Marriage (Same Sex Couples) Bill

Part of the debate – in the House of Commons at 1:43 pm on 5th February 2013.

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Photo of Tony Baldry Tony Baldry The Second Church Estates Commissioner 1:43 pm, 5th February 2013

I shall not give way because I am conscious that a large number of colleagues wish to speak in the debate and I do not wish to be selfish.

I should be grateful, however, if my right hon. Friend the Minister could confirm that clause 11(5) might still benefit from some further attention, given the need to avoid her having to act as the arbiter in relation to particular areas of the ecclesiastical common law. This is an area where time ran out in the discussions, and I hope that the Government will be open to some further drafting changes if they can be agreed during the passage of the Bill.

Before I leave the question of the locks, let me be clear that we think that the Government have done their best in these, given their intention to introduce same-sex marriage. But, as many other commentators have made clear, there is an inevitable degree of risk in all this, given that it would ultimately be for the courts, and in particular the Strasbourg court, to decide whether provisions in the legislation are compatible with the European convention on human rights. There is absolutely no doubt that once marriage is redefined in this very fundamental way, a number of new legal questions will arise and no one can be sure what the eventual outcome will be. The Government believe that this is a risk worth taking. The Church of England does not. As I understand it, the Roman Catholic Church does not, and nor do a number of other faith groups, including the Muslim faith.

The Bill has raised a number of extremely difficult second-order issues. Although the failure to consummate a marriage will still be a ground on which a heterosexual marriage can be voidable, the Bill provides that consummation is not to be a ground on which a marriage of a same-sex couple will be voidable. It also provides that adultery is to have its existing definition—namely, sexual intercourse with a person of the opposite sex. It therefore follows that divorce law for heterosexual couples will be fundamentally different from divorce law for same-sex couples, because for heterosexual couples the matrimonial offence of adultery will persist while there will be no similar matrimonial offence in relation to same-sex marriage. The fact that officials have been unable to apply these long-standing concepts to same-sex marriage is a further demonstration of just how problematic is the concept of same-sex marriage. Clearly, every right hon. and hon. Member will have to come to an individual judgment on these issues, in accordance with our own consciences, and the House will accordingly come to a collective judgment.

On the specific protections that the Government are seeking to give to Churches that do not wish to perform same-sex marriages, I believe that they are being done in the best of faith and as robustly as the Government feel able, but I simply reiterate that there is no way in which any of us can know just how robust these protections will be until they are tested in the courts. Notwithstanding the genuine efforts that the Government have made to protect Churches that do not wish to celebrate same-sex marriages, the Church of England cannot support the proposal to enable all couples, regardless of their gender, to have a civil marriage ceremony. Such a move will alter the intrinsic nature of marriage as the union of a man and a woman as enshrined in human institutions throughout history. Moreover, changing the nature of marriage for everyone will deliver no obvious legal gains given the rights already conferred by civil partnerships.