Cohabitation Rights Bill [HL]

Lord Lester of Herne Hill Excerpts

Friday 12th December 2014 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, it is an enormous pleasure to follow the noble and learned Baroness, Lady Butler-Sloss, who knows far more about this subject than I could hope to learn and speaks with great authority as, among other things, a former senior family judge. Like her, I should say straightaway that I am married. I have been married for 42 years and my wife has put up with me throughout that time. I am a very strong supporter of marriage. If I thought that this Bill would deter people from marrying, I would oppose it, and if I thought that it would coerce people into cohabiting relationships, I would find that inappropriate for the state. It does no such thing.

I should begin by expressing my gratitude to my noble friend Lord Marks of Henley-on-Thames for introducing a Bill that is more modest than mine, except in relation to a two-year rather than a five-year period. As I say, in other respects it is more modest and probably more realistic and in accordance with what the Law Commission has recommended. We have to live a very long time and we have to be very patient to achieve social reform in this country. Governments lack the imagination and energy to do it themselves, so we have to stimulate them, unfortunately, with Private Members’ Bills—or perhaps fortunately, since otherwise nothing would happen.

My noble friend Lord Marks got history slightly wrong. The first time I engaged with this was in 2002 at Second Reading of my Civil Partnerships Bill. In that Bill, I provided for opposite-sex couples as well as same-sex couples to be able to enter into civil partnerships. I did that because I was advised to do so by Stonewall, which thought that it might make the Bill more acceptable. Curiously, there was complete agreement about the need for gay and lesbian couples to be civil partners, but some of the more conservative and orthodox Bishops opposed the stuff about opposite-sex couples because they thought that it would threaten marriage. It does seem to worry people but there is no evidence from any country, including this country, that the existence of civil partnership schemes, as in Ireland or something more modest such as my noble friend’s Bill, in any way discourages marriage.

On the contrary, as Resolution has pointed out in its submissions and as the Royal Commission has observed, the evidence is that it does not in any way discourage marriage. It provides a safety net in order that, instead of the state having to bail out through public finance the consequences of irresponsible men abandoning the women and children they have been involved with and putting the women—the mother—on social security, it makes the bad men pay instead of us as taxpayers, which I hope that the noble Lord, Lord Farmer, understands. If one looks at this Bill through the eyes of an economist or someone concerned with money, the effect is to transfer some of the burden away from the state on to irresponsible common-law husbands and fathers.

The noble Baroness, Lady Deech, is the most doughty, indefatigable campaigner against everything that I have just said. I hope she will not mind my saying that, if I put in the scales her views and the views of the Law Commission, the noble and learned Baroness, Lady Butler-Sloss, the Supreme Court of the United Kingdom and Resolution, they and their evidence seem to me to be more persuasive.

[Baroness Deech]

Perhaps the noble Lord will allow me an intervention. On one side of the scales we have lawyers, not the public. The consultees who responded to the Law Commission who were members of the public were largely against this. Even the Supreme Court has a variety of views. On my side of the scales, I offer the public.

[Lord Lester of Herne Hill]

I am grateful for the intervention, but it does not match the facts. Resolution, for example, indicated what it called,

“strong public support for change: almost 90% think that a cohabiting partner should have a right to financial provision on separation if the relationship has been either long-term, involved children, or has involved prioritising one partner’s career over the other’s”.

It gives other evidence as well, in which I am sure the noble Baroness would be interested.

Going back to the judiciary and the Supreme Court, my noble friend Lord Marks referred to the noble and learned Baroness, Lady Hale. Although she is outstanding in all respects, what was impressive about the Gow case was that the three English members of the Supreme Court—Lord Carnwath, Lord Wilson and the noble and learned Baroness, Lady Hale—all said the same thing. They all referred to Professor Elizabeth Cooke, the Law Commissioner who leads the commission’s work on this. They quoted her as saying:

“‘We hope that implementation will not be delayed beyond the early days of the next Parliament, in view of the hardship and injustice caused by the current law. The prevalence of cohabitation, and of the birth of children to couples who live together, means that the need for reform of the law can only become more pressing over time’”.

The other two members of the Supreme Court were Scots. Since it was a Scottish case, they dealt with the Scottish issues. However, these were the three English Supreme Court judges speaking as one. They said:

“As Prof Cooke also pointed out, the ‘existing law is uncertain and expensive to apply and … often gives rise to results that are unjust’ ... There was no need to wait for experience north of the border to make the case for reform”.

I know perfectly well, because the coalition Government have said so, that they have no intention of doing anything about this during the lifetime of this Government. I also know perfectly well that the Conservative part of the coalition is deeply opposed to such a measure because it is considered to undermine marriage in exactly the way that the right reverend Prelate was worrying about. I repeat that there is no evidence whatever for that. I think that having a modest safety net, which is all that this Bill is, is better than saying to couples who do not understand the law or understand the limits of being in a so-called common law marriage, “It is better to marry than to burn”. That was said by St Paul, but I do not regard it as a guiding principle for legislation.

This being Liberal Democrat core policy, I can only say that I am delighted to await the views of the Official Opposition on this, as the only hope that I can see for such a measure being adopted is a change of government. It will not happen under a Conservative Government and it probably will not happen under a Conservative coalition Government; it can happen only if there is a Labour Government or a Labour coalition Government. I am sorry that that is the position because I would have hoped that the issue could transcend party politics. I am sure that there must be some within the Conservative Party who understand that this is a conservative measure doing limited justice to a very vulnerable group.

[Baroness Wilcox (Con)]

My Lords, I am only intervening here to make sure that I understand what is going on, having heard the noble Lord’s expectation that the Labour Party is likely to take this through. If I remember correctly, when I was on the opposition Benches speaking for my side on the Civil Partnership Bill and we discussed this matter, the Labour Party, which was putting the Civil Partnership Bill through, did not agree with this.

[Lord Lester of Herne Hill]

That is absolutely right, but it was not this measure; it was civil partnership applying to both kinds of couples. The Government did not agree with that. I tried to press them and I failed. These provisions—

[Baroness Wilcox]

My Lords—

[Lord Lester of Herne Hill]

Perhaps I may just finish. These provisions relate not to civil partnership but to limited cohabitation rights. During the lifetime of the Labour Government, we discussed my Bill and it was indicated to me by Labour that the Bill had come very late in the Session and was therefore unrealistic as a measure at that time.

[Baroness Wilcox]

I was not referring to the Bill that the noble Lord was trying to put through. I was referring to the Civil Partnership Bill, in which the cohabitation question had come up. At that time, the Labour Party had said no. It then said no to you when it said that there was only a small amount of time and it could not do it. But that is twice Labour has said no, so before the noble Lord tells the House that it would be only under a Labour Government that this would come through, I suggest that he votes for and returns to the side that he came from in the first place.

[Lord Lester of Herne Hill]

I am grateful for the advice about how I should vote. Since I will not have a vote, it does not make much difference.

I want to say something about British Muslims. It is a very important subject. There are 2.7 million British Muslims, I believe, in this country. There are 300,000 British Jews in this country. Because of the injustice of British Jewish orthodoxy about the so-called chained wives, I and others introduced a Private Member’s Bill, which was supported by the noble and learned Lord, Lord Mackay of Clashfern, to enable an injustice done to a very small number of orthodox Jewish women to be remedied. How did we—the noble and learned Lord, Lord Mackay, and the rest of us—do it? We did it by saying to orthodox Jewish men, “If you want to leave your wife for somebody else without getting a get”—a written consent—“you will not be able to get a civil divorce and you will therefore not be able to remarry”. We put that in a Bill because the Chief Rabbi and a small number of Jewish victims needed it.

I was then told that my Bill was discriminatory because we did not give the same benefit to Muslims, so we amended it to give the same benefit to Muslims if they asked for it to be applied to them. The male-dominated hierarchy of British Muslims did not do so and the position is exactly as the noble and learned Baroness, Lady Butler-Sloss, said: many Muslim women are now extremely vulnerable because they do not have registered civil marriages; instead, they have unsatisfactory arrangements that give them no protection if the men treat them very badly. I am not suggesting that the whole of this Bill is designed to deal with that—not at all—but I am suggesting that it is not something that we can ignore on the grounds that this is a small minority, if that is what the noble Baroness, Lady Deech, meant to say.

[Baroness Deech]

My Lords, I think that is a rather unfair comparison. Jewish marriages are carried out according to the law of this land. In fact, as far as I understand it, the Jewish orthodoxy insists that a couple get married according to the law of this land. I disapprove of the way men use get just as much as the noble Lord does. That provision was only to try to put pressure on the men to give a get, and it does not necessarily work. What we are talking about is people complying—at least, they ought to comply—with the law of this land. We ought to be encouraging, as a matter of integration and the rule of law, that Muslim marriages are carried out according to the law of this land. That is what Jewish marriages do. They are registered civilly, like any other—100% kosher. Muslim marriages should not be allowed to escape under the net. We must help people by insisting somehow that they get married properly.

[Lord Lester of Herne Hill]

I do not disagree with that as an aim, but I think I am more in favour of choice than the noble Baroness. The thing about the Bill—and about Jewish marriage law—is to encourage choice and protect vulnerable people. This does not force people into cohabitation. It does not force people into marriage. It does not force Muslims into having to register their marriages as civil marriages. It does not do any of those things—it simply provides a basic safety net, and that safety net should apply to everyone, including British Muslims. I am sure that is common ground.

--- Later in debate ---

[Lord Ashton of Hyde (Con)]

My Lords, I, too, thank my noble friend Lord Marks for bringing forward the Cohabitation Rights Bill and providing a further opportunity to debate this important subject. As a novice in these issues—and in marriage itself, with only 27 years under my belt, just over half the number of the noble and learned Baroness, Lady Butler-Sloss—I have learnt much listening to the contributions of noble Lords, many of whom have long experience of these matters and have been debating them in this House for many years. I pay tribute to my noble friend Lord Lester of Herne Hill, who introduced previous Bills on this subject.

The Bill addresses the issue of what rights individual cohabitants should have against each other. At present, when a couple break up, those rights are decided by applying a patchwork of legal rules that sometimes provide one cohabitant with an interest in the other’s property, and by the statutory intestacy and family provision rules when one of the couple dies without making a valid will.

The Bill would, in broad terms, implement recommendations in two Law Commission reports. The first is the report, Cohabitation: The Financial Consequences of Relationship Breakdown, published in July 2007. The Bill would implement most of the recommendations in that report. The second is the report, Intestacy and Family Provision Claims on Death, which was published in December 2011. The Bill would implement the recommendations in that report relating to cohabitants. The Government have already implemented the other recommendations in this report in the Inheritance and Trustees’ Powers Act 2014, which came into force on 1 October.

Here, I mention my noble friend Lord Lester’s comments about the way that Governments in general approach legal reform—in particular, Law Commission reforms. He will of course have realised that this Government are in fact implementing the Law Commission’s proposals under the insurance Act.

The overall effect of the Bill and the Law Commission’s recommendations in those two reports would be to create a scheme of legal rights and obligations for cohabiting couples. I should say at the outset that while the Government will not oppose the Motion to give the Bill a Second Reading, the Government have reservations about the Bill. It deals with serious personal and family issues on which very different views may be genuinely and firmly held—and, I may say, courteously debated. Today’s debate is testament to that fact, as were our previous debates on these matters. In our debate today, the numbers of speakers for and against—which is obviously not a scientific survey—were equally matched: or rather, virtually equally, given that there were seven speakers.

The Government have consistently taken the view that major changes relating to the rights of cohabitants must be fully considered. The speeches of the noble Baroness, Lady Deech, and the noble Lord, Lord Marks, alone would demonstrate the wisdom of proper consideration.

The process of consideration of the recommendations in the Law Commission’s 2007 report of course began under the previous Administration, as the noble Baroness, Lady Thornton, mentioned, but had not been concluded when this Government took office. This Government’s priority in family law matters has been to improve the family justice system. The detail of the work that has taken place to date is clearly set out in the Government’s report A Brighter Future for Family Justice: a round up of what’s happened since the Family Justice Review, published in August this year. Examples include: the introduction of the Single Family Court in April; a legal requirement for all separating couples to consider mediation before they can go to court over children and financial matters; and the introduction of a 26-week limit for care and supervision cases.

Our work to improve the family justice system continues, with current priorities including the implementation of measures to improve support for separating parents, taking forward the recent recommendations of the mediation task force and continuing to reduce the length of care cases, in line with the new statutory time limit of 26 weeks. Faced with this programme of work, we knew that we could not do justice with the resource available to the complex and far-reaching recommendations made for the reform of the law relating to cohabitants. We therefore announced in September 2011 that we would not take forward the recommendations set out in the 2007 report in this parliamentary term. We further announced in March last year that, due to the continuing priority of these family justice reforms, the recommendations contained within the 2011 report relating to inheritance rights for cohabitants would not be implemented during this Parliament.

This remains the coalition Government’s position and, as the noble Baroness, Lady Thornton, mentioned, that includes the Minister responsible for this area, my right honourable friend Simon Hughes. We do not consider that the matters raised by my noble friend’s Bill and by the Law Commission have yet been properly and fully considered to the extent that they ought to be. We therefore take the view that consideration of the question of rights for cohabitants is properly for the new Parliament. We do not think that taking forward this Bill now, in the limited time that we have in this Parliament, would be the correct approach.

Although we have not reformed the law relating to cohabitants, this does not mean that cohabitants are unable to protect their interests against the legal effect of the ending of their relationship. Cohabitants may, for example, choose the terms on which they jointly own property. This can then provide a basis for distribution on separation or death. Alternatively, cohabitants may create contracts or deeds of trust to make provision for each other. Importantly, cohabitants can also make wills, as my noble friend Lord Marks mentioned, to ensure that their property goes to the person they wish it to go to after their death. We are currently considering what steps we can take to raise awareness of the importance of making a will.

[Lord Lester of Herne Hill]

My noble friend the Minister said that at this stage, the Government think that further work needs to be done. What does he have in mind, given that the Law Commission has given two reports and that the matter was first raised, I think, 12 years ago? We have had all these experts giving their views, including Supreme Court judges. What further work is needed before the Government can reach a conclusion?

[Lord Ashton of Hyde]

We consider that the next Government, whoever they are, should undertake consultation and pre-legislative scrutiny to decide exactly where they want to go forward. We have not made any commitment on this matter. As far as the Bill is concerned, we do not consider that proper consideration has taken place.

It is for those reasons that, while the Government will not oppose the Motion to give the Bill a Second Reading, we have reservations about the changes to the law proposed in the Cohabitation Rights Bill. Accordingly we maintain our position, outlined in 2011 and 2013, not to support the reform of cohabitation law during this Parliament.