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22 December 2011

Clarification on Civil Partnerships

Clarification on Civil Partnerships

On Thursday, 15 December in the House of Lords, Baroness O'Cathain moved a motion to annul regulations laid by the Government which permits churches to host civil partnership ceremonies. Though the motion was not pressed to a vote, this was the only mechanism by which the Government proposals could actually be debated in Parliament. Otherwise, they would have been pushed through without any scrutiny. 

Civil partnerships are completely secular ceremonies and the somewhat paradoxical permission to host them on religious premises (albeit ironically without any religious accoutrements and only in the presence of a licensed registrar) was opposed by every mainstream church. However, freedom to hold the ceremonies was demanded by a tiny number of very small religious bodies - Unitarians, Liberal Jews, the Metropolitan Community Church and some Quakers. The United Reform Church also suggested that some individual congregations may wish opt in. In response to a highly oversubscribed consultation, the Government nevertheless resisted the overwhelming views of churches and others in order to legislate on behalf of these few groups. One consequence was the serious concern that so-called 'permissive' legislation may in due time become obligatory. 

The motion to annul was based on two separate expert legal opinions which warned that churches might be exposed to anti-discrimination litigation if they refused to host civil partnerships whilst continuing to conduct heterosexual marriages in possible contravention of equality law. Baroness O'Cathain sought clarity and reassurances from the Government, ideally to include a commitment to amend the Equality Act 2010 to place the issue beyond all doubt. 

Following lengthy debate involving differences of opinion between legally qualified Peers, most top QCs in the House affirmed that there could be no doubt that churches were adequately protected by the existing law and that any legal action against them on grounds of discrimination would almost certainly fail. For the Government, Home Office Minister, Lord Henley affirmed  

  • that no church would be obliged to hold civil partnership ceremonies. The legislation was entirely permissive and the Government was determined to preserve its voluntary nature at all costs.
  • that the Government was confident that the likelihood of any legal case ever being brought against a church which chose not to conduct a civil partnership ceremony on its premises was remote. However, Lord Henley gave a clear guarantee that if a successful legal challenge were ever to be brought then the Government would immediately review the appropriate legislation.
  • that the provision in Section 202 of the Equality Act 2010 (amending the Civil Partnerships Act) which provides for places of worship to host civil partnerships applies equally to both the Civil Partnerships Act and the Equality Act.

This latter point represents a new and welcome legal admission by the Government and lies at the heart of debate about whether or not churches could be at risk from potential litigation since any claim for unfair discrimination would be based on the Equality Act.  

Whilst it would have been preferable to have obtained commitment from the Government to amend the Equality Act itself, this latest debate and official statement at least means that in any future legal action, under a legal precedent known as 'Pepper and Hart ' a court would in theory need to refer to this Lords debate in any dispute about legal interpretation. There is a degree of uncertainty here because courts are not required to take Hansard records into account. However, in this instance the clear and uncompromising statements made by the Government, allied to the views of the whole House as expressed by several QCs, suggests that if ever their views were ignored or overturned a major national political and legal issue would arise. 

It is therefore necessary to keep the workings of the new law under close review and to ensure that no church could be bullied into performing ceremonies against its will or find itself refused permission to host marriages. Should there be legislation in the future which recognises same-sex 'marriage' then a whole new situation arises which will need to be addressed to ensure there can be no ambiguity as in the present situation.