Marriage (Same Sex Couples) Bill

Debate between Baroness Butler-Sloss and Baroness Thornton

Wednesday 19th June 2013 Lords Chamber

[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.

[Baroness Thornton]

My Lords, Amendment 26A in the name of my noble friend Lord Alli would remove the special arrangements made in the Bill to require the legal recognition of marriages of same-sex couples as civil partnerships in Scotland and Northern Ireland. I sympathise with the sentiment behind these amendments. British same-sex couples who get married in England or Wales but choose to live in Scotland or Northern Ireland will not have their status legally recognised for what it is. However, it is the nature of devolution that we cannot impose the will of Westminster on devolved Administrations in areas where it has ceded authority.

Marriage law is devolved to both Northern Ireland and Scotland, meaning that any desire by Westminster to legislate in this area for the whole of the UK requires the consent of these Administrations. I know that Scotland is in the process of looking at same-sex marriages at the moment, so I hope that we shall shortly see same-sex marriage introduced in Scotland and therefore this issue will become somewhat less relevant.

In Northern Ireland, civil partnerships have been available since 2005. However, Northern Ireland has chosen not to consider extending marriage to same-sex couples at this time. A Motion calling on the Northern Ireland Executive to legislate to allow for same-sex marriage was narrowly defeated in its Assembly last month. I recognise my noble friend’s frustration at this. However, I ask the Minister, what are the implications if the legislative consent Motion is not agreed to by the Northern Ireland Assembly? Does it mean that married couples of the same sex living in Northern Ireland may be left in a worse position, having no legal recognition of their status whatever? What might be the implications for children and pensions? I am concerned about the legal implications of such a disparity of recognition and hope that the Minister will be able to answer the questions I have around this issue.

Couples in a civil partnership are prohibited from adopting children in Northern Ireland—a situation which is currently being challenged in the High Court. For those couples who have been married and adopted children in England and Wales and who move to Northern Ireland, what will be the status of their adopted children? Will the couple be recognised as the legal parents where they are living?

In relation to pension rights and accrued survivor benefits, if a married same-sex couple have been living in England for 10 years and then move to Northern Ireland, will they lose the right to those accrued benefits, or will they be carried over to their civil partnership status?

Marriage (Same Sex Couples) Bill

Debate between Baroness Butler-Sloss and Baroness Thornton

Monday 17th June 2013 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I, too, am a trustee of the Marriage Foundation, which I should say is totally neutral on this subject. In any case, I am speaking personally.

To pick up a point made by the noble Baroness, Lady Williams, about children, when I was a family judge I tried cases where I placed children with gay couples, male or female. I had the utmost confidence that those children would be extremely well brought up. Nothing that we are discussing today, or indeed in this Bill, leads me to believe that whatever a same-sex couple’s relationship is called would have anything to do with the excellent way in which very many children are brought up by lesbian and homosexual couples. That is my own personal experience, sitting as a judge.

I did not speak at Second Reading; I thought that 90 speakers were enough. Like others, I have received more than 100 letters which my secretary has so far replied to, and many more e-mails. It might interest the House to know that 98% were opposed to this Bill, but the 2% in favour were also extremely persuasive. Listening to the earlier speakers, it seems clear to me that the word “union” will not be treated by those seeking marriage as the equivalent of “marriage”, for the reasons that have already been given. Since it is clear that this Bill is going through, it is time for us to try to find the best way forward.

Those who support the Bill are—to use the colloquialism—hooked on the word “marriage”. That we have to accept, but the Government need to recognise the strength of feeling of those who are opposed to the use of the word “marriage” simpliciter as recognising the marriage of couples of the same sex. We must find a middle way. I strongly support the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern, because this House urgently needs to seek reconciliation and find a compromise, as the noble Lord, Lord Phillips of Sudbury, said earlier. Somehow we have to allow the word “marriage” and somehow we have to distinguish between different sorts of marriage.

As the noble and learned Lord, Lord Mackay of Clashfern, has pointed out—and I aim to say in later amendments to this Bill—this is a question of equality but it is not a question of uniformity. You cannot have uniformity in this Bill together with what you get in the marriage of opposite-sex couples. One only has to look at Part 4 of the Bill, as the noble and learned Lord, Lord Mackay of Clashfern, has done, to see that there are differences. There is nothing wrong with differences in equality. As the most reverend Primate the Archbishop of Canterbury said at Second Reading, there is a danger of equating equality and uniformity in this Bill.

I cannot see how Amendment 2 can be objectionable to people. The “marriage” word is used and those who are in any marriage are equal, but the amendment recognises that there are differences. You cannot say that marriage for same-sex couples has in any way a lower status than marriage for heterosexual couples has. For goodness’ sake, at the end of the day we are legislators, if I might respectfully remind the House, legislating for what people on the ground will actually be doing. As the noble Baroness, Lady Shackleton, pointed out, there are all sorts of marriages: those who wish to marry; those who are already married—I have to confess that I have been married for very nearly 55 years, and to the same man; and marriages for the second or third time. We have to recognise this, but we also have to recognise that there is a difference, and although the noble Baroness, Lady Noakes, talked about different sorts of marriage, the different sorts of marriage that she mentioned were actually between male and female, because in those days they could be nothing else; they were all male-female.

This amendment would be a compromise in an otherwise deeply divisive Bill. I have to say to those who have been talking about the children, particularly the noble Lord, Lord Carlile, that perhaps most important of all—

[Baroness Thornton]

I should like to ask the noble and learned Baroness a question. I have wanted to ask this of other members of your Lordships’ House who were speaking about the matter of calling a same-sex marriage a same-sex marriage rather than distinguishing it from what people are calling a traditional marriage. What is the noble and learned Baroness’s view about the fact that anyone who has a same-sex marriage would have to identify their sexuality by definition? Why should they have to do that?

[Baroness Butler-Sloss]

You have to recognise the truth of it. The most reverend Primate pointed out the importance of truth. It is different. We have to look at some stage, as the noble and learned Lord, Lord Mackay, pointed out, at how we deal with the children of a couple who cannot have their own children as a couple.

[Baroness Thornton]

I beg the noble and learned Baroness’s pardon, but in other parts of our legislation—in our equalities law—we protect people from having to declare their sexuality, because we think that that is the right thing to do. It is not a question of the truth or not the truth.