Baroness Royall of Blaisdon
My Lords, as my noble friend said, pensions might sound boring but, as the noble Baroness, Lady Barker, said, pensions are extremely important to individuals. They do affect quality of life, so this is a very important amendment.
Liberty, to which I am grateful for its excellent briefing on this issue, is surely right in saying:
“This is an unnecessary and counterproductive anomaly in a Bill which otherwise makes landmark progress in equally respecting the rights of gay people”.
The same has been said from all Benches today.
Naturally, I recognise the anomaly that exists between the treatment of pension rights for married and same-sex civil partners. However, this Bill not only continues that discrimination but it takes forward the same distinction to same-sex married couples: in terms of these pension rights, they would be treated differently from opposite-sex married couples. This uneven treatment would, therefore, be continued. As my noble friend cogently argued, this should be an opportunity to get rid of the current anomaly rather than to extend the discrimination.
I was struck by what I thought was an extraordinary answer from the Secretary of State to the Joint Committee on Human Rights in relation to compatibility with Article 14 of the European Convention on Human Rights on this issue. She said that the reason for treating same-sex-marriage couples as civil partners is that they could have the option either of getting married or of forming a civil partnership—and that the legislation therefore treats them equally.
This is sort of true but it goes against the whole ethos of this Bill. As my noble friend said, arguments which are made against this on the principle of retrospection are misplaced. It is clear that actuaries base forecasts on a wide range of assumptions which are not necessarily proved to be correct. In its report on the Bill, the JCHR also noted: that,
“Depending on the provisions of the scheme, pension rights of same sex spouses may not be the same as pension rights of opposite sex spouses, which may give rise to an issue as to whether this is compatible with Article 14 of the ECHR in conjunction with Article 1 Protocol 1”.
It has already been noted that the Government are currently fighting an appeal against the decision to uphold this view in the case of John Walker. However, if legislation is not amended to take account of the Walker judgment and the reliance on the European Court findings, it is likely that further action will be taken by same-sex married partners. One cannot blame them. They will seek similar redress in the courts to ensure that they, too, can access pension rights in an equal way. That would be regrettable.
Of course, I recognise that resolving this anomaly is not without cost but the real frustration is that we do not have the requisite information to debate the issue with knowledge of its full consequences. When responding to a similar amendment moved in the other place, the Minister, Helen Grant, said that,
“we do not believe that it would be right to put on schemes the significant additional and retrospective financial burdens that would arise from removing the Equality Act exception”.—[Official Report, Commons, 21/5/13; col. 1144.]
However, how significant those burdens are is unclear. The House of Commons Library estimated that the potential additional cost to private contracted-in schemes would be £18 million. That is a significant figure by anyone’s estimates, but when compared with the total value of assets under management in the pensions industry it amounts to just 0.006%—as was pointed out by Mr Mike Freer on Report in the Commons. I accept that for a handful of small employers or charitable schemes this may have a disproportionate impact. However, the Government have accepted that around two-thirds of schemes already treat opposite-sex marriages and civil partnerships equally. I pay tribute to all those organisations, including the Church of England, which do the right thing.
In evidence submitted to the JCHR, the Minister for Sport and Tourism, Hugh Robertson, stated that,
“We estimate that in total the impact on both contracted-in and contracted-out private sector schemes could amount to as much as £90 million. There would be very substantial costs for public service schemes”.
Will the Minister confirm to the House the costs, additional to the £18 million identified and widely accepted, on which £90 million figure is based, and the costs for public service schemes to which the Secretary of State was referring given the 2005 regulations identified by the Commons Library? On these Benches, we believe that the financial impact of the amendment would be relatively insignificant. However, the Secretary of State is quite clear that there would be a cost. Therefore, I echo the calls from around the Chamber and from the JCHR for the Minister to publish the full evidence on which the Government based their assessment as soon as possible so that we might approach Report armed with the fullest possible view of the consequences of this amendment—an amendment which I fully support.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Lord, Lord Alli, and all others who contributed to this debate. I understand the strength of feeling behind this amendment and the speeches that have been made. Anticipating this debate, I decided to speak directly to the Pensions Ministers today and so was able to come properly armed with full information.
First, and as I have said in other contexts and in our other debates on the Bill, in making it possible for same-sex couples to marry we have sought to build on existing legislation and not amend the structure of marriage law. The point is that we focused on allowing same-sex couples to marry. In the context of pensions, we are following what already exists for civil partnerships, as has been referred to by several noble Lords in the debate. The introduction of civil partnerships was, as we have acknowledged several times over the last few weeks, a fundamental change in our society. It was a huge step forward. The Act was complex and covered a wide range of different issues. The Labour Government at the time decided to provide this exception for defined benefit pension schemes which are not contracted-out of the state second pension. They clearly did so for a principled reason: Governments do not generally make changes to pension schemes retrospectively. That is the general approach that is taken. That decision was made in 2005 during the passage of that Bill. The noble Lord, Lord Alli, referred to the Equality Act 2010 and suggested that it had then been open to this Government to remove the exception. It is worth reminding the noble Lord and the House that the Equality Act was passed under the previous Government. It was not a Bill that we were still debating and deciding after the election—it predated this Government.
Baroness Thornton
My Lords, I congratulate the Government on meeting two out of the three issues that the Bill has raised for transgender people, and doing so in a sensible and calm fashion. The only outstanding issue left is the proposal being tested here—that same-sex marriage legislation gives spouses the power of veto over whether a transgender partner can have legal recognition of a change of gender. The noble Baroness, Lady Barker, my noble friend Lady Gould and the noble and learned Baroness, Lady Butler-Sloss, have explained the issues perfectly well. I do not think they are complex; they are very straightforward. This is an unfairness and injustice that needs to be balanced out and dealt with in the Bill.
It is an irony and a great shame that, when enacted, the Bill will affect the human rights of transgender people and take them backwards in the UK. I do not think that is the Government’s intention, and I am sure that it is not the intention of the Minister. From these Benches, we think it is important to resolve this issue, which affects a minority of people but, as the noble and learned Baroness, Lady Butler-Sloss, said, can have a very painful and lifelong effect. The Government need to address it. I hope that between now and Report, we will be able to resolve the issue.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble friend Lady Barker for introducing this group of amendments and also to all who have spoken in the debate today. It is an incredibly sensitive issue, and I am mindful of that in responding. The noble Baroness, Lady Gould, made a powerful speech and I want her to know that I was listening carefully to her arguments. The Gender Recognition Panel has been consulted throughout as we have been drafting the Bill and it has not raised any concerns or matter that we have not been able to address.
Before I get to the detail of the amendments, let me be clear from the start—in a way it is a response to a point made by the noble Baroness, Lady Thornton—that our concern in the Bill has been to ensure that as many couples as possible are able to stay married if they wish to do so following one or both spouses obtaining gender recognition. We are proud to make that possible in the Bill and it is something that we very much support.
The provisions in the Bill allow the spouse of a transperson to agree and consent to their marriage continuing as a same-sex marriage after gender recognition. It is not a block or a veto; they cannot prevent their spouse obtaining gender recognition. It is important that I make that point. I will explain in a little bit more detail, but nobody is able to stop anybody getting their gender recognition certificate—of that I can be very clear.
The Bill seeks to strike a fair balance between the Article 8 rights to respect for the private and family life of both spouses. The trans spouse has a right to be granted their gender recognition without unnecessary delay, but the non-trans spouse also has a right to have a say in the future of their marriage following their spouse gaining gender recognition. We have, during the passage of the Bill, listened carefully to interested stakeholders from the trans community. I have been glad to meet some representatives with my honourable friend Helen Grant, the Minister from another place. I am grateful to those who have been involved in the preparation of these amendments, and for the time and effort that have gone into them because I know that has been considerable.
I will turn specifically to what the amendments seek to do. The first aspect is the limit of six months in proposed new subsection (3A), relating to both spouses’ power to initiate annulment proceedings following the issue of an interim gender recognition certificate. The point is that there should be a limit of six months for annulment proceedings to start. In response to a point made by my noble friend Lady Barker and the noble and learned Baroness, Lady Butler-Sloss, I want to make it clear that if a spouse refused to commence annulment proceedings, the trans spouse would be able to do so. In the Bill as it stands, either spouse in the marriage is able to start annulment proceedings. It is not just in the hands of one spouse.
In terms of the second time limit of 12 months in proposed new subsection (3A), once annulment proceedings have been commenced, it is for the court to bring the marriage to an end and, upon that occurring, to issue a full gender recognition certificate to the applicant. To require the Gender Recognition Panel to issue a gender recognition certificate while court proceedings are ongoing would be to require the panel to usurp the functions of a superior court. Where one spouse is deliberately delaying the annulment process, the courts already have the power to deal with this. I will be absolutely clear: either spouse is able to bring forward annulment proceedings and once they start, they are in the hands of the court. Most annulment proceedings take three months—or, from the very outset, six months I think—but it is the court that will ensure that they continue in line with the proper process.
There is another element to the amendments, which I am not sure my noble friend covered in her introductory remarks, but to which I will respond. Proposed new subsection (3B) relates to civil partnerships. The Government do not believe that removing the right of spouses to have a say in the future of their marriage following conversion and gender recognition strikes the proper balance between the rights of both spouses. The agreement of a non-trans civil partner to the conversion of their civil partnership to a same-sex marriage is one thing—it is not the same as their agreement to the resulting marriage continuing as an opposite-sex marriage following their spouse’s gender recognition.
That covers the situation where a couple are already in a civil partnership and one of them has gender reassignment. If the non-trans spouse agrees to transfer the civil partnership to a marriage, to allow their certificate to continue, that is not the same as the non-trans spouse agreeing at the same time that they want to continue to be married to somebody who would then be of the opposite sex but who was of the same sex when they first entered into a civil partnership.
The Government and I are always prepared to listen and to take great care in responding to points raised in debate. It is probably worth mentioning that we have already made an amendment to the Bill to protect the pension rights of transpeople who receive a gender recognition certificate and are then in a same-sex marriage, so that they retain the same rights as if they were married to somebody of the opposite sex. Following the debate in the other place on the fast-track procedure, we have been considering this carefully, and I hope very much to bring forward something positive in that area on Report.
The noble and learned Baroness, Lady Butler-Sloss, and other noble Lords asked whether a spouse is currently notified at the point of application. Under current rules, a spouse is not notified of her trans partner’s gender recognition application. This is because the marriage must be annulled before a full gender recognition certificate can be issued. The process, as it stands, requires somebody to have annulled their marriage before it is possible to get a full gender recognition certificate. However, I have only just been made aware of that issue and would like to follow up with a letter to the noble and learned Baroness, to my noble friend and to other noble Lords to explain the point in more detail.
I regret that I am not able to accept the amendment, but I hope I was able to give noble Lords the assurance they quite rightly seek. This is not about anybody having more control than the other person over the future of their marriage; it is about ensuring that there is an equal share and balance of rights between the two parties, and that it certainly is not just one spouse who has the right to annul the marriage.
Baroness Thornton
I do not think the noble Baroness has actually addressed the issue of one spouse having the right of veto. I think that is very important. Spousal vetoes are spousal consents, which we got rid of in this country many years ago. A husband actually had to consent to his wife divorcing him, for example. I ask the noble Baroness to look at this most carefully. At the moment the Bill is in danger of reintroducing into British law a new matter—the right of one spouse to veto the actions of another—which we got rid of many years ago.
Baroness Stowell of Beeston
I hoped that I had responded to that, because we are clear that one spouse is not vetoing somebody else’s rights. If the transperson in the marriage wants to go for full gender recognition and receive the certificate, they are absolutely entitled to do that. However, if the person to whom they are married does not want to remain married to them, then they have to make a decision about the future of their marriage. We argue that for the non-transperson, whether they wish to remain married to somebody who has gone through gender reassignment is quite a fundamental thing to have to consider. This is not saying that somebody who wants to reassign their gender is not able to do so. The issue is whether they are able to remain in the same marriage. The person to whom they are married also has some right to decide whether they want to remain married to somebody after that person has changed their gender.
Baroness Thornton
The point here is whether the effect of this is that the transperson cannot complete their transition. That is the point the Minister is not answering.
Baroness Stowell of Beeston
Forgive me, but I think I am. I am saying that if someone wants to go ahead with gender reassignment and their spouse does not agree to remain married to them, then it is open to them to start annulment proceedings, as indeed it is to the spouse who no longer wishes to remain married to them. Both of them have the right to start an annulment proceeding, and the person who wishes to change their gender and receive a full certificate can do that. It is not about them being unable to change their gender. They have the right to do that, and nobody is stopping them doing that. However, if the person to whom they are married does not wish to remain married, sadly they have to make a choice. They have to decide, and it must be their choice. It is not a choice that the state can make for them.
This is an incredibly difficult situation, as has been made clear in the course of this debate. Fundamentally, it concerns the decision of two people about their future. Each person has equal rights in the future of their marriage, but they must decide for themselves. These amendments seek to institute a time limit after which the state decides for them. It is not for the state to decide who people should be married to.
Baroness Butler-Sloss
I would like to ask the Minister about notification. Clearly, nothing can happen until the interim certificate is provided. I understand that at the moment it is possible for the spouse not to know anything about the gender reassignment application. The sooner the other spouse knows about it the better, because mediation may be required. One does not want the parties to be in dispute, if possible. The shock to the person who finds that, for instance, her husband is no longer going to be her husband is enormous. The quicker she knows about it the better, in order to help finish the marriage decently and quietly. I understood the Minister to say that this could not be done because other proceedings had to come first. I am asking only for notification at the earliest possible stage that an application is being made. There can be nothing wrong with that, because it will do nothing other than make it certain that both spouses know what is going on.
Baroness Thornton
We are talking here about a balance of rights. I think that I would like guidance, which I would be happy to take in writing or in a meeting. The objections of either spouse might be based on religious conviction, for example, although other objections are possible, too. Equalities cases such as those of Ladele have shown that Article 9 rights need to be balanced with other rights. In this scenario, are the Government explicitly placing someone’s Article 9 rights above their partner’s Article 8 rights? I am not asking the Minister to respond to that question now, but I would like that to be part of this discussion.
Baroness Stowell of Beeston
I certainly accept the noble Baroness’s invitation to respond to her on that point either in a meeting or in writing. However, I can say quite clearly that the rights at issue here are only Article 8 rights; that is, each party’s right to a private family life. I shall of course respond in detail to that.
On the point raised by the noble and learned Baroness, Lady Butler-Sloss, under current rules a spouse is not notified of her trans spouse’s gender recognition application because the marriage must be annulled before a full gender recognition certificate can be issued. In order for somebody to obtain the certificate, they would already have had to deal with the issue of their own marriage, because it is not possible in current law for two people of the same sex to be married.
I take the point that the noble and learned Baroness made about there being a need for spouses to be notified of changes sooner rather than later. Clearly, if the relationship still exists, there will in most cases be a physical awareness of the change. However, since the noble and learned Baroness has raised a serious point, as has my noble friend, I should like to consult my colleagues on it and follow it up in writing.
Baroness Barker
My Lords, I thank everybody who has taken part in what has appeared at times to be a very technical debate. There are veterans in this Chamber of the Gender Recognition Act and they will understand that, although this is a technical subject, it is also a very human one. I thank the Minister for the way in which she answered the questions which were put to her, for she deserves enormous credit.
I did not take part in debates on the Gender Recognition Act, but I know that the rights of the person making the transition were very much to the fore at the time. Therefore, matters such as notification of their spouse were perhaps not as problematic as they seem now. I absolutely take the point made by the noble Baroness, Lady Stowell, that this not about preventing anybody making a transition but about trying to add to the tools that a couple has at its disposal to sort out their relationship. It is about enabling people to address issues at an earlier stage than they have done in the past. It is also about not allowing proceedings to drag on.
We are now several years on from the passage of the Gender Recognition Act, so we are now beginning to see people coming to us with experience of it, including some who have found themselves in this position. At the end of the day, these are families, quite often with children involved, and it is important that when there is a bitter and difficult situation it can be addressed as swiftly as possible. Perhaps these are situations in which it is never possible for everybody to be happy, but enabling matters to be resolved more quickly is beneficial for all in the end. I beg leave to withdraw the amendment.
Baroness Thornton
My Lords, we have had a very interesting and passionate debate about extending civil partnerships to unpaid carers and family members who share a house. I, too, was present at the debate we had during the passage of the Civil Partnership Bill. I said then that I thought my noble friend Lord Alli was right; that was not the Bill. He is right now that this is not the Bill. That is not to say that this is not an important issue. Of course it is a most important issue.
I just wonder why—or maybe I have missed this and a noble Lord can tell me—this issue has not been raised in the passage of the many Bills that we have had before us in which it could have been raised in the intervening period. We have had Bills about carers. I put down an unsuccessful Bill about free support for people at home. There have been many times when this House could have taken on board these issues and made its views clear in appropriate Bills to do with income support and carers. Yet, again we find ourselves discussing this important issue during the passage of a Bill to do with, in this case, equal marriage. That does not do service to both the importance of the issue of carers and the fate of people who care for their relatives, or the issue before us, which is the same-sex marriage Bill. That is a shame.
On these Benches we do not think this is the right Bill. We think this a good issue and an important issue but we suggest that this is not an appropriate amendment. Will the Minister clarify the Government’s review of civil partnerships—which we understand because we helped the Government to put forward the amendment from these Benches in the other place? How far does he believe that review will go and where will it end up? Our understanding is that it is a review looking at whether one would have opposite-sex civil partnerships and, if so, how that would work.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, this has been a very good debate and the issues have been thoroughly explored. I congratulate the noble Baroness, Lady Deech, on introducing it in the way that she did. I do not think any of your Lordships who have spoken in the debate in any way question the validity—or the value, rather—of the relationships that exist between siblings or other family members where they have mutual duties or care obligations. Indeed, the noble and learned Lord, Lord Lloyd of Berwick, mentioned a particular case of a young man who helped someone who was injured in a riding accident. Certainly, our society, country and communities benefit enormously from the caring relationships that exist the length and breadth of the country. I imagine that many noble Lords can think within their own families of relationships of mutual support between a brother and sister, between sisters or brothers, or intergenerational support.
The amendment moved by the noble Baroness would amend the duty in Clause 14 requiring the Secretary of State to arrange for the review of the operation and future of the Civil Partnership Act so that the scope of the matters to be reviewed includes consideration of the possibility of extending civil partnerships to,
“carers and those they care for”,
and to,
“family members … who have cohabited for 5 years or more and are over the age of eighteen”.
The terms of reference for the review of civil partnerships required by Clause 14 were published on 13 June and a copy has been placed in the House Library. The review will look at the operation and future of civil partnerships in England and Wales. It may help your Lordships if I note what the scope is, according to the published terms of reference. They say that the review,
“will cover England and Wales and will … Examine evidence about how well the current arrangements for civil partnerships are working, drawing on views from the public and organisations with an interest and international comparisons … Assess the need and demand for civil partnerships when marriage is available to all, and whether any changes to civil partnership arrangements are necessary … Identify all the implications of and issues raised by the identified options (including risks and devolution issues) … Assess the costs and benefits of the options … Make recommendations for any changes to the operation and future of the CPA”.
In response to my noble friend Lord Lester, it is not the Government’s understanding that that would extend to issues of cohabitation. In a Written Ministerial Statement on 6 September 2011, the Government said:
“The findings of the research into the Scottish legislation do not provide us with a sufficient basis for a change in the law. Furthermore, the family justice system is in a transitional period, with major reforms already on the horizon. We do not therefore intend to take forward the Law Commission’s recommendations for reform of cohabitation law in this parliamentary term”.—[Official Report, Commons, 6/9/11; col. 16WS.]
Lord Lester of Herne Hill
I think that my noble and learned friend may have misunderstood me. I quite realise that the Government have set their face against doing for England and Wales what has happened in Scotland. However, I was asking whether the Government are rejecting the recommendation of the Joint Committee on Human Rights, which welcomed the idea of consultation to take account of the potential discrimination that may arise between cohabiting opposite-sex couples and civil partners. I thought that was the forceful point that really led to the public consultation.
Lord Wallace of Tankerness
I apologise if I misunderstood the point being made by my noble friend. As I indicated last week, clearly we are giving consideration to all the recommendations of that report. No one has told me anything to the contrary since then and I think it is still our ambition to have that report available for your Lordships before consideration of this Bill on Report. The matter will obviously be dealt with there.
Lord Lester of Herne Hill
I am sorry but what I am really asking the Minister is whether the Government are saying that this review will—or will not—cover the point that I have just made. It is important to know.
The point that I was going on to make is that the amendment simply appears to extend the review. However, our concern is that the extension proposed would undermine a core principle of civil partnerships. As the noble Lord, Lord Alli, said, this is about civil partnerships as they are currently understood, have developed and have been used in the years since they were established. It is important that we are talking about the nature and relationship of civil partnerships as understood, because this is a very different type of relationship.
The noble Baroness, Lady Deech, and the noble Lord, Lord Anderson, were quite candid. The noble Baroness, Lady Deech, quite properly said there would be no compulsion. Of course there would be no compulsion. She went on to say that couples would sit down and work it out. The noble Lord, Lord Anderson, said that they would take professional advice on whether the tax or social security arrangements were in their interests. We are talking about marriages which, in a religious context, would involve the engagement of a priest. I now hear that people wanting to take them on would probably have to engage the services of an accountant. These are very materially different kinds of arrangements. One is meant to be an expression of commitment and a desire to live together to the exclusion of others for life, and one is really tantamount to a tax arrangement. I do not think I am doing an injustice to the way it was actually phrased. That in no way diminishes the quality of care that exists. That was indeed the basis of the argument. My noble friend Lord Marks said that it could very well undermine the current civil partnerships as understood.
Lord Pearson of Rannoch
My Lords, that was not quite the question. The question was how much these family partnerships save the taxpayer in care costs and how much it would cost to give them the same advantages as civil partnerships, not necessarily using the same legal framework. I suggest that if the Government do not want to face this, it is purely because there are too many of these partnerships. There are very many more: a multiple of 53,000. That is why the Government will not face up to this duty, which has been owing to these people for a very long time.
Lord Wallace of Tankerness
My Lords, I apologise if I misunderstood the question asked by the noble Lord. If information assessing the benefit to the state is available, that question may be capable of an answer. I will certainly ensure that that information is made available. I imagine there will be plenty of opportunities to discuss these kinds of issues when the Care Bill, which is already before your Lordships’ House, is debated at greater length. I will certainly ensure that the noble Lord gets the estimates that have been made, and I apologise if I misunderstood his question.
The review will look at whether civil partnerships are still needed, or whether there is a case for extending them to opposite-sex couples. Much of this debate proceeded on the basis that they would continue, whereas in fact that is only one of the options. I note the comments of the noble Lord, Lord Alli, about how he saw civil partnerships perhaps developing, and how there might be a liturgy associated with them in times to come. No doubt that is a point he and others will make to the body conducting the review. Questions do arise from the change to marriage law which we are making in this Bill. It will result in the apparent anomaly of same-sex couples having the choice between marriage and civil partnership, while opposite-sex couples will only be able to marry. It was for that reason that we sought this review.
Regarding parents, children and siblings, as the noble Baroness, Lady Deech, said, the positions of siblings are indistinguishable. However, it is the case that parents, children and siblings already have a legally recognised relationship, one to the other. These relationships already afford certain rights. For example, children and siblings are recognised in intestacy rules. The extent of those rights is clearly a separate issue from the question of future civil partnerships. That is why we believe that it would be inappropriate for them to be considered as part of this review. It could lead to legitimating relationships within the prohibited degrees of relationship.
We will come later to the amendment of my noble and learned friend, Lord Mackay of Clashfern. However, even if the reasons for the prohibited degrees of affinity perhaps stem back to what one might call a biological concern, there are still issues of power relationships within very close families. These may not necessarily be obvious, but there is also protection there against any undue pressure. As was also said in one of the contributions, what if life circumstances change? Suppose that two sisters enter into a civil partnership, and one later wants to marry someone else or to enter into a civil partnership with someone else.
The noble Baroness, Lady Hollis, made the point that there is a legal entry but there is also a legal exit. In these circumstances, the idea of a judicially determined divorce—let us not beat about the bush, it would be a divorce—could very well be much more damaging to a previously existing relationship than would otherwise be the case. I think it was the noble Lord, Lord Pannick, who reminded us of Irving Berlin—yes, there was a reason why I hesitated over his name—and his theory of “Lord help the sister who comes between me and my man”. That is probably a very pertinent point. I know the point, but the reason I hesitated was because I was told that the late Isaiah Berlin once sat next to a very prominent politician who could not understand the question about “White Christmas”, so I wanted to make sure that I had actually got the name right.
Lord Pearson of Rannoch
My Lords, the noble and learned Lord has just amused your Lordships about Irving Berlin, but what he said shortly before that is not right either, is it? One cannot generalise too widely on these things, but surely the bitterness that comes with the breakdown of a sexual relationship is likely to be greater than a breakdown in a sibling or family relationship.
Baroness Farrington of Ribbleton
Having sisters of my own, I intervene to suggest that the noble Lord, Lord Pearson, has not seen sisters at war with each other.
Lord Wallace of Tankerness
My Lords, I should perhaps just leave this on the reply of the noble Baroness, Lady Farrington. Turning to the rights and responsibilities of carers, of course they play an invaluable role in our society, caring for people. No one disputes that. The Government strongly value the role and commitment of carers. Indeed, we set out our priorities in November 2010 in a cross-government strategy: Recognised, valued and supported: next steps for the Carers Strategy. The mandate to the NHS Commissioning Board also contains a clear objective on enhancing the quality of life of people with long-term conditions and their carers. Achieving this objective will mean that by 2015, the 5 million carers looking after friends and family members will routinely have access to information and advice about the available support. When it comes to financial support for carers, the Government have announced that carer’s allowance will continue to exist as a separate benefit outside of universal credit, so that carers will continue to enjoy the support of a dedicated benefit.
Baroness Cumberlege
My Lords, I thank the Minister for giving way. I was very intrigued by what he said about the Care Bill, which is now before the House in Committee. I appreciate my noble friend Lady Knight’s comment about how we get really fed up when we are told that it is not the appropriate Bill to propose a certain amendment. My noble and learned friend the Minister has said that the Government really appreciate the work of carers and we are grateful for it. However, if the Government are so committed to the work of carers, would it not be possible for the Government to bring forward their own amendment to the Care Bill?
Lord Wallace of Tankerness
That is the responsibility of a different department. I would be very brave to make that kind of commitment here without consulting, but I am sure that my noble friend’s words will be noted. The noble Lord, Lord Elystan-Morgan, made the point that he never liked the arguments about vehicles. I am not really trying to make that argument, because I have argued that there are in fact some very serious differences. The noble Baroness, Lady Hollis, also made the point that the issues being raised are really not appropriate for this Bill. They are relevant perhaps to a finance Bill rather than a partnership Bill, as they relate to the rules of inheritance tax or the terms of benefits.
As the noble Baroness knows, those arguments have been well rehearsed. I was not in your Lordships’ House nine years ago, but my noble friend Lady Northover has said in response to one or two of the comments that have been made, “Oh, I remember that point being made then”. The Government then sought to oppose proposals of this kind, and this Government share the view that civil partnership, as it then was and as it has evolved and developed over time, is not the appropriate place to open up these new, significant policy questions. The review is about civil partnerships. It would be inappropriate to open it up to look at unrelated issues of carers and family law, and particularly the question of tax and benefits. We have also indicated that we do not wish to delay or add to the cost and complexity of a review which the Government have committed to undertake as soon as possible in response to calls that were made in the other place. The other issues that are opened up are vast, as the noble Baroness, Lady Hollis, made clear. I therefore ask the noble Baroness, Lady Deech, to withdraw her amendment.
Baroness Deech
My Lords, before I forget, perhaps I may correct the Minister on the following point: it was Irving Berlin who was invited to the White House to discuss politics and the conduct of a war. It was only much later that it was discovered that the President had called for Isaiah Berlin.
I am grateful to all those who have spoken. Our discussion has caused me to focus on three themes. The first is obvious: there is no time to waste. There are lots of old folk who need help. Every time I have inquired at the Whips’ Office or the clerks’ office when Bills have come forward, I have been told, “Oh, it’s not relevant. This won’t do for siblings”. It is not that the issue has been forgotten, as some have said.
I am focusing also on freedom of choice. Once this Bill has passed, everybody in the country who is over 16 will be able to choose to enter a legal bond with somebody else, except those who are related. That is why I do not support the noble Lord, Lord Lester—as he knows—in relation to cohabitants. They can choose; they could get married. Maybe in future they could have a civil partnership and make a contract if they have not done so; I would not dump our very unsatisfactory matrimonial law on them without their choice. However, siblings have no choice at all. They are faintly recognised as relatives in some other laws, but there is really very little help for adult siblings.
There has been some talk of my amendment somehow devaluing equal marriage. I say to those who have made that point that this Bill is about equality. Those who are gaining equality should not rest on their laurels. On the contrary, having reached their target, they should hold out their hand to others to give them the same help, despite perhaps the same objections, as is being given in this Bill for same-sex marriages. It is not a religious question. I cannot imagine for a minute that any review would ever expect any religious authority to bless the union of related people. Religion has nothing to do with it—so I did not quite follow the argument of the noble Lord, Lord Alli. What I am thinking of is some union—it need not necessarily be a civil partnership—some formal contract or some recognition that could be extended to siblings, and, believe me, there has been no opportunity to do this in any of the Bills that I have followed during the past few years.
I support the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Hollis, in saying that this need not cost anything in relation to inheritance tax. It could be rolled over; it could be deferred at nil cost to the Government.
I do not agree with those who say that civil partnerships are different. Sex has got nothing to do with it—some chaps here may not agree with that—now that we have changed the definition of marriage. Even at the moment, if two people get married, no one inquires as to whether it is a sexual relationship. As we all know, neither adultery nor consummation will play any part in remedies or definition of marriage in the future. This really has nothing to do with sex. We are not talking about sisters committing incest—that is a crime anyway. We all realise that that is beyond the bounds of possibility; it is nothing to do with that. It is to do with the fact that the whole definition of marriage has changed. My bet is that a new case before the European Court would probably succeed because the law of Europe prohibits discrimination on the grounds of birth, status and sex inter alia. I cannot see a ground for not extending some advantages, as appropriate, to those who are related and therefore unable to take advantage of all the variety of unions that are open to others.
Baroness Royall of Blaisdon
My Lords, I am here as somebody who celebrates marriage and values the ethos of church schools, but I am also a very strong supporter of same-sex marriage. I have listened carefully to noble Lords’ concerns but I am not persuaded of the need for this amendment. Like the Secretary of State, I would not support a Bill that encroached on religious freedom or on freedom of speech, but this Bill does not do that.
I apologise for not having been here last Wednesday evening. However, of course I read Hansard, and many points similar to those made in the debate last week were made today about teachers. As was said on Wednesday it is clear that teachers will be under a legal duty to teach the fact of the law of the land—that yes, gay couples will be able to get married. However, those selfsame teachers in faith schools will also be able to express their personal views or those of their faith about marriage. Noble Lords have cited the present guidance, which is extremely well balanced.
I was very struck by a speech given by the right reverend Prelate the Bishop of Norwich in the Public Bill Committee on 12 February. I will quote a section of what he said:
“Our own view is that the promotion of marriage is part of sex and relationship education. What Church of England schools are good at doing, because the vast majority of them are community schools, is integrating the convictions of the Church of England with a recognition that the Christian opinions held in that school are not totally recognised within the whole of wider society … There is a balance to be struck, and I think that the Secretary of State for Education was right to say that in teaching there will need to be a recognition that we have a society in which same-sex marriages—assuming the Bill goes through—are possible, and of course the teacher would also indicate why it is that within the majority of Christian traditions such marriages are not celebrated”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 12/2/13; col. 26.]
That right reverend Prelate had it about right.
I noted, as did the noble Baroness, Lady O’Loan, that in the other place the Minister, Mr Hugh Robertson, undertook to take this issue away and discuss it further with religious groups. I very much look forward to hearing what he will have to say.
Baroness Stowell of Beeston
My Lords, this has been a wide-ranging debate. I am very grateful to the right reverend Prelate the Bishop of Ripon and Leeds, for his introduction of his amendment and for quoting what I said on Second Reading about this Bill being as much about promoting religious freedom as it is about allowing same-sex couples to marry. He was absolutely right about that. I am pleased that he was clear that his amendment is about religious freedom of faith schools. He sought to explain that this particular issue is quite different from the earlier education matters we discussed last week, which focused on the general freedom of any teacher to express a personal view rather than on the teaching of sex and relationship education in religious schools specifically. In responding to this debate, I will repeat several points that I made last week, not least because as the debate has unfolded it has become clear that the way in which the House considers this issue is very much to do with education in a wider context than just about the very narrow issue of religious freedom.
Noble Lords and others have expressed a concern that schools’ freedom to teach their beliefs about marriage according to their religious tenets will be threatened by the effect that Clause 11 will have on the meaning of “marriage” in Section 403 of the Education Act 1996 and guidance made under it by the Secretary of State, to which schools must have regard. As has already been noted, the Government have received representations from religious groups, in particular the Church of England and the Catholic Bishops’ Conference of England and Wales, expressing concern that Clause 11 might affect the ability of faith schools to continue to teach about the importance of marriage for family life and the bringing up of children in line with their religious tenets. This concern was echoed by Muslim leaders in their public letter of 18 May.
The noble Lord, Lord Alli, was the first to raise a point about the origination of Section 403. It is worth saying that it was not in a piece of legislation originally in the 1996 Act. Section 403(1A) was inserted by the Learning and Skills Act 2000. I will begin by explaining that schools with a religious character provide an excellent education for their pupils while reflecting their beliefs across the curriculum, including in sex and relationship education. There is absolutely nothing in this legislation that affects schools’ ability to continue to do this in future.
In schools of a religious character, teachers already deal admirably with teaching about marriages which may not be recognised as such according to the tenets of the relevant faith—for example, marriages of divorcees, or mixed-faith marriages. Last week the noble Baroness, Lady Farrington, gave us a great example of how teachers deal with sensitive matters. The noble Baroness, Lady Richardson of Calow, reminded us that it is important that teachers must be conscious of pupils whose parents are of the same sex and married when teaching about marriage in the context of sex and relationship education. My noble friend Lord Baker also made a similar point. However, my noble friend Lord Eden reminded us of the rights of parents who are concerned about sex education and its content. I responded to his concern last week in the debate about the policies that are in place to ensure that schools properly consult parents on the content of sex and relationship education.
Last week I forgot to make a point, which is worth making in the context of this debate, that sex and relationship education is compulsory in maintained secondary schools. Primary schools are not required to teach sex and relationship education, further than anything specific in the curriculum for science. It is important that I make that point, because it is sometimes forgotten.
In order for teachers to handle the very sensitive situations in which they often find themselves, they already interpret the Secretary of State’s guidance according to their religious tenets. This will be no different when marriage is extended to same-sex couples by this Bill. If the tenets of a particular religion do not recognise same-sex marriage, they will be able to approach teaching about marriage in exactly the same professional way that they do now. Although teaching will of course need to cover the factual position that marriage under the law of England and Wales can be between both opposite-sex and same-sex couples, faith schools will also be able to explain the relevant tenets of their religion on this matter.
I think it was the exchange between the noble Baroness, Lady O’Loan, and my noble friends Lord Phillips of Sudbury and Lord Elton, about the Secretary of State ensuring that teaching about marriage is given in accordance with religious tenets. It is important for me to make the point that I fully understand the intentions of the right reverend Prelate in the amendment that he has put forward, but I am sure that he and other noble Lords will agree that it is not appropriate for the Secretary of State to issue guidance to secure adherence to religious doctrine in teaching. This would amount to inappropriate interference by the state in matters properly for the relevant religious denomination. How faith schools approach such teaching is quite rightly a matter for the schools and faiths themselves.
While I think it is broadly acknowledged that the Secretary of State’s current guidance does not impinge on faith schools’ ability to teach in line with their doctrines, concern has also been expressed that the duty on the Secretary of State might allow future versions of the guidance to preclude religious schools from teaching in accordance with their beliefs. This was a point that my noble friend Lady Cumberlege raised—when the noble Baroness, Lady Farrington, referred to my noble friend Lady Knight, my noble friend Lady Cumberlege expressed this point. However, the noble Baroness, Lady Farrington, made my response for me by saying that it is clearly not the intention behind this legislation to envisage circumstances in which any Secretary of State might seek to interfere with matters of religious doctrine in the future. We are framing this legislation as things stand at the moment, and there is no way in which we are suggesting that a future Secretary of State might do anything different, but nor can I say from this Dispatch Box that things may not change in the future.
The noble Lord, Lord Pannick, noted that the second part of the duty in question, which is Section 403 (1A)(b), specifies that the Secretary of State’s guidance must ensure that pupils are,
“protected from teaching and materials which are inappropriate having regard to the age and the religious and cultural background of the pupils concerned”.
Therefore, the existing legislation already makes clear that it is absolutely inappropriate for material to be used that would not have regard for religious faiths. For the Secretary of State to issue guidance specifying that a particular version of marriage be endorsed counter to a school’s ethos, and by extension the religious background of many of its pupils, would not meet this criterion that already exists in legislation. I emphasise that point in response to my noble friend Lady Cumberlege, who expressed concern that the new legislation would somehow remove some protection from schools that are against promoting same-sex couples being able to marry. I want to emphasise that that is absolutely not the case.
This country has a strong tradition of schools with a religious character; they are a valued part of our education system. It would be pointless to maintain a system of designation if such schools were unable to teach in accordance with the tenets of their religion. For this designation to have significance, the school has to deliver what it was set up for. The inherent right of schools to deliver their curriculum and to interpret guidance according to their ethos is evident in their existence as such schools. As I have described previously, such schools do already teach about topics that may be considered sensitive, such as divorce, and they do so without issue.
While the Government are clear that this Bill will not impinge on faith schools’ ability to continue to teach about marriage in line with their religious tenets, I do of course understand that the effect of Clause 11 on Section 403 of the Education Act has led to some concern about this. While we are not convinced that there is a need to change the legislation to clarify the position, we are continuing to discuss this with the churches. As the noble Baronesses, Lady O’Loan and Lady Royall, said, the Government undertook to consider this issue in another place. I can assure noble Lords that I and my colleagues are continuing to examine it in detail.
Lord Lester of Herne Hill
Will the Minister confirm whether the Government agree with my view about the Human Rights Act and the convention giving absolutely clear legal protection?
Baroness Stowell of Beeston
I think that I have been clear in my response. I have just said that we are not convinced of a need to change the legislation to clarify the position because we believe that the protections exist. However, as I have just said, we committed to consider this further. We are discussing it with the churches, and we will honour that commitment to continue to consider it and to discuss it further. However, I was about to say that clearly, in the course of doing that, one of the things that we will want to do is to take account of all the contributions that have been made to today’s debate. The process of scrutiny of legislation suggests that it is proper for us to make sure that we take account of debates in this House, and indeed in the other place, in framing legislation.
That leads me on nicely to conclude by addressing the noble Lord, Lord Anderson of Swansea, as he suggested that the Government have not been minded to listen to debate through the passage of this Bill and make amendments. To give him some comfort and to remind the House that that is not the case, I will point out that in the Bill so far the Government have agreed to an amendment which includes a review of civil partnership. We have included an amendment to the Public Order Act and we have some amendments which clarify things around ecclesiastical law which has been requested by the churches. We have made an amendment to protect the spouses of transpeople so that if they continue in those marriages they retain the pension rights from the terms when they were originally married. We have further protected employed chaplains, we have made some changes for the Church in Wales, and we have dealt with void marriages. We are listening to the debates that are taking place in your Lordships’ House, as we did in the other House through the passage of this Bill. If we think that it is necessary to clarify the legislation in order to ensure the proper outcomes that we are seeking, which is to allow same-sex couples to marry and for religious freedoms to be protected, that is what we will do.
That is the commitment that the Secretary of State has made and I am happy to repeat it from the Dispatch Box. However, it is important that we do so only where it is necessary and only where it clarifies and helps us in the passage of the Bill, and provides the outcomes that we are all seeking to achieve. I hope that the right reverend Prelate is able to withdraw his amendment.