Clause 11 - Effect of extension of marriage

Marriage (Same Sex Couples) Bill – in a Public Bill Committee at 2:00 pm on 7 March 2013.

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Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate 2:00, 7 March 2013

I beg to move amendment 39, in clause 11, page 10, line 41, leave out subsections (1) and (2).

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

With this it will be convenient to discuss amendment 61, in clause 11, page 10, line 41, leave out subsection (1) and insert—

‘(1) In this Act—

(a) references to “marriage” in relation to same sex couples shall be changed to “union”.

(b) in the law of England and Wales, “union” has the same effect in relation to same sex couples as “marriage” has in relation to opposite sex couples.’.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

Good afternoon, Mr Streeter. I hope that you are suitably refreshed for this afternoon’s proceedings. Amendment 39 would remove subsections (1) and (2) and helpfully provides the Government with the opportunity to show their openness and transparency —and indeed, I believe, their honesty—in relation to the Bill. It already contains clear differences between effective marriage in respect of same-sex and opposite-sex couples. Nevertheless, clause 11 states:

“In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples”.

The amendment would remove that understanding from the Bill.

Later in the day, we shall have the joy of looking at the different applications of adultery and consummation. We have had the opportunity to look at the ability of same-sex couples in a civil partnership to receive their conversion to marriage, which is not available to opposite-sex couples in that particular form. The Government clearly intend—it is obvious; we have already heard it—that, through the clause, the default position will be that same-sex marriage will have the same legal effects as heterosexual marriage. The clause is extremely broad and we cannot possibly know all its implications, particularly given the level of inquiry that has been undertaken.

Amendment 39 responds directly to the lack of detailed inquiry into the implications of equalising the legal effects of same-sex and opposite-sex marriage. I understand from Church representatives that officials have not apparently had the time to assess exactly the precise  effect of the clause. Indeed, they have not been aided by the fact that we have had barely months to reach the position that we are at now, and they have not had the time to go through all the existing legal provisions relating to marriage and decide which are to be changed and which are not, statute by statute.

The Government have decided to take a blanket approach under the clause. My amendment would remedy that and allow them more time for reflection. The clause will affect all legislation that refers to “marriage”, “husbands” and “wives”, without exception. Consequently, it is likely to lead at least to confusion, and likely to litigation, as well as—given what will flow from clause 15—numerous pieces of secondary legislation. I have not counted them all, but, in statute, there are some 4,000 references to marriage, just under 2,000 to “husband” and approximately 1,800 to “wife”. Unless the Minister wishes to tell me otherwise, I doubt whether they have all been considered by the Government. We must also examine the impact of the Bill on common law.

No one seems clear about the effects of the clause on existing legislation relating to marriage, which is not a sensible basis on which Parliament should legislate. The Bill is a piece of lazy drafting and the amendment would offer some rectification. Unless the Committee accepts amendment 39 to what has been described as a “live and let live” Bill, we will be left with a “suck it and see” clause.

I do not propose to rehearse in great detail all the debates on the likely consequences for legislation that refers to “marriage”, but under section 403 of the Education Act 1996, guidance issued by the Secretary of State on sex education might have to be altered. The Minister, in his only reference to schools, said:

“Nothing in the legislation affects schools’ rights to teach marriage according to their character, and the additional protections are therefore unnecessary.”––[Official Report, Marriage (Same Sex Couples) Public Bill Committee, 28 February 2013; c. 311.]

However, the clause, as backed up by legal advice, will affect section 403, so, unless the clause is withdrawn or amended, religious schools will be guided to teach about the importance of same-sex marriage to family life and the bringing up of children, even if such teaching were contrary to the religious character and designation of the school.

I do not propose to go through that debate again—we have been there—but it highlights one example in relation to the word “marriage” where I believe the Government need to give further thought and attention to what will happen. That one example will have significant impact on about a third of all schools, which have a religious character or designation.

There is the issue of legislation that includes the words “husband” or “wife”, or both. Earlier in Committee, I referred to section 47 of the Criminal Justice Act 1925, which abolished the common-law presumption of coercion of a married woman by her husband and substituted a statutory provision, which states that

“on a charge against a wife for any offence other than treason or murder it shall be a good defence to prove that the offence was committed in the presence of and under the coercion of the husband.”

What will be the effect of the clause on that Act? In paragraph 5 of schedule 3 to the Bill, which applies only to new legislation and therefore, technically, does not apply here, “husband” is defined as including a man  who is married to another man, and “wife” includes a woman who is married to another woman. If that is the appropriate interpretation to apply to the 1925 Act, what is the effect? Does it mean that the defence provided in section 47 will apply to both parties of a marriage between two women, but to neither party of a marriage between two men? Or does it mean that the defence will not apply at all in a same-sex marriage?

The Minister promised to give me a response when we got to the clause, which we now have done. The Committee has no doubt been patiently looking forward to that response, which I am sure will come very soon.

I have another example. Section 2 of the Administration of Justice Act 1982 provides:

“No person shall be liable in tort under the law of England and Wales or the law of Northern Ireland

(a) to a husband on the ground only of his having deprived him of the services or society of his wife”.

I had to read that twice because I thought it could be from an Act of 1882, but it is a 1982 provision that is on the statute book and still applicable. What will be the effect of the clause on that Act? If the definition of “husband” in paragraph 5 of schedule 3 to the Bill is carried over to section 2—even that is unclear—will a person be liable to a husband on the ground of his having deprived him of the services or society of his husband? Will one husband be able to deprive all others of the services and society of his husband and be able to bring tortious claims against any person who attempts to utilise or monopolise the services or society of his husband? Or does it mean that the defence will not apply at all in a same-sex marriage?

Those are just a couple of examples. No doubt there are many others. I hope that the Government have looked in detail through all the others, as well as at the difficulties that the clause gives rise to and the uncertainties that it creates, which we will have to deal with. It is not for Team marriage—the dissenters to the Bill—to highlight every law, statute or common law that will be affected. I am sure, Mr Streeter, that you would get quite exercised if I tried to do that. It is up to the Government to go through those measures and to reassure us that they will not simply leave it to case law to sort out the problems down the track. They need to come to the table to reassure us that that they have looked at this matter.

The proposed change in the law is a matter of constitutional importance. The clause provides for potentially extensive and not fully-known consequences to the laws of the land. Amendment 39 would remove the clause, which would help the Government by allowing more detailed consideration—statute by statute, line by line—of the numerous references and by creating greater clarity, enabling the Minister to come back on Report with a more sensible way of saying where the clause applies and where there is equal legal effect, but also where there may be exceptions or where certain interpretations are needed. At the very least, we could be given book-length explanatory notes to explain the detail and the real effect of the clause.

Amendment 61 is probing. It responds to the central objection of millions of people on whose behalf the dissenters to the Bill are speaking. We and they believe that the Bill is an appropriation of the institution of marriage, and, at the very least, an appropriation of the word “marriage”. The amendment proposes instead the  creation of same-sex unions, by changing the word “marriage” to “union” throughout the Bill wherever it refers to same-sex couples. In every way, the amendment would concede what has come to pass in the Bill and recognise that everything granted by the Bill would mirror marriage, but the term “marriage” would be retained for opposite-sex couples, recognising the distinction made by the hon. Member for Rhondda in 2004 while still recognising equal value.

We have had the Minister’s initial reaction to that position, but the question is, if the Government’s definition of marriage is really that it means whatever the couple want it to mean—if we have got to that thin definition of marriage—why can they not change the name of the institution that they are creating? Indeed, have the Government considered changing the name? Doing so may well take some heat out of the divisive issue of redefining the word “marriage”.

Perhaps the Minister has already considered the issue, in which case the amendment is unnecessary and he can offer me reassurance. The amendment offers what could be a more conciliatory and uniting approach to dealing with an issue that has caused consternation around the country, for religious people and others beside.

The Church of England made an important point in its submission to the Committee. Despite the suggestion that happiness pervades the Church in relation to the Bill, which is clearly not the case, I have not heard a response to the Church’s point:

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

Amendment 61 would go some way to meeting those concerns by recognising marriage—the word and its meaning—as something different from same-sex unions.

Others draw the conclusion that, if the Government are effectively to abolish marriage as we know it, we should consider another path altogether. There are those in the House—we may come back to the issue when the Bill is considered by a Committee of the whole House—who want to pursue further the question whether the state should get out of marriage and get out of the word “marriage” by creating a state-recognised system of unions that both same-sex and opposite-sex couples could take advantage of, leaving the word “marriage” to other institutions that are not part of the state.

We received a submission from Professor Julian Rivers, as well as hearing from him in our oral evidence sessions. I found his contributions helpful and thought it was helpful for the Committee to hear his views, although I am not sure that everyone truly respected what he had to say and the way that he said it. In his submission, he put forward a view that he called “A more radical proposal”:

“The rushed nature of this Bill means that the Government has failed to consider whether the time is not right for a much more radical change to the structure of our marriage law. Many European states have uniform civil ceremonies and treat any religious ceremony as entirely extra-legal. This was the result of earlier conflicts between religious and secular views of marriage, conflicts to which the UK was largely immune, but which have now emerged with a vengeance. The logic of the underlying premises of the Bill points to a more radical reform”— amendment 61 would address that reform—

“to create a single legal framework for all couples substantially based on civil partnership, perhaps with a new name such as ‘civil union’... to deem all existing marriages and civil partnerships to continue as civil unions in law... to permit individuals to celebrate their civil union in any way they see appropriate. One attractive model is to adopt a celebrant-based system as proposed in the then Government’s 2002 White Paper and which has regrettably been ignored since.

“The advantages of such an approach would be to remove some of the doubts about whether religious liberty interests are adequately protected, to take the heat out of the battle over the ‘marriage’ label, and to avoid the inconsistencies the Government has fallen into over the relationship between same-sex marriage and civil partnership. In the current climate of debate, these would be considerable gains.”

I ask the Government to respond and to allow us to understand why they have got to the point where we have a poorly drafted clause that needs at least amendment, if not withdrawal.

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

Welcome back to your place, Mr Streeter. I thank my hon. Friend for tabling the amendments. The effect of amendment 39 would be that a married couple of the same sex would not in general have the same rights, responsibilities and entitlements, as provided for in other legislation, as a married couple of opposite sexes. Both amendments would create a hierarchy of marriage, with a union between two people of the same sex being very much the poor relation. Beyond the ceremony itself, that would amount to a near complete negation of the benefits for same-sex couples in society as a whole that we seek through the Bill.

As I made clear in previous sittings, same-sex marriages will be as legitimate in the eyes of the law as marriages between a man and a woman. We are not creating a separate institution of marriage or of purported marriage. Rather, this is about opening up the existing legal institution of marriage to same-sex couples so that all couples can enjoy the rights and benefits of being married. Those two words are crucial.

Subsections (1) and (2) of clause 11 ensure that the effect of being married is generally the same in law for same-sex couples as for opposite-sex couples. We recognise, however, that there will be particular cases that will require a different interpretation of the law, and the Bill already does that in respect of pension providers, adultery and non-consummation. We will turn to those exciting topics later this afternoon. There are other cases when applying the general provision in clause 11 would produce the wrong results, and schedule 4 stipulates those exceptions and how they would apply.

I was asked two questions about the defence of marital coercion. Coercion by a husband is a criminal-law defence. For historical policy reasons, the defence applies only for the benefit of a woman married to a man, but we are working closely across Government to explore options in light of the Bill. If we made no further provision, the defence would apply to both members of a same-sex married couple, as well as a woman married to a man, but not to a man married to a woman or civil partners, which is why work is ongoing.

My hon. Friend the Member for Enfield, Southgate also asked how we would deal with the implications of clause 11 across statute and common law. The Bill sets out the general proposition that references to marriage will include same-sex marriage and how marriage-related terms will be interpreted. As he is aware, it contains powers to enable the Government to specify when a different result is needed. We will bring forward the necessary secondary legislation before the Bill is brought into force to enable that to take place.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate 2:15, 7 March 2013

The other example that was raised was section 2 of the 1982 Act. Has any consideration been given to the work that needs to be done on that?

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

My hon. Friend asked about the number of references to marriage across English law—I think he mentioned 4,000. We think that the number we have positively identified is closer to 8,000. In an overwhelming majority of those cases, the interpretation provided for in the Bill works perfectly well. For those that have been identified where it does not work well, provision has been made in the Bill. The clause covers any outstanding provisions, which is, in essence, the point of having it.

The clause is key to the workability of the Bill. It provides that marriage for same-sex couples is recognised in law as the same as marriage for opposite-sex couples. It also provides protection to ensure that the equivalence provisions in the clause have no effect—this is important—on the Measures and canons of the Church of England.

Amendment 61 allows us once again to explore the meaning of marriage. The amendment would introduce a new term—“union”—to apply to the marriage of same-sex couples, while reserving the term “marriage” for opposite-sex couples. In essence, the amendment would create a division between marriage for opposite and same-sex couples, which is wholly inconsistent with the aim of the Bill. The Government do not believe that a new status is necessary, and that would damage what the Bill is trying to achieve to strengthen the institution of marriage. For that simple reason, I invite my hon. Friend the Member for Enfield, Southgate to withdraw the amendment.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

I do not wish to detain the Committee for long. I highlighted just two examples, but there are many more. The Minister referred to some 8,000 references, and the Government have a duty to provide information on all the different references so that we can properly deal with the interpretation and determine whether there are any lacunas in statute. I invite the Government to be transparent about that so that we can all have proper assurances about the true effect of clause 11.

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

Let me assure my hon. Friend that that is absolutely the case. We are as confident as we can reasonably be that we have caught all the references, given that there are more than 8,000 of them in Acts going back over a long period. The provision is a sensible means of mopping up the others, and it is the Government’s intention to do what he has asked us to do.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

I am grateful for that reassurance, but I am still sceptical, given the time in which the Bill is being pushed through Parliament and the extent of its huge ramifications on statute. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 ordered to stand part of the Bill.