Thank you for those remarks, Mr. Gale. To remind hon. Members, the amendment would have the effect of removing the words ''of the same sex'' from line 5 of the clause, thereby ensuring that the Bill could apply to cohabitees of the same sex and of the opposite sex. I am grateful to the Minister for circulating the letter, which she sent on 29 July to the Chairman of the Joint Committee on Human Rights. As I mentioned during the previous sitting, the Minister's response to the concerns expressed by the Joint Committee on Human Rights is highly material to our deliberations. Several of us are concerned about discrimination that would offend against human rights legislation being introduced by Parliament into the legislation.
The first four questions raised by the Joint Committee concern the Government's justification for limiting the eligibility to form a civil partnership to same-sex couples. The Joint Committee expressed its concern that the exclusion of opposite-sex couples from entitlement to participate in a civil partnership would be inconsistent with the European convention on human rights.
Hon. Members will have read the Minister's response and attempt to argue that the concerns of the Joint Committee are not well founded in law. As this is a highly contentious area that goes to the root of whether the exclusion of opposite-sex partners from civil partnerships is discriminatory and, if so, whether such discrimination can be justified, I would like hon. Members to consider the detail of the Minister's legal case.
In five and a half pages of detailed argument, it is apparent that the Government's position that the Bill as drafted is not discriminatory is based upon a false premise. If the Bill were about establishing homosexual marriage on a par with heterosexual marriage, the arguments put forward by the Government would carry. However, as the Minister has been at pains to explain, the Bill does not create same-sex marriage but only what it describes as civil partnerships.
Turning to the Minister's commentary on the decision of the Canadian court in Miron v. Trudel, she says that the majority in the court emphasised that a distinction may probably be made between
''those who decide to marry and those who do not and that the choice made by the couple in question must be paramount''.
The Minister then refers to the fact that the European Court of Human Rights in Strasbourg has confirmed that it is compatible with convention rights for contracting states to treat married couples differently from couples who do not marry, as is acknowledged in paragraph 23 of the Joint Committee's report. But then she goes on to state:
''Unmarried couples (including opposite-sex couples who could not marry because they could not divorce; opposite-sex couples who chose not to marry when they could have done so; and same-sex couples) have all been held not to be comparable to married couples.''
That is the point. The Minister cites several cases in support of her proposition: Shackell v. UK, Quintana Zapata v. Spain, Saucedo Gomez v. Spain, Mata Estevez v. Spain and Karner v. Austria. Those cases support the proposition that it is perfectly all right under human rights law for marriage to be treated separately from other relationships, but it is not all right that relationships outside marriage should be treated in a discriminatory way. That is what the Bill does: it picks one type of relationship outside marriage—same-sex cohabitation partnership—and gives it an elevated legal status compared with the cohabitation partnership of people who are of the opposite sex in a relationship outside marriage.
The Joint Committee was concerned about that, and that is why I believe that, on the evidence supplied by the Minister and in the light of the legal authorities, the Bill would be discriminatory if enacted according to the Government's wish. There is no proper justification for discriminating in the way that the Government propose in favour of same-sex partnerships over opposite-sex partnerships.
We had a short debate on the sittings motion. Again, it is significant that the Minister did not give any justification as to why she and her colleagues were not prepared to sit between 5 pm and 6.30 pm. If she had brought forward some arguments, they could have
been considered and weighed up, but there were no supporting arguments, just an assertion that ''We're the Government. We're right. We've decided we must finish at 5 o'clock.''
However, the issue of human rights and discrimination is one that I should have thought that the Minister would be much more concerned about than seems, at the moment, to be the case. Unless my amendments are accepted, under this legislation unmarried same-sex couples will be in a privileged position compared with other unmarried couples.
At the time of the 2001 census, there were 78,522 people cohabiting in same-sex relationships. That represented 2 per cent. of all cohabitees and 0.2 per cent. of the population. The same census showed that more than 4 million people were living in cohabiting relationships in England and Wales—or 8 per cent. of the population. So, unless amended, the Bill will potentially give an elevated status to that entire group of 78,000 cohabitees in a same-sex relationship, although we know that only a small proportion of them will take up the option of a partnership. It would discriminate against the 4 million people living in cohabiting relationships for whatever reason.
What is my hon. Friend's estimate of the number of those in cohabiting opposite-sex relationships who are discriminated against because they are prohibited from marrying unless that prohibition is because they are in an adulterous relationship? Adulterous relationships are not something that he wishes to encourage.
I certainly do not wish to encourage adulterous relationships, and I am sure that my hon. Friend does not wish to do that either. The short answer is that I do not know how many of that 4 million fall into that category, but I do not think that my hon. Friend is comparing like with like. If the Bill were proposing same-sex marriage, his argument would carry weight because, under human rights law, it is possible to set up marriage and discriminate against relationships outside marriage. However, the Government are legislating specifically to set up a relationship outside marriage that will have a legal status superior to other relationships outside marriage.
My hon. Friend says that those in a cohabiting relationship are being discriminated against because they are unable to marry. They can marry if they are divorced or are free to marry. The only basis on which they might be discriminated against in law, and thereby unable to marry, is if they are not divorced or are in an adulterous relationship. Both of those situations undermine the institution of marriage that he is trying to protect. How can he say that we are not comparing like with like when, clearly, he is not doing so?
Unfortunately, the law seems to support my argument rather than that of my hon. Friend. I cited some of the authorities. That is the law as it stands. I challenge my hon. Friend to show, based on the authorities that I cited, any reason why he thinks that it would be lawful discrimination to allow some people in partnerships, namely same-sex partnerships, to be in a privileged position compared
with others—those who are in opposite-sex partnerships. If one considers the case law, one discovers that one of the breakthroughs for those in cohabiting relationships came when somebody challenged the right of a survivor to inherit a tenancy. The law was originally extended to cohabitees of opposite sexes. It was then challenged by cohabitees of the same sex, who said that they should be put on an equal basis.
That is the law—that relationships outside marriage should be treated equally. The Bill gives one particular type of relationship outside marriage a superior position.
My hon. Friend is contorting himself somewhat. He keeps talking about the elevated status of same-sex couples. Can he not understand the rather simple point that cohabiting heterosexuals have the right to marry whereas gay couples do not? That is unless my hon. Friend is suggesting that gays should dishonestly marry, which no one, I think, would seriously argue. All that the Bill seeks to do is to redress the balance and remove that injustice.
I hear what my hon. Friend says on that, but as the Joint Committee on Human Rights has reported, and as is referred to in one of the Canadian cases, there are many people in heterosexual cohabiting relationships who, for whatever reason, do not wish to get married. The law is that people in cohabiting relationships outside marriage should be treated equally. If the Bill were to create homosexual marriage in law—I think that my hon. Friend might be in favour of that—I would not have an argument on this point of discrimination. However, it does not create homosexual marriage, and perhaps in due course we will find out why the Government do not want it to do so. What it creates is a legal framework for a partnership outside marriage, which will be superior to a partnership of others involved in heterosexual relationships.
If one examines the legal authorities and the work of the Joint Committee on Human Rights, one can see that they share my concern, as do many people outside this House. I predict that if this Bill goes through in its present form, in due course the Government will find themselves forced by the courts to accept that it unlawfully discriminates against opposite-sex cohabitees, who will not be able to enjoy the civil partnership that the Bill sets up. I look forward to hearing the detailed legal response to my amendment from the Minister.
I hope not. I hope that we are able to keep the hon. Gentleman with us. It would certainly make everyone's life an awful lot easier.
However, if the hon. Gentleman goes beyond the rubrics in the case law to which he has just referred, he will find that courts take a very different approach to
that which he has outlined to the Committee today. The courts do not obsess with labels in the way that the hon. Gentleman seems to do; they look at outcomes. They will say that the outcome for a heterosexual unmarried couple is that they have the full range of rights available to them by entering into civil marriage. In my view, that is why there is no compelling human rights argument that says that the provisions of this Bill should be made available to heterosexual unmarried couples.
The broad thrust of the amendment is essentially to reintroduce through the back door the polluting elements of the amendment moved in another place by Baroness O'Cathain. It would corrupt the Bill and destroy the shape and integrity of its principal purpose. My hon. Friend the Member for Christchurch says that the amendments that he has tabled throughout the Bill can perhaps be adapted the better to improve it, but I think that they are designed in many respects to destroy the Bill. My personal view is that his amendments cannot be improved; they can only be removed. It is similar to what someone once said of communism. It is like lacing a drink: the amendments are a drop of arsenic in the Bill, which poisons the whole cup.
Let me address the argument that the inclusion of opposite-sex couples removes discrimination against cohabiting couples. My hon. Friend just argued that, if the Bill were to go through in its original form, under human rights legislation there would be discrimination against cohabiting couples because they would not have the same opportunity that the Bill gives to same-sex couples. However, as my hon. Friend the Member for Buckingham and I have pointed out, and as was said on many occasions in debate on Second Reading and in another place, the principal answer to that point is that opposite-sex couples always have the opportunity of marriage. Should they decide not to marry, that is a matter of choice, rather than discrimination.
My hon. Friend the Member for Christchurch also says—I find this argument peculiarly perverse—that opposite-sex couples are denied the opportunity to have some kind of partnership when they are in a position in which they cannot marry. The reason why they cannot marry is that there is something in law that, for a good reason, prevents them. They may already be married; that is the most likely reason. Their divorce may not have come through. As the hon. Member for Rhondda (Chris Bryant) said from a sedentary position, they may—this is even more peculiar—be members of the same family and therefore be in an incestuous relationship.
There are many reasons under existing law why some people who cohabit cannot also enter into a legal arrangement that says that they are partners or husband and wife. In many of the large number of cases in which a woman and a man are living together, which my hon. Friend cited from the census, it may well be because—if I may put it in the vernacular—they are shacking up, having walked out of a marriage that is still in existence. In his attempt to remove what
he calls discrimination, he is proposing something that risks fundamentally undermining, and competing with, the institution of marriage, which he has always said, throughout the debate, is something that he wants to protect.
The depth of perversity in the logic of my hon. Friend's argument cannot be beaten. Everything that he says is contrary in its effect and practice to what he says that he wants to achieve. If that is the way in which he wants to move amendments in this Committee, it is a pity, because not only is he destroying the Bill, but he is destroying what he says he fundamentally believes in. That is a double whammy of the most perverse sort. I hope that he can see the lack of logic in what he is trying to do.
As the hon. Member for Christchurch has outlined, the first two amendments in the group are intended to allow opposite-sex couples to register as civil partners of each other. He quoted at some length—although selectively—from my preliminary response to the JCHR report. At one point, I feared that he was going to read the whole thing, so I suppose I cannot really criticise him for the selection that he made. However, it would be useful if I outlined to members of the Committee the arguments that I made in that preliminary response as to why the Government do not believe that it is appropriate to extend civil partnerships to opposite-sex couples in the way that the amendments propose.
The justification for the exclusion of opposite-sex couples encompasses two clear policy reasons, which have been touched on by other hon. Members. First, the purpose of the Bill is to address the disadvantages faced by same-sex couples due to the fact that they are unable to marry. It is not that they choose not to marry, but that it is legally impossible for them to do so. As the hon. Member for Rutland and Melton has pointed out, opposite-sex couples can marry. Any argument that they may wish to make for access to a new form of legal recognition for their relationship must be, therefore, wholly different from the case of same-sex couples to whom marriage is absolutely denied. That is not to say that there is no argument about the rights that should be available to those couples who cohabit, but it must be wholly different from that made by same-sex couples, who have no opportunity to establish legal recognition of their relationships. That is the first policy reason for our approach in the Bill.
Will the Minister answer the question about why the Government are not legislating for homosexual marriage? If they did that, the problems that I have described would not exist.
As we said on Second Reading, our approach to the legal situation is to say, ''Let us devise a 21st century way, a new legal relationship, which recognises the legal difficulties and sensitivities that perhaps not everybody in this Committee may share but certainly many people with religious views would share, about the particular historical traditions of marriage that might make it inappropriate for there to be same-sex marriages.'' We have identified where the mischief stands, as the lawyers describe it, and that is the legal invisibility of people in same-sex couples. We
are attempting to remedy that through the Bill, and our approach received widespread support throughout the consultation period. Stonewall, for example, recognises it as the 21st century, modern way to deal with that particular problem.
The second reason for the Government's approach is our view that for opposite-sex couples marriage is the best framework for stable family relationships. I think the hon. Gentleman would agree with that. The irony of his position is that he would want the state to sanction another form of legal relationship for opposite-sex couples that could be seen only as being in direct competition with marriage. It is a deep irony that those people who hold marriage so dear and consider it to be so important at the same time argue for a legally recognised, state sanctioned relationship in direct competition with it. The Government do not want to do that.
Does the Minister agree that heterosexual couples sometimes choose not to marry for very personal reasons of conscience and belief, such as, for example, the historical implication of the term ''marriage'' and the historical nature of the institution in which the woman was treated as property?
I do not think that modern marriage treats women as property, but of course there are a whole range of reasons why people might choose not to marry just as there will be for people who choose not to enter into a civil partnership. The point is that in an opposite-sex relationship, one has that choice; in a same-sex relationship, one does not. This Bill is about putting right that inequality.
Does the Minister not think it both bizarre and unsatisfactory that my hon. Friend the Member for Christchurch has still failed to explain how and why civil partnership for gay couples undermines marriage but civil partnership for heterosexual, cohabiting couples does not?
Yes, it is bizarre. I have nothing to add; the hon. Gentleman is absolutely right.
I move on to some of the legal arguments that the hon. Member for Christchurch made. On Second Reading and again today, he suggested that it was discriminatory for legislation to favour married couples or those in a legally recognised relationship. He quoted from the interim report of the Joint Committee on Human Rights, and he referred in particular—as he has today—to the decision of the Canadian Supreme Court in the case of Miron v. Trudel.
However, the hon. Gentleman did not outline the context and content of that case, and we should be clear about that. It was about financial support under an insurance policy where a spouse was injured in a motor accident. The court found, by a majority of five to four, that there was no justification for the legislature to have restricted the benefits of the legislation in question to married couples to the exclusion of unmarried opposite-sex couples.
That case was not about eligibility to form a particular kind of legal relationship; it was about the appropriate allocation of a particular benefit as between couples in a formal relationship and those who were not in such a relationship. Therefore, it is not clear that even that case supports the hon. Gentleman's contention. Furthermore, he did not go on to add that, in any event, in a more recent decision in the case of Nova Scotia (Attorney General) v. Walsh—which I put in my letter—the same court reached a different conclusion, and with only one dissenting judgment, so that was a very clear majority. This time, considering legislation on the division of matrimonial property, the court emphasised that a distinction may very properly be made between those who decide to marry and those who do not.
It is likely that the European Court of Human Rights would follow the latter approach. As the Joint Committee's interim report recognised, the Court has confirmed that it is compatible with convention rights to treat married couples differently from couples that do not marry.
Does my right hon. Friend agree that the appropriate comparison is between civil partners and spouses and those who could form civil partnerships but have not done so and those who could form married partnerships and have not done so? To do that would be better than mixing the two in this mischievous way.
I do agree. I was going to make precisely that point; my hon. Friend has spelled it out admirably.
Leaving that aside, this Bill is about a new, formal legal relationship that also requires the agreement of both parties. For those couples that do not marry because one partner does not wish to—that example has been used—the availability of civil partnership would be unlikely to help. In other words, the idea that people who do not want to enter into a significant legal relationship with rights and responsibilities as represented by marriage—there could be all sorts of reasons why that would be the case—would then want to enter into civil partnership, which is a very similar legal relationship with very similar rights and responsibilities, is not tenable. If people are not willing, for whatever reason, to take on those legal responsibilities in marriage, they will be unlikely to want to do so in civil partnership. For example, where one person in an opposite-sex couple does not wish to shoulder the financial responsibilities that flow from marriage, it would be highly unlikely that they would want to form a civil partnership with similar rights and responsibilities.
If couples choose not to marry for reasons of personal belief or conscience—we have touched on that—that is a matter entirely for them, not for Government. However, although I do not think that the hon. Member for Christchurch has expressed himself well today, others have explained their concerns about the particular practical problems that people who choose to cohabit can find themselves in, and I am not unsympathetic to their point of view.
Therefore, it might be worth while to draw hon. Members' attention to the range of work that the Government are undertaking on cohabitation issues.
Does the Minister share my view that the hon. Member for Christchurch is missing the point? The debate we are having might make people in opposite-sex relationships who currently choose not to marry consider whether the legal protection outside marriage is adequate, and, by comparison, more of them may actually choose to marry. Therefore this debate is helping his cause rather than undermining it.
The hon. Gentleman makes a fair point. The first strand of work with respect to cohabitation should be about raising awareness of the implications of making the choice to cohabit, as opposed to entering into a legal relationship. It was unfortunate that during the last sitting the hon. Member for Christchurch used the phrase ''common-law marriage'' because there is no such thing. The first strand of work that the Government are undertaking is to dispel the myth of common-law marriage through a public awareness campaign that aims to point out the differences in legal rights between married and unmarried couples. It suggests ways that unmarried couples can protect themselves in the event that their relationship breaks down. That is a practical way to identify those issues and to raise awareness of how they might be overcome.
The second strand of the work on cohabitation is to ensure that full use is made of those rights and responsibilities that already exist between cohabiting couples. Officials at the Department for Constitutional Affairs and my ministerial colleagues are considering ways of making better use of those provisions. For example, schedule 1 of the Children Act 1989 gives courts the power to make property adjustments and to order lump sum or periodical payments for the benefit of children of cohabitant families. However, in 2001, only 428 orders were made under those provisions, compared with 26,627 lump sum and property orders in divorce proceedings. In relation to the protection of the children of cohabiting couples, it may be that more could be done under existing law. I am sure that everyone would consider that a good thing to do.
The third strand of the work is to look in more detail at the current law. The Law Commission is considering including opposite-sex and same-sex cohabitation in its next programme of law reform. The project would examine the approach taken in other jurisdictions and options such as the extension of the ancillary relief regime to unmarried couples.
That body of work ensures that cohabiting couples who do not marry for whatever reason are made fully aware of the consequences of their choice. It provides them with practical advice and information and enables them to make an informed decision about how to protect themselves and their families from some of the consequences of their unmarried status or, should the Bill be accepted, from some of the consequences of their decision not to enter into a civil partnership.
Through the Bill and the accompanying work on cohabitation we are ensuring that the choices made by couples are respected and supported in the most appropriate manner. The difficulty with the amendments, although I recognise that they are caused by concern about the position of cohabiting couples, is that the Bill is not the appropriate place to deal with the issues they cover. I hope that I have given hon. Members some reassurance that the Government take those issues seriously and are engaged in a programme of work to deal with them, but the Bill is about putting right a specific legal difficulty, which is the lack of any opportunity to gain legal visibility for a same-sex relationship. That is what the Bill is aimed at putting right and the basis on which it has been designed. I believe that to be the fundamental basis on which we should proceed and I therefore ask hon. Members to reject the amendment.
Briefly, the third amendment would change the short title to the ''Same-Sex Partnership Bill''. In fact the term ''civil partnership'' was one of the points on which we consulted. It has gained wide currency in the community and the wider public arena. The term properly reflects the secular status of civil partnerships and I cannot see any reason to think again about the point. In fact is that the hon. Member for Christchurch precisely identified that he wanted to change the title only to pursue a particular point, which I do not believe is valid and nor do other hon. Members. I hope that hon. Members will reject that amendment, but perhaps the Government's commitment to righting the difficulties that the Bill is aimed at righting, and dealing with the issues around cohabiting couples, will leave the hon. Gentleman feeling sufficiently reassured to withdraw his amendments.
I am grateful to the Minister for at least responding to the debate, which is a useful precedent. On the title of the Bill, she will know that a Bill before the other place introduced by Lord Lester of Herne Hill was entitled ''Civil Partnerships Bill''. That dealt with setting up civil partnerships for same-sex and opposite-sex couples who wished to have a registration system outside marriage, and it received very favourable comments from the then Leader of the House of Lords, the late Lord Williams of Mostyn. Similarly, a Bill introduced by the hon. Member for Reading, East (Jane Griffiths) under the ten-minute rule procedure talked about civil registration and was intended to apply to both same-sex and opposite-sex couples.
Civil registration or civil partnership implies partnership beyond same sex. This Bill again uses the expression ''civil partnership'', although it is singular rather than plural as it was in Lord Lester's Bill. It creates the impression that this is a Bill about partnership of all types, both same-sex and heterosexual, when we know that it is not. If one talks about the need for plain words and language so that people outside can understand what is going on, it would be much better to describe the Bill as what it actually is: a same-sex partnership Bill. I suspect that the Government's motivation is to try to create confusion, to create a euphemism. There might be
some people who would regard the expression ''same-sex partnership'' as likely to invite discrimination or even, dare one say it, objection or contempt. However, I take the view that if people want to enter a same-sex partnership, they should do so openly and be proud of it. I am sure that that partnership would then command the respect among other people that it should have, and that I would certainly give it. Perhaps the expression ''common-law marriage'' is, again, a euphemism for people living together outside marriage in an opposite-sex relationship.
It is much better for Parliament to legislate openly. If we are talking exclusively about same-sex partnerships—I do not want to limit the Bill in that way, but the Government are insistent on doing so—why do we not grasp the nettle and describe the Bill in its title as a same-sex partnership Bill?
For my own part, I think that ''civil partnership'' is a perfectly adequate, satisfactory and widely supported definition, and I do not agree with my hon. Friend that the expression ''same-sex partnership'' would generally cause hostility, ridicule or contempt. It is only fair, however, to make the point that if on any scale it did so, that would be precisely because of arguments and misrepresentations of the sort that my hon. Friend so enthusiastically peddles.
My hon. Friend does himself no service by trying to be insulting, if that is his intent. As I said at the beginning of my response to the debate, it is not as if I am the first person to come before the House suggesting that we should have a civil partnerships Bill that covers both same-sex and opposite-sex relationships. That was what the hon. Member for Reading, East did. It is also what the Liberal Democrat peer, Lord Lester, did in the other place.
On a point of order, Mr. Gale. It appears to me that the hon. Gentleman is not responding to the debate but is rehearsing the arguments that he put before the Committee. So, in accordance with Standing Order No. 36, I move that the question be now put.
Thank you, Mr. Gale. I am grateful for your protection. I seek to respond to the debate. It has been a good debate and I am sure that people outside the Committee will consider it, because it has some important legal connotations.
The Minister said that her letter of 29 July to the Joint Committee was a preliminary letter. I do not know whether by that she implied that she intends to send a fuller letter. The letter was pretty long, but if it was just a preliminary letter, I would be interested to see the full letter in due course. I do not know whether this will happen, but I hope that the Joint Committee on Human Rights will produce a further report on the legal issues involved, explaining whether they believe that the prima facie discrimination would be against the European convention on human rights. If they produce such a report, it could inform further debate usefully.
I would certainly like the debate about whether the Bill should be extended from the narrow parameters of a same-sex partnership Bill to a Bill embracing legal recognition for a mass of relationships outside marriage—both same-sex and opposite-sex relationships—continued on Report. I think that it goes to the root of the discussion about how we should treat people in different relationships—
Order. What is discussed on Report is a matter for Report and not for now. Mr. Carmichael sought to move closure of the debate. I took it that Mr. Chope was winding up and for that reason I gave him my protection. I am sure that he is coming to a conclusion and he will no doubt indicate to the Committee whether he wishes to press his amendment to a vote or to withdraw it.
Exactly, Mr. Gale. The preamble that I just gave about my view that we need the debate to continue on Report, when the membership of the House will, perhaps, be more representative of society as a whole than is the membership of this Committee, is an indication that I will seek the leave of the Committee to withdraw my amendment in the hope that we will have a more definitive debate on Report.
I share some of my hon. Friend's concerns—I do not believe that the creation of this legal structure is the best way to remedy some of the inequalities and injustices that we talked about. However, I am unable to support his amendments Nos. 183 and 185 because I suspect that, like him, I remember being prepared to vote against the ten-minute rule proposal of the hon. Member for Reading, East—
(c) that each of the proposed civil partners is fully aware of the financial and emotional responsibilities of supporting and caring for the other partner to the civil partnership'.
Before we start, I indicate to the Committee that, having heard a considerable amount of debate this morning and having read the Official Report of previous debates, it is my view that a debate on clause stand part is most unlikely to find favour with the Chair. Hon. Members may wish to be aware of
that in case there are extraneous matters that they wish to tempt my tolerance by seeking to introduce.
Amendment No. 13 was tabled by myself and my hon. Friend the Member for Daventry (Mr. Boswell). It is an attempt to put into page 1 of the Bill a clearer definition of what civil partnerships should be seen to entail. The commitment that is being entered into is far more than merely a financial contract akin to a credit card agreement. It is something that is, and should be, recognised as fundamentally based on a permanent emotional and personal commitment.
The Bill has no such clear recognition of the nature of the commitment. Unlike marriage, no clear words are spoken in any ceremony. In addition, the Bill does not have any kind of description of what we are understood to be doing in passing this legislation. There is also no recognition of the quality and nature of the personal relationship that we are attempting to recognise. The dignity and equivalence that we are trying to afford people does not receive any explicit description in the Bill. It is important that it should. I do not want to anticipate or link other amendments, but our attitude to this one is linked to amendment No. 14. The Minister's attitude to amendment No. 14, which would allow for some kind of verbal statement of commitment, might influence our decision whether to press this one to a Division. Both amendments are essentially trying to achieve the same thing.
What we really want to say is that the commitment is an emotional, not only a financial, one. Amendment No. 193 was tabled by my hon. Friend the Member for Christchurch. Perhaps there is a question mark in the Committee's mind about what he is trying to achieve, and no doubt he will tell us. When he says that he requires partners to be fully aware of the responsibilities of partnership, is he saying that that is because of the financial commitments—which returns us to the equivalence with a credit card or hire purchase agreement—or is he, as I hope he might be, trying to suggest that that is because the relationships are of significant and enduring emotional value?
I certainly think that the Committee will be heartened to hear my hon. Friend specifically and emphatically recognise that such relationships are of enduring and permanent emotional value.
My hon. Friend the Member for Daventry and I tabled amendment No. 13 because there are severe and lasting consequences of entering into a civil partnership of this sort. Potentially, in its simplest form, one can see that, as in marriage, assets and ownership are pooled and that the relationship can be separated only by a process of dissolution, which in many ways is akin to divorce. The nature of that relationship must be fully understood. I think that it is, in the mind of any couple that may be contemplating
entering into it once the provision goes on to the statute book, as I hope it does. However, nothing in the Bill properly and explicitly describes the nature of the relationship that is being entered into.
I will not discuss amendment No. 14 in detail, but it is linked. The possible alternative to the one that we are discussing is that in the ceremony by which two partners have their partnership registered, there can at least be provision for, if not the compulsion for, some kind of verbal statement, which is not in itself the contract, as it would be in marriage. In the form of a ceremony with witnesses, it is a memorable event that clearly states the nature of the relationship and commits each of the two partners to it.
The debate is whether we put that in the Bill under the clause, or by some other vehicle, which the Committee would then approve. The Minister might persuade me that it is not necessary to put it in the clause because it will be covered satisfactorily by the Committee's agreement to a later clause; that would be an adequate substitute.
At the very least, I hope that the Minister and the Committee will agree that, somehow and somewhere, there should be clear expression and detail given of the nature of the partnership that the Bill provides. It should clearly recognise that we are not just talking about some sort of trust deed, or a financial contract or ownership and tenancy terms that benefit the two people who enter into them; the partnership should be specifically recognised as a bond between two people who are committing themselves to each other in a permanent and enduring emotional, loving—
I understand the purport of the amendment but, to play devil's advocate for a moment, is it not at least arguable that the thrust of his concern is reflected already in subsection (3), where reference is made to the fact that the
''civil partnership ends only on death, dissolution or annulment''?
Does not that underline the serious character of the responsibility into which people are entering?
No, because that subsection defines the relationship's conclusion, not its origins, and it is the origins that are the foundation of the value of the Bill. The origins are essentially that two people love each other. One could say of a trust signed by a duke and his heir to keep a big house in the family that it ends only on death, dissolution or annulment. Those are essentially contractual terms, rather than the basis for a relationship. I maintain that the absence of a clearer description in the Bill, or of provisions for the ceremony that derives from it, reduces the purpose of what we are trying to achieve.
I am sympathetic to much of what the hon. Gentleman is saying, not least as under clause 3 we will discuss—through his amendments and some of my own—whether there should be some celebration and what kind of wording should be used. Might he accept that the words of the amendment might seem a little patronising and
condescending to those choosing to enter into a civil partnership? When people get married, the law does not specify that they have to be mutually supportive and so on. It seems a little condescending to put that in the Bill.
I do not think that there is anything patronising or condescending about what I suggest, although there is something different about it. If I may argue against myself, one could say that when the banns of marriage are read in a church, there is no requirement to state the sort of thing that my hon. Friend the Member for Daventry mentioned. In that sense, there is a difference in what I propose, but I do not think that it amounts to discrimination, because I am trying to find some parallel and equivalent, and some method of giving a civil partnership a properly recognised status in law while admitting its emotional, as well as its contractual, content. I think that that is missing. I admit that the Minister might yet persuade me, if she shows that somehow, somewhere, there will be a vehicle for doing that.
To be honest, I am not enormously fussy about how we do what I suggest. The amendment may be a clumsy way to achieve what I want, and amendment No. 14 may be a much better way. However, I hope that the Minister can say that she is prepared to recognise—whether in the ceremony, in a form of words or in a clause—the emotional and personal nature of the relationship; otherwise, we are omitting from the Bill something that it is important to include somewhere. If we do not include it, many will argue that the Bill is not achieving the equality and the equivalence that those of us who support it believe it should.
I am tempted by my hon. Friend's amendment. The fact that I have tabled an amendment that is worded differently does not mean I would not support his amendment if it were put to a vote. My amendment is based on clause 3(4)(d) of the Civil Partnerships Bill introduced by Lord Lester of Herne Hill. His concern was that if people entered into partnerships and the registration process, they should be fully aware of the consequences. That is why my amendment refers to both financial and emotional responsibilities.
The provision in Lord Lester's Bill referred to the ''gravity'' of those financial and emotional responsibilities. I have not referred to gravity because that should be taken for granted. My amendment is slightly more simple. Given that we are discussing the endorsement of long-term relationships, surely it goes without saying that there should be a need for the parties involved to be fully aware of the financial and emotional responsibilities of supporting and caring for the other partner to the civil partnership.
If the hon. Member for Rhondda finds that too patronising, I am disappointed. On Tuesday, he said that he would give advice to a potential partner to a religious marriage if he considered that they might be a little naïve about their fitness or about whether the nature of their relationship was such that it would be
sustainable in the long term. Well, in the absence of someone like him to obtain counsel from, making the declaration in writing—pretty small beer—should be a minimum requirement. That is why I tabled the amendment, although I am also attracted to the amendment tabled by my hon. Friend, and I hope that the Government will give us some ground on these matters.
I, too, am not without sympathy for the motive of the hon. Member for Rutland and Melton in tabling his amendment. On balance, however, his amendment No. 14 would probably be a better way in which to achieve such an outcome than the form of words that we are discussing now. Anyone entering into a civil partnership would be expecting to
''make a serious, mutually supportive and indefinite commitment''.
In the course of practising as a solicitor dealing with divorce cases, I often had cause to muse that making divorce more easily obtainable was something that I would support, but that the only significant change that would meet the difficulties arising as a result of some divorces was to make marriage more difficult. That is why I have sympathy for the motivation behind the amendment. However, I am not willing to go with the hon. Gentleman for several reasons. It is apparent that what the Government have sought to do in drafting the Bill with some exceptional care is reproduce in civil partnership the same rights, responsibilities and procedures as those that are available to people who are entering civil marriage. Such people do not have to meet the test. Unless and until we find a foolproof, safe means of making those people go over such a hurdle, people entering a civil partnership should not have to do so.
As a former lawyer, I can see a new earning opportunity opening in front of me, should the good people of Orkney and Shetland choose to dispense with my services after the next election. The definitions of ''serious'', ''mutually supportive'' and ''indefinite'' could be a dripping roast for many of us for a long time to come. However, I am not here to further the professional standing or practice of my former colleagues. My job is to ensure that the legislation is fit for purpose.
There is potential for challenges from the parents. Let us return, for instance, to the examples given by the Minister about the person who is in hospital and whose homosexual partner is denied rights of access. The rights of a party to a civil partnership in that circumstance might be open to challenge because the basis of the partnership itself could be challenged. There is already a substantial body of case law on what constitutes a void or a voidable marriage, and there would be an even more substantial body of case law in respect of civil partnerships. Case by case, they would be much more open to challenge on the basis that there was some fundamental nullity in their constitution if it could be demonstrated that a partnership was not mutually supportive. That is but one example.
For those reasons, although I am impressed by the hon. Gentleman's motivation, I believe that practical and serious problems would arise if the amendment
were agreed to. Accordingly, although I would be with him on amendment No. 14, I am not with him on these amendments.
I am concerned that the amendment would move the definition of civil partnership much closer to the concept of marriage, and although I understand the motivation of the hon. Member for Rutland and Melton in tabling it, I think that anything that moves civil partnership closer to the concept of marriage is of concern to many of us.
There is an important distinction between marriage and the proposed wording. Marriage is intended to be a lifelong commitment, whereas the amendment confirms the impression that homosexual relationships are transitory; even in relation to a serious, mutually supportive commitment, the hon. Gentleman thinks that the best that same-sex couples can aspire to is an indefinite commitment. It is hardly high romance to say, ''Darling, I love you and I want to make an indefinite commitment to you.'' Does that mean it would last until a better offer came along? I hope that he will reflect on that.
Well, I think the hon. Gentleman might have chosen other words to reflect that. I agree with the hon. Member for Orkney and Shetland (Mr. Carmichael) that this definition could create a lawyer's paradise, because its wording is very loose and the courts might have some difficulty, as we have had, in interpreting what words such as ''indefinite'' mean.
I share the view of most of the members of the Committee who have spoken to amendment No. 13, which was tabled by the hon. Member for Rutland and Melton. In no way do I oppose the intention behind the amendment, which he spelled out. In fact, I am delighted that so many hon. Members in this Committee and on Second Reading readily identified with the Government's aims in introducing the legislation.
Civil partnership has been designed exactly because there are same-sex couples in serious, mutually supportive relationships of indefinite duration—I tend to agree with the definition given by the hon. Member for Rutland and Melton of ''indefinite duration''—who deserve to have their relationship recognised in law. People now and in the future will share their lives and homes, and they will intend to love and care for each other during the whole of their lifetime. Until now, they had no way of having their relationship recognised. That is what the Bill is about.
Of course, that is the equivalent of what we expect of people who enter into and continue in marriage. As the hon. Member for Orkney and Shetland pointed out, we take that for granted for civil marriage. Although there are no words that represent that type of commitment in civil marriage legislation or, to a certain extent, even in the civil marriage registration process, we do not therefore assume that that is not
part of the marriage. That is the slight difficulty with amendment No. 13. The seriousness of the commitment being made is clearly illustrated by reference to the significant rights and responsibilities that will apply to same-sex couples who decide to register as civil partners.
The hon. Member for Buckingham is right about the legal requirements for bringing such a relationship to an end. It is a serious legal undertaking, not something that someone can drift in and out of, and serious legal rights and responsibilities are associated with the whole of it.
I apologise for interrupting the Minister. She is probably coming to this issue, given that there are some interrelated amendments. I am closely following her arguments, as I did those of the hon. Member for Orkney and Shetland, and they have considerable merit. None the less, if there is to be a memorable occasion or a proper recognition of the emotional rather than just the contractual relationship in the civil partnership being entered into, can she not accept that somehow, somewhere in the Bill or in a ceremony there must be a recognition or a statement that allows people to appreciate the memorable emotional and personal occasion from which such a partnership arises?
I hope that I shall be able to give the hon. Gentleman at least some reassurance on that point. I share his view about the emotional significance of civil partnerships—it lies behind the intention of the Bill—and I also share his view that the relationship is far more than simply some sort of financial contract. He is absolutely right, but we must also consider the legal implications of accepting this route for identifying the lifelong, mutually supportive nature of the relationship.
Including the proposed words in the clause would present some difficulties for the Bill. We would face an immediate problem with the practical and legal implications. Even though there are some lawyers on this Committee, I believe that many hon. Members would have sympathy with the hon. Member for Orkney and Shetland, who said that the last thing that we want to do is to create jobs and money for lawyers. There is a slight fear, as I will spell out, that we would do that.
If the additional words were included in clause 1, they could be interpreted as providing a further eligibility requirement for entering into a civil partnership, but how would we set a common standard to define what they meant ? How would we define ''serious'' and who would decide what constitutes a mutually supportive and indefinite commitment? How would the law test whether both civil partners really had that intention? The inclusion of the additional words could create doubt as to whether a couple are eligible to register as civil partners.
Of course, there should be eligibility provisions and the Bill sets them out, but whether the partners are mutually supportive is not one of them. With exception of the hon. Member for Lagan Valley
(Mr. Donaldson), probably all of us take the view that that is what people should feel towards each other before they enter into a civil partnership. The question is whether that should be a legal test or hurdle and whether it could practicably be such.
Why should mutual supportiveness not be a legal test? The Minister seems to be arguing that she would support civil partnerships when one or more partners do not intend to make a serious, mutually supportive and indefinite commitment. How can she, as a matter of Government and public policy, support the entry into civil partnerships of people who do not comply with that requirement?
I was making precisely the opposite point. The intention is to recognise that many people are already in mutually supportive relationships and to give them legal recognition. The question is what the disadvantages of making that a legal condition would be. Such a condition does not exist for marriage because it would be difficult to define legally and would create an additional hurdle. We may believe in general terms that there should be such a condition, but when one starts to go into the details of law, one sees that it would create an open day for lawyers and do nothing to achieve the objective that we all share in recognising that the relationships that we are discussing are serious.
The second legal difficulty with the amendment is that the additional words could be seen as a defining element of the new, ongoing legal relationship that constitutes civil partnership. The hon. Member for Orkney and Shetland touched on that difficulty. If the legal interpretation was that it was an ongoing legal requirement of a civil partnership that it should be mutually supportive, for example, I can imagine the legal difficulties that would arise. I suspect that all of us who have experienced even the very best marriages know that there are occasions, sometimes lasting days and sometimes slightly longer, when it would be difficult to define them as mutually supportive. Things sometimes become tough, but that does not mean that someone should step in and say that the marriage is no longer legally valid. To set in legislation something that could be seen as an ongoing legal requirement would be difficult.
It seems to me a matter of common sense that there is a difference between day-to-day reality and a legally provable fact. Does the Minister not share my concern that the effect of an amendment such as that championed by my hon. Friend the Member for Christchurch could be to impose a layer of regulation, scope for public discord and great expense that would be better avoided?
That is partly my argument. There is a distinction between the overall assumptions that we would make for a relationship and the legal details of how that relationship's eligibility requirements, ongoing status and the process of dissolving it would be recognised in law.
That brings me to the final legal difficulty: if one were not careful, such words would be seen as a further reason for dissolution. We will discuss the reasons for dissolution, but we have quite rightly
spelled out the serious legal requirements for bringing the relationship to an end, and the amendment could add an extra reason. To characterise my position, I have considerable sympathy with the intentions of amendment No. 13, but there are times when it is right for the law to be dry and clear. That does not mean the process should be dry, however.
The hon. Member for Rutland and Melton pushed me on whether the Government could do anything to ensure that the process of entering into a civil partnership said something about its significance. That issue was raised in the Lords as well. Government amendments Nos. 23 and 25 are intended precisely to ensure that the legal document to be signed by civil partners features some words recognising the seriousness of what is being undertaken and that there is the opportunity for civil partners to speak those words during registration. The words would not have a legal impact, but we want to find a way to include them. I hope that gives him some reassurance.
The fact that we have set down legal requirements does not mean that I do not personally hope that there will be some good celebrations and parties. I am angling for some invitations. I expect that there will be some important, moving and enjoyable events. The question is whether it is right to lay down in law what they should be. I do not think it is right because it is too restrictive, but I hope that such events will happen, as they will be in keeping with the legislation's intention.
I shall now discuss amendment No. 193, which was tabled by the hon. Member for Christchurch. It seeks to add to the declaration to be made by each of the proposed civil partners when he or she gives notice of wanting to enter into a civil partnership. It would mean that each partner had to declare that they and their proposed civil partner were fully aware of the financial and emotional responsibilities of supporting and caring for the other partner.
Under clause 9, each party must complete a notice of proposed civil partnership containing a declaration that they believe that there is no impediment to the formation of the partnership and that each of them has had the required period of at least seven days' residence in England or Wales immediately before giving notice. Adding to the notice a declaration relating to the financial and emotional responsibilities involved in a civil partnership is unnecessary. Such a declaration would place on proposed civil partners a requirement that is not placed on opposite-sex couples giving notice of their intention to marry, and it would create the problem of needing to find a way of judging whether proposed civil partners were fully aware of those responsibilities. We hope and expect that they would be.
I do not think that my hon. Friend is being serious, but he identifies one of the difficulties in which one might find oneself if one expects potential civil partners to undergo a test to check their declarations. That would not be satisfactory, but we want to ensure that people have every opportunity to
gain an understanding of what they are taking on by entering into a civil partnership. The Government will consider how to raise awareness of the new legal relationship and the rights and responsibilities associated with it. We will need to do that in the implementation period and to do so specifically for couples, perhaps by providing them with written information when they come to make their notice of declaration. We need to explore all those avenues, but making a legal requirement is unnecessary and could be legally difficult. For those reasons, I hope that hon. Members will not press their amendments.
I thank the Minister for giving us such a comprehensive assessment and explanation. I am largely persuaded by what she has said about the unequal hurdles that the amendment might create in entering a civil partnership; it appears that amendment No. 13 would be unlucky for some. She has adeptly shifted the debate from what is essentially a principle on which all Committee members might be said to agree—amazingly, it does not appear to unite all Committee members—to a discussion that we will come to later when deciding between amendment No. 14 and Government amendment No. 25 in trying to find the best vehicle for achieving the objective. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Before we proceed, I inform the Committee that I have had an indication from the hon. Member for Christchurch that he wishes to press amendment No. 193 to a Division. That will fall at the appropriate time in the proceedings, which is not now.
The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause, as amended, stand part of the Bill:—
The Committee divided: Ayes 14, Noes 2.