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Standing Committee A
Thursday 11 March 2004
(Morning)
[Mr. David Taylor in the Chair]
The Chairman: I remind hon. Members to turn off mobile phones and that the use of electronic equipment in the Committee is prohibited. I am happy for jackets to be removed. Clause 4
Successful applications
Amendment proposed [9 March]: No. 29, in
9.30 am
Question again proposed, That the amendment be made.
The Chairman: I remind the Committee that with this we are discussing the following:
Amendment No. 30, in
Amendment No. 32, in
clause 25, page 11, line 29, at end insert—
' ''live together as partners'' means—
(a) none of the provision of sections 1, 11 or 12(a) to 12(f) of the Matrimonial Causes Act 1973 apply;
(b) the couple live together;
(c) the couple retain their responsibilities in relation to any existing dependants; and
(d) the couple maintain existing financial support for one another.'.
Amendment No. 33, in
clause 25, page 11, line 29, at end insert—
'( ) Two people may live together as partners irrespective of whether—
(a) they have been or remain for the time being legally married, or
(b) either of them has been issued with an interim gender recognition certificate or a gender recognition certificate.'.
New clause 3—Retained pension rights—
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(a) an occupational pension scheme,
(b) a personal pension scheme, or
(c) a stakeholder pension scheme.'.
New schedule 1—Retained benefits following issue of interim gender recognition certificate: living together as partners—
1 A person who is—
(a) married, and
(b) a member of a private pension scheme, and
(c) has been issued with an interim gender recognition certificate,
may apply to the court to order that all rights and benefits of the pension scheme should continue to apply following the annulment or dissolution of marriage if the person can satisfy the court that both parties to the existing marriage intend to live together as partners.
2 A person who is married to a person who—
(a) is a member of a private pension scheme, and
(b) has been issued with an interim gender recognition certificate,
may apply to the court to order that all rights and benefits of the pension scheme should continue to apply following the annulment or dissolution of marriage if the person can satisfy the court that both parties to the existing marriage intend to live together as partners.
3 In this Schedule—
''private pension scheme'' has the same meaning as in section [Retained pension rights](2);
''court'' means the court bearing the petition for divorce.
4 In this Act a couple ''live together as partners'' if—
(a) none of the provisions of sections 1, 11 or 12(a) to 12(f) of the Matrimonial Causes Act 1973 apply;
(b) hey intend to live together; and
(c) hey intend to retain their responsibilities in relation to any existing dependants.
5 Any award made under paragraphs 1 or 2 of this schedule shall be void if the circumstances set out in paragraph 4 cease to apply.
6 An appeal against any award made under paragraphs 1 or 2 of this schedule shall be heard by the court.
7 An appeal under paragraph 6 must show that the circumstances set out in paragraph 4 cease to apply.
8 Any person may show cause why an award under this schedule should not be made by reason of material facts not having been brought before the court; and in such a case the court may—
(a) notwithstanding anything in paragraphs 5 or 6 above, make the award;
(b) rescind the award;
(c) require further inquiry; or
(d) otherwise deal with the case as it thinks fit.
9 An application for an award under this schedule may only be made—
(a) after the issue of an interim gender recognition certificate; and
(b) before the issue of a gender recognition certificate.'.
Mr. Tim Boswell (Daventry) (Con): I welcome you to the Chair, Mr. Taylor. I have not yet welcomed the Under-Secretary of State for Work and Pensions. We have had interesting dealings in the past on such comparatively straightforward matters as pension credit. I shall enjoy listening to what she has to say; she is always very reasonable in debate.
The hon. Member for City of York (Hugh Bayley) has performed a service to the Committee in raising these issues. Whatever view one may take about the
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sanctity, or unbreakablility, of the principle that marriage should be between a man and a woman—we discussed that earlier, and have now dispatched the issue—it is clear that there will be serious practical problems for any couple in the situation that we are discussing. It is also clear—I make no bones about this—that there are real emotional and moral dilemmas involved. The hon. Gentleman is entirely right to raise this matter for discussion.
The clause may raise some wider issues about the status and purpose of the interim certificate, which at the moment seems to function simply as a gateway to annulment and has no other purpose. However, perhaps we should return to those issues later and concentrate now on the substance of the amendments.
As I understand it—I have read the record of the hon. Gentleman's speech, albeit rather cursorily—he is at a different stage of the process to me in relation to amendments that I have tabled on schedule 5, which we will debate in their turn. Those provisions are about—within an envelope; a settled arrangement, as it were—how various pecuniary benefits should be split among the parties to a relationship. The area of congruence is the general context that people may feel that they are being forced to divorce. The concept of forced divorce, unlike forced marriage, with which, sadly, some of us are familiar, is perhaps new. A practical set of problems will arise, typically when someone is receiving pension benefits. The amendment relates to the run-up to that period, during which certain rights may or may not be available to a couple.
We need not debate this issue now, but there is a often a degree of asymmetry in pensions arrangements between the position of a single pensioner and that of a single pensioner with dependents—typically, but not exclusively, a spouse. The existence of pension trustees and good practice over the years have meant that family responsibilities—to use shorthand—are acknowledged by giving people additional benefits. We do not want to reopen the idea that everybody lives absolutely to themselves, and that treatment of everyone should be identical and on all fours, irrespective of the number of dependents or relationships that they have.
There is an important distinction to be drawn between this debate and the debate on the principle, which was about the human rights of a transgendered person and the medical considerations that led up to the award of a certificate. In this instance, we are in the world of whether people are treated fairly.
As I understand it, the hon. Member for City of York is talking about a situation in which a couple, who might or might not contemplate divorce in these circumstances, wish to apply to a third party for the maintenance of their rights under the new arrangement, whether their marriage is annulled because an interim certificate has been issued and then they remarry, or they decide to live apart. Quite properly, they would have to make that decision. In either case, the world would change in the view of the pension trustee. If those persons were no longer married, even if for only a moment before they
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reconstituted a civil partnership—I shall return to that shortly—the world would change and accrued rights could be lost.
It is not a matter of splitting a finite and determined pot but a matter of a potential loss of benefits to the couple, however disposed, as they were not previously separate persons in the same pension scheme who had never had a married relationship. I am thinking aloud about this. Suppose an individual in a pension scheme had never been married or was, perhaps, cohabiting but not necessarily in a partnership. They may have rights on account of dependency, for example, that would be lost under this arrangement. Perhaps we could debate that further. One can imagine a situation in which a pension scheme or a company benefit might be specific to a particular gender or might safeguard the position of someone of a particular gender; I do not know.
The hon. Gentleman brings to the Committee the position of a couple operating together, or operating with their several rights after the relationship is terminated, in relation to a third party such as a pension trustee or a company, if a company stands behind the pension scheme. That is not improper; it reflects good employment practice. There are two practical points to consider. First, company trustees should not use the occasion of someone's change of gender or any contingent event to break a settled arrangement or understanding; that is a general point. Secondly, even if they were inclined to do so, I cannot conceive that the situation would arise with enough frequency to make any practical difference. For example, a company pension scheme that was under severe pressure would not bail itself out by being nasty to transgendered people.
The issue, which is about fairness to individuals who have gone through a gender change, was properly brought to the Committee and should be considered by the Minister. Frankly, it would be much easier to consider it alongside a civil partnerships Bill. We have not seen such a Bill yet so we do not know what its provisions will include, although I have heard a whisper that there will not be an exact equivalence between marriage rights and the rights of those in a civil partnership. Even if there were, the arrangements in this Bill will result in a discontinuity in the relationship, if only for a day, as Lord Filkin said in another place, of someone with a gender recognition certificate who was married but who then undertakes a civil partnership. Therefore, their position may be affected.
There should be no consequences from a change of gender under the Bill, whatever the practice of the individual pension scheme and whatever the approach of the general law to specifying requirements in schemes. This debate is not about the general question whether persons who have gone through gender change should have a marriage certificate but about whether they should be treated equably in terms of third-party rights, which they may lose. The Government are intervening by legislating in an unusual situation.
I need say no more except that the hon. Member for City of York has made a good point. It is well worth
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consideration, and I hope that the Minister will respond appropriately.
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