Marriage (Same Sex Couples) Bill

Baroness Howe of Idlicote Excerpts

Monday 24th June 2013 Lords Chamber

[Baroness Howe of Idlicote]

My Lords, treating a gay employee less favourably than a straight colleague under an occupational pension scheme purely because of the gender of his or her partner, is direct discrimination on the grounds of sexual orientation. This was the conclusion of the employment tribunal when giving judgment in the case of Walker v Innospec. Rather than heeding these conclusions and reflecting on the inherent injustice that this case addressed, the Government have applied to be joined to John Walker’s case in support of his employer and pension provider. They also seek to legislate in this Bill to extend the discrimination so that it applies not just to civil partners but to same-sex spouses, too.

As we know, this issue is not new. During the parliamentary passage of the Civil Partnership Bill, we considered the position of public service schemes. Initially, the then Labour Government claimed that benefits under such schemes should accrue only in relation to future service, arguing against imposing retrospective burdens. Thankfully, on that occasion the Government had a change of heart and recognised the need to secure equal treatment. The situation was similarly equalised for contracted-out schemes, while the law in relation to the state pension was also changed to allow civil partners to draw on the contribution record of their civil partners. These were welcome concessions but, sadly, the discrimination ultimately banished from other schemes remained in the case of contracted-in occupational pension schemes.

That this inequality remains on the statute book will surprise and sadden many who believed that the Civil Partnership Act gave civil partners all the same legal entitlements as spouses. The reason that the Government have given for extending rather than remedying this discrimination is a reluctance to impose retrospective costs on pension schemes. The fact that this discrimination has already been rectified in relation to public schemes rather undermines the Government’s objection to retrospection. It is far from unprecedented to take such a step but perhaps it is the Government’s position that in relation to public schemes, for which they have more direct responsibility, the basic demands of equality prevail over concerns about retrospection. I would argue, however, that the Government should not only refrain from discrimination but refuse to sanction direct discrimination by the private sector. This is the principle which underlines much of the substance of all our equality legislation.

A society in which the state refrains from discrimination but in which you can be turned away from a restaurant or hotel because you are gay is not a fair society. For decades, the love and commitment shared by gay couples was not afforded any form of recognition by the state. Prior to the Civil Partnership Act gay couples did not have access to the legal benefits available to straight couples in so many areas of life, from property rights to pensions. If this Bill is, as I believe it to be, about correcting these injustices, why are we relying on historic discrimination to justify real, ongoing inequality?

The argument goes like this. Before 2005 we did not formally recognise gay relationships, therefore gay couples cannot expect to receive the benefits they would have received had we awarded their relationships the respect they deserved at an earlier juncture. Discrimination should not beget discrimination in this way. It is surely wrong, and against the whole spirit of the Bill. I warmly support the amendment of the noble Lord, Lord Alli, and very much hope that the Government will do what he proposes.

[Lord Alli]

My Lords, I support the noble Lord, Lord Alli. The best thing I can do is to endorse everything that the right reverend Prelate has said. If this is a Bill about equality, we have to treat people equally. As that is what we are told it is, that is what I expect will happen.