Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill

Baroness Barker Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 1st February 2019 Lords Chamber

I apologise to noble Lords for being so croaky. I hope they will add their support to this amendment, which provides for access to civil partnerships to be equalised in a comprehensive and robust way. I beg to move.

[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.

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[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.

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[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.

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Moved by

[Baroness Barker]

3A: Clause 4, page 3, line 37, leave out subsection (4)

[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 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.

Amendment 3A withdrawn.