- (a) all rights and benefits of any private pension scheme, or
- (b) all property rights, or
§ (2) In this section—
- (a) a "private pension scheme" means—
- (i) an occupational pension scheme,
- (ii) a personal pension scheme, or
- (iii) a stakeholder pension scheme,
- (b) "property rights" means the right in any property, whether real or personal, owned jointly by the parties.
- (c) "court" means the court hearing the petition for divorce.
§ (3) For the purposes of this Act, a couple "live together as partners" if subsection (4, or (5) applies.
§ (4) This subsection applies if—
- (a) none of the provisions of sections 1, 11 or 12(a) to 12(f) of the Matrimonial Causes Act 1973 apply;
- (b) the couple live together;
- (c) the couple retain their responsibilities in relation to any existing dependants; and
- (d) the couple maintain existing financial support for one another.
§ (5) This subsection app lies if the couple have—
- (a) registered as a civil partnership, or
- (b) given notice of a proposed civil partnership to a registration authority,
§ (6) Any order made by the court under subsection (1) shall be void if the circumstances set out in subsection (3) cease to apply.
§ (7) An appeal against any order made by the court under subsection (1) shall be heard by the court.
§ (8) An appeal under subsection (7) must show that the circumstances set out in subsection (3) cease to apply.1481
§ (9) Any person may show cause why an order made by the court under subsection (1) should not be made by reason of material facts not having been brought before the court; and in such a case the court may—
- (a) notwithstanding anything in subsections (6) or (7) above, make the order;
- (b) rescind the order;
- (c) require further inquiry; or
- (d) otherwise deal with the case as it thinks fit. —[Hugh Bayley.]
§ Brought up, and read the First time.
§ 3 pm
§ Mr. Deputy Speaker
With this it will be convenient to discuss amendment No. 2, in page 16, line 14, schedule 2, at end insert—
`"() An annulment or dissolution of marriage under section I2(g) shall be subject to the provisions of section [Application following issue of an interim gender recognition certificate] of the Gender Recognition Act 2004.".'.
§ Hugh Bayley
Hon. Members who attended Second Reading or served on the Standing Committee will know that I have been trying to protect the pension rights of transsexuals and of their wives and husbands.
When a married person is diagnosed with gender dysphoria and commences gender reassignment treatment, an enormous emotional strain is placed on the marriage, and in most cases the marriage comes to an end. In a few cases, however, the married couple wish to stay together. I have two constituents who are in that position. They have been married for many years and have grown-up children. The wife, as so many women did in the past, stayed at home to bring up the children and has no pension provision in her own right. In that sense, she is dependent on her husband, and will be so in retirement if she survives for longer than him.
In Committee, it was established that the decision by one partner in a marriage to live in the opposite gender, or the decision to go forward with gender reassignment treatment or to apply for an interim gender recognition certificate, would not affect in any way the state pension rights or the private pension entitlement of either party to the marriage. However, the situation changes when a married person applies for a full gender recognition certificate, because the Bill requires a married couple to divorce in order to get legal recognition in a new gender for a party to the marriage. Divorce law does not cope well with that, because it assumes that a couple who go to court seeking to divorce will separate. In all other circumstances, of course, divorce or the annulment of a marriage does lead to separation or follows separation, and the divorce court has the job of dividing and apportioning property and responsibilities between the two parties. In a case such as that of my constituents, where the couple are required to divorce so that one of them may obtain a full gender recognition certificate but they do not intend to separate, provision needs to be made for property, including pension rights, to be shared.
Amendment No. 2 would add a new provision to schedule 2 by amending the Matrimonial Causes Act 1973 to give the divorce court further powers to deal 1482 with the new reason for divorce that is introduced by the Bill—divorce on the grounds that a party to a marriage is applying for a full gender recognition certificate. New clause 2 sets out what those new powers would be: in short, that those seeking annulment or dissolution of a marriage under section 12(g) of the 1973 Act—
§ Mr. Hogg
I support the hon. Gentleman's argument, which has a great deal of force. Does he agree that trust law would assist him, in that where those who have been party to a marriage both contributed to the family assets, there will already be a resulting trust in favour of one or both parties? His amendment would give statutory expression to such trusts, and is to be supported on that basis alone.
§ Hugh Bayley
I am grateful to the right hon. and learned Gentleman. As I understand it, the property rights of the couple can be retained in such a way as to give them shared rights, although that rarely happens in a divorce. Because of that, it may not be necessary for me to press my amendment to a vote. I will be grateful if the right hon. and learned Gentleman wishes to intervene later in my speech if he feels that I have missed a point in the argument. In relation to property rights other than pensions, I understand that in the special and unusual circumstances that we are considering, a divorce court would be able to retain property—for instance, a shared family home—in joint names if the couple continued to live together in that home following the divorce.
The new clause would allow those seeking a divorce on the grounds that one of the couple was seeking a full gender recognition certificate to apply for the pension rights and the property rights in the marriage to continue after annulment or dissolution, provided that the couple continued to live together. The new clause gives two alternative definitions of living together: one where the couple do not establish a civil partnership; the other where they establish a civil partnership under the Civil Partnership Bill, which is before the House.
The new clause would also protect the right of both parties to the marriage and of others with an interest, such as a pension provider, to go to court at a later date to vary the terms of the settlement if the circumstances changed—for instance, if the couple ceased to live together.
I tabled my amendments as a safeguard to enable the House to debate the issue further on Report and to allow the Minister, if she is so minded, to make a statement about how the Government believe that private pension providers should act in circumstances such as those that I am describing.
§ Mr. Hogg
I have a great deal of sympathy with the hon. Gentleman's suggestion, and I think that he is right in principle, but I am troubled by one point. When the certificate of gender recognition has been granted and the party has married again, what is the position of the pension provider in relation to the second marriage partner?
§ Hugh Bayley
The right hon. and learned Gentleman makes an important point. In those circumstances, most pension providers would try to vary the terms of the 1483 divorce settlement and the continuance of the pension rights of the spouse from the first marriage, because they could not offer the same rights to two spouses. I have therefore drafted the new clause in a way that would allow an interested party such as a pension provider to go back to court if circumstances changed and one party or the other decided that they would no longer live with their former wife or husband but marry some other person. In those circumstances, insurance companies or pension providers could go to the courts and argue that they should be released from the obligation to the former spouse in order to fulfil their obligation to a new spouse. It would be open to the court to determine the appropriate action in those circumstances.
Earlier, I said that I tabled the amendments as a safeguard to allow further debate; I hope that it will not be necessary to press them to a vote. I should like to explain the reason for that. After the debates in Committee, I contacted the National Association of Pension Funds and the Association of British Insurers to seek their advice about practical ways in which to safeguard the pension rights of spouses of transsexuals in circumstances similar to those of my constituents. I asked my hon. Friend the Under-Secretary to hold a round-table conference at the Department to devise a way forward. She agreed and we held the meeting on 29 March.
At the meeting, we concluded that, in the context of state pension provision, the Bill would leave couples such as my constituents no worse off. Indeed, in some circumstances, they could be better off. We also concluded that it would not be necessary to amend the Bill in relation to private pension provision so long as we could be sure that providers would grant the same survivors' rights to unmarried dependants who lived with their former husband or wife as that person enjoyed when they were the husband or wife.
We agreed that the National Association of Pension Funds, the Association of British Insurers and the Department for Work and Pensions should draft a guidance note for the industry—pension providers—and for married transsexuals and their spouses to spell out what would be regarded as good practice in providing pension benefits to the former spouses of transsexuals who had obtained a full gender recognition certificate.
The guidance note has been through several iterations and I want to put on record my thanks to Robin Ellison of the National Association of Pension Funds, Nicholas Hillman from the Association of British Insurers, John Lawson from Standard Life and Simon Boniwell, the official at the Department for Work and Pensions, for their work in preparing the draft guidance note. I believe that the draft covers all the necessary issues, although the subject is complicated and the wording needs to be made clearer for a lay audience. I know that my hon. Friend the Under-Secretary agrees, and I believe that the conversion of a technical document into plain English is in hand.
I want to ask my hon. Friend the Under-Secretary two questions. First, I emphasise that she has been generous with her time in allowing me to work with her officials and those in the private sector to prepare the advice. However, other hon. Members have similar 1484 concerns and I hope that she will allow a working copy of the draft to be shown to any other Members who have a special interest so that they could comment on it.
Secondly, when do the Government intend to make the draft public? It would be helpful for that to happen as soon as possible so that married couples in the circumstances that we are considering can obtain advice about the best action for them to take to protect the security of both partners in old age.
I should also like briefly to put on record my thanks to Mark Buckley of PricewaterhouseCoopers, which is the adviser to my constituents' pension scheme. The scheme asked Mr. Buckley to respond on its behalf to several questions that I raised on behalf of my constituents. He confirmed that the scheme's trustees agreed that there was no objection to paying the spouse's pension to the scheme member's former wife following the couple's divorce provided that the former wife was financially dependent on her former husband at the time of her former husband's death and that her former husband had hot remarried. In other words, it was agreed that the divorce would make no difference to the entitlement of the transsexual's wife to a pension should she outlive her husband or former husband.
The scheme inserted the proviso that the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) mentioned a moment ago. If circumstances changed and the former husband remarried, the right to a survivor's pension for the former wife would not necessarily follow.
§ Mr. Mark Oaten (Winchester) (LD)
Will the hon. Gentleman clarify that his discussions with the pensions sector related not only to private pensions but to public sector schemes?
§ Hugh Bayley
Yes. I understand that the guidance would apply to public sector second pensions. The National Association of Pension Funds represents public sector pension providers such as local government pension schemes as well as private sector occupational pension schemes run by big companies.
The response of PricewaterhouseCoopers to the questions that I asked on behalf of my constituents is a model response for other pension providers. I have given a copy of the letter to the Department for Work and Pensions and asked the officials who are drafting the guidance note to ascertain whether they can replicate the language and the clarity of the statement that PricewaterhouseCoopers made about the pension rights of the wife.
§ Mr. Hogg
The hon. Gentleman has been generous in giving way. I am slightly troubled that we would vary deeds of trust and rely on voluntary practice. Would not it be better to have a statutory intervention so that the trustees knew their statutory duties? If we adopt the approach that the hon Gentleman explains, we rely on the good faith of the trustees and their willingness to act in accordance with the guidance.
§ Hugh Bayley
The right hon. and learned Gentleman makes an important point. I shared that view when I 1485 first considered the problem. Perhaps it is because of my short experience as a Minister in the Department for Work and Pensions—or Social Security, as it was then—that I realise that it is important to the public for pensions legislation to be as simple and unencumbered as possible.
The number of people likely to find themselves in similar circumstances to my constituents—a married couple who, when one of them seeks recognition in a new gender, wish to remain together and live together as though they were married in terms of financial dependency on each other—will be very small. There might perhaps be 30, 40 or 50 such people. I took the view that to add another block of legislation to what already stretches to hundreds of pages on pension provision in order to deal with such a rare occurrence would be unnecessary, provided that there was clear guidance to trustees as to what was expected of them in such circumstances.
In a sense, the question that I put to PricewaterhouseCoopers—or rather, to my constituents' scheme provider, which asked PricewaterhouseCoopers to respond—convinced me that the industry would respond appropriately and decently in such circumstances. That response came fairly quickly, given that the advisers had to consider a situation that they had not encountered before and to examine the legislation. I was impressed by how diligently they did so, and I therefore took the view that it would not be necessary to add yet another page to a complicated area of legislation. The right hon. and learned Gentleman makes a good point, but my judgment is that the House has a terrible tendency to over-legislate, and this is one occasion on which leaving the matter to the good sense and judgment of pension fund trustees would be a fair and reasonable thing to do.
§ Glenda Jackson
I would be grateful if my hon. Friend clarified something that I clearly have not understood, even though he is presenting his argument with great cogency. I understand that the wile of a divorced couple who had been financially dependent on her former husband at the time of his death would retain her pension rights. The issue has now been raised of a possible marriage, however. What would happen to the woman in those circumstances? Would she lose all her rights to a pension that would presumably have been funded, in the main, by her former husband?
§ Hugh Bayley
My hon. Friend raises an extremely important point. In such circumstances, the dependent partner in the marriage, who could, of course, be a woman or a man, would have the ability to go back to the divorce court to ask for the divorce settlement to be varied so that their property would no longer be shared—because they were no longer living together—and so that some alternative arrangement could be put in place. The most likely arrangement would be a division of the assets, which could well include pension splitting. Alternatively, it could result in what is known in the trade as offsetting, whereby the wife might get the family home, for example, and the husband—or former husband, in this case—might get the pension. The court would deal with their assets anew, recognising that their circumstances had changed and that the divorce had 1486 become a separation as well as a technical arrangement to allow one party to get the gender recognition certificate that they sought.
§ Glenda Jackson
I am grateful for that explanation, but would the court be bound to take into consideration the income of the new partner when dividing up the old partnership's assets?
§ Hugh Bayley
I am not a divorce specialist—still less a divorce lawyer—and I am afraid that I cannot answer my hon. Friend's question. My understanding, from a legislator's point of view, is that the court would be able to come to whatever decision it saw fit. One would imagine that a wife—if I can use the shorthand—who, having agreed to live together with her former husband in a dependent relationship, found that that was no longer possible, would make representations to the court, or ask her lawyer to do so, with a view to getting a half share of the financial assets of the marriage. I would expect the court to agree to that in most circumstances. There could be circumstances when such an arrangement might be varied because one partner or the other had responsibility for dependants, for example, but I imagine that the court would treat the rights of the wife in the same way as they would in any other divorce hearing, in otherwise similar circumstances.
§ Lynne Jones
In subsection (4)(d) of my hon. Friend's new clause, the criterion is that
"the couple maintain existing financial support for one another."As I read that, it would apply to either spouse, or former spouse. If each had their own pension and one died before the other, the surviving partner would be entitled to the appropriate share of the pension. I am a bit concerned, however, that my hon. Friend has been referring to "dependants", which might describe people who did not have a pension in their own right. Will he clarify that that is not what he means by "dependants"?
§ Hugh Bayley
Yes, I can give that clarification. The lack of clarity might have arisen because I have been talking about both the general situation for couples who divorce in order for one of the partners to get a full gender recognition certificate, as well as the individual circumstances of my constituents. The advice from PricewaterhouseCoopers related to my constituents' individual circumstances, but the draft guidance note that officials at the Department for Work and Pensions have produced—together with the National Association of Pension Funds and the Association of British Insurers—covers the general situation in a way that I hope my hon. Friend would approve of. I know that she has followed this area of public policy for much longer and much more closely than I have, so I hope that she will have the opportunity to look at the draft, and if she feels that it does not do what ought to be done in advising the Department and the industry, I am sure that she will give us her comments.
§ Hugh Bayley
I am trying to finish my speech, but I shall give way to the hon. Member for Portsmouth, South (Mr. Hancock).
§ Mr. Mike Hancock (Portsmouth, South) (LD)
Like the hon. Gentleman, I have constituents in the scenario 1487 that he first described, where one partner is solely dependent on the pension that has been accumulated by the other partner. Where both partners have pension rights solely to themselves, they stay together and one or other of them dies, and one of them has gone through the gender change and the certification process, does the guidance that the hon. Gentleman has worked through with the Minister's office state that those pension rights stay with that person when the partner dies, even though they have pension rights of their own?
§ Hugh Bayley
It is impossible to give individual advice to hon. Members in the Chamber; each pension scheme is different. In the case of the hon. Gentleman's constituents, one would have to establish whether the pension scheme provided a spouse's right to a pension following the scheme member's death, and one would then have to clarify with the pension provider whether it would continue the spouse's right following the dissolution of the marriage. That can be done only on a case-by-case, scheme-by-scheme basis.
The guidance note seeks to tell people such as the hon. Gentleman's constituents the issues on which they should seek clarification and how they should go about it. The guidance note also gives a strong steer to the industry that it should not use circumstances such as these as an excuse for denying people security in old age as a result of pension rights that they had established, simply and solely because the partner who was the source of that security in old age changes their gender or seeks legal recognition of a changed gender.
§ Hugh Bayley
I must make progress. I am sure that hon. Members who wish to intervene will be able to make their own speeches. I thank my hon. Friend the Minister for her helpful response to my proposal that a guidance note be prepared. I shall listen carefully to her statement about the role that that guidance note will play.
§ Mr. Frank Field (Birkenhead) (Lab)
My hon. Friend the Member for City of York (Hugh Bayley) has been so comprehensive and so excellent in his delivery that I can be mercifully brief.
On Second Reading, I intervened on the very point that we are discussing. Although the Bill seeks to meet an injustice that a number of our constituents feel, I was anxious that we should not create another injustice for another group of people in place of the original injustice. I spoke in theory; my hon. Friend spoke from practice. That shows the value of single-Member seats, where the buck stops with each of us for our individual constituencies, and as a result we cannot pass on our responsibilities or pretend that someone else is attending to them
My hon. Friend the Member for City of York said he hoped that our hon. Friend the Minister would read into the record the spirit in which he hoped the guidance would operate, and say whether and at what point the guidance would be made public to hon. Members and, 1488 perhaps equally important, to our constituents. I ask my hon. Friend the Minister for one clarification. My hon. Friend the Member for City of York rightly said that we are dealing, fortunately, with a small number of people who feel the grievance, but if one person feels the grievance, it is 100 per cent. It is not mitigated by the fact that there may be only 39 or 49 other people in a similar position. That is why it is important for my hon. Friend the Minister to deal with the issue.
Suppose that the private providers do not all come up to the standard that my hon. Friend the Member for City of York hopes and believes they will, given their track record so far. We only need a couple of providers to fail to live up to that expectation for some of our constituents to feel that, while meeting what is a legitimate grievance for some of our constituents, we have created an equally horrible grievance for them.
§ Mr. Boswell
Those who participated in or subsequently read the reports of the Standing Committee will know that it was characterised by large measures of cross-party agreement on a number of important issues. This is one of them. I pay tribute to the hon. Member for City of York (Hugh Bayley) for bringing to the matter his personal expertise from his constituency case. As has been said, a small number of people are affected, but that is no reason to perpetuate an injustice if it can be dealt with.
I look forward to the Minister's response, as she, too, has been sensitive in this area. The only question at issue is what the best response is arid whether it will leave some people feeling that they have not received the justice to which they feel entitled. I take the point made by the right hon. Member for Birkenhead (Mr. Field). If we deal with most of the problem but leave one or two people dissatisfied, that aggravates things for them.
From the exchange between the hon. Member for City of York and my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), I think there is a convincing case for dealing with the matter by guidance note. That will cover most cases, including, I hope, those where the provider is a member of the National Association of Pension Funds.
My only reservation rose—I do not want to go on at great length, as I know this is a difficult and complex subject rose—relates to the question of public sector schemes. It is absolutely true, as the hon. Gentleman has said, that a large number of those are and should be members of the NAPF in relation to their private sector or second pension provision, which is fine. Typically, of course, entitlements can be transferred between public and private sector easily in that regard. When considering statutory pension schemes, the difficulty is that they are often prescribed in statute, and are very complex. I hope that the Minister can at least reflect, and perhaps comment this afternoon or subsequently, on cases in which trustees of public sector schemes may find that their discretion is fetter ed in ways in which some of the private schemes would not be, and are unable to produce the deal that would otherwise be available to persons in the private sector. That is not an easy matter rose—I believe that there are about 600 public sector schemes rose—but I hope that it will be considered.
The broad outline is uncontentious. The hon. Gentleman has worked hard with the Minister, and I have been anxious not to clutter things and get in the 1489 way, but he has had the courtesy to keep us in touch. He needs to share that, and it would be sensible for the Minister to put the guidance note in the Library for all to see. We are on the verge of resolving this issue, without a Division and in conformity with the decent spirit that the Committee showed previously.
§ Lynne Jones
I, too, thank my hon. Friend the Member for City of York (Hugh Bayley) for his work on the issue of pensions justice for transsexual people and their spouses, prompted by the injustice that they will be forced to dissolve their marriage if the transgendered person is to be able to realise their human rights in that status.
I am not entirely convinced by the argument that a statutory requirement, as in new clause 2, would impose significant complexity on the pensions industry. The Government's record on simplification of pensions policy is not entirely good in that regard. Having said that, I also want to thank the Minister for the co-operation that she and her Department have given my hon. Friend. I hope that the guidance note will provide sufficient incentive to all pension providers to ensure that people in the unique position of being forced to dissolve their marriage are protected and retain their pension rights. Because of the small numbers involved, this is not particularly financially demanding of pension schemes, although it is possible that some might be in very small pension schemes and the trustees might be pleased to save themselves what they might consider a considerable burden of paying out a pension in the event of the decease of a spouse in a former marriage involving a transgendered person.
As the hon. Member for Daven try (Mr. Boswell) has said, the guidance note proposal goes a considerable way towards alleviating some of the anxiety, but I am not entirely convinced that it would not have been better either for the proposals laid down in new clause 2 to be accepted or for the Government to consider whether it is necessary to require couples to dissolve their marriage before a transperson can have a gender recognition certificate.
§ Mr. Hogg
I have three questions, but before I come to those, I want to congratulate the hon. Member for City of York (Hugh Bayley), who has been addressing a serious problem, for which the House is grateful.
First, the hon. Gentleman is relying on guidance—practice directions. When trustees come to construe a trust, however, they have legal obligations. I am far from certain that guidance, or practice direction, would relieve them of their obligations under the trust if the trust were fairly clear in its interpretation. I suspect that statutory intervention might be required.
My second point relates to public sector pension schemes. I may be wrong, but my understanding is that many of those schemes are statutory in origin, relying on statutory instruments. In that case, the duties of a trustee are constrained by the language of the statutory instrument in question, and statutory intervention rather than guidance would be needed to alter the obligations of a trustee in respect of a public-sector trust.
My third point is rather different. I have been looking again at schedule 4, and asking myself what would be the effect on a marriage of the acquisition of a new 1490 gender. I note that the original marriage is voidable, not void: unless the parties go to court to have it annulled, the original marriage remains valid. I assume that, as a consequence, if a party whose spouse has acquired a different gender does not want the marriage annulled—it being voidable rather than void—the original marriage will remain subsisting, and the parties' rights will be defined with reference to the original pension scheme. I realise that that is a technical point, and I am sorry if I have not made it clear to the Minister. She is stirring in her seat, and I shall be happy to give way to her if I have not.
§ The Parliamentary Under-Secretary of State for Work and Pensions (Maria Eagle)
We have had a short, sharp but erudite debate, for which we should thank my hon. Friend the Member for City of York (Hugh Bayley). As I listened to him answering questions from all corners, it was as if he was still a social security Minister, and I felt that I might be redundant. His ability to answer so many questions—I shall return to some of those that remain—shows how deeply he has thought about an issue which, although it arose from a constituency case, is replicated around the country, albeit in only a small number of instances. The speed and depth of his responses demonstrate that he has examined the matter closely, and his amendments tabled in Committee and on Report make it clear that he is not a bad parliamentary draftsman either. We have seen worse, sometimes from parliamentary counsel—although I shall probably suffer as a result of that comment.
The amendments are similar to those tabled by my hon. Friend in Committee. They are narrower, in that they relate simply to a married couple who must divorce for one member to obtain a gender recognition certificate, but intend to stay together. They are, however, broader in that they refer to all property rights rather than just private pension rights.
§ Mr. Hogg
I realise that I am coming to the argument rather late and may have misunderstood the position—in which case I apologise—but my understanding of schedule 4, which I think governs the effect of an acquired gender on a subsisting marriage, is that it is voidable, not void. In other words, no party is driven to take a divorce by reason of the acquisition of the gender; it is merely that the party is entitled to go for an annulment.
§ Maria Eagle
Although the right hon. and learned Gentleman's definition of voidable, as opposed to void, is certainly right, the person who is acquiring the new gender cannot get the interim certificate that enables him or her to get legal recognition until there is a divorce. It is in that sense that my hon. Friend the Member for City of York and others have said here and in Committee that the law requires a divorce. I hope that that clarifies the way in which the legislation will work. It does not turn on whether the marriage is voidable or void; one will not get the interim certificate without having a divorce.
§ Lynne Jones
May I just clarify one point? I think that my hon. Friend means that one cannot get a full 1491 recognition certificate without a divorce. The interim certificate is granted before the divorce, purely in recognition that that person has transgendered. My understanding is that that interim certificate gives either party to the marriage the right to annul that marriage.
§ Maria Eagle
I thought that that was what I said; if I did not, my hon. Friend has done me a favour by clarifying the point. I hope that that satisfies the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) on that specific point. I shall return to some of his other points.
I am trying to emphasise the fact—as did my hon. Friend the Member for City of York—that the new clause and amendment are about the very small group of people, even within the transgendered community, who are married and wish to stay together once there is final recognition in the acquired gender. That will be a small number of people—we have heard such figures as 40 or 50 bandied around. However, as my right hon. Friend the Member for Birkenhead (Mr. Field) and the hon. Member for Daventry (Mr. Boswell) made clear, that does not take away the fact that the issue is still pretty important to that small number of people, whom we are in effect requiring to divorce if one party to their marriage wishes to have their legal right to be recognised in their acquired gender. I recognise that the issue is important, as did my hon. Friend the Member for City of York.
The Government's position on these issues has not changed. It is a fundamental principle of the Bill that once a legal change in gender is secured, the person must be treated for all purposes as being of the acquired gender. It cannot be right in a Bill that intends to give legal recognition to a person's change in gender then to start treating that person in the old gender for some purposes and in the new gender for others. That is what leads to some of the issues that have been raised here about financial disadvantage that might arise because someone simply acquires a human right, which the Bill exists to enable them to do. That is the nub of all the problems and issues that are before us. However, the Government still believe that it would be wrong to start to make exceptions to the Bill's general principle that once the acquired gender has been legally acquired, that person is to be treated in all circumstances and cases as being in the acquired gender, not the old one.
My hon. Friend the Member for City of York referred to the useful meetings that we had. Although they were held under the auspices of the Department, I pay tribute to him for playing a dynamic part in ensuring that they happened. There was a meeting of the National Association of Pension Funds, the Association of British Insurers and others with my hon. Friend on 29 March. Short though our debate on this issue was, we discussed such a myriad of different potential circumstances—different pension schemes, different ages at which this might become an issue, different amounts of pension already accrued and so on—that it seemed fairly evident to me from that debate that it would be difficult to try to legislate to deal with the problem in every single way in which it might show its face.
1492 We believe that making exceptions to general principles would not he helpful in this instance, and could have unintended consequences. The representative of the National Association of Pension Funds certainly made it clear that he did not believe that the trustees of pension schemes should be asked to fetter their discretion in the way that the amendments propose. Different pension schemes have different rules, are of differing sizes and have differing levels of discretion. Some already provide survivor benefits for unmarried partners as of right, or at the trustees' discretion.
We continue to believe that the best way of dealing with the situation is for individuals to ask their pension scheme trustees for advice about the provision that the scheme makes for unmarried partners and the conditions that apply, and to consider their options in the light of that information. They can then decide whether and when to ask for gender recognition, in view of all the financial circumstances that apply to them at that time.
§ Glenda Jackson
Is help not already available for the industry, and would it not be possible for the small number of people who will be affected in this way—those who intend to live together post-transgender for the rest of their lives—simply to be incorporated through the legislation? Indeed, such legislation has benefited same-sex couples in this regard.
§ Maria Eagle
That would not be at all as easy as it sounds. Such people may well have every intention of continuing to live together after a divorce and a gender reassignment, but nobody can predict what will actually happen. At a time when we are trying to simplify private pension provision rules, and in dealing with what is a very small number of people, it would be difficult and complicated to produce rules and requirements for schemes without intruding on the rights and duties of schemes and trustees.
We certainly want to proceed by way of guidance and to see whether that will work. Such guidance has proved useful in the case that motivated my hon. Friend the Member for City of York. He met with a very positive response when pursuing the pension rights of his constituents, and we hope that the same will be true of the small number of people affected by the provision. That it is certainly our preferred solution.
§ Maria Eagle
I am about to deal with the various points that have been made arid I shall try to answer such questions before I sit down. To be fair, my hon. Friend the Member for City of York has already correctly answered most of the questions that were raised, which is why I feel slightly redundant. Having said that, Members are tempting me to speak for far longer than I probably should. To the extent that the NAPF covers public sector as well as private sector schemes, its guidance notes apply in equal measure to both.
My hon. Friend the Member for City of York asked when the guidance would be made available to the public. We intend that the application packs and the 1493 enclosed information be available to all those who apply to the gender recognition panel from January 2005 at the latest. My Department and I have no worries about making our guidance available, as soon as it is drafted and completed to our satisfaction. Of course, the guidance note produced by the NAPF and the industry is not mine to bandy around, and I shall have to ask them when they are willing to make it public. I am certainly happy to respond to those Members who have an interest in this issue, once I have consulted those who play a part in the preparation of the guidance note, but I should make it clear that there is no point in allowing a guidance note to be surrounded in secrecy.
My hon. Friend the Member for Hampstead and Highgate (Glenda Jackson) asked a question relating to general divorce law. I should point out that I am not a divorce lawyer—or indeed any sort of lawyer any more. I do not wish to get drawn into specific instances, but I can say that the court has the power to make pension-sharing orders on divorce. To the extent that couples are concerned that even though they intend to stick together after divorce, that may not actually happen, they can certainly have pension sharing on divorce. That would be the right thing for them to do.
My right hon. Friend the Member for Birkenhead asked a number of questions. One was what would happen if pension providers did not live up to the hopes that we have all expressed in the House today. May I tell him that our first example has been the constituents of my hon. Friend the Member for City of York? It seems that a good and positive outcome resulted in that instance. I am optimistic about people's responses to such problems. When the Bill becomes law, when the guidance note and the rules for trustee schemes have been published and when the members start to discuss the issues, I hope that we will not encounter any serious problems. At this stage, all I can say is that, if that proves not to be the case, we will have to examine the position again. I am sure that the House would not expect me to commit the Government any further than that at this stage, but we want to be as helpful as possible to ensure that people do not lose out.
Let me emphasise again that the primary purpose of the Bill is to enable legal recognition in the acquired gender and to give human rights to a group of people who have demanded them but who have been ignored in the past. That is the Bill's primary purpose, and no other purpose overrides it. To the extent that we have to make choices between that purpose and others, we have to choose the primary purpose, and I hope that no problems will result from that.
The guidance from the Department will advise individuals to approach their schemes for information about what would be likely to happen if a decision were taken to divorce as a result of one person wanting to gain a final gender recognition certificate. Couples can take a decision on the basis of what information comes back to them from their particular scheme about their particular circumstances.
The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), who is obviously a trust lawyer—he convinced me through his questions that he knows a lot about trusts and equity—asked what would happen if the construction of the trust fettered the good will of the trustees. Obviously, all I can say is that the trust deed comes first. Trustees w ill be able to respond 1494 positively to the extent that they have the discretion to do so. We hope that they will do so, but if the rules of the scheme and the trust deed are such that they do not have discretion, clearly the answer will be rather different. We wait to see what happens.
The right hon. and learned Gentleman also referred to public sector schemes and the wording of statutory instruments. I am not in a position today to tell him whether there would be problems with the construction of statutory instruments. No doubt that will become clear as we start to go through the process. Again, if there is a major problem, we will have to consider it when it emerges. I believe that I have dealt with the right hon. and learned Gentleman's other point.
§ Mr. Hogg
The Minister is making a perfectly fair response. One could envisage circumstances in which some people lost out, but in which we found out that there was a problem with the statutory instrument only after they had lost out. The Minister might then have to consider the possibility of paying benefits retrospectively on the introduction of any statutory change.
§ Maria Eagle
The right hon. and learned Gentleman, in talking about retrospection in relation to benefits, is tempting me into serious constitutional waters, but I hear what he says, and we would have to consider it if a problem emerged. I will have to take that point away with me, although we hope that there will not be any problems.
The hon. Member for Daventry spoke about scheme rules and discretion, and asked me whether the guidance notes could be placed in the Library. As I said, there is no point in keeping a guidance note secret. I, for one, would want to spread the guidance as far and wide as possible for the benefit of those for whom it might be of some use.
I end by paying tribute to the dedication and effort of my hon. Friend the Member for City of York. I hope that I can convince him not to press the new clause, and that the guidance note on which the Government and the industry are working hard will do the job that he wants done. Finally, I hope that he will not be too upset if I say again that he has done a very good job for his constituents.
§ 4 pm
§ Hugh Bayley
I feel almost as if I have been praised to death. I should begin by thanking my right hon. Friend the Member for Birkenhead (Mr. Field) and my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones), who put their names to the proposal. As to whether guidance, as opposed to statutory provision, will be sufficient, there is a great temptation for Back Benchers to be fundamentalist and to press for legislation just in case it is needed, even though that may be a one in 10,000 chance. When I ceased to be a Minister, I decided that I should not set for my successors a sterner test in respect of the necessity for legislation—or anything else—than I would have set for myself.
1495 My hon. Friend the Minister said kindly that she wondered whether she was redundant. She is not: she is a very good Minister, as her response to my concerns on this matter shows. It is I who feel redundant after her answers to all the difficult and penetrating questions asked by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg).
Of course, non-statutory guidance will not override trustees' responsibilities. However, when the trustees have discretion, how will they use it? I want them to use it in a way that protects the rights of the spouse of a transsexual who legally changes gender. The guidance will give advice to trustees about how to use discretion, and it will move them in the right direction.
The hon. Member for Daventry (Mr. Boswell) said that there had been good co-operation across the parties on this matter. I am grateful to him for his help and support in Standing Committee, and to the hon. Member for Winchester (Mr. Oaten), who also put his name to the amendment.
The Minister said that she hoped the guidance would provide the level of protection needed by the small number of people who find themselves in this situation. The implication was that we would have to make some legislative provision if the guidance failed in that respect. If my judgment that the guidance note will be sufficient proves to be wrong, I assure my hon. Friend the Member for Birmingham, Selly Oak that she can enlist me as a willing supporter in pressing for statutory provision. However, I do not think that that will be necessary, and I prefer to have a simple and unencumbered Bill.
The Minister said that she was willing to consult other Members who have expertise in this matter about the content of the guidance that is sent out. I am grateful to her for that. I accept that the final draft of the guidance needs to be signed off by the ABI and the National Association of Pension Funds as well as by her Department, so she cannot give the House a firm date, but I am pleased to hear that she hopes the guidance will be available before the Bill goes live, assuming that it receives Royal Assent.
In light of the clear assurances from the Minister, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.