapproves of homosexuality is, believe me, tough enough to hear. Their teacher is free to say to them that being gay is wrong or that homosexual conduct is wrong and the House is asking for a licence to enable that teacher to say that, but do not underestimate how difficult that will be for the child to hear. We must take care that in providing these protections for the exercise of conscience, we do not do a great injustice and allow the continuation of language and attitudes that have caused a great deal of unhappiness for a long time.

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Nick Herbert: I have no objection in principle to the extension of civil partnerships to heterosexual couples-far from it-but I am concerned about what is proposed by my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton), and the effect that it could have.

First, let us look more carefully at the policy intent that lies behind new clause 10. It has been claimed that some 3 million cohabiting couples have not married and that the new clause would give them an incentive to formalise their arrangements, but why do they not wish to formalise their arrangements at the moment? What evidence or assessment should lead us to believe that any proportion of those 3 million people would seek to enter into a commitment that is as exacting as a marriage commitment, with all that it entails?

The fact is that none of us, on either side of the House, can quantify the demand. We are struggling with the figures relating to the potential pension and taxation impact, for instance, because we do not know the extent of that demand. If we are honest about it, we must acknowledge that no group or lobby is telling Members of Parliament that this is what they want. Indeed, very few people are doing so. That stands in stark contrast to those who have been urging for some time-

Tim Loughton: Will my hon. Friend give way?

Nick Herbert: I hope that my hon. Friend will forgive me if I make some progress.

As it does not appear that there is a constituency that is in favour of the change, we do not know how many people would enter into such a commitment. The findings of a poll that was conducted by YouGov at the weekend suggested that the uptake would be relatively low. Given the number of cohabiting couples, we must start to consider what are the proper policy solutions.

In 2007, the Law Commission produced a set of proposals that would have imposed duties on cohabiting couples when it came to separation and their responsibilities for children. My hon. Friend-who I know has a fine record, having been a Children's Minister-did not mention that. According to the Law Commission,

"cohabitants have not made the distinctive legal and public commitment that marriage entails."

The truth is that the arrangement into which they enter is completely different from the arrangement that we would create in respect of civil partnership. I think that more work needs to be done to assess the real level of demand and determine what are the right cohabiting policy solutions.

The second issue that I wish to raise was described by my hon. Friend the Member for Bristol North West (Charlotte Leslie) as the need to ensure symmetry. Let me point out that no symmetry will be created even if the Bill is passed, as I very much hope that it will be. If passed, it will be a huge step forward in allowing marriage for same-sex couples, but no symmetry will be created, because the principal Churches will not allow marriage for same-sex couples. The Church of England will not be allowed to do it, and the Catholic Church will choose not to do it. It is a false argument to suggest that a symmetry will be created, or that the Bill will create an asymmetry that it will be possible to correct by extending civil partnerships to a completely unquantified and unknown group of people.

Ian Paisley: Is it not the case that in a mad rush to put same-sex marriage on the statute book, the right hon. Gentleman is prepared to ditch and discard everyone else's rights irrespective of the cost?

Nick Herbert: I have already said that I have no objection to the principle, but there is no evidence that there is a demand for the measure.

That brings me to the third point that I wish to make. We now have the prospect of achieving an incredibly important step forward for same-sex couples by introducing marriage for them, and I am very anxious about the possibility that that will be put at risk-I do not put it any more strongly than that-if we add to the Bill an uncertain and unquantified element for which there does not appear to be a genuine demand. I believe the other place may then add greater difficulty into the Bill than would otherwise be the case. It will have two issues to deal with, rather than one. I therefore urge all of good faith who support marriage for same-sex couples to be very cautious before supporting the amendment in question. Indeed, I urge them to oppose it, and to do the straightforward thing of agreeing to the review. I support the Opposition amendment to ensure that the review is immediate. Given the complexity of these issues, that is an eminently sensible way forward.

Tim Loughton: My right hon. Friend clearly said we do not know the cost of the proposals in the amendments. Will he therefore put on record that it was entirely irresponsible and misleading for the Government to brief that the cost could be £3 billion, £4 billion or, as they said today, between £4 billion and £8 billion, and that that may have falsely swayed the argument?

Nick Herbert: With the greatest respect to my hon. Friend and constituency neighbour-indeed, my constituent -for whom I have a lot of time, he cannot have it both ways. He suggested that the proposal would be a way of dealing with the £44 billion cost of family breakdown. If the impact is small and very few heterosexual people want to take up civil partnerships, it will have little impact on the cost of family breakdown. The answer is that he does not know, the Government do not know and the Opposition do not know, because the work has not been done.

I fully accept that some Members genuinely wish to support the amendment because they believe it would somehow provide an extension of equality, and that they would therefore do so for the best of intentions, but let us be clear: some Members are supporting this amendment for precisely the opposite reason. I do not include my hon. Friend in that. Some Members are breathing the word "equality" for the first time. It sticks in the craw of many of us to be lectured suddenly now about equality by Members who have been opposing this Bill and equality and every single measure that has come forward to promote equality in the first place, including civil partnerships.

Some of the Members who have put their name to this amendment and who intend to vote for it, proclaiming the need to ensure equality and symmetry, voted against the civil partnerships legislation in 2004. One of those Members described that civil partnerships legislation as a buggers' muddle and thought that was a funny thing to say at the time. Suddenly, within less than a decade, almost no Member of this House will say that they did not support the civil partnerships legislation, and suddenly some of the Members who did not support it stand up now and say, "Oh, it's terribly important on equality grounds that this category of civil partnerships"-which they did everything they possibly could to oppose-"is extended to heterosexual couples." It is a faux attachment to equality and it should not be taken at face value.

I do not take anything away from those who genuinely think that it would be a sensible status to create. I am with them, but we must not imperil this Bill by allowing others to play their political games. I assure Members on both sides of the House that those in the other place are waiting for the opportunity to declare that this Bill will need more time and they will have to look at it in much greater detail, and then suddenly we will find that it will not be returned to us, or that it will be returned to us in a form we do not like.

I urge those who wish to see a very important and genuine step forward for equality to recognise the sense of the compromise that the Government and the official Opposition have agreed, which is to review this matter immediately in order to assess whether there is a genuine need for such a change. Let us make sure we genuinely take forward this step for equality now, and that we are not seduced by false arguments.