B1550 – Marriage (Same Sex Couples) Act 2013 (Amendment) Bill 2020. Watch

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Andrew97
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B1550 – Marriage (Same Sex Couples) Act 2013 (Amendment) Bill 2020, TSR Conservative & Unionist Party

Marriage (Same Sex Couples) Act 2013 (Amendment) Bill 2020

A bill to make same-sex marriage more accessible to British nationals abroad

BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Commons, in this present Parliament assembled, and by the authority of the same, as follows:

1: Amendment
(1) In Marriage (Same Sex Couples) Act 2013, Schedule 6 Marriage Overseas, Part 1 Consular Marriage Under UK Law, Provision for consular marriage, 1(2)(b)(c) are amended from:

(b)the people proposing to marry would have been eligible to marry each other in such part of the United Kingdom as is determined in accordance with the Order,(c)the authorities of the country or territory in which it is proposed that they marry will not object to the marriage, and

to:

(b)the people proposing to marry would have been eligible to marry each other in such part of the United Kingdom as is determined in accordance with the Order, and

2: Short title, commencement, and extent
(1) This act may be cited as the Marriage (Same Sex Couples) Amendment 2020.
(2) This Act extends to the United Kingdom.
(3) This Act comes into force upon Royal Ascent.

Notes:
Spoiler:
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1. This was written in response to the motion passed calling for the Consular-General in Hong Kong Special Administrative Region to perform gay marriage in accordance with the non-objection from the People's Republic of China, and the subsequent discussion that followed after the release of a ministerial report from the Foreign and Commonwealth Office stating its intent to begin processing same-sex marriage applications at said Consulate-General.

2. The brief background of the issue was that the Consulate-General in Hong Kong, which is not under the Embassy in Beijing, consulted the Hong Kong government on whether it would object to the Consulate-General performing gay marriage within the Consulate-General. Hong Kong and China do not have same-sex marriage at the moment.

Multiple government departments in Hong Kong have declined to respond to the question, as there are no provisions under either the Sino-British Joint Declaration or the Hong Kong Basic Law (Hong Kong's mini-constitution) for the Hong Kong government to handle diplomatic matters. The diplomatic credentials from the Consulate-General in Hong Kong were presented and accepted by the government of the People's Republic of China, and not of the Hong Kong Special Administrative Region.

The government of the People's Republic of China has not objected to British diplomatic missions performing gay marriage in China, and as a result, diplomatic missions in mainland China have been performing same-sex marriages.

The government of Macao Special Administrative Region has not objected to the practice either. The Consulate-General in Hong Kong does not cover just Hong Kong, but also Macao.

The Chief Executive of Hong Kong at the time, CY Leung (who is now no longer a member of the Hong Kong government in any capacity), decided to issue a "diplomatic note" despite the fact that he was not legally nor constitutionally empowered to exercise it, to object to the performing of same-sex marriages in the Consulate-General.

As a result, the Consulate-General in Hong Kong has not performed same-sex marriage since the passing of the 2013 act in the UK. The Consulate-General and the Foreign and Commonwealth Office has not consulted the Hong Kong government again since the election and appointment of a new Chief Executive, Carrie Lam. They have also never consulted the authority in the Central and Western District Council, which has authority over the town of Admiralty in Hong Kong, where the Consulate-General is at.

On the other hand, the Kingdom of Spain has been performing same-sex marriage in their consulate-general in Hong Kong, with no issues with the Hong Kong government whatsoever in the past few years.

3. The practice of the Consulate-General prioritizing the comment from the Hong Kong government, no less issued in a format it is not legally empowered to adopt, over that of the sovereign China is legally questionable, and ambiguous at best. The fact that the Hong Kong government declined to respond initially and chose to take an unprecedented step from the Chief Executive demonstrated the legal ambiguity if the whole situation.

The original act's inclusion of the word "territory" was most likely used for territories where our official recognition differ from the actual control. Such as Palestine (where we do not officially recognize, but is also not entirely controlled nor administered by the State of Israel, which we recognize), Taiwan (which we do not officially recognize, and where the People's Republic of China has never had control over), Crimea (where we recognize as Ukrainian territory, but is controlled by Russia), and many other areas, eg Northern Cyprus, Somaliland, Western Sahara, Abkhazia and South Ossetia, Transnistria. Additionally, it could also be used for disputed areas between different sovereign states. Hong Kong (and Macau) does not fall under this, as its government accepts the sovereignty of China, and it is legally and constitutionally bound to have the People's Republic of China handle its diplomatic affairs.

The word "territory" could also lead to the question of which level of authority we should follow, should there be a contradiction. The Consulate-General presents and is accepted by China, so should China's non-objection overrides an objection from Hong Kong? The Consulate-General is accredited to handle also affairs in Macau, despite its geographical location in Hong Kong, so how should we consider Macau's non-objection? The Consulate-General is located in the Central and Western District, which has its own authority from within Hong Kong, so should they be considered the proper local authority, given that Hong Kong is not a "host country"?

This is a matter of complex legal debate, one which none of us is qualified to do. Thus, this amendment is presented to end all ambiguity and clear the doubts by removing the requirement of consulting the "territory", leaving it up to the discretion of the diplomatic missions and the Foreign and Commonwealth Office.

4. This was not tailor-made just for the Consulate-General in Hong Kong, so it will affect all British diplomatic missions globally. The implication is that they will not longer be required to consult a local authority on this matter.

This does not mean they must perform same-sex marriage.

This does not mean they will perform same-sex marriage against the opinion of the host country or territory.

This does not mean they can no longer consult the authority in the host country or territory.

What it does mean is that they will have the flexibility to handle the matter both diplomatically and politically. They will have the option to choose whether they would like to consult, and to consult which level of authority. In the end, they will also have the option to either follow the instruction from the authority, provide only limited services, or to reject it. With the absence of a parliamentary legislation, this means it will be up to Her Majesty's government.

5. There is no issue of violating local laws, as these marriages are only performed for British nationals within the diplomatic missions (where UK law applies). In a territory where same-sex marriage is not legal, such as Hong Kong, it will not realistically affect the jurisdiction, as such a marriage will just be as legitimate as one performed in the UK, or the consulate in Shanghai.

6. Another option would be to amend the clause to say, rather than the country or territory, to the authority of the territory where the diplomatic mission had their credentials accepted. However, this amendment is simpler and will grant the diplomatic missions the flexibility on this matter.

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Jammy Duel
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No, you're taking an obsession with Hong Kong and applying it to the whole world. you could justify HK by saying China is responsible for such things and does not object, that is not true globally. This is not a response to the motion cited, in fact that can only really be done by the government.

One suspects the line you are trying to remove is there for a reason, probably to prevent diplomatic incidents, I wouldn't be surprised if we end up in a position where in several countries this is either not enforced or the diplomatic missions is forced to close
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LiberOfLondon
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As always I will abstain on these issues.
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04MR17
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Absolutely not. Conducting same-sex marriages without host Government permission could be contrary to international law, which, of course, we would not want to break. At the same time, it would risk damaging bilateral relations, which, of course, we would not want to do. These are the words of the Conservative government in 2013 when introducing the very act that this bill tries to amend.
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Jammy Duel
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(Original post by 04MR17)
Absolutely not. The marriage laws of each individual country are complex and the line in the original act respects that. Some countries (e.g. Spain) object to any marriages on their soil that do not involve at least one national. This is silly and pointless.
And on that basis this is a discriminatory act given it extends rights to gay people that are not extended to heterosexuals. Of course I am assuming that the restriction of objection already applied to heterosexual marriages
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SoggyCabbages
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Hell to the NAY. Impinging on other countries' traditions and culture and the idea of SS marriage anyway.
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(Original post by Jammy Duel)
No, you're taking an obsession with Hong Kong and applying it to the whole world. you could justify HK by saying China is responsible for such things and does not object, that is not true globally. This is not a response to the motion cited, in fact that can only really be done by the government.

One suspects the line you are trying to remove is there for a reason, probably to prevent diplomatic incidents, I wouldn't be surprised if we end up in a position where in several countries this is either not enforced or the diplomatic missions is forced to close
Like I said in the notes, this doesn't force all diplomatic missions to perform same-sex marriage.

And you were the one (of the two) who said my line of justifying it wasn't good enough. So now you've switched sides and are agreeing with me after all?

Or is it the case that you simply cannot be seen agreeing with me on anything?

ETA: I see that you acknowledged that gay marriage will still not be done in some diplomatic missions. That is true and is in line with the intent of this amendment. If someone else wants gay marriage performed at a particular mission, they can have their own motion.
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barnetlad
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What is to stop British nationals coming to the UK or a British territory for a marriage if it is prohibited in the host country, for whatever reason, which may apply to marriage between a woman and a man, between two women or between two men?
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(Original post by 04MR17)
Absolutely not. The marriage laws of each individual country are complex and the line in the original act respects that. Some countries (e.g. Spain) object to any marriages on their soil that do not involve at least one national. This is silly and pointless.
This doesn't change or affect any law in the host country. If the marriage is not recognized before, it still won't be recognized after. The difference is that British nationals could marry in a diplomatic mission then have it recognized in countries that recognize same-sex marriage.

Married couples have certain benefits in the UK, and being able to marry in a foreign country first before moving back to the UK would allow them to enjoy those benefits, including immigration visas. A marriage that was registered 5 years ago while 2 people were living in India will be more valid in the Home Office's eyes than a marriage registered in the UK with one partner being a tourist the day prior, applying for a dependent visa now.

In the same scenario, the couple also gets to enjoy protection while travelling to another country with gay marriage, without having the need to fly to the UK or anywhere else just to get married first.

Your point bringing up Spain is bizarre because not only do they have no such policy to consult the host country, this act and the amendment also still ask for one of the people to be a UK national.
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Baron of Sealand
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(Original post by barnetlad)
What is to stop British nationals coming to the UK or a British territory for a marriage if it is prohibited in the host country, for whatever reason, which may apply to marriage between a woman and a man, between two women or between two men?
Costs, time, and I suppose you would also recognize the carbon footprint.
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Saracen's Fez
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In line with our MP I'm happy to support this bill.
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Baron of Sealand
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(Original post by Saracen's Fez)
In line with our MP I'm happy to support this bill.
Thank you for this.
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Baron of Sealand
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(Original post by Jammy Duel)
And on that basis this is a discriminatory act given it extends rights to gay people that are not extended to heterosexuals. Of course I am assuming that the restriction of objection already applied to heterosexual marriages
If you can go and look it up, and see that there is indeed such a restriction on heterosexual couples, I am happy to also submit an amendment for that.

Until then, you're just making an unsubstantiated claim.
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(Original post by SoggyCabbages)
Hell to the NAY. Impinging on other countries' traditions and culture and the idea of SS marriage anyway.
This doesn't change anything in the host country, and same-sex marriage is already British law.
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Jammy Duel
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(Original post by Baron of Sealand)
This doesn't change anything in the host country, and same-sex marriage is already British law.
However the line exists due to the relevant Vienna convention, the law of the receiving state applies in embassies. The clauses are there so local law can be complied with in cases where local restrictions apply. They exist for a reason.
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(Original post by Baron of Sealand)
This doesn't change or affect any law in the host country. If the marriage is not recognized before, it still won't be recognized after. The difference is that British nationals could marry in a diplomatic mission then have it recognized in countries that recognize same-sex marriage.

Married couples have certain benefits in the UK, and being able to marry in a foreign country first before moving back to the UK would allow them to enjoy those benefits, including immigration visas. A marriage that was registered 5 years ago while 2 people were living in India will be more valid in the Home Office's eyes than a marriage registered in the UK with one partner being a tourist the day prior, applying for a dependent visa now.

In the same scenario, the couple also gets to enjoy protection while travelling to another country with gay marriage, without having the need to fly to the UK or anywhere else just to get married first.

Your point bringing up Spain is bizarre because not only do they have no such policy to consult the host country, this act and the amendment also still ask for one of the people to be a UK national.
You're right, this doesn't change any law in a host country, because we don't have that power. It does conflict with laws in many countries however, and I think it would be irresponsible for this house to pass this bill.

You seem to have completely misinterpreted the point about Spain, if two UK nationals want to get married in Spain, this bill says they can (if they're homosexual), but the fact is they can't according to Spanish law.

All the present act states is that providing it is within the law of the host country, the two people can get married there. This is the same for heterosexual couples.
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Jammy Duel
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(Original post by Baron of Sealand)
Like I said in the notes, this doesn't force all diplomatic missions to perform same-sex marriage.

And you were the one (of the two) who said my line of justifying it wasn't good enough. So now you've switched sides and are agreeing with me after all?

Or is it the case that you simply cannot be seen agreeing with me on anything?

ETA: I see that you acknowledged that gay marriage will still not be done in some diplomatic missions. That is true and is in line with the intent of this amendment. If someone else wants gay marriage performed at a particular mission, they can have their own motion.
I'm saying that you potentially have an argument for HK, bit even if we assume you do there it is not one that applies globally.

And as for acknowledging that it will have to be ignored to maintain diplomatic relations it creates its own problem because then somebody denied a marriage so as to comply with local law could have it challenged in a UK court, at which point this amendment is undone, either via this amendment being unlawful due to international law, or acknowledgement that the removed clause must be maintained in practice even if in law it is removed.
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(Original post by Jammy Duel)
I'm saying that you potentially have an argument for HK, bit even if we assume you do there it is not one that applies globally.

And as for acknowledging that it will have to be ignored to maintain diplomatic relations it creates its own problem because then somebody denied a marriage so as to comply with local law could have it challenged in a UK court, at which point this amendment is undone, either via this amendment being unlawful due to international law, or acknowledgement that the removed clause must be maintained in practice even if in law it is removed.
Local law doesn't apply within diplomatic missions. There's no need to "comply with local law". Any such decision would simply be a diplomatic or a political one.

You are once again showing your extreme ignorance on topics you clearly do not understand. International law doesn't stop diplomatic missions granting marriages, because international law dictates that British law applies within the grounds of a mission. British law doesn't apply outside the grounds, and so any such marriage will also not affect the host country in any way.
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Jammy Duel
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(Original post by Baron of Sealand)
Local law doesn't apply within diplomatic missions. There's no need to "comply with local law". Any such decision would simply be a diplomatic or a political one.

You are once again showing your extreme ignorance on topics you clearly do not understand. International law doesn't stop diplomatic missions granting marriages, because international law dictates that British law applies within the grounds of a mission. British law doesn't apply outside the grounds, and so any such marriage will also not affect the host country in any way.
"1.Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State."

You were saying?
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(Original post by 04MR17)
You're right, this doesn't change any law in a host country, because we don't have that power. It does conflict with laws in many countries however, and I think it would be irresponsible for this house to pass this bill.

You seem to have completely misinterpreted the point about Spain, if two UK nationals want to get married in Spain, this bill says they can (if they're homosexual), but the fact is they can't according to Spanish law.

All the present act states is that providing it is within the law of the host country, the two people can get married there. This is the same for heterosexual couples.
Then any such marriage will not be recognized outside the diplomatic mission, whether in Spain or in China. There's literally no difference between having an objection or not having one. Is China recognizing same-sex marriage performed in the Shanghai consulate? No, it doesn't. So based on your logic, this law without the amendment was "irresponsible" because it "conflicts with laws" in China. Yet, China doesn't object to it and the Shanghai consulate is able to perform gay marriage.

If laws that conflict with laws in the host country cannot be passed, then either you're saying there cannot be British laws, or that British law cannot apply in diplomatic missions.
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