Marriage (Same Sex Couples) Bill
(11 years, 5 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
18:26 - Division on Amendment 94 - Ayes: 89 / Noes: 267 - Amendment 94 disagreed.
“( ) Omit sub-paragraph (1).”
Lord Alli
My Lords, I shall speak also to my manuscript amendment, Amendment 84A.
The amendment is, on the face of it, about pensions, but it is also about equal treatment of the ones we love. This is the only point in the Bill where we treat same-sex couples who get married prejudicially when compared with opposite-sex couples. All married couples should be treated equally. It is a principle that we have fought throughout the Bill to maintain. I know that it is a principle that the noble Baronesses, Lady Stowell of Beeston and Lady Northover, and the noble and learned Lord, Lord Wallace of Tankerness, have defended. It is something that the majority of this House, regardless of party affiliation, has defended. If we let this clause go through as it is, it will be the first and only time that we breach that principle. Let me explain why.
If I were to marry a woman and was a member of an occupational pension scheme and died, my wife would be entitled to a survivor’s pension from my occupational pension scheme backdated to, I think, 1988. If I were to marry a man and was a member of the same occupational pension scheme and died, my partner’s survivor’s pension benefit would be backdated only to 2005, the date on which we introduced civil partnerships.
The Bill takes the inequality in the Civil Partnership Act and applies it to same-sex marriages, instead of taking the position of opposite-sex couples and equalising the pension arrangements. In effect, that means that same-sex couples are treated as civil partners for those schemes. That might be necessary if there was a huge cost to the public purse, given that we are in difficult economic times. However, let me make it clear in absolute terms that no public money is required to make this change. I will repeat that, because the Government may try to imply that there would be: no public money is required to make this change. If I am wrong, I am more than happy for the Minister to explain why. The cost is to private occupational pension schemes; that is in Bill. The Government’s estimate puts the maximum additional cost at approximately £80 million for those private schemes. By their own admission, that is a drop in the ocean, given the size of those pension funds.
The Government know that this is wrong. In 2005 the Government changed the rules of their own pension scheme for civil partnership survivor benefits, because it felt wrong to them to apply this principle to public service pensions. Equally, two-thirds of the private occupational pension schemes in this country believe that it is wrong and have changed their policy. We heard from the spiritual Benches that the Church of England has changed its pension scheme arrangements to reflect this. Why, therefore, let one-third of occupational pension schemes discriminate against married couples in the future only on the basis of sexual orientation? It is worth mentioning that, in order to qualify, the scheme member will have to have fully paid up towards the scheme. That requires a private occupational pension fund to disregard the contributions made prior to 2005 to stop the survivor’s benefit coming through.
I said in Committee that when you lose your husband, wife or long-term partner, it is, by all accounts, a terrible experience. The last thing you want to do is to have to argue your case to a pension fund trustee. Given that we have this legislation, it must be insulting to be told that having married, you are now to be treated as a civil partner.
Why are the Government opposed to this amendment? It is the Treasury and DWP. I know that the Minister will be forced to read out whatever they have asked her to read out. I suspect that it will go something like this. First, “We foresee problems with this amendment, as there may be unforeseen implications,”; or, secondly, “Even though there is no direct cost to the Treasury, we can see the possibility that someone could take a case that might lead to the possibility that we might at some time have to equalise pensions for men and women”—by the way, it would be a miracle if that case came off; or, thirdly, “Let us throw in a spurious cost: £2 billion, £3 billion or £4 billion—the Minister to choose whichever number they wish”—that is to do with gender equalisation of pensions, not occupational pension schemes—but noble Lords Lordships will be so bored and confused that they will not care; or, fourthly, “Let us make out that it creates an inequality because this is an equality Bill”; or, fifthly, “Let us say that we do not like to legislate retrospectively even though we changed our own pension funds retrospectively as soon as we could”.
Yesterday, I met the pensions Minister by the kind invitation of the noble Baroness, Lady Stowell. At the end of our discussion, I could honestly say that I was no clearer about the objections of the Treasury or DWP to this amendment. The pensions Minister gave the usual unconvincing and unintelligible Treasury line. The Government are making a mountain out of a molehill here. This is a tiny issue affecting a small number of people at a terrible time of need.
I have also tabled a manuscript amendment which seeks to give the Government an alternative. I am calling it the “Lord Lester principle”. Basically, it offers the Government a two-tier process: first, a review of the issues involved and a report back; and secondly, order-making powers to implement their decisions, as we did with humanist marriages. If the Minister feels that the Government need more time, I would be happy to discuss these alternatives to try to find a solution before Third Reading. If the Government are not prepared to do that, I will move my manuscript amendment, Amendment 84A, and seek to test the opinion of the House. I beg to move.
Baroness Howe of Idlicote
My Lords, as in Committee, I am pleased to support the amendment moved by the noble Lord, Lord Alli. As he has pointed out, the amendment represents a crucial opportunity to ensure that the introduction of same-sex marriage in this country is achieved with exactly the same basic benefits and insurance rights for male/male and female/female as for male/female. If we do not address this final discriminatory hurdle now, it will be several decades before all gay couples achieve equality. For gay men and women, it will mean decades of waiting as they continue to live with the reality that their loved ones may not be provided for when they die; decades in which individuals who have worked and contributed to their pensions, planned and been prudent, are subject to the whim of employers and pension providers, who may choose to pay a pittance in survivor benefits for no other reason than the gender of their spouses. If we do not remove this last remnant of historical injustice, the “second tier” of marriage will continue in contradiction of all the calls for exactly equal treatment that we have heard again and again over the past few days in your Lordships’ Chamber.
A brief look across the Atlantic may help to illustrate the point. Two weeks ago, in the landmark case of United States v Windsor, the Supreme Court considered the case of Edith Windsor and her spouse and partner of 44 years, Thea. They lived together in New York, a state which recognises same-sex marriages, and when Thea died in 2009 she left her entire estate to Edith. Had they been a heterosexual couple, Edith would have inherited the entire estate tax free. However, US federal law prevents their marriage being recognised for the purpose of inheritance tax and Edith was hit with a bill for $363,053. The Supreme Court found the law to be unconstitutional. A key plank in its reasoning was that the treatment of Edith and others like her had the effect of creating a separate sub-set of legal marriages that were treated less favourably. To use the words of Justice Kennedy,
“it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition”,
and,
“the principal purpose and the necessary effect of this law are to demean those persons who are in lawful same-sex marriage”.
The effect of this judgment was to grant legally married same-sex couples access to the same federal entitlement available to heterosexual married couples including tax, health and pension rights.
Questions of taxes and pensions may seem mundane to some, but I can confidently say that this change in the law would mean the world to those people whom it affects. Among them is a client of Liberty, John Walker. I mentioned him when your Lordships debated this issue in Committee. John and his partner have been in a loving, committed relationship for more than 20 years, and they registered for a civil partnership at the earliest opportunity. Yet John’s partner is currently entitled to a fraction of the survivor benefits which would be available to a female spouse, even one John met and married today.
It cannot be right to continue a two-tier discriminatory marriage system. Surely John deserves the peace of mind of knowing that his partner will be equally provided for. Is that not exactly what the Government’s commitment to securing real equality for gay couples really means?
Lord Lester of Herne Hill
My Lords, I too have put my name to this amendment. After two such full speeches by the noble Lord, Lord Alli, and the noble Baroness, Lady Howe of Idlicote, it would be a waste of your Lordships’ time for me to say anything more than that I agree with both of them, but I also believe in the art of the possible. That is why I very much hope that manuscript Amendment 84A, or some form of it, will be agreed by the Government, because in that way we will have some hope of getting real change.
The Lord Bishop of Guildford
My Lords, the noble Lord, Lord Alli, has already spoken of some support from these Benches for his amendment. I will not repeat what I said at an earlier stage, but I wish to support him again, and also, as the noble Lord, Lord Lester, has just said, to support the device of regulation as a practical way forward.
Baroness Noakes
My Lords, my heart is completely with Amendment 84 in the name of the noble Lord, Lord Alli, but I have trouble in my head to completely agree with the amendment, mainly because we are opposing a retrospective burden without any evidence of what that impact might be. I completely understand the case for the individuals who are affected. We do not know where the cost will actually be borne. The cost is low overall, but it is not correct to compare it to the amount of assets under management, as was done in Committee, because the instance might be in very small pension schemes. It might be the instance of a relatively small scheme with a relative small number of members, one highly paid member with a civil partner—or married in a same-sex couple—who is very much younger. That would have a very disproportionate impact on the actuarial valuation of the liabilities in that small scheme, which could be a charity or a small business. I would be much more comfortable if we knew what the impact was. We may still, knowing the impact, go ahead, and that is why I strongly support Amendment 84A but have a little difficulty with Amendment 84.
Lord Higgins
My Lords, like my noble friend who has just spoken, I, too, have serious reservations about this amendment. Indeed, I am opposed to it. I take that view in the light of experience—some eight or nine years on the Front Bench on work and pensions and as a former chairman of a pretty large company pension scheme. This amendment would effectively remove the discretion of the trustees to exercise their powers in a way that is favourable or unfavourable to a particular group of people in the pension scheme. We do not know the exact cost, although the noble Lord, Lord Alli, put it at £80 million. I leave it to my noble friend on the Front Bench to say what the effect would be on public finances but the reality is that this would affect a number of pension funds.
We have to look at this in context. If there was one individual disaster, more than any other of Gordon Brown’s time as Chancellor of the Exchequer, it was the change that he made to the taxation of company pensions towards the beginning of the Labour Government. The result has, undoubtedly, been the decimation of final salary pension schemes and a transfer to defined contribution schemes. Either way, we have seen the finances of pension funds seriously deteriorating and, in many cases, funds giving up the final salary scheme or giving it up as far as new members are concerned.
As the noble Lord pointed out, a number of trustees have gone along with what the amendment does. However, some have not, and we must leave them the discretion. There may be good reasons why they have not, not least financial ones. It may be that some scheme is tottering—as many have been over the past 10 or 15 years—to the point where it needs to be decided whether the scheme should be closed or changed from a final salary to a defined benefit scheme and so on. It is wrong retrospectively to put a charge on the funds in such a scheme, to which the existing members are contributing but not the people coming into the scheme. Indeed, if we were to accept the amendment, we may find people in a same-sex marriage are brought into the final salary part of the company scheme when others, in the defined contribution part of the scheme, have not been allowed the same benefits. That would, I think, be unfair.
We should leave it to the overall discretion of the trustees. No doubt, over time, it is likely that many more will create the situation that the noble Lord, Lord Alli, speaks of, if they have not yet. However, we should leave it to the discretion of the scheme and the trustees of the scheme—it is their responsibility—and not retrospectively impose a cost on those schemes. That, I think, would be wrong.
Lord Deben
My Lords, throughout this debate, we have had to say to groups and individuals who are very unhappy about this legislation that, in the cause of equal marriage, they will have to contain their unhappiness. We have said, for example, to registrars—I use the example because I voted the other way in that case—that they will have to accept the change in the law.
It worries me that the moment that we talk about money, all sorts of people who have been perfectly happy up to now start being concerned. I hope that the right reverend Prelate will not be upset when I say that I remember, in the debates in the Synod of the Church of England, that everybody was very happy until you started talking about money. Once you talked about money, it was surprising how all kinds of other issues were brought in. One of the things about pensions is that it can be more expensive for people if they get married than if they do not. Nobody goes around saying, “That is a pretty mean thing to do. That means less for the rest of us”. That is not how a pension scheme works.
It seems to me perfectly acceptable for the Government to have the opportunity—which the noble Lord, Lord Alli, with characteristic care, has offered—to look carefully in case one or two of the worries of the noble Lord and the noble Baroness who have spoken before turn out to be true. There might be something that we have not really thought through and it would be wrong to exclude that possibility. However, I do not think that this House can say that, for the time going forward, one sort of marriage will work in one way and another will work in another way. After all, we opposed an amendment that delicately pointed towards that by a majority of more than 200. It seems to me that Mammon is getting into this, and Mammon should always be very carefully considered before Mammon is allowed to win. I hope that the Minister accepts at the very least that every effort will be made to ensure that this Bill means what it says, which is equal marriage, and that it does not mean equal marriage until it comes to money, when the Treasury gets in on the act.
Lord Elton
My Lords, I remind my noble friend that we are advised to make friends of both God and Mammon. In this context, we are under the shadow of an enormous majority in the Second Reading debate, in which the House accepted the principle of equality. In Committee, I sought to apply that principle to the process of converting a civil partnership into a marriage by requiring those undergoing that process to swear an oath similar to that sworn by those getting married. I withdrew it partly at the request of my noble friend on the Front Bench and partly out of prudence in order to consider it before the next stage, which is the current stage. My noble friend was ahead of me at the Dispatch Box with an arrangement which comes just about to the same place with regard to my marriage—or, rather, to my amendment.
Lord Elton
I assure noble Lords that it is very difficult to get close to my marriage. My noble friend put forward an arrangement that gave the Government time to think and gave the Secretary of State the power to review and to act if it seemed appropriate. I think I was a little ungracious in moving my own amendment because I was so pleased with how clever my own drafting had been. However, that was the principle that I sought to support.
I was rather surprised that the noble Lord, Lord Alli, who had been quite supportive of my amendment in Committee, came forward with all sorts of reservations and was unable to support it earlier. Your Lordships will now be expecting me, with a certain satisfaction, to say that I cannot follow him so far. However, I am a man of principle, and I think that we need to have equality through this Bill. Amendment 84A gives the Government the power to pull out of this if necessary. I remind them that, during the time that they are considering, reviewing and consulting, they might go through the same reviews and consultations with the insurers as they have done over, for instance, flooding. The Government are used to talking to insurance companies and can at least find out where the shoe pinches, and this amendment would allow them to do so. I do not support the first amendment in this group, which locks them in, but I believe that the second one is a reasonable proposal, which honours the principle that we reluctantly have accepted; but, having accepted it, I think we should be gracious about it.
Baroness Lister of Burtersett
My Lords, I support the first amendment for reasons of principle, about which the noble Lords have spoken. The principle of equality is very important. It seems to me that, in Committee, the Minister was unable to respond with any arguments at all based on principle. They were purely pragmatic arguments, which I do not think noble Lords found very convincing.
Amendment 84A, which I support, is very much in line with the recommendation of the Joint Committee on Human Rights, which argued that,
“we consider that the Government should carry out a full review of pension provisions in relation to survivor pension benefit entitlements of same sex married couples and civil partners to ensure that there is no unjustifiable discrimination in pension scheme provisions”.
Baroness Royall of Blaisdon
My Lords, I have added my name to manuscript Amendment 84A, tabled by my noble friend Lord Alli, because we believe that this is the most sensible course of action at this stage. Like my noble friend, we want to ensure that there is no discrimination in the Bill and that there are not two tiers of marriage. I, too, am extremely grateful to the Minister for managing to arrange a meeting with the Pensions Minister yesterday.
We have always accepted that there would be some direct cost to private pension schemes. However, £18 million, which is the figure often quoted, is a drop in the ocean for schemes worth an estimated £76.4 billion. The Government have asserted that equalising pensions benefits for civil partners and married couples of the same sex after this Bill could leave the public sector liable for costs of up to £3 billion to £4 billion. However, they have been far more reluctant to explain where those costs might come from.
As my noble friend said, the Government have already acted to equalise survivor benefit entitlements for civil partners with those of widowers for public sector and contracted-out schemes. The £3 billion to £4 billion estimate is based on the assumption that the removal of the legal exemption for civil partners will leave the Government being forced to equalise the entitlements of widowers with widows, thus levelling everyone back to 1978. But why they believe this to be a significant risk remains unclear.
The 1978/1988 distinction between widowers and widows was based on the historic position of women as being largely dependent on their husbands for income. Indeed, the courts have only recently upheld this distinction in the case of R v Iain Cockburn and Secretary of State for Health, where the judge ruled that there was an “objective and reasonable justification” for this because there had been, as the Government argued, a progressive realisation of gender equality and the initial rules had been set up to recognise the weaker economic position of widows.
Without the provision within this Bill, female spouses of same-sex marriages would, we presume, simply be treated as widows for the purposes of survivor benefits and male survivors as widowers. But nothing in my noble friend’s Amendment 84 would affect the historic male/female distinction that the courts have so recently upheld. To argue against this on the basis of retrospectivity is also flawed as the Government violated this principle themselves when levelling civil partners back to the entitlements of widowers, as they quite rightly did for public service pensions and contracted-out schemes.
In some sense, it could be said that by creating a different entitlement for widows and widowers of same-sex marriages from those of opposite-sex couples the Government are actually weakening their case against future challenges to widow/widower distinction. However, despite agreeing with my noble friend that the Government’s argument here is extremely tenuous, we want to offer the Government an opportunity to remove this inequality in the most appropriate way, as noble Lords on the Benches opposite have also said, and that is why I have added my name to the manuscript amendment today.
By voting for Amendment 84A, noble Lords will be saying, “We are not happy about the provisions within the Bill as it stands so we are leaving them there in parenthesis, as it were, for now until the Government have come forward with firm proposals for how to deal with this clear inequality”. It is quite clear to us that, one way or another, the Government will have to sort this out. It is better to do this through a process that they can own rather than be forced by the courts to do it later, as undoubtedly they would have to do.
I urge the Minister to accept Amendment 84A. I realise that the Government may well have to come back with tweaks at Third Reading but we want to right this inequality and this is a very fine way forward. It gives the Government some space to reflect, to look, to review and then come back, using the order-making power, to get rid of this inequality. I trust that the Minister will be able to accept this amendment.
Baroness Stowell of Beeston
My Lords, I must first say to my noble friend Lord Elton that I am in charge of many things at the moment, but one thing I am not in charge of is flooding. I would rather not add that to my portfolio for now. Before I respond in detail to the debate, I need to make a correction to the figures previously used by the Government in debates on this issue, about the number of schemes using the Equality Act exception relating to civil partners. The Government had stated that two-thirds of private occupational pension schemes already go further than the 2005 exception. This is incorrect. The correct figure is one-third. However, this does not change the estimated £18 million increase in liabilities that would arise from removing this exception, as that was already based on one-third of schemes.
The pensions system as a whole is full of differences in treatment as a result of changes in society and social attitudes. Such changes are introduced prospectively, so as not to place new unfunded burdens on pension schemes which could not have been taken into consideration in their funding assumptions. The current Equality Act exception, which this Bill also applies to people in same-sex marriages, recognises that pension outcomes in the present always reflect different accruals in the past, and that changes should be forward looking, rather than be retrospective.
Governments of all parties have sought to equalise pensions over time. What they have not done is try to equalise pension outcomes in the present, thereby breaking the link between past accruals and present outcomes. The standard approach is based on the principle that it is not right to impose costs on schemes, meaning they would have to pay out new amounts that were not promised in the past, whatever the exact scale of those costs.
Avoiding imposing retrospective costs on pension schemes is the standard principled approach which has been taken by successive Governments. That is the approach the previous Government took when civil partnerships were introduced in 2005, and when they brought forward the Equality Act in 2010. That is the approach we have taken in this Bill, by aligning the pension position of same-sex married couples with that of civil partners.
This approach means that pension schemes take time to catch up with societal changes, but over time the anomalies reduce and eventually disappear. Making any change to the position set out in the Bill would mean placing retrospective costs on the schemes. The Government understand that the current position is not perfect, but it is based on the principle that we should not seek to impose retrospective costs on private pension schemes—costs that were not planned for when benefits were being accrued.
The noble Lord, Lord Alli, seemed to try to dismiss the arguments that I was going to put forward before I had even had the opportunity to do so, but the Government’s case is quite clear. It is a strong one and I shall go through it properly. The two amendments in this group have different effects, as we have already established. Amendment 84, moved by the noble Lord, Lord Alli, would mean employers having to pay survivor benefits to civil partners in respect of their deceased spouse’s service prior to 2005, when civil partnerships first became possible. This amendment does not meet what I believe the noble Lord is trying to achieve, which is to give parity in provision of survivor benefits between same-sex married couples and opposite-sex married couples.
As well as going against the standard principled approach of avoiding imposing retrospective unfunded burdens, removing the current exception in the Equality Act would potentially lead to a much wider range of discrimination claims against pension schemes. There would be a significant risk of a domino effect, leading to full equalisation of survivor benefits at a significant cost to schemes and the taxpayer. The noble Lord, Lord Alli, said that no public money would be required to make this change. I disagree.
In addition to its impact on private sector schemes, the amendment would also impose a direct cost on public service schemes which would, at least, have to pay survivor benefits to surviving female civil partners based on pre-1988 service. This is because if the amendment were passed, not paying benefits to surviving female civil partners based on pre-1988 service would be discrimination on the basis of sexual orientation. To remove any such discrimination, public sector schemes would have to equalise pension benefits for surviving female civil partners and same-sex married couples with those for widows which are based on accruals from 1978. At the moment, benefits for those female survivors are currently based on accruals from 1988. Therefore, there is an immediate cost to the taxpayer.
Lord Lester of Herne Hill
I may be wrong but is it not the case that there was retrospectivity to give effect to the EU principle of equal pay for equal work?
Baroness Stowell of Beeston
My noble friend introduces a new, very complicated matter and I am struggling with the complicated matters in front of me.
Baroness Stowell of Beeston
I am going to conclude very soon. Would my noble friend allow me to make some final remarks?
Lord Higgins
This seems to be the appropriate point to interrupt the very clear exposition my noble friend is making. I put this case to her: there is a company that had a final salary scheme for existing members and then, later in time, introduced a defined contribution scheme. The people in the defined contribution scheme cannot get all the benefits in the original scheme. None the less, the people under this retrospective legislation would be able to do so. They would be more privileged than the people in the existing defined contribution scheme.
Baroness Stowell of Beeston
That is an interesting point. My understanding of Amendment 84 is that its proposals would only apply to those who are currently in a defined benefit scheme. This is not about introducing the benefits of a defined benefits scheme to those who are only in a defined contribution scheme. I do not think that what my noble friend is suggesting is what is proposed in the noble Lord’s amendment.
As I have tried to explain, any change to the arrangements set out in the Bill would impose costs on the public purse, which would be considerable. The House should therefore be aware that any change to the position set out in the Bill would have a cost to the public purse, so an amendment to the Bill on this issue would infringe the House of Commons’ financial privilege.
Lord Alli
I was with the noble Baroness up to that point. I really think that the Government cannot say that there is a public cost, money coming out of the Treasury, for a section of the Bill marked “Part 6: Occupational Pensions and Survivor Benefits”, at page 36, which is limited to occupational pension schemes only. There is no public money, and the Government cannot say that there is. It is so clear that the House should not be put in a position of believing that public money is being spent on this.
Baroness Stowell of Beeston
I hope that I have been able to explain through my answer so far that there is a cost to the public purse in Amendment 84. Therefore, the amendment would infringe the House of Commons’ financial privilege. I have explained to the House why the Government believe that that is so.
Given the potential uncertainty and scale of these costs, we should be clear about what the implications and costs of the change might be before we make any legislative commitment in this area. I think that we can agree that this debate demonstrates the need for us all to be much better informed about the wider implications of equalising entitlement to survivors’ rights. Some of the points made by my noble friends Lord Higgins and Lady Noakes demonstrate that there are issues which need proper and careful consideration.
All that said, I can see the sense in what the noble Lord, Lord Alli, is trying to achieve via manuscript Amendment 84A that he has tabled today, which includes a review and order-making powers. I am grateful to him for reflecting further following the meeting we had yesterday with the Pensions Minister, my honourable friend Steve Webb.
I am conscious of the strength of feeling that has been expressed in this debate, and have considered the points that have been made very carefully. While I cannot accept the noble Lord’s amendment in its form today, I am willing to take it away and discuss it further with my ministerial colleagues with the firm intention of bringing back a government amendment at Third Reading. I therefore hope that the noble Lord, Lord Alli, will feel that he need not move Amendment 84A today.
Lord Alli
My Lords, I thank the Minister for that answer. Before I move on, I will add a few things. It took eight minutes before all five of my responses were used. I mention that because this is a very complex area—I accept that. However, there is a lot of smoke here. The issue that most concerns me, and the reason why I intervened, is that there is no public money. I say that having looked very deeply into this issue. To those in Committee, I said that I had the honour at the beginning of my career to be the publisher of Pensions magazine, Savings Market and Insurance Age. Therefore, I have spent time understanding the pensions market. The £2 billion to £3 billion to which the Government refer is about taking out the gender discrimination between widows and widowers. Recent judgments have upheld that principle. It has nothing to do with occupational pension schemes.
The second correction that I wanted to make was on the issue about the Civil Partnership Act and why it was put in place. Under the Civil Partnership Act, there is no corresponding civil partnership for straight people, so the read-across between opposite-sex couples and same-sex couples did not apply with civil partnerships. In this instance there is a read-across of a prejudicial treatment of two types of married spouses. That is my concern.
The final issue is that the cost is so minimal—£18 million at the low end and £80 million at the high end. The actuarial assumptions are so hard to make. Actuaries, in my experience, do not build the cost of gay people into their schemes. They do not look at whether someone is straight or gay and discount the rate. Historically, they do not go back and say, “Some gay people will have married because history allowed them to do so or society forced them to do so”. I am fairly sure that the actuarial calculations will remain pretty static. Those are the issues involved.
I thank all noble Lords who have contributed to this debate and given support. In particular, I thank the noble Baroness, Lady Howe of Idlicote, and the noble Lord, Lord Lester of Herne Hill, for adding their support to Amendment 84. I also thank my noble friend Lady Royall of Blaisdon for adding her name and support to Amendment 84A. Of course, I also thank the Minister. We have all been on a huge educational process on pensions; I fear that there may be another week of pensions mania, for which I deeply apologise. I thank her for her response; it is what the House had hoped to hear and I am very pleased with it. On that basis, I beg leave to withdraw Amendment 84.
“Legislative definitions
(1) For the purposes of legislation regulating or relating to marriage—
(a) there shall no difference or distinction be made between lawful marriage of same sex couples and lawful marriage between a man and a woman, save as provided for in this Act or as required to give effect to any difference or distinction which is made necessary by reason of physiological or biological differences of gender or consequences thereof;(b) where it is necessary to make legislative provision regulating or relating to marriages between same sex couples but not marriages between a man or a woman, or marriages between a man and a woman but not marriages between same sex couples, lawful marriage between same sex couples may be defined as same sex marriage, lawful marriages between same sex couples may be defined as same sex marriages, lawful marriage between a man and a woman may be defined as opposite sex marriage and lawful marriages between a man and a woman may be defined as opposite sex marriages;(c) all legislation regulating or relating to marriage having effect before the passage of this Act continues in effect in relation to opposite sex marriages save as varied or modified by any provision of this Act;(d) the Secretary of State or the Lord Chancellor may by order vary, modify or repeal legislation regulating or relating to opposite sex marriage, if it appears that such variation, modification or repeal is required as a consequence of the passage of this Act.”
Lord Armstrong of Ilminster
My Lords, I move the amendment standing in my name and in the names of my noble and learned friend Lord Mackay of Clashfern and my noble friends Lady Williams of Crosby and Lord Lea of Crondall—if a Cross-Bencher may be allowed to have noble friends in all parts of the House.
What are the purposes of this amendment? The preamble makes it clear that it is limited to legislation regulating or relating to marriage. The primary purpose of the Bill is, I take it, to enable same-sex couples to be married, to enjoy the same rights and privileges and be subject to the same laws, duties and obligations as married man-and-woman couples already enjoy and are subject to. On Monday, the Minister said that,
“there is one institution of marriage and we are opening the door to it … There will be only one door and all couples will be invited to walk through it”.—[Official Report, 8/7/13; col. 33.]
Lord Lester of Herne Hill
My Lords, some of the amendments moved in the course of our debates have been eccentric. However, respectfully, I should say that Amendment 85 is among the most eccentric, not least because of its very distinguished authors—a former Cabinet Secretary, a Lord Chancellor and my noble friend Lady Williams of Crosby, whose deeply held religious convictions as a Catholic I fully respect.
Leaving aside its extraordinary length and detail, Amendment 85 is moved in the face of the overwhelming and decisive decisions made by the House on Monday to reject similar attempts to classify and separate opposite-sex and same-sex marriages. In paragraph (a), the amendment declares that,
“there shall no difference or distinction be made between lawful marriage of same sex couples and lawful marriage between a man and a woman, save as provided for in this Act”.
If the amendment stopped there, it would be completely unobjectionable although also completely unnecessary, but it does not stop there. It continues by making an exception,
“as required to give effect to any difference or distinction which is made necessary by reason of physiological or biological differences of gender or consequences thereof”.
It is probably my fault, but I do not understand what that is meant to mean. Most men and most women are biologically different and sexual intercourse between a man and woman, a man and a man and a woman and a woman may reflect those differences of biology and anatomy, but how do those differences require future or existing law regulating or relating to marriage to treat traditional, conjugal and new consensual marriage differently? We are beyond the watershed for children, and I shall be grateful for an explanation of what this has to do with the law rather than the Kama Sutra.
Paragraph (b) seeks to separate the two forms of marriage using about 100 words instead of a bracket. We have already firmly rejected that attempt; I respectfully ask what the point is of rehearsing the arguments again and again.
Paragraph (c) is unnecessary because it goes, or should go, without saying, that existing legislation will continue in effect in relation to opposite-sex marriages except as amended by the Bill. As to paragraph (d), given the vague obscurity of the earlier parts of the amendment, its meaning and effect would puzzle Henry VIII and his Lord Chancellor as well as the current holder of that high office. If the noble Lord tests the opinion of the House, I hope that the amendment will be rejected.
Lord Pannick
My Lords, I agree with the noble Lord, Lord Lester of Herne Hill, though possibly not in relation to the Kama Sutra. The point being made by the noble Lord, Lord Armstrong of Ilminster, as I understood it, was that provision should be made in this Bill to confer power to address problems that may arise in consequence of this Bill when enacted. Of course, Clause 15(2) already does that. It says:
“The Secretary of State or Lord Chancellor may, by order, make such provision as the Secretary of State or Lord Chancellor considers appropriate in consequence of this Act”.
For the avoidance of doubt, Clause 15(3) states that any such provision that may be made,
“includes provision amending UK legislation”.
That would seem to me amply to address any concerns.
Lord Deben
Perhaps I may say just one thing because I was attacked—not attacked, but charmingly referred to—by the noble Baroness, who said that I was being a bit jokey about adultery. I really was not being jokey about adultery. I think that I am coming back to my mother again on this. What is being proposed here is another version of the amendments that we have had all along. This one says: “We cannot find anything at the moment, but we might find something in the future. So in case we do find something in the future, we will put something in at the moment—and by the way, that means that we can point to the thing that we put in at the moment, which shows that there is a difference, and that is what we meant in the first place”. I am not a lawyer but, if I may dare say to the two noble lawyers who went before me, I do not need to refer to the law. All I can say is that this is one of the most ingenious attempts that we have had so far. I do not think that they can do it again, but it is another go. Even if it has been charmingly presented by the noble Lord with such elegance and beautiful English, for which we all honour him, the fact is that it will not wash. It is another go. Let us not take it, and if it is voted on, let us increase the majority to more than the 200 that we had last time.
Baroness Thornton
My Lords, I agree with the noble Lord, Lord Deben, that this is an elegant amendment. However, although it might be bracket free, it has an awful lot of commas and sub-clauses. I have listened very carefully to the noble Lord, Lord Armstrong, and the supporters of this amendment who did not speak but are distinguished Members of your Lordships’ House, to see whether there are new arguments to justify passing an amendment that would—like the ones that we discussed on Monday and in Committee—undermine the purpose of the Bill, which is to put same-sex marriage on the same basis as opposite-sex marriage, and although I pay tribute to the noble Lord, Lord Armstrong, for this ingenious amendment which seeks to undermine the Bill through secondary legislation, its effects are the same as those of the amendments that went before. I am still puzzled as to why those noble Lords feel that same-sex marriage somehow undermines opposite-sex marriage and, indeed, their own.
We do not believe that the Bill needs to provide for two classes of marriage—one gold and one base, which would be the effect of the amendment—but we do feel that the time has perhaps come to stop having this argument. I and my colleagues will not support the amendment.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I thank the noble Lord, Lord Armstrong of Ilminster, for his amendment. I think that we were all very grateful to him on Monday evening when, in view of the hour, he decided to degroup it so that we could debate it today.
Even allowing for the intervening hours, however, it will not come as a surprise to the noble Lord or to anyone else that we do not feel able to accept this amendment however—to use my noble friend Lord Deben’s word—ingenious or, as my noble friend Lord Lester said, extraordinary it is. As the noble Baroness, Lady Thornton, said, it contains within it, in paragraph (b), the same distinction between a marriage of a same-sex couple and a marriage of an opposite-sex couple that was embodied in Amendment 1—admittedly without the brackets, although I am not sure if it is for better or for worse.
The amendment which my noble and learned friend Lord Mackay of Clashfern moved sought to have two different institutions of marriage in law: one for same-sex couples and one for opposite-sex couples. As my noble friend Lord Deben said, this is another attempt. In all fairness to my noble and learned friend Lord Mackay of Clashfern, when moving his amendment on Monday he said:
“This is the minimum that seems to work, although I and other noble Lords think that it may be possible to go further. The later amendment of the noble Lord, Lord Armstrong, to which I and others have added our names, indeed goes further than the minimum”.—[Official Report, 8/7/13; cols. 13-14]
Lord Armstrong of Ilminster
My Lords, I am grateful to noble Lords who have taken part in this brief debate. I did not expect to please the noble Lord, Lord Lester, but I do not myself think that the amendment deserves the obloquy that he attempts to throw upon it. None the less, given the views that have been expressed, I do not think that it would be right to force a Division. Therefore, with some regret, I beg leave to withdraw the amendment.
Baroness Stowell of Beeston
My Lords, in moving Amendment 86, I will speak also to the other government amendments in this group. I am pleased to have this opportunity to talk about a group affected by the Bill who are often overlooked in our debates—that is, those men and women who are transgender. I would like to put on record my thanks to all those who have sent me many e-mails over the past few days.
This Bill will, for the first time, enable couples who wish to remain married when one spouse obtains gender recognition to do so. This is a welcome development for transpeople who have in the past been faced with the difficult choice between obtaining gender recognition or staying in their marriage. Although the Government do not believe that it is justified, I none the less understand that there is a real fear among some transpeople that the Bill will allow their spouse to veto their attempt to get a full gender recognition certificate, if they do not wish to remain married.
I have listened very carefully to the views that have been expressed in Committee and in meetings with noble Lords about this issue. Indeed, I am very grateful to the noble Baronesses, Lady Thornton and Lady Gould, and to my noble friend Lady Barker, who made time to discuss their concerns with me in some depth. Having done so, I am grateful for the opportunity, through Amendments 87 and 88, to make clear that all the non-trans spouse is being asked to give their consent to is whether they wish to remain married if their spouse changes their legal gender.
It is important to explain why this consent is needed, because some people have questioned why the consent of a non-trans spouse is needed in these circumstances. The reason is this: a party to a marriage obtaining gender recognition is a life-changing decision for the applicant and their spouse. The marriage will no longer be contracted between a husband and a wife of the opposite legal gender, which is why it is right that both spouses have the right to agree to a proposal to change the terms of their marriage before the change takes place.
Regardless of the non-trans spouse's view about the future of the marriage, the applicant is still able to get their gender recognition. Transpeople whose spouses do not give their consent to remaining in the marriage will be in the same position as they are now: it will be open to either spouse to commence proceedings to end the marriage before the full gender recognition certificate is issued. I am very pleased to table these amendments, which I hope will put it beyond any doubt that a spouse will never be able to veto a trans applicant’s ability to obtain gender recognition. I hope that these amendments, which make it clear what both parties to the marriage are agreeing to, will allay the concerns that have been expressed. I commend these amendments to the House.
As to Amendments 86, 89 and 133, I said in Committee that the Government have been considering carefully what can be achieved within the scope of this Bill to assist transpeople who made their transition to their acquired gender a long time ago but have not applied for gender recognition up to now because they would have had to end their marriage. The Bill now gives such people the opportunity to obtain gender recognition while remaining married, if their spouse is content for the marriage to continue. However, applicants who made their transition a long time ago may find it difficult to obtain the required medical reports from gender dysphoria specialists.
These amendments will assist such applicants by making the new fast-track procedure available to transpeople who are or were in protected marriages or civil partnerships and who transitioned six years prior to the commencement of these provisions and by reducing the amount of medical evidence they will be required to submit to the gender recognition panel. Such applicants for gender recognition will be required to submit one medical report, either from any medical practitioner, including a GP, or from a registered psychologist who practises in the field of gender dysphoria.
I can assure the House that a great deal of time and consideration has gone into developing these amendments and I hope that they further demonstrate the positive changes the Bill is seeking to make to the lives of married transpeople. I therefore commend them to the House.
Baroness Gould of Potternewton
My Lords, I begin by thanking the Minister for her tolerance and forbearance throughout our discussions on this very complex issue and for taking the time to meet me and the noble Baronesses, Lady Thornton and Lady Barker, to see if it was possible to arrive at a common view. Before looking at how successful our talks were, I want to say, on behalf of the trans community, how much we appreciate the inclusion in the Bill of the clauses that remove anomalies in respect of married transpeople who wish to apply for recognition by removing the requirement for them to be single at the point of gender recognition and so removing the obligation to dissolve their existing marriage or civil partnership. Equally important to the community is the concession on spouses’ survivor pensions, ensuring that no ongoing financial penalties will be incurred should a transperson in an existing marriage gain gender recognition. The Minister has just referred to the fast-track procedure, which is also very much appreciated.
However, there came a little disappointment because we have been unable to resolve the concerns over spousal consent. We appreciate that the amendments that the Minister has outlined clarify the position in respect of married couples and the definition of a statutory declaration of consent. However, in reality, it makes little difference in terms of that consent; the divorced would probably not be en route to registering a civil partnership. It makes little difference for the transperson. It does not really matter if the spouse is going to consent to the marriage or give consent for recognition. The principle thrust of opposition to the schedule remains unchanged.
There was a temptation to try to arrive at a further amendment that might resolve the differences between us, but that would have required a lot of detailed discussion and deliberation. Although I am not wholly happy with what we have in front of us, I suppose that it is, in some ways, a step in the right direction, which I acknowledge. I hope that there may be another opportunity for that discussion to take place and, when it does, I hope that the Minister will again be co-operative, as she has been, in trying to resolve our differences.
This is almost certainly the unfinished business of the Bill. There is no doubt that the transgender community is angry and will continue to be angry until we manage to achieve some resolution of the problem because its members remain concerned that the Bill provides a spousal veto. Therefore, at this stage, I seek the Minister’s assurance that after the Bill becomes law this issue will be considered in post-legislative scrutiny.
Baroness Barker
My Lords, I freely confess that one of the happiest days of my life was when I gave up speaking on pensions matters in your Lordships’ House. I never thought that I would come across anything more complex until we came to this legislation. This is not necessarily a complex issue, but when the Minister talks about a fast-track procedure, she is talking about a procedure that has gone on for at least two years. That is the level of difficulty. I thank the Minister. She, like the rest of us, has been on a very fast learning curve and has dealt with these issues with great sensitivity and dedication.
The noble Baroness, Lady Gould, is right; we are perhaps 90% in agreement. The people directly affected by this issue are grateful for the advances made in the Bill. I am sure that the very small number of people who will be directly affected by Amendment 89—people who have not gone through the process of acquiring a full gender recognition certificate because they would have had to divorce their spouse to do so—will be extremely pleased. I am pleased to be accompanied by a number of Bishops today, and I think it is apt to say that one of the couples who I know will be directly affected are active members of their church. Their marriage was very important to them and they did not wish it to be broken up in these circumstances. We have enabled a small number of people to live their lives with greater dignity. That is important.
The noble Baroness, Lady Gould, is right; people in the transgender community believe that there is still a possibility that spouses who are very angry and upset will retain the capacity to delay the process of divorce and therefore of obtaining gender recognition for some time, mostly by starting divorce proceedings and then not actioning them. That remains an issue. I agree with the noble Baroness that we have probably gone as far as we can in the Bill and that the issue is perhaps something to which we should return in post-legislative scrutiny.
The Bill has achieved an important step forward for a small number of people who, in the course of their ordinary lives, put up with an awful lot of hostility. We have made their lives a bit better and enabled them to live with a little more dignity. For that, this House should be very proud of what it has done.
Baroness Thornton
My Lords, government Amendments 86, 87, 88, 89 and 133 will provide a fast-track procedure for gender recognition where individuals have been living in the acquired gender for a long period and clarify that the consent of a spouse means consent to the marriage continuing, not consent to gender recognition. There is no doubt that we wholeheartedly welcome these amendments; we would like to put on record our thanks to the Minister and her team for the amount of work that they have put in on this issue.
This is an issue that colleagues in both Houses have been pushing throughout the Bill’s passage, and we have made progress with the Government on pensions and the fast-track procedure. However, as my noble friend Lady Gould has said, consent is a very sensitive issue, and the transgender community has reacted with outrage at the idea that their final recognition through gender recognition certificates should or possibly could be vetoed by their spouse, particularly if they were estranged or if the relationship had broken down.
Like the noble Baroness, Lady Barker, and my noble friend Lady Gould, we think we have made great progress, but this issue is unresolved and a community that has faced enormous discrimination and prejudice is very concerned about it. We need to keep a watching brief on this issue, and we will need to return to it, certainly in post-legislative scrutiny, if not in another Bill that comes along in which we can find some other way of doing it.
Baroness Stowell of Beeston
My Lords, I am grateful to all noble Baronesses who have contributed to this debate, who are the same noble Baronesses who I have met to discuss these matters.
I will be very brief in responding to the points that have been made. The noble Baroness, Lady Gould, raised the question of post-legislative scrutiny. I certainly expect the Bill’s impact to be considered and that the issue of spousal content will be part of that process. That would be a matter of form, so I can give some reassurance in that regard at least.
My noble friend Lady Barker mentioned the fast-track procedure and the length of time. The fast-track procedure reduces the amount of evidence that a transperson must submit to the gender recognition panel. Therefore it saves them from having to obtain new, additional evidence, which may be difficult and time-consuming. It does not affect the length of time from application to the issue of the gender recognition certificate; it is about the process prior to that point.
In concluding, I want to say how grateful I am for the generous remarks that have been made and to remind all noble Lords that the Bill is about allowing same-sex couples to marry. We have allowed transpeople who are already married to stay married. That is an enormously positive step forward, and we should not lose sight of that. However, it is worth pointing out also that because those transpeople are already married, it is essential that both spouses confirm that they want to remain married because their marriage is a legal contract that will change. When we get married—although, as we all know, I am not married. I have been to weddings, even if I have not had one of my own—on our wedding day we take somebody to be either our lawfully wedded wife or our lawfully wedded husband. That is a legal contract between two people. This Bill has enabled us to ensure that if one of those people is transgender and wants to have transgender recognition, they are able to do that and to remain married to the person who they fell in love with and married some years before. That is an important thing that we have been able to make happen. I take on board the points that have been made in the debate, but I am pleased that we are at least able to acknowledge the big step forward that this Bill will allow us to take.
“Part 2Alternative grounds for granting applications for gender recognition certificatesIntroduction15 The Gender Recognition Act 2004 is amended in accordance with this Part of this Schedule.
Alternative grounds for granting applications16 Section 2 (determination of applications): after subsection (3) insert—
“(3A) This section does not apply to an application under section 1(1)(a) which states that it is an application for a certificate to be granted in accordance with section 3A.”
17 After section 3 insert—
“3A Alternative grounds for granting applications
(1) This section applies to an application under section 1(1)(a) which states that it is an application for a certificate to be granted in accordance with this section.
(2) The Panel must grant the application if satisfied that the applicant complies with the requirements imposed by and under section 3B and meets the conditions in subsections (3) to (6).
(3) The first condition is that the applicant was a party to a protected marriage or a protected civil partnership on or before the date the application was made.
(4) The second condition is that the applicant—
(a) was living in the acquired gender six years before the commencement of section 12 of the Marriage (Same Sex Couples) Act 2013,(b) continued to live in the acquired gender until the date the application was made, and(c) intends to continue to live in the acquired gender until death.(5) The third condition is that the applicant—
(a) has or has had gender dysphoria, or(b) has undergone surgical treatment for the purpose of modifying sexual characteristics.(6) The fourth condition is that the applicant is ordinarily resident in England, Wales or Scotland.
(7) The Panel must reject the application if not required by subsection (2) to grant it.”
Evidence for granting applications on alternative grounds18 Section 3 (evidence): after subsection (8) insert—
“(9) This section does not apply to an application under section 1(1)(a) which states that it is an application for a certificate to be granted in accordance with section 3A.”
19 After section 3A (inserted by paragraph 17) insert—
“3B Evidence for granting applications on alternative grounds
(1) This section applies to an application under section 1(1)(a) which states that it is an application for a certificate to be granted in accordance with section 3A.
(2) The application must include either—
(a) a report made by a registered medical practitioner, or (b) a report made by a registered psychologist practising in the field of gender dysphoria.(3) If the application is based on the applicant having or having had gender dysphoria—
(a) the reference in subsection (2) to a registered medical practitioner is to one practising in the field of gender dysphoria, and(b) that subsection is not complied with unless the report includes details of the diagnosis of the applicant’s gender dysphoria. (4) Subsection (2) is not complied with in a case where—
(a) the applicant has undergone or is undergoing treatment for the purpose of modifying sexual characteristics, or(b) treatment for that purpose has been prescribed or planned for the applicant,unless the report required by that subsection includes details of it.(5) The application must also include a statutory declaration by the applicant that the applicant meets the conditions in section 3A(3) and (4).
(6) The application must include—
(a) a statutory declaration as to whether or not the applicant is married or a civil partner,(b) any other information or evidence required by an order made by the Secretary of State, and(c) any other information or evidence which the Panel which is to determine the application may require,and may include any other information or evidence which the applicant wishes to include.(7) If the applicant is married, the application must include a statutory declaration as to whether the marriage is a marriage under the law of England and Wales, of Scotland, of Northern Ireland, or of a country or territory outside the United Kingdom.
(8) If the applicant is married, and the marriage is a protected marriage, the application must also include—
(a) a statutory declaration of consent by the applicant’s spouse (if the spouse has made such a declaration), or(b) a statutory declaration by the applicant that the applicant’s spouse has not made a statutory declaration of consent (if that is the case).(9) If the application includes a statutory declaration of consent by the applicant’s spouse, the Panel must give the spouse notice that the application has been made.
(10) If the Panel which is to determine the application requires information or evidence under subsection (6)(c) it must give reasons for doing so.”.
Membership of Panels determining applications on alternative grounds20 Schedule 1 (Gender Recognition Panels), paragraph 4: after sub-paragraph (2) insert—
“(3) But a Panel need not include a medical member when determining an application under section 1(1)(a) for a certificate to be granted in accordance with section 3A.”.”
“Marriage according to the usages of belief organisations
(1) The Secretary of State must arrange for a review of—
(a) whether an order under subsection (4) should be made permitting marriages according to the usages of belief organisations to be solemnized on the authority of certificates of a superintendent registrar, and(b) if so, what provision should be included in the order.(2) The arrangements made by the Secretary of State under subsection (1) must provide for the review to include a full public consultation.
(3) The Secretary of State must arrange for a report on the outcome of the review to be produced and published before 1 January 2015.
(4) The Secretary of State may by order make provision for and in connection with permitting marriages according to the usages of belief organisations to be solemnized on the authority of certificates of a superintendent registrar.
(5) An order under subsection (4) may—
(a) amend any England and Wales legislation;(b) make provision for the charging of fees.(6) An order under subsection (4) must provide that no religious service may be used at a marriage which is solemnized in pursuance of the order.
(7) In this section “belief organisation” means an organisation whose principal or sole purpose is the advancement of a system of non-religious beliefs which relate to morality or ethics.”
“(2) An Order in Council may, in particular, make provision—
(a) prohibiting the solemnization of such marriages according to particular religious rites or usages; or(b) permitting the solemnization of such marriages according to particular religious rites or usages.“(2A) Sub-paragraph (2)(b) is subject to sub-paragraphs (2B) and (2C).
(2B) An Order in Council may not make provision allowing the solemnization of forces marriages of same sex couples according to the rites of the Church of England or Church in Wales.
(2C) If an Order in Council makes provision allowing the solemnization of forces marriages of same sex couples according to particular religious rites or usages (other than those of the Church of England or Church in Wales), the Order in Council must also make provision to secure that such a marriage may not be solemnized according to those rites or usages unless the relevant governing authority has given written consent to marriages of same sex couples.
(2D) The person or persons who are the relevant governing body for that purpose are to be determined in accordance with provision made by an Order in Council under this Part of this Schedule.”
“(4) If section 8 applies, the Lord Chancellor may, by order, make such relevant amending provision as the Lord Chancellor considers appropriate to allow for the solemnization of forces marriages of same sex couples according to the rites of the Church in Wales.
(5) For that purpose “relevant amending provision” means—
(a) provision amending sub-paragraphs (2B) and (2C) by omitting the words “or Church in Wales”;(b) provision amending any Order in Council made under this Part of this Schedule;(c) provision amending any other UK legislation (including legislation contained in this Part of this Schedule).(6) In making an order under sub-paragraph (4), the Lord Chancellor must have regard to the terms of the resolution of the Governing Body of the Church in Wales referred to in section 8(1).”
Lord Wallace of Tankerness
My Lords, government Amendments 93 and 128 to 132 amend provisions in the Bill relating to marriage in consulates and on Armed Forces bases overseas to exclude their effect in relation to Northern Ireland. Clause 13 repeals the Foreign Marriage Act 1892 which applies UK-wide. Schedule 6 makes provision to replace that regime of consular and Armed Forces marriages overseas with a new regime providing for marriages of both opposite-sex and same-sex couples in consulates and on Armed Forces bases.
The legislative consent Motion concerning the Bill which the Northern Ireland Assembly agreed on 24 June does not cover Clause 13 or Schedule 6. In light of the terms of that legislative consent Motion, these amendments amend the extent provisions of the Bill so that the relevant provisions which would fall under the Northern Ireland Assembly’s legislative competence do not extend to Northern Ireland. The effect of these amendments is that opposite-sex and same-sex couples marrying under the law of England and Wales in consulates and on Armed Forces bases overseas will be married under new procedures to be introduced by an Order in Council to be made under Schedule 6. These new procedures will also apply to opposite-sex couples marrying under the law of Scotland, and in due course to same-sex couples as and when the law in Scotland is changed to allow them to marry.
However, couples marrying under the law of Northern Ireland will marry under the existing legislative framework; namely, the Foreign Marriage Act 1892. This will mean that those officiating in marriages overseas will have to operate two distinct systems when conducting marriages depending on whether they are marriages under the law of England, Wales or Scotland on the one hand, or the law of Northern Ireland on the other. While this will add to the complexity of the system, it is a consequence of the Northern Ireland Assembly not having given legislative consent to the relevant provisions in the Bill, and so to be consistent with the convention we must make amendments to reflect that.
Perhaps I may turn to government Amendment 106 in this group. It is a technical amendment which provides for the definition of “England and Wales legislation” used in the Bill also to be applied to the Marriage Act 1949. The amendment inserts an interpretation provision for the definition into that Act. Finally, government Amendment 125 is minor and technical. It adds the definition of “superintendent registrar” to the list of defined expressions already set out in Clause 17(2). This is necessary for completeness.
I commend these amendments as they will improve the Bill and I hope that your Lordships will feel able to support them.
Baroness Deech
“(1A) The review under subsection (1) must deal with the case for amending the criteria in the Civil Partnership Act 2004 which define the eligibility of people to register as civil partners.
(1B) The review must in particular consider—
(a) the case for extending such eligibility to—(i) unpaid carers and those they care for, and(ii) family members who share a house,provided that they have cohabitated for 5 years or more and are over the age of eighteen, and (b) the case for creating a new legal status that would confer all the benefits of civil partnerships upon those mentioned in paragraph (a) without amending the criteria for eligibility for civil partnership.”
Baroness Deech
My Lords, my noble and learned friend Lord Lloyd, the noble Baroness, Lady O’Cathain, and the noble Lord, Lord Cormack, have added their names to this amendment. I will not repeat the arguments that I made in Committee save to remind your Lordships that I am seizing this opportunity, which has presented itself in no other Bill or foreseeable Bill, to extend the hand of equality and a glimmer of hope of support to the thousands—mostly women; this could be a gender issue—of people who are siblings and have lived together for many years. I also want to help carers, who are often but not always family members, where the younger people have cared for the older ones for many years, but who then find themselves in a bad situation when the older ones die. We now have a chance to recognise and assist them through the study which the Government have already committed to carrying out in the context of civil partnerships.
It was admitted in the European court in Strasbourg that the situation is discriminatory, but it was held that the Government were justified in this discrimination because they had placed the advantages of marriage firmly in one area and nowhere else. The justification for the discrimination that exists against people living together in a co-dependent, supportive and loving arrangement has gone. The Berlin Wall of marriage has come tumbling down and there are others who are coming out who need our help and support in the name of equality.
This is not merely about money, albeit that a great deal of time has been spent on financial arrangements and pensions in the past few days. It is not just about money—it is about the advantages conferred by marriage and civil partnership and, shortly, same-sex marriage. That means the right to live in a home, pensions, medical consent, responsibilities and rights in relation to children and many other rights and obligations attaching to that status.
If noble Lords read the amendment carefully, they will see that I am not pressing for a change in the law in this Bill; I am merely asking that the Government study the situation when they undertake a review of civil partnerships, as they have pledged to do. I cannot imagine anyone hard-hearted enough to block this, although I gather that the Government are not sympathetic, and I fail to understand why. Certain objections to this amendment were voiced at Second Reading and in Committee. The opponents of same-sex marriage argued a while ago that its existence would undermine traditional marriage. This was stoutly denied by, inter alia, the noble Baronesses, Lady Royall and Lady Barker, and the noble Lords, Lord Marks and Lord Alli. Why, they said, should recognising the existence of one union have any impact, let alone an adverse one, on another, causing the older union to be less respected or more fragile? Their arguments were, and are, persuasive. If recognising same-sex marriage has no impact on heterosexual marriage, then recognising a union, contract or arrangement of some sort for siblings and carers likewise can have absolutely no impact on same-sex marriage.
I am not arguing for an exact same union—far from it. The amendment suggests that a formal contract or union could be established which in no way detracts from civil partnerships as they exist now and has no religious connotation or connection. For example, in France, a pacte civil de solidarité—known as “PACS”—exists for some heterosexual couples and same-sex couples; it has most of the advantages and status of marriage, but can be terminated very readily by a letter from one to the other or by a marriage entered into by one of the two. It is popular. It presents a model for adaptation.
The noble Lord, Lord Alli, argued in Committee that lending a helping hand to siblings and carers would devalue civil partnerships. I said then, and I repeat, “I do not get it”. Not only do I not understand the fears and what seems like protectionism of those able to succeed in achieving a same-sex marriage, I cannot understand the logic. There are no limitations on equality; it is not rationed. We can all have it. There is enough to go round. It is not a situation where equality for some means nothing whatever left for others. On the contrary, those who make the case for equality in unions, even with the very small differences that we have debated in the past few days, ought to be generous to others. This is simply a study, and to deny to others what they seek for themselves sets an unfortunate precedent.
Love and commitment come in many forms, not necessarily with sex, as has been pointed out. Ordinary people will recognise the love and care that some family members—if only there were more of them—give to each other and will find it incomprehensible to treat them as less deserving or inferior when the opportunity, which may come once in a generation, presents itself to study their situation in this Bill.
Lord Cormack
My Lords, I have my name on this amendment and am delighted to support it by speaking briefly. The noble Baroness, Lady Deech, has spoken, as she did last time, very eloquently. All I wish to add and to say to your Lordships is that a review is to happen. If that commitment had not been made, it could have been argued that this amendment was an intrusion and that it was not appropriate or fitting to debate it during the course of this Bill. However, the Government gave this undertaking in another place and, if the Government are to have this review of civil partnerships and attendant matters, then it is surely right, as the noble Baroness has argued so forcefully, that these other relationships should be taken into account. In the name of equity and in the name of decency it is right that your Lordships’ House should say, “Please include these relationships in the review”. That is all that we are asking. We have no guarantee what those who conduct the review will finally determine, but to exclude this from their terms of reference would be entirely wrong and I beg your Lordships to support the very sensible and extremely modest suggestion that the noble Baroness has made.
Lord Lloyd of Berwick
My Lords, my name is also attached to this amendment. In my speech in Committee, I gave two examples within my own experience of couples whose cases ought to be considered in the forthcoming review. One was the former Bishop of Lewes, who shared a house with his sister for many years until his death; and the other was a man, living in our village, who was paralysed many years ago in a riding accident and has been looked after ever since by a young friend of his. My noble friend Lady Deech, in moving the amendment, made it clear that she was not asking for a change in the law now and not even asking for a new review. There is already going to be a review, as the noble Lord, Lord Cormack, has pointed out.
Under the Bill as drafted, Clause 14 states that the review can consider,
“other matters relating to civil partnership”.
It seems to me, therefore, that, on the ordinary meaning of those words, it is for those who oppose this amendment to say why those other matters should not include the two cases that I have mentioned, the case of the sibling and the case of the long-term carer, both of whom are covered by this amendment. The point that there is to be a review anyway was made by the right reverend Prelate the Bishop of Ripon and Leeds in Committee, and it was echoed by the noble Lord, Lord Pannick. Since other matters will be considered in that review relating to civil partnership, this seems to be the ideal occasion to consider the points which everybody agrees are worthy of consideration.
What are the objections to the amendment? I start with the objection raised by the noble Lord, Lord Marks, who I am sorry to see is not in his place. He said that accepting this amendment would,
“undermine the whole notion of civil partnerships, which are about loving relationships between people living together as couples”.—[Official Report, 24/6/13; col. 535.]
So far, no one could possibly disagree with that. However, he went on to say that such relationships must, to be within the meaning of civil partnership, be sexual relationships. Where does he get that from? As far as I know, nothing in the 2004 Act confines civil relationships to sexual relationships. Why should civil partnerships not include the sort of platonic relationship that the noble and learned Lord, Lord Mackay, referred to in the debate on Monday?
The noble Lord, Lord Elystan-Morgan, argued that non-sexual partnerships might not come within the Long Title of the Bill; but why not? It refers only to “civil partnerships”, not partnerships of a particular kind.
The noble Lord, Lord Alli, argued that to include carers would inhibit the further development of civil partnerships to a point where they might be blessed by the church. This, he said, would not be possible if civil partnerships included carers. Surely it would not be beyond the wit of the church to devise a method by which it would bless some civil partnerships but not others, so why should the whole notion of civil partnerships be devalued just because this amendment is accepted?
As the Minister said, the argument advanced by the noble Lord, Lord Alli, was just the sort of argument that should be considered when the review takes place, and I agree. I can understand why the noble Lord, Lord Alli, desires that civil partnership should continue to develop in the way in which he wants, but why should he stand in the way of civil partnership being developed in the way in which we want, which would include siblings and carers?
Finally, in objecting to the amendments, the noble and learned Lord, Lord Wallace, agreed with the argument of the noble Lord, Lord Marks, and I say no more about that. He said that it would undermine the current understanding of a civil partnership—but why? I hope he will explain that further. Secondly, he said it would be difficult to cover the case of the siblings because of the rule about consanguinity. It would lead to the legitimisation of relationships that are currently prohibited. I would give the same answer to the noble and learned Lord as he gave to the noble Lord, Lord Alli: that is just the sort of matter that should be considered when this review takes place.
As we know, the review is going to take place. I hope that the Minister will accept this amendment and allow these matters to be considered in that review.
Baroness Butler-Sloss
My Lords, I, too, support the amendment. I will make two points, picking up on what the noble and learned Lord, Lord Lloyd of Berwick, has said.
First, if both spouses are in agreement, consummation is not a necessary part of marriage. You can perfectly well have a platonic marriage throughout the entire period of that marriage. Consequently, that point goes. Secondly, the Government have opened the door. Okay, it was a deal done in the House of Commons, but the door is actually open under Clause 14, which states that:
“The Secretary of State must arrange … for the operation and future of the Civil Partnership Act 2004 in England and Wales to be reviewed, and … for a report on the outcome of the review”,
but that,
“Subsection (1) does not prevent the review from also dealing with other matters relating to civil partnership”.
That absolutely opens the door for the amendment that the noble Baroness has put forward. I find it very difficult to understand why it cannot at least be considered.
Baroness Hooper
My Lords, as an example of the category of person that the amendment is intended to cover, I support it.
Having lived for some 30 years in a shared household with my sister—a jointly owned home, with shared management and payment of household overheads, and the commitment of a happy family relationship, sharing everything but sex—it is therefore disappointing to find that the ties of blood and family love are less important than other bonds, and that the concept of equality does not cover this.
Sadly, my sister died three years ago so I gain nothing personally from this, but others can. I therefore fully support all that the noble Baroness has said in moving this amendment so clearly and helpfully, and I trust that your Lordships will give it very sympathetic consideration.
Lord Alli
My Lords, I listened carefully in Committee to the arguments why sisters, brothers, fathers, sons, mothers and daughters should be allowed to have civil partnerships, and I will try to address some of the issues raised by the noble and learned Lord, Lord Lloyd of Berwick.
First, on the development of civil partnerships in terms of religious organisations, I set out in Committee why I believe that the gap between where we are today and same-sex marriage is too big for many churches to make in one step. I believe that I will see a day in the not too distant future when civil partnerships will be celebrated in churches. If we were to broaden civil partnerships beyond the scope that they have today, we will endanger that.
Lord Lloyd of Berwick
Before the noble Lord moves on to that point, does he advance the same argument that Lord Marks advanced, that there must be a sexual element in every civil marriage? That, I feel, is the difficulty with the argument the other way.
Lord Alli
I have the same answer for same-sex marriage and opposite-sex marriage. We do not ask that question; we just do not. We say that if you say you are married, you define the nature of your own marriage. The state intervenes only in the breakdown of that marriage, when you cite the grounds for your divorce and can choose adultery or unreasonable behaviour. It is the same for civil partnerships. However I understand that, like marriage, the majority of civil partnerships start with a sexual component. That must be broadly understood.
I have two principal objections to the proposition of the noble Baroness. The first is about the nature of the relationship in a civil partnership. The noble Baroness seeks to use the civil partnership to review the Government’s tax and inheritance law. That does not deal with the nature of civil partnerships as I understand it. They were devised and brought into being to recognise a loving and—I accept this point—in most cases, a sexual relationship, between two individuals of the same sex. It was devised to give those sexual relationships a status in law, but not exclusively sexual. In many cases, it gave them the same benefits as married couples. It specifically excluded relationships that were exempted from marriage, such as mothers, daughters, fathers and sons, brothers and sisters.
Because of my personal view of civil partnerships—which is probably the view of the majority of people in this country—the very notion of giving access to civil partnerships between family members is the same as giving access to marriage to a brother and a sister, a father and a son, and a mother and a daughter.
Lord Cormack
The fact is that there is to be a review. That is not in doubt. What possible exception can the noble Lord take to those who are conducting it looking at the relationships mentioned by the noble Baroness in her speech? As I said in my brief remarks, the review may come to the conclusion that they should not be included, but why does he want to stop these relationships being considered by the review?
Lord Alli
I thought I was giving three reasons. My first was about trying to get the churches to take a step and view civil partnerships as part of that transition, where they can recognise the stunning relationships between a man and a man and a woman and a woman without having to cross the line into marriage. The second, which I believe the noble Lord seeks, already exists for unpaid carers. They can enter a civil partnership in which they are the same sex. They can enter civil marriage and get those benefits. The third is that—
Lord Pearson of Rannoch
Is my noble friend saying that two sisters could do that? Could he make himself clearer? I did not understand that.
Lord Alli
The third component is the one I was coming to, about the nature of the relationships in civil partnerships. I do not view civil partnerships as a financial transaction between two people. As I said, they are based, initially but not exclusively, on a sexual relationship between two same-sex people. That sexual relationship, which often mirrors marriage, forms the basis of it. I know—actually I do not know—that your Lordships do not like talking about sex but sex is part of the foundation of marriage as it is the foundation of civil partnerships. For that reason, for me, civil partnerships are akin to marriage. The thought that a father could marry a son, a mother marry a daughter or two sisters or two brothers marry—substitute the phrase “civil partner”—is what makes it feel wrong. Civil partnerships make it feel like a relationship that should not be allowed. I do not question the sincerity of the noble Baroness, Lady Deech. I believe she sees this as a piece of paper that brings a financial benefit.
This amendment is one part of a process. It should be up to the Government of the day to decide on their inheritance tax policy. The Chancellor and the Treasury set out and have a well documented process for consultation. I said in Committee—and in 2004 to the noble Baroness, Lady O’Cathain—that I, like many, think the current inheritance tax is unfair, particularly when it comes to family homes. I would be in favour of inheritance tax being paid on the death of the second or third survivor so the Treasury would suffer only a deferral of inheritance tax. But that is not a discussion for this Bill. It is a conversation to be had with government. I assure the noble Baroness that I will write to the leader of my party and advocate a change in policy to reflect that. I hope the noble Baroness understands why I do not support the amendment. We debated it in 2004 and the arguments have not much changed. However, the experience of civil partnerships might have helped the noble Baroness understand why this amendment could be seen as hurtful to those people who value their civil partnerships in a different way.
Finally, I risk the groans of the House by saying that in the intervening years since 2004 I have not noticed a single amendment tabled to another Bill to push this very point. Plenty of other Bills going through the House could have addressed it, including the Care Bill going through the House as I speak. I hope the noble Baroness and those who support this amendment will forgive me if I see it and the intervening nine years and ask: why now and not at any time over the past nine years? Whatever the reason, this is neither the time nor the place for civil partnerships to be used as a means of dealing with inheritance tax. I hope that the noble Baroness can recognise that and will withdraw her amendment.
Lord Lloyd of Berwick
I am sorry to interrupt the noble Lord. He said that the noble Baroness moving the amendment is to some extent motivated by the need to provide the financial benefits. That is not my reason at all. Of course, there will be financial benefits, but my reason lies far deeper than that. Civil partnerships should be available to the people covered by this amendment.
Lord Alli
I understand that. However, the noble and learned Lord is trying to break the notion of civil partnership as we understand it. I say to him that the issue of the churches being able to bless civil partnerships should be taken on board when considering the labour laws.
The Lord Bishop of Chester
My Lords, the noble Lord, Lord Alli, raises the standard of debate on this issue. We on these Benches have enjoyed his contributions and deeply appreciate his commitment and share many of the things that he wants to achieve. However, just as he sometimes disagrees with me, I am going to have to slightly disagree with him over this. I do not know what the Church of England will do about services of dedication or blessing in relation to same-sex marriages. It is not entirely clear to me that extending civil partnerships to other dependent relationships might not actually increase the likelihood that the church would be able to move in this area. It is arguable both ways. Indeed, if you have two people whose lives are intertwined in a sort of covenantal way, as the amendment of the noble Baroness, Lady Deech, indicates, they may well want some sort of blessing or dedication upon that interdependence, without the sexual relationship.
The issue for me is partly that when civil partnerships were introduced, they mirrored marriage too much. Many people on these Benches were in favour of legal arrangements to support and protect in every way people whose lives were interdependent. We had a problem precisely because it was all narrowed down too much, to same-sex couples. There has, however, always been support from these Benches for a proper legal arrangement to support people whose lives, for one reason and another, are interdependent.
Moving on, we have not heard the word “justice” mentioned much, although the noble Lord referred to the situation as being “unfair”. There is a deep issue of justice here, across our society, which, given what the equal marriage Bill is trying to achieve we ought at least to acknowledge.
Another issue has not been mentioned at all so far. In our society we now have an increasingly diverse range of family structures and patterns. Allowing some form of legal support between people who find themselves not in marriage, and not wanting to be civil partners in that sense, would have a deep civilising effect upon society. We have a lot of single parents now. Maybe a single mother is bringing up one child, and that child may not marry. They may find themselves sharing a home as they have done since that child was a baby. We have increasingly diverse patterns of family life. Something ought to be there to provide support and, indeed, blessing in every sense for those who find themselves in that situation.
I hope that the review of civil partnerships will be able to look at the issues which are specified in the amendment. Certainly, I, in those terms, would be delighted to support the amendment.
Baroness Farrington of Ribbleton
My Lords, the noble Baroness, Lady Deech, referred to me by name. The issues that various noble Lords have raised, particularly those just raised by the right reverend Prelate, are incredibly important: the diversity of family patterns and the circumstances in which people find themselves. Personally, I would like to debate and look in particular at the role of carers—the relationships they form with other members of the family or, in the example given by the noble and learned Lord, Lord Lloyd, someone for whom they assume a responsibility because of the way they feel about that person. I would be delighted to debate that issue, not even in a review, but now. I have waited for a long time, because during the civil partnerships debate in your Lordships’ Chamber the issue was raised quite frequently. However, I do not believe that this is the vehicle for doing that.
The noble Baroness, Lady Deech, referred to “cohabiting”. If you ask the average person in the street the meaning of that word, you will get a variety of responses. If you ask a councillor, they would think of somebody who is claiming that their benefit in the past has been withdrawn because of the nature of their relationship with somebody in the house. These are complex issues. They need seriously to be developed, in the right way and at the right time. I fear that this is exactly the wrong time. If you ask anyone outside your Lordships’ House, including a boy of 12 to whom I spoke, this is about marriage and for people who wish to get married because they love each other in a particular way. I hope that all noble Lords will resist the temptation to tackle the subject of this amendment at the wrong time and in the wrong place.
Lord Cormack
We are not seeking to determine it this afternoon. We are merely asking that those experts, presumably dispassionate, and in whom we can all have confidence, should look at this and make the review a little more comprehensive than is at present envisaged. That is all we are asking.
Baroness Northover
My Lords, I remind noble Lords that we are on Report. If noble Lords have already spoken, unless with the permission of the House they are asking a question of a noble Lord, they should not speak again.
Baroness Farrington of Ribbleton
My Lords, the noble Lord, in speaking in support of this amendment, has got exactly the right wagon but is seeking to attach it to the wrong train, which is going to the wrong place. I absolutely agree that this issue must be dealt with. However, I do not believe that noble Lords who have spoken are actually saying that they think the Bill is about anything other than same-sex marriage. Therefore, I hope that noble Lords will find another vehicle to attach their wagon to, in which case I, too, as my noble friend Lord Alli said, will be their supporter.
Lord Dear
My Lords, as somebody who once drove teams of horses with wagons behind them at a competitive level, may I be allowed to make a very small interjection? Although my name is not on the Marshalled List, as there was no room for it, I support my noble friend Lady Deech. I cannot add anything to the power of her argument or to the impeccable logic that she showed when she advanced the amendment.
The words “equity” and “decency” have already been used in support of this amendment. I would add “generosity”, “compassion” and certainly “appropriateness”. As she has already said, this amendment seeks to correct a prior-acknowledged discrimination. It asks the Government only to consider this within the terms of a review—not to change the Bill but simply to cause the review panel, the review body, to look at this issue. I was not in your Lordships’ House when the matter was debated eight or nine years ago. However, I have been told by many noble Lords whom I respect that there have been many attempts to try to couple this issue on to the appropriate wagon or stagecoach, and it has not been found. Here is an opportunity for us to do that. It will not get in the way of the current Bill. I certainly do not intend to do that, and I am quite sure that my noble friend does not, either. The time is right for a review, and if my noble friend presses her amendment, I will vote in favour of it.
Baroness Berridge
My Lords, when discussing previous amendments in Committee and on Report, much was said about teachers being required to teach the law of the land. I do not envy their task, as the law regarding different personal relationships has become rather complex. That was best exhibited by the exchange just now between the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Alli, about whether civil partnerships are a sexual union. I have friends in civil partnerships who, when they went to the register office, were separated and asked questions to ensure that their relationship was sexual. Although these matters need clarifying, I shall state my understanding of the situation.
Opposite-sex marriage is understood to be a sexual relationship because it can be ended by annulment and by divorce on the grounds of adultery with a member of the opposite sex. Civil partnerships are same-sex and, for the reason I outlined, treated as sexual, but there is no annulment. Platonic friends can marry if they are of opposite sexes or of the same sex, but the lack of annulment for same-sex marriage may lead the institution to develop very differently. I agree with the right reverend Prelate, who stated what the position is in modern Britain. The demographics of our country are changing rapidly. In the 2011 census, 29% of UK households were single-person—not single-parent—households. The fact that two people can live more cheaply than one is becoming increasingly important with rising living costs, poor returns on private pensions, and high housing costs.
We could end up seeing someone who wants to say to their best friend, with whom they share a house, “You can depend on me. I am your first port of call”. The commitment would be not merely financial, or about inheritance tax, or being one household for the purpose of benefits. With an ageing population, the Government should be pleased if this kind of development occurred under the same-sex marriage Bill.
Of course, that analysis means that carers, as outlined in the amendment, can already marry and gain the financial benefits outlined. If we were to see such a cultural development, the injustice to family members would be even more apparent. One might even see deeply religious people of the same sex who currently oppose the Bill getting married, if same-sex marriage develops in our culture in the way I outlined. That kind of development might even make it easier for marriage to be used mischievously for immigration purposes. We just do not know.
The amendment would give clarity and direction to this review. The review would give the Government time, which they have not had with such a speedy legislative process, to look at the whole legal relationship landscape.
I noted the comment of the noble Lord, Lord Alli, that it feels wrong to him. It was a very subjective, post-modern comment. It feels wrong to me to close down the area of discussion that a review would enable. If it was so wrong to put this wagon or coach on these horses, the amendment would not have been allowed on to the Marshalled List.
I support the amendment, because it would be unjust if everyone—and I mean everyone—except family members would be able under our law to promise a lifelong, non-sexual commitment or dependency.
Baroness Kennedy of The Shaws
My Lords, I oppose the amendments in this group. It is disingenuous of those who tabled and support them to suggest that those who do not see the purpose of them are being hard-hearted. I was shocked to hear lawyers who have spent their lives in the law not recognising the implications of extending a law that is essentially about marriage, or a commitment to a sexual relationship—that is what it is about—and imagining that a civil partnership between a father and daughter, or a brother and a sister, should be blessed, as was even suggested, and that it may come to that because of the great multiplicity of relationships that there are. I cannot believe that I heard senior lawyers endorse this. I can only believe that they did so because they want to dilute the purposes of civil partnerships.
Baroness Deech
My Lords, on a point of order, I do not think that anyone has suggested that fathers and daughters, or brothers and sisters, should get married. This is about asking the Government to include the position of carers in an inquiry. That is all.
Baroness Kennedy of The Shaws
The point of my opposing the suggestion that that should even be considered in the review is that we know that it will continue the debate that has taken place in this House over the past weeks, and because it is intended to undermine the Bill, the purpose of which is to end discrimination against gay people. The Bill is about civil rights. The right reverend Prelate on the Bishops’ Benches suggested that this would all be about recognising important relationships that are somehow on a par with a couple who choose to be with each other because of their sexual attraction to each other, their love for each other and their desire to stay together. I cannot imagine that the church would think that that was a good thing.
I cannot imagine it because we know that this is about choosing a partner whom you intend to be with. It is about the yearning among human beings to choose someone as your love, to be with your beloved and to share your life with them. That is very different from the relationships between brothers and sisters, and fathers and daughters. We should think of the implications of a civil partnership being extended to a father and daughter. Are we going to put an age limit on it? Is the father going to be able to enter into such a civil partnership with his 22 year-old daughter, or his 18 year-old daughter? We have to be conscious that this is yet another way of trying to scupper the Bill. The intention is to continue the debate and the argument long after the Bill has passed. Therefore, I urge everybody who cares about making sure that there is an end to discrimination towards gay people in this nation to vote with those who are against the amendment.
The Lord Bishop of Chester
My Lords, I did not want to speak again, but given the way in which—
Baroness Stowell of Beeston
As my noble friend pointed out earlier in the day, we are on Report, so the only basis on which we are allowed to speak twice is if we are asking a specific question of the person who is speaking. The right reverend Prelate has already spoken.
The Lord Bishop of Chester
The guideline is that a Member is allowed to explain himself on an important point. That is what the guidelines say, and that is all I wish to do. I want to make it clear that I do not wish to extend civil partnerships as they are now to the sorts of relationships that are in the amendment. Clearly, if family relationships and carer relationships came into civil partnership, it could change the nature of civil partnership. I understand that that would be within the terms of the review.
Baroness Kennedy of The Shaws
I will respond very briefly to the right reverend Prelate. Over the weeks I have listened to people of strong religious faith saying that extending marriage would undermine a social institution. What could undermine the social institution of committed sexual relationships more than the idea of fathers and daughters entering into a contractual partnership? If we care about social institutions, we should recognise that that would be a good way of undermining them.
Lord Anderson of Swansea
My noble friend is coming to the view that a review will come to a certain conclusion. We do not know what conclusion that review will come to. The question is surely that we know that under Clause 13—and this was a fairly late addition by the Government—there will be a review of civil partnership. We also know, under Clause 2, that it does not prevent the review also dealing with other matters relating to civil partnership. Are those who are against the amendment suggesting that the review should be stopped from dealing with those matters?
Part of our problem as politicians—or Members of this House, who may not consider themselves politicians —is that we face this disconnect between what we are doing here and public opinion. In my own judgment, having served 30 years in the other place, public opinion would consider this an important matter. When faced with the sort of examples given by the noble and learned Lord, Lord Lloyd, and the noble Baroness, Lady Hooper, they would say that there is a certain injustice in this matter. We remove ourselves from this view of justice coming from public opinion if we say that it cannot be included in the review, which, if it was able to look at this, might say that it was not properly within its terms. I do not know what the Government consider to be the specific terms of the review, or whether they will define what the review can or cannot do. On the face of it, the review will be able to deal with such matters, and may reject them. But public opinion and most of us would say that these are important matters, which deserve to be dealt with and may be dealt with by the review, which may say that it is not properly within its purview or that it is not something that should be dealt with at all.
In my view, it is proper for the review to deal with that matter, under the terms of the clause, and I look to the Minister to say in terms whether the Government recognise that this is a problem. Do the Government recognise that the examples given by the noble and learned Lord, Lord Lloyd, and others refer to something that is considered unjust by a great number of people in this country? If so, even if the Government try to remove this from the review, will they deal with it in some other appropriate way?
Baroness Barker
I have listened to and taken parts in these debates ever since the noble Baroness, Lady O’Cathain, first raised them during her then opposition to civil partnership. There remains one point that is fundamental to this discussion and which has never been answered properly by those people who have advanced them, such as the noble Baroness, Lady Deech.
The rights and responsibilities of adults who voluntarily enter into relationships with other people are wholly different from the rights and responsibilities of family members—people born into the same family. If we were to treat them in the same way, as is achieved in the noble Baroness’s amendment, it is wholly possible that a member of a family could find themselves under an obligation to a family member to enter into a relationship, in particular to preserve the right of the family to property. That sets up some potentially damaging and ugly relationships within families, which is a consequence of what she proposes which she would really not like to see come to pass.
To answer the noble Lord, Lord Cormack, I do not think that that potential should enter into law and I do not think that it should form even part of any review. Therefore, I wish today to make that statement as strongly as I possibly can; I shall vote against this amendment and do so in the knowledge that there are people who will support me in supporting carers in a whole variety of different ways, which are wholly appropriate and far better than this.
Lord Pannick
My Lords, I find this a much more difficult issue than all noble Lords who have spoken so far. There are very strong arguments on both sides of the case and I very much hope that noble Lords on each side would recognise that.
My reason for speaking is that I spoke in Committee in favour of this amendment, and I am in a very unusual position in that the debates that we had in Committee on this issue have actually caused me to change my mind. The reason I have changed my mind is because I think that there is a very real injustice done to the people for whom the noble Baroness, Lady Deech, has spoken, but I am not persuaded that this is an appropriate vehicle by which this injustice should be addressed. The noble and learned Lord, Lord Lloyd of Berwick, says, sotto voce, “Why not”—and I will tell him. The purpose of the review is very simple; it is to assess whether the existing civil partnership regime, which is part of the law of the land, continues to serve a useful purpose now that we will have same-sex marriage. That is a very narrow purpose, and I do not think that it is appropriate that a review should consider whether a civil partnership should be used as a means to address a very real injustice which, if it is to be addressed, should be addressed through the taxation system and other means. That is why I have changed my mind and why I much regret that I cannot support the noble Baroness, Lady Deech.
Baroness Thornton
My Lords, this amendment would seek to extend the civil partnership review to include unpaid carers and family members who live together. I am just going to read the amendment, because of the discussion that took place between my noble friend Lady Kennedy and the right reverend Prelate. It refers to,
“unpaid carers and those they care for, and … family members who share a house … provided that they have cohabitated for 5 years or more and are over the age of eighteen”.
If that does not mean fathers, daughters, sisters and brothers, I am not quite sure what it means. So I think that my noble friend had a point in her indignation about that matter.
The problem before the House has been very adequately explained by various noble Lords. This is an issue about legitimate support for carers and the protection of people, sisters and brothers, growing old together and sharing a home, who require a new regime that protects their interests in their home and all the other things. That is to do with carers, tax and inheritance, and it is to do with compassion and the other issues that noble Lords have mentioned. But it is not appropriate to use those words—in terms of pulling up ladders, and so on—in this Bill.
This review is about civil partnerships, as explained by the noble Lord, Lord Pannick. I am not going to read out my note, because he said it much more eloquently than I could.
Lord Anderson of Swansea
It is proposed by the noble Baroness, Lady Deech, that the review should deal with,
“the case for amending the criteria in the Civil Partnership Act 2004”.
Is my noble friend suggesting that the criteria themselves should not be amended in any way? What would she suggest should be the criteria employed by the review? Will we seek to limit what it can review?
Baroness Thornton
The noble Lord, Lord Pannick, very adequately, concisely and accurately explained exactly what the review is about.
The point is that the claims that the noble Baroness has explained to us are legitimate. As my noble friend Lord Alli said, the last time I heard the noble Baroness speak with such passion about these issues, apart from in Committee on this Bill, was during the passage of the Civil Partnership Bill.
In the mean time I can recall at least two carers Acts put forward by my own Government. There was the free personal care Bill, and there have been numerous discussions about finances and inheritance tax. Although we may not necessarily discuss those matters in this House to conclusion, certainly there are plenty of Members of Parliament in the other place who can and could put down amendments. I would be more sympathetic, perhaps, if I thought those things had happened, but they have not. My noble friend Lady Kennedy is right when she says that you have to question the purpose of this amendment when all those opportunities have been missed. We ask the noble Baroness not to press this amendment but if she does I will be voting against it.
Lord Wallace of Tankerness
My Lords, I thank the noble Baroness, Lady Deech, for moving the amendment and the other noble Lords who have put their names to it. It would amend Clause 14, under which the Secretary of State will arrange for the operation and the future of the Civil Partnership Act 2004 in England and Wales to be reviewed. The amendment requires the terms of the review to be extended to consider first, the case for enabling carers and family members who live together to register civil partnerships and secondly the case for creating a new legal institution to give carers and family members the same benefits as couples in a civil partnership.
I recognise, as we did in Committee, that many views have been expressed very passionately. I listened in particular to my noble friend Lady Hooper, who made an important contribution to this debate arising from her own circumstances. I agree with the noble Baroness, Lady Thornton, that, in many respects, the issues that have been raised about inheritance or the rights to have a say, for example, about funeral arrangements or related matters are issues in their own right. I will say more later about whether there has been a clamour for them, but my principal position is that this is not appropriate for a review of civil partnerships.
First, there is the issue of the nature and purpose of civil partnerships. They were designed to provide rights and responsibilities akin, to use the word of the noble Lord, Lord Alli, to those of marriage for same-sex couples. I note that the right reverend Prelate the Bishop of Chester thought that they possibly mirrored marriage too much. I think he said that was the view when they were brought in. These rights and responsibilities were provided because under the Civil Partnership Act people were unable to marry because they were the same sex. As civil partnerships are akin to marriage they have a formal means of entry and exit. They have imported the prohibited degrees of affinity parallel to those in marriage law. They have similar rules governing deathbed civil partnerships and financial and property arrangements.
Baroness Deech
My Lords, the comments made by some noble Lords have revealed misunderstandings on their part. I did not have the privilege of being a Member of this House in 2004, but at that time the House passed an amendment that would have included siblings and carers within civil partnership. Having checked my iPad, I see that I raised the matter in 2008, 2009 and 2012, and in some of those years more than once. However, having studied the Care Bill, I did not see a hook on which to hang it. The amendment that your Lordships passed in 2004 was rejected in the other place and complications arose at that time. That is why an inquiry would be so apt. Civil partnerships were invented in 2004 and another form of union could be invented now.
It is not right to jump to the conclusion, as some noble Lords have, that this means that family members will marry each other or have a civil partnership. That is not the case at all. I seek an inquiry. There is, of course, no question of incest and, anyway, there is no prohibition now on siblings living together. I do not believe that the police go knocking on their door to see whether incest is taking place. Some carers do get married. We have all read of elderly gentlemen marrying much younger ladies who care for them, often to the dismay of family members who are worried about inheritance. Inventing a new covenant or contract would probably be much more acceptable. However, it would, of course, be a question of choice. We are not talking about marriage, civil partnership or incest but about an inquiry given that civil partnership is to be examined. The wording is broad enough to allow for this.
No matter what hopes may be expressed by the noble Lord, Lord Alli, on religious marriage in the future or on the future of civil partnerships, I cannot find it in my heart to stand in the way of a study of equality. Just because something else may happen in the future, how can we stand in the way of an inquiry into equality? As the noble Lord, Lord Pannick, knows, as he was counsel in the relevant case, the Strasbourg court said that the treatment of the sisters was discriminatory but could be accepted because in this country there was this rigid division between marriage and all other unions, which no longer exists. Therefore, the review is discriminatory. How can we say that this is not the right vehicle in which to examine the issue? That is not the way that this House normally treats questions of equality and justice.
It is not just an issue of finance or of money-grubbing; I listed many of the other advantages of marriage and civil partnership, only a few of which are financial. Moreover, same-sex marriage is likely to come about long before the proposed inquiry reaches any sort of conclusion. Therefore, the two will not impact on each other. We need a debate on this, as the noble Baroness, Lady Farrington, said, and here is the very vehicle for it.
The noble and learned Lord, Lord Wallace, assumed that there would be no choice in the matter and that people would be forced into these unions. That is not the case at all. I keep repeating this because it seems to be misunderstood: I seek an inquiry into an existing discriminatory situation. That is all the amendment calls for. The people I am discussing do not all have to be treated in the same way. One is not suggesting that an inquiry, even if it went the way that I would hope, would end up saying that sisters, fathers and children should be treated as if they were civil partners. That is something to be decided in the future. Although, as I say, this is not just about finance or property, let us not overlook the fact that many a marriage, certainly in the past, was most definitely about property, but I am not suggesting that that is the case today, or that this is about money. As learned Members of this House well know, various other statutes deal with tax and inheritance for people who live together.
I do not think that a matter of justice is ever inappropriate. We have talked about carers for years and years since I have been here. This is a chance to do something for them in an inquiry. I am getting letters from sisters. I do not know what to write back to them if this House rejects this opportunity, which may not come up again for years. How can I write to them and say, “The House was presented with your situation but decided that it was not appropriate even to look into it”? If this House sees discrimination, it should allow it to be looked at in an inquiry. That is all I am asking for. Therefore, I wish to test the opinion of the House.