Civil Partnership Act 2004 (Amendment) (Sibling Couples) Bill [HL]

Baroness Deech Excerpts

2nd reading (Hansard): House of Lords
Friday 20th July 2018 Lords Chamber

[Baroness Deech (CB)]

My Lords, ever since I first took an interest in the case of the Burden sisters some 10 years ago, in which two of the barristers were my former pupils, I have wondered why the financial and inheritance benefits of coupling up are confined to sexual relationships. The law is solicitous towards married couples, of the same or different sexes, and towards civil partners of the same sex—and, following the recent Supreme Court decision in Steinfeld and Keidan, it is highly likely that we will soon be legislating for civil partnerships for heterosexual couples, with the concomitant tax and financial breaks. In that case, the Supreme Court found that Article 8 of the European Convention on Human Rights, which protects the right to family and private life, was breached, along with Article 14, which states:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.


Sibling couples are the subject of Bill introduced by the noble Lord, Lord Lexden. If civil partnerships are to be extended to heterosexual couples by virtue of the non-discrimination clause of Article 14, the same must be true of sibling couples, who are being discriminated against in the enjoyment of their private and family life on the grounds of birth or other status. Even cohabiting couples, usually defined as living together as husband and wife, enjoy certain benefits that sibling couples do not.

It is of course true that the creation of marriages and civil partnerships does more than extend financial benefits; it acknowledges publicly the responsibility that each of the pair takes for the other. But, leaving aside the sexual relationship—which, incidentally, is assumed but does not have to exist—why should sibling couples who have lived together for decades, and are co-dependent, not get benefits too?

Heterosexual and same-sex couples have a variety of ways in which to seek public and formal recognition of their relationship—or they may choose to avoid it altogether by cohabiting without entering marriage or a civil partnership. Family members cannot get the benefits—albeit that they would be seeking public recognition of the relationship not as a sexual one but as one where each has decided to take on responsibility for the other.

Now that formal partnerships extend beyond the marriage of man and woman, there is no reason not to grant financial and inheritance benefits, along with parenting and medical and other benefits, to co-dependent family members. Life can be unfair to the single. Those who are fortunate enough to enjoy a formal partnership should not claim a monopoly on benefits that might appropriately benefit others’ different relationships.

The discussion today highlights a pressing social issue. A recent report by the Social Market Foundation estimates that there are more than 7 million carers, who sacrifice careers and freedom to look after family members. As society ages, and while no solution has yet been found to fund social care for the elderly, the number of carers will increase—and increase in importance.

Financial provision laws that apply to married couples and civil partners who dissolve their union have as their aim that disadvantages and unfairnesses arising from the care-giving within the couple-and-children relationship be compensated for. Some of those formal unions may have been very short-lived. But family carers may have struggled on for years without recognition and respite, and without employment policies that support working carers. They are saving the state a fortune in social care. Why should they not enjoy some tax breaks and financial support, especially if they stand to be evicted from their home when the cared-for person dies? Of course, rather than creating a new category of partnership, the Government might just choose in the forthcoming review to extend inheritance tax deferral to family couples, carers or not. That would go a long way to resolving the issues.

The case of the Burden sisters was one where substantial inheritance tax fell to be paid once one of them died, having lived together all their lives in the same house. It would have to be sold. The degree of commitment and stability in the case of the sisters resembles that of any formally partnered couple. We have heard of several examples this morning where they choose to live together, and that is their lifestyle and self-determination. The same may well be true of many daughters looking after elderly parents or other family members for decades; they are at risk of being evicted from the home on the death of the person they have cared for. There is no certainty that a claim by the carer under the Inheritance (Provision for Family and Dependants) Act would succeed because the claimant has to show that they were being maintained by the deceased, not the other way round. The Government are fearful of losing tax on inheritance. They need not be because the effect of extending civil partnership benefits to family couples would be only a deferral of the tax until the death of the survivor, not a total loss.

The Burden sisters’ appeal was rejected by the Grand Chamber of the European Court of Human Rights. The judgment was unsatisfactory, however, as it did not address the central question: why should the sisters be liable for inheritance tax on each death simply because the person they want to spend their life with is a sister, rather than a spouse or partner of the same sex? The Government did not dispute that the purpose of the inheritance tax exemption in the case of married people and civil partners is to make provision for the partner left behind, and there was no explanation of why that principle should not apply in the case of two sisters.

I hope the Government will support the noble Lord, Lord Lexden, and others speaking this morning. I hope they will show understanding of the unfair position that family members are in at present and take on the gist of his Bill. Being Friday, I cannot resist mentioning once again that the shadow of the noble lyricist Irving Berlin hangs over this Chamber. He wrote:

“Sisters, sisters

There were never such devoted sisters …

Lord help the mister who comes between me and my sister”.

--- Later in debate ---

[Baroness Barker (LD)]

My Lords, it is a great pleasure this morning to put on record my admiration for the noble Lord, Lord Lexden. I do not know him particularly well, but over the years I have watched the many things that he has done, particularly within his own political party, to secure greater equality for LGBT people. I admire much that he has done. It will surprise nobody, least of all him, that today I profoundly disagree with him, but I hope we will continue in future to be allies on other matters.

I disagree with him today because I believe that this proposal has a fundamental and dangerous flaw. I accept that, back in 2004, the people who proposed extending civil partnerships in this way did so to wreck the then Civil Partnership Bill, and they very nearly succeeded. The noble Baroness, Lady O’Cathain, very nearly succeeded in doing so. I also accept that today that is not the motivation of the noble Lord, Lord Lexden. None the less, I believe that the path he has chosen to pursue is wrong. In 2004, the noble Baroness, Lady O’Cathain, took her lead from the Christian Institute, one of the first organisations to import into this country a rather brutal form of evangelical Christianity from the United States. I think noble Lords will find it worth reading the documents which the institute produced at that time to see the fundamental underlying motivation for the proposal.

It is wrong to equate the relationship between siblings and family members with relationships between adults which are entered into voluntarily as loving relationships. It is simply wrong. Consanguinity is not something that we can ignore in this matter because it has a profound effect upon relationships. I shall pick up one point made by the noble Lord, Lord Lexden. He talked about equalising the relationship of siblings with people who have particular lifestyles they have chosen. Being gay is not a lifestyle and, for some of us, it is not a choice. We are who we are and our relationships as gay people are fundamentally different from the relationships that we have with our siblings. The noble Lord, Lord Lexden, and many other noble Lords made the point that the purpose of the Bill is to end discrimination or to support siblings—although I noticed how many of your Lordships talked about daughters, and I will come back to that in a moment—supporting their family. The noble Lord, Lord Lexden, is not, I think, proposing that children should enter into civil partnerships with their parents. However, if one accepted the basis of his proposal, one could argue that perhaps they should. I think that that is fundamentally wrong. It conflates two entirely different relationships and complicates them.

Let us get on to the complications. The noble Lord, Lord Lexden, has not talked about one particularly important matter: a civil partnership can be dissolved. You cannot dissolve your relationship with your family in the same way. You can become estranged, you can have the most horrible and distant relationship, you can fall out over property, but you will remain in that family. That is why I think the noble Lord, Lord Lexden, was wrong, as was the noble Lord, Lord Cormack, to say that this is a wholly beneficial measure which inflicts no harm on anyone. Imagine yourself in the position of a woman in a family with an overbearing, dominant brother or father and a significant property. Noble Lords have spoken this morning about couples they know. The couple who come to my mind—there were originally three siblings but one of them died; I do not know what we would do in a case where there were more than two siblings, but that is another matter to consider—lived on a farm. They were devoted to each other. They were members of my father’s church and wonderful people. If this proposal had been in place and one of those siblings had wished not to remain on that farm but to go away, imagine the pressure that there would have been on that woman. That is the dark side of this that no one has spoken about: the potential for abuse that it opens up. It is why I have maintained in all the discussions we have had that the noble Baroness, Lady Deech, is wrong. I can see that carers would come under enormous pressure to enter into a civil partnership. Incidentally, as I have said to her before, I think it is really interesting that no carers’ organisation has ever asked for this and, as far as I know, they do not support it. They support carers having much greater support than they do now but not being tied into a legal obligation such as this. I could not disagree more fundamentally with the noble Baroness. I do not for one moment question her motivation but I disagree with her entirely.

The Bill is fundamentally flawed. The noble Lord, Lord Lexden, talked about the “curious reluctance” of another place to consider this matter. I think it is a wholly understandable decision not to pursue something that is fundamentally flawed and potentially dangerous.

[Baroness Deech]

On a point of order, why would there be more duress on two family members to enter a civil partnership than on any other two people? Of course if there is duress, it is vitiated. Any contract or marriage or civil partnership that you enter into not of your own free will is invalidated. A civil partnership can be ended just like that, even if two people are family members. Given that there is a dissolution procedure, that would apply. There is an academic output, which I do not know if the noble Baroness has seen, that suggests that the pressure for civil partnerships, which is not just about money, between family members is a way of denying the sexuality of gay partnerships. Some 14 years have gone by and I think that argument is simply not tenable.

[Baroness Barker]

Yet again I disagree fundamentally with the noble Baroness; I think that is exactly what it is about. I also say to the noble Lord, Lord Lexden, that I am not guilty, and I do not know anyone else within the LGBT community who is, of wanting to keep civil partnerships as the preserve of our community. I support the extension of civil partnerships to heterosexual couples, although that debate is for another day, but extending it to people who as adults come together of their own volition, with no baggage and no pressure, is completely different. The noble Baroness dismisses some of the great tensions of family life in her submission.

I believe the noble Lord, Lord Hamilton, is right that the Bill is trying to deal with a matter that should be dealt with by the Treasury because it is about fiscal matters. I would warmly support anyone who wished to find some way of addressing those issues of inheritance tax. However, you do not solve an injustice by putting in place something that is equally unjust and open to great abuse. I genuinely believe that this is a wrong and dangerous move. I hope that, just as 14 years ago, we in this House and people in another place will see this for the great mistake that it is and stop it.