Marriage (Same Sex Couples) Bill

Baroness Thornton Excerpts

Monday 24th June 2013 Lords Chamber

[Baroness Thornton]

My Lords, I congratulate the Government on meeting two out of the three issues that the Bill has raised for transgender people, and doing so in a sensible and calm fashion. The only outstanding issue left is the proposal being tested here—that same-sex marriage legislation gives spouses the power of veto over whether a transgender partner can have legal recognition of a change of gender. The noble Baroness, Lady Barker, my noble friend Lady Gould and the noble and learned Baroness, Lady Butler-Sloss, have explained the issues perfectly well. I do not think they are complex; they are very straightforward. This is an unfairness and injustice that needs to be balanced out and dealt with in the Bill.

It is an irony and a great shame that, when enacted, the Bill will affect the human rights of transgender people and take them backwards in the UK. I do not think that is the Government’s intention, and I am sure that it is not the intention of the Minister. From these Benches, we think it is important to resolve this issue, which affects a minority of people but, as the noble and learned Baroness, Lady Butler-Sloss, said, can have a very painful and lifelong effect. The Government need to address it. I hope that between now and Report, we will be able to resolve the issue.

[Baroness Stowell of Beeston]

My Lords, I am grateful to my noble friend Lady Barker for introducing this group of amendments and also to all who have spoken in the debate today. It is an incredibly sensitive issue, and I am mindful of that in responding. The noble Baroness, Lady Gould, made a powerful speech and I want her to know that I was listening carefully to her arguments. The Gender Recognition Panel has been consulted throughout as we have been drafting the Bill and it has not raised any concerns or matter that we have not been able to address.

Before I get to the detail of the amendments, let me be clear from the start—in a way it is a response to a point made by the noble Baroness, Lady Thornton—that our concern in the Bill has been to ensure that as many couples as possible are able to stay married if they wish to do so following one or both spouses obtaining gender recognition. We are proud to make that possible in the Bill and it is something that we very much support.

The provisions in the Bill allow the spouse of a transperson to agree and consent to their marriage continuing as a same-sex marriage after gender recognition. It is not a block or a veto; they cannot prevent their spouse obtaining gender recognition. It is important that I make that point. I will explain in a little bit more detail, but nobody is able to stop anybody getting their gender recognition certificate—of that I can be very clear.

The Bill seeks to strike a fair balance between the Article 8 rights to respect for the private and family life of both spouses. The trans spouse has a right to be granted their gender recognition without unnecessary delay, but the non-trans spouse also has a right to have a say in the future of their marriage following their spouse gaining gender recognition. We have, during the passage of the Bill, listened carefully to interested stakeholders from the trans community. I have been glad to meet some representatives with my honourable friend Helen Grant, the Minister from another place. I am grateful to those who have been involved in the preparation of these amendments, and for the time and effort that have gone into them because I know that has been considerable.

I will turn specifically to what the amendments seek to do. The first aspect is the limit of six months in proposed new subsection (3A), relating to both spouses’ power to initiate annulment proceedings following the issue of an interim gender recognition certificate. The point is that there should be a limit of six months for annulment proceedings to start. In response to a point made by my noble friend Lady Barker and the noble and learned Baroness, Lady Butler-Sloss, I want to make it clear that if a spouse refused to commence annulment proceedings, the trans spouse would be able to do so. In the Bill as it stands, either spouse in the marriage is able to start annulment proceedings. It is not just in the hands of one spouse.

In terms of the second time limit of 12 months in proposed new subsection (3A), once annulment proceedings have been commenced, it is for the court to bring the marriage to an end and, upon that occurring, to issue a full gender recognition certificate to the applicant. To require the Gender Recognition Panel to issue a gender recognition certificate while court proceedings are ongoing would be to require the panel to usurp the functions of a superior court. Where one spouse is deliberately delaying the annulment process, the courts already have the power to deal with this. I will be absolutely clear: either spouse is able to bring forward annulment proceedings and once they start, they are in the hands of the court. Most annulment proceedings take three months—or, from the very outset, six months I think—but it is the court that will ensure that they continue in line with the proper process.

There is another element to the amendments, which I am not sure my noble friend covered in her introductory remarks, but to which I will respond. Proposed new subsection (3B) relates to civil partnerships. The Government do not believe that removing the right of spouses to have a say in the future of their marriage following conversion and gender recognition strikes the proper balance between the rights of both spouses. The agreement of a non-trans civil partner to the conversion of their civil partnership to a same-sex marriage is one thing—it is not the same as their agreement to the resulting marriage continuing as an opposite-sex marriage following their spouse’s gender recognition.

That covers the situation where a couple are already in a civil partnership and one of them has gender reassignment. If the non-trans spouse agrees to transfer the civil partnership to a marriage, to allow their certificate to continue, that is not the same as the non-trans spouse agreeing at the same time that they want to continue to be married to somebody who would then be of the opposite sex but who was of the same sex when they first entered into a civil partnership.

The Government and I are always prepared to listen and to take great care in responding to points raised in debate. It is probably worth mentioning that we have already made an amendment to the Bill to protect the pension rights of transpeople who receive a gender recognition certificate and are then in a same-sex marriage, so that they retain the same rights as if they were married to somebody of the opposite sex. Following the debate in the other place on the fast-track procedure, we have been considering this carefully, and I hope very much to bring forward something positive in that area on Report.

The noble and learned Baroness, Lady Butler-Sloss, and other noble Lords asked whether a spouse is currently notified at the point of application. Under current rules, a spouse is not notified of her trans partner’s gender recognition application. This is because the marriage must be annulled before a full gender recognition certificate can be issued. The process, as it stands, requires somebody to have annulled their marriage before it is possible to get a full gender recognition certificate. However, I have only just been made aware of that issue and would like to follow up with a letter to the noble and learned Baroness, to my noble friend and to other noble Lords to explain the point in more detail.

I regret that I am not able to accept the amendment, but I hope I was able to give noble Lords the assurance they quite rightly seek. This is not about anybody having more control than the other person over the future of their marriage; it is about ensuring that there is an equal share and balance of rights between the two parties, and that it certainly is not just one spouse who has the right to annul the marriage.

[Baroness Thornton]

I do not think the noble Baroness has actually addressed the issue of one spouse having the right of veto. I think that is very important. Spousal vetoes are spousal consents, which we got rid of in this country many years ago. A husband actually had to consent to his wife divorcing him, for example. I ask the noble Baroness to look at this most carefully. At the moment the Bill is in danger of reintroducing into British law a new matter—the right of one spouse to veto the actions of another—which we got rid of many years ago.

[Baroness Stowell of Beeston]

I hoped that I had responded to that, because we are clear that one spouse is not vetoing somebody else’s rights. If the transperson in the marriage wants to go for full gender recognition and receive the certificate, they are absolutely entitled to do that. However, if the person to whom they are married does not want to remain married to them, then they have to make a decision about the future of their marriage. We argue that for the non-transperson, whether they wish to remain married to somebody who has gone through gender reassignment is quite a fundamental thing to have to consider. This is not saying that somebody who wants to reassign their gender is not able to do so. The issue is whether they are able to remain in the same marriage. The person to whom they are married also has some right to decide whether they want to remain married to somebody after that person has changed their gender.

[Baroness Thornton]

The point here is whether the effect of this is that the transperson cannot complete their transition. That is the point the Minister is not answering.

[Baroness Stowell of Beeston]

Forgive me, but I think I am. I am saying that if someone wants to go ahead with gender reassignment and their spouse does not agree to remain married to them, then it is open to them to start annulment proceedings, as indeed it is to the spouse who no longer wishes to remain married to them. Both of them have the right to start an annulment proceeding, and the person who wishes to change their gender and receive a full certificate can do that. It is not about them being unable to change their gender. They have the right to do that, and nobody is stopping them doing that. However, if the person to whom they are married does not wish to remain married, sadly they have to make a choice. They have to decide, and it must be their choice. It is not a choice that the state can make for them.

This is an incredibly difficult situation, as has been made clear in the course of this debate. Fundamentally, it concerns the decision of two people about their future. Each person has equal rights in the future of their marriage, but they must decide for themselves. These amendments seek to institute a time limit after which the state decides for them. It is not for the state to decide who people should be married to.

--- Later in debate ---

[Baroness Thornton]

We are talking here about a balance of rights. I think that I would like guidance, which I would be happy to take in writing or in a meeting. The objections of either spouse might be based on religious conviction, for example, although other objections are possible, too. Equalities cases such as those of Ladele have shown that Article 9 rights need to be balanced with other rights. In this scenario, are the Government explicitly placing someone’s Article 9 rights above their partner’s Article 8 rights? I am not asking the Minister to respond to that question now, but I would like that to be part of this discussion.

[Baroness Stowell of Beeston]

I certainly accept the noble Baroness’s invitation to respond to her on that point either in a meeting or in writing. However, I can say quite clearly that the rights at issue here are only Article 8 rights; that is, each party’s right to a private family life. I shall of course respond in detail to that.

On the point raised by the noble and learned Baroness, Lady Butler-Sloss, under current rules a spouse is not notified of her trans spouse’s gender recognition application because the marriage must be annulled before a full gender recognition certificate can be issued. In order for somebody to obtain the certificate, they would already have had to deal with the issue of their own marriage, because it is not possible in current law for two people of the same sex to be married.

I take the point that the noble and learned Baroness made about there being a need for spouses to be notified of changes sooner rather than later. Clearly, if the relationship still exists, there will in most cases be a physical awareness of the change. However, since the noble and learned Baroness has raised a serious point, as has my noble friend, I should like to consult my colleagues on it and follow it up in writing.

--- Later in debate ---

[Baroness Farrington of Ribbleton]

My Lords, I had not intended to speak and I am still absorbing the last comment of the noble Lord, Lord Pearson of Rannoch. Like all those who have spoken, I believe that, through the taxation system and regulations on caring, we discriminate against people who devote their lives to caring for others. Personally, I would not want to wait for a review of this nature, unrelated as I see it to be to the issue. We have much to do about reviewing the needs of people who are carers. Legislation is desperately needed; the Government assure us that they are looking at the issue, and to me that is the vehicle.

I cannot see how, in a same-sex marriage Bill or in a civil partnership as it stands now, something that the churches have opposed since time immemorial—incest—can be validated. As noble Lords have said, this issue concerns many relationships that would be ruled out of marriage by law, let alone by the churches, because they would be deemed too close and thus to be incestuous. In saying that, I do not in any way disparage the importance of the issue that needs to be raised. Like other people in this Chamber, I have relied in my lifetime on other siblings helping me to care for elderly parents, and I think that the time is right to deal with the issue.

Saving the presence of the noble Lord, Lord Pearson of Rannoch, we are talking about chalk and cheese in relation to the relationships that would have been supported in the case of the debate that I remember so well having been present for, and what we are doing in this Bill. I ask those who care so strongly about this issue to ensure that it is dealt with expeditiously as part of a review of the circumstances of carers. I hope that when it comes to Report, people will take that very seriously on board because I know carers who cannot wait any longer because their own future is uncertain. As has been said, some changes could be brought in without any loss of benefit to the Treasury; it is merely a question of delay.

[Baroness Thornton]

My Lords, we have had a very interesting and passionate debate about extending civil partnerships to unpaid carers and family members who share a house. I, too, was present at the debate we had during the passage of the Civil Partnership Bill. I said then that I thought my noble friend Lord Alli was right; that was not the Bill. He is right now that this is not the Bill. That is not to say that this is not an important issue. Of course it is a most important issue.

I just wonder why—or maybe I have missed this and a noble Lord can tell me—this issue has not been raised in the passage of the many Bills that we have had before us in which it could have been raised in the intervening period. We have had Bills about carers. I put down an unsuccessful Bill about free support for people at home. There have been many times when this House could have taken on board these issues and made its views clear in appropriate Bills to do with income support and carers. Yet, again we find ourselves discussing this important issue during the passage of a Bill to do with, in this case, equal marriage. That does not do service to both the importance of the issue of carers and the fate of people who care for their relatives, or the issue before us, which is the same-sex marriage Bill. That is a shame.

On these Benches we do not think this is the right Bill. We think this a good issue and an important issue but we suggest that this is not an appropriate amendment. Will the Minister clarify the Government’s review of civil partnerships—which we understand because we helped the Government to put forward the amendment from these Benches in the other place? How far does he believe that review will go and where will it end up? Our understanding is that it is a review looking at whether one would have opposite-sex civil partnerships and, if so, how that would work.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, this has been a very good debate and the issues have been thoroughly explored. I congratulate the noble Baroness, Lady Deech, on introducing it in the way that she did. I do not think any of your Lordships who have spoken in the debate in any way question the validity—or the value, rather—of the relationships that exist between siblings or other family members where they have mutual duties or care obligations. Indeed, the noble and learned Lord, Lord Lloyd of Berwick, mentioned a particular case of a young man who helped someone who was injured in a riding accident. Certainly, our society, country and communities benefit enormously from the caring relationships that exist the length and breadth of the country. I imagine that many noble Lords can think within their own families of relationships of mutual support between a brother and sister, between sisters or brothers, or intergenerational support.

The amendment moved by the noble Baroness would amend the duty in Clause 14 requiring the Secretary of State to arrange for the review of the operation and future of the Civil Partnership Act so that the scope of the matters to be reviewed includes consideration of the possibility of extending civil partnerships to,

“carers and those they care for”,

and to,

“family members … who have cohabited for 5 years or more and are over the age of eighteen”.

The terms of reference for the review of civil partnerships required by Clause 14 were published on 13 June and a copy has been placed in the House Library. The review will look at the operation and future of civil partnerships in England and Wales. It may help your Lordships if I note what the scope is, according to the published terms of reference. They say that the review,

“will cover England and Wales and will … Examine evidence about how well the current arrangements for civil partnerships are working, drawing on views from the public and organisations with an interest and international comparisons … Assess the need and demand for civil partnerships when marriage is available to all, and whether any changes to civil partnership arrangements are necessary … Identify all the implications of and issues raised by the identified options (including risks and devolution issues) … Assess the costs and benefits of the options … Make recommendations for any changes to the operation and future of the CPA”.

In response to my noble friend Lord Lester, it is not the Government’s understanding that that would extend to issues of cohabitation. In a Written Ministerial Statement on 6 September 2011, the Government said:

“The findings of the research into the Scottish legislation do not provide us with a sufficient basis for a change in the law. Furthermore, the family justice system is in a transitional period, with major reforms already on the horizon. We do not therefore intend to take forward the Law Commission’s recommendations for reform of cohabitation law in this parliamentary term”.—[Official Report, Commons, 6/9/11; col. 16WS.]