Wednesday, 27 February 2013
Committee scrutinises Marriage bill clause by clause
Updated to include links to Thursday debates
On Tuesday the Public Bill Committee resumed its examination of the Marriage (Same Sex Couples) Bill. It also met on Thursday of this week.
A large number of amendments have now been filed, see the list as of Tuesday morning starting here, or there is a convenient PDF file of them.
Additional amendments were filed during Tuesday, see here, or PDF over here.
Update Amendment list as of Thursday morning, or as a PDF document.
On Tuesday the committee concluded its deliberations on Clause 1, without agreeing any amendments to it. There was however a lot of discussion about the exact position of the Church of England.
To read the full record of the Tuesday debate:
Links for Thursday:
Clause 2 amendments were debated but none were adopted.
A large number of written submissions to the committee have now been published. This page contains links to all of them. Some of them have been linked previously.
Several of the new ones are from names familiar to readers of this website:
Bishop Alan Wilson
Canon Rosie Harper
And there several other contributions from Church of England clergy but only one other from a bishop: Bishop Frank White.
This one is from the Mothers’ Union.
There is also a submission from the Quakers and another from the Unitarians.
The submission from the Roman Catholic bishops has been linked here earlier, but is now also available on the parliamentary website.
And then there is Professor Julian Rivers.
Posted by Simon Sarmiento on
Wednesday, 27 February 2013 at 10:00am GMT
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Exhausting reading. But why is there a DUP member for Northern Ireland on this committee when the Bill doesn't include that province and there is no chance of similar legislation being enacted there. I know, it's the West Lothian question all over again.
A jewel of a debating exchange with Tim Loughton challenging Hugh Robertson to explain how a public servant (doctor) opting out of performing an abortion differs from another public servant (registrar) opting out of performing a same-sex marriage ceremony.
Tim Loughton: The Minister has just used the phrase “pick and choose”. How is this different from allowing another public servant, a surgeon, to pick and choose whether to perform an abortion?
Hugh Robertson: Generally speaking, I believe all these cases are different. There are plenty of issues. I spent some time as a young man in the Army, and there are plenty of cases in which the Government take a decision and expect public servants to carry it out. That is not an unfair principle in any way.
Tim Loughton: Why is it the principle that a surgeon who has strong Catholic views is allowed to pick and choose whether to perform abortions or other surgery, if the same principle cannot be applied to a Catholic registrar with strong views, allowing them to pick and choose whether to perform that other public service? What is so essentially different that we protect one but not the other?
HughRobertson: It is because they are different functions; that is the short answer.
Tim Loughton: That is not an answer.
Hugh Robertson: Yes, it is. They are different functions. One is an abortion; the other is a same-sex marriage.
Tim Loughton: Why do we protect religious views on abortion but not the religious views of registrars, when in both cases public servants perform a public function, for which the public pay? They are different, but saying they are different is not a justification for treating them differently.
Hugh Robertson: It is about whether that is in the Bill; that is the short answer. It is relevant that in the extensive consultation period the national body responsible did not ask for that exemption. I do not know whether that was the case when the Abortion Act 1967 was put on the book, and what representations were made by the professional bodies at that point; but the issue was not raised.
Tim Loughton: To confirm what the Minister says, the Government are picking and choosing who has an exemption and who does not.
The reason we have a Northern Ireland member on the committee is that we have a unitary Parliament. It is an England and Wales Bill. England has no devolved governance and is ruled via the (unitary) UK Parliament. Wales has a degree of devolution but this bill is not a devolved matter (whereas marriage is devolved in Scotland and Northern Ireland). Whilst there is devolution, the UK is not a federal state.
Also it is helpful to have different opponents to the Bill on the committee to include different perspectives in their deliberations.
David Shepherd - I am not sure how that is genius? Of course the government chooses who has an exception from the law and who does not. That is the function of government.
If you extrapolate the argument out, then because some people have a religious exemption from performing abortions, other religious people should have an exemption from doing anything at all that clashes with their beliefs.
Clearly people cannot have a blanket opt out from the law or a blanket protection from disciplinary measures based purely on what they believe.
So the legislature has to choose which issues are serious enough to have an opt out, and which aren't. You can disagree with the individual decision, but arguing that religion should be an opt out for anything because it is an opt out for something is pretty dumb.
As usual, argument by analogy fails utterly. A doctor performing an abortion is the active agent effecting a result; a registrar registering a marriage is a functionary witnessing and recording an act performed by others. Conscience about performing an act with an effect on others is not the same as conscience about not liking to be connected with actions others perform. No comparison.
Richard Ashby: 'But why is there a DUP member for Northern Ireland on this committee when the Bill doesn't include that province'
In 1993, the DUP's founder had this to say in reply to an analogous criticism:
'In 1927 and 1928, two historic debates were held in the House of Commons on the revised prayer book... At the opening of the debate, the hon. Member for Brighton, Kemptown (Mr. Bowden) lodged a strong objection: he told the House that those who were not members of the Church of England should not dare to speak. Everyone knows that I am not a member of the Church of England... However, I happen to believe that it is the relationship of the human soul personally to Jesus Christ that settles eternal things, not the relationship of a human soul to any Church body, no matter what its claims may be.
The hon. Member for Bristol, North-West (Mr. Stern) quoted partially what was said in that debate. Sir William Joynson-Hicks stressed the great importance of the House of Commons. He said: "As long as the Church is established, the final right lies with Parliament. To-day, the final right lies with the Commons of England. In another place, there was a Division which disposed of the matter there, but the final appeal which the Protestants, the old-fashioned believers in the Church of England, make to-day is to this House of Commons. I am told that some hon. Members do not wish to vote in this matter because they are not members of the Church of England. I say to those Members: 'You are not sent here as Nonconformists, you are sent here as Members of Parliament. You have no right in, perhaps, the most difficult and dangerous vote that this House has ever given, to disfranchise your constituents.' Vote against me if you wish, vote for the new Prayer Book if you wish, but every member who comes to this House has a bounden duty to consider for himself the great issues which are put before him and to decide those issues in what he believes to be the interests of right and justice." I think that that is a basis on which we should have this debate. No matter what their views may be, whether they are believers or unbelievers, they should have the right to say.'
There is no 'religious' exemption under the Abortion Act 1967. There is a conscientious objection provision under section 4 of that Act. Objections to abortion are by no means all religious. In 1967, the Hippocratic Oath was generally understood as forbidding abortion. Many doctors would then have considered themselves in breach of their oath by taking part in an abortion, whatever their religious views if any.
Arguably, the law has always 'picked and chose' who had an exemption anyway. There was the Janaway case more than twenty years ago, where a receptionist/secretary refused to type a letter of referral for an abortion, citing the conscientious objection clause of the Abortion Act. It was held not to apply to her.
We have had civil marriage in England and Wales for well over a century and a half without a conscientious objection clause. A Muslim registrar cannot refuse to marry a Muslim woman to a non-Muslim man, even though such a wedding is against Muslim law. Likewise, a Catholic registrar cannot refuse to marry divorcé(e)s whose previous spouses are still alive and so on.
If no such conscience clause already exists for civil registrars, why should we have to invent one now?
Sad that the Mother's Union submission is littered with the word 'solomnise' - so that one is left wondering whether the submitter is speaking of some sort of Solomonisation - rather than the use of the word 'solemnise', which means to make a contract (in this instance. It would perhaps have done the M.U. better to have used a spell-check in their adversarial presentation. This sounds to me like a reversion to the former M.U. policy of not admitting unmarried mothers to their circle.
the MU website syas that it is aware of the differeing views held by it members in relation to Marriage Equality. But its submission to the Committee shows no evidence of this. My Branch was not consulted. Was any branch consulted?
Father Ron Smith.
Three solomnise, and one solemnise. Bad spelling I grant you, but I thought you might be a bit more forgiving than that!
CRW: 'but arguing that religion should be an opt out for anything because it is an opt out for something is pretty dumb.'
It is and I didn't. A straw man. Instead, I argued that there must be a consistent rationale behind the statutory accommodation of conscientious objection. The floundering explanations offered by Hugh Robertson ('the national body responsible did not ask for that exemption') or Ben Bradshaw ('The jobs open to devout Catholics in the medical profession are many, the vast majority of which would never take them anywhere near an abortion') are no basis for establishing any principle.
The law actually states: 'Subject to subsection (2) of this section, no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection:'
Rather than the conscience clause being limited to the 'active agent effecting a result', the scope of this law even protects the right of a nurse who was assigned to work in an abortion clinic, for whom the only role might be to prepare a woman for the procedure, or just monitor her blood pressure.
The statute holds no distinction between FORMAL COOPERATION and MATERIAL COOPERATION when it uses the term 'participate'. It is left to the courts to decide on what basis the conscience clause should apply.
The taking of blood pressure is an intrinsic participation in the process leading to the abortion, and the one taking the pressure an active agent in it. That is precisely why the posited nurse would object.
A registrar in no way generates, formally or materially, the marriage which she registers. The actions of the registrar are extrinsic to the marriage itself.
Should a postal worker have the right to refuse to deliver mail to which he has religious objections, or for people to whose manner of life he disapproves on such grounds?
And yes, it would be up to the courts to decide, and in the case of a registrar I believe they have.
Next, you'll suggest that the abortion clinic receptionist who ensures the final consent form is completed properly before the procedure also generates the abortion. Yet, such a person could in a public capacity, under current abortion law, conscientiously object to being assigned to that role of simply registering the consent of the woman on behalf of the State.
If conscientious objection to registering consent to abortion is a valid accommodation, conscientious objection to registering consent to marriage is also valid.
In respect of Ladele, the ECtHR has simply refused to intervene, given a wide margin of appreciation on this issue. The margin of appreciation is granted when there is the lack of European consensus on this issue. The Grand Chamber would have to make a declarative judgement in order to affect statutory provisions.
Whatever our courts have decided, this does not impose a statutory requirement on legislators to justify conscience clause for some public workers who register consent for one purpose, while prohibiting it for others who register consent for another.
The cases introduced in the dialogue quoted above differ not only in degree but in kind. There are fundamental differences between a surgeon refusing an abortion and a registrar refusing to register, for the reasons I laid out.
The counter example of a nurse serving in the operating theater is not analogous to a registrar as he is intrinsically engaged in the process of the operation. It is not a merely passive role.
Far be it from me to wonder if an abortion clinic secretary might refuse to record information about abortions on the basis of conscientious objection. Perhaps he could, but I doubt a court would find in his favor.
But such voyages into alternate realities and analogies are unhelpful. I was responding to the original point, and I think the distinctions between abortion and marriage, and the role of the aborting physician in the former, and the registrar in the latter, are formally and materially distinct. It's a pity that Hugh Robertson seems to have been at a loss for words.
I wonder how the opponents of marriage equality and civil rights for gays and lesbians propose to put the toothpaste back in the tube at this point.
I think that most people sense that performing an abortion and acting as a civil registrar are cases to be treated differently, I think the analogy can be pushed too far. Such exceptions should be given sparingly on a case by case basis.
The committee proceedings are tedious beyond belief because they verge, at times, on filibustering. I know a filibuster when I see one. David Burrowes is not enhancing his reputation or that of evangelicals whom he claims to represent.