Civil Partnership Bill [Lords]

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Mr. Chope: Will the Minister answer the question about why the Government are not legislating for homosexual marriage? If they did that, the problems that I have described would not exist.

Jacqui Smith: As we said on Second Reading, our approach to the legal situation is to say, ''Let us devise a 21st century way, a new legal relationship, which recognises the legal difficulties and sensitivities that perhaps not everybody in this Committee may share but certainly many people with religious views would share, about the particular historical traditions of marriage that might make it inappropriate for there to be same-sex marriages.'' We have identified where the mischief stands, as the lawyers describe it, and that is the legal invisibility of people in same-sex couples. We

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are attempting to remedy that through the Bill, and our approach received widespread support throughout the consultation period. Stonewall, for example, recognises it as the 21st century, modern way to deal with that particular problem.

The second reason for the Government's approach is our view that for opposite-sex couples marriage is the best framework for stable family relationships. I think the hon. Gentleman would agree with that. The irony of his position is that he would want the state to sanction another form of legal relationship for opposite-sex couples that could be seen only as being in direct competition with marriage. It is a deep irony that those people who hold marriage so dear and consider it to be so important at the same time argue for a legally recognised, state sanctioned relationship in direct competition with it. The Government do not want to do that.

Mr. Chope: Does the Minister agree that heterosexual couples sometimes choose not to marry for very personal reasons of conscience and belief, such as, for example, the historical implication of the term ''marriage'' and the historical nature of the institution in which the woman was treated as property?

Jacqui Smith: I do not think that modern marriage treats women as property, but of course there are a whole range of reasons why people might choose not to marry just as there will be for people who choose not to enter into a civil partnership. The point is that in an opposite-sex relationship, one has that choice; in a same-sex relationship, one does not. This Bill is about putting right that inequality.

Mr. Bercow: Does the Minister not think it both bizarre and unsatisfactory that my hon. Friend the Member for Christchurch has still failed to explain how and why civil partnership for gay couples undermines marriage but civil partnership for heterosexual, cohabiting couples does not?

Jacqui Smith: Yes, it is bizarre. I have nothing to add; the hon. Gentleman is absolutely right.

I move on to some of the legal arguments that the hon. Member for Christchurch made. On Second Reading and again today, he suggested that it was discriminatory for legislation to favour married couples or those in a legally recognised relationship. He quoted from the interim report of the Joint Committee on Human Rights, and he referred in particular—as he has today—to the decision of the Canadian Supreme Court in the case of Miron v. Trudel.

However, the hon. Gentleman did not outline the context and content of that case, and we should be clear about that. It was about financial support under an insurance policy where a spouse was injured in a motor accident. The court found, by a majority of five to four, that there was no justification for the legislature to have restricted the benefits of the legislation in question to married couples to the exclusion of unmarried opposite-sex couples.

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That case was not about eligibility to form a particular kind of legal relationship; it was about the appropriate allocation of a particular benefit as between couples in a formal relationship and those who were not in such a relationship. Therefore, it is not clear that even that case supports the hon. Gentleman's contention. Furthermore, he did not go on to add that, in any event, in a more recent decision in the case of Nova Scotia (Attorney General) v. Walsh—which I put in my letter—the same court reached a different conclusion, and with only one dissenting judgment, so that was a very clear majority. This time, considering legislation on the division of matrimonial property, the court emphasised that a distinction may very properly be made between those who decide to marry and those who do not.

It is likely that the European Court of Human Rights would follow the latter approach. As the Joint Committee's interim report recognised, the Court has confirmed that it is compatible with convention rights to treat married couples differently from couples that do not marry.

Angela Eagle: Does my right hon. Friend agree that the appropriate comparison is between civil partners and spouses and those who could form civil partnerships but have not done so and those who could form married partnerships and have not done so? To do that would be better than mixing the two in this mischievous way.

Jacqui Smith: I do agree. I was going to make precisely that point; my hon. Friend has spelled it out admirably.

Leaving that aside, this Bill is about a new, formal legal relationship that also requires the agreement of both parties. For those couples that do not marry because one partner does not wish to—that example has been used—the availability of civil partnership would be unlikely to help. In other words, the idea that people who do not want to enter into a significant legal relationship with rights and responsibilities as represented by marriage—there could be all sorts of reasons why that would be the case—would then want to enter into civil partnership, which is a very similar legal relationship with very similar rights and responsibilities, is not tenable. If people are not willing, for whatever reason, to take on those legal responsibilities in marriage, they will be unlikely to want to do so in civil partnership. For example, where one person in an opposite-sex couple does not wish to shoulder the financial responsibilities that flow from marriage, it would be highly unlikely that they would want to form a civil partnership with similar rights and responsibilities.

If couples choose not to marry for reasons of personal belief or conscience—we have touched on that—that is a matter entirely for them, not for Government. However, although I do not think that the hon. Member for Christchurch has expressed himself well today, others have explained their concerns about the particular practical problems that people who choose to cohabit can find themselves in, and I am not unsympathetic to their point of view.

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Therefore, it might be worth while to draw hon. Members' attention to the range of work that the Government are undertaking on cohabitation issues.

Malcolm Bruce (Gordon) (LD): Does the Minister share my view that the hon. Member for Christchurch is missing the point? The debate we are having might make people in opposite-sex relationships who currently choose not to marry consider whether the legal protection outside marriage is adequate, and, by comparison, more of them may actually choose to marry. Therefore this debate is helping his cause rather than undermining it.

Jacqui Smith: The hon. Gentleman makes a fair point. The first strand of work with respect to cohabitation should be about raising awareness of the implications of making the choice to cohabit, as opposed to entering into a legal relationship. It was unfortunate that during the last sitting the hon. Member for Christchurch used the phrase ''common-law marriage'' because there is no such thing. The first strand of work that the Government are undertaking is to dispel the myth of common-law marriage through a public awareness campaign that aims to point out the differences in legal rights between married and unmarried couples. It suggests ways that unmarried couples can protect themselves in the event that their relationship breaks down. That is a practical way to identify those issues and to raise awareness of how they might be overcome.

The second strand of the work on cohabitation is to ensure that full use is made of those rights and responsibilities that already exist between cohabiting couples. Officials at the Department for Constitutional Affairs and my ministerial colleagues are considering ways of making better use of those provisions. For example, schedule 1 of the Children Act 1989 gives courts the power to make property adjustments and to order lump sum or periodical payments for the benefit of children of cohabitant families. However, in 2001, only 428 orders were made under those provisions, compared with 26,627 lump sum and property orders in divorce proceedings. In relation to the protection of the children of cohabiting couples, it may be that more could be done under existing law. I am sure that everyone would consider that a good thing to do.

The third strand of the work is to look in more detail at the current law. The Law Commission is considering including opposite-sex and same-sex cohabitation in its next programme of law reform. The project would examine the approach taken in other jurisdictions and options such as the extension of the ancillary relief regime to unmarried couples.

That body of work ensures that cohabiting couples who do not marry for whatever reason are made fully aware of the consequences of their choice. It provides them with practical advice and information and enables them to make an informed decision about how to protect themselves and their families from some of the consequences of their unmarried status or, should the Bill be accepted, from some of the consequences of their decision not to enter into a civil partnership.

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Through the Bill and the accompanying work on cohabitation we are ensuring that the choices made by couples are respected and supported in the most appropriate manner. The difficulty with the amendments, although I recognise that they are caused by concern about the position of cohabiting couples, is that the Bill is not the appropriate place to deal with the issues they cover. I hope that I have given hon. Members some reassurance that the Government take those issues seriously and are engaged in a programme of work to deal with them, but the Bill is about putting right a specific legal difficulty, which is the lack of any opportunity to gain legal visibility for a same-sex relationship. That is what the Bill is aimed at putting right and the basis on which it has been designed. I believe that to be the fundamental basis on which we should proceed and I therefore ask hon. Members to reject the amendment.

Briefly, the third amendment would change the short title to the ''Same-Sex Partnership Bill''. In fact the term ''civil partnership'' was one of the points on which we consulted. It has gained wide currency in the community and the wider public arena. The term properly reflects the secular status of civil partnerships and I cannot see any reason to think again about the point. In fact is that the hon. Member for Christchurch precisely identified that he wanted to change the title only to pursue a particular point, which I do not believe is valid and nor do other hon. Members. I hope that hon. Members will reject that amendment, but perhaps the Government's commitment to righting the difficulties that the Bill is aimed at righting, and dealing with the issues around cohabiting couples, will leave the hon. Gentleman feeling sufficiently reassured to withdraw his amendments.

 
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