Marriage and Civil Partnership (Scotland) Act 2014 and Civil Partnership Act 2004 (Consequential Provisions and Modifications) Order 2014

Lord Hope of Craighead Excerpts

Monday 1st December 2014 Grand Committee

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, in moving that the draft order laid before the House on 27 October 2014 now be considered, if it pleases your Lordships I will briefly put this Section 104 order in context before setting out what it does. The order is made under Section 104 of the Scotland Act 1998—indeed, in that respect it is similar to the first order that we debated in Committee this afternoon—which allows for necessary or expedient changes to legislation in consequence of an Act of the Scottish Parliament. The order is made in consequence of the Marriage and Civil Partnership (Scotland) Act 2014, which I shall refer to as the 2014 Act.

The order is additionally made under Section 259(1) of the Civil Partnership Act 2004. Section 259 of that Act provides for subordinate legislation to be made in the United Kingdom Parliament containing provisions in connection with civil partnerships. The order cites this power because it adds some consequential references in legislation to civil partnerships that were missed when the Civil Partnership Act was being implemented. Picking up those missed consequential references is clearly not done as a consequence of the introduction of the 2014 Act in Scotland. That is why the separate provision—namely, Section 259(1) of the Civil Partnership Act 2004—is cited.

The 2014 Act introduces same-sex marriage and religious and belief registration of civil partnerships in Scotland. It also allows transgender people who married in Scotland to stay married and obtain a full gender recognition certificate, and it makes other changes to marriage and civil partnership law in Scotland. The order updates existing United Kingdom legislation to give the 2014 Act full effect and ensures similar treatment for Scottish same-sex couples and transgender people across Great Britain. Finally, it also allows for same-sex marriages solemnised in Scotland to be recognised as civil partnerships in Northern Ireland.

The 2014 Act is broadly equivalent to the Marriage (Same Sex Couples) Act 2013, which introduced marriage of same-sex couples in England and Wales. That Act, which I shall refer to as the 2013 Act, is being implemented in phases. The first phase consisted of a number of instruments which came into force on 13 March 2014. The final phase of implementation consists of further affirmative and negative instruments primarily concerned with conversion of civil partnerships into marriage and enabling transgender people to remain married if they and their spouse wish. These will come into force on 10 December.

This Section 104 order makes very similar consequential provision for Scotland in relation to reserved matters, such as pensions, similar to that contained in both the first and second phases of implementation of the England and Wales legislation. This is because the 2013 and 2014 Acts enact similar propositions and give rise to similar consequential provision. The order makes consequential provision for same-sex marriages generally in relation to transgender people and provides for the changing of civil partnerships into marriages overseas.

The United Kingdom and Scottish Governments have worked very closely together on the implementation of the 2013 and 2014 Acts and the various subordinate legislation so that they work together as a package. For example, the orders which will implement the second phase of the 2013 Act also make certain consequential provisions for Scotland, including amendments to certain Armed Forces pension schemes, as well as the Royal Mail pension scheme and schemes relating to particular bodies carrying out functions in the area of transport.

Having set out the context and interaction with the implementation of the 2013 Act, I turn to the order itself and will say a bit more about its content. The order amends the Equality Act 2010 as it applies in Scotland to give protection to celebrants and others who do not wish to take part in same-sex marriage ceremonies and the registration of civil partnerships in a way that is appropriate for Scotland.

The order creates a statutory gloss which provides that references to “marriage” and related expressions in the reserved law of Scotland mean both opposite-sex and same-sex marriage, unless contrary provision is made. The order also disapplies that statutory gloss in certain circumstances and makes contrary provision to it.

The order makes provision for civil partnerships registered in Scotland to be changed into marriages overseas, either through UK diplomatic posts or through the Ministry of Defence and the Armed Forces. The order also makes provision so that same-sex marriages registered in Scotland are recognised as civil partnerships in Northern Ireland.

Moreover, with respect to provision relating to transgender people, the order establishes the alternative grounds for applications to the gender recognition panel by long-term transitioned people in a protected Scottish marriage or protected Scottish civil partnership who are resident in England or Wales. It makes provision so that the spouse or civil partner of a transgender person who is resident in England and Wales but who has obtained a gender recognition certificate under the 2014 Act can apply to the High Court in England and Wales or the High Court Northern Ireland to quash the decision to grant the application on the grounds that its grant was secured by fraud. It also ensures full recognition in England and Wales and Northern Ireland of transgender people who married or entered their civil partnership in Scotland and obtain a full gender recognition certificate under the 2014 Act.

The Scottish Government intend that their first conversions of civil partnerships into marriage will take place on 16 December; it is also intended that the first same-sex marriage ceremonies in Scotland will be able to take place on 31 December 2014. The order is part of the wider legislative programme to provide for the introduction of same-sex marriage in Scotland within this calendar year. In addition to the legislation taken forward in this Parliament, 11 instruments have been laid to date in the Scottish Parliament, and I understand that a possible 10 more are planned. As part of that programme, the order makes the changes to reserved law and the cross-border provision I described.

Yet again, and particularly in this case, the United Kingdom and Scottish Governments—Ministers and officials—have worked closely together to ensure that this complex programme of work has met its challenging timetable. The order demonstrates that the UK Government’s continued commitment to working with the Scottish Government to make the devolution settlement work is bearing fruit. I hope that your Lordships will agree that the practical result of this continued collaboration is to be welcomed. The other place considered the order on 25 November. I commend the order to the Committee. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I am very grateful to the Minister for his explanation. It is a very welcome measure, if I may say so, and I entirely endorse the point that the noble and learned Lord made about the degree of co-operation between those responsible for legislation north of the border and those responsible for legislation in the wider context of the United Kingdom. It struck me that the drafting, particularly of schedule 1, is of considerable interest—I think that part 1 has been very carefully crafted to make it clear that it deals with reserved matters only, in appropriate language, and does not encroach on matters that are the province of the Scottish Parliament. No doubt that is an example of the degree of co-operation between the two Administrations.

I also found it helpful to see the provisions in paragraph 3 of part 2 of schedule 1, which contains a set of definitions, particularly of the expressions “husband”, “wife”, “widower” and “widow” in the context of the measure. I think that the words as defined are now in quite common use, but it is helpful to see them set out in statutory form. I would be interested to know whether that has been done equally north of the border, but to see it in this measure, at least, is encouraging to those who wondered exactly how these expressions might properly be used.

For the main part, this is an excellent example of co-operation. I was going to ask whether the Scottish Government had been kept fully informed, but I take it from what the noble and learned Lord said that there is simply no question about it: they are well aware of this measure, and if further steps need to be taken by the Scottish Parliament or the Scottish Government to match what has been done here, they will certainly be taken.