| Civil Partnership Bill [Lords]
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Mr. Alan Duncan (Rutland and Melton) (Con): What is my hon. Friend's estimate of the number of those in cohabiting opposite-sex relationships who are discriminated against because they are prohibited from marrying unless that prohibition is because they are in an adulterous relationship? Adulterous relationships are not something that he wishes to encourage. Mr. Chope: I certainly do not wish to encourage adulterous relationships, and I am sure that my hon. Friend does not wish to do that either. The short answer is that I do not know how many of that 4 million fall into that category, but I do not think that my hon. Friend is comparing like with like. If the Bill were proposing same-sex marriage, his argument would carry weight because, under human rights law, it is possible to set up marriage and discriminate against relationships outside marriage. However, the Government are legislating specifically to set up a relationship outside marriage that will have a legal status superior to other relationships outside marriage. Mr. Duncan: My hon. Friend says that those in a cohabiting relationship are being discriminated against because they are unable to marry. They can marry if they are divorced or are free to marry. The only basis on which they might be discriminated against in law, and thereby unable to marry, is if they are not divorced or are in an adulterous relationship. Both of those situations undermine the institution of marriage that he is trying to protect. How can he say that we are not comparing like with like when, clearly, he is not doing so? Mr. Chope: Unfortunately, the law seems to support my argument rather than that of my hon. Friend. I cited some of the authorities. That is the law as it stands. I challenge my hon. Friend to show, based on the authorities that I cited, any reason why he thinks that it would be lawful discrimination to allow some people in partnerships, namely same-sex partnerships, to be in a privileged position compared Column Number: 048 with others—those who are in opposite-sex partnerships. If one considers the case law, one discovers that one of the breakthroughs for those in cohabiting relationships came when somebody challenged the right of a survivor to inherit a tenancy. The law was originally extended to cohabitees of opposite sexes. It was then challenged by cohabitees of the same sex, who said that they should be put on an equal basis.That is the law—that relationships outside marriage should be treated equally. The Bill gives one particular type of relationship outside marriage a superior position. Mr. Bercow: My hon. Friend is contorting himself somewhat. He keeps talking about the elevated status of same-sex couples. Can he not understand the rather simple point that cohabiting heterosexuals have the right to marry whereas gay couples do not? That is unless my hon. Friend is suggesting that gays should dishonestly marry, which no one, I think, would seriously argue. All that the Bill seeks to do is to redress the balance and remove that injustice.
9.45 amMr. Chope: I hear what my hon. Friend says on that, but as the Joint Committee on Human Rights has reported, and as is referred to in one of the Canadian cases, there are many people in heterosexual cohabiting relationships who, for whatever reason, do not wish to get married. The law is that people in cohabiting relationships outside marriage should be treated equally. If the Bill were to create homosexual marriage in law—I think that my hon. Friend might be in favour of that—I would not have an argument on this point of discrimination. However, it does not create homosexual marriage, and perhaps in due course we will find out why the Government do not want it to do so. What it creates is a legal framework for a partnership outside marriage, which will be superior to a partnership of others involved in heterosexual relationships. If one examines the legal authorities and the work of the Joint Committee on Human Rights, one can see that they share my concern, as do many people outside this House. I predict that if this Bill goes through in its present form, in due course the Government will find themselves forced by the courts to accept that it unlawfully discriminates against opposite-sex cohabitees, who will not be able to enjoy the civil partnership that the Bill sets up. I look forward to hearing the detailed legal response to my amendment from the Minister. Mr. Carmichael: I welcome the hon. Member for Christchurch to the side of the angels as far as human rights arguments are concerned. Angela Eagle (Wallasey) (Lab): It is only a brief visit. Mr. Carmichael: I hope not. I hope that we are able to keep the hon. Gentleman with us. It would certainly make everyone's life an awful lot easier. However, if the hon. Gentleman goes beyond the rubrics in the case law to which he has just referred, he will find that courts take a very different approach to Column Number: 049 that which he has outlined to the Committee today. The courts do not obsess with labels in the way that the hon. Gentleman seems to do; they look at outcomes. They will say that the outcome for a heterosexual unmarried couple is that they have the full range of rights available to them by entering into civil marriage. In my view, that is why there is no compelling human rights argument that says that the provisions of this Bill should be made available to heterosexual unmarried couples.Mr. Duncan: The broad thrust of the amendment is essentially to reintroduce through the back door the polluting elements of the amendment moved in another place by Baroness O'Cathain. It would corrupt the Bill and destroy the shape and integrity of its principal purpose. My hon. Friend the Member for Christchurch says that the amendments that he has tabled throughout the Bill can perhaps be adapted the better to improve it, but I think that they are designed in many respects to destroy the Bill. My personal view is that his amendments cannot be improved; they can only be removed. It is similar to what someone once said of communism. It is like lacing a drink: the amendments are a drop of arsenic in the Bill, which poisons the whole cup. Let me address the argument that the inclusion of opposite-sex couples removes discrimination against cohabiting couples. My hon. Friend just argued that, if the Bill were to go through in its original form, under human rights legislation there would be discrimination against cohabiting couples because they would not have the same opportunity that the Bill gives to same-sex couples. However, as my hon. Friend the Member for Buckingham and I have pointed out, and as was said on many occasions in debate on Second Reading and in another place, the principal answer to that point is that opposite-sex couples always have the opportunity of marriage. Should they decide not to marry, that is a matter of choice, rather than discrimination. My hon. Friend the Member for Christchurch also says—I find this argument peculiarly perverse—that opposite-sex couples are denied the opportunity to have some kind of partnership when they are in a position in which they cannot marry. The reason why they cannot marry is that there is something in law that, for a good reason, prevents them. They may already be married; that is the most likely reason. Their divorce may not have come through. As the hon. Member for Rhondda (Chris Bryant) said from a sedentary position, they may—this is even more peculiar—be members of the same family and therefore be in an incestuous relationship. There are many reasons under existing law why some people who cohabit cannot also enter into a legal arrangement that says that they are partners or husband and wife. In many of the large number of cases in which a woman and a man are living together, which my hon. Friend cited from the census, it may well be because—if I may put it in the vernacular—they are shacking up, having walked out of a marriage that is still in existence. In his attempt to remove what Column Number: 050 he calls discrimination, he is proposing something that risks fundamentally undermining, and competing with, the institution of marriage, which he has always said, throughout the debate, is something that he wants to protect.The depth of perversity in the logic of my hon. Friend's argument cannot be beaten. Everything that he says is contrary in its effect and practice to what he says that he wants to achieve. If that is the way in which he wants to move amendments in this Committee, it is a pity, because not only is he destroying the Bill, but he is destroying what he says he fundamentally believes in. That is a double whammy of the most perverse sort. I hope that he can see the lack of logic in what he is trying to do. Jacqui Smith: As the hon. Member for Christchurch has outlined, the first two amendments in the group are intended to allow opposite-sex couples to register as civil partners of each other. He quoted at some length—although selectively—from my preliminary response to the JCHR report. At one point, I feared that he was going to read the whole thing, so I suppose I cannot really criticise him for the selection that he made. However, it would be useful if I outlined to members of the Committee the arguments that I made in that preliminary response as to why the Government do not believe that it is appropriate to extend civil partnerships to opposite-sex couples in the way that the amendments propose. The justification for the exclusion of opposite-sex couples encompasses two clear policy reasons, which have been touched on by other hon. Members. First, the purpose of the Bill is to address the disadvantages faced by same-sex couples due to the fact that they are unable to marry. It is not that they choose not to marry, but that it is legally impossible for them to do so. As the hon. Member for Rutland and Melton has pointed out, opposite-sex couples can marry. Any argument that they may wish to make for access to a new form of legal recognition for their relationship must be, therefore, wholly different from the case of same-sex couples to whom marriage is absolutely denied. That is not to say that there is no argument about the rights that should be available to those couples who cohabit, but it must be wholly different from that made by same-sex couples, who have no opportunity to establish legal recognition of their relationships. That is the first policy reason for our approach in the Bill.
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