Civil Partnership (Scotland) Act 2020 and Marriage and Civil Partnership (Scotland) Act 2014 (Consequential Modifications) Order 2022

Lord Hope of Craighead Excerpts

Tuesday 14th December 2021 Grand Committee

[Lord Hope of Craighead (CB)]

My Lords, I very much welcome this order for a particular reason, if I can give a little bit of history. As the noble Viscount will be aware, I sat as a Lord of Appeal in the days when the House of Lords was the final Court of Appeal. In one case, which is very firmly in my memory, a couple appeared before us who were unable to marry. As far as one could tell they looked a perfectly normal, very respectable and charming man and woman, but the problem was that the man had been born as a woman. In those days, we did not have all the language to express that, as we have nowadays. It was a sex change problem. The problem was that the Marriage Act made it absolutely clear that whether one was a man or woman for the purposes of marriage was dependent on the sex at birth. We were unable to give them the authority to marry, but we drew the Government’s attention to the fact that there was a human rights element to this—a right to family life and so on—that they were being denied by the wording of the Marriage Act.

I must say that the Government acted commendably well in response to what we said. It led to the Government bringing in the civil partnership legislation, which was to deal with the problem of people of the same sex at birth wanting to marry. Certainly, as Law Lords, at the time we never contemplated that marriage would have to be replaced by a civil partnership between opposite sexes, but the Government have moved on, and there is obviously public demand for this now—people want to use civil partnerships rather than go through a formal marriage. I understand that. It makes obvious sense to do what the measure does to make up the position so that there is an equality of treatment through all the legislation.

There is one common law right that I do not think this measure deals with, but there is a way round it. If one dies intestate there is a legal right that children have, called legitim. At the moment, children of civil partnerships do not have that right because in common law it is available only to children of particular individuals who marry. Civil partnerships are not recognised in the way the legislation is designed for common law, because it is for children of a regular marriage.

There is not a problem, because those who wish to take advantage of legal rights can cure the problem by the adoption process, because adoption has allowed for it, but I wonder whether the noble Viscount and his advisers might take away consideration as to how to deal with legitim. At the moment, as I understand it, you have to go through the adoption process to give the children of a civil partnership the right to legitim. I might be wrong about this. As it happens, I have been looking at a soon to be published textbook on this subject that indicates that children of a civil partnership do not have the right to legitim, which one would want them to have. Because it is common law it is not embraced in the legislation, but it might be helpful if something was done about that to address what is quite a real problem. This is a right that attaches to every estate; it is a legal right given by common law. You cannot disinherit children in Scotland, because they have a right to a part of the estate. We would want to be sure that that survived into a civil partnership.

The only other point I want to ask the Minister about is whether there is any statistical information on how widely this provision is being used for its original purpose, between same-sex couples, and/or now between couples of opposite sexes. I rather think it has overtaken the same-sex situation. Although that solution is available—it is the one solution that same-sex couples have—it has rather overtaken it. But that would be quite interesting, if there are statistics readily to hand; if there are not, do not bother about it—but it would be interesting to know how widely it has been taken up between those two branches of couples.

That all having been said, I very much welcome this legislation. It makes obvious good sense and, as far as I can see, has done all the right things where statutory law is concerned, leaving aside the common-law problem to which I have drawn attention.

[Lord Tunnicliffe (Lab)]

My Lords, I am struggling in a sense with this Scottish stuff. I suppose it shows that I do not really understand the devolution settlement. My simple idea is that the settlement says, “Scotland can do what Scotland wants to do, except where powers are reserved to the United Kingdom as a whole”. It seems that what we have in this order means that, to achieve that, reserved law sometimes interferes at the edges. If one is respecting the devolution settlement, one should accede to the requests of the Scottish Government to change this stuff around the edge to meet what Scotland wants to do. Once again, I do not think it is really our business whether what Scotland wants to do is a good or bad idea.

I was not helped on this order because I did not have the training, mind or history of the noble and learned Lord, Lord Hope. I always enjoy him presenting his ideas on these occasions. Unfortunately, I did not really grasp the SI. I read it—no, let us be realistic. I read the Explanatory Memorandum several times, but I just could not keep up with the interrelationships.

Another thing I am sensitive about in the Scotland situation is that to blunder into such sensitive areas and make any comments on the substance of what the instrument is trying to achieve is probably unwise because one could, at the end of the day, create offence. Accordingly, I shall refrain from commenting on the substance. I have only one question: the Explanatory Memorandum says at its beginning that it is created by the Scotland Office, but it reads as if it is a consensus document between the Scotland Office and the Scottish Government. Who fundamentally created this statutory instrument? That is: whose ideas were they, and it is in fact a consensus document between the Scottish and UK Governments? If it is, I can see no way in which the SI adversely affects the UK-wide legislation, which I believe is the limit of our concerns. Accordingly, we support this statutory instrument.