By Matthew Barrett
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Yesterday in the Lords, Conservative peer Baroness O'Cathain of The Barbican, attempted to scrap regulations that would allow religious groups to conduct civil partnerships in religious buildings.
"The purpose of my Prayer is to address the widely held concerns that the regulations threaten religious freedom. The Merits Committee has drawn them to the special attention of the House, because of the concerns expressed to it. The House must decide whether we reject them and invite the Government to think again. The regulations are intended to create an entirely voluntary system for places of worship that wish to register civil partnerships. That is the intention and I do not doubt the Government's sincerity, but senior lawyers advise that the interplay between the regulations and equality law could result in legal pressure on churches that do not want to register civil partnerships. That is what I want to address. In no way am I trying to block these regulations as a means of opposing civil partnerships. I have seen some deeply unpleasant briefing materials and, indeed, have received many obnoxious letters which impugn my motives. I have absolutely no hidden agenda. My sole reason for this Prayer is to attempt to stop churches having their religious freedoms taken away by local authorities or by litigious activists. The House must not pass regulations that fail to fulfil the intention of the Government."
Lord (John) Mackay of Clashfern, the former Lord Chancellor under both Mrs Thatcher and John Major, was concerned about wording in the current provisions. He suggested a way forward:
"My point is that the amendment that the noble Lord, Lord Alli, and his colleagues put forward, which was accepted on a free vote in this House and the House of Commons, refers to nothing in this Act, but only to provisions in the 2004 Act. The opinion of these Silks is that the risk arises not from the provisions of the 2004 Act but from the provisions of the Equality Act 2010. To my mind, this issue can be completely set to rest by a simple amendment. Instead of saying "nothing in this Act shall", the provision would say "nothing in this or any other Act shall". The Government could do that without difficulty because I am sure we are all agreed that we mean to exclude any attack on the basis of the Equality Act."
"We have a specific provision in this country for the established Church of England, as has been referred to by the right reverend Prelate the Bishop of Blackburn. With the agreement of Parliament, we do not legislate over and above, or directly at, the Church of England; rather, we receive the measures that the church-initially through the Church Assembly but in more recent years through the General Synod-has thought fit to pass. Those measures come before the Ecclesiastical Committee… If it deems the measure expedient, the measure then comes before the two Houses of Parliament separately, either on the Floors of the Chambers or in Committee, where it can be voted upon. It is very unusual for a measure to be rejected-in my 40 years on the Ecclesiastical Committee I can think of only one such measure, which concerned provisions for churchwardens. I can think of others, such as the prayer book measure and the ordination of women measure, which engendered very real debate in both Houses, but at the end of the day those measures were passed."
The Minister of State for Crime Prevention and Anti-Social Behaviour Reduction, the 8th Baron Henley, gave the Government's reaction to the attempt to scrap the law. Lord Henley assured the Lords present that wording of the law meant religious groups would not be pressured into conducting ceremonies against their will:
The fundamental point is that Section 202 of the Equality Act inserts into the Civil Partnership Act 2004 the statement: "For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so.". As the noble Baroness, Lady Royall, seemed to imply, one does not need to be much of a lawyer to know that that is about as clear as you can get. We need only to repeat those words: "For the avoidance of doubt", again and again to make that quite clear.
Lord Henley continued:
"There are further protections for ministers of religion. As the process is to approve premises rather than individuals, it ensures that no ministers will be able to host civil partnerships unless the premises they lead the worship at are approved. Ministers also benefit from the protections in Schedule 23 to the Equality Act, which allows faith groups to restrict the use of their premises on the basis of religious doctrine or the strongly held convictions of the religion's followers. Finally, other protections exist in the regulations we are debating. When making an application for religious premises to be approved, the trustee or proprietor of the premises will be required to provide the necessary consent from the governing authority of the faith or faith groups using the premises."
Lord Henley then sought to assure Baroness O'Cathain that the Government would not allow religious liberty to be contravened in the fashion she feared it might be:
"My noble friend Lady O'Cathain thought that by inserting the last paragraph into my letter, I was expressing that I had some doubts. I assure her that I have no doubts but, in the extraordinarily unlikely event that there was some legal challenge that we had to face, I will repeat what I had to say in that last paragraph. I made it clear that, while we do not believe that this will happen, if a successful legal challenge were ever brought, I would like to provide reassurance-I provide it now, from this Dispatch Box-that the Government would immediately review the relevant legislation. We are absolutely clear that the voluntary nature if this measure must be maintained."
Finally, Baroness O'Cathain confirmed she had the Government's support on the issue, and withdrew her amendment:
"I have listened intently. I remember-this is a flashback to my childhood-that when my parents asked me what I wanted to do, I said I wanted to become a lawyer. Thank goodness I did not, that is all I can say; it is even more confusing than being an economist. I have listened particularly to the Minister. I just want him to agree once more, so that my noble and learned friend Lord Mackay has satisfaction. In the 2004 Act no one was in any doubt and yet there was protection for the avoidance of doubt, but there is doubt around the 2010 Act -whatever we think about it, there is doubt out there. If the Minister is saying, in a ministerial Statement from the Dispatch Box, that he is convinced that the protection for the avoidance of doubt in the 2004 Act applies to the 2010 Act, then in view of the opinion around the House I will withdraw my Motion. But I want to make sure that the Minister has the chance to say so.
Lord Henley: My Lords, I confirm again to my noble friend that that is exactly what I said. Section 202 inserts an amendment into the 2004 Act but it is equally true that it is in the Equality Act; it is a vehicle for this. It is proper to say that it is Parliament's intention that that is the position. I do not think I can be any clearer than that. ….
Baroness O'Cathain: … I beg leave to withdraw the Motion."
The full debate can be read on Hansard here.