Marriage (Same Sex Couples) Bill

Lady Hermon Excerpts

Tuesday 21st May 2013 Commons Chamber

[Geraint Davies]

It is important that we have this debate. My view comes from looking at the detail of the Bill and from the fact that humanist marriage is already established in Scotland and seems to be working well. It seems to me that the Bill provides an obvious opportunity to introduce equality between humanists in Wales, England and Scotland sooner rather than later. I do not see that as a problem.

[Lady Hermon (North Down) (Ind)]

I fundamentally disagree with the hon. Gentleman’s point. He made fun of the advice given to us by the House’s most senior Law Officer. I obviously do not sit on the Government Benches, but I have the highest regard for the Attorney-General’s advice, and he told us clearly that supporting an extension only to humanists would be discriminatory. We have the European convention on human rights, and I say hooray for that—I am in favour of it—but how does the hon. Gentleman excuse the fact that the new clause applies only to humanists rather than having broader coverage? It is discriminatory.

[Geraint Davies]

The status quo is discriminatory in any case, which is why we are asking for equality for same-sex couples. Humanist marriages occur in Scotland without being challenged in the European Court, so there have been test cases. Like others, I am free to make jokes about the Attorney-General; he has no planet-sized brain that should intimidate us, and his reference to tiddlywinks invited scorn and ridicule, which I thought it was reasonable to supply. On that hilarious note, I will bring my comments to a close.

[Mr Blunt]

I rise to reassure the hon. Member for Luton North (Kelvin Hopkins) that there is support for him on the Government Benches and to encourage the hon. Member for Stretford and Urmston (Kate Green) to press the new clause to a vote and not be put off by the blandishments that she may hear from my right hon. Friend the Secretary of State. I say that because I am suspicious when I cannot hear a single argument against the principle of a proposal—there is agreement that it is absolutely reasonable and a proper extension of rights to humanists—but we get a barrow load of technical or legal difficulties and risks, and the idea that there has not been time for consultation. The idea that we do not have the opportunity during the passage of the Bill through both Houses of Parliament to sit down and address the technical objections to this suggestion and others, and to get the Bill right before it finally hits the statute book, does not reflect terribly well on us as legislators or on the advice that we can command.

My hon. Friend the Member for Battersea (Jane Ellison) said that the Bill was not the right vehicle for addressing the matter, but I do not think that we will see another marriage Bill coming down the track any time soon. Ministers’ enthusiasm for re-engaging with the issue, after going through the joy of the past 18 months of consultation and processes, will be a little limited. That was why, yesterday, my right hon. Friend the Secretary of State suggested a five-year time bar before the issue would be reconsidered. That was overturned at the insistence of the Opposition, whose amendment she accepted. I rather suspect that that time-limitation arrangement was suggested because Ministers have been somewhat scarred by the process of the Bill.

That makes it more important for us to take advantage of this opportunity to deal with some fundamental points that seem glaringly obvious to me. It seems glaringly obvious that humanists ought to be allowed to conduct marriage ceremonies and that the arguments that my hon. Friend the Member for Leeds North West (Greg Mulholland) has put forward yesterday and today ought to be addressed. We should take this opportunity to have a fundamental look at how marriage is delivered and to divide civil and religious marriage properly, so that we have dealt with all the problems that we are now wrestling with.

The hon. Member for North Down (Lady Hermon) prayed in aid the advice that we heard from the Attorney-General, but I have to say that although I am a very great friend of my right hon. and learned Friend the Attorney-General and have huge admiration for his work and his intellect, I have never heard such nonsense on stilts put forward under the guise of independent and wise advice. It was certainly not the product of careful consideration, because it has come to the House at rather short notice. On reflection, his rather strange division between secular people and religious people, with the former not deserving the same consideration for the protection of their rights, would itself fall foul of any convention on human rights worth its name.

My right hon. and learned Friend ought to have the opportunity to give rather more considered advice as the Bill proceeds through Parliament. I am sure that when it is considered in another place and then comes back to this House, if there is satisfaction that his arguments hold water, the hon. Member for Stretford and Urmston and her colleagues who tabled the new clause will be happy to consider them again. We need to address the technical and legal objections that are being made to a measure to which I have heard no Member put forward principled opposition.

[Lady Hermon]

Again, I am grateful to the hon. Gentleman for taking an intervention. I am not making this up; I am reading in black and white article 14 of the Human Rights Act 1998, which states:

“The enjoyment of the rights and freedoms set forth in this Convention—”

that includes the right to marry, which is one of the fundamental rights guaranteed by the convention—

“shall be secured without discrimination on any ground”

within the United Kingdom. It could not be clearer. The advice of the Attorney-General is that if new clause 15 is accepted and extends only to those who are humanists, that is discrimination and in breach of article 14. Will the hon. Gentleman address that point?

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A written question, answered by the hon. Member for Maidstone and The Weald (Mrs Grant), the Minister with responsibility for equality, confirmed that 151 interim gender recognition certificates were made—the certificates given when someone seeking full legal recognition is in a pre-existing marriage. The interim certificate could be used as grounds for annulment. After annulment, a full certificate giving the long sought-after civil rights could then be issued. Some of those 151 couples will have gone on to divorce and continue to live with, or form civil partnerships with, their former spouses. It is only they who would be eligible for compensation under the amendment, so the cost would probably be no more than tens of thousands of pounds and could not, at the absolute maximum, be any more than £151,000. The financial implications of the amendment, therefore, are tiny to the point of being negligible. This is about a symbolic apology: the state apologising for having, as the hon. Member for Cambridge put it, stolen those marriages.

[Lady Hermon]

I am most grateful to the hon. Lady for allowing me to intervene on what is a very interesting contribution. Will she clarify a small point, but one that is of great significance to those in Northern Ireland? I am following the logic of her argument. Under schedule 2 to the Bill, those in England and Wales can avail themselves of same-sex marriage. As soon as they go to Northern Ireland, however, that marriage would have to be treated as a civil partnership. Is the logic of her argument that the state that passed the legislation must also compensate those who regard themselves as married couples in England and Wales, but become civil partners again in Northern Ireland?

[Caroline Lucas]

The hon. Lady makes an interesting point. Given that we are talking about a symbolic apology, it would be generous and appropriate for it to be offered in Northern Ireland too. My argument is not a narrow legal argument. A wrong was done. To the extent that the wrong was done by the Government, one can make an argument that the measure is relevant only to those who were living in the country at that time.

[Lady Hermon]

It is very generous of the hon. Lady to take a second intervention. Just to be clear, I was not making a recommendation that compensation be paid by the state. I was simply asking the hon. Lady whether her amendments would oblige the Government to pay compensation in the circumstances she outlined. Is the logic of her argument that she would advocate compensation in Northern Ireland? I certainly am not doing so.

[Caroline Lucas]

I thank the hon. Lady for that clarification. In that case, my answer is simple: yes, I would.

Amendment 22 would remove any reference to compensation and deal specifically with the reinstatement of marriages in cases where couples had their marriages annulled, so that a person could obtain a gender recognition certificate and continue to live together without forming a civil partnership. In cases where civil partnerships were formed after forced annulment, I am pleased that the Bill provides some assistance. Under clause 9, a couple are permitted to convert their civil partnership into a marriage to be treated as having subsisted since the date the civil partnership was formed.

Couples who were forced to annul a marriage and enter into a civil partnership will not be able to rewrite history—at least not legally—but it will almost be as if there was no break in their marriage, which of course they never wanted to annul in the first place. These are not the only cases, however, and we must ensure that all cases are covered. As a result, amendment 22 is designed to help couples who annulled their marriages so that one person could get a gender certificate, but who did not then enter into a civil partnership. As far as possible, the injustice that they have also faced must be addressed.

When the issue was discussed in Committee, the Minister expressed sympathy for couples who had been required to make the difficult choice of whether to end their marriage to enable one of the parties to obtain gender recognition, but she said that she could not support an amendment that sought to reinstate marriages from the date they were annulled because of the difficulties that could be caused with any rights and responsibilities that the couple had accrued since their marriage was annulled—for example, retrospective entitlements to benefits and taxation.

In order to help the Government and make some progress, in this version of the amendment, I and the hon. Member for York Central are proposing that reinstatement of the marriage be from the date that the couple gave notice to have it reinstated. This would address Ministers’ concern about retrospective legislation. It is not ideal. I would much prefer a fully retrospective measure, but given what the Minister said in Committee, it would be better than nothing for this small but greatly wronged—I still believe—group of people. Couples were forced to make a distressing and appalling choice, largely because policy on same-sex marriage was lagging so far behind what was right and just. I hope that we can use the window of opportunity in this historic Bill to do the right thing.

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Government amendment 48 relates to marriages in overseas consulates and armed forces bases, and means that if an Order in Council made under schedule 6 contains provisions that would be within the legislative competence of the Scottish Parliament, the Scottish Parliament must be consulted before such an order is made. Similar arrangements are proposed for Northern Ireland.

[Lady Hermon]

My intervention relates specifically to Northern Ireland and harks back to the useful advice given at the beginning of the debate by the Attorney-General in relation to the risk of discrimination. The Minister will know that under the Bill as drafted, if it is enacted, schedule 2 means that a couple who avail of the facility of a same-sex marriage will be fine in England and Wales, but as soon as they go to Northern Ireland it reverts to a civil partnership. My concern, mirrored by the Attorney-General’s intervention in relation to an earlier amendment, is that within the United Kingdom, surely that is discrimination on grounds of different status in Northern Ireland as compared with the rest of the United Kingdom.

[Mrs Grant]

I could not quite hear everything that the hon. Lady said, but my consideration is that it is down to Northern Ireland to respond. I am assured that that is right, but if that is not correct I will write to her to clarify that.

--- Later in debate ---

[Mrs Grant]

I am happy to give the hon. Gentleman that assurance. We will certainly work very hard on that together.

I turn now to Government amendments 30 to 32, which are purely technical and simply ensure that the use of the phrase “existing England and Wales legislation” is entirely coherent, so as to remove any possible doubt as to its meaning. Government amendments 33 to 39 are technical and make changes to the Domicile and Matrimonial Proceedings Act 1973 to ensure that it works entirely properly for same-sex marriages. Amendment 33 makes changes to the 1973 Act in relation to what applies to opposite-sex and same-sex marriages and to give effect to schedule A1.

Amendments 34, 35, 36 and 38 make changes to ensure consistency of language with the 1973 Act. Amendment 37 inserts a provision into schedule A1 to enable applications for an order to end a marriage because one of the couple is dead to be made under the Presumption of Death Act 2013. Amendment 39 enables schedule A1 to work using the presumption of death provisions of the Matrimonial Causes Act 1973 if the 2013 Act is not in force when the Bill comes into force. Amendment 39 also amends schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 provisions on staying—meaning halting—matrimonial proceedings in England and Wales when there are other court proceedings at the same time outside England and Wales about that same-sex marriage. That will ensure that such proceedings on the same divorce, judicial separation or annulment do not give rise to conflicting decisions, which would prevent resolution of the issue.

[Lady Hermon]

I am listening intently to the Minister and am sorry to interrupt her at this stage, but I must bring her back to Northern Ireland. I really want an assurance from the Government that we in Northern Ireland will not see legal challenges on the grounds of breaches of the European convention on human rights by those who, if the Bill becomes law, avail of same-sex marriage in England and Wales. It is specifically paragraph 2 of schedule 2 that concerns me. It states:

“Under the law of Northern Ireland, a marriage of a same sex couple under the law of England and Wales is to be treated as a civil partnership… (and accordingly, the spouses are to be treated as civil partners).”

I just need reassurance from the Minister.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. We are getting to Third Reading points and I would not want the hon. Lady to use up the points that would be better made then.