Marriage (Same Sex Couples) Bill

Public Bill Committee, 7 March 2013.

Hugh Robertson (Conservative, Faversham and Mid Kent)

On a point of order, Mr Streeter. For the convenience of the Committee I want to take the opportunity to clarify something. We had a long debate at the end of our last sitting on the interaction between the Lord Chancellor and any change in policy from the Church in Wales. I want to confirm that we will take that away and do everything we can to meet its requirements. If we are able to do that, we will table a substantive amendment on Report.

Kate Green (Labour, Stretford and Urmston)

Further to that point of order, Mr. Streeter. I welcome what the Minister said. I am grateful for his assurance, as I am sure the Church in Wales will be. On that basis, we would not want to press the amendment to a vote.

Gary Streeter (Conservative, South West Devon)

I am grateful to both colleagues.

Clause 9 - Conversion of civil partnership into marriage

David Burrowes (Conservative, Enfield, Southgate)

I beg to move amendment 49, in clause 9, page 9, line 5, at end insert—

‘(1A) Such a procedure must include a ceremony which reflects the requirements of Section 1(2).’.

Gary Streeter (Conservative, South West Devon)

With this it will be convenient to discuss amendment 50, in clause 9, page 9, line 8, at end insert—

‘(2A) Such a procedure must include a ceremony which reflects the requirements of Section 1(2).’.

David Burrowes (Conservative, Enfield, Southgate)

Welcome, Mr Streeter, to day four. There is a feeling of excitement and anticipation about today. Despite the pitch being worn in places, Team marriage is full of energy, enthusiasm and excitement about today’s proceedings. The amendments are in my name and those of my hon. Friends the Members for East Worthing and Shoreham and for Strangford.

As you know, Mr Streeter, I am a criminal defence solicitor and have often had to defend cases that I found objectionable. If I were asked to defend same-sex marriage, I would get to clause 9 and have to tell my clients—let us say, in this case, the Government—that it is a gap in their defence. The gap is the lack of a requirement for a public ceremony, which amendment 50 seeks to plug. As I understand it, the central part of the Government’s defence of the redefinition of marriage is that it is so important—the Secretary of State says that it is a “gold standard”—that it should be extended to same-sex couples. They want to equalise same-sex and opposite-sex marriage. As solicitor for the defence, I would look for evidence to support their case that draws same-sex relationships within the same substantive framework as marriage.

Clause 1, and most of the Bill, focuses on the marriage ceremony, and from reading the Bill one would assume that its point was to provide access to the marriage ceremony. One would also assume that the Government believe not just that marriage is important, but that the marriage ceremony is important. The ceremony makes the marriage legitimate, as the Minister told us at the Committee’s first sitting. On Second Reading, we heard evidence and genuinely moving accounts of how extending marriage to same-sex couples will allow public acceptance and endorsement of same-sex relationships.

The implication is that a ceremony with vows provides a formal stamp of approval. However, I do not see any ceremony in clause 9. Subsections (1) and (2) refer only to a conversion—let us call it an upgrade—for existing civil partners to be married. Subsection (1) says that that will be

“under a procedure established by regulations”.

That prospect of a paper upgrade does not sound romantic or publicly affirming. The Committee has heard representations that the cost of a marriage upgrade should be under £100. We have heard that marriage is a gold standard, and I am not sure what the price of gold is at the moment—

Tim Loughton (Conservative, East Worthing and Shoreham)

It is around $1,600.

David Burrowes (Conservative, Enfield, Southgate)

That is not £100. In some ways it could be referred to as fool’s gold. Perhaps regulations will specify, as they did with mobile phone upgrades, that if people have been in a civil partnership for so many years, they will not have to pay anything and will automatically receive an upgraded model.

To defend my client—the Government—from such an attack, I would have to do some background reading, which forms the basis of amendment 49. Is there a wish for civil partners to have a ceremony, which would make amendments 49 and 50 irrelevant?

I have spent some time away from the Committee reading the Standing Committee proceedings of the Civil Partnerships Bill in 2004. My right hon. Friend the Member for Rutland and Melton (Mr Duncan) and the hon. Member for Rhondda (Chris Bryant) were active with other hon. Members in pursuing a spoken declaration or verbal statement when two people commit to each other at the time of registration. My right hon. Friend the Member for Rutland and Melton said—this goes to the heart of my amendment—that

“the fundamental point is that if we are to ascribe to the moment a civil partnership is entered into the value that most of us in Committee feel attaches to the arrangement that is being made, the absence of a recognised and understood verbal commitment, in a form which in itself becomes increasingly recognised and valued, is a weakness and an omission in the Bill.”

The amendment is intended to deal with what might be seen as a weakness and an omission in this Bill.

The hon. Member for Rhondda intervened, as he is prone to do now and again, and said, “I wholeheartedly agree”. The hon. Gentleman, who had tabled some amendments about the particular type of spoken declaration, continued:

“All I am saying is that I believe that the process of them saying those things out loud and in front of witnesses is a significant part of the process of them making a declaration about their relationship and commitment. It would be more appropriate if witnesses were to hear people saying those two things rather than merely assenting to them”.

He also said that he hoped that

“the Government are trying to arrive at a situation where there is an acceptance that there will be some form of ceremony and that people will have some degree of flexibility.”

The hon. Gentleman was asked whether he agreed with the proposition about same-sex marriage, which is at the heart of this Bill, and he answered that

“I do not support that; I believe that marriage is an institution that is ordained of God and should be celebrated between a man and a woman. However, I also believe that two men or two women can have a relationship that in many ways mirrors that between a man and a woman but is not identical. Therefore, I believe that we should have in law separate institutions that reflect that reality. The truth is that just because two elements of the ceremonies may be similar, that does not necessarily mean that they are identical, nor that we believe that they should be. I do not think that one is more valuable than the other—they are simply different. Nevertheless, certain elements are needed, notably the declaration of assent and the declaration that people are not barred, by virtue of some legal impediment, from entering into the civil partnership.” —[Official Report, Standing Committee D, 21 October 2004; c. 68-70.]

I could not have put better myself the defence of the equal value, but with different institutions, of marriage and civil partnerships. There are four dissenters here, and there is still time for the hon. Gentleman to come over and join us in the dissenting ranks and to make the same statement, which I would uphold.

Looking back to 2004, there was a desire for a public ceremony that allowed an exchange of vows or a public declaration at the time of registration. Attempts were made to mirror the Marriage Act 1949, but the then Government recognised the legal problems of equating the form of words in the ceremony with those for marriage. My right hon. Friend the Member for Rutland and Melton has described to me the proper understanding of civil partnerships and marriage as two parallel lines—different, but equal lines. Perhaps that is similar to the view of the hon. Member for Rhondda in 2004.

In clause 9, the two lines of civil partnerships and marriage are now merging. However, the Government’s reluctance to place explicitly in the Bill a ceremony attached to the civil partnership conversion is hard to understand and hard for me to defend. We are left with clause 9, which will create a new bureaucratic route into marriage without any marriage ceremony and, without amendment 49, I will struggle to defend the Government, to whom I am always trying to be helpful. How can I set out the Government’s case that the Bill is all about equality for same-sex couples to be married like opposite-sex couples, when only same-sex couples can be civil partners and have this conversion—perhaps this paper upgrade—to marriage, so skipping the other formal requirements of the Marriage Act?

Under clause 9, a same-sex couple in a civil partnership who have not had the opportunity to make that exclusive, public “till death us do part” vow that is recognised by law, will not be formally required to make such a vow. They can marry simply by virtue of a bureaucratic process that is to be defined by the Registrar General or the Secretary of State. Moreover, their marriage will be regarded as having started when the civil partnership began, so it is effectively a retrospective conversion or upgrade. Amendments 49 and 50 provide the Government with a way forward by insisting that both means of converting a civil partnership to marriage involve a proper solemnisation, in accordance with paragraphs (a) to (d) of clause 1(2), which is referred to in the amendments.

Unless the Government bring same-sex marriage relationships into the same substantive framework as marriage through amendments 49 and 50, they must admit that they are changing it fundamentally, in effect creating two separate forms of relationship for which the Government want to use the will of Parliament to categorise as marriage, even though the two are quite different and will remain so. Broadening marriage into a relationship category that sprawls over different, and I believe weaker, levels and modes of commitment cannot do what the Government say that they are seeking to do, which is to strengthen the institution of marriage. It will serve to weaken it. Therefore, the Government should take seriously my attempt to help defend their case and support amendment 49.

Chris Bryant (Labour, Rhondda)

It is good to see you back in the Chair, Mr Streeter, and it is good to see that the hon. Gentleman keeps regular updates on every speech that I have ever made. If only he and his ilk had paid more attention when I first made that speech, we might have had a unanimous House of Commons, but he did not—I cannot remember if he was here at the time.

David Burrowes (Conservative, Enfield, Southgate)

Not quite.

Chris Bryant (Labour, Rhondda)

He was a twinkle in Parliament’s eye—[ Interruption. ] He was not a twinkle in the eye of my hon. Friend the Member for Liverpool, West Derby (Stephen Twigg).

I thought that we had got rid of gold standard, platinum standard and all of that stuff. We should also get rid of the concept of upgrade, because people live their lives in different ways, and I still hold to the view that many people will want to be in a civil partnership and not in a marriage, even if they are a same-sex couple who would like to be able to declare their commitment one to another. That is why I am in favour of keeping civil partnerships; I have never been in favour of getting rid of them. That option was considered at one point, and that is why it would be a good idea to have civil partnerships available for opposite-sex couples, as we debated last week.

Ceremony is an important part of the process for everyone at some stage. When I was a curate, I had to advise people about which ceremony they could or could not have. I never allowed the bride’s mother to come to the rehearsal because, as I would point out to her, she did not have a role: brides’ mothers always objected to everything. The only way that I was able to prevent it absolutely was when a mother of the bride had turned up and said: “I want it to be exactly the same as when I got married.” I asked: “In which case, may I ask if they used the word ‘fornication’ in the service?” She said: “No.” So I said: “In which case, it was an illegal marriage because it was not performed according to a rite and ceremony of the Church of England. Perhaps we should start all over again.”

Ceremony is important. On another occasion, a friend of mine called Heather Coombes wanted to get married to a man called Max Hill; I had known them both from my university days, and they are still happily married today. They were insisting on having a song from “Brigadoon”, called “The Heather on the Hill”, but I thought that that was inappropriate for a Church of England service, so we did not have it. I did, however, allow the couple who wanted to get married in 18th century riding outfits, because nothing is said anywhere about what people have to wear in order to be able to get married.

When Jared and I performed our civil partnership here, one of the difficulties was that there is not much material out there that can be used for a civil partnership. In Committee, we have had evidence from people talking about how they have been providing more liturgical material, but religious material cannot be used because it is not allowed, or was not then allowed, so we wrote our own vows. Jared insisted that the most important vow that I had to make was that I would never make him eat fish, while he in turn vowed that he would never make me watch “Sex in the City 2”, which I think applies to a whole category of movies and not only to that one. In keeping with many civil partnerships that I have been to, my former girlfriend sang a song and his former girlfriend was there as well. It was all very inclusive, and Cilla Black came—[Interruption.] It was not “Blind Date”, no; but she was wearing a nice hat, yes. It has to be said that she is not entirely a socialist, but quite a lot are not these days.

My point is that ceremony is important. I very much hope that organisations such as Stonewall, should they be present in the room, will start to develop more liturgical—perhaps that is not the right word—forms of ceremony. Some of the most imaginative and moving events I have been to, where two people have committed to each other, have been civil partnerships, and that is because they have had to invent the ceremony for themselves.

The clause is really in the Bill only because we set about creating civil partnerships, we cannot abolish them and we want to allow some people to convert to marriage. I suggest to the hon. Member for Enfield, Southgate that all those people have had extensive ceremonies already. The average cost of a wedding is £21,000. Those who have, almost certainly, been through and enjoyed events, who have contributed substantially to the British economy and who have done so very tastefully and gracefully should not be forced to go through yet another ceremony.

I grant there is a theoretical possibility that some people who enter into civil partnerships once same-sex marriage is allowed will subsequently want to convert, but I think the number will be relatively small. One cannot account for all humanity, but I think the number will be relatively small because most people will choose a or b. All the amendments would do is force people such as myself to spend yet more money on another ceremony. Now, I am quite happy to have another party; indeed, I will invite the hon. Gentleman, and I will feel very upset if he does not come, because that will be an act of social exclusion, and it will prove that his homophobia, which he has always denied—

David Burrowes (Conservative, Enfield, Southgate)

There are already invitations in the post—

Gary Streeter (Conservative, South West Devon)

Order.

Chris Bryant (Labour, Rhondda)

Anyway, my point is simply this: all the amendments would do is make people who have often already spent large amounts on declaring their commitment one to another spend yet more money.

I hope the Government will answer the point. I presume this is a stand part debate as well—Mr Streeter, you are not looking like I have been a good boy in saying that.

Gary Streeter (Conservative, South West Devon)

This is a debate on amendments.

Chris Bryant (Labour, Rhondda)

We have not had many stand part debates, but I will shut up.

Tim Loughton (Conservative, East Worthing and Shoreham)

That is a difficult act to follow. You have allowed a very wide-ranging debate on these narrow amendments, Mr Streeter. The hon. Member the Son of the Valleys has outed some of his friends and named some of his former clients who like “Brigadoon”, dress up in riding outfits and things like that, which may come back to haunt him at some stage.

I will not be nearly as indiscreet in my defence of the amendments, which are in my name and those of my hon. Friends. The amendments are perfectly sensible and in accordance with what the Government are trying to achieve in the Bill. One of the gaping holes in the Bill’s internal logic, which the Minister has told us about time and time again, is how it defines same-sex marriage in ways that differ from opposite-sex marriage. The argument is that the Bill is somehow all about equality, which I dispute.

As a result, the Catholic Bishops’ Conference, for example, asserts in its briefing that there is a distinct set of differences between opposite-sex and same-sex marriage in the Bill. In a way, the Bill legislates for something part-way between civil partnership and marriage, as it is conventionally known at the moment. For instance, under schedule 4,

“Only conduct between the respondent and a person of the opposite sex may constitute adultery”.

That reflects the framework of civil partnership law, which has no provision for adultery, unlike marriage law. We will come on to that in later clauses, and I am sure you are very much looking forward to that, Mr Streeter.

In clause 9, we have another way of defining same-sex marriage that makes it a different institution. The Secretary of State thinks marriage is the gold standard, so she would presumably say that the clause provides for a lesser institution. The provision allows someone to convert a civil partnership into a marriage, instead of actually going to the trouble of getting married, so civil partners can just get their civil partnership converted. Now I know that, as he has just repeated, the hon. Member for the Valleys was upset with the Secretary of State for describing marriage as the “gold standard”, but, clearly, it must be different from civil partnerships, even if he does not regard it as better. However, the provision erases that difference.

What we heard from my hon. Friend the Member for Enfield, Southgate was very interesting when he cited those halcyon days of 2004. I had not realised, and I had not seen the words that he used in Committee, that there was indeed a sunlit road that led all the way to the valleys, as an extension of the one that led beyond the A27 to New Forest West, which my right hon. Friend the Member for New Forest West has trodden very carefully over the past nine years, but he says that he has recanted his earlier misdemeanours. I do not know when that recanting happened for the hon. Member for Rhondda, or what changed between 2004 and 2013, which was one of my opening gambits in discussing the Bill.

Chris Bryant (Labour, Rhondda)

It happened on 27 March 2010, when I got married, or civilly partnered.

Tim Loughton (Conservative, East Worthing and Shoreham)

Well, that is a very interesting bit of detail, entirely born of self-interest and self-practice.

I said a moment ago that same-sex marriage, as the Bill defines it, is somewhere between marriage and civil partnership, but clause 9 means that the two are effectively exactly the same—they are interchangeable. However, the premise of the Bill is that they are different, so which is it? The hon. Member for Rhondda, in his quote and in what he said just now, goes on about difference.

True, civil partnerships give same-sex couples rights and responsibilities similar to those of people in a marriage. Civil partners are entitled to the same property rights, exemptions on inheritance tax, social security, pension benefits and so on as married couples. They also have the same ability to get parental responsibility for a partner’s children, as well as—

Gary Streeter (Conservative, South West Devon)

Order. I might be wrong, but I do not think that the hon. Gentleman has yet referred to the amendments expressly. I am minded to allow a clause stand part debate on clause 9, but we are heading towards having it now. If he can refer to the amendments, we would be most grateful.

Tim Loughton (Conservative, East Worthing and Shoreham)

Expressly, the amendments simply provide that conversion from a civil partnership to a marriage should require a ceremony that is like the marriage ceremony. It does not have to be as elaborate as a marriage ceremony—it certainly does not have to cost £21,000, and it certainly does not need to involve “Brigadoon” outfits or any other outfits that the hon. Member for Rhondda would care for his friends to dress up in, or not—but there should be some sort of ceremony.

Indeed, one can think of a list of other activities where a ceremony is at the heart of that process—that transition to a new status. For example, a citizenship ceremony, as part of people coming to the country or being in the country for a long time and wanting to acquire British citizenship, is established now. I have been to one in County hall in my county. There will be a ceremony, presided over perhaps by a lord lieutenant, and people acquire citizenship as a result of it and of giving various undertakings, and they usually sing the national anthem and things like that.

Baptism into a faith, or coming into a faith through other means, is usually conducted through some form of ceremony. It may be elaborate; it may not be nearly as elaborate as a font dunking, as happens in the Church of England and other Churches.

There are also initiation ceremonies. We have heard an awful lot about the time of the hon. Member for Rhondda as a curate and then a priest. I am sure that he is involved in various other clubs, activities and hobbies beyond the Church and politics, as I am sure many other hon. Members in the Committee are, which involve some form of initiation ceremony, some of them less distasteful than others.

However, a ceremony is at the heart of all of those activities. So this is not something completely out of the ordinary, and we have heard time and again about the importance of the ceremony that goes with marriage. It is entirely consistent that, whether one wants to call it a transition, upgrade, conversion or whatever, from a civil partnership into what will now become a full-blown same-sex marriage, it should, to mark the moment of that transition or upgrade, have some form of ceremony at its heart.

I see that the order-making power under clause 9(4)(c) allows, but does not require, the Registrar General to provide for making declarations in support of an application to convert. That sounds like an affidavit to me, but what about the spoken exchange of vows in the presence of witnesses, which is so much at the heart of what we all understand a wedding ceremony to be? An affidavit does not sound terribly romantic or meaningful. The requirements under clause 1 state:

“The marriage of a same-sex couple may only be solemnised in accordance with… the Marriage Act 1949”

and various other related provisions. Amendments 49 and 50 therefore suggest that this solemnisation ceremony should be included in a civil partnership conversion.

The Bill currently allows same-sex couples who are already in a civil partnership to convert their relationship into a marriage without going through the requirements laid down in clause 1. The idea of converting a civil partnership into a marriage without going through the requirements in clause 1 has been on the Government’s agenda for some time. In their response to the consultation in December, they said that they would allow civil partnerships to be converted into marriage, stating:

“We will enable couples to have a ceremony upon conversion should they wish to do so”.

The response to the consultation added:

“The ceremony would have no legal effect and would be similar to existing ceremonies allowing couples to renew their vows (and would therefore incur a separate cost). Accordingly a couple would be able to have such a ceremony on religious premises, if agreed with the religious organisation and any representatives of that organisation who would be involved in the ceremony.”

The conversion process will involve the couple applying to the relevant authority to obtain a conversion and a new marriage certificate and pay a small fee. The Government, therefore, stress that conversion would not be seen as the legal ending of one relationship and the starting of another. Any rights, responsibilities and benefits already accrued during the civil partnership will be kept and will continue from the date of the original civil partnership, not the date of conversion.

This whole line of thinking does not make sense. If civil partnerships really are a separate institution from marriage, then surely—contrary to what the Government say—there should be a definite legal ending of the civil partnership and a definite starting of the marriage. The Government do not appear to be going down the route, which I think that the hon. Member from the valleys supports, of scrapping civil partnerships replaced by new same-sex marriage. That is not what is being proposed here, and nor are the Government agreeing, at this stage, to introduce civil partnerships for opposite-sex couples.

The proposals as they stand are quite discriminatory. Why should same-sex couples already in a civil partnership not have to go through the same process, vows and commitments that everyone else has to go through, with or without their mothers-in-law? The proposals will mean that some gay couples can get married without having a proper wedding—it is almost like the old problem of people getting married in secret. My hon. Friend the Member for Enfield, Southgate referred to the original purpose of the law on marriage, and Hardwicke’s Clandestine Marriage Act 1753, which was the start of the journey that we are continuing today. The proposals flagrantly go against the notion that marriage is a public statement of commitment, and who really wants a marriage without any sort of ceremony?

We heard from the Quakers about the sort of marriage ceremony that they undertake now. People there are not part of but witnesses to the service, which is a declaration of the intention of the two people involved in the marriage, of their union with each other, affirmed only by God in that case. However, it is part of a ceremony.

Clause 9 undermines marriage in the full-blown terms that the Government and others want. The idea that a couple can become married by merely filling in a form and paying a fee dilutes the great significance of this institution, which we all want to preserve. Ensuring that all marriages have to include a ceremony, as the amendments suggest, reflecting requirements in clause 1, would mean that all married couples are treated the same and have to go through the same formalities. Surely there is a degree of equality there.

Amendments 49 and 50 seek to eliminate discrimination between one type of marriage and another. They impose equality between one marriage and another, and they give marriage and the marriage ceremony a far greater significance. If the Government really care about marriage and the importance of recognising that it is distinct and separate from civil partnerships, they should embrace the amendments. I very much look forward to the Minister’s response.

Jim Shannon (DUP, Strangford)

It is a pleasure, Mr Streeter, to have an opportunity to make some comments along with my two hon. Friends the Members for Enfield, Southgate and for East Worthing and Shoreham. I am pleased to speak in support of amendments 49 and 50. In my opinion and that of others in Committee and certainly outside it, the amendments are important. They highlight a significant problem with the Bill: the fact that it does not realise its stated objective of equal marriage.

The giving of vows—public declarations, recognised in law, through which both parties of a couple make to each other an exclusive “till death do us part” commitment—is central to the identity of marriage. The Marriage Act 1949, as amended by the Bill, will maintain a place for vows, but only for some marriages. Clause 9, in its wisdom, creates the vowless marriage by making provision for civil partners to convert their civil partnerships to marriages simply courtesy of some paperwork mandated by the Registrar General or Secretary of State.

In proposing the advent of the vowless marriage, clause 9 presents the Government with three major problems. First, in allowing some same-sex couples to marry without vows, the Government fail to bring same-sex relationships into the framework of marriage. That is our perception and belief. In putting that right, they face a choice. If they want to provide legal recognition for same-sex couples without vows, they can, but those cannot be categorised as marriage, because, without vows, they are different from marriage. There is a distinct difference. If they genuinely want to redefine marriage to draw in same-sex couples, they must change the Bill through, among other things, amendments 49 and 50, which will place same-sex-couple relationships in the same substantive framework as marriage, replete with vows.

Secondly, the proposal that some should be able to get married without vows, when everyone else can get married only with vows creates a discriminatory framework that is anything but equal to marriage. I believe that it is blatantly unequal marriage. Thirdly, if we redefine marriage so that, rather than drawing different and same-sex couples into substantively the same relationship, we do not achieve a redefinition of marriage, that merely amounts to the extension of its remit. We fundamentally undermine marriage by construing its definition over the traditional—I use this terminology—“gold standard” definition of commitment and a new, weaker definition of commitment, both of which will then have influence.

To the extent that a vowless marriage will still be marriage after the Government have made the changes, they inevitably state that vows are not actually central to marriage. It is a very subtle change that we are concerned about.

I find it shocking that a Prime Minister—with great respect to the Prime Minister—who has talked so much about the importance of commitment should propose undermining and removing one of the central expressions of commitment that marriage currently requires: the giving of vows. Clause 9 is bad news for commitment and bad news for marriage. That is why I strongly support amendments 49 and 50, which would have the effect of making vows central to the definition of marriage once again. They would make it clear that there should be no such thing as a vowless marriage. The practice of asking couples to make a public, exclusive “till death do us part” declaration, recognised in law, in order to be married is one that has served us well and should not be placed in jeopardy.

Hugh Robertson (Conservative, Faversham and Mid Kent)

Welcome to the Chair this morning, Mr Streeter. As others have said, the amendments seek to require that couples who apply to have their civil partnership converted to marriage under clause 9 must, as part of that process, do that conversion in the way that a same-sex marriage would be treated under clause 1. However, that overlooks the key point that the hon. Member for Rhondda has made, that a couple in a civil partnership will have already gone through a civil partnership registration, demonstrating a level of commitment not unlike—different, but not unlike—that required for a marriage ceremony. I therefore do not believe that it would be right for the Registrar General or the Secretary of State to compel such couples to go through a second ceremony with the costs and potential inconvenience that that might entail when their commitment to each other is clearly not in doubt.

Freedom of choice must also be considered. I do not think it right that couples in a civil partnership do not have a choice about whether or how to celebrate a conversion to marriage. It will simply involve a straightforward administrative process for those who prefer that, while those who want a more public ceremony will be able to hold that at a place of their choosing. There should be no compulsion on couples to have a formal ceremony, or indeed on any organisation to conduct one, although the suggestion about the lack of liturgical back-up is a good one.

I hope that hon. Members will agree that giving couples the choice to have a ceremony following a conversion, but without compulsion for those who prefer a purely administrative process, strikes the right balance. In short, it is for them to decide. I therefore ask my hon. Friend the Member for Enfield, Southgate to withdraw the amendment.

David Burrowes (Conservative, Enfield, Southgate)

I started the day in a bright, positive mood, but I am saddened by the responses of the Minister and the hon. Member for Rhondda. I was encouraged when I read what hon. Gentleman said in 2004, and I was looking forward to hearing from him today. Back then he was concerned about the form of words and the declaration required in the ceremony. He showed real concern, and he was probing and scrutinising the legislation, but now he effectively says that that does not really matter.

The Minister talks about freedom of choice, but that was not the case when he opened the batting on clause 1, because that states:

“The marriage of a same sex couple may only be solemnized”.

Clause 1 does not include the word “compulsion”—it states that marriage “may only be solemnized”—but it sets out the basic point, which I would have thought was a given, that marriage involves a ceremony that is solemnised in accordance with paragraphs (a) to (d) of subsection (2). Now, however, the Minister is telling us that this should be a matter of free choice, so I look forward to him being true to his aim. Perhaps he will table an amendment on Report to say that all couples should have a free choice by having the ability just to go through an administrative process, not a ceremony. If we are to live and let live with the Bill, why not let heterosexual and same-sex couples simply have an administrative process and the ability to decide for themselves whether they want to solemnise their marriage with vows? We now have a genderless marriage proposal, so why not a vowless marriage proposal? Let us have a free choice; let us have the liberty that the Minister wants to imbue all of us with. I look forward to hearing what the Minister comes back with on Report.

I am saddened because I believe that this has been insufficiently considered. There was a call for ceremonies during the passage of the Civil Partnership Act 2004, but there is no ceremony or declaration when civil partnerships are registered. The reality is that there is a recognisable difference between marriages and civil partnerships, but the Government want to gloss over that difference and to equalise them, albeit in a very unequal way.

The hon. Member for Rhondda talked about cost, as if that is the main issue, but it plainly is not. Obviously, weddings are costly, and we heard that the average cost is £21,000, but what about the value of the ceremony and the vows? Plainly, we are talking about not just the wedding day—all the bells and whistles—but the marriage ceremony itself. The amendment is about the value of the ceremony to the public witnesses, friends, family, and primarily, of course, the couple themselves.

Chris Bryant (Labour, Rhondda)

Of course I think that value is more important than cost, but may I ask the hon. Gentleman whether it is true that he has been campaigning for several years for a tax benefit for married couples?

David Burrowes (Conservative, Enfield, Southgate)

That is indeed the case. Of course there is a financial element to marriage, but we are debating a marriage Bill, not a Finance Bill. I look forward to the forthcoming Budget and Finance Bill so that we can have that debate, but we are talking about a much wider issue: the Government, supported by the Opposition, are saying that the marriage ceremony is unimportant and not necessary.

We should go beyond the issue of costs and convenience. We are talking about conversion. The rebuttal to the amendment is that it is not necessary because it would be inconvenient and there would be a cost issue. Surely we need to go deeper than that. The amendment would give marriage the proper value that it deserves.

Hugh Robertson (Conservative, Faversham and Mid Kent)

The Government are emphatically not saying what my hon. Friend suggests. We are simply recognising that there is an issue relating to people who wish to convert civil partnerships that they have already registered. We think that they should be allowed to choose for themselves how they do that—it is as simple as that.

David Burrowes (Conservative, Enfield, Southgate)

But that is without a ceremony, the importance of which is recognised in clause 1. There is understanding about that. As I set out earlier, the hon. Member for Rhondda said that there should be “separate institutions” to reflect reality. That was a recognition of the separate institutions of marriage and civil partnership. An important part of marriage is the ceremony, but the Government want to equalise it. There was initially a desire for ceremony in civil partnerships, but we must recognise that marriage properly has a form of ceremony involving that important declaration of exclusivity and permanence.

I will not let go of the amendment. It is, of course, important that we accept that the wedding day and the marriage is a wonderful, joyful celebration—a party at which people can dress up in different guises, or do whatever they want to do. However, there is also an important, solemn moment—a moment of solemnisation—during a marriage when important vows are made, and we should not ignore them.

Chris Bryant (Labour, Rhondda)

Will the hon. Gentleman give way?

David Burrowes (Conservative, Enfield, Southgate)

I want to make progress.

It is not just the Hollywood moment of saying, “I do,” because people are making important promises to each other and that matters greatly. The traditional wording is:

“for richer for poorer, in sickness and in health…till death us do part”.

Those important promises made during the ceremony and declaration matter but, effectively, by ignoring and dismissing the amendment, the Government are saying that they do not matter. They are saying that marriage has to be reduced and downgraded. They are effectively saying that the ceremony is to be abolished for some couples. They are saying that the ceremony is meaningless. I thought that they had accepted that they would value the ceremony in the Bill, but they are now saying no, and we are effectively getting genderless and vowless marriage which, as far as I and the dissenters of Team marriage are concerned, is not acceptable. I will press the amendment to a Division.

Chris Bryant (Labour, Rhondda)

I want to raise several issues. First, I alert the hon. Member the Son of the Archdeacon that I did not make only one vow; there were other vows, which are much more serious, about mutual sustenance and all the rest of it.

I want to correct hon. Members who referred to what they presume to be the vows made under the 1949 Act. There is none of the stuff that the hon. Member for Enfield, Southgate mentioned, which is said just in Church of England services and not allowed in a civil register office, and therefore not allowed to be said, according to his judgment, by same-sex partners. Everything he said was complete and utter nonsense, and he was completely contradicting himself. The 1949 Act has no requirement for people to make a vow that they will live together for ever. Incidentally, those getting married in a register office never say, “I do”, but, simply, as the Act provides—[Interruption.] The hon. Gentleman should calm down. I am sure he will want to speak again, as he often does.

As other Members have mentioned, the vows are extremely simple. All that the person has to say is:

“I, AB, do take thee, CD, to be my lawful wedded wife [or husband]”.

That is the sum total of what is allowed for. The clause, which provides for those converting from a civil partnership to marriage being allowed to create whatever ceremony they think fit, is a very generous provision, and I congratulate the Government on how they have drafted it.

One question I want to ask is about cost. In evidence to the Committee, Stonewall gave us a long list of different licences, although I am not sure that we should compare a fishing licence to a marriage licence. None the less, I cannot see that the administrative duties will be onerous or that there is a great need for a significant cost. People have talked of £100 or £150, but I see no reason why the cost cannot be about the same as for getting a copy of a marriage certificate. I hope the Minister will reply on that point.

David Burrowes (Conservative, Enfield, Southgate)

I do not wish to repeat the earlier debate, but it is interesting that the hon. Gentleman referred to the words, “I do”. That is Hollywood, but the focus—whether it is indeed Hollywood, or whether we are thinking about the concerns of the couple or of family and friends—is to be there to witness that public declaration, through those very simple words or in civil ceremony, and they matter greatly. Unfortunately, my amendment was not accepted and the Government have conceded that that is not necessary. I greatly regret that.

Hugh Robertson (Conservative, Faversham and Mid Kent)

Let me start by answering the question from the hon. Member for Rhondda. The costs for converting a civil partnership will be on the basis of cost recovery. The current best estimate is about £100.

Chris Bryant (Labour, Rhondda)

On cost recovery, why does it cost £20 to issue a copy of a marriage certificate, which requires consulting all sorts of other documents, ensuring that the right details are copied and that the right person is providing the certificate, whereas the cost of conversion is about £100?

Hugh Robertson (Conservative, Faversham and Mid Kent)

I can do no better than read from my briefing and simply say that the cost of a conversion is therefore comparable to the cost of getting married in a civil ceremony, which is £119. It will reflect the processes that are likely to be needed to identify the existing civil partnership registration, to prevent identify fraud and to issue a new marriage certificate, so there we go.

We have had a reasonably extensive debate over the past 50 minutes, so there is no need to detain the Committee further as there are other things to do.

Gary Streeter (Conservative, South West Devon)

On the Bill?

Hugh Robertson (Conservative, Faversham and Mid Kent)

On the Bill, Mr Streeter, and other things.

Clause 10 - Extra-territorial matters

Kate Green (Labour, Stretford and Urmston)

I am happy to be guided by you, Mr Streeter, as to whether to raise such issues now or when we debate the amendments to schedule 2, although I note that they deal with the position in Northern Ireland. I want to raise issues in relation to Scotland.

I want to ask the Minister about the situation whereby the legislation in England had been passed, but the Scottish Parliament had not yet enacted for same-sex marriages in Scotland. We must therefore envisage at least a short delay whereby same-sex marriages are valid under the law of England and Wales, but not under that of Scotland. As members of the Committee will discover as we discuss matters today, and probably on Tuesday, I am now on my favourite territory—money—and I want, first, to ask about pensions.

If there were an interval between the Bill receiving Royal Assent in England and Wales and same-sex marriages becoming lawful in Scotland, for a woman married under the Bill and in receipt of a category B state pension whose husband was then recognised as a woman by a gender recognition certificate, the pension would continue. However, if the woman lived in Scotland, pending equivalent legislation to allow for same-sex marriages there, her status and access to that pension would not be covered. I appreciate that it is difficult for the Minister to comment on the Scottish Parliament’s intentions on legislating for same-sex marriage in Scotland, but I am keen to hear whether such discussions are taking place between the UK Government and the Scottish Government and how they might be going.

More speculatively, I want to ask about the opposite situation. You might rule me out of order, Mr Streeter, but I hope that you will allow me to put some questions on record. Let us suppose that our Bill fails to receive Royal Assent, but that the Scottish Parliament passes measures allowing for same-sex civil marriages in Scotland, which we expect will happen. We have debated armed forces chapels, and I would like to know whether a Scottish same-sex couple could marry in a British consulate or at a UK armed forces base.

Would a gay person usually resident in Scotland, but serving overseas as a diplomat or member of the armed forces, be considered married while serving? Would additional provisions be required under UK law to ensure that pension survivor benefits were paid to same-sex married couples in Scotland?

I appreciate that we are in the realms of speculation, and I would understand if the Minister considered the position so unclear that he might want to discuss it with me afterwards, but such worries undoubtedly show that there might be a hiatus before we have absolute uniformity across Scotland and England. I would be grateful for his assurance that such matters are being considered.

Jim Shannon (DUP, Strangford)

I rise to speak to amendments 41, 46 to 48 and 45.

Gary Streeter (Conservative, South West Devon)

Order. We are on clause 10 stand part. We will come to the hon. Gentleman’s amendments very soon. The Minister may or may not wish to respond to the questions asked by the hon. Member for Stretford and Urmston.

Hugh Robertson (Conservative, Faversham and Mid Kent)

I did say that we had things to do later. I was not envisaging that that was necessarily one of them, but there we go.

The clause is in the Bill to ensure that marriage of a same-sex couple overseas or in another part of the United Kingdom will be recognised as marriage under the laws of England and Wales. Indeed, we have had a clear commitment from the Government in Scotland that they intend to legislate for marriage of same-sex couples. Of course, they cannot legislate for recognition of those marriages in England and Wales, so that is what the clause will do. The issues on the consular cover and the bases are covered to some extent in clause 13. Now that the hon. Lady has helpfully given us notice of her concerns, we will ensure that we are ready to answer them as best we can at the appropriate moment.

Given that my knowledge is not fully extensive, my reading of the pension situation is exactly the same as the hon. Lady outlined. Bearing in mind that I am not a pensions Minister and that we refer such matters to the Department for Work and Pensions, I think that, rather than my giving someone a steer, the best thing would be to tie the matter down, because it is important to people’s livelihoods. If the hon. Lady is happy for me to do so, I shall write to her. With that assurance, I commend the clause to the Committee.

Schedule 2 - Extra-territorial matters

Jim Shannon (DUP, Strangford)

I beg to move amendment 41, in schedule 2, page 21, line 29, leave out paragraph 2.

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).

Jim Shannon (DUP, Strangford)

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.

Hugh Robertson (Conservative, Faversham and Mid Kent)

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.

Jim Shannon (DUP, Strangford)

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?

Hugh Robertson (Conservative, Faversham and Mid Kent)

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.

Tim Loughton (Conservative, East Worthing and Shoreham)

No man’s, or no woman’s, land?

Hugh Robertson (Conservative, Faversham and Mid Kent)

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.

Jim Shannon (DUP, Strangford)

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.

Clause 11 - Effect of extension of marriage

David Burrowes (Conservative, Enfield, Southgate)

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

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.’.

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.

Hugh Robertson (Conservative, Faversham and Mid Kent)

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.

David Burrowes (Conservative, Enfield, Southgate)

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?

Hugh Robertson (Conservative, Faversham and Mid Kent)

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.

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.

Hugh Robertson (Conservative, Faversham and Mid Kent)

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.

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.

Schedule 3 - Interpretation of legislation

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.

Hugh Robertson (Conservative, Faversham and Mid Kent)

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.

David Burrowes (Conservative, Enfield, Southgate)

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.

Hugh Robertson (Conservative, Faversham and Mid Kent)

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.

Schedule 4 - Effect of extension of marriage: further provision

David Burrowes (Conservative, Enfield, Southgate)

I beg to move amendment 42, in schedule 4, page 26, line 9, leave out paragraphs 3 and 4.

I am going to try to be helpful. I do not want to bowl any googlies or chinamen to the Minister, particularly as we are long into day four when, as he will know, the pitch becomes very difficult—he would not like to be out there for too long.

“The Bill proceeds on the basis that marriage should be ‘equal’ and that gender is irrelevant, yet inevitably has to recognise that this logic breaks down e.g. in relation to non-consummation and adultery, both of which are to remain grounds for the ending of marriages between opposite sex couples. This illustrates the fallacy of seeking to equate equality with uniformity and to redefine as identical those things that are intrinsically and objectively distinctive.”

Those are not my words. They could have been, but they were taken directly from the Church of England’s briefing for the Committee. The Church of England is not happy with schedule 4 and neither am I nor many millions out there.

The Secretary of State responded to a question from the right hon. Member for Exeter about whether she wanted to pursue reform of the whole issue of adultery and consummation. She replied:

“We looked very closely at the relevance of those two concepts to extending marriage, but I did not really feel that it was appropriate to get into reforming those particular concepts as part of the scope of the Bill.”––[Official Report, Marriage (Same Sex Couples) Public Bill Committee, 12 February 2013; c. 6, Q12.]

I have tabled amendment 42 because I just do not think that that answer is good enough.

I appreciate that the Minister has distinguished his own view from the Secretary of State’s reference to marriage as a “gold standard,” and now the amendment gives him the opportunity to distinguish himself by defending the relevant purpose and concept of adultery and consummation in 2013. I look forward to his robust defence—I know that he has it, and that he will put his foot forward solidly without any gaps to be shown. In his defence of adultery and consummation as a relevant concept, I look forward to him referring to the correspondence with the hon. Member for Rhondda, who was able to confirm that 15% of divorces cite the importantly objective ground of adultery. That is not an insignificant red herring, as some would like to tell us—indeed, some who gave evidence sought to suggest that.

Without amendment 42, the Government are actually taking their defence away. They are lifting their bat to the balls bowled perhaps by the right hon. Member for Exeter or others, or campaign groups. They question the modern relevance of adultery and consummation. Is this all, as Stonewall told us, simply a heterosexual sex obsession? Well, if the Government reject amendment 42, maybe they agree with Stonewall; maybe they are putting up the white flag and saying that as far as marriage is concerned, the sexual fidelity and union aspect is now not quite so relevant. Amendment 42 would allow the Government to extend the notion of equality—this is where the Minister may think I am being helpful—by saying that the provisions are universally applicable to all married couples, whatever their sexuality, in common law. The amendment would do what I understand the Government intend the Bill to do and what they intended to happen after their first stab at redefining marriage, when the Bill was in consultation. In that first attempt, they wanted to leave the whole issue. They did not want to deal with it, discuss it or have a Bill Committee go through it. They wanted to leave it to the courts to decide, and for Parliament to not have anything to do with this tricky subject. They wanted to deal with the problems further down the track, and let the judges decide. I understand that there was a bit of reaction from the judges, the Law Officers and others about that proposal. Nevertheless, that was the situation.

I am trying to help the Minister, but there is only so much I can do to help the Government out of this particularly sticky wicket. The Government have opened up the box of marriage. They are trying to fit same-sex marriage into the frame of heterosexual marriage, but they have to admit that the schedule fails to do that. If marriage is to mean anything to anyone—or, to put it another way, if its meaning is to be reduced to its lowest common denominator, to an emotion, rather than a conjugal lifelong bond—how can the Government justify the inequality that adultery and consummation will apply to opposite-sex couples and not to same-sex couples? Somewhere down the track, we might come to the conclusion that adultery and consummation are outdated concepts that should be abolished, that they should not be recognised by the state, but just be left to the Church and other religions to get obsessed over. Maybe that is where we are heading, but is that what the Government want? Unless they properly apply themselves to it, that might well be the end result.

In my generous spirit, the amendment could be supported by the majority of Committee members opposed to my view, who can look to the courts and say that we should leave it to case law. The courts will whittle away the concepts of adultery and consummation. It allows notionally for the Government to say that the Bill is about equality, and allows the courts to decide. I do not think that is a good position to be in. However, I am left in that position with the amendment, because the Government’s position is to redefine marriage. If the Committee wants to recognise and support equality and the equal applicability of issues that affect all those who are married, I look forward to it supporting the amendment, which not only supports equality, but also retains the relevance of sexual union and fidelity in marriage.

Tim Loughton (Conservative, East Worthing and Shoreham)

I rise to support the amendment, which is in my name and those of my hon. Friends. The opposition of those of us who take the view that marriage should remain a distinctive category for different-sex relationships has been significantly compounded by the presence of some double standards at the heart of the Bill. Those double standards, which have a number of unfortunate implications, as my hon. Friend the Member for Enfield, Southgate said, are expressed nowhere more clearly than in schedule 4. The amendment would go a good way to addressing and correcting that. The Government have understandably made much about how they are creating equal marriage, as they term it. The schedule shows even more clearly than clause 9 that the Bill is failing in that task.

Jane Ellison (Conservative, Battersea)

Before the hon. Gentleman develops his point, has he ever put it to the Church of England that there is an existing double standard? As we established during evidence, somebody in a heterosexual marriage who has sex with somebody of the same sex does not currently commit adultery.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am aware of countless contradictions in the Church of England and various other Churches as well. Just about any aspect of the Bill that we have discussed could probably be held up to the same charge. Let me develop my argument in support of the amendment, and my hon. Friend can come back to me. If the Government want to bring same-sex relationships within the same substantive framework as different-sex relationships so that the category of marriage encompasses both, their project would have a certain logic and would meet their given equal marriage objectives. However, schedule 4 suggests that a same-sex couple relationship should be described as married even while not submitting to the substantive definition of marriage in relation to consummation and adultery.

For centuries, adultery has been recognised as a ground for divorce. It was given recognition in statute under section 1 of the Matrimonial Causes Act 1973, and it is cited as a ground for divorce in around 15% of cases. Such recognition of adultery reflects the importance of the values of faithfulness and exclusivity that have been, and I hope will continue to be, so central to the understanding of marriage. I am sure that Ministers want them to be so as well. Paragraph 3 of schedule 4 provides that only adultery committed in a heterosexual marriage counts as grounds for divorce. According to the Bill, someone who is sexually unfaithful to their same-sex spouse with another person of the same sex has not committed adultery, and that is what the amendment would reverse.

Another fundamental feature of the understanding of marriage for hundreds of years has been the necessity of sexual union for the validity of a marriage, and that is also expressed under statute in section 12 of the 1973 Act. In schedule 4 to the Bill, however, the Government seem to be saying that sexual union is necessary only for opposite-sex married couples, and amendment 42 would reverse that. If the necessity of sexual union is no longer perceived as central to the understanding of marriage, surely marriage is severely reduced to simply a bond of companionship and attachment. Where is the romantic aspect of the marriage bond, with or without the ceremony, “Brigadoon” and all that we discussed this morning? Paragraphs 3 and 4 of schedule 4 plainly fail to bring about equality between opposite-sex marriage and same-sex marriage couples. That is a major problem, especially considering the fact that equality was such a driving motive behind the Government’s plans to redefine marriage. Why should a same-sex couple who want to get married not be subject to the same obligations and rules as an opposite-sex couple who want to get married? One could logically make the case for legal recognition of same-sex relationships, but if the standards of commitment required are different from those required in a marriage, it would be completely wrong to categorise such relationships as marriage.

As someone who voted for civil partnerships, I find it interesting that just as clause 9 paves the way for vow-less marriages for same-sex couples, as is the case with civil partnerships, schedule 4 paves the way for marriages that cannot be annulled on the grounds of non-consummation and that cannot be dissolved on the grounds of adultery. Again, that is the case with civil partnerships. If the Government are serious about equal marriage, they cannot simply take civil partnerships and drop them into marriage. That does not amount to drawing same-sex relationships into the same framework as marriage; it simply makes the case for civil partnerships.

The Government have got themselves into a bit of a pickle because they have not observed simple category logic, which must observe the following principles. First, if two arrangements that are substantially the same are subjected to a difference of treatment, that amounts to discrimination. Secondly, if two arrangements that are different are treated differently, that does not amount to discrimination. Thirdly, if two arrangements that are different are treated as the same, the effect is to be discriminatory by giving one arrangement the same identity as the other and suggesting that it is the same when it is not. Simples, Mr Streeter; I am sure you agree.

Amendment 42 makes the point that the Government need to make their mind up. They have to come down on one side of the fence or the other. Do they want to provide a legal framework for recognising same-sex partnerships that does not draw such partnerships into the same substantive framework as marriage, that makes no requirements in relation to adultery or consummation and that does not insist on vows? Or do the Government want to draw same-sex relationships into the same substantive framework as marriage, with all that that means in terms of adultery, consummation and vows? They have to choose.

If the Government want to create a legal framework for recognising same-sex partnerships that does not draw them into the same substantive framework as marriage but makes no requirements in relation to adultery and consummation and does not insist on vows, the Bill is not necessary because we already have such provision in the form of civil partnerships. If, however, the Government want to draw same-sex relationships into the same substantive framework as marriage so that they can be classed as marriage, the Bill does not rise to that challenge. It could, however, if we passed amendment 42.

The Government’s position is rather confused because they have implied that they want to draw same-sex relationships within the same framework as marriage, but the Bill does no such thing. On that basis, the result is a framework that inevitably invites a distinction between real marriage and pseudo marriage, not because of the sexes of the two people concerned but because of a failure to fulfil the same definition of commitment as that which exists for marriage now—[Interruption.] The Whip is getting rather exercised by consummation, I hear. Rather than creating a framework that invites this distinction, how much better it would be simply to accept that the mode of commitment between the two forms of relationship is different and, rather than falsely categorising them as one, which would inevitably result in the observation that one of them does not fulfil that definition, we should simply affirm both sets of relationships in their own terms as a real marriage and a real civil partnership.

Of particular importance, by removing the consummation and adultery provisions—amendment 42 would reverse that—the Bill not only initiates discriminatory, unequal marriage practice, demanding less of one category of relationship yet placing it with a category that requires more, but it also unquestionably undermines marriage. Just as in stating that vows are not necessary for marriage, clause 9 makes it plain that vows, one of the ultimate expressions of commitment, are not central to the identity of marriage. Schedule 4 makes it plain that neither adultery nor consummation need play a role in redefining marriage and it is quite extraordinary that the Government, who have talked so much about the importance of commitment and about supporting marriage—the Prime Minister, quite rightly, has said that he is a huge fan of marriage—should have introduced legislation that suggests that vows, consummation and adultery as grounds for divorce are not necessary to the definition of marriage, since that cannot but have the effect of undermining the current definition of commitment, which is at the heart of marriage as we know it.

The place of adultery in the principles governing marriage is particularly important: it is a ground for divorce because adultery—the breaking of faithfulness—is incompatible with the definition of marriage, which has faithfulness at its heart. The place of adultery as a ground for divorce, therefore, is as a guarantor of faithfulness and commitment in the definition of marriage in the sense that its absence is recognised as a negation of marriage. One cannot end the practice of stating that adultery is a ground for divorce in marriage per se without implying that faithfulness and commitment are less important to marriage; by taking that ground for divorce away, one has to imply that.

In seeking fully to understand the implications of removing adultery as a ground for divorce in some marriages, it is interesting to note that some lawyers have suggested that if marriage is redefined in this way, replete with schedule 4 unamended by amendment 42, in time adultery would, in practice, cease to be used as a ground for divorce for different-sex as well as same-sex marriages. The implications of that are profound and deeply ironic.

When my right hon. Friend the Member for Chingford and Woodford Green (Mr Duncan Smith) was Leader of the Opposition, he set up the Social Justice Policy Group, which produced two important reports: “Breakdown Britain” and “Breakthrough Britain”. Those reports, which defined the broken Britain phenomenon, were distinctive for giving rise to a series of policy proposals that sought to renew the family through supporting commitment and through supporting marriage. Three years into this Government, however, rather than introduce robust pro-marriage policies such as transferable allowances for married couples, which we alluded to this morning, the only thing the Government have done is to introduce a deeply muddled Bill that cannot but undermine marriage, not just as it is manifest for same-sex couples, but for everyone.

I am not at all sure how we have managed to lose the plot so badly. My amendment 42, importantly, provides a means for ending the category muddle in the Bill.

Stephen Gilbert (Liberal Democrat, St Austell and Newquay)

I am trying to follow my hon. Friend’s logic. Is he honestly suggesting, with a straight face, that opposite-sex couples may not be able to end their marriage because of one partner being unfaithful unless the Bill is amended? Surely, if he hears that in those terms, he will recognise that that is ridiculous.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am grateful that my hon. Friend has been following my logic; I am not entirely sure that I was able to follow his. I was trying to say, if the grounds for the ending of one type of marriage are different from the grounds for the ending of another type of marriage—that type of marriage which we are now trying to legitimise in this Bill—where is the equality in that?

We have had previous debates about the basis of the rules by which one enters into a relationship, a same-sex marriage or an opposite-sex marriage. We need to get this absolutely clear. Whether we agree or disagree with it in principle, certainly we must make sure that the legislation is robust enough not to be subject to all sorts of challenges and interpretation in the courts. Just as this is important regarding the rules for entering into a marriage, so surely it must be as important to ensure that we have differentiated and distinctly identified what constitutes the ending of that marriage as well, and the grounds for going to court to get that marriage ended. In just the same way, this morning we tried to identify the procedure for converting a civil partnership into a new same-sex marriage.

In conclusion, the amendment helpfully provides a means of ending the category muddle in this Bill, and of bringing same-sex relationships into the same frame of reference as different-sex relationships. In that respect I think it is helpful for the Bill; it also promotes equality, which is at the heart of the Government’s case for the Bill. I hope to have a favourable response to it from the Minister.

Hugh Robertson (Conservative, Faversham and Mid Kent)

As hon. Members have said, the amendment would remove paragraph 3 of schedule 4 to the Bill, which maintains the current definition of adultery for both opposite-sex and same-sex married couples, and paragraph 4 of schedule 4, which provides that non-consummation will not be a reason for the marriage of a same-sex couple to be void. The effect of these amendments would of course be that issues about adultery and non-consummation in respect of divorce and annulment of the marriages of same-sex couples would have to be determined over time by case law. As part of the consultation process the Government carefully considered whether allowing case law to develop these concepts as they relate to sexual activity between people of the same sex might be a potential means of applying them to same-sex marriage. However, we concluded, and I think the reasons for that are obvious, that this would not give couples adequate clarity and could lead to difficulties for people seeking to apply for divorce or annulment.

Let me deal first with the issue of adultery, which is of course a factor in divorce. The current definition of adultery has been developed in case law, and is detailed and explicit about the nature of sexual relations between members of the opposite sex that constitute adultery. The definition of adultery does not cover sexual relations between members of the same sex, or the precise acts which would constitute adultery between a man and another man, or a woman and another woman. That would of course need to be determined over time by the courts.

That would mean significant uncertainty for couples. It could lead to divorce applications failing, and adultery would be difficult to prove. It would also open up uncertainty for opposite-sex married couples, for whom sexual activity with a person of the same sex is not currently adultery. To make that absolutely clear, currently if one party in a heterosexual marriage has sexual relations with somebody of the same sex, that is of course not adultery. So this is not a new absurdity, if indeed the hon. Gentleman thinks it is. Of course, it was specifically not addressed at the time of the Civil Partnership Bill, which the hon. Gentleman has told us with much pride that he voted for. [Interruption.] Paragraph 3 of schedule 4 makes it clear that sexual activity with a member of the opposite sex will constitute adultery for all married couples. Adultery will therefore continue to mean the same for both same-sex and opposite-sex married couples, as well as sexual relations with a person of the same sex.

Turning now to consummation, non-consummation makes the marriage of an opposite-sex couple voidable. Consummation is a concept that historically concerns the possibility of procreation, and therefore it would not make a great deal of sense to extend it to same-sex couples. In addition, the same sort of difficulties would apply to proving non-consummation of a same-sex marriage, whether by wilful refusal to consummate the marriage or because of incapacity, as apply to defining adultery between people of the same sex. Ensuring that couples understand their legal position is important, and it would be difficult to define the acts that constitute consummation of the marriage of a same-sex couple with the certainty needed for legal proceedings.

My hon. Friend the Member for East Worthing and Shoreham asked why sexual union is not necessary for same-sex marriage but is necessary for opposite-sex marriage. Consummation is not in fact necessary for any marriage; it is simply that non-consummation makes a marriage voidable on application by one of the parties. Adultery is a central ground for divorce. He is absolutely right about the figures, which are in the ballpark area, but there is an opportunity to cite unreasonable behaviour as grounds for divorce. The different treatment of those things does not mean that, as my hon. Friend the Member for Enfield, Southgate suggests, it is not marriage. There are certain circumstances in which, necessarily, same-sex and opposite-sex marriages are subject to different treatment. That is the nature of the beast, but it does not mean, in my view, that same-sex couples should not be married.

Taken together, paragraphs 3 and 4 of schedule 4 provide clarity on the facts of divorce if a person’s spouse is unfaithful and the marriage has broken down, and on when a marriage may be annulled. I therefore ask my hon. Friend to withdraw his amendment.

David Burrowes (Conservative, Enfield, Southgate)

I am pleased that we have had this debate, which not everyone necessarily wanted. Schedules often reveal the most controversial aspects of a Bill, which is the case here.

What we have heard from the Minister is helpful. We have heard his thesis on the laws and concepts relating to adultery and consummation, both of which are linked to the framework and historical understanding of procreation. That explanation might not convince my hon. Friend the Member for Battersea, but the difference comes from the structural framework of procreation.

The Minister’s thesis did not provide as positive a defence as I was looking forward to in relation to adultery and consummation, but at least the debate has addressed what the schedule has exposed, which is the flawed notion of equal marriage as a concept—the amendment inadequately sought to deal with that. The schedule plainly shows that same-sex marriage is not equal. The amendment exposes what happens when marriage is redefined. Yes, the Minister can seek to change how people access marriage, but he must also change how people exit marriage and, in doing so, change and redefine the nature and purpose of marriage.

The position we are in now is where the Government want us to be, which is basically to say to same-sex couples, “Adultery is not relevant to you. It does not matter.” I do not believe the Government or the Minister would dream of saying that to heterosexual couples. They would not say that adultery is no longer specifically recognised in law. They would not say that time has moved on. They would not suggest that a husband or wife having an affair with someone else does not, in and of itself, violate the ties of marriage by saying, “Well, if you can prove that adultery constitutes unreasonable behaviour, you can get a divorce; if the judge disagrees with your assessment, you cannot.” I believe we are heading down that track, and I am concerned, but I do not believe that even the amendment would compensate for the Bill’s flaws. Nevertheless, this debate has been useful of sorts, and I beg to ask leave to withdraw the amendment.

Kate Green (Labour, Stretford and Urmston)

I beg to move amendment 56, page 33, line 40, in schedule 4, leave out paragraph 15 and insert—

‘15 (1) Schedule 9 of the Equality Act 2010 (work: exceptions) is amended as follows.

(2) Omit sub-paragraph 18(1).’

I am grateful for the opportunity to move this amendment, and I am also grateful to Liberty for its drafting advice and for the briefing it provided to all members of the Committee.

The amendment would remove the exemption from the Equality Act 2010 which allows employers to treat married couples differently from civil partners as regards pension rights attributable to employment service prior to December 2005. In this legislation, not only is that current discrimination in relation to civil partners continued, but it also takes forward the same distinction to same-sex married couples so that, in terms of these pension rights, they would be treated differently from opposite-sex married couples. That uneven treatment would, therefore, be continued.

Paragraph 18 of schedule 9 to the Equality Act provides that withholding a benefit, facility or service that would be available to a married person from somebody in a civil partnership in relation to rights accrued before civil partnerships were introduced in this country does not constitute discrimination. There was a debate about this issue when the Civil Partnerships Act 2004 was introduced. Clearly, at a time when the concept of civil partnerships were controversial and new, it felt difficult to extend pension rights to civil partners prior to the possibility of civil partnership. However, over the nearly 10 years since, we have seen a number of developments in the way that civil partnerships have been accepted and, as an effect, correcting a wrong that existed in not legitimising same-sex relationships at all. It is important to note that the pensions industry has, in many cases, responded to the uneven treatment of civil partners by affording same-sex civil partner survivors the same pension rights that opposite-sex spouses enjoy.

In January of this year, Liberty acted on behalf of a client, John Walker, who won a legal battle to secure equal pension benefits for his civil partner. In that case, the employment tribunal found that an occupational pension scheme that provided that John’s civil partner could only benefit from pension rights accrued since 2005 when civil partnerships became available in the UK was directly discriminatory. In reaching that decision, the tribunal was reliant on a European Court judgment—Maruko, of 1 April 2008—which concerned the right of a same-sex partner to receive a widow’s pension when the partner dies. The Court concluded that treating married and same-sex couples differently in this respect, where national law recognised the relationships as equivalent in other respects, breached the framework directive on equal treatment in employment 2000/78/EC.

It is clear that the decision has been taken at a low level in the domestic courts, and it has been taken by an employment tribunal. It is fairly clear that the decision to follow a European framework directive is placed in the context of the legal circumstances that govern pensions law. It feels unwise, therefore, for the Bill before us to seek not only to perpetuate but to extend that discrimination in relation to same-sex married survivors. If the legislation is not amended to take account of the Walker judgment and the reliance on the European Court findings, it is likely that further legal action will be taken by same-sex married partners. They will seek to have similar redress in the courts to ensure that they too can access pension rights in an equal way. That would be regrettable, given that the overall context of the Bill is, undoubtedly, to offer greater recognition of the equal status of the partnerships and marriages of same-sex couples. Given the points raised by hon. Members in earlier debates, it is important to acknowledge that it is difficult to argue that the Bill does or can achieve perfect equality. It recognises the different circumstances of same-sex and opposite-sex couples to the extent that it does not say that equal means identical. It would be unnecessary to create differences where there is no intrinsic need for a difference of treatment within the context of the Bill, which the current wish to extend the exemption in the Equality Act would unfortunately do.

Overall the impact of the amendment would be relatively insignificant. The numbers involved will be quite small. Not everyone who enters a same-sex marriage will be entitled to an occupational pension, so survivor benefits may not arise in the first place. Secondly, the spouses would need to die in the right order for the pension right to be engaged. In any event, it is the business of these private pension funds to manage these sorts of risk and I venture to suggest that in the scheme of the pension books that they run, the scale of this risk is one that they could easily accommodate. I hope the Minister can give us some indication of the Government’s thinking on the amendment and the reason for the provision in the Bill as it currently stands.

Hugh Robertson (Conservative, Faversham and Mid Kent)

I thank the hon. Lady for tabling the amendment. As she correctly said, this is a substantive amendment that removes the exception in the Equality Act 2010 that allows occupational pension schemes only to take into consideration accruals from 2005 for the purpose of survivor benefits for those in a civil partnership or a same-sex marriage. The exception does not apply to contracted-out rights. Occupational pension schemes that have contracted out of the state second pension have different requirements for calculating survivor benefits, which have to reflect benefits that would be payable under the state pension.

When civil partnerships were introduced in 2005, an exception was inserted into then legislation, now rolled over into in the Equality Act, which provided that it was not discrimination to restrict access to a benefit or facility to someone who was not married, where that benefit was payable in respect of periods of service before 5 December 2005, or was accrued before that date. In practical and easy to understand terms that means that an occupational pension scheme, which provides benefits to married couples, can restrict the provision of survivor benefits for those members in a civil partnership to accruals after the date civil partnerships were introduced. The Bill will extend that provision to apply to same-sex marriages.

The exception was introduced to prevent schemes from having retrospective financial obligations towards surviving civil partners that they would not have taken into account in their scheme funding assumptions. The hon. Lady and I have discussed this before. However, the exception sets out the minimum that pension schemes have to do to comply with equality law should they wish to provide survivor benefits. It does not stop them treating all members, whether in a civil partnership, an opposite-sex marriage or, under this Bill, a same-sex marriage, exactly the same. Indeed, as the hon. Lady mentioned, around two thirds of schemes already provide more than this required minimum.

In drawing up these regulations, we tried to balance the interests of all the parties involved in a pension scheme, both those who will draw in the future and those who have contributed in the past. We are absolutely committed to equality for those who are either in a civil partnership or a same-sex marriage, but we have to balance that against the additional and retrospective financial burdens on schemes that would arise from removing this exception. We are very conscious that defined benefit schemes already face pretty tough economic conditions.

The hon. Lady referred to the case brought by Liberty. I am bound to tell her that the Government do not agree with the finding in that case and are in the process of considering our response. As with any issue of this sort, the power to resolve it does not lie solely within my Department or that of my hon. Friend the Under-Secretary of State for Justice. It requires work with the Department for Work and Pensions and, indeed, the Treasury. As a result of the need to consult with them, and the uncertainty with the Liberty case, I propose that by far the best thing for me to do today is to make an undertaking to take this away and to consult with colleagues across Government. Please do not take that either way. It does not mean that we will reject it or accept it—it simply means that we will take it away and look at it. I do not want anybody getting too excited just yet. We will return to the matter in substantive form at Report stage.

Kate Green (Labour, Stretford and Urmston)

I am grateful for the Minister’s response. As he says, we discussed this amendment some time prior to the Committee’s sitting. He is right to draw attention to a number of aspects that mean that there should be some kind of investigation into the implications of what is proposed in this amendment. He is right to allude to the possibility that the Government may yet take steps in response to the Walker decision, which could affect the likely continuation of this kind of provision either way.

It is also right to say that the pensions industry has been responsive. As the Minister says, two thirds of the industry have already offered more generous survivor benefits and there may be scope to have further discussions with the industry also. If they do not see any difficulty with this amendment, I am sure that the Minister and his fellow Ministers would want to take account of that attitude too. In the scheme of things, I venture to suggest this would not be a huge burden on the industry. But of course it is right that those discussions should take place. I very much welcome the Minister’s assurance that time will be taken now to investigate possibilities properly and perhaps identify any potential difficulties that have not yet occurred to me. On that basis, I am happy for the Committee to withdraw my amendment and I look forward to discussing this matter again, if necessary, on Report. I beg to ask leave to withdraw the amendment.

Kate Green (Labour, Stretford and Urmston)

I beg to move amendment 62, page 34, line 4, in schedule 4, at end insert—

(c) a woman who is married to a woman who is her spouse where—

(i) the spouse is a woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, and

(ii) the marriage subsisted before the time when that certificate was issued.’.

Gary Streeter (Conservative, South West Devon)

With this it will be convenient to discuss the following:

Amendment 63, page 34, line 22, in schedule 4, leave out ‘after “partner’s” insert “or surviving same sex spouse’s”.’ and insert ‘—

(a) after “partner’s” insert “or surviving same sex spouse’s”;

(b) at end insert “but this limitation does not apply to a surviving same sex spouse by virtue of gender recognition as defined in (4C) below.”.’.

Amendment 64, page 34, line 21, in schedule 4, at end insert—

‘(2A) In subsection (3) after “widow’s”, insert “or a survivor same sex spouse’s, where within (4C) below,”.’.

Amendment 65, page 34, line 22 , in schedule 4, at end insert—

‘(3A) After subsection (4B) insert—

(4C) A surviving same sex spouse is ‘a same sex spouse by virtue of gender recognition’ where she was married to—

(a) a spouse who was a woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, and

(b) the marriage subsisted before the time when that certificate was issued.”.’.

Amendment 66, page 34, line 29, in schedule 4, leave out

‘is a man married to a woman, and the earner’

and insert

‘is a man married to a woman, or a woman within (4) below who is married to a woman, and the earner’.

Amendment 67, page 34, line 32, in schedule 4, leave out

‘is a married woman, a man married to a man, or a civil partner, and the earner dies’

and insert

‘is a married woman except within (4) below, a man married to man, or a civil partner, and the earner dies’.

Amendment 68, page 34, line 34, in schedule 4, at end insert—

‘(4) A woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, whose marriage subsisted before the time when that certificate was issued.’.

Amendment 69, page 34, line 35, in schedule 4, leave out

‘, in subsection (4), for “widower or surviving civil partner of an earner” substitute “widower of a female earner, the survivor of a marriage with an earner of the same sex, or the survivor of a civil partnership with an earner,”.’

and insert

‘—

(a) in subsection (4), for “widower or surviving civil partner of an earner” substitute “widower of a female earner, the survivor of a marriage with an earner of the same sex, or the survivor of a civil partnership with an earner,”;

(b) at the end insert—

“(5) The limitation in subsection 4 shall not apply to the survivor of a marriage with an earner of the same sex in which the survivor was married to—

(a) a spouse who was a woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, and

(b) the marriage subsisted before the time when that certificate was issued.”.’.

Kate Green (Labour, Stretford and Urmston)

With the Committee’s permission, I would like to talk about these amendments as a package rather than to go through them individually. They are quite complex when looked at in isolation but they tell a story which, again, the Minister and I have had the opportunity to discuss before the Committee’s sitting this afternoon. We are now talking about a very small group of people who are at risk of being adversely affected by the provisions of this Bill—ironically, because this Bill is, in other respects, improving the position of these people. I am sure that it is not the Government’s intention to give with one hand and take away with another. It is unfortunate that this would be the consequence as the Bill is currently drafted.

We are talking about couples who have married in an opposite-sex marriage and whose marriage may have existed over many years. One member of the couple may have considered the possibility of undergoing gender reassignment but may have felt that they would not want to do that because, in reassigning their gender, the marriage would be dissolved. The opposite-sex marriage will therefore have continued until now when the Bill offers them the possibility of undergoing gender reassignment while allowing the marriage to continue. This is a welcome provision of this Bill. However, as the Bill currently stands, it has the perverse effect of preventing the surviving widow in that marriage from retaining pension rights that she would enjoy if that gender reassignment did not take place.

Therefore, in the case of a woman whose spouse is a woman by virtue of a full gender recognition certificate and the marriage existed before the certificate was issued, my amendment would ensure that her entitlement to survivor’s benefits—whether from contacting-in or contracted-out schemes—are not reduced when they become a same-sex married couple. There would be no new cost at all to the Exchequer or to pension fund providers from this amendment. Of course, the potential saving that they might enjoy were these amendments not passed would be lost, but I would argue that this is a very small saving indeed.

We know from our oral evidence session with Paula Dooley of the Gender Identity Research and Education Society that the issue is a real concern for people for whom gender reassignment is a possibility. They are placed in the invidious position of either undergoing the reassignment that they want and is right for them but losing their spouse’s pension rights in the process or not undergoing gender reassignment that they want to have, and which their partner supports, in order to protect their partner’s pension rights.

That issue arises because the Bill makes provision for same-sex married couples to be treated in the same way as civil partners for the purpose of survivors’ benefits. We have already discussed the situation in relation to contracted-in pensions, where rights date back to 2005. For contracted-out schemes, the position is a little different. Those schemes are required to make provisions for survivor benefits for civil partners based on the contracted-out rights accrued since 6 April 1988, in line with rules for widowers; however, for widows, the rights to survivors’ benefits in contracted-out schemes apply in respect of service back to 1978. There will therefore be a very, very small group of women who stand to lose that extra 10 years of access to survivor benefits if their partner undergoes gender reassignment and the Bill is not changed.

Again, I am sure that the Government did not intend that as a consequence of what is in every other way a very laudable and welcome attempt to enable marriages to continue if one partner from an opposite-sex marriage undergoes gender reassignment. Given the commitment that the Minister has just given to investigate the position that we discussed in relation to the previous amendment, I am hopeful that he will be similarly able to go and investigate the possibilities available to avoid this particular inequity, which I am sure is not intended and would be very regrettable. It is very difficult to say how many people would be affected, but the numbers must be very small: the number of transsexual people in the UK is fairly small and the amendment would affect a subset of that already small group.

I would be grateful for the Minister’s response to this concern. I am hopeful, given his response to the earlier amendment, that that response will be a helpful one; it will certainly be very important to a small group of transgender people who are very concerned about this issue.

Hugh Robertson (Conservative, Faversham and Mid Kent)

Like the hon. Lady, I will speak to the amendments as a whole, as together they would operate to achieve a single objective. As she has correctly said, the amendments would mean that widows of marriages that become same-sex marriages as a result of their spouse’s change of legal gender during the marriage would be treated the same as widows of opposite-sex marriages for the purposes of survivor benefits in occupational pension schemes.

We have considered the evidence submitted to the Committee by stakeholders—in particular in this regard, the evidence submitted by the Gender Identity Research and Education Society—very carefully. We recognise that the Government’s policy of treating same-sex marriages in the same way as civil partnerships for occupational pension survival benefits will create a problem in relation to survival benefits for the relatively small number of women whose husbands acquire female gender during their marriage. It has been put to us—indeed, the hon. Lady mentioned this point—that that could deter a transsexual person from seeking to change their legal gender because of the financial impact on their wife.

In the light of those submissions, we have looked again at the issue. We understand that for a very small number of people loss of those benefits would indeed be a serious problem; however, I think we all agree that the issue is complex and needs to be looked at very carefully. We need to include consideration of the practical issues both for individuals and for the schemes that would be affected. We would not want to make a change that would result in significant cost to pension schemes and to the public purse.

The hon. Lady is absolutely right that the issues here are quite complex. The potential for creating a legal precedent is very clear; that would open up other areas to legal challenge. We would want to consider all those implications carefully before coming to a decision. I can say absolutely to the hon. Lady that I am happy to take this away and look at it carefully with colleagues across Government. As with the previous amendment, I make it clear to her that that is not an indication that we will accept an amendment, or the reverse; it is simply an undertaking to look at the matter carefully, and bring it back on Report.

Kate Green (Labour, Stretford and Urmston)

I am heartened by the Minister’s response. He is right to say that the issue is complex, but I hope that I have interpreted his tone correctly: he is indicating that the Government hope that a solution to this conundrum can be found that will remove people from the invidious position of making a choice that is either not in the interest of one partner or the other, or of the couple as a whole. I look forward to him returning, before Report, with a view from Government. I beg to ask leave to withdraw the amendment.

Schedule 5 - Change of gender of married persons or civil partners

Kate Green (Labour, Stretford and Urmston)

I beg to move amendment 13, in schedule 5, page 40, line 18, at end insert—

Gary Streeter (Conservative, South West Devon)

With this it will be convenient to discuss the following:

New clause 14—Civil partnerships: change of gender—

‘(1) If one of the parties in a civil partnership changes their gender under the Gender Recognition Act 2004, the civil partnership may continue, provided that both parties so elect.

(2) Subsection (1) applies only if a full gender recognition certificate is issued after the civil partnership has been entered into.’.

New clause 17—Applications for gender recognition certificates following the coming into force of this Act—

‘An application for a gender recognition certificate under the Gender Recognition Act 2004 made by a person who was married at the time that Act came into force, has undergone surgical treatment for the purpose of modifying sexual characteristics in the period since the coming into force of the 2004 Act and has remained married shall be treated as if it was an application under section 27(3) of the Gender Recognition Act 2004.’.

Kate Green (Labour, Stretford and Urmston)

Amendment 13 relates to marriages where one member of the couple has undergone gender reassignment. Until the provisions put forward in the Bill, when that happened in an opposite-sex marriage, the marriage was annulled. It was obviously impossible, prior to this Bill, for same-sex marriages to exist. If one member of a couple changed gender, it meant, by definition, that it was a same-sex relationship, and the marriage ended as a result.

I understand that we should be wary of retrospective legislation. This would apply to a small group of people who have been hit particularly hard by having to make the choice to end the marriage in order to undergo gender reassignment, while wanting to continue in all other respects as a married couple, and have done so since the Gender Recognition Act 2004.

Amendment 13 would provide that where couples have been forced to have their marriage annulled in those circumstances, but have continued to live together as a couple and continue to do so when the Bill is enacted, that marriage would be reinstated. There would, as it were, be no break in the nature of the marriage. I would argue that that was very much in the spirit of the Bill, as regards couples who have not undergone gender reassignment and who wish to take advantage of the provisions in the Bill.

New clause 17 relates to provisions affecting couples where one member applies for a gender recognition certificate. It seeks to replicate the fast-track procedure brought in at the time of the 2004 Act. There will be some couples who, when that Act was passed, took the decision that the partner who wanted gender reassignment would not undergo that process, because they knew it would bring the marriage to an end. It was very welcome that the 2004 Act provided a fast-track procedure for people who may have waited many years to undergo legal gender reassignment. For those who have waited even more years because they wanted to protect their marriage, the new clause would offer the possibility of a fast-track procedure.

The new clause does not seek to specify that fast-track procedure in detail. It could be modelled on the procedures laid out in section 27(3) of the 2004 Act, but some elements of that provision need further tweaking in response to the situation that now arises under the Bill. None the less, I hope that the Minister is sympathetic to the intention behind the new clause.

New clause 14 takes us back to an earlier discussion about the possibility of opposite-sex civil partnerships, albeit only in relation to parties who have undergone gender recognition. The Minister has already said that the Government intend to reconsider the matter before Report. I am not opposed to the intention behind the new clause, but I hope that the Committee members who tabled it are willing to wait for the Government to come back on that issue. I would therefore not support the amendment being implemented with immediate effect.

Stephen Gilbert (Liberal Democrat, St Austell and Newquay)

I welcome a huge amount of what the hon. Member for Stretford and Urmston said, and the intentions behind her amendments, and those in the name of my hon. Friends the Members for Bristol North West and for Cambridge (Dr Huppert), and the hon. Member for York Central (Hugh Bayley). Although this issue affects only a small number of people, it is recognised that it does so in a deleterious way, effectively telling them, after they have gone through the pain of gender transition, that the marriage from which they took a huge amount of emotional strength through the transition is no longer valid, and in fact never existed. We need to deal with that.

The hon. Member for Stretford and Urmston correctly identified an historical problem with the 2004 Act, whereby if one spouse transitions and seeks to obtain gender recognition, the marriage must be annulled. I think that that was probably based on the partially erroneous view that couples would almost always want to split up when one partner transitions, but it was also a result of the lack of availability of same-sex marriages at the time.

The Bill allows marriages to continue after legal gender recognition, but does nothing to fix those marriages that have been lost to people who went through the process before the Bill’s passage. Amendment 13 goes some way to fixing that, as the hon. Lady outlined. I join her in seeking reassurance from the Minister of State that the Department is actively considering ways to resolve that. He has indicated to me that that is so in conversations, and I should like him to put that on the record today. I hope that we are able to resolve the matter before Report; none the less, colleagues may wish to return to it on Report if it is not resolved before then.

Helen Grant (Conservative, Maidstone and The Weald)

It is a pleasure to serve under your chairmanship, Mr Streeter.

Amendment 13 would amend schedule 5 to restore marriages previously entered into that have been ended to enable one party to obtain gender recognition. It applies to couples who have annulled their marriages to enable one party to obtain gender recognition and who have subsequently entered into civil partnerships, or who have continued to live together in the same household. The amendment would restore all rights that the couples may have lost or had curtailed following their marriage ending. It would also allow couples to obtain compensation from public funds for any costs they had incurred as a result of the annulment.

I understand the concerns that have prompted Committee members to propose the amendment. The Government have great sympathy for couples who were required to make the very difficult choice as to whether to end their marriage to enable one of the parties to obtain gender recognition.

However, I cannot support the amendment. We have to take the law as we find it. It is not possible simply to undo the fact that the previous marriage was lawfully ended. Such a retrospective change could also have unpredictable consequences, in terms of any rights and responsibilities that the couple had accrued since their marriage was annulled. As a result, couples may find themselves worse off than they currently are. For example, ending a marriage can, in some cases, mean that a person gets a higher rate of state pension as a divorcee. I appreciate that some transsexual people in such a situation may be disappointed by this, but we need to ensure that people’s legal relationship status is completely clear at all times in the eyes of the law.

New clause 14 would allow couples to stay in a civil partnership where one party obtains gender recognition. It would therefore create opposite-sex civil partnerships. We have been clear from the start that the Bill does not amend the Civil Partnership Act 2004 to extend civil partnerships to opposite-sex couples; consequently, the new clause would create an anomaly. I therefore cannot accept it.

However, the hon. Member for St Austell and Newquay can be assured that the Bill will enable couples in civil partnerships to convert to a marriage before one party obtains gender recognition, and to stay in this marriage following gender recognition being granted. A conversion of this kind will not constitute a break in the relationship for the purposes of any rights that may have accrued during the civil partnership.

Finally, new clause 17 seeks to reintroduce the so called fast-track procedure in section 27 of the Gender Recognition Act 2004. Section 27 expired on 3 April 2007 and new clause 17 seeks to resurrect it for those transsexual people who would have been eligible to apply under the fast-track procedure, but who may not have done so because of the marriage bar. Again, I have considerable sympathy for those applicants and hope that they will now feel able to apply for gender recognition.

Although I cannot accept the new clause as drafted, I am willing to consider whether something can be done to assist the transsexual people who transitioned a long time ago, who may be concerned that they will be unable to produce the medical evidence from the required medical practitioner. In doing so, we must be sure that we do not just reintroduce a fast-track process solely for those who were married at the time the 2004 Act came into force. That would be completely unfair to other transsexual people who transitioned many years ago and who did not seek gender recognition for family or other reasons. I therefore ask hon. Members to withdraw the amendments.

Gary Streeter (Conservative, South West Devon)

Before I call Kate Green, Mr Gilbert may wish to come back briefly on that.

Stephen Gilbert (Liberal Democrat, St Austell and Newquay)

Thank you, Mr Streeter. I am reassured by some of what the Minister has said. I look forward to further information from the Government in due course.

Kate Green (Labour, Stretford and Urmston)

I, too, took comfort from the Minister’s response on new clauses 17 and 14, and I will not press new clause 17 to a Division.

On amendment 13, although I appreciate what the Minister said, and I understand the concerns that she has expressed, it seems that if the reinstatement of a marriage were disadvantageous to a couple, they could choose not to do that. Perhaps the amendment as worded would not permit that choice to rest with the couple, but it causes me concern that they will face disappointment, as marriages that were ended only because the law insisted that they were ended cannot be reinstated now that the law is catching up with modern-day mores.

I want to press amendment 13 to a Division. I recognise the concerns that the Ministers will have, but it is important, as an expression of our concern for this small group of people, that we divide the Committee on the amendment.

Schedule 6 - Marriage overseas

Tim Loughton (Conservative, East Worthing and Shoreham)

Before we zoom further down the amendment paper, I wish to ask some questions about the schedule because it has some interesting implications. I am particularly interested in part 1, which covers the carrying out of marriages—whether same-sex or opposite-sex marriages—on consular territory, presumably at embassies throughout the world.

I have been reading the explanatory notes, and my understanding of paragraph 1(2)(c)—a condition for a same-sex marriage to be able to go ahead on a consular property overseas—is that

“the authorities of the country or territory in which it is proposed that they marry will not object to the marriage”.

I am presuming therefore that certain countries that do not recognise same-sex marriage effectively have a power of veto over its taking place. I want clarification from the Minister if that is so.

Various things happen within British embassies throughout the world that are deemed to be British sovereign territory that do not necessarily accord with the practice of the host country. For example, on a visit to Tehran a few years ago during the World cup, I remember enjoying the excellent hospitality of the British ambassador at the British residence there and watching a World cup football match over a few beers. It would not have been in accordance with the customs of that country if we had stepped outside the embassy with our bottle of Stella in hand. Of course, we know that British ambassadors tend to keep a good cellar in countries where one is difficult to find and that it would be punishable by anything up to death if a person were found in possession of a good cellar and partaking of its contents, particularly if that person were one of the locals.

There are other things whereby the relationship between the host country and the residents and officials who operate within the British sovereign territory of an embassy or embassy property is something of a moot point. If we look back to what happened in London in the 1980s and the shooting of PC Yvonne Fletcher—those circumstances came back to our screens again last year—we see that British authorities were powerless effectively to enter the premises under diplomatic protocols to apprehend suspects or investigate that crime.

What exactly is the relationship between a host country and the ability of British officials who, under British law, would be empowered to conduct a same-sex marriage on British embassy territory in a country where same-sex marriage was not recognised? For example, in Saudi Arabia or certain other Arab countries, homosexuality is considered an offence, let alone coming together in recognised same-sex unions. Is there a power of veto by the host country? Will it be a formal power of veto, or will it be an act of effectively turning a blind eye, as happens with the Iranian authorities in respect of the British ambassador’s drinks parties within the embassy compound?

If there is a grey area around diplomatic niceties, as we all know there can be, what happens if a same-sex couple, who will be entitled to marry under British law, if the Bill passes—complying with all the criteria for marrying in the UK and therefore entitled to the same treatment on British sovereign territory in other parts of the world—when a British embassy goes ahead in good faith, with the embassy chaplain or whoever conducting their same-sex marriage on embassy premises, only for the Saudi Government or whichever authorities to tell them, “You cannot do that.”? Is that marriage effectively annulled, or would it still be recognised as long as the participating couple legged it quickly out of the country, in a diplomatic bag or otherwise, because they had offended against the host country’s laws?

I seek clarification about same-sex couples who, for all sorts of reasons, might want to use embassy premises overseas for their same-sex marriage. I suspect that the schedule is of very limited application. In other words, it will apply only in the, I think, 11 other countries whose jurisdictions currently recognise same-sex marriage. Either way, I seek clarification about whether the definition is right and about what happens when a marriage goes ahead but is objected to by a host country on the principle that it is illegal or not recognised under its law.

Helen Grant (Conservative, Maidstone and The Weald)

Consulates offer British nationals abroad consular marriages and consular civil partnerships by providing them with the facility in a consulate to get married or enter into a civil partnership under UK law. They can offer such services only where there are insufficient facilities for British nationals to get married or enter into civil partnerships under local laws and in host states that consent to such marriages or civil partnerships. The Foreign and Commonwealth Office currently provides consular marriage services in six countries, which are all in the middle east, and consular civil partnerships in 18 countries. It conducts an average of 37 consular marriages and 85 civil partnerships a year.

The schedule will allow the FCO to amend current legislation, so that it can offer all forms of marriage and civil partnerships overseas, including same-sex marriage, where host Governments do not object and local facilities do not exist. Given those caveats, the FCO does not expect a significant increase in the number of consular marriages that it performs each year—a matter raised by my hon. Friend.

The schedule will allow the FCO to put into good order a range of outdated marriage powers, to provide a uniform service for British nationals who wish to marry or to register a civil partnership overseas. For example, the schedule will allow the FCO to modernise how it issues certificates of no impediment, which will simplify the process of marrying overseas for all British nationals.

Kate Green (Labour, Stretford and Urmston)

I apologise if I am anticipating what the Minister is about to say. This morning, we discussed the implications of consular marriages for Scottish same-sex couples. Is she going to comment on that?

Helen Grant (Conservative, Maidstone and The Weald)

I will touch on that issue and the one relating to Northern Ireland in a moment.

Part 3 of schedule 6 provides a power, by Order in Council, to make provision for members of the armed forces serving overseas and accompanying civilians, including both opposite-sex and same-sex couples, to marry. The provision for an Order in Council is necessary because the Foreign Marriage (Armed Forces) Order 1964, under section 22 of the Foreign Marriage Act 1892, cannot be extended to the marriage of same-sex couples. That is because section 22 currently provides that such a marriage is valid as if it had been solemnised in the United Kingdom. Such marriages, therefore, have effect under the law of every part of the United Kingdom.

Tim Loughton (Conservative, East Worthing and Shoreham)

I raised specific questions regarding part 1, so before the Minister goes down the blind alley of Scotland, this is an overseas schedule that applies only to territories outside the United Kingdom. With respect, what she has read out is a permutation of what it says in the explanatory note. I wanted explicit confirmation of whether in practice this will apply only to 11 other countries, to ask what happens in the specific incidence of a host country taking exception to it, and to ask about the grey area in between.

Helen Grant (Conservative, Maidstone and The Weald)

I will come back to what my hon. Friend raised earlier. On agreements, it is essential that the host country is quite happy with what we are doing. Under international law, the establishment of consular relations between states is based on the consent of the states concerned. Conducting same-sex marriages without host Government permission could be contrary to international law and risk damaging bilateral relations, which, of course, we would not want to do. So, to answer his question, if we did not have the agreement of the host country, of course it would not happen. The result of that would be that in some locations around the world, it would not happen. Numbers may not, therefore, be considerably greater than they are now. I hope that that has answered his question.

Tim Loughton (Conservative, East Worthing and Shoreham)

Will my hon. Friend give way?

Helen Grant (Conservative, Maidstone and The Weald)

I would like to continue, but if my hon. Friend needs to come back to me, I do not have a problem with that.

Coming back to the provision for an Order in Council, it is necessary because the 1964 order under section 22 of the 1892 Act cannot be extended to marriage of same-sex couples. That is because section 22 currently provides that such a marriage is valid as if it had been solemnised in the United Kingdom, which I think was the point that the hon. Member for Stretford and Urmston was touching on. Such marriages, therefore, have effect under the law of every part of the United Kingdom. Since there is no plan to permit the marriage of same-sex couples in Northern Ireland—I know that is a matter of interest to the hon. Member for Strangford—it is necessary to provide the order to make a new Order in Council to replace the 1964 order. The new order will authorise armed forces marriages of same-sex couples only if the couple involved would otherwise be eligible in England or Wales, not Northern Ireland or Scotland.

In relation to the marriage of a same-sex couple, the order could include provision prohibiting the use of particular religious rites or usages, such as those of the Church of England, or particular premises, such as military chapels. Or, it may specify the consents that may be required, such as the consent of religious organisations that use a particular building as a place of worship. On that basis, I commend the clause to the Committee.

Tim Loughton (Conservative, East Worthing and Shoreham)

I still want a point of clarification. What the Minister has said in alluding to agreements is helpful. Is she actually saying that, as a result of the Bill passing, every embassy or high commission around the world will have to seek the agreement of the host Government—whichever Government Department is responsible for marriages—before it can carry out a single same-sex marriage? If my understanding is correct, will she confirm that the Foreign Office will be doing that?

Helen Grant (Conservative, Maidstone and The Weald)

I have made the position very clear. I will repeat what I said so that it is on the record. Conducting same-sex marriages without host Government permission could be contrary to international law, which, of course, we would not want to break. At the same time, it would risk damaging bilateral relations, which, of course, we would not want to do. I think I have made the position clear.

Schedule 7 - Transitional and consequential provision etc

David Burrowes (Conservative, Enfield, Southgate)

We are at an exciting point, because we are at the end of the Bill. I want to deal with paragraphs 36 and 37 of the schedule. Respectively they will add same female-sex marriage to sections 42 and 46 of the Human Fertilisation and Embryology Act 2008, which contain provisions about parenthood.

I want to raise the issue of children knowing their biological father, which, as has been said in previous debates, took up a lot of Parliament’s attention. Sections 42 and 46(1), unlike sections 43 and 46(2), appear to make provision for—in effect sanctioning—informal unregulated donor insemination to be carried out at home or aboard, or assisted reproduction in unregulated or poorly regulated overseas clinics.

The Human Fertilisation and Embryology Authority has expressed concerns about the increased medical risks to children born as a result of such arrangements, without the safeguards of medical checks that are properly in place in UK-licensed clinics. It is also concerned about the increased difficulties in children being able to know who their biological father is in the future.

I do not know whether the Minister has the answers on this at his fingertips, but will he be able to provide some assurance on the greater medical risks for children who are born through informal donor insemination or assisted reproduction in unregulated or poorly regulated overseas clinics compared with those conceived in a UK-licensed clinic? Also, will he explain—this will no doubt involve some reference to another Department—what safeguards are in place for such children to know who their biological father is in the future? If I cannot have a ready response today, I would welcome a letter before the Bill is debated on Report.

Hugh Robertson (Conservative, Faversham and Mid Kent)

I take my hon. Friend’s point. Given the complications of the issue, it might be best if he wrote to me with his specific concern; I guess that it is driven by a conversation with or representation from someone. The matter is a cross-departmental one, but I will respond to him.

What I can say is that the Bill will have absolutely no effect on in vitro fertilisation or the regulation of overseas clinics.

Mr Burrowes rose—

Hugh Robertson (Conservative, Faversham and Mid Kent)

I detect that that is not quite the issue my hon. Friend is after. I would be happy for him to clarify.

David Burrowes (Conservative, Enfield, Southgate)

Hopefully, the question that I have raised is sufficient for the Minister to respond by way of correspondence.

I appreciate that the Bill does not seek to change the specific practical arrangements. Nevertheless, the provisions raise a question about the need for an assurance that there are safeguards in place for children to know who their biological father is in the future. That is the specific point on which the Minister may be able to gain some understanding for me from the Department of Health.

Hugh Robertson (Conservative, Faversham and Mid Kent)

That is a perfectly sensible and reasonable point. I will get the Department of Health to lay out the particular assurances that exist in such a situation and write to him before the Bill is debated on Report.