Marriage (Same Sex Couples) Bill: the story continues

Report and Third Reading of the Marriage (Same Sex Couples) Bill are scheduled for 20– 21 May. The Bill has been criticized for the absence of any mention of the legislation in any party’s manifesto and a consultation that dealt with the issues around same-sex marriage but appeared to prejudge its outcome. As we have previously noted, there has been a call for a referendum on the issue and it has been taken forward in New Clause 9 tabled for the Report stage.

The Bill has been scrutinized by the Public Bill Committee, which during its many sittings took oral evidence from 27 individuals and organizations, here, and received written evidence from a substantial number of others, here. Amongst all of this material are the legal views of a number of respected lawyers, to which was added recently an Opinion on Human Rights Implications of the Marriage (Same Sex Couples) Bill by Professor Christopher McCrudden, as advice to the Catholic Bishops’ Conference of England and Wales. Many of the arguments put forward were rehearsed before and during Baroness O’ Cathain’s “prayer to annul” debate in December 2011 on extending the registration of civil partnerships to religious premises.

Nevertheless, Pink News reports that David Burrowes, Conservative MP for Enfield-Southgate, remains dissatisfied by the process.

 “… the 13 sittings of the Bill Committee only resulted in the government listening and responding courteously to the numerous amendments tabled by me and three other dissenters … Cheered on by hand-picked Labour MPs, who did not allow any dissenters in their ranks, not one word of the bill was amended. BBC’s Mark d’Arcy was not far off when he commentated on the committee’s deliberations as ‘a bit of a ritual. The dissenters dissent and the supporters support, and the whole thing is as mannered as a minuet danced at the court of Louis XVI.’”[Emphasis added].

Maria Miller, the Culture Secretary and Equalities Minister, subsequently told the Joint Committee on Human Rights during her oral evidence that the Government had tabled an amendment to the Bill to meet one particular concern. Under the new proposals, chaplains employed by secular organisations, such as hospitals, the Armed Forces and universities

“…  will be protected in just the same way as any other clergy and could not be forced to conduct marriages of same-sex couples. They would not be able to conduct marriages of same-sex couples unless their governing authority of their religious institution or the religious organisation of which they are a part had opted in. In the unlikely event of an employer trying to force a chaplain to act against his or her religious belief, or the beliefs of the organisation that they represent … the chaplain would have a number of further legal protections under the Bill, including the Equality Act 2010 and, indeed, employment law” [Q 40].

However, she reiterated that the Government did not feel that there was any necessity or requirement to open up civil partnerships to heterosexual couples:

“Straight couples … already have the ability to be able to form a marriage, a contracted relationship, which would afford them protection and benefits in the way that gay couples did not have before civil partnerships were put in place. Civil partnerships have provided that sort of framework for gay couples. We are now saying making marriage not available to them is not something that we feel is fair. We want to remove that unfairness and make it available but, in making that available to gay couples, we just do not feel that there is either a necessity or indeed a requirement to open up civil partnerships to heterosexual couples, because there is no deficit there; there is no lack of an ability to be able to formalise a relationship in a legal way. It is already there for heterosexual couples; it is called marriage” [Q 43].

Which looks like rather sloppy thinking at the very least. If it is already possible to formalise an opposite-sex relationship in a legal way, it is equally possible to formalise a same-sex relationship in a legal way: by contracting a civil partnership. So in purely formal, legal terms for purposes such as the law of succession there is no deficit there either.

The Government now seems to have had second thoughts and was subsequently reported as having tabled an amendment to the Bill to provide for a review of the issue of extending civil partnerships to heterosexual couples – but not until 2019. A “government spokesman” was quoted as saying that “A proper review will allow us to look at the issues in a considered and thorough way, giving full consideration to the implications of any changes.”

We still wonder whether the Government’s refusal to institute heterosexual civil partnerships as part of the current package will stand up to scrutiny in Strasbourg if challenged – as it almost certainly will be. We also wonder why the Government failed to conduct “a proper review” in the first place. After all, it’s not as if ministers haven’t had fair warning that the issue would be raised: Equal Love has been campaigning for a change in the current law since 2010.

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