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

Lord Collins of Highbury Excerpts

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

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, without in any way wishing to get involved in the difference between, on the one hand, the noble Lord, Lord Lexden, and the noble Baroness, Lady Deech, and, on the other, the noble Baroness, Lady Barker, it seems inconceivable that proposed new subsection (3) could ever be deployed to cure what the noble Lord would regard as the defect in this legislation. I point the Committee to its last few words, under which this regulation-making power applies only,

“to couples who are not of the same sex”.

If you are to give effect to sibling couples, it would be bizarre to give it to those who are sibling couples of the same sex but not of other sexes. It is perfectly obvious to me that proposed new subsection (3) could not extend to bringing in this altogether very different category of sibling couples.

[Lord Collins of Highbury (Lab)]

I thank the noble and learned Lord for that explanation, which gives me a bit of reassurance. I hope that the Minister will do the same. The fact is that two committee reports have raised serious concerns about the powers that are being extended or given in the Bill. I make it clear from the outset that we support the passing of the Bill and its objectives. We would not want to do anything to hinder it but, on the other hand, we want the Minister to be clear about the precise nature of these powers—about how they will be used and their scope.

The noble and learned Lord has been clear about proposed new subsection (3). I hope that the Minister and the noble Baroness, Lady Hodgson, will be able to respond clearly in relation to my noble friend’s question about proposed new subsection (7). Precisely what is its purpose? I suppose the right reverend Prelate alluded to this, in that he referred to the implications for couples who have been married in church. I suppose that is what he is concerned about. There are obviously many people who have married in church and later divorced, then married again—maybe not in a church, but that has extended even to members of the Royal Family and, potentially, a future head of the Church of England. That is not for me to query. However, this really is important because, in scrutinising legislation, we have to be clear about the sort of precedent we are setting.

My own view, expressed partly by the Delegated Powers Committee, is that when the Supreme Court decision was made the Government should have come in with a Bill themselves. Why are we not conducting primary legislation properly and scrutinising it properly? We have here an omnibus Bill to which, as I say, I do not object; we certainly want to see it passed, without delay. People who want civil partnerships should be able to have them as soon as practicable and we will support that. However, it is incumbent on the Minister to answer these very important questions about scope.

The noble Baroness, Lady Hodgson, referred to the conversion period. I have experienced that myself, not least because I converted my civil partnership into a marriage and I wanted clear assurances about the timeframe for that when the 2013 Bill was going through. I got assurances but it still took a bit longer than I thought it would, so I hope the Minister will tell us precisely what the window of opportunity that has been alluded to is. What is the Government’s view about this period in which people may be able to convert their marriages into civil partnerships? What timeframe are we looking at and how will people know about this? If there is a window of opportunity that will close, it is really important that the Government communicate that effectively. I hope the Minister and the noble Baroness, Lady Hodgson, will be able to respond to those points.

[Lord Berkeley of Knighton (CB)]

My Lords, I am grateful to my noble and learned friend Lord Brown for his reassurance on the point that was raised. The reason I am grateful is that when I attended and listened to the debate in which the noble Lord, Lord Lexden, made a very moving speech—I would love to see some form of protection for siblings of the kind that he mentioned—I felt that the noble Baroness, Lady Barker, won the day with her comments and reservations. It is reassuring to have this advice from the noble and learned Lord.

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[Lord Collins of Highbury]

May I beg permission to intervene quickly? I forgot to mention one point that arose from civil partnerships being converted into same-sex marriages. It is the issue of recognition by jurisdictions in other countries, particularly countries such as France and Germany that do not like the idea of retrospective legislation. Having raised this in the Chamber on a number of occasions, I know that it was a substantial issue. I think it has been resolved in France by a decision of the National Assembly, but can the Minister pick up that point, so that people are properly advised of what all the implications are if they convert?

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I want to take this opportunity to commend my noble friend Lady Hodgson of Abinger, who is quite a trooper when it comes to pressing on regardless. I wish her well and hope that she has good rest over the weekend, having fought the good fight today to bring further equality with civil partnerships for opposite-sex couples.

I fully support my noble friend’s amendments. As she said, the Government had some concerns about the drafting of Clause 2, but not the intentions behind it. I am pleased that the drafting of this amendment has been improved in a way that is satisfactory both to the Bill’s sponsors and to the Government. I hope that we have arrived at an amendment that works for everyone and is able to deliver a comprehensive and effective opposite-sex civil partnerships regime at the earliest opportunity.

The Government are committed to equality for all, and we were pleased last October to announce our intention to extend civil partnerships to opposite-sex couples. As my noble friend has outlined, the amendments make it possible to equalise access to civil partnerships between same-sex and other couples by amending the eligibility criteria in the Civil Partnership Act 2004 through regulations.

A couple of noble Lords mentioned that the Delegated Powers and Regulatory Reform Committee and the Constitution Committee expressed concerns about the drafting of Clause 2. I hope that our amendments go some way towards alleviating those concerns. The new clause now sets out in much greater detail how we envisage the delegated powers would be exercised, including dealing with issues such as parental responsibility, the effect of a legal change of gender, the financial consequences of a partnership and any conversion entitlements. I take the point made by the noble Baroness, Lady Barker, and the noble Lords, Lord Collins and Lord Cashman, about Henry VIII powers, but I hope that I can satisfy them at least in part. The noble Lord, Lord Cashman, is shaking his head—but perhaps when I have said what I have to say he will be happier.

The powers are needed to give opposite-sex couples equivalent rights and benefits to those enjoyed by same-sex couples. Simply changing the eligibility criteria in the Civil Partnership Act 2004 would not ensure this. Both the noble Baroness, Lady Barker, and the noble Lord, Lord Cashman—and, I think, the noble Lord, Lord Collins—were concerned about subsection (3) and the possibility of extending civil partnerships to siblings. We have no intention of using the subsection to extend civil partnerships to siblings or family members. My noble friend Lord Lexden, who lives in hope that one day we may do so, has clarified that. Subsection (1) makes it clear that the extension of eligibility applies to opposite-sex couples only, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, and, as drafted, would stand in the way of extension to siblings.

The noble Lord, Lord Cashman, asked me about other European countries—I am sorry, it was the noble Lord, Lord Collins. I do not know why I am mixing the two of them up today. Both their names begin with C. They are the dynamic duo.

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[Lord Collins of Highbury]

Having gone through the process—I am sure that the noble and learned Lord can correct me—I should clarify that what the 2013 Act provided for was retrospection. One converted one’s civil partnership into marriage. So the date of my marriage is not the date on which I converted but the date on which I entered my civil partnership—hence my question in relation to foreign countries. It had implications, particularly for those people concerned about Brexit who were married to, for example, French citizens—in my case, I happen to be married to a Spaniard. It was about recognition of that marriage being dated from the date of the civil partnership.

[Baroness Williams of Trafford]

I totally understand that point and I stand corrected on the technicality of what the noble Lord said on that matter—but, as I said, I will write to him on the European question.

The noble Lord, Lord Collins, asked me about conversion and religious protections—about the date et cetera. We are looking closely at a range of policy considerations, including matters relating to conversion and religious protections. We will take decisions on the nature and extent of conversion rights following the consultation to which the amendment commits us.

I will reassure noble Lords that the Government wish to extend civil partnerships to opposite-sex couples as soon as possible and are fully committed to bringing the necessary regulations into force before the end of 2019. It is a challenging timeframe, but, given the need for consultation and further parliamentary debates, it would be impossible to commit to an earlier date.

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[Lord Brown of Eaton-under-Heywood]

Nothing in the Bill prevents the Government or anybody else hereafter seeking to introduce fresh legislation to avail sibling couples. All I am suggesting is that, under the order-making power here conferred by subsection (3), that power is not granted.

[Lord Collins of Highbury]

It would need secondary legislation.

[Baroness Williams of Trafford]

Yes.

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[Lord Cashman]

My Lords, perhaps I may be able to help the noble Lord, Lord Elton. As it stands, as I said earlier, the Marriage (Same-Sex Couples) Act 2013 does not allow for clergy of the Church of England to solemnise, but it makes provision for other religions, including Quakers and Judaism, to opt in. There is no obligation; there is an opportunity to opt in to solemnise. They are not obliged. If as individuals or a group they do not wish to solemnise, there is no obligation to do so.

[Lord Collins of Highbury]

My Lords, I have added my name to this amendment and support it whole- heartedly, and I do not believe that we are striking a discordant note. I think the opposite. We are asking a question to which people are seeking an answer. I do not profess for one moment that we necessarily have it right, but it is really important that we have this debate, especially as we are now talking about marriage being dissolved so that people can go into another form of relationship. The nature of relationships is changing, and the state is catching up.

I say from the outset that no politician or parliament should dictate to a religious organisation what it should or should not do. In fact, that is precisely why we tabled the amendment. In the 2013 Act, we had what people have called the triple or quadruple lock. People said that it was unacceptable. The debates on the 2013 Act are fresh in my mind and some of them I found personally difficult, but I recognise that the Church of England in particular has been on a journey, travelling quite fast and, in my opinion, in the right direction. I also remember the debates on the Civil Partnership Act, when the Church of England opposed it. I know that the most reverend Primate has apologised for some of the positions that the Church took when that Act was proposed, referring to those debates.

I do not know whether the Church has been issuing information about the amendment but, for the first time in my life, I have received emails from local vicars across the country expressing disquiet—who do I think I am forcing this abominable Act on the Church? As I said, I do not want to force anything on any religious institution, but I recognise that people of faith are gay. That is not restricted to lay people, it embraces everyone.

On Second Reading, I deliberately quoted the most reverend Primate in my speech. I think it is worth repeating because it goes to the heart of the debate on the Bill. I said:

“In his recent book … the most reverend Primate … tells us that the Bible’s teaching on marriage is profoundly positive but, he notes, the social reality in modern Britain is radically changed today, with cohabiting, blended, single-parent and same-sex configurations. He continues: ‘If fluidity of relationships is the reality of our society, then this should be our starting point for building values, because all values must connect with where people are and not where other people might like them to be’”.


That is the question for the Church of England. If it does not catch up, people will go somewhere else. My noble friend would certainly welcome many such people, keen for their values to be recognised, into his church. Of course, the most reverend Primate talked about those values. As I said at Second Reading:

“According to the most reverend Primate himself, ‘in Christian understanding, the core concepts of households and family include holiness, fidelity, hospitality and love above all, because God is holy, faithful, welcoming and overflowing in love, and any human institution that reflects these virtues also in some way reflects God’”.—[Official Report, 18/1/19; col. 427.]


When we adopt the Bill, I am sure that civil partners will reflect those values; many people in same-sex marriages certainly hold those values, as we have heard. If the Church does not catch up with them, they will go somewhere else.

I recognise that the Church is on a difficult journey because of the strong beliefs referred to by the right reverend Prelate. Clearly, there are divisions there, as there are in our society, but I know that the journey we have been on since the introduction of civil partnership has transformed our society. I remember the debates on the same-sex marriage Bill. People said that it would be a disaster, that society would collapse and that the situation would be terrible. Well, that has not happened. People recognise the value of those relationships in making a much stronger society where we can love in communities.

Instead of setting a discordant note, I hope that asking the question today will help not only the Church of England but other religious institutions to catch up with the reality: people of the same sex can love each other in a very rewarding way.

[Baroness Williams of Trafford]

My Lords, I thank all noble Lords who contributed to the debate. In particular, I thank the right reverend Prelate the Bishop of Chelmsford for his remarks, which give everyone hope in the context of today’s debate. I recognise the depth of feeling among Members of both Houses and people around Parliament, but I am afraid that I must resist the amendment in the names of the noble Lords, Lord Faulkner of Worcester and Lord Collins of Highbury.

As noble Lords have said, the amendment seeks to amend the Marriage (Same Sex Couples) Act 2013 to remove the exemption for members of the clergy from solemnising the marriage of same-sex couples. The 2013 Act provided an opt-in system so that same-sex marriages can occur only on religious premises, or under religious rites, where the governing religious body has expressly consented. There is no requirement to give such consent.

We have always been clear that no religious organisation should be forced to marry same-sex couples—I think the noble Lords made that clear—or to host civil partnerships. A number of religious organisations have chosen to opt in by providing blessings and, again, the right reverend Prelate the Bishop of Chelmsford gives us hope when he talks about the process of living in love and faith that the Church of England is currently going through. We hope that more organisations will do that in the future, but it is right that it should remain a decision for them. It is not for the Government to mandate this through regulations.

The noble Lord, Lord Collins of Highbury, raised this issue at Second Reading. He urged the Church of England to permit same-sex couples to have a blessing of their marriage. In response, the right reverend Prelate the Bishop of St Albans said:

“I will resist the temptation to widen the debate beyond the scope of the Bill … I do so because I want us to focus absolutely on what we are trying to deliver”.—[Official Report, 18/1/19; col. 432.]


That is a good message for today but it does not preclude our having other debates on the points made by the noble Lord. I do not, however, believe that they are relevant today. Indeed, the danger is that they will confuse matters if we go beyond the scope of what we are trying to do.

This is a multifaceted Private Member’s Bill and we should keep it as simple as possible. I hope the noble Lord will withdraw his amendment.

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[Lord Kilclooney (CB)]

My Lords, the Northern Ireland Assembly approved same-sex marriage but it was rejected by the procedures of the Northern Ireland Assembly by a petition of concern. When we drew up the Belfast agreement and the petition of concern was created, it was intended to be used so that one political party would not impose its will on another on issues such as economics, social policy or constitutional politics. I do not think it was ever considered the means for one community to impose its moral standards on another. The basic problem here is that the petition of concern has been used to negative the decision of the Assembly. What needs to be addressed is whether the petition of concern should be amended to ensure that it is not used by any religious minority to impose its will on others.

[Lord Collins of Highbury]

My Lords, I will be brief. I welcome those last comments because the noble Lord, Lord Hayward, has today offered us a way forward that addresses the issue of devolution and the role of the Assembly. The journey that everyone has been on, which I referred to earlier, has also been taken by the DUP. I am sorry that the noble Lord, Lord McCrea, is no longer here; when I used to visit Northern Ireland on many occasions as a trade union official, I would never have dreamed that I would see the DUP leadership on a Gay Pride march, but we have seen that. We have seen them engage with the LGBT community. So I am not pessimistic. This is a really good way to show the people of Northern Ireland that we want them to have equal rights, and this is a clear way of doing so without affecting devolution.

[Baroness Williams of Trafford]

My Lords, I thank noble Lords who have spoken in this debate on the amendment in the name of the noble Lords, Lord Hayward, Lord Collins and Lord Cashman. I have considerable sympathy with their arguments, as they will all know—I spoke to my noble friend yesterday—but I am afraid I cannot support the proposed new clause.

The amendment seeks to change the law of Northern Ireland to extend same-sex marriage to couples there within 10 months of the Act receiving Royal Assent. Equality, civil partnerships and marriage are all devolved matters, so it is for the relevant Administration in Northern Ireland to legislate to make any necessary changes to the law relating to civil partnerships and marriages, but I note with considerable interest the words of the noble Lord, Lord Kilclooney, on the matter of the petition of concern. That gives me hope that things might be resolved there in future. However, at this point in time, Northern Ireland has chosen not to extend marriage to same-sex couples. While noble Lords might disagree with that position, it is clearly a matter for the Administration in Northern Ireland. The Government have made very clear that same-sex marriage is a devolved issue and the Assembly is the proper place for such legislation to be considered.

The fact that there is not currently a functioning Government in Northern Ireland does not alter the principle that it is for the devolved Administration to legislate on such matters, although I note the comments of the noble Lord, Lord Cashman. I appreciate that this situation is not ideal and understand noble Lords’ desire to make progress on this very important issue. Restoring the Executive remains a key priority for the Government, which will allow the Northern Ireland Assembly to take important decisions on issues pertaining to the people of Northern Ireland. I hope that, in light of what I have said, my noble friend feels able to withdraw the amendment.

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[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 Williams of Trafford]

I thank the noble Baroness for bringing forward her amendment, but I am afraid that I am not able to support it. Amendment 3A seeks to remove from the Bill an important provision that will allow for the extension to parents of stillborn babies the same transparent and independent investigation into their loss that is granted to the parents of a newborn baby whose life ends soon after birth. The power is needed because the provisions for the exercise of coronial powers are limited to very explicit duties. There is no provision for coroners to undertake investigations beyond this. A stillborn baby, having not lived independently of its mother, is out of scope of the investigatory duties of the coroner.

We will consult on this issue. It is our intention that, if we conclude at the end of the consultation that it is right for stillbirths to be investigated by coroners, their duty to determine who has died—and how, when and where that death occurred—will be extended to apply to specified stillbirths. Should that be where the consultation takes us, we will want to learn lessons from investigations into stillbirths, just as we do at the moment in child and adult deaths where, under certain circumstances, the coroner will produce a prevention of future deaths report.

Coroners’ powers to investigate a stillbirth would mirror those relating to other deaths, with powers to compel witnesses and require the production of documents and order medical examinations of the stillborn baby. The powers provided for in Clause 4(4) are intended to allow for the existing framework for coronial investigations to be extended to include the investigation of stillbirths. The existing provisions were thoroughly scrutinised when the Coroners and Justice Bill, now an Act, was debated in this House and another place. In exercising this power, the Lord Chancellor will be required to lay any regulations before your Lordships’ House for consent when the regulations amend primary legislation.

Clause 4 provides that the Secretary of State will report on the question of coroners investigating stillbirths. But, having consulted and produced that report, if the conclusion is that coroners should investigate stillbirths, the Government should then move forward in a timely way. Clause 4(4) provides the mechanism to do that, with the safeguards provided in subsections (5) and (6) appropriate to the changes that are in scope. The power is rightly limited by Clause 4(6), a sunset provision which sees the power fall away if it is not used within five years of the Secretary of State publishing his report.

Reforms to the way that health providers review stillbirths have been evolving, with significant developments under way. This period provides the flexibility needed should the final legislative proposals need to reflect these developments, while providing for the Government to act quickly if the report finds that this is what is needed.

I am sure that it was not the noble Baroness’s intention, but to amend the Bill to leave out Clause 4(4) without also leaving out Clause 4(5) and (6) and without further amendments to Clause 5(2) and (3)—which also reference the power provided through Clause 4(4)—would leave Clause 4 not in a coherent state, if I might put it like that. I am sure that my noble friend Lady Hodgson will agree to meet the noble Baroness in due course, but I hope that at this stage she will withdraw her amendment.