Amendment 11

Northern Ireland (Executive Formation) Bill - Report – in the House of Lords at 5:30 pm on 17th July 2019.

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Lord Hayward:

Moved by Lord Hayward

11: Clause 8, page 6, line 3, leave out subsections (1) to (4) and insert— “(1) The Secretary of State must, by regulations, make provision so that—(a) two persons who are of the same sex are eligible to marry in Northern Ireland, and(b) two persons who are not of the same sex are eligible to form a civil partnership in Northern Ireland,provided that, apart from the question of sex, they would be eligible to marry or form a civil partnership (as the case may be).(2) Regulations under subsection (1) must be made so as to come into force on or before 13 January 2020 (but this does not in any way limit the re-exercise of the power).(3) The Secretary of State may, by regulations, make any other provision that appears to the Secretary of State to be appropriate in view of—(a) the extension of eligibility to marry in Northern Ireland to persons of the same sex, and(b) the extension of eligibility to form civil partnerships in Northern Ireland to persons who are not of the same sex.(4) Regulations under subsection (3) may, in particular, make provision about—(a) parenthood and parental responsibility of parties to a marriage or civil partnership;(b) the application by a party to a marriage or civil partnership for a gender recognition certificate under the Gender Recognition Act 2004, or the issuing of such a certificate, and the consequences of that application or issuing for the marriage or civil partnership;(c) the financial consequences of marriage or civil partnership (for example, in relation to pensions or social security);(d) the treatment under the law of Northern Ireland of marriages, civil partnerships or relationships similar to civil partnerships formed outside of Northern Ireland.(5) The Secretary of State may, by regulations, make provision for and in connection with a right to—(a) convert a marriage into a civil partnership;(b) convert a civil partnership into a marriage.Such regulations may, in particular, make provision equivalent or similar to that contained in or authorised by section 9 of the Marriage (Same Sex Couples) Act 2013.(6) The Secretary of State may, by regulations, make any provision that the Secretary of State considers appropriate in order to protect the ability to act in accordance with religious or other belief or opinion in relation to marriage or civil partnership (including the conversion of marriage into civil partnership and vice versa).(7) Regulations under this section—(a) may make provision for fees to be payable;(b) may make provision conferring a discretion on a person;(c) may make provision enabling a person to make regulations (and such regulations may make provision for fees to be payable);(d) may include provision amending, repealing or revoking any provision made by an Act of Parliament or Northern Ireland legislation;(e) may, in so far as made in reliance on section (Regulations: procedure and supplementary 1)(4), include provision amending or repealing provision made by an Act or Measure of the National Assembly for Wales or an Act of the Scottish Parliament.(8) In this section—(a) references to marriage in Northern Ireland (however expressed) include references to marriage outside of the United Kingdom by virtue of eligibility to marry in Northern Ireland (in accordance with Part 1 or Part 3 of Schedule 6 to the Marriage (Same Sex Couples) Act 2013);(b) references to forming a civil partnership in Northern Ireland include references to registering as civil partners outside the United Kingdom by virtue of eligibility to do so in Northern Ireland (in accordance with section 210(2)(b) or 211(2)(b) of the Civil Partnership Act 2004).”

Photo of Lord Hayward Lord Hayward Conservative

My Lords, in moving Amendment 11, I will speak also to Amendments 15 and 22 in my name and, on a cross-party basis, the names of the noble Lord, Lord Bruce of Bennachie, and the noble Baroness, Lady Massey of Darwen. I will not go over a large amount of what we discussed both at Second Reading and in Committee, but will explain briefly my background and interest in this subject.

We have discussed on a number of occasions during the previous debates the history of the Northern Ireland Assembly and a number of votes on the question of same-sex marriage. I came to this relatively recently. In January last year, I hosted a party here at the House of Lords for members of the Kings Cross Steelers—whose tie I wear with pride this evening. It is the world’s first gay rugby club, based in London. When hosting this event I discovered how many members of my club were from Northern Ireland, and I realised that they did not have the same rights. One of those present was John Henry, a former head boy at Wallace, and his brother, Chris Henry, an Irish rugby international, who was showing support for his brother. The world has changed, and that was the indication—that a rugby international was willing to stand alongside his gay brother and say, “The world has changed”. Arising out of that, I started working with Conor McGinn in the other place to produce a Private Member’s Bill, which I submitted on 27 March last year and he submitted in the Commons the next day. I think the noble Baroness, Lady Smith, had a very enjoyable evening at that party alongside all the rugby players.

Photo of Lord Hayward Lord Hayward Conservative 5:45 pm, 17th July 2019

I will look in my diary and make sure that the noble Baroness has a free slot in her diary to come. Hopefully, it will be a celebration of the introduction of same-sex marriage. I said I would wear this club tie each time I spoke until we had changed this law, and I intend to continue to do so—but I hope I will not be bound by that for too long.

The purpose of the amendments I have tabled, with other Members of this House, is to improve and extend the drafting of Clause 8. This will enable the Secretary of State to deliver a comprehensive and effective regime for same-sex marriage in Northern Ireland. The amendments would also allow the Secretary of State to introduce opposite-sex civil partnerships in Northern Ireland. This will ensure that all couples in Northern Ireland, irrespective of their sexual orientation, will have equal rights to enter the form of relationship of their choice. At this stage I thank not only the Minister and Conor McGinn but the officials, who have been so helpful in drafting these amendments.

Amendment 11 would replace subsections (1) to (4) of Clause 8 with new subsections (1) to (8). New subsection (1) enables the Secretary of State, by regulations, to extend eligibility so that two people of the same sex may marry in Northern Ireland and two people not of the same sex may form a civil partnership. Noble Lords will recall that we debated extending civil partnerships to opposite-sex couples in England and Wales earlier this year; I contributed by tabling an amendment, which I ultimately withdrew. This was part of the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019. Last week the Government announced their plans to allow such couples to form civil partnerships, and last month the Scottish Government committed to introducing legislation enabling Scottish opposite-sex couples to form civil partnerships. It is only right that we now extend this entitlement to opposite-sex couples in Northern Ireland so that we ensure full equality of access to relationships across the United Kingdom.

New subsection (2) requires that the first regulations under new subsection (1) come into force on or before 13 January 2020. The combined effect of the amendments is that Clause 8 itself would come into force on 22 October, unless the Northern Ireland Executive is reformed on or before 21 October, and the regulations on same-sex marriage and civil partnerships would follow early next year. Pushing back the commencement date for these regulations would allow the Government and the Northern Ireland Civil Service more time to make the necessary changes to legislation, as well as the essential operational changes. I understand that any less time than this would jeopardise the Government’s ability to extend the full set of rights and entitlements to both same-sex married couples and opposite-sex civil partners.

Our amendments would also allow for other necessary amendments to be made by regulations. New subsection (4) outlines the areas about which the regulations may make particular provision. These include: matters relating to parenthood and parental responsibility; the financial consequences of marriage and civil partnership, which may include pensions and survivor benefits; and the recognition of equivalent same-sex marriages and opposite-sex civil partnerships entered into in Great Britain and overseas as marriage and civil partnerships in Northern Ireland. I stress that this list is not exhaustive but is intended to give a clear indication of how the powers in new subsection (3) are likely to be used and the numerous other changes that will be needed as a consequence of the extension of marriage and civil partnerships.

New subsection (5) enables the Secretary of State to make regulations governing conversion rights. The Marriage (Same Sex Couples) Act 2013 allows same-sex civil partners in England and Wales to convert their civil partnerships into marriage, without first having to dissolve the partnership. The Government are now consulting on whether opposite-sex married couples in England and Wales should similarly have the opportunity to convert to a civil partnership. New subsection (5) would allow for both eventualities in Northern Ireland.

New subsection (6) enables the Secretary of State to make regulations that protect the ability to act in accordance with religious belief in relation to same-sex marriage, opposite-sex civil partnerships and conversion between marriage and civil partnership and vice versa. I am conscious that this is a particularly sensitive issue in Northern Ireland. Noble Lords may be familiar with provisions of the 2013 Act, known as the quadruple lock, which we have debated in this House on many occasions. Essentially, the quad lock ensures that no religious organisation or individual minister can be compelled to marry same-sex couples or to permit that to happen on their premises. The 2013 Act also provides an opt-in system for religious organisations that wish to conduct marriages of same-sex couples and ensures that no discrimination claim can be brought against religious groups or individual ministers who refuse to marry couples because they are of the same sex. The Government have noted that they intend to extend similar protections to civil partnerships on religious premises in England and Wales.

The protections for Northern Ireland will need to be adapted to fit the specific circumstances there. That is because the system for religious marriage is different in Northern Ireland as it operates through approved celebrants, rather than approved premises, and marriages can be conducted by belief organisations, such as the humanists, as well as religious organisations.

Northern Ireland also has constitutional protection against discrimination on the grounds of political opinion. The power in subsection (6) is therefore drafted in a way that enables appropriate protections to be crafted to fit the particular conditions in Northern Ireland, although I understand that they are likely to be broadly the same as those applicable in England and Wales and in Scotland. 1 hope that that reassures noble Lords that no religious organisations nor individual ministers will be compelled to conduct same-sex marriages or opposite-sex civil partnerships in Northern Ireland against their will.

Photo of Lord McCrea of Magherafelt and Cookstown Lord McCrea of Magherafelt and Cookstown DUP

I notice that Amendment 11 often states that the Secretary of State “must” do something, but new subsection (6) states:

“The Secretary of State may, by regulations, make any provision that the Secretary of State considers appropriate in order to protect the ability to act in accordance with religious or other belief or opinion in relation to marriage or civil partnership”.

In the debate on Monday, I thought that the amendment of the noble Lord, Lord Hayward, was giving assent to or accepting something. This is certainly very far away from giving protection for those of religious belief.

Photo of Lord Hayward Lord Hayward Conservative

During the debate on Monday I indicated my willingness and understanding and, I must say, determination to ensure that the protection in Northern Ireland was as it was in England and Wales. In fact, I checked my comments in Hansard earlier today; I could refer to the column but I will not do so. I checked with the lawyers and pressed them very hard—they have been enormously helpful—because I gave that commitment to the noble Lord and his colleagues on Monday. I am clear in my own mind, following serious and quite lengthy discussions, that the amendment as drafted will cover the protection to which I referred on Monday and broadly achieves the protections. I say “broadly” because of the difference between Northern Ireland and England and Wales in terms of certain practices. Because I gave that assurance to the noble Lords, I have checked it out and I am told that the protections, which I know noble Lords were seeking, are there. That is why I do not think the manuscript amendments that they have tabled are necessary.

I am sorry that this is a lengthy explanation, but this is quite complex and it is important that the House understands the objective of each of the individual subsections on the Amendment Paper.

Subsection (7) enables the regulations to provide for fees to be payable; for example, for registering civil partnerships and converting marriages to civil partnerships. It also enables the regulations to amend, repeal or revoke primary legislation, including consequential amendments to legislation made by the Scottish Parliament and the National Assembly for Wales. This is to allow the Secretary of State to make the necessary consequential changes to all relevant legislation, some of which may be cross-jurisdictional.

Subsection (8) ensures that the regulations can also provide for those who are eligible to enter a same-sex marriage or opposite-sex civil partnership in Northern Ireland to do so in a British consulate or on an overseas British Armed Forces base.

Amendment 15 introduces a new clause after current Clause 9. It provides that regulations made under Clause 8 are to be made by statutory instrument and subject to the negative resolution procedure. I appreciate that it is highly unusual for powers such as these to be subject to anything less than the affirmative resolution procedure and I note the concerns of the Delegated Powers and Regulatory Reform Committee, expressed in its 59th report of the Session. The other place, in accepting Conor McGinn’s amendments, strongly endorsed his approach to extending same-sex marriage to Northern Ireland, including use of the negative resolution procedure. I hope that our amendments have given noble Lords a clearer indication of how the regulation-making power will be used.

Finally, Amendment 22 makes consequential changes to the commencement provision in Clause 10. It replaces current subsection (2) and clarifies that Clause 8 will come into force on 22 October unless the Northern Ireland Executive are formed on or before 21 October, in which case Clause 8 will not come into force and it will be for the Executive to take forward these measures. That is to prevent the Secretary of State and a reformed Executive both having a power to introduce same-sex marriage and opposite-sex civil partnerships in Northern Ireland.

I started by saying that the world is changing. The Marriage (Same Sex Couples) Act in this country faced substantial opposition. A few years on, it is now accepted as a part of life: there is no question about that. I then referred to how society was changing in Northern Ireland and I referred to my club tie. We are not allowed to refer to what is seen or heard outside the Chamber, but some Members of the House may notice that there is a similar tie within vision. It is worn by a product of Rainey Endowed School, a school that both noble Lords, Lord Browne and Lord McCrea, will recognise. It identifies someone who is another member of my club, who in their community would benefit from the changes that I propose this evening. I beg to move.

Photo of Baroness McIntosh of Hudnall Baroness McIntosh of Hudnall Deputy Chairman of Committees, Deputy Speaker (Lords) 6:00 pm, 17th July 2019

My Lords, I should tell the House that if Amendment 11 is agreed, I cannot call Amendment 11B by reason of pre-emption.