My Lords, I listened very carefully to what the noble Lord, Lord Hayward, said. He said that it was very clear in his mind, and I suspect that it is. But neither the noble Lord nor I—nor indeed any other noble Lord in this House—will be here forever, and that is the reason for my amendment.
I feel that the tweak to Amendment 11—because that basically is what it is—ought to be entirely acceptable to the noble Lord, Lord Hayward, to the Government and to your Lordships’ House. First, it makes it mandatory, rather than discretionary, for the Government to use their order-making power to protect religious liberty. I emphasise that the protection of religious liberty is what this is about. Secondly, it pegs those religious liberty protections to the Marriage (Same Sex Couples) Act 2013. That Act contains a series of strong protections, including the famous quad lock, which the noble Lord, Lord Hayward, referred to. I call it the gold standard. We must make sure that the religious liberties of the people of Northern Ireland are definitely protected, that there is no room for ambiguity and that it is not merely discretionary for the Government to act. We must make sure that those protections are not less than those enjoyed by the citizens of other regions of the United Kingdom.
Amendment 11 states:
“The Secretary of State must, by regulations, make provision”,
for same-sex marriage. However, subsection (6) begins:
“The Secretary of State may, by regulations, make … provision”,
to protect belief. There is no “shall” or “must” there; it is optional. Protection of religion or belief should not be left as a “maybe”, and nor should it be possible for some future Government, when none of us is around, to use the same order-making power to simply abolish such protections by saying that they no longer consider them necessary.
So my first tweak in Amendment 11A simply replaces “may” with “must”. In my book that seems rational and reasonable. I know that there are other “mays” in Amendment 11—I accept that—but it is for others to argue whether those, too, should become “must”. I am arguing that the word is essential in subsection (6) because we are talking about the protection of fundamental rights and freedoms. I ask your Lordships’ House to think on that for a moment.
When the 2013 same-sex marriage legislation was being debated, many people said that their support for it was conditional—this is on the record—on the comprehensive set of protections that guarantee religious freedom, including, crucially, that no place of worship would ever be forced to take part in a same-sex wedding. I hope that the same people who said that in 2013 will reaffirm today that their support for same-sex marriage in Northern Ireland is conditional on the same level of protection being put in place.
The 2013 Act gold standard brings me to my second tweak. I have borrowed phrasing from subsection (5), which requires that regulations made under that power may,
“make provision equivalent or similar to that contained in or authorised by”,
the relevant part,
“of the Marriage (Same Sex Couples) Act”.
Again, I made it a “must” rather than a “may” because it seems very obvious to me that whatever protections are introduced ought not to be less than those enjoyed by citizens on the mainland.
I could also have invoked the Scottish same-sex marriage legislation, since Scotland, like Northern Ireland, has a system where the emphasis is on the celebrants or officials being registered to conduct marriages, not on the premises. However, I wanted to keep it simple and to trust the good sense of the Government to uphold the same standard of protection while accounting for differences in the way that our marriage legislation is framed.
In conclusion, we are doing all this in an awful hurry. We have not had time to debate the details properly, but by tying the regulation-making power to the 2013 Act, so that the provisions must be equivalent or similar, we are simply being consistent. In all the debates that took place in 2013, we at least had the time to consider these matters. We must trust that we got the balance of rights more or less right. The same balance should be afforded to and apply in Northern Ireland.