Marriage (Same Sex Couples) Bill

Debate between Lord Wallace of Tankerness and Lord Alli

Wednesday 19th June 2013 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I welcome the opportunity to clarify how the Bill, which makes provision for marriage of same-sex couples under the law of England and Wales, affects Scotland and Northern Ireland. I assure your Lordships that the Government have had lengthy and considered discussions with Scotland and Northern Ireland Ministers and officials to ensure that where the Bill touches on devolved matters, it does so appropriately. I understand where the noble Lord, Lord Alli, is coming from on this but it is not possible for us to accept his amendment or, indeed, those spoken to by my noble friend the Duke of Montrose, which would cut across the approach that we have been discussing with the devolved Administrations.

Indeed, the effect of the amendment of the noble Lord, Lord Alli, would be to remove the relevant part of Schedule 2 to the Bill. It might be helpful if I explain the effect, and importance, of Schedule 2. Without the provisions in Schedule 2, if a same-sex couple married in England or Wales, their relationship would not have legal status if they subsequently travelled or moved to Belfast or Glasgow. It is not that their marriage in England or Wales would become a civil partnership; it would have no status whatever under the law of Scotland or Northern Ireland.

[Lord Alli]

But it does not have a legal status in Northern Ireland and Scotland because it is a marriage in England and Wales. What the Bill is proposing is for this Government and this Parliament to request—because that is all we can do—the devolved Administration in Northern Ireland and the Scottish Parliament to accord it a lower status in those territories.

[Lord Wallace of Tankerness]

My Lords, the position is that, as things stand at the moment, there is no provision in either Scotland or Northern Ireland for same-sex marriage. Therefore, if a same-sex couple who are married in England and Wales were to move to Scotland or Northern Ireland, their relationship would not have a legal status of marriage in Scotland or Northern Ireland because that provision does not exist. There is no such thing at the moment in Scotland or Northern Ireland as same-sex marriage. Schedule 20 to the Civil Partnership Act 2004 lists the overseas same-sex relationships which are treated as civil partnerships in the United Kingdom. This partly answers the question raised by the noble and learned Baroness, Lady Butler-Sloss.

At the moment, overseas same-sex marriages are not recognised as marriages in England, Wales, Scotland or Northern Ireland. They are treated as civil partnerships in the United Kingdom, and Section 213 of the Civil Partnership Act 2004, under which Schedule 20 has effect, also sets out the general conditions which must be met for such relationships to be recognised in the United Kingdom. If the amendment of the noble Lord, Lord Alli, were to be carried, we would have the slightly anomalous situation where a couple moving to Belfast or Glasgow would be in a worse position than a same-sex couple who married in Portugal, or elsewhere overseas where same-sex marriage is permitted, and then went to live in Scotland or Northern Ireland.

Under the current law, the 2004 Act, these same-sex marriages contracted, for example in Portugal, would be treated as a civil partnership. If this Bill becomes an Act, we do not wish to see a situation where a same-sex couple married in England would have lesser legal status in Scotland or Northern Ireland than a same-sex couple who married in Portugal. It is for that reason that Schedule 2 exists. As the noble Lord indicated, marriage and civil partnerships are devolved matters. The noble Lord asked why Secretaries of State for Scotland and Northern Ireland could not get together with Scottish or Northern Ireland Ministers to make them marriages. That is not how devolution works. Legislation would have to be passed by the Scottish Parliament or the Northern Ireland Assembly.

As the Bill anticipates, referred to by the noble Baroness, Lady Thornton, the Scottish Government have indicated that they will bring legislation before the Scottish Parliament to bring about same-sex marriage as a legal status in Scotland. That is why, if noble Lords look carefully at the provisions for Scotland in Schedule 2, the order-making power would not have effect if the Scottish Parliament passes legislation for same-sex marriage. In many respects, what is there is deliberately framed, recognising the likelihood that same-sex marriage legislation is to be brought forward in Scotland in the relatively near future.

It is probably also fair to say that same-sex marriage legislation does not appear to be on the horizon in Northern Ireland. That is why the position regarding Northern Ireland is that there is not an order-making power, which will lapse in Scotland when or if Scottish law changes, but rather one that sets out in primary legislation the same position for same-sex marriages contracted in England and Wales in Northern Ireland, as is the case for same-sex marriages contracted in other countries, such as Portugal. People there would be in the same position in Northern Ireland as they would at present.

Last week, the Scottish Parliament passed a legislative consent Motion to the provisions in this Bill which impinge and deal with devolved matters affecting Scotland. The question was asked what would happen if we could not get a legislative consent Motion from Northern Ireland. Our concern would be that this would risk leaving couples with no legal status in a part of the United Kingdom. This could have important European Convention on Human Rights implications. We would need to consider this carefully if this situation arose and whether amendments to the Bill would be needed.

I know that this is not what the noble Lord, Lord Alli, wishes to see, but given the devolution settlement, this Parliament should not legislate for same-sex marriages in Scotland or Northern Ireland and I do not think that anyone in this Parliament is arguing for it. However, in the absence of legislation there, it is important that we give couples who have contracted a same-sex marriage in England and Wales a legal status in Scotland and Northern Ireland. Without the schedule they would have no legal status, so we are putting them on a par with couples who are married in other countries which have passed legislation on same-sex marriage.

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[Lord Wallace of Tankerness]

As ever, my noble and learned friend expresses it far more concisely than I do.

[Lord Alli]

My Lords, I thank the Minister for that reply but, as he probably recognises, I am not happy with it. If I got married in England or Wales, I would expect my marriage to be recognised in Scotland and Northern Ireland. It is the essence of the union. For us to have found a mechanism in the Bill to convert marriages into civil partnerships feels as though it was too difficult politically to keep them as marriages. It is clearly a nonsense for couples to be married in England and Wales, and then be treated differently in Northern Ireland and Scotland. For us, in this Parliament, to determine that a marriage in England and Wales should not be treated as a marriage in Scotland and Northern Ireland, without putting the question—as the noble and learned Lord, Lord Mackay of Clashfern, just indicated—to the Secretary of State for Scotland, and those Scottish Ministers for that order, or indeed to the Northern Ireland Secretary of State and Ministers, is for us to be complicit in perpetuating an inequality. Nevertheless, I will read what the Minister said and reflect, but I have no doubt we will return to this on Report. I beg leave to withdraw my amendment.