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Lord Higgins: Another debate. My Lords, soon after my election, Mr Humphrey Berkeley bravely
introduced a Private Member's Bill that resulted in the criminal aspects previously imposed on homosexuals being removed. That was a very important stage in the progress of these matters. Certainly, the Bill being debated today is a major milestone concerning reform in this area.Of course, these issues involve deeply held views, which is why, as my noble friend Lady Wilcox said, on this side of the House we are having a free vote. I am not entirely clear whether that is true for the other side. Perhaps the Minister could clarify whether that is so. Personally—this is a personal matter to a large extent—I support the Bill, in one way for the most simple of reasons: one must surely be more in favour of stable homosexual relationships than those that are not. I am glad to see the noble Lord, Lord Alli, indicating assent. In some ways, that is a very important aspect of the Bill.
Of course, we shall scrutinise the Bill very carefully at later stages. Alas, hitherto, for various reasons, we have not had an opportunity to discuss it with Ministers. I gather that a huge array of Ministers will appear at later stages. It may be more appropriate to have individual meetings with them on what will undoubtedly be highly technical matters.
Perhaps the main stream of argument that has tended to arise time and again today is whether the Bill will undermine the institution of marriage. The right reverend Prelate the Bishop of Oxford took the view that that was not the case. My noble friend Lady O'Cathain took a very strong view the other way. Of course, both views are entirely legitimate. As has been pointed out already, there are varying views inside and outside the House. My view is that on balance it will probably support marriage rather than otherwise.
There has also been a considerable amount of discussion on whether the right to engage in a civil partnership should be extended to heterosexual couples. On listening to the debate, that seems to be the one thing that would undermine the institution of marriage. Therefore I agree strongly with the views expressed by the Government. I am reinforced in that view because it is also the opposite of that expressed by the Mayor of London.
I raise now a number of other points which are more in my normal field. Leaving on one side the issues I have just mentioned, I turn to the question of taxation and social security provisions. The Inland Revenue has issued a mysterious press release stating that the provisions relating to this Bill would be set out in the next available Finance Bill. We do not have the remotest idea what that means. It could refer to the Finance Bill which received its Second Reading a few days ago or it could mean the one that will be brought forward after the next Budget. I hope that the Minister can give us a clear answer here. However, it seems to me important that the provisions should be included in the Finance Bill now before the Commons because it will be quite absurd for us to have to debate the Bill without knowing the situation with regard to taxation. Alternatively, perhaps the suggestion made by my noble friend Lady Wilcox should be taken up and a separate Finance Bill introduced at the same time.
Perhaps I am being overly optimistic, but I assume that the clauses related to this Bill are in draft form. If neither of the alternatives I have proposed are acceptable to the Government, then before we consider the Bill in detail they certainly ought to publish the clauses which they are going to put forward in draft form.
I refer briefly to an important point made by the right reverend Prelate the Bishop of Peterborough on the extent to which there are incentives to marriage in our fiscal and social security system, and the extent to which they will be duplicated in this Bill. Again, there probably is a case for giving an incentive to stable relationships, whether they be heterosexual or those formed under a civil partnership.
To some extent this Bill opens a Pandora's box. It brings out some of the anomalies in our taxation and social security systems which have lain dormant for many years. Perhaps we agree with Walpole that we should let sleeping dogs lie, but alas this Bill will give some of those anomalies a hefty kick and the dogs will suddenly start to bark.
Perhaps I may cite one example. The history of married women's pensions goes back to Beveridge. As my noble friend Lord Onslow pointed out, the tax system has been changing over time, along with the social environment. However, the reality is that under the present system a woman receives a widow's pension—I am sorry, I should have said a wife's pension—on the basis of her husband's contributions. At the time of Beveridge that was generally the situation because few women were likely to make contributions in their own right. However, in effect, they get that wife's pension for free in that they pay the same amount in contributions as a single person. So there is a discrimination here against the single person.
Once one starts to bring into the system a new group of people, should one perpetuate the anomaly? I do not think that there are many votes in going in the opposite direction and saying that women will not receive a wife's pension unless they pay more for it—and I do not propose that—but there are difficulties in deciding where to draw the line. There are a number of other examples related not only to tax and social security matters, but also in regard to divorce law—on which I am totally inexpert—and a number of other areas.
I return to a point that has been implicit in a number of the speeches in our debate. The Bill will establish a provision for a civil partnership. I have had difficulty in persuading anyone to provide me with a definition of the difference between sex and gender, which is confusing. The trouble is that the Bill implies, to some extent, that these civil partners will have a sexual relationship. However, other speeches have suggested the opposite; namely, that the Bill does not do so.
A noble Lord: It is up to them.
Lord Higgins: My Lords, while that may be the case, the problem is that the Government will not know. It is not at all clear why a same-sex couple in a sexual relationship entering into a civil partnership should enjoy the tax and other benefits which a same-sex
couple entering into a civil partnership which does not have a sexual relationship would not have. This brings me immediately to the point that arose in an earlier discussion about the problem of people who are living together, but not necessarily in a sexual relationship. Should they be entitled to enter into a civil partnership and enjoy the benefits which result from that?I think that the situation has been complicated by a number of noble Lords. As an economist by training, it is always helpful to employ a certain amount of technical jargon, so I shall refer to the difficulty arising here as the "spinster problem", concerning two elderly spinsters living together.
Baroness Buscombe: My Lords, I am grateful to my noble friend for giving me an opportunity to intervene briefly. I am sad to say that there are many married couples who are not in a sexual relationship. Surely that is relevant.
Lord Higgins: My Lords, I apologise for not being in the Chamber when my noble friend made her speech, although I realise that she is concerned about this point. It is one that is quite true. We shall run into a terrible minefield about whether there can be annulment either for a married or a same-sex couple. I shall not pursue that line for the moment, but I take the point made by my noble friend.
I return to the spinster problem. Why should it be the case that two spinsters who have lived together for many years should not enter into a civil partnership and, as a result, enjoy the various benefits that would accrue to a same-sex couple with a sexual relationship?
There may be an even greater problem. Again, I shall resort to the kind of jargon which may be useful in Committee by referring to the "sister spinster problem". One must then tackle the whole problem of family relationships, which are not the same for same-sex couples as they are for couples comprising both sexes. We shall run into problems. There seems to be a very strong argument for covering the spinster problem, although I have to say that I am more doubtful about the sister spinster problem. I apologise for speaking in such a technical fashion. If one lets economists contribute to debates of this nature, one must expect that kind of thing to happen.
The noble Baroness, Lady Hollis of Heigham, has been either nodding or shaking her head throughout my remarks. I have made a careful note of when she does one and when the other. I turn, therefore, to the whole issue of cohabitation. That will be an extraordinary mess. It is not such a difficulty in terms of taxation, but it is a substantial problem in the area of social security. One knows only too well all the issues thrown up by couples living together, whether they may be cohabiting and engaged in benefit fraud, and the extent to which the Government are responsible for deciding whether they are engaged in such fraud and so forth. We must ask whether those considerations are to be extended to same-sex couples. I look forward to hearing at a later stage what the noble Baroness has to say about that. However, the whole cohabitation aspect of this matter will present considerable problems.
The reality is that some of these issues are even more complicated in that it may be that some engaged in civil partnerships will find that instead of gaining various benefits they actually lose them. That again is a whole area of concern. So to suppose that this is a simple Bill, even at 258 pages, is not the case. We will have to spend a lot of time on it. The noble Baroness, Lady Scotland, in her opening remarks said that an enormous amount of hard work had been done over the past two years. That is clearly the case. Alas, I feel that an enormous amount of hard work is ahead of your Lordships.
I hope that in Committee, and so on, we will have the help and advice from the right reverend Prelates and others on a number of points which I have not referred to. I hope that we can ensure that the Bill and also the provisions with regard to taxation in particular—which do not appear in the Bill—can be adequately decided and that we will recognise when we look back some time in the future that the Bill is a milestone. It is an excellent idea for the Bill to start in your Lordships' House and I hope that it will be said that your Lordships did a good job.
2.21 p.m.
Baroness Scotland of Asthal: My Lords, I reply with a considerable sense of pride because we truly have had a splendid and well informed debate. I say to the noble Lord, Lord Higgins, that I am particularly pleased that when we come to the issues of state benefit and pensions I will have the encyclopaedic knowledge of my noble friend Lady Hollis, who will have the privilege and pleasure of duelling, as she always does, with the noble Lord opposite. In due course I will say a little about that.
The reason why I say that I rise with pleasure is the nature of the debate that we have had. There has been a great deal of humanity on all sides and from all those who have spoken. There has been sympathy, even in difference. The two voices who have spoken against the Bill—the noble Baroness, Lady O'Cathain, and the noble Lady, Lady Saltoun—spoke with moderation and precision.
It is right that my noble friends Lord Alli and Lady Gould remind us that we have come a very long way. It was particularly telling that the noble Baroness, Lady Gould, mentioned Wolfendon of 50 years ago, because that journey has been long, painful and difficult, but it has demonstrated something which the noble Lord, Lord Elton, exemplified; namely, that we sought to concentrate on what love truly means in terms of dignity, parity of treatment, fairness and justice. That is what the Bill primarily seeks to address.
The Government introduced the Civil Partnership Bill for reasons of social justice and equality. The Bill would be worth doing if there were 800, 8,000 or 80,000 people living in same-sex relationships in this country. The figure of 39,761 same-sex couples, identified by the Office for National Statistics in the 2001 census data, is likely to be a minimum estimate. There may be same-sex couples who, for a variety of
reasons, were not identified. Details of our take-up assumptions were published in the regulatory impact assessment: we anticipated that by 2010 there will be between 11,000 and 22,000 people in civil partnerships.As part of the policy development process we will continually monitor that evidence from a number of sources. We have accumulated evidence from comparable systems in other jurisdictions: Sweden had the Registered Partnership Act in June 1994; Norway had the Act on Registered Partnerships in April 1993; Denmark had the Act on Registered Partnerships 1989; and the Netherlands had the Registered Partnership Act 1997. Using that evidence, the take-up figure is based on assumptions that the proportion of the lesbian and gay population who will be in civil partnerships by 2050 will be 5 per cent, which is under the low scenario, or 10 per cent, which is under the high scenario, of the proportion of the heterosexual population who are married. It is for that reason that I said in my opening remarks that the figure would be between 5 and 10 per cent. The figure of 3.5 per cent is perhaps an unduly conservative one.
I should also make clear that the intention in relation to social security and tax credits legislation is that in general same-sex couples in civil partnerships will be treated in a similar way as married couples. Same-sex couples who are not in civil partnerships but who are living together as if they were civil partners are treated in the same way as opposite-sex, unmarried couples who are living together as husband and wife. That is the way in which we propose that those issues will be dealt with.
The noble Lord, Lord Goodhart, was right in his assumption that Her Majesty's Treasury tends not to foreshadow that which may become law and deals with matters once they are law. The noble Lord was right in his surmise that it is likely that this legislation, if passed, will not come into operation until October 2005, therefore there is plenty of time for there to be another Finance Bill other than that which is currently going through Parliament in which these provisions could appear. But that is a matter which we will have to debate and I am confident that that debate will be an extensive one.
I should also make clear that in accordance with the usual system in contracted-out schemes, members will accrue rights to survivor benefits for a civil partner from the date of implementation of the civil partnership proposals. Improvements to public service schemes and contracting-out regimes are made for future service only. As noble Lords will remember, when new benefits were introduced for members of pension schemes, they were normally introduced prospectively—for example the guaranteed minimum pensions were extended to widowers from 1988, whereas widows were entitled from 1978—so retrospection would add significant liabilities to those schemes which do not already pay survivor benefits to unmarried couples. Public sector schemes would have to shoulder most of that burden. But I absolutely
understand from the comments made by a number of your Lordships in this debate that that will be an issue that we will wish to address with some care.In relation to the comments on the reason why we have not included others in this scheme, I very much appreciate the understanding shown by a number of noble Lords, not least the noble Lord, Lord Higgins, that these relationships are very different. I think that it was the noble Lord, Lord Elton, who dealt with the issue of what would happen if you entered into a contract with a member of your family and that person subsequently wished to marry, and indeed what would happen if there were more than one sibling who entered into a contract, and how you would then disaggregate those relationships. Those issues are certainly not for this Bill.
It is right, as I mentioned, that the Department for Constitutional Affairs is looking at what more could be done about the myth of common-law marriages and making sure that people understand the risks that they face and the choices they make when they choose not to enter marriage or in some other way regularise the nature of their relationships. Noble Lords will also know that, if one does not wish to enter into marriage, there are many legal steps one can take to better secure one's financial and long-term arrangements, which are also available for us all.
I warmly welcome the comments of the right reverend Prelate the Bishop of Oxford, many of which were echoed with great sympathy by his fellow right reverend Prelate, although the emphasis was different. We believe that what was said by the Synod is very much carried through in the Bill. There is division—that was evident on the Bishops' Benches—but the Government have sought to walk a path between the areas of disagreement, one of proportionality, fairness and balance. We hope that we have created sufficient comfort for those who disagree on some of these issues to make it possible, as the debate has demonstrated, for us all to walk together, even though our steps may be at a slightly different pace. We believe that that is certainly worth doing.
The noble Lord, Lord Elton, raised the question of adoption. He may not recall, but we dealt with many of the issues in the Adoption and Children Act 2002. Anyone who wishes to adopt must first be assessed and approved by the Adoption Agency. One of the key considerations in assessing people's suitability to adopt is their ability to provide a loving family environment in which to raise a child through childhood and beyond. So, when assessing a couple's suitability to be adoptive parents, whether they are unmarried, married or civil partners, the assessment will consider the stability and the enduring nature of the relationship.
In England and Wales, once the relevant provisions of the Adoption and Children Act 2002 come into force in September 2005, unmarried couples—whether same sex or opposite sex—will be able to make a joint adoption application. The Bill will regularise the position of children who are part of such relationships to take advantage of the same rights as other children
and other couples. I hope the noble Lord will find that these provisions accord with his aspirations as opposed to not doing so.I should have reassured the House that when the proposed tax changes come in they will be implemented at the same time. We anticipate that that will about a year after Royal Assent. Of course, we do not know the precise date when the Bill will finish its passage through this House and the other place.
Let me reassure the noble Baroness, Lady Thomas, that her reticence about standing as a foot soldier is quite unmerited. We have seen her for a long time as being one of the Liberal Democrats' major-generals.
I, too, regret that the noble Lord, Lord Lester, is not in his place. He, together with many noble Lords who have spoken, would have been very warmed by the nature and extent of the debate. My noble friend Lady Rendell asked a question very similar to the one posed by the noble Baroness, Lady O'Cathain. I hope I have made plain that the Law Commission's report on home sharers in 2002 concluded that, because of the disparity and diversity of the relationships that are present, there is no simple solution that covers all. I hope I have made it clear that that work needs to continue.
My noble friends Lady Gould and Lord Alli raised the question of the work that needs to be done in regard to co- habitees. I hope that I have said enough to reassure the House that this issue will continue to excite our attention.
The Bill will undoubtedly demand a high degree of scrutiny. It is right that I should tell your Lordships that there will be a whole phalanx of Ministers helping to carry through the Bill. I make it plain immediately that we will be very happy to hold separate meetings in relation to specific areas of the Bill that particularly excite the attention of noble Lords.
The Bill has been carefully crafted. We hope, as the debate has demonstrated, that many of the issues with which noble Lords are concerned have been covered. However, I warmly welcome the historical excitement that the noble Earl, Lord Onslow, brought to the debate. In the absence of the noble Earl, Lord Russell, it is rare indeed that we should have the whole Bible as well as a 15th-century quote rolled up in one. For that, we thank the noble Earl, who brought such colour and flavour to the debate.
I commend the Bill to your Lordships. There is work for us to do but one is warmed by the direction in which we appear to be going. It seems to be one upon which we are all embarked.
On Question, Bill read a second time, and committed to a Grand Committee.
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