Marriage (Same Sex Couples) Bill

Public Bill Committee, 28 February 2013.

Clause 2

Kate Green (Labour, Stretford and Urmston)

I beg to move amendment 9, in clause 2, page 2, line 9, after ‘compelled’, insert

‘by a couple who wish to be married’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss amendment 24, in clause 2, page 3, line 16, at end insert—

‘“compelled” includes, but is not limited to, the following activities:

(a) the imposition of any penalties (whether civil or criminal),

(b) the less favourable treatment of a person by a public authority, and

(c) the initiation of any legal action by way of a review,

in each case as a result of the exercise by a relevant governing or relevant religious organisation of functions relating to giving any consent or to refusing to give any consent provided for in sections 2, 4, 5, or 7 of this Act.’.

Kate Green (Labour, Stretford and Urmston)

I will be brief. We are concerned about the ability of faith organisations to manage their affairs. An important thrust of the Government’s approach has been that we should not dictate to Churches and other faith organisations whether they are obliged to carry out same-sex marriages. However, amendment 9 addresses a situation in which the decision of a Church or faith institution to conduct same-sex marriages could conflict with the views of an individual minister of that Church or faith institution. It is a probing amendment to explore the Government’s intentions as to whether one view or the other would prevail.

The issue arose during our oral evidence session with the Equality and Human Rights Commission. In its written evidence, the EHRC was clear that ministers and others could not be prevented from expressing a view against same-sex marriage outside the workplace and could not be forced through litigation to conduct same-sex marriages. However, in their oral evidence, Robin Allen and John Wadham raised the issue of a faith institution that decided that it wanted not only to conduct same-sex marriages, but to insist that all its ministers carried out such ceremonies.

We explored the issue in our oral evidence session on 14 February. Mr Wadham and Mr Allen asked whether it was the Government’s policy intention to enable individual ministers to refuse to conduct same-sex marriages, even if the religious institution of which they were members wanted all its ministers to carry them out. If the intention is that ministers should be able to refuse to conduct same-sex marriages even though their overall religious body has decided that it wishes to conduct them, will the Minister explain why the Government take that view? Would a religious institution that disciplined an individual minister or forced them to carry out a same-sex marriage be acting in accordance with the Bill?

We do not expect the problem to arise frequently; it will perhaps arise only rarely. As we heard in oral evidence, it will never be a problem for some religious institutions. The Unitarians pointed out that all their ministers take decisions as individuals; the Unitarian Church holds no overall position. The Quakers pointed out that ministers do not celebrate marriages in their faith, as they are merely witnesses, and the ceremony is conducted by the couple.

David Burrowes (Conservative, Enfield, Southgate)

The hon. Lady says that there is almost a collective view among the religious groups from which we heard oral evidence. However, we must note that the evidence before the Committee includes not just the partial evidence we heard in our oral evidence sessions, as the representations that have been cited come from quite a limited group. I am not sure whether the hon. Lady has sought representations from evangelical denominations, but they may well have a collective view of not wanting to get anywhere near opting into the provision.

Kate Green (Labour, Stretford and Urmston)

I have not specifically sought the views of evangelicals, but I would have thought that neither the hon. Gentleman nor evangelicals would have a problem with my amendment. It explores whether the Minister wants individual ministers to have the freedom to make their own decision irrespective of the position of the faith group of which they are part. I hope that the hon. Gentleman, like me, looks forward to and will welcome a clear answer from the Minister so that we and those evangelical ministers will know exactly where things stand. It would be helpful to have the Minister’s views on record, and I look forward to hearing what the Government’s position is.

Amendment 24, to which I believe the hon. Member for Enfield, Southgate will speak, offers examples of compulsion in the context that no individual may be compelled to carry out a same-sex marriage under the Bill. I merely want to highlight a concern—I am sure that the hon. Gentleman will want to address it—about ruling out

“legal action by way of a review”.

I venture to suggest that it would be difficult to prescribe that no legal action would ever be taken by anyone. It may not successful and it may have no chance under the Bill, but I am not sure what the hon. Gentleman wishes to achieve by prohibiting individuals from having the possibility of raising a legal challenge, so I look forward to hearing what he has to say about that.

David Burrowes (Conservative, Enfield, Southgate)

Welcome, Mr Hood, to the second day’s discussion in the marriage test. Our consideration of amendments 9 and 24 gives us the opportunity to probe and scrutinise clause 2, which is a defining measure for the Government’s policy goal, so I welcome the opportunity to do that.

To continue my cricket analogy, this is a defining innings for the Sport Minister. He has taken his trusted bat out of the locker, and it is marked “religious liberty” for the purposes of clause 2. He has heard the words of his two managers, my right hon. Friends the Prime Minister and the Secretary of State for Culture, Media and Sport. The hon. Member for Stretford and Urmston said that amendment 9 was tabled to probe the Government’s policy goal, but in many ways that is clear. On 11 December 2012, the Secretary of State said:

“As the Prime Minister said, we are 100% clear that if any church, synagogue or mosque does not want to conduct a gay marriage it will not—absolutely must not—be forced to hold it.”

We will see whether the context of that important statement holds good today, and whether the bat of religious liberty is firm in its defence of that liberty. The Secretary of State then said:

“the chance of a successful legal challenge through domestic or European courts is negligible.”

Amendment 9 was prompted by questions and learned legal opinion about that statement on behalf of the EHRC, so we need to go into detail about that.

More pertinent to amendment 9 is the Secretary of State’s statement that individual ministers are “still under no compulsion” to conduct a same-sex marriage

“unless they wish to do so.”

The clincher for the innings—the boundary stroke for six; the trophy stroke—was the Secretary of State’s statement:

“I would never introduce a Bill that encroaches or threatens religious freedoms.”—[Official Report, 11 December 2012; Vol. 555, c. 156-157.]

I hold on to that important statement, because I have the assurance of the Secretary of State that if there is any encroachment on or threat to religious freedoms—in fact, the EHRC has said there is already such encroachment —she would never have introduced such a Bill.

I also formally welcome Her Majesty’s official Opposition to our proceedings, because this is the first time that their team has effectively turned up. I appreciate that they have pretty much all been here in numbers, but now they have turned up to fulfil their duty of probing and scrutinising the Bill in Committee. We have not previously heard any direct probing or scrutiny from official Opposition Members. We were not even sure which side the Opposition team were batting on, given that we heard the hon. Member for Rhondda effectively responding on behalf of the Government—it was confusing that the shadow Minister for Immigration was responding on behalf of the Sport Minister. However, it is helpful that we now have some scrutiny, although there is no dissent within the Labour ranks, as dissenters are not allowed, at least on this Committee.

I am also somewhat confused by a dilemma over amendment 9. Naturally we would all want to support the right and freedom of a religious organisation to maintain its doctrines. The amendment would allow religious organisations that opt in to conducting same-sex marriages effectively to compel clergymen and women in the denomination who do not agree to conduct them—that might well be the case for, say, conservative, orthodox clergy.

Hon. Members will no doubt be aware that there are those on the traditional wing—conservative ministers in liberal denominations—who fulfil an important purpose and role in their Churches. There is concern about what might happen if we were to follow through a lack of freedom for individual ministers not to go along with their denomination’s opt-in. It could end with one minister being played off against another from a different denomination or, indeed, Church.

We heard what I believe was a very marginal view from Dean Jeffrey John—it was way off the official view of the Church of England—about the likelihood of the Church opting into same-sex marriage soon. Nevertheless, we need to work through that scenario. It is important that the Bill stands the test of time, so we need to consider the impact for individual ministers’ conscience if their denominations decide to opt in.

Let us look some years ahead, when perhaps the Church of England, through its own ordinances, opts into same-sex marriage. In the constituency of the right hon. Member for Exeter is St Leonard’s church, which is of the evangelical tradition. I attended it when I was at university in Exeter, and given what I know of the churchwardens and its minister, and their track record of many years, it is likely that they would hold on to the traditional teaching under canon law as affirmed in the Book of Common Prayer—[Interruption.] The hon. Member for Rhondda looks quizzical.

Ben Bradshaw (Labour, Exeter)

I will intervene instead.

David Burrowes (Conservative, Enfield, Southgate)

Please do, but first let me finish what I was saying.

The minister at St Leonard’s may well want to hold on to the view that they should not be compelled to conduct same-sex marriages. I hope that the right hon. Gentleman will confirm at this early stage that he will be ready, in the future, to stand up on behalf of the individual conscience and religious liberty of a minority view. I know that he has done that consistently over many years, so will he be to willing stand up for the liberty of that vicar at St Leonard’s church?

Ben Bradshaw (Labour, Exeter)

As the hon. Gentleman expands his argument, I hope that he will explain the total contradiction between his principal opposition throughout our deliberations of the state interfering in the religious freedom of any denomination, and his desire to prevent a religion or denomination from having a policy and being able to have any discipline in implementing it. Why should the state tell the Church of England, or any other denomination, that it must do this in a certain way? Surely the Church must decide whether to have a disciplinary structure or leave it up to local parishes, as it does with divorcees. Why on earth should the state or the Government intervene in that religious freedom?

David Burrowes (Conservative, Enfield, Southgate)

The right hon. Gentleman was busy at the beginning of my remarks when I made it clear that there was a dilemma and an internal confusion. If the hon. Gentleman was listening—I know that he listens intently to everything I say—he would have heard me say that, in principle, one does not want the state to encroach on the freedom of a denomination to conduct its own affairs. We have to recognise, however, that we do not have a blank piece of paper. We have to reflect how things have developed, not least in relation to the Church of England. The right of individual conscience is entrenched in legislation, and we will come on to that when we deal with the question of remarrying divorcees.

It is important that we recognise the history. I know we have heard quite a lot of history, particularly from the hon. Member for Rhondda, but he will be aware, from his clerical life, of the history of dissention. I understand that when someone is giving their vows and signing up to the 39 articles to go into the Church—I am not sure whether he did this—there is this thing of the number of buttons that they do up to indicate compliance with the 39 articles, or they may cross their fingers. There is therefore already a history of dissention with adopting the whole panoply of the Church’s ordinance.

Indeed, the affirmation under canon law—the seventh edition, which is the latest one from 2012—states:

“It shall be the duty of the minister, when application is made to him for matrimony to be solemnized in the church of which he is the minister, to explain to the two persons who desire to be married the Church’s doctrine of marriage as herein set forth, and the need of God’s grace in order that they may discharge aright their obligations as married persons.”

The doctrine also states:

“The Church of England affirms, according to our Lord’s teaching, that marriage is in its nature a union permanent and lifelong, for better for worse, till death them do part, of one man with one woman, to the exclusion of all others on either side, for the procreation and nurture of children, for the hallowing and right direction of the natural instincts and affections, and for the mutual society, help and comfort which the one ought to have of the other, both in prosperity and adversity.

The teaching of our Lord affirmed by the Church of England is expressed and maintained in the Form of Solemnization of Matrimony contained in The Book of Common Prayer.”

I am not sure what the hon. Gentleman or Dean Jeffrey John were able to do in terms of fulfilling that duty, but there is already dissention on the Church of England’s doctrine of marriage and how ministers fulfil that duty on the application of every person. A quarter of all people go to a church for their wedding, and there is a duty on every minister, including Jeffrey John, to teach and explain that doctrine to those two persons on application. It lays out the purposes of marriage, which I set out in an earlier amendment and that caused some dissention and objection. We recognise that there is dissension. The Church of England is a broad Church and there is not an application of that canon law in every circumstance.

Chris Bryant (Labour, Rhondda)

Will the hon. Gentleman give way?

David Burrowes (Conservative, Enfield, Southgate)

I will in a moment, because I would like the hon. Gentleman to help me with some history, as we have not yet had all the history that we need.

I do not know whether the hon. Gentleman attended it, but last year the United Reformed Church—we heard its oral evidence—and the Church of England participated in a service of reconciliation, healing of memories and mutual commitment at Westminster abbey. The service marked the 350th anniversary of the great ejectment of 2,000 non-conforming Ministers following the Act of Uniformity 1662. As we know, that Act prescribed the form of public prayers, administration of sacraments, and other rites of the established Church of England, along with all the rites and ceremonies and doctrines set out in the Book of Common Prayer.

As has been pointed out, that was when the requirement was put on statute that all holders of office in the Government or the Church had to subscribe to the doctrines in the Book of Common Prayer. As a result, more than 2,000 clergymen refused to take the Oath and were expelled from the Church of England in what became known as the great ejectment of 1662. The important point is that there are ministers inside and especially outside the established Church who recognise the concept of non-conformity. However, a substantial section of English society was excluded from public affairs for a century and a half, which was plainly unacceptable. Much of that spirit of non-conformity and respect for dissent is what the dissenters party in this Committee seeks to hold on to. Conscientious objection is something that we need to probe carefully today.

Chris Bryant rose—

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. Before the hon. Gentleman intervenes, may I say that I hope we can stay on the amendment before us? The contribution that I have heard from the hon. Member for Enfield, Southgate so far is near to one in a stand part debate, rather than being relevant to the amendment.

Chris Bryant (Labour, Rhondda)

The problem with 1662 is that the King basically did not get his way in Parliament. He wanted to allow greater freedom, but the elected representatives of the people decided that they did not want to allow that kind of freedom. However, whether we should go back to 1662 now is a bit irrelevant.

The hon. Gentleman just does not understand the processes within the Church of England. If the Church decides to go forward with same-sex marriages, it will have to bring forward a Measure that will lay down how much uniformity it wants to insist on within the Church, exactly as it did over the remarriage of divorcees. That would then go through the parliamentary process.

David Burrowes (Conservative, Enfield, Southgate)

I will take your point, Mr Hood, and I do not want to go back too far in history. Indeed, I want to get to 1965 and the relevance of the respect given in statute to the right of individual conscience for Anglican clergy, which is very relevant.

John Wadham’s evidence on behalf of the EHRC forms the basis of the amendment. Some caution is needed here, because the commission champions equality in its various strands, but one must question how vigorously it has championed the strand of belief, although I will leave that for another debate. I know that my hon. Friend the Member for Strangford has raised the issue of how much it backed the case for the traditional Christian view.

We have to consider Robin Allen’s view very carefully. The Committee was able to challenge him on his opinion, which he put very clearly. We have heard a leading opinion that the state will be acting unlawfully by interfering with the freedom of religious organisations to enforce their religious doctrines within their particular organisations.

The issue is not whether I am confused or conflicted, or whether I am being contradictory—many Committee members are not bothered about what I think—but what is in the Bill, which matters greatly, how contradictory that is and whether that will lead to an early challenge. Whether such a challenge would be negligible is also an issue.

Robin Allen QC says that there is likely to be a challenge on this point, which contradicts what has been said. The most important contradiction is in the Minister and the Secretary of State saying that challenges are negligible. When one says, broadly and boldly, that there will be no encroachment on religious liberty, one is saying that in respect of all areas of religious liberty, and not only in terms of people opting in and out, and the liberty of churches and individuals to say that they do not want to conduct a same-sex marriage—it goes across the board. That also applies to the liberty of religious organisations to determine their own affairs, because effectively the Secretary of State has said that all religious liberty, of whatever form and however it displays and manifests itself, is protected and is not threatened.

Some may say that that is a narrow point, but I think that it is important, because it exposes an important issue about whether the Government can properly, in the Bill, take account of the statutes that form the basis of our assurance for individual liberty of conscience for Anglican ministers. Can the Government really, hand on heart, say that they are able to resist encroachments on liberty?

The response from John Wadham to the question in the oral evidence session comparing the conscientious objection of members of a religion with that of Ms Ladele was:

“I do not think that those are parallel circumstances. A registrar’s responsibility, as a public official, is to deliver a service to the wider public. As for a member of a Church or a religion, the responsibility of that person is to follow the doctrine of the Church or religious organisation. Those are two different things. We are saying that it is for the religious organisation to be allowed to police those circumstances”

—that is the basis of amendment 9—

“That is not on a parallel with the Ladele point.”––[Official Report, Marriage (Same Sex Couples) Public Bill Committee, 14 February 2013; c. 135, Q343.]

Going back to my historical point about ejection and non-conformity, he effectively accepts the potential for theological opinion on same-sex marriage to become dogma.

It is important to welcome the intentions in the Bill through amendments to the Equality Act 2010 to ensure that any minister of an opt-in Church has the freedom to opt out of officiating at a same-sex wedding without penalty, since he is not supposedly a public official, although we will go into the public nature of the act at the marriage service at a later stage, and we will hear again the careful, crafted words of the right hon. Member for Blackburn (Mr Straw) during the passage of the Equality Bill about the public nature of the marriage function. Since a person in an opt-out Church is not supposedly a public official, the conscientious objector who personally refuses to conduct same-sex weddings should be protected, quite properly, from compulsion by law.

The Bill maintains conscientious objection for individual ministers, not just organisations, although it has to be said that other comments by Ministers, and responses in the explanatory notes, focus on religious protection in terms of organisations and not individuals. Nevertheless, Ministers do wish to protect individual ministers’ conscience.

My problem with amendment 9 is that there seems to be a lack of awareness of the current legal position regarding marrying divorcees in church. Section 8(2) of the Matrimonial Causes Act 1965 provides a conscience clause in respect of re-marrying divorcees in church, and hon. Members will recognise the language interposed into the Bill:

“No clergyman…shall be compelled—

(a) to solemnise the marriage of any person whose former marriage has been dissolved and whose former spouse is still living; or

(b) to permit the marriage of such a person to be solemnised in the church or chapel of which he is the minister.”

Section 5A of the Marriage Act 1949 confers a similar protection on clergy, like in the case of Bannister v. Thompson, when Canon Thompson objected to solemnising marriages that would formerly have been void by reason of prohibited degrees. Section 5B of the 1949 Act extends the protection to clergy who reasonably believe that one of the parties to a marriage has had a sex change under the Gender Recognition Act 2004. That history still forms the law of the land for protecting the conscience of individual ministers.

Parliament had properly understood the need for a concession for the consciences of individual clergy that is separate from that for a religious organisation that objects to performing religious rites that have state recognition. The assumption of clerical compliance with their religious organisation does not hold water. Individual clergy can, as we know, be at variance with the Church’s pastoral approach to divorcees and thus refuse to solemnise a re-marriage in a church.

We might well ask—this is why I am somewhat cautious about the championing of religious liberty by the EHRC in this instance—where the EHRC has been in championing the issue of encroachment on religious freedom in relation to the rights of divorcees to marry in church. I am not sure whether there is any evidence, when divorcees have wanted to marry in their parish church, of the minister being able to rely on the 1965 Act and say, “No, my conscience will not allow it.” Has the EHRC identified any such cause of action and tried to prevent such encroachment on religious freedom?

The position of the EHRC and that of the hon. Member for Stretford and Urmston, who moved amendment 9, contradicts the position of previous legislation and the Bill—[Interruption.]

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. I am sorry to interrupt the hon. Gentleman, but I cannot hear him because of a conversation between Opposition Front Benchers.

David Burrowes (Conservative, Enfield, Southgate)

Thank you, Mr Hood.

The amendment, which is helpful, exposes a clear chink in the armour—a flaw in the Government’s “religious liberty” bat. There is a real problem. If the amendment became part of the Bill, the claimed protections of the Bill would show marked disparity with protections elsewhere in the law. It has never been the clergy’s responsibility to follow the doctrine of the Church or of religious organisations unless it rises to the status of settled dogma. Amendment 9 would, down the line, expose individual clergy, who are not classified as public officials, to legally permissible sanctions from their religious organisations—perhaps that is a liberty that should be allowed—for refusing to solemnise same-sex marriages.

Some may say, “Bring it on. That’s the way it is. They are going to have to comply with the orders of their denomination”, but that would reinforce the idea that the Bill is about promoting the legitimacy of same-sex marriage at all costs. The Minister’s and the Secretary of State’s intention to balance equality for all with religious liberty is not a reality.

It is important to look at the serious prospect that legislating for same-sex marriage and opt-ins for religious organisations, which is at the heart of amendment 9, could lead to an incursion on the religious freedom of individual ministers. Strasbourg would offer no remedy for that. It is important that we understand what recourse there could be for an individual minister to seek remedy if the amendment was passed. Some may say that needs to be sorted out in their own denomination, and that they need to work it out themselves. However, they may not be able to rely on that. There may be cases where they are directly challenged and would need to seek some remedy.

Ian Leigh recently wrote in The Oxford Journal of Law and Religion:

“Religious organisations can therefore petition as non-governmental organisations but cannot be respondents directly. That distinction can be seen in an admissibility decision of the European Commission in which it held to be manifestly ill-founded a complaint that a prohibition concerning the form of liturgy to be used in the Church of Sweden violated Article 9.”

While the Government hold on to the qualified but important protection of religious liberty in article 9, one must also recognise the practicality of the issue on the ground. That will draw me—shortly, you will be pleased to hear, Mr Hood—to amendment 24. What happens on the ground when there is a challenge? What is the impact of that challenge on the freedom to follow one’s religious conscience?

Ian Leigh continues:

“The implication of this distinction is that an individual is only able to bring an action at the Convention level arising from alleged violation of his or her rights by a religious organisation if the question can somehow be ‘triangulated’ so that it is argued as a failure of the respondent state to protect the petitioner’s rights. The process of doing so is no means straightforward in conceptual terms, however, since it depends on the extent of a person’s Convention rights in the first place. Put simply: if Article 9 does not apply between an individual and his or her church then there is nothing for the state to be responsible for.

It might be thought that domestic courts are free to grant additional constitutional protection against non-governmental bodies where Strasbourg would not do so but even this raises potential difficulties. Religious organisations have Convention rights of their own and to tip the balance too far in favour of the individual at the domestic level could leave the state open to challenge by the organisation at the Strasbourg level.”

Therefore, the Government are performing a balancing act. The significance of the amendment, supported by the EHRC, is that it admits that the Bill’s quadruple locks and the Equality Act amendment cannot truly protect individual conscientious objectors. There is already likely to be a challenge, according to leading opinion of the EHRC.

A Church could hold amendment 9 to be an interference in article 9 rights. Although marital status is a protected characteristic, few divorcees are said to have insisted on this and challenged it. In contrast, a legal provision by the state that limits the religious freedom of organisations is far more likely to succeed down the line. I do not believe the amendment does anything to protect—perhaps it sought not to—the conscientious objector, who is compelled by an opt-in Church. There is no legal relief, as indicated in detail in the journal I quoted. There is no legal relief against sanctions imposed by religion on individual ministers who want to opt out.

That is where I believe the Government are conflicted. Any conflicts that I have do not matter. It matters much more directly for the Ministers responsible. The Secretary of State, in response to correspondence from the Catholic Bishops’ Conference, said:

“Clause 2 of the Bill protects anyone who takes part in the solemnisation of a religious marriage.”

Hear, hear, say all of us. Very good.

The Secretary of State also said that

“we are completely confident that the Convention does not require the UK to force religious organisations to conduct marriages for same sex couples if that is against their religious doctrines.”

Therefore, we have the focus back on the organisation rather than the individual. One might say it is a case of not seeing the trees for the wood. The Secretary of State said:

“In our view, any interference with the rights of the same sex couple…would be justified.”

Amendment 9 has exposed a contradiction. Amendment of a genuine concern has been sought in one direction, effectively to say that there will be a limit to individual conscience, but before the Bill has even been enacted, there is already a real risk of a challenge. If such a challenge were successful, the impact might be the compulsion of individual ministers, which might lead to a great ejectment scenario.

I turn to amendment 24. Although protection from compulsion is central to the protections provided for religious organisations, and although Ministers and organisations set great store by the word “compulsion”, it is not defined. Amendment 24 would clarify that definition for the purposes of clause 2. On Tuesday, I said that the Government’s watchwords were openness and transparency, which elicited great mirth from Opposition Members, and I believe that we should be more transparent and open about the meaning of “compelled”.

I hear the concern of the hon. Member for Stretford and Urmston about how far my suggested definition goes and how prescriptive it is in terms of initiating proceedings, and we can debate that point. The definition may need to be perfected, but the amendment’s purpose is to assuage the genuine concern that I have just outlined. Clause 2(1) states:

“A person may not be compelled to…undertake an opt-in activity, or…refrain from undertaking an opt-out activity.”

Clause 2(2) states:

“A person may not be compelled…to conduct a relevant marriage…to be present at, carry out, or otherwise participate in, a relevant marriage, or…to consent to a relevant marriage being conducted”.

At first sight—the Government certainly want us to believe that this is the case, and I accept their intentions—the Bill appears to provide comprehensive and wide-ranging protection for such persons. However, I am concerned for two reasons that after the Bill is enacted, such protection may be quite limited, and the amendment seeks to help. I understand that the word “compelled” has been borrowed from the Matrimonial Causes Act and planted in the Bill. If that is the case, the meaning of “compelled” has never been litigated, although the Minister may want to correct me on those points. “Compelled” will be used in a wholly different scenario, which may, as we have heard in relation to amendment 9, lead to early litigation.

Hugh Robertson (Conservative, Faversham and Mid Kent)

If my hon. Friend is correct that the meaning of the word has never been litigated against, that may be because it is absolutely clear.

David Burrowes (Conservative, Enfield, Southgate)

The Minister has been listening intently, and if he considers that the challenges involved in balancing the qualified rights of religious freedom and liberty against the rights of others in relation to their sexual orientation are the same as the challenges involved in the case of a divorcee who seeks remarriage, I would like to hear him say so. They are not the same. We can see from litigation in other cases that we are entering a whole new arena in terms of balancing rights. A chill wind is already blowing in other areas for religious liberty, and I believe that the Bill gives us a really good opportunity to obtain some clarity, because the Government are 100% clear that religious freedom will be protected and will not be encroached on. Why not go down that line and make it even clearer?

What makes the limited case law available in other contexts relevant is protection from compulsion. That is why—to draw on the Minister’s intervention—there has been litigation in other contexts. We must at least recognise that the redefinition of marriage puts us into another context. The protection from compulsion provides protection only from the imposition of criminal punishment. That is the case, for example, when individuals are protected from being compelled to incriminate themselves. If one interprets the clause in that way, without clarification—there is nothing in the explanatory notes to help us either—it will not be able to protect religious persons or organisations from compulsion in the form of civil or legal penalties. It will not prevent public bodies, for example, from treating religious organisations less favourably—this is a whole new terrain—if they decide not to opt in to providing same-sex marriage, nor will it protect religious organisations from the threat of other legal action.

That is why amendment 24 refers not only to “penalties”, in proposed new paragraph (a), but to

“the less favourable treatment of a person by a public authority”,

in paragraph (b), and to

“the initiation of any legal action by way of a review”,

in paragraph (c). Later amendments explore further the public sector equality duty, the impact of human rights legislation and how judicial review might flow. It is important to recognise what one understands compulsion to mean and to deal with the definition head-on. Clause 2 may—I stress “may”; I do not want to stretch it too far, but we must deal with different possibilities—be quite narrow in scope and it may provide relatively little protection unless “compelled” is defined further on the face of the Bill.

The exception introduced by subsection (5) to section 29 of the Equality Act 2010—this forms the whole basis of the amendment—gives rise to further uncertainty about the meaning of “compelled”. That is because the explicit provision of an exception to section 29 gives rise to the assumption that without subsection (5), the protection against compulsion in clause 2 would not have been enough by itself. The Government are specifically prescribing that they need to provide the exception, or else the protection will not be good enough. They are making the point that without the exception, there is a prospect of encroachment on religious protection.

Amendment 24 would provide guidance on the meaning of “compelled” and enshrine in statute—so that everyone is clear without having to risk the prospect of litigation and the costs of challenge—the Government’s assurance that religious organisations will not be required under any circumstances to conduct same-sex marriages if they object to them. There will be no doubt. The 100% promise will be clear. What it says on the tin will be exactly what we get. It will be the Government’s Ronseal commitment to marriage.

Amendment 24 would protect religious organisations from all legal penalties, both criminal and civil, if they decide not to opt in. That is plainly the Government’s intention, and it would be helpful for the Minister to make that abundantly clear—that the intention is completely to protect. The meaning of protection and what such organisations will be protected from would also be helpful.

I appreciate that there is some disagreement. As a lawyer myself, I recognise those reservations. Our amendment also seeks to protect religious organisations from other legal actions, and it would ensure that they do not suffer at the hands of public authorities by making it clear that public authorities will be acting ultra vires if they penalise religious bodies for deciding not to opt in.

I know that many members of the Committee were particularly impressed by the evidence we heard from those in the other place, the noble Lord Pannick and Baroness Kennedy. They are good advocates, but the focus of their concern was very much about when such matters go before the European Court. I am worried about what is on the ground: the domestic context; the applications of the Equality Act for which the Bill seeks to provide an exemption. Will it be good enough? Will it avoid judicial reviews? The Minister may assure us that they will not be successful; nevertheless, declarations will have to be made, with thousands of pounds of costs. Will the Government say, “We’ll take it a stage further: we’ve giving you the religious protection, and the 100% commitment will ensure that we’re indemnifying you against the costs”?

We should not only listen to lawyers with some celebrity; we should listen to Mark Jones, a solicitor on the ground, who made it clear that there is a chill factor—the Church of England also talked about this in its submissions—in public discourse. Practitioners know that the article 9 protection that the Government seek to rely on is weak, to the extent that the right of others not to be discriminated against in relation to sexual orientation for example, which quite properly needs to be balanced, is an area where—in the balancing with the right of religious liberty, which is qualified and restricted doctrinally, away from a manifestation of faith—we effectively know which side of the balancing argument wins, as we have seen in case law already.

Amendment 24 provides proper clarity. Without it, the definition of “compelled” will be left to be decided by the domestic courts. That will affect many people. For example, when the Catholic Church gave evidence to us, some of the questions it was asked effectively amounted to bodyline bowling—many of us might have concerns about that—but if we consider the submissions we have received, including detailed written submissions, we see that it is speaking about a not insignificant number of people. We had representatives from religious groups of thousands of people, but let us consider the Catholic Church, which represents millions—10% of people in England and Wales—as well as the other groups that did not have much of a voice in the oral evidence, which also represent millions. They are genuinely concerned on the ground that the Government need to stand up and deliver, in more clarity and detail, on their 100% commitment to religious liberty. That is the intention of our amendment.

Jim Shannon (DUP, Strangford)

It is a pleasure to speak on this matter. I commend the hon. Member for Enfield, Southgate on the viewpoints he put forward, which are ones I shall be espousing as well. He referred in his conclusion to the large body of opinion in the Roman Catholic Church, as well as the large body of other Churches that have not had the opportunity to attend our witness sessions. Hopefully they will put forward written submissions.

I will speak first to amendment 9 and conclude, as the hon. Gentleman did, with amendment 24. Amendment 9 would have the effect of narrowing the already too narrow protections of the quadruple lock that the Government want to put in place. Same-sex marriage is highly controversial. Historically, it is a recent innovation; globally, it is a rare phenomenon in national law. At no stage should any person be forced against their will to take part in any same-sex marriage affiliation. They should not be forced to do so by anyone, not only the couple who wish to get married. That is my concern about the amendment, which fails to recognise that core issue. The amendment would severely restrict the protection of a person who does not want to take such action. As a consequence, it would clearly subject such a person to all sorts of potential challenges that would clearly hurt an individual with heart-felt views. That is because religious individuals not only are at risk of being compelled to perform or participate in same-sex marriage by the same-sex couples who want to get married, but are subject to many pressures from external organisations and authorities—again, we are putting forward views on behalf of religious organisations and individuals with specific and focused religious viewpoints, which we believe this Committee needs to take into consideration.

Under section 149 of the Equality Act 2010, public authorities, which include local authorities, must

“have due regard to the need to…advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it”,

so the issue is very clear. Local authorities must also have due regard to the need to

“remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic”.

As we all know, sexual orientation is a protected characteristic in the law.

Many religious groups in this country use facilities and premises that belong to a local authority—for example, a church group that needs to meet in a church hall or community centre. There are many examples, across the whole of the United Kingdom, of where that actually happens—where the community hall is also the church hall. How will the Bill affect them? It is reasonable to think that a local authority could think that the equality duty obliges it to try to compel a place of religious worship—and therefore its leaders—to conduct same-sex marriages, which it could do by threatening to terminate the lease.

We have some concerns about that—other Members have already spoken about it, on Tuesday in particular. Let no one say it will never happen. People tell me that something will never happen and then it does happen, so one can understand the cynicism and suspicion that many organisations and individuals have about this matter, because we all know that there are some local authorities with a track record of exactly this kind of “politically correct enforcement”. In other words, they pursue political correctness oblivious to the opinions and conscientious objections of those individuals or their organisations. I believe amendment 9 removes protection against such action. That is my concern about it.

We have also seen evidence in recent years of public authorities and other employers pressurising employees to endorse same-sex relationships. We are all familiar—it has been in the courts for the past few months—with the case of Adrian Smith, who worked for Trafford Housing Trust. He simply said, out of hours and on his personal Facebook page, that same-sex marriage was “an equality too far”. He was demoted and his salary slashed by some 40%. He won his case, but he had to pay his costs and received only £100, and the court did not say he should be reinstated to the job he had before. Very clearly, an authority—an organisation—pushed the political correctness that it wanted to push against an individual. That is an example of why people are concerned.

The other case that is equally well-known—it happened much longer ago; none the less, it is equally known—is that of Lillian Ladele. We spoke about it on Tuesday, and it will be in the back of all our minds. She was the Christian registrar who said she could not officiate at civil partnership ceremonies without acting in violation of her faith. She was told by her employer, Islington borough council, that she had to perform civil partnership ceremonies or else lose her job. Again, I look on that decision with great dismay—many of us do. The Christian organisations—the Churches and the individuals, including many public employees—also feel that if some councils pursue political correctness, it could come back and bite them.

Kate Green (Labour, Stretford and Urmston)

Does the hon. Gentleman accept that, far from Lilian Ladele’s case being a simple matter of “political correctness”, she failed in her legal action against her employer?

Jim Shannon (DUP, Strangford)

I am aware of that; I do not deny it. My point is that Lilian Ladele had a Christian faith and a viewpoint that ultimately were ignored in her job and also in the courts of the land.

Incidentally, I said on Tuesday—I will repeat it now, just to have it in Hansard and make the record clear—that I attended an event in this House about three or four weeks ago at which three human rights lawyers were present. Two of them said that in their opinion Lilian Ladele was wrongly treated; the other one did not. There are differences of opinion on this matter, but those two human rights lawyers were clear that they felt that Lillian Ladele was wrongly treated by her employer. That has to be put on the record.

The two examples illustrate the increasing hostility towards people who refuse to endorse the legal recognition of same-sex marriages or relationships. We cannot be sure exactly where the compulsion will come from for religious people who do not want to conduct same-sex marriages. It will not be limited to same-sex couples, however, so we should not limit clause 2 in the way that amendment 9 proposes. In fact, we should extend clause 2, as suggested by the hon. Member for Enfield, Southgate, through amendment 24, which makes it plain and clear what is meant by “compel”. Words are important things to have in order, because they ultimately set the tone for this Bill Committee and where we will be, which may not be where we all intend to be, at the end of the process.

As I said, a place of religious worship that uses premises controlled by a local authority could face serious pressure from that authority to opt into conducting same-sex marriages. The compulsion that some hon. Members want to include in the Bill may come by way of a local authority refusing a place of religious worship the use of premises that belong to the authority, or refusing grants and contracts. There could be far-reaching effects not only on the usage of the venue, but also on whether venues qualify for grants and contracts because of a particular stance that the Church or individuals believe in conscientiously. A Church that opens up a new building or that applies to have one registered to conduct marriages could even be told by the local registry office, “No, we are not going to license you to conduct marriages, because you refuse to conduct same-sex marriages.” Again, the issue is clear for Churches and for those with individual conscientious objections.

Kate Green (Labour, Stretford and Urmston)

I am at absolute loss to understand how the hon. Gentleman thinks that that would be possible. The legislation will specifically provide for religious institutions to decide not to conduct same-sex marriages, so how on earth could it be lawful for a local authority then to use that as grounds for refusing a licence?

Jim Shannon (DUP, Strangford)

It probably goes without saying that the hon. Lady and I will have different opinions. We will regularly differ on many things in this Committee. I am here to put the views of those who have expressed concerns to me, and I want to have them on record.

David Burrowes (Conservative, Enfield, Southgate)

Let me add to the point about whether there is a prospect of unfavourable treatment, and the fulfilment of the public equality duty. It is the case that local authorities are applying quite widely—some may say appropriately—their responsibilities in relation to the duty. That may therefore mean that we are not just dealing with the issue directly, as the Government obviously want us to focus on what is happening in relation to the marriage ceremony in religious buildings. It is also the case that many Churches contract with local authorities, and unfavourable treatment may extend to impact on that, depending on the authority’s view on the Church’s position on same-sex marriage.

Jim Shannon (DUP, Strangford)

I thank the hon. Gentleman for that intervention and for giving me the chance to clarify the matter. As I said, Islington council is but one example. Other councils may follow that politically correct agenda. That is a possibility for the future.

Back in 2011, the hon. Member for Hove (Mike Weatherley) said:

“As long as religious groups can refuse to preside over ceremonies for same-sex couples, there will be inequality.”

That is obviously a form of compulsion, and it is not clear that it is covered by clause 2. I hope the Minister will tell us whether he thinks it is when he responds to the debate. I hope that amendment 24 is acceptable to the Minister and to the Committee and that amendment 9 will be rejected, because it is not right; it neglects the opinions of those with conscientious objections—Churches and individuals—and how they will be affected by council decisions.

Tim Loughton (Conservative, East Worthing and Shoreham)

It will be difficult to follow the marathon innings of my hon. Friend the Member for Enfield, Southgate and then the hon. Member for Strangford. I start with a disadvantage in that I am not a lawyer. I trained as a Mesopotamian archaeologist, which equips me to talk about the origins of family and marriage in the law code of Hammurabi in 1772 BC. I will give it a go anyway, but no doubt mine will be a slightly shorter innings. I shall speak in favour of amendment 24, but before doing so, I will comment on amendment 9, which was tabled by the hon. Member for Stretford and Urmston.

If we are to assess amendment 9, we must do so in the context of recognising that the present direction of travel is very much one way. Despite the opposition of most Church and other faith groups to the redefinition of marriage, the Government have decided to proceed on the basis of concerns manifested primarily by three rather small religious groups, important though they are—the Quakers, Liberal Jews and Unitarians—who all gave evidence to us and are named in the Bill. We know that their congregations account for just under 38,000 people. Despite the concerns of religious organisations about their playing a key marriage role, the protections provided by the Bill are only in relation to the actual wedding ceremony, not marriage itself.

Despite the recent Ladele judgment in the European Court of Human Rights, of which we have heard so much, the Government have made no provision for the protection of registrars with a sincerely held religious conscientious objection to same-sex marriages, as exists in the Netherlands, for example. We debated that on Tuesday, and I have no doubt that it will be a recurring theme. Moreover, despite including some efforts towards protecting religious bodies narrowly in relation to wedding ceremonies, those protections are woefully inadequate, as my comments on amendment 24 will make plain.

Mindful of the direction of travel, I find it extraordinary that the only contribution from the Opposition Front-Bench speaker on clause 2 would further limit the already limited scope for the protection of those with religious concerns. The hon. Member for Stretford and Urmston says that the amendment would help religious liberty, because narrowing the category of those who cannot compel someone to conduct religious marriages creates scope for a denomination to compel a priest or minister of that denomination to conduct a same-sex marriage that would be in their interest if, first, that is the view of the denomination as a whole and, secondly, there was evidence that ministers of that denomination were opposed to conducting same-sex marriages and therefore likely to refuse to do so.

On the basis of the first caveat, why have yet another provision to limit religious conscience? Unless we are prepared to move to the world of the hypothetical, that can be only out of regard for the three favoured religious bodies that have seemingly been allowed to make all the running, even though none of them is this country’s established Church and they represent a very small proportion of faith communities in the United Kingdom.

On the basis of the second caveat, we received no submissions from Quakers, Unitarians or Liberal Jews who oppose same-sex marriage pressing for the freedom not to officiate at same-sex marriage ceremonies in the interest of protecting of their religious conscience, in relation to which a narrowing of the protection in clause 2 might serve a useful purpose. Moreover, agreeing that amendment 9 would serve a useful purpose can rest only on the basis that the religious consciences of individual ministers taking a different view should be overruled. But what about their religious freedoms?

Opposition Members, and indeed the Government, might want to give the impression that they can secure their religious liberty credentials on the basis of disproportionately championing the interests of those three small religious groups. However, let us be clear that that objective can be achieved only by having regard for our religious bodies in the round or for all our faith communities. If the hon. Lady advances the amendment on the narrow basis that hypothetically in the future, another religious group might want to allow same-sex marriage and might embrace a significant number of clerics who oppose same-sex marriage—in that hypothetical situation, she might like to give such a denomination the opportunity to compel all its ministers to conduct same-sex marriages—and if she is concerned about the religious liberty of our religious communities in the round, why not focus on the religious liberty of our actual religious organisations as they now present themselves in the real world, rather than some hypothetical postulations? If we are really concerned about religious liberty, we must fashion the Bill out of regard for what is, not what might be.

Taken as a whole, I think our religious communities will be rather horrified to find that the only thing the Opposition are doing is tabling an amendment in the interests either of three small groups that do not need it or of other religious bodies that might, hypothetically, change their views on same-sex marriage in the future, and which limits the scope of religious bodies’ protection from compulsion. At the same time, it has absolutely nothing to say on behalf of the vast majority of our existing religious organisations, whose faith-inspired view of the Bill would lead them to ask for its complete abandonment or for the scope of the protections to be widened, not limited. On that basis, I cannot see the merits of Opposition amendment 9.

Let me turn briefly to amendment 24, in the name of my hon. Friend the Member for Enfield, Southgate, my name and the name of another hon. Member, which we have tabled on behalf of the Conservative party. As noted, clause 2 sets out the narrow protections for those with sincerely held religious views in relation to weddings, rather than marriage, and, more narrowly, for those with a religious conscience who are officiating in a religious context. Subsection (1) makes it plain that a person in that context

“may not be compelled to…undertake an opt-in activity, or…refrain from undertaking an opt-out activity.”

Subsection (2) states:

“A person may not be compelled…to conduct a relevant marriage…to be present at, carry out, or otherwise participate in, a relevant marriage, or…to consent to a relevant marriage being conducted”.

That is all well and good. However, as my hon. Friend the Member for Enfield, Southgate indicated, there are two major problems with those protections. The first, as he suggested, is that the word “compelled” has been borrowed from the Matrimonial Causes Act, but it has never been litigated on. In the case law that does exist on protection from compulsion, the protection is only from criminal punishment. Applied on that basis, there will be no protection from any civil legal penalty. There will be no protection for religious bodies that do not opt into same-sex marriage from being treated less favourably by public bodies. Similarly, religious bodies that do not opt in would not be protected from the threat of other legal action, such as a judicial review. On that basis, clause 2 would provide only minimal protection.

Secondly, subsection (5) introduces an exception to section 29 of the Equality Act 2010. However, that exception rather implies that in the absence of subsection (5), the protection from compulsion provided by the clause would not be enough. That generates even further uncertainty about the meaning in the clause of compulsion, which is the basis of the amendments.

Those difficulties are a serious cause for concern, particularly when we remember that the protections are, first, very limited; they are only for religious organisations and not people of faith generally, and they are only for wedding ceremonies, not marriage, which is of far greater faith significance than weddings per se—something the Government have not properly grasped. Secondly, the Government have been keen to celebrate these protections in a rather enthusiastic effort to demonstrate their commitment to having some regard to the religious freedoms of those who are not actually Quakers, Unitarians or Liberal Jews—that is, the members of most Churches and faith groups in the United Kingdom. However, given that those are the only protections the Government feel able to offer the leaders of the vast majority of our faith communities, it is, at a minimum, vital that they cohere, hold together and withstand scrutiny.

Those who otherwise stand to be negatively impacted by the Bill deserve to be properly reassured by clause 2, but that can surely be achieved only by providing a proper definition of “compelled” in the Bill. My right hon. Friend the Minister’s assertion that the meaning of “compelled” has not been challenged before because everybody is happy with it only underlines the fact that we should have that extra detail in the Bill as an extra safeguard against the unknown.

Amendment 24 makes the definition and its application to the most relevant compulsion concerns absolutely clear. It states that “compelled” includes, first,

“the imposition of any penalties (whether civil or criminal)”;

secondly,

“the less favourable treatment of a person by a public authority”;

and, thirdly,

“the initiation of any legal action by way of a review”.

If the Minister believes that compulsion should cover those three categories, as I very much hope he does, there can be no good reason to oppose setting them out in the Bill to provide at least some reassurance to the religious groups that stand to suffer if compulsion does not mean what the amendment says it does.

If the Minister does not believe that the definition of compulsion should cover the amendment 24 definition, that means that the Government’s intention for these already extraordinarily limited wedding—not marriage—exemptions, which only recognise the conscience of those operating in a religious establishment, is that even they should be fairly meaningless. I do not believe that that is the Government’s intention, so I hope that in the context of improving the Bill by making that clear in the Bill, the Minister will feel able to accept amendment 24, proposed in the name of the Conservative party.

Hugh Robertson (Conservative, Faversham and Mid Kent)

Let me say at the outset that I am grateful for the amendments, which allow us to explore the protections that we have provided in the Bill for those involved in the solemnisation of marriage, and further issues of religious freedom.

Let me deal first with amendment 9, which was introduced by the hon. Member for Stretford and Urmston. Our commitment and intention, as set out in last year’s consultation response and indeed enshrined in the Bill, is that no religious organisation or individual—that is important—will be compelled to conduct, or otherwise participate in, a same-sex marriage ceremony. That is why the protections in the clause and elsewhere in the Bill have been included and, indeed, widely welcomed by the Church.

I absolutely understand the concern touched on by the right hon. Member for Exeter that in making explicit what I have described, we have interfered in the right of a religious organisation to manage its own affairs. That is an entirely legitimate question to ask, and the Government have listened carefully to the views of many of the interested parties, including this Committee, on the question. I say to the right hon. Gentleman that it is a balance—that is the honest answer—and, one might say, a balance of competing rights, but we do want to ensure that individual ministers of religion are protected from being compelled to conduct a same-sex marriage ceremony against their conscience, as we have promised.

Jane Ellison (Conservative, Battersea)

An example was put to me by a constituent who is a Methodist minister. He wondered whether, in the event that his religion embraces same-sex marriage in the future, his wish not to conduct such marriages will be protected. He was particularly concerned because along with his role came accommodation and so on. Is that the sort of person whom the Bill seeks to protect?

Hugh Robertson (Conservative, Faversham and Mid Kent)

Absolutely. Let us be very clear about this. If the religious organisation governing that minister’s church were to opt in to same-sex marriages and he were to have an objection to doing them, he would absolutely be protected under the Bill.

Ben Bradshaw (Labour, Exeter)

It would be very helpful to the Committee if the Minister could name a precedent for such legal interference by the state in the rules and disciplinary procedures of a religious organisation.

Hugh Robertson (Conservative, Faversham and Mid Kent)

I shall probably have to write to the right hon. Gentleman on that when I have a little more time than 10 seconds to think about it. [Interruption.] It sounds as if the answer might be coming from the hon. Member for Rhondda. I will certainly do that. As I said in my answer to the right hon. Gentleman, I do not think that this is something that we can cut absolutely clean. There is a balance contained in the Bill. Because of commitments that we have made to various Church groups, it was felt appropriate to consider these protections and indeed, as he is aware, the protections were welcomed by the many Church groups that came to speak to us.

David Burrowes (Conservative, Enfield, Southgate)

I might be able to save the Minister from having to write a letter. It has been made clear in this debate, I would have thought, that there is the precedent that the word “compelled” is seeking to say, which is the Matrimonial Causes Act in relation to the remarrying of divorcees. That provides the right to individual conscience for the vicar at St Leonard’s, and that is what the Government have sought to apply. The issue is whether it will still apply and whether there will now be a much more vigorous challenge when one is dealing with the issue of same-sex marriage.

Hugh Robertson (Conservative, Faversham and Mid Kent)

I will come on to that point in a minute. It is also worth saying that we think that in practice it is highly unlikely that any religious organisation that took the step of opting in to the conduct of same-sex marriages would then compel individual ministers to conduct such services contrary to their own personal religious beliefs. In our view—I think this was supported during the evidence sessions, and we heard from the rabbi on this—religious organisations would be inclined to respect individual conscience in such matters. Permitting individual ministers to decline to conduct same-sex marriages need not result in any detriment to same-sex couples, because it is of course open to the religious organisation to make other arrangements to ensure that such marriages can take place.

Let me be absolutely clear. I admit that the balance is difficult, but in our view it would not be proportionate to interfere with the religious freedom of an individual minister and force them to do something against their will. A religious organisation should be able to find another minister who can carry out same-sex marriage services. I am happy to place that on record. On that basis, the hon. Member for Stretford and Urmston might feel inclined to withdraw amendment 9.

David Burrowes (Conservative, Enfield, Southgate)

I also welcome that assurance. We have already heard that there is dissension about the need to allow for the right of organisations to discipline their own. Does the Minister accept that there is the prospect—obviously, he cannot bind future Parliaments—of a different view being taken at a later date? There might be a view that upholds amendment 9 and says that we need to limit the extent to which an individual minister can take a conscience view. So there is the prospect that the amendment will be exposed either through a later Parliament or even sooner by way of a challenge supported by the EHRC that says that this is a challengeable provision.

Hugh Robertson (Conservative, Faversham and Mid Kent)

I do not think I agree with that. The question about amendment 9 is for the hon. Member for Stretford and Urmston to press. The question of whether a future Parliament could return to this and change its mind is a matter for that future Parliament. There is no way that one Parliament can bind another in that way. I do not think that that is likely or relevant.

Amendment 24 allows us to explore the issues from the opposite angle. Broadly speaking, there are two issues. First, I should say that I do not think it is helpful to define the word “compelled” in the way proposed in the amendment. For the most part, the amendment does not add anything or change the effect of the clause. The concept of compulsion is readily understood and does not need clarification of this sort.

On the points made by my hon. Friend the Member for Enfield, Southgate, we have absolutely not borrowed from the Matrimonial Causes Act. The word “compelled” is simply used in its normal sense in the English language. It therefore not only prevents criminal penalties, but has the effect of preventing any type of conduct that would have the effect of forcing a person to do something protected under that clause. This is important. The imposition of any penalties on or subsequent unfavourable treatment of a religious organisation or individual in order to compel that organisation to opt in to same-sex marriage is already unlawful under the Bill as drafted, so proposed new paragraphs (a) and (b) in the amendment are unnecessary.

David Burrowes (Conservative, Enfield, Southgate)

Will the Minister clarify favourable treatment? Would less favourable treatment by a local authority or, say, a Catholic Church that has not opted into the legislation, which goes beyond the issue of same-sex marriage, but goes to their equality duty, be ultra vires?

Hugh Robertson (Conservative, Faversham and Mid Kent)

It is certainly unlawful under the Act. On my hon. Friend’s second point, the reference to the initiation of any legal action is different. I understand the concerns that unnecessary and misconceived legal actions are unwelcome in any situation. I entirely understand that. However, the protections provided to religious organisations and individuals under the Bill as drafted mean that any challenge against a religious organisation or governing body for not opting into conducting same-sex marriages would be bound to fail.

No law can, of course—I think this is territory on which my hon. Friend touched—prevent an individual from filing an application with the court. As a lawyer, I do not suspect that he thinks that that ought to be the case in any event. In a sense, that is what the amendment would seek to achieve. The question is whether such a case would succeed. In this case, we are absolutely confident that it would not. The Committee does not have to take our word for it, because that position was supported by both Lord Pannick and Baroness Kennedy. Just for the avoidance of doubt, it was Lord Pannick who, in his memorandum to the Committee, wrote:

“For the European Court of Human Rights to compel a religious body or its adherents to conduct a religious marriage of a same sex couple would require a legal miracle much greater than the parting of the Red Sea”.

I do not think he could have been much clearer about that.

David Burrowes (Conservative, Enfield, Southgate)

Will the Minister give the same assurance? Does he want to use the same phrase, “a legal miracle”, in relation to a challenge in the domestic courts?

Hugh Robertson (Conservative, Faversham and Mid Kent)

No, I will not use exactly that phrase as that was not the question Lord Pannick was asked. I am not a QC or a leading human rights lawyer. The provisions in the Bill are clear. They are drafted precisely to ensure that such a legal challenge would not succeed. This is a case where adding words to the Bill might simply increase what there is to argue about and potentially water down the protections already provided. Should a claim be issued, an application for strike-out could be made at an early stage as there would be no cause for action. The concept of compulsion is perfectly clear and I do not believe that any more is needed. I therefore ask my hon. Friend not to press amendment 24.

Kate Green (Labour, Stretford and Urmston)

I am grateful to the Minister for that response. One thing that was being sought was clarity about the position. I think that that has been afforded by the Minister’s answer that the religious freedom of individuals is given that weight in the Bill. There is some precedent, as the hon. Members for Enfield, Southgate and for East Worthing and Shoreham highlighted, for this sort of state interference in the freedom of religious organisations to set their own rules, as we have seen with the Matrimonial Causes Act. It is important that I acknowledge that, contrary to the impression that may have been given, it was not faith groups who raised this issue but the Equality and Human Rights Commission.

I think we can be reasonably confident that it is not the intention of our religious institutions to seek to enforce against and discipline their ministers in this way. As has been noted, it is highly likely that were an individual minister to refuse to marry a same-sex couple when the organisation itself was willing to do so, that organisation would simply find another minister who would carry out the marriage. That would be a better outcome for the couple in question. They are unlikely to want to be married by a minister who does not believe that the marriage is morally valid in any event.

David Burrowes (Conservative, Enfield, Southgate)

I welcome the continued assurance from the Minister but I am concerned that it does not go far enough. There needs to be clarity about its being unlawful for there to be any challenges that affect the Churches in terms of unfavourable treatment. I will therefore be pressing amendment 24 to a Division.

Kate Green (Labour, Stretford and Urmston)

I beg to ask leave to withdraw the amendment.

David Burrowes (Conservative, Enfield, Southgate)

On a point of order, Mr Hood. I should like to clarify whether the votes on amendments 24 and 25 will be taken at the conclusion of our discussion of this group of amendments.

Jimmy Hood (Labour, Lanark and Hamilton East)

To clear up any misunderstanding, we will take the votes on amendments 24 and 25 after we have considered the next group of amendments.

Clause 2 - Marriage according to religious rites: no compulsion to solemnize etc

David Burrowes (Conservative, Enfield, Southgate)

I beg to move amendment 34, in clause 2, page 2, line 22, at end insert—

‘(3A) No person shall be subject to discrimination or other unfavourable action in the course of employment or in the provision of goods or services for stating or teaching that a same sex marriage is not morally equivalent to a marriage between a man and a woman.

(3B) Where a person alleges in any proceedings that there has been discrimination or other unfavourable action against him for reasons which include that he has stated or taught that a same sex marriage is not morally equivalent to a marriage between a man and a woman, it shall be for the person against whom those proceedings are brought to prove that the reasons for the action constituting the alleged discrimination or other unfavourable treatment did not include those statements or teaching regarding same sex marriage.

(3C) The reference in subsection (3A) above to discrimination or other unfavourable action in the course of employment or in the provision of goods or service includes—

(a) discriminating by not concluding a contract of employment with the person stating or teaching that a same sex marriage is not morally equivalent to a marriage between a man and a woman,

(b) discriminating by not concluding a contract for the provision of goods or services with the person stating or teaching that a same sex marriage is not morally equivalent to a marriage between a man and a woman,

(c) not offering a benefit, whether financial or not, to the person stating or teaching that a same sex marriage is not morally equivalent to a marriage between a man and a woman that is or would be offered to a person stating or teaching that a same sex marriage is morally equivalent to a marriage between a man and a woman.’.

Jimmy Hood (Labour, Lanark and Hamilton East)

With this it will be convenient to discuss the following:

Amendment 31, page 52, line 26, schedule 7, at end insert—

‘42 The Education Act 1996 is amended as follows.

43 Section 403 (sex education: manner of provision), after subsection (1D) insert—

“(1E) For the purposes of subsection (1A), no school shall be under any duty as a result of guidance issued, to promote or endorse any understanding of the nature of marriage that is contrary to the character and designation of the school.”.’.

Amendment 32, page 52, line 26, schedule 7, at end insert—

‘Public Order Act 1986

42 (1) Section 29JA is amended as follows.

43 (2) For section 29JA there shall be substituted the following—

“29JA Protection of freedom of expression (sexual orientation)

In this Part, for the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices or the discussion or criticism of same-sex marriage shall not be taken of itself to be threatening or intend to stir up hatred.”.’.

Amendment 33, page 52, line 26, schedule 7, at end insert—

‘42 (1) Section 89 (interpretation and exceptions): After subsection (1) insert—

(1A) For the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the discussion or criticism of same-sex marriage shall not be taken of itself to be discrimination for the purposes of section 85.”.’.

New clause 7—Education: Parental right of withdrawal—

‘In the event that a school teaches about same-sex marriage in a way which conflicts with the beliefs of a parent, that parent shall have a right to withdraw their child from the lesson or lessons in which that teaching takes place, regardless of whether the lesson is deemed to constitute sex education.’.

David Burrowes (Conservative, Enfield, Southgate)

I shall speak to amendments 34 and 32, and leave it to other Committee members to go into bat on amendment 31 and new clause 7.

Amendment 34 is an attempt to prevent people from being discriminated against merely for expressing the view that same-sex marriage is not morally equivalent to a traditional marriage. On Tuesday, the Minister made it clear that the Bill was about ensuring that, as a proposition, same-sex marriage is legitimate. The point of the amendment is to prompt consideration about whether specific protection is needed in relation to the expression of a view, which people may have, that same-sex marriage is not legitimate and not equivalent to traditional marriage.

The amendment will immediately call to Committee members’ minds bed and breakfast cases, for example, and provision of goods and services. I do not wish to take up too much of the Committee’s time by going down that route. I am focusing primarily on the expression of a view, rather than on provision of goods and services, and discrimination cases that have arisen from a refusal to provide such services. Like the provisions of equality law on which they are based, the relevant provisions in clause 2 reverse the burden of proof, so where a person claims that they have been discriminated against on those grounds, it is for the respondent to prove that their view on marriage was not the reason for the mistreatment. The protection would apply to someone in, say, an employment setting or where they were denied a contract for goods and services because of their views on marriage.

As it has been rehearsed already, the view of a man and a woman in marriage as being the only true marriage is one that, whatever the Bill does and whatever passes as a result of it, will be a view upheld by many millions of people in the country, and will not be limited to religious people. Although the amendment is in the theme of clause 2, in relation to religious protections, it seeks to draw us away from the idea that this view is just that of religious people and those of religious conscience, towards the idea that that is also the view of people of all religions and none—and, indeed, of people of all sexualities—who believe that a man and a woman in marriage is the only true marriage, in their understanding of the ordinary meaning of marriage. The amendment was tabled to probe whether there is a need to protect their expression of that view.

Like the Labour Minister, Lord Filkin, some might say:

“The concept of homosexual marriage is a contradiction in terms, which is why our position is utterly clear: we are against it, and do not intend to promote it.”—[Official Report, House of Lords, 11 February 2004; Vol. 657, c. 1094-5.]

Let us suppose that we are in the position of a marriage service company, with chauffeurs and photographers. To use the old rhyme, the couple Daisy and Daisy do not want a stylish carriage, but the provision of a service to carry them.

Chris Bryant (Labour, Rhondda)

A bicycle.

David Burrowes (Conservative, Enfield, Southgate)

I appreciate that intervention. We are all humming the tune. Daisy and Daisy want a bicycle to carry them to the wedding, at which they will tweet and the rest of it, as happens now. After signing the contract, they want a beautiful tandem, but they want a chauffeur to lead their way through the streets paved with people celebrating their sweet marriage. They google marriage service and on Facebook they find a particular chauffeur, who is assigned the task of leading them through the streets on their tandem.

The chauffeur says that he believes what Lord Filkin said, and that the concept of homosexual marriage is a contradiction in terms. He says that his position is entirely clear, but he does not intend to promote it. He might go a little along the lines of Adrian Smith of the Trafford Housing Trust, who put on Facebook that same-sex marriages were “an equality too far”, and as a result he may face the same consequences as Adam Smith and end up being demoted, losing his job, and having to pay thousands to get it back. He might also suffer redress for making that point. It is a matter of taking that scenario through and seeing whether there is a need to respect expressions of view that take us way beyond the marriage ceremony itself.

There are other examples, such as when a person is bidding for a contract to provide services to a local authority and someone finds out what that person had said, perhaps in a private capacity. Nowadays, very little that one says is private. The person could lose the contract, be demoted or discriminated against. Do the Government seek to protect such discrimination and expression of view? To put matters close to the context of the clause, a Church or a community group might want to hire a community centre for meetings, but the local authority refuses on the basis of its public sector equality duties because the individuals and, indeed, the leader, have views of traditional marriage that are found wholly objectionable and offensive.

The reality is that many hon. Members will have been party to discussions when people have expressed their views on different sides of the argument on such a highly emotive issue. Like others, I know that when one expresses a view of traditional marriage, it is greeted by people saying they think we are bigoted and the rest of it. We must consider whether that could lead to a particular impact on someone who is providing goods and services. Does there need to be particular protection for them to be exempt because of the views that they express?

Amendment 32 would amend the Public Order Act 1986, which will be familiar to several members of the Committee who have been involved in such matters for several years. It would add a reference to same-sex marriage under section 29JA of the Act, which is the free speech clause inserted by those in the other place, with support from Conservative Members during the passage of the previous Government’s homophobic incitement offence measures. The amendment would prevent discussion and criticism of same-sex marriage from resulting in criminal sanction. Clearly, no member of the Committee would think that it should be subject to any type of sanction.

One purpose of the free speech clause relates to how complaints and investigations are handled on the ground, to ensure that the chill factor on people’s free expression is avoided. Proposed new section 29JA provides a “beyond doubt” statement that ensures that discussions related to sexual orientation do not in themselves constitute an offence of incitement to hatred on grounds of sexual orientation. The amendment echoes the free speech clause in the religious incitement offence. I supported the creation of that offence, as well as the free speech insertion. Eventually, the timing of the parliamentary Session had something to do with it; the measure came at the very end of the previous Parliament, and the previous Government acceded to the free speech clause.

Amendment 32 is necessary because all individuals should be able reasonably to express views that relate to same-sex marriage without fear of prosecution under the law that criminalises incitement. The amendment makes that clear, and it would also avoid us getting into a situation that has now been prevented by the Government—again coming out with the bat of religious liberty and freedom of expression—by removing “insulting” from section 5 of the Public Order Act defence. I was delighted that the Home Secretary agreed to that after the good work done in the other place, and I was on the Bill Committee that gave the measure a safe passage despite specific reservations from the Opposition, although they did not seek to remove that provision from the Bill in Committee.

The amendment is in the same spirit; it protects the reasonable expression of dissenting, and widely held, views of marriage being between a man and a woman. Indeed, a hallmark of our Parliament is to allow for true and free expression of that view and the amendment would protect that explicitly.

Chris Bryant (Labour, Rhondda)

The Committee will not be surprised to hear that we do not support any of the amendments, so I am in opposition to the hon. Members for Enfield, Southgate and for East Worthing and Shoreham at least, even if not in opposition to the Government. We do not like the new clause either.

I thought that the pathetic nature of the hon. Member for Enfield, Southgate’s argument was exposed when we had to dredge up Daisy. Incidentally, the original song does not define whether it is a heterosexual couple, so it might be two ladies; in fact, I have more frequently seen two ladies on a tandem than a man and a woman. I personally have never been on a tandem, but I see that the right hon. Member for New Forest West is obviously shocked by the idea of two ladies on a tandem.

I merely suggest to the hon. Member for Enfield, Southgate that the paucity of his argument was given away by the fact that he had two women on a tandem who had to have a chauffeur. I do not know whether he has ever seen a tandem, but it is quite difficult to have a tandem with a chauffeur; in fact, that might be a trandem, or something like that, but it is certainly not a tandem.

The legislation already covers the fact that goods and services cannot be provided in a discriminatory fashion, regardless of whether it relates to marriage or anything else, and that is entirely appropriate. I remember the days when taxi drivers would refuse to carry somebody because they thought that they were homosexual, and hotels would refuse to take people.

David Burrowes (Conservative, Enfield, Southgate)

On Tuesday there was concern that I was being too serious, so I was trying to bring some levity and romance to the proceedings. Perhaps Daisy and Daisy was not necessarily the best example, but Adrian Smith is a real example of someone who was discriminated against, demoted and suffered serious implications for expressing his views.

I do not want to go back to the previous debates and arguments on litigation relating to the provision of services deemed discriminatory. The issue is about expressing a view and then the reaction and impact on the individual for expressing that view. Instead of a chauffeur, let us say that a photographer goes along the streets with the tandem; he expresses a view, and then ends up being demoted.

Chris Bryant (Labour, Rhondda)

Now we have a photographer, who is presumably on a bicycle or a moped—I do not know, and I do not know who provided it. May I suggest to the hon. Gentleman that he tries to look at things from a different perspective? Incidentally, I think that our complaint was not about his seriousness, but his extended use of metaphors; in particular, the cricketing metaphors, which seemed to have taken him by storm—[ Interruption. ] Let me suggest to him that he looks at it in a different way, and considers what many gay and lesbian couples have had to experience over the years, that terrible moment when a couple arrives at a hotel—or, in the past, a bed and breakfast—and the staff suddenly realise that the names Chris and Alex are both male. Suddenly, the couple get a sort of Barbara Stanwyck face from the hotel staff, and they think: “Oh God, they hate us.” That is what we tried to put an end to with the legislation, so that if people are providing goods and services—whether it is the wedding car, the hotel where the wedding is held or the hotel where all the guests are stay—there is no discrimination in the provision of those services.

David Burrowes (Conservative, Enfield, Southgate)

Will the hon. Gentleman give way?

Chris Bryant (Labour, Rhondda)

I am not going to give way to the hon. Gentleman again. He is having a conversation with me from a sedentary position, so I cannot hear what he is saying, and as I am not going to give way to him, I am not going to hear what he is saying.

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. I cannot hear what the hon. Member for Enfield, Southgate is saying, either, because I am listening to the hon. Member for Rhondda, who is on his feet. I am sure that the hon. Member for Enfield, Southgate will deny the accusation that he is heckling from a sedentary position, because the Chair has not heard that yet. I ask Mr Bryant to continue.

Chris Bryant (Labour, Rhondda)

Thank you, Mr Hood. My first argument against the group of amendments is that they create hypothetical situations that do not really exist. Secondly, two of the measures completely misunderstand the nature of teaching, and seem to suggest that its purpose is to indoctrinate people with a certain view of life. Some people may have held such a view of teaching 100 years ago, but very few people think that today. By far the best education is that which does what it says on the tin: it leads people out, enabling them to understand the world in which they live and to form their own impressions. It would be entirely wrong for anybody to be indoctrinating children in a particular view of homosexuality. It is perfectly legitimate to hold the view that homosexuality itself is wrong, or that same-sex marriage is wrong, or whatever; but I would hope that any teacher worth his salt, and certainly any teacher who was teaching my nieces or any other relative of mine, would not seek to proselytise for any particular cause.

Incidentally, I would say that proselytising is particularly ineffectual. The number of right-wing clergy I have known who have ended up with left-wing children, and in particular, homophobic clergy who have ended up with gay children, as, perhaps, a sort of vengeance from God—and for that matter, the number of extremely liberal clergy I have known who have ended up with children who have strayed from the liberal path—would suggest that even clergy are not very good at proselytising.

My other problem with the amendments is that I do not think that any of them do what the hon. Member for Enfield, Southgate wants them to do. There is a real danger that if we carve out a particular freedom of expression, in relation only to the concept of same-sex marriage, we thereby suggest that there is no freedom in relation to any other matter that somebody might want to teach in a school. If this group of measures was carried, the danger would be that we would restrict freedom of conscience, rather than enhance it in the way that I know the hon. Gentleman would prefer.

My final point is this. It is a great shame that Ann Widdecombe is no longer in the House of Commons. She was a great hater—

David Burrowes (Conservative, Enfield, Southgate)

Personally?

Chris Bryant (Labour, Rhondda)

Yes, personally—and mutually. She somehow always managed to make the argument in favour of freedom of conscience end up being an argument for allowing people to be able to hate. I say very gently to the hon. Gentleman, who I know is a passionate opponent of homophobia, that if we were to carve out exemptions solely on this matter, we would add another drop to the considerable ocean of prejudice that there is in society. Consequently, I disagree with everything that he said.

Jim Shannon (DUP, Strangford)

It is good to have the opportunity to express some viewpoints, which will probably not be what people expect me to say, but I will certainly do it and have it on the record accordingly. We—the three hon. Members who have tabled these amendments—want the amendments considered by the Committee, because we hold clear and strong viewpoints on the issue. Each of the amendments has taken some time to put together. They have been worded in such a way that hon. Members will feel that they are important enough to support. Whether that happens will become fully known in the next hour or thereabouts.

As we have heard, there is a widespread concern that if the Bill passes, the ordinary people—these amendments are about them—who happen to believe, as I do, as the overwhelming majority of people have for thousands of years, that marriage is only between a man and a woman, could be subject to legal constraints. The amendments were tabled to ensure protection for those people with those strong views. Their freedom of speech and their freedom to disagree publicly may be under serious threat. That is why we tabled the amendments. Obviously some people feel that they cannot support them, and I understand that, but at the same time we have an obligation to put the amendments forward on behalf of the people who have spoken to us. I do not believe that they are scaremongering for a minute. The litany of similar warnings over the past 10 years when promises about religious liberty have been made have largely all come to pass.

I will give a couple of examples. We are now at a stage where at least four members of the Committee believe that there is a de facto hierarchy of rights. As the hon. Member for East Worthing and Shoreham said on Tuesday, in his protracted deliberations with the Minister, lip service is paid to freedoms that we once took for granted. New intolerance has emerged that effectively penalises historic orthodoxies and social consensus. Again, those members of the public who have spoken to us believe—those members of this Committee who have supported the amendments believe this, too—that the new legislation will be forced on them, and they must be guaranteed legal protection. The Bill needs much amendment to even approximate to achieving that protection. That is why we tabled the amendments. We have all come to know by harsh experience that unless so-called promises and assurances are written on to the face of the Bill in a way that everyone is happy with—not just some, but everyone—they are often worth nothing in practice.

The Church of England briefing paper, which we had some time ago, said:

“Too much emphasis, we believe, is being placed on the personal assurances of Ministers.”

Many people have contacted me over the past few days—not just from Northern Ireland, but across the whole United Kingdom—including the Orange Institution, which has laid down its view. They referred to a departure from Christian standards and marriage as a divine institution. Those opinions came from two different individuals within that organisation.

In that context, and especially with regard to the amendments before us, I make it clear that I am not solely concerned with people of religious conviction. I will qualify that. The amendments are specifically aimed at protecting those who have a core belief—not necessarily a religious belief—that marriage is between one man and one woman. That belief is obviously not just a religious belief, because it has been almost universally held by everyone for most of human history.

Indeed, in an evidence session, Brendan O'Neill said:

“I can see the concerns Christians have. I am not a Christian myself—I am an atheist—but I can see the concerns they have. What I am worried about is that in focusing on Christian concerns, we are overlooking the more subtle attack that is being launched”.––[Official Report, Marriage (Same Sex Couples) Public Bill Committee, 14 February 2013; c. 163, Q421.]

That is the opinion of a gentleman who referred to himself as an atheist. While I have a Christian viewpoint and the people I represent have clearly indicated that they have a Christian viewpoint, many others do not have that same religious viewpoint, but look suspiciously on this legislation and how it will affect them.

Stephen Doughty (Labour, Cardiff South and Penarth)

The hon. Gentleman spoke a moment ago about believing that there is some sort of hierarchy of rights and I disagree with him. The Equality Act 2010 set out nine protected characteristics and they protect religion and belief and people of religion or belief as much as they protect people of different sexuality or sex or any of the other nine characteristics. Somehow, a mistaken belief is emerging around the Bill that it is in some way impinging on other people, when in fact it is not. It is a permissive Bill; it is not mandatory, it does not force anything on other people and those protections already exist in the Equality Act.

Jim Shannon (DUP, Strangford)

It will come as no surprise to the hon. Gentleman that his opinion, which I understand is heartfelt, differs from the one that I have. I believe that the locks—the quadruple lock, or whatever number of locks we are going to put on; the Fort Knox locks—will not be sufficient to take on a future legal challenge. I feel very strongly about such things. I understand that the hon. Gentleman feels equally strongly—we can still be friends after this, and hopefully still do our best in the House.

Millions of ordinary people believe marriage to be between a man and a woman for reasons other than religious beliefs. We know that for political reasons some have tried to make out that the Bill is only opposed by those of religious conviction. It is not. Those with religious views have their viewpoint, but those with non-religious views have the same viewpoint—I mentioned the contribution of Brendan O'Neill as an example of that. I have good reason to believe that such people—those who have conscientious religious views and those who do not have particular religious views but still oppose the redefinition of marriage—form a significant majority of the country. For that reason, it is important to consider the amendments, which address the very important issues that we are trying to raise.

Some people in the Committee have just brushed aside the Coalition for Marriage as if they were a minority that is not important in this process; but they are. Some 650,000 members of the public, of all faiths and of no faith, submitted a petition to the Home Office and Downing street—it stood at 500,000 names at that point. Many of us were disappointed that that petition and all the names that the individuals took time to write were not considered in their fullness by the Government to be among those who were opposed. If the Government had included all those names, they would have shown that 84% were against the Bill. I am reminded again of the terminology “lies, damned lies and statistics.” I am particularly annoyed that a large batch of people who opposed the Bill were ignored, which, with great respect, is what the Government did.

The point I am trying to make is that when it comes to free speech, which is what the amendments would deal with, there has been an attempt to present opposition to the Bill as coming from only a narrow religious constituency, which must now be pacified by affording it the crumbs of apparent legal protection. We feel that the legal protection is not sufficient and have therefore put forward the terminology in the amendments for consideration. Religious people may or may not end up having their religious beliefs protected. Many of us say, “I suspect not,” which is why we have tabled the amendments.

The reality is that there are substantial numbers of non-religious members of the public who also refuse to accept that marriage can ever be between people of the same sex, and they require the same protections for their freedom of speech and conscience. I feel strongly that, as the Bill stands, they do not. The amendments aim to address the major shortcoming of the legislation, because the threat to conscience is very real. Only last week, in Canada, where same-sex marriage was legalised in 2005, the leader of the main Opposition party suggested that the mere act of disagreeing with homosexual relationships goes against Canadian law. Same-sex marriage was legalised in 2005, and some eight years later they are actually questioning whether people have a right to even suggest something different—not to vote against it, but just to have that right. That is just one small illustration of how the traditional belief in marriage will inevitably come under attack if the Bill is passed in its present form. The experience of other countries that have legislated for same-sex marriage confirms that things do not always stop there. People and organisations that maintain the traditional view of marriage will find that they are subject to efforts to censor and ostracise them. That is cause for concern.

The point is that there are many other examples of how easy it is for belief in marriage and relationships to become a potential object of a speech ban and disqualification of people and organisations from public life. I said earlier on how important it is for people in public jobs to have freedom of conscience. We know of other examples from academic colleges, particularly in the United States of America, where admission to certain courses is dependent on holding the right views on things such as same-sex marriage. It effectively disbars people on the basis of what they believe, not what they say, and that is gaining ground.

The Government are trying to achieve two contradictory aims in the Bill: to redefine marriage; and to give legal recognition of the freedom not to recognise that redefinition. It is against that background that I speak in support of this series of crucial amendments—they are not to be dismissed as unimportant—that seek to ensure that such protection is built into the Bill. Their aim is patently to make it clear in the Bill, which is the only remotely reliable form of protection, that any person who insists that same-sex marriage is not morally equivalent to man-woman marriage cannot be subject to discrimination or legal action based on that view.

In the realm of public order, amendment 32 intends to make it absolutely clear that the public critique of same-sex marriage cannot be interpreted as a breach of homophobic hatred law. It is important to do that. There is also a need for special protection for teachers via amendment 34, about which I will say more in a few moments. The fundamental right of parents to withdraw their children from lessons that conflict with their convictions, religious or otherwise, about the nature of marriage is also absolutely critical and must be protected in the Bill. That shows the need for new clause 7. Unless such areas of life in which ordinary people may want to exercise their fundamental rights to act in accordance with their beliefs about marriage are protected, specifically in the Bill, the reality is that, as we all know, within a relatively short space of time—the examples are there—all the vague promises of protection will become worthless. That is why the amendments and new clause 7 are so important.

The hon. Member for Enfield, Southgate referred in passing to the case of Adrian Smith and I mentioned it this morning. I want to look at the case, because it is important for the amendments that we have tabled; I want to look at how his case was handled and how this new legislation will affect any new Adrian Smiths or Mrs Smiths with an opinion similar to his. I referred to the case, which is recent and well known, by way of warning.

In November, Mr Smith, who happens to be a Christian, went to court after having made a remark on his personal Facebook page, which was not visible to the general public, outside of working hours that gay weddings in churches would be, in his opinion, an equality too far. His employers, Trafford Housing Trust, based near Manchester, took action against Mr Smith, saying that the comments amounted to gross misconduct and could bring the trust into disrepute. That is the thrust of what they were saying. It emerged in evidence that the trust was worried that it could lose its gay rights charter award unless it took action against Mr Smith. However, the judge decided that the trust had no right to demote Mr Smith over his Facebook comments and ruled that the trust had breached the terms of his contract. In his ruling the judge said:

“In my judgment Mr Smith’s postings about gay marriage in church are not, viewed objectively, judgmental, disrespectful or liable to cause upset or offence. As to their content, they are widely held views frequently to be heard on radio and television, or read in the newspapers.”

We have frequently heard similar views from at least four people in this Committee as well. The judge also rejected the suggestion that Mr Smith’s comments could be viewed as homophobic. The judge concluded:

“Mr Smith was taken to task for doing nothing wrong, suspended and subjected to a disciplinary procedure which wrongly found him guilty of gross misconduct, and then demoted to a non-managerial post with an eventual 40 per cent reduction in salary.”

Some people will say, “Well, he won, didn’t he?” Yes, he did, but at the end of the day, did he really win? What I have said so far is only half the story. The crucial part is that he had to go to court in the first place, and that the costs involved fighting such cases are high. Frequently the argument is lost by default because people cannot afford to challenge such allegations in court. People such as Mr Smith—or any future Mr or Mrs Smiths—can be sacked or demoted without the world hearing about it, which is a grave injustice. We are elected representatives, and lots of constituents come to us and say, “I would like to fight this case, but I’d better settle out of court.” That happens in many cases. Or they say, “I will not bring the case at all because it is going to cost me money and I cannot get legal aid.” Therefore the barrister, or the solicitor, gives him some problems in relation to the case, but does not take it further.

After the case, Mr Smith said:

“All I did was express a genuinely held view. Yet it became a public trial.”

There was a public trial for that man and his beliefs. He added:

“I have won today. But what will tomorrow bring? I am fearful that, if marriage is redefined, there will be more cases like mine—and if the law of marriage changes people like me may not win in court.”

He commented:

“Does the Prime Minister want to create a society where people like me, people who believe in traditional marriage, are treated as outcasts?”

That might not be the Prime Minister’s intention, but it is what will happen. The Prime Minister should think very carefully about the impact of redefining marriage.

Hugh Robertson (Conservative, Faversham and Mid Kent)

I absolutely take the hon. Gentleman’s point about the consequences of the court case. However, the fact is that when it was tested in law Adrian Smith’s right to hold that view, provided he did not express it in a discriminatory or unpleasant manner, was upheld. That will discourage anybody else from bringing a similar case in the future. The hon. Gentleman has not only the assurances in the Bill, but the case law to back it up.

Jim Shannon (DUP, Strangford)

I thank the Minister for his intervention. I will explain how a person can win a case without actually winning it. Mr Smith won the case about how the Trafford Housing Trust treated him, but when he took the case to court, his legal fees were not covered and his job was not reinstated. That concerns us.

The amendment that we tabled would protect the Adrian Smiths of our society and give them the full protection of the law. We feel that they are not protected at the moment. I will explain what happened to Mr Smith to explain our concerns and why we tabled the amendment. We are not here to labour these Bill Committee sittings and make them go on longer than they have to. We are here to put forward our viewpoints and those of our constituents. We are not here to waste time; we are here to put forward viewpoints that we feel are important.

The trust in the Smith case was guilty of breach of contract, as the Minister outlined. However, the case was brought under contract law for technical legal reasons, and Mr Smith was awarded less than £100 in damages and the restoration of his previous position was not mandated by the court. The judge commented:

“A conclusion that his damages are limited to less than £100 leaves the uncomfortable feeling that justice has not been done to him in the circumstances.”

We feel that the amendments would protect Mr Smiths in the future. When the court gave its opinion on this case, it did not go as far as it should have. Despite his court win, Mr Smith had to meet over £30,000 in legal costs. His career is in tatters after 18 years at Trafford council and the Trafford Housing Trust. He was clearly committed to his employer, and was probably coming near to the time when he would get a wee clock for long service. I am not sure what happens now when it comes to the wee clock. I think he would rather have the £30,000 of legal fees and his job reinstated. That is what he deserves.

The case could not be brought under employment law for technical reasons, but even if it had been, legal experts said that Adrian Smith would almost certainly have lost, despite popular reporting to the contrary. This case cannot be used to suggest that everything worked out fine for Mr Smith. The point that I am trying to make to the Minister and the Committee is that it did not work out exactly in the way it should for Mr Smith.

I come on to amendment 34. Teachers who believe that marriage is only between a man and a woman clearly need special protection, whether or not they are motivated by religious belief. They, too, could find themselves working for an employer who takes the same kind of approach as Mr Smith’s employer. It could be down to the borough council or the local education authority and those who have a particular agenda to follow.

Some 40,000 teachers have expressed concern over the legislative change and the impact it will have on them. Perhaps the Minister can explain how this will work when he responds. What will happen to those teachers who have a conscientious religious view, or perhaps a non-religious view like Mr Brendan O'Neill but still the same view, and when it comes to teaching children may not wish to tell them about same-sex marriage? What will the criteria be? What will the guidelines be? Will it be just a simple, “Yes, you can have same-sex marriage,” and then they can talk about heterosexual marriage between man and woman in its fullness and totality?

I believe, with respect, that the Secretary of State was less than helpful in his evidence to the Committee when he just denied that there was any problem. The reality is that in the current climate teachers require clear, unambiguous protection under the Bill. Our amendments attempt to provide that. To dismiss them as not being substantial is unfair to ourselves as members of the Committee and very unfair to the people we represent. We are doing this on behalf of all of those teachers. My sister happens to be one of those teachers. She lives in England and she also has a very similar viewpoint. Last week she told me that many in her school would be of the same opinion. My question is this: does it go vastly beyond the 40,000 teachers who have indicated that they would be unhappy?

The legal advice given to the Committee by John Bowers QC is pertinent here. The Bill as it is currently drawn needs significant amendment to ensure that it is not difficult for teachers with a conscientious objection to same-sex marriage to express their views in the classroom in a way that they can feel happy with, and that they are not impacted by the legal system should the Bill progress further. The Secretary of State and Lord Pannick said that they felt teachers should be free to reasonably express their genuine beliefs. Lord Pannick said that in his evidence to us. That gave us some comfort. But we tabled our amendments because we believe that there is nothing in the Bill at present that ensures that teachers can do that.

Ordinary people in public life who hold to traditional marriage will be highly vulnerable to legal action without much stronger statutory protection. I strongly urge the Minister, the Committee and the Government to amend the Bill to enshrine basic civil liberties. We must not leave members of the general public, and especially teachers and parents—most of us here are parents—unable to express, and to live their lives in accordance with, their deeply held views about the nature of marriage. Protecting Churches from being sued for not carrying out gay marriages is only one tiny fraction of our problem. If the Bill is left as it is, the rights of millions of people from faith-based organisations will be ignored and threatened. A future of deep social and legal conflict beckons unless we get it right.

The onus is on the Minister—no pressure there, of course—and this Committee to ensure that the legal rights are there and that the protection is there for the people whom we represent. I hope the Committee will consider our viewpoint in relation to these amendments. They are sincerely held views. I think hon. Members appreciate that. Whether they agree with them is another issue, but they are sincerely held, as I know their views are sincerely held. On behalf of the millions of people who have concerns, we commend these amendments.

Tim Loughton (Conservative, East Worthing and Shoreham)

I rise to support this raft of amendments. In particular, I want to speak to amendments 31 and 33 and new clause 7. Before doing so, I ought to preface my comments, in view of the fact that the hon. Member for Rhondda has outed himself as an intolerant Widdecombe-o-phobe. I thought that was particularly insensitive to the Under Secretary, who is the successor to the saintly Ann Widdecombe who used to grace these halls.

The hon. Gentleman determined three classes of relationships between clergy and their respective progeny. Let me quickly say that my right-wing reverend father and I fall into none of the categories he defined. He also asked who has ever seen a tandem with a chauffeur, but he is of an age, as am I, to remember “The Goodies”, who sort of had a chauffeur at the head of their tandem.

Chris Bryant (Labour, Rhondda)

That was not a tandem; it was a trandem.

Tim Loughton (Conservative, East Worthing and Shoreham)

The person at the front—this is going way off the beaten path, Mr Hood—

Jimmy Hood (Labour, Lanark and Hamilton East)

Order. I am pleased that the hon. Gentleman has raised with the Chair the fact that he was speaking out of order. He is absolutely right, so can we now move on?

Tim Loughton (Conservative, East Worthing and Shoreham)

I will not refer to Bill Oddie being often treated as a chauffeur.

I do, however, agree with the hon. Member for Rhondda about the nature of teaching. The amendments are not, as he tried to claim, about restricting, but about clarifying freedoms, which are important, particularly in respect of education and teachers.

Teaching is not about proselytising or indoctrinating—quite rightly—although that might have been the case 150 years ago. A while ago, I gave a speech on founder’s day at Lancing college, which was founded a little over 150 years ago by Nathaniel Woodard, from whom the Woodard Corporation schools sprung. When I researched that speech, I was interested to discover that one of his guiding tenets to pupils was, “Don’t question the world.” I based my speech to those modern students on saying that he was absolutely wrong, because the job of good teaching and the role of students is to go out and question the world. In doing so, the point and purpose of a teacher is to excite students’ thirst for knowledge and learning so that they will go out and question the world. That involves debate, recognising differences and tolerating those differences.

That is what is so important about the Bill and the protections in it, if we are to believe they are robust enough, as we hope that they are. The Government must prove that they are, however, which is why we are proposing amendments.

Chris Bryant (Labour, Rhondda)

I disagree with the hon. Gentleman’s use of the word tolerate. “Tolerate difference” makes it sound like a rather unpleasant smell in the room that one is prepared to put up with on sufferance. I think that “respect difference” is a far better phrase.

Tim Loughton (Conservative, East Worthing and Shoreham)

I will read the record, but I thought I said “encourage tolerance” and “recognise difference”. The phrase “respect differences” is just as apt. I do not think the hon. Gentleman and I disagree, so we do not want to dance on a pinhead with that use of vocabulary.

During the oral evidence session, the Secretary of State for Education categorically assured us that the Bill would have no impact on teachers who, while they can teach about the existence of same-sex marriage as a matter of law, cannot in conscience positively endorse the idea. Some polling has identified—for whatever reason, and however much we may agree or disagree—a significant minority of teachers with problems with that due to a matter of conscience. They are entirely entitled to have those views. As long as they are not manifested in hate crimes and homophobia, it is entirely legal to have those views.

I have serious doubts about the robustness of the case that the Secretary of State for Education made, which was not helped by his almost Christ-like insistence on answering most questions with another question. I was particularly keen to tease out what he meant by inappropriate teaching, but I was prevented from doing so by the fact that Mr Streeter’s strictures were much less tolerant than yours, Mr Hood. The Secretary of State kept coming back with that phrase when he was asked how a teacher would fall foul of the legislation, so we must try to tease out what would constitute inappropriate teaching that would fall foul of existing legislation, let alone the Bill, if it is enacted. Perhaps the Minister can help us with that.

Hugh Robertson (Conservative, Faversham and Mid Kent)

I can certainly knock that one on the head straight away. As I understood the Secretary of State’s evidence, teachers are entirely free to express their views in any reasonable way that they wish, but not in an offensive or discriminatory fashion. I imagine that that was exactly what he meant.

Tim Loughton (Conservative, East Worthing and Shoreham)

But the Secretary of State did not use that terminology, and he repeatedly used the phrase “inappropriate teaching”. It would be helpful to know whether inappropriate teaching is simply something that is clearly defined as offensive and subject to existing laws. We do not know from the truncated evidence—I was cut off by Mr Streeter when I tried to probe further—what the full gamut of “inappropriate teaching” is.

Hugh Robertson (Conservative, Faversham and Mid Kent)

I can put my hon. Friend’s mind at rest. Inappropriate teaching would be teaching that was done in an offensive or discriminatory fashion.

Tim Loughton (Conservative, East Worthing and Shoreham)

Under what definitions of “offensive” and “discriminatory”? I will come on to where I think things fall foul of some of this terminology, and perhaps the Minister will respond to that.

Many schools will be sensible and will make allowances, but some will not, and I am worried that nothing in the Bill protects people who are in the latter setting. The press has reported that senior figures in the Department for Education think that the Government may be powerless to prevent an extreme or misguided local authority from disciplining a teacher who has sincere conscientious objections to endorsing same-sex marriage, even if his actions could not be constituted as offensive. When the Secretary of State appeared before us, he put on a brave face about that. He has, however, reportedly said something quite different to the chairman of his constituency association by telling him that, in private, he has doubts about the robustness of the law and protections, and I share those worries.

As my hon. Friend the Member for Enfield, Southgate has reminded us, the employment law specialist Mark Jones mentioned legal advice from John Bowers QC in his evidence to the Committee. He has given that advice to various members of the Committee and it is readily available. Mr Bowers was the employment silk of the year in 2010 and is the author of “Bowers on Employment Law”, which is published by Oxford University Press, so he should know a thing or two. Interestingly, he acted in a successful case brought by gay servicemen to remove the ban on their serving in the armed forces, so he can hardly be written off as biased and partial.

As Mr Bowers acknowledges, the issue of marriage can arise across the school curriculum and in the ordinary discussions that take place in the classroom. Some primary schools already seek to illustrate same-sex unions, and a range of story books to that end can be found in many British primary schools. Stonewall’s “Education for All” campaign already promotes some of those resources in schools in this country. I make no point or criticism about the books; I merely cite them as evidence that there is a concerted campaign to forward a particular view.

The current legal definition of marriage supports teachers who conscientiously believe that marriage can be only between a man and a woman, and who do not want to use such material because they believe that doing so would communicate a personal endorsement of same-sex marriage. That position will change if the Bill is enacted, however, and teachers in state schools who hold to a belief in “traditional marriage” will find that their views are at odds with the legal definition of marriage that we are now debating.

In addition, there is the associated issue of sex and relationships education. That is more of an issue for secondary schools, where it is compulsory, rather than primary schools, where it is not. The law currently provides guidance that children learn about the nature of marriage and its importance for family life and bringing up children. John Bowers QC said:

“This provides no exception for conscientious beliefs. Unless”

the Bill is

“amended I envisage that there would be a duty on the teacher to promote marriage as newly defined”—

“to promote marriage” is his phrase. According to Mr Bowers:

“The importance of this is heightened by the fact that it would inevitably be taken into account by an employment tribunal in assessing what fell within the band of reasonable responses of an employer when it came to assess a claim for unfair dismissal”.

As Mr Bowers makes clear, it is hard to square the Bill with a statement from Jane Williams from the Department for Education, which claims that

“no teacher can or should be compelled to promote views that go against their conscience”,

or with the Government’s own myth-busting document, which alleges:

“No teacher will be required to promote or endorse views which go against their beliefs”—

that is grammatically incorrect; it should be “his or her beliefs”. In the opinion of Mr Bowers, the stark position is:

“a Christian teacher (or indeed any teacher with a conscientious objection) may have to teach about (and positively portray) a notion of marriage (and its importance for family life) which they may find deeply offensive.”

Teachers, as with every employee, must carry out the reasonable instructions of their employers. In the case of education, that position is reinforced by the Secretary of State’s guidance which, as it stands, means that a teacher could be disciplined for his or her stance on the subject. Bowers is clear that a teacher who elevates one kind of marriage over another is likely to face a charge of indirect or direct discrimination. Clearly there will be grey areas, but what in practice amounts to teaching in a discriminatory way will be a matter of fact and degree. Even in a religious school, despite the best intentions of a teacher, merely teaching that there is a range of views and that same-sex marriage is wrong in the view of the school’s religious denomination might lead a gay pupil or a pupil whose parents are in a same-sex marriage to feel that they have been treated in a discriminatory way.

Ultimately, whether a school has discriminated in such a scenario will be a matter of fact for the courts and tribunals, but given the provisions of the Equality Act 2010, schools will be under a duty to ensure that the subject is taught sensitively and in a way that leaves little room for misunderstandings that lead to the sort of complaints mentioned. In practice, there may well be little margin between the legitimate expression of a deeply held belief and a feeling by an aggrieved party that, however sensitively delivered, such expression effectively amounts, to quote the Secretary of State in a letter sent to the TUC, to

“haranguing, harassing or berating a gay or lesbian pupil or group of pupils”.

As Mr Bowers points out, schools have a positive duty under section 149 of the Equality Act 2010 to “advance equality of opportunity” and “foster good relations” between people with different protected characteristics. If a school curriculum explicitly presents marriage between people of opposite sex as positive and marriage between people of the same sex as less positive or negative, there will be a strong case that that school is breaching its duty under section 149. Although marriage and civil partnership is not a protected characteristic for the purpose of that section, sexual orientation is, and there will be a strong argument that, by presenting same-sex marriage in a less positive light, the school will be failing, for example, to foster good relations between persons who share a relevant protected characteristic and those who do not.

Similarly, a maintained state school has a duty under the Human Rights Act 1998 not to act in a way that is incompatible with convention rights, which includes not discriminating because of sexual orientation under article 14 with reference to article 8. In the light of recent Strasbourg case law, it is highly unlikely that a domestic court or the European Court of Human Rights will accept that discrimination was justified with reference to the right to freedom of expression or freedom of thought, conscience and religion.

A school may feel under a duty to counter what it regards as homophobic attitudes in its school and in wider society. The position of a teacher who advocates traditional marriage may be linked with the notion that not promoting same-sex marriage may be offensive to gay people. Such a situation has been considered in that way by the European Court of Human Rights in recent cases.

Mr Bowers considers that section 403(1A) of the Education Act 1996 would also provide a legitimate basis for schools or LEAs that wish to promote a particular vision of equality to require all teachers to teach materials that endorse same-sex marriage. As Mr Bowers states:

“The position of the teacher who manifests a conscientious objection to doing so is not enviable.”

He suggests that it would be analogous to the registrar of births, deaths and marriages—Lillian Ladele’s name has come up on frequent occasions—who refused to conduct civil partnership ceremonies on grounds of moral complicity and because they were something to which she conscientiously objected. It should be recalled that her employer, the London borough of Islington, had a “dignity for all” equality and diversity policy. In 2005, it designated all existing registrars of births, deaths and marriages as civil partnership registrars.

It is worth examining the Ladele judgment, as Mr Bowers does, because he concludes that the patent reality is one of lack of protection for the conscientious objector, and the European Court of Human Rights again offered no further protection. As Mr Bowers concludes:

“The importance of the analogy in this case is that there were no issues of practical discrimination against homosexuals in the facts of Ms Ladele’s case. The legitimate aim was all about maintaining the terms of an equality policy. This is no doubt how a case would be framed in respect of a teacher who was disciplined for not sufficiently promoting same sex marriage in the classroom.”

With regard to sex education in schools, John Bowers’s overall conclusion is damning of the Government’s complacent “everything will be all right on the night” approach. He states:

“If the Marriage Bill becomes law, schools could lawfully discipline a teacher who refused to teach materials endorsing same sex marriage. Given that a teacher has to obey reasonable instructions and that when sex education is given to registered pupils at maintained schools they must learn the nature of marriage I think that the employer could discipline on those grounds. Of course, individual situations will vary, and not all teaching materials will be ‘reasonable’ instructions; for example, I have already mentioned the case of materials which promote gay marriage over other forms of marriage, which may amount to discrimination against those who are not gay or lesbian. Further the right to freedom of expression would have to be balanced in respect of any instructions...Unless Section 403(1A) of the Education Act 1996 is amended, the enactment of the new Marriage Bill would create a legal duty on schools to positively promote same sex marriage within sex and relationships education. Given that it arises from guidance given under statute I doubt that an SRE teacher would have the right to refuse to teach about the ‘importance’ of same sex marriage.”

I said earlier that I am not a lawyer, but I am relying heavily on somebody who is—a very distinguished one—to help make the case for the amendments.

Hugh Robertson (Conservative, Faversham and Mid Kent)

Before my hon. Friend leaves that point, does he think that it is reasonable to allow a teacher not to teach something that is the law of the land, if indeed this becomes the law of the land?

Tim Loughton (Conservative, East Worthing and Shoreham)

This goes to the heart of the debate that we have been having on some of these other cases. Everybody should be entitled to access a service from the registrar, be it opposite-sex or same-sex marriage. As for the Relate councillor, if there is an obligation to provide that service, they should be able to cater to all types of relationships. There should be access to sex education—I will come to that and how inadequate it is at the moment later—in school. However, should every single member of staff be called upon to teach sex education?

Part of the problem is the postcode lottery in the quality of sex education. We are not talking, in most cases, about sex education in schools. Specialised teachers may come from outside organisations and are specifically trained in sex education. They are able to teach it in a much more effective, empathetic way. That is where I believe sex education needs to go to improve the quality. But what happens is that too often in too many schools Mrs Miggins, the metaphorical geography teacher, has some free periods on a Thursday afternoon and is therefore put in charge of sex education for a particular class. Using common sense, should Mrs Miggins be able to say, “I am not too hot on same-sex marriage. I got into a discussion with a pupil who said, ‘My dad thinks that same-sex marriage is all a load of old rubbish. Don’t you agree, Miss?’ Therefore, I was not promoting my view or proselytising; I was engaged in debate by somebody questioning the world”—as Nathaniel Woodard said, “We shouldn’t”—“and I could either have lied and defied my conscience or said, “Well, I’ve some sympathy with your dad’s view: it happens to be the law of the land, but I don’t view same-sex marriage as on a par with opposite-sex marriage”? Should she fall foul of the law? My view is no. Mr Bowers’s view is that she is at risk of falling foul of the law, as it stands. I want common sense to pertain, so that if Mrs Miggins was better deployed doing geography rather than sex education, about which she has a particular conscience issue, she could be accommodated within the school. The school would be entitled, within the law, to use common sense to accommodate her, and everybody would be happy, as long as children got decent, good-quality and balanced sex education, which is what this should all be about.

Stephen Williams (Liberal Democrat, Bristol West)

Do not such difficulties already exist if Mrs Miggins or Mr Miggins were presented with that situation? Currently, they might have to answer questions about abortion or human embryology research, for instance, so they already have to be prepared to meet those scenarios. What changes so much if the Bill passes?

Tim Loughton (Conservative, East Worthing and Shoreham)

Two things will change. Earlier in the week, our debate ended on a dramatic note, because I challenged the Minister to recognise that he had acknowledged a hierarchy of exemptions about what are or are not justified conscience objections, and I refer my hon. Friend back to that debate. [ Interruption. ] Hold on. I said that there were two changes. Let me get them both out, and then he can have a go.

Secondly—this is an obvious one—I thought that he might use the example of people who now have a problem with civil partnerships, which I absolutely do not. Many teachers, quite rightly, have no problems with civil partnerships. It is the law of the land about equality, and we see it as an equality issue. Some of those who are absolutely at one with civil partnerships are not at one with same-sex marriage, because they think that it is a redefinition of marriage, which is why some of us object to the Bill. The numbers of those who might fall within the trap set out by Mr Bowers will be greater in future, and therefore the problem that we need to address will be greater.

Stephen Williams (Liberal Democrat, Bristol West)

I thought that the earlier debate that my hon. Friend mentioned was about a Dr Miggins being able to object to carrying out abortions. We are now talking about schools and teachers. To come back to Mrs Miggins in the classroom, surely she already has to think through what she would do if a child asked about abortion or any other moral consideration in that area. Why should she be any less prepared for dealing with this situation, given the widespread publicity garnered by this debate?

Tim Loughton (Conservative, East Worthing and Shoreham)

With respect to my hon. Friend, Mr Bowers has set this out—

Chris Bryant (Labour, Rhondda)

He is wrong. Bring him on.

Tim Loughton (Conservative, East Worthing and Shoreham)

The chundering from the hon. Gentleman—[ Interruption. ] Chuntering, I am sorry. That would be a really bad speech, would it not?

The point made by my hon. Friend the Member for Bristol West is that the situation is no different. The doctor who refuses to do an abortion is offering a public service, as is the teacher teaching sex education, so they should be seen as parallel. It was really unhelpful when the Secretary of State for Education responded to my question with the question, “Do you think that teachers spend an hour deciding how they will present in a lesson that they think same-sex marriage is a load of rubbish?” or whatever phraseology he used. That is not the point. The point is that—when challenged by kids—personal, social, health and economic education and proper sex and relationship education should be about exploring all different forms of relationships, so that they can go away equipped with as many facts, views and visions—

Chris Bryant (Labour, Rhondda)

Will the hon. Gentleman give way?

Tim Loughton (Conservative, East Worthing and Shoreham)

I will not because I am trying to answer the question asked by my hon. Friend the Member for Bristol West. They must go away with as rounded a picture as possible, but what about the ability of Mrs Miggins to express her own conscientiously held view as to why this is the law of the land, so one cannot go against that, or whatever—[ Interruption. ].

Chris Bryant rose—

Tim Loughton (Conservative, East Worthing and Shoreham)

Will the hon. Gentleman be patient? Mrs Miggins should be able to express a view that she holds, whether for reasons of her personal conscience because she was brought up in a certain religious way, or because she was brought up in a certain non-religious way—or for any manner of reasons. She should be allowed to express those views—without ramming them down the throat of that particular student—without fear of falling foul of the law, as it will change.

Stephen Williams rose—

Tim Loughton (Conservative, East Worthing and Shoreham)

I will give way, but then I think that you would like me to make some progress, Mr Hood.

Stephen Williams (Liberal Democrat, Bristol West)

I listened carefully to what the Secretary of State said as well; he gave a clear answer that he did not expect teachers to be put in the situation that my hon. Friend describes. Someone will correct me if I am wrong, but is not the Adlai Stevenson quote relevant here: people are entitled to their opinions, but they are not entitled to their own facts? Teachers must teach children about the facts, and that includes the law of the land, but they may contextualise that with opinions held in society, which they may share.

Tim Loughton (Conservative, East Worthing and Shoreham)

That, again, is an interesting distinction, because the compulsory part of sex and relationship education is only that that is factual—the science of reproduction. Proper, quality sex and relationship education, however, is not only a matter of fact. Some of it is, but much of it is also about opinions and relationships, the nature of sexual activity and so on. When that is taught in the context of a faith school—we have a growing number of faith schools, whether one agrees with the academy and free school programmes or not—there is another ethos within the school that should, and does, affect the teaching of certain subjects, whether we agree with that or not, of which SRE and religious education are the two obvious examples.

Hugh Robertson rose—

Tim Loughton (Conservative, East Worthing and Shoreham)

I will give way finally to the Minister but then I will make some progress.

Hugh Robertson (Conservative, Faversham and Mid Kent)

Let me knock this one on the head. One of the joys of my life is to be the Minister in charge of this Bill, so I can put on the record the precise answer to this matter. It is as follows: the question that I think my hon. Friend asked is, if a teacher disagrees with same-sex relationships and says so in class, is that discrimination? The answer, emphatically, 100%, is no. It is already well established that expressing a view on homosexuality does not, in itself, constitute discrimination against a gay person, and that applies to teachers. It is therefore perfectly lawful for a teacher in any school to express personal views on sexual orientation or same-sex marriage, provided that it is done—to pick up the Secretary of State’s language—in an appropriate manner and context. That means: in a way that is not offensive or discriminatory. It is perfectly, 100% clear.

Tim Loughton (Conservative, East Worthing and Shoreham)

Which I am really pleased about. In that case, absolutely, the Minister has defined the purpose and urgency of amendment 32, so I assume that he will accept it because exactly the thrust of the protection that he is trying to give is in the amendment that I am trying to get to and my hon. Friend the Member for Enfield, Southgate has already mentioned—[ Interruption. ]

Jimmy Hood (Labour, Lanark and Hamilton East)

Order.

Tim Loughton (Conservative, East Worthing and Shoreham)

Whether the Minister thinks that the amendment is needed or not, there is legal opinion that I have been trying to go through that strongly suggests that the protection is not in the law as it currently stands. The intention of this group of amendments, and amendment 32 in particular, is absolutely, categorically, to put those protections in the Bill.

I know that there are some members of the Committee here who think that having to turn up and sit through hon. Members scrutinising the Bill is an annoyance; indeed, one member of the Committee said as much to BBC Radio this morning. We are never going to reconcile certain parts of the Committee to the principles of the Bill, but it is absolutely the imperative of the Committee—it is why the Committee is important—to test the robustness of the safeguards that the Government themselves have said are essential to the Bill. That is what I am trying to do.

When I get to the end of Mr Bowers’s statement I hope to have shown that somebody who knows what he is talking about still has significant doubts on this matter. He thinks that the law as currently configured will not protect people like Mrs Miggins, who are not trying to be offensive or discriminatory, but are simply being true to their consciences; he also thinks that the law could be used against such people in an industrial tribunal in order to lever them out of their position. That is his genuine concern. The Minister may shake his head; others may think that concern is overdone and overcooked, but it needs to be allayed absolutely, in a watertight manner. I do not believe that it has been.

If I may finish what I was going to say on Mr Bowers, we can move on to some other clauses that we may find easier, Mr Hood. There are some people—[Interruption.] There is a lot of huffing and puffing from the Opposition, but they need to engage in debate here—

Chris Bryant (Labour, Rhondda)

Will the hon. Gentleman give way, then?

Tim Loughton (Conservative, East Worthing and Shoreham)

Absolutely.

Chris Bryant (Labour, Rhondda)

Finally, it worked. I am surprised that the hon. Gentleman has advanced this cause. It is a very good cause in favour of putting sex and relationships education on a statutory basis; it is a shame that when he was a Minister he did not manage to achieve that. Leaving that to one side, it is surely absolutely legitimate that the law should be able to make a distinction between somebody who acts entirely reasonably, as the Minister has referred to, and somebody who might choose to say in a classroom that all homosexuals are filthy, dirty perverts, that they should all be hounded out of society and that they are all paedophiles. I am sure the hon. Gentleman would agree that that would be an irresponsible, incorrect, inappropriate way to teach and that the law should clamp down on someone doing that. It is a matter of the law being one of common sense—of course it is—but I say to him that he is greatly overcooking his soufflé.

Tim Loughton (Conservative, East Worthing and Shoreham)

We move from cricketing analogies to culinary ones. I always enjoy engaging the hon. Gentleman in debate, but it is difficult to distinguish between his chuntering and his wanting to intervene.

However, if the hon. Gentleman does not believe the testimony of Mr Bowers, let us listen to some teachers, and the representations we have had from a group of people involved in education who share some of Mr Bowers’s worries. All hon. Members on the Committee will have a memorandum from an organisation called HighLight. It describes itself as

“an organisation with international links which aims to inspire and equip head teachers, teachers, parents and others who work with young people by offering support, advice, training, conferences and by promoting ‘Keys for Generational Development’”.

It says:

“HighLight supports the freedom of all individuals to make choices according to their conscience within the law and respects the government’s efforts to improve education in this country. In the light of the recent vote in the House of Commons which passed the Same-sex Marriage Bill, HighLight is writing, on behalf of many teachers and parents who have spoken to us, to ask the Committee to consider amendments which will protect their human right to follow their conscience.

Teachers are deeply disturbed that they can be discriminated against, even endangering their jobs, if they, in all conscience, cannot promote gay marriage to their pupils. Schools with a Christian ethos detect a double standard here: on the one hand they are told they must have a cohesive religious ethos running through all their policies and practice and, on the other, are expected to promote a redefined version of marriage to their pupils which runs completely counter to biblical teaching and their conscience.

Parents, who quite properly have the right to withdraw their children from religious teaching if they so desire, cannot now opt out from teaching which denies the traditional Christian view of marriage.

Surely this is discrimination in another guise?

HighLight appeals to the Committee to redress this incongruous and illogical situation with amendments which will categorically protect the rights of teachers and parents and their freedom of conscience.”

I should come back to a point that the hon. Member for Rhondda made. I unfortunately was not the Minister responsible for sex and relationships education; if I had been, I hope that we might have made a bit more progress. I come at this issue as somebody who, as I said at the outset, thinks that SRE in this country is woefully inadequate. It is a postcode lottery. It is taught by people who have little experience, knowledge or, indeed, empathy with that particular subject. If it were Mrs Miggins, the geography teacher, who one day will be teaching about contraception to a bunch of sensitive or giggling teenagers and the next will be teaching about volcanoes and fjords, will she be taken as seriously as somebody who only does that sort of education with that group of children, and knows how to empathise and get them on side?

While I strongly support the requirement of the right of parents to withdraw their kids from SRE if they consider it inappropriate, I do so on the basis that I hope a decreasing proportion of them will. According to my latest figures, the number of parents who exercised that right were fewer than 2,000—a tiny number. I want parents to be sufficiently confident of the quality of sex education in schools that they would consider themselves even less likely to withdraw their children from it. I am not trying to downplay sex education. It is quite the reverse.

I accept that we have had a bit of a major innings, but I shall return to the amendments. Amendment 33 aims to ensure freedom of expression in the education context to protect discussions by teachers of same-sex marriages from being regarded as unlawful discrimination against pupils. It is imperative that neither freedom of expression nor the freedom of thought, conscience and religion are inappropriately limited when individuals are teaching, or when teachers publicly express dissenting views in other contexts regarding same-sex marriage. Unless we incorporate an amendment along those lines, a teacher who criticises same-sex marriage in the school context could be considered to have discriminated on the basis of sexual orientation. If a pupil takes offence at something that is said, even if none were intended and the views were reasonably expressed, it may be held to amount to sexual orientation discrimination. The amendment would prevent such an extension by judicial interpretation in the context of same-sex marriage.

The Minister for Women and Equalities has given assurances that

“discussion or criticism of same sex marriage would not be ‘of itself’ discrimination under the current law. This would only happen if the discussion or criticism took place in an inappropriate manner”—

the phrase that I have already mentioned—

“or in a context which resulted in discrimination against, or a detriment to, a particular pupil or group of pupils.”

She said that the same is true of discussion or criticism of same-sex relationships generally, and:

“Nothing in the Bill affects people’s ability to hold and express their belief that marriage should be between a man and a woman.”

She said:

“Teachers are perfectly entitled to give their own view, or that of their faith, in appropriate context and in a balanced and respectful way.”

That is what my right hon. Friend said, but I do not share that sunny optimism.

Since it is the rights and freedoms of many thousands of our hard-working teachers that are at stake, we should take steps to put the matter beyond doubt. So, in a sense, the amendment would merely put my right hon. Friend’s assurances in the Bill. I cannot understand the objection to that. It would provide a beyond-doubt statement that would ensure that teachers would not be exposed to discrimination complaints simply for explaining their conscientious beliefs about marriage.

The Bill is contentious. It has polarised many opinions. With a Bill of this nature, it is more necessary than in most, if not all, other legislation in which I have been involved during the past 16 years that we put as much detail about the robustness of the assurances of the safeguards in the Bill for avoidance of all doubt, and that is the intention of the amendment.

We have said much about teachers. I am also worried about schools that have a religious ethos and, therefore, have a particular view of marriage that everyone is at pains to stress might be different from the law under the Bill, but which they should still be free to teach and promote. Amendment 31 has been drafted by lawyers working for the Roman Catholic Church. It would provide protection for schools with a religious character. As I have said, that is a growing body of schools, not least because of the academy and free school programme.

The Bill, as drafted, will cause two problems for schools that are designated under law as schools with a religious character. In relation to the current guidance, under section 403 of the Education Act 1996, the Secretary of State is under a statutory obligation to issue guidance on the nature of marriage and its importance for family life and the bringing up of children. The Bill, and in particular clause 11(1), which provides:

“In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples”,

will effectively amend the meaning of “marriage” in the Education Act to include both same-sex and opposite-sex marriage. As a result, all schools will come under a duty to teach children about the nature of same-sex marriage and the importance of same-sex marriage for family life and the bringing up of children. That interpretation is strengthened by clause 11(2), which provides:

“The law of England and Wales (including all England and Wales legislation whenever passed or made) has effect in accordance with subsection (1).”

Section 403, as thus amended, will mean that the current guidance will have to be interpreted in light of that change.

Secondly, the Bill may also affect any future guidance issued by a Secretary of State, who might see his or her responsibility to issue guidance specifically requiring schools to promote or endorse same-sex marriage. The statutory change, and the consequent effect on both current and future guidance, may therefore result in religious schools being compelled to teach, endorse, or even promote a definition of marriage that runs contrary to the nature and designation of that school. As such, previously protected religious freedoms will be affected.

On Second Reading, the Minister for Women and Equalities stated:

“No teacher will be required to promote or endorse views that go against their beliefs.”

She continued:

“The point to make clearly to the House is that teachers would, of course, be expected to explain—and as professionals, they would—the law on marriage, but what we would never expect a teacher to do is promote something that ran contrary to their beliefs or their religious beliefs.”—[Official Report, 5 February 2013; Vol. 558, c.132-3.]

That should be his or her beliefs or religious beliefs.

My right hon. Friend was equally emphatic when she gave evidence to us on 12 February. The amendment, again, begins effectively to put some of those assurances in the Bill. The assurances, I am sure, were given in perfectly good faith by Ministers. The Government know how sensitive the Bill is; otherwise they would not have come up with a quadruple lock. We are trying to add a few little padlocks to go with that quadruple lock with regard to some of the definitions of terminology in the Bill.

With the amendment, teachers in religious schools will remain under an obligation to teach the legal definition of marriage, and its availability to same-sex couples, and explain the issues to all children. However, the amendment will protect religious schools from any obligation arising, whether through interpretation of the current guidance or through future guidance, actively to endorse same-sex marriage. That is the approach that the Secretary of State favoured and so I can see no objection from Ministers to putting it in the Bill.

Finally, proposed new clause 7 looks at the issue from the point of view of the service user, as it were: the parent who sends his or her child to a school where the prevailing view of same-sex marriage contradicts his or her beliefs and where that view is communicated in lessons other than those of sex and relationship education. That is an important distinction, because there is already a legal right of withdrawal in relation to sex education, as I mentioned. Advocacy groups have long argued that issues around homosexuality and gay rights should be addressed across the whole curriculum. So if it comes up in history or English, there is no right of withdrawal.

Again, where the subject is discussed sensibly and fairly, no issue arises, but where there is a more crusading approach there may be a problem. There are teaching materials on same-sex marriage that many parents might find unobjectionable but some materials are effectively campaign literature. In those cases, surely parents should also have a right to withdraw their children.

New clause 7 would also apply where the view taught is for or against same-sex marriage, so a same-sex couple who did not like the way their children were being taught in school about same sex-marriage would also benefit from it.

Will the Minster address the question of what rights he thinks parents should have when same-sex marriage is involved in lessons other than sex education? If it is taught in a way that the parents find unacceptable, whether for religious or other reasons, what rights does he think they should have? The advice from leading human rights lawyer Aidan O'Neill QC is that European law would ultimately not support the right of parents to withdraw their children from curriculum lessons that promote a view of same-sex marriage with which they strongly disagree. Surely that is something for which we need to legislate. I hope that the Minister will look sympathetically at the amendments, which complement what he is trying to achieve. They would ensure that people who have objections of conscience will have those objections respected and will not fall foul of the changes that the Bill will make to the law.

Hugh Robertson (Conservative, Faversham and Mid Kent)

Amendment 34 is a wide-ranging measure that would ensure protection for someone who wants to express a view that the marriage of same-sex couples is not morally equivalent to marriage between a man and a woman, in the context of employment and the provision of goods and services. The problem with the amendment is that, as far as we can see, such protection would apply however and whenever that statement was made. To give one of the famous examples that have so far characterised the Committee’s deliberations, a hotel employee who stood and preached loudly against the marriage of same-sex couples in the middle of a lawful marriage ceremony or reception that was being conducted in a hotel where he was employed would be free to do so without any fear that his employer would take action against him. I would not find such behaviour acceptable, and I suspect most of the Committee would find it unacceptable. I am sure that my hon. Friend the Member for Enfield, Southgate would not condone it either, but it would be protected by the amendment.

Freedom of expression is not, and never has been, a right to express oneself in any way one chooses; it is balanced by the need to protect the rights of others to run their businesses lawfully and to deliver their services lawfully, and not to be subjected to harassment or threat. I understand that some people are worried that the Bill erodes their right to express their view that marriage should be between a man and a woman. It absolutely does not, as we have made clear several times this afternoon. Through the religious protections the Bill provides, the legislation makes it quite clear that such views are legitimate. The amendment proposes similar protection for a service provider or customer who states that same-sex marriage is not morally equivalent to the marriage of a man and a woman. Again, that is not qualified in any way, so it goes too far.

The key point—I am happy to put this on record—is that we do not need the amendment to protect freedom of speech on the subject. In itself, an employee’s simply expressing the view that, according to their religious teaching, marriage should be between a man and a woman could not be said to interfere with their ability to carry out their work. No employee will be required to promote or endorse views about same-sex marriage that go against their conscience. However—this is the balance—acting in an offensive or discriminatory way because of somebody’s sexual orientation is entirely different, and the two issues should not be confused.

On education, my hon. Friends the Members for Enfield, Southgate, and for East Worthing and Shoreham proposed amendment 31 to ensure that teachers will be under no duty under section 403 of the Education Act 1996 to promote or endorse an understanding of marriage that goes against the ethos of their school. However, no teacher is under any duty to promote or endorse a particular view of marriage, and neither would they be as a result of any revised guidance in the future. The wording of section 403(1A) is clear. The Secretary of State issues guidance to ensure that pupils “learn”—it is worth paying attention to that word—

“the nature of marriage and its importance for family life and the bringing up of children”.

The Secretary of State does not issue guidance to ensure that teachers promote or endorse any particular view of marriage. Guidance is already interpreted by schools with a religious character according to their ethos, and that is reflected in the sex and relationships education policies that they produce. Nothing in the legislation affects schools’ rights to teach marriage according to their character, and the additional protections are therefore unnecessary. Legal backing for that position was provided by Lord Pannick, who made it very clear in his evidence to the Committee on 12 February that the Strasbourg Court places great significance on the right to freedom of conscience and religion under article 9 of the convention. As a result, I cannot accept the amendment.

Amendment 33 has been proposed as a measure to give additional protection to teachers when discussing sexual conduct and same-sex marriage, which we have debated extensively this afternoon. The amendment is not necessary to protect the rights of a teacher to express their view on gay relationships and same-sex marriage in a reasoned manner and an appropriate context. It is worth noting that when pupils were first given statutory protection in 2007 against sexual orientation discrimination, faith groups expressed great concern about the effect on faith schools and individual teachers if they were unable to express their views on homosexuality. I specifically asked my right hon. Friend the Secretary of State for Education about this, and we have no evidence that there were significant problems for faith schools or their teachers. No such problems were caused by the introduction of the statutory protection in 2007, and there is no reason to suppose that the effect of the Bill will be different in any way.

New clause 7 aims to provide additional protections for parents to withdraw their children from lessons in which same-sex marriage will be discussed. As I think we have covered already, teaching about marriage is specified in the Education Act 1996 and is covered by the Secretary of State’s SRE guidance. Parents have the right to withdraw their child from any or all aspects of SRE, including teaching about marriage, with the exception of those specific topics that form part of the national curriculum, as my hon. Friend the Member for East Worthing and Shoreham knows, having been an Education Minister.

Parents retain the right to withdraw their children from any or all aspects of religious education. However, we do not think it is feasible for the Government to attempt to legislate for every eventuality, such as if a pupil raises a question about marriage in other lessons. Even if a measure were in place, pupils are naturally inquisitive and will ask questions about any aspect of their education at any time, including to Mrs Miggins on a Thursday afternoon. The crucial thing is the doctrine that my hon. Friend followed when he was a Minister in the Department for Education: we need to trust the judgment of teachers to handle such instances in a professional manner as they do with the many other sensitive issues that can be raised in the classroom.

Amendment 32 is an attempt to insert an “avoidance of doubt” provision in the Bill. Section 29B of the Public Order Act 1986 outlaws the use of threatening words or behaviour with intent to stir up hatred on the grounds of sexual orientation, which is a very high test. As I have already said, a simple expression of a view, while I disagree with it, is entirely legitimate. It could not in any way constitute an offence under that section. Although I understand the rationale behind the amendment, I am unable to accept it. I am happy to put on record that my hon. Friends the Members for Enfield, Southgate and for East Worthing and Shoreham and others can be assured that the criticism of marriage of same-sex couples could never in itself fall foul of the offence. On that basis, I ask them not to press their amendments and new clause.

David Burrowes (Conservative, Enfield, Southgate)

I am glad that this important debate has generated a lot of interest. I would not put it in the realm of a soufflé being over-baked, as there are serious concerns, particularly in relation to schools. I do not want to take up too much of the Committee’s time, so I will focus on the Minister’s responses about schools, because it is not a marginal issue, and it is something that excites many people. There was a survey that said that at least 40,000 teachers would now refuse to teach the importance of marriage and indeed gay marriage, as it is in the Bill, in accordance with the guidance. It is a real issue.

We have heard reassurances, not least in the Government’s myth-busting document, which says:

“No teacher will be required to promote or endorse views which go against their beliefs.”

However, it will go against the beliefs of Christian teachers to have to portray positively a notion of marriage and the importance of family life that they may find deeply offensive. The sex and relationships education guidance makes it clear that pupils

“should learn the significance of marriage and stable relationships as key building blocks of community and society. Care needs to be taken to ensure that there is no stigmatisation of children based on their home circumstances…Pupils need also to be given accurate information and helped to develop skills to enable them to understand difference and respect themselves and others and for the purpose also of preventing and removing prejudice.”

If the Bill is enacted, that would plainly apply equally to same-sex couples.

There may be a case in which a teacher says—this is not to use the straw argument of the hon. Member for Rhondda, who always uses examples to an extreme— “Yes, same-sex marriage is the law of the land, but it is wrong. I do not believe in it. This school, with its ethos, does not believe it is right.” There is clear legal advice on this. One may put forward the view of Lord Pannick QC, but one could also put forward the view of John Bowers QC. Do we want the risk of this being dealt with by litigation? The clear advice is that there is an obligation that goes beyond the guidance—an obligation to promote equality subject to section 85(2) of the Equality Act 2010—so discrimination law does apply. I appreciate that this is not just an issue about the curriculum, where one can look at restrictions in relation to the application, yet the way in which education is provided means that the curriculum must inevitable extend to teaching of the redefinition of marriage.

Hugh Robertson (Conservative, Faversham and Mid Kent)

My hon. Friend, in common with members of the Committee who have been Ministers, will know that the Government are not allowed to put on the face of primary legislation things that are deemed to be unnecessary. He has had reassurance from the Secretary of State and in Committee today that we cannot put forward measures if they are deemed by the Government’s Law Officers to be unnecessary. It simply cannot happen.

David Burrowes (Conservative, Enfield, Southgate)

I hear what the Minister is saying. The Government are doing all that they can to provide locks and protections for conscience and religious liberty in Church buildings. We are saying that people’s application of their conscience is also relevant in schools, especially in light of the Government’s guidance. The reality is about a school or a teacher elevating one kind of marriage over another. That is not just the leading opinion of John Bowers, as it was also referenced by the Equality and Human Rights Commission, which gave similar examples of where that can lead to indirect or direct discrimination.

We will return to this matter, because many more hon. Members will want to probe and table amendments to the Bill. I will wish to press amendment 31 to a Division at the appropriate stage, because it would establish an appropriate position for conscientious objection for those teachers who have an understanding of the nature of marriage that is contrary to the character and designation of their schools. Teachers, particularly those from schools with a religious ethos who feel that they are obliged to teach and promote a contrary nature of marriage, need protection in the Bill. However, I shall not press the other matters, and I beg to ask leave to withdraw the amendment.

Jimmy Hood (Labour, Lanark and Hamilton East)

With the leave of the Committee, we will deal with amendments 24 and 25 together.