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House of Lords

Monday, 24 June 2013.

2.30 pm

Prayers—read by the Lord Bishop of Ripon and Leeds.

Death of a Member: Lord Fraser of Carmyllie

Announcement

2.36 pm

The Lord Speaker (Baroness D'Souza): My Lords, I regret to inform the House of the death of the noble and learned Lord, Lord Fraser of Carmyllie, on 22 June. On behalf of the House, I extend our condolences to the noble and learned Lord’s family and friends.

Central Asia

Question

2.37 pm

Asked by Viscount Waverley

To ask Her Majesty’s Government what assessment they have made of the potential for instability in Central Asia.

Viscount Waverley: My Lords, in drawing attention to my non-conflicting interests as listed in the register, I beg leave to ask the Question standing in my name on the Order Paper.

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, the UK is keen to work with the Governments of central Asia to promote a stable region. We do, however, assess that there are a number of challenges to stability in central Asia, in particular transnational threats, including those from Afghanistan, inter-regional issues such as ethnic tensions, and bilateral disputes. We are working with central Asian Governments on a number of initiatives funded by the tri-departmental Conflict Pool to help them meet these challenges, and we continue to monitor progress.

Viscount Waverley: My Lords, I thank the Minister. She appears to agree that security and stability in the strategic geopolitical priority region of central Asia, including Afghanistan, are paramount. However, trans-boundary upstream/downstream water issues and disputes, industrial pollution, population demographics, drawing on limited resources, the aftermath of the withdrawal from Afghanistan, an underlying trend of extremism, and hard drug transit along the northern routes supplying the northern and western markets, all compounded by areas of poverty and human rights concerns, are challenges and troubling indicators in this region of high potential—

Baroness Warsi: I know that the noble Viscount comes to these matters with great expertise and knows the region incredibly well. The Government believe that to help the central Asian states, the best thing we can do is help to strengthen their political institutions

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to improve governance, increase accountability and support the rule of law. The noble Lord has asked a wide-ranging question and I shall probably have to write to him in some detail in order to answer it fully. However, I can assure him that in opening our embassy in Bishkek in 2012, for example, we are now one of only three EU member states with embassies in all five of the central Asian states, and therefore we have the reach that will enable us to deal with some of these incredibly difficult issues.

Lord Avebury: My Lords, was not the message sent out by my noble friend during her tour of the region that we want to do business with them, and if that is what they are offering, we will not give them a hard time on human rights? Considering that both Turkmenistan and Uzbekistan are countries of concern to the FCO and that human rights abuses in all the central Asian republics are a prime cause of instability, could we address this imbalance? Will the Prime Minister take up human rights during his forthcoming visit to Kazakhstan?

Baroness Warsi: The noble Lord raises an important point. As the Minister with responsibility for central Asia and human rights, I do not think it is a question of either/or. It is important that the economic foundations of these countries are strengthened. It is important that issues around poverty are dealt with and that civil society too is empowered to raise these challenges. In every country that I visited in central Asia, of course we discussed the potential opportunities for them and for us, but in every country human rights was right at the top of the agenda. As the noble Lord said, both Turkmenistan and Uzbekistan are countries of concern in our annual human rights report.

Lord Davies of Coity: My Lords, to what extent does the Minister feel that the people of central Asia have benefited from our involvement there?

Baroness Warsi: Central Asia is a wide region and I would have to take it country by country. A lot of the work that we have been doing in Kyrgyzstan on support for civil society means that there is an incredibly vibrant NGO sector there, and many in Turkmenistan are feeling the benefits of the work that we are doing on Turkmenistan’s economy. I have no doubt that the work we are doing in central Asia has a positive impact.

Lord Hannay of Chiswick: My Lords, the Minister obviously recognises that these countries of central Asia have great potential to do each other harm, but also potential to do each other good. Should the Government not encourage some form of sub-regional co-operation of the countries around Afghanistan, in which undertakings against interference were given and economic co-operation was given a boost?

Baroness Warsi: The noble Lord may be aware that the Istanbul process, which involves the regions as well as other countries, deals with a number of confidence-building measures that are all about securing regional

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stability and involving central Asian states. The latest meeting took place in Almaty. We are involved in both the counternarcotics and counterterrorism parts of those confidence-building measures. I absolutely agree with the noble Lord that it is important that countries in the region work together on regional stability, but it is important that they work on other issues as well.

Baroness Berridge: My Lords, probably the main country of concern in this region to the general public is Afghanistan and the withdrawal. Could my noble friend the Minister please outline how Her Majesty’s Government’s strategy across the whole region is going to assist stability in Afghanistan?

Baroness Warsi: My noble friend asks a very important question. These countries are going to be the first to suffer any consequences of what might happen in Afghanistan in the coming years. They are already feeling the effects, for example, of extremism. We are working with a number of countries, both on cross-border support so that they can secure their borders and in wider work on extremism. A number of these countries have also played a vital role in our securing a northern line of communication and a drawdown route when our combat troops return at the end of 2014.

Lord St John of Bletso: My Lords, can the Minister elaborate on what is being done and what assistance is required to curb the transit of drugs from Afghanistan through central Asian corridors into overseas markets?

Baroness Warsi: As well as being the northern line of communication, it is also the northern route, tragically, for drug trafficking and crime. A large amount of those drugs end up in Russia, but we feel the consequences of these drugs on our own streets. We are working with a number of the central Asian countries to improve border security through training, and there are Conflict Pool-funded projects, for example to train Uzbek customs officers to secure borders in Uzbekistan and Tajikistan. As I said earlier, we are specifically involved in the counternarcotics element of the Istanbul process. We also have representatives from SOCA, who are in the region supporting our work.

Lord West of Spithead: My Lords, as a sailor, I see their greatest deprivation of course as not being adjacent to a lovely ocean. Clearly there are a huge number of weapons now in that region, particularly because of what has happened in Afghanistan. Are the Government content that we, as well as NATO, have taken the requisite actions to ensure that we do not add to the huge amount of weaponry within that region?

Baroness Warsi: We are incredibly cautious. The noble Lord will be aware that we have to overcome a number of hurdles before we are comfortable with supplying any sort of arms to any country. I am confident, from the work that I have been involved in with specific countries, that the items that have been given, gifted or sold absolutely will not add to the instability and security situation in those countries.

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Taxation: Income Tax

Question

2.45 pm

Asked by Lord Risby

To ask Her Majesty’s Government what assessment they have made of the impact of the reduction in the top rate of income tax from 50 per cent to 45 per cent.

Lord Newby: My Lords, the cost of reducing the additional rate of income tax is estimated at around £100 million per year. This takes account of the significant behavioural response associated with changes in personal tax rates. Details were set out in an HMRC report published alongside Budget 2012. The Government believe that it is not efficient to maintain a tax rate that is ineffective at raising revenue from high earners and risks damaging growth.

Lord Risby: Does my noble friend agree that, in a difficult economic environment, maximising tax revenues while avoiding the counterproductive in pursuing it is a huge task which is currently facing all European economies? Does he agree that, following the reduction of the highest rate of tax from 50% to 45%, the number of people in the highest tax category is increasing, and that the revenue generated from the highest-rate taxpayers will increase this year by 57% to over £49 billion? What conclusion does he draw from this?

Lord Newby: My Lords, I think that the conclusion I draw is that the Government always have a tricky task in maximising tax revenues, particularly at a time of austerity and when people are looking for tax changes to be fair. In that context, at the same time as the Government reduced this tax rate they introduced changes to stamp duty land tax and anti-avoidance measures on residential property which will raise several times the amount of tax lost from reducing the 50p band.

Lord Eatwell: My Lords, the noble Lord has introduced the issue of avoidance. What is the Treasury’s estimate of the loss of revenue due to bonuses and other payments being held back after the Chancellor provided his friends with such an easy means of tax avoidance by pre-announcing their top-rate tax cut?

Lord Newby: My Lords, there is an awful lot of hype about what may or may not be achieved by reducing or retaining the higher rate of tax. HMRC produced its report on the matter last year and estimated that, in the short term, the cost to the Exchequer was £100 million. It said that the “direct yield” from the higher rate,

“might fall over time toward or beyond zero”.

Baroness Kramer: My Lords, since this Question looks at the impact of tax policy, can the Minister give me his assessment of the impact of raising the tax threshold in this Parliament?

Lord Newby: My Lords, the effect of raising the tax threshold is that some 2.7 million low-income earners will be taken out of tax by April 2014 and that 23.6 million individuals will benefit by paying less tax.

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Lord Grocott: Can the Minister explain how it was that he was able to give a very positive answer to his noble friend about, as he described it, the benefits to the Exchequer of reducing the top rate of tax, but that when my noble friend Lord Eatwell asked him a very valid question about people who had deferred taking their bonuses from the high-tax period to the lower-tax period, he said that it was impossible to speculate about it? He understands the benefits but he cannot acknowledge the simple statistic that my noble friend put to him.

Lord Newby: The absolutely bald point that lay behind the question of the noble Lord, Lord Eatwell, is that when you do this kind of thing at the top end of tax rates, very well-off people take evasive action. That is why it is an ineffective way of raising additional amounts of money. People do not just sit there and pay the tax: they forestall it, postpone it and avoid it. This is why it was a very ineffective way of trying to raise additional funding.

Lord Forsyth of Drumlean: My Lords, can my noble friend tell us what the effect was on revenue of increasing the rate of capital gains tax?

Lord Newby: My Lords, I do not have that figure immediately to hand, but it was very significant. It was more than the potential loss of revenue from reducing the top rate of tax.

Lord Howarth of Newport: My Lords, Colbert famously said that the art of taxation is to raise the maximum of revenue with the minimum of squawking. This Government are raising their revenue with a maximum of purring. Should that not make us suspicious?

Lord Newby: No, my Lords.

Lord Christopher: My Lords, perhaps I may help. According to the Office for Budget Responsibility, two or three years ago the loss to the Revenue due to anticipation was £1 billion. That was the figure that the OBR gave and it has not been contradicted. When will we know what the degree of postponement is this year? If I may say so, in my opinion both of these losses could have been stopped with a two or three-line clause in the Finance Bill, which both he and I could have written.

Lord Newby: My Lords, I think that the noble Lord overestimates my drafting skills.

Lord Peston: My Lords, according to this bit of paper the original Question asked “what assessment” the Government have made. As far as I can see, they have made no assessment. Does the noble Lord remember, from whenever he learnt some economics, that economic theory does not tell us anything at all about the optimum rate of tax? This is because people with a greater preference for leisure will work less and pay less tax, if you cut the tax. That is why economics and economists are such a pain in the neck.

Lord Newby: My Lords, I could not possibly comment on that last point. I refer the noble Lord, and indeed all other noble Lords, to the extremely comprehensive

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assessment made by HMRC last year, entitled

The Exchequer effect of the 50 per cent additional rate of income

tax

.

Baroness Farrington of Ribbleton: My Lords, the Minister acceded to the point that announcing in advance that tax rates will change leads to a change in people’s habits. Why did the Government give people so long to avoid paying this tax? The proposed spending on facilities for troops returning from Afghanistan, for example, will have to be paid for over a long time. Does the Minister accept that this could be paid for much more quickly if that decision had not been taken?

Lord Newby: My Lords, the noble Baroness will remember that the 50p tax rate was introduced by her colleague Gordon Brown during his premiership and that a long period of notice was given. The rate was not introduced by this Government. As far as paying for troops who are coming back from Afghanistan is concerned, that will be paid for out of general revenue, which is the right way of doing it.


NHS: Mid-Staffordshire NHS Trust

Question

2.53 pm

Asked by Lord Monks

To ask Her Majesty’s Government what steps they are taking to issue guidelines about public statements by NHS executives following the announcement of reviews of hospital care launched following the Francis review into Mid-Staffordshire NHS Trust.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, in the context of Mid Staffordshire, it is right that prompt action is taken whenever there are concerns about patient safety. We agree that there is need for an authoritative voice on the quality of hospital care in the NHS. In future, the CQC, through its new Chief Inspector of Hospitals, Professor Sir Mike Richards, will play this role and provide expert judgment.

Lord Monks: I thank the noble Earl for that reply. I can well understand and share the nervousness, as does the whole House, about some NHS managements after the disasters of Mid Staffs and now Morecambe Bay. Does the noble Earl agree that it is important to avoid a lurch to the other extreme with a sort of shoot first and ask questions later culture? Does he further agree that there have recently been some instances of such a trigger-happy approach at Bolton and Leeds hospitals? In those cases the falsely accused were later completely exonerated. What steps can be taken to avoid panicky reactions which cause destabilisation and demoralisation in important parts of the NHS?

Earl Howe: I agree with the noble Lord’s general point that it is important to avoid oversensationalising or exaggerating a situation. I am not aware that official NHS spokesmen have been guilty of that in either of the two cases that he refers to. If there is cause for concern about any aspect of the NHS, it is surely right

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that that concern is made public. The important thing is for those public statements to be balanced and authoritative. That will be one major advantage of having as Chief Inspector of Hospitals a professional who is as widely respected as Professor Sir Mike Richards.

Lord Walton of Detchant: My Lords, is the Minister aware that, many years ago, the General Medical Council imposed on registered medical practitioners an obligation to report any serious deficiencies in practice or other serious failings which they observed on the part of medical colleagues? It was a kind of medical whistleblowers’ charter. Bearing in mind what happened not only in Staffs but in Furness hospital in Cumbria, is it not time for a similar formal obligation to be imposed on executives and managers in the NHS and in relevant bodies such as the Care Quality Commission?

Earl Howe: My Lords, the noble Lord raises a very current issue. As he will remember, we have introduced a contractual duty to raise concerns. We have issued guidance to NHS organisations on that subject. We have also strengthened the NHS constitution to support staff in the NHS and in social care on how to raise concerns. There is a free helpline to enable them to do that. We are considering in the context of the Care Bill the whole issue of the duty of candour. I feel sure that the noble Lord will make a valid contribution to that debate.

Baroness Jolly: My Lords, communication of complex issues is a vital part of any press department’s role. Will my noble friend the Minister tell the House how large the press teams within the Department of Health and NHS England are, how much they cost the taxpayer and how their effectiveness is managed?

Earl Howe: My Lords, the latest figure that I have for the cost of the Department of Health’s media centre is for 2011-12 and is £2.57 million. I will write to my noble friend as soon as I have more recent figures. She may be interested to know that the names and contact details of each of the department’s press officers are published on the GOV.UK website. Currently, 28 Department of Health press officers are listed there. I do not have to hand the details of the number of press officers employed by NHS England, but, again, I shall write to my noble friend with that information. In the department and in NHS England, internal line management arrangements are in place to measure performance.

Lord Hunt of Kings Heath: My Lords, I refer noble Lords to my health interests in the register. I was very interested in the Minister’s first response in which he agreed that oversensational statements about the NHS are doing great damage. Has he shared that view with his right honourable friend the Secretary of State? Hardly a day goes by without the Secretary of State taking an opportunity to attack various aspects of the National Health Service. Will he take it from me that this is having a very bad effect on morale in the NHS? His right honourable friend should desist, and a period of silence from him would be very welcome.

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Earl Howe: The question surely is whether my right honourable friend is saying things that are true. My judgment is that he is very near the truth if not spot on. Most people will ask themselves whether it is the Department of Health or the press which oversensationalises things. I think I know the answer to that.

Lord Mackay of Clashfern: My Lords, in considering the way forward in inspections, might not prominence be given to local inspection systems? After all, a national system cannot be in all the places at once, whereas local people can see what is going on in their local area. There might be something to be said for strengthening that aspect of the inspection system.

Earl Howe: My noble and learned friend makes an important point. Of course, that will be the virtue of local Healthwatch, which will be the eyes and ears of the local community in a particular area. We have also strengthened the role of governors of foundation trusts, whose job it will be to have an equally up-to-the-minute view of their organisation’s performance.

Baroness Wall of New Barnet: My Lords, I want to reinforce the message put to the Minister this afternoon and tell him what it feels like at the sharp end of the health service. Both my noble friends who have spoken echoed the comments—misquoted or otherwise—made by the Secretary of State. Those comments have caused absolute fear and I am not exaggerating. We had the CQC at our trust on Friday. Our regional person for the CQC is fantastic, the CQC’s reporting is really good and, as noble Lords know, I am supportive of it. However, will the noble Earl please ensure that the messages stop? These people carry out a really important job and if we stop believing that what they do matters, then I do not know where we go. Can we please make sure that the reinforcement of the CQC, with new people involved, will make a difference?

Earl Howe: Ministers have been highly supportive of the current CQC leadership and in no way do we wish to undermine its work. Having said that, if concerns arise about how the CQC has done its job in the past, Ministers have to be candid about that.


Bank of England: National Debt

Question

3.01 pm

Asked by Lord Williams of Elvel

To ask Her Majesty’s Government what proportion of the national debt is currently held by the Bank of England.

Lord Newby: My Lords, Bank of England data state that the Bank of England’s asset purchase facility currently holds £326.3 billion of gilts by nominal value. This was equivalent to 24.1% of the total stock of gilts and Treasury bills at the end of March 2013.

Lord Williams of Elvel: My Lords, if the Minister were to consult Wikipedia, he would see that the figure is rather higher. Something like a third of the national

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debt is now owned by the Bank of England. Given this, does the Minister agree that in time this position must be unwound, and how will this be achieved?

Lord Newby: My Lords, this measure was taken to deal with the heart attack suffered by the British economy and over a period it will be unwound. This is a matter for the Monetary Policy Committee of the Bank of England to manage. At the point at which it feels it right to start unwinding, no doubt it will explain how it plans to do it.

Lord Sharkey: My Lords, the Prudential Regulation Authority has said that the banks must raise an additional £27 billion in capital. Will the Minister tell the House how the Government intend to make sure that this increase in capital requirements will not lead to further reductions in lending to SMEs?

Lord Newby: My Lords, the Government are not responsible for the way in which banks may or may not raise capital. We are very keen for the banks to continue to lend money to SMEs and, indeed, to increase the extent to which they do it. One way in which we hope that this will happen is through increased competition in the banking sector. We hope that current trends in some aspects of that, with some of the new smaller banks lending to SMEs, will continue.

Lord Barnett: My Lords, does the Minister recall that in 2010 the Chancellor forecast that the total national debt as a percentage of GDP would start to fall in 2015? He later changed that to 2018. Now that forecast might need to be altered, given the review that he will announce on Wednesday, and further cuts. When does the Minister expect the national debt itself to start falling?

Lord Newby: My Lords, the noble Lord is right to say that the point at which the national debt will fall as a proportion of GDP has been pushed out by a couple of years. The statements made at the Budget showed that we still believe that it will happen in 2017-18, and the spending round being announced later this week is designed to ensure that we meet that target.

Lord Higgins: My Lords, can my noble friend explain how this process of unwinding is to take place? Does he mean that the Bank of England will sell back the same gilt-edged securities to the market and, in that case, are they likely to have the right degree of duration and so on?

Lord Newby: My Lords, at Question Time with less than three minutes to go, I cannot give a very detailed description. The key point is that the Monetary Policy Committee is committed to working with the Debt Management Office to make sure that, as and when the present situation is unwound, that takes place in an orderly manner so that we do not have undue volatility in the market.

Lord Eatwell: My Lords, what contingency has the Treasury made for repaying to the Bank of England the revenues it currently receives should the Bank incur a loss on its bond holdings?

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Lord Newby: My Lords, the Treasury has always accepted that it might find itself paying back money to the Bank of England. The noble Lord will be aware that the original situation was that the Bank was buying Treasury bills and collecting interest on them. The Treasury was paying the interest to the Bank, which was then sitting on the interest. What we have done, in line with America and Japan, which have broadly the same scheme, is ensure that that money, which amounts to some £19 billion to date, has been transferred back to the Treasury. We have always accepted that there could be a reverse flow as bills are sold back into the market or expire, but that will take place over a significant period. We believe that it is sensible to operate in that way.

Lord Lawson of Blaby: My Lords, following the supplementary question from my noble friend from the Liberal Democrat Benches, can my noble friend the Minister confirm that the requirement on banks to raise more capital will in no way reduce the amount of lending to SMEs? That is just special pleading by the banks. In fact, more capital will be enabled to be lent to SMEs. While he is on his feet, can he also confirm that a good bank/bad bank split of the Royal Bank of Scotland Group as soon as possible would also greatly assist more lending to SMEs?

Lord Newby: My Lords, the noble Lord’s views on the good bank/bad bank split are well known. As he knows, the Treasury is now looking at that. We are hopeful that as economic conditions improve, lending to SMEs will increase in any event, but I have been surprised over the past three years by the extent to which the views of the banks about the demand from SMEs for lending have not been matched by the self-professed requirements of SMEs. I think that at every stage the banks could and should have done more.

National Security Strategy

Membership Motion

3.07 pm

Moved by The Chairman of Committees

That Lord Levene of Portsoken be appointed a member of the Joint Committee in place of Baroness Manningham-Buller, resigned.

Motion agreed.

Energy Bill

Order of Consideration Motion

3.08 pm

Moved by Baroness Verma

That it be an instruction to the Grand Committee to which the Energy Bill has been committed that they consider the Bill in the following order:

Clauses 1 to 4, Clauses 56 to 63, Schedule 6, Clauses 64 to 66, Schedule 7, Clauses 67 to 71, Schedule 8, Clauses 72 to 88, Schedule 9, Clauses 89 to 94, Schedule 10, Clauses 95 to 103, Schedule 11, Clause 104, Schedule 12, Clauses 105 to 117, Schedule 13, Clauses 118 to 132, Schedule 14,

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Clauses 133 to 136, Clause 47, Schedule 4, Clauses 48 and 49, Schedule 5, Clauses 50 and 51, Clause 5, Clauses 21 to 37, Clauses 6 and 7, Schedule 1, Clauses 8 to 20, Clauses 43 to 46, Clause 38, Schedule 2, Clauses 39 to 41, Schedule 3, Clause 42, Clauses 52 to 55, Clauses 137 to 142.

Motion agreed.


Marriage (Same Sex Couples) Bill

Marriage (Same Sex Couples) Bill

Committee (3rd Day)

Relevant document: 4th Report from the Delegated Powers Committee.

3.08 pm

Schedule 4: Effect of extension of marriage: further provision

Amendment 45

Moved by Lord Alli

45: Schedule 4, page 35, line 13, leave out sub-paragraphs (2) and (3) and insert—

“( ) Omit sub-paragraph (1).”

Lord Alli: My Lords, the amendment is boring to most because it deals with pensions issues, but important to some because it deals with what happens to their loved ones once they have gone.

Baroness Anelay of St Johns: My Lords, the noble Lord, Lord Alli, is being very courteous in hesitating a while. If I intervene for long enough, that may have the effect of clearing the Chamber almost altogether, and then we will have a little peace and quiet for him to present his amendment.

Lord Alli: My Lords, this amendment is about addressing an inequality in pensions in relation to survivor benefits that will affect a small number of people in a very unfair way.

Let me try to explain. The Equality Act allows occupational pension providers to ignore the service and contributions of gay employees prior to 2005 when it comes to paying out survivor benefits to civil partners. This stemmed from an original exemption in the Civil Partnership Act that I argued against at that time. This Bill would see the same thing happen to same-sex spouses.

I will say from the outset that the majority of occupational pension schemes have ignored this provision and pay out fully to survivors. They do this because they believe it to be fair and I recognise that and thank them for it. However, there are those that do not. Their reason is mostly cost. This is odd, as the Office for National Statistics calculates that it would cost only £18 million to the private sector.

In a past career, I was the publisher of a magazine with the snappy title of Pensions. In case your Lordships are interested, I also published Planned Savings, Insurance Age, The Savings Market and a statistical compendium called Rateguide. So I am pretty confident that no pension provider can accurately predict how many

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individuals within a pension scheme will be gay, how many will marry under this Bill when it becomes law or become civil partners and how many will outlive their partners, husbands or wives by a significant period. I am also pretty confident that for the one-third of schemes that do not pay out, the actuaries who run the numbers probably have already built in the additional costs associated with this amendment. Pensions actuaries—and I have met many of them—deal constantly in uncertainties around the length of life, the possibility of illness, the number of scheme members who are likely to marry and many more issues. Given that two-thirds of schemes already do, I do not understand why we cannot insist that the rest treat same-sex couples who marry in exactly the same way as heterosexual couples who marry. They have all paid in the same pension contributions.

I know from the other place that the Government think that this is a matter for the schemes themselves. However, in debating amendment after amendment we have discussed the rights of those who disagree with same-sex marriages to be able to do so, and we have resisted giving public servants the right to pick and choose what services they will give to whom based upon their deeply held beliefs. That is effectively what we would be doing here with employers and pension scheme trustees—we would be allowing pension fund trustees who genuinely believe same-sex marriage to be wrong to have the right to create two classes of spouses in their schemes. This legislation would permit it.

If we were not dealing with pensions, which are boring and complicated, but some other form of service, we would not allow this to happen. The cost to the Government is nothing. These changes were made for the public sector in 2004. I ask the Minister not to let the subject matter perpetuate an injustice into this Bill that is completely unnecessary. It is not a huge issue—£18 million does not set the world alight, but it is a kindness that we can give to a few people at the most difficult time in their life. I cannot demand that the noble Baroness do something about it; I can only ask, with the sincerity of those who have asked me to take up this issue, to take it away and see if we can do something about it. We should have solved this issue in 2004. The party opposite probably should have done so in 2010. People have waited far too long for the compassion that they deserve. I hope that we might find that in this Bill. I beg to move.

The Lord Bishop of Guildford: My Lords, I speak with some sympathy for the amendment of the noble Lord, Lord Alli. For once, these Benches are able to say that we put our money where our mouth is. With civil partnership arrangements, the Church of England pension scheme has done exactly as the noble Lord, Lord Alli, has suggested. I think that that is the right way forward and I hope that the Government might give this amendment consideration.

3.15 pm

Baroness Howe of Idlicote: My Lords, treating a gay employee less favourably than a straight colleague under an occupational pension scheme purely because of the gender of his or her partner, is direct discrimination

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on the grounds of sexual orientation. This was the conclusion of the employment tribunal when giving judgment in the case of Walker v Innospec. Rather than heeding these conclusions and reflecting on the inherent injustice that this case addressed, the Government have applied to be joined to John Walker’s case in support of his employer and pension provider. They also seek to legislate in this Bill to extend the discrimination so that it applies not just to civil partners but to same-sex spouses, too.

As we know, this issue is not new. During the parliamentary passage of the Civil Partnership Bill, we considered the position of public service schemes. Initially, the then Labour Government claimed that benefits under such schemes should accrue only in relation to future service, arguing against imposing retrospective burdens. Thankfully, on that occasion the Government had a change of heart and recognised the need to secure equal treatment. The situation was similarly equalised for contracted-out schemes, while the law in relation to the state pension was also changed to allow civil partners to draw on the contribution record of their civil partners. These were welcome concessions but, sadly, the discrimination ultimately banished from other schemes remained in the case of contracted-in occupational pension schemes.

That this inequality remains on the statute book will surprise and sadden many who believed that the Civil Partnership Act gave civil partners all the same legal entitlements as spouses. The reason that the Government have given for extending rather than remedying this discrimination is a reluctance to impose retrospective costs on pension schemes. The fact that this discrimination has already been rectified in relation to public schemes rather undermines the Government’s objection to retrospection. It is far from unprecedented to take such a step but perhaps it is the Government’s position that in relation to public schemes, for which they have more direct responsibility, the basic demands of equality prevail over concerns about retrospection. I would argue, however, that the Government should not only refrain from discrimination but refuse to sanction direct discrimination by the private sector. This is the principle which underlines much of the substance of all our equality legislation.

A society in which the state refrains from discrimination but in which you can be turned away from a restaurant or hotel because you are gay is not a fair society. For decades, the love and commitment shared by gay couples was not afforded any form of recognition by the state. Prior to the Civil Partnership Act gay couples did not have access to the legal benefits available to straight couples in so many areas of life, from property rights to pensions. If this Bill is, as I believe it to be, about correcting these injustices, why are we relying on historic discrimination to justify real, ongoing inequality?

The argument goes like this. Before 2005 we did not formally recognise gay relationships, therefore gay couples cannot expect to receive the benefits they would have received had we awarded their relationships the respect they deserved at an earlier juncture. Discrimination should not beget discrimination in this way. It is surely wrong, and against the whole spirit of the Bill. I

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warmly support the amendment of the noble Lord, Lord Alli, and very much hope that the Government will do what he proposes.


Lord Elton: My Lords, I support the noble Lord, Lord Ali. The best thing I can do is to endorse everything that the right reverend Prelate has said. If this is a Bill about equality, we have to treat people equally. As that is what we are told it is, that it is what I expect will happen.

Baroness Lister of Burtersett: My Lords, a very powerful case has been made. I simply want to draw attention to what the Joint Committee on Human Rights has said on this and to the oral evidence that the Minister gave to the committee, where he talked about wanting to find the fairest place to put same-sex married couples within the pensions framework. What we have heard this afternoon shows that this is not the fairest place. I would be very interested to hear how the Minister can justify this discrimination as being the fairest place.

When he gave evidence to us, the Minister gave some large sums and made it all sound incredibly complicated. He talked about £3 billion to £4 billion. It is not at all clear to me where those sums come from. It would be helpful if the Minister could clarify why such large sums are being bandied around. The committee called for a full review of pension provision in relation to survivor pension benefit entitlements of same-sex married couples and civil partners to ensure that there is no unjustifiable discrimination in pension scheme provisions. What we have heard sounds like unjustifiable discrimination. We call on the Government to provide precise information about the potential costs of equalising pension rights.

Baroness Barker: My Lords, I rise briefly to support this amendment. When the Civil Partnership Act went through, it was interesting to note that employers were already ahead of the law and that a number of private schemes already recognised partners. When the civil partnership law was enacted, many more then did so. It is fair to say that in this House there are people who may have forgotten more about pensions than I will ever know. However, in the greater scheme of things, this is not very much money in terms of the overall pension contributions, yet it means an immense amount to individuals; those people who are doing all the things that we would encourage others to do, like being judicious in provision for their later life. It seems to me wholly wrong that they are not rewarded in the way that every other person would be if they did the same thing.

Baroness Royall of Blaisdon: My Lords, as my noble friend said, pensions might sound boring but, as the noble Baroness, Lady Barker, said, pensions are extremely important to individuals. They do affect quality of life, so this is a very important amendment.

Liberty, to which I am grateful for its excellent briefing on this issue, is surely right in saying:

“This is an unnecessary and counterproductive anomaly in a Bill which otherwise makes landmark progress in equally respecting the rights of gay people”.

The same has been said from all Benches today.

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Naturally, I recognise the anomaly that exists between the treatment of pension rights for married and same-sex civil partners. However, this Bill not only continues that discrimination but it takes forward the same distinction to same-sex married couples: in terms of these pension rights, they would be treated differently from opposite-sex married couples. This uneven treatment would, therefore, be continued. As my noble friend cogently argued, this should be an opportunity to get rid of the current anomaly rather than to extend the discrimination.

I was struck by what I thought was an extraordinary answer from the Secretary of State to the Joint Committee on Human Rights in relation to compatibility with Article 14 of the European Convention on Human Rights on this issue. She said that the reason for treating same-sex-marriage couples as civil partners is that they could have the option either of getting married or of forming a civil partnership—and that the legislation therefore treats them equally.

This is sort of true but it goes against the whole ethos of this Bill. As my noble friend said, arguments which are made against this on the principle of retrospection are misplaced. It is clear that actuaries base forecasts on a wide range of assumptions which are not necessarily proved to be correct. In its report on the Bill, the JCHR also noted: that,

“Depending on the provisions of the scheme, pension rights of same sex spouses may not be the same as pension rights of opposite sex spouses, which may give rise to an issue as to whether this is compatible with Article 14 of the ECHR in conjunction with Article 1 Protocol 1”.

It has already been noted that the Government are currently fighting an appeal against the decision to uphold this view in the case of John Walker. However, if legislation is not amended to take account of the Walker judgment and the reliance on the European Court findings, it is likely that further action will be taken by same-sex married partners. One cannot blame them. They will seek similar redress in the courts to ensure that they, too, can access pension rights in an equal way. That would be regrettable.

Of course, I recognise that resolving this anomaly is not without cost but the real frustration is that we do not have the requisite information to debate the issue with knowledge of its full consequences. When responding to a similar amendment moved in the other place, the Minister, Helen Grant, said that,

“we do not believe that it would be right to put on schemes the significant additional and retrospective financial burdens that would arise from removing the Equality Act exception”.—[

Official Report

, Commons, 21/5/13; col. 1144.]

However, how significant those burdens are is unclear. The House of Commons Library estimated that the potential additional cost to private contracted-in schemes would be £18 million. That is a significant figure by anyone’s estimates, but when compared with the total value of assets under management in the pensions industry it amounts to just 0.006%—as was pointed out by Mr Mike Freer on Report in the Commons. I accept that for a handful of small employers or charitable schemes this may have a disproportionate impact. However, the Government have accepted that around two-thirds of schemes already treat opposite-sex marriages

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and civil partnerships equally. I pay tribute to all those organisations, including the Church of England, which do the right thing.

In evidence submitted to the JCHR, the Minister for Sport and Tourism, Hugh Robertson, stated that,

“We estimate that in total the impact on both contracted-in and contracted-out private sector schemes could amount to as much as £90 million. There would be very substantial costs for public service schemes”.

Will the Minister confirm to the House the costs, additional to the £18 million identified and widely accepted, on which £90 million figure is based, and the costs for public service schemes to which the Secretary of State was referring given the 2005 regulations identified by the Commons Library? On these Benches, we believe that the financial impact of the amendment would be relatively insignificant. However, the Secretary of State is quite clear that there would be a cost. Therefore, I echo the calls from around the Chamber and from the JCHR for the Minister to publish the full evidence on which the Government based their assessment as soon as possible so that we might approach Report armed with the fullest possible view of the consequences of this amendment—an amendment which I fully support.

Baroness Stowell of Beeston: My Lords, I am grateful to the noble Lord, Lord Alli, and all others who contributed to this debate. I understand the strength of feeling behind this amendment and the speeches that have been made. Anticipating this debate, I decided to speak directly to the Pensions Ministers today and so was able to come properly armed with full information.

First, and as I have said in other contexts and in our other debates on the Bill, in making it possible for same-sex couples to marry we have sought to build on existing legislation and not amend the structure of marriage law. The point is that we focused on allowing same-sex couples to marry. In the context of pensions, we are following what already exists for civil partnerships, as has been referred to by several noble Lords in the debate. The introduction of civil partnerships was, as we have acknowledged several times over the last few weeks, a fundamental change in our society. It was a huge step forward. The Act was complex and covered a wide range of different issues. The Labour Government at the time decided to provide this exception for defined benefit pension schemes which are not contracted-out of the state second pension. They clearly did so for a principled reason: Governments do not generally make changes to pension schemes retrospectively. That is the general approach that is taken. That decision was made in 2005 during the passage of that Bill. The noble Lord, Lord Alli, referred to the Equality Act 2010 and suggested that it had then been open to this Government to remove the exception. It is worth reminding the noble Lord and the House that the Equality Act was passed under the previous Government. It was not a Bill that we were still debating and deciding after the election—it predated this Government.

3.30 pm

Let me get to the specifics of the point in hand. I would like to remind noble Lords listening to this debate who may not have been following it in detail

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that we are discussing defined benefit schemes and survivor benefits—quite a specific aspect of pensions. As has been acknowledged, defined benefit schemes are struggling to survive. They are decreasing in numbers in terms of how many are still open to new members. The current economic climate has put companies sponsoring such schemes under great financial pressure. Clearly, we have to be mindful of that when we consider adding anything extra to their costs. As regards survivor benefits and this particular point, it is worth saying that while the impact of the change that the noble Lord, Lord Alli, is putting forward might be small for some large pension funds, it could be quite significant on a small pension fund. We would need to be very clear about who is being affected by such change.

As the noble Lord, Lord Alli, and the right reverend Prelate have acknowledged, some of the defined benefit schemes in existence are very generous and go beyond the statutory minimum in terms of what they provide for survivor benefits. That is a matter for those individual schemes, and the benefits provided by pension schemes are very much decided by the schemes themselves. Some schemes do not provide survivor benefits for any members—they are not always offered to opposite-sex couples. The noble Lord, Lord Alli, said that trustees may be able to decide which rules to apply to survivors based on their own personal belief. It is important to say that the decision about which rules to apply to survivors is based on various financial assumptions and not on their beliefs.

It is difficult to make a detailed estimate of the cost to pension schemes if this change in different treatment were made, because we do not have all the relevant data and information. However, using the 2009 ONS survey and other information, we have estimated that removing this exception could increase scheme liabilities by around £18 million in present-day values. The noble Baroness, Lady Lister, referred to remarks that were made by the Pensions Minister when he was giving evidence to the Joint Committee on Human Rights and the additional costs that may be effected by changes to pension schemes. The point he was making was that while there is a specific cost associated with the amendment that we are discussing today, a range of different measures fall under the heading of equalisation that could potentially extend the right to civil partnerships to opposite-sex couples. That is how you could eventually get to an estimated cost of £4 billion; it happens as you move from one thing to the next.

The noble Baroness, Lady Royall, asked about contracted-out schemes and the estimated cost of making changes to them. The statutory survivor requirements do not apply to all the benefits provided by the scheme. Therefore, our conservative estimate is that the direct costs for those schemes would be in the order of £70 million. If you add what we estimate for the contracted-in schemes, you get to £90 million.

It has been suggested that the Government should undertake a survey to obtain more exact information on the potential costs. Although we might be able to reconfirm which schemes go back before 2005 in terms of their accruals, obtaining the detailed data for those that do not to enable us to calculate the costs of removing the exception would be complex. Although I

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referred to the 2009 ONS survey, the kind of survey necessary to be able to identify the different schemes that might be affected in different ways has not previously been carried out. A survey has not been done that could be repeated; it would have to be done from scratch.

To be fair, however, regardless of the scale of the cost, the Government believe that we should not impose the additional unforeseen obligations on schemes on the principle that we are not introducing retrospective changes. As we have said, these private schemes are funded by businesses, and we do not believe that it is for the Government to say what discretionary benefits they should offer.

The noble Baroness, Lady Howe, talked about public sector schemes that provide surviving civil partners with the same survivor benefits as those given to widowers. As she knows, the public sector schemes are funded by the Government, and it was the previous Government’s decision, as funder of the public sector schemes, to take that decision with the financial consequences. It was not for the Government to impose that on other schemes for employers. When all of this was considered in great detail some years ago, the Government accepted the costs and liabilities for the public sector schemes but did not feel that it was right to impose that same level of financial burden on the private sector.

As we all know, the pensions system as a whole is full of differences in treatment as a result of changes in society and social attitudes. The principle of the exception is to introduce those changes going forward, not retrospectively, as in this case. As time goes on, that difference in treatment will be diminished.

Of course, I realise that I am not providing the kind of response that noble Lords had hoped for. However, I hope that I have at least provided an explanation as to why the Government have taken this decision. It may also be helpful for me to inform the House that the exception, as in this difference of treatment, will be considered by the Employment Appeal Tribunal in the case of Walker—somebody who sought to appeal against their own pension scheme provider—and the Government have been added as an interested party in that appeal. We need to wait and see the outcome of that case. However, I hope that the noble Lord, Lord Alli, feels able to withdraw his amendment at this time.

Lord Alli: My Lords, I thank all noble Lords who spoke in support of this amendment, in particular the noble Baroness, Lady Howe of Idlicote, who I know stayed late the other night in the hope that this amendment would come up. I also thank the Minister, in particular for taking the time to speak to the Pensions Minister and for taking a personal interest in this.

To lose your husband, wife or long-term partner is by any account a terrible experience. It is a time when you are least prepared to be able to deal with the complexities of pension scheme trustees. You just want to be left alone with your grief. Putting people through the court system to try to equalise this does not feel particularly humane. We all want our loved ones to be provided for once we go. To rely on the good will of the two-thirds of occupational pension

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schemes that are doing the right thing, or, if one is unlucky enough to be in the third, having to fight a battle to receive the benefit paid for by their partner, again seems wrong.

I am only asking the Government to show a bit of compassion for what is a tiny amount of money. They have already conceded the principle in the public sector. I ask the Minister to reflect carefully on what all noble Lords have said in this debate and to see whether it might be the Government’s position to resolve the anomaly in this Bill. I beg leave to withdraw the amendment.

Amendment 45 withdrawn.

Schedule 4, as amended, agreed.

Amendment 46 not moved.

Clause 12 agreed.

Schedule 5 : Change of gender of married persons or civil partners

Amendment 46ZA

Moved by Baroness Barker

46ZA: Schedule 5, page 40, line 6, after “full” insert “or interim”

Baroness Barker: My Lords, in moving Amendment 46ZA I will also speak to the other amendments that are grouped with it. These are a bunch of somewhat technical amendments that deal with a very difficult situation. Until now, if a person was to change their gender, there was no way in which they could remain in the marriage in which they had lived until that point. For some people in that situation, that was extremely difficult because they continued to love the person to whom they had been married. Some couples, in particular those to whom their faith was very important, found that the inevitable move to divorce was wrong. There is a widespread welcoming of the fact that in this legislation it is now possible for two people in that situation to remain in a marriage, albeit one that is now same-sex.

However, in the process of doing that the Government have, in this Bill, set up another problem. Previously, under the Gender Recognition Act 2004 and the Civil Partnership Act 2004, when a person was going through the process of changing their gender, they could apply for what was known as an interim gender recognition certificate. A panel would recognise that they were going through the process of transition, and as I understand it it was almost like the equivalent of a heterosexual couple receiving something like a decree nisi because it was one step towards what would inevitably be a divorce. If a spouse indicated that they were in agreement with that, the matter could simply go ahead.

The problem arises when a non-co-operative spouse wishes to put a block on that process. For understandable reasons, spouses may be deeply unhappy with the situation in which they find themselves, and they can in effect block the process. I should say that I am

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deeply indebted to the people who have explained this to me at considerable length, and I apologise to them if I am not putting their case as well as I might.

An important piece of information for me was that a spouse cannot prevent a person from having gender reassignment surgery. They can only stop or hold up the process of recognition of somebody in their new gender, but they cannot prevent them from having the surgery. Therefore, sometimes when spouses are upset and angry they block the process of gender recognition. A common way to do that is by initiating divorce proceedings and then taking no further action so that the whole process is stopped. That can lead to a lot of difficulty, not least with the legal recognition of a person in transition, their ability to work and some aspects of their finances, although not child maintenance payments.

3.45 pm

These amendments would allow a spouse to maintain a veto—they do not seek to get rid of the veto—but limit the amount of time over which it could have effect to approximately six months. This would mean that a spouse could stop the process going ahead but not indefinitely. If a person is going through gender reassignment, they can apply for a gender recognition certificate. If they get an interim certificate, their spouse is notified and that in effect starts a clock ticking for six months. If at the end of the six months there has been no action, the person going through the transition can apply for an annulment.

The amendments would do two things. First, they would give a spouse the right to be notified. I understand that at the moment the first time a spouse may receive any notification that a partner is going through gender reassignment is when court papers are delivered seeking an annulment. These amendments would provide that the person going through the transition is obliged to notify their spouse of that. Secondly, after six months both parties would have an equal right to initiate divorce proceedings.

What does all this mean in non-technical language, and why should we do it? It would mean that a very difficult and painful situation could be brought to an earlier conclusion after six months, although in practice I think it would take about two and a half years, rather than be left to get worse indefinitely or for a very long period. This measure is the equivalent of what the Government have tried to do for heterosexual people in encouraging them to seek mediation and reach agreement between themselves as far as possible rather than their having to rely on the law and prolonging a situation that is wholly unwanted in many cases. I beg to move.

Baroness Gould of Potternewton: My Lords, I put my name to these amendments, having initiated this debate at Second Reading, because I believe that the Bill is morally wrong. I appreciate that these are complex issues—the issue that we are discussing is particularly complex, as the noble Baroness, Lady Barker, illustrated—which are difficult to resolve, but the difference they can make to a transperson’s life cannot be underestimated. I illustrate this by referring to an e-mail I received after my speech at Second

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Reading. It was from a transperson who said that she cried tears of joy. I am sure that she was not crying tears of joy at my speech but at the fact that somebody had addressed an issue about which she felt so strongly and which was affecting her life. That is terribly important.

As the noble Baroness, Lady Barker, also said, the Bill identifies two anomalies which govern transpeople’s lives. The legislation provides for the removal of the requirement for married transpeople who wish to apply for gender recognition to be single at the point of gender recognition. Further, a concession has been made as regards spouses’ survivor pensions, which removes a further major concern for many transpeople.

The passing of this amendment would get rid of a third anomaly for transpeople in existing marriages. As it stands, the Bill removes the obligation on a transperson being in an existing marriage, although it does require a civil partnership to be converted to a marriage before application, as otherwise an opposite-sex civil partnership would be created. However, the Bill has now introduced the concept that the non-transitioning spouse must give formal consent. It adds the requirement that spouses now have to consent to the change of their partner. No other area in law—this is a change to the structure of law—requires spousal consent to any change within a marriage. There is no need for spousal consent to end a marriage, move abroad, financially destabilise the family, apply for distant jobs, or for medical treatment. Formal spousal consent that can veto a partner’s gender recognition is a new concept in law.

The assumption in marriage law is that spousal consent is assumed. If the spouse does not consent to the partner’s actions, the spouse has the opportunity to initiate divorce proceedings. What we have now certainly goes against the view of most spouses. It may have been objected to by some but until 2003-04 it was routine for gender identity clinics to require spousal consent for the treatment of married transpeople, until it was pointed out that this was potentially a breach of the transperson’s human rights. We have the same problem again here.

The amendment has been carefully crafted. Its value is that the determination of someone’s gender will be a matter for the individual concerned and the state. No other individual is involved. A spouse may choose to expedite the applicant’s full gender recognition by including a statutory declaration of consent. However, a spouse cannot prevent an applicant’s full gender recognition by more than a year by withholding that consent. That is important. They still have rights but they are limited. In respect of interim gender recognition certificates, the Gender Recognition Act currently allows the gender recognition panel to issue interim gender recognition certificates to those transpeople who were married or in civil partnerships at the point of application.

The amendment allows an applicant in an existing marriage or civil partnership to apply for an interim gender recognition certificate, which would allow annulment or divorce proceedings to commence if required. Further, it would allow an individual who has been granted an interim gender recognition certificate to change their gender under the Act, after a predetermined period has elapsed. The Bill makes

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no distinction between marriages where both spouses wish it to continue and marriages where divorce proceedings have commenced. Therefore, we seem to have created the ludicrous situation that in the absence of a decree absolute, the divorcing spouse will still be required to give consent to the transperson’s gender recognition, no matter how long it has taken to get to that point in the divorce. Marriages can break down when a transperson reveals themselves to be trans. There are many points at which either spouse may decide that the marriage can no longer continue, such as the point of revelation, when treatment commences, when the transperson goes public, the point of name change or when transformation surgery occurs. All these can result in acrimonious proceedings that can drift on for many years. Known cases have gone from 17 months to six years. The amendment would avoid that situation.

The requirement for spousal consent creates one further flashpoint for couples in what is already a difficult situation. The amendment overcomes that problem as spouses can no longer obstruct but only delay by a known timescale someone’s gender recognition. That is the crux of the amendment. All the objections raised in the Commons seem to have been satisfied. It is fair to both partners and does not disadvantage the spouse. Again, it is utterly wrong in principle to hand someone’s right of identity to someone else who may be hostile to that person. It is irrelevant whether it is a widespread problem or not. That argument should not be used when talking about justice and fairness for any individual. I trust that it will not be used as an explanation for opposing the amendment. I approached this amendment with some hope, and I have enormous respect for the way in which the Minister has responded to opposition to the Bill. She has listened and responded to many of the points raised. But, on this occasion, I feel that that listening has stopped. Many people, not only transpeople, will feel betrayed and discriminated against, and there will certainly be no tears of joy if this amendment is not accepted. It is discrimination in a Bill that is designed to do just the reverse.

When the Gender Recognition Act was passed in 2004, there was no mention of spousal consent. I would be grateful if the Minister could tell the House why this has suddenly emerged. Can she give evidence of spouses having requested a veto? I understand that some spouses have said that they want to be informed, but being informed is substantially different from consent. It would also be helpful to know the view of the gender recognition panel, because now there will be additional documentation for the panel to process, and that will certainly have financial implications.

The transperson potentially gains significantly by gender recognition and therefore may lose significantly by not being able to achieve it. The spouse loses nothing by their partner gaining gender recognition and gains nothing by withholding consent. Does the Minister not see that this is really to do with equity of rights? Leaving the Bill as it stands and without this amendment will mean that the Government are saying to the trans community, “Somehow or other, you seem to be second-class citizens”. It will establish a precedent which may be used elsewhere. I appeal to the Minister to rethink her opposition to this amendment because I

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am sure that the issue will not go away. It is a matter of principle, and if her opposition has anything to do with the wording of the amendment, we would be very happy to bring it back on Report with new wording.

Baroness Butler-Sloss: I, too, support these amendments. When I was a family judge, I tried a number of what for me were the saddest of all cases: where one spouse had entered into a transgender situation, particularly before the Gender Recognition Act brought justice to those people. However, that left the other spouse confused and distressed. I remember a particular case in which the wife sat at the back of the court in floods of tears when what was being discussed was how the father could become an auntie because he was in the process of changing his gender.

These are incredibly sad cases for both parties, but particularly for those who are left behind under the Gender Recognition Act. I agree totally with the noble Baroness, Lady Gould, that those who change their gender require fairness, proper human rights and recognition, but this House also needs to remember those who are left behind. However, in doing that, there is no point in retaining a marriage that cannot exist unless it exists in a new dimension.

The two points made to me by the noble Baroness, Lady Barker, shortly before the House sat today are extremely important. The first is that there should be a notification of the fact that the gender recognition spouse is making this application. I understand that the spouse who is left behind does not necessarily know that the application is being made. That is an injustice to that person, and it is one of the important elements in this group of amendments. The second point is this: if people cannot bring themselves to be married as a same-sex couple, as they will be able to in the future when this Bill becomes law, because the left-behind spouse cannot tolerate that, they really should not allow the marriage to continue indefinitely. It does not help either party that it should run on. The suggestion in this group of amendments—that there should be a cut-off point at six months, as there is in every other part of this—seems only just. People can then get on with bringing the marriage, which would by definition have failed, to an end. For these reasons, again, I support these amendments.

4 pm

Baroness Thornton: My Lords, I congratulate the Government on meeting two out of the three issues that the Bill has raised for transgender people, and doing so in a sensible and calm fashion. The only outstanding issue left is the proposal being tested here—that same-sex marriage legislation gives spouses the power of veto over whether a transgender partner can have legal recognition of a change of gender. The noble Baroness, Lady Barker, my noble friend Lady Gould and the noble and learned Baroness, Lady Butler-Sloss, have explained the issues perfectly well. I do not think they are complex; they are very straightforward. This is an unfairness and injustice that needs to be balanced out and dealt with in the Bill.

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It is an irony and a great shame that, when enacted, the Bill will affect the human rights of transgender people and take them backwards in the UK. I do not think that is the Government’s intention, and I am sure that it is not the intention of the Minister. From these Benches, we think it is important to resolve this issue, which affects a minority of people but, as the noble and learned Baroness, Lady Butler-Sloss, said, can have a very painful and lifelong effect. The Government need to address it. I hope that between now and Report, we will be able to resolve the issue.

Baroness Stowell of Beeston: My Lords, I am grateful to my noble friend Lady Barker for introducing this group of amendments and also to all who have spoken in the debate today. It is an incredibly sensitive issue, and I am mindful of that in responding. The noble Baroness, Lady Gould, made a powerful speech and I want her to know that I was listening carefully to her arguments. The Gender Recognition Panel has been consulted throughout as we have been drafting the Bill and it has not raised any concerns or matter that we have not been able to address.

Before I get to the detail of the amendments, let me be clear from the start—in a way it is a response to a point made by the noble Baroness, Lady Thornton—that our concern in the Bill has been to ensure that as many couples as possible are able to stay married if they wish to do so following one or both spouses obtaining gender recognition. We are proud to make that possible in the Bill and it is something that we very much support.

The provisions in the Bill allow the spouse of a transperson to agree and consent to their marriage continuing as a same-sex marriage after gender recognition. It is not a block or a veto; they cannot prevent their spouse obtaining gender recognition. It is important that I make that point. I will explain in a little bit more detail, but nobody is able to stop anybody getting their gender recognition certificate—of that I can be very clear.

The Bill seeks to strike a fair balance between the Article 8 rights to respect for the private and family life of both spouses. The trans spouse has a right to be granted their gender recognition without unnecessary delay, but the non-trans spouse also has a right to have a say in the future of their marriage following their spouse gaining gender recognition. We have, during the passage of the Bill, listened carefully to interested stakeholders from the trans community. I have been glad to meet some representatives with my honourable friend Helen Grant, the Minister from another place. I am grateful to those who have been involved in the preparation of these amendments, and for the time and effort that have gone into them because I know that has been considerable.

I will turn specifically to what the amendments seek to do. The first aspect is the limit of six months in proposed new subsection (3A), relating to both spouses’ power to initiate annulment proceedings following the issue of an interim gender recognition certificate. The point is that there should be a limit of six months for annulment proceedings to start. In response to a point made by my noble friend Lady Barker and the noble and learned Baroness, Lady Butler-Sloss, I want to make it clear that if a spouse refused to commence

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annulment proceedings, the trans spouse would be able to do so. In the Bill as it stands, either spouse in the marriage is able to start annulment proceedings. It is not just in the hands of one spouse.

In terms of the second time limit of 12 months in proposed new subsection (3A), once annulment proceedings have been commenced, it is for the court to bring the marriage to an end and, upon that occurring, to issue a full gender recognition certificate to the applicant. To require the Gender Recognition Panel to issue a gender recognition certificate while court proceedings are ongoing would be to require the panel to usurp the functions of a superior court. Where one spouse is deliberately delaying the annulment process, the courts already have the power to deal with this. I will be absolutely clear: either spouse is able to bring forward annulment proceedings and once they start, they are in the hands of the court. Most annulment proceedings take three months—or, from the very outset, six months I think—but it is the court that will ensure that they continue in line with the proper process.

There is another element to the amendments, which I am not sure my noble friend covered in her introductory remarks, but to which I will respond. Proposed new subsection (3B) relates to civil partnerships. The Government do not believe that removing the right of spouses to have a say in the future of their marriage following conversion and gender recognition strikes the proper balance between the rights of both spouses. The agreement of a non-trans civil partner to the conversion of their civil partnership to a same-sex marriage is one thing—it is not the same as their agreement to the resulting marriage continuing as an opposite-sex marriage following their spouse’s gender recognition.

That covers the situation where a couple are already in a civil partnership and one of them has gender reassignment. If the non-trans spouse agrees to transfer the civil partnership to a marriage, to allow their certificate to continue, that is not the same as the non-trans spouse agreeing at the same time that they want to continue to be married to somebody who would then be of the opposite sex but who was of the same sex when they first entered into a civil partnership.

The Government and I are always prepared to listen and to take great care in responding to points raised in debate. It is probably worth mentioning that we have already made an amendment to the Bill to protect the pension rights of transpeople who receive a gender recognition certificate and are then in a same-sex marriage, so that they retain the same rights as if they were married to somebody of the opposite sex. Following the debate in the other place on the fast-track procedure, we have been considering this carefully, and I hope very much to bring forward something positive in that area on Report.

The noble and learned Baroness, Lady Butler-Sloss, and other noble Lords asked whether a spouse is currently notified at the point of application. Under current rules, a spouse is not notified of her trans partner’s gender recognition application. This is because the marriage must be annulled before a full gender recognition certificate can be issued. The process, as it stands, requires somebody to have annulled their marriage

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before it is possible to get a full gender recognition certificate. However, I have only just been made aware of that issue and would like to follow up with a letter to the noble and learned Baroness, to my noble friend and to other noble Lords to explain the point in more detail.

I regret that I am not able to accept the amendment, but I hope I was able to give noble Lords the assurance they quite rightly seek. This is not about anybody having more control than the other person over the future of their marriage; it is about ensuring that there is an equal share and balance of rights between the two parties, and that it certainly is not just one spouse who has the right to annul the marriage.

Baroness Thornton: I do not think the noble Baroness has actually addressed the issue of one spouse having the right of veto. I think that is very important. Spousal vetoes are spousal consents, which we got rid of in this country many years ago. A husband actually had to consent to his wife divorcing him, for example. I ask the noble Baroness to look at this most carefully. At the moment the Bill is in danger of reintroducing into British law a new matter—the right of one spouse to veto the actions of another—which we got rid of many years ago.

Baroness Stowell of Beeston: I hoped that I had responded to that, because we are clear that one spouse is not vetoing somebody else’s rights. If the transperson in the marriage wants to go for full gender recognition and receive the certificate, they are absolutely entitled to do that. However, if the person to whom they are married does not want to remain married to them, then they have to make a decision about the future of their marriage. We argue that for the non-transperson, whether they wish to remain married to somebody who has gone through gender reassignment is quite a fundamental thing to have to consider. This is not saying that somebody who wants to reassign their gender is not able to do so. The issue is whether they are able to remain in the same marriage. The person to whom they are married also has some right to decide whether they want to remain married to somebody after that person has changed their gender.

Baroness Thornton: The point here is whether the effect of this is that the transperson cannot complete their transition. That is the point the Minister is not answering.

Baroness Stowell of Beeston: Forgive me, but I think I am. I am saying that if someone wants to go ahead with gender reassignment and their spouse does not agree to remain married to them, then it is open to them to start annulment proceedings, as indeed it is to the spouse who no longer wishes to remain married to them. Both of them have the right to start an annulment proceeding, and the person who wishes to change their gender and receive a full certificate can do that. It is not about them being unable to change their gender. They have the right to do that, and nobody is stopping them doing that. However, if the person to whom they are married does not wish to remain married, sadly

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they have to make a choice. They have to decide, and it must be their choice. It is not a choice that the state can make for them.

This is an incredibly difficult situation, as has been made clear in the course of this debate. Fundamentally, it concerns the decision of two people about their future. Each person has equal rights in the future of their marriage, but they must decide for themselves. These amendments seek to institute a time limit after which the state decides for them. It is not for the state to decide who people should be married to.

Baroness Butler-Sloss: I would like to ask the Minister about notification. Clearly, nothing can happen until the interim certificate is provided. I understand that at the moment it is possible for the spouse not to know anything about the gender reassignment application. The sooner the other spouse knows about it the better, because mediation may be required. One does not want the parties to be in dispute, if possible. The shock to the person who finds that, for instance, her husband is no longer going to be her husband is enormous. The quicker she knows about it the better, in order to help finish the marriage decently and quietly. I understood the Minister to say that this could not be done because other proceedings had to come first. I am asking only for notification at the earliest possible stage that an application is being made. There can be nothing wrong with that, because it will do nothing other than make it certain that both spouses know what is going on.

4.15 pm

Baroness Thornton: We are talking here about a balance of rights. I think that I would like guidance, which I would be happy to take in writing or in a meeting. The objections of either spouse might be based on religious conviction, for example, although other objections are possible, too. Equalities cases such as those of Ladele have shown that Article 9 rights need to be balanced with other rights. In this scenario, are the Government explicitly placing someone’s Article 9 rights above their partner’s Article 8 rights? I am not asking the Minister to respond to that question now, but I would like that to be part of this discussion.

Baroness Stowell of Beeston: I certainly accept the noble Baroness’s invitation to respond to her on that point either in a meeting or in writing. However, I can say quite clearly that the rights at issue here are only Article 8 rights; that is, each party’s right to a private family life. I shall of course respond in detail to that.

On the point raised by the noble and learned Baroness, Lady Butler-Sloss, under current rules a spouse is not notified of her trans spouse’s gender recognition application because the marriage must be annulled before a full gender recognition certificate can be issued. In order for somebody to obtain the certificate, they would already have had to deal with the issue of their own marriage, because it is not possible in current law for two people of the same sex to be married.

I take the point that the noble and learned Baroness made about there being a need for spouses to be notified of changes sooner rather than later. Clearly, if

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the relationship still exists, there will in most cases be a physical awareness of the change. However, since the noble and learned Baroness has raised a serious point, as has my noble friend, I should like to consult my colleagues on it and follow it up in writing.

Baroness Barker: My Lords, I thank everybody who has taken part in what has appeared at times to be a very technical debate. There are veterans in this Chamber of the Gender Recognition Act and they will understand that, although this is a technical subject, it is also a very human one. I thank the Minister for the way in which she answered the questions which were put to her, for she deserves enormous credit.

I did not take part in debates on the Gender Recognition Act, but I know that the rights of the person making the transition were very much to the fore at the time. Therefore, matters such as notification of their spouse were perhaps not as problematic as they seem now. I absolutely take the point made by the noble Baroness, Lady Stowell, that this not about preventing anybody making a transition but about trying to add to the tools that a couple has at its disposal to sort out their relationship. It is about enabling people to address issues at an earlier stage than they have done in the past. It is also about not allowing proceedings to drag on.

We are now several years on from the passage of the Gender Recognition Act, so we are now beginning to see people coming to us with experience of it, including some who have found themselves in this position. At the end of the day, these are families, quite often with children involved, and it is important that when there is a bitter and difficult situation it can be addressed as swiftly as possible. Perhaps these are situations in which it is never possible for everybody to be happy, but enabling matters to be resolved more quickly is beneficial for all in the end. I beg leave to withdraw the amendment.

Amendment 46ZA withdrawn.

Amendments 46ZB to 46ZG not moved.

Schedule 5 agreed.

Clause 13 agreed.

Schedule 6 agreed.

Clause 14 : Review of civil partnership

Amendment 46A

Moved by Baroness Deech

46A: Clause 14, page 12, line 6, at end insert—

“(1A) The review under subsection (1) must deal with the case for amending the criteria in the Civil Partnership Act 2004 which define the eligibility of people to register as civil partners.

(1B) The review must in particular consider the case for extending such eligibility to—

(a) unpaid carers and those they care for, and

(b) family members who share a house, who have cohabited for 5 years or more and are over the age of eighteen.”

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Baroness Deech: My Lords, the co-signatory to this amendment, the noble Baroness, Lady O’Cathain, has asked me to give her apologies. She is chairing the House’s EU Sub-Committee B at this moment. However, she asked me to make clear her total support for this amendment. It is nine years to the very day since the House agreed to her amendment extending civil partnerships to family members, especially in view of the financial disadvantage they suffer under, for example, inheritance tax. At that time, the Government acknowledged the importance of this issue, yet the amendment was overturned in the other place and still nothing has been done. Because there is to be an urgent and wholesale review of civil partnerships, we firmly believe that family members and carers should be first in the queue to benefit.

I have tried to persuade the House more than once to take heed of the unfair way in which carers and siblings are treated in our law, compared with those in a sexual relationship. Clause 14 provides for a review of civil partnerships and a chance at last for fairness. When the Civil Partnership Bill was passing through Parliament, an amendment to it was adopted in this House by 148 votes to 130, which would have had the effect of extending the availability of civil partnership and the associated inheritance tax concession to family members within the so-called “prohibited degrees of relationship”. The amendment was reversed when the Bill returned to the other place.

During the course of the debate in this House, the noble Lord, Lord Alli, said:

“I have great sympathy with the noble Baroness, Lady O'Cathain, when she talks about siblings who share a home or a carer who looks after a disabled relative. Indeed, she will readily acknowledge that I have put the case several times—at Second Reading and in Grand Committee—and I have pushed the Government very hard to look at this issue. There is an injustice here and it needs to be dealt with, but this is not the Bill in which to do it. This Bill is about same-sex couples whose relationships are completely different from those of siblings”.—[Official Report, 24/6/04; col. 1369.]

In the same debate, the noble Lord, Lord Goodhart, said:

“There is a strongly arguable case for some kind of relief from inheritance tax for family members who have been carers to enable them to continue living in the house where they have carried out their caring duties. But that is a different argument and this is not the place or the time for that argument. This Bill is inappropriate for dealing with that issue”.—[Official Report, 24/6/04; col. 1374.]

During the course of the debate in the Standing Committee of the House of Commons, Jacqui Smith, the then Deputy Minister for Women and Equality, said:

“We heard a widespread agreement from Members across almost all parties that the Civil Partnership Bill is not the place to deal with the concerns of relatives”—

although she agreed with them—

“not because those concerns are not important, but because the Bill is not the appropriate legislative base on which to deal with them”.—[

Official Report

, Commons, Standing Committee D, 19/10/04; col. 8.]

There is no dissent from the desirability of extending a legally recognised partnership of some sort to related and carer couples. However, we are repeatedly told—whatever Bill is before Parliament—that it is not the right one in which to address the issue. That is not a

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good argument when their human rights are concerned. The situation is now even more pertinent and pressing, because the unfairness has increased. Civil partners and married couples, gay or straight, will be treated in law far better than, for example, two elderly sisters who share a house or an elderly father and the daughter who cares for him.

I first became interested in this topic because two of my most brilliant former students at Oxford were counsel for two sisters in a case that I am about to describe. One of those students now sits on the Cross-Benches, my noble friend Lord Pannick. The case to which I refer and which is the best known in this field, is that of Miss Joyce and Miss Sybil Burden, sisters, one of whom is now well over 90 and the other approaching 90. They are still alive, to the best of my knowledge, and have lived together for about 85 years. They remain single. They cared for their parents and two aunts to the end and did not allow them to go into a home.

On the death of the first sister, inheritance tax was estimated in 2008 to be about £120,000 and may be more now if the value of their house has risen. The sisters lost their case of discrimination before the Grand Chamber of the European Court of Human Rights. The court held that marriage was different. With respect, the judgment was unsatisfactory not only because of the narrow defeat in court but for the lack of logic. The Government took down the barriers between marriage and other forms of association by enacting advantages for same-sex couples entering a civil partnership and now, shortly, gay marriage.

The European Court of Human Rights held that there was discriminatory treatment of the sisters, but that the UK had a wide margin of appreciation afforded to it and could treat benefits differently according to status in pursuit of the aim of promoting stable relationships by providing the survivor with, inter alia, financial security on the death of a spouse or partner. The lines drawn by the court in that case will no longer exist. All will be redrawn by the passage of the Bill. The unions or marriages that the Government seek to bolster will no longer have to be heterosexual, will not have to involve sex or procreation, but need only to be stable, loving and committed. Those are to be the only criteria in future.

Many siblings are connected perhaps coolly and only by common parentage, but where there are two, such as the Burden sisters, who have lived together for decades in a loving, committed and stable relationship and sharing a home to the exclusion of all other partners, they are indistinguishable in terms of deserving recognition and support from gay marriages or civil partnerships. Any two family members or carers who stay together for decades as an act of self-determination and personal development are a recognisable and welcome unit. Treating them like married people will in fact save the state costs that might otherwise be involved in taking care of them and giving them benefits because, on the death of one of the two elderly sisters whom I mentioned, the survivor will end up paying a large amount of inheritance tax which will mean selling the home, possibly pushing the survivor into state care.

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Article 14 of the European Convention on Human Rights forbids discrimination in rights that are granted on the grounds, inter alia, of birth or other status. There is a clear case here which must urgently be addressed in the review of civil partnerships, ideally by an amendment to the Bill. Why should consanguinity be any less important than the relationship between married and civil partners? The state should not prefer sexual relationships, which may be short-lived and serial, over blood relationships that have proved to have endured decades. The Government should show—they cannot logically—that it is reasonable or necessary to exclude carers and related couples from the new marriage. I cannot resist quoting from Irving Berlin’s “White Christmas”—some of your Lordships may remember it:

“Sisters, sisters. There were never such devoted sisters”.

How true in many cases.

4.30 pm

Marriage has lost its special status and equality has been established by this Bill. If it is right to promote stable, long-term family partnerships, one cannot object to the proposal that I am putting forward—that is, to investigate giving formality to a bond which might in some respects be deeper and longer lasting than a marriage and which has co-dependence and supportiveness. The Government should right a wrong for a small number of people and give them the joy and benefits of a union as described by the supporters of this Bill. Perhaps I may quote the Burden sisters, who write to me quite a lot. They say:

“We have spent our lives looking after people and never once done anything wrong. And now we are punished for doing the right thing. This government is always going out of its way to give rights to people who have done nothing to deserve them. If we were lesbians we would have all the rights in the world. But we are sisters and it seems we have no rights at all”.

Once marital rights, such as pension rights and rights to take key medical decisions and so on, are extended beyond marriage, there is no good reason not to extend them still further to others in long-term caring and stable relationships who happen to be related by blood. If my suggestion is not adopted, I and possibly many noble Lords will be very puzzled. We will wonder if it is necessary to have a royal commission on the financial recognition that should be given to a whole variety of relationships that exist today and will exist in the future. To quote again from Irving Berlin: “Lord help the” Minister,

“who comes between me and my sister”.

I can see no case for giving generous treatment to civil partners and married people when it is not available to those who have not the choice or the freedom to enter a formal relationship, whose contracts may not be recognised by the courts and who, as the sisters say, have tried every way to avoid the burden of the inheritance tax that is likely to fall on one of them with such devastating consequences. That inheritance tax is a small matter. It is paid by fewer than 3% of the population and raises less than £3 billion per annum for the Government.

The genie is out of the bottle. Currently, all the varieties of unions that support us in life are inconsistently treated. There are those who would force marriage law

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onto cohabitants who would like to avoid it. I am not talking about that. However, we must give succour and benefits to those who want a legally recognised status but are denied it. I beg to move.

Lord Lloyd of Berwick: In the absence of the noble Baroness, Lady O’Cathain, I will speak very briefly in support of this humane amendment.

I imagine that we all can think of couples who fall into one or other of these two paragraphs. As regards family members, I remember a much loved bishop, a Bishop of Lewes. It was many years ago. I believed him to be a happily married man. It was only after he died that I discovered that the woman who I had believed to be his wife was his sister. I can conceive of no reason, as the noble Baroness, Lady Deech, has said, why those two should not have enjoyed the benefits of a civil partnership. The same applies to the unpaid carer. In our village there is a man who suffered a severe riding accident many years ago, as a result of which he is paralysed. He has been looked after with the utmost loyalty by the young man who previously looked after his horse. Once again, I can think of no reason why those two should not enjoy the benefits of being parties to a civil partnership.

It is clear to me that the amendment passed by this House nine years ago should have been accepted by the Government and by the Commons. We cannot do much about it in this Bill but we can at least open the door. I hope that we shall.

Baroness Butler-Sloss: My Lords, perhaps I may make two extremely short points. First, as the previous two speakers have said, the door is now open. It is very interesting that on previous Bills the suggestion was made that this was not the right place. However, of all places, a review of civil partnership actually opens the door for what this House very properly voted in favour of before I joined it. Secondly, the effect on the Government of the day—I appreciate that there have been two Governments of opposite views, who have gone the same way on this—would be to defer the inheritance tax and not necessarily to lose it. It would not necessarily cost the Government very much money in the end. I hope that this will be looked at with more sympathy than it has been in the past.

Lord Cormack: My Lords, I strongly support the amendment moved by the noble Baroness, Lady Deech. Indeed, it was the rejection of the sisters amendment that led me to vote against the Third Reading of the Civil Partnership Bill in another place. I thought it was discriminating and unfair to concentrate entirely on sexual relationships and not to recognise the sort of close relationship and affinity to which the noble Baroness has referred.

Nine years ago, we were told that it was inappropriate to put it in that Bill—and somebody interjects, sotto voce, that it was. Well, nine years have gone by and the commonly recognised discrimination, which has been recognised by the noble Lord, Lord Alli, and others, has not been put right. We have an opportunity in this Bill to put it right. Although I hope that we do not come to a Division in Committee on this, if we do not have a satisfactory answer from my noble and learned

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friend Lord Wallace, I hope that the noble Baroness, Lady Deech, and my noble friend Lady O’Cathain will consider retabling this or a similar amendment on Report—one on which we can vote.

Lord Alli: I wonder whether the noble Lord and the noble Baroness would accept this point. I stand by those words in relation to carers. I was deeply passionate about the issue and I offered the noble Baroness any assistance that I could, not only at the time but after the debate. I believe that carers are an undervalued group of people in our society and I have no quarrel with that proposal. However, to prosecute the case for carers by devaluing the nature of a civil partner relationship is where our paths divert. Considering the countless civil partnerships that have gone on, with the types of celebration and the nature of the relationships, does the noble Lord not accept that there is now a significant difference between civil partnership as we understand it and what the noble Baroness and the noble Lord are proposing?

Lord Cormack: Clearly, that was meant to be an intervention so obviously I will respond to the noble Lord. I said at Second Reading that I accepted that civil partnerships were now a permanent part of our social fabric. Indeed, I went much further. I will not repeat what I said then as the noble Lord was in his place and heard it. I made similar comments during the debates in Committee last week. However, that does not in any way invalidate the basic justice of the case enunciated by the noble Baroness, Lady Deech, and supported by the noble and learned Lord, Lord Lloyd of Berwick. I support it too and I say to the noble Lord, Lord Alli, that surely he and I are concerned with justice and equity for everybody. Although I have my reservations about the word “marriage” being applied right across the board, I have tried to make it plain in my brief interventions in Committee that I accept that he and those who share his beliefs thoroughly deserve a better recognition than they have had in the past—better even than in civil partnerships. In saying that, however, I can also say, and I do, in supporting the noble Baroness, Lady Deech, that there are others in our society—siblings and carers have been named, but there are others—who deserve, if they have made a life-long commitment to each other, as have those sisters and as has the young man with the gentleman who was so severely injured in a hunting accident, a recognition of the personal sacrifice and commitment that they have made which is at least equal to the recognition that we have given to civil partnerships. I hope very much that my noble and learned friend Lord Wallace will be able to encourage us today when he comes to respond to this debate. I repeat my strong support for the amendment so eloquently moved by the noble Baroness, Lady Deech.

Lord Pannick: My Lords, my understanding is that this amendment does not require the House to come to any view whatever on the merits or otherwise of the proposal. What it does is to recognise that there is to be a review of civil partnerships and it proposes that during the course of that review this topic should be included in the matters to be discussed, to be addressed and possibly to be the subject of future legislation.

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The noble Baroness, Lady Deech, mentioned the case of Miss Burden and Miss Burden against the United Kingdom in 2008. I regret as much as the noble Baroness that I was unable to persuade the European Court of Human Rights to find that the less favourable treatment of these two ladies—it was severely less favourable treatment—was arbitrary discrimination contrary to the convention. It does seem to me as to many other noble Lords that since there is to be a review this topic should be covered.

My only quarrel with the speech of the noble Baroness, Lady Deech, is in her recitation of Irving Berlin’s song as support. She may recall that the lyric ends:

“And Lord help the sister, who comes between me and my man”,

which is perhaps not wholly appropriate in this context.

The Lord Bishop of Ripon and Leeds: My Lords, I too want to support the noble Baroness, Lady Deech, on this amendment and to thank her and the noble Baroness, Lady O’Cathain, for their persistence in pressing the unfairness of the present law with regard to both carers and also family members.

The noble Lord, Lord Pannick, made the point that the amendment does not require any particular answer to the questions but simply tries to ensure that they will get raised. The point of having a review of the Civil Partnership Act 2004 is that, following the passage of this Bill, the circumstances of civil partnerships will be different. We do not yet know in what way they will be different, but they will be different because many people who would otherwise have entered into civil partnerships will enter into marriages. That seems to me to be an ideal point at which to consider whether civil partnerships should be extended to carers and other family members. If that is not the point at which we ought to do it, perhaps the noble and learned Lord, Lord Wallace, can say what is the point at which we can tackle the unfairness which everyone seems to admit. We have had example after example of the unfairness of the present law. When are we going to be allowed to tackle that?

4.45 pm

Lord Anderson of Swansea: My Lords, it is surely not difficult to construe the meaning of Clause 14. As the noble Lord, Lord Pannick, said, we know that the Secretary of State has agreed to arrange for the “operation and future” of the Act to be reviewed and for a report following that review to be produced. We know also, in subsection (2), that such a review is not prevented from dealing with other matters. What is absolutely clear from the debate thus far is that everyone who has spoken—those in another place, too—recognises that there is a particular injustice and anomaly in the case of siblings and carers. I congratulate the noble Baroness, Lady Deech, on raising this question yet again. She has been a consistent campaigner in this regard. She spoke eloquently and elegantly, as the noble Lord, Lord Cormack, said.

I would find it anomalous if the Government were to say that they cannot take this further because of the European Court of Human Rights judgment. That

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would be a little puzzling because obviously they have not adhered slavishly to the judgments of the European Court in respect of prisoners’ rights, for example. They have shown that they can be quite selective about that. Perhaps the Minister will, as in the past, draw on the manual available to all Ministers. I am sure there must be a little book of various forms of objection. One of them is: “This is not the appropriate vehicle”. That may well be relied upon in this case. It may not be appropriate but at least the review can include matters that Members of this noble House deem important because we feel that sense of injustice.

The genesis of the review provision is of interest. Perhaps in their desperation to get the Bill through speedily and strike a deal with the dissidents, the Government came up with the idea of accelerating the review. Historians will no doubt find of interest the bargaining that lay behind those deals. Clearly, there was an initial contradiction in the Government’s position. They placed everything on the altar of equality. Equality was worshipped and all other considerations were pushed aside. It is hardly equal if homosexual couples have the choice of either a civil partnership or marriage whereas heterosexual couples do not have that choice and must be content with traditional marriage. There is a basic contradiction there.

To end, my own judgment is as follows: one thing I have learnt over very many years is that the British people have a fundamental sense of justice. Of all those who have spoken, I commend particularly the noble and learned Lord, Lord Lloyd of Berwick. He gave some telling examples from his village and his own experience. His questions need an answer and should be addressed at some stage by this House and Parliament generally. It is surely anomalous that, following the passage of this Bill, homosexual couples with perhaps a deathbed marriage will be in a far more advantageous and favourable position relating to inheritance tax provisions and tenancy than people who have looked after sisters or brothers or cared for others, as the Burden case has shown. People who have perhaps been together for decades will continue to be disadvantaged. It may well be that nothing substantial will emerge from the review but I commend and congratulate the noble Baroness on raising this question and relying, again, on that sense of fairness in the House.

Lord Alli: At the heart of this debate is the basic premise that, given that gay marriage will occur, we should open up civil partnerships to a range of other people. We will see that in a number of amendments as we proceed through Committee. My problem with that is that I do not believe that gay marriage is being opened up as part of this Bill. This Bill creates civil same-sex marriage but it does not create equal marriage in the case of religious organisations. It is an enabling Bill and removes the prohibition for same-sex marriages in England and Wales, with the notable exception of the Church of England, which retains so many locks. The Bill preserves an inequality in religious marriages for the very good reasons we have debated throughout Committee. This is an important point in why I think civil partnerships have a very important role to play going forward.

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I have listened very carefully to almost every word of the debate and I detect a real mood on the Benches Spiritual and in other religious organisations to recognise, respect and show good will to same-sex couples. When listening to the debates, there is no doubt that that movement is happening. I pay special tribute to the most reverend Primate the Archbishop of Canterbury for the way in which he has sought to shine a new light on these relationships. I believe that before we see same-sex marriage in our churches, temples and mosques, we will see civil partnerships celebrated. We will see liturgies and special services created to bless gay couples without the churches having to change their views that marriage is between a man and a woman.

That movement forward in some religious organisations can happen only if civil partnerships stay in place for a little while longer and do not apply to these other categories of people. For example, while I support those who want civil partnerships to be extended to opposite-sex couples, civil partnerships for same-sex couples will have a unique role to play that justifies their position in a way that is not the same for opposite-sex couples. For me, that is a fundamental part of why I want to resist the extension of civil partnerships in this Bill. Religious organisations have made it clear that very soon a number of them will want to bless civil partnerships, and these amendments would remove the ability for them to do so.

In direct relation to Amendment 46A, there has been a huge amount of discussion about the fairness of these relationships but I cannot imagine that many carers or family members who share a house would wish their relationship to be solemnised before God and in the presence of their friends and family. That, for me, is the fundamental difference. The noble Baroness, Lady Deech, was quite right to quote me, and the noble Baroness, Lady O’Cathain, will recall that we had significant and detailed discussions of this issue during the passage of the Civil Partnership Act 2004. The other place was not sympathetic to what was being proposed because of the different aspects for same-sex couples. I really applaud the work of the noble Baroness and that of the noble Baroness, Lady O’Cathain, in trying to advance the plight of carers but I implore your Lordships to look at the role that civil partnerships will have in the context of religious organisations and allow them the ability to bless these stunning relationships in a way they see fit. It is the other side of the coin to not having gay marriage in religious organisations.

Baroness Knight of Collingtree: I, too, strongly support what the noble Baroness, Lady Deech, has said, and I supported the noble Baroness, Lady O’Cathain, in her earlier efforts. It is extremely disappointing to be told, “Not now, another time” or, “Not tomorrow” or, “In a little while”. How do we know that it is going to be a little while? We have no idea. Reviews do not normally take a little while and even then they may not be successful.

I do not doubt the sincerity of the noble Lord, Lord Alli, and his genuine support for the idea behind this, but we are told every time, “Yes, we agree with what you say but this is not the vehicle in which to do it”. What we need to be told is, if this is not, what is?

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We need some idea of that because the injustices mount as the years go by. Many people, who would have been helped if the original amendment had gone through, are now gone. They are dead, finished; they faced burdens which they need not have faced. I, for one, am not prepared to sit here year after year and hear, “Tomorrow, tomorrow, tomorrow”. Tomorrow never comes.

Baroness Hollis of Heigham: My Lords, nine years ago I took part in this debate, as did many others in your Lordships’ House. I was deeply moved then, as was the noble Lord, Lord Alli, by the cases and arguments put by the noble Baroness, Lady O’Cathain, which were repeated so eloquently today by the noble Baroness, Lady Deech.

I agreed absolutely that we need to address the problem of inheritance for people—they may be sisters or may not even be blood relatives—who none the less share a home for a long time and then face the problem of an inheritance tax which could push them into the shadows of residential care. I absolutely accept that that must be addressed. I hoped at the time we argued this, and still hope, that this should be addressed by the Treasury agreeing, very simply—it does not need legislation—that you can roll up inheritance tax on the first death to the death of the second person. As I understand it, that is all one needs to do. The state is not denied any money, but the sibling or carer who is left does not have the threat of losing their home held over them. That is the way to go. When it comes to extending or even considering this as part of an extension of civil partnerships, I obviously have no problem with this being part of a review, but I had two fundamental objections nine years ago and they remain for me today to consider this as possibly an extension of the civil partnership.

First, a civil partnership has a legal entry and a legal exit, which is equivalent to divorce. Take, for example, a mother and daughter who enter into a civil partnership, in good faith, partly to protect the home. The daughter may be in her forties or fifties; her mother dies, she inherits and is protected. If she is in a civil partnership and five years down the line meets a man whom she chooses to marry, she has to divorce her mother—her civil partner—to enter into a new marriage with a man. She may alternatively decide that when her mother has died and that civil partnership has ended she will form another civil partnership with her own grown-up son. Therefore the property cascades down the generations without ever touching the Treasury at any point.

This can be done through a revision of inheritance tax. It cannot in my view be done through a civil partnership which has to be divorced before you can enter another one or, indeed, before you enter a marriage. The notion that a daughter can divorce a mother in order to marry somebody else, or that a sister and brother can divorce each other because they each wish to marry someone else brings the notion of civil partnership, its ceremonies of entering and its divorce, into disrepute.

The second problem, which is why I was engaged fairly heavily the last time round, is that you cannot separate inheritance advantages from social security

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liability. If two people, whether they are a carer and the person cared for, a mother and a daughter, or a brother and a sister, enter a civil partnership in the hope of avoiding or postponing inheritance tax, they take on mutual responsibility for each other in social security. That means, for example, that if a frail elderly mother and a son enter a civil partnership to spare the son a big inheritance tax bill, he becomes wholly financially responsible for his mother, if he can afford it. For the first time ever, he will be means-tested for his mother’s support; his mother will have no independent rights to social security benefits because she will be his dependent. If he can afford to pay for her, the state does not need to. She loses her independence of social security income because the son, by virtue of the civil partnership, has taken on that responsibility.

I could enlarge on that, but noble Lords can see the consequences. If a sister and a brother enter into a civil partnership, then they become mutually financially responsible for each other in social security terms, including children and the like. The problem is that one cannot separate out the upside, in terms of inheritance law, for carers, or for a mother and a daughter or for sisters, without taking on, in all fairness, the downside of responsibility for social security.

I suggest to your Lordships that for every couple who gain through inheritance, there will be three or five poorer people, with no wealth to enjoy at inheritance and who have fairly modest incomes now, who will be losers. I do not think your Lordships would want that to happen. All I suggest is that noble Lords review and press to review the situation of inheritance tax and the ability to roll it up. In that way I think that we address the problem.

5 pm

Lord Cormack: Does the noble Baroness not accept that we are not suggesting that where these other relationships exist a civil partnership is compulsory? Her whole argument is based on the assumption that it is compulsory.

Baroness Hollis of Heigham: My Lords, if there is to be a relationship recognised as an extension of the concept of civil partnerships for inheritance tax, it also produces a responsibility for mutual financial support called social security. The one goes with the other. The way around it is something that I think my Government should have explored, and that I hope the current coalition Government will explore it; the noble Baroness, Lady Knight of Collingtree, was absolutely right about this. We should see a way of avoiding a survivor, particularly in the case of the two elderly sisters who went to the courts, having the inheritance abated on the first person and being rolled over to the second death. That seems to me to protect the position of the two sisters, which I think we were all deeply moved by, but would avoid the long-term problem of social security which would otherwise follow.

Baroness Deech: I think that the noble Lord and the noble Baroness, Lady Hollis, have misunderstood my point. Of course there would be no question of making

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anybody enter any sort of contract of union. I am sure they would sit down and work out whether it was worth doing because of inheritance tax, and then of course they would—and should—happily take on the duty of supporting each other. However, if they do not want to, and they want their benefits, then that is it; there is no question of dropping this on them without their consent. There would have to be some sort of formality.

Lord Anderson of Swansea: On that issue, the situation is surely this: there is no compulsion, and if any couple, be they carers or siblings, were minded to consider that new relationship, they would surely sit down and work out what could be a major downside. They would no doubt take professional advice to see what the advantages and the disadvantages were, and if the disadvantages of that relationship far outweighed the advantages, they would not proceed. It is as simple as that: there is no compulsion.

Lord Marks of Henley-on-Thames: My Lords, around the Committee there is clear recognition of an injustice in inheritance tax terms to carers and siblings. However, while I do so with diffidence, I will to try to answer the question posed by the noble and learned Lord, Lord Lloyd. He effectively asked what the difference was between siblings living together and couples presently in civil partnerships living together. The answer, I suggest, is that the noble Baroness’s amendment threatens to undermine the whole notion of civil partnerships, which are about loving relationships between people living together as couples—and yes, in a sexual relationship—rather than about carers or adult brothers and sisters.

The questions are not questions about inheritance tax. I suggest that the point made by the noble Lord, Lord Alli, that people may wish to continue in civil partnerships even after this Bill goes through and even where they are same-sex couples is completely valid. To broaden the notion of civil partnerships, as this amendment suggests, undermines that possibility. Even in the words of the amendment which calls only for a review, as emolliently pointed out by the noble Lord, Lord Pannick, the suggestion has that tendency to undermine what civil partnerships are. It is for that reason that nine years ago noble Lords called the notion embodied in this amendment inappropriate and why, although it was passed here, it was rejected by the other place. I suggest that the amendment should be rejected today for the same reason and that Parliament needs to find a way, whether as described by the noble Baroness, Lady Hollis, in her erudite explanation of the technical difficulties, or some other way, to solve the quite separate injustice to carers and siblings without interfering with or undermining the notion of civil partnerships.

Lord Elystan-Morgan: My Lords, I have always felt discomfort if not, indeed, some element of contempt for what is called the vehicular defence. Too often, it has been said in a case where there is every merit in a proposed amendment, “Ah, yes, but that is not the correct vehicle to use at this stage”. More often than

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not, in the years that I have spent in this House and in another place, I have felt that it was a path of craven retreat used by many Governments in many situations but in a wholly unworthy cause. Indeed, that is my reaction in the first instance when it is pleaded that this measure may not be the proper vehicle. However, I suggest that for once that argument may well be true—not only that it is not the appropriate vehicle but that it may not be the lawful vehicle.

I have total respect and regard for all the arguments that have been advanced in favour of changing the law in this area. The arguments advanced are noble, honourable and just and there is no way, it seems to me, that they can properly be countered. However, if one looks at the preamble to the Bill, it seems to me that there may be some dubiety. I put it no higher than that, certainly not in the presence of persons far better able than me to judge this matter. It could be argued that this issue does not fall within the Bill’s Long Title, which refers to,

“the review of civil partnership, and for connected purposes”.

It may well be argued that civil partnership deals with a sexual relationship. If that is so, the relationships that we have been talking about this afternoon go beyond that. They elongate civil partnership but are not of the essence of civil partnership.

Indeed, even if I am wrong, we should remember that what is asked for is inclusion in a review. There will be immense discretion as to what the conclusion should ultimately be. Whatever the rights and wrongs of this debate may be, and they are all one way, in my respectful submission one dilutes the possibilities by including the issue in a review where there may be dubiety as to whether that is the correct vehicle. Therefore, in the circumstances, I respectfully suggest that the amendment is aimed at the wrong Act. It is not the 2004 Act that causes injustice in this regard, but the 19th century Partnership Act, as amended. In other words, if the relationships that one speaks about could by statute be deemed to be a certain type of partnership with a certain type of fiscal consequence leading therefrom that would be just, equitable and proper, then the proposal would be aimed at a correct target. If that could be done quickly not by way of review but by direct legislation, I would, indeed, consider that we had done something very worth while in a very simple, understandable way without cluttering up the argument with all manner of other considerations that may be less than relevant in the two circumstances of the case.

Lord Lester of Herne Hill: My Lords, I shall not detain the Committee by repeating what I said nine years ago when we debated this issue, and the controversy between those who focused on sexual relations and those who focused on tax and inheritance tax.

I have two points to make. Clause 14 seems to me not to require any amendment because it states:

“The Secretary of State must arrange … for the operation and future of the Civil Partnership Act 2004 in England and Wales to be reviewed, and … for a report on the outcome of the review to be produced and published”.

The clause goes on to say that that,

“does not prevent the review from also dealing with other matters relating to civil partnership”.

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One of the other matters relating to civil partnership that has been mentioned by my noble friend Lord Marks, in particular, was referred to by the Joint Committee on Human Rights in paragraph 95 of our report. We said:

“We are not convinced by the Government’s reasons not to extend civil partnerships to opposite sex couples, and we welcome the Government’s announcement that it will review this matter. In doing so, the Government should take into account the potential discrimination that may arise between cohabiting opposite sex couples and civil partners”.

I very much welcome the fact that the Government have made it clear that there will be a review of the operation of the Civil Partnership Act to look at that aspect of the existing discrimination. That point has already been made by several noble Lords and it is important to deal with it. I have always disagreed with the noble Baroness, Lady Deech, as she knows, because I am strongly in favour of cohabitation rights for unmarried opposite-sex couples, and she is firmly opposed to that. That will clearly be a matter that the review will need to take into account to see whether the Government decide to give some protection to so-called common law marriages or not.

I continue to believe in that, as I did nine years ago. I am delighted by the speech of the noble Baroness, Lady Hollis, because she has taught me aspects of social security and welfare that I was not aware of. For all the reasons given, I do not think that one should now fetter Clause 14 by requiring that the review should deal with matters that are truly beyond the scope of the Bill and ought not to be part of the review.

Lord Mackay of Clashfern: My Lords, I think that I should indicate that some aspects of this discussion will arise under my Amendment 55. It is important to remember that this Bill is not about gay marriage but same-sex marriage. As I pointed out, and I invited correction—so far I have not been corrected—it includes platonic relations between people of the same sex. Therefore, the idea that sexual relationships are fundamental to it is a mistake. That may or may not matter to this issue, but it matters considerably to the issue that I shall raise under Amendment 55.

Lord Pearson of Rannoch: My Lords, I, too, support the amendment. I found the introduction given by the noble Baroness so powerful that I hope—depending on whether the Minister can answer three questions that I want to ask—that I will not have to move my Amendment 46D, which will save the Committee quite a lot of time. It has the same essential aim as the amendment moved by the noble Baroness.

I would have been handicapped in moving my amendment in any case, because I do not have Answers to three Written Questions, which I tabled on 5 June and which should have been answered by last Wednesday, 19 June, at the latest. I hope that the Minister can answer them now. Those Written Questions seek to update the information on the scale and cost of the injustice being done to blood-relative, sibling or family partnerships, sometimes known as “the sisters”. I think that, after this debate, we all know who we are talking about.

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5.15 pm

The first question is: how many civil partnerships have so far been registered and what is the Government’s estimate of their impact on tax revenue? I have in mind inheritance tax and some elements of private pension arrangements which other noble Lords have mentioned. The second question is: what estimates have the Government made of any additional effect of same-sex marriages in these areas; that is, tax, income and so on? I would think that it is rather little. But the third question is the really important one: how many blood-relative, sibling or family partnerships exist? How much do the Government estimate those partnerships save the taxpayer in care costs, and how much would it cost to give them the same advantages that are currently enjoyed by civil partnerships and soon will be by same-sex marriages? It is important that we have the answers to those questions so that we can understand the scale of what we are dealing with. I have heard it estimated that blood-relative partnerships save the taxpayer some £3.4 billion per annum in care costs. Can the noble and learned Lord confirm what the latest figure is and can he also now answer my other Written Questions?

Noble Lords who oppose this amendment seem to think that the problem can be solved only by the extension of civil partnership rights. Surely this injustice is so great that, if necessary, another form of legislation can be dreamt up as a result of the review—the amendment asks only for a review—which would put right something that has gone on in the wrong way for far too long. I am really saying that there does not have to be sex in it, does there? Why cannot these really good people in these really long relationships be recognised? I would remind noble Lords that sex is not all that reliable.

Baroness Farrington of Ribbleton: My Lords, I had not intended to speak and I am still absorbing the last comment of the noble Lord, Lord Pearson of Rannoch. Like all those who have spoken, I believe that, through the taxation system and regulations on caring, we discriminate against people who devote their lives to caring for others. Personally, I would not want to wait for a review of this nature, unrelated as I see it to be to the issue. We have much to do about reviewing the needs of people who are carers. Legislation is desperately needed; the Government assure us that they are looking at the issue, and to me that is the vehicle.

I cannot see how, in a same-sex marriage Bill or in a civil partnership as it stands now, something that the churches have opposed since time immemorial—incest—can be validated. As noble Lords have said, this issue concerns many relationships that would be ruled out of marriage by law, let alone by the churches, because they would be deemed too close and thus to be incestuous. In saying that, I do not in any way disparage the importance of the issue that needs to be raised. Like other people in this Chamber, I have relied in my lifetime on other siblings helping me to care for elderly parents, and I think that the time is right to deal with the issue.

Saving the presence of the noble Lord, Lord Pearson of Rannoch, we are talking about chalk and cheese in relation to the relationships that would have been

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supported in the case of the debate that I remember so well having been present for, and what we are doing in this Bill. I ask those who care so strongly about this issue to ensure that it is dealt with expeditiously as part of a review of the circumstances of carers. I hope that when it comes to Report, people will take that very seriously on board because I know carers who cannot wait any longer because their own future is uncertain. As has been said, some changes could be brought in without any loss of benefit to the Treasury; it is merely a question of delay.

Baroness Thornton: My Lords, we have had a very interesting and passionate debate about extending civil partnerships to unpaid carers and family members who share a house. I, too, was present at the debate we had during the passage of the Civil Partnership Bill. I said then that I thought my noble friend Lord Alli was right; that was not the Bill. He is right now that this is not the Bill. That is not to say that this is not an important issue. Of course it is a most important issue.

I just wonder why—or maybe I have missed this and a noble Lord can tell me—this issue has not been raised in the passage of the many Bills that we have had before us in which it could have been raised in the intervening period. We have had Bills about carers. I put down an unsuccessful Bill about free support for people at home. There have been many times when this House could have taken on board these issues and made its views clear in appropriate Bills to do with income support and carers. Yet, again we find ourselves discussing this important issue during the passage of a Bill to do with, in this case, equal marriage. That does not do service to both the importance of the issue of carers and the fate of people who care for their relatives, or the issue before us, which is the same-sex marriage Bill. That is a shame.

On these Benches we do not think this is the right Bill. We think this a good issue and an important issue but we suggest that this is not an appropriate amendment. Will the Minister clarify the Government’s review of civil partnerships—which we understand because we helped the Government to put forward the amendment from these Benches in the other place? How far does he believe that review will go and where will it end up? Our understanding is that it is a review looking at whether one would have opposite-sex civil partnerships and, if so, how that would work.

The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, this has been a very good debate and the issues have been thoroughly explored. I congratulate the noble Baroness, Lady Deech, on introducing it in the way that she did. I do not think any of your Lordships who have spoken in the debate in any way question the validity—or the value, rather—of the relationships that exist between siblings or other family members where they have mutual duties or care obligations. Indeed, the noble and learned Lord, Lord Lloyd of Berwick, mentioned a particular case of a young man who helped someone who was injured in a riding accident. Certainly, our society, country and communities benefit enormously from the caring relationships that exist the length and breadth of the

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country. I imagine that many noble Lords can think within their own families of relationships of mutual support between a brother and sister, sisters, brothers, or intergenerational support.

The amendment moved by the noble Baroness would amend the duty in Clause 14 requiring the Secretary of State to arrange for the review of the operation and future of the Civil Partnership Act so that the scope of the matters to be reviewed includes consideration of the possibility of extending civil partnerships to,

“carers and those they care for”,

and to,

“family members … who have cohabited for 5 years or more and are over the age of eighteen”.

The terms of reference for the review of civil partnerships required by Clause 14 were published on 13 June and a copy has been placed in the House Library. The review will look at the operation and future of civil partnerships in England and Wales. It may help your Lordships if I note what the scope is, according to the published terms of reference. They say that the review,

“will cover England and Wales and will … Examine evidence about how well the current arrangements for civil partnerships are working, drawing on views from the public and organisations with an interest and international comparisons … Assess the need and demand for civil partnerships when marriage is available to all, and whether any changes to civil partnership arrangements are necessary … Identify all the implications of and issues raised by the identified options (including risks and devolution issues) … Assess the costs and benefits of the options … Make recommendations for any changes to the operation and future of the CPA”.

In response to my noble friend Lord Lester, it is not the Government’s understanding that that would extend to issues of cohabitation. In a Written Ministerial Statement on 6 September 2011, the Government said:

“The findings of the research into the Scottish legislation do not provide us with a sufficient basis for a change in the law. Furthermore, the family justice system is in a transitional period, with major reforms already on the horizon. We do not therefore intend to take forward the Law Commission’s recommendations for reform of cohabitation law in this parliamentary term”.—[Official Report, Commons, 6/9/11; col. 16WS.]

Lord Lester of Herne Hill: I think that my noble and learned friend may have misunderstood me. I quite realise that the Government have set their face against doing for England and Wales what has happened in Scotland. However, I was asking whether the Government are rejecting the recommendation of the Joint Committee on Human Rights, which welcomed the idea of consultation to take account of the potential discrimination that may arise between cohabiting opposite-sex couples and civil partners. I thought that was the forceful point that really led to the public consultation.

Lord Wallace of Tankerness: I apologise if I misunderstood the point being made by my noble friend. As I indicated last week, clearly we are giving consideration to all the recommendations of that report. No one has told me anything to the contrary since then and I think it is still our ambition to have that report available for your Lordships before consideration of this Bill on Report. The matter will obviously be dealt with there.

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Lord Lester of Herne Hill: I am sorry but what I am really asking the Minister is whether the Government are saying that this review will—or will not—cover the point that I have just made. It is important to know.

Lord Wallace of Tankerness: Given how specific the question is, I hope that there will be an answer for my noble friend before I sit down. I am sure those listening will have understood how specific the question is.

The point that I was going on to make is that the amendment simply appears to extend the review. However, our concern is that the extension proposed would undermine a core principle of civil partnerships. As the noble Lord, Lord Alli, said, this is about civil partnerships as they are currently understood, have developed and have been used in the years since they were established. It is important that we are talking about the nature and relationship of civil partnerships as understood, because this is a very different type of relationship.

The noble Baroness, Lady Deech, and the noble Lord, Lord Anderson, were quite candid. The noble Baroness, Lady Deech, quite properly said there would be no compulsion. Of course there would be no compulsion. She went on to say that couples would sit down and work it out. The noble Lord, Lord Anderson, said that they would take professional advice on whether the tax or social security arrangements were in their interests. We are talking about marriages which, in a religious context, would involve the engagement of a priest. I now hear that people wanting to take them on would probably have to engage the services of an accountant. These are very materially different kinds of arrangements. One is meant to be an expression of commitment and a desire to live together to the exclusion of others for life, and one is really tantamount to a tax arrangement. I do not think I am doing an injustice to the way it was actually phrased. That in no way diminishes the quality of care that exists. That was indeed the basis of the argument. My noble friend Lord Marks said that it could very well undermine the current civil partnerships as understood.

5.30 pm

The noble Lord, Lord Pearson of Rannoch, inquired about the questions he submitted. I apologise if he has not had responses. The most recent information available from the Office for National Statistics gives the total number of civil partnerships formed in the United Kingdom to be 53,417. These partnerships were formed between the Civil Partnership Act 2004 coming into force in December 2005 and the end of 2011. It is not possible to estimate the impact of civil partnerships on tax revenues, as Her Majesty’s Revenue and Customs does not require individuals to distinguish whether they are married or in a civil partnership.

I suspect that might answer the second question, which concerned the difference between same-sex marriage and civil partnerships. The noble Lord’s third question concerned how many blood relative, sibling or family partnerships exist, and what the cost would be. I think that is probably an impossible question to answer, not least because that knowledge is not collected by any government department in that way. It is also because,

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for reasons which have been well rehearsed during this debate, where these kinds of relationships exist one does not know in how many cases the couple concerned would want to make the relationship into a civil partnership. I understand why the noble Lord asked the question, but I think it is almost impossible to answer in any meaningful way. I am happy to give way.

Lord Pearson of Rannoch: My Lords, that was not quite the question. The question was how much these family partnerships save the taxpayer in care costs and how much it would cost to give them the same advantages as civil partnerships, not necessarily using the same legal framework. I suggest that if the Government do not want to face this, it is purely because there are too many of these partnerships. There are very many more: a multiple of 53,000. That is why the Government will not face up to this duty, which has been owing to these people for a very long time.

Lord Wallace of Tankerness: My Lords, I apologise if I misunderstood the question asked by the noble Lord. If information assessing the benefit to the state is available, that question may be capable of an answer. I will certainly ensure that that information is made available. I imagine there will be plenty of opportunities to discuss these kinds of issues when the Care Bill, which is already before your Lordships’ House, is debated at greater length. I will certainly ensure that the noble Lord gets the estimates that have been made, and I apologise if I misunderstood his question.

The review will look at whether civil partnerships are still needed, or whether there is a case for extending them to opposite-sex couples. Much of this debate proceeded on the basis that they would continue, whereas in fact that is only one of the options. I note the comments of the noble Lord, Lord Alli, about how he saw civil partnerships perhaps developing, and how there might be a liturgy associated with them in times to come. No doubt that is a point he and others will make to the body conducting the review. Questions do arise from the change to marriage law which we are making in this Bill. It will result in the apparent anomaly of same-sex couples having the choice between marriage and civil partnership, while opposite-sex couples will only be able to marry. It was for that reason that we sought this review.

Regarding parents, children and siblings, as the noble Baroness, Lady Deech, said, the positions of siblings are indistinguishable. However, it is the case that parents, children and siblings already have a legally recognised relationship, one to the other. These relationships already afford certain rights. For example, children and siblings are recognised in intestacy rules. The extent of those rights is clearly a separate issue from the question of future civil partnerships. That is why we believe that it would be inappropriate for them to be considered as part of this review. It could lead to legitimating relationships within the prohibited degrees of relationship.

We will come later to the amendment of my noble and learned friend, Lord Mackay of Clashfern. However, even if the reasons for the prohibited degrees of affinity perhaps stem back to what one might call a biological concern, there are still issues of power relationships

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within very close families. These may not necessarily be obvious, but there is also protection there against any undue pressure. As was also said in one of the contributions, what if life circumstances change? Suppose that two sisters enter into a civil partnership, and one later wants to marry someone else or to enter into a civil partnership with some else.