Lord Lester of Herne Hill: My Lords, it is not my intention to have a debate tonight about Protocol 7. That is a completely separate matter and no doubt can be debated hereafter if necessary. All I am concerned to do tonight is to sweep away archaic and outmoded provisions and secure equality between the spouses in that respect. One advantage of that would be to leave it open to the Government to take that further step. As far as the other point is concerned, I am not a family lawyer. I have not the faintest idea whether the comments of Lord Williams of Mostyn and the events in the House of Lords did or did not have the effect he said. However, it seems to me that the Government can now tell us whether or not they think that this is necessary.
Baroness Howe of Idlicote: My Lords, I wonder if I could probe a little bit. I would be equally loath to question anything that the noble Lord, Lord Lester, has said, but, with all the other things going on, there has not been time to pose these questions to him. I have in mind the considerable inequalities that still remain between husbands and wives, men and women, with regard to pay, the percentages who get the very top jobs, and pension arrangements. I have to say again that, as far as the European regulations were concerned, I found it extremely disturbing that on issues such as annuities, women and men were not treated the same even though they were equally entitled, by what they had earned over the years, to the same annuity. I still find these things worrying. I would like to be reassured that they are being taken into account; that the Minister has the answers to them; and, above all, that my noble friend Lord Lester took all that into account when he was deciding that all these things could just be finished with completely.
Baroness Royall of Blaisdon: My Lords, the Government support the amendments put forward by the noble Lord, Lord Lester of Herne Hill, which, as he notes, remove existing provisions that are discriminatory and out of date. These amendments also address those aspects of UK law that are incompatible with Article 5 of the 7th Protocol to the European Convention on Human Rights.
Article 5 of the 7th Protocol provides that spouses shall have equality of rights and responsibilities between them and in their relations with their children both during the course of a marriage and in the event of its dissolution. It does not prevent states taking such measures as are necessary to protect the interests of the children. Of course our legislation makes the welfare of children the courts’ paramount consideration when making decisions.
These amendments therefore remove three minor legal provisions which discriminate between spouses. Although technically removing provisions which appear to benefit one spouse over the other, in reality the amendments confer no practical advantage or disadvantage on either spouse. The noble Lord, Lord Lester, set out very clearly the three provisions in question, so I will not reiterate those points.
The noble Lord, Lord Hunt, asked me about new Clause 129ZC and whether it is absolutely necessary. He cited my erstwhile friend Lord Williams of Mostyn in relation to the amendment. We believe that new Clause 129ZC amends the final rule so that it applies equally to husbands and wives and so that property derived from a housekeeping allowance is owned by the husband and wife in equal shares regardless of who paid or received the allowance. So we do believe that it is necessary.
In addition, new Clause 129ZD, tabled by the noble Lord, Lord Lester, inserts a new Section 70A into the Civil Partnership Act 2004 to provide, as he said, for the equal division of housekeeping allowances paid by one civil partner to another. This is in line with the Government’s objective that civil partners should have parallel rights to those of married people, and the Government are very pleased to accept this amendment. As the noble Lord says, these amendments represent an important opportunity not only to remedy outmoded inequalities in our domestic law but also to remove this barrier to ratification of the 7th Protocol to the European Convention on Human Rights. The Government have long indicated their commitment to ratification of the protocol, and I am grateful to the noble Lord for tabling these amendments to the Bill, which will allow us to move this process forward.
The noble Lord, Lord Hunt, asked about scrutiny of the 7th Protocol and what vehicle would be used for legislative changes. The amendments moved today suffice to make our law compatible with the 7th Protocol, so we have the perfect vehicle right before us today. We are considering that very vehicle now. There would need to be the usual consideration under the Ponsonby rule of the ratification of the 7th Protocol, but that cannot now be completed in this Parliament. In particular, it would require an affirmative vote in each House.
The noble Lord asked whether presumption of advancement remained after the case of Stack v Dowden. The presumption of advancement still applies after that case, which relates only to ownership of the domestic home and not to other property.
I well understand the concern expressed by the noble Baroness, Lady Howe of Idlicote, when she suggests that women still have a very tough time with regard to equality in insurance, pay and so on. I reiterate that the Government are totally committed to equality. We wish to remove the provisions that treat either husbands or wives in a discriminatory way. In practical terms, women will not lose out as a result of this Bill, as I have explained, and it will remove provisions that are unfair to men. We believe that accepting the amendments proposed by the noble Lord, Lord Lester, is a very good way forward, and I urge your Lordships to accept them.
Lord Lester of Herne Hill: My Lords, I am extremely grateful. I share the concerns expressed by the noble Baroness, Lady Howe, about wider inequalities that cannot be removed, but this is a very modest mouse of a series of proposals that are needed to scrap some archaic laws. It does not seek like a lion to sweep away all inequality against women, although I wish it could. The very fact that the Bill team could produce answers immediately to highly technical questions reminds me that I should apologise through the Committee to them for having singled out two members of the team for special praise. I am reminded that they are a team as a whole; by singling out two of them, I did not mean in any way to discriminate against the others. As for scrutiny of ratification of human rights treaties, or any treaties, the House knows that for years I have been saying that we need a mechanism in this House for a treaty scrutiny committee. I am delighted that the Ponsonby rule has been firmed up as it has, but it needs to be made stronger. Finally, above all, I thank the Minister and noble Lords very much for accepting the amendments.
Amendment 129ZA agreed.
Amendments 129ZB to 129ZD
Moved by Lord Lester of Herne Hill
129ZB: After Clause 195, insert the following new Clause—
“Abolition of presumption of advancement
(1) The presumption of advancement (by which, for example, a husband is presumed to be making a gift to his wife if he transfers property to her, or purchases property in her name) is abolished.
(2) The abolition by subsection (1) of the presumption of advancement does not have effect in relation to—
(a) anything done before the commencement of this section, or
(b) anything done pursuant to any obligation incurred before the commencement of this section.”
129ZC: After Clause 195, insert the following new Clause—
“Amendment of Married Women’s Property Act 1964
(1) In section 1 of the Married Women’s Property Act 1964 (money and property derived from housekeeping allowance made by husband to be treated as belonging to husband and wife in equal shares)—
(a) for “the husband for” substitute “either of them for”, and
(b) for “the husband and the wife” substitute “them”.
(2) Accordingly, that Act may be cited as the Matrimonial Property Act 1964.
(3) The amendments made by this section do not have effect in relation to any allowance made before the commencement of this section.”
129ZD: After Clause 195, insert the following new Clause—
“Civil partners: housekeeping allowance
(1) After section 70 of the Civil Partnership Act 2004 insert—
“70A Money and property derived from housekeeping allowance
Section 1 of the Matrimonial Property Act 1964 (money and property derived from housekeeping allowance to be treated as belonging to husband and wife in equal shares) applies in relation to—
(a) money derived from any allowance made by a civil partner for the expenses of the civil partnership home or for similar purposes, and
(b) any property acquired out of such money,
as it applies in relation to money derived from any allowance made by a husband or wife for the expenses of the matrimonial home or for similar purposes, and any property acquired out of such money.”
(2) The amendment made by this section does not have effect in relation to any allowance made before the commencement of this section.”
Amendments 129ZB to 129ZD agreed.
Amendment 129A not moved.
Clause 196 : Harmonisation
Amendments 130 and 131 not moved.
Amendment 131A
Moved by Baroness Royall of Blaisdon
131A: Clause 196, page 122, line 2, leave out “Before making the order” and insert “If the Minister proposes to make an order under this section”
Baroness Royall of Blaisdon: Government Amendments 131A, 131B, 134B, 134C, 134ZA, 134ZB and the new Clause in Amendment 134ZC concern the power in Clause 196 that would allow us to ensure that the Bill does not quickly fall into disrepair as a result of changes in European Law—what we call the “harmonisation power”. As time is extremely tight, I hope that noble Lords will forgive me if I also address Amendment 134, tabled in the name of the noble Baronesses, Lady Warsi and Lady Morris, and also their intention to oppose the Question that the clause shall stand part of the Bill.
Overall, the role that Europe has played in shaping our current body of equality legislation has been positive. Indeed, much of the relevant European law is based on legislation that was previously in place domestically. However, although it is based on similar concepts and structures, European law has from time to time required us to amend or extend our domestic regime. Our ability to do this without the aid of primary legislation is limited by the extent of the power in Section 2(2) of the European Communities Act 1972. As the scope of EU equality law is not generally as wide as domestic equality law, this has resulted in a patchwork of protection and a lot of confusion that led to the Discrimination Law Review—culminating in this Bill, one of the main aims of which is to simplify and harmonise the thicket of legislation that has grown up over more than 40 years.