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Mr. Carmichael : Surely the difference is that an unmarried heterosexual couple have the opportunity to rectify that problem by entering into a secular or civil marriage. That course of action is not available to same-sex couples.
Mr. Chope: I am glad that the hon. Gentleman made that intervention, because it brings me to my next point. The argument he makes has been echoed by Lord Lester and Ministers, but it is not justified, as paragraph 24 of the Joint Committee's report points out:
"The Government's argument is that there is an objective justification for any difference of treatment, because unmarried heterosexual couples may be free to marry. But a decision of the Supreme Court of Canada in a case called Miron v Trudel illustrates that the courts may not accept this line of argument. The Canadian court recognised that heterosexual couples who choose not to marry may do so for very personal reasons of conscience and belief, for example because of the historical implications of the word 'marriage' and the historical nature of the institution in which the woman was treated as property. Second, the court noted that being unmarried may not always be a choice made by both partners in an unmarried relationship. Both of these considerations would call in to question the Government's reliance on 'choice' as the justification for not extending the scope of the Bill to opposite-sex unmarried couples."
I am sure that you, Madam Deputy Speaker, know people who have been widowed and who do not wish to enter into a new marriage because they feel that they have had their one and only marriage, but that does not stop them entering a long-term relationship. At present, such people are discriminated against by the legislation. So, too, are the many people whose marriage has collapsed but who, because one party to the marriage objects, have to serve out their five years of separation before they can get a divorce. There are many examples of people who live together but who do not effectively have the choice to get married. That is where I disagree with some of the observations that have been made by those who seek to justify the distinction that is being drawn.
Mr. Borrow: I have listened to the hon. Gentleman's arguments with great interest. Will he explain whether he wants to encourage more people to get married or whether he wants to encourage people to have the benefits of marriage without getting married? Does he feel that that would be entirely within traditional Conservative family philosophy?
I believe that people should be free to choose whether they want to get married or to enter into any other sort of relationship. I am not in the business
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of encouraging people to do this or that. If I were to encourage people to take a particular direction, that would probably be counter-productive.
Why are the Government putting one particular type of relationship outside marriage on a pedestal, in preference to all others? The unavoidable conclusion that I have reached is that the Bill is a homosexual marriage Bill in all but name. As a result, it will be a double whammy. It will further undermine the institution of marriagethe holiest state of matrimony. At the same time, it will be an affront to Christians and other faith communities. It will also be an insult to all those who happily share their lives with relatives or friends outside marriage, because their relationships will be given institutional inferiority to homosexual ones.
Mr. Carmichael: I ask the hon. Gentleman, as a Christian myself, to draw the distinction between marriageas I see it and as I have benefited from an institution being solemnised in a churchand civil marriage, which is a highly secular and different institution.
Mr. Chope: I am happy to draw that distinction. I was lucky enough to be married in Wimborne Minster. I have not been married for as long as my hon. Friend the Member for Salisbury (Mr. Key), but I hope that I shall be able to be married for as long as him before my time is up. I recognise the distinction. I am concerned about the way in which the Bill does all but equate the terms of marriage breakdown with civil partnership breakdown.
For example, why is it necessary for a party to a civil partnership to have to wait for a year before they can start divorce proceedings? Why is it necessary in a civil partnership to have to prove irretrievable breakdown of the relationship before that relationship can be severed in law? Why is it that we are adopting, in the language of the Bill, exactly the same provisions as those that are contained in the laws relating to the breakdown of marriage? It seems that that is being done because the Government's mindset is that the Bill is about homosexual marriage.
The only difference is that one of the grounds for breakdown leading to divorce in a proper marriage is sexual infidelity on the part of the other partner to the marriage. I have not seen any provision in the Bill that refers to sexual infidelity on the part of the other partner to a civil partnership as being a ground for "divorce".
I regret that I find this to be an extremely muddled Bill. That brings me to a brief and succinct conclusion. If one is minded to use contemporary slang, the most appropriate expression to sum up the Bill is that it is a buggers' muddle. When we turn to the dictionary of slang, we find that that means that it is an absolute mess.
Ann McKechin (Glasgow, Maryhill) (Lab):
It is a pleasure to follow many Members who have spoken this afternoon, with the possible exception of the hon. Member for Christchurch (Mr. Chope), who seems to have a muddled view of the legal definition of adultery, which does not apply to relationships between same-sex partners.
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I support the Government's proposals and welcome this progressive and timely reform. I very much hope that co-operation will be achieved in both Chambers to allow the measure to complete its passage before this Session ends. My hon. Friend the Member for South Ribble (Mr. Borrow) gave a compassionate explanation of the dilemmas facing same-sex couples in permanent long-term relationships and there is an increasing sense of injustice at their treatment under the law. I welcome cross-party support for the Bill from Front-Bench spokesmen and I appreciate the considered speeches made by the hon. Members for Rutland and Melton (Mr. Duncan) and for Salisbury (Mr. Key). I hope that other Conservative Members will accept without qualification that the amendments made in the Lords make nonsense of the Bill and should be deleted. In the Scottish context, it is heartening to note the approval of the overwhelming majority of respondents to the Scottish Executive's consultation on the proposals.
Nowadays, it seems extraordinary that homosexual acts in Scotland were illegal as late as 1980. At that time, the comments of the right hon. Member for Maidstone and The Weald (Miss Widdecombe) would probably have been considered very liberal. However, there was a sea change in attitudes in Scotland to homosexuality in the years after the unfortunate debacle when the Scottish Parliament legislated to remove the utterly iniquitous section 28 or, as it was known in Scotland, section 2A. Most Scots were deeply embarrassed about the hostile, macho, aggressive and narrow-minded manner in which that debate was conducted by a small minority of people in our community and the way in which Scotland was projected to the world as a result. It is an experience that the vast majority of Scots do not wish to repeat. Most of our constituents recognise that the Bill tackles the need to provide formal recognition for same-sex couples and to address the disadvantages that they face under our civil law.
I do not accept the argument perpetuated by some commentators, including the hon. Member for North Tayside (Pete Wishart), that the Scottish Parliament is too scared or feart to seek to legislate on so-called controversial issues. The fact that it had the courage to face down such a personalised and bigoted attack is often forgotten, and it deserves our congratulations. I am confident that any legislation on this subject would pass through the Scottish Parliament with very little controversy, but there are good reasons, not least the fact that changes to the taxation system remain reserved to the UK Parliament, to cover the whole United Kingdom with one piece of legislation and to implement it throughout the country at the same time. In a survey conducted by the Scottish Executive, 82 per cent. of respondents wanted a comprehensive package of rights and responsibilities in devolved areas that largely mirrored those in other parts of the UK, subject to the reforms being firmly based on Scots law. By and large, the proposals in the Bill reflect those sentiments. In fact, the Law Society of ScotlandI declare an interest as a member of that bodyin its response to the consultation conducted by the Scottish Executive stated that one single Act covering the whole United Kingdom
"would have the advantages of avoiding inconsistencies between the jurisdictions, smoothing cross-border issues and ensuring a comprehensive location for the law on this issue."
Hon. Members have commented on the Bill's pension provisions and I am encouraged by the Minister's assurance this afternoon that she will look at the matter again. On 25 May in the other place, Baroness Hollis, at column 506 of Hansard, referred to the pension provision for widowers that was altered in 1988 to provide survivor pensions. It was not a retrospective measure and she tried to use that as justification for not providing retrospective provisions for same-sex couples. However, she missed the point that the Bill seeks to create a fundamentally new status for a group of people within our society. The widowers in her example received a right additional to those to which they already were entitled by virtue of their married status. Accordingly, I suggest that the parallel that she attempted to draw is incorrect.
A better analogy is the legal change in the civic status of children born out of marriage and the reforms to provide them eventually with the same rights as legitimate children. In Scotland, that is now set out in the Law Reform (Parent and Child) (Scotland) Act 1986. Those rights started immediately on commencement of the legislation and were not restricted to a certain period. The legislation before us seeks to remedy an injustice, rather than simply give additional rights. It recognises that our society, on the whole, now views same-sex relationships as having validity in our communities, just as we recognised 30 years ago that questions of legitimacy should not affect a child's rights or status in our society. The Bill should be viewed on the basis of principle rather than mere fiscal advantage.
In evidence to the report issued on 1 June by the Justice Committee of the Scottish Parliamentas the hon. Member for Orkney and Shetland (Mr. Carmichael) correctly stated, the Scottish Parliament has considered the provisions in a great deal of detailthe Law Society of Scotland expressed concerns about how to establish a partnership retrospectively for the purposes of pension provision. That is a valid point, but I think that the Law Society forgot that, in Scotland, we establish marriage not only by civil registration or religious ceremony, but by habit and repute. Given the experience of other European nations that already have similar legislation, we are not likely to see great numbers taking up such agreements and I believe that the anticipated cost to both state and private pension funds is minimal.
The matter should also be set against a context of a society in which increasing numbers of adults, such as me, are not married or in permanent relationships, which offsets any increase in fund claims. I do not think that it would be too difficult to set up some form of interim arrangements, perhaps based on proof of years spent residing at the same address, to allow these important pension rights to be backdated. I urge the Government to think again about those points, and to propose new amendments to the Bill.
On a similar point regarding equity, I also wish to raise with the Minister the issue of succession rights, especially as they apply in Scotland. As she will be aware, the Bill will amend the Succession (Scotland) Act 1964 to provide surviving same-sex partners with prior rights to their partner's intestate estate. However, the Bill does not provide that same-sex partners will have legal rights to an estate where their partner dies with a will or where the estate exceeds the level of prior rights.
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I should explain that prior rights are given for separate categories of estate in Scotland, based on values of heritage, furnishings and movable estate. As the common law currently applies in Scotland, we have always held to the notion that it is not possible to disinherit one's spouse or children. Given that legal rights can amount to either a third of the deceased's movable estate if there are surviving issue or one half if there are no surviving issue, that can be an important entitlement.
I note from the Justice Committee's report of 1 June that the Scottish Executive Minister for Justice identified that issue. I would be grateful if the Minister now present will confirm that the Government will seek to amend the legislation in Committee to provide full parity, as in the rules that apply in succession for married couples. Given the complexity of the law of succession in Scotland, of which many people are ignorant, the Minister will concur that it is important to make it clear to same-sex couples that simply entering into a civil partnership in Scotland does not necessarily mean that the survivor will automatically inherit an estate should their partner die intestate. Prior rights are, by definition, a very arbitrary form of determining rights. Given the rise in property values, they frequently fail to cover a significant number of estates each year.
I understand that the Scottish Executive intend to conduct a review of the law of succession. Given that it is 40 years since the previous major measure, that is probably well due, but I hope that any briefings or advice notes on civil partnerships will strongly recommend that parties consider making their own wills.
I agree with those hon. Members who have expressed concern about the lack of verbal affirmation to the registration process. Given that in a significant number of cases such partnerships will have repercussions for not only couples, but their children, it is preferable to include a measure that positively indicates consent rather than its simply being inferred. Same-sex couples who express consent want to do so explicitly, particularly because it is likely that friends and family will accompany them through the registration process. It is not too much to insist that they be allowed explicitly to give their consent at such services.
Finally, I reiterate my support for the Bill. I hope that it will pass through Parliament in this Session, because many same-sex partnerships face hardship and discrimination and they will benefit from the measure.
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