Marriage (Same Sex Couples) Bill

Lord Wallace of Tankerness Excerpts

Wednesday 10th July 2013 Lords Chamber

[Baroness Thornton]

My Lords, I agree with the noble Lord, Lord Deben, that this is an elegant amendment. However, although it might be bracket free, it has an awful lot of commas and sub-clauses. I have listened very carefully to the noble Lord, Lord Armstrong, and the supporters of this amendment who did not speak but are distinguished Members of your Lordships’ House, to see whether there are new arguments to justify passing an amendment that would—like the ones that we discussed on Monday and in Committee—undermine the purpose of the Bill, which is to put same-sex marriage on the same basis as opposite-sex marriage, and although I pay tribute to the noble Lord, Lord Armstrong, for this ingenious amendment which seeks to undermine the Bill through secondary legislation, its effects are the same as those of the amendments that went before. I am still puzzled as to why those noble Lords feel that same-sex marriage somehow undermines opposite-sex marriage and, indeed, their own.

We do not believe that the Bill needs to provide for two classes of marriage—one gold and one base, which would be the effect of the amendment—but we do feel that the time has perhaps come to stop having this argument. I and my colleagues will not support the amendment.

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

My Lords, I thank the noble Lord, Lord Armstrong of Ilminster, for his amendment. I think that we were all very grateful to him on Monday evening when, in view of the hour, he decided to degroup it so that we could debate it today.

Even allowing for the intervening hours, however, it will not come as a surprise to the noble Lord or to anyone else that we do not feel able to accept this amendment however—to use my noble friend Lord Deben’s word—ingenious or, as my noble friend Lord Lester said, extraordinary it is. As the noble Baroness, Lady Thornton, said, it contains within it, in paragraph (b), the same distinction between a marriage of a same-sex couple and a marriage of an opposite-sex couple that was embodied in Amendment 1—admittedly without the brackets, although I am not sure if it is for better or for worse.

The amendment which my noble and learned friend Lord Mackay of Clashfern moved sought to have two different institutions of marriage in law: one for same-sex couples and one for opposite-sex couples. As my noble friend Lord Deben said, this is another attempt. In all fairness to my noble and learned friend Lord Mackay of Clashfern, when moving his amendment on Monday he said:

“This is the minimum that seems to work, although I and other noble Lords think that it may be possible to go further. The later amendment of the noble Lord, Lord Armstrong, to which I and others have added our names, indeed goes further than the minimum”.—[Official Report, 8/7/13; cols. 13-14]

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Moved by

[Lord Wallace of Tankerness]

93: Schedule 6, page 50, line 8, leave out sub-paragraph (3)

[Lord Wallace of Tankerness]

My Lords, government Amendments 93 and 128 to 132 amend provisions in the Bill relating to marriage in consulates and on Armed Forces bases overseas to exclude their effect in relation to Northern Ireland. Clause 13 repeals the Foreign Marriage Act 1892 which applies UK-wide. Schedule 6 makes provision to replace that regime of consular and Armed Forces marriages overseas with a new regime providing for marriages of both opposite-sex and same-sex couples in consulates and on Armed Forces bases.

The legislative consent Motion concerning the Bill which the Northern Ireland Assembly agreed on 24 June does not cover Clause 13 or Schedule 6. In light of the terms of that legislative consent Motion, these amendments amend the extent provisions of the Bill so that the relevant provisions which would fall under the Northern Ireland Assembly’s legislative competence do not extend to Northern Ireland. The effect of these amendments is that opposite-sex and same-sex couples marrying under the law of England and Wales in consulates and on Armed Forces bases overseas will be married under new procedures to be introduced by an Order in Council to be made under Schedule 6. These new procedures will also apply to opposite-sex couples marrying under the law of Scotland, and in due course to same-sex couples as and when the law in Scotland is changed to allow them to marry.

However, couples marrying under the law of Northern Ireland will marry under the existing legislative framework; namely, the Foreign Marriage Act 1892. This will mean that those officiating in marriages overseas will have to operate two distinct systems when conducting marriages depending on whether they are marriages under the law of England, Wales or Scotland on the one hand, or the law of Northern Ireland on the other. While this will add to the complexity of the system, it is a consequence of the Northern Ireland Assembly not having given legislative consent to the relevant provisions in the Bill, and so to be consistent with the convention we must make amendments to reflect that.

Perhaps I may turn to government Amendment 106 in this group. It is a technical amendment which provides for the definition of “England and Wales legislation” used in the Bill also to be applied to the Marriage Act 1949. The amendment inserts an interpretation provision for the definition into that Act. Finally, government Amendment 125 is minor and technical. It adds the definition of “superintendent registrar” to the list of defined expressions already set out in Clause 17(2). This is necessary for completeness.

I commend these amendments as they will improve the Bill and I hope that your Lordships will feel able to support them.

Amendment 93 agreed.

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[Baroness Thornton]

The noble Lord, Lord Pannick, very adequately, concisely and accurately explained exactly what the review is about.

The point is that the claims that the noble Baroness has explained to us are legitimate. As my noble friend Lord Alli said, the last time I heard the noble Baroness speak with such passion about these issues, apart from in Committee on this Bill, was during the passage of the Civil Partnership Bill.

In the mean time I can recall at least two carers Acts put forward by my own Government. There was the free personal care Bill, and there have been numerous discussions about finances and inheritance tax. Although we may not necessarily discuss those matters in this House to conclusion, certainly there are plenty of Members of Parliament in the other place who can and could put down amendments. I would be more sympathetic, perhaps, if I thought those things had happened, but they have not. My noble friend Lady Kennedy is right when she says that you have to question the purpose of this amendment when all those opportunities have been missed. We ask the noble Baroness not to press this amendment but if she does I will be voting against it.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Baroness, Lady Deech, for moving the amendment and the other noble Lords who have put their names to it. It would amend Clause 14, under which the Secretary of State will arrange for the operation and the future of the Civil Partnership Act 2004 in England and Wales to be reviewed. The amendment requires the terms of the review to be extended to consider first, the case for enabling carers and family members who live together to register civil partnerships and secondly the case for creating a new legal institution to give carers and family members the same benefits as couples in a civil partnership.

I recognise, as we did in Committee, that many views have been expressed very passionately. I listened in particular to my noble friend Lady Hooper, who made an important contribution to this debate arising from her own circumstances. I agree with the noble Baroness, Lady Thornton, that, in many respects, the issues that have been raised about inheritance or the rights to have a say, for example, about funeral arrangements or related matters are issues in their own right. I will say more later about whether there has been a clamour for them, but my principal position is that this is not appropriate for a review of civil partnerships.

First, there is the issue of the nature and purpose of civil partnerships. They were designed to provide rights and responsibilities akin, to use the word of the noble Lord, Lord Alli, to those of marriage for same-sex couples. I note that the right reverend Prelate the Bishop of Chester thought that they possibly mirrored marriage too much. I think he said that was the view when they were brought in. These rights and responsibilities were provided because under the Civil Partnership Act people were unable to marry because they were the same sex. As civil partnerships are akin to marriage they have a formal means of entry and exit. They have imported the prohibited degrees of affinity parallel to those in marriage law. They have similar rules governing deathbed civil partnerships and financial and property arrangements.