The amendments relate to the Scottish provisions in part 3 of the Bill, which are consequential on the creation of civil partnerships. Government amendments Nos. 52 to 56 concern the capacity of someone to enter a civil partnership. At present, clause 84 sets out that in order to enter a civil partnership, a person must understand
''the nature of civil partnership''.
Government amendment No. 52 provides that a person must also be capable of
''validly consenting to its formation''.
The purpose of the amendment is to amend clause 84(1)(e) to mirror the provisions in section 5(4)(d) of the Marriage (Scotland) Act 1977.
What does that mean in terms of a read-across to mental capacity?
May I return to that point in a few minutes?
Clause 90 provides that if someone objects to a civil partnership on the grounds that either of the civil partners is incapable of understanding the nature of a civil partnership, such an objection must be accompanied by a supporting certificate signed by a registered medical practitioner. Government amendment No. 56 to clause 90 provides that the requirement of evidence as indicated above also applies when an objection is made on the grounds that one of the parties is incapable of validly consenting to a civil partnership. The policy
intention of the Bill is that the process for entering a civil partnership mirrors that for civil marriage. It is therefore important that that aspect of the 1977 Act is replicated for civil partners.
The Justice 1 Committee of the Scottish Parliament recommended that the Scottish Executive's position on capacity to consent be reconsidered in the interests of ensuring parity in the protection available to civil partners, compared with married couples. The Deputy Minister for Justice made a commitment to the Justice 1 Committee to amend the Bill so that the provisions mirror in their entirety those that exist for civil marriage.
I want to come on to adoptive and half-blood relationships. The amendments add a further two subsections to clause 84 to confirm that half-blood relationships and adoptive relationships are included within the degrees of relationship specified in paragraph 1 of schedule 11. That is the policy intention. At present, it is not clear that adoptive and half-sibling relationships are within the prohibited degrees. The Bill as drafted could allow a man to form a civil partnership with his adoptive brother or half-brother. That is not the policy intention. The policy intent is that, since people in such a relationship cannot marry, they should similarly not be able to enter a civil partnership.
Can the Minister confirm that that excludes foster children and wards of court?
My understanding is that it does exclude foster children and wards of court.
The amendment will mean that adoptive and half-blood relationships are included within the prohibited degrees, as is the case with marriage.
Government amendment No. 57 is intended to offer some clarity in clause 120. At present, clause 120 sets out that if a couple register as civil partners in Scotland despite not meeting the eligibility criteria detailed in clause 84, the civil partnership will be void, meaning that it will be treated as never having taken place. The amendment provides that where a couple are registered as civil partners in Scotland and, although eligible to do so,
''either of them did not validly consent'',
the civil partnership will be void.
Like married couples, civil partners will be able to apply to the court for a civil partnership to be made void. That exists in Scots common law. The purpose of the amendment is simply to make it clear in law that a civil partnership can be made void by the court if either party did not validly consent to its formation. The Justice 1 Committee of the Scottish Parliament made representations on that point and the Deputy Minister for Justice agreed to lay the amendment.
On judicial separation, new clause 1 is intended to add back into the Bill a clause that was removed on Report in the House of Lords. It is an important clause that provides an opportunity to those in civil partnerships that is already available to married couples. The clause provides that civil partners may
apply to the Court of Session or the sheriff court for a decree of separation. The court may grant such a decree if satisfied that there are grounds justifying such a separation.
Clause 118 is consequential to this clause. It provides that if civil partners have a decree of separation and subsequently decide to dissolve their civil partnership, they may apply to the court, citing the same evidence on which the degree of separation was based. The court can treat a decree of separation as proof of the facts under which the decree was granted. However, that does not entitle a court to grant a decree of dissolution of a civil partnership without receiving evidence from the civil partner seeking the dissolution.
I come now to legal rights of succession. New clause 4 seeks to ensure that civil partners have legal rights of succession in a similar way to spouses. Legal rights are covered by common law in Scotland. The Succession (Scotland) Act 1964 is amended by schedule 28 to ensure that civil partners will have prior rights of succession. That is an important right that civil partners will require; it is a complex area of law and detailed consideration has been given as to how the common law could best be captured in the provisions for civil partners.
Before I finish I shall deal with the read-across of the hon. Member for Rutland and Melton (Mr. Duncan) on mental incapacity. If a person is incapable of consenting to a civil partnership for whatever reason, that partnership will not be valid, which includes situations where a person suffers from mental incapacity. To clarify the situation, adopted children are considered the same as natural children for the purposes of the Bill.
I shall address my remarks to the issue of separation. I do not understand why civil partners, if their partnership has broken down, should not just be able to split apart permanently. Throughout the course of the proceedings I have been arguing not against the principle that there should be some system of registration for partnerships outside marriage, but that the system should be established on a distinct basis from marriage.
Incorporating the concept of separation gives credence to the belief that we are contemplating none other than same-sex marriage in the Bill, although the Government deny that. The amendment passed in the other place to exclude references to separation was sensible. If the amendments are carried, in a situation where one of two civil partners who separate but are not ''divorced''—I suppose that is the expression people would use—dies, the one who survives will be entitled to a minimum of 50 per cent. of all their estate. I should have thought that if a civil partnership were on such shaky ground that the parties to it had separated, it would be better for it to be brought to a conclusion rather than to have the halfway house of separation.
I shall not repeat at length the references that I made earlier to what happens in France, where civil solidarity pacts can be applied to all couples outside
marriage relatively easily, and can be brought to an end equally easily. It seems to me that there is a demand for that, rather than what is specified in the Bill, which is getting incredibly complicated. It will ultimately have the perverse effect of deterring a lot of people from entering into civil partnerships because they will realise that it will be very difficult to disentangle themselves from the involvement created in law if something goes wrong, as is sadly often the case. I am against the incorporation in the Bill of the concept of legal separation as some sort of halfway house.
I echo the comments of the Under-Secretary of State for Scotland with regard to the Justice 1 Committee. The draft Bill was originally placed before the Scottish Parliament and the level of pre-legislative scrutiny that the provisions received was a textbook example from which pre-legislative scrutiny in this place could learn a lot. As a result of that, the amendments that have been introduced by the Government, from the Scottish Executive, have made the passage of this Bill a great deal easier for those of us who represent Scottish constituencies and have an interest in such matters.
I want to pick up on the important point just made by the hon. Member for Christchurch (Mr. Chope). He asked why we should have this provision on separation, but in fact it is not on separation but on judicial separation, which is a quite important distinction in this context. In all the years when I was in practice and doing court work, I never came across anyone who opted to undertake judicial separation, but it is an important part of Scots family law.
Hearing the hon. Gentleman trampling over Scots family law in a pair of tackety boots sold only with prejudice and ignorance reminds me of all the reasons why we considered it necessary to have a Scottish Parliament in the first place. The arguments that he made would apply equally to judicial separation for those who are parties to a civil marriage. The fact is that rightly or wrongly, we have this curious animal of judicial separation in Scotland, in much the same way that those of you south of the border have the curious arrangement that if a 16-year-old wants to enter a civil marriage—and hopefully some day a civil partnership—they have to go and ask their mammy and their daddy first. That does not make any particular sense to me, but clearly it is an important part of English marriage law, and if that is what people in England and Wales want, that is for them to decide.
Judicial separation is an important right available to people in Scotland who are parties to a civil marriage, and I can see absolutely no good reason why it should not be extended to those who enter a civil partnership. To remove that provision while retaining clause 118 would make nonsense of the whole Bill. Not to reinstate this provision would leave us with incoherent legislation.
I, too, rise to support the Government amendments. As the hon. Member for Orkney and Shetland (Mr. Carmichael) correctly stated, there has been a great
deal of pre-legislative scrutiny in the Scottish Parliament on these provisions. In addition to a three-month consultation period with responses from more than 300 parties, there have been four separate evidence sessions held in Committees during the past six to eight months to consider in great detail the provisions of this part of the Bill.
I concur with the hon. Gentleman that it is important that we appreciate and respect Scots law principles on family law matters. Like him, I was a practising solicitor, and I came across only one or two judicial separation actions in 18 years' experience. Nevertheless, that has been an established element of family law in Scotland for a considerable time, and if anyone were to change that principle, it should be the Scottish Parliament. This Parliament, which created the Scottish Parliament, should respect its rights over marriage law. We have differences on separation. We have maintained the two and five-year periods of separation and the difference in consent for 16 to 18-year-olds in Scotland, on the basis that it is for the Scottish Parliament to make differences in family law as and when it requires.
That also applies to the law on succession, and I particularly welcome new clause 4, which contains a matter that I raised on Second Reading. It seeks to provide for same-sex couples the principle of equivalence to couples in marriage, and it will be important for many couples in same-sex relationships. We have respected the Scottish rights of succession and the Scottish laws on succession, and the principles on which they are founded, and again, quite rightly, it will be for the Scottish Parliament to decide, if and when it decides to review the succession law, whether there will be any subsequent amendments when, as I hope, this Bill becomes law. I congratulate the Scottish Executive and the Scottish Parliament on their thoroughness during their participation in the scrutiny process and on their valuable amendments, which much improve the Bill.
I should like to seek some clarification from the Minister about the mathematics and language of new clause 4. I am trying to grapple with it and I am not sure that I totally understand it. As I understand it, in new clause 4(1), where a partner dies, the other partner has a claim on the deceased's estate to a minimum of half.
Movable estate, which perhaps for clarity the Minister will define. If that person has issue, the partner would have a claim on a third. I do not understand what happens if the partner who remains alive has issue. How does the division scrape up? If they are civil partners with a joint estate, how is the estate assessed and divided?
I do not understand the language of new clause 4(2), perhaps because I am not a lawyer. I do not understand the grammar of:
''That circumstance is that the person is also survived by issue''.
It needs parsing, and I quite simply cannot make sense of it. It looks as though other Members can, and, if it
can be translated from the Scottish, as a Scot I would very much appreciate it.
The law of succession is a very complicated piece of Scots law. There is a good Scots phrase, which the hon. Member for Christchurch should learn when meddling, dabbling or seeking to comment on Scots law, which is, ''Wha daur meddle wi' me.'' For the uninitiated I will translate. It means: ''Don't meddle with me too often.'' Before my Scots colleagues get in first, the second part of the phrase is, ''There's gaye few an' ther' a' deid.'' It means: ''Very few meddle with the Scots and those that do usually end up—''
A lawyer to my rescue. I never thought I would see the day.
May I say that the wording of new clause 4 follows that of the Succession (Scotland) Act 1964? The Act uses exactly the same wording, and that is why the wording has been used in the legislation before us. It matches that in the Act, which has been in force quite successfully for 40 years.
Well, there we have it. I am so glad that Government Back Benchers are so multi-skilled that they can remember all that.
On the substantive point made by the hon. Member for Christchurch, judicial separation is appropriate for some couples who may not wish to dissolve their civil partnership because of beliefs or the impact it may have on any children. Judicial separation is an option for marriage couples and it should similarly be an option for civil partners.
The hon. Member for Orkney and Shetland said that he was not aware of any cases of judicial separation in his legal life. Will the Minister tell us how many instances there are of judicial separation in Scotland at the moment?
It is fair to say that the hon. Member for Orkney and Shetland operated in one part of Scotland. It is a big country. I am unable to provide the hon. Member for Christchurch with the exact number, but regardless of whether judicial separation is used it is part of our judicial regime and it should be read across into civil partnerships. The amendment was moved on those grounds.
Question put, That the amendment be made:—
The Committee divided: Ayes 12, Noes 1.
I have a reputation for being somewhat pedantic at times. I shall now demonstrate why I have that reputation. Just to be precise, I am informed that the only languages that are permissible in the House are English, Latin and ancient Norman. The introduction of strange tongues can be somewhat confusing.
Secondly, on a much more serious point, I must draw to the Committee's attention the fact that it is customary for a right hon. or hon. Member to rise in their place, not simply to lift an eyebrow, to indicate to the Chair that they wish to make a contribution to the debate. Do be co-operative with the Chair.
Amendment proposed: No. 7, in
clause 84, page 38, line 37, leave out subsection (2).—[Jacqui Smith.]
Question put, That the amendment be made:—
The Committee divided: Ayes 12, Noes 2.
Question accordingly agreed to.
Amendments made: No. 53, in clause 84, page 39, line 42, leave out 'following modifications' and insert
'modifications specified in subsections (7) and (8)'.
No. 54, in clause 84, page 39, line 45, leave out 'those provisions' and insert
'subsection (5) or those paragraphs'.
No. 55, in clause 84, page 40, line 15, at end insert—
'( ) For the purposes of this section, a degree of relationship specified in paragraph 1 of Schedule 11 exists whether it is of the full blood or the half blood.
( ) Amend section 41(1) of the Adoption (Scotland) Act 1978 (c.28) (application to determination of forbidden degrees of provisions of that Act relating to the status conferred by adoption) as follows—
(a) after first ''marriage'' insert '', to the eligibility of persons to register as civil partners of each other'', and
(b) for ''and incest'' substitute '', to such eligibility and to incest''.'.—[Jacqui Smith.]
Motion made, and Question put, That the clause, as amended, stand part of the Bill.
The Committee divided: Ayes 12, Noes 2.
On a point of order, Mr. Cook. This is simply to seek your guidance on procedure. Is it permissible either by ruling of the Chair or by the will of the Committee for consecutive clauses to be voted in a block, or must they be taken individually?
They must be taken individually, save with the leave of the Committee. In other words, to avoid the rule, one would have to put the proposal to the Committee in those terms and seek leave of the Committee before presenting them.Schedule 11 Forbidden degrees of relationship: Scotland