Marriage (Same Sex Couples) Bill

Lord Wallace of Tankerness Excerpts

Wednesday 19th June 2013 Lords Chamber

[Lord Singh of Wimbledon]

Again, I have not for a moment said that the rest live in a moral vacuum. I simply stated what religion is all about, because that seems to have been lost in this debate. Very often the debate is religion against society, and it is not that.

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

My Lords, I will address the amendments moved by the noble Lords, Lord Curry of Kirkharle and Lord Singh of Wimbledon, in a moment, but I start by speaking to government Amendments 21 and 51. Government Amendment 21 specifies the relevant governing authorities for giving consent to same-sex marriages according to the rights and usages of the Jewish religion. It replaces the provisions currently in the Bill with a definition that reflects the current arrangement for the Jewish community.

During the Committee evidence sessions in the other place, Sarah Anticoni of the Board of Deputies of British Jews’ Family Law Group referred to drafting issues which it had brought to the Government’s attention. This amendment is the result of discussions with the Board of Deputies of British Jews about those drafting issues, and the Government are very grateful to the board for its helpful and constructive contribution to the completion of this amendment, despite representing a wide range of views on same-sex marriage.

The Marriage Act 1949 already provides a definition of “secretary of a synagogue” in respect of the registration of Jewish marriages. This is because the Jewish religion already has specific provisions for its marriages in the Marriage Act which date back to 1753. This amendment ensures that the new provision in respect of the relevant governing authority reflects the modern structure of the Jewish community.

Government Amendment 51 provides that, where a governing authority has given consent to marriages of same-sex couples, that consent will not be affected purely by a change in the person or persons constituting that governing authority. Where a governing authority provides consent and thereby opts into conducting marriages for same-sex couples, a change in the person or persons who make up the authority will not render the consent void, negate it or remove it. The consent will still stand. However, this does not prevent the new governing authority from revoking the consent and deregistering the building, but this amendment makes clear that that would not happen automatically.

Amendment 22, in the name of the noble Lord, Lord Singh, provides a specific reference to the governing authority of the Sikh religion in relation to opting into same-sex marriage. I assure the noble Lord that no disrespect is intended towards the Sikh religion, or towards any other denomination or faith that is not specifically mentioned in the Bill, and that this amendment is not needed.

[Lord Singh of Wimbledon]

It may be that no disrespect is intended, but disrespect has been taken and many people are extremely upset about it. I still do not know why the omission occurred. Was it inadvertent or was it deliberate?

[Lord Wallace of Tankerness]

I apologise if any disrespect has been taken; it was certainly not the intention. A general reference to the governing authorities of religious organisations other than the Church of England, the Jewish religion and the Quakers is already included in the Bill—not by specific reference, but it is covered. The governing authority for the Sikh religion would be covered by this and would enable the members of the Sikh religion to determine who would be their relevant governing authority for the purpose of consenting to same-sex marriage.

The Government do not think it desirable to specify in legislation the governing authority for any particular religious organisation. That is properly a matter for the members of the religious organisation themselves. For the Government to seek to prescribe this would be an inappropriate interference in the internal governance and autonomy of religious organisations, which should be free to decide, and indeed change, their decision-making arrangements for themselves.

I think it was reflected in what the noble Lord said that he is trying to replicate the specific reference that the governing authorities of the Jewish religion and the Society of Friends—the Quakers—have within the Bill. However, as has already been indicated, they are both in a different position, given their particular treatment under the Marriage Act 1949, which arises from arrangements put in place hundreds of years ago to reflect their particular circumstances at the time. They have long had different arrangements under marriage law and therefore their governing authorities are already specifically referred to in the Marriage Act. In line with that treatment, specific reference must be made to their governing authorities in this Bill. This is not required for other religious organisations, where the relevant governing authority should be determined by the members of each organisation. Indeed, my own religious denomination, the Church of Scotland, which has places of worship in England, is not referred to in this Bill—for the very good reason that there is no historical reason why it should be.

Amendment 20 is similar to an amendment debated in Committee in the other place. It inserts provisions regarding the definition of the relevant governing authority, whose written consent is required to opt into the registration of a religious organisation’s place of worship for marriages of same-sex couples. The amendment provides that where there is a dispute over the recognition of the governing authority, the Secretary of State is required to consult members of the religious organisation and if necessary hold a ballot in which at least 66% of members cast their votes. Members are defined as people who have been on a formal membership roll for 12 months or who have attended the majority of services held over a 12-month period.

As I have already indicated, the Government do not believe that it is right for the state to restrict the independence of religious organisations and interfere with their internal governance in this way. Quite properly, that is a matter for each religious body to determine for itself, and we believe that the Bill as it stands gives adequate clarity about what is required regarding the consent of the governing authority of a religious group to marriages of same-sex couples, since the question of who the governing body is will be a matter of fact in each case. If there is a dispute over the identity of the relevant governing authority, that is a matter for the religious organisation to deal with internally, and we do not wish to create additional burdens for religious organisations. Nor indeed do we wish the Secretary of State and the state itself to become involved in internal disputes within a religious organisation.

The noble Lord, Lord Singh, gave us a very helpful explanation as to why he had moved this amendment with reference to the authority in his Sikh religion. It is helpful to have that information about the structure of the Sikh religion, because it illustrates exactly why it would not be proper for the Government to intervene in a religious organisation and its internal workings. It would be quite wrong for the Government to determine which part of the Sikh community should prevail, and it would be a near impossibility for the Government even to identify every religious organisation in the country and make the kind of provision that he would make. Undoubtedly someone would be left off, and that has its own implications. I can assure the noble Lord, Lord Singh, that the references to the Jewish faith and to Quakers are for long-standing historical reasons, and I invite the noble Lord, Lord Curry, to reflect on the fact that it is not appropriate for the state and the Secretary of State to intervene in such a way with the internal workings of a religious organisation. On the basis of that, I invite the noble Lord not to press his amendment.

[Lord Singh of Wimbledon]

I am grateful for what has been said, but it does not really explain the concerns at all. If there had been any sort of research into the Sikh religion, the Government would have had precise answers as to the state of play in that religion and what and who is the authority. No research whatever has been done. It has been considered unimportant and that is what really upsets. The concern is very similar to that of my noble friend Lord Curry: that any fringe group can say that it is in charge of this or that. If the Government do not wish to take note of someone speaking on behalf of the largest and only relevant authority in India, that is up to them, but this is aiding a “divide and rule” culture that is unhelpful, and that will not be welcome in the community.

[Lord Elton]

My Lords, this echoes precisely what I was saying at Second Reading. It is a very good example of what is wrong with this whole process. We started off with one unhappy minority and we are going to finish up with 15 or 20 who have not been consulted in the process to the extent that the others have.

[Lord Wallace of Tankerness]

My Lords, I appreciate the point that the noble Lord, Lord Singh, is making, but I ask him to reflect on the fact that the exceptions are exceptions for historical reasons of the Church of England and the Church in Wales where there is a common-law duty with regard to priests in relation to people within their parish. Quakers and the Jewish faith are included for reasons that go back centuries. Every other religion in England and Wales is treated in the same way. Even my own denomination, the Church of Scotland, is treated in the exactly same way as the Sikh faith is treated by the provisions in this Bill for the religious organisation itself to determine what its appropriate authority is.

It is quite clear from what the noble Lord has said that there is no doubt within his faith as to where that authority lies, just as in my own denomination the General Assembly of the Church of Scotland would be the obvious authority. The fact that he has been able to make very clear where that authority would lie just shows the importance of it being determined by the religion itself. I also ask him to reflect on the fact that if we included his amendment, every other faith and denomination would have to be included as well. That would be an impossible task for a Government and would take them into having to decide which the proper authority of some religions is, and I do not believe that is where the state should go.

[Lord Pannick]

My Lords, I would just add that if the state were to conduct such an exercise and purport to decide for religious bodies what the proper religious authority is, difficult questions would arise under Article 9 of the European Convention on Human Rights.

--- Later in debate ---

Moved by

[Lord Wallace of Tankerness]

21: Clause 5, page 6, line 18, leave out from “purpose” to end of line 25 and insert “the meaning of “relevant governing authority” is to be determined in accordance with this table—

The “relevant governing authority” is...	...if the marriage falls to be registered by...
the Chief Rabbi of the United Hebrew Congregations of the Commonwealth	the secretary of a synagogue certified under paragraph (a) of the relevant definition (certification by the President of the Board of Deputies)
the person or persons duly recognised by the members of—(i) the West London Synagogue of British Jews (“the West London Synagogue”), and(ii) the other synagogues that are constituents of or affiliated to the Movement for Reform Judaism	—either the secretary of the West London Synagogue, as certified under paragraph (b) of the relevant definition—or the secretary of another synagogue in a case where:(i) the secretary is certified under paragraph (d) of the relevant definition by the secretary of the West London Synagogue, and(ii) the synagogue is one of those which are constituents of or affiliated to the Movement for Reform Judaism
the person or persons duly recognised by the members of—(i) the Liberal Jewish Synagogue, St. John’s Wood (“the St. John’s Wood Synagogue”), and(ii) the other synagogues that are constituents of or affiliated to Liberal Judaism	—either the secretary of the St. John’s Wood Synagogue, as certified under paragraph (c) of the relevant definition—or the secretary of another synagogue in a case where:(i) the secretary is certified under paragraph (d) of the relevant definition by the secretary of the St. John’s Wood Synagogue, and(ii) the synagogue is one of those which are constituents of or affiliated to Liberal Judaism
the person or persons duly recognised by the members of the synagogue by whose secretary the marriage falls to be registered	the secretary of a synagogue certified under paragraph (d) of the relevant definition (certification by the secretary of the West London Synagogue or the secretary of the St. John’s Wood Synagogue) in a case where the synagogue is not one of those which are constituents of or affiliated to:(i) the Movement for Reform Judaism, or(ii) Liberal Judaism

In that table—
(a) “relevant definition” means the definition of “secretary of a synagogue” in section 67;(b) a reference to a person or persons being duly recognised is a reference to the person or persons being recognised for the purpose of giving consent for the purposes of this section.”

--- Later in debate ---

[Baroness Thornton]

My Lords, Amendment 26A in the name of my noble friend Lord Alli would remove the special arrangements made in the Bill to require the legal recognition of marriages of same-sex couples as civil partnerships in Scotland and Northern Ireland. I sympathise with the sentiment behind these amendments. British same-sex couples who get married in England or Wales but choose to live in Scotland or Northern Ireland will not have their status legally recognised for what it is. However, it is the nature of devolution that we cannot impose the will of Westminster on devolved Administrations in areas where it has ceded authority.

Marriage law is devolved to both Northern Ireland and Scotland, meaning that any desire by Westminster to legislate in this area for the whole of the UK requires the consent of these Administrations. I know that Scotland is in the process of looking at same-sex marriages at the moment, so I hope that we shall shortly see same-sex marriage introduced in Scotland and therefore this issue will become somewhat less relevant.

In Northern Ireland, civil partnerships have been available since 2005. However, Northern Ireland has chosen not to consider extending marriage to same-sex couples at this time. A Motion calling on the Northern Ireland Executive to legislate to allow for same-sex marriage was narrowly defeated in its Assembly last month. I recognise my noble friend’s frustration at this. However, I ask the Minister, what are the implications if the legislative consent Motion is not agreed to by the Northern Ireland Assembly? Does it mean that married couples of the same sex living in Northern Ireland may be left in a worse position, having no legal recognition of their status whatever? What might be the implications for children and pensions? I am concerned about the legal implications of such a disparity of recognition and hope that the Minister will be able to answer the questions I have around this issue.

Couples in a civil partnership are prohibited from adopting children in Northern Ireland—a situation which is currently being challenged in the High Court. For those couples who have been married and adopted children in England and Wales and who move to Northern Ireland, what will be the status of their adopted children? Will the couple be recognised as the legal parents where they are living?

In relation to pension rights and accrued survivor benefits, if a married same-sex couple have been living in England for 10 years and then move to Northern Ireland, will they lose the right to those accrued benefits, or will they be carried over to their civil partnership status?

[Lord Wallace of Tankerness]

My Lords, I welcome the opportunity to clarify how the Bill, which makes provision for marriage of same-sex couples under the law of England and Wales, affects Scotland and Northern Ireland. I assure your Lordships that the Government have had lengthy and considered discussions with Scotland and Northern Ireland Ministers and officials to ensure that where the Bill touches on devolved matters, it does so appropriately. I understand where the noble Lord, Lord Alli, is coming from on this but it is not possible for us to accept his amendment or, indeed, those spoken to by my noble friend the Duke of Montrose, which would cut across the approach that we have been discussing with the devolved Administrations.

Indeed, the effect of the amendment of the noble Lord, Lord Alli, would be to remove the relevant part of Schedule 2 to the Bill. It might be helpful if I explain the effect, and importance, of Schedule 2. Without the provisions in Schedule 2, if a same-sex couple married in England or Wales, their relationship would not have legal status if they subsequently travelled or moved to Belfast or Glasgow. It is not that their marriage in England or Wales would become a civil partnership; it would have no status whatever under the law of Scotland or Northern Ireland.

[Lord Alli]

But it does not have a legal status in Northern Ireland and Scotland because it is a marriage in England and Wales. What the Bill is proposing is for this Government and this Parliament to request—because that is all we can do—the devolved Administration in Northern Ireland and the Scottish Parliament to accord it a lower status in those territories.

[Lord Wallace of Tankerness]

My Lords, the position is that, as things stand at the moment, there is no provision in either Scotland or Northern Ireland for same-sex marriage. Therefore, if a same-sex couple who are married in England and Wales were to move to Scotland or Northern Ireland, their relationship would not have a legal status of marriage in Scotland or Northern Ireland because that provision does not exist. There is no such thing at the moment in Scotland or Northern Ireland as same-sex marriage. Schedule 20 to the Civil Partnership Act 2004 lists the overseas same-sex relationships which are treated as civil partnerships in the United Kingdom. This partly answers the question raised by the noble and learned Baroness, Lady Butler-Sloss.

At the moment, overseas same-sex marriages are not recognised as marriages in England, Wales, Scotland or Northern Ireland. They are treated as civil partnerships in the United Kingdom, and Section 213 of the Civil Partnership Act 2004, under which Schedule 20 has effect, also sets out the general conditions which must be met for such relationships to be recognised in the United Kingdom. If the amendment of the noble Lord, Lord Alli, were to be carried, we would have the slightly anomalous situation where a couple moving to Belfast or Glasgow would be in a worse position than a same-sex couple who married in Portugal, or elsewhere overseas where same-sex marriage is permitted, and then went to live in Scotland or Northern Ireland.

Under the current law, the 2004 Act, these same-sex marriages contracted, for example in Portugal, would be treated as a civil partnership. If this Bill becomes an Act, we do not wish to see a situation where a same-sex couple married in England would have lesser legal status in Scotland or Northern Ireland than a same-sex couple who married in Portugal. It is for that reason that Schedule 2 exists. As the noble Lord indicated, marriage and civil partnerships are devolved matters. The noble Lord asked why Secretaries of State for Scotland and Northern Ireland could not get together with Scottish or Northern Ireland Ministers to make them marriages. That is not how devolution works. Legislation would have to be passed by the Scottish Parliament or the Northern Ireland Assembly.

As the Bill anticipates, referred to by the noble Baroness, Lady Thornton, the Scottish Government have indicated that they will bring legislation before the Scottish Parliament to bring about same-sex marriage as a legal status in Scotland. That is why, if noble Lords look carefully at the provisions for Scotland in Schedule 2, the order-making power would not have effect if the Scottish Parliament passes legislation for same-sex marriage. In many respects, what is there is deliberately framed, recognising the likelihood that same-sex marriage legislation is to be brought forward in Scotland in the relatively near future.

It is probably also fair to say that same-sex marriage legislation does not appear to be on the horizon in Northern Ireland. That is why the position regarding Northern Ireland is that there is not an order-making power, which will lapse in Scotland when or if Scottish law changes, but rather one that sets out in primary legislation the same position for same-sex marriages contracted in England and Wales in Northern Ireland, as is the case for same-sex marriages contracted in other countries, such as Portugal. People there would be in the same position in Northern Ireland as they would at present.

Last week, the Scottish Parliament passed a legislative consent Motion to the provisions in this Bill which impinge and deal with devolved matters affecting Scotland. The question was asked what would happen if we could not get a legislative consent Motion from Northern Ireland. Our concern would be that this would risk leaving couples with no legal status in a part of the United Kingdom. This could have important European Convention on Human Rights implications. We would need to consider this carefully if this situation arose and whether amendments to the Bill would be needed.

I know that this is not what the noble Lord, Lord Alli, wishes to see, but given the devolution settlement, this Parliament should not legislate for same-sex marriages in Scotland or Northern Ireland and I do not think that anyone in this Parliament is arguing for it. However, in the absence of legislation there, it is important that we give couples who have contracted a same-sex marriage in England and Wales a legal status in Scotland and Northern Ireland. Without the schedule they would have no legal status, so we are putting them on a par with couples who are married in other countries which have passed legislation on same-sex marriage.

--- Later in debate ---

[The Duke of Montrose]

My Lords, I always understood that the first purpose of an order was to be a blanket order to cover all situations. What remains from my questions is: what process does the Minister expect to use for the implementation of the order and what account does it take of the separation of powers? I think that he was saying that the Scottish Parliament has agreed that you can cross-mix the powers.

[Lord Wallace of Tankerness]

My Lords, the Scottish Parliament has agreed a legislative consent Motion to the provisions in the Bill relating to Scotland, which is very much what we are talking about. The procedure is that the order-making power would be subject to the negative procedure. I am aware that the Delegated Powers Committee has suggested looking at the possibility of there being an affirmative power. We will obviously give consideration to that, but the power also requires the consent of Scottish Ministers. That will be the process. Consent will be required from Scottish Ministers and there will be a negative procedure in this Parliament, subject to our considering the recommendations of the Delegated Powers Committee.

With regard to the separation of powers, I tried to indicate that this is a general position, not a question of the Secretary of State determining the legal status of each couple individually by order. It is a general power that is being given and it is therefore appropriate for the legislature to give that power to the Secretary of State, and for the Secretary of State then to exercise that power. It is not an appropriate matter for the courts because they obviously cannot exercise such a power on a general basis and would have to consider these matters case by case. As I have indicated, that could place a considerable burden on the courts. It would also mean that those who had moved to Scotland and were petitioning the Scottish courts for recognition of their status would, during that period, have no legal status at all. That is not a satisfactory position in which to put these couples.

Perhaps I may write to the noble Baroness, Lady Thornton, about her question on accrued pensions. There is provision to make some variation of the orders and there may be some situation in which that issue would be relevant. However, I will write to her and confirm that position.

[Lord Mackay of Clashfern]

My Lords, does it not require a statutory provision in Scotland to make this work? Therefore, it is not a matter for the courts in Scotland; it is a matter for the Secretary of State and Ministers in Scotland to make a statutory order to make the rule part of the statutory law of Scotland.

[Lord Wallace of Tankerness]

As ever, my noble and learned friend expresses it far more concisely than I do.

[Lord Alli]

My Lords, I thank the Minister for that reply but, as he probably recognises, I am not happy with it. If I got married in England or Wales, I would expect my marriage to be recognised in Scotland and Northern Ireland. It is the essence of the union. For us to have found a mechanism in the Bill to convert marriages into civil partnerships feels as though it was too difficult politically to keep them as marriages. It is clearly a nonsense for couples to be married in England and Wales, and then be treated differently in Northern Ireland and Scotland. For us, in this Parliament, to determine that a marriage in England and Wales should not be treated as a marriage in Scotland and Northern Ireland, without putting the question—as the noble and learned Lord, Lord Mackay of Clashfern, just indicated—to the Secretary of State for Scotland, and those Scottish Ministers for that order, or indeed to the Northern Ireland Secretary of State and Ministers, is for us to be complicit in perpetuating an inequality. Nevertheless, I will read what the Minister said and reflect, but I have no doubt we will return to this on Report. I beg leave to withdraw my amendment.