Marriage (Same Sex Couples) Bill

Caroline Lucas Excerpts

Tuesday 21st May 2013 Commons Chamber

[Caroline Lucas (Brighton, Pavilion) (Green)]

It is a pleasure to follow the hon. Member for Cambridge (Dr Huppert). I will address many of the issues he has raised. As he said powerfully, the amendments seek to provide some small right to the dreadful wrong that has been done to those couples who were forced by the state to annul marriages in order for one of them to avail themselves of their most basic civil rights.

Amendments 18 and 22 are in the name of the hon. Member for York Central (Hugh Bayley), who is unable to be in the Chamber today because he is attending the spring session of the NATO Parliamentary Assembly. I gladly agreed to speak to the amendments as the second signatory, because I have long been concerned to see that injustice rectified.

I shall provide the House with the case example that led the hon. Gentleman to table the amendments. His constituents have been married for 35 years as man and wife. The Gender Recognition Act 2004 forced them to annul their marriage, which they did in 2007, so that the male-to-female transsexual in the relationship could obtain a gender recognition certificate in her acquired gender and get on with her life. The legislation did not allow the couple to continue to be married even though they wanted that. Both were extremely clear that they wished to stay together and did not want a divorce. They had cared for, supported and loved each other as a married couple for more than 30 years, and wanted the care and support they mutually offered each other to continue in the years ahead. They wanted to keep their family together for their own sake and for the sake of their children.

Since being forced to annul their marriage, the couple have lived together as two women in a civil partnership. They entered into a civil partnership on the very same day their marriage ended and still live together, but they should never have been made to annul their marriage, even if an alternative legal mechanism was available in the form of a civil partnership. They have lived together continuously for 44 years and it is their marriage anniversary that they still celebrate. For many couples, annulment was deeply distressing and not something of mere technical and legal significance.

As I think we would all recognise, reasons for marrying and making a public commitment are intensely personal and varied. For some, marriage is not just about legal practicalities, and the blunt replacement of one legal mechanism with another is not the end of the matter. Other hon. Members will have similar cases. The number of people involved is not large—a point I will come on to in a moment—but the injustice done to them is real. We ought to take this opportunity to go some way to righting the wrong done.

What can the Government do to make amends? Amendment 18 proposes to require the Government to make a one-off compensation payment from public funds to couples whose marriages were annulled, to permit a person to obtain a gender recognition certificate and enter into or continue to maintain a civil partnership; or to those who have continued to live together as a couple in the same household since the annulment of their marriage, but who did not choose to go down the route of a civil partnership. It is a simple principle: married couples forced by the state to have an annulment that they did not want should be compensated by the Government by way of an apology for the distress and cost incurred as a result of the annulment of their marriage. The amendment proposes a nominal sum of £1,000. The public expenditure implications would be negligible—we know the numbers are small, as I will go on to explain in a moment. The £1,000 compensation payment would be far less than the cost for couples who have had to pay for a divorce and a civil partnership ceremony.

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[Lady Hermon]

I am most grateful to the hon. Lady for allowing me to intervene on what is a very interesting contribution. Will she clarify a small point, but one that is of great significance to those in Northern Ireland? I am following the logic of her argument. Under schedule 2 to the Bill, those in England and Wales can avail themselves of same-sex marriage. As soon as they go to Northern Ireland, however, that marriage would have to be treated as a civil partnership. Is the logic of her argument that the state that passed the legislation must also compensate those who regard themselves as married couples in England and Wales, but become civil partners again in Northern Ireland?

[Caroline Lucas]

The hon. Lady makes an interesting point. Given that we are talking about a symbolic apology, it would be generous and appropriate for it to be offered in Northern Ireland too. My argument is not a narrow legal argument. A wrong was done. To the extent that the wrong was done by the Government, one can make an argument that the measure is relevant only to those who were living in the country at that time.

[Lady Hermon]

It is very generous of the hon. Lady to take a second intervention. Just to be clear, I was not making a recommendation that compensation be paid by the state. I was simply asking the hon. Lady whether her amendments would oblige the Government to pay compensation in the circumstances she outlined. Is the logic of her argument that she would advocate compensation in Northern Ireland? I certainly am not doing so.

[Caroline Lucas]

I thank the hon. Lady for that clarification. In that case, my answer is simple: yes, I would.

Amendment 22 would remove any reference to compensation and deal specifically with the reinstatement of marriages in cases where couples had their marriages annulled, so that a person could obtain a gender recognition certificate and continue to live together without forming a civil partnership. In cases where civil partnerships were formed after forced annulment, I am pleased that the Bill provides some assistance. Under clause 9, a couple are permitted to convert their civil partnership into a marriage to be treated as having subsisted since the date the civil partnership was formed.

Couples who were forced to annul a marriage and enter into a civil partnership will not be able to rewrite history—at least not legally—but it will almost be as if there was no break in their marriage, which of course they never wanted to annul in the first place. These are not the only cases, however, and we must ensure that all cases are covered. As a result, amendment 22 is designed to help couples who annulled their marriages so that one person could get a gender certificate, but who did not then enter into a civil partnership. As far as possible, the injustice that they have also faced must be addressed.

When the issue was discussed in Committee, the Minister expressed sympathy for couples who had been required to make the difficult choice of whether to end their marriage to enable one of the parties to obtain gender recognition, but she said that she could not support an amendment that sought to reinstate marriages from the date they were annulled because of the difficulties that could be caused with any rights and responsibilities that the couple had accrued since their marriage was annulled—for example, retrospective entitlements to benefits and taxation.

In order to help the Government and make some progress, in this version of the amendment, I and the hon. Member for York Central are proposing that reinstatement of the marriage be from the date that the couple gave notice to have it reinstated. This would address Ministers’ concern about retrospective legislation. It is not ideal. I would much prefer a fully retrospective measure, but given what the Minister said in Committee, it would be better than nothing for this small but greatly wronged—I still believe—group of people. Couples were forced to make a distressing and appalling choice, largely because policy on same-sex marriage was lagging so far behind what was right and just. I hope that we can use the window of opportunity in this historic Bill to do the right thing.

[Margot James]

I congratulate the hon. Lady and the hon. Member for Cambridge (Dr Huppert) on their work in this important area. A couple in Stourbridge came to me two years ago, one of them having undergone gender reassignment treatment and surgery. They were very distressed that their marriage had been annulled and did not want to enter into a civil partnership, for their own reasons. Does this not underline the benefit of the Bill? People who are in this position having had gender reassignment surgery will have the choice, whether they are gay or heterosexual.

[Caroline Lucas]

Yes, I think it does underline the benefit. As we have said, the numbers are not huge, but for the individuals involved, it was very distressing, so I think it appropriate that we take this opportunity to address the situation.

My amendment 49 would address the continuing discriminatory hurdle in the Bill around pensions. The Bill allows employers and pension providers to award gay spouses and civil partners a fraction of the survivor benefits payable to a partner in a mixed-sex marriage. It is an unnecessary and counter-productive anomaly in a Bill that otherwise makes landmark progress in furthering the fundamental human rights of gay people. The amendment would give same sex couples entering into a gay marriage entitlement to the same pension rights as married opposite-sex couples. It removes both existing discriminatory provisions in the Equality Act 2010 and the subsequent extension of that discrimination in this Bill.

[Sir Malcolm Rifkind (Kensington) (Con)]

In tabling amendment 49, the hon. Lady has identified an anomaly that deserves to be rectified in the way she suggests. If the Government and the House want to give complete equality to same-sex relationships, they must address the pension question, otherwise we will have this extraordinary anomaly that if a person in a same-sex relationship today chooses to enter into a heterosexual marriage tomorrow, their new spouse would have full pension entitlement, whereas their former same-sex partner, whom they might have had a relationship with for many years, would get a fraction of that pension entitlement. If the Government and the House want same-sex relationships to have full equal rights, her amendment must be the right course of action.

[Caroline Lucas]

I am grateful to the right hon. and learned Gentleman for that intervention. I know he has had first-hand experience in his constituency of exactly this issue.

Paragraph 18 of schedule 9 to the Equality Act 2010 allows employers and pension providers to ignore the service and contributions of gay employees made before 5 December 2005 when it comes to assessing survivor benefits for their civil partners and occupational pension schemes. Paragraph 15 of schedule 4 to the Bill would extend that discriminatory provision to same-sex spouses.

As we saw in yesterday’s debate on opening civil partnerships to opposite-sex couples, the Government are comfortable arguing that unforeseen costs to pension schemes are a legitimate justification for sanctioning discrimination, yet their warning that the equalisation of treatment in the provision of occupational pension benefits will cost too much simply cannot be substantiated. No pension provider can accurately predict how many individuals in a pension scheme will be gay, never mind how many of them will marry or form a civil partnership with an individual who outlives them by a significant period of time.

Dealing with uncertainties around length of life, the possibility of illness, the decision to marry and many other issues is second nature to pension providers. Gay married people pose no more uncertainty than their straight counterparts. What is more, according to the Government’s figures, two thirds of pension providers already do the right thing, so any additional liability to pension schemes will surely be minimal. The financial implications of perpetuating discrimination could be very grave indeed, though, for those individuals who have paid into their pension schemes in the same way as other employees, yet will be denied the survivor benefits available to married mixed-sex couples.

One recent employment tribunal found that an occupational pension scheme was directly discriminatory because it provided a civil partner with only the benefit from pension rights accrued since 2004—in other words, when civil partnerships became available in the UK. John Walker and his civil partner have been together for 20 years and registered their civil partnership at the first possible opportunity, yet the pension scheme sought to restrict the survivor benefits available to John’s partner to just £500 a year. If John dissolved his civil partnership and married a woman today, she would be entitled to £41,000 per annum in the event of his death.

With the help of Liberty, John challenged that discrimination and recently won his legal battle to secure equal pension benefits for his civil partner. The employment tribunal relied on European Court of Justice rulings, which concluded that treating married and same-sex couples differently over the pensions payable to a survivor when national law recognises the relationships as equivalent in other respects breached the framework directive on equal treatment in employment. My amendment 49 would ensure full compliance with that directive and, crucially, ensure that the equality rulings made by the courts are applicable to all marriage relationships.

[Mrs Mary Glindon (North Tyneside) (Lab)]

Does the hon. Lady agree that if people are to have parity before the law, they must have not just emotional parity, but financial parity? Anything less would not be equality in any shape or form.

[Caroline Lucas]

I absolutely agree with the hon. Lady. We are talking about genuine equality. That means legal equality, as well as symbolic or any other kind of equality.

That tribunal was a landmark case. Interestingly, the Government lost the case, so one could argue that agreeing to my amendment 49 might save them money, as they would not need to pay out in future legal cases that might go against them. If the law remains as it is for civil partners and that inequality is extended to those in same-sex marriages, it could be several decades before gay couples achieve real equality in pension provision. I see no justification for continuing to permit discrimination in this area. I hope very much that colleagues will support amendment 49 and join me in overturning an anomalous and discriminatory provision.

[Mr Tobias Ellwood (Bournemouth East) (Con)]

It is a pleasure to participate in this important debate on this group of amendments.

I have been quite conflicted over this entire subject. I am a godfather to a lovely little boy who has been adopted. His parents are in a partnership and they are both gay. I see myself very much as a progressive Conservative, and I certainly recognise that society’s attitudes have advanced, which is reflected in the fact that we are debating the amendments in such detail today. Of course we do not send children up chimneys any more, or allow only privileged landowners to vote, and we got rid of slavery long ago.

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[Caroline Lucas]

Will the Minister explain what the situation will be if the Government lose the appeal, which seems entirely likely given the legal case?

[Mrs Grant]

As an optimist, I would prefer to decide what action is appropriate if that happens. I do not want to prejudge the appeal.

I shall now deal with the non-Government amendments on gender reassignment. Amendment 15 would enable a marriage to be held to be continuously valid from the date of the original marriage solemnisation, effectively restoring the original marriage. Amendment 22 would allow couples who have continued to live together following the annulment to apply to have their marriage reinstated from the date on which they notify the registrar of their wish to have their marriage reinstated.

I understand the concerns that prompted hon. Members to propose those amendments, and the Government have great sympathy for couples who felt required to make the difficult choice to end their marriage to enable one party to obtain gender recognition. However, it is not possible to reinstate a marriage that has been lawfully ended by an order of the court. It will be possible to backdate converted marriages to the date of registration of the civil partnership, as the civil partnership will not have been lawfully ended.

Couples who have continued to live together will be able to marry by virtue of the changes in the Bill. I realise that that will not be a reinstatement of the original marriage, but I sincerely hope that couples will feel able to make use of these important provisions. I realise that some transsexual people in this situation may be disappointed, but we need to ensure that a person’s legal relationship status is completely clear at all times in the eyes of the law.

Amendment 18 would enable a one-off payment of £1,000 from public funds to be made as compensation for the distress caused to and costs incurred by couples who had their marriages annulled to enable one or both parties to get gender recognition. I cannot support that amendment because we have to take the law as we find it. It is not fair arbitrarily to compensate couples who decided to end their marriage under the law that applied at the time. There will be other couples who felt unable to end their marriage and who may have suffered distress as a result of not being able to obtain gender recognition. We have taken on board the issues that the hon. Member for Brighton, Pavilion and my hon. Friend the Member for Finchley and Golders Green (Mike Freer) have raised, and we will continue to listen carefully.

The first part of amendment 16 would provide a power for the Registrar General to make regulations about the issuing of new marriage certificates to couples in which one or both parties have obtained gender recognition that reflect the trans party’s acquired gender, but retain the original date of registration. That could include the date of registration of a marriage that had been annulled. I assure the House that that part of the amendment is unnecessary because the power provided in the Bill is wide enough to deal with those matters. We will give serious consideration to the registration date that should be referred to on any new marriage certificate issued to a couple who are to stay married following gender recognition. We will also need to ensure that the certificate does not inadvertently reveal that one party has gender recognition.

The second part of amendment 16 would provide a power for the Registrar General of England and Wales to make regulations providing for amended birth certificates for transsexual people’s children to reflect the transsexual person’s acquired gender. The amendment does not seem to be directly related to equal marriage, and in any event I cannot accept it as section 12 of the Gender Recognition Act 2004 makes it clear that gender recognition does not affect the status of a transsexual person as the father or mother of a child. That section is necessary to ensure the continuity of parental rights and responsibilities and to protect the right of children to know the details of their biological parents.

Amendment 12 is intended to remove the provision in the Matrimonial Causes Act 1973 that makes a marriage voidable when a transsexual person marries a non-trans person but does not inform that person of their trans status prior to the marriage or at the time when it takes place. I cannot accept the amendment, because the current provision in the 1973 Act and the corresponding provision in the Civil Partnership Act 2004 provide important protection for the non-trans spouse. If a non-trans person finds themselves in a marriage to which they did not fully consent, it is only right that they should be able to apply to annul the marriage rather than have to wait to bring time-consuming and often costly divorce proceedings.

Amendments 13 and 14 would require the Gender Recognition Panel to issue full gender recognition certificates to all applicants in protected marriages, irrespective of the non-trans spouse’s views. It would then be open to the non-trans spouse to issue divorce proceedings. I understand that the amendments are intended to remove the so-called “spousal veto” in schedule 5. However, let me be clear that non-trans spouses will not be able to veto their spouses obtaining gender recognition. I also understand that the amendments are intended to deal with the problem of hostile or obstructive non-trans spouses who deliberately seek to delay nullity proceedings. I have not seen any evidence that that is a widespread problem. If the grounds for the marriage being voidable are met, the hostility or absence of the non-trans spouse should not delay a court in issuing a decree of nullity. If there is evidence that unnecessary delays are occurring, we believe that it should be a matter for the court.

It must be remembered that a marriage is contracted between two people who should have an equal say in the future of that marriage. We consider that it would be unfair to remove the right of every non-trans spouse to have a say in the future of their marriage before gender recognition takes place. I therefore ask hon. Members not to press their amendments relating to gender reassignment.

Finally, I thank all right hon. and hon. Members who have contributed to this important debate. I am conscious of time and know that I need to leave a little time for the hon. Member for Cambridge (Dr Huppert) to respond, so I will conclude my remarks.

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[Caroline Lucas]

So much has been said about same-sex marriage over the past couple of days. It is important on the occasion of Third Reading to return to the fundamental principle that underpins what we are trying to achieve. That principle is equality. Ultimately, this is about basic human rights. Nobody should be denied on the basis of their sexuality the opportunity to be legally married.

We are righting a wrong and I urge Members in the other place to remember that when they consider the Bill. Peers, including some but not all bishops, recognised the justice of introducing civil partnerships back in 2004, and I hope they will also recognise the justice of now granting same-sex couples the choice to enter into marriage, especially as the Bill has gone to great lengths to protect important religious freedoms.

Colleagues have remarked on the historic nature of the decisions being taken, and I agree. We live in a world where 85 United Nations member states still have repressive laws against lesbian, gay, bisexual and transgender people, where same-sex marriage is still a distant dream, and where being L,G, B or T can in some cases be a death sentence. But some dreams come true, and today is an important symbolic as well as practical step forward for equality and human rights.

I met a very inspiring campaigner at a trans networking event in Parliament the other day whose business card carried the strapline, “Tolerance is not good enough”. That neatly sums up what I want to say. Tolerance is important, yes, but we need to carry on for more than that. We need to fight for true justice, for true equality, for true LGBT rights, as well as for tolerance. For me, that also has to include the issue of equal pension rights for those in same-sex marriages and civil partnerships. I am saddened that we have not made more progress on that here today, but I hope very much that it will be taken forward in the other place, as I hope will righting some of the injustices that still remain for the trans community.

But today on Third Reading is a time for celebration. For many hundreds of constituents from Brighton, Pavilion who have written to me in support of same-sex marriage, this Bill is about their lives, their loves and their futures together. I have heard many stories about why this legislation is important, including from one constituent who simply said, “Everyone should have the right to marry the person they are in love with.” Another told me that she hopes Brighton and Hove will be the first city to perform a gay marriage. To her I say, “Watch this space.”

I also thank those people against changing the law who have lobbied me, all of whom have been respectful of my position and my right to support same-sex marriage. I know it is difficult for some to square the Bill with their understanding of marriage, but I maintain that it is wrong for gay couples to continue to pay the price for that by being denied equality. Equality and justice must underpin everything else—a principle and a priority, not just something tacked on to existing pledges to try to attract more votes. The majority view in the House today has reflected that, and I hope that it will continue to do so as we vote on Third Reading.