Clause 3 - Formation of civil partnership by registration

Civil Partnership Bill [Lords] – in a Public Bill Committee on 21st October 2004.

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Amendment proposed [this day]: No. 14, in clause 3, page 2, line 19, at end insert

'and has made a spoken declaration of commitment as may be prescribed by order'.—[Mr. Duncan.]

Question again proposed, That the amendment be made.

Photo of Roger Gale Roger Gale Conservative, North Thanet 2:30 pm, 21st October 2004

I remind the Committee that with this we are discussing the following amendments: No. 17, in clause 3, page 2, line 20, leave out 'and (4)' and insert 'to (4A)'.

No. 16, in clause 3, page 2, line 32, leave out subsection (5) and insert—

'(4A) Each of the civil partners shall, either before or after signing the civil partnership document under subsection (1) and in the presence of the witnesses and the civil partnership registrar—

(a) make one of the following declarations: either ''I do solemnly declare that I know not of any lawful impediment why I, AB, may not be joined in civil partnership to CD'' or ''I declare that I know of no legal reason why I (name) may not be joined in civil partnership to (name)''; and

(b) say to the other civil partner either ''I call upon these persons here present to witness that I, AB, do take thee, CD, to be my civil partner'', or ''I (name) take you (or thee) (name) to be my civil partner''.

(4B) Subject to this section, the registration of a civil partnership may be accompanied by such form and ceremony as the civil partners may see fit to adopt.'.

No. 184, in clause 3, page 2, line 32, leave out from 'used' to end of line 33 and insert

'for or in connection with the formation of a civil partnership by registration'.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change)

I was addressing amendment No. 16, which was tabled by the hon. Member for Rhondda (Chris Bryant). Proposed subsection (4B) could just about sit beside subsection (5), but it would create an exceptionally messy situation. One can imagine the priest being pulled out of the cupboard as soon as the registrar left the room. For that reason, I would be less inclined to support his amendment than the one proposed by the Conservative Front Bench spokesman, but they both come from the same direction and are broadly worthy in their intent.

With regard to amendment No. 184 and the explanation given of it by the hon. Member for Christchurch (Mr. Chope), I would say that I share the analysis of the hon. Member for Rhondda concerning what constitutes religious marriage, if I can call it that, or holy matrimony. I take that view as a Christian who was married in church. Throughout my dealings with the Bill, I have taken strongly to heart the difference

between what the hon. Member for Christchurch called holy matrimony and civil marriage, which is entirely secular. However, it is right that we should allow for Christian analysis other than that to which I or the hon. Member for Rhondda may subscribe. For Parliament to dictate to the Church what it may or may not do is fundamentally wrong. The establishment of the Church of England notwithstanding, an important constitutional principle is at stake.

Having said that, my final thought is that, as the hon. Member for Rhondda said, we have a curious situation in which civil registrars will not allow even religious texts or scripture reading to be used in the course of a service, and some sort of flexibility should be introduced to civil marriage. If we are re-enacting the provisions of civil marriage, warts and all, that is one of the warts that we should re-enact for civil partnerships, but with a view to reintroducing flexibility at a later stage. Once civil partnerships are put on to the statute book, they can be dealt with at the same time as civil marriage.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Order. Before I call the Minister, a point was raised this morning about amendments Nos. 14, 16 and 17. I have received no indication from the hon. Member for Rhondda that he wishes to seek to press his amendments to a vote, but I have to advise the Committee that amendments Nos. 16 and 17 taken together and amendment No. 14 taken separately are not compatible.

Photo of Alan Duncan Alan Duncan Shadow Secretary of State for International Development

On a point of order, Mr. Gale. I did not understand that. When you say that the amendments are not compatible, do you mean they will be taken separately or not?

Photo of Roger Gale Roger Gale Conservative, North Thanet

No, they will not be taken separately, and they are not compatible. In other words, it would not be possible for the Committee to vote on all three. Amendment No. 14 refers to a prescription by order, whereas amendments Nos. 16 and 17 insert the relevant words into the Bill. It has to be either/or; it could not be both.

Photo of Jacqui Smith Jacqui Smith Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry

We have had a useful debate on the amendments. I hope that I shall be able to help the Committee by explaining briefly why the Government have neither included a mandatory spoken declaration nor replicated the declaratory and contracting words used in the civil marriage ceremony, as is proposed in amendment No. 14 and amendments Nos. 16 and 17 respectively.

This is an area in which there is a justifiable difference between the civil marriage process and the process proposed for civil partnerships. A decision was made that the registration procedure for forming a civil partnership should be a written procedure. To that end, we have designed the registration provisions so that it is the signing of the civil partnership document that is crucial to the legal formation, rather than the speaking of any words. We therefore need to be careful to be clear that spoken words could not have—and we would not want them to have—a specific legal significance. It is important,

notwithstanding what I will go on to say and what I suggested earlier that the Government intended to do with Government amendments Nos. 23 and 25, that we are clear about the legal basis.

In a civil marriage ceremony, the parties become married at the point at which they have exchanged their spoken vows. Registration subsequently records the marriage, which has legally already taken place. The words exchanged are a solemn and important aspect of the marriage ceremony. As I have explained, the Bill establishes a different procedure for the formation of a civil partnership. The administrative registration process does not require words to be spoken by, or exchanged between, the proposed civil partners. In a civil partnership, it is the signing of the civil partnership document that marks the moment of the formation of a civil partnership and the parties' change of status to civil partners.

We believe that that is simple and clear, and that it is all that is legally necessary. To add to that statutory steps to require a spoken declaration would therefore alter the emphasis of the procedure and would also risk introducing confusion into the registration procedure to the extent—this is the risk with amendment No. 14—that the legal trigger for entry into civil partnerships would potentially be unclear.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change)

I am having some difficulty following the Minister's argument. I hope that there is something more substantial to come, because I am not desperately impressed by what I have heard so far. If there has not been such confusion in civil marriages, why does she think things would be different for civil partnerships?

Photo of Jacqui Smith Jacqui Smith Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry

As I was explaining, we start from a different position with civil marriage from the position with civil partnership. With civil marriage, the point at which the marriage is formed is the point at which the couple declare the words. With civil partnership, we have started by saying that the point at which the civil partnership is formed is the point at which the couple sign the paper. In other words, the legal basis is that it is a written procedure. If we were starting from scratch today with civil marriage, I would make quite a strong argument that the legal basis should be the signing and that what comes on top of that should be on top of the legal basis. That would be my starting point, and that is our starting point for civil partnerships.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change)

The Minister says that civil partnerships are different, as if there is some reason written in tablets of stone as to why they have to be. I can see no good reason why they should be different. I have listened carefully to what she has to say and I have not heard her explain why there should be a difference in that one aspect.

Photo of Jacqui Smith Jacqui Smith Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry

This is not written in tablets of stone, but it is written in the way in which we have designed the legislation. The hon. Gentleman is asking me to justify that. It seems perfectly appropriate and clear that there will be a legal process, as designed in the Bill, which is dependent for its legal effect on the point at which a piece of paper is signed, as opposed to the

point at which people make a declaration. I could imagine death-bed civil partnerships, for example. I agree with quite a few points made by hon. Members today, one of which was that in a large number of cases people may want to make a declaration. The question is: should that be statutorily necessary for the partnership to take effect? The written procedure should give legal effect to a civil partnership, but that does not mean that we have not been willing to listen to those who believe that the ability to add a legal declaration to that legal minimum would be of significance and importance to those involved and others around them.

Photo of John Bercow John Bercow Conservative, Buckingham

This is not one of the better arguments that the Minister has so far advanced, and she knows that I have the highest regard for her and that there is a camaraderie among those of us who support the Bill, so I hope that she does not take that comment in the wrong spirit. Saying that it seems appropriate to have a written form of registration is an assertion. Equally, one could add that there is no incompatibility with having spoken words as well. The argument about those who make death-bed partnerships is used in extremis. One can always make exceptions, for example for people who are, unfortunately, mute. I briefly worked in Government as a special adviser, and so far it sounds as though the written advice from the officials is, ''Minister, bang on, bang on, don't give way, and''—dare I make this very poor joke—''stonewall.''

Photo of Jacqui Smith Jacqui Smith Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry

I fundamentally disagree with the hon. Gentleman. I am afraid that this is one of those cases where one cannot have it both ways. There has to be a particular point at which the civil partnership or civil marriage is formed, and the point that we have chosen is the written point at which the two civil partners sign the schedule or the Registrar General's licence in front of two witnesses. If we are not careful and we make a declaration of words statutory, we will face legal difficulties. I know that hon. Members do not want to focus on this, but it is possible to envisage legal difficulties over determining at precisely what point the civil partnership formed and the change of status occurred. We must be clear about where that point is, and it is more modern and justifiable for it to be when one signs, as opposed to when one declares.

Photo of Alan Duncan Alan Duncan Shadow Secretary of State for International Development

We do not disagree with the Minister. We absolutely accept that the point of decision is the signature and not the statement, but her argument does not hold together when she says that, if there were a statement, there might be a point of law arguing that that is the point at which the decision is made and that it has to be part of the contract. It is absolutely clear in the Bill that the decision occurs when the signing takes place. All we are asking for is something permissive, but something that becomes a standard, recognised form. If a permissive form of words is defined by order, and the order can explain that permission, it will in no way conflict with her argument that the clear point of legal contract is the signature.

Photo of Jacqui Smith Jacqui Smith Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry

I do not disagree with the hon. Gentleman. I have been rather hounded in the first 14 minutes of this afternoon's sitting, so I have not been

able to get to the point when I was going to reassure hon. Members about the provision for people to make some sort of declaration.

I was going to say that, furthermore, civil partners shall have the option of exchanging spoken words with each other. That is precisely the intention of Government amendments Nos. 23 and 25, where the proposal or policy intention is that, when we set down conditions for the schedule or Registrar General's licence that will be signed, we also set down the words on that document. Those are the words that could be spoken by the couple and they may well be—although we have not made the decision yet—similar to the words that my hon. Friend is pressing in his two amendments.

Photo of Chris Bryant Chris Bryant Labour, Rhondda 2:45 pm, 21st October 2004

I am encouraged by what the Minister says. She will be delighted to know that I disagree with the hon. Member for Rutland and Melton (Mr. Duncan). Apart from those two elements, I do not want the state to determine the words that should be used in every ceremony. The funeral service in this country is much more permissive—people can be buried according to whatever service they want.

When there is too much variety, however, people feel uncomfortable about what to choose. Will the Government explore the possibility of providing some variants that different councils could use? Some of us are nervous that councils such as Kent county council, which has declared its hand on the issue, will make it difficult for people to form civil partnership locally with any form of ceremony.

Photo of Jacqui Smith Jacqui Smith Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry

I shall address that point later. Local authorities are able to offer couples the option of a ceremony or a celebration to mark the formation of a civil partnership and such an event, as my hon. Friend suggests, would likely include spoken words. Not every couple will want to take that up and it will be a matter for each couple to decide with the local authority and the place where they register as civil partners. Some will choose to do no more than complete the statutory registration requirements.

However—this is where I started on the issue of words and a declaration—we listened carefully both to the argument advanced in the other place and to the argument made in the House of Commons that there should be a form of words that the couple will sign when they register. We will be moving our own amendments to augment the registration procedure by extending the powers taken in the Bill that relate to the civil partnership document. That is the document that each party signs to register as the other's civil partner.

The extended powers will allow the Registrar General to make provision by regulations for a form of words to be printed on the civil partnership document. When they sign that document, the parties will be acknowledging that form of words. The Bill does not—and, indeed, could not—prevent some people from saying those words as they sign the civil partnership document. Saying the words will not be a requirement of the registration process but it will provide what hon. Members have argued for, which is the opportunity to make a statutory declaration as

they are signing the registration document, or just before.

I am willing to go further than that in attempting to convince the Committee. If necessary, guidance could be issued to civil partnership registrars stating that the verbal expression or declaration of words on the schedule, while not having legal effect, is appropriate. That would not overcome all the problems that my hon. Friend the Member for Rhondda raised, but it would make clear the status of those words, which will, of course, also be on the document that the civil partners will sign.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

I am somewhat reassured by what my hon. Friend said. Will the partners be able to say, ''I before God''? As I understand it, the Bill will not, at the moment, allow them to do so.

Photo of Jacqui Smith Jacqui Smith Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry

No, they would not. I will come on to the issue of the secular nature of the process.

I hope that hon. Members recognise that, by allowing words to be included on the document, we have sought to meet their concerns without undermining the written essence of the registration process and causing some of the legal confusion that I outlined. I hope that hon. Members will accept that compromise in the spirit in which we offer it.

I now move on to the other issue raised by my hon. Friend the Member for Rhondda. Amendments Nos. 16 and 184 would change the provision in clause 3(5) that prevents the use of any religious service while the civil partnership registrar is officiating at the signing of the civil partnership document. Amendment No. 16 would remove the prohibition. Amendment No. 184 would extend it with a provision preventing the use of religious service

''for or in connection with the formation of a civil partnership by registration''.

I shall take the amendments separately.

I believe that this point was supported by the hon. Member for Orkney and Shetland (Mr. Carmichael). We have always made it clear that civil partnership is a purely secular legal relationship. The administrative procedure therefore reflects that. As my hon. Friend the Member for Rhondda said—with disapproval, I believe—such a prohibition is also found in the case of civil marriages solemnised by a registrar.

It is the job of the Government, through the Bill, to provide a state-sanctioned and secular approach to civil partnership. It really is not the job of the Government—it would cause some difficulty for some people—to extend the approach so that it is no longer secular but can include the sort of religious input for which my hon. Friend seems to be pushing.

Photo of Angela Eagle Angela Eagle Labour, Wallasey

I wonder whether it is strictly necessary, given what my hon. Friend just said, positively to prohibit a religious element. There are churches in this country that would be happy if same-sex couples were married within their confines, yet the Bill actually prevents that happening rather than saying nothing about it. Must the Bill positively prohibit any sort of religious element, even among the churches that would not have some of the difficulties

with it that, say, the Anglican Church or Catholic Church would have?

Photo of Jacqui Smith Jacqui Smith Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry

It is important that the Bill does that. I am not a Church member. It may well be the case, as my hon. Friend says, that at some time in the future all the churches, dare I say it, may have sorted out their attitudes and would want to go further than the legislation allows. However, there are other people who take a secular view and would want to be reassured that there was a purely secular route for entering a civil partnership or civil marriage. We must recognise that balance, and we have recognised it in the Bill by saying that the legal process of entering a civil partnership should be a secular process. I shall come on to deal with what might happen around that process and, in doing that, address the argument of the hon. Member for Christchurch.

Photo of Alan Duncan Alan Duncan Shadow Secretary of State for International Development

This is an opportune moment to make a very quick observation. Essentially, what constitutes a religious service? In extremis, just when the registrar is doing his bit, an over-enthusiastic witness could say, ''Hallelujah! Praise the Lord'', and the whole process would be invalid. Is there not the potential for someone deliberately to foul it up and render the event invalid in law?

Photo of Jacqui Smith Jacqui Smith Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry

As far as I am aware, there are not large numbers of people rushing to civil marriages to foul them up on that basis. On the whole, with the exception of the concerns that my hon. Friend the Member for Rhondda raised, I do not believe that registrars are taking that approach. Of course there needs to be some flexibility, but it is right that the legislative basis on which we are taking the measure forward should be a secular one and should provide, as I have suggested, some reassurance to those who would insist that the process was secular.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

The point is that I do not think that this provision is secular; it is anti-religious. That is my problem with it. It means that, for example, someone cannot use poems by Gerard Manley Hopkins, many of which are about love, because they have God in them. Much of the poetry about love in this country, and many of the readings that people might want to use at such a ceremony, have references to God. Many registrars will refuse point blank to allow people to have such readings. It seems bizarre in the extreme that the law presently forbids people to have 1 Corinthians XIII, probably the best-known part of the Bible for many people in the country, read at a civil marriage, and it seems curious, too, that it could not be read at a civil partnership ceremony.

Photo of Jacqui Smith Jacqui Smith Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry

Let us be clear. The criticisms that my hon. Friend are making, as he has been honest about, are criticisms equally of civil marriage. That might well be a discussion for another time, but we must be realistic about what would happen if someone did have a Gerard Manley Hopkins poem. I have to say that, having studied him at A-level, I cannot think of many Hopkins poems that I would necessarily want at a celebration. However—

Photo of Jacqui Smith Jacqui Smith Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry

Possibly. However, let us consider how the process will work. We have to set down in legislation the legal requirements and—yes, my hon. Friend is right—the legal restrictions on the part that is strictly speaking the registration process. My argument, and my expectation, is that it will then be possible for there to be a range of different ways in which that process could be celebrated. If people so chose, they could build a ceremony around it. My point is that that should not be set down in the Bill as part of the specific legal details of how the registration is carried out.

Photo of John Bercow John Bercow Conservative, Buckingham

I understand that the purport of the amendments tabled by the hon. Member for Rhondda here and elsewhere is to remove the prohibition on a religious ceremony or the use of religious premises. However, on the specific point about religiosity, does the Minister accept that the precise text of amendment No. 16 does not present a problem in that respect? It is simply an affirmation. It does not even contain a reference to God. I should like to know whether the Minister is suggesting that the words could be potentially acceptable to her, perhaps through amendment No. 25, as a statement in writing, but that they are not acceptable as a spoken form. If so, if the former is acceptable, why is the latter not?

Photo of Jacqui Smith Jacqui Smith Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry

I may have referred to the wrong amendment, but my hon. Friend has tabled two amendments, one of which is about a spoken form of words. We have discussed that at some length. The other is about the removal of the prohibition on religious activities taking place during the course of registration, and that is the amendment that I am addressing at the moment.

I do not know whether I can reassure my hon. Friend, but it is the case that the Registrar General is currently carrying out a review of the content of the civil marriage ceremony because of similar points to those that my hon. Friend is making. Perhaps he would like to pursue his arguments down that route, because he clearly has strong views on the extent to which there should be a prohibition on religious input in civil marriage. However, given that there is such a prohibition on religious input in the legal part of the registration process in civil marriage, I think that it is right that the provisions for civil partnership should at this stage replicate that.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change) 3:00 pm, 21st October 2004

The Minister has been generous in giving way. Has she been given any legal advice on this with regard to a possible human rights challenge? We know that there are certain churches that are quite enthusiastic about the prospect of being able to perform, or to be involved in the performance of, civil partnership services. It seems to me that by excluding that possibility the Government are effectively seeking to restrict the right of religious freedom, which would be covered by the Human Rights Act 1998. That is not a problem for marriage, because in that case people always have the opportunity of undergoing a different procedure and getting married in church. However, there is no option at all for that particular expression of religious freedom under the Bill.

Photo of Jacqui Smith Jacqui Smith Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry

I have had legal advice that, although the Bill as it was introduced into this House was not compatible with the European convention on human rights because of the amendments that were made in the other place and which we discussed yesterday, when the Bill was originally introduced, with this provision in place, it was compatible with the ECHR. So the answer to the hon. Gentleman's question is yes, I have been given legal advice, and yes the Bill is compatible.

The hon. Gentleman is making an argument about the nature of civil marriage. It may be that I have identified another route through which this particular argument and case can be made. However, my view remains that this is not the appropriate place in which to change the basic principle that, whether or not we are talking about a civil marriage or a civil partnership, that should be a secular legal process.

As I suggested, that does not mean that we should go as far as the prohibition that amendment No. 184 appears to apply. The amendment appears to extend the prohibition in clause 3(5). It states that no religious service can be used

''for or in connection with the formation of a civil partnership by registration''.

In terms of the precise legal process involved in civil partnership, we think that the Bill already does that. However, the intention of the amendment is to ban any religious celebration whatever, and in that case we firmly reject it.

It seems completely appropriate that once a same-sex couple have formed a secular civil partnership and their legal business with the registration authority is over, they should be free to celebrate in any way that they wish. That may well involve a religious ceremony, religious words or other things. At that point, it seems completely appropriate that it should be up to the church or the religion involved whether, and how, people who have entered into a civil partnership are able to celebrate that and have it blessed or recognised in whatever religious way is appropriate. That is why I oppose the amendment tabled by the hon. Member for Christchurch.

Photo of Christopher Chope Christopher Chope Shadow Spokesperson (Environment, Food and Rural Affairs)

The Minister has addressed one part of my amendment, but she has not addressed the other part of it, which places a restriction on what happens before the ceremony. We know that in a religious marriage, the religious element is followed by the registration. She has argued that in this case the registration should take place first and then people should be free to celebrate in whatever way they want. My amendment would prevent a religious service from taking place prior to the registration. Does she not think that that is reasonable?

Photo of Jacqui Smith Jacqui Smith Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry

No, not necessarily. If someone chose to have a religious service and then go through the registration process, and that registration process did not have any religious input, I do not see why they could not do that. The implication of the hon. Gentleman's amendment is that people would want to have some sort of religious service during the pre-registration procedure, which is the point at which the two people go and register their notice of intent, up to

15 days before the civil partnership takes place. The idea that a couple would want to do that at a time when they were going to the office and notifying people is rather bizarre. I am not sure whether that is the point at which he was concerned that that might happen.

However, the argument is the same whether we are talking about a service that happens before or one that happens afterwards. My view is that people and religions should be free to offer those services and celebrations. The concern of the Government and of the legislation is the legal basis for the registration process. I made the arguments about why that process should be secular, but I think that it is too restrictive to try to extend that restriction to the celebrations that might and, I hope, will happen around that legal process.

Photo of Alan Duncan Alan Duncan Shadow Secretary of State for International Development

Given that there can be no religious service while the civil partnership registrar is officiating, is it not the case that even as the Bill is constituted there can be a clear-cut 20 minutes in which the documents are signed and the partners say, ''Thanks, registrar. You might not have to hop it but your official duties are over and we're going to have a religious service.'' That is permissible as an immediately consecutive event, is it not?

Photo of Jacqui Smith Jacqui Smith Minister of State (Industry and the Regions and Deputy Minister for Women), Department of Trade and Industry

I believe that that would be permissible. The point is whether the legal process has a religious element to it. I think that there would, as the hon. Gentleman suggests, be all sorts of ways for that event to happen. Before I finish, I reiterate—going back to the issue about the declaration—that I hope that hon. Members will recognise the considerable progress that the Government have been willing to make in recognising the understandable concerns that there should be an opportunity for a spoken declaration. I hope that people will recognise that progress and withdraw the amendments that relate to a spoken declaration.

Photo of Alan Duncan Alan Duncan Shadow Secretary of State for International Development

I thank the Minister. We have made her work very hard on the amendment and she has been most obliging in going into the nitty-gritty of the detail. I think that she has, by and large, convinced us—certainly me—although much hangs on what might ensue under Government amendment No. 24 rather than anything else. I beg to ask leave to withdraw the amendment but reserve the right to bring it back on Report should it be so needed.

Amendment, by leave, withdrawn.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 13, Noes 2.

Question accordingly agreed to.

Clause 3 ordered to stand part of the Bill.