On 1st February 2019 the House of Lords considered in Committee a Private Member’s Bill, the Civil Partnership, Marriage and Deaths (Registration etc) Bill. This Bill incorporated provisions on marriage registration that the Bishop of St Albans had successfully piloted through the Lords in his own Private Member’s Bill in 2018. It included extra provision relating to registration of stillborn children, and civil partnerships for opposite sex couples.
The Bishop of Chelmsford spoke during debate on two amendments to the Bill. The first, briefly, on an amendment from the Bill’s sponsor Lady Hodgson, to enable the conversion of civil partnerships to marriage, and vice-versa, through the introduction of Regulations that could amend primary legislation, including Church of England Measures. The amendment was passed after debate.
The second on a probing amendment from Labour Peers, which was withdrawn after debate, to remove the provisions in the Marriage (Same Sex Couples) Act 2013 that give legal security to the Church of England and Church in Wales in setting and maintaining their doctrinal position on marriage. The Bishop’s speech on that, and the responses of other Members including the Government front bench, the Bill’s sponsor and the amendment’s sponsor are below:
The Lord Bishop of Chelmsford: My Lords, perhaps I may make a very small but important point. Proposed new Clause 1(7) refers to regulations being made for civil partnerships to be converted,
“into marriage and vice versa”.
This would require quite a bit of consultation with the Church of England and, I think, with the Church in Wales.
Lord Collins of Highbury (Lab) [extract]…I hope that the Minister and the noble Baroness, Lady Hodgson, will be able to respond clearly in relation to my noble friend’s question about proposed new subsection (7). Precisely what is its purpose? I suppose the right reverend Prelate alluded to this, in that he referred to the implications for couples who have been married in church. I suppose that is what he is concerned about. There are obviously many people who have married in church and later divorced, then married again—maybe not in a church, but that has extended even to members of the Royal Family and, potentially, a future head of the Church of England. That is not for me to query. However, this really is important because, in scrutinising legislation, we have to be clear about the sort of precedent we are setting.
Lord Faulkner of Worcester (Lab)
“Removal of exemption for clergy under the Marriage (Same Sex Couples) Act 2013
(1) The Secretary of State must make regulations to amend the Marriage (Same Sex Couples) Act 2013 to remove the exemption for members of the clergy to solemnize the marriage of a same sex couple.(2) Regulations under this section must be in force by the end of the period of 6 months beginning with the day on which this Act is passed.”
The Lord Bishop of Chelmsford: My Lords, I will first make it clear, lest it be misunderstood, that the Church of England seeks to welcome all people, including LGBTI+ people, including those in civil partnerships and same-sex marriages. The reason we are having this discussion is that there are questions about how this welcome can be expressed, but I deeply regret a situation where anyone, because of their sexuality, feels excluded, alienated or hurt in the way that I know some are.
As I shall go on to explain, the Church of England is at the moment in the middle of a process which is examining how we give expression to this welcome. I hope noble Lords will understand my comments in this context, because I still regret that this amendment has been tabled. It introduces a discordant note into your Lordships’ consideration of a Bill which is otherwise uncontentious and likely to receive clear support. Moreover, an exemption from one piece of legislation can challenge inclusion in another. The Marriage (Same Sex Couples) Act 2013 seeks to strike a balance between the right of individuals to marry a person of the same sex, and the rights of churches and other religious bodies—and of their ministers—to act in a way consistent with their religious beliefs. Nobody is prevented from entering into marriage with a person of the same sex, but no religious body or minister of religion is compelled to solemnise such a marriage.
In its second report on the then Marriage (Same Sex) Couples Bill, the Joint Committee on Human Rights said that religious liberty, as granted under Article 9 of the European Convention on Human Rights is,
“a collective as well as individual right. Religious organisations have the right to determine and administer their”,
“own internal religious affairs without interference from the state. The European Court of Human Rights has held that the autonomy of religious organisations is ‘indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 of the Convention affords’”.
The Joint Committee went on to say that the Government have an obligation to protect the rights of religious organisations of freedom of thought, conscience and religion. It concluded that this was a justification for the provisions now contained in the 2013 Act, which provides for religious organisations to decide whether or not to conduct same-sex marriage.
The 2013 Act treats the Church of England and—the noble Baroness is right—the Church in Wales differently from other churches and religious organisations. Nevertheless, as the Government made clear in 2013 and as the Joint Committee on Human Rights accepted, both Churches are free to decide whether to solemnise same-sex marriages. Any such decision would be implemented through the particular legislative processes rather than through the opt-in mechanism provided in the 2013 Act that applies to other religious organisations. However, the Joint Committee concluded that this difference in treatment was justified because of the particular legal position of the Church of England and the Church in Wales—this is the crucial point—whose clergy have a duty under common law to marry parishioners. The 2013 Act accordingly contains specific provision so that the common-law duty of the clergy is not extended to same-sex marriages. As I understand it, that appears to be the main target of the amendment.
I accept—of course I do—that many noble Lords deeply regret the Church of England’s current position on the marriage of same-sex couples. However, that position is based on the doctrine of the Church of England set out in canon law—which in turn forms part of the law of England—and in the Book of Common Prayer. However, the Church of England is currently engaged in what is called the Living in Love and Faith project, which is driven by a desire to learn how relationships, marriage and sexuality fit within the bigger picture of humanity, made in the image of God and redeemed by Christ. It is no secret that there are differing, strongly held views within the Church of England on these questions—I am putting it mildly. We recognise that they are vital matters which affect the well-being of individuals and communities, but we are in the middle of this process and we are waiting to see what will emerge.
Were the Church of England’s doctrine that marriage is between one man and one woman to be changed, that could be achieved only by specific ecclesiastical legislation, passed by the General Synod and then by Parliament. This amendment, which I am pleased to hear is not intended to compel the Church—I thank noble Lords for making that point—would not remove the need for that legislative process to happen, so I believe it would only make matters more difficult for the Church, not easier. Even for those within the Church who want to see change, this is not the way to help that. Instead, by requiring the removal of provisions from the 2013 Act, it will put marriage legislation at odds with ecclesiastical law, and it is impossible to know how the courts would resolve that situation. But, more significantly, it would unbalance the 2013 Act so that it ceased to respect the right to freedom of thought, conscience and religion. I therefore hope the noble Lord will not press this amendment.
Are those levels of perceived hostility and discrimination acceptable, and does the right reverend Prelate agree with me that the Church, by completing its internal discussions on this important issue, could send a very important signal that everyone—people who believe in the same beliefs and the same religion—is welcome within the Church and that there is no prohibition to them being a full and fully partaking member of that community?
The Lord Bishop of Chelmsford: I had sat down, but if I may, I shall respond briefly. I think the noble Lord’s question goes rather beyond what is proposed here, but I want him to know that the Church of England works closely with Stonewall to address many of the issues he identified, which I am aware of and very much hope that the Church of England will address. However, I stand by what I said: I do not believe that the amendment will help in the process that the Church of England is part of, although I understand why it has been proposed.
Lord Elton (Con): My Lords, I came as a spectator, but I am fascinated by what we are being asked to do. I need to be a little clearer on the mechanics. Not being familiar with the legislation, but listening to the right reverend Prelate and others, it appears to me that if the Act of 2013 did not exist, the clergy would be under a compulsion to marry against their principles. Surely the effect of the amendment, the exemption being removed, would be to place them under compulsion. I ask because it is an important difference whether it would be imposed automatically or whether the Church will have time to adjust to circumstances.
The Lord Bishop of Chelmsford: I was pleased to hear how it was being put forward; that is certainly not how those in the legal department of the Church of England have read it. I do not feel legally qualified to make further comment, but it is clearly a concern within the Church, and I think I am right to say that it would be a concern even for those who would like change, because it would introduce compulsion. That would be very unhelpful, particularly as the Church of England is in the middle of a process of discussion of the issues.
Lord Cashman: My Lords, perhaps I may be able to help the noble Lord, Lord Elton. As it stands, as I said earlier, the Marriage (Same-Sex Couples) Act 2013 does not allow for clergy of the Church of England to solemnise, but it makes provision for other religions, including Quakers and Judaism, to opt in. There is no obligation; there is an opportunity to opt in to solemnise. They are not obliged. If as individuals or a group they do not wish to solemnise, there is no obligation to do so.
Lord Collins of Highbury: My Lords, I have added my name to this amendment and support it whole- heartedly, and I do not believe that we are striking a discordant note. I think the opposite. We are asking a question to which people are seeking an answer. I do not profess for one moment that we necessarily have it right, but it is really important that we have this debate, especially as we are now talking about marriage being dissolved so that people can go into another form of relationship. The nature of relationships is changing, and the state is catching up.
I say from the outset that no politician or parliament should dictate to a religious organisation what it should or should not do. In fact, that is precisely why we tabled the amendment. In the 2013 Act, we had what people have called the triple or quadruple lock. People said that it was unacceptable. The debates on the 2013 Act are fresh in my mind and some of them I found personally difficult, but I recognise that the Church of England in particular has been on a journey, travelling quite fast and, in my opinion, in the right direction. I also remember the debates on the Civil Partnership Act, when the Church of England opposed it. I know that the most reverend Primate has apologised for some of the positions that the Church took when that Act was proposed, referring to those debates.
I do not know whether the Church has been issuing information about the amendment but, for the first time in my life, I have received emails from local vicars across the country expressing disquiet—who do I think I am forcing this abominable Act on the Church? As I said, I do not want to force anything on any religious institution, but I recognise that people of faith are gay. That is not restricted to lay people, it embraces everyone.
On Second Reading, I deliberately quoted the most reverend Primate in my speech. I think it is worth repeating because it goes to the heart of the debate on the Bill. I said:
“In his recent book … the most reverend Primate … tells us that the Bible’s teaching on marriage is profoundly positive but, he notes, the social reality in modern Britain is radically changed today, with cohabiting, blended, single-parent and same-sex configurations. He continues: ‘If fluidity of relationships is the reality of our society, then this should be our starting point for building values, because all values must connect with where people are and not where other people might like them to be’”.
That is the question for the Church of England. If it does not catch up, people will go somewhere else. My noble friend would certainly welcome many such people, keen for their values to be recognised, into his church. Of course, the most reverend Primate talked about those values. As I said at Second Reading:
“According to the most reverend Primate himself, ‘in Christian understanding, the core concepts of households and family include holiness, fidelity, hospitality and love above all, because God is holy, faithful, welcoming and overflowing in love, and any human institution that reflects these virtues also in some way reflects God’”.—[Official Report, 18/1/19; col. 427.]
When we adopt the Bill, I am sure that civil partners will reflect those values; many people in same-sex marriages certainly hold those values, as we have heard. If the Church does not catch up with them, they will go somewhere else.
I recognise that the Church is on a difficult journey because of the strong beliefs referred to by the right reverend Prelate. Clearly, there are divisions there, as there are in our society, but I know that the journey we have been on since the introduction of civil partnership has transformed our society. I remember the debates on the same-sex marriage Bill. People said that it would be a disaster, that society would collapse and that the situation would be terrible. Well, that has not happened. People recognise the value of those relationships in making a much stronger society where we can love in communities.
Instead of setting a discordant note, I hope that asking the question today will help not only the Church of England but other religious institutions to catch up with the reality: people of the same sex can love each other in a very rewarding way.
Baroness Williams of Trafford: My Lords, I thank all noble Lords who contributed to the debate. In particular, I thank the right reverend Prelate the Bishop of Chelmsford for his remarks, which give everyone hope in the context of today’s debate. I recognise the depth of feeling among Members of both Houses and people around Parliament, but I am afraid that I must resist the amendment in the names of the noble Lords, Lord Faulkner of Worcester and Lord Collins of Highbury.
As noble Lords have said, the amendment seeks to amend the Marriage (Same Sex Couples) Act 2013 to remove the exemption for members of the clergy from solemnising the marriage of same-sex couples. The 2013 Act provided an opt-in system so that same-sex marriages can occur only on religious premises, or under religious rites, where the governing religious body has expressly consented. There is no requirement to give such consent.
We have always been clear that no religious organisation should be forced to marry same-sex couples—I think the noble Lords made that clear—or to host civil partnerships. A number of religious organisations have chosen to opt in by providing blessings and, again, the right reverend Prelate the Bishop of Chelmsford gives us hope when he talks about the process of living in love and faith that the Church of England is currently going through. We hope that more organisations will do that in the future, but it is right that it should remain a decision for them. It is not for the Government to mandate this through regulations
The noble Lord, Lord Collins of Highbury, raised this issue at Second Reading. He urged the Church of England to permit same-sex couples to have a blessing of their marriage. In response, the right reverend Prelate the Bishop of St Albans said:
“I will resist the temptation to widen the debate beyond the scope of the Bill … I do so because I want us to focus absolutely on what we are trying to deliver”.—[Official Report, 18/1/19; col. 432.]
That is a good message for today but it does not preclude our having other debates on the points made by the noble Lord. I do not, however, believe that they are relevant today. Indeed, the danger is that they will confuse matters if we go beyond the scope of what we are trying to do.
This is a multifaceted Private Member’s Bill and we should keep it as simple as possible. I hope the noble Lord will withdraw his amendment.
Lord Cashman: My Lords, I should like to make two points. First, my name is also attached to the amendment. Secondly, inequality, by its very nature, is multifaceted. We should not back away from the challenge that it presents.
Baroness Williams of Trafford: I apologise to the noble Lord; I completely forgot to mention him.
Baroness Hodgson of Abinger: My Lords, I am grateful to the Minister for clarifying these matters. It only remains for me to say in response to the noble Lords, Lord Faulkner of Worcester, Lord Collins of Highbury and Lord Cashman, that the wider debate about the nature of marriage is going on right across society, particularly in the Church of England, the Church in Wales and in other churches, and it will continue. I am grateful to noble Lords for stating their views, but they are not the focus of the Bill before us, so I hope we can give it the green light and the go-ahead to move forward.
Lord Faulkner of Worcester: My Lords, I am deeply grateful to all noble Lords who have taken part in this debate and to the right reverend Prelate, who clearly thought a great deal about what he was going to say to us. It has been a remarkable debate. This is the first time since the Marriage (Same Sex Couples) Act 2013 was passed, more than five years ago, that we have had an opportunity to talk about the attitude of the Church of England—and the Church in Wales, as the noble Baroness, Lady Barker, pointed out—to same-sex marriage in church. I make no apology for raising the debate because the fact that the Church is moving—at glacial speed, I am afraid to say—on this issue is because of the climate created in this House towards the whole issue of same-sex relationships. This House set the lead in passing that legislation with such enthusiasm in 2013, and I think there is a genuine move for us to give the Church a little push in the right direction.
Of course, I am aware that the General Synod has to pass its own legislation, but I cannot see the logic in us facilitating that by passing an amendment such as this and then giving the synod the opportunity to come round to thinking about whether it wants to do it. It is not mandatory; rather it is an opportunity for the General Synod to think further.
A lot could be said about the problems that the Church of England has with sexuality, particularly the sexuality of so many of its priests and other representatives. That is not a debate for today but it is something that I know the Church of England will have to come to terms with if it is not to be seen as hypocritical on issues around sexual relationships.
However, for today, and it is for today, if the Committee agrees, I beg leave to withdraw the amendment, but I reserve the right to bring it back on Report.
Amendment 2 withdrawn.