A House of Lords Select Committee has released the argument which will be used to attempt to annul the new rules on religious civil partnerships.
The Merits of Statutory Instruments Committee cast doubt over whether an amendment to the civil partnerships legislation “will achieve its intended purpose”, by failing to protect religious establishments which do not wish to carry out civil partnerships.
The amendments are designed to allow religious buildings to voluntarily register to host civil partnerships. It was made explicit that establishments would not be automatically registered or forced to opt out under the new rules.
However, an argument has been put forward that religious institutions will be compelled to register under equality laws.
Groups including the Christian Institute, CARE and the Evangelical Alliance have made submissions to the Committee which suggest organisations will be required to register under a broader obligation on public authorities to eliminate discrimination, despite a specific provision in the regulations and the Equality Act 2010 designed to prevent this.
The Committee published an opinion given by Mark Hill QC, an honorary professor at the Centre for Law and Religion, Cardiff University, which said the new regulations may fail in their aim to avoid obligation by not providing protection from the “all-pervading public sector equality duty under section 149 of the Equality Act 2010”.
Section 149 of the Equality Act 2010 requires public authorities and people performing public duties to eliminate “discrimination, harassment and victimisation”, and advance “equality of opportunity” between people who share a prescribed characteristic, which includes a particular sexual orientation, and people who do not.
Schedule 23 of the Act provides exemptions for religious bodies, but, Hill argues, when performing marriages or civil partnerships, religious bodies are deemed to be public authorities, and the exemptions do not apply.
Section 202 of the Act specifically adds that “nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so”.
Hill argues that, despite Section 202, a local authority could “legitimately be constrained by this public sector equality duty from registering places for the solemnisation of marriage unless and until the proprietors of that place had sought and obtained approval for the registration of civil partnership”.
Criticising the specific regulations, due to come into force on 5 December, Hill said: “Whilst acknowledging the laudable assurance that no faith group is to be compelled to secure approval for the registration of civil partnerships on its religious premises, it is self-evident that the proposed regulation 2B does not (and cannot) deliver on that objective.
“Couching this ‘conscience clause‘ in terms solely of these regulations is limiting. It fails to recognise that the obligation to register is more likely to arise not from the Regulations themselves but from the very specific provisions of the Equality Act 2010 itself and the application of the pervasive public sector equality duty more generally.”
On Section 202’s applicability to religious bodies, he says: “Despite being part of the 2010 Act, section 202 of itself is not sufficient to escape the reach of sections 29 and 149 since it only refers to obligations under the Civil Partnership Act 2004 and not to anti-discrimination provisions more generally.”
Derek McAuley, Chief Officer of the General Assembly of Unitarian and Free Christian Churches called the move, led by Baroness O’Caithain, a “cynical effort to derail the measure on rather spurious grounds”.
Baroness O’Caithan will ask Parliament to annul the regulations on 15 December.