Myths and realities about Equal Marriage

The complexity of the process should not dissuade the Government from sticking to its guns.


The Marriage (Same Sex Couples) Bill is back before Parliament today for its Report Stage. The latest version of the Bill is here, updated explanatory notes here, and the full list of proposed amendments here. Predictably, the amendments are the focus of much controversy.

This is all very complicated, both legally and politically, as you might expect for such a significant social change. I thought it would be useful to discuss five of the key issues in the current debate - what follows is not comprehensive and I would of course welcome comments.

1. Marriage equality was not in the Conservative Party Manifesto

Partial myth. This is a regular complaint of Tory Party activists (e.g. Conservative Grassroots complaint last week that "Same-sex marriage was not in our manifesto"). Technically, they are right - there was no mention of equal marriage in the 2010 Manifesto document. However, it was mentioned in the Conservative Party's Contract for Equalities, published at the same time, which promised

We will also consider the case for changing the law to allow civil partnerships to be called and classified as marriage. 

So while it is right to say that marriage equality was not an explicit promise the 2010 Manifesto, it was clearly on the Conservative agenda so should not come as a surprise to any Tory supporter who bothered to read up on what the party was going to do in power.

2. The European Court of Human Rights will force vicars to conduct gay marriage

Almost certainly a myth. This has been a concern of religious leaders from the start. It has always been incredibly speculative - see my post from last year. I agree with Karon Monagham QC's opinion which can be found annexed to Liberty's consultation response; as she says at page 40:

51.    a refusal by a church or other religious organisation, to conduct a same- sex marriage, so as to comply with the tenets of its religion or the strongly held and faith based convictions of its members, will invariably be regarded by any court as justified. 

Given the range of views across Europe as well as the extreme sensitivity of this issue to some religious believers, the European Court of Human Rights is unlikely to find that any priest, Rabbi, Imam or other religious leader breached human rights law by refusing to conduct a gay marriage. 

3. The "quadruple lock" protecting religious communities will not survive a European Court of Human Rights challenge

Unclear. It is important to separate the issue of religious observers being forced by the Strasbourg court to conduct gay marriages (see above) with the question of whether the current proposals for a "quadruple lock" protecting religious denominations from having to do so is sustainable. As said above, I think that the protection for religious organisations which refuse to 'opt in' is probably fine in terms of a human rights challenge. The problem, however, is the exception made for the Church of England

The European Court of Human Rights has made clear in recent case law (see my summary) that it will not force states to legalise gay marriage, but also that once gay marriage is legalised, it would treat gay marriages as "analogous" to opposite-sex marriages for the purposes of anti-discrimination rules. The effect of this would be that the Court may be willing to step if the rules which regulate same-sex marriage are themselves discriminatory. 

The Government was right to allow religious communities to 'opt in' to same-sex marriage in its draft bill, an idea which wasn't actually proposed at the consultation stage. If it had simply banned religious communities from solemnising gay marriages, as was the case initially with civil partnerships, this would have been very vulnerable to a European Court challenge. In reality, the so-called 'quadruple lock'    is part of a (sensible) enabling mechanism for religious communities.

But here's the problem. The Government slightly fudged the issue by preventing the Church of England from opting in. The justification was that as the established church, the CoE was in a unique position, as it is obliged to conduct 'marriages' however defined, and would need further protection. Another issue is the complex interaction between Cannon and domestic law. That may all be right, but the position remains that the Church of England as religious denomination will  be prevented, by law, to opt in to the system should it wish to, uniquely amongst religious denominations. This may amount to discrimination, but my instinct is that the European Court of Human Rights would accept the UK Government's position that this is really about the unique legal position of the CoE rather than any discrimination within the meaning of the ECHR.

4. Teachers will be forced to promote gay marriage

Probably a reality. Section 403 of the Education Act 1996 provides that the Secretary of State must issue guidance ensuring that when children are given sex education, "they learn the nature of marriage and its importance for family life and the bringing up of children". Since "marriage" is going to be redefined for the purposes of all legislation (see Para 1 of Schedule 3 to the Draft Bill), that includes s.403. 

So, the Secretary of State will be under a legal duty to ensure that children learn about the importance of marriage - including same-sex marriage - for family life and the bringing up of children. And when teaching sex education, teachers will have to emphasise it too. Teachers who are sacked for 'conscientiously objecting' may find the courts disagree with their view, as they did in the recent case of Eweida and Others v UK (see paras 105-106).

In light of this, one of the current amendments to the Bill seeks to withdraw the obligation to promote marriage. But the issue is a bit more complex than that. Under the Equality Act, teachers must teach in a way which is not discriminatory or harassing. Teachers who are anti-gay marriage, even if for religious reasons, will have to be sensitive in the way they teach about the topic so as not to offend students.

But, and this a big but, this is nothing new. Being sensitive to the feelings and beliefs of pupils, even if they are different to the views of the teachers, is central to being a good teacher, as it always has been. Teachers who want to use classrooms to as a bully pulpit against gay marriage should probably consider doing so in a different setting.

5. Preventing opposite-sex civil partnerships is discriminatory

Probably a reality, but only once the bill in its current form becomes law. Civil partnerships are currently only available for same-sex couples. Legalising gay marriage without legalising opposite sex civil partnerships would  therefore arguably leave opposite-sex couples in a worse position than same-sex couples. 

This, it seems to me, is probably at risk of a court challenge. The disparity is accident of legislative history. For that reason, it seems pretty obvious that civil partnerships will eventually be allowed for opposite sex couples. But the current Government will not want to include that as part of this bill as it would arguably water down the institution of marriage by giving opposite sex couples an alternative, albeit one which looks very similar to a marriage in terms of the legal rights generated for civil partners. 

So the question of whether civil partnerships are allowed for opposite sex couples now rather than later is really one of politics rather than principle. But it will need to happen at some point.

On myths and reality

Contrary to the naysayers, the Government has done a pretty good job so far in plotting a path through the key issues surrounding this bill, most significantly by introducing the "opt-in" for religious communities after almost everyone said that it must do so to prevent a court challenge. There are plenty of other difficulties surrounding the Marriage (Same Sex Couples) Bill, but that should surprise no one. As alluring as it is to pretend there is an easy way to bring in such a major legal and social change, as Peter Tatchell does in the Guardian, the reality is that legalising equal marriage is a complex business. That complexity should not discourage the Government from sticking to its guns.

Adam Wagner is a barrister at 1 Crown Office Row specialising in human rights and medical law. He is the founding editor of the UK Human Rights Blog and tweets as @adamwagner1

A protester holds up a placard at a demonstration for equal rights for gay couples in Trafalgar Square in March 2013. Photograph: Getty Images

Adam Wagner is a barrister at 1 Crown Office Row chambers and editor of UK Human Rights Blog

Credit: Getty
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“Grooming rings are the biggest recruiter for the far right”: Rochdale and Telford prosecutor

Senior lawyer Nazir Afzal warns the government, and communities implicated in street grooming, to do more – or the situation will get worse.

Nazir Afzal, the former chief prosecutor who led prosecutions against a child sex abuse ring in Telford, and oversaw similar street grooming cases in Rochdale, tells Anoosh Chakelian why these crimes go under the radar, and how to tackle them.

How widespread are these street grooming cases?

My involvement started with Operation Span, which is the Rochdale prosecution, in 2011. And prior to that, when I was in London as chief prosecutor, I was aware it was an issue bubbling but wasn’t getting any attention.

Obviously we’ve now got Telford, Newcastle, Peterborough, Sheffield, Rotherham, Oxford, Bristol. If anybody watched the BBC’s film Three Girls, at the very end, they list I think 16 towns and cities where prosecution had taken place.

We know that it is extraordinarily widespread. Wherever you look, if you turn over the stone, you’ll find this kind of behaviour. 

What do each of these cases have in common?

What we discovered, ten years ago nearly, were groups of men working invariably in the night-time economy, either in taxi services or takeaways or that kind of business, hiding amongst whom were these predators. They’re not gangs in the way organised crime gangs are. They’re very loose networks.

There are vulnerable young girls in so many parts of this country, who nobody else seems to care about. And what these victims need is warmth, transport, mind-numbing substances, food. And where are they going to find that? You’re invariably going to find that in the night-time economy.

I used to describe them as easy prey for evil men. They’re easy to identify, and what tends to happen is that once they’ve identified one victim, through her networks very often they’ll find others.

These men are just taking advantage of the dysfunctional nature of children’s services and young people’s services that have existed now for some time. If anything, it’s got worse, because while there is tremendous learning, the resources have been reduced.

So really good practices – like one council would have a van that would go round fast food premises in the evening to identify young girls at risk and talk to them – are cancelled because they don’t have the money to do it anymore.

People work in silence. Information was available and wasn’t shared. That style of working is part of the problem. So time and again, people are just keeping things to themselves. It’s a lack of competence on their part. It’s competence, it’s not conspiracy. Easier to blame a conspiracy than say “you were rubbish at your job”. And that is constantly something that I have come across.

The victims don’t even see themselves as victims very often. Because of the poverty of relationship education and sex education in schools, these men make them believe that they love them. I remember in the Rochdale case, one of the girls kept calling one of the defendants throughout the trial her “boyfriend”. She doesn’t know any different; nobody has taught her what’s a good relationship, what’s a bad relationship.

Time and time again, survivors have the answers. What the authorities should be doing is listening to their local survivors, and building their response and their interventions on what the survivors tell them: “This is a journey I took, this is where you could’ve intervened. This is where you could’ve prevented my abuse or somebody else’s abuse.”

There are some very, very courageous, extraordinarily strong women now more than willing to share their experiences. And we do so little of that [talking to them].

How can the situation be improved for victims and potential victims?

A lot of these victims have criminal records as a result of behaviours they were made to do – we should be erasing those criminal records. That’s the way we can rehabilitate them. I think victims need compensation for what they’ve been through. And they also need lifelong support, and that’s not being produced.

Taxi drivers in Coventry are trained in local signs of abuse; it’s part of their licensing arrangement and I work with them actually on delivering that. Why is that not happening everywhere else in the country? Why are we not licensing and training takeaway establishments in the same way?

I discovered recently that in Newcastle, they’re delivering this kind of training. Sadly, it’s voluntary. The people you need to engage with are not coming. So unless you have mandatory training for people working in the night-time economy, it’s not going to happen.

Additionally in the hotel trade, one or two large chains are doing some good work in identifying young people at risk, and sharing intelligence. Why is that not everywhere? We know that predators use cheap hotels and places like that for the abuse they carry out.

The intelligence is there, it’s just not being used. And we’re not using community intelligence either. The vast majority of victims in this type of sex offending are white girls. There are Asian girl victims too.

When I prosecuted the Rochdale gang, immediately afterwards, I prosecuted the ringleader again for his abuse of a girl of the same ethnicity as him. That didn’t get any publicity and he got 21 years for that. So there are victims from the Asian community but because of issues such as honour, shame, and the fact that very often they’re told by their families that it’s “your fault”, they’re not coming forward.

So we need to understand that there are victims out there who are even less likely to report their concerns because of familial and community pressures.

We are scratching the surface, and it really irks me that each and every time it gets in the news, it’s two things.

Number one is that it’s the biggest recruiter for the far right in this country. If you go on any far right website, they use the grooming gangs more so than Isis or terror attacks as the means by which they recruit far right activists.

So we should be tackling this, and by “we” I mean everybody, including the communities most impacted, and most implicated.

Number two is we need to intervene much earlier, but we also need to do some perpetrator programmes. There are perpetrators involved who are still in denial about their activities. There are still people out there who think “well, it’s fair game”.

How can it be prevented from happening in future?

Much more work has to happen in terms of the perpetrators and perpetrators of the future – and that, of course, involves early education.

Too often, we wait until high school to start talking about gender equality and relationship education. We should be starting to talk to them about these types of behaviours and what they should be looking out for when they’re five, six and seven. We’re just building up a problem for the future by not doing any of this.

We should have mandatory reporting of child sexual abuse. If you see someone being abused, or you perceive to be being abused, then it should be your duty to report. What the government has said recently is that social workers have come out against it. And my response would be: “Well they would, wouldn’t they?”

NGOs are doing phenomenal work in its field, so there are lots of charities and groups up and down the country trying to identify victims and potential perpetrators. They don’t get enough funding. They’re working on a shoestring.

What do you say to those suggesting ethnicity plays a part?

The vast majority of children and young people are abused within the family. We must not lose sight of that. The second largest group of victims are online. Today, you can pay pennies to watch a child being abused in real-time, somewhere in the world. The third largest group is institutional; we know about places of worship – churches, mosques – we also know about the FA and football and judo and sporting clubs, and the BBC.

Street grooming is the smallest – significant nonetheless, we’re still talking about thousands of victims. It’s smallest comparatively to the other three areas.

More than 80 per cent of child sexual offenders are British white men.

When I’ve prosecuted Stuart Hall or Max Clifford, or whatever, people never said “oh, his religion, his ethnicity”, as if that was important. It wasn’t in their cases, and they remain the vast majority of offenders.

I’ve always said the ethnicity of street groomers is an issue. We can’t pretend that’s not what’s happening.

The night-time economy is one issue. But it’s not the issue.The issue is the availability and vulnerability of young girls. The issue is the fact that they are unwanted and unloved. They get no support: the NGOs that support them aren’t properly funded, neither are children’s services. That is the issue.

But ethnicity is an issue, and I don’t think the community is doing enough. I was really pleased to see, some months ago, I was invited to the launch of the Greater Manchester Muslim community organisation, and one of their four priorities is tackling grooming. And that is rare. Most communities would rather not talk about the subject, would beat me up [verbally] quite regularly for mentioning it, and unless we tackle it, bigots don’t need an excuse to hate you, so why do we give them an excuse? Why are we not tackling an issue that can be tackled?

You can’t just generalise about what it is that might be driving these men. We need to do a great deal more research into background, why perpetrators become perpetrators, in the same way we’re trying to identify why victims become victims.

Authorities are often accused of being scared to act because of political correctness. How do you feel about that?

I’ve not come across anybody who’s scared. I get bored of this going unchallenged. These are difficult cases to prosecute. Very often, the victim treats the prosecutor or the investigator as the bad guy for trying to destroy their “relationships”. Competence was the issue – people not understanding how to bring these cases. They had to leave their tick-boxes and their normal pro formas aside.

Some people, no doubt, may not want to offend a certain community, but I would imagine they’re in the minority. The large majority fail to engage because it’s really difficult.

Anoosh Chakelian is senior writer at the New Statesman.