Marriage (Same Sex Couples) Bill

Baroness Thornton Excerpts

Wednesday 10th July 2013 Lords Chamber

[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]

--- Later in debate ---

[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.

--- Later in debate ---

[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.