Marriage (Same Sex Couples) Bill

Duke of Montrose Excerpts

Wednesday 19th June 2013 Lords Chamber

[The Duke of Montrose]

My Lords, my amendments are grouped with that of the noble Lord, Lord Alli. The reason is of course that if his amendment is carried, then the schedule to which my amendments attach will be removed. I thought that the noble Lord, Lord Alli, with his usual bold capacity for initiative, was going to tangle with the whole question of devolved legislation and what can be done between the Scottish Parliament and the English Parliament. In some ways he managed to work around that, although in fact he must recognise that certainly there are separate laws between Scotland and England. Various situations must be responded to according to the law in the country in which they occur. However, at this time of night I shall move rapidly on to my own amendments, rather than trying to unravel some of his proposals.

I found a number of Scottish lawyers with questions about the outcome of what the Government propose in Schedule 2. My amendments were prompted by the Law Society of Scotland, and basically address two issues. First, paragraph 1(1) of Schedule 2 states that:

“The Secretary of State may, by order, provide that, under the law of Scotland, a marriage of a same sex couple under the law of England and Wales is to be treated as a civil partnership”.

This would apply to all same-sex marriages. In some ways that is the point made by the noble Lord, Lord Alli: some people might feel that this is unjust, and there would be room for only limited exceptions for whom this was not agreeable. This would only be possible with a further counter-order from the Secretary of State under paragraph 2(b).

The other more fundamental issue concerns the doctrine of the separation of powers. The Civil Partnership Act 2004 passed legislation for the whole of the UK using the full process of Parliament. Schedule 2 gives the Secretary of State the power to make a ruling by order on private right and personal status. Determining how personal relationships are treated under law is properly a function of the judiciary, which has jurisdiction over matters of personal status. Here, we have the Executive taking over a function of the law. Amendment 28 asks to transfer this function of the Secretary of State to the Court of Session, which has the power to make declarations under current family law. Using the mechanism proposed in the amendment will give the court the advantage of ascertaining the facts in each case where the parties seek a declaration as a civil partnership, and bring in the element of individual choice.

If the Government wish to continue with the mechanism they propose, it would be helpful if they would answer three questions. First, what process will be used to produce orders under Schedule 2, and what safeguards will be put in place to address the issue of separation of powers? Secondly, what criteria will be applied to those orders which permit treatment of a same-sex marriage as a civil partnership? Thirdly, what remedies would aggrieved parties have?

[Baroness Butler-Sloss]

My Lords, I find this part of the Bill quite extraordinary. I have the greatest possible sympathy with the amendment of the noble Lord, Lord Alli, and indeed with that of the noble Duke, the Duke of Montrose. If one took the analogy of English law, a marriage which is celebrated in another country according to the law of that country is generally recognised in English family law. I have tried endless cases involving a dispute as to whether or not a marriage is valid in the country where it was carried out. There will be issues of whether or not the two parties were capable of marrying in that country, whether they are domiciled or resident in that country and so on.

However, if those particular points are dealt with, then it is a matter for English law to say whether we will recognise a marriage. Why are we legislating for what Scotland or Northern Ireland will do if in fact it is a perfectly lawful marriage in England and Wales? Is it not for Scotland or Northern Ireland to say, “Yes, we accept it”, or, “No, we do not”? I find it absolutely astonishing that we are dealing with this. As for the suggestion that a marriage lawfully carried out in England is to be called something completely different in Scotland and Northern Ireland, as I say, I find the whole thing quite astonishing.

--- Later in debate ---

Of course, if the Scottish legislation happens to come into law before this provision comes into law, this order-making power would not be necessary. Indeed, if the timetable that one may expect the Scottish Parliament to pursue is such that the difference in timing is only a matter of a few months, it may be that the impact of this order-making power will be very limited indeed.

[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.

Marriage (Same Sex Couples) Bill

Duke of Montrose Excerpts

Tuesday 4th June 2013 Lords Chamber

[The Duke of Montrose]

My Lords, we have just had a telling and detailed explanation of the road that we have travelled in getting equality for lesbian, gay and gender-transmuted people. We are certainly sad to hear that there is so much persecution going on. The only thing that one can say is that legislation is now in place that should deter that.

I am very grateful for all the briefings that we have received from all around on different aspects of the Bill. Once again, this House has provided a forum for an incredibly varied and passionate debate. It has incorporated the wisdom and experience of people from a great range of backgrounds and philosophies, and the passion with which each of those is held can be judged by the number of Members who have wanted to speak.

The Government claim to have consulted adequately, but our postbags reveal a wide unease about the effect of the Bill. Unfortunately, the purpose of the Bill can be read only as removing traditional Christian connotation from the concept of marriage in the law of the country. Some might regard that as a marvellous gesture towards multiculturalism, but the response of the noble Lord, Lord Singh of Wimbledon, yesterday and those of other faiths does not support that. Considering the way in which the Christian religion has inspired and shaped our culture and constitution, I would regard the Bill as a major departure introducing many pitfalls, some of which were outlined by the noble Lord, Lord Dear.

I feel that the confusion starts at the outset in that neither the Bill nor the statute law of England or Scotland defines marriage. We have relied on common law and the criteria and practice of the churches. The noble Lord, Lord Pannick, has outlined the way in which many of the parameters have changed, but up to this time marriage has not required a legal definition because there has been an historical consensus about its meaning. This Bill is a proposal to do away with the historical consensus and introduce a new meaning. This was laid out more eloquently than I could in the speech yesterday of the right reverend Prelate the Bishop of Exeter. It has also been voiced to me as a concern by the Scottish Law Society. If we have to go down this road, a Bill introducing a new concept of marriage should state clearly what its definitions and requirements are for any and all of the parties.

For me, another difficulty lies in the determination that there can be no difference between a heterosexual union and a homosexual union in law and that, once legislated for in statute, locks can be put in place that can ensure that the law will be able to treat the two categories differently. Surely that must be a target for constant challenge and can be considered as viable only in the short term.

Like my noble friend Lord Waddington, I regard it as of some consequence that only nine years ago we went to great pains to pass a viable Civil Partnership Act and to ensure that those taking on a committed same-sex relationship should be able to benefit from the same civil recognition and tax arrangements as those in a conjugal union. He mentioned the official view of the then government spokesman that this contained all that was necessary to satisfy equality. As we have come to this Bill, I noticed that on 5 February the opposition spokesman in the other place re-emphasised that,

“civil partnerships are different”.

She went on to say:

“it is right that we now take the additional step of introducing equal marriage”.—[Official Report, Commons, 5/2/13; col. 134.]

If that was so firmly ruled out nine years ago, what reliance can we put on politicians and legal interpretations taking the same view on the differentiations and locks that they are so sure about today? Even the triple locks, such as they are, seem to be targeted to protect only religious officials, organisations and buildings.

As my noble friend Lord Tebbit mentioned, one of the responses that we have received is from a part-time chaplain to a local police force in Strathclyde—not a post that would be protected by the proposed measures—who has already been dismissed because on his private blog he said he was in favour of traditional marriage. Have the Government considered what might be needed to protect religious individuals who merely want to exercise their own freedom of speech and freedom of religion by expressing their favour for one kind of marriage or another?

For these reasons, many who have spoken wish to ask the Government to think again, and to produce a Bill that more adequately addresses the needs of the country. If the noble Lord, Lord Dear, calls his Division, I will support him.