Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill
Friday 1st February 2019
(5 years, 9 months ago)
Lords ChamberCivil Partnerships, Marriages and Deaths (Registration Etc.) Act 2019 View all Civil Partnerships, Marriages and Deaths (Registration Etc.) Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 140-I(Rev) Revised marshalled list for Committee (PDF) - (31 Jan 2019)
“Extension of civil partnership
(1) The Secretary of State may, by regulations, amend the Civil Partnership Act 2004 so that two persons who are not of the same sex are eligible to form a civil partnership in England and Wales (provided that they would be eligible to do so apart from the question of sex).(2) The Secretary of State must exercise that power so that such regulations are in force no later than 31 December 2019.(3) The Secretary of State may, by regulations, make any other provision that appears to the Secretary of State to be appropriate in view of the extension of eligibility to form civil partnerships in England and Wales to couples who are not of the same sex.(4) Regulations under subsection (3) may, in particular, make provision about— (a) parenthood and parental responsibility of parties to a civil partnership;(b) the application by a party to a civil partnership for a gender recognition certificate under the Gender Recognition Act 2004, or the issuing of such a certificate, and the consequences of that application or issuing for the civil partnership;(c) the financial consequences of civil partnership (for example, in relation to pensions or social security);(d) the treatment under the law of England and Wales as civil partnerships of similar relationships formed outside the United Kingdom.(5) The Secretary of State may, by regulations, make provision—(a) for and in connection with a right to convert a marriage into a civil partnership (including any provision equivalent or similar to that contained in or authorised by section 9 of the Marriage (Same Sex Couples) Act 2013);(b) restricting or bringing to an end—(i) the right to convert a civil partnership into a marriage conferred by section 9(1) or (2) of the Marriage (Same Sex Couples) Act 2013 (including as it applies or would apply by virtue of regulations under this section);(ii) any right conferred under paragraph (a).(6) Before making regulations under subsection (5), the Secretary of State must consult such persons as the Secretary of State considers appropriate.(7) The Secretary of State may, by regulations, make any provision that the Secretary of State considers appropriate in order to protect the ability to act in accordance with religious belief in relation to civil partnership (including the conversion of civil partnership into marriage and vice versa).(8) Regulations under subsection (3), (5) or (7) may include provision amending, repealing or revoking primary legislation passed or made before the end of the Session in which this Act is passed.(9) In this section—(a) reference to forming a civil partnership in England and Wales includes reference to registering as civil partners outside the United Kingdom by virtue of eligibility to do so in England and Wales (in accordance with section 210(2)(b) or 211(2)(b) of the Civil Partnership Act 2004);(b) “primary legislation” means—(i) an Act of Parliament;(ii) an Act or Measure of the National Assembly for Wales;(iii) a Measure of the Church Assembly or of the General Synod of the Church of England.”
Baroness Hodgson of Abinger (Con)
My Lords, as I indicated at Second Reading, Amendments 1, 4, 5, 6 and 7, which stand in my name, seek to replace the current Clause 2 and make consequential changes to the drafting of the Bill. In replacing Clause 2, I must highlight that we do not wish to change the intention of the clause. Rather, we want to clarify the power in order to use the Bill to deliver a comprehensive and effective opposite-sex civil partnerships regime.
Following the introduction of same-sex marriage in 2013, we were left with a situation in which same-sex couples could either marry or form a civil partnership but opposite-sex couples could only marry. I outlined at Second Reading the various reasons why a couple may desire to choose a civil partnership over a marriage. Suffice to say that many people who would like the protections and provisions that a formalised relationship can bring do not feel that marriage is for them.
When Tim Loughton and I introduced this Bill in the other place and in this House respectively, we did so with the intention that it would be used to equalise access to civil partnerships between same-sex and other couples, and thus put right the post-same-sex marriage unfairness to which I have just referred. We were delighted in October last year when the Prime Minister announced that it was now the Government’s intention to extend civil partnerships to opposite-sex couples.
Subsequently, Tim Loughton successfully moved an amendment on Report in the other place that stands as the current Clause 2 of the Bill. The intention of the current Clause 2 is to enable the Secretary of State by regulations to equalise access to civil partnerships between same-sex and opposite-sex couples. We accept that the current clause is not adequately drafted. The Minister outlined her concerns about the drafting during her response on Report, highlighting the fact that the clause would not enable us to deliver a robust opposite-sex civil partnerships regime and the lack of detail in the regulation-making power.
I have been working closely with my noble friend the Minister and Tim Loughton on a more comprehensive approach to the provision, and I am pleased to be able to table Amendments 1, 4, 5, 6 and 7 today, which effectively replace Clause 2.
Subsection (1) of the new clause would enable the Secretary of State to amend by regulation the eligibility criteria of the Civil Partnership Act 2004 in order that two people who are not of the same sex are able to form a civil partnership.
Subsection (2) would establish the date by which the regulations must come into force as 31 December 2019. This would ensure that a comprehensive opposite-sex civil partnerships regime came into force at the earliest opportunity, and certainly before the end of the year. I know the Minister will also be reiterating that, all things being equal, that is the Government’s intention. This will be welcome news to many couples for whom getting a civil partnership is a matter of urgency for various reasons.
Baroness Barker (LD)
My Lords, I thank the noble Baroness, Lady Hodgson, for struggling in today; she is clearly not on top form. I thank her very much for the comprehensive way in which she took us through the amendment. Noble Lords know that I not only support her Private Member’s Bill but I wish to see it enacted as quickly as possible, because there are a great many couples in this country for whom this is very important legislation.
However, as I have already flagged to the noble Baroness in preparation for today, I have one or two misgivings about aspects of the Bill and her amendment. It is important, however well disposed one is to a piece of legislation, that it is subject to proper scrutiny. It is the noble Baroness’s misfortune that her Bill comes in the middle of a slew of government Bills taking Henry VIII powers to realms previously unimagined.
The noble Baroness will have seen the report issued on 29 January from the Delegated Powers and Regulatory Reform Committee, and the Constitution Committee’s report published yesterday. They are both very forthright in their views on the Henry VIII powers in the Bill and the scope for Ministers to make regulations. I am indebted to Mark D’Arcy of the BBC, who described the Constitution Committee of your Lordships’ House as a body in which the raising of an eyebrow was considered a severe criticism—by this stage, I think it is pushing chairs through windows. The committee is very sceptical about the scope, extent and reason for the Henry VIII powers in the Bill.
I will come on to the second area when we get to Amendment 3, but I wish simply to address proposed new subsection (3), which would be introduced by Amendment 1, which the noble Baroness just moved. It states:
“The Secretary of State may, by regulations, make any other provision that appears to the Secretary of State to be appropriate in view of the extension of eligibility to form civil partnerships in England and Wales to couples who are not of the same sex”.
That is very widely drawn. I have one particular concern, which I raised on previous occasions.
As the noble Baroness knows, I do not believe it is in any way appropriate for civil partnerships to be extended to siblings. It seems it is possible to read this subsection as enabling siblings—a brother and sister—to form a civil partnership for the reasons the noble Lord, Lord Lexden, has explained concerning property and inheritance. I believe that is very deeply wrong, because I do not believe that a body of legislation devised for consenting adults to form voluntary relationships is in any way appropriate to be applied to relationships that are consanguineous and cannot be broken. That raises the possibility of women, although it could apply to men, coming under pressure in their families to protect family property by forming a civil partnership.
Therefore, it is not just important but necessary that we look again at the drafting of subsection (3). Perhaps the noble Baroness can explain why she believes it to be necessary in the form it is in when she replies. If it is to go ahead, at the very least the Committee would have to be satisfied that it is not the intention that the law will apply to sibling couples and that it cannot be interpreted in that way. That is a very important reassurance, which would have to be made in the strongest of terms for me to consider allowing this to pass. That apart, and in all other respects, the noble Baroness’s amendment is helpful, and I would wish to support it.
Lord Cashman (Lab)
My Lords, I refer to my interests as recorded in the register. I too will speak to Amendment 1. I thank the noble Baroness, Lady Hodgson, for introducing her amendments. I am particularly concerned by the Delegated Powers and Regulatory Reform Committee’s report, and its reference to the Bill conferring,
“no fewer than four Henry VIII powers”.
It also refers to the contribution made by the Minister in our previous debate.
Like the noble Baroness, Lady Barker, I fully welcome the extension of civil partnerships and will do all I can to bring that about, but I am worried. The regulations have the power to do good, but also to undo the good that has been done. Proposed new subsections (1) and (2) are absolutely right because subsection (2) contains a sunset provision—a time limit on when the Secretary of State might lay regulations. However, I am concerned about proposed new subsection (3), by which the Secretary of State may, by regulations,
“make any other provision that appears to the Secretary of State to be appropriate”.
That is far too widely drawn. If we are to go down that route, I would like a time limit on when they can be implemented. Similarly, proposed new subsection (6) says:
“Before making regulations under subsection (5), the Secretary of State must consult such persons as the Secretary of State considers appropriate”.
That seems wholly wrong. Instead of widening consultation it could limit it. Therefore, I have concerns about that.
I will not detain the Committee much further, but I must refer to proposed new subsection (7). On all of these I look forward to the Minister’s reassurances on the use of such regulations. Excuse me—the noble Baroness, Lady Hodgson, seems to have great powers of projection; her cold seems to be catching. However, he says, taking a very deep breath, the subsection says:
“The Secretary of State may, by regulations, make any provision that the Secretary of State considers appropriate in order to protect the ability to act in accordance with religious belief in relation to civil partnership”.
The making of “any provision” is far too wide. I would like to see that qualified. Perhaps the noble Baroness, Lady Hodgson, could indicate what actions would need to be taken to protect the ability to act in accordance with religious belief, since I remain to be convinced that such a subsection is necessary.
Lord Lexden (Con)
My Lords, I say to the noble Baroness, Lady Barker—my friend in many contexts, but not in that of sibling couples and civil partnerships—that I would be pleasantly astonished if my noble friend failed to give her the reassurances she sought. It is clear that the Government have no intention of extending civil partnerships in the way I would wish. I set out at length at Second Reading the unfairness and injustice sibling couples who are committed to each other in strong, stable and platonic associations have endured for far too long because they are denied civil partnerships. I will not repeat the points I made then. I should be very interested to hear what my noble friend has to say, but I do not expect the pleasant surprise I wish for.
I have not tabled amendments to this important Bill that would cause proceedings on it to be extended. I simply say this to the Government, assuming that I am right: committed, platonic sibling couples, some of whom have shared their lives for 50 years and more, look on with astonishment and anger as a political party that ought to value the family units they have created together does nothing to relieve them from the constant anxieties they endure in the absence of joint legal rights.
Baroness D’Souza (CB)
My Lords, may I ask a very naive question? I ask the Committee’s forgiveness if this has already been answered. What happens if there were to be a civil partnership between a brother and sister—let us say the brother and sister are Jill and John—and then Jill meets Jack and decides that she wants to marry him? Can she marry Jack and thereby have a marriage and a civil partnership?
Baroness Barker
Having sat through debates on all the relevant legislation, I believe it is not possible to be simultaneously in a civil partnership and a marriage. That is not allowed under either of the laws.
Baroness Deech (CB)
My Lords, I support the noble Lord, Lord Lexden, because there is unfairness to siblings and I do not go along with the rather emotional arguments that it is somehow inappropriate to extend any form of union to them. There is no solid evidence behind that; it is simply subjective. I hope the Government will treat them fairly one day, if not today.
The Lord Bishop of Chelmsford
My Lords, perhaps I may make a very small but important point. Proposed new Clause 1(7) refers to regulations being made for civil partnerships to be converted,
“into marriage and vice versa”.
This would require quite a bit of consultation with the Church of England and, I think, with the Church in Wales.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, without in any way wishing to get involved in the difference between, on the one hand, the noble Lord, Lord Lexden, and the noble Baroness, Lady Deech, and, on the other, the noble Baroness, Lady Barker, it seems inconceivable that proposed new subsection (3) could ever be deployed to cure what the noble Lord would regard as the defect in this legislation. I point the Committee to its last few words, under which this regulation-making power applies only,
“to couples who are not of the same sex”.
If you are to give effect to sibling couples, it would be bizarre to give it to those who are sibling couples of the same sex but not of other sexes. It is perfectly obvious to me that proposed new subsection (3) could not extend to bringing in this altogether very different category of sibling couples.
Lord Collins of Highbury (Lab)
I thank the noble and learned Lord for that explanation, which gives me a bit of reassurance. I hope that the Minister will do the same. The fact is that two committee reports have raised serious concerns about the powers that are being extended or given in the Bill. I make it clear from the outset that we support the passing of the Bill and its objectives. We would not want to do anything to hinder it but, on the other hand, we want the Minister to be clear about the precise nature of these powers—about how they will be used and their scope.
The noble and learned Lord has been clear about proposed new subsection (3). I hope that the Minister and the noble Baroness, Lady Hodgson, will be able to respond clearly in relation to my noble friend’s question about proposed new subsection (7). Precisely what is its purpose? I suppose the right reverend Prelate alluded to this, in that he referred to the implications for couples who have been married in church. I suppose that is what he is concerned about. There are obviously many people who have married in church and later divorced, then married again—maybe not in a church, but that has extended even to members of the Royal Family and, potentially, a future head of the Church of England. That is not for me to query. However, this really is important because, in scrutinising legislation, we have to be clear about the sort of precedent we are setting.
My own view, expressed partly by the Delegated Powers Committee, is that when the Supreme Court decision was made the Government should have come in with a Bill themselves. Why are we not conducting primary legislation properly and scrutinising it properly? We have here an omnibus Bill to which, as I say, I do not object; we certainly want to see it passed, without delay. People who want civil partnerships should be able to have them as soon as practicable and we will support that. However, it is incumbent on the Minister to answer these very important questions about scope.
The noble Baroness, Lady Hodgson, referred to the conversion period. I have experienced that myself, not least because I converted my civil partnership into a marriage and I wanted clear assurances about the timeframe for that when the 2013 Bill was going through. I got assurances but it still took a bit longer than I thought it would, so I hope the Minister will tell us precisely what the window of opportunity that has been alluded to is. What is the Government’s view about this period in which people may be able to convert their marriages into civil partnerships? What timeframe are we looking at and how will people know about this? If there is a window of opportunity that will close, it is really important that the Government communicate that effectively. I hope the Minister and the noble Baroness, Lady Hodgson, will be able to respond to those points.
Lord Berkeley of Knighton (CB)
My Lords, I am grateful to my noble and learned friend Lord Brown for his reassurance on the point that was raised. The reason I am grateful is that when I attended and listened to the debate in which the noble Lord, Lord Lexden, made a very moving speech—I would love to see some form of protection for siblings of the kind that he mentioned—I felt that the noble Baroness, Lady Barker, won the day with her comments and reservations. It is reassuring to have this advice from the noble and learned Lord.
Lord Cashman
My Lords, in responding, perhaps the Minister might refer to the Delegated Powers and Regulatory Reform Committee’s report, not least, if she has it in front of her, paragraph 27. It deals with the committee having stated that it was,
“puzzled that the Memorandum fails to mention that Ministers already have power to remedy by secondary legislation the ECHR-incompatible provisions in the 2004 Act”.
The Minister might want to refer to that and, equally, to paragraph 31, regarding the concerns raised by that committee and its recommendations.
Lord Collins of Highbury
May I beg permission to intervene quickly? I forgot to mention one point that arose from civil partnerships being converted into same-sex marriages. It is the issue of recognition by jurisdictions in other countries, particularly countries such as France and Germany that do not like the idea of retrospective legislation. Having raised this in the Chamber on a number of occasions, I know that it was a substantial issue. I think it has been resolved in France by a decision of the National Assembly, but can the Minister pick up that point, so that people are properly advised of what all the implications are if they convert?
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I want to take this opportunity to commend my noble friend Lady Hodgson of Abinger, who is quite a trooper when it comes to pressing on regardless. I wish her well and hope that she has good rest over the weekend, having fought the good fight today to bring further equality with civil partnerships for opposite-sex couples.
I fully support my noble friend’s amendments. As she said, the Government had some concerns about the drafting of Clause 2, but not the intentions behind it. I am pleased that the drafting of this amendment has been improved in a way that is satisfactory both to the Bill’s sponsors and to the Government. I hope that we have arrived at an amendment that works for everyone and is able to deliver a comprehensive and effective opposite-sex civil partnerships regime at the earliest opportunity.
The Government are committed to equality for all, and we were pleased last October to announce our intention to extend civil partnerships to opposite-sex couples. As my noble friend has outlined, the amendments make it possible to equalise access to civil partnerships between same-sex and other couples by amending the eligibility criteria in the Civil Partnership Act 2004 through regulations.
A couple of noble Lords mentioned that the Delegated Powers and Regulatory Reform Committee and the Constitution Committee expressed concerns about the drafting of Clause 2. I hope that our amendments go some way towards alleviating those concerns. The new clause now sets out in much greater detail how we envisage the delegated powers would be exercised, including dealing with issues such as parental responsibility, the effect of a legal change of gender, the financial consequences of a partnership and any conversion entitlements. I take the point made by the noble Baroness, Lady Barker, and the noble Lords, Lord Collins and Lord Cashman, about Henry VIII powers, but I hope that I can satisfy them at least in part. The noble Lord, Lord Cashman, is shaking his head—but perhaps when I have said what I have to say he will be happier.
The powers are needed to give opposite-sex couples equivalent rights and benefits to those enjoyed by same-sex couples. Simply changing the eligibility criteria in the Civil Partnership Act 2004 would not ensure this. Both the noble Baroness, Lady Barker, and the noble Lord, Lord Cashman—and, I think, the noble Lord, Lord Collins—were concerned about subsection (3) and the possibility of extending civil partnerships to siblings. We have no intention of using the subsection to extend civil partnerships to siblings or family members. My noble friend Lord Lexden, who lives in hope that one day we may do so, has clarified that. Subsection (1) makes it clear that the extension of eligibility applies to opposite-sex couples only, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, and, as drafted, would stand in the way of extension to siblings.
The noble Lord, Lord Cashman, asked me about other European countries—I am sorry, it was the noble Lord, Lord Collins. I do not know why I am mixing the two of them up today. Both their names begin with C. They are the dynamic duo.
Lord Cashman
It might help the Minister if she realises that the noble Lord, Lord Cashman, has rather less hair than the noble Lord, Lord Collins.
Baroness Williams of Trafford
I know. I have observed that over time—but I am still mixing the noble Lords up.
I do not know the answer the question about other European countries, so I shall write to the noble Lord before Report and place a copy of the letter in the Library.
Any regulations made in the exercise of all these powers will be subject to affirmative resolution and therefore to parliamentary debate and approval.
The noble Baroness, Lady D’Souza, asked whether one could have a civil partnership and a marriage. It is not possible to marry if you are in a civil partnership: nor is it possible to form a civil partnership if you are already married. However, it is possible to convert a civil partnership into a marriage—but the civil partnership would then end.
Lord Collins of Highbury
Having gone through the process—I am sure that the noble and learned Lord can correct me—I should clarify that what the 2013 Act provided for was retrospection. One converted one’s civil partnership into marriage. So the date of my marriage is not the date on which I converted but the date on which I entered my civil partnership—hence my question in relation to foreign countries. It had implications, particularly for those people concerned about Brexit who were married to, for example, French citizens—in my case, I happen to be married to a Spaniard. It was about recognition of that marriage being dated from the date of the civil partnership.
Baroness Williams of Trafford
I totally understand that point and I stand corrected on the technicality of what the noble Lord said on that matter—but, as I said, I will write to him on the European question.
The noble Lord, Lord Collins, asked me about conversion and religious protections—about the date et cetera. We are looking closely at a range of policy considerations, including matters relating to conversion and religious protections. We will take decisions on the nature and extent of conversion rights following the consultation to which the amendment commits us.
I will reassure noble Lords that the Government wish to extend civil partnerships to opposite-sex couples as soon as possible and are fully committed to bringing the necessary regulations into force before the end of 2019. It is a challenging timeframe, but, given the need for consultation and further parliamentary debates, it would be impossible to commit to an earlier date.
Baroness McIntosh of Hudnall (Lab)
I have been listening to the debate, but I admit that I have not paid close attention the Bill up until this point—so I may have missed something. I believe that the Minister said that the Government have no intention of extending the rights that the Bill will provide to sibling couples. Having listened to the noble and learned Lord, Lord Brown, and to the Minister, I am not clear whether the amendment would prevent any future Government exercising that power. I do not doubt the Minister’s bona fides, nor those of any of her current colleagues, but I am a little concerned about those who might come after.
Baroness Williams of Trafford
As I understand it, the Bill is dedicated to this cohort of people only. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, might wish to correct me.
Lord Brown of Eaton-under-Heywood
Nothing in the Bill prevents the Government or anybody else hereafter seeking to introduce fresh legislation to avail sibling couples. All I am suggesting is that, under the order-making power here conferred by subsection (3), that power is not granted.
Lord Lexden
Is my noble friend yet in position to give any details about the consultation exercise announced in October? She will remember that I raised this at Second Reading. Have there been any developments since then?
Baroness Williams of Trafford
I will keep noble Lords apprised of the exact consultation process and the timings thereof in due course. I fully support the amendments.
“Removal of exemption for clergy under the Marriage (Same Sex Couples) Act 2013
(1) The Secretary of State must make regulations to amend the Marriage (Same Sex Couples) Act 2013 to remove the exemption for members of the clergy to solemnize the marriage of a same sex couple.(2) Regulations under this section must be in force by the end of the period of 6 months beginning with the day on which this Act is passed.”
Lord Faulkner of Worcester (Lab)
My Lords, first, I apologise to the noble Baroness and to the Committee for being unable to speak at Second Reading, although I was present for a large part of the debate. My amendment is very simple and I hope it will be seen by the Committee as an attempt to build on the success of the Marriage (Same Sex Couples) Act 2013, which many of us in this Chamber view as one of the great successes of the coalition Government. The noble Baroness, Lady Stowell, who took it through on behalf of the Government, won huge plaudits at the time for the way she did that and for the way in which she won over some sceptical Members of the House as the Bill went forward. There was, however, a major flaw in that Act. It included what in today’s parlance would be called a backstop, but I remember that at the time it was called a “triple lock”. This effectively ruled the Church of England out of the Bill’s provisions. It continued the ban on same-sex couples marrying in Church of England churches.
I took advice this morning from the Public Bill Office, to which I express my deep gratitude, as to whether it would be possible to propose a simple amendment to the Bill to effectively change that so that, at some point in the future—I look at the right reverend Prelate, because I think that it will be in his hands and the hands of members of the Church of England—there will be an opportunity to say that, because the Marriage (Same Sex Couples) Act has been such an unqualified success and is already allowing thousands of same-sex couples to enjoy the opportunity to be married and live together, it should be possible for the Church of England to follow the lead set by the Anglican Churches in Scotland, the United States, Canada and other countries and permit same-sex couples to marry in church. The amendment provides the opportunity for that debate, and I hope very much that the Committee will look sympathetically on what I am proposing. I beg to move.
Lord Cashman
My Lords, I am pleased to add my name to this amendment and I echo the words of my noble friend. It is vital to remember that this change will not compel the Church of England to solemnise same-sex marriage. Instead, it simply means that if the Church were to change its position at any time, as some of us hope it will, and decide to authorise its clergy to solemnise same-sex marriage, it would not have to appeal to Parliament to change the law to allow it to do so. It rightly places this decision in the hands of the religious institution rather than Parliament. I have to reflect at this point that other religions are not so prohibited and are allowed to make their decisions. As a born-again atheist—although one right reverend Prelate informed me that I was not a born-again atheist but probably a “recovering Catholic”—I go to great lengths to defend the rights of religion and belief, because the basis upon which any civilised society is formed is defence of the rights of the other, even if the other is in complete opposition to you.
I have witnessed, in this country and around the world, how religious belief has been used to deny people basic equality—equality of rights, civil rights. I want us to come to a time when that history is far, far behind us. I witness how religion and personal, private religious belief is still being extended into the public and political domain to deny others basic human rights. I have to ask myself and imagine what would have happened if, instead of my wonderful civil partnership with the late Paul Cottingham, we had wanted to marry in the Church of England. I would have faced discrimination, as people of faith in the so-called LGBT, lesbian, gay, bisexual and trans community, often do, because the views of religious people are used to deny that group and other groups equality, as I said. But what about when those people of faith and of belief are discriminated against and denied their place within their own faith and belief community? It makes no sense to me whatever.
Neither does the use of religious principle, selectively implemented to justify such discrimination, make sense. I remember being mentored, before a television debate, by the late Bishop of Bath and Wells, Jim Thompson. He schooled me rather brilliantly and said, “When they use the Levitical code, remind them how the modern Church has dissociated itself from strands of the Levitical code, particularly in relation to women, people with disabilities, the eating of pork and shellfish et cetera”. When we use religious principle selectively, I would argue that we undermine those principles.
Therefore, without wishing to preach—dare an atheist do that?—I look to those progressives within religious institutions, not only in this country but across the world, and the incredible work that they are undertaking within their institutions and within those religious bodies to move forward. We need to do everything to support them. I believe that this amendment goes along that route. It is not about telling them what they should do, but telling the Government that they should remove the obstruction to a religious institution, in this instance the Church of England, if it so decides, going along the route to solemnise same-sex marriage, and thereby welcome into the body of that Church people regardless of whom they wish to love consensually.
Lord Scriven (LD)
My Lords, I want to follow the noble Lord, Lord Cashman, because I have experience of this. Let us be clear about the prejudice of not being able to be married in the Church of England. I married just over 16 months ago. I and my husband, like every other couple, went into this with a sense of enjoyment and excitement, wishing to reaffirm our love of 23 years in the eyes not just of society but also, because of David’s view on religion, of the Church. We were denied. The law of this country denied us that right. We were not equal in the eyes of the law. So when we talk about same-sex marriage, it is not equal in law at the moment because of the provision concerning the Church. How do you think that makes me feel? We are not talking here about an abstract concept; we are talking about humans. It made me feel, in my country, not equal, not worthy of the Church rejoicing in my love, not worthy of being born in the eyes of God and being seen as equal.
The powerful nature of that prejudice is deep. It has an effect on human individuals beyond just feeling that an institution cannot marry them. It devalues the very love that I, my husband and others have. As the noble Lord, Lord Cashman, said, this amendment does not order the Church to accept me. It puts down in legislation the provision that if the Church so decides, as faith evolves—if it understands that the love between me and my husband, that love in all same-sex marriages, is equal to that of any other—it can bring my marriage and others into its arms.
It is for that reason that I ask noble Lords to support this, because it has a profoundly human effect. I hope that the Church welcomes this with open arms, although I understand that for some—not for all—there may be some theological reason why this cannot be done at the moment. As debates go on within the synod and the Church, this amendment gives the provision to do at some later date what other churches have done—to accept me, my husband and other same-sex couples as equal. If not, the prejudice that we have received will continue to be hurtful and enshrined in law.
Baroness Barker
My Lords, I want to ask a question of the noble Lord, Lord Faulkner of Worcester, who was precise in referring to the Church of England. My understanding is that the same provisions stand for the Church in Wales as well. They were included under the same legislation, so I wanted to make sure that was right.
I will raise one other matter. The default position in the way the same-sex couples legislation was written was to defer always to the wishes of the Church, so much so that the provisions for same-sex marriage state that there must be no religious content whatever in the ceremony. For some of us, that is not a problem; we realise that we are estranged from the Church. For some people, as my noble friend has powerfully said, it is a deeply hurtful thing.
I will give two examples. A friend of mine of the Jewish faith could not have a chuppah—a canopy—or the breaking of a glass, because that is deemed to be a religious ceremony. In his community, it has a religious basis, but is also a cultural practice. Speaking for myself, I was taken aback on the day of my marriage—wonderfully happy it was, after 29 years—to be required to say what music we were going to have, because we were not allowed any music that was deemed to be religious. The effect of this protection for the Church has quite extensive and deeply hurtful ramifications, as my noble friend says. The noble Lord, Lord Faulkner, may not win today, but I thank him for raising again a very deep injustice.
The Lord Bishop of Chelmsford
My Lords, I will first make it clear, lest it be misunderstood, that the Church of England seeks to welcome all people, including LGBTI+ people, including those in civil partnerships and same-sex marriages. The reason we are having this discussion is that there are questions about how this welcome can be expressed, but I deeply regret a situation where anyone, because of their sexuality, feels excluded, alienated or hurt in the way that I know some are.
As I shall go on to explain, the Church of England is at the moment in the middle of a process which is examining how we give expression to this welcome. I hope noble Lords will understand my comments in this context, because I still regret that this amendment has been tabled. It introduces a discordant note into your Lordships’ consideration of a Bill which is otherwise uncontentious and likely to receive clear support. Moreover, an exemption from one piece of legislation can challenge inclusion in another. The Marriage (Same Sex Couples) Act 2013 seeks to strike a balance between the right of individuals to marry a person of the same sex, and the rights of churches and other religious bodies—and of their ministers—to act in a way consistent with their religious beliefs. Nobody is prevented from entering into marriage with a person of the same sex, but no religious body or minister of religion is compelled to solemnise such a marriage.
In its second report on the then Marriage (Same Sex) Couples Bill, the Joint Committee on Human Rights said that religious liberty, as granted under Article 9 of the European Convention on Human Rights is,
“a collective as well as individual right. Religious organisations have the right to determine and administer their”,
doctrinal and,
“own internal religious affairs without interference from the state. The European Court of Human Rights has held that the autonomy of religious organisations is ‘indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 of the Convention affords’”.
The Joint Committee went on to say that the Government have an obligation to protect the rights of religious organisations of freedom of thought, conscience and religion. It concluded that this was a justification for the provisions now contained in the 2013 Act, which provides for religious organisations to decide whether or not to conduct same-sex marriage.
The 2013 Act treats the Church of England and—the noble Baroness is right—the Church in Wales differently from other churches and religious organisations. Nevertheless, as the Government made clear in 2013 and as the Joint Committee on Human Rights accepted, both Churches are free to decide whether to solemnise same-sex marriages. Any such decision would be implemented through the particular legislative processes rather than through the opt-in mechanism provided in the 2013 Act that applies to other religious organisations. However, the Joint Committee concluded that this difference in treatment was justified because of the particular legal position of the Church of England and the Church in Wales—this is the crucial point—whose clergy have a duty under common law to marry parishioners. The 2013 Act accordingly contains specific provision so that the common-law duty of the clergy is not extended to same-sex marriages. As I understand it, that appears to be the main target of the amendment.
I accept—of course I do—that many noble Lords deeply regret the Church of England’s current position on the marriage of same-sex couples. However, that position is based on the doctrine of the Church of England set out in canon law—which in turn forms part of the law of England—and in the Book of Common Prayer. However, the Church of England is currently engaged in what is called the Living in Love and Faith project, which is driven by a desire to learn how relationships, marriage and sexuality fit within the bigger picture of humanity, made in the image of God and redeemed by Christ. It is no secret that there are differing, strongly held views within the Church of England on these questions—I am putting it mildly. We recognise that they are vital matters which affect the well-being of individuals and communities, but we are in the middle of this process and we are waiting to see what will emerge.
Were the Church of England’s doctrine that marriage is between one man and one woman to be changed, that could be achieved only by specific ecclesiastical legislation, passed by the General Synod and then by Parliament. This amendment, which I am pleased to hear is not intended to compel the Church—I thank noble Lords for making that point—would not remove the need for that legislative process to happen, so I believe it would only make matters more difficult for the Church, not easier. Even for those within the Church who want to see change, this is not the way to help that. Instead, by requiring the removal of provisions from the 2013 Act, it will put marriage legislation at odds with ecclesiastical law, and it is impossible to know how the courts would resolve that situation. But, more significantly, it would unbalance the 2013 Act so that it ceased to respect the right to freedom of thought, conscience and religion. I therefore hope the noble Lord will not press this amendment.
Lord Cashman
My Lords, before the right reverend Prelate sits down, I would like his reaction to the fact that what is proposed is not at odds with—I forgot the phrase he used—religious law. It does not compel the Church of England to do anything but rather removes the legislative barrier from the Church progressing down the route if it so chooses to solemnise. The right reverend Prelate says that he regrets that we are bringing this amendment forward; I also regret that we have to bring forward an amendment that addresses such basic inequalities in the second decade of the 21st century.
I would welcome the right reverend Prelate’s response to some research carried out by the Stonewall Group—I declare an interest as the founding chair and co-founder of Stonewall—which found that:
“A third of lesbian, gay and bisexual people of faith … aren’t open with anyone in the faith community about their sexual orientation … One in four trans people of faith (25 per cent) aren’t open about their gender identity in their faith community … Only two in five LGBT people of faith … think their faith community is welcoming of lesbian, gay and bi people”,
and:
“Just one in four LGBT people of faith … think their faith community is welcoming of trans people”.
Are those levels of perceived hostility and discrimination acceptable, and does the right reverend Prelate agree with me that the Church, by completing its internal discussions on this important issue, could send a very important signal that everyone—people who believe in the same beliefs and the same religion—is welcome within the Church and that there is no prohibition to them being a full and fully partaking member of that community?
The Lord Bishop of Chelmsford
I had sat down, but if I may, I shall respond briefly. I think the noble Lord’s question goes rather beyond what is proposed here, but I want him to know that the Church of England works closely with Stonewall to address many of the issues he identified, which I am aware of and very much hope that the Church of England will address. However, I stand by what I said: I do not believe that the amendment will help in the process that the Church of England is part of, although I understand why it has been proposed.
Lord Elton (Con)
My Lords, I came as a spectator, but I am fascinated by what we are being asked to do. I need to be a little clearer on the mechanics. Not being familiar with the legislation, but listening to the right reverend Prelate and others, it appears to me that if the Act of 2013 did not exist, the clergy would be under a compulsion to marry against their principles. Surely the effect of the amendment, the exemption being removed, would be to place them under compulsion. I ask because it is an important difference whether it would be imposed automatically or whether the Church will have time to adjust to circumstances.
The Lord Bishop of Chelmsford
I was pleased to hear how it was being put forward; that is certainly not how those in the legal department of the Church of England have read it. I do not feel legally qualified to make further comment, but it is clearly a concern within the Church, and I think I am right to say that it would be a concern even for those who would like change, because it would introduce compulsion. That would be very unhelpful, particularly as the Church of England is in the middle of a process of discussion of the issues.
Lord Cashman
My Lords, perhaps I may be able to help the noble Lord, Lord Elton. As it stands, as I said earlier, the Marriage (Same-Sex Couples) Act 2013 does not allow for clergy of the Church of England to solemnise, but it makes provision for other religions, including Quakers and Judaism, to opt in. There is no obligation; there is an opportunity to opt in to solemnise. They are not obliged. If as individuals or a group they do not wish to solemnise, there is no obligation to do so.
Lord Collins of Highbury
My Lords, I have added my name to this amendment and support it whole- heartedly, and I do not believe that we are striking a discordant note. I think the opposite. We are asking a question to which people are seeking an answer. I do not profess for one moment that we necessarily have it right, but it is really important that we have this debate, especially as we are now talking about marriage being dissolved so that people can go into another form of relationship. The nature of relationships is changing, and the state is catching up.
I say from the outset that no politician or parliament should dictate to a religious organisation what it should or should not do. In fact, that is precisely why we tabled the amendment. In the 2013 Act, we had what people have called the triple or quadruple lock. People said that it was unacceptable. The debates on the 2013 Act are fresh in my mind and some of them I found personally difficult, but I recognise that the Church of England in particular has been on a journey, travelling quite fast and, in my opinion, in the right direction. I also remember the debates on the Civil Partnership Act, when the Church of England opposed it. I know that the most reverend Primate has apologised for some of the positions that the Church took when that Act was proposed, referring to those debates.
I do not know whether the Church has been issuing information about the amendment but, for the first time in my life, I have received emails from local vicars across the country expressing disquiet—who do I think I am forcing this abominable Act on the Church? As I said, I do not want to force anything on any religious institution, but I recognise that people of faith are gay. That is not restricted to lay people, it embraces everyone.
On Second Reading, I deliberately quoted the most reverend Primate in my speech. I think it is worth repeating because it goes to the heart of the debate on the Bill. I said:
“In his recent book … the most reverend Primate … tells us that the Bible’s teaching on marriage is profoundly positive but, he notes, the social reality in modern Britain is radically changed today, with cohabiting, blended, single-parent and same-sex configurations. He continues: ‘If fluidity of relationships is the reality of our society, then this should be our starting point for building values, because all values must connect with where people are and not where other people might like them to be’”.
That is the question for the Church of England. If it does not catch up, people will go somewhere else. My noble friend would certainly welcome many such people, keen for their values to be recognised, into his church. Of course, the most reverend Primate talked about those values. As I said at Second Reading:
“According to the most reverend Primate himself, ‘in Christian understanding, the core concepts of households and family include holiness, fidelity, hospitality and love above all, because God is holy, faithful, welcoming and overflowing in love, and any human institution that reflects these virtues also in some way reflects God’”.—[Official Report, 18/1/19; col. 427.]
When we adopt the Bill, I am sure that civil partners will reflect those values; many people in same-sex marriages certainly hold those values, as we have heard. If the Church does not catch up with them, they will go somewhere else.
I recognise that the Church is on a difficult journey because of the strong beliefs referred to by the right reverend Prelate. Clearly, there are divisions there, as there are in our society, but I know that the journey we have been on since the introduction of civil partnership has transformed our society. I remember the debates on the same-sex marriage Bill. People said that it would be a disaster, that society would collapse and that the situation would be terrible. Well, that has not happened. People recognise the value of those relationships in making a much stronger society where we can love in communities.
Instead of setting a discordant note, I hope that asking the question today will help not only the Church of England but other religious institutions to catch up with the reality: people of the same sex can love each other in a very rewarding way.
Baroness Williams of Trafford
My Lords, I thank all noble Lords who contributed to the debate. In particular, I thank the right reverend Prelate the Bishop of Chelmsford for his remarks, which give everyone hope in the context of today’s debate. I recognise the depth of feeling among Members of both Houses and people around Parliament, but I am afraid that I must resist the amendment in the names of the noble Lords, Lord Faulkner of Worcester and Lord Collins of Highbury.
As noble Lords have said, the amendment seeks to amend the Marriage (Same Sex Couples) Act 2013 to remove the exemption for members of the clergy from solemnising the marriage of same-sex couples. The 2013 Act provided an opt-in system so that same-sex marriages can occur only on religious premises, or under religious rites, where the governing religious body has expressly consented. There is no requirement to give such consent.
We have always been clear that no religious organisation should be forced to marry same-sex couples—I think the noble Lords made that clear—or to host civil partnerships. A number of religious organisations have chosen to opt in by providing blessings and, again, the right reverend Prelate the Bishop of Chelmsford gives us hope when he talks about the process of living in love and faith that the Church of England is currently going through. We hope that more organisations will do that in the future, but it is right that it should remain a decision for them. It is not for the Government to mandate this through regulations.
The noble Lord, Lord Collins of Highbury, raised this issue at Second Reading. He urged the Church of England to permit same-sex couples to have a blessing of their marriage. In response, the right reverend Prelate the Bishop of St Albans said:
“I will resist the temptation to widen the debate beyond the scope of the Bill … I do so because I want us to focus absolutely on what we are trying to deliver”.—[Official Report, 18/1/19; col. 432.]
That is a good message for today but it does not preclude our having other debates on the points made by the noble Lord. I do not, however, believe that they are relevant today. Indeed, the danger is that they will confuse matters if we go beyond the scope of what we are trying to do.
This is a multifaceted Private Member’s Bill and we should keep it as simple as possible. I hope the noble Lord will withdraw his amendment.
Lord Cashman
My Lords, I should like to make two points. First, my name is also attached to the amendment. Secondly, inequality, by its very nature, is multifaceted. We should not back away from the challenge that it presents.
Baroness Williams of Trafford
I apologise to the noble Lord; I completely forgot to mention him.
Baroness Hodgson of Abinger
My Lords, I am grateful to the Minister for clarifying these matters. It only remains for me to say in response to the noble Lords, Lord Faulkner of Worcester, Lord Collins of Highbury and Lord Cashman, that the wider debate about the nature of marriage is going on right across society, particularly in the Church of England, the Church in Wales and in other churches, and it will continue. I am grateful to noble Lords for stating their views, but they are not the focus of the Bill before us, so I hope we can give it the green light and the go-ahead to move forward.
Lord Faulkner of Worcester
My Lords, I am deeply grateful to all noble Lords who have taken part in this debate and to the right reverend Prelate, who clearly thought a great deal about what he was going to say to us. It has been a remarkable debate. This is the first time since the Marriage (Same Sex Couples) Act 2013 was passed, more than five years ago, that we have had an opportunity to talk about the attitude of the Church of England—and the Church in Wales, as the noble Baroness, Lady Barker, pointed out—to same-sex marriage in church. I make no apology for raising the debate because the fact that the Church is moving—at glacial speed, I am afraid to say—on this issue is because of the climate created in this House towards the whole issue of same-sex relationships. This House set the lead in passing that legislation with such enthusiasm in 2013, and I think there is a genuine move for us to give the Church a little push in the right direction.
Of course, I am aware that the General Synod has to pass its own legislation, but I cannot see the logic in us facilitating that by passing an amendment such as this and then giving the synod the opportunity to come round to thinking about whether it wants to do it. It is not mandatory; rather it is an opportunity for the General Synod to think further.
A lot could be said about the problems that the Church of England has with sexuality, particularly the sexuality of so many of its priests and other representatives. That is not a debate for today but it is something that I know the Church of England will have to come to terms with if it is not to be seen as hypocritical on issues around sexual relationships.
However, for today, and it is for today, if the Committee agrees, I beg leave to withdraw the amendment, but I reserve the right to bring it back on Report.
Lord Hayward
“Marriage of same-sex couples in Northern Ireland
(1) The Secretary of State must make regulations to change the law relating to marriage in Northern Ireland to provide that marriage between same-sex couples is lawful.(2) Regulations under this section must be in force within 10 months of this Act being passed, subject to subsections (3), (4), (5) and (6).(3) If a Northern Ireland Executive is formed within the period of 6 months beginning with the day on which this Act is passed, a statutory instrument containing regulations under this section must be laid before the Northern Ireland Assembly.(4) Regulations contained in a statutory instrument under subsection (3) are subject to negative resolution within the meaning given by section 41(6) of the Interpretation Act (Northern Ireland) 1954.(5) If no Northern Ireland Executive is formed by the end of the period of 6 months beginning with the day on which this Act is passed, a statutory instrument containing regulations under this section must be laid before both Houses of Parliament.(6) A statutory instrument containing regulations under subsection (5) is subject to annulment in pursuance of a resolution of either House of Parliament.”
Lord Hayward (Con)
My Lords, I rise to move Amendment 3 in my name and those of the noble Lords, Lord Collins and Lord Cashman. At the start of the debate on this Bill, I did not think I would be declaring my religion or anything else, but I will choose to do so as a number of others have. I was brought up a practising Christian, and as a practising Christian I believe in the equality of all people. That is at the core of this amendment. The noble Lord, Lord Collins, the right reverend Prelate the Bishop of Chelmsford and others have referred to changes in social attitudes. It is relevant to this amendment that I make reference to DUP leader Arlene Foster’s extremely welcome move last year to attend an event she previously had not. That indicates that society is moving—a matter to which I will return later. Given the issue covered by the amendment, I should also declare that I am a strong unionist and will remain so. That applies to the whole country, but I am also strongly in favour of devolution.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, I acknowledge the sensitive nature of the issues we are debating. Over my years as a Christian minister, I have found that gracious words have the power to heal and that unguarded words have the power to hurt. I do not wish to be offensive to anyone by my words, but I want to be honest in the expression of my heartfelt beliefs. I do not doubt the sincerity of others who hold a different view, but respect goes two ways. It must be given not only by those on one side of the argument but also by those on the opposite side of the argument. I trust that those who hold biblical views on marriage are treated with equal respect.
Until recent years, throughout the United Kingdom marriage was recognised to be a lifelong and exclusive union between one man and one woman. It was generally accepted that marriage was instituted by God in the beginning and was God’s gift to the whole of society. However, we are faced with a clause which has been commended to the Committee today. I want to draw attention to what I believe is a fundamental consequence to which this Committee needs to give serious consideration.
During the recent debate on leaving the European Union, it was stressed over and over again by Members across the House that the imperative was not to undermine the Belfast agreement and that there were grave dangers in so doing. Indeed, some Members of your Lordships’ House warned of the dangers to the hard-won peace in Northern Ireland and of the possibility of a return to violence.
Under the devolution settlement and the Belfast agreement, it is clear that legislating for same-sex marriage in Northern Ireland is the responsibility of the Northern Ireland Assembly. Indeed, the Belfast agreement states:
“The Assembly will exercise full legislative and executive authority … within the responsibility”,
devolved to it. It is acknowledged that, under that arrangement, key decisions are taken on a cross-community basis, which includes the provision for a petition of concern to be brought by a significant minority of Assembly Members—that was a vital ingredient of the Belfast agreement. The devolution settlement was founded on the much-heralded Belfast agreement. Members of this House cannot have it both ways, one moment proclaiming the virtues of the Belfast agreement and strict allegiance to it and the devolution settlement, and the next casting them all aside in the dustbin whenever it suits.
It can rightly be said that, at present, the devolved Government are not meeting in Northern Ireland. That is the fault not of the people of Northern Ireland but of those who pulled it down at their whim for their own political ends. When same-sex marriage was brought to the court, it ruled that it was for the Northern Ireland Assembly, not a judge, to decide social policy. There are those in your Lordships’ House who are seeking a way forward to have devolved government restored, and I must faithfully state to this House that to override the Northern Ireland Assembly on this most sensitive matter could not only hasten the demand for direct rule—and many are now calling for that—but could destroy the restoration of devolved government for a generation. One could rightly ask: what is the use of having devolved government when, at the whim of Westminster, it will decide contentious issues that must be resolved between the peoples of Northern Ireland from the ground up rather than by dictation from the top down? What this amendment proposes is in reality an imposition on the people of Northern Ireland, not devolution. Indeed, this House needs to think long and hard before it rubbishes the hopes of devolution being returned.
Lord Cashman
My Lords, I am pleased to rise in support of the amendment to which I have added my name. I congratulate the noble Lord, Lord Hayward, on his introduction of this amendment. He covered a wide range of issues and principles with which I absolutely agree, not the least being that in a United Kingdom equal rights should apply equally across the entire union and not be administered separately.
It has been asked: what is the use of having a devolved Government? I might argue: what is the use of having a devolved Government when they do not govern? This situation has now been going on for two years and this House has consistently called for it and other issues to be dealt with.
The Belfast agreement has, quite rightly, been referred to. In our debates on—one might say “sadly”—exiting the European Union, I referred to the effect on human rights, not least in relation to the Belfast agreement and the Republic of Ireland. On the Belfast agreement, I was much reassured by Karen Bradley, the Secretary of State for Northern Ireland—you do not often hear Labour politicians saying that—when she confirmed that Parliament remains competent to legislate on this matter. On 20 February 2018, in a Written Answer to Conor McGinn MP, she said:
“In accordance with the Belfast Agreement”,
marriage,
“is a devolved matter which should be addressed in the NI Assembly; but the power of the Westminster Parliament to legislate remains unaffected. If this issue were to be raised in Westminster, the Government’s policy is to allow a free vote on matters of conscience such as equal marriage”.
So there we have it: this would not undermine the Belfast agreement. It is high time that Parliament took action on this matter. We have waited too long.
Is Northern Ireland ready for equal rights in terms of equal marriage? I say by way of slight digression that I warmly refer to the work that I did with the noble Lord, Lord Lexden, on this issue. Indeed, we began to commission a Private Member’s Bill on it from a friend of ours at the University of York, but the noble Lord, Lord Hayward, made a wonderful start ahead of us.
Lord Scriven
My Lords, I find this very difficult because two issues close to my heart are at the epicentre of the amendment. The two issues are about devolution. I am a devolutionist to my fingertips. I support devolution: the concept that people should be able to make decisions close to where they live and work, and to be authors of their own destiny. It is in my political DNA. I support it; I like it. But devolution in itself does not mean that I am not part of a bigger union or a bigger ecostructure, whether in respect of country or region.
I understand that, at times, I have to make decisions within a certain context. That does not mean that I want to whip this decision away from the politicians and communities of Northern Ireland. I would like them to make that decision. But the second issue for me is that I believe fundamentally in human rights and equality. I find it absolutely amazing, when the whole argument about Europe has come down to the backstop and being in one United Kingdom, that my brothers and sisters in part of the United Kingdom are denied the same rights as me. That is why I am struggling with this. I say to the noble Lord, Lord McCrea, that I respect what he says. This is done with respect. I fundamentally disagree with where he is on this issue, but I respect his desire to make that decision. However, there is a fundamental flaw—
Baroness Goldie (Con)
I am so sorry to interrupt. The noble Lords, Lord Morrow and Lord McCrea, would like to apologise to the Chamber: they have to leave for a flight to Northern Ireland; they are sorry for their departure. I apologise to the noble Lord, Lord Scriven.
Lord Scriven
At least the noble Lord, Lord McCrea, heard that I respect his view even though I disagree with it. I wish him speed for his flight. I will be brief. I have a desire for equality, and for him to make the decision; I am pulled in both directions. But his argument is fundamentally flawed, because the devolved Assembly is not working. The amendment is very clear. It gives the Assembly the right to make the decision within six months of the legislation being laid out; it does not take that right away. But, if that legislative body cannot come together, then it is quite right that this House should make the decision to give equality on same-sex marriage to all people in every part of the United Kingdom. If this amendment is passed, it does not say that we are taking this right away. It puts pressure back on the politicians of Northern Ireland to come together and make a decision on marriage equality in their part of the United Kingdom.
Baroness Thornton (Lab)
I would like very briefly to say how much I support the amendment in the names of the noble Lord, Lord Hayward, and my two noble friends. I led from the Labour Front Benches on the equal marriage Bill, and one of the proudest legislative moments of my life was when we put it on the statute book. It is not often that we legislate to create happiness but that is definitely what we did on those days five years ago. It is grieving that my relatives in Ireland and Northern Ireland do not have the same access and right to marry that we have here in England. This is a human rights issue. I absolutely recognise the frustration that the noble Lord, Lord Hayward, expresses about getting this through. The Government know that political will can be brought to bear on many issues: with political will and the support of the different parties we can do pretty much what we desire to do. This is one of those issues where we need to make progress.
Lord Lexden
My Lords, I shall be very brief. The case for change has been powerfully outlined by my noble friend Lord Hayward, and endorsed by my very great friend on this issue, the noble Lord, Lord Hayward. This is a day of muddle and confusion. I mean the noble Lord, Lord Cashman. How could I make such a fundamental mistake? I align myself with their comments and repeat what has been a theme of so many comments: this could be the moment when the Government associate themselves firmly with the proposition, which many have been waiting a long time to see adopted, that human rights must extend fully and consistently throughout the length and breadth of our land. Was that not the noble aim of the Human Rights Act 1998?
Lord Cashman
My Lords, if noble Lords will allow me, there is a wonderful song, which I think is from “Cabaret”, called “Mr Cellophane”. I feel like the noble Lord, Lord Cellophane—“they look right through you”. It was remiss of me in my contribution not to specifically mention the professor the noble Lord, Lord Lexden, and I worked with on trying to bring forward a Bill on this very subject. It was of course Professor Paul Johnson of the University of York.
Lord Kilclooney (CB)
My Lords, the Northern Ireland Assembly approved same-sex marriage but it was rejected by the procedures of the Northern Ireland Assembly by a petition of concern. When we drew up the Belfast agreement and the petition of concern was created, it was intended to be used so that one political party would not impose its will on another on issues such as economics, social policy or constitutional politics. I do not think it was ever considered the means for one community to impose its moral standards on another. The basic problem here is that the petition of concern has been used to negative the decision of the Assembly. What needs to be addressed is whether the petition of concern should be amended to ensure that it is not used by any religious minority to impose its will on others.
Lord Collins of Highbury
My Lords, I will be brief. I welcome those last comments because the noble Lord, Lord Hayward, has today offered us a way forward that addresses the issue of devolution and the role of the Assembly. The journey that everyone has been on, which I referred to earlier, has also been taken by the DUP. I am sorry that the noble Lord, Lord McCrea, is no longer here; when I used to visit Northern Ireland on many occasions as a trade union official, I would never have dreamed that I would see the DUP leadership on a Gay Pride march, but we have seen that. We have seen them engage with the LGBT community. So I am not pessimistic. This is a really good way to show the people of Northern Ireland that we want them to have equal rights, and this is a clear way of doing so without affecting devolution.
Baroness Williams of Trafford
My Lords, I thank noble Lords who have spoken in this debate on the amendment in the name of the noble Lords, Lord Hayward, Lord Collins and Lord Cashman. I have considerable sympathy with their arguments, as they will all know—I spoke to my noble friend yesterday—but I am afraid I cannot support the proposed new clause.
The amendment seeks to change the law of Northern Ireland to extend same-sex marriage to couples there within 10 months of the Act receiving Royal Assent. Equality, civil partnerships and marriage are all devolved matters, so it is for the relevant Administration in Northern Ireland to legislate to make any necessary changes to the law relating to civil partnerships and marriages, but I note with considerable interest the words of the noble Lord, Lord Kilclooney, on the matter of the petition of concern. That gives me hope that things might be resolved there in future. However, at this point in time, Northern Ireland has chosen not to extend marriage to same-sex couples. While noble Lords might disagree with that position, it is clearly a matter for the Administration in Northern Ireland. The Government have made very clear that same-sex marriage is a devolved issue and the Assembly is the proper place for such legislation to be considered.
The fact that there is not currently a functioning Government in Northern Ireland does not alter the principle that it is for the devolved Administration to legislate on such matters, although I note the comments of the noble Lord, Lord Cashman. I appreciate that this situation is not ideal and understand noble Lords’ desire to make progress on this very important issue. Restoring the Executive remains a key priority for the Government, which will allow the Northern Ireland Assembly to take important decisions on issues pertaining to the people of Northern Ireland. I hope that, in light of what I have said, my noble friend feels able to withdraw the amendment.
Baroness Hodgson of Abinger
My Lords, I thank the Minister for her remarks on this important issue, and the noble Lords, Lord Hayward, Lord Collins and Lord Cashman, for tabling the amendment. The Minister has given her view and we can have a separate debate on what happens about making law in Northern Ireland in the absence of the Assembly. However, I ask that the amendment not be pressed to a vote. It might cause difficulties with the Bill’s progress and the realisation of its very important aims.
Lord Hayward
My Lords, in the light of the comments that I have heard, I indicate that I intend to withdraw my amendment, but I also intend to pursue it further on Report. I believe for a number of reasons, including the clarifications and comments from the likes of the noble Baroness, Lady Thornton, the noble Lord, Lord Kilclooney, and others, that this is an issue that has found its time. Therefore, this Chamber and the other place need to find a solution. As the noble Baroness, Lady Thornton, so aptly put it, if the amendment were in the Bill, I am absolutely clear, as I think the vast majority of people in this Chamber are, that both Houses would find a way to pass it. I beg leave to withdraw the amendment.
Baroness Barker
Baroness Barker
My Lords, I intend to be as brief as possible, not least because I wish that the noble Baroness, Lady Hodgson, will not have to continue to be as amazing in her stamina as she has been so far. I direct the Committee to an issue of considerable concern. Clause 3 deals with registration of pregnancy loss. It asks for there to be a report into whether it should be possible for those who have suffered pregnancy loss before 24 weeks to have that registered. I will not go back into the arguments put so eloquently by my noble friends Lady Benjamin and Lady Brinton.
Similarly, Clause 4(1) asks for a report to be conducted by the Secretary of State into the involvement of coroners in the investigation of stillbirths. We know from Second Reading that this is similarly a very important and sensitive issue. However, the problem is that the rest of Clause 4, in particular subsection (4), confers on the Secretary of State quite wide-ranging powers to bring about regulations in the light of that report.
My contention is simply this: I understand the sensitivity and importance of the issue, but I do not think that Members of this House or of another place have yet been able to understand the very deep and serious issues on both sides of the argument. Obstetricians and gynaecologists have some fears that the involvement of coroners may impact on their professional practice and their ability to talk openly with patients, for whom this is a very sad reality. Equally, on the other side there are those who believe that the current system is wrong and that coroners should be involved. I take no view on that; I simply think that Parliament should be able to consider the case in much more detail.
It is therefore wrong at this stage to go ahead with these wide-ranging Henry VIII powers. Today, all that I ask is that the noble Baroness. Lady Hodgson, might undertake to talk with some of us between now and Third Reading, to see whether we can find a way to deal with something which we all agree is important, so as not to jeopardise her Bill.
Lord Collins of Highbury
The Delegated Powers Committee made a clear recommendation, and the reasons for it were clearly set out. I totally agree with the noble Baroness, Lady Barker, that this is not about saying that Parliament should not do these things but just, “Let’s wait for the evidence and then act”. We have the opportunity to act, so I am minded to support the noble Baroness.
Baroness Williams of Trafford
I thank the noble Baroness for bringing forward her amendment, but I am afraid that I am not able to support it. Amendment 3A seeks to remove from the Bill an important provision that will allow for the extension to parents of stillborn babies the same transparent and independent investigation into their loss that is granted to the parents of a newborn baby whose life ends soon after birth. The power is needed because the provisions for the exercise of coronial powers are limited to very explicit duties. There is no provision for coroners to undertake investigations beyond this. A stillborn baby, having not lived independently of its mother, is out of scope of the investigatory duties of the coroner.
We will consult on this issue. It is our intention that, if we conclude at the end of the consultation that it is right for stillbirths to be investigated by coroners, their duty to determine who has died—and how, when and where that death occurred—will be extended to apply to specified stillbirths. Should that be where the consultation takes us, we will want to learn lessons from investigations into stillbirths, just as we do at the moment in child and adult deaths where, under certain circumstances, the coroner will produce a prevention of future deaths report.
Coroners’ powers to investigate a stillbirth would mirror those relating to other deaths, with powers to compel witnesses and require the production of documents and order medical examinations of the stillborn baby. The powers provided for in Clause 4(4) are intended to allow for the existing framework for coronial investigations to be extended to include the investigation of stillbirths. The existing provisions were thoroughly scrutinised when the Coroners and Justice Bill, now an Act, was debated in this House and another place. In exercising this power, the Lord Chancellor will be required to lay any regulations before your Lordships’ House for consent when the regulations amend primary legislation.
Clause 4 provides that the Secretary of State will report on the question of coroners investigating stillbirths. But, having consulted and produced that report, if the conclusion is that coroners should investigate stillbirths, the Government should then move forward in a timely way. Clause 4(4) provides the mechanism to do that, with the safeguards provided in subsections (5) and (6) appropriate to the changes that are in scope. The power is rightly limited by Clause 4(6), a sunset provision which sees the power fall away if it is not used within five years of the Secretary of State publishing his report.
Reforms to the way that health providers review stillbirths have been evolving, with significant developments under way. This period provides the flexibility needed should the final legislative proposals need to reflect these developments, while providing for the Government to act quickly if the report finds that this is what is needed.
I am sure that it was not the noble Baroness’s intention, but to amend the Bill to leave out Clause 4(4) without also leaving out Clause 4(5) and (6) and without further amendments to Clause 5(2) and (3)—which also reference the power provided through Clause 4(4)—would leave Clause 4 not in a coherent state, if I might put it like that. I am sure that my noble friend Lady Hodgson will agree to meet the noble Baroness in due course, but I hope that at this stage she will withdraw her amendment.
Baroness Hodgson of Abinger
I thank the Committee for putting up with my very croaky voice today. I hope that I have not spread any of my germs around too much. I thank the Minister for clarifying how the enabling power in Clause 4(4) would be used.
Baroness Barker
My Lords, I thank the noble Baronesses. I take the Minister’s point that the drafting of the amendment is not correct, but I share the concerns set out in the report of the Delegated Powers and Regulatory Reform Committee that some pretty wide-ranging powers are conferred on the Secretary of State. There is an inconsistency between asking for a report under Clause 3 and then similarly asking for a report but also conferring these powers under Clause 4. I do not want to delay the matter. I simply wish that we should pass legislation which deals correctly with what is a very difficult and sensitive matter. In my long time in the House, I have been involved in a number of discussions about NHS liability and the best way to ensure that patients get what they most want: to know why something happened and, if possible, to stop it happening to anybody else. That concern is not fully addressed by the provision. At this stage, I beg leave to withdraw the amendment, and I reserve the right to come back to the matter at a later stage.
“(1A) The Secretary of State may by regulations make provision in consequence of regulations under section (Extension of civil partnership).”
“(a) regulations under section (Extension of civil partnership), or(b) regulations under any other section of this Act that amend, repeal or revoke any provision of primary legislation,”