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Civil Partnership (Scotland) Act 2020 and Marriage and Civil Partnership (Scotland) Act 2014 (Consequential Modifications) Order 2022

Volume 817: debated on Tuesday 14 December 2021

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Civil Partnership (Scotland) Act 2020 and Marriage and Civil Partnership (Scotland) Act 2014 (Consequential Modifications) Order 2022.

My Lords, this draft order was laid before the House on 16 November 2021. I am pleased to have the opportunity this afternoon to debate these consequential amendments, which support the Scottish Government’s decision to introduce opposite-sex civil partnerships to Scotland.

Civil partnerships were first introduced across the UK through the Civil Partnerships Act 2004, with the first civil partnership taking place in December 2005. Opposite-sex civil partnerships were then introduced in England and Wales in 2019, and in Northern Ireland in 2020, following a ruling by the Supreme Court. The Scottish Government passed the Civil Partnership (Scotland) Act 2020, which enabled opposite-sex civil partnerships to become available in Scotland in 2021. Consequently, 22 opposite-sex civil partnerships were registered in Scotland in June 2021. From July to September 2021, there were a further 216 opposite-sex civil partnerships in Scotland, making a total so far of 238.

The order makes a range of technical changes to reserved legislation that are required in consequence of the Civil Partnership (Scotland) Act 2020, which I will refer to henceforth as the 2020 Act. It is important that we support the Scottish Government to provide equality of opportunity as they introduce these changes in Scotland. Later in my remarks, I will outline the legislative changes that we seek to make in this order but, first, I want to offer a real-world example of what these changes will mean in Scotland. The order is complex, but one example is the change made to the Human Fertilisation and Embryology Act 2008 on assisted conception. The amendments will ensure that, when it comes to establishing the parentage of a child in assisted conception cases, couples in a civil partnership are treated in the same way as married couples.

Before we look at the legislative detail of this order, it is worth spending a moment explaining Scotland Act orders to everyone here today; I hope that the Committee will forgive me because I outlined this in the previous debate, when noble Lords were very patient in listening to me. This type of statutory instrument is a form of secondary legislation made under the Scotland Act 1998, which devolved significant powers to Scotland and formed the basis of the devolution settlement that has been in operation for more than 20 years. The order before us today is a Section 104 order, a type of order that allows for necessary or expedient legislative provision in consequence of any provision made by or under any Act of the Scottish Parliament. It can also be made in consequence of secondary legislation made by Scottish Ministers. In this case, provision is required in consequence of the aforementioned 2020 Act.

Turning to the purpose of this order, I shall highlight some of the key legislative changes made here. The main changes reflect that civil partnership in Scotland no longer includes a same-sex relationship; it now includes an opposite-sex relationship too. Therefore, amendments are made to the Equality Act 2010, for example, further to protect persons such as religious and belief celebrants who do not wish to take part in the registration of mixed sex-civil partnerships. These amendments to the 2010 Act, which is generally a reserved matter for Westminster, reflect that, in Scotland, religious and belief celebrants can register civil partnerships in much the same way as they can solemnise marriage.

A number of amendments are also made to the Gender Recognition Act 2004. The changes made reflect that, now opposite-sex civil partnership is recognised, it is possible for civil partners to apply for gender recognition and stay in the civil partnership. Changes are made to the rules governing applications for a gender recognition certificate by some persons who are party to a civil partnership registered in Scotland but resident elsewhere in the UK. Provision is also made to make it clear that, for the purposes of the law of England and Wales, and Northern Ireland, a civil partnership registered in Scotland continues after either party to it has obtained a full gender recognition certificate.

As I have mentioned already, the Human Fertilisation and Embryology Act 2008 is also amended to ensure that children of marriages and children of civil partnerships are treated the same in cases of assisted reproduction and that the legal parenthood of these children is therefore clear. The order also makes changes to a range of legislation with regards to the registration overseas, through UK consular officials and the Armed Forces, of marriages and civil partnerships.

In summary, this order supports the establishment of opposite-sex civil partnerships in Scotland. The instrument and the policy behind it have the support of Scotland’s two Governments. I commend the order to the Committee.

My Lords, I very much welcome this order for a particular reason, if I can give a little bit of history. As the noble Viscount will be aware, I sat as a Lord of Appeal in the days when the House of Lords was the final Court of Appeal. In one case, which is very firmly in my memory, a couple appeared before us who were unable to marry. As far as one could tell they looked a perfectly normal, very respectable and charming man and woman, but the problem was that the man had been born as a woman. In those days, we did not have all the language to express that, as we have nowadays. It was a sex change problem. The problem was that the Marriage Act made it absolutely clear that whether one was a man or woman for the purposes of marriage was dependent on the sex at birth. We were unable to give them the authority to marry, but we drew the Government’s attention to the fact that there was a human rights element to this—a right to family life and so on—that they were being denied by the wording of the Marriage Act.

I must say that the Government acted commendably well in response to what we said. It led to the Government bringing in the civil partnership legislation, which was to deal with the problem of people of the same sex at birth wanting to marry. Certainly, as Law Lords, at the time we never contemplated that marriage would have to be replaced by a civil partnership between opposite sexes, but the Government have moved on, and there is obviously public demand for this now—people want to use civil partnerships rather than go through a formal marriage. I understand that. It makes obvious sense to do what the measure does to make up the position so that there is an equality of treatment through all the legislation.

There is one common law right that I do not think this measure deals with, but there is a way round it. If one dies intestate there is a legal right that children have, called legitim. At the moment, children of civil partnerships do not have that right because in common law it is available only to children of particular individuals who marry. Civil partnerships are not recognised in the way the legislation is designed for common law, because it is for children of a regular marriage.

There is not a problem, because those who wish to take advantage of legal rights can cure the problem by the adoption process, because adoption has allowed for it, but I wonder whether the noble Viscount and his advisers might take away consideration as to how to deal with legitim. At the moment, as I understand it, you have to go through the adoption process to give the children of a civil partnership the right to legitim. I might be wrong about this. As it happens, I have been looking at a soon to be published textbook on this subject that indicates that children of a civil partnership do not have the right to legitim, which one would want them to have. Because it is common law it is not embraced in the legislation, but it might be helpful if something was done about that to address what is quite a real problem. This is a right that attaches to every estate; it is a legal right given by common law. You cannot disinherit children in Scotland, because they have a right to a part of the estate. We would want to be sure that that survived into a civil partnership.

The only other point I want to ask the Minister about is whether there is any statistical information on how widely this provision is being used for its original purpose, between same-sex couples, and/or now between couples of opposite sexes. I rather think it has overtaken the same-sex situation. Although that solution is available—it is the one solution that same-sex couples have—it has rather overtaken it. But that would be quite interesting, if there are statistics readily to hand; if there are not, do not bother about it—but it would be interesting to know how widely it has been taken up between those two branches of couples.

That all having been said, I very much welcome this legislation. It makes obvious good sense and, as far as I can see, has done all the right things where statutory law is concerned, leaving aside the common-law problem to which I have drawn attention.

My Lords, I am struggling in a sense with this Scottish stuff. I suppose it shows that I do not really understand the devolution settlement. My simple idea is that the settlement says, “Scotland can do what Scotland wants to do, except where powers are reserved to the United Kingdom as a whole”. It seems that what we have in this order means that, to achieve that, reserved law sometimes interferes at the edges. If one is respecting the devolution settlement, one should accede to the requests of the Scottish Government to change this stuff around the edge to meet what Scotland wants to do. Once again, I do not think it is really our business whether what Scotland wants to do is a good or bad idea.

I was not helped on this order because I did not have the training, mind or history of the noble and learned Lord, Lord Hope. I always enjoy him presenting his ideas on these occasions. Unfortunately, I did not really grasp the SI. I read it—no, let us be realistic. I read the Explanatory Memorandum several times, but I just could not keep up with the interrelationships.

Another thing I am sensitive about in the Scotland situation is that to blunder into such sensitive areas and make any comments on the substance of what the instrument is trying to achieve is probably unwise because one could, at the end of the day, create offence. Accordingly, I shall refrain from commenting on the substance. I have only one question: the Explanatory Memorandum says at its beginning that it is created by the Scotland Office, but it reads as if it is a consensus document between the Scotland Office and the Scottish Government. Who fundamentally created this statutory instrument? That is: whose ideas were they, and it is in fact a consensus document between the Scottish and UK Governments? If it is, I can see no way in which the SI adversely affects the UK-wide legislation, which I believe is the limit of our concerns. Accordingly, we support this statutory instrument.

Again, I thank the noble Lord, Lord Tunnicliffe, and the noble and learned Lord, Lord Hope, for their support for this order. I also welcome the noble Lord, Lord Tunnicliffe, as I should have done before, into Scottish matters. I am sure he is being extremely humble and knows a lot more than he is giving out. As I come originally from north of the border and know that the noble and learned Lord, Lord Hope, does so too, we are reasonably well versed in this. However, the noble Lord is very welcome indeed.

I also say at the outset that I was very interested to hear the remarks of the noble and learned Lord. I am well aware of his experience, and it was very interesting to hear his real-life example. He spoke movingly about how, in that example, the issue revolved around and focused on how children are treated and cared for. He raised a question about children’s rights in this respect. I shall obviously have to write to him about the specific issue he raised, which is a legal issue, and I will copy in the noble Lord, Lord Tunnicliffe, rather than trying to cobble something together this afternoon.

I am not sure that I have all the statistics that the noble and learned Lord asked for. I have the statistics for the number of people in civil partnerships or marriages going through gender recognition, and I think that might have been part of what he was asking for. It is too soon to produce statistics which are available on the number of people in civil partnerships who obtain gender recognition. However, in 2020-21, the gender recognition panel granted 427 gender recognition certificates. Of those, 33 were granted to married people and 394 to single people. The gender recognition panel does not produce separate figures on the number of applications for gender recognition from Scotland. However, we estimate—and it is an estimate —that there are about 25 applications a year from Scotland. As I said earlier, it is too early to give definite figures, but that might give an indication.

I come to some points raised by the noble Lord, Lord Tunnicliffe, on the interrelationship between the UK Government and the Scottish Government. I mentioned earlier that the Scottish Government and the UK Government came together to produce this. It is a consensus document; I can definitely confirm that. I do not know who wrote it, but I think I am right to say that it was the UK Government. It is our job to take this through, but it is with the consensus of the Scottish Government. On the nuance of that, I will write in the same letter to confirm precisely how it came together. I can say that confirmation that the two Governments are working well together is clearly there.

I think I have answered the questions as far as I am able. In closing, I hope that we can now take this forward, and I therefore beg to move.

Motion agreed.

Committee adjourned at 5.58 pm.