Schedule 3 - Interpretation of legislation

Marriage (Same Sex Couples) Bill – in a Public Bill Committee at 2:15 pm on 7 March 2013.

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Question proposed, That the schedule be the Third schedule to the Bill.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

We are in areas where the pitch is worn, and I know that the Minister might not even wish to be batting on this worn wicket, because he might not have the firm stroke that he usually likes to show the Committee. Nevertheless, schedule 3 is important, because it demonstrates how trying to redefine marriage stretches language and reality to breaking point.

Paragraph 1 of schedule 3 states that, in all existing England and Wales legislation,

“a reference to marriage is to be read as including a reference to marriage of a same sex couple”.

Paragraph 5(2) states that two men would call each other “husband” and two women would call each other “wife”. That would include situations in which one of the women—a wife—gave birth to a child, as the non-birth partner would also be called “wife”.

I had the pleasure of taking an active part in the consideration of the Bill that became the Human Fertilisation and Embryology Act 2008. Section 53(2) of that Act states:

“Any reference (however expressed) to the father of a child who has a parent by virtue of section 42 or 43 is to be read as a reference to the woman who is a parent of the child by virtue of that section.”

Section 53(3) is similar, dealing with evidence of paternity when a second woman is a parent by virtue of section 42 or 43 of the Act. You may remember, Mr Streeter, the debates about references to “father”. Interestingly, the Committee of the whole House that considered the Bill had the opportunity at an early stage to debate such issues, which exercised Parliament for some time.

It seems that a child’s second female parent could be referred to as “father” in legal and other documents under the 2008 Act—that seems clear—with the understanding that it refers to the second woman, but they could also be referred to as the “wife” of the birth mother under schedule 3 of the Bill. This is a complicated point, so it needs careful attention and perhaps a hot towel to one’s forehead. Nevertheless, it is the case that if a child had two female parents, under sections 42 or 43 of the 2008 Act—with section 42 amended by the Bill to cover same-sex marriage—the child would be in the potentially confusing situation of their birth mother calling the second parent “wife”, when they were also in some cases referred to as “father” in legal documents, under the 2008 Act, but with “father” to be read as a reference to a woman.

I ask the Minister to help us by explaining the situation. I appreciate that it will be difficult for him to bat on this sticky wicket, but it is his Bill, not mine, and he needs to  respond. There is confusion. There are references to “father” in legal documentation under the 2008 Act, but under the Bill, there is the seemingly different reference of “wife”.

Perhaps the Minister can also explain the provisions that redefine “wife”, “husband”, “widow” and “widower”, but maybe we have an answer, because paragraph 101 of the explanatory notes is an attempt to provide some assistance:

“This Part sets out the meanings of specific words which relate to marriage (such as ‘husband’ and ‘wife’). It reflects the principles in the Bill, which are to put same sex marriage on an equal footing with opposite sex marriage. This will ensure that gender-specific terms such as ‘husband’ keep their gender-specific effect. For example, ‘husband’ will in future legislation include a man who is married to another man (but not a woman in a marriage with another woman); and ‘wife’ will include a woman who is married to another woman (but not a man married to another man) unless specific alternative provision is made.”

I emphasise the phrase:

“unless specific alternative provision is made”.

Does that mean that specific alternative provision can be made to allow a man to be called a wife or a mother, and a woman to be called a husband or a father? Has alternative provision been considered? Will it be made to deal with the application of the 2008 Act? I hope that the explanatory notes will be truly explanatory and we will be helped with regard to that alternative provision.

In the Bill and explanatory notes, the Government say that they are sensitive to accusations that the redefinition of marriage will result in the loss of familiar, homely words such as “father” and “mother” and their replacement with the bureaucratic phrases such as “progenitor A” that are used in places such as Spain. They say that they want to keep the words as they are, but the redefinition of terms can lead people to criticise the Government and reinforce concerns that the Bill initiates a social deconstruction that is leading to a deconstruction of words that do not belong to Government. The Government may have a view about what they would like to describe with these words, but they do not belong to Government, so they cannot do as they please with them. The words have real meaning and value, and the Government are riding somewhat roughshod through delicate areas.

I remember that the 2008 Act went through pre-legislative scrutiny. A Joint Committee worked carefully on all the issues involved, and learned Members of all parties tried to deal with some of the complex issues. A draft Bill was published and subsequently amended, and then the Bill was considered on the Floor of the House in great detail and at great length. For good measure, the process started in a Select Committee. Complex and sensitive issues were therefore dealt with carefully, but there is concern that we are now rushing full steam ahead with this Bill and leaving ourselves with some rather tortured provisions that do not give proper explanation, clarity, openness and transparency. I look forward to the Minister’s full response to those points.

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

I thank my hon. Friend for his questions. The simple answer is that the Government’s approach is entirely consistent with the Civil Partnership Act 2004, in which many of these issues are addressed in precisely the same way. The approach under the 2004 Act was that couples should decide what they call themselves, whether that is a husband, wife, missus, the  other half or whatever. It is not for the Government to determine that, and these proposals does not change that position.

The terms set out in the Bill are reasonably specific. My hon. Friend referred to part 2 of schedule 3, which deals with the interpretation of future England and Wales legislation following the Bill’s enactment. It provides very specifically for gender-specific terms to have a gender-specific effect in the precisely the same way as now.

My hon. Friend asked how the provision affects parenthood. I have just received a helpful reminder that the Bill makes specific textual amendments to the 2008 Act. However, a person who is not a child’s biological parent is treated in law as the child’s parent only in certain circumstances: if a woman is in a civil partnership at the time of IVF in a clinic. Indeed, her civil partner can be treated as the child’s parent unless she did not consent to the treatment. That will also apply under the Bill to same-sex married couples.

The key point is that the Bill is entirely consistent with that taken in the Civil Partnerships Act, and that is the approach that the Government have taken.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate 2:30, 7 March 2013

These are complex issues, but I am not sure that there is total clarity about the application of sections 42 and 43 of the 2008 Act, for example in relation to the term “father.” I invite the Minister to write to me to ensure that we are on the same page on this, because that may be helpful as we proceed with the Bill’s passage.

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

I am happy to do that. I absolutely understand my hon. Friend’s point. In theory, at least, we could have a rather absurd situation in which a provision specifically about husbands and wives could technically provide without husbands and wives. In theory, that possibility is there, but in our trawl of the legislation thus far, we have not identified particular circumstances where this is going to be either necessary or appropriate. However, I absolutely take the point and will write to my hon. Friend.

Question put and agreed to.

Schedule 3 accordingly agreed to.