Schedule 2 - Extra-territorial matters

Marriage (Same Sex Couples) Bill – in a Public Bill Committee at 12:15 pm on 7 March 2013.

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Photo of Gary Streeter Gary Streeter Conservative, South West Devon

With this it will be convenient to discuss the following:

Amendment 46, in schedule 2, page 21, line 41, leave out

‘, or by virtue of paragraph 2,’.

Amendment 47, in schedule 2, page 21, line 42, leave out ‘or 2(2)’.

Amendment 48, in schedule 2, page 22, line 28, leave out sub-sub-paragraph (b).

Amendment 45, in clause 17, page 14, line 3, leave out subsection (3).

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Health), Shadow DUP Spokesperson (Transport), Shadow DUP Spokesperson (Human Rights)

This is an important issue for us, and it is important that it is on the record that the Committee has considered such matters. I would like to state at the beginning that the amendments are probing in nature and we will not be pressing them to a vote. However, it is important that they are on the record. I hope that the Minister will be able to give me some answers and that I will appreciate the affirmation he gives.

The amendments address the provisions in the Bill that will determine how Northern Ireland, and the Northern Ireland Assembly in particular, should deal with same-sex marriage. I would like to give some background to the following extract from the explanatory notes to the Bill, which puts the amendments in context. Under the heading “Northern Ireland”, the explanatory notes state:

“Marriage is an area which is a devolved matter for Northern Ireland.”

So it is.

“The Bill does not affect Northern Ireland directly, except as follows”.

It is about what follows that I am concerned and seek the Minister’s assurance. The notes continue,

“there are amendments to the law in Northern Ireland as it relates to re-issuing and correcting errors in gender recognition certificates and fraud proceedings under the Gender Recognition Act 2004…the Bill provides that marriages of same sex couples under the law of England and Wales will be treated as civil partnerships under the law of Northern Ireland.”

They go on:

“The UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters in Northern Ireland except with the agreement of the Northern Ireland legislature. There are a number of provisions within the Bill which trigger that convention. In addition to the provision of the Bill which affects Northern Ireland directly (the treatment of same sex couples married in England and Wales), the other provisions which trigger that convention are a power for the Secretary of State to make consequential amendments in devolved areas; a power to make provision by an Order in Council about how UK consulates overseas carry out marriages and how service personnel can marry overseas. If there are amendments to the Bill which trigger the convention, the agreement of the Northern Ireland Assembly will be sought for them.”

My hon. Friend the Member for East Antrim (Sammy Wilson), who is also the Minister of Finance and Personnel, informed me that the Government have had some discussions with the Northern Ireland Assembly. There has also been a very clear lobby of many people in Northern Ireland who are concerned, and the Northern Ireland Assembly has made the decision to oppose the Bill, which I will come to in a few minutes.

The Government have made it clear that the Bill has been prepared to amend the law in England and Wales only. If I understand it correctly, the Bill is seeking  to legislate for areas of law devolved to the Northern Ireland Assembly—I will refer directly to the Bill. There is a simple reason for our seeking clarification. The Bill states:

“The Secretary of State or Lord Chancellor must—

(a) obtain the consent of the Scottish Ministers before making any order under this Act and

“(b) consult the Department of Finance and Personnel” in Northern Ireland. Thus there is a question of consent, for the Scottish Parliament, which can make its own decisions, but consultation for the Northern Ireland Assembly, so that the Government can if they wish override its view.

My question is whether the Government intend to break the convention and override the Northern Ireland Assembly. A pertinent example concerns the National Crime Agency. I and my party are in favour of it, and so are most parties in Northern Ireland. I would love it to be established, but it will not, now, because one party in Northern Ireland has decided that it should not. Therefore, the National Crime Agency, which the majority in Northern Ireland—probably 70% of the population—favour, will not happen, because of one party’s objection. If the Government have not pushed for the National Crime Agency, how can they do so on the matter in question, which is of equal—indeed, greater—concern for most people in Northern Ireland?

There was a lengthy debate in the Assembly, and I will not outline all the ins and outs of it, but I wanted to make some comment and to ask the Minister a question. On Second Reading the Secretary of State mentioned in general terms—but leaving, none the less, a question in our minds—an intention to seek at least the opportunity, through the consultation process, of bringing Northern Ireland into line with the United Kingdom. Have the Government considered the unique nature of devolution or, indeed, of Northern Ireland? If not, will they do so? Will the Minister acknowledge the recent vote that showed that the Assembly was not in favour of the measure and ensure that no money will be wasted on pursuing it if the majority of the elected Members and the devolved Administration are of that mind?

The Committee cannot ignore the uniqueness of Northern Ireland’s position. There are 533 Roman Catholic-managed schools in Northern Ireland. According to figures from the Department of Education the number of pupils registered at schools in Northern Ireland is just over 322,000, approximately, and the number of pupils attending Catholic-managed schools is 164,000, approximately. About 51% of children in Northern Ireland are educated in Catholic-managed schools, and there are other faith-based schools, which take the number higher. That relates to one section of Northern Ireland society; but the clearly stated figures cannot be denied by Government or anyone else. There is no comparison, as there is nowhere near the same percentage in faith-based schools in England and Wales.

Will there be exclusions for the teaching curriculum? The question must be asked. The opinion of the Roman Catholic Church and the vast majority of the Protestant Churches in Northern Ireland is clear; they are completely opposed to the legislative change. The possibility that  the Government could break with convention and overrule the Northern Ireland Assembly and push the matter through is a matter of great concern to us.

According to a recent Tearfund poll 14% of English people were regular churchgoers; 12% of Welsh people and 18% of Scots attended church regularly. In Northern Ireland regular church attendance is 45%, which is more than the three other regions put together. We cannot ignore that faith-based opinion when it comes to this issue. It shows the high level of those following doctrine who do not believe, and have stated that they do not believe, in the proposed changes. Will the Committee consider the position it would be putting these huge numbers of people in by carrying out the Secretary of State’s agenda of bringing Northern Ireland in line? It is an issue that concerns us greatly.

We all recognise devolution. Devolution for Northern Ireland is something that I supported in its totality. This Government have promoted it. The Labour Government gave it their support as well. We are pleased in this House to have devolution in Northern Ireland because it provides a legitimate, democratic process that takes us forward. We do not look back to the past. We look forward and it is important to do that. As a Unionist I feel it preserves our position in the United Kingdom better than before. But it is a peculiar type of democratic process. It is partnership government. It only works because the nationalists and the Unionists agree to take things forward. In many cases it means compromise. That has been a process that works.

Is it the democratic process that works in this House? No, it is not, but it is a partnership that works and that is why it is important. During the debate in the Northern Ireland Assembly there was a vote that clearly outlined the opinion of the members of that Chamber. One member said:

“The whole point of devolution is to permit regional variations in law and in practice from other parts of the United Kingdom. Not only are we not obligated to follow blindly but we would be neglecting our role by doing so. In referring to the ‘eyes of the state’, the motion fails to acknowledge that, under devolution, those eyes are different in Scotland to those in England and Wales, and different again to those in Northern Ireland.”

That is the point I am trying to make with my probing amendments. I will not press them to a vote, but I want to make sure that the points are on the record.

In my time as a councillor, as a Member of the Northern Ireland Assembly and now as a Member of this House, I have prided myself in being able to represent everyone. The votes that we have at elections sometimes give us a different mandate. Proportional representation enables us to see where our second or third preferences are. Whenever we do well in an election and we are elected, our extra votes are distributed among different political parties. It shows that people put their trust in individuals. On this issue people cross party lines.

I have spoken to people from the Presbyterian Church, the Methodist Church, the Church of Ireland, the Elim Pentecostal Church, the Baptists, the Brethren and also from the Roman Catholic belief. We also have smaller groups in Northern Ireland. For example, those of the Muslim faith have helped in planning applications. Bangladeshi groups have their own opinions as well, as do the Sikhs. The vast majority of opinion is to oppose this measure.

There are amendments in the Bill to the law in Northern Ireland as it relates to reissuing and correcting errors in gender recognition certificates and fraud proceedings under the Gender Recognition Act 2004. The Bill provides that marriages of same-sex couples under the law of England and Wales will be treated as civil partnerships in Northern Ireland.

Following a debate on 1 October 2012, Members of the Legislative Assembly at Stormont rejected a motion calling for the redefinition of marriage by a majority of 50 votes to 45. The motion was defeated by a simple majority, contrary to some media reports at the time. It would be an affront to the democratic process if the Bill were written in such a fashion as to contradict in any way what was so recently decided by the elected politicians in Northern Ireland in a democratic process on a devolved matter as granted and agreed by Her Majesty’s Government.

Paragraph 2 of schedule 2 states that the law in Northern Ireland must recognise same-sex marriages. We are, in effect, telling locally elected legislators in the devolved institutions how they must handle an issue on which they have already made a decision in their own region, as a devolved matter granted by Government. If the Government want the law in Northern Ireland to recognise same-sex marriages formed in England as though they were civil partnerships, they should ask those who hold the democratic mandate and the legislative authority to do that. I understand that existing civil partnership legislation in Northern Ireland recognises some overseas same-sex marriages as civil partnerships, but I believe it is for the Northern Ireland Assembly to decide whether we should recognise as civil partnerships the form of same-sex marriage proposed in English law, and the convention should rule on that. The Northern Ireland Assembly should not be dictated to on such a controversial matter.

We do not want legislation on same-sex marriage in Northern Ireland by stealth. If such legislation is introduced, it must be because the devolved Assembly vote for it and approve it. If they do so, we must accept the result of that democratic process. Not only that, but what steps are the Government taking to ensure that the Bill leaves no loopholes and has no unintended consequences for Northern Ireland?

Will the Minister assure us that the provisions will not be used in litigation to press for a change in the law in Northern Ireland against the democratic will of the Stormont Assembly? A few bodies in Northern Ireland seem to think that it is their job to use taxpayers’ money to campaign and litigate for changes in the law to suit particular agendas. I am sure that such bodies exist on the UK mainland as well. They have campaigned on such sensitive issues as abortion, same-sex adoption and even whether parents should be able to smack their own child on the back of the hand if he or she is naughty.

Such things are happening in Northern Ireland, and we must ensure that changes in legislation do not creep in by the back door. I fear that legislating for same-sex marriages and England and Wales will be used by some as an excuse to argue that we will be somehow in breach of some equality obligation or other if we do not make the same change in Northern Ireland law. We have a devolved Assembly, supported by the Government, who have the authority to make a decision on the matter, and who have done so. What legal obstacles will the  Government put in the way of such a challenge to ensure that the definition of marriage in Northern Ireland is decided by its elected politicians, not by unelected judges or quango lawyers, who seem to exist in great numbers?

Outside the Stormont Assembly, the redefinition of marriage has generated considerable anxiety among the public in Northern Ireland. I have said in the Committee and in the House that it is the biggest single postbag issue that I have had in all my years as an elected representative, in the three different roles that I have played. I have been contacted by 1,700 of my constituents, and by many more from outside my constituency, who have voiced their opposition to any change in the definition of marriage. I was at a male voice choir event on Saturday night in my constituency, and people who attended it expressed their concern about what was happening. I have received more correspondence on the matter than on any other issue. Only 17 people from my constituency have contacted me to express their support for the redefinition of marriage. I respect the right to hold a different view, but that is very much the minority view, and respect for views must go both ways. Several of my fellow Northern Ireland MPs have received correspondence from constituents in similar proportions.

Members of the Committee may not agree with my constituents’ views, but I have a fair knowledge of my constituents’ opinions. I would also have the authority of the Northern Ireland Assembly to advance, in the House and in the Bill Committee, the viewpoint of people who oppose the change. Hon. Members must respect the right of my constituents and the people of Northern Ireland to hold such a view, and their right to communicate it in reasonable terms, as they have done, to their elected representatives. Hon. Members should also respect the right of elected representatives to express—again, in reasonable terms—and represent those views. The Bill must respect the wishes of the people in Northern Ireland and not seek to impose same-sex marriage on the Province in any way outside of the convention. If there is a doubt about that, the Northern Ireland provisions should be stripped out of the Bill altogether.

There are concerns on both sides of the community. Numbers of those who are of a nationalist persuasion in the area I represent have made it clear to me that they are concerned about the redefinition of marriage; they do not want a change, and they are happy with the decision taken by the Northern Ireland Assembly. The Churches in the Province believe that marriage is a union of one man and one woman. Protestant and Roman Catholic groups have voiced their opposition to redefining marriage in general and to the Bill in particular.

Many fear that although the Bill is designed for England and Wales, it could be used to generate political pressure for changes to Northern Ireland legislation, against the wishes of the majority of people. The Government have already acknowledged that changes to tax and immigration systems as a result of the Bill will apply in Northern Ireland, as explained in the consultation document. The Bill is therefore already encroaching on law and policy in Northern Ireland in some ways. That may be what the Government want; they may even see the Bill as a way of putting pressure on the Assembly at Stormont—opening the door just a  little could increase the legal and political pressure. If that is the goal, the Minister must tell us.

Some Members will be glad to hear that I am going to finish now. If I had more to say, I would love to keep the debate going, but I am conscious that we are coming to the time when we have to decide these matters. The difference that concerns us is this: in Scotland, consent is needed for many legislative changes, so Scotland can say no. In Northern Ireland there is consultation, which means that the Government could, if they so wished, destroy the convention, disregard other events and override the opinion of the Northern Ireland Assembly. Ministers need to be careful about that, because it could destroy a political process and the confidence many people have in the Northern Ireland Assembly to decide what happens for people in Northern Ireland. I therefore hope the Minister will give me the assurances I seek. We cannot let the debate go by without discussing these matters. I am not pressing the amendments to a vote, but I would like some clarification on these matters.

Photo of Hugh Robertson Hugh Robertson The Minister of State, Department for Culture, Media and Sport 12:45, 7 March 2013

I am grateful to the hon. Gentleman for the opportunity to discuss the amendments, which affect the way English and Welsh marriages of same-sex couples will be treated in Northern Ireland. As he knows, Northern Ireland is part of Great Britain with which I am not unfamiliar. Over the course of my remarks, I hope to be able to give him much of the reassurance he seeks.

The general proposition in the Bill is that marriages of same-sex couples solemnised under English and Welsh law will be treated in Northern Ireland as a civil partnership. That mirrors the current position in the case of same-sex marriages solemnised outside the UK. Amendment 41, taken with the other amendments in the group, would remove that provision from the Bill, leaving a same-sex couple married under the Bill with no legal status in Northern Ireland, and the amendment has been drafted purely to address that issue. That would contrast with the situation of a same-sex couple who married outside the UK—for example, in Canada or Portugal—because such couples are already treated in Northern Ireland as civil partners in accordance with the provisions of the Civil Partnership Act 2004. Leaving same-sex couples married in England and Wales in legal limbo if they move to Northern Ireland would clearly be unjust.

I absolutely agree with the hon. Gentleman that marriages and civil partnerships are devolved matters in Scotland and Northern Ireland. He is absolutely correct that we are in discussion with Northern Irish Ministers and the Northern Ireland Office about the provisions and other aspects of the Bill as they affect Northern Ireland. We are doing that with a view to seeking a legislative consent order for the provisions for which such consent is required.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Health), Shadow DUP Spokesperson (Transport), Shadow DUP Spokesperson (Human Rights)

Will the Minister confirm one important thing? He says he is having discussions with the Northern Ireland Assembly. Does he intend to break with convention and push the matter, should the Northern Ireland Assembly say no?

Photo of Hugh Robertson Hugh Robertson The Minister of State, Department for Culture, Media and Sport

I will come on to that in a minute. The important thing here is that I, as a UK Minister, cannot leave people who undertake a same-sex marriage in this country in legal limbo in the hon. Gentleman’s part of the world. It is purely to address that issue. I will come on to whether the Northern Ireland Government  move towards us and make the necessary provisions in a minute. I beg the hon. Gentleman to take my assurance that it is purely to address that position; we cannot leave people in this no man’s, or no woman’s, land if they move to the Province.

Photo of Hugh Robertson Hugh Robertson The Minister of State, Department for Culture, Media and Sport

I knew that would appeal to my hon. Friend. These powers do give us a practical way to deal with these issues, but they do not extend to overturning the general proposition or changing the status of relationships under the law of Northern Ireland. They only allow for specific modified or contrary treatment in specific cases. Just to give the hon. Member for Strangford absolute confidence and clarity, these provisions would not permit provisions to be made that same-sex marriages should be recognised in Northern Ireland under Northern Irish law as marriage. Nor do they permit any extension of marriage under the law of Northern Ireland. I am happy to give him those two assurances.

The hon. Gentleman asked two questions. The first was about education. I am happy to post it on the record here, that this Bill will not affect teaching in Northern Irish schools. Same-sex marriage is already available in other jurisdictions outside Northern Ireland, such as Portugal and Canada, and the fact that it would also be possible in England and Wales does not affect education in Northern Ireland. As to whether there will  be any pressure to introduce equal marriage for equality reasons, I can say there is absolutely no requirement on Northern Ireland to introduce same-sex marriages, neither an equality requirement nor a requirement under the European convention on human rights. Marriage is a devolved matter for Northern Ireland and it is for the Northern Ireland Assembly to determine matters in that regard.

We are in discussions with Ministers in the devolved Governments, and while these discussions continue—and only while they continue—our view is that these provisions in the Bill are needed. Should they come to the right conclusion in order to safeguard this legal anomaly, we will look at this again. However, while those discussions continue, these provisions are needed. I hope that that explanation is helpful and that I have given the hon. Gentleman the reassurances that he seeks. I therefore ask him to withdraw the amendment.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Health), Shadow DUP Spokesperson (Transport), Shadow DUP Spokesperson (Human Rights)

I am pleased to have a genuine and helpful response from the Minister. It is important to have the matter and replies in Hansard as well. I happily beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ordered, That further consideration be now adjourned. —(Mr Swayne.)

Adjourned till this day at Two o’clock.