Marriage (Same Sex Couples) Bill

Lord Higgins Excerpts

Monday 15th July 2013 Lords Chamber

In my personal relations, I am as old fashioned and strait laced as can be. I had a 35-year marriage to one woman until death did us part, so I have had the experience and joy of a long and happy marriage. I do not believe that I should deprive gay people of that same opportunity. It is about equality before the law. As I said, the vote to which I referred earlier took place at the uncivilised time of 4.27 am. We can support the Third Reading of this Bill at a civilised time because the Bill itself is civilising.

[Lord Higgins]

My Lords, I join other noble Lords in congratulating my noble friend the Minister on the Front Bench on the way in which she has handled this Bill throughout. Indeed, I join all those who expressed appreciation to the noble Lord, Lord Alli, and others who have carried on the debate in such an eloquent and satisfactory manner. I am particularly grateful to the Minister for saying that the review will take into account the position of pension fund trustees and other beneficiaries in ensuring that equality is maintained. I would ask particularly whether the position will be protected so that those in a same-sex marriage do not gain access to a closed pension scheme in a way that would prevent members of the company’s other scheme entering it. Perhaps that point might be taken into account by the review. Can my noble friend say what the composition of the review is to be? I am at rather a loss to understand what interests of Her Majesty are involved in this; that came straight out of the blue. Can my noble friend clarify that particular point?

Finally, I am glad that the order resulting from this review is to be subject to a resolution so that the House will be able to debate the result of the review without having to resort to a prayer. Overall, I think that we have made significant progress. I still have grave reservations about the position of registrars and so on, which I understand was a whipped vote on the other side. In any event, on this particular aspect of the Bill, the Minister has certainly done an excellent job and I am very grateful to her.

[The Lord Bishop of Norwich]

My Lords, I support this group of amendments. A review of the benefits accruing to all survivors under occupational pension schemes is both desirable and necessary. The principle of equity under the law for those whom the law holds to have the same status in relation to the deceased is a sound one. Hard-pressed pension schemes must be tempted to limit benefits, and the complexity of some schemes may hide inequity, so this principle is clear and just and I support it. Indeed, the Church of England pension scheme already treats surviving civil partners in precisely the same way as widows and widowers.

There is a wider reason for supporting these amendments. It is no secret that the majority of Christian churches and other world faiths do not believe that same-sex marriage accords with their understanding of marriage itself. However, many of us, including on these Benches, welcome the social and legal recognition of same-sex partnerships and believe that our society is a better and healthier one for such recognition. That is why I support this group of amendments. This point has sometimes been obscured in public commentary on what has been taking place here, but not in the debates in your Lordships’ House. The courtesy and clarity with which your Lordships have listened to each other represent our very best traditions, and I echo all that has already been said in this brief debate.

I, too, thank the Minister for her work and the Government for accommodating the needs of the Church of England and other faith traditions, and for wanting to do so. That has also been a characteristic of this House as the Bill has been debated. While the Bill is necessarily complex as a result of meeting many needs—and we are making it a bit more complex again—it will serve very well both its supporters and those who are still unconvinced about it, and that is a signal achievement.

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[Baroness Stowell of Beeston]

My Lords, I am very grateful to all noble Lords who have spoken in this debate and for their support for these amendments. I will respond to some of the questions that were put by my noble friend Lord Higgins. He asked whether those who are currently excluded from a defined benefit scheme would not get access to such a scheme to a greater advancement than anyone else as a result of this review. I can assure him that that is not the case. The purpose of the review is purely to look at the contributions that people made before 2005. The noble Lord asked about the composition of the review. We will publish terms of reference in due course, and at that time we will be able to offer a little more detail.

As to the role of Her Majesty the Queen and the comments of my noble friend Lady Anelay before I moved Third Reading, I do not have a comprehensive response to that question except to say that that was just a formality that is sometimes necessary on the government Chief Whip’s part before a Bill passes on to the Commons. It is all to do with various, specific interests that Her Majesty may have in a piece of legislation. In no way does it pre-empt proper process or the granting of Royal Assent. It is a pure formality and there is nothing unusual in it.

I will respond more broadly to this debate and to those that we have had on the Bill in your Lordships’ House over the past few weeks. At Second Reading, I urged the House to ensure that the protections that allow the church and other faiths to maintain their legitimate belief that marriage is only between a man and a woman should work properly. I also said that this House should debate and scrutinise whether the Bill protects freedom of speech. Your Lordships have done that, and I am grateful to all who have contributed. Those of us who have supported the Bill in principle, and those who have been concerned about protections for those who did not, have together made this an even better Bill.

While the amendments we have made were all tabled by the Government, they have all been inspired by your Lordships and by the debates we have had in this House or through the work done in its committees, particularly the Delegated Powers and Regulatory Reform Committee. During the passage of the Bill through both Houses, the Government have made 23 substantial amendments, 17 of them while the Bill has been in this House. The most significant include the reviews to which we are committed—on civil partnerships, humanist marriages and the equalisation of survivor benefits for same-sex and opposite-sex married couples—as well as the amendment to the Public Order Act, which is a significant protection for freedom of speech.

We have also made amendments on religious protections, in particular one that clarifies the word “compel” in Clause 2. Religious faiths, notably the Catholic Church and others who are neither the Church of England nor the Church in Wales, and who did not wish to opt in to marrying same-sex couples, wanted us to strengthen further the clause in the Bill that states that a person may not be compelled to conduct a marriage of a same-sex couple. This matter was also debated in the Commons and the movers of the amendment there were defeated by 321 votes to 163. Even though the will of the Commons was clear on this point, the Government said that they remained open-minded and would continue to listen. We did so, and were persuaded to come forward with our own amendment on Report. The Bill is now clearer, and says:

“A person may not be compelled by any means (including by the enforcement of a contract or a statutory or other legal requirement)”.

I was pleased that the noble Lord, Lord Brennan, whom noble Lords will remember was critical of the Bill at Second Reading, commended the amendment, saying that it dealt with concerns about public functions comprehensively. He said:

“I cannot remember seeing in a statute—certainly not in one of this kind—the words ‘by any means’. That is an all-embracing, protective phrase and I commend the Government doubly for such a courageous use of language to achieve one of the protections that they said they wanted to achieve: institutional independence”.—[Official Report, 8/7/13; col. 105.]

[Lord Higgins]

I am sorry to interrupt, but is it not the case that registrars will effectively be compelled, even if they have conscientious objections, to marry same-sex couples?

[Baroness Stowell of Beeston]

The amendments to which I am referring concern religious protection. The point that was made during our debate on registrars was that they are public servants, carrying out a public function, and are therefore not in the same position as people of faith as to the requirements if they are conducting a marriage in their own church. They are employed to do a job as public servants.

Our debates have provided evidence to support something else I said at Second Reading. It is possible for us to allow in law something that not everyone agrees with, and to respect our differences of view. In particular, I note the comments of the noble Lord, Lord Rowlands, about the contrast between our debates and those of the past on previous gay rights legislation. I note, too, what the right reverend Prelate the Bishop of Norwich said when he paid tribute to the way in which we have debated the Bill in your Lordships’ House.

Marriage (Same Sex Couples) Bill

Lord Higgins Excerpts

Wednesday 10th July 2013 Lords Chamber

[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.

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[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.

[Lord Higgins]

My Lords—

[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.

Marriage (Same Sex Couples) Bill

Lord Higgins Excerpts

Monday 17th June 2013 Lords Chamber

[Lord Goodhart]

My Lords, I strongly support the speech of the noble Baroness, Lady Shackleton, and will be very brief.

I remember going to a wedding of a couple of men shortly after the Civil Partnership Act came into effect in 2005. It was regarded by most of us at the party following that event, including by myself, as a form of marriage, and was referred to as such on that occasion. I cannot remember any words such as “partnership” or “union” for that relationship when it was discussed. The natural description of the joining of a couple, whether of the same sex or different sexes, is surely “marriage”. That is the appropriate word in the Bill.

I conclude by mentioning the word “matrimony”, which has been referred to already and appears in the Bill. It is a word that means “mothership” and adopts the Latin word “mater”. The use to which “matrimony” has been put in the Bill cannot apply.

[Lord Higgins]

My Lords, two themes have run through the debate. On one there is almost universal agreement that we must seek to achieve equality. We also have to recognise that there are differences between the two forms of marriage. Having said that—and I am sorry that I do not carry the noble Lord, Lord Alli, with me—it seems to me that we need effectively to recognise both the need for equality and the point that I have just made. I led from the Front Bench on the Civil Partnership Bill, which was a great step forward. None the less, it is perhaps unfortunate that its terminology did not recognise the aspect of equality, and it has certainly not been recognised by the country as a whole. What we need, therefore, is some recognition that there are two forms of marriage. If we do that, marriage will appear on both sides of the equation, representing equality. As suggested in Amendment 34, we need to have traditional marriage on the one hand, and same-sex marriage on the other. If we do that, we can achieve both of the objectives we seek, and reconcile the differences which have otherwise been apparent in the debate. One hopes that both the gay community and the community as a whole will recognise the status of these two forms of marriage as equal. I see no reason why this can not be done.

[Baroness Noakes]

My Lords, normally I agree with everything my noble friend Lord Higgins says. I am in profound disagreement with him today. He has emphasised that he believes that marriages between same-sex couples and heterosexual couples are different. There are all kinds of marriages that are different: marriages between divorced people; marriages with and without children; death-bed marriages. However, we do not find different terms for those. Noble Lords need to ask themselves serious questions about why they wish to continue to emphasise sexual orientation in the names that they give certain statuses. By perpetuating giving a different name to marriage in the context of gay and lesbian people, we are wishing to continue to regard them as different from us. Inclusion is what this Bill is about, and what we should be about in society generally, because that is what will make us a stronger society.

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We do not agree that extending marriage to same-sex couples requires a separate distinction or institution for them. There is only one institution of marriage. There is no middle way in this matter. We cannot bridge this divide—we can only remove it. We do not want to construct a new institution for same-sex couples, even a new institution that uses the word “marriage”. It would still be a difference for same-sex couples, and that is exactly what this Government are trying to avoid and to change through this Bill.

[Lord Higgins]

A curious aspect of this debate is that it is assumed that if there is a distinction between two possible definitions, one is necessarily inferior to the other, and that comes out very clearly. Would it meet her point if there was also an amendment which said the status of both forms of marriage is equal?

[Baroness Stowell of Beeston]

If anybody wished to table an amendment and your Lordships wanted to debate it, I would be happy to consider that debate and respond to it. However, the short answer is that it would not be acceptable because we want only one institution of marriage. That is what we are seeking to achieve. We do not want to distinguish between opposite-sex couples and same-sex couples.

Welfare Reform Bill

Lord Higgins Excerpts

Tuesday 14th February 2012 Lords Chamber

[Lord Hennessy of Nympsfield]

My Lords, I have immense respect for the noble Lord, Lord Strathclyde. Would he accept that bicameral legislatures work best in conditions of respectful mutual restraint? If one or the other Chamber pushes its powers to the maximum, it tends to produce a spiral of escalation that leads to Parliament becoming much less than the sum of its parts. It would be impossible for your Lordships’ House to serve as a Chamber of what Walter Bagehot called “respected revisers” if the other place pushed its undoubted financial privilege to the maximum in anything but the most exceptional circumstances. We have, very neatly, great wisdom from the past on this from a remarkable Liberal Prime Minister, Mr Gladstone, who said of the British constitution that nowhere in the wide world does a constitution presume,

“more boldly than any other the good sense and the good faith of those who work it”,

and I underline the verb “work”.

[Lord Higgins]

My Lords, it is extremely helpful of the Leader of the House to set out the position so clearly, and it is what I have always understood it to be. May I make one practical point? The amendment comes back from the other place, privilege having been claimed. The convention is that one does not send back an amendment which is likely to invite the same response. The trouble is that the simple point which is made when they claim privilege is “We can’t afford it”, and one might send back an amendment which costs somewhat less. We do not know whether they “can’t afford it” to the extent that such an amendment would be acceptable. Therefore, it may be quite reasonable for this House, if it gets back an amendment that has been rejected on grounds of financial privilege, which effectively says that we cannot afford it, to send an amendment back that would cost less than the one that was originally proposed.

[Lord Strathclyde]

My Lords, I am very pleased that I have taken the opportunity this afternoon to clarify something that I know a lot of Peers feel strongly about, particularly former Members of another place. Given that since the general election more than 100 Peers have joined this House, it is worth from time to time re-explaining some of the reasons behind the relationship that exists between the two Houses. I say respectfully to the noble Lord, Lord Morgan, with all his historical perspective, that he may well be right that it has not been a seamless web since the 17th century. But the settlement has been very much recognised and has worked respectfully between the two Chambers over the past 100 years, not least during the course of the Labour Government since 1997.

I agree with the noble Baroness, Lady Royall, as Leader of the Opposition. I understand that there has been widespread comment in legal, academic and constitutional circles, although it has not always been accurate. But I hope that part of what I have laid out today will help those outside commentators to understand the position as I see it and as I believe the House of Commons does. It is a long-standing convention, for reasons which are entirely obvious, that the two Houses do not debate each other’s internal procedures. I am not entirely sure what would be gained by having a further debate on this. After all, today we have a very full House and we have had a useful and interesting debate on this issue.

In everything that I have said and that we are doing this afternoon, there is no extension to the issue of legal privilege. As I said in my opening remarks, the situation is exactly as the noble Baroness, Lady Royall, when she was Leader of the House, laid out in 2009. Nothing has changed. That is why I join with my noble friend Lord Tyler in being somewhat bemused about the noble Baroness’s view on House of Commons privilege. I was rather hoping that she would leap to her Dispatch Box and agree with every word that I had said, at least on the basis that I had agreed with everything she had said. I am very grateful to the noble Lord, Lord Laming, the Convenor of the Cross Benches, for his important intervention.

Let me clarify one aspect of this. As the Clerk of the Parliaments put it in his 2009 paper, until the Commons asserts its privilege, the Lords is fully entitled to debate and agree to amendments with privilege implications. It is right that we should have the ability to do so, not least because it allows the Minister to give the Government’s point of view. That will continue and rightly should continue.

It is always good to hear from former Speakers of the House of Commons and I am indebted to the noble Baroness, Lady Boothroyd, who harked back to an age when there was clearly more flexibility and more discussions in the usual channels in the 1990s. Of course, my noble friend Lord Naseby explained about the ways and means.

Perhaps I may confirm to the noble Baroness that there is no threat to this House in terms of its powers and role. To respond to my noble friend Lord Fowler at the same time, the only purpose in having the Bill on reform of the House of Lords and debating that reform is that this House should be reformed only if it can be more assertive, stronger and better able to hold the Government to account and if it can challenge the views of the House of Commons. Otherwise, why on earth would we bother with all of this?

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[Baroness Howe of Idlicote]

My Lords, I am another of those who very much backed the amendment in the name of the noble and learned Lord, Lord Mackay. I was amazed and encouraged by the immense cross-party support for what he aimed to achieve. I remind noble Lords that the majority was, I think, 142 votes. However, I find this situation difficult. I certainly have been briefed again by Gingerbread and other organisations, which very much support the amendment in the name of my noble and learned friend Lady Butler-Sloss. She has told us that she will move the amendment on behalf of the noble and learned Lord, Lord Mackay.

Looking at the scene as it is now, the statutory maintenance scheme exists because it is in the interests of society that all children are properly supported by both parents, including when they separate. It is right to encourage and support parents to do the right thing and to make the arrangements, which of course we have all heard about, as a means of people sorting out their own affairs. It is equally right for the state to step in to secure maintenance for children—the emphasis is on the children—if the non-resident parent, despite being given every chance, still fails to pay of his own accord.

With something like 46 per cent of parents with care receiving less than £20 per week in maintenance—I find that figure slightly at odds with the enormous figures that the Minister has given us today on the amount that will go to children and single parents—the risk is that those likely to receive only modest amounts of child maintenance will look at the collection charges and decide that it is hardly worth all the hassle from the non-resident parent to insist that CMEC collects the maintenance. However, is it in the best interests of the taxpayer if such parents are priced out of the system or money for their children is reduced by collection charges? Making children poorer in this way surely will not benefit children or society in the long run. It is all likely to cost us more, as we probably all recognise.

I have had an indication from my noble and learned friend Lady Butler-Sloss that she is unlikely to press her amendment. I must admit that my concern, and the concern of most of us, is for those families who are on their own and where possibly, if not certainly in too large a number of cases, there has been violence at home and the family is perhaps living in dread of any form of contact with the father. However, they are still expected to pay—what is it?—a 7.5 per cent or 7 to 12 per cent continuous fee as long as the money is collected. I really do not like that situation.

I have to admit that if there was a Division, I would certainly vote for the amendment moved by the noble and learned Baroness, Lady Butler-Sloss, but if there is to be no vote, I cannot exercise my right to do that. I think that I have said enough.

[Lord Higgins]

My Lords, after almost 10 years on the opposition Front Bench as spokesman on social security, and despite the attractions of debating intellectually with the noble Baroness, Lady Hollis, who was the Minister throughout the period, I decided never to speak on the subject again, but I fear I am provoked. Like others who were involved with the then Child Support Agency, I bear quite a number of scars. On one occasion I invited all those who had written to me about it in a constituency to come to a meeting. I must say that I have rarely experienced such bitterness as was expressed by a second wife who was determined that the husband should not pay anything either to the former children or to the former wife. This, I am afraid, underlies much of the problem.

I want simply to say a word or two in the context of the statement made by the Leader of the House earlier today with regard to parliamentary privilege. I think that I agree with absolutely every single word he said, but none the less it left a degree of ambiguity because he pointed out that amendments in lieu to a Commons amendment should not be put forward if they are likely to invite the same response. The problem with that, if the privilege amendment is claimed in the other place, is that it is essentially about quantity and money—and here we really do not know. Clearly if the amendment in lieu costs even more than the previous amendment, it is not likely to be accepted and therefore is probably inappropriate. On the other hand, if the amendment costs somewhat less, we really do not know whether it would actually be regarded as invoking the same response. Basically, we are in that situation this evening.

No one is more determined than I am to cut the government deficit; I think that that is crucial. The argument that we are going too fast and doing too much is simply not the case. Many of the proposals for cutting expenditure have simply not happened yet. It was estimated the other day that only around 20 per cent have taken place, so that is very important indeed. Having said that, we have to beware of the Treasury going for cuts which are in fact not likely to affect the economic situation or, as was suggested the other night on a trivial amendment from the Front Bench, which would result in our borrowing costs in international markets going up. We need to assess things within a reasonable range on the basis of the quantities involved.

I would be grateful if my noble friend the Minister could say what the loss to the Revenue would be if the amendment put forward by my noble friend Lord Boswell were to be accepted. I get the impression that there would be no costs at all, in which case it would certainly be a legitimate amendment for us to make. It is more difficult on the other amendment, so it would be helpful to have some figures on that. But I suspect, as my noble friend Lord Newton has said, that in the present economic situation we are likely to find that this will come back yet again, and I am not sure whether that is something we ought to undertake. Given that it is a difficult situation, it would be helpful to have a factual statement from my noble friend on the actual quantities involved.