Lord Singh of Wimbledon
Again, I have not for a moment said that the rest live in a moral vacuum. I simply stated what religion is all about, because that seems to have been lost in this debate. Very often the debate is religion against society, and it is not that.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I will address the amendments moved by the noble Lords, Lord Curry of Kirkharle and Lord Singh of Wimbledon, in a moment, but I start by speaking to government Amendments 21 and 51. Government Amendment 21 specifies the relevant governing authorities for giving consent to same-sex marriages according to the rights and usages of the Jewish religion. It replaces the provisions currently in the Bill with a definition that reflects the current arrangement for the Jewish community.
During the Committee evidence sessions in the other place, Sarah Anticoni of the Board of Deputies of British Jews’ Family Law Group referred to drafting issues which it had brought to the Government’s attention. This amendment is the result of discussions with the Board of Deputies of British Jews about those drafting issues, and the Government are very grateful to the board for its helpful and constructive contribution to the completion of this amendment, despite representing a wide range of views on same-sex marriage.
The Marriage Act 1949 already provides a definition of “secretary of a synagogue” in respect of the registration of Jewish marriages. This is because the Jewish religion already has specific provisions for its marriages in the Marriage Act which date back to 1753. This amendment ensures that the new provision in respect of the relevant governing authority reflects the modern structure of the Jewish community.
Government Amendment 51 provides that, where a governing authority has given consent to marriages of same-sex couples, that consent will not be affected purely by a change in the person or persons constituting that governing authority. Where a governing authority provides consent and thereby opts into conducting marriages for same-sex couples, a change in the person or persons who make up the authority will not render the consent void, negate it or remove it. The consent will still stand. However, this does not prevent the new governing authority from revoking the consent and deregistering the building, but this amendment makes clear that that would not happen automatically.
Amendment 22, in the name of the noble Lord, Lord Singh, provides a specific reference to the governing authority of the Sikh religion in relation to opting into same-sex marriage. I assure the noble Lord that no disrespect is intended towards the Sikh religion, or towards any other denomination or faith that is not specifically mentioned in the Bill, and that this amendment is not needed.
Lord Singh of Wimbledon
It may be that no disrespect is intended, but disrespect has been taken and many people are extremely upset about it. I still do not know why the omission occurred. Was it inadvertent or was it deliberate?
Lord Wallace of Tankerness
I apologise if any disrespect has been taken; it was certainly not the intention. A general reference to the governing authorities of religious organisations other than the Church of England, the Jewish religion and the Quakers is already included in the Bill—not by specific reference, but it is covered. The governing authority for the Sikh religion would be covered by this and would enable the members of the Sikh religion to determine who would be their relevant governing authority for the purpose of consenting to same-sex marriage.
The Government do not think it desirable to specify in legislation the governing authority for any particular religious organisation. That is properly a matter for the members of the religious organisation themselves. For the Government to seek to prescribe this would be an inappropriate interference in the internal governance and autonomy of religious organisations, which should be free to decide, and indeed change, their decision-making arrangements for themselves.
I think it was reflected in what the noble Lord said that he is trying to replicate the specific reference that the governing authorities of the Jewish religion and the Society of Friends—the Quakers—have within the Bill. However, as has already been indicated, they are both in a different position, given their particular treatment under the Marriage Act 1949, which arises from arrangements put in place hundreds of years ago to reflect their particular circumstances at the time. They have long had different arrangements under marriage law and therefore their governing authorities are already specifically referred to in the Marriage Act. In line with that treatment, specific reference must be made to their governing authorities in this Bill. This is not required for other religious organisations, where the relevant governing authority should be determined by the members of each organisation. Indeed, my own religious denomination, the Church of Scotland, which has places of worship in England, is not referred to in this Bill—for the very good reason that there is no historical reason why it should be.
Amendment 20 is similar to an amendment debated in Committee in the other place. It inserts provisions regarding the definition of the relevant governing authority, whose written consent is required to opt into the registration of a religious organisation’s place of worship for marriages of same-sex couples. The amendment provides that where there is a dispute over the recognition of the governing authority, the Secretary of State is required to consult members of the religious organisation and if necessary hold a ballot in which at least 66% of members cast their votes. Members are defined as people who have been on a formal membership roll for 12 months or who have attended the majority of services held over a 12-month period.
As I have already indicated, the Government do not believe that it is right for the state to restrict the independence of religious organisations and interfere with their internal governance in this way. Quite properly, that is a matter for each religious body to determine for itself, and we believe that the Bill as it stands gives adequate clarity about what is required regarding the consent of the governing authority of a religious group to marriages of same-sex couples, since the question of who the governing body is will be a matter of fact in each case. If there is a dispute over the identity of the relevant governing authority, that is a matter for the religious organisation to deal with internally, and we do not wish to create additional burdens for religious organisations. Nor indeed do we wish the Secretary of State and the state itself to become involved in internal disputes within a religious organisation.
The noble Lord, Lord Singh, gave us a very helpful explanation as to why he had moved this amendment with reference to the authority in his Sikh religion. It is helpful to have that information about the structure of the Sikh religion, because it illustrates exactly why it would not be proper for the Government to intervene in a religious organisation and its internal workings. It would be quite wrong for the Government to determine which part of the Sikh community should prevail, and it would be a near impossibility for the Government even to identify every religious organisation in the country and make the kind of provision that he would make. Undoubtedly someone would be left off, and that has its own implications. I can assure the noble Lord, Lord Singh, that the references to the Jewish faith and to Quakers are for long-standing historical reasons, and I invite the noble Lord, Lord Curry, to reflect on the fact that it is not appropriate for the state and the Secretary of State to intervene in such a way with the internal workings of a religious organisation. On the basis of that, I invite the noble Lord not to press his amendment.
Lord Singh of Wimbledon
I am grateful for what has been said, but it does not really explain the concerns at all. If there had been any sort of research into the Sikh religion, the Government would have had precise answers as to the state of play in that religion and what and who is the authority. No research whatever has been done. It has been considered unimportant and that is what really upsets. The concern is very similar to that of my noble friend Lord Curry: that any fringe group can say that it is in charge of this or that. If the Government do not wish to take note of someone speaking on behalf of the largest and only relevant authority in India, that is up to them, but this is aiding a “divide and rule” culture that is unhelpful, and that will not be welcome in the community.
Lord Elton
My Lords, this echoes precisely what I was saying at Second Reading. It is a very good example of what is wrong with this whole process. We started off with one unhappy minority and we are going to finish up with 15 or 20 who have not been consulted in the process to the extent that the others have.
Lord Wallace of Tankerness
My Lords, I appreciate the point that the noble Lord, Lord Singh, is making, but I ask him to reflect on the fact that the exceptions are exceptions for historical reasons of the Church of England and the Church in Wales where there is a common-law duty with regard to priests in relation to people within their parish. Quakers and the Jewish faith are included for reasons that go back centuries. Every other religion in England and Wales is treated in the same way. Even my own denomination, the Church of Scotland, is treated in the exactly same way as the Sikh faith is treated by the provisions in this Bill for the religious organisation itself to determine what its appropriate authority is.
It is quite clear from what the noble Lord has said that there is no doubt within his faith as to where that authority lies, just as in my own denomination the General Assembly of the Church of Scotland would be the obvious authority. The fact that he has been able to make very clear where that authority would lie just shows the importance of it being determined by the religion itself. I also ask him to reflect on the fact that if we included his amendment, every other faith and denomination would have to be included as well. That would be an impossible task for a Government and would take them into having to decide which the proper authority of some religions is, and I do not believe that is where the state should go.
Lord Pannick
My Lords, I would just add that if the state were to conduct such an exercise and purport to decide for religious bodies what the proper religious authority is, difficult questions would arise under Article 9 of the European Convention on Human Rights.
The “relevant governing authority” is... | ...if the marriage falls to be registered by... |
|---|---|
the Chief Rabbi of the United Hebrew Congregations of the Commonwealth | the secretary of a synagogue certified under paragraph (a) of the relevant definition (certification by the President of the Board of Deputies) |
the person or persons duly recognised by the members of—(i) the West London Synagogue of British Jews (“the West London Synagogue”), and(ii) the other synagogues that are constituents of or affiliated to the Movement for Reform Judaism | —either the secretary of the West London Synagogue, as certified under paragraph (b) of the relevant definition—or the secretary of another synagogue in a case where:(i) the secretary is certified under paragraph (d) of the relevant definition by the secretary of the West London Synagogue, and(ii) the synagogue is one of those which are constituents of or affiliated to the Movement for Reform Judaism |
the person or persons duly recognised by the members of—(i) the Liberal Jewish Synagogue, St. John’s Wood (“the St. John’s Wood Synagogue”), and(ii) the other synagogues that are constituents of or affiliated to Liberal Judaism | —either the secretary of the St. John’s Wood Synagogue, as certified under paragraph (c) of the relevant definition—or the secretary of another synagogue in a case where:(i) the secretary is certified under paragraph (d) of the relevant definition by the secretary of the St. John’s Wood Synagogue, and(ii) the synagogue is one of those which are constituents of or affiliated to Liberal Judaism |
the person or persons duly recognised by the members of the synagogue by whose secretary the marriage falls to be registered | the secretary of a synagogue certified under paragraph (d) of the relevant definition (certification by the secretary of the West London Synagogue or the secretary of the St. John’s Wood Synagogue) in a case where the synagogue is not one of those which are constituents of or affiliated to:(i) the Movement for Reform Judaism, or(ii) Liberal Judaism |
(a) “relevant definition” means the definition of “secretary of a synagogue” in section 67;(b) a reference to a person or persons being duly recognised is a reference to the person or persons being recognised for the purpose of giving consent for the purposes of this section.”
Lord Dear
I am so sorry. Perhaps I may directly address the Front Bench. We agreed that we would try to hurry this through—and of course we have failed in that. I certainly do want to speak to Amendment 24, having moved Amendment 23. I thought that we agreed that I would then go straight on to Amendment 24 and take that as well. I want to discuss it. However, I am also conscious of the time. It is fast coming up to half past 10. I am in the hands of the Committee as to how we handle this.
Baroness Stowell of Beeston
I apologise to the noble Lord if I was in any way unclear when we discussed this. I thought, from our last conversation, that we were going to debate both amendments together as a single group, and that is what I was intending to do in responding to this debate. I think that there is real merit in doing so because there are things relevant to the noble Lord’s second amendment which help me to address some of the points that have been raised by my noble friends, particularly points raised by the noble Lord, Lord Eden. My intention is to cover both amendments in my response.
Lord Dear
If it is the will of the Committee I will move on to Amendment 24. Yes, the Front Bench is nodding.
Amendment 24 stands in my name as well and I will try to be fairly brief; I can certainly be briefer than I was before. Because of their religious or other convictions, many parents will not want their children to learn about same-sex marriage before a certain age, fearing that they will find it confusing. Others may be concerned that teaching on the subject will not be balanced or might not respect their own convictions on the matter.
Parents, as we all know, have the right to withdraw their children from sex education. However, same-sex marriage could be included in a range of other subjects, across the curriculum, to which the right of withdrawal does not apply. For example, there is no right of withdrawal from history lessons and there has been a growth of schools taking part in LGBT History Month lessons within the last few months.
Stonewall, the leading gay rights group, promotes an extensive list of materials on same-sex marriage for use in primary schools. These resources cover subjects much wider than just sex education. A teacher training guide, also produced by Stonewall, suggests that primary school children could perform some of Stonewall’s recommended story books as school plays. An accompanying teacher training DVD, which was produced with the support of the Training and Development Agency for Schools, suggests that pupils must become “resilient”—and that word is lifted directly from its literature—to the values of their parents and grandparents. This is quite clearly an indirect reference to some parents and grandparents who may have objections to issues such as gay marriage.
There is a danger that without an extension of the right of withdrawal, the deeply held beliefs of parents will be undermined, as will their ability to have their children educated in accordance with their own convictions. Article 2, as some of us know, of the first protocol of the European Convention on Human Rights will be weakened. I could give a number of examples where this sort of thing has happened—I am conscious of the time and of the fact that the House wants to progress—but suffice it to say that there are already examples in this country, and abroad, where children have sought to be removed from school because of this sort of thing, and the council has told the parents that action would be taken against them unless the children were returned to school. It has happened in Waltham Forest in east London and it has happened abroad in Massachusetts.
I am galloping through very fast, and I would have liked to develop the argument to greater effect, but Amendment 24 gives a parent the right to withdraw a child from any lesson that includes teaching about same-sex marriage. It also requires the school to notify the parent a week in advance of those lessons, because being informed in that way is obviously crucial to the effective operation of the right of withdrawal.
Baroness Stowell of Beeston
My Lords, as I said to the noble Lord, Lord Dear, I am grateful to be able to respond to his Amendments 23 and 24 together because some of the issues arising from his second amendment will help me address some of the concerns that have been expressed in this debate by my noble friends.
The noble Lord, Lord Dear, and my noble friend Lord Waddington quoted quite extensively from what I said at Second Reading. Clearly I am not going to repeat that and quote myself but I will be relying on the same facts that I relied on at Second Reading because they are the facts as they are. I want to be clear from the start that I recognise the concern that there is out there and among some noble Lords who have spoken this evening. I feel the passion that was expressed by my noble friend Lord Eden and recognise that it is a real concern. Therefore, there is a responsibility on me to respond from the Dispatch Box and acknowledge that concern. I am grateful for the opportunity to do so.
My noble friend Lady Barker asked me a direct question about whether the Bill changes anything in respect of the guidance that currently exists for teachers on how to teach sensitive issues under the heading of “sex and relationship education”. No, it does not. I should note at this point that there is a later amendment, Amendment 46B in the name of the right reverend Prelate the Bishop of Ripon and Leeds and my noble friend Lady Cumberlege, which relates to religious freedom for faith schools and it is directly linked to Section 403 of the Education Act 1996, which has been quoted by noble Lords in the course of this debate. So I will return to that issue on Monday and, while I hope to be clear and comprehensive in responding to these amendments, this is not the only debate we will have on education in Committee.
Amendment 23 would have broad application to all teachers in all maintained schools. I must stress, as has already been said by the noble Baroness, Lady Thornton, that no teacher is under any obligation to endorse a particular view of marriage or would be in the future as a result of the Bill. Teachers are and will continue to be free to express their personal views or those of their faith about marriage or any other matter, provided they do so in a balanced and sensitive way. There is a significant difference between expecting a teacher to explain something and expecting them to endorse it. Teachers are required to explain the world around them in a way that is appropriate to the age and level of understanding of their pupils. This includes explaining some things which may be controversial and with which they may not necessarily agree. The examples that have been used tonight in debate include divorce and contraception. As many noble Lords have said, teachers are already very experienced in dealing with such issues and do so admirably and professionally. The noble Baroness, Lady Farrington, gave a powerful illustration of how teachers handle these complexities already. They are required to ensure that their teaching is balanced and they take care to ensure that there is no stigmatisation of children based on their home circumstances, their own sexual identity or their own views and beliefs. Teachers are not prevented from discussing their own views, provided they do so in an appropriate way. It is worth reminding ourselves that there are children in classrooms today who are struggling with their sexual identity. This is not just about the teacher; it is also about the pupils and how they respond to the lessons that they receive.
A lot has been said today about tolerance and courtesy. My noble friend Lord Waddington raised the need for that in the context of this debate—we have to continue to respect differences of opinion. I understand the point that my noble friend makes in this context and it has been acknowledged on all sides of the House. As the noble Baroness, Lady Farrington, said, that is precisely what we want children to learn through professional teaching explaining the differences that exist in our society. This is not just about the tolerance that we expect of each other in debating these issues. We want to help our children be tolerant and to respect one another. That is an important part of this process.
The noble and learned Baroness, Lady Butler-Sloss, expressed a concern about teachers being criticised by the same-sex parents of a pupil for expressing their personal view that they do not believe in the marriage of same-sex couples. However, that kind of scenario could happen now in the context of civil partnerships. I therefore go back to the debate that we had on Monday about the law protecting people against others who might not understand their freedoms. Clearly we have a responsibility to ensure that people are aware of and understand the freedom that everyone has to express their views, and it is perfectly legitimate for a teacher in a classroom to be able to do that. If it happens that someone decides to pursue a case against someone else, the law exists to protect them from inappropriate discrimination.
Schools, like any other employer, have responsibilities to their employees under equality and employment law. Teachers, like other employees, are protected from being discriminated against or harassed because of their religion or belief. As I have made clear, this includes a belief that marriage should be only between a man and woman. I forget now who it was but it may have been the noble Lord, Lord Dear, who said that they can express that opinion to each other as teachers in the common room or express that belief in the classroom. It is clearly wrong, as I have stated many times, to say that, because someone believes that marriage should be only between a man and woman, that means the person is homophobic. That is not the case, and I will keep saying that because it is important that we help people to know that it is not the case.
In this context, as I have also said in the context of other debates, the Equality and Human Rights Commission’s statutory codes and guidance, particularly where they relate to public bodies, will help us to ensure that this understanding is widespread. No teacher is obliged to endorse a particular view and no school should disadvantage a teacher because he or she does not do so. If a teacher feels that he or she has been treated unfairly, procedures are in place for them to seek redress. I would hope that the first step would be to take this up through the appropriate channels at school level.
The noble Lord, Lord Dear, gave a range of examples that he had been informed of where he felt that some teachers were being treated unfairly. I feel that the process and the protection are there for any teacher who may feel that they are being treated unfairly, but it is worth pointing out that the Bill that we are discussing now has not become an Act. This Bill is not what is affecting those teachers of whom the noble Lord has been made aware. Those situations predate what we hope will become an Act in the future.
I turn to the noble Lord’s Amendment 24, which is about parents having the ability to withdraw their child from lessons. Parents already have the right to withdraw their child from any or all aspects of sex and relationship education, including any teaching about marriage, with the exception of those specific topics that form part of the national curriculum for science, covering biology and reproduction. Parents also retain the right to withdraw their children from any and all parts of religious education and acts of collective worship. That is not affected by the Bill.
If a school chooses to cover aspects of teaching that are outlined in the Secretary of State’s guidance on sex and relationship education—further to that outlined in the national curriculum in a biology lesson, for example—then parents have the right, and will continue to do so in future, to withdraw their children from those aspects. This is where that matter relates to the issue that my noble friend Lord Eden raised about material. It is important to remind the House that parents should be fully consulted about the school’s approach to sex and relationship education to ensure that they are comfortable with what is being taught. This should include both the content of lessons and the context in which it will be presented.
I further reassure the House that such information is already available for parents. Schools are required to have a written policy on sex and relationship education and that policy must be available to parents on request. What is being taught in this context should include parents. They should be able to understand it, and it should inform their decision as to whether their children should be involved in sex and relationship education—although we would urge that all students be allowed to participate in those lessons because of the benefits we believe they can derive from them. I note the view expressed by the noble and learned Baroness, Lady Butler-Sloss, about ensuring that all students are included.
As regards teaching that is not part of sex and relationship education or religious education, there is no right for parents to withdraw their children from lessons, because the national curriculum is the statutory body of knowledge that every pupil should know. Furthermore, as the noble Baroness, Lady Farrington, said, questions about marriage may arise in any lesson and at any time, and it is not practically possible to know in advance when this may happen. The Government have full confidence in the professionalism of teachers to handle situations in which sensitive topics arise outside sex and relationship education carefully, professionally and in a balanced way.
As I said at the start of this debate, this is not the only debate that we will have on teaching and education in the passage of the Bill. However, it is important for me to be clear that teachers are not required to endorse any belief that they do not have. They are required to explain the law as it stands. They are free to express their personal view as long as they do so sensitively and take into account the context of their lesson. Clearly, what we hope to achieve is the kind of situation that the noble Baroness, Lady Farrington, said the late Lord Joseph talked about in terms of what we hope all our children will be able to achieve from the kinds of lessons that are available to them now. I hope the noble Lord feels able to withdraw his amendment.
Lord Elton
Did I understand my noble friend to say that parents are not now allowed to withdraw their children from, specifically, sex education?
Baroness Stowell of Beeston
I am happy to confirm to my noble friend that parents are indeed allowed to withdraw their children from sex and relationship education. They can do so now and they will be able to do so in future, if that is what they decide.
Lord Dear
I am very grateful to the Minister for the way in which she has summed up and the way in which she has handled these difficult issues. I thank all noble Lords who have taken part in this debate. It has been very illuminating. We have covered a lot of ground, and I take the point that we will be covering educative issues later in Committee.
I will very quickly make four points. First, I ask the Minister to take on board the very considerable concern that the ComRes poll showed among teachers. I ask her to reflect on her words, which were said, of course, in an effort to be helpful when she spoke at Second Reading, distinguishing the factual and legal position on the one hand and promoting and endorsing views on the other. I still maintain that is a very fine balance in the classroom and may be very difficult to disentangle. In fact, I unashamedly lifted the word “endorse” from the Minister’s speech and put it into the amendment. It may be that we can find a different word, but the issue is still there, balanced, as I said, on something of a knife edge. One has to take into account the opinion of leading counsel on this, and that runs straight into the opinion of the Joint Committee on Human Rights, which stated,
“we encourage the Government to consider whether specific protections are required”,
and so on.
From what I have heard in the Chamber tonight there is sufficient doubt and concern on these issues for us to carry those forward into later debates on the whole business of the classroom, teaching and parents. I hope that at the end of that debate, between Committee and Report stages, the Government will be involved in discussions. I would be very happy to join in those discussions, if that was thought to be helpful. We may be able to bring something forward that would give a degree of satisfaction to those who are involved.
Lord Elton
I thought commendation amounted to movement. However, I beg leave to move the amendment.
Baroness Northover
My Lords, Amendment 24C sets out a procedure for the conversion from civil partnership to marriage to take place under Clause 9 of the Bill. My noble friend proposes an oath or affirmation to be made before three witnesses. We already have adequate powers in Clause 9 that would enable the making of provision for a ceremonial element to the conversion, which could consist of spoken statements and/or a requirement for the presence of witnesses. It would be premature to be more specific.
We are still developing detailed proposals for how the conversion process would work and these are not straightforward issues. For example, the more elaborate the arrangement, the more costly this is likely to be for the couple, many of whom may wish to have a very simple, essentially administrative process, given that they may have incurred significant costs when registering their civil partnership. Let us not forget that if marriage had been an option when many couples contracted their civil partnership they might have opted for marriage originally and will consider that they do not need to jump additional hurdles or show more commitment; they have already done that. It is important that we do everything we can not to force such couples down a costly route if they do not wish to take it.
I acknowledge that some would like a requirement for some form of declaratory or contracting words to be spoken in a procedure as an integral part of the conversion, while others would want a minimalist approach. We will be consulting interested stakeholders as we shape the detailed policy for conversions so that the regulations are as inclusive as possible of affected couples’ wishes. We should not lose sight of the fact that a conversion is not, and never has been, intended to signify the beginning of a relationship; rather it is a change of status of an existing legal relationship. Conversion will be an administrative process, although we believe there should be a possibility of an optional ceremonial aspect for those who want it. We will bring forward our proposals in good time so that we can get the process right.
I appreciate my noble friend’s recognition of the significance of marriage to couples who wish to convert their civil partnership. Nevertheless, as the methods of such conversion are very carefully considered, I hope my noble friend will bear with us and withdraw his amendment.
Lord Elton
My Lords, I was very interested in the terms in which my noble friend asked me to do that. I wonder if she is familiar with the fourth report of the Delegated Powers and Regulatory Reform Committee on the Bill. Paragraph 6 says:
“We do not consider it appropriate to describe the powers conferred by clause 9 as being administrative in nature”—
which is what she has just done.
“The regulations will set out the entire process under which a civil partnership is converted into a marriage, including whether or not it requires the presence of the parties and (if so) the nature of the ceremony they are to take part in. This is a wholly novel process with no indication given in the Department’s memorandum as to the form that it will take or as to fees which may be required to be paid”.
It seems that not enough thought has been given to this in advance. In bold type the report then says:
“Accordingly we recommend that regulations under clause 9 should be made by the Secretary of State, with the affirmative procedure applying to the first exercise of the powers, and with the regulations thereafter being subject to the negative procedure”.
I hope that my noble friend will warm to that idea as the bare minimum that would induce me at a later stage to withdraw the amendment.
Baroness Northover
My noble friend has neatly rolled up his previous amendment as well. I am aware of the Delegated Powers Committee report. We have just received it and will be studying it carefully, considering all its recommendations. I note what my noble friend says and I ask him to await our response to the committee’s recommendations.
Lord Elton
That said, and anxiously awaiting developments, which I hope will be ahead of Report stage so that I can digest them and maybe even have the honour of discussing them with the Minister before Report stage, I beg leave to withdraw my amendment.
Baroness Thornton
My Lords, Amendment 26A in the name of my noble friend Lord Alli would remove the special arrangements made in the Bill to require the legal recognition of marriages of same-sex couples as civil partnerships in Scotland and Northern Ireland. I sympathise with the sentiment behind these amendments. British same-sex couples who get married in England or Wales but choose to live in Scotland or Northern Ireland will not have their status legally recognised for what it is. However, it is the nature of devolution that we cannot impose the will of Westminster on devolved Administrations in areas where it has ceded authority.
Marriage law is devolved to both Northern Ireland and Scotland, meaning that any desire by Westminster to legislate in this area for the whole of the UK requires the consent of these Administrations. I know that Scotland is in the process of looking at same-sex marriages at the moment, so I hope that we shall shortly see same-sex marriage introduced in Scotland and therefore this issue will become somewhat less relevant.
In Northern Ireland, civil partnerships have been available since 2005. However, Northern Ireland has chosen not to consider extending marriage to same-sex couples at this time. A Motion calling on the Northern Ireland Executive to legislate to allow for same-sex marriage was narrowly defeated in its Assembly last month. I recognise my noble friend’s frustration at this. However, I ask the Minister, what are the implications if the legislative consent Motion is not agreed to by the Northern Ireland Assembly? Does it mean that married couples of the same sex living in Northern Ireland may be left in a worse position, having no legal recognition of their status whatever? What might be the implications for children and pensions? I am concerned about the legal implications of such a disparity of recognition and hope that the Minister will be able to answer the questions I have around this issue.
Couples in a civil partnership are prohibited from adopting children in Northern Ireland—a situation which is currently being challenged in the High Court. For those couples who have been married and adopted children in England and Wales and who move to Northern Ireland, what will be the status of their adopted children? Will the couple be recognised as the legal parents where they are living?
In relation to pension rights and accrued survivor benefits, if a married same-sex couple have been living in England for 10 years and then move to Northern Ireland, will they lose the right to those accrued benefits, or will they be carried over to their civil partnership status?
Lord Wallace of Tankerness
My Lords, I welcome the opportunity to clarify how the Bill, which makes provision for marriage of same-sex couples under the law of England and Wales, affects Scotland and Northern Ireland. I assure your Lordships that the Government have had lengthy and considered discussions with Scotland and Northern Ireland Ministers and officials to ensure that where the Bill touches on devolved matters, it does so appropriately. I understand where the noble Lord, Lord Alli, is coming from on this but it is not possible for us to accept his amendment or, indeed, those spoken to by my noble friend the Duke of Montrose, which would cut across the approach that we have been discussing with the devolved Administrations.
Indeed, the effect of the amendment of the noble Lord, Lord Alli, would be to remove the relevant part of Schedule 2 to the Bill. It might be helpful if I explain the effect, and importance, of Schedule 2. Without the provisions in Schedule 2, if a same-sex couple married in England or Wales, their relationship would not have legal status if they subsequently travelled or moved to Belfast or Glasgow. It is not that their marriage in England or Wales would become a civil partnership; it would have no status whatever under the law of Scotland or Northern Ireland.
Lord Alli
But it does not have a legal status in Northern Ireland and Scotland because it is a marriage in England and Wales. What the Bill is proposing is for this Government and this Parliament to request—because that is all we can do—the devolved Administration in Northern Ireland and the Scottish Parliament to accord it a lower status in those territories.
Lord Wallace of Tankerness
My Lords, the position is that, as things stand at the moment, there is no provision in either Scotland or Northern Ireland for same-sex marriage. Therefore, if a same-sex couple who are married in England and Wales were to move to Scotland or Northern Ireland, their relationship would not have a legal status of marriage in Scotland or Northern Ireland because that provision does not exist. There is no such thing at the moment in Scotland or Northern Ireland as same-sex marriage. Schedule 20 to the Civil Partnership Act 2004 lists the overseas same-sex relationships which are treated as civil partnerships in the United Kingdom. This partly answers the question raised by the noble and learned Baroness, Lady Butler-Sloss.
At the moment, overseas same-sex marriages are not recognised as marriages in England, Wales, Scotland or Northern Ireland. They are treated as civil partnerships in the United Kingdom, and Section 213 of the Civil Partnership Act 2004, under which Schedule 20 has effect, also sets out the general conditions which must be met for such relationships to be recognised in the United Kingdom. If the amendment of the noble Lord, Lord Alli, were to be carried, we would have the slightly anomalous situation where a couple moving to Belfast or Glasgow would be in a worse position than a same-sex couple who married in Portugal, or elsewhere overseas where same-sex marriage is permitted, and then went to live in Scotland or Northern Ireland.
Under the current law, the 2004 Act, these same-sex marriages contracted, for example in Portugal, would be treated as a civil partnership. If this Bill becomes an Act, we do not wish to see a situation where a same-sex couple married in England would have lesser legal status in Scotland or Northern Ireland than a same-sex couple who married in Portugal. It is for that reason that Schedule 2 exists. As the noble Lord indicated, marriage and civil partnerships are devolved matters. The noble Lord asked why Secretaries of State for Scotland and Northern Ireland could not get together with Scottish or Northern Ireland Ministers to make them marriages. That is not how devolution works. Legislation would have to be passed by the Scottish Parliament or the Northern Ireland Assembly.
As the Bill anticipates, referred to by the noble Baroness, Lady Thornton, the Scottish Government have indicated that they will bring legislation before the Scottish Parliament to bring about same-sex marriage as a legal status in Scotland. That is why, if noble Lords look carefully at the provisions for Scotland in Schedule 2, the order-making power would not have effect if the Scottish Parliament passes legislation for same-sex marriage. In many respects, what is there is deliberately framed, recognising the likelihood that same-sex marriage legislation is to be brought forward in Scotland in the relatively near future.
It is probably also fair to say that same-sex marriage legislation does not appear to be on the horizon in Northern Ireland. That is why the position regarding Northern Ireland is that there is not an order-making power, which will lapse in Scotland when or if Scottish law changes, but rather one that sets out in primary legislation the same position for same-sex marriages contracted in England and Wales in Northern Ireland, as is the case for same-sex marriages contracted in other countries, such as Portugal. People there would be in the same position in Northern Ireland as they would at present.
Last week, the Scottish Parliament passed a legislative consent Motion to the provisions in this Bill which impinge and deal with devolved matters affecting Scotland. The question was asked what would happen if we could not get a legislative consent Motion from Northern Ireland. Our concern would be that this would risk leaving couples with no legal status in a part of the United Kingdom. This could have important European Convention on Human Rights implications. We would need to consider this carefully if this situation arose and whether amendments to the Bill would be needed.
I know that this is not what the noble Lord, Lord Alli, wishes to see, but given the devolution settlement, this Parliament should not legislate for same-sex marriages in Scotland or Northern Ireland and I do not think that anyone in this Parliament is arguing for it. However, in the absence of legislation there, it is important that we give couples who have contracted a same-sex marriage in England and Wales a legal status in Scotland and Northern Ireland. Without the schedule they would have no legal status, so we are putting them on a par with couples who are married in other countries which have passed legislation on same-sex marriage.
The Duke of Montrose
My Lords, I always understood that the first purpose of an order was to be a blanket order to cover all situations. What remains from my questions is: what process does the Minister expect to use for the implementation of the order and what account does it take of the separation of powers? I think that he was saying that the Scottish Parliament has agreed that you can cross-mix the powers.
Lord Wallace of Tankerness
My Lords, the Scottish Parliament has agreed a legislative consent Motion to the provisions in the Bill relating to Scotland, which is very much what we are talking about. The procedure is that the order-making power would be subject to the negative procedure. I am aware that the Delegated Powers Committee has suggested looking at the possibility of there being an affirmative power. We will obviously give consideration to that, but the power also requires the consent of Scottish Ministers. That will be the process. Consent will be required from Scottish Ministers and there will be a negative procedure in this Parliament, subject to our considering the recommendations of the Delegated Powers Committee.
With regard to the separation of powers, I tried to indicate that this is a general position, not a question of the Secretary of State determining the legal status of each couple individually by order. It is a general power that is being given and it is therefore appropriate for the legislature to give that power to the Secretary of State, and for the Secretary of State then to exercise that power. It is not an appropriate matter for the courts because they obviously cannot exercise such a power on a general basis and would have to consider these matters case by case. As I have indicated, that could place a considerable burden on the courts. It would also mean that those who had moved to Scotland and were petitioning the Scottish courts for recognition of their status would, during that period, have no legal status at all. That is not a satisfactory position in which to put these couples.
Perhaps I may write to the noble Baroness, Lady Thornton, about her question on accrued pensions. There is provision to make some variation of the orders and there may be some situation in which that issue would be relevant. However, I will write to her and confirm that position.
Lord Mackay of Clashfern
My Lords, does it not require a statutory provision in Scotland to make this work? Therefore, it is not a matter for the courts in Scotland; it is a matter for the Secretary of State and Ministers in Scotland to make a statutory order to make the rule part of the statutory law of Scotland.
Lord Wallace of Tankerness
As ever, my noble and learned friend expresses it far more concisely than I do.
Lord Alli
My Lords, I thank the Minister for that reply but, as he probably recognises, I am not happy with it. If I got married in England or Wales, I would expect my marriage to be recognised in Scotland and Northern Ireland. It is the essence of the union. For us to have found a mechanism in the Bill to convert marriages into civil partnerships feels as though it was too difficult politically to keep them as marriages. It is clearly a nonsense for couples to be married in England and Wales, and then be treated differently in Northern Ireland and Scotland. For us, in this Parliament, to determine that a marriage in England and Wales should not be treated as a marriage in Scotland and Northern Ireland, without putting the question—as the noble and learned Lord, Lord Mackay of Clashfern, just indicated—to the Secretary of State for Scotland, and those Scottish Ministers for that order, or indeed to the Northern Ireland Secretary of State and Ministers, is for us to be complicit in perpetuating an inequality. Nevertheless, I will read what the Minister said and reflect, but I have no doubt we will return to this on Report. I beg leave to withdraw my amendment.
Baroness Thornton
My Lords, I recommend that the noble Lord, Lord Trefgarne, should google marriages at sea. It says that captains can perform marriages, but they need a licence to do so, just like anyone else. There are no laws that automatically grant captains the right to marry, although you would not know that from watching the television. Apparently this possibly originates from the days of sail when Europeans would have to travel by ship for months at a time to reach far-flung colonies. A couple might meet, court and marry while en route to their destination.
The same Google search threw up a quote. I am a great fan of “Star Trek” and the Starship “Enterprise”. Apparently, Captain James T Kirk said:
“Since the days of the first wooden vessels, all shipmasters have had one happy privilege, that of uniting two people in the bonds of matrimony”.
Captain Kirk’s successor, Captain Jean-Luc Picard, played by Patrick Stewart, a fellow Yorkshireman and great Labour supporter, said, “Make it so”.
Baroness Northover
My Lords, my noble friend’s amendment would enable marriages of same-sex couples to be conducted by the master of a British-registered vessel on the authority of a superintendent registrar’s certificate outside the territorial waters of England and Wales. However, this is not a right possessed by opposite-sex couples, so this would in fact be out of line. I am absolutely delighted to fill in my noble friend on marriage at sea, and I have learnt a great deal about it as well.
At present, the validity of a marriage on board a British merchant vessel is governed by the law of the country in which that vessel is registered. In the law of England and Wales, the Marriage Act 1949 does not provide for marriages to take place on board UK registered vessels at sea, and the Foreign Marriage Act 1892 applies only to marriages outside UK jurisdiction. Neither is it clear that the common law of England and Wales provides authority for the validity of marriages that are celebrated on merchant vessels at sea, although there are historic authorities which suggest that a marriage could be formed under the common law only if it was not possible to wait until the ship reached port. It is unclear whether those authorities still apply, given that there is now statutory marriage law covering both domestic and foreign marriages. However, in any event, such a scenario is extremely unlikely to arise in current times. Therefore, at present, we do not believe that it is possible for a heterosexual couple to have their marriage formally solemnised by the master of a British ship.
I can fill my noble friend in on some additional material, but probably not tonight. The purpose of the Bill is to enable same-sex couples in England and Wales to marry in a civil ceremony, or in a religious ceremony if the religious organisation opts in. It is not intended that marriage for opposite-sex couples should be altered, even if everybody does want them to get married at sea, or that the Bill should bring about wider changes to marriage law. I hope, therefore, that although he is no doubt disappointed, my noble friend will be happy to withdraw his amendment. Lastly, I will supply him with more information than either Google or his own investigations have produced.
Lord Trefgarne
My Lords, I have to be honest and say that I am more mystified than disappointed. Listening to the noble Baroness, Lady Thornton, talking about the Starship “Enterprise”, I am tempted to ask whether the captains of aircraft might be granted this right, but perhaps that would press the extent of the amendment just a little too far. I am grateful to the noble Baroness for what she has said and I beg leave to withdraw the amendment.
Lord Mackay of Clashfern
This is an extremely simple point, but possibly of some importance. Clause 11 (1) says:
“In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples”.
This is not correct as it stands, because there are all these provisions later in the schedules; therefore, the accurate enunciation of the law will be subject to the later provisions of this Bill. I beg to move.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble and learned friend and, as is clear from today’s list, this amendment was debated as part of a group yesterday. My noble and learned friend gave me notice that he wanted to ask a question following on from the debate. I have been given an answer to his question, which I could read out, but I know I would not understand what it is I am reading, and I know we are keen to make progress. The most sensible course of action is for me to ask Parliamentary Counsel to reflect on the points that my noble and learned friend has made and I will then ensure that I write to him as soon as possible and then put a copy of that letter in the Library.
Lord Mackay of Clashfern
My Lords, I am very grateful and am happy to withdraw the amendment on that assurance that Parliamentary Counsel will look at this.
Lord Tunnicliffe
My Lords, I rise to move Amendment 33A in the name of my noble friend Lord Stevenson of Balmacara, which is a probing amendment. Our interest in this issue is to draw attention to people born with an intersex condition; individuals whose anatomy or physiology differs from contemporary cultural stereotypes of what constitutes male and female.
Being intersex is not a disease, it is not a disorder, it is a perfectly normal—and quite common—variation within human development. The need to use the term is made necessary by society’s insistence on maintaining a rigid classification of all human beings as male or female. In many ways, those with an intersex condition can be termed non-gendered. Sometimes a person is not found to have an intersex anatomy until she or he reaches the age of puberty or she or he finds himself an infertile adult, or dies of old age and is autopsied. Some people live and die with intersex anatomy without anyone, including themselves, ever knowing.
If we take the classic stereotypes of what constitutes male and female and consider the biological, social, gender or sexual orientation in the round, there are very few human beings who completely conform in all aspects to the rigid stereotypes. Most people vary from the standard stereotypes in some ways, sometimes in small details, sometimes significantly. Some commentators would now consider sexuality as a continuum with the standard stereotypes as the extremes of this continuum.
One major difficulty with the use of bipolar stereotypes is that there is no precise way of determining into which of the two boxes someone should be placed at birth. All the available yardsticks are flawed: karyotype, gonads, secondary sexual characteristics, appearance—none of these, or even any combination of them, can determine sex with absolute certainty. It is only by ignoring the vast amount of biological evidence to the contrary that this fiction of a strict bipolar sexuality can be maintained. Those who clearly do not fit these classifications—a substantial minority—are dismissed as being disordered or biological errors which require fixing.
It is understandable to discover that, when an infant is born, there is often great pressure on parents and clinicians alike to come up with a clear definition of sex for the newborn. Such people are often subjected by the medical professions to surgical and chemical interventions, usually without their explicit permission, to normalise them and thereby eradicate the evidence of difference.
Your Lordships will understand that, with this amendment, we are talking about a largely hidden and often overlooked minority of people. Estimates of this population run to as many as 1% of live births exhibiting some degree of sexual ambiguity and between 0.1% and 0.2% of live births being ambiguous enough to become the subject of specialist medical attention, regretfully including involuntary surgery to address their sexual ambiguity.
If we lived in a legal jurisdiction where marriages were defined without reference to the sexual identity of the couples concerned, these complications would not occur. However, the approach underlying the Bill is based on an assumption that the sex of the participants is settled. The UK of course recognises the legal and official change of gender, which would allow a transsexual person to be legally married in accordance with their adopted gender identity. However, those intersex people who identify as non-gendered do not always, if they are allowed to, attempt to transition and are therefore excluded at all levels. Our amendment would specifically include in legislation, for the first time, those who identify as non-gendered.
Unless there is some consideration given to this largely hidden and often overlooked minority, they will be isolated yet again from the rights accorded to other, higher-profile groups. I beg to move.
Baroness Northover
My Lords, this amendment seeks to ensure that the Bill would allow individuals who identify themselves as being non-gendered—neither male nor female—to marry. We understand the challenges that intersex conditions can pose and appreciate the difficulties people affected by this can face. The noble Lord has, with great sensitivity, outlined the case for consideration of this group of people. I have great sympathy for their situation but, as the noble Lord is aware, we cannot accept this amendment.
As the noble Lord acknowledges, the law of England and Wales recognises only two genders—male and female. Although we understand that some people do not see themselves as either male or female, none the less everyone has a legal gender status of either male or female. The Bill does not change that, and it would not be an appropriate legislative vehicle in which to seek to do so. However, the Bill, by enabling same-sex couples to marry, will ensure that in future there will be no bar to an intersex person, or a person who identifies as non-gender, marrying anyone whom they choose. The effect of the Bill will be that people will be able to get married, and remain married, regardless of their legal gender. The issue raised by this amendment goes well beyond marriage. Having a gender in addition to male and female, or not recognising gender at all, would change a fundamental aspect of our law. Such a change would need to be considered carefully, in order to understand the implications for the many aspects of law which are based on gender differences.
I thank the noble Lord for the opportunity to discuss this important issue. I appreciate his statement that this is simply a probing amendment and I am grateful to him for addressing the concerns of those individuals who feel that they do not have a gender. However, I hope he will be prepared to withdraw his amendment.
Lord Tunnicliffe
My Lords, I thank the Minister for her understanding response. It is the first time, I think, that a Minister of the Crown has recognised this group in this House. That is an important first step in discussing this issue and addressing the needs of this group of people. I thank her for the sympathetic approach. My understanding is that, through various changes in the environment, this is actually a growing problem and it is an issue that will have to be addressed over time. However, I wholly accept the point that the Minister is making. This is a very complex issue and it will need very careful consideration and a very sensitive approach from all those involved in the debate. I am happy to assure the Minister that we do not intend to take this matter further forward in this Bill, and I beg leave to withdraw the amendment.
Baroness Northover
Baroness Northover
My Lords, in moving government Amendment 38 I will speak to the other government amendments in this group. These government amendments relate to technical but important provisions of marriage law which determine when a marriage is void—that is to say, considered never to have existed in the eyes of the law. Clarity in these provisions protects both couples and organisations conducting marriages. They also clarify the provisions for courts to issue a declaration of the validity of a same-sex marriage in prescribed circumstances.
I start with government Amendment 38. This ensures that paragraph 3 of Schedule 3 to the Bill is consistent with the rest of Part 1 of Schedule 3 in that it does not limit subsections (1) or (2) of Clause 11. It is necessary because, as a matter of statutory interpretation, specific provision may reduce the effect of general provision. Subsections (1) and (2) of Clause 11 make general provision and Schedule 3 makes specific provisions related to that clause. The schedule as drafted may give the impression, by omission of reference to paragraph 3, that that paragraph should limit Clause 11. This could cause confusion about the meaning of both clause and schedule.
Government Amendments 42, 43 and 44 clarify the use of the term “declaration of validity” in the Bill. They ensure that when the courts have jurisdiction to make a declaration of validity relating to a same-sex marriage as set out in Schedule A1 to the Domicile and Matrimonial Proceedings Act 1973, inserted by Schedule 4 to this Bill, the 1973 Act works properly for same-sex marriages.
Government Amendments 49 and 50 make provision for when marriages of same-sex couples will be void in circumstances where the religious organisation concerned has not agreed to same-sex marriages, according to its rights. In relation to the Church of England and Church in Wales, Amendment 49 provides protection to couples to prevent their marriage from being considered to be a non-marriage. If it was held to be a non-marriage, this would mean that the court could not exercise its powers in respect of financial relief, which they can do if the marriage is held to be a void marriage. This amendment also provides clarity for the Church of England and Church in Wales, and I can say that this issue was in fact raised with us by the Church of England, which we have consulted on the drafting of this amendment.
In the case of other religious organisations, Amendment 50 provides that where a couple is unaware that the religious organisation has not opted in to marrying same-sex couples, the marriage will be valid. However, if the couple took part in the marriage knowing that the religious organisation had not opted in, then the marriage will be void. If the couple marry in good faith, believing that the person who solemnised their marriage was representing the religious organisation, and that the organisation had opted in, they may live as a married couple for many years before the mistake comes to light. It is not right that they should be penalised for the mistake of the person who solemnised their marriage.
This amendment mirrors the provisions currently in place to deal with errors and mistakes in relation to the formation of opposite-sex marriages, which will also apply to same-sex couples. Government Amendment 52 provides the same clarity about the status of same-sex deathbed marriage under the Marriage (Registrar General’s Licence) Act 1970, which has been conducted by a member of religious organisation which has not opted in to conducting marriages of same-sex couples. Such marriages will be void if the couple knew the religious organisation had not opted in.
Finally, turning to government Amendment 58, the other place approved a government amendment on Report further to ensure that the protection for the Church of England in this Bill is both full and clear. The amendment replaced the power previously provided in Clause 11(5)(c) with an overarching reference to “other ecclesiastical law”, which, on balance, the Government felt would provide the church with more effective protection from the effect of subsections (1) and (2) of Clause 11, so that Church of England law should continue to be interpreted as referring to marriage of a man with a woman. Government Amendment 58 is consequential to that substantive amendment and removes from Clause 16 the parliamentary control procedure for the now deleted power in Clause 11(5)(c). I commend these government amendments and hope that noble Lords will support them.
Baroness Stowell of Beeston
My Lords, I understand why noble Lords would want to seek clarification on this aspect of the Bill, so I am grateful to the right reverend Prelate and other noble Lords who have amendments in this group. I echo what my noble friend Lady Barker said about the right reverend Prelate’s introduction to this debate, and I share his view that it is important that we consider children in the context of the Bill.
My noble friend Lady Barker made an important point about married same-sex couples providing stability and security for their children and this Bill therefore being a good thing for children of same-sex couples. That is something that we should ensure is not forgotten in the course of our debates.
Amendment 39, in the name of the right reverend Prelate, would remove paragraph 2 of Schedule 4, which makes clear that the common-law presumption often referred to as the presumption of legitimacy, that a child born to a woman during her marriage is also the child of her husband, will not extend to same-sex marriages. For the clarity of our debate, it is probably worth my reading out what it says in of the Bill, which is not very long:
“Section 11 does not extend the common law presumption that a child born to a woman during her marriage is also the child of her husband … Accordingly, where a child is born to a woman during her marriage to another woman, that presumption is of no relevance to the question of who the child’s parents are”.
This means that where two women are married to each other and one of the parties to that marriage gives birth to a child, the other party will not automatically be presumed to be the parent of that child. That provision does not change the current situation; instead, it clarifies what the legal position would be in terms of the common-law presumption. The presumption is about fatherhood, and the Bill does not change the law on fatherhood.
Amendment 39A in the name of the noble Lord, Lord Northbourne, which the noble and learned Baroness, Lady Butler-Sloss, spoke to, aims to ensure that both parties to a same-sex marriage have parental responsibility for children born to or adopted by that couple, and focuses particularly on the parental rights of the surviving spouse. I understand and share that objective, and I understand why we are having this debate and why clarity is sought. However, we believe that this amendment is unnecessary because the law already sets out specific criteria that must be met in order for same-sex couples to be treated as the legal parents and to have parental responsibility. So in order for me to reassure noble Lords, I will try to explain.
Baroness Thornton
My Lords, I will merely say that my noble friend Lord Alli has put his finger on the point. This discussion is not about biology but—as the right reverend Prelate said—fidelity. I suspect that the Government have been round this course. I know from reading the record in the Commons that they had these discussions and settled where they did. At the moment I cannot see any way of moving from that point. I do not accept the biological descriptions and solutions suggested by the noble and learned Baroness, Lady Butler-Sloss. The Government have probably ended up in the right place.
Baroness Stowell of Beeston
My Lords, I was wondering earlier how BBC Parliament would cope if this group of amendments came up before the 9 pm watershed. However, we are clearly okay.
Baroness Stowell of Beeston
At least we are not going to be subject to an inquiry by Ofcom.
The effect of the amendment of the noble and learned Baroness would be that the question of how adultery and non-consummation would apply to same-sex marriages would have to be determined over time by case law. The Government believe that such an approach would leave the law uncertain in respect of divorce and nullity, and would not give people adequate protection. The noble and learned Baroness will know better than I that the definition of adultery has developed in case law over many years. In order for a definition to be determined for same-sex couples, it would have to go through a similar process. That would provide uncertainty for same-sex couples, which is not what any of us want.
The Bill provides greater clarity by confirming that only sexual intercourse with a member of the opposite sex outside marriage will constitute adultery for all couples, both opposite sex or same sex. The noble Lord, Lord Alli, rightly said that the Government had taken the approach, in designing all parts of the Bill, of trying to avoid disrupting existing marriage law as far as possible. This provision confirms that the current case law definition of adultery applies to the marriages of same-sex couples. I make it clear that at the moment, if a married man has an affair with another man, his wife would not be able to divorce him on the grounds of adultery. However, she would be able to cite unreasonable behaviour, so she would not be denied the right to divorce; only the grounds that she relied on would be different.
Equally, for same-sex married couples, sexual activity with a member of the same sex will support an application for divorce, since it will be open to someone in a same-sex marriage to cite unreasonable behaviour. This will not mean that same-sex couples have any reduced right to divorce or will suffer any delay in applying for it, because the same procedures apply to divorces on the grounds of adultery and those on the grounds of unreasonable behaviour. If a woman in a same-sex marriage has an affair with a man, her wife would still be able to apply for a divorce on the grounds of adultery. If she has sex with another woman outside the marriage, her wife could not seek a divorce on grounds of adultery but would do so on the grounds of unreasonable behaviour. That is what currently happens. As we know, it is not that unusual for someone in an opposite-sex marriage to have an affair outside the marriage with somebody of the same sex.
The noble and learned Baroness, Lady Butler-Sloss, and the right reverend Prelate argued that these provisions in the Bill mean that there is no requirement for same-sex married couples to be faithful, because adultery is not available to them in the way I have just talked about. The right reverend Prelate used a particular word that I cannot remember; I think he talked about “standards”. I think it is worth making the point that we need to avoid assuming that in order to be faithful people need to know they can divorce someone on the grounds of adultery. It is not the possibility of divorcing someone on the grounds of adultery that leads someone to be faithful to the person they are in a relationship with. What makes people faithful is far more complicated than that. The issues around fidelity, the reasons why people stay together, and their trust and commitment to each other are very complex. Even so, in terms of the law, marriage does not require the fidelity of couples. It is open to each couple to decide for themselves on the importance of fidelity within their own relationship. The law does not lay down requirements about the consensual sexual activity which should or should not take place for married couples.
Similarly, the Government believe that not applying provisions on non-consummation as a ground for the nullity of the marriage of a same-sex couple is the correct approach. There has been a lot of discussion of procreation, not so much tonight but certainly at earlier stages of our debates. Historically, consummation was linked to procreation, although now in law it is not. I want to make it clear that there is no requirement in law that a couple should consummate their marriage in order for it to be a valid marriage. We do not consider that there is a need to extend non-consummation as a ground for annulment to same-sex marriage. This also ensures that the law is clear for same-sex couples, as I already noted.
I think the point made by the noble Lord, Lord Alli, in response to the proposal of the noble and learned Baroness, Lady Butler-Sloss, to transfer the definition of penetration from that of an opposite-sex couple to that of a same-sex couple, but focusing only on men, serves to demonstrate that we have not addressed what penetration means for a lesbian couple. That is why, as I say, it would take a long time to develop this in case law in a meaningful way. The Government do not believe that the Bill’s approach to adultery and non-consummation for same-sex couples represents an inequality with opposite-sex couples. We believe the Bill makes appropriate provision for same-sex couples, while ensuring that the law for opposite-sex couples remains exactly as it is now.
However, I thank the noble and learned Baroness for bringing forward her amendments because, as she rightly says, this is a very sensitive topic. It is not one that people find easy to debate. I never thought I would stand at a Dispatch Box talking about these kinds of things. She serves the Committee well by raising this matter, but I hope I have been able at least to clarify that by not changing what now exists in law we are not actually creating an inequality. I think the desire of same-sex couples to have a successful relationship through marriage does not require the possibility of adultery for them to remain faithful to each other, if of course that is what they intended when they first married. I hope the noble and learned Baroness feels able to withdraw her amendments.
Baroness Butler-Sloss
I have perhaps found this topic rather easier to talk about, having been a divorce judge and indeed a judge who tried a lot of nullity suits. However, it is a sensitive subject, and I am very grateful to the Minister for the way in which she dealt with it, and to the noble Lord, Lord Alli. I said earlier that I recognised that looking at the issue of penetration was taking only it half way. I also threw out the potential olive branch of saying that you could call it something similar to adultery.
I remind noble Lords that for several thousand years adultery has been the opposite side of the coin to faithfulness for married couples. It has not been an issue only for Jews, Muslims and Christians; it has gone far wider than that. Those who do not believe in any religion do none the less see the importance of making a promise—it has to be a promise, whether explicit or implicit—that, if you marry, whatever your stable relationship is, during that period when it matters, you remain faithful to one another. After nearly 55 years of marriage, I see that as extremely important. However, I see it as equally important for the stable relationships of which I am well aware among those who—
Baroness Stowell of Beeston
I hope the noble and learned Baroness will forgive me for intervening very briefly. I absolutely understand the point that she makes and I do not want to give the impression that I do not take the issue of faithfulness seriously because I certainly do. However, it is important for me to make clear for the record that in the context of a civil ceremony it will be possible for those getting married to make promises and commitments in the form of words that they choose. We are not suggesting that we do not think this issue is important. However, we do not think that it is necessary to make provision for adultery in this measure. This is not about denying the importance of fidelity, which is clearly important when people first come together.
Baroness Butler-Sloss
I hear what the Minister says and of course I accept that she is saying on behalf of the Government that faithfulness in marriage of whichever sort is important. I do not for a moment disagree with that. However, there are two sides to the coin—faithfulness and adultery. As I say, for several thousand years adultery has been a ground for setting aside a partnership because of the way that one partner has behaved. To call it unreasonable behaviour, or cruelty in the old days, is not the same thing. I am sad that the Government are not prepared to tackle this because something akin to adultery could be achieved to put everybody who is involved in marriage in exactly the same position. Currently, with the Civil Partnership Act, and now this Marriage Bill going through the House, they will be in different positions. You cannot get away from that. I find that very sad, as, I know, does the right reverend Prelate. I will reflect very carefully on what the noble Baroness has said and, indeed, what the noble Baroness, Lady Thornton, has said about this, but I remain very unhappy about it. However, at this moment, I beg leave to withdraw the amendment.