Civil Partnership Bill [H.L.]

HL Deb 17 May 2004 vol 661 cc239-64GC

(Fourth Day)

The Committee met at half past three of the clock.

[The Deputy Chairman of Committees (Lord Elton) in the Chair.]

The Deputy Chairman of Committees (Lord Elton)

Before proceedings begin, I draw the Committee's attention to the fact that the Stationery Office has printed continuation numbers for the long amendments on the Marshalled List—for instance, on page 10—as Members of the Committee requested last week. In addition, the Government have prepared an informal document showing the Bill including all the government amendments, copies of which are available from the Attendant at the door.

The Lord President of the Council (Baroness Amos) moved Amendment No. 61AW: Before Clause 149, insert the following new clause—

"DISPUTES BETWEEN CIVIL PARTNERS ABOUT PROPERTY (1) In any question between the civil partners in a civil partnership as to title to or possession of property, either civil partner may apply by summons or otherwise in a summary way to—

1. (a) the High Court, or
2. (b) a county court.

(2) On such an application, the court may make such order with respect to the property as it thinks fit (including an order for the sale of the property). (3) Rules of court made for the purposes of this section may confer jurisdiction on county courts whatever the situation or value of the property in dispute.

The noble Baroness said: Before I speak to this group of nine amendments I should say to the Committee that at Thursday's sitting it was generally agreed that it would be helpful if we could find a way to put the amendments relating to Northern Ireland in a new format to facilitate the Committee's consideration of them. It was also suggested that the Government provide further explanatory material on the amendments. We have attempted to do this. I should like to put on record my thanks to the officials who worked very hard to produce the material that was requested by the Committee.

separate version of Part 4 with the amendments incorporated, making it easier to see how the proposed amendments fit into existing provisions for Northern Ireland, has been produced. However, I make clear to the Committee that this is not an official version but a draft intended to aid Members of the Committee in discussion. We have also produced a revised set of draft Explanatory Notes to accompany those amendments and a supplementary document noting the purpose and effect of each amendment. I hope that noble Lords will find these documents helpful in assisting our deliberations this afternoon.

Turning to the amendments, this group of nine amendments make provision in Northern Ireland in connection with civil partnership which is comparable to the provision made for England and Wales by Chapter 3 of Part 2 as well as Schedules 4, 5, 6 and 7. They cover a wide range of legislative provision that sets out the rights and responsibilities of civil partners during the civil partnership, on its dissolution and after the death of one of the civil partners.

I will speak in some detail on this group and the following groups of amendments, as I did on Thursday. I hope that the Committee will find it useful in following the debate. I have taken heed of the request of the noble Baroness, Lady O'Cathain, and will indicate page numbers in the Marshalled List as I proceed.

Amendments Nos. 61AW and 61AX on page 38 enable civil partners to refer disputes over property to court using a summary procedure. The first of these amendments allows these disputes to be resolved in the High Court or a county court. The second of these amendments extends the availability of this jurisdiction of the court to situations where the civil partner no longer has the money or property in possession. In these cases the court has the same powers to make orders as if the property or money in question was still in the hands of the civil partner, including the power to order one civil partner to pay to the other a sum of money as appropriate. We discussed similar provisions in relation to Clauses 64 and 65 on 13 May.

Amendment No. 61AY on page 39 extends to civil partners and their children the protections under Northern Ireland law currently available to spouses and children in respect of the proceeds of life assurance policies. As in Clause 67 for England and Wales and Clause 127 in Scotland, this is a necessary provision to ensure that surviving civil partners and their children are treated in the same way as spouses and the children of a married couple for the purposes of life assurance policies which have been expressly taken out for their benefit.

Amendments Nos. 61AZ, on page 39, and 63A, on page 70, are concerned with the disposition of the estate of civil partners who have died. Amendment No. 63AZ contains a clause introducing Amendment No. 63A which amends existing legislation in Northern Ireland in relation to the effect of the formation or dissolution of a civil partnership on the will of a civil partner. Where a person has made a will, that will is revoked by the formation of a civil partnership, it being expected that the testator would have wished to make fresh provision. Similarly, the dissolution of a civil partnership will have the effect of revoking the will insofar as it concerns any disposition made in favour of the former civil partner. I hope that given the supplementary material that we have provided, any further questions that the Committee may have on that are past us.

Amendment No. 63A also deals comprehensively with the rights of surviving civil partners to a share of the deceased's estate under the intestacy rules and inheritance legislation.

Amendments Nos. 61 BA, on page 39, 63B, on page 80, 63C, on page 117 and 63D, on page 141 establish a system of financial relief in Northern Ireland for civil partners and children of their family following the breakdown of the civil partnership. Amendment No. 61 BA inserts a new clause introducing the schedules contained in the three subsequent amendments.

Amendment No. 63B inserts a new schedule which deals with the adjustment of the finances and property rights of civil partners when a civil partnership is brought to an end. Amendment No. 63C sets out a system of financial relief that will be available in the magistrates' courts tier. This will enable civil partners to apply for maintenance themselves and for children of the family in the same way as parties to a marriage.

Amendment No. 63D inserts a new schedule containing provisions for financial relief in Northern Ireland after a civil partnership has been dissolved or annulled or the civil partners have been legally separated in a country outside the British Isles.

The provision made by these four amendments replicates existing arrangements for the financial arrangements between married couples whose marriage has ended, either within or outside Northern Ireland.

The nine amendments in this group amend or replicate existing provision in Northern Ireland law applying to married couples and their property and finances. They raise no new issues of principle for the Bill. I beg to move

Baroness O'Cathain

I tell the Leader of the House that I will not be long, but wish, first, to thank her very much and, indeed, through her, her officials, because it must have been some task to make some sense out of this matter. Although we have not had much time to look at the amendments—I have only just received most of them—the results have been useful.

Secondly, the noble Baroness started by saying that the new amendments are comparable to the amendments for England and Wales, which is fine. But are they identical? If they are only comparable there may be some areas which the Minister could highlight. Could someone write to let us know if there are any differences? We have largely been examining the England and Wales provisions and if these new amendments are identical there will not be much more work to do.

Baroness Amos

With respect to "identical" or "comparable", they will be different—or differently worded—only where Northern Ireland legislation is different. The reason that I use the word "comparable" concerning Northern Ireland legislation is that I have sought, as I go through, to highlight those places where it is different, because I know that the Committee would want to know. But in the majority of instances, where there is a slight difference, it will be because the orders or legislation in Northern Ireland are slightly different.

Lord Lester of Herne Hill

May I also thank the noble Baroness the Leader of the House, her team and Ministers more generally for what is a departure from anything that I have ever known before in the decade for which I have belonged to the House? I very much hope that what is being done on this occasion may be considered as a possible example for what could be done again. It has always seemed to me strange that the way in which we deal with amendments makes it extremely difficult, even for lawyers, who have the sad task of reading such things, to be able to mate the proposed amendments to the text of a Bill. The beauty of what has been done here is that, in an informal document, we have the entire relevant parts of the Bill dealing with Northern Ireland in a way that does not require us to go back and forth to the Marshalled List.

The other thing that is important is to have the notes on the amendments, which Ministers themselves have, which means that we have an update on the Explanatory Notes. One problem about the way in which we normally deal with law-making is that although we normally have good Explanatory Notes on the Bill, we do not always get Explanatory Notes on amendments, especially government amendments. Funnily enough, that does not apply where the Joint Committee on Human Rights is involved, which is able, to some extent, to get some of the material in its area updated.

That is admirable, and enables us to see what is being proposed as a whole. As far as I can see, we are not establishing any different principles in the Northern Ireland part of the Bill—as the noble Baroness said, all we are doing, on my reading, is to change the nomenclature to suit Northern Ireland legislation. On that basis, the amendments, and others like them, are not controversial; they mirror what we have already scrutinised. I repeat my great gratitude for the labour that has been done and my hope that it may be considered to be a precedent set for the future.

Lord Alli

I, too, thank my noble friend the Leader of the House and her officials for the extremely helpful and thorough notes. They certainly helped me this morning to run through the amendments in some detail and to consider them more carefully. I wonder whether my noble friend could also pass on my thanks to my noble friend Lord Filkin for his helpful letter about the work being done concerning unmarried same-sex couples.

Baroness O'Cathain

Not same-sex couples.

Lord Alli

Sorry—co-habiting couples, both same-sex and of opposite sex. We asked for that and his response is most encouraging.

Baroness Amos

First, I thank members of the Committee for recognising the hard work that officials have done. I tell the noble Lord, Lord Lester, that one way in which I managed to persuade parliamentary counsel that this work could be done informally by officials was by promising that I was not setting a precedent. So the noble Lord's words are not especially helpful in that respect. I repeat that this was an informal exercise; it does not set a precedent—although I absolutely recognise the helpfulness of it to the Committee. I should like to retain a degree of flexibility in how we handle Committee stages of Bills, especially when there is a large volume of government amendments, as in this case. It will, of course, depend on work load. I should like to endorse the fact that the principles are not different, they are the same. I also thank my noble friend Lord Alli, with respect to his comments about my noble friend Lord Filkin.

On Question, amendment agreed to.

3.45 p.m.

Baroness Amos moved Amendments Nos. 61AX to 61BA: Before Clause 149, insert the following new clause—

"APPLICATIONS UNDER SECTION (DISPUTES BETWEEN CIVIL PARTNERS ABOUT PROPERTY) WHERE PROPERTY NOT IN POSSESSION ETC. (1) The right of a civil partner ("A") to make an application under section (Disputes between civil partners about property) includes the right to make such an application where A claims that the other civil partner ("B") has had in his possession or under his control—

1. (a) money to which, or to a share of which, A was beneficially entitled, or
2. (b) property (other than money) to which, or to an interest in which, A was beneficially entitled,

and that either the money or other property has ceased to be in B's possession or under B's control or that A does not know whether it is still in B's possession or under B's control. (2) For the purposes of subsection ( I )(a) it does not matter whether A is beneficially entitled to the money or share—

1. (a) because it represents the proceeds of property to which, or to an interest in which, A was beneficially entitled, or
2. (b) for any other reason.

(3) Subsections (4) and (5) apply if, on such an application being made, the court is satisfied that B—

1. (a) has had in his possession or under his control money or other property as mentioned in subsection (1)(a) or (b), and
2. (b) has not made to A, in respect of that money or other property, such payment or disposition as would have been just and equitable in the circumstances.

(4) The power of the court to make orders under section (Disputes between civil partners about property) includes power to order B to pay to A—

1. (a) in a case falling within subsection (1)(a), such sum in respect of the money to which the application relates, or A's share of it, as the court considers appropriate, or
2. (b) in a case falling within subsection (1)(b), such sum in respect of the value of the property to which the application relates, or A's interest in it, as the court considers appropriate.

(5) If it appears to the court that there is any property which—

1. (a) represents the whole or part of the money or property, and
2. (b) is property in respect of which an order could (apart from this section) have been made under section (Disputes between civil partners about property), GC 244 the court may (either instead of or as well as making an order in accordance with subsection (4)) make any order which it could (apart from this section) have made under section (Disputes between civil partners about property).

(6) Any power of the court which is exercisable on an application under section (Disputes between civil partners about property) is exercisable in relation to an application made under that section as extended by this section. Before Clause 149, insert the following new clause—

"ASSURANCE POLICY BY CIVIL PARTNER FOR BENEFIT OF OTHER CIVIL PARTNER ETC. Section 4 of the Law Reform (Husband and Wife) Act (Northern Ireland) 1964 (c.23 (N.I.)) (money payable under policy of life assurance or endowment not to form part of the estate of the insured) applies in relation to a policy of life assurance or endowment—

1. (a) effected by a civil partner on his own life, and
2. (b) expressed to be for the benefit of his civil partner, or of his children, or of his civil partner and children, or any of them,

as it applies in relation to a policy of life assurance or endowment effected by a husband and expressed to be for the benefit of his wife, or of his children, or of his wife and children, or of any of them. Before Clause 149, insert the following new clause

"WILLS, ADMINISTRATION OF ESTATES AND FAMILY PROVISION Schedule (Wills, administration of estates and family provision: Northern Ireland) amends enactments relating to wills, administration of estates and family provision so that they apply in relation to civil partnerships as they apply in relation to marriage. Before Clause 149, insert the following new clause—

"FINANCIAL RELIEF FOR CIVIL PARTNERS AND CHILDREN OF FAMILY (1) Schedule (Financial relief in the High Court or a county court etc.: Northern Ireland) makes provision for financial relief in connection with civil partnerships that corresponds to the provision made for financial relief in connection with marriages by Part 3 of the Matrimonial Causes (Northern Ireland) Order 1978 (S.I. 1978/1045 (N.I. 15)). (2) Any rule of law under which any provision of Part 3 of the 1978 Order is interpreted as applying to dissolution of a marriage on the ground of presumed death is to be treated as applying (with any necessary modifications) in relation to the corresponding provision of Schedule (Financial relief in the High Court or a county court etc.: Northern Ireland). (3) Schedule (Financial relief in court of summary jurisdiction etc.: Northern Ireland) makes provision for financial relief in connection with civil partnerships that corresponds to provision made for financial relief in connection with marriages by the Domestic Proceedings (Northern Ireland) Order 1980 (S. I. 1980/ 563 (N.I. 5)). (4) Schedule (Financial relief in Northern Ireland after overseas dissolution etc. of a civil partnership) makes provision for financial relief in Northern Ireland after a civil partnership has been dissolved or annulled, or civil partners have been legally separated, in a country outside the British Islands.

On Question, amendments agreed to.

Baroness Amos moved Amendment No. 61 BB: Before Clause 149, insert the following new clause—

"CIVIL PARTNERSHIP AGREEMENTS UNENFORCEABLE (1) A civil partnership agreement does not under the law of Northern Ireland have effect as a contract giving rise to legal rights. (2) No action lies in Northern Ireland for breach of a civil partnership agreement, whatever the law applicable to the agreement. (3) In this section and section (Property where civil partnership agreement is terminated) "civil partnership agreement" means an agreement between two people—

1. (a) to register as civil partners of each other—
1. (i) in Northern Ireland (under Part 4),
2. (ii) in England and Wales (under Part 2),
3. (iii) in Scotland (under Part 3), or
4. (iv) outside the United Kingdom under an Order in Council made under Chapter 1 of Part 5 (registration at British consulates etc. or by armed forces personnel), or
2. (b) to enter into an overseas relationship.

(4) This section applies in relation to civil partnership agreements whether entered into before or after this section comes into force, but does not affect any action commenced before it comes into force.

The noble Baroness said: Amendment No. 61BB, which is on page 40, and Amendment No. 61BC, on page 41, make provision for Northern Ireland comparable to Clauses 70 and 71 of Part 2 of the Bill, dealing with England and Wales.

Amendment No. 61 BB provides that agreements to register as civil partners will not be enforceable and no right of action will arise if such an agreement is broken. This provision corresponds to the current Northern Ireland law on engaged couples.

Amendment No. 61BC introduces a provision which would apply where a civil partnership agreement is terminated but a dispute arises between the couple over property. The new procedures under Amendment No. 61AW and 61AX, dealing with disputes between civil partners, which we have just agreed, will be available to parties who have terminated a civil partnership agreement. This amendment matches existing Northern Ireland provision relating to disputes between formerly engaged couples. I beg to move.

On Question, amendment agreed to.

Baroness Amos moved Amendment No. 61 BC: Before Clause 149, insert the following new clause—

"PROPERTY WHERE CIVIL PARTNERSHIP AGREEMENT IS TERMINATED (1) This section applies if a civil partnership agreement is terminated. (2) Sections (Disputes between civil partners about property) and (Applications under section ( Disputes between civil partners about property) where property not in possession etc.) (disputes between civil partners about property) apply to any dispute between, or claim by, one of the parties in relation to property in which either or both had a beneficial interest while the agreement was in force, as if the parties were civil partners of each other. (3) An application made under section (Disputes between civil partners about property) or (Applications under section ( Disputes between civil partners about property) where property not in possession etc.) by virtue of subsection (2) must be made within 3 years of the termination of the agreement. (4) A party to a civil partnership agreement who makes a gift of property to the other party on the condition (express or implied) that it is to be returned if the agreement is terminated is not prevented from recovering the property merely because of his having terminated the agreement.

On Question, amendment agreed to.

Clause 149 [Further provision for Northern Ireland]:

On Question, Whether Clause 149 shall stand part of the Bill?

Lord Monson

We have not quite left Northern Ireland yet. This seems an opportune moment to raise a general question in respect of the Province and its legislation. I apologise if it was touched upon last Thursday, but I was otherwise occupied for most of the day.

If the Northern Ireland Assembly were ever to reconvene, would it have the power, if it so chose, to amend or repeal the legislation in so far as it embraces Northern Ireland? It may never so choose, but it would he interesting to know whether it would have that power.

Baroness Amos

The Northern Ireland Assembly would have that power on the issues which were within its remit.

I am going to confuse the Committee, because I did this last week in opposing clause stand part. I wish to oppose Clause 149 standing part of the Bill.

Clause 149 is a common clause appearing in Westminster legislation, which needs to be replicated in whole or in part for Northern Ireland. The clause permits an Order in Council under the schedule to the Northern Ireland Act 2000 to make further provision for civil partnership in Northern Ireland. It was necessary to include that clause in the Bill on introduction for drafting reasons in order to ensure that it was technically correct. However, now that we have the necessary additional clauses and schedules for Northern Ireland being added to the Bill, Clause 149 is no longer necessary. That is why I oppose Clause 149 stand part of the Bill.

Clause 149 negatived.

Baroness Amos moved Amendment No. 61 BD: After Clause 149, insert the following new clause—

"PARENTAL RESPONSIBILITY, CHILDREN OF THE FAMILY AND RELATIVES (1) Amend the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)) ("the 1995 Order") as follows. (2) In Article 2(2) (interpretation). for the definition of "child of the family" in relation to the parties to a marriage, substitute— "child of the family", in relation to parties to a marriage, or to two people who are civil partners of each other, means—

1. (a) a child of both of them, and
2. (b) any other child, other than a child placed with them as foster parents by an authority or voluntary organisation, who has been treated by both of them as a child of their family."

(3) In the definition of "relative" in Article 2(2), for "by affinity)" substitute "by marriage or civil partnership)". (4) In Article 7(1C) (acquisition of parental responsibility by step-parent), after "is married to" insert ", or a civil partner of,".

The noble Baroness said: Amendments Nos. 61BD and 61BE on page 42 and Amendments Nos. 61BF, 61BG and 61BH on page 43 add five new clauses to Part 4 of the Bill. They deal with matters relating to children. The five new clauses would amend certain family law legislation in Northern Ireland in much the same way as is done in Chapter 5 of Part 2 of the Bill, which has already been debated.

The amendments take account of the important role that civil partners will play in children's lives. "Child of the family" will be redefined to include children who are treated as children of the family by civil partners. Civil partners will be able to obtain parental responsibility for children of their civil partner by court order or by agreement of all those who have parental responsibility for that child.

Those amendments also allow civil partners to apply for residence and contact orders in respect of a child of the family, in the same way as parties to a marriage. That will ensure that a child who has formed a close attachment to a civil partner who is not his or her parent can continue to benefit from that bond even if the relationship between the civil partners has ended. When hearing an application of this nature, the court will obviously take into account whether a residence or contact order is in the best interests of the child in question.

Those amendments also allow a civil partner to be liable for financially maintaining a child whom he or she has treated as a child of the family. That will enable the court to make orders for periodical payments to be made from one civil partner to the other or to a child of the family or to a particular person for the benefit of the child. That will not affect the responsibility of the biological parent to maintain his or her child.

Those amendments also contain a safeguard for a civil partner who appoints his or her civil partner to act as a guardian for his or her children. That appointment will be revoked if the civil partnership is subsequently dissolved or annulled, unless a contrary intention is shown in the appointment.

Finally, Amendment No. 61BH makes minor and consequential amendments to adoption legislation in Northern Ireland. I beg to move.

Lady Saltoun of Abernethy

I am looking at subsection (2) of the proposed new clause in government Amendment No. 61BD, which states that a, 'child of the family', in relation to parties to a marriage, or to two people who are civil partners of each other, means— (a) a child of both of them". That is not really applicable in this case. One might want to say "a child of either of them", but I query the words, a child of both of them", in that particular context. Apart from anything else, it seems to be extraordinarily bad English. Would the noble Baroness care to comment?.

Baroness Amos

I think that that is in relation to civil partners being guardians to the child, for example, as well as whether the biological parent of the child is one of the civil partners.

Baroness O'Cathain

Perhaps I can follow that up: I wonder whether it would be anything to do with the Gender Recognition Bill?

Baroness Amos

No, it does not relate to the Gender Recognition Bill at all. As I said, the provision relates to both marriage and civil partners.

Lord Lester of Herne Hill

Perhaps I can follow up the question of the noble Lord, Lord Monson, about the impact of the devolution scheme. It arises on all these amendments and is a question that goes as much to the Scottish as to the Northern Irish provisions. I understand the answer that has been given by the Leader of the House, which is that it all depends upon whether a matter falls within those matters that are devolved. Obviously, that has to be tackled to some extent on a provision by provision basis, according to the subject matter.

However, if it would not be too much trouble, it would be helpful if the Government would at some point spell out the brief principles that would apply in deciding whether a matter falls within those that are devolved and are capable of being legislated upon by the Northern Ireland Assembly, when it is restored, or by the Scottish Parliament, or whether they are matters that are controlled entirely by the Westminster Parliament and are therefore not capable of amendment.

I can see that at the moment one imponderable would be that under the devolution scheme both the Northern Ireland Assembly and the Scottish Parliament are constrained in their law-making powers by the Human Rights Act and by the European Convention on Human Rights. Therefore, if it would be unjustifiably discriminatory to treat homosexual people in Northern Ireland less favourably than homosexual people in the rest of the United Kingdom, that would be a constraint upon the ability of the Assembly to amend, even if, on the face of it, the amending power seemed to fall within the devolution scheme. I do not wish to detain the Committee in any detail on it, but it seems to me that, in view of the understandable sensitivities in Scotland and Northern Ireland, and to a lesser extent in Wales—a lesser extent because they do not have the same law-making powers—it would be helpful if we could have a short explanation at some convenient moment. If not now, then can we please have it on some future occasion, just for the record?

Baroness Amos

I have listened carefully to the noble Lord, Lord Lester, and we can set out those areas of responsibility that fall to the devolved administrations and those that fall to Westminster. It would be more difficult to set out those areas where, for example, the Assembly or the Scottish Parliament may feel that they want to challenge responsibility and which may end up in a court of law. On the basis of the devolution settlements for Northern Ireland and Scotland, we would be able to set out those areas that fall to Westminster or to Belfast or Edinburgh. The Committee will know, for example, that immigration falls to Westminster, as does responsibility for elections. Other areas—for example, social security—fall to the Northern Ireland Assembly. I can set that out in very broad terms in writing to the Committee.

Lord Lester of Herne Hill

I would be very grateful if it could be applied in the context of the Bill so that one has some idea of the fuller answer to the question of the noble Lord, Lord Monson.

4 p.m.

Baroness Amos

My attention has just been drawn to the fact that on page 19 of the consultation document, which all Members of the Committee may not have in front of them, are set out transferred, reserved and accepted matters. However, I shall write to noble Lords on that point.

On Question, amendment agreed to.

Baroness Amos moved Amendments Nos. 61BE to 61BH: After Clause 149, insert the following new clause—

"GUARDIANSHIP In Article 161 of the 1995 Order (revocation of appointment), after paragraph (7) insert— (8) An appointment under paragraph (1) or (2) of Article 160 (including one made in an unrevoked will) is revoked if—

1. (a) the civil partnership of the person who made the appointment is dissolved or annulled, and
2. (b) the person appointed is his former civil partner.

(9) Paragraph (8) is subject to a contrary intention appearing from the appointment. (10) In paragraph (8) "dissolved or annulled" means—

1. (a) dissolved by a dissolution order or annulled by a nullity order under Part 4 of the Civil Partnership Act 2004, or
2. (b) dissolved or annulled in any country or territory outside Northern Ireland by a dissolution or annulment which is entitled to recognition in Northern Ireland by virtue of Chapter 3 of Part 5 of that Act.""

After Clause 149, insert the following new clause

"ENTITLEMENT TO APPLY FOR RESIDENCE OR CONTACT ORDER In Article 10(5) of the 1995 Order (persons entitled to apply for residence or contact order), after sub-paragraph (a) insert— (aa) any civil partner in a civil partnership (whether or not subsisting) in relation to whom the child is a child of the family;". After Clause 149, insert the following new clause—

"FINANCIAL PROVISION FOR CHILDREN (1) Amend Schedule 1 to the 1995 Order (financial provision for children) as follows. (2) For paragraph 1(2) (extended meaning of "parent") substitute— (2) In this Schedule, except paragraphs 3 and 17, "parent" includes—

1. (a) any party to a marriage (whether or not subsisting) in relation to whom the child concerned is a child of the family, and
2. (b) any civil partner in a civil partnership (whether or not subsisting) in relation to whom the child concerned is a child of the family;

and for this purpose any reference to either parent or both parents shall be read as a reference to any parent of his and to all of his parents. (3) In paragraph 3(6) (meaning of "periodical payments order"), after paragraph (d) insert—

1. "(e) Part 1 or 7 of Schedule (Financial relief in the High Court or county court etc.) to the Civil Partnership Act 2004 (financial relief in the High Court or county court etc.);
2. (f) Schedule (Financial relief in court of summary jurisdiction etc.: Northern Ireland) to the 2004 Act (financial relief in court of summary jurisdiction etc.);".

(4) In paragraph 17(2) (person with whom a child lives or is to live), after "husband or wife" insert "or civil partner". After Clause 149, insert the following new clause—

"ADOPTION (1) Amend the Adoption (Northern Ireland) Order 1987 (S.I. 1987/2203 (N.I. 22)) as follows. (2) In Article 2 (interpretation), in the definition of "relative" in paragraph (2), for "affinity" substitute "marriage or civil partnership". (3) In Article 12 (adoption orders), in paragraph (5), after "married" insert "or who is or has been a civil partner". (4) In Article 15 (adoption by one person), in paragraph (1)(a), after "is not married" insert "or a civil partner". (5) In Article 33 (meaning of "protected child"), in paragraph (3)(g), after "marriage" insert "or forming a civil partnership". (6) In Article 40 (status conferred by adoption), in paragraph (3)(a), after "1984" insert "or for the purposes of Schedule 12 to the Civil Partnership Act 2004". (7) In Article 54 (disclosure of birth records of adopted children), in paragraph (2)—

1. (a) after "intending to be married" insert "or to form a civil partnership";
2. (b) for "the person whom he intends to marry" substitute "the intended spouse or civil partner";
3. (c) after "1984" insert "or Schedule 12 to the Civil Partnership Act 2004".

(8) In Article 54A (Adoption Contact Register), in paragraph (I 3)(a), for "or marriage" substitute ", marriage or civil partnership".

On Question, amendments agreed to.

Baroness Amos moved Amendment No. 61 BJ: After Clause 149, insert the following new clause—

"FALSE STATEMENTS ETC. WITH REFERENCE TO CIVIL PARTNERSHIPS

(1) Amend Article 8 of the Perjury (Northern Ireland) Order 1979 (S.I. 1979/1714 (N.I. 19)) (false statements etc. with reference to marriage) as follows.

(2) After paragraph (1) insert— (1A) Any person who—

1. (a) for the purpose of procuring the formation of a civil partnership or a document mentioned in paragraph (1B)—
1. (i) makes or signs a declaration required under Part 4 or 5 of the Civil Partnership Act 2004; or
2. (ii) gives a notice or certificate required under Part 4 or 5 of the Civil Partnership Act 2004,

knowing that the declaration, notice or certificate is false;

1. (b) for the purpose of a record being made in any register relating to civil partnerships—
1. (i) makes a statement as to any information which is required to be registered under Part 4 or 5 of the Civil Partnership Act 2004; or
2. (ii) causes such a statement to be made,

knowing that the statement is false;

1. (c) forbids the issue of a document mentioned in paragraph (1B)(a) or (b) by representing himself to be a person whose consent to a civil partnership between a child and another person is required under Part 4 or 5 of the Civil Partnership Act 2004, knowing the representation to be false,

shall be guilty of an offence. (1B) The documents are—

1. (a) a civil partnership schedule;
2. (b) a document required by an Order in Council under section 150 or 151 as an authority for two people to register as civil partners of each other;
3. (c) a certificate of no impediment under section 175."

(3) In paragraph (2), after "paragraph (1)" insert "or (1A)". (4) In the heading to Article 8, after "marriage" insert "or civil partnership".

The noble Baroness said: We are nearing the end of the government amendments adding new clauses and schedules for Northern Ireland. I am grateful to Members of the Committee for their patience. This group of amendments contains two schedules. I shall proceed carefully to ensure that we are all able to understand the purpose of each amendment. This group corresponds to Chapter 6 of Part 2. We have already debated those provisions and these amendments raise no new policy issues.

Amendment No. 61BJ on page 44 deals with false statements made in connection with civil partnership. It does so by amending the Perjury (Northern Ireland) Order 1979, creating offences comparable to those which would apply to false statements made in connection with the procurement of a marriage.

Amendment No. 61BM on page 45 amends the Fatal Accidents (Northern Ireland) Order 1977 and enables civil partners and former civil partners to make claims under that legislation in the same way as spouses and former spouses can at present. This amendment matches in identical terms the provisions in Clause 80 dealing with the relevant legislation applying in England and Wales.

Amendments Nos. 61BK on page 45 and 63E on page 155 deal with housing and tenancy succession in Northern Ireland and amend various pieces of existing legislation. Amendment No. 61BK is a new clause introducing the schedule moved by Amendment No. 63E. The Committee will see that Schedule 8, dealing with these matters in England and Wales, is significantly bigger than its corresponding schedule in Amendment No. 63E. I should like to assure the Committee that this does not imply that civil partners would have any fewer rights to succeed to tenancies in Northern Ireland than their counterparts in England and Wales—here I point out a significant difference to the noble Baroness, Lady O'Cathain—merely that the different organisation of the provision of social housing in Northern Ireland entails the need for fewer pieces of legislation. There are also specific pieces of legislation amended in Schedule 8 for England and Wales which have no direct counterparts in Northern Ireland, due largely to the different history of property ownership and its legislative regulation. That is one of the areas where there is a big difference.

Finally, Amendments Nos. 61BL on page 45 and 63F on page 159 deal with the protection to be afforded to civil partners under relevant Northern Ireland legislation dealing with occupation of the family home and protection from domestic violence. Amendment No. 61BL is the new clause introducing the schedule in Amendment No. 63F.

I point out one significant difference between the legislation in England and Wales and Northern Ireland. As yet, legislation on family homes and domestic violence in Northern Ireland does not cater for same-sex cohabitees, as does the legislation here. The Government hope that that will be remedied within this Session. I beg to move.

On Question, amendment agreed to.

Baroness Amos moved Amendments Nos. 61BK to 61BM: After Clause 149, insert the following new clause—

"HOUSING AND TENANCIES Schedule (Housing and tenancies: Northern Ireland) amends certain enactments relating to housing and tenancies. After Clause 149, insert the following new clause—

"FAMILY HOMES AND DOMESTIC VIOLENCE Schedule (Family homes and domestic violence) amends the Family Homes and Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6)) and related enactments so that they apply in relation to civil partnerships as they apply in relation to marriages. After Clause 149, insert the following new clause—

"FATAL ACCIDENTS CLAIMS

(1) Amend the Fatal Accidents (Northern Ireland) Order 1977 (S.I. 1977/1251 (N.I. 18)) as follows.

(2) In Article 2(2) (meaning of "dependant"), after subparagraph (a) insert— (aa) the civil partner or former civil partner of the deceased;".

(3) After sub-paragraph (f) of Article 2(2) insert— (fa) any person (not being a child of the deceased) who, in the case of any civil partnership in which the deceased was at any time a civil partner, was treated by the deceased as a child of the family in relation to that civil partnership;".

(4) After Article 2(2A) insert— (2B) The reference to the former civil partner of the deceased in paragraph (2)(aa) includes a reference to a person whose civil partnership with the deceased has been annulled as well as a person whose civil partnership with the deceased has been dissolved.

(5) In Article 2(3)(b), for "by affinity" substitute "by marriage or civil partnership".

(6) In Article 3A(2) (persons for whose benefit claim for bereavement damages may be made)—

1. (a) in sub-paragraph (a), after "wife or husband" insert "or civil partner", and
GC 253
2. (b) in sub-paragraph (b), after "was never married" insert "or a civil partner"."

On Question, amendments agreed to.

Clause 150 [Registration at British consulates etc.]:

Baroness Amos moved Amendment No. 61 BN: Page 73, line 40, leave out "and 165(1)(c)(i)" and insert ", 162(c), 164(ab), 165(1)(c)(i) and (3)(c)(i), (Proceedings for dissolution, separation or nullity order)(1)(c)(i) and (2)(c)(i), (Proceedings for presumption of death order)(c) and (Applications for declarations as to validity etc.)(b) and section 1(3)(c)(i) of the Presumption of Death (Scotland) Act 1977 (c. 27)

The noble Baroness said: This group of amendments serves two purposes. First, Amendments Nos. 65A and 65B on page 51, Amendments Nos. 65L and 65M on pages 56 and 57, Amendments Nos. 65N, 65P and 65Q on page 58 and Amendments Nos. 65S and 65T on page 65 continue the package of Northern Ireland provisions which we are adding to the Bill.

While the main provisions for Northern Ireland appear in Part 4, additional provisions are needed in Chapter 3 of Part 5 to set out the jurisdiction of the courts in Northern Ireland. At present, the chapter only covers courts in England, Wales and Scotland. We are therefore making minor changes to Clause 159 to ensure that the regulations under that clause can apply in Northern Ireland, subject to the appropriate procedures.

In addition, new clauses are inserted after Clause 157 to provide for the jurisdiction of courts in Northern Ireland, mirroring Clauses 160 to 164 in England and Wales. There is also a small technical change to Clause 178, consequential on the fees provision inserted by an earlier government amendment to Part 4. Clause 178, as amended, will ensure that this fees provision works correctly in relation to things done by, or on behalf of, the Registrar General for Northern Ireland, under an Order in Council made under Part 5.

Secondly, Amendments Nos. 65C to 65K, which are all on pages 53 to 55, and Amendment No. 96A ensure that the courts in all parts of the UK have the jurisdiction they need to hear applications concerning civil partnerships registered in that part of the UK for dissolution, nullity or separation orders, presumption of death orders and declarations as to validity, even where neither party is domiciled in the United Kingdom.

The Bill as introduced provided this jurisdiction only in the case of applications for a dissolution or separation order, and in England and Wales in nullity cases. But it is important that civil partners who registered in the UK can gain access to the courts in that part of the UK for all these applications, provided the court considers it in the interests of justice to assume jurisdiction. The new provisions being inserted for Northern Ireland ensure a similar result there.

The provision of a residual jurisdiction for UK courts to hear cases concerning civil partnerships registered in the UK is important because civil partners who register in the UK may subsequently move to a country or territory where civil partnerships are not recognised. As a result, the local courts would have no power to make decisions affecting the civil partnership. If the couple were no longer domiciled in the UK, the UK courts would have no jurisdiction. The couple would be left with nowhere they could go to obtain a valid dissolution or decision on the validity of their civil partnership.

The approach we have taken ensures that cases are not brought back to the UK courts without good reason. The inclusion of an "interests of justice" test allows the UK courts to consider whether they provide the most convenient forum or whether, on the contrary, the matter can appropriately be decided in another legal jurisdiction.

If the couple are domiciled in a country where the local courts have full power to decide the matter, it is unlikely that the UK courts would be prepared to assume jurisdiction and hear the case. These provisions give the courts a residual jurisdiction to hear the matter where they consider it to be in the interests of justice to do so.

The consequential amendments to Clauses 150 and 151 ensure that, for the purposes of this residual jurisdiction, a civil partnership formed outside the UK under an Order in Council will be treated as if the parties had registered as civil partners in the part of the UK determined in accordance with the Order in Council. I beg to move.

Lord Lester of Herne Hill

These provisions seem to us to be entirely fit for the purpose for which they have been introduced. They deal with difficult and important issues of primary international law, about foreign recognition and jurisdiction and so on, in a way that mirrors what happens elsewhere in our family law jurisdictions. May I just ask for confirmation that, in relation both to the Northern Ireland judiciary and legal profession and also to the other senior judiciaries and legal professions of Scotland, England and Wales, there was consultation about these provisions before they were introduced? If not, what is the position?

Baroness Amos

My understanding is that there has not been consultation on these matters. However, we did not anticipate any difficulties with the judiciary with respect to these matters.

Lord Lester of Herne Hill

I am grateful. I am not suggesting that there would be any difficulty; I just wondered whether there had been. I cannot see any particular reason why there needs to be, since this is essentially simply and coherently adding to the jurisdiction that already exists.

On Question, amendment agreed to.

Clause 150, as amended, agreed to.

Clause 151 [Registration by armed forces personnel]:

Baroness Amos moved Amendment No. 61 BP: Page 74, line 29, leave out "and 165(1)(c)(i)" and insert ", 162(c), 164(ab), 165(1)(c)(i) and (3)(c)(i), (Proceedings for dissolution, separation or nullity order)(1)(c)(i) and (2)(c)(i), (Proceedings for presumption of death order)(c) and (Applications for declarations as to validity etc.)(b) and section 1(3)(c)(i) of the Presumption of Death (Scotland) Act 1977 (c. 27)

On Question, amendment agreed to.

Clause 151, as amended, agreed to.

Clause 152 [Meaning of "overseas relationship"]:

[Amendment No. 62 not moved.]

On Question, Whether Clause 152 shall stand part of the Bill?

Lord Lester of Herne Hill

Clause 152—which I hope we are about to decide should stand part of the Bill — is obviously a particularly important one at the current time when so much is on the move in other countries. I think that it is important to say that today is an historic day, certainly in Massachusetts where gay and lesbian marriages are being celebrated. Those who live in the Commonwealth of Massachusetts and elsewhere around the world will be particularly interested in this clause and other related clauses. This provision is plainly a very important element as those people need to know where they will stand if they come and settle, for example, in this country. So this provision is most welcome. I am very glad that no amendment is being moved to the clause and that there seems to be no opposition to it.

Clause 152 agreed to.

4.15 p.m.

Clause 153 [Specified relationships]:

Lord Henley moved Amendment No. 63: Page 75, line 12, leave out subsections (2) to (6).

The noble Lord said: This is a brief probing amendment to Clause 153, proposing to leave out subsections (2) to (6). We tabled it simply to ask why the Government are treating amendments to specified relationships in different ways.

Clause 153 defines "specified relationships" for overseas relations that are to be treated as civil partners. The clause as currently drafted would allow the Secretary of State to change Schedule 14, the schedule setting out the meaning of overseas relationships, for the purposes of this part of the Bill. I believe that it is a quite large power to allow the Secretary of State to change that by diktat. It is what I think has always been defined as a Henry VIII power in that he is being given power to amend legislation. While, amending the description of a relationship, or … omitting a relationship"— as provided in subsection (5)(a) and (b)—is quite rightly subject, with this Henry VIII power, to the affirmative procedure, adding a relationship, as in subsection (2)(a), is not. I should be very interested to know whether the Government can explain why that is not to be done by the affirmative procedure whereas the others are.

I think that we are all well aware of the vast numbers of negative statutory instruments that pass weekly and monthly through the House. I am also sure that most noble Lords will accept that we possibly do not give them all the scrutiny they necessarily deserve, unless we happen to have the joy of sitting on the Joint Committee on Statutory Instruments.

It is very important that when we come to a matter as important as a relationship under Schedule 14, it should not be done by a negative instrument. It would be more appropriate for it to be done by an affirmative procedure. I should be very interested to know the Government's reasoning why some of these bits of Clause 153 are dealt with by an affirmative order and some by a negative one. I beg to move.

Lord Lester of Herne Hill

For the reasons I had begun to outline, it is obviously very important that people living overseas in established relationships should know how those relationships are to be recognised or not recognised within the United Kingdom. I think that I have already raised the point—in correspondence, and perhaps even in a Question for Written Answer—that Schedule 14 as it stands, on page 207 of the Bill, is much more restrictive in the countries and the territories that it specifies than was the provision outlined originally in the White Paper. As I understand the position, that is because the Government wished to have necessary flexibility as they could look at the changing laws and practices in those countries and decide which of them would come within Schedule 14 and which would not.

We can take the Commonwealth of Massachusetts as an example to serve for all since today happens to be the day when the new process begins; men and women are marrying under the present law in Massachusetts. It is possible that an attempt will be made to change it—if the constitution of Massachusetts is amended in two years' time—to turn them into civil partners, as I understand it, rather than into married persons. That seems to be one possible outcome of a political controversy that is happening in Massachusetts.

If John and James, or Mary and Elizabeth, "marry" under the prevailing law of the Commonwealth of Massachusetts, they will need to know what the consequence of that will be if they come to settle in, for example, this country. While they are living in the United States, at the moment, because of something called the Defence of Marriage Act—a federal Act — they will have virtually no rights in most other states or under federal law. They will be gravely disadvantaged, and even if they are civil partners they will be left with shrunken rights. So for those European and Commonwealth countries that are taking the step that we are taking, the recognition under this provision of the Bill and Schedule 14 is of enormous consequence. Obviously, it requires clarity—reasonable legal certainty—because they may decide to change their positions as a result of their advice about what our law now provides.

As it is now drafted, Clause 153 is not objectionable. I note that the consent of the Scottish Ministers and the Department of Finance and Personnel in Northern Ireland must be obtained before any order is made that shows proper deference to the devolved administrations. I do not think that that needs affirmative resolution. Indeed, that would be detrimental because it is important that civil partners across the world should be protected sooner rather than later once the Bill comes into force.

Frankly, I am not sure of the competence of even us as parliamentarians to be able to judge questions of foreign law that have to be looked into in exercising that power. I hope that I do not offend anyone in suggesting that that may be the case. However, I should be grateful for greater clarity about how the powers are to be exercised and by what criteria that would be decided. To take my Massachusetts example, when that kind of evolving situation is occurring, at what point, in what manner and by what procedure will Ministers take a decision to include or exclude those within that jurisdiction under Section 153 as a specified relationship? It may be that a full answer again cannot be given today, but the fullest possible answer should be given at some point while the Bill is in this House.

Baroness Crawley

I hope that the following explanation will help to answer the questions posed by the noble Lord, Lord Henley. I shall turn to the questions posed by the noble Lord, Lord Lester, in a moment.

The clause introduces Schedule 14, which lists the specified relationships that can be treated as civil partnerships if the other requirements of this chapter are met. Schedule 14 ensures transparency for the users of the legislation by providing certainty for individual couples, government departments and private-sector bodies, such as pension groups and employers, about whether a particular kind of overseas relationship may in principle be treated as a civil partnership. The clause also gives the Secretary of State power to amend Schedule 14—referred to by the noble Lord, Lord Henley—by secondary legislation, which this amendment seeks to remove.

In order to ensure that the list of specified relationships keeps pace with the likely introduction of new kinds of same-sex partnerships or marriage in other countries in future, it is necessary to include such a power. The law in this area is developing quickly. It would not be practicable to use primary legislation for each amendment that may be needed to the schedule. The removal of a power to add to or to delete from the list risks the creation of legislation that is relevant for only a short period of time. We clearly need the flexibility in the Bill to take account of future changes around the world. As I said earlier, those changes are happening very rapidly.

We recognise that an order made using this power, which would have the effect of removing or amending one of the specified relationships contained in the schedule, should be subject to the affirmative resolution procedure, and the clause provides accordingly. That is because such an order might involve a reduction in the scope of recognition of overseas relationships and might involve amending a provision approved by Parliament during the passage of the Bill. It is anticipated that the power would rarely be exercised in this way, but it is necessary in case a partnership scheme in another country were repealed or amended or a court judgment fundamentally changed the nature of an overseas relationship in a way which made its treatment as a civil partnership in the UK inappropriate.

However, it is not considered appropriate to require affirmative resolution for any exercise of the power that merely adds new foreign relationships to the list. Such additions would not raise any new issue of principle for Parliament to consider, but would simply be applying the approach taken by the Bill to new forms of relationship. The content of Schedule 14 already gives a good indication of the kinds of relationships that might be added in future. These are all relationships which are considered to meet the general conditions laid out in Clause 154, in that they all involve exclusive same-sex relationships that are registered, are of indeterminate duration and result in the parties being treated as a couple or as married. Requiring a debate on every such addition or amendment would be unduly onerous. Accordingly, an order of this kind would be subject to the negative resolution procedure.

Since recognition of foreign relationships is a devolved matter, I must add that the clause requires that any orders made must have the consent of the Scottish Ministers and the Department of Finance and Personnel in Northern Ireland. I hope that, with that explanation, the noble Lord will withdraw his amendment.

I will take a moment to answer one or two of the points raised by the noble Lord, Lord Lester. He asked why Schedule 14 does not include all the relationships outlined in the consultation document. Tables 1 and 2 of the consultation document Civil Partnership provided information about a wide range of partnership schemes in other countries for comparative purposes. We do not feel that it is appropriate for all these relationships to be listed in Schedule 14 of the Bill. In some cases this is because the overseas relationship in question does not meet one or more of the general conditions in Clause 154 that I spoke about; for example, because it does not involve registration of the partnership.

In other cases it was decided not to include a relationship in Schedule 14 until further research had been completed. Officials continue to gather information on relationships in other countries and territories in order to determine whether they should be added to the list contained in Schedule 14. There will be a continual need to update this list as new kinds of relationships come into effect in other countries. Clause 153 of the Bill allows for the Schedule to be amended by subordinate legislation. The noble Lord, Lord Lester, referred to the Massachusetts case. As noble Lords will know, Massachusetts was not originally included in Schedule 14 because the relevant ruling of the Massachusetts Supreme Court in the Goodridge case allowed the legislature 180 days to implement the ruling opening marriage to same-sex couples.

Although it is the case that from today same-sex couples should be able to marry in Massachusetts, we know that legislators in the state are continuing, as the noble Lord, Lord Lester, has said, to attempt to overturn the court's decision by seeking to amend the state constitution to outlaw gay marriage. But we will obviously continue to await further developments on that particular state.

Finally, the noble Lord, Lord Lester, asked what criteria the Government would apply in deciding what to add to the list. The contents of Schedule 14 already provide a good indication of the kinds of relationships that might be added in future. These are all relationships that meet those general conditions. They are the key to the criteria—the general conditions set out in Clause 154—in that they all involve exclusive same-sex relationships that are registered, are of indeterminate duration and result in the parties being treated as a couple or as married. I hope that has answered the questions.

4.30 p.m.

Lord Henley

I am grateful to the noble Baroness for that reply. I wish to make clear that I was not demanding primary legislation to make amendments to Schedule 14. That would be ridiculous. What I was intrigued by was why subsection (2)(a) would be dealt with by negative order and paragraphs (b) and (c) by affirmative orders.

Having said that I am not demanding primary legislation, I am also not pushing for affirmative regulations where they are inappropriate. Particularly those of us who have been Ministers know that Ministers often concede an affirmative order where originally a negative order has been proposed, because it often makes a nice little concession during the course of the passage of a Bill. As a result we often have slightly too many affirmative orders coming before the House. For example, a few years ago I remember a whole string of "paralytic shellfish" orders. I am sure that they were all the result of some hapless Minister—it cannot have been me, because I was never in that department—conceding some affirmative orders, just to make a problem go away. I am not seeking affirmative regulations just for the sake of it, but that procedure has been offered for subsections (2)(b) and (c) and not for paragraph (a).

Obviously, it cannot be purely a question of the time needed to deal with these matters and the speed with which they can be processed, because, as the Minister made clear in Clause 153(3), consultations will take place with the Scotland Office and the Department of Finance and Personnel, which I take to relate to Northern Ireland. Therefore, matters cannot move ahead that quickly. Those consultations would take place, whether the matter relates to paragraphs (a), (b) or (c).

Is it correct that the reason why it is proposed to leave paragraph (a) subject to negative resolution and paragraphs (b) and (c) affirmative, is that paragraph (a) simply relates to adding another country? So, if one looks at Schedule 14, at the bottom of that list, one could at some point add "United States of America: Massachusetts"—although I am not clear exactly when that state would need to be added as we know that something has happened today, but, given the comments of the noble Lord, Lord Lester, further matters have to be dealt with by the Massachusetts legislature. One could go on adding countries to the list, as and when appropriate, simply by means of negative orders that would have to lie before the House for a number of days. However, paragraphs (b) and (c), which amend a description or omit a relationship, would still need affirmative regulations. I hope that the Minister can deal with that—I might then be in a position to withdraw the amendment.

Lord Lester of Herne Hill

Before the noble Lord seeks to withdraw his amendment I should like to raise one or two points. First, I am satisfied by the Minister's explanation of the reasons for differentiating between the affirmative procedure and the negative procedure. That seems to be a coherent distinction.

I wonder whether I could ask the Minister to take the Massachusetts example to serve for all, because I am troubled by a kind of analogy. Some years ago, I introduced a Bill into the House because, under the Jewish religion, there was a curiosity about Orthodox marriages and Orthodox divorces that led to the so-called "chained wives" problem. According to one interpretation of the Book of Deuteronomy, unless there was writing by both, the unfortunate Jewish wife could not obtain a divorce. Luckily, the noble and learned Lord, Lord Mackay of Clashfern, and then the present Government came to the rescue, and we managed to free them. That was an example of a limping marriage. Here I am worried about an example of a limping non-recognition situation arising. Let me explain exactly what I mean.

Anyone of the same sex who "marries" today in Massachusetts has a valid marriage under Massachusetts law unless and until that is altered by the Massachusetts legislature by amendment to the constitution. As I understand it, that amendment cannot take place anyway, even if there were enough support for it, for two years. Let us assume that this Bill is enacted and brought into force in less than two years from now, which I would anticipate is the position. Let us assume that a couple have been "married" validly under the law of Massachusetts at the time this Bill comes into force but that the Massachusetts legislature is taking steps which may turn it into a civil partnership, or lawyers are brought in and horrible constitutional challenges are made on one side or the other which could go on for years and years. Meanwhile, the couple who have "married" want to come to this country and want to know whether they will be recognised if and when they come.

I take it that the fact that "marrying" would not be a disqualification under this provision or the schedule. In other words, I take it that there will not be a problem about labelling and the fact that it is called marriage, not a civil partnership or civil union. That seems to follow from what the Minister has said. It cannot make any difference to the substance of the matter. That is quite important.

Secondly, I hope that there could be reassurance that when ministerial discretion is exercised by subordinate legislation to add, let us say, the Massachusetts relationship, Ministers will not be deterred by the prospect of some future change in Massachusetts law that attempts to be retrospective, or some future litigation which could, hypothetically, last for 10 years. Meanwhile, this ageing couple—gay or lesbian partners—are left in limbo while Ministers are deferring a decision. That is what I meant when I said that the general approach to the matter is important.

I quite agree that one has to have this power, and it is a beneficent power. However, I suggest that it needs to be used and not deferred indefinitely in such a situation, as a matter of simple humanity for the couple. It may be that that long question cannot be answered today, but I think that it is very important and will need to be answered during the passage of the Bill.

Lord Alli

The Minister seemed to suggest to the noble Lord, Lord Henley, that with regard to the Massachusetts case, whether or not they were added to the schedule was dependent on an assessment by Ministers about whether those marriages would remain legal after the action taken by the legislative body. I agree with the noble Lord, Lord Lester, that that would be an unfortunate consequence; if such marriages are currently legal, I assume that we would recognise them as such. If they were deemed illegal or if the status were changed, we would then re-examine them at the point at which the status was changed as opposed to making an assessment of the outcome of the deliberations of a court or another sovereign body.

Baroness Crawley

I shall first deal with the questions put by the noble Lord, Lord Lester. If Massachusetts is not listed right now, for whatever reason—it could well be because of the complexity of the way in which the law is being studied by the legislature in that state and because of the outcome of any federal moves—that does not necessarily prevent a couple being recognised because one then looks at the general conditions and compares them with the Massachusetts situation. Not being in Schedule 14 does not prevent a couple in a recognised partnership seeking to have their partnership recognised under the general conditions of Clause 154.

Lord Alli

I am confused because the noble Baroness qualified the first part of her answer by saying "for whatever reason" and giving as examples where there may be legal difficulties or where legal actions are taking place. Where my confusion lies is that I assume that if something is legal, as gay marriage is in Massachusetts from today, until it becomes illegal it should be treated as something that meets the criteria and should go in the list. I would assume that if it is challenged one would have to wait until the outcome of the challenge before Ministers could reassess, rather than forecasting the result of a challenge.

Lord Henley

Before the noble Baroness answers that question, I will add to the question that the noble Lord, Lord Alli, has been asking as I have got rather confused. I will use Massachusetts as an example, as it is in the news. If Ministers chose to add Massachusetts to the list, they will do that quite simply by the negative procedure. But if, in due course, Massachusetts is taken out of the list by the state itself, do Ministers then have to come back to Parliament and use the affirmative procedure to omit under subsection 2(c)?

Baroness Crawley

Yes.

Lord Lester of Herne Hill

I think that the Minister was telling us that it is not crucial to fall within the specified relationship because of the general conditions. But I could be completely wrong. Clause 152 states: an overseas relationship is a relationship which … (a) is either a specified relationship or a relationship which meets the general conditions", so I agree that it can be one or the other. But then it says: (b) is registered (whether before or after the passing of this Act) in a country or territory outside the United Kingdom, by two people … who under the relevant law are of the same sex at the time when they do so, and … neither of whom is already a civil partner or lawfully married". As I read that, one is eligible either if one falls with a country or territory that has been specified, or if one falls within the general conditions where the country has not been specified but one has to have been registered in a country or territory outside the United Kingdom at the relevant time. So the real question, to take the Massachusetts example, is whether the Government understand the reference in Clause 152(1)(b) to: is registered … in a country or territory outside the United Kingdom", as applying to a gay or lesbian couple who register their marriage today in Massachusetts. If the answer to that is yes and that provided that they satisfy the general conditions they will be recognised, it matters a little less whether a country is in the list as it simply concerns a matter of simplicity. I would be very grateful for clarity on that.

Baroness Crawley

As we are talking about events that have happened today, obviously we are moving along cautiously. If the partnership is legal in Massachusetts, it is recognised as a civil partnership here if it meets the general conditions in Clause 154. I hope that that makes it clearer.

4.45 p.m.

Lord Lester of Herne Hill

So it would not matter if President Bush—if he is re-elected—seeks an amendment to the federal constitution that would retrospectively seek to avoid all of that, and so forth?

Baroness Crawley

I understand that that is correct.

Lord Cameron of Lochbroom

Perhaps that could be clarified. I am slightly disturbed by the terms of Clause 154; it states that the general conditions are that, "under the relevant law", all the particulars that follow have to be part of the law. It may be that in a particular jurisdiction, the general conditions are contained within the law but extend further. Can one make an exception by simply saying that the particular relationship would meet the general conditions? Or is the Minister saying that the relevant law has to contain all the conditions under Clause 154?

Clause 152 seems to he the sense of how this is dealt with. It is either a specified relationship as Parliament has said, which we recognise, or it is a relevant law in which the relationship that is to be accorded the right to be registered in that jurisdiction meets the general conditions as set out in Clause 154.

I appreciate what the noble Lord, Lord Lester, said. He is referring to individual partners who may, within their own particular conditions, meet what is set out in Clause 154. But that does not appear to be enough as regards Clause 152. It requires that the registering jurisdiction has to be law, which simply complies with Clause 154. That is how I read it, but I may be wrong. I should be grateful if the Minister could express a view on that.

Baroness Crawley

I have advice that the noble Lord's interpretation is correct. No doubt, we shall all read Hansard tomorrow.

Lord Lester of Herne Hill

In that case, I do not know what that really means in practice. It seems that it is more complicated. When the Bill becomes law, if "the relevant law", which is Massachusetts law, recognises that the couple have the capacity to enter into the relationship and at that date meet all the necessary requirements to ensure the formal validity of the relationship, on referring back to Clause 152(1 )(b)(i)—which states that two people, under the relevant law are of the same sex at the time when they do so, and (ii) neither of whom is already a civil partner or lawfully married— the reference to "relevant law" does not seem to add any significant problem. The answers already given by the Minister will continue to apply. Any future change in the relevant law of a retrospective kind, whether by legislation or judicial interpretation, will not defeat the effect of the registration of the "marriage". I hope that that also meets with the agreement of officials.

Baroness Crawley

They are looking slightly dazed. Perhaps I could reply to the noble Lord in writing to clear up that point.

The noble Lord, Lord Henley, asked why we should not use the affirmative procedure in all cases. As a former member of the usual channels, the noble Lord will know that the business of the House would become extremely jammed and clogged up if, as we expect, we would need to use this provision on many occasions as the law develops rapidly around the world. We consider that it would be unduly onerous on the House to have to use that procedure in each case. For the noble Lord's information I add that the Delegated Powers and Regulatory Reform Committee did not raise any concerns about the level of parliamentary approval proposed.

Lord Henley

I am grateful to the noble Baroness for those remarks. I am also grateful to the noble and learned Lord, Lord Cameron of Lochbroom, for his intervention which seemed not to bring the appropriate clarity but to bring even greater confusion, particularly to the noble Lord, Lord Lester. I start by asking the noble Baroness whether she will copy both myself and the noble and learned Lord into the correspondence she intends to have with the noble Lord, Lord Lester, so that we can achieve the same clarity as she is offering to the noble Lord.

As I said earlier, I am not in the business of trying to get affirmative regulations for the sake of affirmative regulations. The noble Baroness said that I was a former member of the usual channels. Even before I was a member of the usual channels, I believe that I was warned by members of the usual channels, particularly by the noble Lord, Lord Denham, who was a member of the usual channels for many years, that possibly one of the worst arguments ever to put before the opposition in terms of trying to persuade them not to have affirmative regulations was to suggest that it would clog up the business. I suggest that if I return to the matter at a later stage the noble Baroness will come up with a slightly better argument than merely clogging up the business.

I myself said earlier on that I did not want to clog up the business and that was why I mentioned paralytic shellfish orders. I hope that the noble Baroness will give slightly greater thought to the matter, but with that for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 153 agreed to.

Baroness Crawley moved Amendments Nos. 63A to 63F: Before Schedule 14, insert the following new schedule—

WILLS, ADMINISTRATION OF ESTATES AND FAMILY PROVISION: NORTHERN IRELAND