Opponents of gay marriage won't face discrimination, says Equality Commission

The advice, given to MPs today, also refutes suggestions that unwilling clergy might be forced by human rights law to marry same-sex couples.

The Equality and Human Rights Commission has dismissed claims that legalising same-sex marriage will lead to discrimination against people who continue to believe that marriage can only be between a man and a woman.  The advice, given to MPs today, also refutes suggestions that unwilling clergy might be forced by human rights law to marry same-sex couples. Any such attempt, it concludes, would be "extremely likely to fail."

Parliament is beginning its detailed consideration of the bill today.

Ever since the government announced its intention to change the law, opponents have argued that  people who take a more traditional view of marriage will face discrimination in the workplace, even potentially losing their jobs for expressing their beliefs.  

A letter organised last month on behalf of Catholic priests and bishops (more than a thousand signed it) compared the prospect to the situation their church faced after the Reformation, when Catholics were legally barred from holding many official positions. The move, the priests predicted, "will have many legal consequences, severely restricting the ability of Catholics to teach the truth about marriage in their schools, charitable institutions or places of worship. It is meaningless to argue that Catholics and others may still teach their beliefs about marriage in schools and other arenas if they are also expected to uphold the opposite view at the same time."

Similar fears have been expressed by other campaigners.  The Conservative MP Edward Leigh introduced a Ten Minute Rule bill at the end of January calling for explicit protection to be given to opponents of same-sex weddings in churches - by making the exclusively heterosexual view of marriage a "protected characteristic" under the 2010 Equality Act.  Without such protection, he warned, "Army and NHS chaplains who preach in favour of traditional marriage in their own churches on Sunday could find themselves in trouble," while "tens of thousands" of teachers could face disciplinary action.

Today's advice from the EHRC, written by a leading QC, suggests that these fears are misplaced. When it comes to religious ceremonies, it notes that "freedom to manifest religion or belief" is enshrined in the Human Rights Act, as well as in Article 9 of the European Convention.  The principle is not absolute, since a government can interfere with it in the wider public good, but in this case the government has said very clearly that it wishes to uphold the right of religious objection.  Churches and other religious bodies will be able to opt-in to performing same-sex marriages, but that will be entirely their choice.

The EHRC also sees "no reason why employees of all kinds will not remain free to express their views about same-sex marriage."  They, too, would enjoy the full protection of Article 9.  Furthermore, the Equality Act itself protects employees from direct and indirect discrimination, and also unfair dismissal, because of their religion or belief.  Employees should not be sanctioned for disagreeing with the new law, since it "would be unlawful for an employer to discipline or sack an employee for this. This is the case for all employees, whether in the public or private sector, including teachers and chaplains."  Nor would be anyone be required to promote same-sex marriage as part of their job.

The guidance concludes that there "is sufficient protection for individuals who hold the religious or philosophical belief that marriage should only be between a man and a woman."  The only exception the EHRC can see is that registrars might be required to officiate at same-sex weddings as part of their public duty: but as the recent case of Lillian Ladele showed, this is already true of civil partnership ceremonies.

Campaigners against the Bill will probably dismiss this advice as speculative.  Seemingly contradictory advice from the human rights lawyer Aidan O'Neill was publicised last month in the Telegraph. Nevertheless, such a clear statement from the EHRC is likely to carry weight, since it has a statutory duty to scrutinise legislation and to issue formal advice to employers. The advice on same-sex marriage comes on the day that the Commission also circulates new guidance on the wider question of the expression of religion and belief in the workplace, which it hopes will avoid conflict and costly court cases.  

It's also worth noting that Aidan Smith, who was demoted by Trafford Housing Trust after expressing an opinion about same-sex marriage on Facebook, won his case at the High Court last year

If there was a danger of over-zealous employers interpreting the new law as requiring staff to suppress their opposition to same-sex marriage, today's strong advice from the EHRC makes such a scenario much less likely.

An anti-gay marriage protest in France, on January 13. Photo: Getty
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Find the EU renegotiation demands dull? Me too – but they are important

It's an old trick: smother anything in enough jargon and you can avoid being held accountable for it.

I don’t know about you, but I found the details of Britain’s European Union renegotiation demands quite hard to read. Literally. My eye kept gliding past them, in an endless quest for something more interesting in the paragraph ahead. It was as if the word “subsidiarity” had been smeared in grease. I haven’t felt tedium quite like this since I read The Lord of the Rings and found I slid straight past anything written in italics, reasoning that it was probably another interminable Elvish poem. (“The wind was in his flowing hair/The foam about him shone;/Afar they saw him strong and fair/Go riding like a swan.”)

Anyone who writes about politics encounters this; I call it Subclause Syndrome. Smother anything in enough jargon, whirr enough footnotes into the air, and you have a very effective shield for protecting yourself from accountability – better even than gutting the Freedom of Information laws, although the government seems quite keen on that, too. No wonder so much of our political conversation ends up being about personality: if we can’t hope to master all the technicalities, the next best thing is to trust the person to whom we have delegated that job.

Anyway, after 15 cups of coffee, three ice-bucket challenges and a bottle of poppers I borrowed from a Tory MP, I finally made it through. I didn’t feel much more enlightened, though, because there were notable omissions – no mention, thankfully, of rolling back employment protections – and elsewhere there was a touching faith in the power of adding “language” to official documents.

One thing did stand out, however. For months, we have been told that it is a terrible problem that migrants from Europe are sending child benefit to their families back home. In future, the amount that can be claimed will start at zero and it will reach full whack only after four years of working in Britain. Even better, to reduce the alleged “pull factor” of our generous in-work benefits regime, the child benefit rate will be paid on a ratio calculated according to average wages in the home country.

What a waste of time. At the moment, only £30m in child benefit is sent out of the country each year: quite a large sum if you’re doing a whip round for a retirement gift for a colleague, but basically a rounding error in the Department for Work and Pensions budget.

Only 20,000 workers, and 34,000 children, are involved. And yet, apparently, this makes it worth introducing 28 different rates of child benefit to be administered by the DWP. We are given to understand that Iain Duncan Smith thinks this is barmy – and this is a man optimistic enough about his department’s computer systems to predict in 2013 that 4.46 million people would be claiming Universal Credit by now*.

David Cameron’s renegotiation package was comprised exclusively of what Doctor Who fans call handwavium – a magic substance with no obvious physical attributes, which nonetheless helpfully advances the plot. In this case, the renegotiation covers up the fact that the Prime Minister always wanted to argue to stay in Europe, but needed a handy fig leaf to do so.

Brace yourself for a sentence you might not read again in the New Statesman, but this makes me feel sorry for Chris Grayling. He and other Outers in the cabinet have to wait at least two weeks for Cameron to get the demands signed off; all the while, Cameron can subtly make the case for staying in Europe, while they are bound to keep quiet because of collective responsibility.

When that stricture lifts, the high-ranking Eurosceptics will at last be free to make the case they have been sitting on for years. I have three strong beliefs about what will happen next. First, that everyone confidently predicting a paralysing civil war in the Tory ranks is doing so more in hope than expectation. Some on the left feel that if Labour is going to be divided over Trident, it is only fair that the Tories be split down the middle, too. They forget that power, and patronage, are strong solvents: there has already been much muttering about low-level blackmail from the high command, with MPs warned about the dire influence of disloyalty on their career prospects.

Second, the Europe campaign will feature large doses of both sides solemnly advising the other that they need to make “a positive case”. This will be roundly ignored. The Remain team will run a fear campaign based on job losses, access to the single market and “losing our seat at the table”; Leave will run a fear campaign based on the steady advance of whatever collective noun for migrants sounds just the right side of racist. (Current favourite: “hordes”.)

Third, the number of Britons making a decision based on a complete understanding of the renegotiation, and the future terms of our membership, will be vanishingly small. It is simply impossible to read about subsidiarity for more than an hour without lapsing into a coma.

Yet, funnily enough, this isn’t necessarily a bad thing. Just as the absurd complexity of policy frees us to talk instead about character, so the onset of Subclause Syndrome in the EU debate will allow us to ask ourselves a more profound, defining question: what kind of country do we want Britain to be? Polling suggests that very few of us see ourselves as “European” rather than Scottish, or British, but are we a country that feels open and looks outwards, or one that thinks this is the best it’s going to get, and we need to protect what we have? That’s more vital than any subclause. l

* For those of you keeping score at home, Universal Credit is now allegedly going to be implemented by 2021. Incidentally, George Osborne has recently discovered that it’s a great source of handwavium; tax credit cuts have been postponed because UC will render such huge savings that they aren’t needed.

Helen Lewis is deputy editor of the New Statesman. She has presented BBC Radio 4’s Week in Westminster and is a regular panellist on BBC1’s Sunday Politics.

This article first appeared in the 11 February 2016 issue of the New Statesman, The legacy of Europe's worst battle