Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill

Lord Lexden Excerpts

2nd reading (Hansard): House of Lords
Friday 18th January 2019 Lords Chamber

[Lord Lexden (Con)]

My Lords, this is undoubtedly an important piece of legislation, and we are indebted to my noble friend Lady Hodgson of Abinger for explaining its various aims and purposes to us with her customary clarity. A tribute has rightly been paid to the Bill’s progenitor, Mr Loughton, who so skilfully secured its passage through the Commons, showing tenacity and resolve during the considerable period in which it was under discussion.

I must thank the noble Baroness, Lady Barker, for her trailer. We are, sadly, at odds over the main point that I will be addressing—the position of sibling couples—but we are not at odds over everything. I am at one with her and with the noble Lords, Lord Collins and Lord Cashman, and my noble friend Lord Hayward about the extension of same-sex marriage to Northern Ireland. I have endorsed its extension on a number of occasions in this House over the last few years. As a unionist, I feel very strongly that a common core of human rights should be applicable in all parts of our country. Indeed, the noble Lord, Lord Cashman, and I were on the point of commissioning from a mutual friend of ours, a great expert at York University, a short Private Member’s Bill when Mr McGinn MP and my noble friend Lord Hayward came forward with their Bill, which I very much look forward to supporting at every conceivable opportunity.

As regards this Bill, I shall confine my remarks to Clause 2, which would permit opposite-sex couples to enter into civil partnerships instead of marriages, if that is their wish. A long campaign has been conducted to achieve this major change. All those who have participated in the campaign, and the many opposite-sex couples who look forward to entering into the kind of legal relationship that they want for themselves, will rejoice at the further progress that the Bill is making today. I look forward particularly to hearing the Government’s position.

A consultation exercise on the extension of civil partnerships is to be held this year, as my noble friend Lady Williams of Trafford confirmed in a Written Answer to me recently. No doubt she will give details of when the exercise will start and finish, and tell us what will happen after it has been concluded, when she comes to reply to this debate. We need to be clear too about whether the Government intend to keep to their original commitment to hold a full public consultation. That is what is needed so that all those who would like to become entitled to civil partnerships can make representations and have their claims assessed, but perhaps the Government have now backtracked and propose to confine the consultation to the legal technicalities of bringing opposite-sex couples within the scope of civil partnerships. I look forward to hearing the details.

I have a simple question to pose in this debate. Now that the extension of civil partnerships beyond same-sex couples has been accepted in principle, have all the appropriate additional criteria for eligibility been included in this important Bill before us today?

For my part, I have for years backed wholeheartedly the widespread view that, by one means or another, eligibility should be extended further so that sibling couples, committed to one another in secure, platonic, long-term cohabiting partnerships, symbolised by the home they have created together, can come within its scope. It is a view that first found strong backing in this House in 2004, when an amendment to include cohabiting family members in what became the Civil Partnership Act was passed, but the Labour majority in the Commons declined to accept it. A clear majority of Conservatives were in favour—something that should be remembered today.

Since 2004, support for the legal recognition of sibling couples has always been present in both Houses. It was expressed most conspicuously on 20 July last year, when my Civil Partnership Act 2004 (Amendment) (Sibling Couples) Bill was given an unopposed Second Reading in this House. The detailed arguments in favour of it were powerfully reinforced by speeches from the Cross Benches, as well as from elsewhere.

A very important point was made from the Cross Benches in that debate by the noble Baroness, Lady Deech, who has been tireless over the years in seeking to extend the rights provided by civil partnerships to cohabiting family members. Referring to the Supreme Court ruling which gave this Bill added urgency, she said:

“If civil partnerships are to be extended to heterosexual couples by virtue of … Article 14”,


of the European Convention on Human Rights,

“the same must be true of sibling couples”.—[Official Report, 20/7/18; col. 1404.]

Two of the House’s leading lawyers, the noble and learned Lord, Lord Mackay of Clashfern, and the noble Lord, Lord Pannick, who could not be present for the debate in July, made clear their full support for the Bill. My Bill would authorise civil partnerships between siblings over 30 years of age who have cohabited in shared property for at least 12 years. It awaits a Committee stage, which it deserves but will not get because the Government will not provide time for it.

The Bill before us today highlights once again the injustice suffered for so long by sibling couples who have decided to make their lives together in homes that are their proud, shared possessions, filled with the memories of two platonically entwined lives. That is the inevitable consequence of extending legal rights to some couples in the form that they want them, while ignoring the just claims of other couples who are so badly in need of them, and in exactly the same form, to protect their common interests.

A crucial point arises here. Civil partnerships were introduced for the express purpose of conferring legal rights on couples who were ineligible to marry. Now the plan is to extend them to all those who possess the right to marry while denying them only to couples who cannot marry. It does not make sense. No one even attempts to argue that denying all legal rights to cohabiting siblings is defensible; yet whenever the issue comes up, government Ministers and other short-sighted politicians everywhere say that this is not the time, the place or the right piece of legislation to address it. This must stop. It is hard to think of anything better suited to dealing with this issue than a Bill to change the nature and purpose of civil partnerships by extending them beyond those for whom they were originally intended.

Let us not mince words about a supposedly overwhelming obstacle to using civil partnerships to bring justice to sibling couples. Delicately and coyly, we are told that civil partnerships are for only those in intimate relationships. Others, like sibling couples, who are living chaste lives together, cannot have a civil partnership. There must be sex. This is a complete canard. There is nothing in the 2004 Act which makes sex a prerequisite. Church of England clergy are allowed to form civil partnerships on the understanding that the couple will go separately to bed.

It is difficult to forgive the indifference shown by a Conservative Government to sibling couples. Their values are Tory values, and the Government should not be perpetuating discrimination against them. They should be celebrating and applauding the contribution made by devoted cohabiting partners to the well-being of society. Cohabiting partners save the state the cost of social care: they release housing by setting up home together and often look after elderly relatives and children.

Undertaking such responsibilities and providing unbroken mutual support entitles them to the legal rights of civil partners, particularly joint tax allowances, joint pension rights and the deferral of inheritance tax. Many sibling couples have been in touch with me. All are worried, many in despair, about the probable loss of a joint home when the first sibling dies, because of the real risk that the survivor will have to sell up to raise the means to meet an inheritance tax bill—and at a time of deep personal distress. I referred earlier to the constant support given by the noble Baroness, Lady Deech, to the claims of sibling couples. On several occasions, she has been told that deferral of inheritance tax until after the second death must be for only those who have made a legal, binding commitment to each other in the form of a marriage or a civil partnership.

Sibling couples are shut out from civil partnerships because of official insistence that there must be an intimate couple relationship—in other words, sex—for which there is no legal requirement at all. Has discrimination ever been more blatant? The former Attorney-General, Dominic Grieve, whose words I have quoted before, has expressed perfectly the reasons why change must be made:

“The basis for creating civil partnerships is the recognition by government of the value of close, mutually supportive relationships outside traditional marriage. As such the exclusion of cohabiting blood relations from the right to form one is discriminatory and a serious mistake that needs to be corrected”.


I come back to the question of whether this Bill does all that is needed to extend eligibility for civil partnerships. It does not remove the discrimination suffered by sibling couples. The law on civil partnerships will not be in a truly satisfactory state until sibling couples are brought within it.

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[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I start by thanking my noble friend Lady Hodgson for bringing her first Private Member’s Bill forward so eloquently. It includes many important issues that the Government fully support.

Clause 1 seeks to bring forward changes to the way marriages are registered in the future. Under present legislation, the marriage register entry provides space for the name of the father of each person in the couple to be recorded, but of course not that of the mother and this, unbelievably, has been the case since 1837. As my noble friend said, this topic was the subject of a debate in this House last year—I was the Minister who responded to it—when the right reverend Prelate the Bishop of St Albans brought forward a Bill containing identical marriage provisions. I would also like to acknowledge the long-standing work of my right honourable friend Dame Caroline Spelman, who has been tireless in her efforts to address this anomaly and introduced identical private provisions on more than one occasion in another place to ensure that the marriage certificate reflects the important role of both parents.

Moving to a schedule system is the most efficient and economical way to introduce these changes and bring forward the biggest reform of how marriages are registered since 1837, moving away from the outdated legislation currently in place. It would remove the requirement for paper registers, currently held in over 30,000 register offices and religious buildings, to registration in an electronic register. The noble Baroness, Lady Scott of Needham Market, asked about the savings that would be incurred. I suspect there would be an initial cost, but ultimately, the digitised system would probably bring savings. The basis of a schedule system is that the couple and their witnesses sign a marriage schedule instead of signing the marriage register book. It is worth mentioning here that couples will still be able to have that all-important traditional photo, but instead of signing the marriage register book, they will sign the marriage schedule with their witnesses. My noble friend Lady Anelay rightly asked me to confirm the ministerial commitment to the “Mother/Father/Parent” intention, and I can confirm that when the content is prescribed by the Registrar-General in secondary legislation, it will allow for the different family circumstances in society today. I think noble Lords would agree that this future-proofs any other changes that might occur as society changes.

The noble Lord, Lord Cashman, asked about lessons from New Zealand on the GRA, acknowledging that the GRA is not a subject for discussion here. We have been looking at Google to see exactly what the situation in New Zealand is like, compared to what it might look like here. I will take that away; his advice is always so welcome. I slightly hang my head in shame to think that it was two and a half years ago that we worked on the other Bill together and some of the changes to it that we both so much want to see have not been made. I want to place that on the record.

A number of noble Lords, including the noble Lord, Lord Collins, and the noble Baroness, Lady Thornton, talked about humanist marriages. Of course, Clause 1 affects only how marriages are registered; it does not enable wider changes to who can marry or where marriages can take place. The Marriage Act 1949 provides for a premises-based marriage system, as noble Lords will know. The Government consider that legislating in this way would create an anomaly for most couples, who cannot marry outdoors and are restricted to marrying in a register office, or approved premises such as hotels. That is all I will say about humanist marriages for the moment. I know the noble Baroness, Lady Thornton, made the point that Private Members’ Bills can be amended, but I think the less a Bill is amended, the more likely it is to secure a passage. I think all noble Lords would agree that all the provisions of the Bill should be taken forward.

Turning to Clause 2, the House will be aware that the introduction of same-sex marriage in 2013 resulted in a situation by which same-sex couples could choose between a marriage or a civil partnership, but opposite-sex couples had only the option of marriage to formalise their relationships. Since then, the Government have carefully considered how to ensure equality of access to civil partnerships for same-sex and opposite-sex couples, and on 2 October, the Prime Minister announced that the Government would extend civil partnerships to opposite-sex couples. I am pleased to say that this firmly remains the intention of the Government, and we look forward to opposite-sex couples being able to form civil partnerships as soon as possible.

As my noble friend stated, while we highly value marriage, we know that for many reasons this is not an arrangement which suits everyone. Many opposite-sex couples have told us that they feel very strongly that marriage is not for them, but they would very much like a civil partnership to formalise their relationship. There are around 3.3 million cohabiting couples in the UK, almost half of them with children and all without the protections and security that a formalised relationship can bring. Extending civil partnerships will ensure that opposite-sex couples will be able to benefit from the protections and security that a civil partnership provides. The Bill gives us the opportunity to carry forward this objective of the delivery of a comprehensive and effective opposite-sex civil partnerships regime at the earliest possible opportunity. I am very optimistic that the Bill may provide scope as a vehicle for extending civil partnerships to opposite-sex couples.

Following its amendment at Third Reading in the other place, Clause 2 now seeks to create a power intended to enable the Government to legislate to equalise access to civil partnership between same-sex couples and other couples in their future ability, or otherwise, to form a civil partnership. The clause also contains a duty on the Government to make the necessary regulations within six months of the Bill reaching Royal Assent, and attempts to define what is meant by “other couples”.

As highlighted by the Minister of State for Immigration at Third Reading, the Government have doubts about the clause’s ability in its current form to deliver an effective and comprehensive opposite-sex civil partnership regime in the time it provides for. In particular, we have some concerns about the lack of detail in the regulation-making power as drafted. We are pleased to be working closely with my noble friend and the Bill’s sponsor in the other place, Tim Loughton, to draft a new amendment to the Bill, which we hope to lay before the House in Committee. This will hopefully address the concerns about the current shape of the clause and ensure that the Bill can deliver a comprehensive and robust opposite-sex civil partnership regime as soon as possible.

The noble Lords, Lord Collins and Lord Cashman, my noble friends Lord Hayward and Lord Lexden, and the noble Baroness, Lady Brinton, all talked about same-sex marriage in Northern Ireland. We all support the aim that it should happen, but it is a devolved issue. I am sure noble Lords will feel like groaning at that comment, but it would be for a democratically elected Assembly to decide whether to introduce same-sex marriage. I note very much my noble friend Lord Hayward’s comments about the DUP’s position on this, but it is why restoring the Northern Ireland Executive remains a top priority. Northern Ireland needs its elected representatives back in government to take these important decisions on the issues that matter most to the people of Northern Ireland.

The noble Lord, Lord Collins, talked about blessings in, for example, the Church of England, which was also mentioned by the noble Baroness, Lady Thornton. We quickly referred to the right reverend Prelate the Bishop of St Albans to provide expert advice on this. It would be a matter for a minister in the individual church. As a divorced Catholic, I was not able to get remarried in a Catholic Church, but my local priest absolutely understood my desire to have a blessing in my local church and absolutely beautifully obliged in that instance.

On sibling civil partnerships, we do not have any plans to extend civil partnerships to siblings—to brothers and sisters. We will ensure that the extension is restricted to opposite-sex couples in intimate relationships. The noble Baroness, Lady Barker, talked about the fiscal consideration that a lot of the lobbying has come from. We have had previous debates on it. We do not intend to move from this position at the moment.

[Lord Lexden]

Could my noble friend give an indication of the scope of the consultation that the Government have announced, which she confirmed in a Written Answer to me and I raised in the course of my remarks?

[Baroness Williams of Trafford]

My Lords, I was just coming to that. At this point, officials are working through all the policy issues before the content of any consultation is determined. Therefore, I have to tell my noble friend that I cannot say any more at this stage.

Turning to Clause 3, the Government are committed to ensuring that the NHS provides the safest and highest-quality care possible. This is particularly true for pregnant women. It can be achieved by instilling in the NHS a culture of patient safety, but also by making sure that, when things go so sadly and tragically wrong, we can provide empathetic care and support to bereaved parents and their families to cope with the tragedy of pregnancy loss. I was totally moved by the stories of the noble Baronesses, Lady Brinton and Lady Benjamin. No parent ever wants to go through what they had to go through.

Registration and certification can be an important part of acknowledging a pregnancy loss for some bereaved parents. The noble Baroness, Lady Brinton, talked particularly about a twin who survives. That can be the only acknowledgement that their bereaved twin ever existed. I thought that was so pertinent. We fully support Clause 3, which provides for a report on whether the law should be changed to require or permit the registration of pre-24-week pregnancy losses. This clause requires the Secretary of State to publish the report.

The Government have already begun work to produce a report on this issue. The pregnancy loss review, commissioned by the Department of Health and Social Care, has engaged with many key stakeholders, including parents with lived experience of pregnancy loss, health practitioners, registrars, charities and academic experts with knowledge and experience of pre-24-week pregnancy loss. It is vital that the Government look into this sensitive and timely issue. I encourage Members across the House to support this important clause.

On Clause 4, under the Coroners and Justice Act 2009, coroners currently do not have jurisdiction to investigate when a baby has not shown signs of life independently of its mother. Coroners can investigate if there is doubt as to whether a baby was stillborn but must stop if inquiries reveal that the baby was in fact stillborn. There have been calls for coroners to do more than this and to be able to investigate stillbirths, providing a transparent and independent assessment that will contribute to learning and improvements in maternity care. Clause 4 places a duty on the Secretary of State to prepare and publish a report on whether and, if so, how the law ought to be changed to enable or require coroners to investigate stillbirths.

The Government support the clause. We have already committed to look into extending coronial jurisdiction to stillbirths and to see whether there is a role for coroners that could support what is already happening in the NHS. Much work has been done to improve the ways that stillbirths are independently investigated, with learning fed back into practice. Recently, for example, the remit of the Healthcare Safety Investigation Branch has been extended to enable investigations of some stillbirths, neonatal and maternal deaths and birth-related brain injuries. But the Government agree that we should look at what coroners can add and produce a report on whether and how they should be involved in investigations.

To that end, officials in the Ministry of Justice and the Department of Health and Social Care have been exploring the issues and engaging with stakeholders. These include coroners and the Chief Coroner, medical professionals and academic experts, as well as bereaved parents and representatives from third sector and voluntary sector organisations. It has been invaluable and I add my thanks to those who have contributed. We are making good progress in developing our proposals and we will publish them soon. The sensitive issues and range of views means it is important that we fully consider everything that people have told us. It is also clear that we need to engage with the wider public to hear their views to make sure that any actions we take are the right ones. This clause is a very important step towards that.

This has been an excellent debate and I know that noble Lords recognise the importance of taking forward these changes in some very key and sensitive areas. The Bill will modernise how marriages are registered, introduce the provision for opposite-sex couples to enter into a civil partnership and provide for reports to be produced on whether there should be provision to register pregnancy losses and whether stillbirths should be referred to the coroner. These are key areas of people’s lives.

Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill

Lord Lexden Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 1st February 2019 Lords Chamber

[Lord Cashman (Lab)]

My Lords, I refer to my interests as recorded in the register. I too will speak to Amendment 1. I thank the noble Baroness, Lady Hodgson, for introducing her amendments. I am particularly concerned by the Delegated Powers and Regulatory Reform Committee’s report, and its reference to the Bill conferring,

“no fewer than four Henry VIII powers”.

It also refers to the contribution made by the Minister in our previous debate.

Like the noble Baroness, Lady Barker, I fully welcome the extension of civil partnerships and will do all I can to bring that about, but I am worried. The regulations have the power to do good, but also to undo the good that has been done. Proposed new subsections (1) and (2) are absolutely right because subsection (2) contains a sunset provision—a time limit on when the Secretary of State might lay regulations. However, I am concerned about proposed new subsection (3), by which the Secretary of State may, by regulations,

“make any other provision that appears to the Secretary of State to be appropriate”.

That is far too widely drawn. If we are to go down that route, I would like a time limit on when they can be implemented. Similarly, proposed new subsection (6) says:

“Before making regulations under subsection (5), the Secretary of State must consult such persons as the Secretary of State considers appropriate”.


That seems wholly wrong. Instead of widening consultation it could limit it. Therefore, I have concerns about that.

I will not detain the Committee much further, but I must refer to proposed new subsection (7). On all of these I look forward to the Minister’s reassurances on the use of such regulations. Excuse me—the noble Baroness, Lady Hodgson, seems to have great powers of projection; her cold seems to be catching. However, he says, taking a very deep breath, the subsection says:

“The Secretary of State may, by regulations, make any provision that the Secretary of State considers appropriate in order to protect the ability to act in accordance with religious belief in relation to civil partnership”.


The making of “any provision” is far too wide. I would like to see that qualified. Perhaps the noble Baroness, Lady Hodgson, could indicate what actions would need to be taken to protect the ability to act in accordance with religious belief, since I remain to be convinced that such a subsection is necessary.

[Lord Lexden (Con)]

My Lords, I say to the noble Baroness, Lady Barker—my friend in many contexts, but not in that of sibling couples and civil partnerships—that I would be pleasantly astonished if my noble friend failed to give her the reassurances she sought. It is clear that the Government have no intention of extending civil partnerships in the way I would wish. I set out at length at Second Reading the unfairness and injustice sibling couples who are committed to each other in strong, stable and platonic associations have endured for far too long because they are denied civil partnerships. I will not repeat the points I made then. I should be very interested to hear what my noble friend has to say, but I do not expect the pleasant surprise I wish for.

I have not tabled amendments to this important Bill that would cause proceedings on it to be extended. I simply say this to the Government, assuming that I am right: committed, platonic sibling couples, some of whom have shared their lives for 50 years and more, look on with astonishment and anger as a political party that ought to value the family units they have created together does nothing to relieve them from the constant anxieties they endure in the absence of joint legal rights.

[Baroness D’Souza (CB)]

My Lords, may I ask a very naive question? I ask the Committee’s forgiveness if this has already been answered. What happens if there were to be a civil partnership between a brother and sister—let us say the brother and sister are Jill and John—and then Jill meets Jack and decides that she wants to marry him? Can she marry Jack and thereby have a marriage and a civil partnership?

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[Baroness Williams of Trafford]

Yes.

[Lord Lexden]

Is my noble friend yet in position to give any details about the consultation exercise announced in October? She will remember that I raised this at Second Reading. Have there been any developments since then?

[Baroness Williams of Trafford]

I will keep noble Lords apprised of the exact consultation process and the timings thereof in due course. I fully support the amendments.

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[Baroness Thornton (Lab)]

I would like very briefly to say how much I support the amendment in the names of the noble Lord, Lord Hayward, and my two noble friends. I led from the Labour Front Benches on the equal marriage Bill, and one of the proudest legislative moments of my life was when we put it on the statute book. It is not often that we legislate to create happiness but that is definitely what we did on those days five years ago. It is grieving that my relatives in Ireland and Northern Ireland do not have the same access and right to marry that we have here in England. This is a human rights issue. I absolutely recognise the frustration that the noble Lord, Lord Hayward, expresses about getting this through. The Government know that political will can be brought to bear on many issues: with political will and the support of the different parties we can do pretty much what we desire to do. This is one of those issues where we need to make progress.

[Lord Lexden]

My Lords, I shall be very brief. The case for change has been powerfully outlined by my noble friend Lord Hayward, and endorsed by my very great friend on this issue, the noble Lord, Lord Hayward. This is a day of muddle and confusion. I mean the noble Lord, Lord Cashman. How could I make such a fundamental mistake? I align myself with their comments and repeat what has been a theme of so many comments: this could be the moment when the Government associate themselves firmly with the proposition, which many have been waiting a long time to see adopted, that human rights must extend fully and consistently throughout the length and breadth of our land. Was that not the noble aim of the Human Rights Act 1998?

[Lord Cashman]

My Lords, if noble Lords will allow me, there is a wonderful song, which I think is from “Cabaret”, called “Mr Cellophane”. I feel like the noble Lord, Lord Cellophane—“they look right through you”. It was remiss of me in my contribution not to specifically mention the professor the noble Lord, Lord Lexden, and I worked with on trying to bring forward a Bill on this very subject. It was of course Professor Paul Johnson of the University of York.