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Mr. Boswell: The House will appreciate that, as a result of other duties, I was unable to have the privilege of serving on the Standing Committee, although I have read its proceedings.

On behalf of my hon. Friend the Member for Rutland and Melton (Mr. Duncan), may I express our gratitude for the change set out in amendment No. 21? It will tie the prohibition on the use of church premises not to their design, but to their main use or immediate past use. That is realistic. We also have no objection to the other Government amendments. I was interested to hear about the greater flexibility in Scotland. One concern about the Gender Recognition Act 2004 was that some registrars might have objections of conscience—a concern that was expressed strongly by the right hon. Member for Swansea, East (Donald Anderson). We were assured that alternative arrangements could be made if registrars were concerned about people's status.

As I flagged up on Second Reading, it is important that the Minister has proper regard to private international law and the harmonisation of jurisdictions abroad. Although I did not participate in the debate on the main group of amendments, it is clear that a large number of western countries have introduced similar provisions for civil partnerships.

Chris Bryant: The hon. Gentleman makes an important point about what would happen if a registrar did not want to perform a civil partnership registration. I am sure that he is not resiling from the belief that every local authority in the land should none the less be required to make provision so that partners who want to have a civil partnership can do so.

5.45 pm

Mr. Boswell: I am happy to give the hon. Gentleman that assurance. Of course, there is no point in supporting the Bill unless we are prepared to put it into effect. My reservations specifically concerned the remarriage of transgendered individuals, who constitute a small but significant subset.

It is important to harmonise private international law and make those arrangements functional so that they meet a need here and in other countries. The hon. Member for Orkney and Shetland (Mr. Carmichael) will make his own case for the amendments that he tabled. Some of them are probing, but from private soundings I believe that they offer sensible proposals, so I hope that the Minister will consider them.

Mr. Carmichael: I shall speak to amendment No. 32, which I tabled with my hon. Friend the Member for Gordon (Malcolm Bruce). Amendment No. 33, which we also tabled, achieves exactly the same aim as Government amendment No. 34, so I shall not press it further.
 
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Amendment No. 32 would add the commonwealth of Massachusetts to schedule 20, so that same-sex marriages registered there are recognised in this country. There was concern about whether the legislation introducing those relationships would fall foul of a constitutional amendment to ban same-sex marriages in the United States, but the position been settled with the Goodridge case, which was heard in the supreme judicial court of Massachusetts. It is unfair and unnecessary to leave gay and lesbian partners who have registered lawfully under Massachusetts legislation in doubt about what will happen when the Bill comes into force in the UK. There is no good reason for excluding the commonwealth of Massachusetts from schedule 20, so I look forward to the Minister's response.

Two letters have been circulated among hon. Members, including one dated 3 June 2004 from members of the Massachusetts state legislature and the general court. I will not read it out in its entirety, but the last sentence of a letter signed by senators and state representatives says:

Similarly, a letter dated 29 September 2004 from Members of the US Congress concludes:

Mr. Forth: Does the hon. Gentleman agree that caution is advisable in pursuing that line of argument, given that a number of American states have recently held referendums in which, by an overwhelming vote, people have urged constitutional changes at state level so that marriage can be recognised only between men and women? The country has not yet resolved the dilemma thrown up by people who have an arrangement in one state but then move to another. His argument that we should make special provision for Massachusetts when even other states of the union have not done so is thin.

Mr. Carmichael: I would not wish to second-guess the right hon. Gentleman, as I do not know how familiar he is with the terms of schedule 20. However, it already lists the state of Vermont, so it would be inconsistent to recognise civil partnerships or same-sex marriages from Vermont but not from the commonwealth of Massachusetts.

We never know what is going to happen in another country and we have little control over such matters, but it would be remiss of us to fail to act simply in anticipation of something that might or might not happen at a future date.

Jacqui Smith: As the hon. Member for Orkney and Shetland (Mr. Carmichael) made clear, amendment No. 32 seeks to add same-sex marriage or civil union in Massachusetts to schedule 20.

Perhaps it would be worth reminding hon. Members that we have taken a belt-and-braces approach to the international recognition provisions in the Bill. As the
 
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hon. Gentleman pointed out, we have listed in schedule 20 those foreign civil partnership-type arrangements that would be recognised in the UK, but we have also made clear in clause 214 a set of general conditions that, if fulfilled, would also lead to recognition of a relationship. He is proposing that we should include Massachusetts in schedule 20 at this point.

It was made clear by my noble Friends in another place that we do not consider it appropriate to add Massachusetts to schedule 20 at this stage, and we remain of that view. Same-sex marriage in Massachusetts was not originally included in the schedule because, when it was drafted, it remained uncertain whether the Massachusetts legislature would allow such marriages to go ahead. Hon. Members may be aware that the first same-sex marriages were conducted on 17 May this year, and those marriages continue to be legally valid in that state.

Hon. Members will also be aware, however, that the long-term future of same-sex marriages in Massachusetts remains unclear because of the controversy that surrounds the issue. The Massachusetts legislature has proposed a constitutional amendment that would limit marriage in Massachusetts to opposite-sex couples and instead establish civil unions. The amendment would need to be passed again by the state legislature in 2005 and then approved by the voters in a 2006 state-wide referendum before it could be passed. It is clear that the intention of law makers to prevent same-sex marriages in Massachusetts from continuing to be legally valid means that the situation there is still not stable and could change relatively soon. With the law being subject to such uncertainty, the inclusion now of Massachusetts in schedule 20 would be premature.

None the less, I have considerable sympathy with the point made by the hon. Member for Orkney and Shetland about the individual position of people who have entered into same-sex marriages in Massachusetts up to this point, and I hope that I can give him some reassurance. I should like to make it clear to hon. Members that not adding Massachusetts to the schedule now does not mean that same-sex couples who have a legally valid marriage there will not be treated as civil partners in the UK. The general conditions in clause 214 already ensure that such couples will be treated as civil partners. The general conditions are, however, also sufficiently flexible to deal with the prospect of subsequent legislation altering the situation in Massachusetts. We therefore see no need to add those marriages to the schedule.

Mr. Carmichael: It might assist if the Minister could give me an assurance that, as it will be some time before the Bill comes into force, presuming that it will eventually be passed, the Government will keep this matter under review and see by the time it takes effect whether it might be possible to add Massachusetts at a later date by statutory instrument.

Jacqui Smith: I can give the hon. Gentleman that assurance. Of course, it will not only be the situation in Massachusetts that we keep under review. As hon. Members have made clear, there are many other legislatures, whether in the United States, Europe or more widely, that are also considering such a move. It is
 
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in order to ensure certainty for couples who have entered a relationship that would fulfil the general conditions in clause 214 while also having clarity about the legislative arrangements in schedule 20 that we have the twin-track approach, which I hope gives him and the people of Massachusetts the assurance that our Bill is flexible enough to recognise both the individual situation of couples and the ongoing legislative position, which is rather more in a state of flux.

The hon. Gentleman is right about Government amendment No. 34, which fulfils the same function as his amendment No. 33. I congratulate him on his understanding of Scots succession law, although I will not test him on it.


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