* Clause 10(3) and Schedule 2 (treatment of English/Welsh same sex marriages);
"It is important to take account of the interface between the law in Northern Ireland and the law in England and Wales. By providing for English/Welsh same sex marriages to be treated as civil partnerships we are utilising an established legal framework (i.e. the CP Act) and treating those marriages in the same way that we treat overseas same sex marriages. Also, we must have appropriate procedures for handling applications for gender recognition certificates, including procedures for correcting errors, bearing in mind the changes which will be effected to the law in this area to take account of the availability of same sex marriage in England and Wales"^2
5. The Committee's attention was first drawn to this matter following correspondence from the Northern Ireland Human Rights Commission (NIHRC) in March 2013, which was forwarded to the Department of Finance and Personnel (DFP) for clarification on the issues raised. From the Department's response it was noted that the Minister was considering a request from the UK Government in respect of the NI related provisions in the Marriages (Same Sex Couples) Bill. It was also pointed out that the Minister of State, Department for Culture, Media and Sport had confirmed that "there is absolutely no requirement on Northern Ireland to introduce same-sex marriages, neither an equality requirement nor a requirement under the European Convention on Human Rights".^3
6. The Committee subsequently requested clarification from the Department on the differences between the rights/benefits/entitlements of people in civil partnerships as compared to same sex marriages; for advice on how these could be impacted in cases where same sex married couples move to NI from Great Britain (GB); and for information on whether DFP has sought any legal advice on these issues. The Department's response is at Appendix 6a.
13. While the Committee's call for evidence from identified stakeholders was focused on the specific provisions contained within the LCM, it was recognised that the proposals for NI are made within the wider context of both the policy direction being adopted in GB and recent decisions of the Assembly on the issue of same-sex marriage.^4 The current lack of consensus over the principle of legislating for same-sex marriage in NI was reflected in the evidence to the Committee.
15. The Rainbow Project, on the other hand, opposed the policy approach of the LCM and expressed clear support for extending same-sex marriage to NI, pointing to the need for consistency across the UK and to "a clear and growing consensus among European countries, particularly those that are EU members" on legislating on the matter. It also highlighted that a decision not to extend same-sex marriage to NI would exacerbate the circumstances arising from the existing differences between civil partnerships in GB and NI, whereby the provision which exists in England, Scotland and Wales for civil partnerships to be held in registered religious venues with registered celebrants has not been extended to NI.^6
16. The Committee notes that the proposed LCM would result in NI departing from the policy direction being taken in GB. In particular, the UK Government's Marriage (Same Sex Couples) Bill would, amongst other things, enable same sex couples to marry in England and Wales; and the Scottish Government has indicated its intention to follow suit by shortly introducing the Marriage and Civil Partnership (Scotland) Bill.^7 Moreover, the proposed LCM would also leave NI out-of-step with an increasing number of other countries, including RoI, which are moving towards legalising or that have already introduced same-sex marriage.^8 Nonetheless, the Committee accepts that the approach planned for NI under the LCM aligns with the majority view in the Assembly, as expressed in recent debates on same-sex marriage, and that such regionalised policy variation on transferred matters is a natural outworking of devolution. That said, members are also mindful of the strongly-held and divergent views around this issue
17. From the evidence received, the Committee notes that the LCM may give rise to a potential anomaly regarding human rights protection. In its written submission and oral hearing, NIHRC acknowledged that the extension of the legal definition of marriage in domestic law in England and Wales to include same-sex marriage does not appear to impact on article 12 of the European Convention on Human Rights (ECHR), which defines marriage as between a man and a woman. However, NIHRC also advised that the state is entitled to go further under the HRA than the European Court may have gone under the ECHR and that the position is less clear as regards whether, as a result of the Bill, section 12 of the Human Rights Act 1998 (HRA) will change. The Commission pointed out that "it is unclear whether or not the introduction of same sex marriage would change the current definition of marriage as protected by the HRA" and that "there may be created an unequal regime of human rights protections in the distinct parts
27. In a written response, dated 31 May 2013, to the issues raised in the Assembly research, DFP stated that "the existing rules in relation to gender recognition are rights compliant"^17 Further to this during their oral hearing on 5 June, the DFP officials stated that "since the Assembly has twice rejected the concept of same-sex marriage, it follows that, where gender reassignment occurs with one of the parties to an opposite-sex marriage, by that decision, the party is required to bring the marriage to an end".^18While noting the DFP advice regarding the difference that would exist between NI and GB in respect of the process for obtaining a full gender recognition certificate, the Committee believes that this issue should have been included in the equality screening exercise which has been undertaken on the policy of the LCM.
"The differences are historical (they largely relate to older married women and derive from a time when less women worked). Assuming that there are no amendments to the Marriage (Same Sex Couples) Bill, they will continue to exist after the Bill is enacted. When the new law comes into force, a civilpartner and a same-sex spouse will ordinarily have the same pension rights. The one exception will be a woman who is in a same-sex marriage because her husband has changed gender. In those circumstances the rules which previously applied to that woman will continue to apply.
Given the above, the number of same-sex spouses who are likely to be adversely affected in pension terms by a move to Northern Ireland is likely to be extremely small (i.e. women born before 6 April 1950, whose husbands change gender and who consent to the marriage continuing as a same-sex marriage)."^19
33. During oral evidence with the Rainbow Project, the Committee heard that there may be a potential economic impact to having a different position in NI to that in GB (and potentially also to that in RoI) in respect of same-sex marriage. In particular, it was suggested that recognition of same-sex marriage within states can be a factor which large multi-national companies take into consideration, in terms of their human resources, when making decisions on foreign-direct investment; and that NI could therefore be placed at a competitive disadvantage to other states which have introduced such reform.
37. Notwithstanding the aforementioned conclusions on the issues raised in the evidence and recognising that, in the absence of an agreed alternative, the measures contained in the LCM are necessary in practical terms, the Committee for Finance and Personnel supports the Minister of Finance and Personnel in seeking the Assembly's agreement that " the following provisions in the Marriage (Same Sex Couples) Bill, which relate to the treatment of same sex marriages in Northern Ireland and gender recognition, should be considered by the UK Parliament: