HL Deb 25 May 2004 vol 661 cc449-526GC

(Fifth Day)

Tuesday, 25 May 2004.

The Committee met at half past three of the clock.

[The Deputy Chairman of Committees (Lord Lyell) in the Chair.]

Clause 162 [Proceedings for presumption of death order]:

Baroness Crawley moved Amendments Nos. 65C to 65G: Page 79. line 19, leave out "the applicant Page 79, line 20, at beginning insert "the applicant Page 79, line 21, omit "or Page 79, line 22, at beginning insert "the applicant Page 79, line 23, at end insert ", or (c) the two people concerned registered as civil partners of each other in England and Wales and it appears to the court to be in the interests of justice to assume jurisdiction in the case.

On Question, amendments agreed to.

Clause 162, as amended, agreed to.

Clause 163 agreed to.

Clause 164 [Applications, for declarations as to validity etc.]:

Baroness Crawley moved Amendment No. 65H: Page 79, line 38, leave out from "if)" to end of line 45 and insert "—

On Question, amendment agreed to.

Clause 164, as amended, agreed to.

Clause 165 [Jurisdiction of Scottish courts]:

Baroness Crawley moved Amendments Nos. 65J and 65K: Page 80, line 33, at end insert ", or (c) the following conditions are met—

  1. (i) the two people concerned registered as civil partners of each other in Scotland,
  2. (ii) no court has, or is recognised as having, jurisdiction under section 159 regulations, and
  3. (iii) it appears to the court to be in the interests of justice to assume jurisdiction in the case."
Page 80, line 37, at end insert "(but only where the court is the Court of Session)

On Question, amendments agreed to.

Clause 165, as amended, agreed to.

Clauses 166 and 167 agreed to.

Baroness Crawley moved Amendment Nos. 65L to 65Q: After Clause 167, insert the following new clause— "MEANING OF "THE COURT"

In sections (Proceedings for dissolution. separation or nullity order) to (Applications for declarations as to validity etc.) "the court" means—

  1. (a) the High Court, or
  2. (b) if a county court has jurisdiction by virtue of Part 4, a county court."

After Clause 167, insert the following new clause—

"PROCEEDINGS FOR DISSOLUTION, SEPARATION OR NULLITY ORDER

(1) The court has jurisdiction to entertain proceedings for a dissolution order or a separation order if (and only if)—

  1. (a) the court has jurisdiction under section 159 regulations,
  2. (b) no court has, or is recognised as having, jurisdiction under section 159 regulations and either civil partner is domiciled in Northern Ireland on the date when the proceedings are begun, or
  3. (c) the following conditions are met—
    1. (i) the two people concerned registered as civil partners of each other in Northern. Ireland,
    2. (ii) no court has, or is recognised as having, jurisdiction under section 159 regulations, and
    3. (iii) it appears to the court to be in the interests of justice to assume jurisdiction in the case.

(2) The court has jurisdiction to entertain proceedings for a nullity order if (and only if)—

  1. (a) the court has jurisdiction under section 159 regulations,
  2. (b) no court has, or is recognised as having, jurisdiction under section 159 regulations and either civil partner—
    1. (i) is domiciled in Northern Ireland on the date when the proceedings are begun, or
      2. GC 451
    2. (ii) died before that date and either was at death domiciled in Northern Ireland or had been habitually resident in Northern Ireland throughout the period of 1 year ending with the date of death, or
  3. (c) the following conditions are met—
    1. (i) the two people concerned registered as civil partners of each other in Northern Ireland,
    2. (ii) no court has, or is recognised as having, jurisdiction under section 159 regulations, and
    3. (iii) it appears to the court to be in the interests of justice to assume jurisdiction in the case.

(3) At any time when proceedings are pending in respect of which the court has jurisdiction by virtue of subsection (1) or (2) (or this subsection), the court also has jurisdiction to entertain other proceedings, in respect of the same civil partnership, for a dissolution, separation or nullity order, even though that jurisdiction would not be exercisable under subsection (1) or (2)."

After Clause 167, insert the following new clause—

"PROCEEDINGS FOR PRESUMPTION OF DEATH ORDER

The court has jurisdiction to entertain proceedings for a presumption of death order if (and only if)—

  1. (a) the applicant is domiciled in Northern Ireland on the date when the proceedings are begun,
  2. (b) the applicant was habitually resident in Northern Ireland throughout the period of 1 year ending with that date, or
  3. (c) the two people concerned registered as civil partners of each other in Northern Ireland and it appears to the court to he in the interests of justice to assume jurisdiction in the case."

After Clause 167, insert the following new clause—

"PROCEEDINGS FOR DISSOLUTION, NULLITY OR SEPARATION ORDER:SUPPLEMENTARY

(1) Rules of court may make provision in relation to civil partnerships corresponding to the provision made in relation to marriages by Schedule 1 to the Matrimonial Causes (Northern Ireland) Order 1978 (S.I. 1978/1045 (N.I. 15)).

(2) The rules may in particular make provision—

  1. (a) for the provision of information by applicants and respondents in proceedings for dissolution, nullity or separation orders where proceedings relating to the same civil partnership are continuing in another jurisdiction, and
  2. (b) for proceedings before the court to be stayed by the court where there are concurrent proceedings elsewhere in respect of the same civil partnership."

After Clause 167, insert the following new clause—

"APPLICATIONS FOR DECLARATIONS AS TO VALIDITY ETC.

The court has jurisdiction to entertain an application under section 144 if (and only if)—

  1. (a) either of the civil partners in the civil partnership to which the application relates—
    1. (i) is domiciled in Northern Ireland on the date of the application,
    2. (ii) has been habitually resident in Northern Ireland throughout the period of I year ending with that date, or
      3. GC 452
    3. (iii) died before that date and either was at death domiciled in Northern Ireland or had been habitually resident in Northern Ireland throughout the period of I year ending with the date of death, or
  2. (b) the two people concerned registered as civil partners of each other in Northern Ireland and it appears to the court to be in the interests of justice to assume jurisdiction in the case."

On Question, amendments agreed to.

Clauses 168 to 171 agreed to.

Clause 172 [Supplementary provisions relating to recognition of dissolution etc.]:

Baroness Crawley had given notice of her intention to move Amendment No. 65R: Page 84, line 30. at end insert— ( ) The power to make regulations under subsection (2) having effect in Northern Ireland is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)) and subsections (3) and (4) do not apply to such regulations. ( ) A statutory rule containing regulations under subsection (2) is subject to annulment in pursuance of a resolution of either House of Parliament and section 5 of the Statutory Instruments Act 1946 (c. 36) applies accordingly.

The noble Baroness said: I beg leave to withdraw Amendment No. 65R to Clause 172, which would have made a technical change to the kind of process by which regulations for Northern Ireland will be made to give effect to Clause 172. This is to allow further consideration to be given to the kind of legislative format of any regulations made for Northern Ireland under the clause. This consideration does not extend to the level of parliamentary scrutiny. It is still intended that these regulations will be subject to the negative resolution procedure. If necessary, any amending provision to prescribe technical processes specifically for Northern Ireland will be tabled on Report.

The Deputy Chairman of Committees (Lord Lyell)

The Question is that the amendment be agreed to. I think that is the correct procedure if someone wishes to speak.

Lord Henley

It is extraordinary to withdraw an amendment before it has even been moved. Either an amendment is moved or it is not moved. However, on this occasion, the noble Baroness has decided to withdraw the amendment. I presume, therefore, that the amendment has been moved, but that it has not been discussed. She now wants to withdraw it.

Lord Higgins

It may be better if the noble Baroness moves the amendment and then withdraws it, rather than withdraw it before it has been moved.

Baroness Crawley

I am happy to take the advice offered by the noble Lord, Lord Higgins. I shall move the amendment and then withdraw it.

The Deputy Chairman of Committees

I hope that I moved the amendment after the noble Baroness made her short interjection. If any noble Lord wishes to speak before the noble Baroness withdraws her amendment, we should allow a little time for debate.

Baroness Crawley

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 172 agreed to.

Clauses 173 to 177 agreed to.

Clause 178[Fees]:

Baroness Crawley moved Amendments Nos. 65S and 65T: Page 86, leave out line 41 and insert "The power to make an order under section (Fees)(1) includes power to make an order prescribing Page 87. line 1, leave out subsection (5).

On Question, amendments agreed to.

Clause 178, as amended, agreed to.

Clauses 179 to 181 agreed to.

Clause 182 [Provisions to which section 181 applies: Acts of Parliament etc.]:

Baroness Crawley moved Amendment No. 65U: Page 88. line 29, leave out "The Secretary of State" and insert "A Minister of the Crown

The noble Baroness said: In moving Amendment No. 65U, I shall speak also to Amendments Nos. 65V through to 65AB. The amendments relate to the power under Clause 182(2) to make orders. It may be helpful to the Committee if I set out briefly the background.

Part 6 deals with relationships arising through civil partnerships. Clause 181 provides that references to step relations and to in-laws in certain legislation are to be read as including relationships arising through civil partnership. Clause 182 identifies the legislation to which those interpretation rules apply. In particular, they will apply to an existing Act of Parliament or of the Scottish Parliament if it is listed in Schedule 15, and Clause 182(2)(a) confers a power by order to amend the list in Schedule 15. The rules in Clause 181 will also apply to existing subordinate legislation, if it is specified by order, and the power to make such orders is given by Clause 181(2)(b).

The amendments serve three purposes. First, Amendments Nos. 65U, 65Y and 65AA provide that the power in Clause 182(2) is to be exercisable by a Minister of the Crown, rather than the Secretary of State. That is the standard approach adopted in the Bill and will ensure that Ministers who are not Secretaries of State can make any orders that may be needed in relation to legislation for which they are responsible.

Secondly, Amendment No. 65V ensures that the power conferred by Clause 182 is extended to the National Assembly for Wales in respect of the interpretation of existing subordinate legislation which it has made or which falls within its competence. Thirdly, Amendment No. 65V ensures that the power in Clause 182(2) is extended to Northern Ireland departments. It is to ensure that Acts of the United Kingdom Parliament relating to transferred matters in Northern Ireland can be made subject to the interpretation rules in Clause 181.

The other amendments are consequential. Amendments Nos. 65W and 65X specify that the power in Clause 182(2), when exercised by a Northern Ireland department, is exercisable by statutory rule. That is usual in the case of subordinate legislation in Northern Ireland. Amendment No. 65Y is simply a consequential drafting change to subsection (5), which sets out the negative resolution procedure requirement for statutory instruments made by a Minister of the Crown. Amendment No. 65Z provides that a statutory rule made by a Northern Ireland department is subject to the negative resolution procedure for Northern Ireland. Finally, Amendment No. 65AB defines the phrase, deals with a transferred matter in the new subsection. I beg to move.

Lord Henley

When the Minister referred to "step relations", was she implying that the definition of step relations in Scotland differed from that in England, or is it just that the law in Scotland is different?

Baroness Crawley

No. As I understand it, there is no difference between the definition of step relations in England and that in Scotland.

On Question, amendment agreed to.

Baroness Crawley moved Amendment Nos. 65V to 65AB: Page 88, line 33, leave out subsection (3) and insert— ( ) The power conferred by subsection (2) is also exercisable—

  1. (a) by the Scottish Ministers, in relation to a relevant Scottish provision;
  2. (b) by a Northern Ireland department, in relation to a provision which deals with a transferred matter;
  3. (c) by the National Assembly for Wales, if the order is made by virtue of subsection (2)(b) and deals with matters with respect to which functions are exercisable by the Assembly."
Page 88, line 35, at beginning insert "Subject to subsection (4A), Page 88, line 36, at end insert— (4A) Any power of a Northern Ireland department to make an order under subsection (2) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)). Page 88, line 37, leave out ", other than an instrument made by the Scottish Ministers," and insert "made by a Minister of the Crown Page 88, line 42, at end insert— ( ) A statutory rule containing an order under subsection (2) made by a Northern Ireland department is subject to negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)). Page 89, line 8, at end insert— "Minister of the Crown" has the same meaning as in the Ministers of the Crown Act 1975 (c. 26); Page 89, line 15, at end insert— "transferred matter" has the meaning given by section 4(1) of the Northern Ireland Act 1998 (c. 47) and "deals with" in relation to a transferred matter is to be construed in accordance with section 98(2) and (3) of the 1998 Act.

On Question, amendments agreed to.

Clause 182, as amended, agreed to.

Schedule 15 agreed to.

Clause 183 agreed to.

Schedule 16 agreed to.

Clause 184 [Discrimination against civil partners in employment field]:

Lord Higgins moved Amendment No. 66: Page 90, line 36, after "sex" insert "or the same sex

The noble Lord said: I think that it would be convenient to consider Amendment Nos. 67 and 68 with this amendment.

I am astonished at the amount of work that has gone into the Bill and the amount of correspondence that has descended on us since the last sitting. In addition to a massive commentary on the clauses, one has received letters from the noble Lord, Lord Filkin, in the Department for Constitutional Affairs; the noble Baroness, Lady Crawley, in the Government Whips' Office; the Women and Equality Unit and the Civil Partnership Bill team; and the noble Baroness, Lady Scotland, in the Home Office. In addition, there has been a "Dear colleague" letter from the noble Baroness, Lady Amos, and another from the Home Office addressed to the noble Lord, Lord Alli. I cannot promise that I have assimilated every point made in that correspondence, but no doubt it is intended to be helpful. My only question is whether that voluminous correspondence has been placed in the Library, since some people outside this House may have difficulty comprehending the detail of the legislation.

3.45 p.m.

Lord Alli

Quite a lot of that correspondence is self-inflicted. Those of us in Committee have asked for much of it. When the Ministers respond, it is hardly for us to say, "Oh, there is a wealth of correspondence", because we have been asking for it. Maybe if we ask for less, we will be sent less.

Lord Higgins

I cannot promise to do that, but I take the point that this information is intended to be helpful to the Committee in the light of the discussions that have taken place.

Baroness O'Cathain

I do not like to disagree with the noble Lord, Lord Alli—I really do not—but I did not bring the papers down with me, because you end up with arms like gorillas down by your ankles because of the amount of stuff that you must carry around on this Bill. Two or three letters are, I agree, direct responses to questions from the noble Lord and questions from me. The reality is that most of it is new amendments and explanatory notes about new amendments. It is good to have those explanatory notes, but on the other hand, it is coming non-stop, even again today. We do not have time to look at it all.

Lord Higgins

I was not in any way intending to criticise the production of the information—on the contrary, it was helpful. I was only saying that it is pretty difficult to assimilate it in the time that we have available. No doubt we can return to these matters on Report.

The amendments are related to the question of how these matters are to be handled, where sex is, as quoted in the clause, a "genuine occupational qualification". It is not clear exactly how that is going to operate. It is not immediately apparent why the introduction of same-sex partnerships could give rise to any particular problem with regard to discrimination in employment. It would be helpful to have a brief explanation of that, as against the situation for married couples. I beg to move.

Lord Tebbit

May I follow up what my noble friend Lord Higgins said? This is a very complex Bill. It does not help to have it changing its nature like a kaleidoscope every day of the week. The House of Lords has a high reputation for the work that it does, particularly on legislation that has been received from the other place without having been considered there; or at least large parts of it not having been considered there. It is our duty to try to make sense of what comes from there. Not infrequently, the Government then lumber us with a huge number of amendments. I do not think that in my time here I have ever seen such a volume of amendments, such complexity and so many references backwards and forwards.

I am sure that the Minister understands every word of it and that she would not even need to take advice from the officials behind her who, I notice, number seven. That is nearly as many as there are noble Lords here to consider the Bill. Sooner or later, it would serve the Government right if the Committee decided just to let the whole lot go through, just like that, and leave it as the mess that so much legislation is when it is first published. For sure, when it gets to the other place, it will not be properly discussed. It will be timetabled, and it will be a great surprise if they even look at most of it.

I am becoming heartily fed up with this place being taken for granted. The Government throw ill considered, ill digested and badly drafted legislation at us, expecting us to take responsibility for ensuring that when it gets on the statute book it is reasonable legislation. It has gone too far, and it is time that the Government resolved to bring before us a Bill that they intend to take through the House and not a Bill which they intend to amend massively after they have published it.

Baroness Crawley

Of course, I take note of the complaints about the number of government amendments. I am told by my noble friend Lady Hollis of Heigham that both this Government and the previous government have had Bills that have had copious government amendments. However, I apologise for the scale of the amendments and for the timescale, which may be a greater worry for Members of the Committee. If they look at the forthcoming business, Members of the Committee will see that we have a good few weeks between now and Report in which to consider the amendments.

Lord Tebbit

Can the Minister give us an undertaking that the Government will not bring forward more amendments between the end of Committee and Report?

Baroness Crawley

I am afraid that I have to disappoint the noble Lord. I cannot give that undertaking, but obviously we shall do our best. The number of officials, to which the noble Lord referred, reflects the number of government departments that are involved in the Bill.

I shall answer the questions put by the noble Lord, Lord Higgins, by way of responding to each of the amendments. If I may, I shall consider Amendments Nos. 67 and 68 first and then turn to Amendment No. 66.

The provision of the Sex Discrimination Act 1975 that subsection (4) of Clause 184 seeks to amend enables an employer to offer two jobs in his or her employment to a married couple, without falling foul of the requirement not to discriminate on grounds of sex. I suppose that the most common situation would be one in which shared accommodation was intrinsic to the job, such as a couple managing a public house. As the daughter of a publican, that is the one I know best.

All that the clause would do is to extend that exception to a case where the couple to be offered the two jobs are civil partners. That goes with our intention in the Bill to ensure that civil partners are not disadvantaged in comparison with married couples. I can see no good reason why an employer with an opportunity of that kind should be allowed to offer it to a man and woman but unable to make it available to a same-sex couple in a civil partnership for fear of a claim of sex discrimination. As the law stands under the Sex Discrimination Act, an exemption is made for a married couple if there is an issue of tied accommodation with the job. We are saying that we read across from that exception to civil partnership, so that where one reads "married persons" one would insert "civil partners".

I assume that Amendment No. 66 is a probing amendment. It is not clear to me what its intended purpose is, and I am not sure what effect it would have in practice. The subsection that Amendment No. 66 would amend relates to the comparison that must be made, if discrimination on the ground of sex is to be demonstrated. The noble Lord will know that, by definition, such a comparison must be with a person of the opposite sex. Someone who is trying to demonstrate that there has been discrimination on the ground of sex must use opposite sex comparators. Adding the words "or the same sex" would therefore have no effect in this context.

I hope that the noble Lord will be satisfied with that and will withdraw the amendment.

Lord Higgins

I am grateful to the noble Baroness. How will employers know about all that?

Baroness Crawley

I understand that there will be guidance for employers, employers' organisations and public and private organisations.

Baroness O'Cathain

I want a little clarification from the Minister. Someone might, for example, have a country house but not be there for most of the week. Often, one sees advertisements in The Lady saying, "Married couple wanted to look after house while owners are in London". Such advertisements specify married couples, because normally the wife is the housekeeper and the husband is the gardener, the DIY man, the mechanic and everything else. In future, will people be unable to advertise in The Lady to say that they want a married couple for a house?

Baroness Crawley

The noble Baroness is right: we can see such advertisements each week, should we be looking for them. They are not against the law because there is an exception in the Sex Discrimination Act 1975 that allows married couples to be considered for such jobs. I used the public house example, but the noble Baroness is right to say that it could apply to a cook and gardener or a housekeeper and gardener. It is the same thing. As the legislation is drafted, there would be a read-across from the legality of the advertisement in The Lady saying "married couple" to saying "civil partnership".

Lord Tebbit

I thank the noble Baroness for that explanation. Is she really saying that, at the moment, it would be illegal under the Sex Discrimination Act 1975 to advertise for a same-sex couple to work in such circumstances? I find that difficult to believe The noble Baroness must know, as she has everything at her fingertips.

Baroness Crawley

I understand that it is. That is my legal advice.

Lord Higgins

Legal advice or not, we will need to think that one through before Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 67 and 68 not moved.]

Lord Higgins

had given notice of his intention to oppose the Question that Clause 184 stand part of the Bill.

The noble Lord said: I have no further comments to make.

Clause 184 agreed to.

Baroness Crawley moved Amendment No. 68A: After Clause 184, insert the following new clause—

"DISCRIMINATION AGAINST CIVIL PARTNERS IN EMPLOYMENT FIELD: NORTHERN IRELAND

(1) Amend the Sex Discrimination (Northern Ireland) Order 1976 (S.I. 1976/1042 (N.I. 15)) as follows.

(2) For Article 5 (discrimination against married persons in employment field) substitute—

"5 DISCRIMINATION AGAINST MARRIED PERSONS AND CIVIL PARTNERS IN EMPLOYMENT FIELD

(1) In any circumstances relevant for the purposes of any provision of Part 3, a person discriminates against a person ("A") who fulfils the condition in paragraph (2) if—

  1. (a) on the ground of the fulfilment of the condition, he treats A less favourably than he treats or would treat a person who does not fulfil the condition, or
  2. (b) he applies to A a provision, criterion or practice which he applies or would apply equally to a person who does not fulfil the condition, but—
    1. (i) which puts or would put persons fulfilling the condition at a particular disadvantage when compared with persons not fulfilling the condition, and
    2. (ii) which puts A at that disadvantage, and
    3. (iii) which he cannot show to be a proportionate means of achieving a legitimate aim.

(2) The condition is that the person is—

  1. (a) married, or
  2. (b) a civil partner.

(3) For the purposes of paragraph (1), a provision of Part 3 framed with reference to discrimination against women is to be treated as applying equally to the treatment of men, and for that purpose has effect with such modifications as are requisite."

(3) For Article 7 (basis of comparison) substitute—

"7 BASIS OF COMPARISON

Each of the following comparisons, that is—

  1. (a) a comparison of the cases of persons of different sex under Article 3(1) or (2),
  2. (b) a comparison of the cases of persons required for the purposes of Article 4A, and
  3. (c) a comparison of the cases of persons who do and who do not fulfil the condition in Article 5(2), must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.", and omit Article 3(4).

(4) In Article 10 (exception where sex is a genuine occupational qualification), in paragraph (2)(h) for "by a married couple-substitute—

  1. "(i) by a married couple,
  2. (ii) by a couple who are civil partners of each other, or
  3. (iii) by a married couple or a couple who are civil partners of each other".

(5) In Article 65 (remedies on complaint under Article 63), in paragraph (1B) for "or marital status as the case may be" substitute "or (as the case may be) fulfilment of the condition in Article 5(2)"."

The noble Baroness said: The Sex Discrimination (Northern Ireland) Order 1976 makes it unlawful to discriminate in the field of employment against people on the ground that they are married. The clause extends that protection to discrimination against civil partners in the same circumstances.

An exception in the Sex Discrimination (Northern Ireland) Order 1976 permits discrimination where sex is a genuine occupational qualification for a job because it is one of two jobs to be offered to a married couple. We had the same discussion about the previous amendment, but we are now transferring the legislation to Northern Ireland.

The clause also provides that the exception can be claimed, if the two jobs are to be offered to a couple who are civil partners. I beg to move.

Lord Tebbit

I have to ask for some examples of occupations where sex is a genuine qualification.

4 p.m.

Baroness Crawley

Can I write to the noble Lord on that? I am getting advice that is not the moment.

Lord Tebbit

Surely we will not be asked to agree a clause when we cannot be told its meaning.

Baroness Crawley

Examples would be actors and actresses and models.

On Question, amendment agreed to.

Clause 185 [Civil partners to have unlimited insurable interest in each other]:

Lord Higgins moved Amendment No. 69: Page 91, line 16, leave out "contracts of assurance" and insert "civil partnerships

The noble Lord said: The amendment is essentially about timing. The final subsection of the clause states: This section applies in relation to contracts of assurance entered into on or after the day on which it comes into force". As I understand it, that means that a contract of assurance could come into force, with the Bill's coming into force determining the timing of the matter. However, I would have thought that it ought not to be in advance of a civil partnership having been formed. Therefore, the amendment would be appropriate. It would mean that the civil partnership had to be formed before the clause came into operation. I beg to move.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham)

I was not sure how wide the noble Lord was going to range on the amendment, but it is clear that he is not opening up the whole issue about insurable interest. The automaticity that spouses have in insurable interest goes across to civil partners in a way that obviously does not apply to two strangers, otherwise we would have the plot of a murder mystery.

In terms of timing, we have such a formulation because there is a risk that Clauses 1 and 155 could be commenced prior to Clause 185, and therefore there would be a disjunction in timing. We will seek to avoid that if we can. Obviously, Clause 185 would in no way prevent persons who had entered into contracts of assurance prior to forming a civil partnership—where the insurers had recognised that they had an insurable interest from that contract—continuing once they were civil partners. The automaticity follows the commencement of the clause.

Up until the commencement of the clause, people must establish that they have an insurable interest, as they might do if they were siblings, for example. Once the clause is commenced, however, the assumption is automatic. Because there could be a disjunction in timing, the clause is needed.

Lord Higgins

I understand the point about disjunction, but am I wrong in thinking that the contract of assurance could come into force after the civil partnership is formed? I am not clear what the Government actually intend. Do they want to say that anyone can have a contract of insurance that is operational after the Bill, and that it will then become a mutual affair, so to speak?

Baroness Hollis of Heigham

It will apply at a lower level than that. At the moment, a contract of assurance can be used to protect a joint mortgage if you can establish to the satisfaction of the insurance company that you have a legitimate insurable interest in each other's life. Such a contract could be between siblings, between flatmates or two people living as though they were in a civil partnership. At the moment, spouses, uniquely, do not have to establish that they have an insurable interest; it is automatically assumed that they do so. Here we are establishing the same level of automatic assumption for civil partners once they have registered.

It may be that a couple of the same sex living together already have a contract of assurance, but to do so they would have had to establish it. In future, they will not have to establish the fact that they have an insurable interest. But because there could be a disjunction of timing, we need this clause. However, I cannot conceive of any problem—if I may put it that way—that this may pose for anyone.

Lord Higgins

Let me try again because I am still not quite clear about this. As I read the provision, it means that this clause would not apply to a contract of assurance which existed before the partnership was formed. However, I understand the Government's intention to be that if someone has a contract of assurance and a civil partnership is then formed, it will be something that is a mutual interest. However, at the moment, an insurance policy taken out before the civil partnership was formed would not have the same degree of mutuality as one taken out afterwards.

Baroness Hollis of Heigham

Perhaps it is my ignorance, but I do not understand the use of the word "mutuality" here. All this clause states is: Where two people are civil partners, each of them is to be presumed … to have an interest". They do not have to establish it. That is all that is said.

Lord Higgins

I remain unconvinced, but I shall look at the matter again and return to it on Report.

Amendment, by leave, withdrawn

Clause 185 agreed to.

Clause 186 [Social security, child support and tax credits]:

Baroness Hollis of Heigham moved Amendment No. 69A: Page 91, line 19, leave out "amends certain enactments" and insert "contains amendments

The noble Baroness said: In moving Amendment No. 69A, I shall speak also to the amendments grouped with it. So far. discussion on the Bill has mainly centred on the creation of the new legal relationship of civil partnerships, their formation and dissolution and some of the legal consequences of forming a civil partnership. From now on, we turn to the issues surrounding social security and their implications. Here the Government's purpose is twofold: to ensure that there is no inequity of treatment—

Baroness Wilcox

I was distracted by a new posse of civil servants entering the Moses Room. We could not work out whether they were leaving or remaining. The social construct of the seating arrangements was confusing. We apologise for interrupting the noble Baroness.

Baroness Hollis of Heigham

Having discussed The Lady, it appears that the best principles governing dinner parties in country houses has been the source of most of our analogies so far.

Our advisers have changed because at this point in the Bill we move to the territory of social security. Two things must be done simultaneously. We must ensure on the one hand that there is equity of treatment between civil partners and married couples while, on the other hand, we must ensure equity and comparability of treatment between cohabiting couples of opposite sexes and cohabiting couples of the same sex for social security purposes. The test used for social security purposes for a cohabiting couple is whether two people are living together as a couple, as husband and wife—or the equivalent wording. That sets out the general context in which a whole sequence of amendments have been tabled both on the government side and by the noble Lord, Lord Higgins.

We start, possibly in a slightly back-to-front manner, with a series of amendments needed for Northern Ireland. Since most social security and child support legislation for Northern Ireland stands separate to that passed at Westminster for Great Britain, we need separate amendments to ensure that provisions there mirror what we are providing for Great Britain. Amendments Nos. 69A, 69B, 71A, 71B, 71C, 71D, 7IE and 71F amend Clause 186 to ensure that Northern Ireland departments making an order under Clause 191 may deal with references in existing social security and child support legislation to persons who are living or have lived together as husband and wife. The power under Section 191 will enable Northern Ireland departments to translate such references into a reference to persons who are living, or have lived, together as if they were civil partners.

The insertion of the reference to the Pneumoconiosis, etc., (Workers' Compensation) (Northern Ireland) Order 1979 is to ensure that parallel amendments may be made to that order and the 1979 Act of the same name. The Committee may wish to discuss the substance of the issue when we reach the GB provisions, on which the situation is clear, but the Northern Ireland bundle mirrors what we will do with the GB framework. I beg to move.

On Question, amendment agreed to.

Baroness Hollis of Heigham moved Amendment No. 69B: Page 91, line 21, after "Act" insert ", Northern Ireland legislation

On Question, amendment agreed to.

Lord Higgins moved Amendment No. 70: Page 91, line 24, leave out paragraph (b).

The noble Lord said: It would be helpful to discuss Amendment No. 71 also. Truth be told, I am not sure that this grouping is very helpful, as Amendment No. 70 deals with a small, pedantic point, whereas Amendment No. 71 deals with the more important issue of the deletion of subsection (3).

I shall deal first with Amendment No. 71 and say a word at the end about Amendment No. 70. With almost unintentional humour, the draftsman has described Part 7 of the Bill as "Miscellaneous". We accept that the main purpose of the Bill relates to the controversial issue of civil partnerships and broad issues of equality. However, despite the assertion by the noble Lord, Lord Alli, that the central purpose of the Bill is almost uniquely important and that none of the other matters in the Bill is of the least importance, this part contains a series of sections concerned with social security, child support and tax credits. It would be helpful to pick up each issue separately as we come to the related amendments.

It remains unclear why the position on tax as against social security should be treated as it has been. We received a press release—nowadays even the gravest issues can be dealt with by press releases, certainly by Inland Revenue ones—that said that the Civil Partnership Bill was social security legislation, so any tax consequences would be dealt with in the next available finance Bill. We have failed to get from the Government Front Bench any answer on what that expression means or when the next available finance Bill is likely to contain the legislation that has such an important bearing on this Bill

The other strange aspect is that the press release states: The clauses giving effect to the changes have been included in the Civil Partnership Bill"— so far as concerns tax credits and so on— as these matters are outside the scope of the Finance Bill".

The Government seem to want to have their cake and eat it. I am unclear why the Bill deals, for example, with tax credits, an area taken over effectively in an empire-building exercise by the Chancellor. At all events, it does not seem a satisfactory arrangement, when so much of what is important in the Bill turns out not to be in it at all. More particularly—and this brings me to the amendment—so much will be dealt with by powers to make subordinate legislation. The subsection states that the, power under section 191 to make orders amending enactments and subordinate legislation is to be treated as including power to amend the provision to refer to persons who are living or have lived together".

The noble Baroness, Lady Hollis, and I have discussed these matters many times and over a range of Bills over many years. She has always been extremely helpful in letting us have draft orders before we come to the more substantive parts of the Bill. I hope she will find it possible to do that on the various matters that we are now going to discuss, which are dealt with simply by taking powers to implement the legislation by subordinate legislation. I hope that she will make it possible to have those draft orders before we get to Report. She has been extremely helpful in that respect in the past, and one must hope that that is so in future.

At all events, Amendment No. 71 suggests that to take powers in this area—in a great many areas of social security, the Child Support Agency and so on—is not a desirable way in which to proceed, when such an incredible amount of detail on other matters of relatively small importance is spelt out almost ad infinitum in the Bill. I hope that the Minister will respond on that issue.

Amendment No. 70 would leave out subsection (2)(b), which contains a rather extraordinary expression. It refers to legislation that, contains references (however expressed) to persons who are living or have lived together as husband and wife".

I cannot recall ever seeing in legislation before the expression "however expressed", which seems remarkably wide-ranging. Perhaps the draftsman finally cracked up at this stage and thought that this was the easiest way out. Will the Minister tell us why the parenthesis is necessary? I beg to move.

4.15 p.m.

Lord Alli

I hesitate to intervene in what I suspect will be a series of conversations between the noble Lord, Lord Higgins, and the noble Baroness, Lady Hollis of Heigham. However, I wonder whether the Minister will answer a question for me which is of concern in this area.

This part of the legislation allows a test for same-sex couples, so that a number of people living in same-sex couples who claim individual status will lose that status and be treated by the social security system in the same way as unmarried couples. Ironically, this is one of those areas that the noble Baroness, Lady O'Cathain, if she were in her place, would understand. It follows the agenda of rights and responsibilities and some of the penalties that go along with equalisation in this area.

I have one specific worry. Through the social security system, there is a danger that a lot of gay couples who currently keep their relationship secret because of fear of prejudice may be outed by various departments which seek, rightly, to implement the regulations but, in doing so, expose relationships that many people are not confident of exposing. Will the Minister tell me more about what other departments might do to help in those situations, because that is a worry and concern to many people in the gay community?

Baroness Hollis of Heigham

The push of the amendments as drafted is to exclude cohabiting same-sex couples from falling within the remit of certain aspects of social security, although I know from what he has said that that is not the noble Lord's intent. That is what his amendments technically do hut, as it was not the argument that he advanced, I shall not go down that path, despite the fact that I have a speech written to that effect. I am sure that he will be rather pleased.

The noble Lord went on to a second point, which was a legitimate query about the power taken by the Bill to amend regulations subsequently. We are trying throughout the Bill—I am not saying that we have got it perfect—when there is primary legislation that needs amendment, to amend that legislation in the Bill or by schedule. As the noble Lord will know, an awful lot of social security legislation is tucked away in regulations. Therefore, we are seeking to take a power to amend those regulations accordingly, otherwise we shall absolutely clutter up legislation.

If we were to redraft all regulations so that wherever it said "married couples" they also referred to "civil partners" and where it said "cohabiting couples" or "lived together as husband and wife", we had to express whether the couple were of the opposite or same sex, we would end up with a Bill that was several sizes larger than this one. Therefore, it makes greater sense, because we all know that the import is to get a read-across from married status to civil partnership and cohabiting opposite-sex couples to cohabiting same-sex couples, to do that in secondary legislation, as for the most part that simply means adding in a couple of words to adjust the terminology. It makes sense to do that by regulation and not to clutter up the Bill.

The noble Lord also pushed us on the phrase "however expressed". There have been various ways in which to express both opposite-sex cohabitation as well as same-sex cohabitation, so it is a way in which to have an inclusive terminology.

I am very happy that my noble friend Lord Alli raised a substantive point, to which we may wish to return. He referred to the worry that by expanding social security reach to include, for the first time, people living as same-sex couples who have hitherto been treated as individuals, we would turn the clock back to the treatment of cohabiting opposite-sex couples, which many of them experienced in the 1950s. I am thinking of prurience, twitching net curtains, anonymous telephone calls and the like.

It was precisely because I shared those concerns, and because representations had been made to me by friends and colleagues such as my noble friend Lord Alli, that I have had two seminars with relevant organisations, including Stonewall, the Social Security Advisory Committee, the Lesbian and Gay Lawyers Association, the Local Government Association and the CAB. We considered whether the existing test for living together as husband and wife for cohabiting unmarried opposite-sex couples was still appropriate in its language and, if so, whether it could he applied to same-sex relationships. What we came up with as a result was a need to readdress that test across the board.

We found the discussion very helpful—it is going very well—and we are getting a new framework in which we can train our staff to act appropriately, sensitively, discreetly but even-handedly with opposite sex and same-sex couples in future. We are working on the matter, and I hope to have drafts that I can put in the Library and circulate to people as they wish during the summer.

Alongside that process—this has been put to us emphatically—we need to ensure that our staff are trained, both those of heterosexual and those of same-sex orientation. Some staff are worried that they may be outed against their wish, on the ground that they have "special skills" or "special insights". The issue is delicate. I have spoken to staff about the problems, and I am seeking the aid of the organisations to help us to go through the modules of sexual orientation training and role-play, where appropriate. We went through similar exercises when we introduced the disability legislation, to increase sensitivity.

I hope that the Committee will forgive this slightly extended discussion. I assure the noble Lord that with the help of the organisations, to which I pay tribute, we shall not only produce a sensitive test for same-sex couples but greatly improve the test for cohabiting couples. I hope that, with that extended description, which rather got away from the original point of the amendments, the noble Lord will feel able to withdraw his amendment.

Lord Higgins

Although we understand that some of the orders made under the clause and related clauses may simply be of, in effect, a drafting nature, clearly some of them will not be. They are very wide powers in relation to a whole range of matters—social security, child support, tax credits, occupational pensions and so on. Is the noble Baroness able to provide draft regulations of a substantive as against a purely drafting nature? I very much hope that she is.

Baroness Hollis of Heigham

No. I am advised that we are at a disadvantage because the Bill started in this House. Normally, on social security legislation, we have been able to provide draft regulations for us to consider while a Bill was in Committee and on Report. That has usually been because the Bill has started in the other House, so the time of parliamentary counsel has been available to move from primary legislation to the draft regulations. So, I cannot do what the noble Lord asks.

I shall see whether we can expand on the explanatory memorandum that went to the Select Committee on Delegated Powers and Regulatory Reform, if the noble Lord feels unsure about the reach of the Bill. If he would like to indicate any area, over and beyond what we have done for that committee, I shall be very happy to ask our officials to expand on the regulations.

Part of the matter is the need to have what I call a fishing-trip clause. For example, with Schedule 17 and related clauses, we think that we have to the best of our ability caught most of the appropriate legislation. However, I asked yesterday whether we had considered a situation where someone may be liable who applied for a social fund payment to help with funeral costs for someone on income support. The person liable is normally next of kin. Have we covered civil partnerships under "next of kin"? We do not know. I need to check that.

In such a situation, we do not yet know that we have caught every piece of legislation and their associated regulations. That is why we need the general power, otherwise I would be troubling noble Lords with not only a very long Bill, but repeated occasions on the Floor of the House simply to add "or civil partners" in regulations after regulations.

If, following the noble Lord's scouring of the Delegated Powers Committee's explanatory memorandum, he would like the officials to enlarge on any substantive point, I would be happy to arrange that. However, I cannot give him the draft regulations now. It is too early.

Lord Higgins

I am grateful to the noble Baroness, but it is a considerable disadvantage if, every time that a Bill starts in the House of Lords, the draftsman has not yet drafted the regulations. Perhaps we need to consider the point further.

My primary concern is that the powers may be used to affect various interests. For example, the Bill contains considerable proposals for occupational pensions, in which we may be granting order-making powers that would affect private interests involved. I will need to consider to what extent the powers should be rather more confined and restricted than they appear to be in some cases at the moment. We shall return to the matter on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 71 not moved.]

Baroness Crawley moved Amendments Nos. 71A to 71F: Page 91, line 26, after "enactments" insert ", Northern Ireland legislation Page 91, line 30, at beginning insert "Subject to subsection (4A). Page 91, line 34, at end insert (4A) Section 171(3), (5) and (6) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (c. 7) applies to the exercise by a Northern Ireland department of the power under section 191 in relation to social security and child support as it applies to any power under that Act to make an order (there being disregarded for the purposes of this subsection the exceptions in section 171(3) and (5) of that Act). Page 91, line 35, after "Act" insert "or Northern Ireland legislation Page 91, line 37, after "(c. 41)" insert "and the Pneumoconiosis, etc., (Workers' Compensation) (Northern Ireland) Order 1979 (S.I. 1979/925 (N.I. 9)) Page 91, line 37, leave out "subsection (4)" and insert "subsections (4) and (4A)

On Question, amendments agreed to.

Lord Higgins moved Amendment No. 72: Page 91, line 38, at end insert— ( ) Nothing in this section shall come into effect until the Social Security Advisory Committee has been consulted and any recommendations it makes have been debated in both Houses of Parliament.

The noble Lord said: The amendment is self-explanatory. On many previous pieces of social security legislation we have found that the Social Security Advisory Committee has been almost completely ignored or not consulted at all; on other occasions it has produced advice of help to the House. I am not sure what is the situation in relation to this legislation. No doubt the noble Baroness will tell us whether the committee has been consulted and, if so, with what result.

4.30 p.m.

Baroness Hollis of Heigham

The amendments would require us to consult the Social Security Advisory Committee. The noble Lord will understand that I cannot accept the amendments for the following reasons. First, the Social Security Advisory Committee is not consulted about regulations that are laid within six months of the primary legislation because it is assumed that the halo effect of parliamentary scrutiny will continue, as will be the case here. Secondly, the committee's formal remit does not extend to some areas covered by the Bill: for example, Inland Revenue tax credits—an issue about which the noble Lord has been concerned in the past—the Child Support Agency and occupational pensions. So there cannot be the blanket coverage sought in the amendment.

The third reason, which I hope will give the noble Lord a little more satisfaction, is that there is already good, informal consultation between the Social Security Advisory Committee, the Inland Revenue and ourselves, and a memorandum of understanding is being drawn up to that effect. The noble Lord asked me for an assurance about whether the Social Security Advisory Committee was consulted. We wrote to the committee about this matter and, in its letter of 19 May, the Social Security Advisory Committee replied that, no particular concerns have been expressed about those matters that fall within the Committee's statutory remit". So I checked whether the Social Security Advisory Committee had any concerns, and it has made it clear that, as of four or five days ago, it has not.

It has made active and valuable evaluations of the "living together" test and some of the detailed informal consultation underpinning the Bill. With those assurances, I hope the noble Lord will feel able to withdraw his amendment.

Lord Higgins

That was a more convincing reply than I have received on other occasions. I am grateful. However, it raises the question of whether the powers of the committee should be extended to cover the issues specified by the noble Baroness. It also raises the question of whether the six-month limit on the Social Security Advisory Committee being allowed to comment on orders laid within that time is as appropriate as it might be—-not least because they will be drafted within six months but no attempt has been made to draft them so far.

At all events, I am glad to hear that the committee has been consulted, even though it has nothing very helpful to say. I beg leave to withdraw the amendment.

Baroness Hollis of Heigham

I think the noble Lord means that the committee had nothing critical to say.

Amendment, by leave, withdrawn.

Clause 186, as amended, agreed to.

Schedule 17 [Social security, child support and tax credits]:

Lord Higgins moved Amendment No. 73: Page 211, line 21, leave out paragraphs (a) and (b).

The noble Lord said: As I said earlier, the Bill affects a great many areas of social security, including occupational pensions, state pensions, public service pensions, tax credits and so on, and the Child Support Act 1991. By leaving out the sub-paragraphs referred to in the amendment, in effect, the powers of inspection in relation to the Child Support Act 1991 would be removed. However, it would be helpful to have a wider debate on the position of the Child Support Agency because I am not absolutely clear how it will operate in the context of the Bill.

Obviously the basic legislation is concerned with couples who are married or in a relationship where a child is produced. The question is whether the parent who does not have care should make some contribution towards the support of the individual child.

I am not quite clear why the Child Support Agency is relevant in that context. Are we saying that if a same-sex couple adopts a child and the relationship either breaks up or one or other of the same-sex partners does not help to finance the child, the Child Support Agency and the powers specified under the schedule will become operative?

We well know that the situation of the Child Support Agency generally has been very unsatisfactory, albeit that the agency was introduced originally by a Conservative government. The present Government sought to change the formula so that from April 2002 the system would go live for new cases only, resulting in a situation where absent parents would pay 50 per cent of their net income for one child, 20 per cent for two and 30 per cent for three or more.

This has been appallingly slow in coming into effect. Time and time again, Parliamentary Questions are put to Ministers, asking when the conversion of the system is to take place; and time and time again the matter has been delayed. So on top of what is already, to say the least, a shaky organisation under immense strain, we are suddenly going to impose further powers under this legislation, thus giving greater scope for maladministration and so on.

I am appalled that the amount of compensation paid by the Child Support Agency for maladministration in the past five years is more than £12 million. The whole system is under enormous strain, as the noble Baroness will recognise. She personally has done all that she can to try to put the matter right, but to put this further strain on it at this stage is unwise, even if one understands—as I do not—exactly what it is that the Child Support Agency is supposed to do in the context of the Bill.

It would be helpful if the noble Baroness could tell the Committee why this particular issue in relation to social security has been included in the Bill in addition to those relating to pensions and so on, which we understand are relevant. I beg to move.

Baroness Hollis of Heigham

I am at a slight disadvantage because the noble Lord's speech is, to some degree, at odds with the tabled amendment. His amendment would jeopardise the position of compellable witnesses. At the moment, in law, spouses are not compelled to incriminate themselves and give evidence against their partners. We are extending that same right of immunity to civil partners.

The noble Lord's amendment would extract from the Bill the right of immunity not to be a compellable witness for a civil partner. That is what the amendments would do and that is what my speech is about—but that is not, of course, what the noble Lord has been talking about. I do not think he mentioned the words "compellable witness" at any stage, even though his amendment would affect such people.

He spoke to the more general point about why the Child Support Agency has anything to do with the Bill. He was right to focus on adoption. Some partners, he they same-sex male or same-sex female, and same-sex couples whether or not they are civil partners, may well bring children into a relationship from a previous relationship. In the case of a same-sex female couple, the biological father of the child, or otherwise the biological mother if she remains the non-resident parent, will be liable for support from the Child Support Agency.

A child may also be adopted within the relationship or a child may be produced through artificial insemination. I understand that 100 or 125 same-sex female couples undergo the procedure every year. Finally, the child may have become the child of the family for other reasons. For example, the natural father of the child of a same-sex female couple may have died.

In all those cases, where there would be a presumption of continued child support as in marriage, that will be the case for civil partners, and where there would be a presumption for cohabiting partners, that will be the case for same-sex couples. The Bill establishes the same responsibilities for children, whether those children are adopted, children of the relationship or a child of the family, as currently exist for opposite-sex couples.

The noble Lord finally made some general points about the Child Support Agency. Like the noble Lord, I wish that the information technology and computer systems had been able to move ahead faster, but we should not underestimate the fact that we have already put through something in the order of 150,000 cases under the new system. I believe that as of a few days ago, the child maintenance premium has gone to around 20,000 families. So we are getting there, perhaps a little more slowly than one would wish, but when we are assured that the new system is sufficiently robust so that we can bring existing cases held under the old system across to the new one, we shall be able to direct money to children more quickly, more transparently and with more consent.

With those remarks, I hope that the noble Lord will feel able to withdraw his amendment regarding compellable witnesses.

Lord Goodhart

The noble Baroness said that this is intended to extend to civil partners the present exemption from liability of a spouse to be a compellable witness against the other side. She made those remarks in the context of child support arrangements. However, I rather assume that she has referred to a general principle here, which is one that we would certainly support. However, I wonder where it appears in the Bill. Having had only a quick look, I have not found it. Perhaps I have overlooked the provision, or is it intended that it should be dealt with by order? If not, where is it set out? It is certainly something that should be in the Bill.

Baroness Hollis of Heigham

I shall take advice on that. However, the noble Lord is absolutely right. This is a general power derived from social security legislation passed in 1986, 1989 and 1992 regarding compellable witnesses. In this Bill we are extending those provisions across the board, but the first point at which the matter arises is with regard to the Child Support Agency, as the noble Lord realises. However, I am about to be told where this is set out in the Bill.

I turn to page 221. Paragraph 54 of Schedule 16 states: In section 109B (power to require information), in subsection (5)(a), for 'married, his spouse' substitute 'married or is a civil partner, his spouse or civil partner—.

Lord Goodhart

That is concerned with the Social Security Administration Act 1992. However, I am interested to learn about the general principle which would apply across the board, such as to criminal cases of all kinds. This goes very much wider than social security matters. Should it not be put in the Bill?

Baroness Hollis of Heigham

I did not know that we were entering the field of criminal legislation when talking about arrangements for the Child Support Agency in this Bill. I shall write to the noble Lord on the point, if he can bear to receive another piece of correspondence.

Lord Higgins

I share the implicit concern expressed by the noble Lord, Lord Goodhart, that this may go rather wider than we had thought. However, as I now understand the precise purpose of this provision—which seeks to amend Section 15 of the Child Support Act 1991 covering the powers of inspectors—in that context, inspectors may find themselves in a situation where either one member of a married couple or one partner of a civil partnership refuses to respond to him, by analogy with the situation of a wife not being able to give evidence against her husband. That will place a severe restriction on the ability of the inspectors to find out what is really happening. However, no doubt we would create a difficult legal precedent if we went against it. I am not clear why the power has to be included. I want to consider carefully what the noble Lord, Lord Goodhart, said and I shall do so in the light of the Minister's comments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 74 not moved.]

4.45 p.m.

Lord Higgins moved Amendment No. 75: Page 211, line 29, leave out "(as originally enacted)

The noble Lord said: The drafting again seems slightly unusual because, as pointed out by the noble Baroness, an enormous amount of what I am almost inclined to say is legislative garbage is made by reference back and forth, from statutory instrument to primary legislation and back again. In the absence of consolidation, it is tremendously difficult for anyone to follow the trail to its conclusion.

To include "as originally enacted" seems very strange. Perhaps I am mistaken and it has been used before. It means that, instead of looking at a particular Act of long ago that might have been altered three or four times and then again by statutory instrument, one has to go back to the beginning—before it was altered—to find its meaning. Perhaps the noble Baroness will clarify the situation. I beg to move.

Baroness Hollis of Heigham

I shall do my best to help. I agree with the noble Lord; the phrase is unusually colloquial for a Bill. It refers to the Child Support Act 1991. The new system was introduced by amendments to that Act, not by a new, free-standing Act that replaced the old one. The phrase simply refers to arrangements under the old scheme as opposed to the new one. Under the old scheme, the partner of the non-resident parent might need to have his or her income assessed to determine the level of household income necessary for the children in the second family. That does not come into play under the new scheme so we need to distinguish between the old and new schemes in the wording. With that explanation, I hope that the noble Lord will withdraw his amendment.

Lord Higgins

But that seems to imply that the original scheme will continue for ever or remain rather like the smile of the Cheshire cat after the Cheshire cat has disappeared. Am I right in thinking that the provision deals with—the amendment would cancel it out—the idea that the original scheme eventually disappears? This would appear to perpetuate it indefinitely.

Baroness Hollis of Heigham

The scheme is not perpetuated indefinitely but while the old scheme continues we need the power. When the old scheme folds in the sense that existing clients of the agency will go across to the new scheme, the power will obviously not be needed. The income of the second adult in the non-resident parent's family would not be taken into account because we would not need to assess it.

Lord Higgins

That seems rather a counsel of despair given that the Government were going to abandon the old scheme, introduce the new scheme and have it operational a long time ago. The whole saga of the Child Support Agency has been a very sad one and continues to be so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Higgins moved Amendment No. 76: Page 212, line 1, leave out paragraph 4.

The noble Lord said: The amendment seeks to leave out paragraph 4 which would insert after paragraph 6(5) of the schedule—dare I say it?—as originally enacted, a new sub-paragraph (5A) which states: For the purposes of this paragraph, two adults of the same sex arc to he regarded as living together"— as civil partners and as if they were two adults of the opposite sex. It is effectively a cohabitation argument, if I understand it correctly. The cohabitation provisions will effectively appertain to determining to what extent people on the old scheme are parents with care. That is as opposed to those subject to the new scheme; we are not clear at all what happens under that.

This is very deep water, and I enter it with some trepidation, even having lived with it since 1991. Perhaps the noble Baroness will tell us exactly what it is all about. I beg to move.

Baroness Hollis of Heigham

I would happily spend half an hour discussing the new arrangements for child support, but I am not sure that the rest of the Committee would be very happy with that. A self-denying ordinance will prevail, so I shall not.

I merely say that, under the new scheme, the only income assessment made is of the non-resident parent's wage or salary, as against the number of children in the first and possibly the second family. If there is one child in the family that he is needed to support, he pays 15 per cent; if there are two, he pays 20 per cent; and if there are three or more, he pays 25 per cent. That is the only calculation that needs to be made. It takes about eight lines of financial calculation, compared to 39 lines of it under the old scheme.

Under the old scheme, because minimum income levels are determined by the capacity of the second family to support its children before money goes to the first family that the non-resident parent is obliged to support, one has to determine the income of the partner of the non-resident parent to see whether that second family has sufficient income. We have quite rightly stripped all that out of the new system. While the old system exists, it is important to establish parity—fairness—between different groups of people.

The amendment would do something that I am sure that the noble Lord does not intend. It would recognise civil partners for husband-and-wife purposes—for assessing joint financial income in terms of a conventional spouse as the non-resident parent. It would also recognise cohabiting opposite-sex couples, as now, but not cohabiting same-sex couples. Those are what we need to bring into the equation. For reasons that escape me, the noble Lord seeks to exclude those by his amendment. I am sure that, on reflection, he will want them included. On that basis, I hope that he will feel able to withdraw his amendment.

Lord Higgins

Having dealt with constituency cases between 1991 and 1997 on the Child Support Agency and tried to explain to infuriated individuals why they had to pay for their children, I am glad to have escaped from all that. I do not think that I would manage, and I doubt whether even the noble Baroness would manage, to convince them that it was absolutely justified that they should do so. The whole area is a legislative nightmare. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hollis of Heigham moved Amendment No. 76A: Page 212, line 23, at end insert—

"PART 1A

AMENDMENTS OF THE CHILD SUPPORT (NORTHERN

IRELAND) ORDER 1991(S.I. 1991/2628 (N.I. 23)).

5A In Article 3 (meaning of "child"), in paragraph (2)—

  1. (a) in sub-paragraph (a), after "married" insert "or a civil partner",
  2. (b) in sub-paragraph (b), after "marriage" insert or been a party to a civil partnership,", and
  3. (c) in sub-paragraph (c), after "granted" insert "or has been a party to a civil partnership in respect of which a nullity order has been made".

5B In Article 17 (powers of inspectors), in paragraph (7)—

  1. (a) after "married" insert "or is a civil partner", and
  2. (b) after "spouse" insert "or civil partner".

5C For paragraph 6(5)(b) (as originally enacted) of Schedule 1 (maintenance assessments) substitute— (b) where the absent parent—

  1. (i) is living together in the same household with another adult of the opposite sex (regardless of whether or not they are married),
  2. (ii) is living together in the same household with another adult of the same sex who is his civil partner, or
  3. (iii) is living together in the same household with another adult of the same sex as if they were civil partners,
income of that other adult,".

5D After paragraph 6(5) (as originally enacted) of that Schedule insert— (5A) For the purposes of this paragraph, two adults of the same sex are to be regarded as living together in the same household as if they were civil partners if, but only if, they would be regarded as living together as husband and wife were they instead two adults of the opposite sex.

5E In paragraph IOC of that Schedule (as substituted by section 1(3) of, and Schedule 1 to, the Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4 (N.I.))), for subparagraph (5) substitute— (5) In sub-paragraph (4)(a), "couple" means—

  1. (a) a man and a woman who are married to each other and are members of the same household,
  2. (b) a man and a woman who are not married to each other but are living together as husband and wife,
  3. (c) two people of the same sex who are civil partners of each other and are members of the same household, or
  4. (d) two people of the same sex who are not civil partners of each other but are living together as if they were civil partners.
(6) For the purposes of this paragraph, two people of the same sex are to be regarded as living together as if they were civil partners if, but only if, they would be regarded as living together as husband and wife were they instead two people of the opposite sex"".—

The noble Baroness said: The amendment deals with amendments to the Child Support (Northern Ireland) Order 1991. It mirrors the existing proposals for civil partners and same-sex couples. On that basis, I hope that the Committee will accept it. I beg to move.

On Question, amendment agreed to.

[Amendment No. 77 not moved.]

Lord Higgins moved Amendment No. 78: Page 213, leave out lines 16 and 17.

The noble Lord said: The matter is again very complex. The amendment is concerned with social security contributions and the definition of a surviving civil partner. That raises the question of survivors' pensions and, perhaps to some extent, contributions. I think, but am far from certain, that the clause seeks to define a surviving civil partner. Apparently, the provision would apply only in the case of women. I presume that that in turn refers to the complexity of existing legislation, whereby only a woman gains from the existing contribution. I am reassured by the noble Baroness's nod. Apparently that anomaly will be perpetuated here, although I presume that it will persist only until a certain date rather than indefinitely. Perhaps the noble Baroness could confirm whether that is so.

Baroness Hollis of Heigham

Many of the points that the noble Lord made are relevant to the bigger amendment, Amendment No. 77, which he did not move, rather than the smaller one, Amendment No. 78. As he was using the amendment to open up a general question, I shall seek to answer it.

The noble Lord is entirely right. At present, widows may enjoy survivors' benefits from 1978 and widowers from 1988. Women are also entitled to a dependency pension based on National Insurance contributions, whereas men may not enjoy such a pension until 2010, when the ages will start to equalise. Widowers' retirement age is five years later than that of widows, so a double transition is happening. There is both the right of men to draw a pension from their partner's national insurance contributions in the same way as women can, and, secondly, we have the disparate ages of retirement: 60 until 2010 for women, increasing by one year every two years until 2020. The noble Lord is therefore right on both those counts. It is a finite problem. As and when the pension age is equalised, the treatment of widows and widowers will be equalised in the same way. I hope that that answers the noble Lord's points.

I could go on to the technical detail of his amendments, but I think that he was using them as a peg for the wider assurances.

Lord Higgins

That is helpful. I suppose that that was the reason for the clause as it stands. It is helpful to have it on the record that the situation will eventually be phased out. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 79 not moved.]

The Deputy Chairman of Committees

Before the next group of amendments, I must advise Members of the Committee that if Amendment No. 79B were agreed to, I would not he able to call Amendment Nos. 80 or 80A.

Lord Higgins moved Amendment No. 79A: Page 214, line 22, leave out sub-paragraphs (1) to (4).

The noble Lord said: This part of the Bill is concerned with contributions and the use of former spouses' contributions. It may be helpful to take the two together. As I understand it, there will be discussion generally of these matters as far as the contributions issue is concerned. I am not really clear why we are going to modify the legislation with regard to the additional pension benefits, or how exactly the system will work in relation to same-sex couples. Am I right in thinking that it mirrors the existing situation with regard to married couples, or is there any difference? I beg to move.

5 p.m.

Baroness Hollis of Heigham

On the noble Lord's question whether it mirrors the situation of married couples, he is absolutely right. At the moment, a married woman but not a married man can use her husband's national insurance contributions to draw a category B pension, or a dependency or a 60 per cent pension from him. From 2010, so will men be able to draw a similar pension from women if. for example, the man was at home and she was in work and she had acquired the better run of national insurance contributions. The amendments remove the right of civil partners to enjoy the same access to category B pensions as currently exists. There is a complexity because at the moment a woman derives a pension from a man.

Therefore, if we were to get an exact mirror, male same-sex couples would be able to draw pensions now, whereas female same-sex couples—because a female could not draw a pension from another female, because a man cannot draw a pension from a female—would not. You get the bizarre result that male same-sex couples would be drawing a dependency pension ahead of female same-sex couples. That is why I equivocated a little, but the attempt is to replicate the existing situation with regard to married couples. We had to decide whether to replicate exactly. or try to get the fairness point established. From 2010, in the same way that men draw from women, so will same-sex couples be able to draw, subject to the retirement age, which is gender-based, not marriage or spousal relationship-based. I hope that that clarifies the situation.

Lord Higgins

Yes, it was helpful. One will need to study it rather carefully. I am wondering where it would be most appropriate in your Lordships' consideration of this Bill to raise the issue of contributions more generally—

Baroness Hollis of Heigham

I do not think anywhere.

Lord Higgins

That is not the view of some of the outside interests. There are some serious anomalies here with regard to the situation of same-sex couples gaining from the contributions situation. More particularly, and I have expressed this concern before—I am now hopelessly out of order—in existing circumstances wives get a pension as a result of their husband's contributions. Apparently now one or other of the same-sex partners will get a pension—let us say a wife's pension, in effect, though I must not say that—

Baroness Hollis of Heigham

A dependent's pension.

Lord Higgins

A dependent's pension. I am not clear—and this is relevant to what we have been discussing—to what extent the contribution of one or other of the partners will be relevant. Are we to understand that the larger contribution of the two presumed contributions of the individuals concerned will be the basis for the pension? Underlying what I am saying is a concern that some other groups, particularly those with deficient contribution records who do not get a national insurance pension now, will continue not to get it because of their deficient record, whereas suddenly those who form a same-sex partnership will find that they do, even though they have a deficient contribution record. That seems unfair. That is what I am concerned about in this section—which as the noble Baroness rightly pointed out is about contributions—and I wonder whether we are dealing unfairly, because of the existing contribution rules, with regard to specific individuals.

On top of all that, if someone now gets married, he finds that he gets a wife's pension, and he has paid no more in contributions than a single person. The existing system, a relic, as I said at Second Reading, of Beveridge, provides that single people are grossly discriminated against. What worries me here is that we are extending that discrimination. There is yet another group who will get a national Insurance pension while deficient in their contributions, while single people continue not to get any benefit, even though they have paid the same amount. At some stage, we need to consider whether it is appropriate to extend these provisions in this way when we have another group that is even more unfairly treated.

Baroness Hollis of Heigham

The noble Lord is absolutely right that the state pension is the last unreformed bit of Beveridge. It presumed a society where he worked for a wage, and she was at home and worked bringing up the children, but not for a wage. Therefore, his wage, and subsequently his pension, were regarded as providing for both of them. It was therefore a dependent's pension based on 60 per cent, and only if her own national insurance contributions through work exceeded that would she come best to a calculation. It is still the case that only 14 per cent of women recently retired go into retirement with a full basic state pension in their own right. The rest get it either through their husband or, given that half of all women aged over 65 are widows, through a displacement of national insurance contributions.

There is a wider debate that the noble Lord may wish to have at some stage, but this is not the time for it. By extending to civil partners the rights and responsibilities of marriage, the dependency pension, the category B pension, the 60 per cent pension—which currently goes to wives, and will from 2010 be available to men if their wives have a better NI record—must be read across to civil partners. That means that single people, or people who have been cohabiting in same-sex or opposite-sex relationships for many years—even 20, 30 or 40 years—do not derive any entitlement to national insurance. That is where we stand. We are addressing the immediate anomaly by trying to ensure that civil partners enjoy the same structure of social security support and responsibilities as do married couples.

I do not deny that that means that other people do not have those same rights. The noble Lord has identified that. However, that is as far as I can go as this stage. We understand the situation perfectly well, but as this Bill seeks to establish equity or parity of treatment between civil partners and married couples, to civil partners will go the category B dependency pension from an appropriate stage.

Lord Goodhart

Perhaps the noble Baroness would confirm that in the case of civil partners, as well as spouses, no one can claim both a category A and a category B pension, and that there is no question of one civil partner getting two pensions—it is whichever is the better of the two.

Baroness Hollis of Heigham

It is certainly the case that you cannot have both a category A and category B pension. Conventionally, a man will have worked and acquired the national insurance contribution, and the wife, not being in waged work, will have acquired the dependency pension. If you have two civil partners, both of whom have worked all their lives, they in their relationship will receive two 100 per cent pensions rather than 160 per cent.

I can quite envisage a situation, for example, where one partner in a lesbian relationship may have brought her children with her. Because she has come out of a marriage with children, she may be deficient in national insurance contributions whereas her new civil partner has a full record. It would therefore make sense for her to get the 60 per cent.

I can also envisage situations where, in the case of a same-sex couple, one may be in regular employment as a teacher and the other may be self-employed as a potter or a craftsperson and not have a full record. They will have a choice as to which is the best buy for them. I would expect that in most civil partnerships the dependency pension will not come into play simply because people will be better off drawing on their own national insurance contributions, but that may not always be the case.

Lord Goodhart

The other point I was going to make, as the noble Lord, Lord Higgins, quite rightly said, is that this will provide a new opportunity for someone who has a poor contribution record to enter into a civil partnership, with the result that they will then acquire a much better contribution record. But, of course, that is equally the case at present for a woman with no contribution record who marries a man with a full contribution record and thereby acquires a right to the widow's pension.

Baroness Hollis of Heigham

That is exactly right. That is a consequence of the read across from the existing relationship between married couples.

Lord Higgins

This has been a helpful discussion. I am not sure to what extent it was wholly related to the amendments—to a considerable extent, I think—but we need to be clear about the matter. As the noble Baroness said, this perhaps deals with the last unreformed piece of Beveridge. While there may not be any votes in it, it is a matter that should be borne in mind when we go on, as the Bill does, extending the anomalies in the way suggested.

I wonder where best we might raise the issues of retrospection and so on.

Baroness Hollis of Heigham

How about tomorrow?

Lord Higgins

Perhaps not at this point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 79B to 81 not moved.]

Baroness Hollis of Heigham moved Amendment No. 81A: Page 215, line 33, after "Category B" insert "retirement

The noble Baroness said: In moving Amendment No. 81A, I shall speak also to Amendment No. 81B. These are two minor amendments to correct the drafting of paragraph 21 of Schedule 17. The paragraph amends Section 51 of the Social Security Contributions and Benefits Act 1992 so as to extend entitlement to category B retirement pension from widowers alone to widowers and surviving civil partners.

Amendment No. 81A seeks to insert the word "retirement" into line one of new subsection (1A). It might be thought unnecessary when using the word "pension" to insert the word "retirement", but I am advised that you have to use the description in the text set out in the original legislation; that contained the word and hence it needs to be reinserted.

Amendment No. 81B reflects the fact that subparagraph (3) now has effect in relation to deaths occurring after 5 October 2002. The original text of the Act set out the different date of "2000". That has been amended by Section 39 of the Child Support, Pensions and Social Security Act 2000 to "2002". We need to go back to the exact wording of the home legislation, if I can so regard it. Perhaps we should have picked up on the matter earlier, but we did not. I hope that Members of the Committee will accept these drafting amendments. I beg to move.

On Question, amendment agreed to.

5.15 p.m.

Baroness Hollis of Heigham moved Amendment No. 81B: Page 215, line 44, leave out "2000" and insert "2002

On Question, amendment agreed to.

Baroness Hollis of Heigham moved Amendment No. 81C: Page 221, line 20, at end insert— 56A In section 20 (descriptions of contributory benefits). in subsection (1)(f)(ii), after "spouse" insert "or civil partner". 56B In section 30A (incapacity benefit: entitlement), in subsection (2)(b)(ii), after "spouse" insert "or deceased civil partner". 56C In section 30B (incapacity benefit:rate), in subsection (3)(a), after "people" insert "or civil partners". 56D (1) Amend section 36 (bereavement payment) as follows. (2) In subsection (1), after "spouse" (in each place) insert "or civil partner". (3) For subsection (2) substitute— (2) A bereavement payment shall not be payable to a person if—

  1. (a) that person and a person of the opposite sex to whom that person was not married were living together as husband and wife at the time of the spouse's or civil partner's death, or
  2. (b) that person and a person of the same sex who was not his or her civil partner were living together as if they were civil partners at the time of the spouse's or civil partner's death."
56E In section 36A (cases in which sections 37 to 41 apply), in subsection (2), after "spouse" insert "or civil partner". 56F (1) Amend section 37 (widowed mother's allowance) as follows. (2) In subsection (3), after "remarries" insert "or forms a civil partnership". (3) After subsection (4)(b) insert "or (c) for any period during which she and a woman who is not her civil partner are living together as if they were civil partners. 56G (1) Amend section 38 (widow's pension) as follows. (2) In subsection (2), after "remarries" insert "or forms a civil partnership". (3) After subsection (3)(c) insert "or (d) for any period during which she and a woman who is not her civil partner are living together as if they were civil partners. 56H (1) Amend section 39A (widowed parent's allowance) as follows. (2) After "spouse" (in each place other than subsections (2)(b) and (4)), insert "or civil partner". (3) After "spouse's" (in each place) insert "or civil partner's". (4) In subsection (2), after paragraph (b) insert "or (c) the surviving civil partner is a woman who—
  1. (i) was residing together with the deceased civil partner immediately before the time of the death, and
  2. (ii) is pregnant as the result of being artificially inseminated before that time with the semen of some person, or as a result of the placing in her before that time of an embryo, of an egg in the process of fertilisation, or of sperm and eggs."
 (5) In subsection (4), after "remarries" insert "or forms a civil partnership". (6) After subsection (4) insert— (4A) The surviving civil partner shall not be entitled to the allowance for any period after she or he forms a subsequent civil partnership or marries, but, subject to that, the surviving civil partner shall continue to be entitled to it for any period throughout which she or he—
  1. (a) satisfies the requirements of subsection (2)(a) or (b) above; and
  2. is under pensionable age."
 (7) After subsection (5)(b) insert "or (c) for any period during which the surviving spouse or civil partner and a person of the same sex who is not his or her civil partner are living together as if they were civil partners. 56I (1) Amend section 39B (bereavement allowance where no dependent children) as follows. (2) After "spouse" (in each place other than subsection (4)), insert "or civil partner". (3) After "spouse's" (in each place) insert "or civil partner's". (4) In subsection (4), after "remarries" insert "or forms a civil partnership". (5) After subsection (4) insert— (4A) The surviving civil partner shall not be entitled to the allowance for any period after she or he forms a subsequent civil partnership or marries, but, subject to that, the surviving civil partner shall continue to be entitled to it until—
  1. (a) she or he attains pensionable age, or
  2. (b) the period of 52 weeks mentioned in subsection (3) above expires, whichever happens first."
 (6) After subsection (5)(b) insert "or (c) for any period during which the surviving spouse or civil partner and a person of the same sex who is not his or her civil partner are living together as if they were civil partners. 56J In section 39C (rate of widowed parent's allowance and bereavement allowance)—
  1. (a) after "spouse" (in each place) insert "or civil partner", and
  2. (b) in subsection (5), after "spouse's" insert "or civil partner's".
 56K In section 46 (modifications of section 45 for calculating the additional pension in certain benefits)—
  1. (a) after "under pensionable age", in subsection (2), insert "or by virtue of section 39C(1) above or section 48A(4), 48B(2) or 48BB(5) below in a case where the deceased civil partner died under pensionable age",
  2. (b) after "spouse", in paragraph (b)(i) of the definition of "N" in subsection (2), insert "or civil partner", and
  3. (c) after "spouse" (in each place) in subsection (3), insert "or civil partner".
 56L (1) Amend section 48 (use of former spouse's contributions) as follows. (2) In subsection (1)—
  1. (a) for "married" substitute "in a relevant relationship",
  2. (b) for "marriage" substitute "relationship", and
  3. (c) after "spouse" insert "or civil partner".
 (3) In subsection (2), for "marriage" substitute "relevant relationship". (4) For subsection (3) substitute— (3) Where a person has been in a relevant relationship more than once, this section applies only to the last relevant relationship and the references to his relevant relationship and his former spouse or civil partner shall be construed accordingly. (4) In this section, "relevant relationship" means a marriage or civil partnership. 56M (1) Amend section 48A (category B retirement pension for married person) as follows. (2) After subsection (2) insert— (2A) A person who—
  1. (a) has attained pensionable age, and
  2. (b) on attaining that age was a civil partner or forms a civil partnership after attaining that age, shall be entitled to a Category B retirement pension by virtue of the contributions of the other party to the civil partnership ("the contributing civil partner") if the following requirement is met.
 (2B) The requirement is that the contributing civil partner—
  1. (a) has attained pensionable age and become entitled to a Category A retirement pension, and
  2. (b) satisfies the conditions specified in Schedule 3, Part 1, paragraph 5."
 (3) In subsections (3) and (4), after "spouse" insert "or contributing civil partner". (4) In subsection (4A), for "widow or widower" substitute "widow, widower or surviving civil partner". (5) In subsection (5), after "spouse's" insert "or contributing civil partner's". (6) Section 48A (as amended by this paragraph) does not confer a right to a Category B retirement pension on a person by reason of his or her forming a civil partnership with a person who was born before 6th April 1950. 56N (1) Amend section 48B (category B retirement pension for widows and widowers) as follows. (2) After subsection (1) insert (1A) A person ("the pensioner") who attains pensionable age on or after 6th April 2010 and whose civil partner died—
  1. (a) while they were civil partners of each other, and
  2. (b) after the pensioner attained pensionable age, shall be entitled to a Category B retirement pension by virtue of the contributions of the civil partner if the civil partner satisfied the conditions specified in Schedule 3, Part 1. paragraph 5."
 (3) In subsection (2), after "subsection (1 )" insert "or (1A)". (4) In subsection (3), after "spouse" (in each place) insert "or civil partner". 56O (1) Amend section 48BB (category B retirement pension: entitlement by reference to benefits under section 39A or 39B) as follows.
  1. (2) After "spouse" (in each place) insert -or civil partner".
  2. (3) After "spouse's" (in each place) insert "or civil partner's".
 (4) In subsections (1)(b) and (3)(b), for "remarried" substitute "following that death married or formed a civil partnership". 56P (1) Amend section 51 (category B retirement pension for widowers) as follows. (2) After subsection (1) insert— (1A) A civil partner shall be entitled to a Category B retirement pension if—
  1. (a) his or her civil partner has died and they were civil partners of each other at the time of that death,
  2. (b) they were both over pensionable age at the time of that death, and
  3. (c) before that death the deceased civil partner satisfied the contribution conditions for a Category A retirement pension in Schedule 3, Part 1, paragraph 5."
 (3) In subsection (2)—
  1. (a) for "man's" substitute "person's", and
  2. (b) after "wife" insert "or deceased civil partner".
 (4) In subsection (3), after "2002" insert "or a surviving civil partner". (5) In subsection (4)—
  1. (a) for "man" substitute "person", and
  2. (b) after "pension" insert "under this section".
 (6) Section 51 (as amended by this paragraph) does not confer a right to a Category B retirement pension on a person who attains pensionable age on or after 6th April 2010. 56Q In section 5IA (special provision for married people), in subsection (1)—
  1. (a) after "person" insert "or civil partner", and
  2. (b) after "marriage" insert "or civil partnership".
 56R In section 52 (special provision for surviving spouses), in subsection (1), after "spouse" insert "or civil partner". 56S In section 60 (complete or partial failure to satisfy contribution conditions), in subsection (2)—
  1. (a) after "married" insert "or a civil partner", and
  2. (b) for "widow or widower" substitute "widow, widower or surviving civil partner".
 56T In section 62 (graduated retirement benefit), after subsection (1)(aa) insert— (ab) for extending section 36 of that Act (increase of woman's retirement pension by reference to her late husband's graduated retirement benefit) to civil partners and their late civil partners and for that section (except subsection (5)) so to apply as it applies to women and their late husbands;".

The noble Baroness said: These amendments, which apply to Northern Ireland, mirror the amendments to the corresponding social security and child support provisions for Great Britain. Perhaps I can assume, given our earlier discussion, that Members of the Committee would be happy to accept them. I beg to move.

On Question, amendment agreed to.

Baroness Hollis of Heigham moved Amendment Nos. 81D to 81G: Page 221, line 24, at end insert— 57A In section 82 (short-term benefit: increase for adult dependants)—

  1. (a) in subsection (3)(a) and (b), after "husband" insert "or civil partner",
  2. (b) in subsection (3)(b), for "his" substitute "her husband's or civil partner's", and
  3. (c) in subsection (4)(a), after "spouse" insert "or civil partner".
57B In section 83A (pension increase for spouse)—
  1. (a) in subsection (1), for "married pensioner" substitute "pensioner who is married or a civil partner", and
  2. (b) in subsections (2) and (3), after "spouse" (in each place) insert "or civil partner".
 57C (1) Amend section 85 (pension increase (person with care of children)) as follows.
  1. (2) Omit subsection (1).
  2. (3) After subsection (1) insert—
 (1A) Subject to subsections (2A) and (4) below, the weekly rate of a Category A retirement pension shall be increased by the amount specified in relation to that pension in Schedule 4, Part 4, column (3) for any period during which a person who is neither the spouse or civil partner of the pensioner nor a child has the care of a child or children in respect of whom the pensioner is entitled to child benefit. (4) In subsection (2)—
  1. (a) for "the following provisions" substitute "subsections (3) and (4) below", and
  2. (b) for "pension to which this section applies" substitute "Category C retirement pension payable by virtue of section 78(1) above".
 (5) After subsection (2) insert— (2A) Subsection (1A) above does not apply if the pensioner is a person whose spouse or civil partner is entitled to a Category B retirement pension, or to a Category C retirement pension by virtue of section 78(2) above or in such other cases as may be prescribed. (6) In subsection (4), after "subsection" insert "(1A) or". 57D In section 114 (persons maintaining dependants etc.)—
  1. (a) in subsection (2), for "wife" substitute "wife, civil partner", and
  2. (b) in subsection (3)(a), after "spouse" insert "or civil partner".
 57E In section 120 (treatment of certain marriages), after subsection (1)(a) insert— (aa) for a voidable civil partnership which has been annulled, whether before or after the date when the regulations come into force, to be treated for the purposes of the provisions to which this subsection applies as if it had been a valid civil partnership which was dissolved at the date of annulment;". 57F (1) Amend section 121 (interpretation of Parts 1 to 6 and supplementary provisions) as follows.
  1. (2) In subsection (1), in the definition of "relative" after "by marriage" insert "or civil partnership".
  2. (3) After subsection (1) insert—
 (1A) For the purposes of Parts 1 to 5 and this Part of this Act, two people of the same sex are to be regarded as living together as if they were civil partners if, but only if, they would be regarded as living together as husband and wife were they instead two people of the opposite sex. 57G In section 123 (income support), in subsection (1)(c), (f) and (g), for "married or unmarried couple" substitute "couple". 57H In section 125 (trade disputes), in subsection (3)(b), (c) and (d), for "married or unmarried couple" substitute "couple". 57I In section 126 (effect of return to work), for "married or unmarried couple" (in each place) substitute "couple". 57J (1) Amend section 133 (interpretation of Part 7 and supplementary provisions) as follows. (2) In paragraphs (a), (b) and (c) of the definition of "family" in subsection (1), for "married or unmarried couple" substitute "couple". (3) After the definition of "child" in subsection (1) insert— "couple" means—
  1. (a) a man and woman who are married to each other and are members of the same household;
  2. (b) a man and woman who are not married to each other but are living together as husband and wife otherwise than in prescribed circumstances;
  3. (c) two people of the same sex who are civil partners of each other and are members of the same household; or
  4. (d) two people of the same sex who are not civil partners of each other but are living together as if they were civil partners otherwise than in prescribed circumstances;".
 (4) Omit the definitions of "married couple" and "unmarried couple" in subsection (1). (5) After subsection (1) insert— (1A) For the purposes of this Part, two people of the same sex are to be regarded as living together as if they were civil partners if, but only if, they would be regarded as living together as husband and wife were they instead two people of the opposite sex." Page 222, line 5, at end insert— 59A (1) Amend section 146 (interpretation of Part 10) as follows. (2) In the definition of "war widow's pension" in subsection (2)—
  1. (a) after "any widow's" insert "or surviving civil partner's", and
  2. (b) after "widow" insert "or surviving civil partner".
 (3) For subsection (3) substitute— (3) In this Part of this Act, "couple" has the meaning given by section 133(1) above. 59B (1) Amend Schedule 4A (additional pension) as follows. In paragraph 1(2), after "under pensionable age," insert "or by virtue of section 39C(1), 48A(4) or 48B(2) above, in a case where the deceased civil partner died under pensionable age,". (3) In paragraph 1(4)(a) and (b), (5), (6) and (7)(a) and (b), after "spouse" insert "or civil partner". 59C (1) Amend Schedule 7 (industrial injuries benefits) as follows. (2) For paragraph 4(3)(a) in Part 1 substitute— (a) a beneficiary is one of two persons who are—
  1. (i) spouses or civil partners residing together,
  2. (ii) a man and woman who are not married to each other but are living together as if they were husband and wife, or
  3. (iii) two people of the same sex who are not civil partners of each other but are living together as if they were civil partners, and".
 (3) In Part 1—
  1. (a) in paragraph 6(1), (3) and (4), after "spouse" (in each place) insert "or civil partner", and
  2. (b) in paragraph 6(4)(a), after "spouse's" insert "or civil partner's".
 (4) In paragraph 15 of Part 6—
  1. (a) in sub-paragraph (2), after "remarries" insert "or forms a civil partnership", and
  2. (b) at the end of sub-paragraph (3), insert "or is living together with a person of the same sex as if they were civil partners"."
 Page 222, line 7, at end insert—

"PART 4A

AMENDMENTS OF THE SOCIAL SECURITY

ADMINISTRATION (NORTHERN IRELAND) ACT 1992 (c. 8)

60A In section 2AA (full entitlement to certain benefits conditional on work-focused interview for partner), in subsection (7), for the definition of "couple" substitute— "couple" has the meaning given by section 133(1) of the Contributions and Benefits Act;".

60B In section 3 (late claims for bereavement benefit where death is difficult to establish)—

  1. (a) after "spouse" (in each place) insert "or civil partner", and
  2. (b) after "spouse's" (in each place) insert "or civil partner's".

60C (1) Amend section 13A (payment out of benefit of sums in respect of mortgage interest etc.) as follows.

(2) In subsection (4)—

  1. (a) in paragraph (a) of the definition of -partner'', for "to whom the borrower is married" substitute "who is married to, or a civil partner of, the borrower', and
  2. (b) in paragraph (b) of that definition, for "to whom the borrower is not married but who lives together with the borrower as husband and wife" substitute "who is neither married to, nor a civil partner of, the borrower but who lives together with the borrower as husband and wife or as if they were civil partners".

(3) After subsection (4A) insert— (4B) For the purposes of this section, two people of the same sex are to be regarded as living together as if they were civil partners if, but only if, they would be regarded as living together as husband and wife were they instead two people of the opposite sex.

60D (1) Amend section 69 (overpayments - general) as follows.

(2) In subsection (9), for "married or unmarried couple" substitute "couple".

(3) After subsection (11) insert— (12) In this section, "couple" has the meaning given by section 133(1) of the Contributions and Benefits Act.

60E In section 71 (overlapping benefits - general), in subsections (2)(b) and (d) and (5)(b) and (d), for "wife or husband" substitute "wife, husband or civil partner".

60F In section 72A (payment of benefit where maintenance payments collected by Department), in subsection (5)—

  1. (a) after the definition of "child maintenance" insert— ""couple" has the meaning given by section 133(1) of the Contributions and Benefits Act;",.
  2. (b) in the definition of "family", for "married or unmarried couple" (in each place) substitute "couple", and
  3. (c) omit the definitions of "married couple" and "unmarried couple".

60G (1) Amend section 74 (recovery of social fund awards) as follows.

(2) In subsection (3)(b), for "married or unmarried couple" substitute "couple".

(3) For subsection (5) substitute—

"(5) In this section, "couple" has the meaning given by section 133(1) of the Contributions and Benefits Act."

(4) In subsection (6)—

  1. (a) in paragraph (a), after "wife" insert "or civil partner", and
  2. (b) in paragraph (b), after "husband" insert "or civil partner".

60H In section 100 (failure to maintain - general), in subsection (4), after "spouse" insert "or civil partner".

60I In section 102 (recovery of expenditure on income support: additional amounts and transfer of orders), in subsection (1)(b), after "wife" insert "or civil partner".

60J In section 103B (power to require information), in subsection (5)(a), for "married, his spouse" substitute "married or is a civil partner, his spouse or civil partner".

60K In section 136 (up-rating under section 132 of pensions increased under section 52(3) of the Contributions and Benefits Act)—

  1. (a) in subsection (1), after "spouse" insert "or civil partner", and
  2. (b) in subsections (2) and (3), after "spouse's" (in each place) insert "or civil partner's"."
Page 223. line 22, at end insert—

"PART 6A

AMENDMENTS OF THE CHILD SUPPORT

(NORTHERN IRELAND) ORDER 1995 (S.I. 1995/2702

(N.I. 13))

65A (1) Amend paragraph (7) of Article 4 (the child maintenance bonus) as follows.

(2) After the definition of "child maintenance" insert—" couple" means

  1. (a) a man and woman who are married to each other and are members of the same household;
  2. (b) a man and woman who are not married to each other but are living together as husband and wife otherwise than in prescribed circumstances;
  3. (c) two people of the same sex who are civil partners of each other and are members of the same household; or
  4. (d) two people of the same sex who are not civil partners of each other but are living together as if they were civil partners otherwise than in prescribed circumstances;".

(3) In the definition of "family" for "married or unmarried couple" (in each place) substitute "couple".

(4) Omit the definitions of "married couple" and "unmarried couple".

65B After that paragraph insert— (7A) For the purposes of this Article, two people of the same sex are to be regarded as living together as if they were civil partners if, but only if, they would be regarded as living together as husband and wife were they instead two people of the opposite sex.

PART 6B

AMENDMENTS OF THE JOBSEEKERS (NORTHERN IRELAND) ORDER 1995(S.I. 1995/2705 (N.I. 15)).

65C (1) Amend Article 2 (interpretation) as follows.

(2) After the definition of "contribution-based jobseeker's allowance" in paragraph (2) insert— "couple" means—

  1. (a) a man and woman who are married to each other and are members of the same household;
  2. (b) a man and woman who are not married to each other but are living together as husband and wife otherwise than in prescribed circumstances;
  3. (c) two people of the same sex who are civil partners of each other and are members of the same household; or
  4. (d) two people of the same sex who are not civil partners of each other but are living together as if they were civil partners otherwise than in prescribed circumstances;".

(3) In paragraphs (a), (b) and (c) of the definition of "family" in paragraph (2), for "married or unmarried couple" substitute "couple".

(4) Omit the definitions of "married couple" and "unmarried couple" in paragraph (2).

(5) After paragraph (2) insert— (2A) For the purposes of this Order, two people of the same sex are to be regarded as living together as if they were civil partners if, but only if, they would be regarded as living together as husband and wife were they instead two people of the opposite sex.

65D In Article 3 (the jobseeker's allowance), in paragraph (4), in the definition of "a joint-claim couple", for "married or unmarried couple" substitute "couple".

65E In Article 25 (recovery of sums in respect of maintenance), in paragraph (1), after "spouse" insert "or civil partner"."

On Question, amendments agreed to.

Lord Higgins moved Amendment No. 82: Page 224, line 15, leave out sub-paragraph (2).

The noble Lord said: We turn from the vexed question of state pensions to amendments to the Tax Credit Act 2002, on which the noble Baroness and I spent a long time.

Baroness Hollis of Heigham

Many happy hours.

Lord Higgins

Indeed. The question is: what is the situation regarding tax credits in same-sex partnerships? The subsection suggests, for 'married couple or unmarried couple' substitute 'couple—'". The question of tax credits is important. One can understand the problems caused by complexity in this area. Perhaps I may say to the noble Lord, Lord Alli, in particular that those entering a civil partnership may be wise to consider the effects on them as regards tax credits. They may find that not everything is as good as they might reasonably suppose. In reports in the Sunday papers last weekend, the stringent codes of practice that the Revenue is now adopting were described as "alarming reading". It was reported that steep fines of £3,000 and a further fine of £60 a day may be imposed if one does not complete the forms as accurately as the Revenue wishes.

The whole area of tax credits has become unbelievably complex and difficult. The main problem that arises from this is the question of take-up, which is frighteningly low. But the extent to which people are confused is not surprising. Within the space of four years, from 1999 to 2003, the Chancellor abolished family credit and introduced the working families' tax credit, introduced the disabled person's tax credit, introduced the child care tax credit, introduced an employment credit, introduced the children's tax credit, introduced the baby tax credit, abolished the working families' tax credit, abolished the disabled person's tax credit, abolished the children's tax credit, abolished the baby tax credit and introduced the child tax credit. All that is apart from the pensions credit, which itself has considerable problems. It is therefore not surprising that many people are confused about what is going on. How many of these surviving credits, if I may put it that way, will those who form civil partnerships be entitled to receive?

The tax credit renewal form is appallingly complex—I would have great difficulty in filling it in. There are real problems here. More particularly, the question arises—and it is worthwhile having a fairly general debate at this stage—to what extent those entering into a civil partnership will gain as far as tax credits are concerned, and to what extent they will find it not to their advantage to have formed a civil partnership. Perhaps the noble Baroness could enlighten us. I beg to move.

Baroness Hollis of Heigham

This is a key issue because more than in most areas of social security, treating same-sex couples—whether in civil partnerships or cohabiting—as joint households will have significant effects. The amendment is pegged to open up a wider discussion, as the noble Lord, Lord Higgins, seeks. For the purposes of social security, this amendment would treat civil partners, cohabiting same-sex and cohabiting opposite-sex couples as though they were two separate individuals claiming benefit, to their financial gain. The only union left after he removed those is marriage, where they would be treated as a household, to their huge financial detriment. I understand that the noble Lord does not intend that in this probing amendment. He asked what examples I could give.

I will take a "Janet and Jane" rather than a "Janet and John" example. Janet has two children and earns £15,000 a year. Jane has one child and earns £10,000 a year. Treated as separate individuals, as they currently are under the law, they would together but as separate individuals, acquire an additional £8,000 tax credit to top up their incomes of £15,000 and £10,000 respectively. However, were this Janet and John—whether married or cohabiting and therefore treated as a couple—they would, with the same income and the same number of children, get not £8,000, but £1,800.

We covered this matter at our preliminary discussion. It means that when someone moves from being assessed as a single person for tax credits where children are involved, high-value benefits such as housing benefit—although the non-dependent adult deduction comes into play here, which mitigates it somewhat—income support, jobseeker's allowance and other income-related benefits, in particular where there are children, to being assessed as a couple, some of the losses can be very considerable. The noble Lord asked me for an example, and that is what I would cite for him.

We will do our best to ensure that all couples, whether of the same sex or of the opposite sex, let alone civil partners, understand the implications of how social security legislation will affect them once this Bill comes into force in a year or so. Equally, we will seek to avoid asking for repayments from someone who has inadvertently made a mistake and failed to appreciate that, although they have not entered into a civil partnership, nonetheless they are affected because they now form a same-sex couple. The test for that refers back to an earlier discussion: whether people are living together as husband and wife as revised under our new proposals in conjunction with the organisations to which I referred.

However, I do not think that we can duck the issue that if we are seeking to establish parity between civil partners and married couples, there should also be parity between same-sex cohabiting couples and opposite-sex cohabiting couples. The noble Lord asked me to clarify the situation, and I have set out exactly what will happen.

The amendment tabled by the noble Lord would continue to treat not only civil partners and same-sex cohabiting couples, but also for the first time cohabiting opposite-sex couples, as though they were single people, thus penalising only those who are living together in a marriage. I know that he did not intend to do that, but it was the hook for the debate. However, the noble Lord is right to assume that significant changes will be made, mostly to the financial detriment of same-sex couples who, for the first time—whether or not they are in a civil partnership and particularly where they have children. have a low income and are dependent on social security, and particularly where disability is involved—will find their household income will be lower than it otherwise has been in the past, although comparable with that of a cohabiting heterosexual couple. That is the package and we cannot walk away from it.

I hope that, with a response which repeats some of what I said in advance of the Second Reading oft his Bill, the noble Lord will feel able to withdraw his amendment.

Lord Higgins

It is helpful, as the noble Baroness rightly surmised, to try to clarify the situation by tabling a probing amendment. Given all the confusion over tax credits, it is important that those contemplating entering into a same-sex partnership under this Bill if it goes through and receives Royal Assent should be aware of the possible consequences. In that context, it is most helpful to have the words of the noble Baroness on the record. No doubt the noble Lord, Lord Alli, and others will take careful note of the situation, one that is extremely complicated and difficult to understand.

One can only hope that the Government are successful in conveying the position to people. Given the level of take-up, I refer here to everyone—not only those in single-sex partnerships—either not claiming tax credits or suffering because they have filled in the form and are then severely penalised. I am appalled by reports of the attitude now being taken by the Revenue. Making the change from what used to be social security to Inland Revenue organisation of these matters has changed the approach taken by the department now responsible to those who have difficulty understanding the legislation we pass. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Higgins moved Amendment No. 82A: Page 224, line 15, leave out from "(3)(a)," to end of line 16 and insert "after the words "married couple or unmarried couple" insert "or civil partner"

The noble Lord said: This is essentially a drafting point. I do not know whether the Government feel like accepting it. I beg to move.

5.30 p.m.

Baroness Hollis of Heigham

I was a bit thrown by that last remark—that the noble Lord thought that he was improving the Bill by a drafting amendment. My understanding of the purpose of the amendment is that it is a subset of the previous discussion. In other words, it would allow same-sex couples who are not civil partners to be treated as separate individuals. It goes back to the discussion about Janet and John being married. The amendment means that civil partners, married couples and cohabiting opposite-sex couples would be treated as couples, but same-sex non-registered couples would remain as individuals. Therefore, it is the subset of the previous discussion and might helpfully have been grouped with it.

I go back to my previous arguments. The provision comes as part of the package of the read-across. Therefore, I do not believe that the amendment does what the noble Lord believes that it does to improve the drafting, but I shall take advice on the matter. I look to the noble Lord, Lord Goodhart, because on at least three of the last half a dozen social security Bills he has challenged the wording and has been found to be right when Parliamentary Counsel were incorrect. If he supports the noble Lord, Lord Higgins, I shall certainly come back with a drafting amendment. Otherwise, I shall remain agnostic about whether it improves the drafting.

As the amendment stands, however, I am sure that it does what the noble Lord does not intend it to do. It relates back to the previous discussion and takes a position on equities that the noble Lord would not wish to support. On the basis of the substance of the explanation, I hope that he feels able to withdraw the amendment.

Lord Higgins

As I cannot call a vote on the issue, I shall not do so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hollis of Heigham moved Amendment No. 82B: Page 225, line 2, at end insert—

"PART 8A

AMENDMENTS OF THE STATE PENSION CREDIT ACT

(NORTHERN IRELAND)2002 (C. 14 (N.I.)).

73A In sections 2(5)(a) and (8)(b), 3(1)(b), 4(1), 5. 6(3)(c)(ii) and 9(4)(a), (b) and (d), for "married or unmarried couple" substitute "couple".

73B In section 2(5)(b), for "such a couple" substitute "a couple".

73C (1) Amend subsection ( I ) of section 17 (other interpretation provisions) as follows.

(2) After the definition of "the Contributions and Benefits Act" insert "couple" means

  1. (a) a man and woman who are married to each other and are members of the same household;
  2. (b) a man and woman who are not married to each other but are living together as husband and wife otherwise than in prescribed circumstances;
  3. (c) two people of the same sex who are civil partners of each other and are members of the same household; or
  4. (d) two people of the same sex who are not civil partners of each other but are living together as if they were civil partners otherwise than in prescribed circumstances;".

(3) In the definition of "foreign war widow's or widower's pension" for "widow or widower" (in each place) substitute "widow, widower or surviving civil partner".

(4) Omit the definitions of "married couple" and "unmarried couple".

(5) In the definition of "war widow's or widower's pension"—

  1. (a) in paragraph (a), for "any widow's or widower's" substitute "any widow's, widower's or surviving civil partner's", and
  2. (b) in paragraph (b), for "widow or widower" substitute "widow, widower or surviving civil partner".

73D After section 17(1) insert— (1A) For the purposes of this Act, two people of the same sex are to be regarded as living together as if they were civil partners if, but only if, they would be regarded as living together as husband and wife were they instead two people of the opposite sex."

On Question, amendment agreed to.

[Amendment No. 83 not moved.]

On Question, Whether Schedule 17, as amended, shall stand part of the Bill?

Lord Higgins

I am wondering how many loose ends we should pick up in debating the schedule. We have discussed the matters relating to the Child Support Act 1991. We have had some discussion of the amendments to the Social Security Contributions and Benefits Act 1992 and some discussion of category B pensions and other state pensions.

Baroness Hollis of Heigham

That seems fairly comprehensive.

Lord Higgins

It seems fairly comprehensive, except that, as we turn over page after page, we find amendments to the Social Security Administration Act 1992, which we have not discussed in any great detail—and, dare one say it, amendments to the Social Security Contributions and Benefits (Northern Ireland) Act 1992, which I have done my best to keep out of. There are also the State Pension Credit Act 2002, to which we have referred, and the State Tax Credits Act 2002. There are probably a number of points to which we shall wish to return on Report but, on the whole, we have covered most of the schedule, if not comprehensively then in a reasonable amount of detail, so I would not wish to delay the Committee further.

Schedule 17, as amended, agreed to.

Clause 187 [Power to amend enactments relating to pensions]:

Lord Higgins moved Amendment No. 84: Page 91, line 40, leave out "A minister of the Crown" and insert "The Secretary of State

The noble Lord said: This may be a matter that the Minister referred to in his opening remarks. Generally speaking, we would expect the Secretary of State rather than a Minister of the Crown to make amendments to various enactments relating to pensions, including pensions generally and Church legislation—a matter on which the right reverend Prelate the Bishop of Chelmsford may have something to say. It seems more appropriate for that to be done by the Secretary of State rather than a mere Minister. I beg to move.

Baroness Hollis of Heigham

The right reverend Prelate is deciding whether he wants to be tempted down the paths of righteousness by talking about Church administration.

A Minister of the Crown is not necessarily junior or inferior to a Secretary of State. He might be someone like the Lord Chancellor, who may well be responsible for judicial pensions. A Secretary of State is a subset of Minister of the Crown, rather than the other way round.

Lord Goodhart

But the Lord Chancellor is a Secretary of State now.

Lord Higgins

I was going to make exactly that point. The noble Lord, Lord Goodhart, and I are agreed—so there is another good debating point down the drain! I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hollis of Heigham moved Amendment No. 84A: Page 91, line 41, after "enactment," insert "Northern Ireland legislation,

The noble Lord said: In moving the amendment, I shall also speak to Amendments Nos. 85B, 85C, 87A, 87B, 87C, 87D, 88A, 89A and 91ZA. The amendments deal with Northern Ireland, amending Clause 187, which deals with the power to amend enactments relating to pensions. I wonder whether I have said enough. I can go on to expand a little, if Members of the Committee wish, but they have not shown any fascination hitherto with aspects of social security in Northern Ireland. I beg to move.

On Question, amendment agreed to.

Lord Higgins moved Amendment No. 85: Page 91, line 43, at end insert "state

The noble Lord said: This is an incredibly inconvenient amendment because, although it comes at the end of a line, it is also at the end of a page, which means that it is difficult to see exactly what it does. The clause seems very wide and, at a later stage, I may express concerns about the extent to which a Minister of the Crown or even a Secretary of State may amend, repeal or even revoke any enactments, subordinate legislation or Church legislation relating to pensions, allowances and so on. The power seems extraordinarily wide, although it is restricted at the end of the paragraph by the words. for … civil partners or dependants of … civil partners'.

The purpose of the amendment is to restrict the specific mention of pensions to state pensions, by which I mean national insurance pensions. However, I suppose that it could include some public service pensions. It does not seem desirable that the provision be so wide that the Minister could make subordinate legislation that would affect pensions of, let us say, an occupational pension scheme. That seems a bit too wide, so I beg to move.

Lord Goodhart

I am unable to agree with the noble Lord. I can see—we will discuss it on the next group of amendments—circumstances in which I would wish an order to be made that might affect private pension schemes as well as the state pension.

The Lord Bishop of Chelmsford

If we put "state" in, "Church" becomes very restricted. As ecclesiastical legislation is relevant, we need to make sure that the amendments carry in relation to that sphere. The insertion of "state" may make that difficult.

Baroness Hollis of Heigham

It would be extremely unfortunate if the amendment were other than probing, and were to be entertained seriously by the Committee. It would restrict the equity that we are trying to establish in pensions only to state pensions. The noble Lord rightly spotted that some areas might be left out in consequence, such as public sector pensions, but the problem is bigger than that.

I shall stand back and expand on the matter a bit, because the area of pensions is of major importance to us all. The Bill seeks to extend survivor pension rights to civil partners. The amendment would deny civil partners the rights to certain occupational pensions. The noble Lord does not think that the state has any necessary fiat writ there except public sector pensions. That is where the gap opens between us, because that is not the case.

The noble Lord mentioned, when he checked just now, that Schedule 17 deals with all the state benefits. including pensions. Clause 187 was included in the Bill specifically to provide a power that would allow for necessary amendments to the contracting-out provisions, as well as public sector pension schemes and other legislation in respect of certain pensions, so that survivors' benefits may be extended to civil partners.

The noble Lord will know that the contracting-out rights are the bit of national insurance one has paid that, instead of going into SERPS or what would now be the state second pension, are looped into the occupational pension. That is providing that, but only that, the private occupational scheme into which those NI rebates are invested provides a level of benefit at least equal under the reference scheme test to what would have been obtained under the state second pension. That means, for example, accrual rights of at least 40 80ths, and a survivor's pension of at least 50 per cent.

Should one need ever to change that, one would need powers under the clause to come back to occupational pensions. Therefore, it is not the case that the state's interest in pensions begins and ends with the classic basic state retirement pension. It underpins the good enough provisions of the whole private sector realm. That is why we need the powers.

I expected the noble Lord, Lord Goodhart, to say something in particular, so let me put it on record now; it will certainly come up again. The noble Lord, Lord Higgins, may be right to be concerned that Clause 187 is widely drawn. The Delegated Powers Committee—the noble Lord, Lord Goodhart, serves on it, and would normally have picked up the matter—shared that concern and asked us to take it further. We will reflect on that, and I may very well come back on Report with amendments to make more explicit—through either affirmative or negative regulations—what the noble Lord, Lord Higgins, seeks.

I could go on at much greater length about what we might propose to do. However, I hope that the noble Lord agrees that, if we were to accept his amendment, we would remove all survivor pension rights in contracted-out legislation to civil partners. He would not want to do that. He assumes that there is a clean line between state and private. There is not, because the contracted-out rebates underpin private sector pensions to a good enough level, equivalent to that of the state second pension. Therefore, we need the powers. We could come back to whether they need to be made more explicit on Report, but that we need them is without doubt. I hope that the noble Lord will withdraw his amendment.

5.45 p.m.

Lord Higgins

The issue is serious. As the noble Baroness pointed out, relatively few private pension schemes are totally remote from government one way or another, certainly so far as most occupational pension schemes are concerned, for the reasons that she mentioned; namely, with regard to contracting-out, contracting-in and so on. None the less, I still have some concern in terms of the powers. The right reverend Prelate rightly pointed out that there would be problems given the earlier reference to Church legislation. I understand that point very well and fully accept it. Rather than debating the matter at this stage, it might be easier to consider it when we come to the clause stand part debate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 85A: Page 92, line 2, at end insert— ( ) Orders made under subsection (1) shall give effect, so far as possible, to the principle that any person who is the civil partner of an earner or pensioner or the surviving civil partner of a deceased earner or pensioner shall have the same right to pension scheme benefits as the spouse of an earner or pensioner or the widow or widower of a deceased earner or pensioner.

The noble Lord said: In moving Amendment No. 85A, I shall speak also to Amendment No. 91E. These are the first and only amendments to be tabled by the Liberal Democrats in what has otherwise been a lengthy Committee. I do not think that we will come up with any more, even if the debate goes into another day. I am afraid to say that, after the very rapid pace at which we have been going, I shall have to take a certain amount of time over the amendments and therefore slow down the procedure that we have observed since half-past three.

The Liberal Democrats have given full support to the principle of the Bill and, indeed, to its text as amended by the very large number of amendments that we have had. The third day of Committee was the first occasion on which I had seen a Marshalled List at least as long as the Bill itself. However, we believe that civil partners are not being fairly treated on certain aspects of occupational pensions. I shall try to explain why. The structure of pensions is, of course, extremely complex. I have been away from pensions for two or three years, having previously employed many and varied vigorous arguments with the Minister. On looking into pensions again after that absence, I found the legislation almost incomprehensible.

We have the state pension. We have already discussed the category B retirement pension, which in certain respects means that there are distinctions between what is received by members of civil partnerships and members of married couples. For instance, the category B pension under Section 48A of the Social Security Contributions and Benefits Act 1992 is not payable to a man if his wife is not born before 6 April 1950. A category B pension under Section 48B is not payable to a man if he reaches the age of 65 before 6 April 2010. When considering how those provisions should be applied to civil partnerships, there is an option to treat all surviving civil partners on the same footing as either widows or widowers. If they are treated as widowers, they are treated less favourably in the circumstances just mentioned.

The Government have decided to treat the rights of civil partners claiming category B pensions as if they were men—this is dealt with in paragraphs 18 and 19 of Schedule 17—and, with some reluctance, we accept that principle. We do not think, for example, that there is a sufficient case for treating same-sex couples more favourably than husbands or widowers are treated under the existing law. There might be a case for removing the transitional restrictions on claims by men under Sections 48A and 48B of the 1992 Act and treating same-sex couples on the same basis, but that would be beyond the scope of the Bill.

We are particularly concerned about occupational pension schemes. There is no statutory requirement of benefit to be provided by occupational pension schemes for widows or widowers outside the guaranteed minimum pension but, in practice, almost all schemes provide such benefits. Following the Barber decision in the European Court of Justice in 1990, any scheme which provides benefits for widows must also provide equal benefits for widowers. That is a consequence of the equal pay directive of the European Community.

Schemes frequently give a discretionary right to the trustees to provide benefits for the partner—either male or female; same sex or different sex—of an employee, and that power nowadays is often used to provide a pension to a same-sex partner. It is very often done through a system whereby the employee can nominate someone who is a cohabitee or a dependant to receive a survivor's pension.

Public sector pension schemes pay the equivalent of occupational pension schemes but usually on a much more rigid basis and with no discretion to award a pension to an unmarried or same-sex partner. There are of course hybrid or contracted-out schemes in which that part of the state pension provided by SERPS—or now by the state second pension—is not paid and contributions by the employer and employee are correspondingly reduced. But the scheme has to pay an equivalent amount and there is a guaranteed minimum pension.

The GMP has to include a benefit for widows and widowers but, in the case of widowers, that is limited to the amount of benefit which a widower would have received if the wife's employment had begun in 1988, even if it began earlier. The same does not apply the other way round. A widow is entitled to the GMP benefit in full whatever date the employment began. The reason for this, I believe, is that the GMP for widowers is required only from 1988 and employers had until then funded their schemes on the basis that they would not have to pay benefits to widowers.

The Government are proposing to require GMP benefits to be paid to surviving civil partners but to pay them only on the amount that would have been payable if the deceased partner's employment had begun at the date of the commencement of the Bill, which we expect to be not earlier than October next year. It is clear therefore that in a number of respects a surviving civil partner will not for a lengthy transitional period—which may be up to 40 years—do as well as widows or widowers from occupational pension schemes. There is very little in the Bill about occupational pensions. Clause 187 gives a wide but unspecified power to amend existing pensions legislation, on which we have already had a short debate.

Schedules 18 and 19 amend some statutory pension schemes to allow civil partners to benefit, but their scope is limited. I have tabled two amendments. The first, Amendment No. 85A, is very general. It seeks to establish the following principle: Orders made under subsection (1) shall give effect, so far as possible, to the principle that any person is the civil partner of an earner or pensioner or the surviving civil partner of a deceased earner or pensioner shall have the same right to pension scheme benefits as the spouse of an earner or pensioner or the widow or widower of a deceased earner or pensioner".

To some extent, it is a probing amendment.

The first issue that I wish to raise is whether the Government intend to legislate to extend the Barber principle and require any occupational pension scheme, including public sector schemes, which provide benefits for widows and widowers, to provide equivalent benefits for civil partners. If that is not the case, there is a massive lacuna in the Bill and there is still substantial discrimination in pension matters in favour of married couples and against civil partners.

The second point, which is covered by Amendment No. 91E, is: if occupational pension schemes are provided for civil partners as of right, should the benefit to the surviving civil partner be restricted to benefits based on contributions since the commencement of the Bill, or should it be possible to go back before that date? Providing full benefits would, I think, be no problem with defined contribution schemes, because they would not necessarily require any further contribution by the employer. It would simply mean that pensions that until then had been solely provided for the employee would also have to take into account a civil partner—part of it would have to go to the civil partner.

I can see problems with defined benefit schemes, where giving to civil partners rights equivalent in all respects to those of widows and widowers would require some additional contributions from employers and employees.

Lord Higgins

I am grateful to the noble Lord for giving way. I did not quite follow what he was saying on defined contribution schemes. Would I be wrong in thinking that, if the Government legislated in such a way that trustees of a defined contribution scheme were obliged to pay pensions to civil partners, some other members of the scheme would have their pensions reduced?

Lord Goodhart

Yes. If a defined contribution scheme providing benefits for widows and widowers also provided benefits for civil partners, the civil partner concerned would get less from the pot of money. At present, the civil partner would not have to provide a widow's pension, because he is not married—assuming that this applies only to marriages that take place during the course of the employment. Therefore the civil partner concerned would find that he or she received less because part of the pot would provide for the possibility of money going to the surviving civil partner.

6 p.m.

Baroness Hollis of Heigham

I am sorry to interrupt the noble Lord, but I wonder whether we are making clear the difference between a defined benefit and a defined contribution scheme. A defined benefit would have a collective impact on all the members of the scheme because the contributions, along with those made by the employer, have to meet all the promises made. Clearly, in particular in public sector schemes, there would be a liability. A defined contribution scheme is a privately appropriated pot of money used as an annuity by the individual. As the noble Lord said, at the moment an individual, subject to the reference scheme test, can buy a single life, a joint life, an inflation-proof or a level annuity. According to which element of the package he buys, he will get so many thousands per hundred thousand—anything between £6,500 to just over £7,000 at today's rates.

With a money purchase scheme, one is simply striking a balance: if you get it for this part, you do not get it for that part. whereas a defined benefit scheme is collectively pooled which reflects irrespectively the total level of contributions. Thus someone who is married would be affected by the decision of a civil partner under a defined benefit scheme, but would not be affected by such a decision under a defined contribution scheme.

Lord Higgins

Leaving to one side for a moment the defined benefit scheme because we agree that there are other complications to be considered, so far as the defined contribution scheme is concerned, we are not making any change. What we are talking about could happen under the existing circumstances. As the noble Baroness has rightly pointed out, you pay into the scheme, you receive a given amount and you determine who is the beneficiary. It is wholly irrelevant to the argument.

Lord Goodhart

I am not absolutely certain of that because in terms of a personal pension, it would be true. However, I do not know whether there are some defined contribution schemes where, although the fund is provided through defined contributions, there are obligations to use the fund not only for the benefit of the employee. The employee is bound and does not really have an option to provide a pension for a surviving spouse.

Lord Higgins

That was the reason for my original intervention. If we are referring to a defined contribution scheme of the kind just described by the noble Lord, and if the coverage is extended to include civil partners, the pool remaining for the other members is reduced.

Baroness Hollis of Heigham

Perhaps I can help both noble Lords. It depends entirely on whether the scheme is contracted out or not. If a scheme is contracted out, whether a defined benefit or defined contribution scheme, it must meet the standard in terms of benefits of what would have been the state second pension. Clearly, however, accrual rates cannot apply in a defined contribution scheme, but survivors' benefits can do so. However, they apply only for that part of it; the rest—the remaining head space—is for the individual.

One reason for pension simplification is that someone in a defined contribution scheme may end up buying three or four different parts of a pension in order to package them together, so that some will meet the reference scheme test while other parts do not. One of the simplification procedures that we are going through seeks not just to change the tax changes, but to put in place a common package.

Lord Goodhart

I am grateful to the noble Baroness and I hope that she has clarified the position for the noble Lord, Lord Higgins.

I return to the question of the defined contribution scheme. I concede that this imposes a certain additional burden on such a scheme, which may therefore require a limited amount of additional funding. But the employee can say, "I have been paying full contributions all my working life, even though I knew I would almost certainly never marry because of my sexual orientation. Why should I now have to pay extra myself to provide benefits for my partner?". But if the partner does not get a full benefit, there would be discrimination against him or her when compared with a widow or widower.

In practice, it seems that little extra funding would be needed in private sector schemes because so many already allow discretionary provisions for partners. The extra cost has been estimated by Stonewall at no more than 0.02 to 0.04 per cent; indeed, that may be somewhat on the high side. It would be, for example, £4 extra out of wages of £10.000.

The big burden is on public sector schemes because they have been very slow to provide for dependants, particularly dependants of same-sex partners. However, the fact that they have been slow is not a reason for excluding the rights of same-sex partners under the Bill.

It seems to me that there is a very strong case for applying the Barber principle beyond equality between men and women and extending it to equality between civil partners and married couples. If there is no satisfactory reply as to that being the Government's intention, we will come back to the issue on Report.

I turn now to the more limited subject of the GMP. which is covered by Amendment No. 91E. The amendment contains suggested changes to eight different sections of the Pension Schemes Act 1993, most of which are consequential. I have not attempted to be complete; I am aware that there are other provisions of the Pension Schemes Act 1993 which would also require amendment, but they are not directly linked with this issue.

The central change concerns paragraph 4 of Amendment No. 91E. That provides that if the earner is a civil partner who has a guaranteed minimum under that section, the weekly rate is not less than the surviving civil partner's guaranteed minimum. Paragraph 4(3) links the surviving civil partner's guaranteed minimum to the widower's guaranteed minimum. Similarly, paragraph 4(4) again links the surviving civil partner's guaranteed minimum to the widower's guaranteed minimum.

I have already explained the reason for this. In funding a pension scheme the actuaries would have assumed that no pensions were to be paid to widowers and they might regard it as unfair to impose what could be seen as a retrospective burden on scheme funds. The effect of this is to backdate the surviving civil partner's pension to 1988, even if the contributions on which the pension is based go back before 1988.

As I have said, the widow's pension is payable on the basis of the total pension obtained by her husband; but a widower's pension under the GMP provisions in Schedule 18 is backdated only as far as 1988, even if the wife's employment and contributions began before that date.

I am asking here not that the date goes back as if the provision related to a widow but as if it were equivalent to the rights of a widower. That is what happens in connection with Schedule 17 and the right to the category B pension. We see some justification for that. Here, however, the surviving civil partner is treated not only less favourably than a widow but less favourably than a widower. We believe that gay and lesbian people, who have paid the same contribution rates but had no prospect of marriage, have subsidised heterosexual couples for many years and should qualify for equal treatment.

Furthermore, the provision would be cheap. The proportion of gay and lesbian people in the country is not large, and the take-up of civil partnerships is likely to be a small percentage of that number—perhaps 5 or 10 per cent. Many private sector schemes already provide discretionary benefits for same-sex partners. The extra cost of funding the GMP will therefore be very small.

We believe that it is reasonable to limit retrospectivity to 1988. The reasons are the same as those for the category B pension. The ideal solution would be to make the benefit fully retrospective for everyone, including widowers, but it is too late to do that and it is outside the scope of the Bill. It would be difficult to justify treating surviving male civil pensioners better than widowers, and it would be difficult to justify treating surviving male civil partners differently from female civil partners.

Our conclusion is that surviving civil partners, whether gay or lesbian, should get backdating but should get it only to 1988. That will give 17 years of backdating, which is a substantial part of a working life. For category B pensions, civil partners are treated exactly the same as widowers; for GMP, they are treated less favourably. Justice requires that there should he equal treatment of civil partners. The additional cost of doing so is too small to lead us to reject that conclusion. I beg to move.

Lord Higgins

The noble Lord, Lord Goodhart, raised several points, which overall I would rather take up on clause stand part, so I relate my remarks specifically to points he made about the amendment itself.

The crucial thing to be said right away is that the paragraph that I quoted earlier relates to the enormous powers that the Secretary of State is able to take—in the sense that he may amend in whatever way he "considers appropriate". None the less, that power relates to civil partnerships alone. It does not go beyond that, which would go beyond the scope of the Bill.

The existing system for occupational pension schemes has worked well. Trustees have had discretion, and a very large number of cases have extended benefits to various groups—in particular, the right of a member to appoint a particular beneficiary or dependant, and so on. That works reasonably well. However, I do not know whether I am at all enthusiastic about extending the provision in a way that restricts the ability of the trustees to operate, taking into account the overall financial situation of the scheme and a number of other implications as far as that aspect of it is concerned. They have considerable powers already so I would. on balance, be in favour of maintaining a discretion. However, I would rather deal with the matter in a broader context when we come to clause stand part.

6.15 p.m.

Lord Alli

I do not have any major experience of pensions, although earlier in my career I published Pensions magazine, which is the industry journal. One thing I did learn was that they are incredibly complicated and change periodically.

This is an area of real importance to many lesbian and gay couples across the country. I have often said in debates in Committee that I warmly welcome the Bill and congratulate the Government on introducing their proposals—and, in fact, all Members of the Committee for dealing with the Bill as they have. However, this is the one area on which I disagree with the Government's approach and agree with the comments of the noble Lord, Lord Goodhart, and the points made by the noble Lord, Lord Lester of Herne Hill, in the various correspondence that I have seen between the Minister and the noble Lord.

The Bill as it stands would allow pension rights for civil partners to accrue only from the date when the Bill is enacted, which is likely to be late 2005. That does not cause a problem for young lesbians and gay men; it is with older couples that the problems begin to occur. I know that my noble friend the Minister is by far and away a greater expert in this area than I am and will tell me the technical reasons why she believes such reforms are not possible.

This is not a technical issue, however. I have heard from the Dispatch Box time and time again, and from an array of Ministers, that the purpose of the Bill is to remedy a mischief. The mischief that it is here to remedy is that same-sex couples cannot register their partnerships. Once that has been done, the read-across would be the same as for marriage. However one dresses it up, that in effect is what was said.

This is the one area where it is not happening. We have remedied the mischief but we have been caught up in a technical argument about a retrospective application of the rules. All I seek, in principle, is for what has been established everywhere else in the Bill to he carried through. The mischief has been remedied; therefore let the rules apply as they would to a married couple.

I also accept the comments of the noble Lord, Lord Goodhart. Clearly, there is some disparity between women and men and, if we have to compromise, taking the later date would be acceptable. What I do not understand is why the date when the Bill is passed becomes the date of the backdating and not the dates applicable to others.

I know that there is an issue of cost. I have seen the headline figures of £300 million and have stepped back and thought, "That is a lot of money". However, when one unpacks that and sees that not everyone will retire on the day on which the Bill is enacted and that not all the people we are talking about will enter into civil partnerships, that becomes less of a problem. I have received some actuarial advice on this matter—and I do not like straying into the world of actuaries, believe you me—and the estimates that I have received put the additional cost at somewhere between £6 million and £15 million a year.

I do not want to get into an argument about cost because I do not think cost is at the heart of the matter. The heart of the matter is the principle established in the Bill versus a technical argument. I know that the Minister has some sympathy with my argument, but it is the conflict of the two arguments that we have to resolve; the technical point over the principle. In my view, the matter is mainly about fairness. Lesbian and gay couples have made the same contributions and deserve the same pensions in return. It is not about special treatment; it is about equality. I hope that the Minister will be able to explain to me why the two principles are clashing and why the Government have chosen the latter rather than the former.

Baroness Hollis of Heigham

I recognise that this is probably the substantive issue that divides the Committee. It concerns being opposed to any kind of state recognition of any relationship other than marriage at any point—unless, of course, you happen to be living in sin but none the less covered by social security, in which case we are perfectly happy to catch you on the way down but not on the way up.

Leaving that aside, I recognise that there is a real division of views. I shall set out the two general points—I shall not base them on costs—before I go into detail about the amendment. The first point concerns the issue of retrospection; and the second concerns the issue of dependent status and hardship.

As to the issue of parity, if you like, both the noble Lord, Lord Goodhart, and my noble friend Lord Alli argued that all they are seeking to achieve is parity with widowers; not with widows. The noble Lord, Lord Goodhart, seems to think that their rights go back somewhat further but they do not; they go back to 1978 and widowers' to 1988. However, there was consensus that they should go back to 1988 for equal treatment with widowers.

In the Bill we are seeking to treat civil partners in exactly the same way as we treated widowers in 1988. We are not backdating to the time when widows received their rights. We are saying that all pension rights for widowers are prospective and they cannot buy extra years. So the argument at the core of the position of both noble Lords—which is that they want parity and fairness of treatment with widowers; ideally with widows but, if not, with widowers—is not well founded in my view.

Lord Alli

In fairness, my argument is not about parity but about remedying the mischief. The principle of the Bill has been that once you have remedied the mischief the rules applying to heterosexual couples who are married then come into force. This is the only part of the Bill where that does not apply. With respect, that argument is not the same as the argument of the noble Lord, Lord Goodhart. He is arguing a principled position, which I support; my argument is that we are diverting from a principle, stated at the Dispatch Box, which every Minister has hitherto applied to every other section.

Baroness Hollis of Heigham

No. I am not aware of any situation in the broad field of pensions in which legislation has ever been retrospective. Funded or unfunded rights which come back through a private pension are accrued over time.

Lord Alli

From my limited research, in 1994 there was a court ruling that allowed female part-time workers who had been excluded from occupational pension schemes to backdate their contributions to 1976. The contributions would also have to be matched by their employers—I accept that—but there is an example of retrospection.

Baroness Hollis of Heigham

No, it was not. The ECJ ruled that part-timers should have been eligible to join the scheme since 1976 and that they had been unfairly denied their rights in the intervening period. This is the Preston case. As a result, their rights were retrospectively backdated to the point at which the clock should have started ticking. That is not the situation here.

These are not rights that have been illegally denied to people; these are rights that will be carried from the point when the Bill is enacted. There is therefore no read across to the Preston case, nor, I suggest, to the Barber case. I am happy to reply more extensively in writing to my noble friend. However, I have looked into the matter and it is very clear that the Preston case rectified the fact that the part-timers had been illegally denied rights that they should have enjoyed for the previous period. That is not the case here. Preston was not retrospective but my noble friend's stance would make the pension retrospective.

Lord Alli

I think that I have a legitimate argument, although the noble Baroness, Lady Hollis, disagrees with it. Retrospectivity existed in the case that I mentioned. The Minister has not answered my point that in every other section of the Bill—not this section, I accept—the principle has been established in this way. I merely seek the reason for its not being applied here. If the reason is not cost, I would like to get to the heart of the argument.

Baroness Hollis of Heigham

I reassert that I do not recognise my noble friend's argument that the part-timer's case is an example of retrospectivity to which we can read across. It is asserted, not that the rights have been retrospectively backdated, but that, since that period, you have acted illegally and the position is being corrected. There is a major difference between the two. What would have been retrospective was, for example, if widowers in 1988, when they acquired their rights to draw down from a survivor's pension, had those rights backdated to before the Bill—that is to say, to the point at which widows drew them, in 1978. That might have generated cost issues and would have served my noble friend's purpose. But, of course, it did not; it was not; and it was not made so. That is why, in all fairness, one would find it difficult to find a case of retrospection in the pension field or in social security more generally—except when rectifying where you have acted illegally or where there is a case coming through whose judgment is, say, two years down the line and you put into suspense accounts all lookalike cases and return to deal with them once the leading case has been dealt with, as happens in some aspects of social security law.

My noble friend may not welcome my second argument, which refers to the previous discussion about dependency pensions. We are dealing with people who will mostly have had access to the labour market and have incurred pensions in their own right. If, as a result of certain circumstances, such as having children or disability, they are unable to retire on their own pension—as will be the case, unlike 88 per cent of married women—they will have access to their own pension over and beyond any rights to a survivor's pension. That is not the case with existing widows, which is why the survivor's pension was originally invented. Where that is not the case, people in a civil partnership will have access to pension credit.

I rest my case, although I will deal with the amendments as this is a major debate and it was dealt with at great length by the noble Lord. He is entitled to a full reply as best as I can give it. The core of my case is not cost, although it is a serious consideration. The cost that we have been given is some £300 million. The core is that pension legislation is about the building up of accrued rights. This Bill is not about retrospection, as the noble Lord argues; it is about the future rights that people may enjoy. Where you are dealing with income-related social security benefits, such as housing benefit or tax credits, you take a snapshot. You ask whether the couple is same-sex, opposite sex and living together as a household. Those benefits click in from the moment you take that snapshot. Pensions, as with mortgages and the like, involve benefits for which both entry and exit strategies are required, because rights are accrued over time. You must therefore decide when you start clocking those up. That is why they are not similar to other sorts of benefits. Because of that aspect of occupational pensions, you need to start clocking up rights when the Bill comes into effect—that may be in a year's time. In that way we ensure equal treatment with all other extensions of pension provision that, as far as I am aware, we have seen in the past. We will treat civil partners in exactly the same way as we treated widowers in 1988. No more and no less. To do otherwise would be to say to civil partners, "We will treat you more generously than we treated widowers at that time". I am not sure that that argument would necessarily commend itself to people.

Lord Alli

This is my last intervention. What my noble friend says does not take the point. What I am seeking is that they be treated in the same way as heterosexuals are treated now, not as they were treated either in 1988 or 1979. What concerns me is how they are treated now. Legislation and public opinion has changed over the intervening period. The point here is that we may find ourselves putting in place a prejudice in legislation.

6.30 p.m.

Baroness Hollis of Heigham

I simply disagree because these are accrued rights. At a certain point you enter the accrual of rights and build them up, and at a certain point you draw them down either as a pension or as a survivor's pension. That is why there is no direct read-across to the position of heterosexuals. Let us take, for example, a cohabiting couple. One of the partners may well not be able to draw down the pension of their partner because the law does not permit it.

I repeat that this is not about unfairness in any form. Pensions must be built up as a body of accrued rights over time to which someone is entitled as of right because they will have made contributions in that status. That was true for widows from 1978 and for widowers from 1988; it will be true for civil partners when this Bill becomes law.

I realise that my noble friend does not share that view, but all I can say in response is that I think there is a genuine difference of philosophy here. I believe that pension rights are accrued rights which kick in at an agreed point in time. They are not backdated to when a partnership began, or to any other event. They accrue from the point that this Bill, with parliamentary support, becomes law. That is the difference between us.

Arguments can be made on the grounds of cost or financial hardship, but I do not base my argument on those; rather it is about the nature of retrospectivity. When considering the broader issues of pensions—I certainly do not accept either the Preston or the Barber cases as precedents—then we must consider issues of retrospectivity and accrued rights and whether you can acquire rights that you did not have at the time the clock started to tick. I would find it difficult to go down that road.

If noble Lords wish, I can go over each of the amendments in turn. However, again to make the case, I remind the Committee that when the requirement to provide limited price indexation on pensions rights was introduced in 1977, it was not made retrospective. It applied only to rights accrued on pensionable service after the date of introduction. I suspect that I could produce a list as long as my arm of changes made to pensions legislation—mostly to people's benefit, but sometimes to their detriment—which are not retrospective. They apply to the future rights that accrue. On that basis, I hope that the noble Lord, Lord Goodhart, will withdraw his amendment.

As I have said, I could go into much greater detail, but this is a philosophical point. I do not make my case primarily on the grounds of cost, although I am satisfied that the cost of £300 million is robust. I do not even argue the case on the grounds of need, although the widow's pension originally arose out of financial hardship and need, which is less likely to be relevant here. Rather, I make my argument on the grounds of fairness; that is, in all fairness, every change in accrued rights has been prospective and not retrospective. I have to say that I have not heard any arguments today which persuade me that the Government should take a different position.

Lord Goodhart

Before I make my final remarks, would the noble Baroness answer what was perhaps the most important question I put to her: do the Government intend to require pension schemes that provide benefits as of right for widows and widowers to extend them on the lines of the Barber principle to civil partnerships on, let us say, a non-retrospective basis?

Baroness Hollis of Heigham

What we are saying is that the part of the pension covered by contracting-out rights is covered by this Bill. The reference scheme test will apply so that civil partners will be entitled to the same benefits as those enjoyed by spouses. A surviving civil partner will have the same benefits as a widow or widower would have, which is the 50 per cent survivor's pension based on the 40-eightieths accrual rate of the pension.

Secondly, not in this Bill but as a result of the sexual discrimination regulations of December 2003, where trustees offer a level of benefit superior to that of the reference scheme test—most private sector schemes do so—such as a 60-sixtieth accrual rather 40-eightieths, and where that is offered to spouses, it must also be offered to civil partners, and where it is offered to unmarried opposite-sex partners, it must be offered to same-sex partners.

In this Bill, the reference scheme test that provides a floor of benefits at least as good as what is provided by the state second pension is covered. Spouses and similar partners will be treated equally. If trustees offer no more than that, they do not have to do any more, but if they offer benefits above that—as most of them do within that headspace—they will come under the framework of the European regulations. What they do for spouses they must do for civil partners, and what they do for unmarried opposite-sex couples they must do for unmarried same-sex couples. If regulations from the DTI are needed to make that clear, we shall bring those forward.

Lord Goodhart

I am grateful to the noble Baroness. I shall need to look at that provision quite carefully to see whether it is adequate. However, I would like to see some commitment or recognition of that on the face of the Bill. I may table an amendment different from the one we are considering today on the issue.

On the main subject we have discussed, although I think the noble Baroness said that I introduced it at great length—

Baroness Hollis of Heigham

I wanted to apologise for speaking at length myself.

Lord Goodhart

I shall speak briefly on this occasion. The question of retrospectivity is the main issue between us. We do not regard two wrongs as making a right. We believe that gay and lesbian workers have subsidised the pensions of heterosexuals, in particular married heterosexuals, and in that respect there is a difference from 1988, because it could not be said that before that year, women's contributions subsidised men's pensions. Women have a longer life expectancy and so benefit by paying the same contributions for what is likely to be a longer pension payment. Therefore providing for widowers was not righting a wrong comparable with our proposals for retrospectivity here, although in terms of giving a bonus, it is understandable that retrospectivity might not be appropriate.

Be that as it may, clearly this is an important issue. It is one, although almost certainly not the only one, that we will seek to raise again on Report. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hollis of Heigham moved Amendments Nos. 85B and 85C: Page 92, line 3. after "exercisable" insert— (a) Page 92, line 5, at end insert— (b) by a Northern Ireland department, if the provision making the amendment, repeal or revocation deals with a transferred matter."

On Question, amendments agreed to.

Lord Higgins moved Amendment No. 86: Page 92, line 11, leave out subsection (4).

The noble Lord said: This is a minor amendment compared with the issues we have just been discussing. There appears to be inconsistency in this subsection. The overall thrust of the Bill has been to state that same-sex partnerships should be treated in the same way as opposite-sex partnerships or marriages. Subsection (4) says: The provision which may be made by virtue of subsection (1) may be the same as, or different to. the provision made with respect to widows, widowers or the dependants of persons who are not civil partners".

I am not clear what the purpose of the expression "or different to" is, unless it is to cover the point that the noble Baroness has been making in the debate that we have just had. Perhaps she could explain. I beg to move.

Baroness Hollis of Heigham

The noble Lord was right in his hints on this. We are dealing with different retirement ages and therefore with a different read-across between husbands and wives and civil partners. That is the reason for the phraseology; he is exactly right. I am happy to go beyond that if he would like.

Lord Higgins

In which case, I assume that it is necessary. but it does not seem to be. None the less, I beg leave to withdraw the amendment.

Amendment. by leave, withdrawn.

[Amendment No. 87 not moved.]

Baroness Hollis of Heigham moved Amendments Nos. 87A to 87D: Page 92, line 23, at beginning insert "Subject to subsection (8A), Page 92, line 24, at end insert (8A) Any power of a Northern Ireland department to make an order under this section is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)). Page 92, line 26, after "enactment" insert ", Northern Ireland legislation Page 92, line 27, after "enactment insert "or Northern Ireland legislation

On Question, amendments agreed to.

[Amendment No. 88 not moved.]

Baroness Hollis of Heigham moved Amendment No. 88A: Page 92, line 34, at end insert— (c) by a Northern Ireland department, unless a draft of the statutory rule containing the order has been laid before, and approved by, a resolution of the Northern Ireland Assembly.

On Question, amendment agreed to.

[Amendment No. 89 not moved.]

Baroness Hollis of Heigham moved Amendment No. 89A: Page 92, line 40, at end insert (10A) A statutory rule made by a Northern Ireland department and containing an order to which subsection (9) does not apply is subject to negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.))).

On Question, amendment agreed to.

Lord Higgins had given notice of his intention to move Amendment No. 90: Page 92, line 40, at end insert— ( ) No order made under this section may compel any public sector pension scheme to offer survivor pensions benefits to same sex couples who are not civil partners without the consent of a majority of scheme members.

The noble Lord said: It may be more convenient to pick up this point as part of a general debate on the Question whether the clause shall stand part.

[Amendment No. 90 not moved.]

[Amendment No. 91 not moved.]

Baroness Hollis of Heigham moved Amendment No. 91ZA: Page 93, line 12, at end insert "and any instrument within the meaning of section 1(c) of the Interpretation Act (Northern Ireland) 1954 (1954 c. 33 (N.I.)); transferred matter" has the meaning given by section 4(1) of the Northern Ireland Act 1998 (c. 47) and "deals with" in relation to a transferred matter is to be construed in accordance with section 98(2) and (3) of the 1998 Act.

On Question, amendment agreed to.

On Question, Whether Clause 187 shall stand part of the Bill?

Lord Higgins

A number of points here are worth pursuing. Some were raised during our earlier debate on the amendments tabled by the noble Lord, Lord Goodhart. We need to put the issue in perspective. As I pointed out earlier, it is important to bear in mind that in Clause 187 the discretion given to the Minister in making subordinate legislation is extremely wide, in as much that it covers Church legislation, gratuities, pensions allowances and so on. It is also wide in the sense that it refers to whatever he considers is appropriate in the context of pensions and so on related to civil partners. He has considerable discretion in that respect, but the clause is none the less restricted, if I understand it correctly, to the question of making these provisions with regard to civil partners. This may be relevant in particular to occupational schemes generally and more specifically to public service pensions, which are referred to later in the Bill.

One must put this in the context of the serious impact that the Government's policy has had on occupational pensions, in particular the way in which successive measures—starting with the £5 billion being removed by the Chancellor on so on—have led to an absolutely catastrophic decline.

Baroness Hollis of Heigham

The noble Lord does not believe what he is talking about.

6.45 p.m.

Lord Higgins

I certainly believe that the appalling decline in final salary schemes and the shift towards defined contribution schemes, together with, as the noble Baroness constantly points out—and I agree with her—a substantial reduction in the size of the employer's contribution in many cases where the transfer has taken place, is a very sad situation.

I feel very strongly that the remaining final salary schemes are likely to be seriously affected by the Pensions Bill and the additional costs which will he incurred in protecting the position of pensioners. This is also an area where, perhaps sadly, we may find that trustees of final salary schemes decide that that is another reason why they should switch to a defined contribution scheme.

It is important that the discretion that trustees have hitherto had in these matters should be retained. As has been pointed out, many occupational pension schemes and their trustees have been more advanced than the Government or state schemes—I am glad to see that the noble Baroness agrees with me—in extending benefits to partners and co-habiting couples, and even to those an individual may specify to be the recipient of a survivor's pension. They have been very progressive and it is reasonable to suppose that they will continue to be so in this case. In circumstances where this is not so, there is a danger that they will switch to defined contribution schemes.

We have to look very carefully at the situation. We have already gone, at considerable length, into the question of retrospection. Like the noble Baroness, I have been trying to think of an example where there has been retrospection. In one sense, the Bill that gave pensions to people left out of the Beveridge scheme when we legislated in 1970 would be something of that kind where, albeit very belatedly, they got pensions to which they had not contributed. But it is certainly difficult to find any precedent, as the noble Baroness pointed out.

Like the noble Lord, Lord Alli, I do not think the issue of cost is necessarily important here. My Treasury halo shudders slightly at that point. There is an important point of principle but the retrospective argument is difficult to accept for the reasons given by the noble Baroness.

Another point worth raising in this clause stand part debate is the position of public service pensions. Unlike the private sector—where, as I say, trustees have been rather progressive—the public service schemes, which are usually governed by regulations made by the appropriate Secretary of State, have tended to be rather unforthcoming in that kind of situation. The positions of the Civil Service scheme and—if one dare say it in the context of the present industrial dispute—the scheme of what I used to call firemen but who are now firefighters are not as favourable as they might be. One can go right across the board so far as the NHS and so on are concerned. Again, they do not provide for pensions to be paid to someone who is not a legally married spouse, although many private schemes do. The NHS is lagging behind the private sector schemes. The police pension scheme does not provide for same-sex couples and other designated beneficiaries. Perhaps the Minister will tell us whether it will under the Bill.

To the extent that charity begins at home, it is important that we look at those individual schemes. Dare one mention that the situation with regard to parliamentary salaries has been somewhat eased? However, in the later clauses and particularly the schedules to which I have referred, we find the most extraordinary degree of specific provision when, at the same time, this clause gives so much discretion to the Minister. If I understand matters correctly, we propose to legislate for a potential same-sex partner of a Prime Minister's widow or Speaker's widow. That seems an unnecessary degree of detail if no more.

I express a personal view here; Members of the Committee know that the Opposition are on a free vote. Overall, my feeling is that it would be unfortunate if private schemes were forced to act in the way described. Their discretion so far has been better than that in the public service, and in many other ways. We shall return to the clause on Report, and no doubt take up the points on retrospection dealt with by the noble Lord, Lord Goodhart, in his amendments.

Lord Goodhart

The noble Lord has taken up points that I have pretty much covered on my amendments. I obviously do not agree with a good deal of what he said, but I do not propose to say anything further in this debate.

Baroness Hollis of Heigham

The noble Lord, Lord Higgins, basically made three points. I conceded one, which was about the state of Clause 187 and the breadth of its powers. We picked that up in an earlier discussion. Given that the Delegated Powers Committee has expressed concern about the regulations, we need to come back to that; it is common ground.

The noble Lord agreed with my understanding of pension policy, law and arrangements in the past and the fact that they have not been retrospective. He has much greater experience of that than me. He is absolutely right on the substance of his points, which were on the discrepancy between the treatment of private sector and public sector schemes. The only public service scheme that can pay benefits to cohabiting partners, if one pays contributions, is the Civil Service scheme. All the other public sector schemes do not even—that is not meant to sound as though there is a pecking order; rather there is development over time—have arrangements for cohabiting opposite-sex couples, let alone putting their feet in the water of this issue of same-sex partners.

At least 20 per cent to 25 per cent of private sector schemes—a substantial number—already have arrangements for cohabiting opposite-sex couples, and 8 per cent have a named dependant, who can be a same-sex partner. The numbers are still fairly small but the noble Lord was right to say that the private sector has shown itself more imaginative and more inclusive—and, apparently, more responsive to the nature of its labour force and staff—than has the public sector.

Should Parliament approve this Bill, all public schemes that produce benefits for spouses will have to produce benefits for civil partners. Unless they have benefits for co-habiting opposite-sex couples, there is no such obligation on them to extend that to cohabiting same-sex couples. That may be another battle to fight on another day for both heterosexual and same-sex couples alike.

The measure will have implications for the public sector because some of the schemes are quite expensive—the police schemes, local authority schemes and so on. In the context of our argument about retrospectivity, the costs that will fall, rightly, on public service schemes to extend equity between civil partners and married couples will be mitigated by the fact that accrued rights will be built up over time.

I do not know whether the noble Lord would like me to pick up on any further point. He is right to identify the clause as carrying the major charge for the Government's attempts to ensure equity of treatment between spouses and civil partners in occupational pensions. I hope that is what we shall achieve.

Lord Higgins

I believe that it is generally agreed that we shall need to return to these issues on Report, particularly in relation to occupational pension schemes and the question of whether those already in schemes are likely to find their benefits reduced or contributions increased as a result of the changes that the Government appear to envisage the Secretary of State will impose. I myself would prefer the change to be discretionary. The other issue is that so many final salary schemes are not only in a hazardous situation but also in deficit. To that extent, this change will result in an increase in the deficit in existing schemes.

Baroness Hollis of Heigham

The noble Lord, wearing his Treasury hat, none the less recognised earlier on that the costs were not substantial.

Lord Higgins

The Treasury has never been worried about whether the costs were substantial—it would be a serious error to suppose that that was so. There are varying degrees of substantiality—or, as Lady Docker once said, "We are fed up with being poor or varying degrees of poor". That is basically the attitude that the Treasury takes, in my experience.

There are important issues here, particularly given the perilous situation of many final salary schemes. We shall have to consider carefully the points that the Minister made about public service schemes, which, as she rightly points out, have not been doing well in comparison with private schemes. That is yet another reason for considering whether discretion should be taken into account for those private schemes, particularly given the financial situation of many of them.

Clause 187, as amended, agreed to.

Clause 188 agreed to.

Schedule 18 [Amendment of certain enactments relating to pensions]:

Lord Higgins had given notice of his intention to move Amendment No. 91A: Page 225, line 5, leave out paragraph 1.

The noble Lord said: The amendments in this group are essentially related to the specific provisions to which I referred in the clause stand part debate. The schedule deals with the Fire Services Act 1947 and the House of Commons Members' Fund Act 1948. I did not mention the Theatres Trust Act 1976. Again, we shall have to consider the detail but I have already covered the points.

[Amendment No. 91A not moved.]

[Amendments Nos. 91B to 91D not moved.]

7 p.m.

[Amendment No. 91E not moved.]

Schedule 18 agreed to.

Schedule 19 [Detained persons]:

Baroness Crawley moved Amendment No. 91F: Page 226, line 9, at end insert— 6A In section 24 (application of Act to cases of insanity). in paragraph (a), for "wife or husband" substitute "wife, husband or civil partner".

The noble Baroness said: The amendments to Schedule 19 in this group fall into the same category as those provisions already in Schedule 19—that is to say, they make amendments to Armed Forces legislation that refers to spouses or surviving spouses. All the amendments are designed to ensure that civil partners have the same legal rights as spouses, and surviving civil partners have the same legal rights as surviving spouses.

The first amendment concerns Section 24 of the Regimental Debts Act 1893, which provides for the distribution of the property of a serviceman who is found to be insane. It would ensure that civil partners are given the same rights as spouses.

The second amendment in this group is to Section 8 of the War Pensions (Administrative Provisions) Act 1919, which provides a right of appeal against the rejection of a claim for a pension by, among others, the widow or motherless child of a serviceman. As well as inserting a reference to a surviving civil partner, the amendment also replaces "motherless child" with "orphan".

The third amendment is to Section 7(2) of the War Pensions Act 1920, which provides for the payment to a person's wife, children or dependants of a war pension forfeited by reason of the person's imprisonment. The amendment inserts a reference to civil partners.

The fourth amendment concerns Section 2(2) of the Admiralty Pensions Act 1921, which similarly provides for the payment to a person's wife, children or dependants of an admiralty pension forfeited by reason of the person's imprisonment. Again, the amendment inserts a reference to civil partners.

The next amendment amends Section 2(2)(c) or the Polish Resettlement Act 1947, which includes among the persons entitled to claim benefits under the Act the spouses or former spouses of certain former members of the Polish forces and of certain other Poles permitted to enter or remain in the UK because of the Second World War. The amendment ensures that civil partners and spouses, and former civil partners and former spouses, are treated alike and that the formation of a civil partnership by a former spouse or former civil partner has the same effect as remarriage.

Section 1 of the Naval Forces (Enforcement of Maintenance Liabilities) Act 1947, which allows deductions to be made from the pay of a naval officer, seaman or marine for the maintenance of his wife or former wife or his wife's child, is amended to insert references to civil partners and former civil partners.

Amendments to the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957 will ensure that each Act applies equally in relation to the maintenance by a member of the forces of his or her civil partner or former civil partner, or his or her civil partner's child. I beg to move.

On Question, amendment agreed to.

Baroness Crawley moved Amendment No. 91G: Page 226, line 23, leave out from "Tribunals)," to end of line 24 and insert "in subsection (1), for "the motherless child or" substitute "surviving civil partner or the orphan,".

On Question, amendment agreed to.

Baroness Crawley moved Amendments Nos. 91H to 91L: Page 226, line 25, at end insert— 9A In section 7 (restoration of forfeited pensions), in subsection (2), after "wife," insert "civil partner,". Page 226, line 27, at end insert—

"Admiralty Pensions Act 1921 (c. 39)

10A In section 2 (restoration of forfeited pension), in subsection (2), after "wife," insert "civil partner,"." Page 227, line 9, at end insert—

"14A In section 2 (allowances from the Assistance Board), in subsection (2)(c)—

  1. (a) for "of men" substitute "or civil partners of persons",
  2. (b) for "woman" substitute "person",
  3. (c) for "of a man" substitute "or civil partner of a person", and
  4. (d) for "re-married" substitute "subsequently married or formed a civil partnership".

Naval Forces (Enforcement of Maintenance Liabilities) Act 1947 (c. 24)

14B (1) Amend section 1 (deduction from pay in respect of liabilities for maintenance, etc) as follows.

(2) In subsection (1), in paragraphs (a), (aa) and (b) after "wife" insert "or civil partner".

(3) In subsection (2A), after paragraph (a) insert— (aa) if, in proceedings in connection with the dissolution or annulment of a civil partnership, an order has been made for the payment of any periodical or other sum in respect of the maintenance of the person who, if the civil partnership had subsisted, would have been the civil partner of any such person as is mentioned in subsection (1) above, references in this section to that person's civil partner include references to the person in whose favour the order was made; and".

Page 228, line 8, at end insert—

"Army Act 1955 ( 3 & 4 Eliz. 2 c. 18)

22A (1) Section 150 (enforcement of maintenance and affiliation orders by deduction from pay) is amended as follows.

(2) In subsection (1)(a) and (aa), after "wife" insert "or civil partner".

In subsection (5), after "marriage had subsisted;" insert— references to a civil partner include, in relation to an order made in proceedings in connection with the dissolution or annulment of a civil partnership, references to a person who would have been the civil partner of the defendant if the civil partnership had subsisted.".

22B In section 151 (deductions from pay for maintenance of wife or child), in subsection (1)—

  1. (a) after "wife" (in the first place) insert "or civil partner", and
  2. (b) for "wife" (in the second place) substitute "wife, civil partner".

Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) 22C (1) Section 150 (enforcement of maintenance and affiliation orders by deduction from pay) is amended as follows.

(2) In subsection (1)(a) and (aa), after "wife" insert "or civil partner".

(3) In subsection (5), after "marriage had subsisted;" insert— references to a civil partner include, in relation to an order made in proceedings in connection with the dissolution or annulment of a civil partnership, references to a person who would have been the civil partner of the defendant if the civil partnership had subsisted.".

22D In section 151 (deductions from pay for maintenance of wife or child), in subsection (1)—

  1. (a) after "wife" (in the first place) insert "or civil partner", and
  2. (b) for "wife" (in the second place) substitute "wife, civil partner".

Naval Discipline Act 1957 (c. 53)

22E (1) Section 101 (service of proceedings for maintenance etc.) is amended as follows.

(2) In subsection (5)(a) and (b), after "wife" insert "or civil partner".

(3) In subsection (5A), after paragraph (a) insert— (aa) references to the civil partner of a person include, in relation to an order made in proceedings in connection with the dissolution or annulment of a civil partnership, references to a person who would have been his civil partner if the civil partnership had subsisted; and".

On Question, amendments agreed to.

Schedule 19, as amended, agreed to.

Clause 190 agreed to.

Clause 191 [Power to make further provision in connection with civil partnership]:

The Deputy Chairman of Committees (Viscount Simon)

I advise your Lordships that if Amendment No. 92 is agreed to, I cannot call Amendment No. 92A, due to pre-emption.

Lord Higgins had given notice of his intention to move Amendment No. 92: Page 93, line 34, leave out subsection (2).

The noble Lord said: This is all about devolution. It is an attempt to have the last word on these matters, but I shall not move the amendment.

[Amendment No. 92 not moved.]

Baroness Crawley moved Amendment No. 92A: Page 93, line 35, at end insert— ( ) by a Northern Ireland department, in relation to a provision which deals with a transferred matter;

The noble Baroness said: These amendments confer on Northern Ireland departments the same power to make further provision in connection with civil partnership as Clause 191 confers on Ministers of the Crown and Scottish Ministers. The power of a Northern Ireland department is confined to making an order with respect to provisions that deal with transferred matters as understood in the Northern Ireland Act 1998. Any order made in a Northern Ireland department will be by statutory rule and subject to either affirmative or negative resolution of the Northern Ireland Assembly, in the same way as are orders made by Ministers of the Crown or Scottish Ministers. I beg to move.

On Question, amendment agreed to.

Baroness Crawley moved Amendments Nos. 92B to 92G: Page 94. line 5, at end insert— ( ) amend, repeal or (as the case may be) revoke any provision contained in Northern Ireland legislation passed or made on or before the last day of the Session in which this Act is passed, including a provision conferring power to make subordinate legislation where the power is limited by reference to persons who are or have been parties to a marriage; Page 94. line 15, at beginning insert "Subject to subsection (6A), Page 94. line 16, at end insert— (6A) Any power of a Northern Ireland department to make an order under this section is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I.12)). Page 94, line 24, at end insert— ( ) by a Northern Ireland department, unless a draft of the statutory rule containing the order has been laid before, and approved by a resolution of, the Northern Ireland Assembly. Page 94. line 30, at end insert— ( ) A statutory rule made by a Northern Ireland department and containing an order to which subsection (7) does not apply is subject to negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)). Page 94, line 41, at end insert "and any instrument (within the meaning of section 1(c) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (NI)); transferred matter" has the meaning given by section 4(1) of the Northern Ireland Act 1998 (c. 47) and "deals with" in relation to a transferred matter is to be construed in accordance with section 98(2) and (3) of the 1998 Act.

On Question, amendments agreed to.

Clauses 191, as amended, agreed to.

Clause 192 agreed to.

Clause 193 [Minor and consequential amendments and repeals]:

Baroness Crawley moved Amendment No. 92H: Page 95, line 28, at end insert "and revocations

The noble Baroness said: In moving Amendment No. 92H, I shall speak also to Amendments Nos. 102 to 104. Amendment No. 92H makes a technical change to Clause 193(1) by adding "revocations" after "repeals". This change is necessary as the new material added in relation to child support and social security arrangements for Northern Ireland amends Northern Ireland Orders in Council. In strict drafting terms the provisions of Orders in Council, as a species of subordinate legislation, are revoked and not repealed.

The other amendments to Schedule 22 are consequential to the inclusion in Schedule 17 of new material for the provision of social security and child support in Northern Ireland. Similar repeals are already contained in Schedule 22 which are consequential on the amendments to social security and child support legislation in Great Britain. I beg to move.

On Question, amendment agreed to.

Clause 193, as amended, agreed to.

Schedule 20 [Minor and consequential amendments: general]:

Baroness Crawley moved Amendment No. 92J: Page 234, line 11, at end insert—

"Interpretation Act 1978 (c. 30)

At the appropriate place in Schedule 1 (words and expressions defined) insert— "Civil partnership" means a civil partnership which exists under or by virtue of the Civil Partnership Act 2004 (and any reference to a civil partner is to be read accordingly).—

The noble Baroness said: This is a simple amendment which inserts a new entry into Schedule 1 to the Interpretation Act 1978 to define the terms "civil partnership" and "civil partner". Under Sections 5 and 23 of the Interpretation Act, if an expression listed in Schedule 1 is used in any Act or subordinate legislation, it is to be interpreted in accordance with that schedule unless the Act or subordinate legislation in question shows a contrary intention. The amendment means that references in other legislation to "civil partnership" or "civil partner" will be interpreted by reference to the Civil Partnership Bill. This will ensure that courts, tribunals and others who use and interpret the legislation are given a clear signpost to this Bill. It will also save those drafting legislation from any uncertainty about whether to include specific definitions. I beg to move.

Lord Higgins

Does the expression "civil partnership" appear anywhere else?

Baroness Crawley

It appears in all the Acts that we are amending. Rather, once amended, it will appear.

Lord Higgins

Once amended, the term will appear, but it does not appear at the moment.

Baroness Crawley

Once this Bill is on the statute book, the term will appear.

On Question, amendment agreed to.

Baroness Hollis of Heigham moved Amendment No. 92K: Page 242, line 8, at end insert

"Pension Schemes Act 1993 (c. 48)

In section 101E(1)(b) after "or widower" insert "or surviving civil partner".

"Pension Schemes (Northern Ireland) Act 1993 (c. 49)

In section 97E(1)(b) after "or widower" insert "or surviving civil partner"."

The noble Baroness said: In moving Amendment No. 92K, I shall speak also to Amendments Nos. 92L and 105. We are coming to the end of our list of amendments. These amendments will ensure that all the provisions of Part IV of the Welfare Reform and Pensions Act 1999 apply to civil partnerships.

Amendment No. 92K allows the trustees or managers of a pension scheme to discharge liability for pension credit benefit in respect of civil partners in the same way as they would for a married couple. In particular, this amendment means that where the consent of a widow or widower is required, the consent of a surviving civil partner will be required.

Amendment No. 92L extends the existing regulation-making power relating to the provision of information, the calculation and verification of benefits under a pension arrangement and the charging by pension arrangements so that they will apply where financial provision is made in connection with a dissolution, nullity or separation order made in relation to a civil partnership. Furthermore, the amendments ensure that the provisions relating to the activation of pension-sharing orders apply to civil partnerships and that references to matrimonial documents are amended to include documents relevant to where a civil partnership is dissolved or annulled. In other words, pension-sharing, which currently applies to the dissolution of a marriage and the review of matrimonial assets to divide them appropriately, would also now apply to the ending of a civil partnership.

Amendment No. 105 is required to delete words as a consequence of inserting the text of Amendment 92L in Schedule 20. Those words do not change how existing legislation on pension-sharing works; they merely extend its provisions from spouses to same-sex couples who have formed a civil partnership and now wish to end it. I beg to move.

On Question, amendment agreed to.

Baroness Hollis of Heigham moved Amendment No. 92L: Page 242, line 16, at end insert-

"Welfare Reform and Pensions Act 1999 (c. 30)

(1) Amend section 23 (supply of pension information in connection with divorce etc.) as follows.

(2) After subsection (1)(a)(i) insert— (ia) financial relief under Schedule 5 or 7 to the Civil Partnership Act 2004 (England and Wales powers in relation to domestic and overseas dissolution of civil partnerships etc.),".

(3) In subsection (1)(a )(ii)—

  1. (a) after "1984" insert "or Schedule 11 to the 2004 Act", and
  2. (b) at the end, omit "or".

(4) In subsection (1)(a)(iii) for "(corresponding Northern Ireland powers):" substitute "(Northern Ireland powers corresponding to those mentioned in sub-paragraph (i)), or (iv) financial relief under Schedule (Financial relief in the High Court or a county court etc.: Northern Ireland) or (Financial relief in Northern Ireland after overseas dissolution etc. of a civil partnership) to the 2004 Act (Northern Ireland powers corresponding to those mentioned in sub-paragraph (ia));".

(5) In subsection (1)(b), for "or (iii)" substitute "(ia), (iii) or (iv)".

(1) Amend section 24 (charges by pension arrangements in relation to earmarking orders) as follows.

(2) After paragraph (a) insert— (aa) an order under Part I of Schedule 5 to the Civil Partnership Act 2004 (financial provision orders in connection with dissolution of civil partnerships etc.) so far as it includes provision made by virtue of Part 6 of that Schedule (powers to include provision about pensions),".

(3) At the end of paragraph (b) omit "or" and after paragraph (3) (c) insert ", or (d) an order under Part 1 of Schedule (Financial relief in the High Court or a county court etc.: Northern Ireland) to the 2004 Act so far as it includes provision made by virtue of Part 5 of that Schedule (Northern Ireland powers corresponding to those mentioned in paragraph (aa)).

(1) Amend section 28 (activation of pension sharing) as follows.

(2) After subsection (1)(a) insert— (aa) a pension sharing order under Schedule 5 to the Civil Partnership Act 2004,".

(3) After subsection (1)(d) insert— (da) an order under Schedule 7 to the 2004 Act (financial relief in England and Wales after overseas dissolution etc. of a civil partnership) corresponding to such an order as is mentioned in paragraph (aa),".

(4) In subsection (1)(f)—

  1. (a) at the end of sub-paragraph (i) insert "or between persons who are civil partners of each other", and
  2. (b) at the end of sub-paragraph (iii) insert "or (as the case may be) on the grant, in relation to the civil partnership, of decree of dissolution or of declarator of nullity".

(5) In subsection (1)(g), after "divorce etc.)" insert "or under Schedule II to the 2004 Act (financial provision in Scotland after overseas proceedings)".

(6) In subsection (1)(h) for "Northern Ireland legislation, and" substitute "the Matrimonial Causes (Northern Ireland) Order 1978 (S.I. 1978/1045 (N.I. 15)),".

(7) After subsection (1)(i) insert—

  1. "(j) a pension sharing order under Schedule (Financial relief in the High Court or a county court etc.: Northern Ireland) to the 2004 Act, and
  2. (k) an order under Schedule (Financial relief in Northern Ireland after overseas dissolution etc. of a civil partnership) to the 2004 Act (financial relief in Northern Ireland after overseas dissolution etc. of a civil partnership) corresponding to such an order as is mentioned in paragraph (j)."

(8) In subsection (7)(a), omit "matrimonial".

(9) In subsection (8)—

  1. (a) in paragraph (a), after "divorce" insert ", dissolution", and
  2. (b) at the end of paragraph (b) insert "or, where the order is under Schedule 11 to the 2004 Act, the date of disposal of the application under paragraph 2 of that Schedule".

(10) In subsection (9)—

  1. (a) omit "matrimonial", and
  2. (b) in paragraphs (a) and (b)(i), after "divorce" insert dissolution".

(1) Amend section 34 ("implementation period") as follows.

(2) In subsection (1)(b)(i), omit "matrimonial".

(3) In subsection (2)—

  1. (a) omit "matrimonial", and
  2. (b) in paragraph (b), after "divorce" insert ", dissolution".

(1) Amend section 48 (activation of benefit sharing) as follows.

(2) After subsection (1)(a) insert— (aa) a pension sharing order under Schedule 5 to the Civil Partnership Act 2004,".

(3) After subsection (1)(d) insert— (da) an order under Schedule 7 to the 2004 Act (financial relief in England and Wales after overseas dissolution etc. of a civil partnership) corresponding to such an order as is mentioned in paragraph (aa),".

(4) In subsection (1)(f)—

  1. (a) at the end of sub-paragraph (i) insert "or between persons who are civil partners of each other", and
  2. (b) at the end of sub-paragraph (iii) insert "or (as the case may he) on the grant, in relation to the civil partnership, of decree of dissolution or of declarator of nullity".

(5) In subsection (1)(g), after "divorce etc.)" insert "or under Schedule 11 to the 2004 Act (financial provision in Scotland after overseas proceedings)".

(6) In subsection ( 1)(h) for "Northern Ireland legislation, and" substitute "the Matrimonial Causes (Northern Ireland) Order 1978 (S.I. 1978/1045 (N.I. 15)),".

(7) After subsection (1)(i) insert—

  1. "(j) a pension sharing order under Schedule (Financial relief the High Court or a county court etc. Northern Ireland) to the 2004 Act, and
  2. (k) an order under Schedule (Financial relief in Northern Ireland after overseas dissolution etc. of a civil partnership) to the 2004 Act (financial relief in Northern Ireland after overseas dissolution etc. of a civil partnership) corresponding to such an order as is mentioned in paragraph (j)."

(8) In subsection (6)(a), omit "matrimonial".

(9) In subsection (7)—

  1. (a) in paragraph (a), after "divorce" insert ", dissolution", and
  2. (b) at the end of paragraph (b) insert "or, where the order is under Schedule 11 to the 2004 Act, the date of disposal of the application under paragraph 2 of that Schedule".

(10) In subsection (8)—

  1. (a) omit "matrimonial", and
  2. (b) in paragraphs (a) and (b)(i), after "divorce" insert ", dissolution"."

On Question, amendment agreed to.

Schedule 20, as amended, agreed to.

Schedule 21 [Consequential amendments: Scotland]:

Lord Evans of Temple Guiting moved Amendment No. 93: Page 245, line 10, leave out "ailment" and insert "aliment

The noble Lord said: I am delighted to speak to the Government's amendments to Schedule 21, which deals with consequential amendments for Scotland. Part 3 of the Bill, providing for the formation of civil partnerships in Scotland, was approved by the Committee on 13 May. Although I very much welcome the Committee's swift consensus on those clauses, noble Lords' generosity denied me the opportunity to speak in support of Scotland's inclusion in the Bill—a very important matter. I hope that the Committee will allow me to say a few words now.

The Scottish clauses in the Civil Partnership Bill achieve the same policy purpose as Part 2 but have been drafted to reflect the special characteristic of Scots law. In earlier debate on the equivalent clauses for England and Wales, the Committee considered at some length the underlying principles of civil registration for same-sex couples as well as consideration of policy details. It was a good and thorough debate, and I was gratified that Members agreed that the Committee's time should not be spent revisiting those issues in respect of Scotland.

From the outset, the Scottish Executive has been clear that including Scottish provisions in the UK's Civil Partnership Bill was the most appropriate way of developing legislation in this complex area. The rights and responsibilities that flow from civil partnerships affect matters such as pensions, benefits and taxation, which are reserved to the Westminster Parliament, but also devolved policy areas such as family law—for example, what happens when one partner dies? It would be conceivable for the Scottish Parliament to legislate separately on the devolved areas. However, the intertwining of reserved and devolved policies would make the legislation complex, unwieldy and little understood by the people who will use and benefit from it. It would not be in the best interests of consistency and clarity to proceed with different legislation north and south of the Border.

Such an approach could also lead to problematic cross-Border issues; for example, any difference in the timing of the introduction of civil partnership legislation in Scotland as compared with the rest of the UK could give rise to undesirable anomalies. If, for example, there was a period in which a civil partnership could be registered only in England or Wales, a Scottish couple could still travel south and register their partnership, but what would that mean when they returned to Scotland? They would still have access to the relevant state benefits, taxation and other reserved rights, but not to any of the family law-related benefits, which are devolved. Should such a partnership break down, the couple could not have it dissolved in the Scottish courts.

Separate legislation could mean that there were differences in detail in the rights and responsibilities flowing from civil partnerships in Scotland and those in England and Wales. It would mean that if couples moved from one part of the UK to another, their rights and responsibilities could vary. That would riot help anyone.

The inclusion of Scottish provisions in the Bill engages the Sewel convention. The proposed use of a Sewel Motion was among the matters on which the Scottish Executive invited comment when they went out to consultation on civil partnerships last year. The results were very positive, with 86 per cent of respondents agreeing with a proposal to provide legal recognition to same-sex couples in Scotland, and 74 per cent agreeing with the proposed use of a Sewel Motion.

The Sewel Motion procedure allows this Parliament to legislate for Scotland on devolved areas. A Sewel Motion has been laid before the Scottish Parliament. That Parliament has already taken written evidence from a range of interested organisations and individuals. On 12 May, the Justice 1 Committee took oral evidence from the Law Society of Scotland, Professor Kenneth Norrie—a leading Scottish academic—and the deputy Minister for Justice.

The Sewel Motion will be voted on in due course and well within the prescribed timescale. It must be agreed by the Scottish Parliament before the last amending stage of this Bill in the Lords. I hope that the Committee agrees that the inclusion of Scottish provisions in the Bill is key to a clear, consistent approach to civil partnerships across the UK.

Amendments Nos. 93 to 101 amend Schedule 21. They are minor and consequential. Many of them simply correct spelling mistakes and make clauses consistent. I beg to move.

On Question, amendment agreed to.

Lord Evans of Temple Guiting moved Amendments Nos. 94 to 101: Page 249, line 34, leave out "ailment" and insert "aliment Page 249, line 37, at end insert— ( ) in paragraph (b), after "separation" insert "(whether of the parties to a marriage or the civil partners in a civil partnership)", Page 252, line 16, at end insert

"Marriage (Scotland) Act 1977 (c. 15) Amend section 3 (notice of intention to marry) as follows— (a) in subsection (1), after paragraph (a) insert— (aa) if he has previously been in civil partnership and the civil partnership has been dissolved, a copy of the decree of dissolution or annulment;", and. (b) in subsection (2), after "paragraph (a)" insert ", (aa)". In section 5(4)(b) (ground on which there is a legal impediment to a marriage). at the end insert "or in civil partnership". Page 252, line 18, leave out paragraph 36 and insert— (1) Amend section 1(3) (jurisdiction of Court of Session to entertain action of declarator) as follows. (2) In paragraph (b)(i). after "spouse" insert "or civil partner". (3) After paragraph (b) insert "; or (c) in a case where the pursuer in the action is the civil partner of the missing person, the following conditions are met—

  1. (i) the two people concerned registered as civil partners of each other in Scotland; and
  2. (ii) it appears to the court to be in the interests of justice to assume jurisdiction in the case.""
Page 253, line 33, at end insert

"Family Law Act 1986 (c. 55) In section 8 (jurisdiction of Scottish courts in independent proceedings), after "proceedings" insert "or civil partnership proceedings". In section 9 (habitual residence), after "proceedings" insert "or civil partnership proceedings". In section 10 (presence of child), after "proceedings" insert "or civil partnership proceedings". (1) Amend section 11 (provisions supplementary to sections 9 and 10) as follows. (2) In subsection (1)—

  1. (a) after "proceedings" insert "or civil partnership proceedings", and
  2. (b) at the end insert "or as the case may be in respect of the civil partnership which constitutes the family as a child of which he has been accepted".
(3) In subsection (2), after "proceedings" insert "or civil partnership proceedings". (1) Amend section 13 (ancillary jurisdiction) as follows. (2) In each of subsections (1) and (2), after "proceedings" insert "or civil partnership proceedings". (3) In subsection (3), after "concerned" insert ", or as the case may be for dissolution or declarator of nullity in respect of the civil partnership concerned,". (4) In subsection (4)—
  1. (a) after "proceedings" (in the first place) insert "or civil partnership proceedings", and
  2. (b) after "concerned" insert ", or as the case may be civil partnership proceedings in respect of the civil partnership concerned,".
 (5) In subsection (6), after "proceedings" insert "or civil partnership proceedings". (6) In the heading to section 13, at the end insert "or civil partnership proceedings". (1) Amend section 17 (orders for delivery of child) as follows. (2) In subsection (3), the existing words "by one party to a marriage for an order for the delivery of the child concerned from the other party where the child, although not a child of both parties to the marriage, is a child of the family of those parties" become paragraph (a) and after that paragraph insert— (b) by one civil partner in a civil partnership for an order for the delivery of the child concerned from the other civil partner where the child concerned was a child of the family constituted by the civil partnership.". (3) In subsection (4)—
  1. (a) after "parties" (in the first place) insert "to the marriage or as the case may be by both civil partners", and
  2. (b) after "parties" (in the second place) insert "or civil partners".
 In section 18(1) (interpretation), after the definition of "child" insert— civil partnership proceedings" means proceedings for dissolution or declarator of nullity of a civil partnership or separation of civil partners;". In section 42(3) (interpretation), after "proceedings" (in the first place) insert "or civil partnership proceedings ("civil partnership proceedings" having the same meaning as in Chapter 3)". Page 255, line 13, at end insert— In section 54(2) (reference to the Principal Reporter by court), after paragraph (a) insert— (aa) an action for dissolution or declarator of nullity of a civil partnership or separation of civil partners;". Page 255, line 13, at end insert—

"Sexual Offences (Amendment) Act 2000 (c. 44) In section 3(2)(c) (abuse of position of trust: defence), after "to" insert ", or in civil partnership with,". Page 255, line 36. at end insert—

"Criminal Justice (Scotland) Act 2003 (asp 7) (1) Amend section 14 (victim statements) as follows. (2) In subsection (I0)(a), at the end insert "or civil partner". (3) For subsection (11) substitute (11) In subsection ( I 0)(b), "cohabitee" means a person who has lived with the victim—

  1. (a) as if in a married relationship; or
  2. (b) in a relationship which had the characteristics of the relationship between civil partners, for at least six months and was so living immediately before the offence (or apparent offence) was perpetrated.""
Page 256, line 4, at end insert— In section 313(5)(a)(ii) (defence in respect of sexual offence), after "spouse" insert "or civil partner".

On Question, amendments agreed to.

Schedule 21, as amended, agreed to.

Schedule 22 [Repeals]:

Baroness Crawley moved Amendments Nos. 102 to 105: Page 257, line 17, at end insert—

"Social Security Contributions and Benefits (Northern Ireland) Act 1992 (c. 7) In section 37(4), "or" at the end of paragraph (a).
In section 38(3), "or" at the end of paragraph (b).
In section 39A(2) and (5), "or" at the end of paragraph (a).
In section 39B(5), "or" at the end of paragraph (a).
Section 85( 1). In section 133(1). the definitions of "married couple". and "unmarried couple"
Social Security Administration (Northern Ireland) Act 1992 (c.8) In section 72A(5), the definitions of "married couple.' 8) and "unmarried couple"."
Page 257, line 21. at end insert—
"Child Support (Northern Ireland) Order 1995 (S.I.1995/2702(N.I. 13)) In Article 4(7). the definitions of "married couple" and "unmarried couple".
Jobseekers (Northern Ireland ) Order 1995 (S.I.1995/2705 (N.I.15)) In Article 2(2), the definitions of "married couple" and "unmarried couple"."
Page 257, line 26, at end insert—
"State Pension Credit Act (Northern Ireland) 2002 (c. 14 (N.I. 15)) In section 17(1), the defifnitions of "married couple" and "unmarried couple"."
Page 257, line 33, at end insert—
"Welfare Reform and Pensions Act 1999 (c. 30) At the end of section 23(1)(a)(ii), "or"
At the end of section 24(b), "or".
In section 28(7)(a) and (9), 34(1)(b)(i) and (2) and 48(b)(a) and (8) "matrimonial"."

On Question, amendments agreed to.

Schedule 22, as amended, agreed to.

Remaining clauses agreed to.

Bill reported with amendments.

Committee adjourned at twenty-five minutes past seven o'clock.