Marriage (Same Sex Couples) Bill

Debate between Lord Glenarthur and Lord Mackay of Clashfern

Monday 8th July 2013 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, I should first declare an interest. I am the honorary president of the Scottish Bible Society and a member of various Christian groups. I have also been for quite a long time a member of Barnardo’s, which has a certain amount of interest in this area of the law.

The purpose of the first amendment, and of the second amendment that is to be taken with it, is to recognise in the Bill the distinction that exists in fact between marriage for same-sex couples and marriage for opposite-sex couples. I have used only language that occurs already in the Bill. It is striking that the Bill is called the Marriage (Same Sex Couples) Bill. Therefore, I cannot see that what I propose can be objectionable to anybody who wishes to further the Bill in the future. If it is appropriate to refer to what is now being introduced as the Marriage (Same Sex Couples) Bill, it must surely be right to use that name to refer to what exists already in the law, and will continue to exist in the law after this Bill becomes an Act, as I certainly expect that it will.

It seems to me obvious that there is an important distinction between these two types of marriage. My understanding is clear that the Government wish to afford the gold standard to same-sex marriage. That means using the word “marriage” to describe what is involved, which I accept for the purposes of this amendment. Therefore, I cannot see that it in any way degrades what is asked for and granted to same-sex couples in the Bill. The Bill makes distinctions between same-sex marriage and opposite-sex marriage in a number of respects. I need not mention the more technical ones, but there is a fundamental difference in relation to the consummation of the marriage and on the effect to a child of being born to a member of a same-sex couple. That has a very important effect on children.

My understanding is that opposite-sex marriage is a uniquely well designed system for the bringing into the world, and the nurture in the world, of children because opposite-sex marriage involves a direct link between the child and two parents, which arises from the nature of the child’s birth. That, I think, is not in any way replicated in any other form of marriage. Of course, it is possible for children to become children of a marriage in various ways—for example, by adoption and by in vitro fertilisation, which have their own characteristics. Those of your Lordships who sat on the Human Fertilisation and Embryology Bill Committee some time ago, which sought to amend the 1990 Act, will remember hearing people born by means of IVF give very cogent and sensitive evidence on the difficulty of getting information that that had happened and of tracing their roots. I am sure your Lordships are aware that tracing one’s roots and being able to say something about one’s ancestry can be an important factor in the nurture and development of children and, indeed, in the well-being of adults, as people have a great interest in that.

It seems to me essential to recognise that distinction in the Bill as a matter of ordinary drafting. This is not a marriage Bill; it is a Bill which adds to the existing structure a new concept, as I think we should recognise throughout the Bill. It is recognised in the Bill’s Title and is reflected in the heading of various documents, including today’s Marshalled List. In my submission, it is vital that we do not lose sight in future of that aspect of what people have called “traditional marriage” as it is an extremely valuable part of the arrangements that we have had for the birth and nurture of children.

I said in Committee and I say again that the protection of children by marriage, when it works, is extremely important and so far the state has not been able to devise a system which is equally effective. I speak in the presence of people who know much more about this than I do, but I believe that when the natural family fails a child and he has to go into care—which sadly happens, though fortunately not in the majority of cases—one of the difficulties as a matter of practice is to get a bond between a child and a particular individual in, for example a local authority. That is for the very practical reason that local authority staff change and take over different responsibilities and so on. I am sure that that is not the only difficulty, but it is certainly an important one.

I have said that the Bill deals with same-sex marriage and opposite-sex marriage differently in various places and mentioned the technical situation of a child born to a member of the marriage. That child does not enjoy the protection of the marriage on birth. It may be possible for the child to be adopted by the couple, but that is a different process. It is not a direct result of being born to a partner in the marriage. However, perhaps the most striking difference in treatment between same-sex marriage and opposite-sex marriage is in relation to the churches and religious organisations. The nature of the treatment in these two groups is very different indeed. Therefore, it seems only sensible to recognise as a matter of definition what it is that the different treatment applies to.

In my submission, this is the minimum that will secure recognition in the Bill of the distinction between the two. I believe that it completely meets the aims which were intimated as part of what this Bill is about in the sense that it gives marriage with the gold standard to same-sex couples, while retaining, without differentiating to any extent between the two as a value judgment, the essential distinction. This is not a matter of arbitrariness, but of simple fact. Recognising that fact in the Bill seems to me to bring it much closer to what ordinary people—and I count myself in that category—understand the Bill to do. Trying to make out that the two are the same seems to many people, including myself, to be an exercise in fantasy. The factual position is that there is a fundamental distinction which no majority in Parliament or elsewhere can annihilate.

Your Lordships will understand that Amendment 2 is complementary. Later amendments are consequential if the first two are accepted. I am sorry that there are so many of them. This is the minimum that seems to work, although I and other noble Lords think that it may be possible to go further. The later amendment of the noble Lord, Lord Armstrong, to which I and others have added our names, indeed goes further than the minimum. However, my amendment is the essential minimum and if your Lordships were to accept it, a question would remain as to whether the Bill should go further. I beg to move.

[Lord Glenarthur]

I very much support my noble and learned friend. The debates at Second Reading and in Committee referred to the word “marriage” as being the point at issue and how it could be described in the Bill. The problem with the Bill has been the word “marriage” and it is difficult to find another solution to that problem. For those who have concerns about finding a way to redefine marriage, which the Bill tries to do, it seems sensible, notwithstanding all the sensible comments of my noble and learned friend about the relevance of children to all this, to have a form of words that qualifies marriage under all its circumstances rather than totally redefines it. I very much support the amendment.