My Lords, the position is that, as things stand at the moment, there is no provision in either Scotland or Northern Ireland for same-sex marriage. Therefore, if a same-sex couple who are married in England and Wales were to move to Scotland or Northern Ireland, their relationship would not have a legal status of marriage in Scotland or Northern Ireland because that provision does not exist. There is no such thing at the moment in Scotland or Northern Ireland as same-sex marriage. Schedule 20 to the Civil Partnership Act 2004 lists the overseas same-sex relationships which are treated as civil partnerships in the United Kingdom. This partly answers the question raised by the noble and learned Baroness, Lady Butler-Sloss.
At the moment, overseas same-sex marriages are not recognised as marriages in England, Wales, Scotland or Northern Ireland. They are treated as civil partnerships in the United Kingdom, and Section 213 of the Civil Partnership Act 2004, under which Schedule 20 has effect, also sets out the general conditions which must be met for such relationships to be recognised in the United Kingdom. If the amendment of the noble Lord, Lord Alli, were to be carried, we would have the slightly anomalous situation where a couple moving to Belfast or Glasgow would be in a worse position than a same-sex couple who married in Portugal, or elsewhere overseas where same-sex marriage is permitted, and then went to live in Scotland or Northern Ireland.
Under the current law, the 2004 Act, these same-sex marriages contracted, for example in Portugal, would be treated as a civil partnership. If this Bill becomes an Act, we do not wish to see a situation where a same-sex couple married in England would have lesser legal status in Scotland or Northern Ireland than a same-sex couple who married in Portugal. It is for that reason that Schedule 2 exists. As the noble Lord indicated, marriage and civil partnerships are devolved matters. The noble Lord asked why Secretaries of State for Scotland and Northern Ireland could not get together with Scottish or Northern Ireland Ministers to make them marriages. That is not how devolution works. Legislation would have to be passed by the Scottish Parliament or the Northern Ireland Assembly.
As the Bill anticipates, referred to by the noble Baroness, Lady Thornton, the Scottish Government have indicated that they will bring legislation before the Scottish Parliament to bring about same-sex marriage as a legal status in Scotland. That is why, if noble
Lords look carefully at the provisions for Scotland in Schedule 2, the order-making power would not have effect if the Scottish Parliament passes legislation for same-sex marriage. In many respects, what is there is deliberately framed, recognising the likelihood that same-sex marriage legislation is to be brought forward in Scotland in the relatively near future.
It is probably also fair to say that same-sex marriage legislation does not appear to be on the horizon in Northern Ireland. That is why the position regarding Northern Ireland is that there is not an order-making power, which will lapse in Scotland when or if Scottish law changes, but rather one that sets out in primary legislation the same position for same-sex marriages contracted in England and Wales in Northern Ireland, as is the case for same-sex marriages contracted in other countries, such as Portugal. People there would be in the same position in Northern Ireland as they would at present.
Last week, the Scottish Parliament passed a legislative consent Motion to the provisions in this Bill which impinge and deal with devolved matters affecting Scotland. The question was asked what would happen if we could not get a legislative consent Motion from Northern Ireland. Our concern would be that this would risk leaving couples with no legal status in a part of the United Kingdom. This could have important European Convention on Human Rights implications. We would need to consider this carefully if this situation arose and whether amendments to the Bill would be needed.
I know that this is not what the noble Lord, Lord Alli, wishes to see, but given the devolution settlement, this Parliament should not legislate for same-sex marriages in Scotland or Northern Ireland and I do not think that anyone in this Parliament is arguing for it. However, in the absence of legislation there, it is important that we give couples who have contracted a same-sex marriage in England and Wales a legal status in Scotland and Northern Ireland. Without the schedule they would have no legal status, so we are putting them on a par with couples who are married in other countries which have passed legislation on same-sex marriage.
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With regard to the amendment spoken to by my noble friend the Duke of Montrose, our concern is that he seems to suggest that in some way the Secretary of State would be making an order in respect of every couple who had contracted a same-sex marriage in England or Wales to convert it into a civil partnership in Scotland. The position is that Schedule 2 provides a power enabling the Secretary of State, with the consent and support of Scottish Ministers, to make general provision that England and Wales same-sex marriages are to be treated as civil partnerships in Scotland, and to modify that treatment where that approach achieves a result that would not be desirable by the parties.
If we were to replace that with consideration of individual cases by the Court of Session, which would be the consequence of my noble friend’s amendment, that could constitute a heavy burden on the court, would cause unacceptable delays for the couple and, pending the cases being heard, would put their legal status into some doubt. I recognise that the amendments
may be intended to probe how the arrangements would work in Scotland. I hope that I can reassure my noble friend that there is no intention for there to be a situation in which the Secretary of State would consider and pass an order on a case-by-case basis. If that were what was being suggested, I could accept that it would be appropriate not for an executive act but for a judicial act. Rather, the general intention is to ensure that same-sex marriages in England and Wales will be treated as civil partnerships in Scotland.
Of course, if the Scottish legislation happens to come into law before this provision comes into law, this order-making power would not be necessary. Indeed, if the timetable that one may expect the Scottish Parliament to pursue is such that the difference in timing is only a matter of a few months, it may be that the impact of this order-making power will be very limited indeed.