My Lords, my amendments are grouped with that of the noble Lord, Lord Alli. The reason is of course that if his amendment is carried, then the schedule to which my amendments attach will be removed. I thought that the noble Lord, Lord Alli, with his usual bold capacity for initiative, was going to tangle with the whole question of devolved legislation and what can be done between the Scottish Parliament and the English Parliament. In some ways he managed to work around that, although in fact he must recognise that certainly there are separate laws between Scotland and England. Various situations must be responded to according to the law in the country in which they occur. However, at this time of night I shall move rapidly on to my own amendments, rather than trying to unravel some of his proposals.
I found a number of Scottish lawyers with questions about the outcome of what the Government propose in Schedule 2. My amendments were prompted by the Law Society of Scotland, and basically address two issues. First, paragraph 1(1) of Schedule 2 states that:
“The Secretary of State may, by order, provide that, under the law of Scotland, a marriage of a same sex couple under the law of England and Wales is to be treated as a civil partnership”.
This would apply to all same-sex marriages. In some ways that is the point made by the noble Lord, Lord Alli: some people might feel that this is unjust,
and there would be room for only limited exceptions for whom this was not agreeable. This would only be possible with a further counter-order from the Secretary of State under paragraph 2(b).
The other more fundamental issue concerns the doctrine of the separation of powers. The Civil Partnership Act 2004 passed legislation for the whole of the UK using the full process of Parliament. Schedule 2 gives the Secretary of State the power to make a ruling by order on private right and personal status. Determining how personal relationships are treated under law is properly a function of the judiciary, which has jurisdiction over matters of personal status. Here, we have the Executive taking over a function of the law. Amendment 28 asks to transfer this function of the Secretary of State to the Court of Session, which has the power to make declarations under current family law. Using the mechanism proposed in the amendment will give the court the advantage of ascertaining the facts in each case where the parties seek a declaration as a civil partnership, and bring in the element of individual choice.
If the Government wish to continue with the mechanism they propose, it would be helpful if they would answer three questions. First, what process will be used to produce orders under Schedule 2, and what safeguards will be put in place to address the issue of separation of powers? Secondly, what criteria will be applied to those orders which permit treatment of a same-sex marriage as a civil partnership? Thirdly, what remedies would aggrieved parties have?