Schedule 4 - Effect of extension of marriage: further provision

Marriage (Same Sex Couples) Bill – in a Public Bill Committee at 2:30 pm on 7 March 2013.

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Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate 2:30, 7 March 2013

I beg to move amendment 42, in schedule 4, page 26, line 9, leave out paragraphs 3 and 4.

I am going to try to be helpful. I do not want to bowl any googlies or chinamen to the Minister, particularly as we are long into day four when, as he will know, the pitch becomes very difficult—he would not like to be out there for too long.

“The Bill proceeds on the basis that marriage should be ‘equal’ and that gender is irrelevant, yet inevitably has to recognise that this logic breaks down e.g. in relation to non-consummation and adultery, both of which are to remain grounds for the ending of  marriages between opposite sex couples. This illustrates the fallacy of seeking to equate equality with uniformity and to redefine as identical those things that are intrinsically and objectively distinctive.”

Those are not my words. They could have been, but they were taken directly from the Church of England’s briefing for the Committee. The Church of England is not happy with schedule 4 and neither am I nor many millions out there.

The Secretary of State responded to a question from the right hon. Member for Exeter about whether she wanted to pursue reform of the whole issue of adultery and consummation. She replied:

“We looked very closely at the relevance of those two concepts to extending marriage, but I did not really feel that it was appropriate to get into reforming those particular concepts as part of the scope of the Bill.”––[Official Report, Marriage (Same Sex Couples) Public Bill Committee, 12 February 2013; c. 6, Q12.]

I have tabled amendment 42 because I just do not think that that answer is good enough.

I appreciate that the Minister has distinguished his own view from the Secretary of State’s reference to marriage as a “gold standard,” and now the amendment gives him the opportunity to distinguish himself by defending the relevant purpose and concept of adultery and consummation in 2013. I look forward to his robust defence—I know that he has it, and that he will put his foot forward solidly without any gaps to be shown. In his defence of adultery and consummation as a relevant concept, I look forward to him referring to the correspondence with the hon. Member for Rhondda, who was able to confirm that 15% of divorces cite the importantly objective ground of adultery. That is not an insignificant red herring, as some would like to tell us—indeed, some who gave evidence sought to suggest that.

Without amendment 42, the Government are actually taking their defence away. They are lifting their bat to the balls bowled perhaps by the right hon. Member for Exeter or others, or campaign groups. They question the modern relevance of adultery and consummation. Is this all, as Stonewall told us, simply a heterosexual sex obsession? Well, if the Government reject amendment 42, maybe they agree with Stonewall; maybe they are putting up the white flag and saying that as far as marriage is concerned, the sexual fidelity and union aspect is now not quite so relevant. Amendment 42 would allow the Government to extend the notion of equality—this is where the Minister may think I am being helpful—by saying that the provisions are universally applicable to all married couples, whatever their sexuality, in common law. The amendment would do what I understand the Government intend the Bill to do and what they intended to happen after their first stab at redefining marriage, when the Bill was in consultation. In that first attempt, they wanted to leave the whole issue. They did not want to deal with it, discuss it or have a Bill Committee go through it. They wanted to leave it to the courts to decide, and for Parliament to not have anything to do with this tricky subject. They wanted to deal with the problems further down the track, and let the judges decide. I understand that there was a bit of reaction from the judges, the Law Officers and others about that proposal. Nevertheless, that was the situation.

I am trying to help the Minister, but there is only so much I can do to help the Government out of this particularly sticky wicket. The Government have opened  up the box of marriage. They are trying to fit same-sex marriage into the frame of heterosexual marriage, but they have to admit that the schedule fails to do that. If marriage is to mean anything to anyone—or, to put it another way, if its meaning is to be reduced to its lowest common denominator, to an emotion, rather than a conjugal lifelong bond—how can the Government justify the inequality that adultery and consummation will apply to opposite-sex couples and not to same-sex couples? Somewhere down the track, we might come to the conclusion that adultery and consummation are outdated concepts that should be abolished, that they should not be recognised by the state, but just be left to the Church and other religions to get obsessed over. Maybe that is where we are heading, but is that what the Government want? Unless they properly apply themselves to it, that might well be the end result.

In my generous spirit, the amendment could be supported by the majority of Committee members opposed to my view, who can look to the courts and say that we should leave it to case law. The courts will whittle away the concepts of adultery and consummation. It allows notionally for the Government to say that the Bill is about equality, and allows the courts to decide. I do not think that is a good position to be in. However, I am left in that position with the amendment, because the Government’s position is to redefine marriage. If the Committee wants to recognise and support equality and the equal applicability of issues that affect all those who are married, I look forward to it supporting the amendment, which not only supports equality, but also retains the relevance of sexual union and fidelity in marriage.

Photo of Tim Loughton Tim Loughton Conservative, East Worthing and Shoreham

I rise to support the amendment, which is in my name and those of my hon. Friends. The opposition of those of us who take the view that marriage should remain a distinctive category for different-sex relationships has been significantly compounded by the presence of some double standards at the heart of the Bill. Those double standards, which have a number of unfortunate implications, as my hon. Friend the Member for Enfield, Southgate said, are expressed nowhere more clearly than in schedule 4. The amendment would go a good way to addressing and correcting that. The Government have understandably made much about how they are creating equal marriage, as they term it. The schedule shows even more clearly than clause 9 that the Bill is failing in that task.

Photo of Jane Ellison Jane Ellison Conservative, Battersea

Before the hon. Gentleman develops his point, has he ever put it to the Church of England that there is an existing double standard? As we established during evidence, somebody in a heterosexual marriage who has sex with somebody of the same sex does not currently commit adultery.

Photo of Tim Loughton Tim Loughton Conservative, East Worthing and Shoreham

I am aware of countless contradictions in the Church of England and various other Churches as well. Just about any aspect of the Bill that we have discussed could probably be held up to the same charge. Let me develop my argument in support of the amendment, and my hon. Friend can come back to me. If the Government want to bring same-sex relationships within the same substantive framework as different-sex relationships so that the category of marriage encompasses  both, their project would have a certain logic and would meet their given equal marriage objectives. However, schedule 4 suggests that a same-sex couple relationship should be described as married even while not submitting to the substantive definition of marriage in relation to consummation and adultery.

For centuries, adultery has been recognised as a ground for divorce. It was given recognition in statute under section 1 of the Matrimonial Causes Act 1973, and it is cited as a ground for divorce in around 15% of cases. Such recognition of adultery reflects the importance of the values of faithfulness and exclusivity that have been, and I hope will continue to be, so central to the understanding of marriage. I am sure that Ministers want them to be so as well. Paragraph 3 of schedule 4 provides that only adultery committed in a heterosexual marriage counts as grounds for divorce. According to the Bill, someone who is sexually unfaithful to their same-sex spouse with another person of the same sex has not committed adultery, and that is what the amendment would reverse.

Another fundamental feature of the understanding of marriage for hundreds of years has been the necessity of sexual union for the validity of a marriage, and that is also expressed under statute in section 12 of the 1973 Act. In schedule 4 to the Bill, however, the Government seem to be saying that sexual union is necessary only for opposite-sex married couples, and amendment 42 would reverse that. If the necessity of sexual union is no longer perceived as central to the understanding of marriage, surely marriage is severely reduced to simply a bond of companionship and attachment. Where is the romantic aspect of the marriage bond, with or without the ceremony, “Brigadoon” and all that we discussed this morning? Paragraphs 3 and 4 of schedule 4 plainly fail to bring about equality between opposite-sex marriage and same-sex marriage couples. That is a major problem, especially considering the fact that equality was such a driving motive behind the Government’s plans to redefine marriage. Why should a same-sex couple who want to get married not be subject to the same obligations and rules as an opposite-sex couple who want to get married? One could logically make the case for legal recognition of same-sex relationships, but if the standards of commitment required are different from those required in a marriage, it would be completely wrong to categorise such relationships as marriage.

As someone who voted for civil partnerships, I find it interesting that just as clause 9 paves the way for vow-less marriages for same-sex couples, as is the case with civil partnerships, schedule 4 paves the way for marriages that cannot be annulled on the grounds of non-consummation and that cannot be dissolved on the grounds of adultery. Again, that is the case with civil partnerships. If the Government are serious about equal marriage, they cannot simply take civil partnerships and drop them into marriage. That does not amount to drawing same-sex relationships into the same framework as marriage; it simply makes the case for civil partnerships.

The Government have got themselves into a bit of a pickle because they have not observed simple category logic, which must observe the following principles. First, if two arrangements that are substantially the same are subjected to a difference of treatment, that amounts to discrimination. Secondly, if two arrangements that are different are treated differently, that does not amount to  discrimination. Thirdly, if two arrangements that are different are treated as the same, the effect is to be discriminatory by giving one arrangement the same identity as the other and suggesting that it is the same when it is not. Simples, Mr Streeter; I am sure you agree.

Amendment 42 makes the point that the Government need to make their mind up. They have to come down on one side of the fence or the other. Do they want to provide a legal framework for recognising same-sex partnerships that does not draw such partnerships into the same substantive framework as marriage, that makes no requirements in relation to adultery or consummation and that does not insist on vows? Or do the Government want to draw same-sex relationships into the same substantive framework as marriage, with all that that means in terms of adultery, consummation and vows? They have to choose.

If the Government want to create a legal framework for recognising same-sex partnerships that does not draw them into the same substantive framework as marriage but makes no requirements in relation to adultery and consummation and does not insist on vows, the Bill is not necessary because we already have such provision in the form of civil partnerships. If, however, the Government want to draw same-sex relationships into the same substantive framework as marriage so that they can be classed as marriage, the Bill does not rise to that challenge. It could, however, if we passed amendment 42.

The Government’s position is rather confused because they have implied that they want to draw same-sex relationships within the same framework as marriage, but the Bill does no such thing. On that basis, the result is a framework that inevitably invites a distinction between real marriage and pseudo marriage, not because of the sexes of the two people concerned but because of a failure to fulfil the same definition of commitment as that which exists for marriage now—[Interruption.] The Whip is getting rather exercised by consummation, I hear. Rather than creating a framework that invites this distinction, how much better it would be simply to accept that the mode of commitment between the two forms of relationship is different and, rather than falsely categorising them as one, which would inevitably result in the observation that one of them does not fulfil that definition, we should simply affirm both sets of relationships in their own terms as a real marriage and a real civil partnership.

Of particular importance, by removing the consummation and adultery provisions—amendment 42 would reverse that—the Bill not only initiates discriminatory, unequal marriage practice, demanding less of one category of relationship yet placing it with a category that requires more, but it also unquestionably undermines marriage. Just as in stating that vows are not necessary for marriage, clause 9 makes it plain that vows, one of the ultimate expressions of commitment, are not central to the identity of marriage. Schedule 4 makes it plain that neither adultery nor consummation need play a role in redefining marriage and it is quite extraordinary that the Government, who have talked so much about the importance of commitment and about supporting marriage—the Prime  Minister, quite rightly, has said that he is a huge fan of marriage—should have introduced legislation that suggests that vows, consummation and adultery as grounds for divorce are not necessary to the definition of marriage, since that cannot but have the effect of undermining the current definition of commitment, which is at the heart of marriage as we know it.

The place of adultery in the principles governing marriage is particularly important: it is a ground for divorce because adultery—the breaking of faithfulness—is incompatible with the definition of marriage, which has faithfulness at its heart. The place of adultery as a ground for divorce, therefore, is as a guarantor of faithfulness and commitment in the definition of marriage in the sense that its absence is recognised as a negation of marriage. One cannot end the practice of stating that adultery is a ground for divorce in marriage per se without implying that faithfulness and commitment are less important to marriage; by taking that ground for divorce away, one has to imply that.

In seeking fully to understand the implications of removing adultery as a ground for divorce in some marriages, it is interesting to note that some lawyers have suggested that if marriage is redefined in this way, replete with schedule 4 unamended by amendment 42, in time adultery would, in practice, cease to be used as a ground for divorce for different-sex as well as same-sex marriages. The implications of that are profound and deeply ironic.

When my right hon. Friend the Member for Chingford and Woodford Green (Mr Duncan Smith) was Leader of the Opposition, he set up the Social Justice Policy Group, which produced two important reports: “Breakdown Britain” and “Breakthrough Britain”. Those reports, which defined the broken Britain phenomenon, were distinctive for giving rise to a series of policy proposals that sought to renew the family through supporting commitment and through supporting marriage. Three years into this Government, however, rather than introduce robust pro-marriage policies such as transferable allowances for married couples, which we alluded to this morning, the only thing the Government have done is to introduce a deeply muddled Bill that cannot but undermine marriage, not just as it is manifest for same-sex couples, but for everyone.

I am not at all sure how we have managed to lose the plot so badly. My amendment 42, importantly, provides a means for ending the category muddle in the Bill.

Photo of Stephen Gilbert Stephen Gilbert Liberal Democrat, St Austell and Newquay 2:45, 7 March 2013

I am trying to follow my hon. Friend’s logic. Is he honestly suggesting, with a straight face, that opposite-sex couples may not be able to end their marriage because of one partner being unfaithful unless the Bill is amended? Surely, if he hears that in those terms, he will recognise that that is ridiculous.

Photo of Tim Loughton Tim Loughton Conservative, East Worthing and Shoreham

I am grateful that my hon. Friend has been following my logic; I am not entirely sure that I was able to follow his. I was trying to say, if the grounds for the ending of one type of marriage are different from the grounds for the ending of another type of marriage—that type of marriage which we are now trying to legitimise in this Bill—where is the equality in that?

We have had previous debates about the basis of the rules by which one enters into a relationship, a same-sex marriage or an opposite-sex marriage. We need to get this absolutely clear. Whether we agree or disagree with it in principle, certainly we must make sure that the legislation is robust enough not to be subject to all sorts of challenges and interpretation in the courts. Just as this is important regarding the rules for entering into a marriage, so surely it must be as important to ensure that we have differentiated and distinctly identified what constitutes the ending of that marriage as well, and the grounds for going to court to get that marriage ended. In just the same way, this morning we tried to identify the procedure for converting a civil partnership into a new same-sex marriage.

In conclusion, the amendment helpfully provides a means of ending the category muddle in this Bill, and of bringing same-sex relationships into the same frame of reference as different-sex relationships. In that respect I think it is helpful for the Bill; it also promotes equality, which is at the heart of the Government’s case for the Bill. I hope to have a favourable response to it from the Minister.

Photo of Hugh Robertson Hugh Robertson The Minister of State, Department for Culture, Media and Sport

As hon. Members have said, the amendment would remove paragraph 3 of schedule 4 to the Bill, which maintains the current definition of adultery for both opposite-sex and same-sex married couples, and paragraph 4 of schedule 4, which provides that non-consummation will not be a reason for the marriage of a same-sex couple to be void. The effect of these amendments would of course be that issues about adultery and non-consummation in respect of divorce and annulment of the marriages of same-sex couples would have to be determined over time by case law. As part of the consultation process the Government carefully considered whether allowing case law to develop these concepts as they relate to sexual activity between people of the same sex might be a potential means of applying them to same-sex marriage. However, we concluded, and I think the reasons for that are obvious, that this would not give couples adequate clarity and could lead to difficulties for people seeking to apply for divorce or annulment.

Let me deal first with the issue of adultery, which is of course a factor in divorce. The current definition of adultery has been developed in case law, and is detailed and explicit about the nature of sexual relations between members of the opposite sex that constitute adultery. The definition of adultery does not cover sexual relations between members of the same sex, or the precise acts which would constitute adultery between a man and another man, or a woman and another woman. That would of course need to be determined over time by the courts.

That would mean significant uncertainty for couples. It could lead to divorce applications failing, and adultery would be difficult to prove. It would also open up uncertainty for opposite-sex married couples, for whom sexual activity with a person of the same sex is not currently adultery. To make that absolutely clear, currently if one party in a heterosexual marriage has sexual relations with somebody of the same sex, that is of course not adultery. So this is not a new absurdity, if indeed the hon. Gentleman thinks it is. Of course, it was specifically not addressed at the time of the Civil Partnership Bill, which the hon. Gentleman has told us with much  pride that he voted for. [Interruption.] Paragraph 3 of schedule 4 makes it clear that sexual activity with a member of the opposite sex will constitute adultery for all married couples. Adultery will therefore continue to mean the same for both same-sex and opposite-sex married couples, as well as sexual relations with a person of the same sex.

Turning now to consummation, non-consummation makes the marriage of an opposite-sex couple voidable. Consummation is a concept that historically concerns the possibility of procreation, and therefore it would not make a great deal of sense to extend it to same-sex couples. In addition, the same sort of difficulties would apply to proving non-consummation of a same-sex marriage, whether by wilful refusal to consummate the marriage or because of incapacity, as apply to defining adultery between people of the same sex. Ensuring that couples understand their legal position is important, and it would be difficult to define the acts that constitute consummation of the marriage of a same-sex couple with the certainty needed for legal proceedings.

My hon. Friend the Member for East Worthing and Shoreham asked why sexual union is not necessary for same-sex marriage but is necessary for opposite-sex marriage. Consummation is not in fact necessary for any marriage; it is simply that non-consummation makes a marriage voidable on application by one of the parties. Adultery is a central ground for divorce. He is absolutely right about the figures, which are in the ballpark area, but there is an opportunity to cite unreasonable behaviour as grounds for divorce. The different treatment of those things does not mean that, as my hon. Friend the Member for Enfield, Southgate suggests, it is not marriage. There are certain circumstances in which, necessarily, same-sex and opposite-sex marriages are subject to different treatment. That is the nature of the beast, but it does not mean, in my view, that same-sex couples should not be married.

Taken together, paragraphs 3 and 4 of schedule 4 provide clarity on the facts of divorce if a person’s spouse is unfaithful and the marriage has broken down, and on when a marriage may be annulled. I therefore ask my hon. Friend to withdraw his amendment.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

I am pleased that we have had this debate, which not everyone necessarily wanted. Schedules often reveal the most controversial aspects of a Bill, which is the case here.

What we have heard from the Minister is helpful. We have heard his thesis on the laws and concepts relating to adultery and consummation, both of which are linked to the framework and historical understanding of procreation. That explanation might not convince my hon. Friend the Member for Battersea, but the difference comes from the structural framework of procreation.

The Minister’s thesis did not provide as positive a defence as I was looking forward to in relation to adultery and consummation, but at least the debate has addressed what the schedule has exposed, which is the flawed notion of equal marriage as a concept—the amendment inadequately sought to deal with that. The schedule plainly shows that same-sex marriage is not equal. The amendment exposes what happens when marriage is redefined. Yes, the Minister can seek to  change how people access marriage, but he must also change how people exit marriage and, in doing so, change and redefine the nature and purpose of marriage.

The position we are in now is where the Government want us to be, which is basically to say to same-sex couples, “Adultery is not relevant to you. It does not matter.” I do not believe the Government or the Minister would dream of saying that to heterosexual couples. They would not say that adultery is no longer specifically recognised in law. They would not say that time has moved on. They would not suggest that a husband or wife having an affair with someone else does not, in and of itself, violate the ties of marriage by saying, “Well, if you can prove that adultery constitutes unreasonable behaviour, you can get a divorce; if the judge disagrees with your assessment, you cannot.” I believe we are heading down that track, and I am concerned, but I do not believe that even the amendment would compensate for the Bill’s flaws. Nevertheless, this debate has been useful of sorts, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Kate Green Kate Green Shadow Minister (Equalities) 3:00, 7 March 2013

I beg to move amendment 56, page 33, line 40, in schedule 4, leave out paragraph 15 and insert—

‘15 (1) Schedule 9 of the Equality Act 2010 (work: exceptions) is amended as follows.

(2) Omit sub-paragraph 18(1).’

I am grateful for the opportunity to move this amendment, and I am also grateful to Liberty for its drafting advice and for the briefing it provided to all members of the Committee.

The amendment would remove the exemption from the Equality Act 2010 which allows employers to treat married couples differently from civil partners as regards pension rights attributable to employment service prior to December 2005. In this legislation, not only is that current discrimination in relation to civil partners continued, but it also takes forward the same distinction to same-sex married couples so that, in terms of these pension rights, they would be treated differently from opposite-sex married couples. That uneven treatment would, therefore, be continued.

Paragraph 18 of schedule 9 to the Equality Act provides that withholding a benefit, facility or service that would be available to a married person from somebody in a civil partnership in relation to rights accrued before civil partnerships were introduced in this country does not constitute discrimination. There was a debate about this issue when the Civil Partnerships Act 2004 was introduced. Clearly, at a time when the concept of civil partnerships were controversial and new, it felt difficult to extend pension rights to civil partners prior to the possibility of civil partnership. However, over the nearly 10 years since, we have seen a number of developments in the way that civil partnerships have been accepted and, as an effect, correcting a wrong that existed in not legitimising same-sex relationships at all. It is important to note that the pensions industry has, in many cases, responded to the uneven treatment of civil partners by affording same-sex civil partner survivors the same pension rights that opposite-sex spouses enjoy.

In January of this year, Liberty acted on behalf of a client, John Walker, who won a legal battle to secure equal pension benefits for his civil partner. In that case, the employment tribunal found that an occupational pension scheme that provided that John’s civil partner could only benefit from pension rights accrued since 2005 when civil partnerships became available in the UK was directly discriminatory. In reaching that decision, the tribunal was reliant on a European Court judgment—Maruko, of 1 April 2008—which concerned the right of a same-sex partner to receive a widow’s pension when the partner dies. The Court concluded that treating married and same-sex couples differently in this respect, where national law recognised the relationships as equivalent in other respects, breached the framework directive on equal treatment in employment 2000/78/EC.

It is clear that the decision has been taken at a low level in the domestic courts, and it has been taken by an employment tribunal. It is fairly clear that the decision to follow a European framework directive is placed in the context of the legal circumstances that govern pensions law. It feels unwise, therefore, for the Bill before us to seek not only to perpetuate but to extend that discrimination in relation to same-sex married survivors. If the legislation is not amended to take account of the Walker judgment and the reliance on the European Court findings, it is likely that further legal action will be taken by same-sex married partners. They will seek to have similar redress in the courts to ensure that they too can access pension rights in an equal way. That would be regrettable, given that the overall context of the Bill is, undoubtedly, to offer greater recognition of the equal status of the partnerships and marriages of same-sex couples. Given the points raised by hon. Members in earlier debates, it is important to acknowledge that it is difficult to argue that the Bill does or can achieve perfect equality. It recognises the different circumstances of same-sex and opposite-sex couples to the extent that it does not say that equal means identical. It would be unnecessary to create differences where there is no intrinsic need for a difference of treatment within the context of the Bill, which the current wish to extend the exemption in the Equality Act would unfortunately do.

Overall the impact of the amendment would be relatively insignificant. The numbers involved will be quite small. Not everyone who enters a same-sex marriage will be entitled to an occupational pension, so survivor benefits may not arise in the first place. Secondly, the spouses would need to die in the right order for the pension right to be engaged. In any event, it is the business of these private pension funds to manage these sorts of risk and I venture to suggest that in the scheme of the pension books that they run, the scale of this risk is one that they could easily accommodate. I hope the Minister can give us some indication of the Government’s thinking on the amendment and the reason for the provision in the Bill as it currently stands.

Photo of Hugh Robertson Hugh Robertson The Minister of State, Department for Culture, Media and Sport

I thank the hon. Lady for tabling the amendment. As she correctly said, this is a substantive amendment that removes the exception in the Equality Act 2010 that allows occupational pension schemes only to take into consideration accruals from 2005 for the purpose of survivor benefits for those in a civil partnership or a same-sex marriage. The exception does not apply to contracted-out rights. Occupational pension  schemes that have contracted out of the state second pension have different requirements for calculating survivor benefits, which have to reflect benefits that would be payable under the state pension.

When civil partnerships were introduced in 2005, an exception was inserted into then legislation, now rolled over into in the Equality Act, which provided that it was not discrimination to restrict access to a benefit or facility to someone who was not married, where that benefit was payable in respect of periods of service before 5 December 2005, or was accrued before that date. In practical and easy to understand terms that means that an occupational pension scheme, which provides benefits to married couples, can restrict the provision of survivor benefits for those members in a civil partnership to accruals after the date civil partnerships were introduced. The Bill will extend that provision to apply to same-sex marriages.

The exception was introduced to prevent schemes from having retrospective financial obligations towards surviving civil partners that they would not have taken into account in their scheme funding assumptions. The hon. Lady and I have discussed this before. However, the exception sets out the minimum that pension schemes have to do to comply with equality law should they wish to provide survivor benefits. It does not stop them treating all members, whether in a civil partnership, an opposite-sex marriage or, under this Bill, a same-sex marriage, exactly the same. Indeed, as the hon. Lady mentioned, around two thirds of schemes already provide more than this required minimum.

In drawing up these regulations, we tried to balance the interests of all the parties involved in a pension scheme, both those who will draw in the future and those who have contributed in the past. We are absolutely committed to equality for those who are either in a civil partnership or a same-sex marriage, but we have to balance that against the additional and retrospective financial burdens on schemes that would arise from removing this exception. We are very conscious that defined benefit schemes already face pretty tough economic conditions.

The hon. Lady referred to the case brought by Liberty. I am bound to tell her that the Government do not agree with the finding in that case and are in the process of considering our response. As with any issue of this sort, the power to resolve it does not lie solely within my Department or that of my hon. Friend the Under-Secretary of State for Justice. It requires work with the Department for Work and Pensions and, indeed, the Treasury. As a result of the need to consult with them, and the uncertainty with the Liberty case, I propose that by far the best thing for me to do today is to make an undertaking to take this away and to consult with colleagues across Government. Please do not take that either way. It does not mean that we will reject it or accept it—it simply means that we will take it away and look at it. I do not want anybody getting too excited just yet. We will return to the matter in substantive form at Report stage.

Photo of Kate Green Kate Green Shadow Minister (Equalities)

I am grateful for the Minister’s response. As he says, we discussed this amendment some time prior to the Committee’s sitting. He is right to draw attention to a number of aspects that mean that there should be some kind of investigation into the implications of what is proposed in this amendment. He is right to  allude to the possibility that the Government may yet take steps in response to the Walker decision, which could affect the likely continuation of this kind of provision either way.

It is also right to say that the pensions industry has been responsive. As the Minister says, two thirds of the industry have already offered more generous survivor benefits and there may be scope to have further discussions with the industry also. If they do not see any difficulty with this amendment, I am sure that the Minister and his fellow Ministers would want to take account of that attitude too. In the scheme of things, I venture to suggest this would not be a huge burden on the industry. But of course it is right that those discussions should take place. I very much welcome the Minister’s assurance that time will be taken now to investigate possibilities properly and perhaps identify any potential difficulties that have not yet occurred to me. On that basis, I am happy for the Committee to withdraw my amendment and I look forward to discussing this matter again, if necessary, on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Kate Green Kate Green Shadow Minister (Equalities)

I beg to move amendment 62, page 34, line 4, in schedule 4, at end insert—

(c) a woman who is married to a woman who is her spouse where—

(i) the spouse is a woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, and

(ii) the marriage subsisted before the time when that certificate was issued.’.

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

With this it will be convenient to discuss the following:

Amendment 63, page 34, line 22, in schedule 4, leave out ‘after “partner’s” insert “or surviving same sex spouse’s”.’ and insert ‘—

(a) after “partner’s” insert “or surviving same sex spouse’s”;

(b) at end insert “but this limitation does not apply to a surviving same sex spouse by virtue of gender recognition as defined in (4C) below.”.’.

Amendment 64, page 34, line 21, in schedule 4, at end insert—

‘(2A) In subsection (3) after “widow’s”, insert “or a survivor same sex spouse’s, where within (4C) below,”.’.

Amendment 65, page 34, line 22 , in schedule 4, at end insert—

‘(3A) After subsection (4B) insert—

(4C) A surviving same sex spouse is ‘a same sex spouse by virtue of gender recognition’ where she was married to—

(a) a spouse who was a woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, and

(b) the marriage subsisted before the time when that certificate was issued.”.’.

Amendment 66, page 34, line 29, in schedule 4, leave out

‘is a man married to a woman, and the earner’ and insert

‘is a man married to a woman, or a woman within (4) below who is married to a woman, and the earner’.

Amendment 67, page 34, line 32, in schedule 4, leave out

‘is a married woman, a man married to a man, or a civil partner, and the earner dies’ and insert

‘is a married woman except within (4) below, a man married to man, or a civil partner, and the earner dies’.

Amendment 68, page 34, line 34, in schedule 4, at end insert—

‘(4) A woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, whose marriage subsisted before the time when that certificate was issued.’.

Amendment 69, page 34, line 35, in schedule 4, leave out

‘, in subsection (4), for “widower or surviving civil partner of an earner” substitute “widower of a female earner, the survivor of a marriage with an earner of the same sex, or the survivor of a civil partnership with an earner,”.’ and insert

‘—

(a) in subsection (4), for “widower or surviving civil partner of an earner” substitute “widower of a female earner, the survivor of a marriage with an earner of the same sex, or the survivor of a civil partnership with an earner,”;

(b) at the end insert—

“(5) The limitation in subsection 4 shall not apply to the survivor of a marriage with an earner of the same sex in which the survivor was married to—

(a) a spouse who was a woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, and

(b) the marriage subsisted before the time when that certificate was issued.”.’.

Photo of Kate Green Kate Green Shadow Minister (Equalities)

With the Committee’s permission, I would like to talk about these amendments as a package rather than to go through them individually. They are quite complex when looked at in isolation but they tell a story which, again, the Minister and I have had the opportunity to discuss before the Committee’s sitting this afternoon. We are now talking about a very small group of people who are at risk of being adversely affected by the provisions of this Bill—ironically, because this Bill is, in other respects, improving the position of these people. I am sure that it is not the Government’s intention to give with one hand and take away with another. It is unfortunate that this would be the consequence as the Bill is currently drafted.

We are talking about couples who have married in an opposite-sex marriage and whose marriage may have existed over many years. One member of the couple may have considered the possibility of undergoing gender reassignment but may have felt that they would not want to do that because, in reassigning their gender, the marriage would be dissolved. The opposite-sex marriage will therefore have continued until now when the Bill offers them the possibility of undergoing gender reassignment while allowing the marriage to continue. This is a welcome provision of this Bill. However, as the Bill currently stands, it has the perverse effect of preventing the surviving widow in that marriage from retaining pension rights that she would enjoy if that gender reassignment did not take place.

Therefore, in the case of a woman whose spouse is a woman by virtue of a full gender recognition certificate and the marriage existed before the certificate was issued, my amendment would ensure that her entitlement to survivor’s benefits—whether from contacting-in or contracted-out schemes—are not reduced when they become a same-sex married couple. There would be no new cost at all to the Exchequer or to pension fund providers from this amendment. Of course, the potential saving that they might enjoy were these amendments not passed would be lost, but I would argue that this is a very small saving indeed.

We know from our oral evidence session with Paula Dooley of the Gender Identity Research and Education Society that the issue is a real concern for people for whom gender reassignment is a possibility. They are placed in the invidious position of either undergoing the reassignment that they want and is right for them but losing their spouse’s pension rights in the process or not undergoing gender reassignment that they want to have, and which their partner supports, in order to protect their partner’s pension rights.

That issue arises because the Bill makes provision for same-sex married couples to be treated in the same way as civil partners for the purpose of survivors’ benefits. We have already discussed the situation in relation to contracted-in pensions, where rights date back to 2005. For contracted-out schemes, the position is a little different. Those schemes are required to make provisions for survivor benefits for civil partners based on the contracted-out rights accrued since 6 April 1988, in line with rules for widowers; however, for widows, the rights to survivors’ benefits in contracted-out schemes apply in respect of service back to 1978. There will therefore be a very, very small group of women who stand to lose that extra 10 years of access to survivor benefits if their partner undergoes gender reassignment and the Bill is not changed.

Again, I am sure that the Government did not intend that as a consequence of what is in every other way a very laudable and welcome attempt to enable marriages to continue if one partner from an opposite-sex marriage undergoes gender reassignment. Given the commitment that the Minister has just given to investigate the position that we discussed in relation to the previous amendment, I am hopeful that he will be similarly able to go and investigate the possibilities available to avoid this particular inequity, which I am sure is not intended and would be very regrettable. It is very difficult to say how many people would be affected, but the numbers must be very small: the number of transsexual people in the UK is fairly small and the amendment would affect a subset of that already small group.

I would be grateful for the Minister’s response to this concern. I am hopeful, given his response to the earlier amendment, that that response will be a helpful one; it will certainly be very important to a small group of transgender people who are very concerned about this issue.

Photo of Hugh Robertson Hugh Robertson The Minister of State, Department for Culture, Media and Sport 3:15, 7 March 2013

Like the hon. Lady, I will speak to the amendments as a whole, as together they would operate to achieve a single objective. As she has correctly said, the amendments would mean that widows of  marriages that become same-sex marriages as a result of their spouse’s change of legal gender during the marriage would be treated the same as widows of opposite-sex marriages for the purposes of survivor benefits in occupational pension schemes.

We have considered the evidence submitted to the Committee by stakeholders—in particular in this regard, the evidence submitted by the Gender Identity Research and Education Society—very carefully. We recognise that the Government’s policy of treating same-sex marriages in the same way as civil partnerships for occupational pension survival benefits will create a problem in relation to survival benefits for the relatively small number of women whose husbands acquire female gender during their marriage. It has been put to us—indeed, the hon. Lady mentioned this point—that that could deter a transsexual person from seeking to change their legal gender because of the financial impact on their wife.

In the light of those submissions, we have looked again at the issue. We understand that for a very small number of people loss of those benefits would indeed be a serious problem; however, I think we all agree that the issue is complex and needs to be looked at very carefully. We need to include consideration of the practical issues both for individuals and for the schemes that would be affected. We would not want to make a change that would result in significant cost to pension schemes and to the public purse.

The hon. Lady is absolutely right that the issues here are quite complex. The potential for creating a legal precedent is very clear; that would open up other areas to legal challenge. We would want to consider all those implications carefully before coming to a decision. I can say absolutely to the hon. Lady that I am happy to take this away and look at it carefully with colleagues across Government. As with the previous amendment, I make it clear to her that that is not an indication that we will accept an amendment, or the reverse; it is simply an undertaking to look at the matter carefully, and bring it back on Report.

Photo of Kate Green Kate Green Shadow Minister (Equalities)

I am heartened by the Minister’s response. He is right to say that the issue is complex, but I hope that I have interpreted his tone correctly: he is indicating that the Government hope that a solution to this conundrum can be found that will remove people from the invidious position of making a choice that is either not in the interest of one partner or the other, or of the couple as a whole. I look forward to him returning, before Report, with a view from Government. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 4 agreed to.

Clause 12 ordered to stand part of the Bill.