Marriage (Same Sex Couples) Bill

Lord Mackay of Clashfern Excerpts

Tuesday 4th June 2013 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, I declare an interest as the honorary president of the Scottish Bible Society and as a member of various Christian groups. I thank my noble friend for the way in which he initiated this debate and the Bill team for its help in piloting me through the complexities of this legislation.

The issues in this debate are extremely important but also extremely sensitive. I intend to confine myself to analysis of certain aspects of the Bill as I understand it and, if I am wrong, I invite correction.

The principle of the Civil Partnership Act 2004 was to construct a legal relationship as closely as possible to the legal relationship of married couples, and that was successfully achieved. The principle of this Bill is to open the institution of marriage to same-sex couples. An institution is more than just a name: it is defined by its purposes and by the conditions under which it may be entered. The institution of marriage exists for the mutual support of the spouses and to provide a suitable environment for the natural procreation of children by the spouses and for their growth and development.

It was realised long ago that if spouses were too closely related there was a risk to their children from inbreeding and therefore the prohibited degrees of relationship were laid down under which it was not lawful to marry. The extent of the prohibition has varied over time but it has always included close relationship by blood. So important a purpose is the natural procreation of children in the institution of marriage that the prohibition applied even when the parties were well over the age of childbearing or unable to bear children for other reasons.

While the natural procreation of children may be a possibility for a man and a woman, it can never be for a same-sex couple. Therefore a union between them, however loving, cannot have this purpose. Therefore the union proposed for a same-sex couple must be different from marriage since it cannot have this purpose. Non-consummation is not a ground for declaring this union void. A marriage is voidable on the ground of non-consummation, and this implies that it will generally involve sexual intercourse between the parties. There is no such implication in the union proposed in this Bill. Sexual relations with a person of the same sex as the parties is not expressly mentioned as a ground of divorce here.

For all these reasons I conclude that the union open to same-sex couples in the Bill is not the institution of marriage but a new and different institution which deserves a name of its own.

Marriage has developed over the years. No previous development is anything like this. This is not a development; this is a new creation. The express purpose of the Bill is to open the institution of marriage to same-sex couples, including those in a platonic relationship. I am satisfied that the Government have done the best that can be done and that no amendment in Committee or on Report will achieve that purpose. Therefore, if the amendment of the noble Lord, Lord Dear, is pressed, I propose to vote for it.

I am here because the Writ requires my counsel. I know that our constitution allows the elected House, if it wishes, to prevail over my view and that of this House if that is its purpose.