Clause 3 - Marriage for which no opt-in necessary

Marriage (Same Sex Couples) Bill – in a Public Bill Committee at 10:45 am on 5th March 2013.

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Question proposed, That the clause stand part of the Bill.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

I welcome the Minister for Equalities, who is taking over the batting; the Sports Minister can now have a welcome rest and take his trusty bat of religious liberty back into the pavilion.

We now move into the arena of civil marriage. The clause is a significant one, and takes us once more to the redefinition of marriage. It replaces section 26 of the Marriage Act 1949, which sets out the marriages which may be solemnised on the authority of the superintendent registrar’s certificate. Proposed new section 26 of the 1949 Act authorises religious marriages between a man and a woman in registered buildings; civil marriages for all couples in a register office; civil marriages for all couples in, for example, a hotel or other approved premises; religious marriages between a man and a woman by the Quakers or the Jewish religion; marriages between a man and a woman one of whom is housebound or detained; civil marriages of a same-sex couple, one of whom is housebound or detained; and, finally, marriage between a man and a woman in a chapel or church of the Church of England or the Church in Wales. Paragraph 35 of the explanatory notes deals with the purpose of proposed new section 26.

Without wanting to repeat previous debates, we need to return to the territory of the meaning and purpose of marriage, because again that is where the rubber meets the road. The Minister gave us an illuminating view—whether he is happy with this particular definition, I do not know—which takes the revisionist view of marriage, in relation to emotional bonds and commitment, to a whole new level: away from the traditional conjugal view of marriage. Effectively, that view is that marriage means whatever you want it to mean, where autonomy is everything and the results try to find our current reality, rather than what was previously the absolute definition of marriage: bringing together a man and a  woman. Understandably, because the Government want to redefine marriage, clause 3 speaks interchangeably about

“the marriage of a man and a woman” and

“the marriage of a same sex couple” and

“a marriage of any couple”.

Millions out there believe that we are straying too far from what marriage really means in terms of the particular words, to give marriage proper description.

We are now moving into the civil context, but we have not totally left religion behind; given the effective marriage between church and state in terms of the united concept and understanding of marriage. In clause 3, we have what has been described as a wholesale redefinition of marriage. When the Church of England was asked whether clause 3 amounted to a redefinition of marriage, it said that by amending the Marriage Act 1949, which governs all existing and future marriages, the Bill is effectively stripping out all the references to marriage in section 26 of the 1949 Act, as those references no longer need to be qualified with the words “a man and a woman”. We now effectively have a substitution of section 26 with tortured language: that language being

“a marriage of a man and a woman” and

“a marriage of a same sex couple” and

“a marriage of any couple”.

The Church of England briefing, which no doubt we all received and devoured carefully, says that we need to be cautious in distinguishing between the realms of civil marriage, which is dealt with in the Bill, and religious marriage:

“Talk of ‘civil’ and ‘religious’ marriage is erroneous and mistakes the wedding ceremony for the institution. The effect of the proposals would be that everyone who wished to marry—irrespective of the form or ceremony by which their marriage was solemnised—would be required to enter into the same new statutory institution of marriage. That institution would be one that was defined gender-neutrally as the voluntary union for life of any two persons. English law would as a result cease to provide or recognise a legal institution that represented the traditional understanding of marriage as the voluntary union for life of one man with one woman.”

The Church goes on to say:

“The established institution of marriage, as currently defined and recognised in English law, would in effect have been abolished and replaced by a new statutory concept that many inside and outside”— crucially, it mentions those outside—

“religious organisations would struggle to recognise as amounting to marriage at all.”

I invite the Minister to help us to understand the basis and meaning of the purpose of marriage underlying clause 3.

The Archbishop of York has also commented on this matter:

“We must not torture the English language. Marriage is a relationship between a man and a woman and that’s marriage…I don’t think it is the role of the state to define what marriage is. It is set in tradition and history and you can’t just change it overnight, no matter how powerful you are.”

Many out there would say that clause 3 is an example of how we are torturing the English language to try to fit the idea of same-sex marriage into the 1949 Act. Those concerns are out there and they should not be ignored. It is important to remember that, despite the fact that we have moved on in the Bill and dealt with issues around the quadruple lock, concern still remains.

I am reminded by clause 3 that the Bill is redefining marriage for everyone. My marriage certificate says “Marriage Act 1949” at the top, and the Bill is seeking to rewrite that Act retrospectively.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

Yes, I welcome my hon. Friend’s contribution. Previously, I have seen his contributions only in tweets.

Photo of Stephen Gilbert Stephen Gilbert Liberal Democrat, St Austell and Newquay

I am grateful to my hon. Friend for giving way. I wish that I could welcome his contribution to the Committee in the same way that he has pre-empted my remarks. Can he tell us how allowing me to marry my partner fundamentally changes the nature of the relationship that he and Mrs Burrowes have, or changes her gender—or makes any change of any substance in their relationship?

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

I am grateful. We are, as a coalition, generous to each other, and I want to be generous to my hon. Friend.

The point that I am making is that the impact on individuals is not the whole thing. The underlying concerns about the Bill are not just about the right of individuals to have access to marriage and the marriage ceremony, but about the institution of marriage and how it affects us all; not about me individually, or, indeed, Mrs Burrowes, but about the understanding of marriage, for us all. Effectively, clause 3 changes, as we shall see, the understanding of marriage itself.

I do not want to rehearse the clause 1 debates. The objections to the principles of the Bill are established. However, I want to go into another realm of the issue, which the Government will no doubt have dismissed in examining all the policy options underlying clause 3. I hope that we shall have an opportunity under amendment 51 to debate in more detail whether the word “marriage” should be effectively owned by the state in any way, or prescribed by the state—whether it has any reason now to have any hold on the word “marriage”.

I say that because, as we have heard, the definition of marriage is pretty thin and does not mean too much. Perhaps we should recognise the situation we are in. The state is quite properly concerned to support commitment and relationships, and people staying together as long as possible, and it has an important role to play. Perhaps clause 3 should take things a stage further and get the word “marriage” out of the whole context; it has traditionally been formed and influenced by Christian tradition and the Churches, but can now be adopted by others without the state’s involvement.

I am not sure whether other members of the Committee have seen Lord Coleraine’s submission:

“Now may be the moment, after the second reading…for the Government to consider whether the Bill achieves its objectives in the best and, at the same time, the least divisive way. As I  understand it, the Government’s intentions are to give to same sex couples in committed relationships akin to marriage a ceremony which joins them in exactly the same way that marriage joins heterosexual couples.

I take it as axiomatic that the existing Civil Partnership legislation does not begin to satisfy the Government’s criteria. It may, and does, provide valuable and valued benefits for homosexual couples; but it simply does not begin to create a ‘bonding’”— in terms of ceremony—

“akin to marriage. Might it not be possible for the Bill to be amended to provide a new ceremony for homosexual unions? The ceremony would mirror a marriage ceremony in all respects but one. It could include all the formalities of a marriage ceremony, including a vow of faithfulness until death; with only such modifications as are made necessary by the fact that the parties are not a man and a woman.

The one significant difference between this ceremony and a marriage would be that the word ‘marriage’ would not appear, either in the legislation or in the wording used in the ceremony.”

That is his suggestion: that clause 3 should be worded differently, around unions rather than marriage, and that there should be proper consultation with the Church about how it would reflect that in its settlement.

The Minister has great experience, from her practice, in family law, and great understanding of what rights affecting couples and relationships are and are not established in law. So that we can be clear about the issue, will she identify with reference to clause 3 what new legal rights are established by the Bill? What legal injustice has been remedied by clause 3?

There is concern that as far as relationships are concerned there is a hierarchy. I do not believe that the Minister who has retired on this clause wanted to adopt this language, but we have the gold standard of marriage—[Interruption.] The hon. Member for Rhondda refers to platinum, and I will come to that in a moment. First, we have the gold standard of marriage that the Secretary of State wants everyone to be able to apply for. There is the silver standard of civil partnerships, and it has been said that there is a platinum standard that should be looked at in other ways. The reality is that there is a danger of a hierarchy. I am not suggesting that there should be, but it is being been put in place by the state. Where do unmarried couples fit into that? Are they the bronze standard?

I make this point because a constituent at my surgery on Friday asked what Parliament is doing for her rights. She later wrote to me saying:

“The law should create financial equality between unmarried and married women, so that the former can have provision for security for themselves and any children from the relationship.”

That issue has been considered by the Law Commission. Dame Elizabeth Butler-Sloss and others have made representations on co-habiting couples: whether proper rights should be established for them and whether Parliament should take the opportunity to deal with other areas where there is injustice and rights have not been properly enshrined. My constituent continued:

“As the law stands now I have to return the money to the father when my child finishes full time education…Why should women like me not have the same rights as married women?”

She concludes:

“The law should all be more equitable and fair in 21st century society”—

I understand that equality is the spirit and intention in the Bill and in clause 3—

“women like me should be treated the same financially as married women. We have the same responsibilities and time constraints towards our children. Why should it be different for us just because we are unmarried mothers? The law appears to say that if you are unmarried you do not have a right to retain your home after your child turns 18, even though you are still looking after the child; it appears not to care that people such as us will eventually be homeless.”

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

Order. I am reluctant to intervene, but this has very little to do with clause 3. In fact, it has nothing to do with the clause. Will the hon. Gentleman return to clause 3? He was doing extremely well until he went on to the unmarried point.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

Mr Streeter, you make the point that this has nothing to do with clause 3, and it does not. There is a recognised concern about injustice and lack of legal rights affecting families and children, and clause 3 has not properly addressed inequalities and injustices. Will the Minister help us to understand the Government’s rationale for redefining marriage, and whether their goal really is to provide established rights and equalities? If so, should they not look beyond the provisions in clause 3?

Photo of Chris Bryant Chris Bryant Shadow Minister (Home Affairs)

The hon. Gentleman misses the point. That was a Second Reading speech about the whole Bill, which could be said about almost every speech that has been made on amendments.

The language about a gold standard, bronze standard and so on is not exactly offensive, but it is wholly inappropriate. People live their lives in many different ways, and we should not judge between one and another. However, since the 1949 Act the law has allowed two tracks down which people may be married. One is through the Church of England after banns, with a common licence or with an archbishop’s special licence. Such a licence normally provided when people have special reasons for being married in a place where they do not normally reside, such as here in the Houses of Parliament, or are being married according to the rites of the Church of England but in someone’s else’s church or chapel, which then comes under the registrar’s responsibility.

The second route is the superintendent registrar’s certificate, and is in a register office or approved premises, such as a Quaker meeting house or according to the rites of the Jewish religion. It might relate to what in the 1949 Act was a “housebound marriage”, when someone is prevented from accessing any of the other places we are talking about because they are housebound. The Bill terms that a “residential marriage”.

Clause 3 is just part of the machinery of the Bill. It provides, in essence, what clause 1 allows for. If one disagrees with clause 3, one fundamentally disagrees with clause 1, which is why the hon. Member for Enfield, Southgate, was dragged down the route of a Second Reading debate.

I to congratulate the Minister on the redefinition of housebound or residential marriages. It is better than in the 1949 Act. That is not material to the rest of the Bill, but it is a better definition.

I also want to ask about St Mary Undercroft, here. Would it be possible at any stage for a same-sex marriage to be conducted there under proposed section 26(1)(e)?

Photo of Tim Loughton Tim Loughton Conservative, East Worthing and Shoreham 11:15 am, 5th March 2013

I am not entirely sure why the hon. Gentleman’s contribution was any more relevant than the previous contribution on clause 3, but at least it was shorter.

Photo of Tim Loughton Tim Loughton Conservative, East Worthing and Shoreham

I am sure that Hansard will report what my right hon. Friend said.

On the subject of gold standards, the hon. Member for Rhondda either was not listening or deliberately misinterpreted what my hon. Friend the Member for Enfield, Southgate, was saying. He was not supporting any gold, bronze, silver or platinum standard hierarchy. The term “gold standard” came from the Secretary of State in the evidence sessions. Many of us on the Government Benches have been at pains to stress this point: I said in the four minutes that we were limited to on Second Reading that I regard my conventional church wedding as no less equal in the eyes of the law than a civil partnership. There is no gold, silver or any metallic standard at all there. They are equal and different.

There will be an interesting answer to the question about St Mary Undercroft. We should all declare an interest. My daughter was baptised there by my father, but we will not go into that as it is completely off the beaten track of clause 3. Clause 3, if I can mention it occasionally and certainly more than the last speaker did, raises issues of fundamental constitutional significance, which is why it is important that we have the clause stand part debate that you have generously granted, Mr Streeter. It will have far-reaching and unintended consequences. Over and over again in the Committee, questions have remained unanswered on this clause and its consequences. We are entering uncharted territory here.

The Bill means that the way in which we have understood marriage in law, with all those hundreds of references in English law going back to the 14th century, will be intrinsically altered. A simple clause defining marriage will be replaced by three clauses, replacing a single institution with at least two only partially related sub-institutions. We therefore see the first step in the erosion of marriage as what many of us would hold as a single unifying institution for the whole of society. It sets us on a course for what some might term the privatisation of marriage, whereby the institution means only what two people choose it to mean rather than a public institution that society itself uses as a basis for its language and its prosperity. This is perhaps a further step towards the state withdrawing from marriage as we recognise it today, washing its hands of any preference for particular forms of relationship as being in the interests of the common good.

I do not believe that is progressive. It is a form of disinterest that promotes individualism at the expense of community. It is a lowest common denominator approach and a recipe for the unravelling of social institutions because the glue, the fundamental understanding of norms that bind them, is removed. The clause raises more questions than it answers. The  Church of England has stressed the need for exceptionally careful drafting if any change is to be made to the statutes on marriage. The Catholic Bishops’ Conference of England and Wales also urges careful thought and analysis in its response to the Government’s consultation on equal civil marriage. I am afraid that the wording of the clause does not meet that requirement. Rather, it introduces confusion when we desperately need and should be seeking clarity.

The explanatory notes on the clause speak of civil marriages and religious marriages. Since when has that been a valid distinction? I accept the civil/religious distinction for weddings. The law allows couples to choose what kind of venue they would like when they get married. However, whether a couple get married in a registry office or a church, the result is the same: they are legally married. It is not that a couple who get married in a registry marriage are civilly married, and a couple who get married in a church are religiously married. In the eyes of the law, both couples are simply married.

As the Catholic Bishops’ Conference put it:

“Currently, in British law there is only one institution of marriage. For the purposes of civil law, it is the same legal commitment that takes place in a registry office as in a Church. The civil legal status of marriage is only conferred because the priest has been authorised by the Registrar General to conduct weddings in the absence of a Registrar. So, in completing the Register of marriages, the priest carries out a civil function.”

It is a recipe for disaster to authorise those different kinds of marriages under different provisions of the Bill. It introduces two kinds of marriage and puts us on the road to privatising marriage. Marriage will be subjectively defined by the persons involved rather than objectively defined by the statute book. Some may say, given the evidence we had from the Quakers, that that is the line of thought behind Quaker weddings. It is entirely about the state of mind of the two celebrants actively involved in the ceremony. Everybody else is just a witness; they do not officiate or have a ceremonial role.

As Jennifer Morse of the Witherspoon Institute argued in “Privatizing marriage is unjust to children”, the logic of marriage privatisation at the expense of children is a concept developed by adults that will benefit only adults. The Catholic Bishops’ Conference added:

“The government’s proposal risks initiating a social change which, perhaps inadvertently, places the best interests of children to one side in focussing only on the relationship of the couple. The reality of this risk is eloquently expressed by the simple fact that children are not mentioned even once in the government’s consultation document. Policy should be guided by the desire to promote justice, preserve freedom and serve the common good for all, especially the vulnerable, over the long term.”

The irony of the clause is that the state is using its power to force through a redefinition of marriage but will end up privatising the institution. Many people believe, with good reason, that that will have negative consequences for the whole of society. It is not without good reason that marriage between a man and a woman has been described as the fundamental building block of society—although the Secretary of State described it as the “gold standard”. A great deal of research has shown that children do best with a mother and father in a committed marriage relationship and that a stable future for society rests on preserving marriage as between a man and a woman. The Catholic Bishops’ Conference said:

“Unmarried couples, single parents and adoptive parents provide loving homes, devoted care and a good upbringing for children, often in difficult circumstances. However, the distinctive legal recognition given to marriage by the State arises primarily because the institution of marriage in general brings unique qualitative benefits for the children and to society. A substantial body of research shows that the best outcomes for a child are most likely to be found where a child has two parents…That is where children learn about what it is to be male or female, and how each sex relates to the other. The best structure suited to raising the next generation is therefore a stable marriage.”

That may not reflect the view of a majority on this Committee—[Interruption.] In clause 3 or any other part of the Bill. However, it is a legitimate and respectable view. It is based on reason and experience, not just on religious teaching, although that religious teaching—Christianity—has served this country rather well for a rather long time, so we should not be hasty about questioning it.

The state rightly has an interest in marriage, and clause 3 goes to the heart of that—

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.